USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________
No. 93-2132
UNITED STATES OF AMERICA,
Appellee,
v.
BRUCE RAINERI,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Shane Devine, Senior U.S. District Judge]
__________________________
____________________
Before
Selya and Boudin, Circuit Judges,
______________
and Carter,* District Judge.
______________
____________________

Dorothy F. Silver, by Appointment of the Court, for appellant.

_________________
Jean B. Weld, Assistant United States Attorney, with whom Paul

____________
____
Gagnon, United States Attorney, was on brief for the United States.
______
____________________
December 9, 1994
____________________

____________________
*Of the District of Maine, sitting by designation.

BOUDIN, Circuit Judge.

_____________

On April

6, 1992, Bruce Raineri

("Raineri") was indicted together with five other defendants:

Gary Neal,

William Kenney, Charles

and Brian Raineri.

Ferguson

The lengthy indictment charged various of

the defendants with a

planning

Flynn, Richard

series of offenses arising out

of the

and execution of a string of armed robberies in New

Hampshire during 1991.

The three charges against Raineri all

related

to

his

alleged

robbery

of

the

home

participation in
of

grocery

chain

single

armed

owner

named

Fitzpatrick during the summer of 1991, apparently in the hope

of obtaining the store proceeds.
In

the

conspiracy

indictment,
to

obstruct

count

14

interstate

charged

Raineri

commerce

by

involving actual or threatened force and violence.

1951.

Count 24

charged Raineri

with using

Count

28 charged

firearms (specifically,

a rifle

Raineri
and

robbery
18 U.S.C.

or carrying

firearms during and in relation to the conspiracy.

924(c)(1).

with

with

18 U.S.C.
possessing

shotgun) after

having

previously been convicted for a crime punishable by more than

one year's imprisonment.
On

June 17,

1992,

charges based on a

18 U.S.C.
Raineri pled

922(g), 924(e)(1).
guilty

to all

plea agreement with the government.

three
The

inducement offered in the plea agreement was the government's

commitment

to move for a departure under U.S.S.G.

(in the government's

judgment) Raineri provided

5K1.1 if
substantial

-2-2-

assistance.

In the plea hearing pursuant to Fed. R. Crim. P.

11,

Raineri told the court

was based

on no

that his plea

inducement other

was voluntary and

than the

plea agreement.

The prosecutor provided a proffer of evidence for each of the

counts

and

Raineri

stated

on

the

record,

without

qualification, that the description was correct.

As to penalties, the court asked Raineri if he was aware
of the maximum penalties provided for the three offenses, and
Raineri replied:

"Ten years, 20 years, and five years."

The

court then said:

Count fourteen is 20 years and a fine of $10,000 or
both.
Count
Twenty-four
is
five
years
imprisonment, which must be consecutive to the
crime of violence. Count Twenty-eight is ten years
and a fine of $10,000 or both. Do you understand
that?
Raineri

replied:

"Yes,

I do."

There was

supervised release or restitution.

nor

the

prosecutor

expressed

any

no reference to

Neither defense
disagreement

counsel
with

the

district court's description of penalties.

On October
withdraw his
several

other

2, 1992, Raineri's counsel

guilty plea, to

continue his trial

defendants who

had

not

scheduled for October 5), and to permit

As reasons for the

filed motions to
(trial for

pleaded guilty

counsel to withdraw.

requested withdrawal of the guilty

Raineri's motion said

in conclusory

was

terms that

he was

plea,
not

guilty, that he had not understood the charges against him or

his exposure under the Sentencing Guidelines, and that he was
-3-3-

suffering at

the time of

his plea from lack

of medicine to

counteract his drug dependency.

On October 5, 1992,
motion

the district court denied Raineri's

to withdraw his guilty plea but appointed for him new

counsel, who also now represents Raineri on this appeal.

The

district court then proceeded to try three co-defendants, the

other two having

pleaded guilty.

The co-defendants who were

tried--Neal, Kenney and Flynn--were subsequently convicted on

a number of charges, and this court largely affirmed.
States
______

v.

included

Neal,
____
charges

robbery of

36

F.3d

relating

the Fitzpatrick

1190 (1994).

The

to

3,

the August

home in

United
______

convictions
1991,

which Raineri

armed

had been

implicated.
In March
seeking

1993, Raineri's new counsel

withdrawal of

offered were that

plead guilty
methadone;

the

guilty plea.

filed new motions

The reasons

now

Raineri had not been mentally competent to

because
that the

he was

then

government

suffering from

had failed

lack

of

to disclose

at

sentencing
would

its additional

be given immediate

guilty; and

that he had

prior counsel.

(alleged)

promise

access to methadone
not been adequately

that

Raineri

if he pleaded
represented by

Faced with these claims, the court

scheduled

an evidentiary hearing for April 15, 1993.

At the April 15 hearing, Raineri testified; he described
his alleged defenses (e.g., that he had not been at the scene
____

-4-4-

of the break-in and had never possessed the rifle and shotgun
attributed to

him)

burglary of an
individuals.
methadone
sentence

seeking
reaching

also said

that he

under count

explained

that

had
24

that he
not

withdraw his
his

plea

then-counsel.

crime

known that

because

the

Finally,

from June to

to get

five-year
Raineri

October 1992 in

of difficulties

Raineri's

was

armed robbery of

pleaded guilty

was mandatory.

that he had delayed

to

the intended

unoccupied home rather than

He

and

and said

former

in

counsel

testified at length about his representation, admitting

he

that

had not returned some phone calls from Raineri during the

summer of 1992.
On April

20, 1993,

Raineri's counsel filed

memorandum of

law urging

guilty plea.

Counsel explained

report

another basis for

an amended

withdrawing the

that Raineri's

presentence

had been received in March 1993, and it disclosed for

the first

time that

Raineri had three

for violent felonies or

previous convictions

serious drug offenses.

Raineri

had

been advised at the plea hearing that the penalty under count
28 was a maximum
both;

of 10 years' imprisonment, $10,000

fine or

but his triple felony record meant that he was subject

to a minimum of
was $25,000.

15 years' imprisonment and the

18 U.S.C.

922(g), 924(e)(1).

maximum fine
The government

responded that in order to "remedy any possible

defects," it

-5-5-

was moving to dismiss

count 28 of the indictment

under Fed.

R. Crim. P. 48(a).
On April 25,
granting the
48(a).

1993, the district court

motion to

dismiss

entered an order

count 28

pursuant to

Rule

The court rejected as untrue Raineri's claim that the

government had

induced his plea

immediately in a

by promising

to place

methadone treatment program.

him

It found that

his original counsel had not provided ineffective assistance.

Finally,

the court found

withdrawal of the guilty

a lack of

good cause

to permit a

pleas pursuant to Fed. R.

Crim. P.

32(d):
Here, the timing (3-3/2 months after entry of
plea); (lack of) force and plausibility of reasons;
(unpersuasive) assertion of innocence; the finding
of no breach of the plea agreement; and the finding
that the defendant's plea on June 17, 1992, can
still be regarded as voluntary, intelligent, and
otherwise in conformity with Rule 11, Fed. R. Crim.
P.; requires the further finding that "no fair and
just
reason" exists such
as to
permit the
withdrawal of the defendant's pleas. United States
_____________
v. Tilley, 964 F.2d 66, 72 (1st Cir. 1992).
_________
On
hearing.
He

September

27, 1993,

the

At Raineri's behest, his

implicated Bruce

in the

court

held a

sentencing

brother Brian testified.

conspiracy to

rob Fitzgerald's

home, but said

Bruce had not been present at

the house.

also said that

no one had expected the house

to be occupied

or a
and

He

gun to be used, although in fact the house was occupied

co-conspirator

handgun.

Kenney

Finally, Brian

turned

out

to

be

carrying

testified that the cooperation that

-6-

-6-

he

provided in testifying at

co-defendants
Bruce.
in

the October 1992

was also supposed

to inure to

trial of the
the benefit of

The government presented testimony that any departure

favor of

Bruce

cooperation,

not

Raineri
that

Raineri's attempted

of

was

to be

his

brother,

withdrawal of

based

on

and

his

that

his guilty plea

own
Bruce

made him

useless to the government as a trial witness against the nonpleading

defendants.

hearsay

but

still

Other
properly

indicated that Bruce Raineri

the

stolen property

that he

government
considered

at

sentencing,

had transported his brother and

after the

and his brother

evidence, largely

break-in was

moved a rifle and

completed, and
shotgun from the

van to another car.

Raineri himself testified at the sentencing hearing.
admitted helping
brother to
shotgun
weapon.

to plan

a rendezvous

had

been carried

the break-in and

point.

He

or that

He said that at the time

accompanying his

denied that a
he

He

had known

rifle or
about any

of his guilty plea he had

been "in a severe state of withdrawal from methadone" and had

expected
guilty

the methadone
plea."

for carrying

treatment

He also

to

said that he

recommence "upon

the

knew that the sentence

a firearm under count 24

would be consecutive,

but not that it was mandatory.

At

the end of the sentencing

hearing, the court found,

based on the testimony at the co-defendants' trial, that guns

-7-7-

had been

carried in the

van by the

Raineri brothers.

The

court also found that Raineri had obstructed justice by lying

to

the court

and

was

not

entitled

acceptance of responsibility.
60 months' imprisonment on
on

count 24

to

be served

to

reduction

for

Raineri was then sentenced to

count 14, 60 months' imprisonment

consecutively,

and five

years'

supervised release, and he was ordered to make restitution in

the amount of $5,988.

This appeal followed.

I.

Raineri's

first and

most powerful

claim on

appeal is

that his original

guilty plea was not "knowing

or voluntary

and otherwise in conformity with Rule 11(c)(1) because he was

not properly informed of the consequences of his plea."
11 prescribes numerous
defendant

steps that must be

is allowed to plead guilty.

issue with which we

Rule

followed before a

As to penalties--the

are immediately concerned--the rule says

that before accepting the guilty plea, the court must address
the

defendant

personally

in

open

court

and

inform

the

defendant of, and determine if the defendant understands,

the mandatory minimum penalty provided by
law, if any, and the maximum possible
penalty provided by law including the
effect
of
any
special
parole
or
supervised release term, . . . and when
applicable, that the court may also order
the defendant to make restitution to any
victim of the offense.
Fed. R. Crim. P. 11(c)(1).

-8-8-

One

might expect

that whatever

the complexity

of the

Sentencing Guidelines, it would

the defendant of the
shows,

the

be easy accurately to advise

statutory penalties.
penalties

sometimes

with

multiple

counts; and the penalties may depend on information

(such as

the defendant

themselves

this case

are

complicated;

statutory

But as

may

be

charged

prior convictions) that is not automatically available to the

district

judge

at

the

time

of

the plea.

Accordingly,

district judges often rely heavily, although not exclusively,

on

the prosecutor to provide the court with a description of

statutory penalties or

at least

to advise the

court if

it

statement

of

misstates the terms.

Here,

the

prosecutor

did

provide

statutory penalties in the plea agreement, the district court

followed this script, and

the result was a set

of mistakes.

Most important, Raineri was incorrectly told that the penalty

for

count

maximum

28,

of

10

the

possession of

years'

imprisonment

firearms

charge,

was a

and

$10,000

fine.

Because Raineri apparently had three prior felonies involving

violence

or

serious drug

mandatory minimum
fine

offenses,

he

was

of 15 years' imprisonment

was increased to $25,000.

subject to

and the maximum

It appears that the district

court, the prosecutor and Raineri's then defense counsel were

all

unaware

that

Raineri

was

penalty.

-9-9-

subject

to

this

enhanced

Whether Raineri was adequately counselled on the penalty

for count
the

24 is debatable.

penalty

was "five

The district court told him that

years

consecutive to the crime

imprisonment,

which must

of violence", so there is

be

no doubt

that

Raineri knew that he was subject to a consecutive five-

year

sentence.

Raineri denies that

five-year term was mandatory,

the term "must" as
district

he understood that this

while the government points to

implying that the term is mandatory.

court made

no

findings on

because

Raineri's

counsel

alleged

misunderstanding as

did

not

a basis

The

the point,

apparently

separately

urge

for setting

this

aside the

plea.
Finally, the court did not expressly advise Raineri that
supervised release
pay restitution.
of

might be imposed

or of his

liability to

Both warnings are required by

the language

Rule 11(c)(1) quoted above.

admitted omissions or mistakes in

given

by

the

rules

imprisonment levels
supervised

release

(the

the advice required to

misstatement

under count
terms;

The result is three separate

and

of

the

28; the failure

the

failure

fine

be
and

to mention
to

mention

restitution).

A possible fourth mistake

to explain the mandatory

under

count 24),

may exist (failure

character of the five-year sentence

depending on

how the

court's warning

is

read.

-10-10-

The

legal

difficult to
pleads

effect

state concisely.

Rule

11

violation

Ordinarily, a

is

more

defendant who

guilty has no automatic right to withdraw a plea even

before sentencing.
F.2d

of

See, e.g., United States v. Buckley,

___ ____ _____________
_______

991, 998 (1st Cir.

(1989).

Rule

32(d)

1988), cert. denied,

____________

provides that

"the

847

488 U.S. 1015

court may

permit

withdrawal of the plea upon a showing by the defendant of any

fair and just reason," and we have said that decisions by the
district
abuse

court under

of discretion.

this
See
___

standard are

reviewed only

United States v.
_____________

for

Doyle, 981 F.2d

_____

591,

594 (1st

Cir. 1992).

Recently,

in United States v.
______________

Parrilla-Torado, 22 F.3d 368, 371 (1st Cir. 1994), this court

_______________
said that the exercise of discretion under Rule 32(d) depends
on "the overall situation, most prominently"
(1) the plausibility of
the reasons
prompting the requested change of plea;
(2) the timing of the defendant's motion;
(3) the existence or nonexistence of an
assertion of innocence; and (4) whether,
when
viewed
in
light of
emergent
circumstances,
the
defendant's
plea
appropriately may be characterized as
involuntary,
in
derogation
of
the
requirements imposed by Fed. R. Crim. P.
11, or otherwise legally suspect.
Id. at 371
___
Yet
there

(omitting footnote and citations).

"discretion"

may be

somewhat

more

limited where

is an outright violation of Rule 11 rather than merely

second thoughts
his plea.

by a

Originally,

defendant prompting him

a line

-11-11-

to reconsider

of decisions emanating

from

McCarthy
________
that

v. United States, 394

______________

the district

court had

U.S. 459

to allow

(1969), suggested

the withdrawal

of a

guilty plea where the earlier plea hearing did not conform to
Rule 11.
add

In response, Rule 11 was itself amended

Rule

11(h),

provides:

which

is entitled

"Harmless

in 1983 to
Error"

and

"Any variance from the procedures required by this

rule whichdoesnotaffect substantialrightsshallbedisregarded."

In this case,
have

understood

potential
$20,000.

Raineri was
from

what

imprisonment

told, or at

he

of 35

was

least ought

told,

years and

that

he

a maximum

to

faced
fine of

His actual exposure was worse than what he was told

(a minimum

of 20

years and

a maximum of

45), but

what he

received was less--indeed far less--than the maximum of which

he had been inaccurately warned.

He received only ten years'

imprisonment, five years' supervised

about

$5,000 in restitution.

release and no fine but

The question is what should be

done where the defendant is not advised of the full penalties

to which he

may be subject but actually

gets the benefit of

the lesser penalty.

Harmless

error

analysis

usually

poses

the

question

whether the error influenced the decisionmaker or whether the

ultimate

outcome would have been

not been

committed, but this

perspective

in a

case such

Raineri might not have

the same if

the error had

is not necessarily
as our

own.

pled guilty if he had

It is

the proper
true that

been correctly

-12-12-

told that a far larger penalty threatened him.

ask why the defendant

But one might

is entitled to complain if

the actual

punishment is no worse than what he was told, and what he was

told was even
defendant

less than the

ought to

extraneous

law allows.

be pleased

Arguably, such

with the

reasons, he has in the

error--unless, for

meantime changed his mind

about making the plea.

Rule

11(h) did not adopt

a "but for"

test of harmless

error; it speaks of

error affecting the "substantial rights"

of the defendant, a

general phrase that allows a

interpretation.

The Advisory Committee notes

measure of

to Rule 11(h)

provide, as an illustration of harmless error, an instance in

which "the
but

the

judge understated
penalty

indicated

in the

supports the view

complain if

he

actually

the maximum
imposed

warnings."
that a

did

There is

penalty somewhat,
not

some case

defendant should not

ultimately gets

sentence that was inaccurately

exceed

the benefit

that

law that

be heard
of the

described to him at the

to

lesser
time

of the plea,

see, e.g.,
_________

1174, 1179-80

(6th Cir.

934 F.2d 1349, 1359-60

402

(1991), but

United States v.
_____________

Bashara, 27
_______

1994); United States

_____________

v. Bachynsky,
_________

(5th Cir.), cert. denied, 112

____________

the law

is admittedly

circuits or perfectly settled.

F.3d

not uniform

S. Ct.
in all

See United States v. Whyte, 3

___ _____________
_____

F.3d 129, 130 (5th Cir. 1993).

-13-13-

We think that a

defendant who gets the benefit

an inaccurately

described

prejudiced, but

that there can

such misadvice

may not
who

lesser sentence

always

is normally

be no absolute
be harmless.

is wrongly

told

of such
not

rule because
For

imagine

a defendant

hearing

that the maximum penalty for his crime is five years

when in fact the maximum penalty is 15 years.

at the

example,

The

Rule

11

defendant

might fairly expect, given his

role in the offense,

own past history and

limited

that the maximum sentence (whatever

might be) would not be likely to be imposed.

it

If he then pled

guilty and thereafter received a five-year sentence, he might

reasonably think that the

misinformation had prejudiced

him

in a rather concrete way.

Cf. United States v. Whyte, 3 F.3d

___ _____________
_____

at 130.
In

our

case,

misinformation given to
him

to expect a

there

is

no

indication

Raineri at the

lesser penalty

that

the

Rule 11 hearing

led

than he

actually received.

Raineri had an extensive criminal record and therefore little

basis to

expect lenient treatment, apart

_____

motion the
assistance.
Raineri

government might make if

from any departure

he provided substantial

Absent a departure motion, we see no reason why

should

have expected

that

his

sentence would

be

substantially less than 15 years (here, 10 in prison and 5 on

supervised release), a figure

that is less than half

maximum amount of which he had been warned.

-14-14-

of the

The

same

failure to
release

reasoning

applies

inform Raineri

held

that

defendant receives
supervised

of the possibility

such

errors

a combined

release that

is

Gracia, 983
______

are

of supervised

the

sentence of imprisonment

and

the maximum

See, e.g.,
_________

the potential fine

The same rule is

to pay restitution
of which he

United States v. Padin Torres,

_____________
____________

280, 283-84 (1st Cir. 1993).

term of

See, e.g., United States v.

_________ _____________

the defendant is required

amount less than

Courts have

harmless

F.2d 625, 628 (5th Cir. 1993).

followed where

judge's

when

less than

imprisonment earlier described.

warned.

district

and of restitution, rather than a fine.

commonly

in an

to the

was

988 F.2d

-15-15-

II.
Raineri's
court "abused
under

second claim

of error

is that

its discretion and acted

Rule 48(a)"

in

granting the

the district

beyond its authority

government's motion

dismiss count 28 after Raineri had pled guilty.

defendant is
48(a).

not entitled to

undercut

Ordinarily a

appeal a dismissal

However, Raineri argues that

to

under Rule

the wrongful dismissal

the plea agreement and that he was entitled on that

ground

to withdraw

refusal

to allow

reviewable

at

his guilty
him to

this

time

plea.

The

withdraw his

district court's

plea is,

together with

any

of course,

legal

issues

bearing on that refusal.

If count 28 had been dismissed with prejudice, we
summarily reject

Raineri's argument

as a

would

rather mechanical

claim that he did not get what he bargained for.

It is quite

true
count

that Raineri's

a plea

of

guilty to

28, but a dismissal of that count with prejudice would

be an even

better outcome for Raineri as far

concerned.
preserve
count

bargain included

To

the extent

his guilty plea

that

dismissal helped

on other counts,

28 might disadvantage him,

the dismissal

the

but it is

would thereby be wrongful

as count 28 is
to

the dismissal of
hard to see why

or the disadvantage

one with which a court should be concerned.

The

difficulty in this case is

not ask for a

that the government did

dismissal with prejudice nor did

the district

-16-16-

court say that the dismissal was with prejudice.

Rule 48(a)

dismissals are

government

to reindict

Cir. 1991).
this

Surprisingly,

defect, possibly

without prejudice and

within

See, e.g., United States v.

__________ _____________

for

Customarily

the statute

Matta, 937 F.2d

_____

permit the

of limitations.
567, 568 (11th

Raineri's counsel does

fear of

conceding that

not urge
Raineri

could

be reprosecuted on

issue is so patent,

count 28.

But we think

and the threat of unfairness

is so severe,

that the

issue, even if

it were

matter would raise

that the
to Raineri

a "plain

not intimately related

error"

to the

Rule

48(a) issue raised by Raineri.

A defendant
not

who pleads to

believe that

the

guilty

penalty; but one thing

a set of charges
plea

will produce

the defendant who agrees to

all counts does expect is that there will be no

on any of

may or may

these counts.

lesser
plead on

future trial

A defendant willing to plead guilty

to all counts might well be unwilling to plead guilty to some

of them
future

while leaving others available to the government for

prosecution.

government had
counts 14

offered

and 24

prosecute on

We have no reason
to accept

and said

count 28 at

that

to think that if the

plea from

it reserved

a later

Raineri

on

the right

to

date, that he

would have

pleaded guilty to any of the counts.

"[A]

court of

appellate

jurisdiction may

. .

direct the entry of such appropriate judgment . . . as may be

-17-17-

just under
possible

the circumstances."
that

this

court

28 U.S.C.

could

2106.

itself

order

It

is

that

the

dismissal

be modified to reflect that it is a dismissal with

prejudice.

See, e.g., United States v. Rossoff, 806 F. Supp.

_________ _____________
_______

200,

202-03

dismiss

(C.D. Ill.

1992)

(holding

that a

under Rule 48(a) with prejudice

fundamentally

unfair).

The

may

if retrial would be

government

equity in opposing such a directive.

court

would have

little

Alternatively, we might

rule now, as part of our holding, that any future prosecution

of Raineri on count 28 would
be

barred--a

Raineri

constitute harassment and would

determination that

substantial

would

protection.

be

See
___

likely to

give

United States
______________

v.

Salinas, 693 F.2d 348 (5th Cir. 1982).

_______
Nevertheless,

the

choice

to

forego

permanently

prosecution is ordinarily made by the executive branch.

e.g.,
____

Wayte
_____

v. United States,
______________

470 U.S.

Thus, while a dismissal of count 28

pro quo for

598,

See,
____

607 (1985).

with prejudice is a quid

retaining the guilty pleas on

counts 14 and 24,

we think that there

is no reason to compel the government to

accept

with prejudice

a dismissal

surrender the guilty

he

is demanding.

if

it wants

pleas and give the

Accordingly,

on

instead to

defendant the trial

this single

issue

we

propose

to

remand to

require

the

government to

make

an

appropriate election.

-18-18-

III.
Raineri's remaining
discussion.

One

of

assertions
them concerns

decision to reject Raineri's

provided

ineffective

Court's decision

reviewed a

competence

only

for

DiCarlo, 575 F.2d 952,

_______
U.S. 834 (1978).
may

be more

the

require

district

less

court's

claim that his original counsel

assistance.

in Strickland
__________

(1984), we

of error

Prior

to

the

v. Washington, 466
__________

Supreme
U.S. 668

district judge's determination

clear

error.

See
___

as to

United States v.
______________

954-55 (1st Cir.), cert. denied,

____________

Since Strickland,
__________

rigorous where

the standard of

the issue

is not

439

review

a matter

of

historical
enough.

fact

but

of

deciding how

See United States v.

___ _____________

(1st Cir. 1993).

much

competence

McGill, 11 F.3d
______

is

223, 226 n.2

Raineri's claim fails under any standard we

might apply.
In

this

instance,

Raineri's

separate claims of incompetence.

new

counsel offers

two

The first is that Raineri's

counsel failed to advise Raineri properly as to the penalties

to which he was
the failure
count 28.
even

to identify

not

failure

the 15 year

of

could show incompetence

show prejudice,
counsel

penalty on count

to

which

is

advise Raineri

28 was not

specifically to

minimum applicable

Hill v. Lockhart, 474 U.S. 52,

____
________

if Raineri

could

subject, and Raineri points

57 (1985).
on this

Here,

point, he

also required.
accurately

prejudicial to Raineri

to

The
of

the

because

-19-19-

count

28

was

dismissed and

that

dismissal

will be

prejudice if the guilty pleas are allowed to stand.

with

Raineri's
alleged

brief

offers,

incompetence,

the

as

the

asserted

second

instance

failure

of

of

original

defense counsel "to conduct a reasonable investigation into a

potential line of defense . . . ."
is

identified, although

mind the

possibility

present

No such "line of defense"

Raineri's new

that the

counsel may

rifle and

have in

shotgun were

not

in the van and that Kenney's possession of a handgun

was unknown to and unforeseeable by Raineri.

Raineri's brief

simply

of

asserts,

as

the

representation, that

sole

the time

evidence

inadequate

sheets of Raineri's

original

defense counsel show "that the attorney spent only 1.8

.

hours

. . reviewing applicable law" and this research took place

prior to counsel's first meeting with the defendant.

Counsel's time records might provide a basis for further
inquiry but the records do not, standing
that

counsel

was

incompetent

prejudiced defendant.
they

first met that

further

attention

he was guilty as

substantial
assistance.

securing
downward
On this

the

incompetence

his lawyer when

charged on all counts

detail so that counsel

investigation
to

that

Perhaps Raineri told

and provided sufficient

in

or

alone, prove either

of

the

merits

plea agreement

departure

if

record

we know

-20-20-

saw no point

and

turned

providing

Raineri
only

provided

his

for

full

that Raineri's

counsel originally negotiated

plea

bargain,

and

Raineri

what appeared to be
squandered

favorable

the opportunity

by

refusing at the last moment to provide full cooperation.

This brings us
error.

a downward departure
substantial

government's

plea

commonly does)
one

and final claim

of

Raineri now argues that the government was obliged to

move for
provide

to Raineri's fourth

to be

assistance
agreement

to

the

expressly

did in

made solely

said

by the prosecutor.

the government's

departure may

Wade v. United States,

____
_____________

be the

fact

government.
here

that the substantial-assistance

limited situations,
downward

because Raineri

(as

it

decision was

But

in certain

failure to move

subject of

The

for a

judicial review.

112 S. Ct. 1840, 1844

(1992); United
______

States v. Canada, 960 F.2d 263, 269 (1st Cir. 1992).

______
______
We will assume arguendo that, as he now
________

claims, Raineri

gave the government a considerable amount of information that

may have been
definition

of

"substantial."

useful to
the

term,

it.

Possibly,

the assistance

under a
could

dictionary
be

called

But Raineri was not automatically entitled to

a dictionary definition where, in the very same document, the

government reserved
assistance
make such
made)

to itself

was substantial.
a motion (and

the authority to
The

v. Torres,
______

33 F.3d 130,

government may

the district court

based on quite limited help

133 (1st

decide what
decide to

to grant

it if

or results, United States

_____________
Cir. 1994); but

since by

-21-21-

statute the motion is

18 U.S.C.

3553(e),

discretionary with the government, see

the government may choose to

insist on

quite a lot of assistance if it wants to do so.

Whatever the limitations
to refuse
that

to make

the government

available
government

to

on the government's

a departure motion,
was

testify at

entitled to
his

wanted to use him.

it is obvious

to us

expect Raineri

to be

co-defendants'
It

authority

trial if

the

is equally clear that his

last-minute attempt to deny his guilt after earlier admitting

it undermined his value as a witness.

of

This was

not the kind

"substantial" assistance that the government was entitled

to demand.
Cir.

Sullivan v. United States, 11 F.3d

________
_____________

1993)

(holding

unconstitutional motive,

that,

absent

573, 575 (6th

bad

faith

a prosecutor may decline

or

to seek a

substantial-assistance reduction for any rational reason).

Finally, we have considered whether guilty
be set

aside--even though

none of the

pleas should

individual arguments

made by Raineri is persuasive--under some type of per se rule

or

because of a threatened

former

point,

we

miscarriage of justice.

think that

there

may

well

On the

be Rule

11

hearings so fundamentally defective that harm must be assumed

or deemed irrelevant.
30

F.3d 1, 2-4 (1st

Cf. United States v. Medina Silverio,

___ _____________
________________
Cir. 1994) (almost

Rule 11

colloquy).

But just

but few

perfect ones, so

complete absence of

as there are

flaws are

-22-22-

many fair trials

also to be

expected in

Rule

11

proceedings

as

they,

and

the

penalties

to

described,

grow

ever more

complicated.

Where the

structure

of the

Rule 11

proceeding is

observed, and

individual

errors are

Rule 11(h)'s

shown to be

harmless, we

explicit forgiveness

be

basic
the

think that

of harmless error

should

normally be respected.
The

outcome

persuaded
Despite

that
the

would
a

be

quite

miscarriage

emphasis

placed

otherwise

of

justice

by

Rule

if

we

had

11

on

were

resulted.
advising

defendant of foregone trial rights and prospective penalties,

most

laypersons would probably

think that a

plea

ought

beyond

to

voluntariness of

be

concerned

all

else

the plea and the existence

basis for

thinking that

We

view

would

court taking a

with

concern

the

of a reasonable

the defendant was

special

with

actually guilty.

any

defect

in

the

proceedings that led us to believe that a plea was coerced or

that there was no factual basis for the plea.
Here,
doubt.

voluntariness in
Raineri

claimed

the
that

methadone withdrawal and a

ordinary sense
the

plea

plea.

court

and

controlling
at 70-71.
that

the

not

accept

the

claim,

in the absence of clear error.

Indeed, there
claim

is

in

induced

by

false promise of immediate relief

by methadone treatment following the

did

was

is not

is substantial

false--for

example,

But the district

its

findings

are

Tilley, 964 F.2d

______
reason to
Raineri

believe
did

not

-23-23-

complain of the
probation

lack of

methadone when

officer after

the

interviewed by

guilty plea--but

the

in any

case

Raineri does not now question the district court's resolution

of the issue.
It

is also

Raineri's guilty
count

and agreed

clear that

there was

pleas.

himself admitted guilt

on each

government's description

of the

He

with the

a factual

basis for

evidence against him, which included the presence

in

the van.

Even

in

conspiracy to engage in
guns

in the van.

his

retraction,

he

confessed

burglary but denied the

At the co-defendants'

of a rifle
to

presence of

trial an informant

testified that the Raineris had possessed guns in the van and
transferred

them from

one

vehicle to

claim of innocence is an element

it does not

come close to

another.

Raineri's

in the Rule 34 equation but

a showing that

a miscarriage

of

justice has occurred.

The case is remanded to
whether to

consent to a

permit the government to

modified order dismissing

elect

count 28

with prejudice.
pleas

and

sentences

undisturbed.
district

If the government
on

counts

If the government

court

is

consents, then the guilty

directed

14

and

24

will

does not consent,

to

vacate

the

remain
then the

judgment

of

conviction and the sentences on counts 14 and 24 and to allow

the

guilty pleas to be withdrawn.

The government would then

-24-24-

remain

free

to

reindict on

count

28

or

to request

district court to vacate its order dismissing count 28.

It is so ordered.
________________

the

-25-25-