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Jurisdiction: Court of Appeals for the First Circuit
Decision Date: 6/25/2013

STATES

                                                                                                                                                                                                                                                                                                                                                                                                                            FEDERAL

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        United States v. Rivera-Garcia United States v. Rivera-Garcia (1st Cir., 2013)

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        UNITED STATESOF AMERICA, Appellee,
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        v.
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        WILLIAM RIVERA-GARCIA, Defendant, Appellant.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        No. 11-2299

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        United States Court of Appeals For the First Circuit

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        June 25, 2013

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        UNITED STATESOF AMERICA, Appellee, v. WILLIAM RIVERA-GARCIA, Defendant, Appellant.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        No. 11-2299

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        United States Court of Appeals For the First Circuit

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        June 25, 2013

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Not for Publication in West's Federal Reporter
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        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.

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                STAHL Circuit Judge. After being ensnared in a law enforcement scheme aimed at exposing corrupt police officers in Pen. & Wis., 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:

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        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.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 4

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                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:

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 5

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                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 'created' the crime or to have 'coerced' 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

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 6

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        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).

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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 barring 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

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 8

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        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, "the 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.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                "Taking 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

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 10

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        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 "involved 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

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 11

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        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 "very 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. 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.

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        III. Conclusion

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                For the foregoing reasons, we affirm Rivera-Garcia's conviction.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                ---

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                --- Notes:

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 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).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 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.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 Of course, by pleading guilty, Rivera-Garcia also forsook the chance to argue entrapment at trial. Cf. Luisi 482 F. 3d at 59 ("Even 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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