Filed: Jun. 25, 2013
Latest Update: Feb. 12, 2020
Summary: in his plea agreement his outrageous-misconduct claim fails. Cf. Luisi, 482 F.3d at 59, ([E]ven though the government's actions have risked giving the, defendant a viable entrapment claim, it is another thing entirely, to say that the conduct was 'outrageous.').
Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 11-2299
UNITED STATES OF AMERICA,
Appellee,
v.
WILLIAM RIVERA-GARCIA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Thompson, Stahl, and Lipez,
Circuit Judges.
Jane Elizabeth Lee on brief for appellant.
Juan Carlos Reyes-Ramos, Assistant United States Attorney,
Nelson Pérez-Sosa, Assistant United States Attorney, and Rosa
Emilia Rodrígues-Vélez, United States Attorney, on brief for
appellee.
June 25, 2013
STAHL, Circuit Judge. After being ensnared in a law
enforcement scheme aimed at exposing corrupt police officers in
Puerto Rico, William Rivera-Garcia pled guilty to conspiracy to
possess a controlled substance with intent to distribute, 21 U.S.C.
§ 841(a)(1), and possession of a firearm in furtherance of a
drug-trafficking crime, 18 U.S.C. § 924(c)(1)(A). Rivera-Garcia
now appeals his conviction, arguing that the government entrapped
him in a manner so outrageous that his prosecution offends the Due
Process Clause. Because Rivera-Garcia likely waived his right to
make this claim on appeal, and because, in any event, he has failed
to show plain error, we affirm.
I. Facts & Background
Because this appeal stems from a conviction via a guilty
plea, the following facts are drawn from the plea agreement, plea
colloquy, and sentencing materials. See United States v. Whitlow,
714 F.3d 41, 42 (1st Cir. 2013).
The plea agreement included a stipulation of facts that
described the following events:
[B]eginning on or about June 3, 2009, and
continuing until on or about June 4, 2009, [2]
William Rivera Garcia, the defendant herein,
and co-defendant [1] Arcadio Hernandez Soto
agreed to provide "armed protection" for a
drug transaction on behalf of a person who
they both thought was a drug trafficker for a
cash payment.
On June 4, 2009, [2] William Rivera Garcia and
[1] Arcadio Hernandez Soto arrived at an
apartment in the District of Puerto Rico to
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provide armed protection for the seller in a
drug transaction that involved what they
thought was cocaine. When the buyer arrived,
[2] William Rivera Garcia and [1] Arcadio
Hernandez Soto patted him down to make sure he
was not armed or possessed any type of
recording devices. The buyer was then allowed
into the apartment where he was presented with
a bag containing a quantity of sham cocaine.
[2] William Rivera Garcia and [1] Arcadio
Hernandez Soto both guarded the seller while
the buyer inspected the kilograms in their
presence and constructive possession. [2]
William Rivera Garcia was armed with a firearm
while this entire simulated drug transaction
was taking place. The undersigned parties
agree that the total quantity of cocaine
attributable to [2] William Rivera Garcia was
between 200 grams and 300 grams of cocaine.
After the buyer was allowed to leave with the
sham cocaine, [2] William Rivera Garcia and
[1] Arcadio Hernandez Soto were paid for their
protective services.
Rivera-Garcia was paid $2,000 in cash.
Unbeknownst to Rivera-Garcia and his codefendant,
however, the entire scheme was a government construct, aimed at
apprehending corrupt police officers who were moonlighting as hired
guns for drug dealers. (Rivera-Garcia himself was an ex-police
officer at the time.) The buyer and seller were both government
agents, and the drugs were fake. The apartment belonged to the
government. Federal agents had used informants to make it known
that "drug dealers" were hiring police officers to provide security
for these sham transactions. Rivera-Garcia was recruited by his
codefendant Arcadio Hernandez Soto, who in turn had been brought in
by a government agent.
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Rivera-Garcia was charged with, and pled guilty to,
conspiracy to possess a controlled substance with intent to
distribute, 21 U.S.C. § 841(a)(1), and possession of a firearm in
furtherance of a drug-trafficking crime, 18 U.S.C. § 924(c)(1)(A).
His plea agreement contained a waiver of his appellate rights,
which read: "The defendant hereby agrees that if this Honorable
Court accepts this plea agreement and sentences him according to
its terms, conditions and recommendations, the defendant waives and
surrenders his right to appeal the judgment and sentence in this
case." At the change-of-plea hearing, the magistrate judge had the
following colloquy with Rivera-Garcia about this waiver:
THE MAGISTRATE: Do you understand that you
can appeal your conviction if you believe the
guilty plea was somewhat [sic] unlawful or
involuntary or if there is some other
fundamental defect in the proceedings which
was not waived by a guilty plea?
Do you understand that?
DEFENDANT: Yes.
. . .
THE MAGISTRATE: Notwithstanding, Mr. Rivera,
your Plea Agreement contains, in paragraph 15,
a Waiver of Appeal, in which you agree that if
the Court accepts the Plea Agreement and
sentences you according to its terms,
conditions and recommendation you waive and
surrender your right to Appeal the Judgment
and Sentence, in this case.
Are you aware of the Waiver of Appeal?
DEFENDANT: Yes.
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THE MAGISTRATE: Have you discussed the Waiver
of Appeal and its consequences with you [sic]
counsel?
DEFENDANT: Yes.
The court found that Rivera-Garcia's plea was intelligent
and voluntary and accepted it. He was then sentenced to a total of
eighty-four months' imprisonment. This appeal followed.
II. Analysis
The crux of Rivera-Garcia's appeal is that the government
scheme that snared him was so excessive, so outrageous, that it
went beyond permissible law enforcement tactics and violated the
Due Process Clause. This argument relies on the "outrageous
misconduct" doctrine, under which (in at least some formulations)
a defendant's due process rights are violated when "law enforcement
personnel become so overinvolved in a felonious venture that they
can fairly be said either to have 'creat[ed]' the crime or to have
'coerc[ed]' the defendant's participation in it." United States v.
Santana, 6 F.3d 1, 5 (1st Cir. 1993) (quoting United States v.
Mosley,
965 F.2d 906, 911-12 (10th Cir. 1992)). The government
rejoins that this was little more than a run-of-the-mill sting
operation, and that, in any event, Rivera-Garcia has waived the
right to raise his outrageous-misconduct claim on appeal.
The government's waiver argument relies both on the
express appellate waiver provision in Rivera-Garcia's plea
agreement, described above, and on the general rule that a
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defendant who knowingly and voluntarily pleads guilty "may not
thereafter raise independent claims relating to the deprivation of
constitutional rights that occurred prior to the entry of the
guilty plea." Tollett v. Henderson, 411 U.S. 258, 267 (1973); see
United States v. Broce,
488 U.S. 563, 569 (1989). Rivera-Garcia
acknowledges these obstacles, but contends that his outrageous-
misconduct claim is beyond the scope of the waiver clause in the
plea agreement. He also argues that his claim fits within the
narrow exception to the general guilty-plea waiver rule recognized
in Blackledge v. Perry,
417 U.S. 21 (1974), and Menna v. New York,
423 U.S. 61 (1975) (per curiam). In those cases, the defendants
had pled guilty, but the Supreme Court nevertheless allowed them to
challenge their convictions on the basis that the government had
violated their due process or double jeopardy rights in such a way
that they could not constitutionally be haled into court at all.
See United States v. De Vaughn,
694 F.3d 1141, 1150-53 (10th Cir.
2012) (describing these cases and their effect on the general
guilty-plea waiver rule).1
1
The Blackledge-Menna exception to the guilty-plea waiver
rule should not be (but often is) confused with the separate rule
that a guilty plea does not waive jurisdictional defects in a
conviction. See De Vaughn, 694 F.3d at 1153; United States v.
Gonzalez,
311 F.3d 440, 442 (1st Cir. 2002). In fact, the
government's brief in this case confuses these distinct concepts.
To be clear: "A guilty plea waives all defenses except those that
go to the court's subject-matter jurisdiction and the narrow class
of constitutional claims involving the right not to be haled into
court." De
Vaughn, 694 F.3d at 1153 (emphasis added).
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We are skeptical that Rivera-Garcia can escape the
consequences of both his explicit waiver of his appellate rights
and his guilty plea itself. It is true that some cases discussing
the outrageous-misconduct doctrine have described it as "absolutely
bar[ring] the government from invoking judicial processes to
obtain a conviction," United States v. Russell, 411 U.S. 423,
431-32 (1973), which would appear to align it with the "right not
to be haled into court" recognized in
Blackledge, 417 U.S. at 30.
But other courts have rejected the idea that Blackledge allows a
defendant to raise any and all due process claims that implicate
his right not to be brought into court, on the ground that "such a
broad rule would allow any defendant to manufacture any sort of due
process violation as a means of undermining the finality of a
guilty plea." United States v. Doe,
698 F.3d 1284, 1291-92 (10th
Cir. 2012); see also United States v. Elenes,
892 F.2d 84 (9th Cir.
1989) (unpublished table decision) (holding that the Blackledge-
Menna exception did not apply to an outrageous-misconduct claim
that was not evident from the face of the indictment).
However, we need not decide whether Rivera-Garcia can fit
his claim into the Blackledge-Menna exception, because even if he
can -- and even if he can likewise evade the express waiver clause
in his plea agreement -- his outrageous-misconduct claim fails.
Because this claim was not raised below, we review it only for
plain error. Compare United States v. Luisi, 482 F.3d 43, 58 (1st
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Cir. 2007) (reviewing preserved outrageous-misconduct claim de
novo), with United States v. Sandlin, 589 F.3d 749, 758 (5th Cir.
2009) ("Our sister circuits have applied plain error review for
claims of outrageous government conduct not preserved in the
district court."). Under that familiar standard, a defendant must
show that: (1) an error occurred; (2) that was clear or obvious,
and not only (3) affected the defendant's substantial rights but
also (4) impaired the fairness, integrity, or public reputation of
the judicial proceedings. Puckett v. United States, 556 U.S. 129,
135 (2009); United States v. Zavala-Martí,
715 F.3d 44, 52 (1st
Cir. 2013).
Rivera-Garcia cannot meet this demanding standard here.
As we have noted before, "[t]he banner of outrageous misconduct is
often raised but seldom saluted." Santana, 6 F.3d at 4; see also
Luisi, 482 F.3d at 59 (noting that an outrageous-misconduct claim
"has never yet been successful in this circuit"). This is not to
say that an outrageous-misconduct claim can never succeed. See,
e.g., United States v. Twigg,
588 F.2d 373, 380-81 (3d Cir. 1978)
(outrageous misconduct barred conviction where a government agent
set up a drug lab, supplied the key ingredient to make the drugs,
purchased almost all of the other supplies, "was completely in
charge" of the operation, and "furnished all of the laboratory
expertise"). Rather, the point is that the "outrageous
governmental conduct defense is an extraordinary defense reserved
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for only the most egregious circumstances. It is not to be invoked
each time the government acts deceptively or participates in a
crime that it is investigating." United States v. Sneed, 34 F.3d
1570, 1577 (10th Cir. 1994) (quoting
Mosley, 965 F.2d at 910)
(internal quotation mark omitted); see, e.g., United States v.
Simpson,
813 F.2d 1462, 1465-66 (9th Cir. 1987) (informant's use of
sex to lure defendant into selling heroin was not sufficiently
shocking). Our cases recognize that "outrageousness, by its
nature, requires an ad hoc determination" that cannot "usefully be
broken down into a series of discrete components."
Santana, 6 F.3d
at 6.2
"[T]aking into account the totality of the relevant
circumstances," id. at 7, we do not believe it is "clear or
obvious,"
Puckett, 556 U.S. at 135, that Rivera-Garcia's case
should have been dismissed on outrageous-misconduct grounds. We
agree with Rivera-Garcia that his case differs from one in which
the government simply insinuates itself into an ongoing criminal
enterprise. Here, the government was both the buyer and the seller
in the drug deal; as far as the record discloses, no actual drug
dealers were involved. Cf. Greene v. United States,
454 F.2d 783,
786–87 (9th Cir. 1971) (prosecution was barred because the
government became enmeshed in criminal activity from beginning to
2
Our holistic approach to outrageous-misconduct claims
differs from some other courts' analyses, which involve multi-
factor tests. See Santana, 6 F.3d at 6-7 & n.9.
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end by helping to reestablish and sustain bootlegging operations in
which the government was the only customer). But it would be going
too far to say that the government dreamed up this scheme to lure
the unwary into malfeasance; by Rivera-Garcia's own account, the
government was responding to a serious and ongoing corruption
problem in the local police precincts. It appears that the
government, having identified a recurring problem with police
officers providing security for drug deals, simply substituted
itself for the actual dealers in this particular instance. Thus,
this is not a case in which the government "involve[d] itself . . .
directly and continuously over . . . a long period of time in the
creation and maintenance of criminal operations." See id. at 787.
Nor did it provide Rivera-Garcia with "opportunities for successive
escalating crimes as part of a sting operation." United States v.
Fanfan,
468 F.3d 7, 16 (1st Cir. 2006). And, as other courts have
noted, "the government can act as both supplier and buyer in sales
of illegal goods" without running afoul of the outrageous-
misconduct doctrine.
Mosley, 965 F.2d at 912.
Similarly, Rivera-Garcia is right that, in his case, the
government apparently did not take steps to ensure that he was
fully aware of the nature and extent of the transaction beforehand.
Cf. United States v. Gutierrez, 343 F.3d 415, 417, 442 (5th Cir.
2003) (no outrageous misconduct where agent posing as drug dealer
would meet with corrupt police officers and "tell [them] in no
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uncertain terms the specific nature of the transaction and the
amount of cocaine involved"). But he points to nothing in the
record before us (which, in light of his guilty plea, was not
developed with this claim in mind) suggesting that he could have
misunderstood what he was being asked to do. In fact, as noted
above, Rivera-Garcia stipulated to the fact that he and his
codefendant "agreed to provide 'armed protection' for a drug
transaction on behalf of a person who they both thought was a drug
trafficker." Thus, it would be difficult to conclude, on this
record, that the government overreached by duping Rivera-Garcia
into participating in the drug deal.
Nor does the record establish that the government coerced
his participation. Rivera-Garcia says that, upon arriving at the
apartment, he was locked in with the "drug dealers," leaving him
with the Hobson's choice of either staying until the drug deal was
over or attempting to shoot his way out, but that fact does not
explain how he came to be there in the first place. And the $2,000
that he was paid does not, on this record, seem like so
disproportionate an inducement as to imply governmental
overreaching. See Mosley, 965 F.2d at 912 (noting that "[v]ery
large financial inducements . . . have also amounted to sufficient
affirmative coercion to contribute to an outrageous conduct
holding," but that "coercion of any type must be particularly
egregious before it will sustain an outrageous conduct defense").
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In any event, we do not suggest that Rivera-Garcia could
not have prevailed on a properly supported, timely raised
outrageous-misconduct claim. But he failed to raise such a claim
below. That oversight not only impacts our standard of review on
appeal, but also means that he relinquished the opportunity to
develop evidentiary support for his claim, which is a significant
handicap under the highly contextual, fact-specific outrageous-
misconduct doctrine.3 See United States v. Nunez, 146 F.3d 36, 38
(1st Cir. 1998) (affirming the denial of a pretrial motion to
dismiss that lacked evidentiary support and noting that an
outrageous-misconduct determination "must be rooted in the record"
(quoting
Santana, 6 F.3d at 6) (internal quotation mark omitted)).
Thus, we are left with "the belated factual proffer contained in
[Rivera-Garcia]'s appellate brief,"
id., some of which, as noted,
contradicts the stipulation in his plea agreement. On the record
before us, it is neither "clear or obvious,"
Puckett, 556 U.S. at
135, that the government's conduct in this case was "shocking to
the universal sense of justice,"
Santana, 6 F.3d at 4 (quoting
Russell, 411 U.S. at 432). Because Rivera-Garcia cannot clear this
very high bar, he cannot show plain error, and we therefore reject
his outrageous-misconduct claim.
3
Of course, by pleading guilty, Rivera-Garcia also forsook
the chance to argue entrapment at trial. Cf. Luisi, 482 F.3d at 59
("[E]ven though the government's actions have risked giving the
defendant a viable entrapment claim, it is another thing entirely
to say that the conduct was 'outrageous.'").
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III. Conclusion
For the foregoing reasons, we affirm Rivera-Garcia's
conviction.
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