United States Court of Appeals
For the First Circuit
No. 98-2007
ANTHONY SANTORO,
Petitioner, Appellant,
v.
UNITED STATES,
Respondent, Appellee.
No. 98-2016
JOSE ORDONEZ,
Petitioner, Appellant,
v.
UNITED STATES,
Respondent, Appellee.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
Before
Stahl, Circuit Judge,
Campbell, Senior Circuit Judge,
and Lynch, Circuit Judge.
Anthony Santoro on brief pro se.
Jose Ordonez on brief pro se.
Margaret E. Curran, United States Attorney, Alicia M. Milligan
and Charles A. Tamuleviz, Assistant United States Attorneys, on
brief for appellee.
June 8, 1999
Per Curiam. Anthony Santoro and Jose Ordonez have
each appealed the denial of his respective motion filed in the
district court pursuant to 28 U.S.C. 2255. See Badamo v.
United States, 17 F.Supp.2d 60 (D. R.I. 1998). The district
court granted a certificate of appealability (COA) to each
petitioner as to 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." After review of the record and the parties'
briefs, we affirm the denial of the 2255 motions.
Santoro, Ordonez, and four others attempted to rob a
"stash house" in Providence, Rhode Island, where, they were
told by an undercover agent ("UA"), they would find drugs and
money. Ordonez recruited the others from New York to pose as
police officers to make the robbery appear to be a police raid.
In actuality, the "stash house" was a government-owned
warehouse in which law enforcement agents had planted some
cocaine and lay in wait. When Santoro and the others (minus
Ordonez, who waited at the rendevous motel) entered the
warehouse, they were confronted by the (real) police. All,
including Ordonez, were subsequently apprehended. One of the
petitioners' cohorts, James Favaloro, was shot and killed by
the police, after pointing a fully loaded and operable handgun
towards the officers. Two others were wounded. A second
loaded and operable gun was recovered from participant, Joseph
Vito Badamo, Sr.. In addition, the police recovered two New
York City police badges and a pair of handcuffs. It is
conceded that neither Santoro nor any other participant who
traveled to the warehouse fired any shot.
Santoro and Ordonez each 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. Neither filed
a direct appeal. Subsequently, each filed a 2255 motion,
arguing that his 924(c) conviction should be vacated, in
light of Bailey v. United States, 516 U.S. 137 (1995), because
he did not actively employ, and there was no evidence that he
had carried, a firearm during and in relation to the drug
trafficking crime. The district court denied the 2255
motions, concluding that there were sufficient facts to support
a finding that the petitioners aided and abetted the 924(c)
offense, but granted a COA on this issue.
As an initial matter, each petitioner has not shown
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
their convictions 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 the co-defendants actively employed
firearms.
Santoro and Ordonez each also allege in his appellate
brief that the district court erroneously advised him of the
elements of an aiding and abetting charge at the plea hearing.
In fact, it was the prosecutor who, at the direction of the
court, described the elements of the offenses. The alleged
error is one of omission, i.e., a failure to inform the
petitioners that the government would have to prove that he
willingly took some action to facilitate the use or carrying of
a firearm. But, in any event, assuming 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), neither Santoro nor
Ordonez raised this claim of a defective plea colloquy in his
2255 motion. It is not properly before us, therefore. And,
more importantly, the same procedural default remains. They
have failed to establish cause to excuse their 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).
Even if unable to establish cause and prejudice,
Santoro and/or Ordonez 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,
118 S. Ct. at 1611. 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). Neither Santoro nor Ordonez has met this standard.
Santoro and Ordonez were at the meetings where the
logistics of the plan were discussed and references to weapons
were made. While Ordonez contends that the October planning
meetings were conducted in English, in which he is not well-
versed, he concedes that the "firearms were mentioned" at the
September meeting which he alone attended with the UA and the
confidential informants. He thereafter arranged for the other
defendants to become participants in the plan, specifically as
(phony) police officers. 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. Ordonez's orchestration of a plan with
imposter police officers and his recruitment of them,
therefore, suffices as facilitating the use and carriage of the
firearms.
Santoro accompanied the other defendants to the stash
house and, whether or not he, himself, used or carried a
firearm, he acted as a lookout for the others and, thus,
facilitated his co-defendants' use and carriage of the
firearms. "It could be said that a defendant who is present
but unarmed during the commission of a crime may ... by the
division of labor ... make it easier for another to carry a
firearm and therefore aid and abet that act." United States v.
Medina, 32 F.3d 40, 47 (2d Cir. 1994); see also United States
v. Nelson, 137 F.3d 1094, 1104 (9th Cir.) (unarmed participant
in store robbery, who ordered store employees not to move nor
hit any buttons, thus allowing armed participant to enter store
safely, directly facilitated or encouraged the use of the
firearm), cert. denied, 119 S. Ct. 231, 232 (1998).
We, therefore, affirm the district court judgment of
August 11, 1998, denying the 2255 motions.