United States Court of Appeals For the First Circuit

No. 99-1079

UNITED STATES,

Appellee,

v.

FELIX CORPORAN-CUEVAS,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Pérez-Giménez, U.S. District Judge]

Before

Torruella, Chief Judge,

Campbell, Senior Circuit Judge,

and Selya, Circuit Judge.

Bruce J. McGiverin for appellant. Thomas F. Klumper, Assistant United States Attorney, with whom Guillermo Gil, United States Attorney, and Jorge E. Vega- Pacheco, Chief, Criminal Division, Assistant United States Attorney, were on brief for appellee. April 3, 2001 CAMPBELL, Senior Circuit Judge. Defendant Félix

Corporán-Cuevas (“Corporán”) was convicted upon a plea of guilty

of the following two offenses: (count I) conspiring, under

, to violate the federal Hostage Taking statute,

, and (count II) aiding and abetting, under

, the violation of the federal Hostage Taking statute,

. On appeal he raises four issues which we

consider seriatim, after a brief recitation of the relevant

facts.

On April 18, 1996, in the District of Puerto Rico,

defendant’s alleged co-conspirator Félix Beras and an

unidentified individual abducted thirteen-year old Carlos de la

Rosa Berbera who was traveling in a car with his grandmother,

Carmen Villar-Cordero. At gun-point, the two kidnapers ordered

Mrs. Villar-Cordero out of the car and drove off with her

grandson. Two hours later, Mrs. Villar-Cordero received a

ransom call, ordering that she produce the child’s parents or

money in exchange for her grandson’s freedom. By then, it

appears that, in addition to Félix Beras, defendant Corporán and

two other co-defendants were holding young Carlos. The FBI

succeeded in rescuing the child four days later in Rio Piedras.

Both Corporán and Beras were on the scene and were arrested.

-3- On the day scheduled for trial -- October 28, 1996 --

Corporán entered and the court accepted a change of plea of

guilty as to Counts I and II. On February 12, 1997, the

district court sentenced Corporán to a term of 200 months

imprisonment on Counts I and II. The court also imposed two

terms of supervised release: three years on Count I and five

years on Count II, to be served concurrently. Corporán filed a

timely notice of appeal on February 21, 1997.

I. Elements of the Federal Crime of Hostage Taking

Defendant argues that the indictment fails to allege

one of the essential elements of the crime of hostage taking --

the so-called international element, see

(b)(2),

infra -- rendering it fundamentally defective and requiring us

to reverse his conviction notwithstanding his guilty plea.

Section 1203 of 18 U.S.C., the federal statute

criminalizing hostage taking, states, in relevant part,

(a) Except as provided in subsection (b) of this section, whoever, whether inside or outside the United States, seizes or detains and threatens to kill, to injure, or to continue to detain another person in order to compel a third person or a governmental organization to do or abstain from doing any act as an explicit or implicit condition for the release of the person detained, or attempts or conspires to do so, shall be punished by imprisonment for any term of years or for life and, if the death of any person results, shall be punished by death or life imprisonment.

-4- ....

(b)(2) It is not an offense under this section if the conduct required for the offense occurred inside the United States, each alleged offender and each person seized or detained are nationals of the United States, and each alleged offender is found in the United States, unless the governmental organization sought to be compelled is the Government of the United States.

. Defendant points out that the indictment

fails to allege that he or any other person involved in the

kidnaping of Carlos de la Rosa Berbera were not nationals of the

United States (the so-called “international element,” see

(b)(2)). Defendant argues that the fact that an

alleged offender or victim of the hostage taking is a non-U.S.

national is an essential jurisdictional element of the offense,

and, as such, had to be alleged in the indictment in order to

comport with due process. See United States v. Mojica-Baez,

(1st Cir. 2000) (citing Hamling v. United States,

(1974) and United States v. Hess,

(1888)). See also United States v. Penagaricano-Soler,

(1st Cir. 1990) (citing cases).

The government does not dispute that the indictment

fails to allege facts showing compliance with the international

aspect of the hostage taking statute, but contends that this

aspect need not be pleaded as it is an affirmative defense only.

-5- According to the government, the defendant has the burden to

allege and prove that his case falls within the statutory

exception as defined by

(b)(2) – that all

offenders and victims of the crime were United States nationals.

On different facts, the absence of an allegation in the

indictment that at least one alleged offender or victim was a

non-U.S. national might be cause for concern. Compare United

States v. Vuitch,

(1971) (stating as a “general

guide to the interpretation of criminal statutes that when an

exception is incorporated in the enacting clause of a criminal

statute, the burden is on the prosecution to plead and prove

that the defendant is not within the exception”) with United

States v. Santos-Riviera,

(5th Cir. 1999)

(holding that the exception incorporated into the enacting

clause of the Hostage Taking statute is not an essential element

of the offense for which the government bears the burden of

proof). Given Vuitch, it is arguable that the Fifth Circuit’s

reasoning in Santos-Riviera was incorrect.

But we need not and do not decide that issue at this

time. The uncontraverted facts of record leave no doubt that

even if the so-called international element should have been

pleaded in the indictment, any error resulting from that

-6- omission was harmless. See Mojica-Baez,

(holding that failure of indictment to allege an element of the

offense is subject to harmless error review where the indictment

otherwise provided the defendants with fair notice of the

charges against them). Corporán freely admitted to the court

that he was a national of the Dominican Republic both at his

change of plea hearing and again at sentencing. That he is not

a United States national is undisputed. The international

element of the statute -- even assuming arguendo that it should

have been pleaded in the indictment -- has been plainly

satisfied, despite the government’s failure to plead it

expressly. Nothing in the record suggests that Corporán could

in any way have been prejudiced by the indictment’s failure to

have alleged his Dominican citizenship. Accordingly, this claim

of error furnishes no basis for reversal. See

II. Rule 11 Colloquy

Defendant’s second issue on appeal concerns the

validity of his guilty plea. Corporán contends that his Rule 11

colloquy before the district court was fatally flawed in two

respects: (1) the district court failed to provide a meaningful

explanation of the charges to which Corporán was pleading

guilty, and (2) the district court failed to advise Corporán,

pursuant to Federal Rule of Criminal Procedure 11(c)(5), that as

-7- a consequence of his oath, he could be subject to a charge of

perjury in the event of any false answers. Defendant failed to

raise these issues below1, hence, our review is governed by the

plain error standard. See United States v. Savinon-Acosta,

(1st Cir. 2000) (“Where the error was not called

to the district court's attention, appellate review is governed

by the plain error standard, which requires not only an error

affecting substantial rights but also a finding by the reviewing

court that the error has seriously affect[ed] the fairness,

integrity, or public reputation of judicial proceedings.")

(alteration in original). Having reviewed the record, we do not

find plain error.

Corporán’s first attack on his plea engages one of Rule

11's core concerns -- whether the defendant understood the

nature of the charges against him. See, e.g., United States v.

Gandia-Maysonet,

(1st Cir. 2000) (“[A] core

concern of Rule 11 . . . includes ensuring that the defendant

understands the elements of the charges that the prosecution

1 We note that post-sentencing, on February 21, 1997, defendant did file a pro se Motion to Set Aside Sentence, Reduce Sentence or in the Alternative to Allow Defendant to Withdraw His Plea. The substance of that motion concerned the alleged misunderstandings between Corporán, his counsel and the United States Attorney regarding the recommended sentencing guideline range for the crimes charged. That motion did not direct the district court’s attention to the alleged infirmities in the Rule 11 colloquy that Corporán addresses in this appeal.

-8- would have to prove at trial.”)(quotation marks and citations

omitted). Here, we find nothing in the record of the Rule 11

colloquy to indicate that the district court’s description of

the offenses charged was inadequate to provide the defendant

with an understanding of the elements material to his case.

It is true, as defendant contends, that the district

court failed to recite

(b)(2)’s international

aspect, i.e., that to be convicted under

an

offender or a victim must be a non-United States national. But

as already pointed out, supra Part I, the existence of the

international element was established by Corporán’s voluntary

admission in open court. There was no way for Corporán to have

altered his citizenship however much he learned about this

aspect of the charges against him. The court’s failure to

recite the international aspect did not constitute plain error.

Next, Corporán argues that the district court’s bald

reading of the indictment, without providing any supplemental

explanation or the meaning of key terms, such as “conspiracy,”

“aiding and abetting,” or “willfully and intentionally,” was

insufficient to apprise him of the charges of hostage taking.

In some cases, however, simply reading an indictment may satisfy

Rule 11's requirement. See Fed. R. Crim. P. 11 advisory

committee notes to 1974 Amendments (“The method by which the

-9- defendant’s understanding of the nature of the charge is

determined may vary from case to case, depending on the

complexity of the circumstances and the particular defendant.

In some cases, a judge may do this by reading the indictment. .

. .”). This is such a case. Although, “[c]harges of a complex

nature, including esoteric terms unfamiliar to the lay mind, may

require greater explication by the bench,” United States v.

Mack,

(1st Cir. 1980), here, the charges against

Corporán were not complicated. See United States v. Allard,

(1st Cir. 1991). See also Mack,

& n. 2 (1st Cir. 1980). The terms to which the defendant points

-- such as “conspiracy” and “aiding and abetting” -- although

terms of art, were not hard to understand in the context used.

This is not a case like United States v. Gandia-Maysonet in

which the judge and the government throughout the Rule 11

colloquy affirmatively misstated the newly amended mens rea

element of the crime. See Gandia-Maysonet,

(where the Rule 11 colloquy failed to put the defendant on

notice that to be convicted under

, as amended

only six months previously, the government had to prove the

aggravated intent of causing death or serious bodily harm).

That the court did not embellish the indictment’s recitation of

-10- the offenses charged does not, in these circumstances, support

Corporán’s claim of a Rule 11 error.

We further note that the government thoroughly recited

the facts underlying its case against Corporán – facts to which

Corporán acceded and which, if proved, would support a

conviction under

. These factual recitations

helped explicate the district court’s reading of the charges by

fleshing out the nature of the conduct to which Corporán was

pleading guilty. See Mack,

. Cf. Allard,

(determining that the prosecutor’s recitation and

defendant’s admission of the facts underlying the charge

insufficient to educate the defendant of the offense of

defrauding a hospital because the fraudulent scheme described by

the government concerned mailing false licenses to the Board of

Registration in Medicine and not to a hospital).

The district court found defendant to be alert and

intelligent, a factor further confirming defendant’s

understanding of the charges. We find no error, let alone plain

error that affected the fairness, integrity, or public

reputation of the judicial process. See United States v. Perez-

Carrera, No. 98-1788, slip. op. at 4 & n. 2 (1st Cir. 2001);

Savinon-Acosta,

. We hold that the Rule 11

-11- colloquy fairly put defendant on notice of the substance of the

crimes for which he was charged.

Corporán’s second attack on his plea points us to the

district court’s failure to inform the defendant that, as a

consequence of his oath, he could be subject to a charge of

perjury in the event of any false answers. See Fed. R. Crim. P.

11(c)(5). Although it seems true from the record that Corporán

was not so advised by the district court, we have held that a

technical failure such as this one, standing alone, may be

harmless error. Gandia-Maysonet,

(“Failures to

comply with very specific, yet technical, requirements of Rule

11 are often found ’harmless,’ Fed. R. Crim. P. 11(h).”); United

States v. Allard,

(“Mere technical violations

of [Rule 11's] procedural requirements do not warrant setting

aside a plea.”). Here the question is not just whether the

error was harmless, but whether plain error was committed. As

no perjury charges are pending against Corporán (and he has not

been threatened with any), and the Rule 11 colloquy was

otherwise adequate, the district court’s omission rather

obviously does not amount to plain error.

III. Adherence to Rule 32

Corporán’s third issue on appeal alleges various

violations of Federal Rule of Criminal Procedure 32, all of

-12- which concern the timeliness with which the defendant was

provided with a copy of the presentence report (PSR) and the

government’s objections thereto. In general, Corporán states

that he did not have a sufficient opportunity to review his PSR

and thus he requests a remand for re-sentencing.

The record shows that the defendant’s counsel was not

served with a copy of the PSR until January 27, 1997 -- less

than a week before the February 3rd date that was scheduled for

sentencing -- and that he did not receive the government’s

objections until the morning of February 3rd. Rule 32 provides

that, unless waived, the defendant has the right to a copy of

the PSR no less than thirty-five days prior to sentencing and to

the government’s objections to the PSR no less than twenty-one

days prior to sentencing. See Fed. R. Crim. P. 32(b)(6)(A) and

(B). Corporán objected to the sentencing going forward on

February 3rd, and the district court appropriately granted him

a continuance until February 7, 1997, the date by which

Corporán’s counsel said he would be ready. Defense counsel told

the court that he needed some time to discuss the PSR with his

client and to go over what he remembered to be some agreements

with the government that were made back in October, 1996, at the

time of the guilty plea. He went on to state that he would be

-13- filing objections to the PSR and that he would be ready for

sentencing on February 7, 1997.

The sentencing did not in fact take place until

February 12, the February 7th date having been rescheduled after

defense counsel had sprained his ankle. On February 12, instead

of filing objections to the PSR as he said he would, defendant

told the court that he “basically agree[d] with all” of the

objections filed by the government and argued only that, as a

first offender, defendant should be sentenced at the lower end

of the agreed-to guideline range of 188 months to 235 months in

prison. Defendant now asserts that if more time had been

provided he would have filed objections to the PSR. He relies

on the pro se motion he later filed on February 21, 1997 as

support for his allegation that he would have disputed the

sentence imposed had he had more time to do so.

We find no merit in Corporán’s argument on appeal for

resentencing based upon alleged Rule 32 error. First, by

proposing and accepting the February 7th sentencing date,

Corporán waived the lengthier time period provided in Fed. R.

Crim. P. 32(b)(6)(A) and (B). The rule expressly recognizes

that a defendant may waive these longer periods. See

Second, at the February 3rd hearing, the district court informed

the defendant on the record that unless the government prevailed

-14- on its objections, the sentencing guideline range would be 188

to 235 months. To this, the defense counsel assured the court

that he had “explained to [his client] all the potential ranges

depending on the outcome of these objections.” Defendant had

notice of the sentencing range and cannot be heard now to claim

surprise. Third, on February 12, defense counsel informed the

court that “we basically agree with all of [the government’s

objections].” Defense counsel’s assurances to the district

court on both occasions conforms with the case law in this

circuit that requires the district court to ascertain from the

defendant and his counsel that they have had an opportunity to

read and discuss the PSR. See, e.g., United States v. Manrique,

(1st Cir. 1992) (determining that defense

counsel's statement -- "with regard to the Presentence Report

and the government's version therein the defendant virtually has

adopted the government's version" -- sufficient to establish

that counsel had read the PSR and discussed its contents with

the defendant). Fourth, at the February 12th sentencing

hearing, after defense counsel explained defendant’s position

that the appropriate sentence for a first offender is at the

lower end of the guideline range, the defendant himself, when

asked, told the judge that he had nothing else to add. For all

of these reasons, the defendant cannot now be heard to object

-15- that he was unfairly surprised by the sentence imposed and that

the basis of the sentence is without proper foundation. Given

defendant’s waiver, defense counsel’s assurances and defendant’s

silences during the two hearings on sentencing, we can ascertain

no plain error in the district court’s administration of Rule

32.

IV. Sentencing Error

Defendant argues, and the government agrees, that the

district judge erred in imposing a concurrent 200 month sentence

for a conviction on Count I, which charged defendant with

conspiracy in violation of

, an offense that

provides for imprisonment of "not more than five years." The

judgment in this case imposed a 200 month sentence on both

counts without specifically tying that sentence to either count.

However, the docket sheet understandably describes the

disposition for Count I, Conspiracy to Defraud under

, as being imprisonment for a term of 200 months. The same

sentence is said to have been imposed for Count II, aiding and

abetting a violation of the Hostage Taking statute,

and 2. Thus, the court records indicate the imposition of

concurrent sentences of 200 months each for Counts I and II,

despite the fact that Count I, charging conspiracy under 18

-16- U.S.C. § 371, carries a maximum penalty of only five years. 2

Corporán was properly advised at the plea colloquy that the

maximum penalty under Count I was five years. It was plain

error, therefore, to sentence Corporán under Count I to 200

months, a term of imprisonment 120 months beyond

's statutory maximum. See United States v. Perez-Carrera,

No. 98-1788, slip. op. at 5-6 (1st Cir. 2001). As noted, the

government concedes that the sentence under Count I cannot

stand. We therefore remand Count I to the district court with

instructions to modify the sentence imposed under Count I so as

not to exceed imprisonment for more than five years. See Fed.

R. Crim. P. 35(a). In all other respects, the conviction and

sentence are affirmed.

So ordered.

2 Defendant was not charged with conspiracy under

, the hostage taking statute itself, which includes within its proscription the conspiracy to commit the act of hostage taking and which is punishable by life in prison. See

.

-17-