On May 13, 2005, defendant Luis A. Hernández-Ramírez pledguilty before U.S. Magistrate-Judge Gustavo-Gelpí to Count Oneof the Information filed in this case, which is a spin-off of theIndictment originally filed on September 22, 2004 in U.S. v.Luis A. Hernández-Ramírez, et. al., Criminal No. 04-338(CCC).After reviewing the Report and Recommendation filed byMagistrate-Judge Gelpí on that same date (docket entry 7), whichreflected that defendant's plea was voluntarily and intelligentlyentered with awareness of his rights and the consequences ofpleading guilty, the Court accepted Hernández-Ramírez' plea ofguilty on May 20, 2005 and scheduled the case for sentencing onAugust 29, 2005 (docket entry 8).
Upon reviewing the record in Criminal No. 04-338 for anothermatter, the Court noticed that on May 4, 2005 co-defendant HerberE. Hérnandez-Ramírez, the brother of Luis A.Hernández-Ramírez, filed an Informative Motion stating that hehad been offered a Pre-trial Diversion Agreement by the U.S.Attorney's Office based on, among other conditions, "[t]hat hisbrother and co-defendant enter [a] plea of guilty in this case asnegotiated between he and the prosecution." Informative Motionfiled in Crim. No. 04-338, docket entry 67, at p. 1. The Courtnoted that motion on May 12, 2005. (Docket entry 69 in Crim. No.04-338).
In light of the representations made by defendant Herber E.Hernández-Ramírez in his Informative Motion filed in Crim. No.04-338, it appears that the government's offer to both brothersconsisted of a "package deal," i.e., conditioning the referralof Heber to the Pre-Trial Diversion Program (PTDP) on Luis' pleaof guilty to the information filed in this case. Havingrereviewed now the plea agreement of Luis Hernández-Ramírezfiled in this case (docket entry 3), we note that it fails to mention such a linkage between his pleaand his brother's referral to the PTDP. Not surprisingly, theReport and Recommendation does not state that theMagistrate-Judge actually probed into the effects that thislinkage may have had on defendant's voluntariness to change hisplea.
"[T]he disclosure of the existence of a package plea deal iscrucial at the Rule 11 hearing so that the district court mayprobe as deeply as needed into the possibility that one defendantis pleading guilty against his will in order to make it possiblefor his co-defendant to obtain the benefit of a favorable pleaand sentencing recommendation." United States v. Abbott,241 F.3d 29, 34 (1st Cir. 2001). The responsibility of alertingthe Court on the existence of a package deals lies on theprosecutor. Abbott, 241 F.3d at 35, United States v.Martínez-Molina, 64 F.3d 719, 733 (1st Cir. 1995). From therecord before us (which we note does not include the transcriptof the change of plea hearing conducted by Magistrate-JudgeGelpí), it does not appear that the prosecutor in this case soalerted the Magistrate-Judge.
Accordingly, in order to clarify the record, the Court VACATESthe May 20, 2005 Order (docket entry 8) which accepted the pleaof guilty of defendant Luis A. Hernández-Ramírez, and REMANDSthe matter to Magistrate-Judge Gelpí for a supplementalevidentiary hearing on voluntariness so that he may adequatelyascertain, and so establish for the record, whether defendantpled guilty of his own volition or because of undue pressure tosave his brother Herber from the criminal charges. If theMagistrate-Judge was in fact aware of this situation and exploredthis matter with defendant during the Rule 11 colloquy conductedon May 13, 2005, then no evidentiary hearing will be necessarybut the Report and Recommendation should be supplemented toreflect his findings on this specific matter.