709 F.

2d 111

UNITED STATES of America, Appellee,

v.
Carlos Rodriguez CRUZ, Defendant, Appellant.
No. 82-1600.

United States Court of Appeals,

First Circuit.
Argued Feb. 11, 1983.
Decided June 8, 1983.

Nicolas Nogueras, Jr., San Juan, P.R., for appellant.

Jose A. Quiles, U.S. Atty., Hato Rey, P.R., for appellee.
Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit
Judges.
BOWNES, Circuit Judge.

The question in this case is whether a district court judge can unqualifiedly
accept a bargained guilty plea and subsequently reject it on the basis of
information contained in the presentence reports of the defendant and two
codefendants. A rehearsal of the proceedings below is necessary.

Defendant-appellant, Carlos Rodriguez Cruz, was indicted on July 8, 1981, for

aiding and abetting and possessing with intent to distribute one hundred twentyfive grams of cocaine in violation of 21 U.S.C. Sec. 841(a)(1), a felony, and in
violation of 18 U.S.C. Sec. 2. Three other defendants were also so charged. In
the second count of the two-count indictment one of the other three defendants
was charged with assault by use of a dangerous weapon (handgun) on DEA
agents.

Trial was scheduled for October 11, 1981. At that time two of the other
defendants pled guilty,1 and sentencing was set for December 11 so that the
court could go over the presentence reports. Pursuant to a plea bargain between

defendant and the government, the United States Attorney filed an information
charging defendant with simple possession of cocaine in violation of 21 U.S.C.
Sec. 844(a), a misdemeanor. As part of the plea bargain the government agreed
to recommend that defendant be placed on probation pursuant to 21 U.S.C. Sec.
844(b)(1). The alternative sentence available under the information was
imprisonment for not more than one year, a fine of not more than $5,000, or
both. 21 U.S.C. Sec. 844(a). Under the indictment offense the sentence for a
first offender, as defendant was, is a term of imprisonment of not more than
fifteen years, a fine of not more than $25,000, or both, plus a special parole
term of at least three years. 21 U.S.C. Sec. 841(b)(1)(A).
4

After being informed of the plea bargain and the government's

recommendation, the court questioned the defendant extensively to determine if
he understood "the rights you are waiving; the punishment provided by statute,
and that there is a basis in fact for your change of plea." The defendant was
informed that the prosecutor's recommendation of probation was not binding on
the court and that he could receive the maximum sentence under the statute of a
fine of $1,000 or imprisonment for not more than one year, or both. At the
conclusion of defendant's interrogation the court stated:

After having addressed the Defendant personally, after having ascertained that
he knows what is contained in the information filed this morning with the Court
and that he knows his right to a trial by jury and the effects of pleading guilty,
whereby he is waiving all his rights; he knows what the maximum punishment
is and he is voluntarily pleading guilty, therefore I will accept the same and a
judgment of guilty would be entered as to the one count information.

I will order a pre-sentence report and at the time the same has been prepared we
would set the case for sentence. The defendant may remain under the same
conditions of bond.

There is no doubt that the district court complied fully with Federal Rule of
Criminal Procedure 11(c). It is also clear that the court unqualifiedly accepted
the plea bargain. It did not defer acceptance or rejection of it until it had an
opportunity to consider the presentence report, as it might have under Federal
Rule of Criminal Procedure 11(e).

On December 11, the day of sentencing, the court rejected the plea bargain. It
stated that after reading the presentence report of the other two defendants who
had pled guilty as well as that of defendant, it thought that all three were
equally involved. The court said that in light of the sentences of four and eight

years imprisonment given to the other two defendants, justice would not be
done in defendant's case if probation for one year were the sentence.
9

After the court rejected the plea bargain, it stated that the matter would be
assigned to another judge. The government then moved orally to dismiss the
information and proceed to trial on the original indictment. The court refused to
rule on this motion on the grounds of recusal.

10

On December 22, 1981, the government moved in writing to dismiss the

information and have the case proceed to trial on the original indictment. The
judge reconsidered the extent of his recusal and granted the motion in a detailed
opinion. 539 F.Supp. 231 (D.P.R. 1982). The case was then assigned to another
judge for trial.

11

Defendant filed a notice of appeal claiming, inter alia, that his constitutional
right against double jeopardy had been violated and citing Abney v. United
States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977), as the basis for an
interlocutory appeal. At the same time, defendant also filed a motion for stay of
trial, which was granted.

12

An impressive number of federal cases are nearly unanimous in holding that

jeopardy attaches upon the court's acceptance of a guilty plea. E.g., United
States v. Sanchez, 609 F.2d 761, 762 (5th Cir.1980); United States v.
Cambindo Valencia, 609 F.2d 603, 637 (2d Cir.1979), cert. denied, 446 U.S.
940, 100 S.Ct. 2163, 64 L.Ed.2d 795 (1980); United States v. Bullock, 579
F.2d 1116, 1118 (8th Cir.) (per curiam), cert. denied, 439 U.S. 967, 99 S.Ct.
456, 58 L.Ed.2d 425 (1978); United States v. Jerry, 487 F.2d 600, 606 (3d
Cir.1973); United States v. Rocco, 397 F.Supp. 655 (D.Mass.1975); Stowers v.
State, 266 Ind. 403, 363 N.E.2d 978, 982 (Ind.1977); see also United States v.
Williams, 534 F.2d 119, 121 (8th Cir.) (assuming without deciding), cert.
denied, 429 U.S. 894, 97 S.Ct. 255, 50 L.Ed.2d 177 (1976).

13

In United States v. Sanchez, 609 F.2d 761, a case strikingly similar to the one at
bar, a defendant was tried and convicted of distribution of heroin after the trial
court rejected a plea bargain for simple possession. While the Fifth Circuit
rejected the defendant's claim of double jeopardy, it emphasized that the district
court had expressly accepted the plea "temporarily," pending consideration of
the probation report ("I will only accept the plea temporarily, I will tell you. I
could change my mind about it when I get the Probation Report.... I will take
the plea bargain at this time and at a later time when I have had an opportunity
to investigate it further I will determine whether to accept it."). Here, by

contrast, the court expressed no such reservation.

14

None of these cases, however, analyze in depth the reasons for the application
of the double jeopardy rule and all of them are factually distinguishable from
the situation before us.2 For several reasons we do not think that jeopardy must
attach automatically and irrevocably in all instances when a guilty plea is
accepted. Acceptance of a guilty plea to a lesser offense carries no implied
acquittal of the greater offense and for this reason is not the same as a verdict.
See Klobuchir v. Commonwealth of Pennsylvania, 639 F.2d 966 (3d Cir.), cert.
denied, 454 U.S. 1031, 102 S.Ct. 566, 70 L.Ed.2d 474 (1981); Hawk v.
Berkemer, 610 F.2d 445 (6th Cir.1979). Moreover, the "ordeal" of a Rule 11
proceeding is significantly different from the ordeal of trial: Rule 11 hearings
are not trials, and the defendant here was never in jeopardy of conviction on
any charge except the lesser offense to which his plea was offered. We agree
that jeopardy must attach somewhere and bar reconsideration at some point, but
acceptance of the plea is not the only possible point.

15

It could be argued that jeopardy should attach to a guilty plea only upon
imposition of sentence and formal pronouncement or entry of judgment. This
would give maximum flexibility to the court while still fixing a clear point of
finality and repose. See United States v. Combs, 634 F.2d 1295, 1298 (10th
Cir.1980), cert. denied, 451 U.S. 913, 101 S.Ct. 1987, 68 L.Ed.2d 304 (1981).
This approach was trenchantly criticized by Judge McKay in his dissent in the
same case. 634 F.2d 1300-04.

16

Another approach, and in our view the preferable one, would be to analogize
judicial abortion of a previously accepted guilty plea and plea bargain to
judicial declaration of a mistrial after jeopardy has attached--i.e., to hold that
jeopardy attaches upon acceptance of the guilty plea, but to allow the district
court to rescind acceptance at any time before sentencing and judgment upon a
showing of "manifest necessity," the standard for declaring a mistrial over the
defendant's objection, Arizona v. Washington, 434 U.S. 497, 505, 98 S.Ct. 824,
830, 54 L.Ed.2d 717 (1978). It might even be argued that since double jeopardy
interests are less implicated by plea bargains and Rule 11 proceedings than by
mistrials, a showing of less than "manifest necessity" should suffice.

17

Even, however, were we to adopt such a standard, the result would not be
different in this case because the procedure followed by the district court
contravened Federal Rules of Criminal Procedure 11(e) and 32(c). Although
there may be times when a judge can change his mind after accepting a guilty
plea without violating the double jeopardy clause, he must do so within the
framework of the Federal Rules.

18

Federal Rule of Criminal Procedure 11(e) allows a court, upon notification that
the defendant's guilty plea is the result of a plea bargain with the government,
to do one of three things. It may accept the agreement or reject it, or may defer
its decision until there is an opportunity to review the presentence report.
Fed.R.Crim.P. 11(e); see United States v. Blackwell, 694 F.2d 1325, 1338
(D.C.Cir.1982); 8 R. Cipes, I. Hall & M. Waxner, Moore's Federal Practice p
11.05, at 11-89 to -90. The court may opt for the latter of these choices only if
it has the defendant's consent to review the presentence report. Fed.R.Crim.P.
11 advisory committee note (1974 amendment); see Fed.R.Crim.P. 32(c)(1);
United States v. Sonderup, 639 F.2d 294, 295 (5th Cir.), cert. denied, 452 U.S.
920, 101 S.Ct. 3059, 69 L.Ed.2d 426 (1981); United States v. Harris, 635 F.2d
526, 528 (6th Cir.1980), cert. denied, 451 U.S. 989, 101 S.Ct. 2326, 68 L.Ed.2d
847 (1981).

19

There is no authority for the district court's actions in the instant case. Of
course, the court initially had discretion to accept or reject the plea agreement
or defer determination until, with the defendant's permission, it had examined
the presentence report. See Santobello v. New York, 404 U.S. 257, 262, 92
S.Ct. 495, 498, 30 L.Ed.2d 427 (1971). But, once the court accepted the
agreement, thereby binding the defendant and prosecution, it could not simply
change its mind on the basis of information in the presentence report, at least
where that information revealed less than fraud on the court.

20

While this is a case of first impression in this circuit the legal issue before us
has been addressed by the District of Columbia Circuit, see United States v.
Blackwell, 694 F.2d 1325 (D.C.Cir.1982), and we agree fully with its
reasoning.

21 11 appears to speak unequivocally; if the plea is accepted, the judge does not
Rule
announce any deferral of that acceptance, and the defendant adheres to the terms of
the bargain, all parties to it are bound.... [T]he mere postponement of sentencing
itself to a future date does not authorize the judge to remake or vacate the plea
bargain for whatever reasons later seem appropriate to her.
22

Id. at 1339.

23

The circumstances in this case are particularly egregious given the district
court's reliance on the presentence report as its sole justification for vacating
the plea. Federal Rule of Criminal Procedure 32(c)(1) governs the submission
of presentence reports to the trial court. The rule states that "[t]he report shall
not be submitted to the court or its contents disclosed to anyone unless the
defendant has pleaded guilty or nolo contendere or has been found guilty,

except that a judge may, with the written consent of the defendant, inspect a
presentence report at any time." Fed.R.Crim.P. 32(c)(1). In Gregg v. United
States, 394 U.S. 489, 89 S.Ct. 1134, 22 L.Ed.2d 442 (1969), the Supreme Court
held that a violation of Rule 32 through submission of a presentence report to a
court before the defendant pleads guilty or is convicted "constitutes error of the
clearest kind." Id. at 492, 89 S.Ct. at 1136. The Court explained that since these
reports are composed chiefly of hearsay and facts that are collateral to the
central issue of the defendant's guilt or innocence in the instant case, a trial
court's exposure to the report could seriously prejudice the defendant. Id.
24

In light of Gregg, Rule 32 was amended to permit a district court to review the
presentence report before accepting a defendant's guilty plea, but only if the
defendant consents to such review. See Fed.R.Crim.P. 32(c)(1); Fed.R.Crim.P.
32 advisory committee note (1974 amendment); United States v. Sonderup, 639
F.2d at 296; 8A R. Cipes, I. Hall & M. Waxner, Moore's Federal Practice p
32.03, at 32-35. This change of procedure was also incorporated into Rule
11(e), which was amended to allow a court to defer acceptance of a plea
agreement until it has reviewed the presentence report. As the advisory
committee notes accompanying the rule make clear, such review "is made
possible by rule 32 which allows a judge, with the defendant's consent, to
inspect a presentence report to determine whether a plea agreement should be
accepted." Fed.R.Crim.P. 11 advisory committee note (1974 amendment)
(emphasis added).

25

The district court's actions in this case seriously, if not completely, undermined
the protection afforded the defendant by Rules 11 and 32. It appears from a
literal reading that the court below fully complied with Rule 32; it reviewed
defendant's presentence report only after it accepted his plea of guilty. But, the
court relied on the information it obtained from the report to justify its vacation
of the plea. Under Rules 11 and 32, the court could not use this information in
its initial decision to accept or reject the plea unless it had defendant's consent.
If a court were entitled to use the report to vacate a plea agreement it had
previously accepted, there would be no reason to obtain the defendant's consent
to use the report during its initial consideration of the plea agreement. It could
accept the agreement unconditionally, read the presentence report in
accordance with Rule 32, and then, on the basis of the report, simply change its
mind and revoke its earlier acceptance. This would completely vitiate the
protective consent requirements embodied in Rules 11(e) and 32(c)(1).

26

We hold that, under these facts, jeopardy attached when defendant's plea of
guilty was accepted. The information charging defendant with simple
possession under 21 U.S.C. Sec. 844(a) is reinstated. The case is remanded for

sentencing; the district court is, of course, not bound by the government's
sentence recommendation.
27

SO ORDERED.

The case has been closed as to all of the other defendants

United States v. Cambindo Valencia, 609 F.2d 603, involved a simple claim
that a later conspiracy prosecution was barred by a guilty plea in another
conspiracy case years earlier. The question was whether the two conspiracies
were actually one, and the result would have been the same whether jeopardy
attached in the earlier case upon acceptance of the guilty plea or entry of
judgment
United States v. Bullock, 579 F.2d 1116, was a petty offense prosecution for
unlawful taking of migratory birds. At first, the government sent defendants a
notice of violation indicating that they could forfeit bond of $100 in lieu of
standing trial. A superseding information was filed a few days later, but only
after the defendants had sent in checks for the $100. Noting that the checks
were returned uncashed, and that the process of "arraignment and pleading" "
[t]raditionally ... has not been viewed as amounting to jeopardy," the court
rejected their claim of double jeopardy. Whatever the court's reasoning, it
seems plain that no plea was ever accepted: even if mailing a check is
tantamount to tendering a plea, the checks were returned uncashed--i.e., there
was no acceptance. Thus, the court's observation that jeopardy attaches upon
acceptance of a guilty plea were not strictly necessary to the decision.
In Stowers v. States, 266 Ind. 403, 363 N.E.2d 978, as in United States v.
Sanchez, 609 F.2d 761, the court deferred decision on proffered plea bargains
pending consideration of presentence reports.
In United States v. Jerry, 487 F.2d 600, the defendant moved prior to
sentencing to withdraw his guilty plea. The court first granted the motion, then
rescinded its grant as "improvidently issued" upon motion by the government.
Upon renewal by the defendant, the court again denied the motion to withdraw
the plea, and imposed sentence. Although the court held that jeopardy attached
on acceptance of the plea, it noted that double jeopardy "policy" was "not
offended" because "no final judgment was entered " and because the defendant
was "not subjected to the harassment of successive prosecutions." 487 F.2d at
606 (emphasis added). Moreover, whether or not jeopardy attached upon
acceptance of the guilty plea, the crux of the court's holding was that the

defendant had waived double jeopardy objections in the first place by moving
to withdraw his plea.
United States v. Rocco, 397 F.Supp. 655, was a case involving a multicount
indictment charging included offenses in separate counts, in which the
government sought to proceed to trial on the higher count after the defendant
had pled guilty to the lesser count, the court having immediately accepted the
plea. The case is thus distinguishable on its facts; and if not distinguishable, it
may simply have been wrongly decided. See United States v. Combs, 634 F.2d
1295 (10th Cir.1980), holding contra in a comparable situation.
Finally, the court in United States v. Williams, 534 F.2d 119, merely "assumed"
that jeopardy attaches upon acceptance of a guilty plea, but did not actually
decide the question. Moreover, the case involved retrial on original charges
after the defendant had his guilty plea to a lesser included offense vacated in
postconviction proceedings on procedural grounds. When jeopardy would
normally attach was irrelevant, since the whole process could be viewed as a
single prosecution under the continuing jeopardy doctrine, and in any event
defendant's challenge to the plea waived any double jeopardy objections that
might otherwise have arisen.