Top Court in Massachusetts Decides that Padilla Applies Retroactively

By Brian Pasquale, Law Clerk

While the Supreme Court does not believe that non-citizens who pleaded guilty without advice from their attorneys that the guilty plea may result in deportation do not have a right to retroactively challenge their conviction, the Massachusetts Supreme Judicial Court does believe so and expressed this in a recent decision (Read the opinion here).

Background: The defendant, a noncitizen, was arrested and charged with one count of possession of cocaine with intent to distribute and one count of a drug violation in a school zone.  The defendant pleaded guilty to simple possession of cocaine to avoid the minimum mandatory sentence of two years that results from being found guilty of a drug violation in a school zone.  As part of his guilty plea the defendant signed a waiver of rights and an alien rights notice acknowledging that if he was not a citizen of the United States, conviction of or admission to the offense may result in deportation.  Subsequent to pleading guilty, the defendant, citing the Supreme Court case of Padilla v. Kentucky[1], filed a motion to vacate his guilty plea contending that he was denied effective assistance of counsel.  During the defendant’s appeal the Supreme Court decided Chaidez v. United States[2], whereupon on the defendant filed an application for direct review, which was granted.

Analysis: In Padilla, the Supreme Court held that The Sixth Amendment requires a criminal defense attorney to provide accurate analysis regarding the deportation consequences arising from a guilty plea.  In Commonwealth v. Clarke[3], the SJC determined that for retroactivity analysis, Padilla did not announce a new rule and the Sixth Amendment right applied retroactively to cases on collateral review.  The Supreme Court, prior to Chaidez, had not ruled on whether Padilla created a new rule.  In Chaidez, the Supreme Court concluded that Padilla did in fact create a new rule and as a result the holding in Padilla does not apply retroactively.  The Court’s reasoning was that prior to Padilla, the Sixth Amendment did not require counsel to inform their clients of a conviction’s collateral consequences, but Padilla now required that thereby creating a new rule.

When the SJC issued its decision regarding retroactivity in Clarke, the court used the framework provided by the Supreme Court.  However since Clarke has been decided, the Supreme Court has greatly expanded its definition of what constitutes a “new” rule, which is at the heart of retroactivity analysis.  Under the original analysis, a “new” rule was created if the result was not dictated by precedent.  The SJC chose to apply the previous framework and not adopt the new expanded analysis that the Supreme Court applied in Chaidez.  Reasoning that it was customary in Massachusetts prior to Padilla for attorneys to warn their clients of position deportation consequences and that the ruling in Padilla simply applied a general standard, the SJC stated that Padilla did not announce a new rule.

The SJC has the ability to adopt the narrower interpretation, providing greater protection to defendants, through the Supreme Court’s decision in Danforth v. Minnesota[4].  In Danforth, the Supreme Court stated that the finality of State convictions is a matter that States should be free to evaluate, and weigh in importance of, when prisoners held in State custody are seeking remedy for a violation of Federal rights by their lower courts.

Aside from the issue of retroactivity, the court also sought to answer the question of whether Art. 12 requires defense counsel to provide defendants with accurate advice concerning the deportation consequences of a guilty plea or conviction at trial.  The court concluded that under Art. 12, defense counsel must accurately advise a noncitizen client of the deportation consequences of a guilty plea or a conviction at trial and failure to do so constitutes behavior that falls measurably below that which might be expected from an ordinary fallible lawyer.

The SJC held that as a matter of Massachusetts law, the Sixth Amendment right articulated in Padilla, was not a “new” rule and therefore defendants whose State law convictions were final after April 1, 1997, may attack their convictions collaterally Padilla grounds.

This decision was highly anticipated in the legal community after the Chaidez decision was announced because many noncitizens that pleaded guilty without knowing the severe consequences were not certain if they would still be able to challenge their guilty plea.  While the case is positive for noncitizens, there is still one major hurdle that they must pass in order to successfully challenge their plea.  They must also prove that their attorney provided them with ineffective assistance of counsel.  When a defendant asserts that his counsel was ineffective he must show two separate elements, (1) that the behavior of his counsel fell well below that of which would be expected from an ordinary fallible lawyer and (2) that it likely deprived the defendant of a substantial ground of defense.  While many who challenge their plea will state that they would have never accepted the plea had they known of the implications, they bear a substantial burden of showing that.  As difficult as a challenge may be for a noncitizen who pleaded guilty, the fact that they still have the option to challenge the plea is a much better scenario than if the SJC agreed with the Supreme Court and took this option away.


 

[1]130 S. Ct. 1473,1486 (2010)

[2] 133 S. Ct. 1103, 1105 (2013)

3. 460 Mass. 30, 34 (2011)

[4] 552 U.S. 264, 282 (2008)

 

Advertisements

First Circuit: Wrongfully Incarcerated Protected Under Fourth Amendment from Malicious Prosecution

images

Hernandez-Cuevas v. Taylor

Background: In 2004 a joint federal-Commonwealth task force consisting of FBI agents and local police officers opened a special investigation targeting a drug and money laundering conspiracy in Carolina, Puerto Rico.  The task force had two confidential informants (“UI-1”) and (“UI-2”), who had arranged a meeting with a target of the investigation.  After the crime had been committed the surveillance officers observed one of the vehicles drop an individual involved in the crime off at a multi-unit building where the plaintiff lived.  Throughout the next year the FBI was unable to identify the individual who exited the vehicle that day and in a rush to indict someone, two officers and UI-1 conspired to manufacture evidence implicating the plaintiff as the individual from the day of the crime.  The officers carried out a tainted photo identification even though the plaintiff bared very little resemblance to the individual described on the day of the crime.  On December 3, 2007 police arrested Hernandez, charging him with delivering $321,956 in drug proceeds to the undercover informant.  He was transferred to a federal prison in New Jersey where he was held for three months while awaiting further proceedings.  On February 29th he was released and on April 18, 2008 the United States Attorney for the District of New Jersey dismissed the charges against him.

On March 2, 2009, the plaintiff filed his complaint alleging that the conduct of the officers caused him to be held in federal custody for three months without probable cause.  The defendants argued that the case should be dismissed because the statute of limitations had passed as any Fourth Amendment claim had accrued on the day of his arrest.  While the court agreed with the defendants that the statute of limitations had passed on a straight forward Fourth Amendment false arrest claim, the statute of limitations for malicious prosecution does not begin to accrue until the day that the proceedings terminate in the plaintiffs favor (the dismissal of charges in April of 2008).  The defendants then filed another motion to dismiss, arguing that as police officers, they were entitled to qualified immunity.  The court denied their motion and the defendants filed the interlocutory appeal.

Issue: Whether the facts alleged show that the officer’s conduct violated some constitutional right

Analysis: The court began by highlighting the fact that neither the First Circuit nor the Supreme Court has determined that the Fourth Amendment includes a malicious prosecution claim.  However, each of the eight Courts of Appeals who have directly tackled the issue has concluded that individuals are protected under the Fourth Amendment against pretrial detention without probable cause.  In a common law malicious prosecution claim, the plaintiff must demonstrate that the officer acted with subjective malice.  In a purely constitutional Fourth Amendment claim, the plaintiff only needs to establish that his seizure was objectively unreasonable.  The approach taken by the Court was similar to that of other Court of Appeals who had been presented with the issue in the past; Fourth Amendment protection does not end when an arrestee becomes held pursuant to legal process.

The Court further stated that a plaintiff may bring such a claim under Section 1983 if he or she can establish that the Defendant (1) caused (2) a seizure of the plaintiff pursuant to legal process unsupported by probable cause, and (3) criminal proceedings terminated in plaintiffs favor.  In this case, the police officers acted with reckless disregard by blatantly making false statements in the warrant to arrest the Plaintiff in addition to the fact that the description given by the surveillance officer on the day of the incident did not resemble the plaintiff at all.  Finally, the case ended in the Plaintiff’s favor as the prosecutor dismissed the charges against him.

Probe Into US Attorney’s Prosecution of Swartz Continues

The power of government prosecutors has been heavily scrutinized recently following the suicide of internet activist Aaron Swartz.  Swartz, who co-founded the social news website Reddit and was the founder of internet activist group Demand Progress, was found dead on January 11.  In July of 2011 Swartz was indicted on federal charges including wire fraud, computer fraud, unlawfully obtaining information from a protected computer, recklessly damaging a protected computer and several other charges.  However this was not the typical hacking case in which a hacker broke into an online system to seek financial gain or cause havoc and shutdown the website.  Swartz managed to download more than four million documents from the not for profit website JSTOR, a digital library that provides academic journals, books, and primary sources to its users.  Swartz intended to distribute these documents to the public, but before he could do so they were returned to JSTOR without any damage being done.

Following Swartz’s arrest, it was evident that JSTOR was not pressing the government to indict Swartz, and actually appears to be against any legal charges being brought against Swartz; following the indictment JSTOR released a statement on the matter which read in part,

“We stopped this downloading activity, and the individual responsible, Mr. Swartz, was identified.  We secured from Mr. Swartz the content that was taken, and received confirmation that the content was not and would not be used, copied, transferred, or distributed.

The criminal investigation and today’s indictment of Mr. Swartz has been directed by the United States Attorney’s Office. It was the government’s decision whether to prosecute, not JSTOR’s. As noted previously, our interest was in securing the content. Once this was achieved, we had no interest in this becoming an ongoing legal matter.”

However, despite JSTOR’s position, the United States Attorney’s office refused to drop charges, with US Attorney Carmen Ortiz being quoted as saying, “Stealing is Stealing, whether you use a computer command or a crowbar, and whether you take documents, data or dollars.” Rep. Darrell Issa (R-Vista) and Elijah Cummings (D-MD.), on behalf of the committee on oversight and government reform, recently requested a briefing from the United States Attorney General seeking clarity about the decisions of the US Attorney’s office to bring criminal charges against Swartz.  In the request, the committee questions the tactics of the prosecutors, which allegedly included offering a 7-8 month sentence if a guilty plea was accepted and a statement to Swartz that if he did not accept and was convicted, then the government would seek a prison sentence of 7-8 years.

Among the specific questions that the committee has requested in the briefing by the Attorney General are

  1. Was Mr. Swartz’s opposition to SOPA or his association with any advocacy groups among the factors considered?
  2. What specific plea offers were made to Mr. Swartz, and what factors influenced the decisions by prosecutors regarding plea offers made to Mr. Swartz?
  3. Why was a superseding indictment necessary?

The full text of the committee’s request can be found here.

Part of the problem of prosecutorial overreach stems from the pressure of the prosecutors to secure convictions, and this often includes the tactic used against Swartz of offering plea deals and indicating to defendants that if they do not accept the plea deal and go to trial, the time spent in prison could be significantly higher if convicted.  As mentioned earlier, in the Swartz case prosecutors allegedly offered a plea deal of 7-8 months with the threat of a 7-8 year prison sentence if convicted.  Even a completely innocent person would have to double question themselves in this position with nothing being certain in jury trials.

Scholar Glenn Harlan Reynolds, a Beauchamp Brogan Distinguished Professor of law, makes several convincing arguments in his essay on prosecutorial overreach.  One potential response could be to analyze the grand jury process as it is in place now.  The grand jury is meant to be a major bar, or a hurdle to prosecutorial overreach, but as Reynolds states, the historic phrase that “a good prosecutor could persuade a grand jury to indict a ham sandwich” establishes that this process needs to be revamped.  Another cause of this is prosecutorial immunity, which Reynolds describes as a “judicial invention.”  Reynolds argues that while this immunity may prevent prosecutorial misconduct, it also in a way enables it because it removes one form of accountability.  Reynolds’s essay provides great insight on this topic and the full text can be found here.

The US Attorney’s response to the Committee’s request will hopefully provide answers that many have been asking since the death of Mr. Swartz.

Real Estate: Lack of Physical Possession Does Not Invalidate Foreclosure

A Land Court Judge held a mortgage lender established possession of property despite inactivity on the premises for almost 20 years.  The court found the lender, a now fee simple owner of property, had established possession by entering for the purpose of foreclosure, recording a certificate pursuant to Massachusetts’ statutory requirements, and maintaining peaceful possession for three years.

Judge Keith Long Stated, “After making peaceful entry following the breach of a mortgage condition, and recording his certificate, [the defendant] did “all that is necessary to affect a foreclosure.”

Currently, there are two methods of foreclosing property in Massachusetts — power of sale and foreclosure by entry.

Power of sale

Power of sale is the most common and quickest method of foreclosure in Massachusetts. Usually held at foreclosure auctions, power of sale requires that sales be made pursuant to the power of sale clause in the mortgage.  In Massachusetts, notice of the foreclosure must be published and mailed to the borrower. There is no requirement for the borrower to actually receive the notice, merely for the lender to make a diligent effort to locate the borrower.  The actual sale must be conducted at the date, time, and place specified in the notice.  A proper sale prevents the borrower from exercising any right to reclaim the property through redemption.

Foreclosure by entry

A less common method of foreclosure, foreclosure by entry, allows lenders to foreclose by lawfully taking possession of a premise for a statutory required 3 years. After which, the title will have the lenders name.  Lawful recovery of possession can be done in 3 ways:

  1. Lender may file a lawsuit and obtain a court order granting possession
  2. Lender may enter peaceably and take possession or
  3. Lender may obtain borrower’s proper consent to entry.

The statutory language of Massachusetts’ foreclosure by entry statute, G.L.c. 244 §1 allows recovery of possession “by an open and peaceable entry thereon, if not opposed by the mortgagor or other person claiming it … and possession so obtained, if continued peaceable for three years from the date of recording of the memorandum or certificate as provided … shall forever foreclose the right to redemption.

Judge Long concluded that though it was conceded that the defendant never had physical control over the property, under G.L.c. 244 §1 it wasn’t required.   Further in interpreting past court decisions, Long notes that courts “have long held that a mortgagee who has made peaceful entry on the property and duly recorded a certificate of entry need not do anything further to establish possession.”

“Long added, that once possession has been “acquired by peaceable entry and the recording of the certificate in the registry of deeds, that possession continues until the mortgagor takes some act that is adverse to the mortgagee’s possession.  Absent proof of some act done to defeat or interrupt the mortgagee’s possession, the mortgagor is treated as a tenant at will of the mortgagee, and ‘they are assumed to hold under him, and their possessions are his, during the three years, until the completion of the foreclosure.’”

Here, Plaintiff failed to establish an adverse possession claim or to prove that defendant’s possession was interrupted.  As a result, the court held that Defendant did all that was required to establish foreclosure proceedings despite inactivity on the premise.

 The Case is:HS Land Trust v. Gonzalez, Lawyers Weekly No.14-077-12

The Dookhan Fallout: Tainted Drug Lab Samples & Guilty Pleas

By Vikas S. Dhar and Wassem M. Amin

 

In February 2012, it was discovered that Annie Dookhan, a chemist in the Department of Public Health’s Hinton State Drug Laboratory in Jamaica Plain, had deliberately mishandled drug samples in several cases.  After investigation, the cases affected by the tainted samples mushroomed to a figure in excess of 34,000.  As reported by the Boston Globe[1], the chemist intentionally falsified drug testing evidence and misrepresented her professional credentials.  Dookhan was the custodial and primary chemist who performed the testing and net weight computation of the controlled substances.  She was later identified through investigation by state law enforcement officials as the individual responsible for intentionally contaminated drug evidence to ensure positive tests, inflated drug sample weights, falsified drug analysis findings, and fraudulently altered chain of custody documents.  In a 2010 narcotics-related criminal trial, Dookhan testified under oath that she graduated from the University of Massachusetts with a bachelor’s degree in biochemistry and a Master’s degree in chemistry.  A representative from UMass has since stated that while the chemist did receive an undergraduate degree in biochemistry, the school has no record of her receiving any graduate degree.

As a consequence of that investigation, Governor Deval Patrick accepted in September 2012 the resignation of John Auerbach, State Public Health Commissioner, suspended two onsite laboratory supervisors, and ultimately, shuttered the Hinton Drug Lab.  It is still too early to determine the gravity of fallout, specifically, how many defendants have been convicted, whether by tendering plea or by jury trial, based on tainted evidence.  However, as the effects of the scandal continue to ripple, one issue remains clear – convictions in these cases based upon guilty pleas, predicated upon tainted drug evidence, are constitutionally deficient and any defendant affected must be afforded the opportunity to withdraw his plea.

▪ Implications of a Guilty Plea for Defendants

Nearly 95% of convictions are obtained through a guilty plea.[2] The Supreme Court has acknowledged the prevalence of guilty pleas and that “[s]tates to some degree encourage pleas of guilty at every important step in the criminal process.”[3]  The Constitution requires the government to ensure that proceedings which may deprive an accused of his freedom are conducted fairly.[4]  The constitutional rights that a defendant forgoes when accepting a plea, as well as the multitude of external factors that might influence his decision to do so, necessitate that the defendant be given an opportunity to withdraw his plea – even if there was a slight defect in the evidence used to indict him.

In state narcotics cases, the actual weight of the narcotics is often the primary factor in determining the charges to be brought at the outset of the case, as well as a major contributing factor for sentencing purposes.  The weight and substance of the narcotics are critical factors in determining if the defendant is going to be indicted and charged in Superior Court, or whether the case remains in district court, where the maximum sentence can often be significantly shorter.  Further, the collateral consequences of a guilty plea for a defendant are numerous: non-U.S. citizens who were convicted of a crime involving narcotics may have been deported; some defendants may have had their parental rights terminated, while others still may have been denied public housing or other government-related benefits.

A plea of guilty to a complaint or an indictment is an admission of the material facts therein.  When a defendant pleads guilty, all facts charged are thereby admitted, trial by jury is waived, and nothing is left but to pass sentence.[5]  Except for mainly jurisdictional defects, when a defendant admits in open court that he is, in fact, guilty of the offense conduct, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.  Guilty pleas intelligently and voluntarily made bar assertions of constitutional challenges to pretrial proceedings.[6]  Courts have generally held that a guilty plea also waives the right to challenge non-jurisdictional defects brought about by government conduct prior to entry of the plea, including, amongst other, challenges based on Fourth Amendment violations, Miranda violations, denial of the due process right to a speedy trial and unlawful arrests.

▪ Constitutional Rights Implicated by a Guilty Plea

When a defendant pleads guilty, he is essentially waiving three critical Constitutional rights – the right to trial by jury, the right to confrontation and the privilege against self-incrimination.  The gravity of these constitutional rights in our criminal justice system necessitate that a plea be made voluntarily and intelligently.  The Supreme Judicial Court has stated that “[w]hat is at stake for an accused facing death or imprisonment demands the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequences.”[7]  A trial court must therefore ensure that a guilty plea has been tendered with an understanding of the nature of the charge and the consequences of the plea.

Because the defendant has a Fifth Amendment right not to “be compelled in any criminal case to be a witness against himself,” the plea must be entered into voluntarily and without threat of “physical harm” or “mental coercion” in order to be valid.  “The question of whether a defendant was subject to undue pressure to plead guilty must be considered in some manner on the record.”[8]  Improper coercion can render a guilty plea unconstitutional.  A form of coercion may be the pressure to plead guilty due to a risk of an enhanced sentence in the event of going to trial.  Of course, all pleas necessarily carry an implied form of coercion.  However, in the event of an indictment based on tainted or falsified drug evidence, this coercion rises to the level of a constitutional violation.  Coercion that results in an involuntary plea will render the plea void as in violation of due process under the Fifth and Fourteenth Amendments.[9]

As to the second prong, the plea will not be considered intelligent unless “[t]he defendant possesses an understanding of the law in relation to the facts.”[10]

The inquiry into whether a defendant’s plea was made intelligently requires three distinct procedures.  First, the judge must explain to the defendant the elements of the crime and perform the colloquy. During a plea colloquy, the presiding judge must examine the defendant and “conduct a real probe of the defendant’s mind” to determine that the plea is intelligent.  Second, counsel must represent to the court that he has explained to the defendant the elements he admits by tendering his plea.  Third, and most critical, the defendant must openly admit in court to the facts recited during the colloquy which constitute the unexplained elements.  A court may not enter a judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea.  The danger here is that, most commonly, a pre-trial guilty plea is usually based solely on the indictment or complaint.  The evidence required to secure an indictment is far less than that of a conviction.  An indictment valid on its face should is usually not dismissed absent a showing that “the grand jury proceeding prejudiced [the defendant’s] ability to obtain a fair trial.”[11]  A grand jury must hear only sufficient evidence to establish the identity of the accused and probable cause to arrest him.  Although an argument may be made that the defendant’s ability to obtain a fair trial was prejudiced, the fact that the basis of information for indictment was obtained in an unconstitutional manner is typically not sufficient to invalidate it.

▪ Difficulty in Challenging a Guilty Plea

Given the sparseness of the record when a plea is taken, proving prejudice by defendants to courts that desire finality will be very difficult.  In 2002, the Supreme Court concluded that the Constitution does not require a prosecutor to turn over impeachment material before a guilty plea.[12]  In Ruiz, the Court ruled that the fair trial guarantees of the Fifth and Sixth Amendment were not violated when the prosecutors conditioned a fast-track plea offer on the defendant’s waiver of her right to impeachment information.[13]  Since the Court has never created a constitutional right to discovery in criminal cases, during plea negotiations the prosecutor has no constitutional duty to disclose incriminating evidence to the accused – although he may have every strategic incentive to do so in order to encourage a plea. Since disclosure of inculpatory evidence is not constitutionally mandated, a defendant’s ability to find out that the evidence was tampered with is further diminished.

▪ A Guilty Plea Based on Tainted Drug Lab Evidence is Constitutionally Deficient

A guilty plea based on untrue facts is not one that is intelligently made by the defendant, and thus, should be considered constitutionally impermissible.  A guilty plea carries the same effects upon a defendant as being convicted by a jury at trial.[14]  However, at trial, the government must prove beyond a reasonable doubt that the defendant committed the crimes with which he is being charged.  The arresting officers, support personnel and percipient witnesses may be called to the stand to testify under oath.  On the other hand, during a plea hearing, when a defendant offers an allocution in open court, the government simply has to offer the police report and the judge has to rule that there is a factual basis for the charge being brought.

The Supreme Court has realized the significance of a guilty plea and the constitutional rights given up in this process by requiring that a two-fold process be adhered to by the court when a guilty plea is accepted.  The first is that the plea must have been entered into voluntarily.  The voluntarily prong of the analysis hinges upon whether the defendant was either physically or mentally coerced into agreeing to the plea bargain.  While tainted drug evidence is unlikely to be linked to physical coercion, the possibility of a form of mental coercion playing a role is much greater, for example, when the evidence has been tainted due to the fact that the weight of the substance is directly linked to the sentence upon conviction.  The threat of a much greater length of incarceration is more likely to induce a defendant to accept a guilty plea.

The second prong of the analysis, whether the defendant’s plea was made intelligently, is determined by the presiding judge in whether the judge believes that the defendant is aware of the consequences of the plea and he has admitted to the crime.  This prong also places, rightfully so, a significant amount of responsibility on defense counsel, who is charged with explaining each and every element of the counts and penalties to the defendant prior to acceptance of a plea.  In the current situation of a drug lab that has produced tainted evidence, counsel is in the same position as the defendant in terms of knowledge about the situation.  As a result, a plea cannot be tendered intelligently when there is tainted evidence involved, of which no party to the case is aware.

A defendant who previously pled guilty in a narcotics case based on evidence that was tainted cannot be said to have made a knowingly and voluntarily admission to the crime that was read by the judge on the day the plea was accepted.  If the evidence presented against him is a different substance, different weight, or an all-out fabrication, he must be able to withdraw his plea.

 

***

This article was prepared by Vikas S. Dhar, a partner in the Litigation Practice Group at Dhar Law, LLP, who focuses in white-collar and non-white-collar criminal defense and government investigations, and Wassem M. Amin, a senior law clerk in the Litigation Practice Group.  Further information is available at www.dharlawllp.com.  These materials have been prepared for informational purposes only and are not legal advice.  Under the rules of the Supreme Judicial Court of Massachusetts, these materials may be considered as advertising.

Download a PDF copy of this article here.


[2] Bureau of Justice Statistics, available at: http://bjs.ojp.usdoj.gov

[3] McCarthy v. U.S., 394 U.S. 459 (1969).

[4] See James J. Tomkovicz, The Right to the Assistance of Counsel: A Reference Guide to the United States Constitution, 155-56 (2002).

[5] Ljutica v. Holder, 588 F.3d 119, 124 (2d Cir. 2009) (pleading guilty constitutes admission of all elements of formal charge); see, e.g., U.S. v. Gonzalez-Alvarez, 277 F.3d 73, 79-80 (1st Cir. 2002) (pleading guilty constitutes admission of all factual elements, even those not precisely known to defendant); see U.S. v. Broce, 488 U.S. 563, 570 (1989).

[6] Commonwealth v. Berrios, 447 Mass. 701, 715 (2006)

[7] Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

[8] Commonwealth v. Quinones, 414 Mass. 423 (1993).

[9] See, e.g., Chambers v. Florida, 309 US 227, 235-38 (1940); Walker v. Johnston, 312 US 275, 286 (1941); Waley v. Johnston, 316 US 101, 104 (1942); Machibroda v. U.S., 368 US 487, 493 (1962); Brady v. United States, 397 US 742, 748 (1970).

[10] Boykin v. Alabama, 395 US 238 (1969); McCarthy v. U.S., 394 US 459, 464-67 (1969).

[11] Commonwealth v. Freiberg, 405 Mass 282, 301, cert. denied, 493 US 940, (1989).

[12] U.S. v. Ruiz, 536 U.S. 622 (2002).

[13] Id.

[14] See U.S. v. Broce, 488 U.S. 563, 570 (1989); Ljutica v. Holder, 588 F.3d 119, 124 (2d Cir. 2009) (pleading guilty constitutes admission of all elements of formal charge); see, e.g., U.S. v. Gonzalez-Alvarez, 277 F.3d 73, 79-80 (1st Cir. 2002) (pleading guilty constitutes admission of all factual elements, even those not precisely known to defendant).