U.S. v. Caraballo-Rodriguez

• Court: U.S. Court of Appeals — First Circuit
• Writing for the Court: Lynch
• Citation: U.S. v. Caraballo-Rodriguez, 480 F.3d 62 (1st Cir. 2007)
• Decision Date: 21 March 2007
• Docket Number: No. 03-1795.,03-1795.
• Parties: UNITED STATES of America, Appellee, v. Osvaldo CARABALLO-RODRIGUEZ, Defendant, Appellant.

480 F.3d 62

UNITED STATES of America, Appellee, v. Osvaldo CARABALLO-RODRIGUEZ, Defendant, Appellant.

No. 03-1795.

United States Court of Appeals, First Circuit.

Heard December 8, 2006.

Decided March 21, 2007.

Michael R. Hasse, by appointment of the court, for appellant.

Mariana E. Bauzá-Almonte, Assistant United States Attorney, with whom Rosa Emilia Rodriguez-Velez, United States Attorney, and Nelson Pérez-Sosa, Assistant United States Attorney, were on brief, for appellee.

Before BOUDIN, Chief Judge, TORRUELLA and LYNCH, Circuit Judges.

LYNCH, Circuit Judge.

Former Puerto Rico police officer Osvaldo Caraballo-Rodriguez (Caraballo) seeks on appeal to withdraw his plea of guilty to the crime of misprision of felony, 18 U.S.C. § 4. The plea was entered as part of a plea bargain under which much more serious drug conspiracy charges were dismissed. In order to withdraw his plea, Caraballo must, as he admits, meet the plain error standard of showing that, on the facts charged, no crime of misprision could be stated, that this error was plain at the time, that his substantial rights were affected (including that he would otherwise not have entered the plea agreement), and that the error implicated the fairness, integrity, or public reputation of judicial proceedings. This is a daunting task, and Caraballo does not accomplish it.

The prosecution's allegations were that Caraballo committed misprision by concealing and failing to report an underlying drug crime in which he was involved (1) when he gave accurate information in an anonymous tip to the Drug Enforcement Administration (DEA) about the crime, but refused to provide additional requested information, and (2) when he refused to provide additional information despite his duty as a Puerto Rico police officer to disclose crimes.

Caraballo makes a serious argument that this court should adopt an interpretation of the misprision statute, as many circuits have done, which requires that there be an affirmative act of concealment, and hold that the facts in this case cannot sustain such a conviction. We do not rule on that question because even if there were error, it is not plain, and Caraballo has not shown either that his substantial rights were affected or that entry of this plea undermined the integrity of the proceedings or constituted a miscarriage of justice.

I.

In a sting investigation in 2000-2001 named "Honor Perdido" or "Lost Honor," the FBI uncovered, and then the United States successfully prosecuted, a number of corrupt Puerto Rican police officers who assisted in the transportation and protection of illegal drugs in exchange for money. See United States v. Sánchez-Berríos, 424 F.3d 65, 71-72 (1st Cir.2005); United States v. Villafane-Jimenez, 410 F.3d 74, 78 (1st Cir.2005); United States v. Vázquez-Guadalupe, 407 F.3d 492, 494 (1st Cir.2005); United States v. Flecha-Maldonado, 373 F.3d 170, 172-73 (1st Cir. 2004).

One of the officers netted was Caraballo. He was indicted and arrested in August 2001 in Cr. No. 01-613 for providing armed protection for a successful drug transport of more than five kilograms of cocaine. A second superseding indictment named sixteen defendants in total, charging Caraballo and others with (1) conspiracy to knowingly and intentionally possess with intent to distribute more than five kilograms of cocaine, in violation of 21 U.S.C. § 846; (2) attempt to distribute more than five kilograms of cocaine, in violation of 21 U.S.C. § 846; and (3) aiding and abetting in knowingly carrying firearms during and in relation to a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1)(A)(i). There was also a forfeiture count against all sixteen defendants under 21 U.S.C. § 853.

The second superseding indictment charged that the conspirators "use[d] their official positions as law enforcement officers and . . . use[d] official government vehicles in order to ensure that no law enforcement agency or competing drug organizations would attempt to stop the vehicle in which the cocaine was concealed and seize the same." It also alleged that the defendants "possess[ed] and carr[ied] firearms in order to protect the shipments of multiple kilogram[s] of purported cocaine." If convicted on the drug conspiracy or attempt charge, Caraballo faced a statutory minimum of ten years of imprisonment. 21 U.S.C. §§ 841(b)(1)(A), 846. Defendant faced at least an additional five years if convicted of the firearms charge. 18 U.S.C. § 924(c)(1)(A)(i).

Although Caraballo agreed to help protect a drug transport, he took some unusual steps. He first partially tipped the DEA to the existence of the drug conspiracy. He then personally participated in the conspiracy. And he later met with the DEA to offer information and confess. Specifically, on May 24, the day before he assisted with the transfer of some ten kilograms of what was purported to be cocaine he placed an anonymous call to the DEA. Caraballo indicated that he had information about police officers involved in drug trafficking, and stated that he had been approached by a female officer about participating in a drug smuggling operation. On questioning from DEA agents, he refused to give information that might identify himself or his co-conspirators, or to furnish specific information about the plot. He withheld information he knew about the drug transport that might have enabled the federal agents to interrupt the conspiracy. In truth, since this was a sting operation, the DEA had no desire to interrupt the conspiracy.

Close to two weeks after participating in the May 25 drug transport, on June 8, Caraballo contacted the DEA again, indicating that he wanted to provide information about police corruption and drug trafficking. Later that day, Caraballo met with two federal agents and described the transport of drugs that took place two weeks earlier. Caraballo provided names of co-conspirators, admitted his own participation in the drug transport, and stated that he received $4,000 for his efforts. Caraballo agreed to cooperate with the FBI. The record does not establish whether he made full disclosure. It is clear that his later disclosure to authorities was not made as soon as possible after he had knowledge of the crime. Despite his cooperation in June, Caraballo was still indicted in August.

After he was charged, Caraballo, represented by counsel, negotiated a plea agreement with the prosecution. He received a number of benefits. The government agreed to a new charge, brought under 18 U.S.C. § 4, of misprision of felony, to which Caraballo agreed to waive indictment and plead guilty. This was a considerably less significant charge than the drug conspiracy, attempt, and firearms charges.

There was another benefit to Caraballo as well. For the limited purpose of the plea agreement, the parties stipulated that Caraballo would be held accountable for having knowledge of, and concealing, the underlying felony of conspiracy to distribute at least 400 grams but less than 500 grams of cocaine. Under the earlier drug conspiracy indictment, Caraballo had been charged with being accountable for more than five kilograms of cocaine, not a mere 400 to 500 grams.

And there were other benefits to Caraballo. The parties also agreed that they would jointly recommend a sentence of imprisonment equivalent to the time Caraballo spent in pre-trial detention. Upon imposition of sentence, the United States agreed to move to dismiss the charges pending against defendant in Cr. No. 01-613. The agreement, signed on December 4, 2002 by Caraballo, who was represented by counsel, acknowledged that "he is pleading guilty freely and voluntarily because he is in fact guilty [of the crime of misprision]."

II.

The misprision information, filed in Cr. No. 02-463 on the same day that defendant signed the plea agreement, alleged that Caraballo had knowledge of a conspiracy to distribute cocaine but "did conceal the same by withholding information and the identities of conspirators in communications with federal law enforcement agents, and did not as soon as possible make known the conspiracy to some . . . authority." On the misprision charge, Caraballo's maximum term of imprisonment was three years, his maximum fine was $250,000, and the maximum term of supervised release was one year.

The plea agreement contained a signed stipulation of facts, as follows:

1. In November 2000, Arturo Ortiz-Colon, a former police officer cooperating with government investigators, told DIANA DIAZ-CRISPIN, then a police officer of the Puerto Rico Police Department, that a Colombian drug trafficker referred to as "El Viejo" sought to hire police officers to escort and protect multiple kilogram shipments of cocaine. DIANA DIAZ-CRISPIN agreed to escort and protect the cocaine shipments, and additionally agreed to recruit other police officers to escort shipments of cocaine.

2. In May 2001, . . . DIANA DIAZ-CRISPIN invited OSVALDO CARABALLO-RODRIGUEZ to assist in [the] transportation and protection of a cocaine shipment. DIANA DIAZ-CRISPIN and Arturo Ortiz Colon informed OSVALDO CARABALLO-RODRIGUEZ of the plan to escort a shipment of cocaine.

3. Although a police officer, OSVALDO CARABALLO-RODRIGUEZ did not timely report the conspiracy to distribute cocaine to other police officers. Although OSVALDO CARABALLO-RODRIGUEZ spoke with agents of the Drug Enforcement Administration prior to the transport of the purported cocaine, he did so anonymously and withheld information that might have enabled the federal agents to interrupt the conspiracy. More specifically, when agents asked OSVALDO CARABALLO-RODRIGUEZ for information regarding the conspiracy, OSVALDO CARABALLO-RODRIGUEZ at that time declined to identify the conspirators or to furnish specific information regarding their plot.

4. On May 25, 2001, DIANA DIAZ-CRISPIN and other members of her conspiracy successfully transported packages purported to contain cocaine from one point...