United States Court of Appeals For the First Circuit
Nos. 15-1324 15-1325
UNITED STATES OF AMERICA,
ELVIN TORRES-ESTRADA, a/k/a Munecon, a/k/a Irvin, a/k/a Irving,
APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Lynch, Selya, and Lipez, Circuit Judges.
Ezekiel E. Cortez for appellant. Thomas F. Klumper, Assistant United States Attorney, Senior Appellate Counsel, with whom Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, and Rosa Emilia Rodríguez-Vélez, United States Attorney, were on brief, for appellee.
March 25, 2016
LYNCH, Circuit Judge. Elvin Torres-Estrada pleaded
guilty on March 21, 2011, to two conspiracies. One was a
conspiracy to possess with intent to distribute controlled
substances within 1,000 feet of public housing, between about 1995
and 2009. That conspiracy was charged on September 28, 2009, with
a second superseding indictment filed on April 15, 2010. The
second conspiracy was to import five kilograms or more of cocaine
and one kilogram or more of heroin from the Dominican Republic,
between about March 2005 and July 2009. That conspiracy was
charged later, on February 9, 2011.
There is no need for an extensive discussion of facts.
We give only a brief overview to explain the context for the issues
of law. At the time of the 2009 indictment and 2010 second
superseding indictment, Torres-Estrada was a fugitive. On June 7,
2010, Torres-Estrada was arrested and ordered temporarily
detained. Attorneys Raymond R. Granger and Edward V. Sapone filed
a motion to appear pro hac vice on behalf of Torres-Estrada1 and
represented him at a July 27, 2012, bail hearing along with local
counsel Zelma Dávila Carrasquillo. On July 29, 2010, a local
Puerto Rico attorney, Ramón García García ("García"), filed a
notice to appear as counsel on behalf of Torres-Estrada along with
1 According to Torres-Estrada, in late 2009 and early 2010, while he was a fugitive, he and an alleged co-conspirator met with Granger and Sapone.
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Dávila Carrasquillo, Granger, and Sapone. Torres-Estrada says
that his counsel did not actually coordinate their representation.
After Granger and Sapone received a plea offer on
September 20, 2010, from Assistant United States Attorney Timothy
Henwood, plea negotiations ensued with Granger, Sapone, and García
representing Torres-Estrada. According to Granger, García
interfered with negotiations by, inter alia, making a counteroffer
for a sentence lower than what Torres-Estrada had authorized, and
communicating with the government without consulting with Granger
or Sapone. On October 26, 2010, Granger, Sapone, and Dávila
Carrasquillo withdrew from representing Torres-Estrada. Granger
and Sapone's motion to withdraw stated that they were "lead
counsel" and that "Torres-Estrada has advised us that he no longer
wishes to utilize the services of our respective firms and has
requested that we move to withdraw as counsel of record."
Plea negotiations over the indictment as to the first
conspiracy failed, with negotiations being cut off by the
government when it realized Torres-Estrada was involved with the
second conspiracy to import drugs from the Dominican Republic.
That conspiracy had been charged on February 9, 2011, and it is
clear the government cut off negotiations sometime before then.
The March 2011 plea agreement, which led to this appeal, covered
both conspiracies. Torres-Estrada was sentenced to 288 months of
imprisonment for the conspiracy to possess with intent to
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distribute various controlled substances, concurrent with a
sentence of 120 months of imprisonment imposed for the importation
Torres-Estrada makes two arguments here on direct
appeal. The first is that he is entitled to the benefit of the
government's plea offer made in the first round of negotiations,
though he had not accepted that offer. In his brief, Torres-
Estrada argues that he is the victim of ineffective assistance
from García during plea negotiations and that Granger and Sapone
had a conflict of interest. Cf. Missouri v. Frye, 132 S. Ct. 1399 ,
1408 (2012); Lafler v. Cooper, 132 S. Ct. 1376 , 1384–85 (2012).
The latter part of this argument was modified at oral argument.
See infra note 2. The other argument is that the district court
judge was required to recuse himself.
A. Ineffective Assistance of Counsel
Torres-Estrada executed a waiver of appeal as part of
his March 21, 2011, plea agreement. The waiver states: "The
defendant hereby agrees that if this Honorable Court accepts this
agreement and sentences [him] according to its terms and
conditions, defendant waives and surrenders [his] right to appeal
the conviction and sentence in this case." We find that he has
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waived his appeal of the ineffective assistance of counsel ("IAC")
As an initial matter, Torres-Estrada failed to address
the waiver of appeal clause in his opening brief, which would
ordinarily be enough to enforce that waiver. See United States v.
Arroyo-Blas, 783 F.3d 361 , 367 (1st Cir. 2015). In his reply
brief, Torres-Estrada first implies that he was caught by surprise
in learning that the government would attempt to enforce the
waiver.3 That was because as of October 14, 2014, it was the
written policy of the Department of Justice ("DOJ") not to enforce
waivers of appeal involving IAC claims under certain conditions.
The memorandum to which Torres-Estrada refers states, in relevant
part, that "[f]or cases in which a defendant's ineffective
assistance claim would be barred by a previously executed waiver,
prosecutors should decline to enforce the waiver when defense
counsel rendered ineffective assistance resulting in prejudice or
2 At oral argument, Torres-Estrada's counsel conceded that he had no claim of an actual conflict of interest against Granger and Sapone. Further, Torres-Estrada develops no argument explaining how a potential conflict could have affected the 2010 plea negotiations, given that Torres-Estrada is seeking the plea offer that Granger and Sapone received and were negotiating prior to their withdrawal. We understand the remaining claim to be an IAC claim against García, but not a conflict of interest claim. 3 This reminds us of the film Casablanca, where Captain Renault purports to be "shocked, shocked to find that gambling is going on" in Rick's casino.
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when the defendant's ineffective assistance claim raises a serious
debatable issue that a court should resolve."
The government, in turn, correctly reminds us that such
a policy, promulgated after the plea agreement in this case,
creates no rights in defendants and that courts typically play no
role in the prosecutorial choices made by the DOJ. See, e.g.,
United States v. Craveiro, 907 F.2d 260 , 263–64 (1st Cir. 1990).
Torres-Estrada next points to the district court's
statement at sentencing that he could appeal the IAC issue.
Torres-Estrada does not argue that he was not fully advised of the
waiver of appeal clause when entering his plea. The district court
"judge's statement at sentencing," made nearly four years after
Torres-Estrada's guilty plea, "does not serve to invalidate
[Torres-Estrada]'s earlier waiver." Sotirion v. United States,
617 F.3d 27 , 35 (1st Cir. 2010). Interpretation of the waiver of
appeal clause is for the court of appeals, and the district court's
comments, at least under these circumstances, do not excuse Torres-
Estrada from compliance with the agreement he signed. See United
States v. Gil-Quezada, 445 F.3d 33 , 36–37 (1st Cir. 2006); United
States v. Teeter, 257 F.3d 14 , 25 (1st Cir. 2001).
Torres-Estrada attempts to use Sotirion to argue that
the government waived any argument that the waiver of appeal clause
can be enforced, based on the government's failure to respond to
the district court's statement at sentencing. We reject the
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argument. In Sotirion, the court's discussion of government waiver
related to the government's failure to raise a procedural default
defense to a 28 U.S.C. § 2255 petition in the district court. 617
F.3d at 32. Sotirion held that the government waived the
procedural default argument and then reached the merits of the
waiver of appeal argument. Id. at 32–33. As Torres-Estrada's
attempted direct appeal here does not come to us on review of a
§ 2255 petition and the question of government waiver in Sotirion
is distinct from what is before us, we decline to extend Sotirion's
And so, Torres-Estrada is left with an argument that his
assertions meet the "miscarriage of justice" exception to
enforcement of waivers of appeal, as discussed in Teeter. 257
F.3d at 25–26 & n.9. However, Torres-Estrada explicitly says that
he "is not challenging his sentence or his guilty plea or the Rule
11 [of the Federal Rules of Criminal Procedure] inquiry at all,"
and that he "is not seeking to vacate his guilty plea." Further,
other than pointing to the DOJ policy and the district court's
statements at sentencing -- arguments that we have just rejected
-- Torres-Estrada develops no argument explaining how a
"miscarriage of justice" would result from enforcing the waiver of
In any event, we cannot conclude that there would be a
"miscarriage of justice" from enforcing the waiver of appeal clause
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because even if we did not enforce the waiver of appeal clause, we
would decline to hear Torres-Estrada's claims on direct appeal.
The record underlying Torres-Estrada's arguments "is . . . not
sufficiently developed to allow reasoned consideration of an
ineffective assistance claim," and this is not the "rare case"
where we will "review an ineffective assistance claim on direct
appeal." United States v. LaPlante, 714 F.3d 641 , 648 (1st Cir.
2013); see United States v. Santiago-Rivera, 805 F.3d 396 , 398
(1st Cir. 2015) (explaining that "our general rule" is that IAC
"claims must originally be presented to the district court as a
collateral attack under 28 U.S.C. § 2255" (quoting United States
v. Colón–Torres, 382 F.3d 76 , 84 (1st Cir. 2004))); United States
v. Mala, 7 F.3d 1058 , 1063 (1st Cir. 1993) ("We have held with a
regularity bordering on the monotonous that fact-specific claims
of ineffective assistance cannot make their debut on direct review
of criminal convictions, but, rather, must originally be presented
to, and acted upon by, the trial court.").
Finally, we reject the argument that the district court
judge erred when he denied Torres-Estrada's motion to recuse.
Torres-Estrada argues that at least one communication4 between the
4 Torres-Estrada refers to "conversations," while the government contends that there appeared to be only one "conversation."
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district court and the attorney for a government witness "created
an appearance of impropriety." He points to emails between a
government witness and the witness's attorney that suggest that
the attorney had at least one communication with the district court
about the scheduling of a hearing in New York in a matter separate
from Torres-Estrada's case.5 Torres-Estrada filed a motion asking
the district court to determine whether the emails created an
appearance of partiality. The district court issued an order and
opinion where it concluded that the emails did not create an
appearance of partiality, and the district court declined to recuse
Under 28 U.S.C. § 455(a), a judge "shall disqualify
himself in any proceeding in which his impartiality might
reasonably be questioned." 28 U.S.C. § 455(a). "We review a
ruling on a motion to recuse for abuse of discretion . . . ."
United States v. Pulido, 566 F.3d 52 , 62 (1st Cir. 2009). We "will
sustain the district court's ruling 'unless we find that it cannot
be defended as a rational conclusion supported by [a] reasonable
reading of the record.'" Id. (alteration in original) (quoting
United States v. Vázquez-Botet, 532 F.3d 37 , 47 (1st Cir. 2008)).
"Thus, an abuse of discretion will be found only if a reasonable
5 We note that many of the facts relating to this claim are in sealed filings, so we cannot detail them further. We have reviewed these filings and considered them in reaching our decision.
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reading of the record fails to support the conclusion that the
judge's impartiality was not subject to question." In re Bulger,
710 F.3d 42 , 45 (1st Cir. 2013).
While "'in close cases doubts ordinarily ought to be
resolved in favor of recusal[,]' . . . [t]his is not a close case."
Pulido, 566 F.3d at 62 (quoting United States v. Snyder, 235 F.3d
42 , 46 (1st Cir. 2000)). Our review of the record leads us to
conclude that any communication the district court had with the
government witness's attorney did not call the district court's
impartiality into question, and the district court did not abuse
its discretion in deciding not to recuse itself.
We affirm the court's decision not to recuse itself and
otherwise dismiss the appeal.
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