Badamo v. United States ( 1999 )

USCA1 Opinion

       [NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]

                 United States Court of Appeals

                     For the First Circuit











No. 99-1081



                        VITO BADAMO, JR.,



                      Petitioner, Appellant,



                                v.



                          UNITED STATES,



                      Respondent, Appellee.







           APPEAL FROM THE UNITED STATES DISTRICT COURT



                 FOR THE DISTRICT OF RHODE ISLAND



           [Hon. Ernest C. Torres, U.S. District Judge]







                              Before



                    Selya, Boudin and Lynch,

                        Circuit Judges.











     Vito Badamo, Jr. on brief pro se.

     Margaret E. Curran, United States Attorney, and Donald C.

Lockhart, Assistant United States Attorney, on brief for appellee.











SEPTEMBER 16, 1999

















            Per Curiam.  In May 1995, Vito Badamo, Jr. ("Badamo

  Jr.") pled guilty to one count of possession with intent to

  distribute cocaine, 21 U.S.C. § 841, and one count of using and

  carrying a firearm during and in relation to a drug trafficking

  crime and aiding and abetting that firearm offense, 18 U.S.C.

  §§ 924(c) and 2.  He did not file any direct appeal.  In March

  1997, he filed a § 2255 motion, alleging that his firearm

  conviction should be vacated in light of Bailey v. United

  States, 516 U.S. 137 (1995).  That motion was denied, see

  Badamo v. United States, 17 F.Supp.2d 60 (D. R.I. 1998), and

  Badamo Jr. appealed.  The district court granted a certificate

  of appealability (COA) on the issue "whether there was

  sufficient evidence in the record to sustain petitioner's plea

  to aiding and abetting in the use or carrying of a firearm

  during and in relation to a drug trafficking offense; more

  specifically, whether the petitioner facilitated the use and/or

  carrying of a firearm."  We affirm.

            The facts underlying the offenses are amply recited

  in the district court's opinion, Badamo v. United States, 17

  F.Supp.2d at 61, and in our own opinion affirming the district

  court's decision in appeals filed by two of Badamo Jr.'s

  codefendants, Santoro v. United States, ___ F.3d ___, 1999 WL

  691997, at *1, (1st Cir. June 8, 1999) (per curiam).  We refer

  the reader to that material and do not repeat it here.

            Badamo Jr. must show cause and prejudice for failing

  to raise on direct appeal the issue as to the sufficiency of

  the evidence for aiding and abetting.  The fact that Bailey was

  not decided until after his conviction and the expiration of

  the appeal period is not "cause" to excuse the procedural

  default because Bailey did not alter the required elements for

  aiding and abetting, see, e.g., Wright v. United States, 139

  F.3d 551, 552 (7th Cir. 1998), and, although Bailey clarified

  that "use" means active employment, two of his codefendants

  actively employed firearms.

            Even if unable to establish cause and prejudice,

  Badamo, Jr. could, nonetheless, obtain collateral relief from

  his § 924(c) conviction if he can show that he is "actually

  innocent" of that offense.  Bousley v. United States, 523 U.S.

  at 623.  But to do so, he "must demonstrate that, in light of

  all the evidence, it is more likely than not that no reasonable

  juror would have convicted him."  Id. (citations and internal

  quotation marks omitted).  This standard, which requires "a

  stronger showing than that needed to establish prejudice,"

  reserves collateral review for the "truly 'extraordinary'"

  case, "while still providing petitioner a meaningful avenue by

  which to avoid a manifest injustice."  Schlup v. Delo, 513 U.S.

  298, 327 (1995) (internal citation omitted).  Badamo Jr. has

  not met this standard.

            As the district court accurately recited, a

  conviction for aiding and abetting a § 924(c) offense requires

  a showing that a defendant knew a firearm would be used or

  carried by another and willingly took some action to facilitate

  the use or carriage.  See United States v. Bennett, 75 F.3d 40,

  45 (1st Cir.), cert. denied, 519 U.S. 845 (1996).  The district

  court's conclusion that Badamo, Jr. knew that firearms would be

  used or carried is unassailable.  Badamo Jr.'s unadorned

  contention to the contrary is not persuasive.  He was present

  at the meeting in which firearms were discussed.  He was

  present when codefendant Eugenio was handed a weapon and when

  Eugenio gave the weapon to one of the robbers as Eugenio opened

  the "stash house" door.  And, as the court remarked, "the

  nature of the crime itself should have alerted them to the

  likelihood that the firearms would be actively employed in

  wresting possession of a large quantity of drugs from what they

  believed to be a group of drug traffickers."  Badamo v. United

  States, 17 F.Supp. at 62.

            There is also sufficient evidence to support a

  conclusion that Badamo Jr. willingly took some action to

  facilitate the use or carrying of firearms. He was in

  attendance at a planning meeting and concedes that the

  defendants agreed to pose as police officers.  Most

  significantly, he recruited his cousin Favaloro to participate

  in the job.  Police officers invariably carry firearms as well

  as badges and handcuffs (or so a jury could find).  Those

  posing as police officers would do likewise (or so a jury could

  find).  In fact, Favaloro carried and brandished a firearm and

  New York City police badges and handcuffs were recovered from

  the routes along which Badamo Jr. and others fled.  A

  reasonable juror could conclude that, in recruiting Favaloro to

  participate in a plan to pose as a police officer, Badamo Jr.

  facilitated the use and carrying of a firearm during and in

  relation to the drug trafficking crime.

            On appeal, Badamo Jr. also contends that his guilty

  plea was induced by an "erroneous instruction" by the district

  court.  Although he has not elaborated upon this allegation,

  we presume that Badamo Jr. is complaining that, although he was

  told that, in order to prove aiding and abetting of the use or

  carrying of a firearm during and in relation to a drug

  trafficking crime, the government had to prove that a defendant

  knew a firearm was going to be used or carried during and in

  relation to the drug trafficking crime, he was not informed

  that the government would also have to prove that a defendant

  willingly took some action to facilitate the use or carrying.

  We will assume, without deciding, that such a claim would be a

  non-technical violation of Fed. R. Crim P. 11 and, thus,

  cognizable in a § 2255 proceeding. Cf. United States v.

  Timmreck, 441 U.S. 780 (1979).

            Badamo Jr., however, did not raise this claim of a

  defective plea colloquy in his § 2255 motion.  He first raised

  it in his COA request to the district court and it was not the

  issue upon which the district court granted a COA.  Cf. Bui v.

  DiPaolo 170 F.3d 232, 237-38 (1st Cir. 1999) (holding that, in

  post-Bui cases, a petitioner must request from the court of

  appeals a complementary COA in order to obtain appellate review

  of an issue not certified by the district court), petition for

  cert. filed (U.S. June 14, 1999) (No. 98-9840).  We will

  assume, without deciding, that, despite his failing to raise

  the issue in his § 2255 motion, the issue was sufficiently

  presented in the district court by his raising it in his

  request for a COA.  And, as Badamo Jr.'s appeal was pending

  when Bui was decided, we will not fault him for failing to ask

  for a complementary COA.  See Bui v. DiPaolo, 170 F.3d at 238.

  In any event, however, a procedural default remains.  Badamo

  Jr. has failed to establish cause to excuse his failure to

  raise this issue on direct appeal.  Cf. United States v.

  Romero, 32 F.3d 641, 652 (1st Cir. 1994) (finding no plain

  error when defendants failed to object to the court's alleged

  failure to instruct on one element of the offense).  And, as

  outlined supra, Badamo Jr. can not show "actual innocence."

            The judgment of the district court is affirmed.