Unpublished Disposition, 867 F.2d 613 (9th Cir. 1989)

MEMORANDUM^** 

Sergio Bravo Ayala appeals from the conviction and sentence of the district court on a charge of engaging in a continuing criminal enterprise in violation of 21 U.S.C. § 848. Ayala was sentenced to 15 years incarceration.

Ayala raises two issues on appeal. First, Ayala contends that the district court did not adequately inquire into the voluntariness of his guilty plea. Second, he contends that the district court violated Fed. R. Crim. P. 32(c) (3) (D) by failing to make findings with regard to disputed matters of fact within the presentence report. We vacate the conviction and remand for further proceedings.

We review the district court's determination as to the voluntariness of a guilty plea de novo. United States v. Signori, 844 F.2d 635, 638 (9th Cir. 1988).

Ayala asserts that the judge failed to sufficiently inquire into Ayala's allegations that his guilty plea was coerced by threats to prosecute his wife. Where a defendant asserts that his plea of guilty was induced by threats against third parties, a trial court is required to make a particularly careful inquiry into the voluntariness of the plea. United States v. Castello, 724 F.2d 813, 815 (9th Cir.), cert. denied, 467 U.S. 1254 (1984).

Here, when Ayala was questioned by the district court as to whether his guilty plea was the result of threats, the following dialogue ensued:

Answer: I don't know what to say. I have been threatened that they are going to arrest my wife if I don't plead guilty.

Question: So you have been threatened?

Answer: No, nobody has threatened me.

Question: So you have not been threatened by anyone that forced you in any way to plead guilty in this case; is that right?

Answer: Yes.

Later, while describing the plea bargain between Mr. Ayala and the state, the prosecutor failed to clarify whether threats had been made against Ayala's wife stating:

We have also agreed that based on his plea that any criminal liability on the part of Bertha, his wife, we would not charge her in any case, although we have not threatened in any way to prosecute her if he does not plead guilty. He has simply been concerned about that and we have agreed to leave her out of it based on his plea.

This record does not provide an adequate basis for a determination that Ayala's guilty plea was "voluntary and not the result of force or threats or promises apart from a plea agreement." Fed. R. Crim. P. 11(d). Ayala's conviction must be vacated and the case remanded with instructions to allow Ayala an opportunity to withdraw his plea of guilty.¹ 

VACATED AND REMANDED.