United States v. Rivera-Garcia , 527 F. App'x 11 ( 2013 )


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  •                Not for Publication in West's Federal Reporter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
    -2-
    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.
    -3-
    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.
    -4-
    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
    -5-
    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).
    -6-
    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
    -7-
    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
    -8-
    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.
    -9-
    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
    -10-
    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").
    -11-
    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.'").
    -12-
    III.   Conclusion
    For the foregoing reasons, we affirm Rivera-Garcia's
    conviction.
    -13-