698 F.

2d 31

UNITED STATES of America, Appellee,

v.
Angeles Ramonita GARCIA, Defendant, Appellant.
Nos. 80-1597, 82-1446.

United States Court of Appeals,

First Circuit.
Argued Nov. 5, 1982.
Decided Jan. 17, 1983.

Michael E. Deutsch, Chicago, Ill., with whom John L. Stainthorp,

Chicago, Ill., was on brief, for defendant, appellant.
H. Manuel Hernandez, Sp. Asst. U.S. Atty., San Juan, P.R., with whom
Raymond L. Acosta, U.S. Atty., San Juan, P.R., was on brief, for appellee.
Before COFFIN, Chief Judge, BOWNES, Circuit Judge, and
HEMPHILL,* Senior District Judge.
COFFIN, Chief Judge.

Appellant Angeles Ramonita Garcia appeals from the district court's refusal to
vacate her guilty plea, claiming violation of Fed.R.Crim.P. 11, ineffective
assistance of counsel, and breach of a plea agreement. As to the last claim we
agree, and order appellant re-sentenced to time served. The other claims are
without merit.

* Appellant, now some 70 years old, was charged in October 1976 in a 75count indictment alleging mail fraud, conspiracy to defraud the United States,
and making false statements to a government agency, all arising out of the
operation of her beauty and barber school in Puerto Rico. The indictment
alleged that appellant, in concert with others, helped veterans attending her
school to obtain Veterans Administration payment of false claims by
backdating their enrollment dates on which their eligibility for commencement
benefits under the G.I. Bill was based. In return, the indictment alleged,
appellant's school received tuition payments of $80 per month for the

backdated period, and a $100 fee for backdating the VA forms.

3

On February 12, 1977, appellant pled guilty to three of the 75 counts pursuant
to a plea agreement. The remaining 72 counts were then dismissed. Nine
months later, on November 18, 1977, appellant was sentenced to five years'
imprisonment and a $21,000 fine.

In May 1979, appellant sought a writ of habeas corpus from the U.S. District
Court for the Southern District of West Virginia, alleging, inter alia, the
grounds presented here. The West Virginia court ordered the bulk of appellant's
claims transferred to the District of Puerto Rico, and, while ordering appellant's
release on other grounds, stayed resolution of her Rule 11 claim pending its
consideration by the Puerto Rico court.1 See Garcia v. Neagle, 660 F.2d 983,
987 (4th Cir.1981). In June 1980, the district court of Puerto Rico denied
appellant's petition without an evidentiary hearing. On September 11, 1981, this
court remanded for an evidentiary hearing on the assistance of counsel issue,
and on April 22, 1982, on the basis of three days of hearings, the district court
again denied appellant's petition. In the meantime, the Fourth Circuit Court of
Appeals had reversed the grant of habeas corpus by the West Virginia court,
Garcia v. Neagle, supra, and in May 1982, appellant was granted parole after
having served some 28 months in prison.

Simultaneously with the criminal prosecution, the government sought $1.2

million in damages from appellant in a civil suit under the False Claims Act, 31
U.S.C. Secs. 231-235. Partial judgment against appellant for $600,000 was
granted in 1978, United States v. Garcia, Civ. No. 76-1417 (D.P.R. Jan. 16,
1978), aff'd 612 F.2d 5701 (1st Cir.1979), and judgment for the remainder of
the government's claim followed in 1981, United States v. Garcia, Civ. No. 781005 (D.P.R. Nov. 30, 1981), appeal docketed, No. 81-1894 (1st Cir. Dec. 22,
1981).

II
6

Appellant first claims error in the trial court's failure to advise her of certain
factors affecting her parole eligibility--specifically, that the Parole Commission
would consider all 75 counts of the indictment in determining her release date,
and that the magnitude of the fraud ($900,000) would delay--but not preclude-her eligibility under Commission guidelines. These omissions, she claims,
violated Fed.R.Crim.P. 11, and rendered her change of plea unconstitutionally
unintelligent and involuntary. We reject both claims.
In its current version, Rule 11 only requires the court to advise a defendant of

In its current version, Rule 11 only requires the court to advise a defendant of
"the mandatory minimum penalty provided by law if any, and the maximum
possible penalty." Johnson v. United States, 650 F.2d 1, 4 (1st Cir.1981). While
the word "penalty" is not self-defining, it is evident from the advisory
committee notes to the rule's 1974 amendment that "penalty" means the
statutory nominal sentence and not actual time in prison after credit for good
behavior and parole. See Fed.R.Crim.P. 11 advisory committee note on 1974
amendment (relevant penalties are "usually readily ascertainable from the face
of the statute defining the crime").
As for appellant's constitutional claim, as to which appellant cites no authority,
we are persuaded that nothing in the principles of due process requires the
advice omitted here, or renders appellant's plea unintelligent or involuntary in
the absence of that advice. Whether or not due process may ever require advice
as to parole consequences, compare, e.g., Hunter v. Fogg, 616 F.2d 55, 60-61
(2d Cir.1980) with Strader v. Garrison, 611 F.2d 61, 63 (4th Cir.1979) and Bell
v. North Carolina, 576 F.2d 564, 566 (4th Cir.1978), appellant has not shown
that she was unaware of the actual statutory sentencing possibilities, or that the
omitted information would have made any difference in her decision to plead
guilty. In the absence of such a showing, we cannot say that appellant was
denied due process. Caputo v. Henderson, 541 F.2d 979, 984 (2d Cir.1976);
Kelleher v. Henderson, 531 F.2d 78, 82 (2d Cir.1976).

III
9

Appellant next claims that she was denied her Sixth Amendment right to the
effective assistance of counsel because her attorney, Mr. Gerardo Ortiz del
Rivero, allegedly failed to make adequate investigation of the facts, was
unprepared for trial, pressured her into pleading guilty despite repeated
protestations of innocence, and assured her that she would receive probation if
she pled guilty. In addition, she claims that he failed to make adequate efforts
on her behalf at sentencing--in particular, that he inexcusably failed to dispute
the government's claim to more than $900,000, or to argue that appellant was
unable to repay such a large sum. These defects, she claims, render her plea
involuntary and require that it be vacated.

10

We agree that under our decision in United States v. Bosch, 584 F.2d 1113,
1121 (1st Cir.1978), appellant was entitled to reasonably competent assistance
at each stage of the proceedings below, from pre-plea investigation and
preparation through advocacy at sentencing. We agree with the district court,
however, that appellant was not denied such assistance here. The district court
held three days of hearings on appellant's claims. It heard testimony from
appellant, her sister, her daughter, and Mr. Ortiz del Rivero. Mr. Ortiz del

Rivero denied appellant's claims, and testified that he had investigated the case,
was ready for trial, left the plea decision to appellant, and made no guarantees
of probation. After hearing the witnesses, and observing their demeanor, the
district court gave "complete credibility" to Mr. Ortiz del Rivero, and found
that appellant had "failed to demonstrate any errors committed by him, which
were the result of neglect or ignorance, rather than from informed professional
deliberations." Appellant urges us to disregard these findings, claiming, as we
understand her, that the "predilection" of the court for the attorney caused it to
make findings that were clearly erroneous.
11

Appellant makes much of Mr. Ortiz del Rivero's destruction of his case files
upon leaving private practice to become Federal Public Defender for Puerto
Rico, and his inability to recall the details of his pretrial investigation of the
case. The disposal of case files, however, was explained and would itself
account, at least in part, for counsel's imperfect recollection, inasmuch as the
hearing on appellant's ineffectiveness claim was held more than five years after
appellant was indicted and more than four-and-a-half years after she pled
guilty. In any event, rational minds could reasonably draw different inferences
as to the true extent of counsel's preparation in the case.2 The trial court was
fully justified in concluding that the many long visits which appellant testified
to were not all spent, as appellant claims, in puffery and arm-twisting by Mr.
Ortiz del Rivero, but in counseling, review of a multitude of government
documents, and development of the facts, as Mr. Ortiz del Rivero claimed.
Significantly, what appellant was confronting was a mammoth prosecutorial
effort, involving some 75 counts, 80 prospective witnesses, and a co-defendant
turned government witness.

12

Appellant advances a non-frivolous contention based on Mr. Ortiz del Rivero's

performance at sentencing. Since restitution was of announced critical
importance to the court's decision on sentence in the criminal proceeding,
details of the amount were very much within counsel's responsibility and not, as
he argued, beyond his concern since restitution was the subject of a separate
civil suit with other counsel. We are not persuaded on the record, however, that
his assistance on this issue was ineffective, notwithstanding his disclaimers of
concern.

13

First, Mr. Ortiz del Rivero testified that he and appellant's civil counsel had
gone over the figures several times prior to sentencing, with results uniformly
unfavorable to appellant and at sharp variance with her claims to owing a much
lower amount. See III TR 33-35 (Dec. 9, 1981). Though appellant has had more
than four years since she was sentenced in which to come up with supporting
evidence, she still proffers only her unsupported assertion that the government's

figure was too high. In the meantime, judgment has already gone against her in
the government's civil suit. Moreover, appellant's financial resources were
evidently greater than she claims, for according to its brief, the government has
already recovered almost all of the money it sought.
14

Second, Mr. Ortiz del Rivero's professions of ignorance and mathematical

inability came after the court had rejected his offer of $100,000 and told him "
[Y]ou have to be kidding.... [T]hat is not the amount and she knows that very
well." In this context, Mr. Ortiz del Rivero's "ignorance" appears to have been a
tactical attempt to avoid angering the court still further, and to divert the court
from pressing the issue. In these circumstances, the trial court was amply
supported in concluding that Mr. Ortiz del Rivero's handling of the restitution
question at sentencing was the product of informed professional judgment
rather than neglect, however unsuccessful his efforts may have been. We
therefore have no basis for finding his assistance to appellant at sentencing
ineffective. As we said in United States v. Bosch, supra, and United States v.
Thomann, 609 F.2d 560, 566 (1st Cir.1979), the requirement of reasonably
competent assistance of counsel does not open the door to "Monday-morning
quarter-backing" of tactics, nor does it mean that counsel must make baseless
arguments to the court to protect himself against later claims of incompetence.

IV
15

Appellant's final claim is that the government breached the plea agreement.
Under the agreement, appellant agreed to "plead guilty to three counts" and to
"cooperate with any future inquiry in this or any other matter including
interviews by Federal Bureau of Investigation Agents and testimony on behalf
of the United States in any criminal proceedings." The government, in turn,
promised to "make the defendant's cooperation known to the Court at
sentencing". The agreement further provided that "[i]f the defendant's
cooperation is complete and all testimony given is completely truthful, the
United States has advised the defendant, that a recommendation to the Court at
sentencing may include a recommendation of probation and fine."3

16

As the government notes, the agreement provides no guarantee that a

recommendation of probation would be made, but only that the government
might recommend probation if appellant's cooperation was complete. Thus, the
government is only required "to show a good faith consideration of Petitioner's
cooperation"--that is, "to set forth in the record sufficient reasons for its belief
that [appellant] has not cooperated fully and that ... a recommendation [of
probation] is not proper." 501 F.Supp. at 475. This, however, the government
has failed to do.

17

The government contends that appellant's obligation of cooperation under the

plea agreement included an obligation to "cooperate" by making restitution in
the government's parallel civil suit under the False Claims Act. Although it is
undisputed that appellant had not yet made restitution or agreed on a figure
when she appeared for sentencing, we cannot agree that restitution was part of
the cooperation required under the plea agreement.

18

While the concept of "cooperation" is broad enough in the abstract to cover

restitution, its scope under the plea agreement was narrower. The agreement
did not call for "cooperation" in the abstract, but only cooperation "with any
future inquiry in this or any other matter including interviews by Federal
Bureau of Investigation Agents and testimony on behalf of the United States in
any criminal proceedings" (emphasis added). As to that inquiry, the assistant
U.S. Attorney herself conceded at sentencing that appellant had lived up to the
agreement: "[A]s I said before, I am not suggesting that Mrs. Garcia did not
cooperate in terms of the continuing investigation. Rather she did. She did
testify and she was available for testimony." 501 F.Supp. at 485. The lack of
restitution notwithstanding, no other cooperation was required by the
agreement. The presence of appellant's civil counsel at the criminal change of
plea hearing does not alter our conclusion. To the government, and to the
district court below, that presence was evidence that restitution was part of the
plea bargain. The plea bargain document, however, expressly states that it
embodies the "complete and total agreement" between the government and
appellant; particularly where the amount involved is as large as it is here,
restitution is a material condition unlikely to be left to implication. Implying
such a condition now would work a material change in the plea bargain. Cf.
United States v. Runck, 601 F.2d 968, 969-70 (8th Cir.1979) (per Gibson,
C.J.).4

19

The government next urges us to construe its promise as wholly discretionary,

but to do so would render a significant element of the consideration for
appellant's change of plea illusory. In the face of similar language in United
States v. Bowler, 585 F.2d 851, 853-54 (7th Cir.1978), the Seventh Circuit held
that "the very presence of [such language] in the written and executed plea
bargain document ... shows that there was an implicit promise by the
Government that it would consider the [ ] [stated] factors and would make a
recommendation based on this consideration" (emphasis added). In Bowler, the
agreement stated that "[t]he Government's recommendations as to incarceration
... may be reduced, based upon the extent of defendant's truthful cooperation ...,
the condition of his health and other personal factors, and Antitrust Division
guidelines which indicate that fines may be substituted for incarceration in
appropriate circumstances." Id. at 853. Here, the only condition was

cooperation. The differences between the two provisions, however, are

negligible. We agree with the Seventh Circuit's conclusion that "[t]he inclusion
in the agreement of [such] language ... would serve no purpose in the plea
agreement unless construed to contain an implicit promise to consider the
specified factors, for the Government had the authority to consider such
mitigating factors even without the assent of the defendant":
20

"The Government had no need to secure a 'unilateral option' for it to consider

such factors with an eye toward reducing its recommendation as to the sentence
of incarceration. To construe the plea agreement as not including the
Government's implicit promise to consider the specified factors would be to
render the language mere surplusage. The language was included in the
agreement as an indication to the defendant that these factors would in fact be
considered in arriving at the recommendation as to sentence. The Government
will not be allowed to avoid the obligation it thus incurred by claiming now
that the language literally promises nothing to the defendant. A plea agreement
is not an appropriate context for the Government to resort to a rigidly literal
approach in the construction of language. Cf. United States v. Brown, 500 F.2d
375 (4th Cir.1974) (holding that where the prosecutor promised to recommend
a particular sentence, the mere half-hearted recitation of a suggested sentence
would not satisfy the plea agreement)." Id. at 854. (emphasis added).

21

The fact that the district court was not bound to follow any recommendation of
probation--and that the court, in its own words, positively "would not have
considered any recommendation of probation by the Government without the
accompanying restitution", 501 F.Supp. at 475--does not alter the fact of
breach, or render the plea agreement a "secondary" issue, 501 F.Supp. at 475.
A guilty plea is a waiver of fundamental constitutional rights--"perhaps the
most devastating waiver possible under our Constitution". Dukes v. Warden,
406 U.S. 250, 258, 92 S.Ct. 1551, 1555, 32 L.Ed.2d 45 (1972) (Stewart, J.,
concurring). When that waiver rests "in any significant degree" on a promise by
the government, "so that it can be said to be a part of the inducement or
consideration", as it is here, the promise must be fulfilled. Santobello v. New
York, 404 U.S. 257, 262, 92 S.Ct. 495, 498-499, 30 L.Ed.2d 427 (1971). As we
observed in Correale v. United States, 479 F.2d 944, 949 (1st Cir.1973), a
defendant offers this waiver "not in exchange for the actual sentence or impact
on the judge", but for the prosecutor's promised performance. Accord, Cohen v.
United States, 593 F.2d 766, 772 (6th Cir.1979) ("touchstone" of Santobello "is
whether the prosecution met its commitment and not whether the court would
have adopted the government's recommendation"); United States v.
Grandinetti, 564 F.2d 723, 725-26 (5th Cir.1977); Palermo v. Warden, 545 F.2d
286, 295-96 (2d Cir.1976); Harris v. Superintendent, 518 F.2d 1173, 1174 (4th

Cir.1975); United States v. Brown, 500 F.2d 375, 377 (4th Cir.1974). While the
cases may be distinguishable on their precise facts, the principle is equally
applicable here. Appellant upheld her end of the plea agreement; she was
entitled to insist that the government do the same.
22

There remains the problem of remedy. Appellant asks that we vacate her plea
and permit her to plead anew. The government, anticipating our disposition on
the question of breach, urges that specific performance can be approximated by
resentencing appellant to time served.

23

Where the government has breached a plea agreement, the choice of relief is
largely committed to the sound discretion of the court under the circumstances
of each case. Where withdrawal of the plea or specific performance would be
meaningless or infeasible, a court may order imposition of a specific sentence.
Correale v. United States, supra, 479 F.2d at 950; accord, United States v.
Bowler, supra, 585 F.2d at 856. Because appellant has already served out her
period of imprisonment (she was released from prison after serving some 28
months and is currently on parole), resentencing would serve no useful
purpose. In view of appellant's advanced age, the unfairness to both her and the
government of any trial, the less than egregious error committed by the
government, and the strength of the government's case, we are persuaded that
further proceedings are not in the interests of justice. We therefore adopt the
government's proposal, and order appellant re-sentenced to time served.

24

For the foregoing reasons, the judgment of the district court is reversed.

Of the District of South Carolina, sitting by designation

The West Virginia district court purported to retain jurisdiction over appellant's
"supplemental" claims. See United States v. Garcia, 501 F.Supp. 472, 476-79 n.
3 (D.P.R.1980). Whether or not it meant to retain jurisdiction of the claims
presented here, the jurisdiction of the Puerto Rico district court is well
established, see id., and neither party has brought to our attention any indication
to the contrary

We have canvassed the transcript and have also noted weaknesses in appellant's
evidence, including contradictions on the highly material matter of the presence
or not of appellant's daughter at appellant's house with counsel the night before
the change of plea hearing. (Compare II TR 143-46 and I TR 124-25 with I TR
141.)

The full agreement provided as follows:

"On February 11, 1977, in San Juan, Puerto Rico after extensive negotiations
between counsel for the defendant, Angeles Ramonita Garcia, Gerardo Ortiz
del Rivero, and attorneys for the Government, Jorge Rios Torres, Assistant
United States Attorney, and James J. Graham, Special Attorney, United States
Department of Justice, the parties in the captioned matter, expressly agree and
understand that the below summarized paragraphs one through four are the
complete and total agreement entered into by the defendant voluntarily after
being repeatedly consulted by her attorneys during the course of the
negotiations which covered several months.

The defendant agrees to plead guilty to three counts

The defendant will cooperate with any future inquiry in this or any other matter
including interviews by Federal Bureau of Investigation Agents and testimony
on behalf of the United States in any criminal proceedings

The defendant further understands that no commitment has been made by the
United States to limit its presentation or efforts at the entering of the plea or in
connection with sentencing. However, the Government will make the
defendant's cooperation known to the Court at sentencing. (A)

The defendant further understands that this agreement does not limit
prosecution for any perjury by the defendant in the future in connection with
any testimony
(A) If the defendant's cooperation is complete and all testimony given is
completely truthful, the United States has advised the defendant, that a
recommendation to the Court at sentencing by the United States may include a
recommendation of probation and fine. However, in any case, the defendant
understands that the sentence to be imposed shall be in the sole discretion of the
Court and is not fixed in the plea agreement."

In Runck, the trial court imposed as a condition of probation restitution of some

$87,400. Because the plea bargain made no mention of restitution, the Eighth
Circuit reversed and remanded, observing that "[w]hile the condition of
restitution of a small amount might be acceptable because it would not
necessarily materially alter the expectations of the parties to the bargain,
restitution of a large amount should have been part of the plea bargain or the
possibility of its inclusion as a condition of probation made known and agreed
to by the bargainers." Id. at 970. If restitution of less than $90,000 is material
enough to demand express inclusion in a plea agreement, it follows ineluctably
that restitution of some $900,000 must likewise be included