Metropolitan News-Enterprise


Wednesday, March 12, 2003


Page 1


Ninth Circuit Upholds Plea Bargain, Rejects Claim Defendant Could Not Understand English


By a MetNews Staff Writer


A defendant who entered into a plea bargain, after telling the judge his English was good enough to understand the terms, could not back out of it on sentencing day by saying his English language skills were not good enough to comprehend the agreement, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

It was too late on the day of sentencing to say that a Tagalog interpreter should have been present at the plea bargain hearing, Judge A. Wallace Tashima said. Fernando Novelo Nostratis’ statement that “I understand, but not hundred percent clearly from my mind,” was an insufficient assertion of his lack of understanding given the fact that he engaged in a full colloquy with the court in English and had an interpreter at an earlier meeting with his lawyer, Tashima said.

“It is true that, during the hearing on Nostratis’ motion to withdraw his plea, Nostratis testified through an interpreter that he did not understand English well enough to comprehend his plea agreement,” Tashima said. “However, the district court could reasonably have chosen to credit Nostratis’ declarations made in open court while under oath during the Rule 11 hearing over his subsequent testimony more than two years later, especially since Nostratis knew his likely sentence at that time.”

Nostratis was indicted in Guam in 1999 on methamphetamine distribution charges. He at first pled not guilty, but later entered into a plea agreement that was accepted by the U.S. district judge.

On the morning of his March 22, 2002, as he was about to be sentenced, Nostratis filed a motion to withdraw his plea based on his lacked of sufficient mastery of English to understand the terms of the agreement.

The judge held a hearing under Rule 11 of the Federal Rules of Criminal Procedure, then denied the motion. Nostratis was sentenced to 135 months in prison.

Tashima, who heard the arguments on appeal on Feb. 14 in Saipan, capital city of the Northern Mariana Islands, said the district court’s ruling was correct. He spotlighted a lengthy exchange in English in which Nostratis said he did not understand a “hundred percent clearly,” but that his lawyer had explained the terms and that he understood them.

His probation officer and his former lawyer both testified that they interviewed the defendant extensively and that he appeared to understand perfectly well.

“In the instant case, Nostratis moved to withdraw his plea only after learning from the presentence report that his likely sentencing range was 135 to 168 months and that the government would only move for a two-level downward departure,” Tashima said. “Moreover, Nostratis waited until the date set for his sentencing to make his plea withdrawal motion. Nostratis’ knowledge of his likely sentence, taken together with the unexplained two-year delay between his plea and his plea withdrawal motion, support the district court’s factual determination that Nostratis understood English well enough to comprehend his plea agreement.”

The case is United States v. Nostratis, 02-10296.


Copyright 2003, Metropolitan News Company