U.S. v. Medina-Roman

• Decision Date: 12 July 2004
• Docket Number: No. 02-2392.,02-2392.
• Citation: 376 F.3d 1
• Parties: UNITED STATES of America, Appellee, v. Keila MEDINA-ROMÁN, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 1

376 F.3d 1

UNITED STATES of America, Appellee, v. Keila MEDINA-ROMÁN, Defendant, Appellant.

No. 02-2392.

United States Court of Appeals, First Circuit.

Heard March 3, 2004.

Decided July 12, 2004.

Appeal from the United States District Court for the District of Puerto Rico, José Antonio Fusté, Chief Judge.

Bruce J. McGiverin, was on brief, for appellant.

David Rivera, Assistant United States Attorney, with whom H.S. García, United States Attorney, Sonia I. Torres-Pabón, Assistant United States Attorney, Chief, Criminal Division, and Jenifer Y. Hernández-Vega, Assistant United States Attorney, were on brief, for appellee.

Before TORRUELLA, Circuit Judge, COFFIN, Senior Circuit Judge, and LIPEZ, Circuit Judge.

TORRUELLA, Circuit Judge.

Keila Medina-Román ("Medina") seeks an opportunity to withdraw her plea of guilty to the charge of aiding and abetting the carrying of a firearm in the commission of a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1).¹ Medina challenges the district court's colloquy under Fed.R.Crim.P. 11, arguing that she was inadequately informed of the elements of the crime to which she pleaded guilty. Because Medina did not object to the Rule 11 proceedings below, we review under the plain error standard. See United States v. Vonn, 535 U.S. 55, 59, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002). After careful review, we affirm Medina's conviction.

I.

Medina was a police officer for the Commonwealth of Puerto Rico when she became involved in a conspiracy to distribute controlled substances. The operation involved the transport for payment of what Medina and her co-defendants believed to be a quantity of cocaine. On November 11, 2001, Medina was indicted on seven counts along with three co-defendants, including her husband Richard Díaz-Baerga. Arrested on November 27th, Medina pleaded not guilty to all counts at her arraignment three days later. After the government filed motions designating evidence, Medina filed for a change of plea hearing, which was granted.

During the plea colloquy at issue, Medina pleaded guilty to Counts One, Two, and Seven, pursuant to a written plea agreement with the government filed that day.² With respect to Count Two, charging Medina and Díaz-Baerga with aiding and abetting each other in carrying firearms in relation to a drug trafficking offense, Medina informed the district court that although she was aware that there were weapons in the conspiracy, she herself never carried a weapon.

The question before us is whether the colloquy that ensued demonstrates that the district court "inform[ed] [Medina] of, and determine[d] that [she] underst [ood] ... the nature of the charge to which the plea [was] offered," Fed.R.Crim.P. 11(c)(1), and if not, whether any error commands the exercise of our discretion to give Medina an opportunity to withdraw her plea.

II.

Rule 11(c)(1)³ establishes a procedure for district courts to ensure that a plea of guilty is constitutionally valid. Above all else, a plea must be "`voluntary' and `intelligent.'" Bousley v. United States, 523 U.S. 614, 618, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) (quoting Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970)). The Supreme Court has "long held that a plea does not qualify as intelligent unless a criminal defendant first receives `real notice of the true nature of the charge against [her], the first and most universally recognized requirement of due process.'" Id. (quoting Smith v. O'Grady, 312 U.S. 329, 334, 61 S.Ct. 572, 85 L.Ed. 859 (1941)). Reading the indictment to the defendant is not enough if "the District Court subsequently misinformed [her] as to the elements of a § 924(c)(1) offense." Id.

The first step, then, is to ascertain the elements the government would have to prove to convict Medina under Count Two. The parties direct us to superficially divergent circuit authority which we must reconcile in order to proceed. The government contends that its burden at trial would be to "prove that the accomplice must have known `to a practical certainty' that a firearm would be used or carried during a qualified offense."⁴ To support this proposition, the government relies primarily on United States v. Balsam, 203 F.3d 72 (1st Cir.2000), and United States v. DeMasi, 40 F.3d 1306 (1st Cir.1994). Medina, on the other hand, draws our attention to United States v. Luciano-Mosquera, 63 F.3d 1142 (1st Cir.1995), to support her contention that the government carries the burden of not one, but two, elements on this count: it must show the defendant's knowledge of the co-defendant's "carrying" of a firearm and, further, that the defendant has "taken some affirmative action that facilitated violation of § 924(c)(1)." Id. at 1150.

Our cases have failed to make transparent the relation between these two articulations, and as we must begin our analysis of the Rule 11 proceedings with an understanding of what Medina should have understood the government to be required to prove at trial, we will take the opportunity to discuss the matter here. The roots of modern doctrines of aiding and abetting liability can be traced to Judge Learned Hand's famous formulation in United States v. Peoni, 100 F.2d 401, 402 (2d Cir.1938), and the Supreme Court's endorsement of that formulation in Nye & Nissen v. United States, 336 U.S. 613, 619, 69 S.Ct. 766, 93 L.Ed. 919 (1949). As stated by the Court:

In order to aid and abet another to commit a crime it is necessary that a defendant "in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed."

Id. (quoting Peoni, 100 F.2d at 402). That concise expression has been the source of multifarious approaches to the difficult task of determining what the law requires to convict an accomplice as a principal. See generally Baruch Weiss, What Were They Thinking?: The Mental States of the Aider and Abettor and the Causer under Federal Law, 70 Fordham L.Rev. 1341 (2002). We have recognized that the requisite burden of proof can vary from one aiding and abetting crime to another. See, e.g., United States v. Spinney, 65 F.3d 231, 236-37 (1st Cir.1995) (noting that conviction for aiding and abetting firearm charge under 18 U.S.C. § 2113(d) requires lesser degree of knowledge than under 18 U.S.C. § 924(c)). We are concerned here with the crime of aiding and abetting the use or carrying of a firearm in violation of 18 U.S.C. § 924(c)(1).⁵

Our cases treating the subject have generally involved a claim that the government introduced insufficient evidence to support a conviction. In United States v. Torres-Maldonado, 14 F.3d 95 (1st Cir.1994), we began our analysis by stating that, "[i]t is well settled in the case law interpreting section 924(c)(1) that an `accomplice must have known to a practical certainty that the principal would be [using] a gun.'" Id. at 103 (quoting United States v. Powell, 929 F.2d 724, 728 (D.C.Cir.1991)). The D.C. Circuit's holding in Powell, which we followed in Torres-Maldonado, explains that the "[practical certainty] standard puts the accomplice on a level with the principal, requiring the same knowledge for both." Powell, 929 F.2d at 727 (citations omitted). By recognizing that when an accomplice is practically certain the principal will be carrying or using a gun he bears guilt for the carrying or use of that weapon as if he were the principal, Powell invokes the Peoni principle: if this accomplice is participating in the predicate crime with a practical certainty that his co-defendant is also violating § 924(c)(1), then the elements are present to infer that regarding the carrying or use of the firearm the abettor has "in some sort associate[d] himself with the venture ..., he participate[d] in it as in something that he wishe[d] to bring about, [and] that he [sought] by his action to make it succeed." Nye & Nissen, 336 U.S. at 619, 69 S.Ct. 766.

In Luciano-Mosquera, 63 F.3d 1142, we were faced with several defendants challenging, inter alia, the sufficiency of the evidence on aiding and abetting § 924(c) charges. The case involved a major drug delivery to a Puerto Rico beach. After a raid, officers arrested a number of men and found an M-16 underneath a jeep where several of them were hiding. After citing to the Peoni formulation (as expressed in First Circuit case law), we explained that

[m]ere association with the principal, or mere presence at the scene of a crime, even when combined with knowledge that a crime will be committed, is not sufficient to establish aiding and abetting liability. The defendant must have taken some affirmative action that facilitated violation of § 924(c)(1).

Id. at 1150 (emphasis supplied) (citation omitted). This language indicates that proof of aiding and abetting the carrying of a firearm includes a distinct facilitation element. "Of course, knowledge that a gun would be carried is also required." Id. (citing Torres-Maldonado, 14 F.3d at 103, and DeMasi, 40 F.3d at 1316).

The circumstances in Luciano-Mosquera required us to delimit a reasonable factfinder's capacity to infer aiding and abetting the carrying or use of a firearm based on involvement in a drug or violent conspiracy. As to defendant Lugo-Maya we could not find the basis for the necessary inferences:

There was no evidence ... showing that [Lugo-Maya] took any step to assist the carrying of the M-16 in relation to the drug offense. Lugo-Maya was not at the meeting where the M-16 was shown. The government presented no evidence that Lugo-Maya took any steps to procure or otherwise supply the weapons or ammunition. He was also nowhere near the weapon at the time of his arrest. There was simply insufficient evidence to show beyond a reasonable doubt that he either carried or aided and abetted the carrying of the M-16.

Id. Without addressing whether Lugo-Maya possessed the requisite knowledge, we...