United States v. Otero , 277 F. App'x 12 ( 2008 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 07-1555
UNITED STATES OF AMERICA,
Appellee,
v.
FLORIAN OTERO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Torruella, Circuit Judge,
Selya and Stahl, Senior Circuit Judges.
Rafael F. Castro Lang, by appointment of the court, for
appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa and Julia M. Meconiates, Assistant United States
Attorneys, on brief for appellee.
May 15, 2008
Per Curiam. Florian1 Otero pleaded guilty to one count
of aiding and abetting the distribution of five or more kilograms
of cocaine in violation of 21 U.S.C. § 841(a)(1) and one count of
carrying a firearm during and in relation to a drug-trafficking
offense in violation of 18 U.S.C. § 924(c)(1). On February 22,
2007, the district court sentenced Otero to a term of eighty-four
months' imprisonment for the drug-trafficking offense and sixty
months' imprisonment for the firearm offense, to be served
consecutively. Otero appeals, arguing that his conviction must be
reversed because the magistrate judge who took his guilty plea
failed to inform him of the elements of the drug-trafficking
offense.
The following facts are drawn primarily from the
uncontested portions of the Presentence Investigation Report.
Before his arrest, Otero served as a municipal police officer in
Vega Baja, Puerto Rico. During the summer of 2005, the Drug
Enforcement Administration and the Federal Bureau of Investigation
conducted a joint investigation of corrupt police officers involved
in illegal drug trafficking in northern Puerto Rico. The agencies
set up a sting operation in which undercover agents offered
officers money in exchange for assistance transporting the drugs.
1
It is not entirely clear from the record whether the
defendant's name is correctly spelled "Floiran" or "Florian." We
opt for "Florian," the version which appellant has utilized on
appeal.
-2-
In exchange for $3,000.00, Otero escorted a load of what he
believed to be illegal drugs from Vega Alta to Mantí, Puerto Rico.
Otero claims that, after rejecting four previous solicitations to
provide escort services, he accepted the fifth such invitation
because he needed money to finance an on-going custody dispute
concerning his three minor children.
Rule 11 of the Federal Rules of Criminal Procedure
requires a court to conduct a plea colloquy to ensure that a
defendant has been fully informed of his rights and ascertain
whether his plea is knowing and voluntary. United States v. Smith,
511 F.3d 77, 85 (1st Cir. 2007). The court must, inter alia, make
certain that the defendant understands "the nature of each charge
to which [he] is pleading." Fed. R. Crim. P. 11(b)(1)(G). While
a lower court may not discharge its obligations simply by obtaining
"a defendant's acknowledgment of signed agreements or other written
documents," Smith, 511 F.3d at 85 (citation omitted), we do not
require that the court mechanically recite any fixed incantation.
United States v. Cotal-Crespo, 47 F.3d 1, 5 (1st Cir. 1995).
Rather, viewing the record as a whole, we examine the totality of
the circumstances surrounding the plea to determine whether the
objectives of the procedural safeguards imposed by Rule 11 have
been satisfied. See United States v. Negron-Narvaez, 403 F.3d 33,
39 (1st Cir. 2005).
-3-
Because Otero did not object during or at the conclusion
of his plea hearing, we review the magistrate judge's purported
failure to follow the procedures prescribed by Rule 11 only for
plain error.2 See United States v. Vonn, 535 U.S. 55, 59 (2002);
Smith, 511 F.3d at 85. To establish plain error, a defendant must
show the existence of (1) an error; (2) that is plain; (3) that
affected his substantial rights; and (4) seriously affects the
fairness, integrity, or public reputation of judicial proceedings.
United States v. Roy, 506 F.3d 28, 30 (1st Cir. 2007) (citing
United States v. Olano, 507 U.S. 725, 732 (1993)). In the Rule 11
context, satisfying the third prong of this test requires a
defendant to demonstrate a reasonable probability that, but for the
alleged error, he would not have pleaded guilty. United States v.
Caraballo-Rodriguez, 480 F.3d 62, 76 (1st Cir. 2007). Obviously,
we need not credit a defendant's self-serving representations to
this effect. See United States v. Matos-Quinones, 456 F.3d 14, 23
(1st Cir. 2006).
Otero asserts that the undercover agent's3 repeated
invitations for him to participate in the drug-trafficking scheme
constitute entrapment, negating intent. Thus, Otero postulates
2
We decline to address the parties' conflict regarding the
application of the waiver of appeal signed by Otero because doing
so is unnecessary to our conclusion.
3
Otero suggests that he was solicited by a government
informant rather than an agent. Under these circumstances, any
factual discrepancy is inconsequential.
-4-
that, if the magistrate judge had informed him of the intent
element of the charged offense, he would not have pleaded guilty.
While it would have been preferable had the magistrate judge
explicitly described the elements of the charged offenses, we
detect no plain error requiring us to vacate Otero's conviction.
First, the record substantiates that Otero was almost
certainly made aware of the requirement that the Government prove
intent. The indictment explicitly alleged the intent element of
the drug-trafficking offense. At the change of plea hearing, Otero
acknowledged that he received a copy of the indictment, reviewed
it, and discussed it with counsel. Likewise, the plea agreement
also indicated the requirement of intent in relation to the drug-
trafficking crime. At the change of plea hearing, Otero
acknowledged that he had signed the plea agreement, discussed it
with his attorney, and understood it to represent his agreement
with the Government. Defense counsel informed the court that he
had translated the plea agreement into Spanish for his client.
Moreover, we cannot help but observe that "drug trafficking [is
not] an obscure crime to a policeman." United States v. Padilla-
Gallarza, 351 F.3d 594, 598 (1st Cir. 2003). In sum, we simply do
not credit Otero's assertion that he was unaware that the
Government must prove intent to obtain a conviction under 21 U.S.C.
§ 841(a)(1).
-5-
Second, although the record has not been fully developed,
Otero's evidence of entrapment appears to be minimal. "Entrapment
is an affirmative defense." United States v. Shinderman, 515 F.3d
5, 14 (1st Cir. 2008). To make out a prima facie claim of
entrapment sufficient to warrant a jury instruction, a defendant
must show both improper inducement by the government and a lack of
predisposition to commit the offense on his part. Id. "Improper
inducement consists of more than providing an opportunity to commit
a crime . . . ." United States v. Turner, 501 F.3d 59, 70 (1st
Cir. 2007). "The something 'more' generally consists of excessive
pressure by the government agent on the defendant or the
exploitation of a defendant's noncriminal motive . . . ." Id.Here, Otero has not satisfied either prong. The fact
that the agent may have asked Otero to participate in the scheme on
multiple occasions does not necessarily equate to improper
inducement. See United States v. Pratt, 913 F.2d 982, 989 (1st
Cir. 1990) (rejecting defendant's contention that he was entitled
to jury instruction regarding entrapment given evidence of multiple
phone calls from the government agent, even coupled with
defendant's failure to return phone calls and appear at scheduled
meetings); accord United States v. Acosta, 67 F.3d 334, 338 (1st
Cir. 1995) (refusing to hold inducement improper as a matter of law
where informant made repeated solicitations to defendant).
Generally, we have emphasized the method in which the inducement
-6-
was attempted, rather than the sheer number of solicitations that
occurred, in determining whether inducement in a particular case
was improper. See United States v. Gendron, 18 F.3d 955, 961-62
(1st Cir. 1994) (listing cases finding improper inducement); see
also United States v. Teleguz, 492 F.3d 80, 84 (1st Cir. 2007)
(explaining that improper inducement cannot be shown by
demonstrating enthusiasm and persistence of informant). Here,
Otero has furnished no description of the circumstances surrounding
the alleged solicitations that would indicate any undue
coerciveness. The bare assertion that he declined four previous
invitations to commit the offense, standing alone, is not enough.
Additionally, Otero's purported prior refusals are not
conclusive as to his supposed lack of predisposition to commit the
crime. Rather, Otero's own statements suggest the probability
that, while he may not have been predisposed to commit the offense
initially, his need for money to fund a bitter custody battle with
his ex-wife made him receptive to the crime. Significantly, Otero
does not allege that the Government was ever aware of his financial
difficulties. United States v. Pena, 201 F.3d 429, 1999 WL
1319183, at *7 (1st Cir. Nov. 16, 1999) (unpublished table
opinion). Because there is no suggestion that the Government
intentionally exploited, much less precipitated, Otero's economic
straits, he cannot transform his motive for committing the crime
into an affirmative defense. See id. (rejecting entrapment defense
-7-
where defendant testified that he needed money to provide his
children with school books); United States v. Panet-Collazo, 960
F.2d 256, 259 (1st Cir. 1992) (explaining that "[e]ntrapment does
not blossom whenever a person succumbs to . . . the lure of easy
money" to ensure family's financial security (citation omitted)
(first alteration in original)). Undoubtedly, many defendants
decide to break the law only after suffering pecuniary hardship,
but that does not ordinarily absolve them of culpability.
Had this case gone to trial, it is possible, though
unlikely, that Otero would have adduced sufficient evidence to
warrant a jury instruction on entrapment. See Acosta, 67 F.3d at
338. Otero has failed, however, to demonstrate that the undercover
agent's solicitations to him constitute entrapment as a matter of
law. He has fallen well short of demonstrating a reasonable
probability that he would have pleaded not guilty had the
magistrate judge explained the intent element of the offense.
Accordingly, we reject Otero's plain error challenge
based on his Rule 11 proceeding. The record reflects that he was,
in fact, aware of the intent element of the drug-trafficking
offense. Additionally, he has not presented adequate evidence of
entrapment to overcome the high hurdle imposed by the plain error
standard. For the foregoing reasons, we affirm Otero's convictions
and sentences.
Affirmed.
-8-