United States v. Caraballo-Rodriguez

United States Court of Appeals
For the First Circuit

No. 03-1795

UNITED STATES OF AMERICA,

Appellee,

v.

OSVALDO CARABALLO-RODRIGUEZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Carmen Consuelo Cerezo, U.S. District Judge]

Before

Boudin, Chief Judge,
Torruella and Lynch, Circuit Judges.

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.

March 21, 2006
 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

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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

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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,

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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

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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

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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.

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 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 to another point in
Puerto Rico.

With Caraballo's consent, his plea was entered on

December 4, 2004 before a magistrate judge who followed the usual

procedural requirements under Federal Rule of Criminal Procedure

11. During the colloquy, the following exchange took place:

THE COURT: And the charge says, generally,
that you concealed the same by withholding
information and the identities of the
conspirators in communications with federal
law enforcement agents and you did not as soon
as possible make known the conspiracy to some
Judge or other person in a civil or a military
authority under the United States.

Do you understand that?

THE WITNESS: Yes, sir.

THE COURT: And that's the charge that you're
pleading guilty to, is that correct?

THE WITNESS: Yes, sir.

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There is no doubt that the government made explicit its theory of

what constituted both the underlying felony and the misprision

charge.

As for the factual basis for the plea, the government

began its recitation of the facts at the plea hearing by noting

that "the evidence to prove the information in this case is closely

tied to the evidence in Criminal Case 0[1]-0613,"1 which was before

the same district judge. The government continued:

[I]f we'd gone to trial the United
States would have presented testimony and
audio and video recordings to show that in
November of 2000 a cooperating witness by the
name of Arturo Ortiz Colon contacted a police
officer, Diana Diaz Crispin, and offered her a
job on behalf of the Colombian drug trafficker
known as "El Viejo[,"] escorting and
protecting cocaine shipments.

Diana Diaz agreed to do this and also
agreed to recruit other police officers.

In May 2001 Diana Diaz Crispin invited
this Defendant Osvaldo Caraballo Rodriguez to
assist in the transportation and protection of
the cocaine shipment.

She further informed this Defendant, as
well as Arturo Ortiz Colon informing this
Defendant, as well as the details of the plan
to escort a shipment of the cocaine.

Although he was a police officer at the
time[,] this Defendant did not timely report
this conspiracy to any other police officers
or the Puerto Rico Police Department.

1
Although the prosecutor cited Cr. No. 00-0613, it is clear
that he meant to refer to Cr. No. 01-613.

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 What's more, although he spoke with the
agents of the Drug Enforcement Administration
prior to the transport of the purported
cocaine, that is on May 24, he did so
anonymously and with no information that would
have enabled the federal agents to interrupt
the conspiracy.

Specifically, when the agents asked him
for information regarding the conspiracy that
might identify the Defendant or his co-
conspirators or the conspirators in the
case[,] he declined to furnish the specific
information regarding the plot at that time.

Thus, [o]n May 25, 2001 Diana Diaz
Crispin and other members of the conspiracy
successfully transported packages purported to
contain cocaine from one point to another in
Puerto Rico.

Notably, the prosecutor referred to "Defendant or his co-

conspirators," making clear that the government believed it had

evidence to prove beyond a reasonable doubt that Caraballo had at

some point joined the conspiracy. The prosecutor also stated that

the drug conspirators successfully transported packages purported

to contain cocaine from one point to another in Puerto Rico.

Caraballo agreed with this recitation of the facts:

THE COURT: Mr. Caraballo, did you listen to
what the Prosecutor said?

THE WITNESS: Yes, sir.

THE COURT: Do you agree with his statement?

THE WITNESS: Yes, sir.

THE COURT: Is there anything in that
statement that you disagree with?

THE WITNESS: No, sir.

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 THE COURT: Do you still wish to plead guilty?

THE WITNESS: Yes, sir.

The transcript of the plea hearing makes clear that, as to the

underlying drug conspiracy, Caraballo agreed that he had been a

conspirator.2

2
Caraballo has moved to strike the government's supplemental
appendix, which contains FBI interview notes relating to
Caraballo's participation in the underlying drug offense. The
notes contain admissions from Caraballo that he participated in the
conspiracy. Since he already agreed with the prosecutor's
recitation of facts at the plea colloquy, it is unclear what the
motion to strike on appeal is intended to accomplish.
Caraballo wrongly argues that the papers are outside of the
record because they appeared first in the record of the underlying
drug case, Cr. No. 01-613. Under Federal Rule of Appellate
Procedure 10(a)(1), the record consists of "the original papers and
exhibits filed in the district court." But the interview notes
were also on file in this misprision case. The notes independently
appear in the file for this case, stapled to Caraballo's plea
agreement, and thus they appear to have been filed in Cr. No. 02-
463 under docket number 3. Indeed, that docket entry is described
by the district court as "Plea Agreement with government's version
of the facts attached." The record in this case as transmitted by
the district court on appeal did in fact contain the documents,
contrary to the dissent. Further, Caraballo himself submitted
these same interview notes to this court in a pro se brief he filed
in this case.
Even if the notes had not been filed in Cr. No. 02-463, the
notes were clearly filed in the related proceeding, Cr. No. 01-613,
and both cases proceeded before the same district judge. That
means that the district judge who accepted Caraballo's guilty plea
and sentenced him had these interview notes in the case files. The
cases are so intertwined that the sentencing transcript in Cr. No.
02-463 contains the government's formal dismissal of all charges in
Cr. No. 01-613. Accordingly, even if the interview notes had only
been filed in Cr. No. 01-613, we would deem them as within the
scope of Rule 10. Cf. United States v. Canada, 960 F.2d 263, 267-
68 (1st Cir. 1992) (holding that sentencing court may rely on
information derived from a co-defendant's trial before the same
judge).
Further, the district court has now supplemented the record
and certified that the interview notes are part of the record on

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 The magistrate judge found defendant's plea to the

misprision charge to be knowing and voluntary, accepted the plea,

and made a report and recommendation to the district court on

December 6, 2002. Caraballo filed no objection with the district

court.

On April 30, 2003, Caraballo appeared before the district

court for sentencing. The court accepted the parties'

recommendation and imposed a sentence of time served. Caraballo

was arrested on August 14, 2001 and remained in prison until

December 4, 2002, when he was released on his personal

recognizance. No fine was imposed beyond the required special

monetary assessment of $100.

On May 6, 2003, Caraballo appealed from the judgment of

conviction and his sentence. His appellate counsel initially filed

an Anders brief, which this court rejected. See Anders v.

California, 386 U.S. 738, 744 (1967). We directed counsel to brief

the issue of whether there was a factual basis for Caraballo's plea

as to each element of the offense charged under 18 U.S.C. § 4, and

this appeal. The clerk of the district court certified that the
transmitted documents "constitute the supplemental record on appeal
in the case," clearly referring to Cr. No. 02-463.
Caraballo's other ground for striking the appendix is that the
interview notes are not admissible under the rules of evidence.
But there is no requirement, under Federal Rule of Appellate
Procedure 10, that a document must be admissible in evidence to be
part of the record on appeal. Nor is a sentencing court bound by
the rules of evidence. United States v. Green, 426 F.3d 64, 66
(1st Cir. 2005).

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in particular whether a failure to make full disclosure constitutes

an act of concealment under the misprision statute. We directed

counsel's attention to United States v. Cefalu, 85 F.3d 964 (2d

Cir. 1996); United States v. Walters, 885 F.2d 1266, 1274 (5th Cir.

1989); and United States v. Ciambrone, 750 F.2d 1416, 1418 (9th

Cir. 1985). On the further submission of an Anders brief, we

permitted Caraballo's counsel to withdraw and appointed new

counsel, who has briefed this appeal.3

III.

The essence of Caraballo's claim is that he pled guilty

to activities which do not constitute the crime of misprision and

so his plea must be vacated. See United States v. Johnson, 546

F.2d 1225, 1227 (5th Cir. 1977) (reversing conviction under 18

U.S.C. § 4 by guilty plea on preserved claim where factual basis

for plea showed mere failure to report a felony and court held this

did not constitute misprision). He also characterizes the district

court as having affirmatively misstated an element of the offense

at the plea colloquy in violation of Federal Rule of Criminal

3
Counsel was required to consult with his client on whether
Caraballo wished to pursue an appeal which, if successful, might
lead to the government's reinstituting the conspiracy, attempt,
firearms, and criminal forfeiture charges against Caraballo.
Counsel has done so, and Caraballo has chosen to go forward.

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Procedure 11. See United States v. Gandia-Maysonet, 227 F.3d 1, 3-

5 (1st Cir. 2000).4

Rule 11 requires a court to determine that there is a

factual basis for a plea before entering judgment. Fed. R. Crim.

P. 11(b)(3). Rule 11 also requires a court to ensure that a

defendant understands the nature of each charge to which he pleads

guilty. Fed. R. Crim. P. 11(b)(1)(G). There was certainly a

factual basis for the plea on the government's theory. The

question is rather whether the government's theory, which was

explained to Caraballo at the plea colloquy, permissibly stated an

offense under 18 U.S.C. § 4.

A. Standard of Review

Caraballo failed to call the district court's attention

to the alleged lack of a factual basis for the plea, or to present

to the district court the legal arguments now asserted. Caraballo

also never moved to withdraw his plea.

As a result, our review is for plain error. United

States v. Vonn, 535 U.S. 55, 58-59 (2002); United States v. Negrón-

Narváez, 403 F.3d 33, 37 (1st Cir. 2005).5 "To establish plain

4
Further, Caraballo attempts to color his claim as raising
constitutional due process concerns.
5
To the extent defendant argues that the asserted error
involves structural error, invoking a more demanding standard of
review, we reject any such claim. See Arizona v. Fulminante, 499
U.S. 279, 310 (1991) (explaining that structural error involves a
"structural defect affecting the framework within which the trial
proceeds, rather than simply an error in the trial process

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error, a defendant must demonstrate that: (1) there was error; (2)

the error was plain; (3) the error affected the defendant's

substantial rights; and (4) the error adversely impacted the

fairness, integrity, or public reputation of judicial proceedings."

United States v. Riggs, 287 F.3d 221, 224 (1st Cir. 2002) (citing

United States v. Olano, 507 U.S. 725, 732-36 (1993); United States

v. Saxena, 229 F.3d 1, 5 (1st Cir. 2000)); see also United States

v. Ramirez-Benitez, 292 F.3d 22, 27 (1st Cir. 2002). The burden is

on the defendant to establish each element of plain error.

In applying plain error analysis in guilty plea cases, a

defendant must, in order to demonstrate that his substantial rights

were affected, "show a reasonable probability that, but for the

error, he would not have entered the [guilty] plea." United States

v. Dominguez Benitez, 542 U.S. 74, 83 (2004); see also United

States v. Delgado-Hernandez, 420 F.3d 16, 20 (1st Cir. 2005)

(applying plain error analysis where defendant argued there was no

factual basis to support his guilty plea). "A defendant must thus

satisfy the judgment of the reviewing court, informed by the entire

itself"); United States v. Padilla, 415 F.3d 211, 219 (1st Cir.
2005) (en banc) (noting that "[t]he category of structural error
has been reserved for a very limited class of cases" involving
"only the most pervasive and debilitating errors," such as "a total
withholding of the right to counsel at trial," "a denial of the
right of self-representation at trial," or "the specter of a biased
judge presiding over a case" (citations and internal quotation
marks omitted)). Here, defendant has not alleged an error
affecting the "entire conduct of the trial from beginning to end."
Fulminante, 499 U.S. at 309.

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record, that the probability of a different result is sufficient to

undermine confidence in the outcome of the proceeding." Dominguez

Benitez, 542 U.S. at 83 (internal quotation marks omitted).

B. Misprision of Felony -- Was There Plain Error?

The prosecution has articulated the elements of the

offense as follows:

In the instant case, the offense of
conviction, misprision of felony, requires
proof that: "1) the principal committed and
completed the alleged felony; 2) defendant had
full knowledge of that fact; 3) defendant
failed to notify the authorities; and 4)
defendant took steps to conceal the crime."

See Cefalu, 85 F.3d at 969 (citing Ciambrone, 750 F.2d at 1417;

United States v. Baez, 732 F.2d 780, 782 (10th Cir. 1984)).

Caraballo has not materially contested this formulation, and we

accept it arguendo.

This is an unusual case in that Caraballo had several

overlapping roles. First, he had full knowledge, both before and

after, of a crime. Second, he was a participant in that crime and

not a mere witness. Third, although he did initially notify

authorities, he did not provide authorities with his full knowledge

of the drug conspiracy despite requests that he do so. Fourth, he

was not a mere member of the public but was a police officer. Each

of these roles factors into the analysis.

Applying the plain error test, we ask whether Caraballo's

proposed construction -- that a partial truthful disclosure cannot

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be an affirmative act and an affirmative act is required -- is

compelled by the language of the statute itself, construction of

the statute in light of the common law, or binding judicial

construction of the statute. We hold that Caraballo has not met

his burden of showing there was an error which was plain, for

several basic reasons. In doing so, we do not make any ruling on

the merits of the issues discussed under the misprision statute.

First, while this court and the Supreme Court may someday

adopt the majority rule in the circuits that an affirmative act is

required for a misprision offense, there is now no binding

precedent to that effect. Caraballo does not argue otherwise.

None of our misprision cases has adopted Caraballo's proposed rule.

Further, in United States v. Vazquez-Alomar, 342 F.3d 1, 2 (1st

Cir. 2003), we suggested that a federal prisoner had violated 18

U.S.C. § 4 when he did not inform federal authorities that he had

engaged in telephone conversations with others about crimes.

Consequently, there can be no plain error. Thus, we need not

resolve the greyer areas of what constitutes an affirmative act.

Secondly, we cannot say there is plain error because the government

articulates a new theory, not accepted, but not rejected by any

court, based on Caraballo's obligations as a police officer. The

theory has some support at English common law.

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 Caraballo's argument that there was plain error is not

proven by the language of the statute itself. Misprision of felony

is defined at 18 U.S.C. § 4:

Whoever, having knowledge of the actual
commission of a felony cognizable by a court
of the United States, conceals and does not as
soon as possible make known the same to some
judge or other person in civil or military
authority under the United States, shall be
fined under this title or imprisoned not more
than three years, or both.

The underlying felony in this case was the drug conspiracy charged

in Cr. No. 01-613. At issue is whether the facts alleged satisfy

the statutory terms "conceals and does not as soon as possible make

known."

The dictionary definitions of "conceal" and "concealment"

do not prove Caraballo's claim. The Oxford English Dictionary

refers to both a common usage of keeping secret of any information

and a legal usage of intentional suppression of truth. 3 Oxford

English Dictionary 647 (2d ed. 1989). Black's Law Dictionary

defines the primary meaning of "concealment" as "[t]he act of

refraining from disclosure[, especially] an act by which one

prevents or hinders the discovery of something." Black's Law

Dictionary 306 (8th ed. 2004). Neither source compels only one

reading of the term "conceals" in 18 U.S.C. § 4.

Nor does the common law background of the statute compel

Caraballo's reading. The statute at issue derives from a common

law offense. Misprision of felony was a crime under English common

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law, dating back centuries. Sykes v. Dir. Pub. Prosecutions,

[1962] A.C. 528, 555 (H.L.) (U.K.) (stating that misprision of

felony "has been an offence for the last 700 years or more," though

not always under that name); C.W. Mullis, Comment, Misprision of

Felony: A Reappraisal, 23 Emory L.J. 1095, 1095 (1974) (noting that

"[t]he offense of failing to report a felony was first labeled

'misprision' by Sir William Staun[]ford in 1557").

Congress, in 1790, enacted a federal misprision statute

which is essentially the same as 18 U.S.C. § 4 today. See Act of

Apr. 30, 1790, § 6, 1 Stat. 113. There are some differences,

however, between the English common law doctrine and how the

federal statute has been interpreted in the United States. See

C.M. Curenton, Comment, The Past, Present, and Future of 18 U.S.C.

§ 4: An Exploration of the Federal Misprision of Felony Statute, 55

Ala. L. Rev. 183, 183-84, 186 (2003); Mullis, supra, at 1098-99,

1101-04.

At English common law, "[e]ver since the days of hue and

cry, it [was] the duty of a man, who kn[ew] that a felony ha[d]

been committed, to report it to the proper authority so that steps

[could] be taken to apprehend the felon and bring him to justice."

Sykes, [1962] A.C. at 555. Accordingly, Staunford in 1557 defined

misprision as follows: "Misprision . . . is properly when anyone

learns or knows that another has committed treason or felony, and

he does not choose to denounce him to the King or to his Council,

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or to any magistrate, but conceals his offense." Id. at 557. In

light of this history, Lord Denning of the House of Lords

pronounced that a person accused of misprision of felony "need not

have done anything active: but it is his duty by law to disclose to

proper authority all material facts known to him relative to the

offence." Id. at 563. Lord Guest, for his part, observed that he

could not find in the "numerous institutional writers who have

defined [misprision of felony] . . . any statement that active

steps of concealment are required to constitute the offence." Id.

at 572.

Nor has the Supreme Court adopted Caraballo's reading.

The Court, in Roberts v. United States, 445 U.S. 552 (1980),6

discussed the obligations of citizens not to conceal crimes, first

as a matter of common law and then as defined and enforced through

18 U.S.C. § 4. As Roberts stated:

Concealment of crime has been condemned
throughout our history. The citizen's duty to
"raise the 'hue and cry' and report felonies
to the authorities," Branzburg v. Hayes, 408
U.S. 665, 696 (1972), was an established tenet
of Anglo-Saxon law at least as early as the
13th century. 2 W. Holdsworth, History of

6
Roberts dealt with the analogous question of whether a
sentencing court could take into account the fact that a defendant
only partially cooperated with the police investigation. The
defendant provided information about drug transactions and
explained the meaning of certain code words, but gave evasive
answers when asked to name suppliers. 445 U.S. at 554. Roberts,
in a pre-guidelines era, held that the judge could properly take
the defendant's lack of full cooperation into account at
sentencing. Id. at 561-62.

-20-
 English Law 101-102 (3d ed. 1927); 4 id., at
521-522; see Statute of Westminster First, 3
Edw. 1, ch. 9, p. 43 (1275); Statute of
Westminster Second, 13 Edw. 1, chs. 1, 4, and
6, pp. 112-115 (1285). The first Congress of
the United States exacted a statute imposing
criminal penalties upon anyone who, "having
knowledge of the actual commission of [certain
felonies,] shall conceal, and not as soon as
may be disclose and make known the same to
[the appropriate] authority . . . ." Act of
Apr. 30, 1790, § 6, 1 Stat. 113. Although the
term "misprision of felony" now has an archaic
ring, gross indifference to the duty to report
known criminal behavior remains a badge of
irresponsible citizenship.

445 U.S. at 557-58 (alterations in original) (footnote omitted).

Roberts made explicit that 18 U.S.C. § 4 can be applied where, as

here, the witness to the crime is a participant himself in the

underlying criminal activities, subject to Fifth Amendment

concerns7:

7
Where the person with knowledge of an underlying crime is
also involved in the crime, there are tensions between the Fifth
Amendment privilege against self-incrimination and the statutory
obligation to provide disclosure. See, e.g., United States v.
King, 402 F.2d 694, 697 (9th Cir. 1968); see also United States v.
Kuh, 541 F.2d 672, 677 (7th Cir. 1976) ("If the duty to notify
federal authorities is precluded by constitutional privilege, it is
difficult to understand how a conviction [under 18 U.S.C. § 4]
could be substantiated."). But see United States v. Daddano, 432
F.2d 1119, 1125, 1129 (7th Cir. 1970) (discussing argument that the
misprision statute could not be applied to defendants because of
Fifth Amendment privilege, but ultimately affirming convictions).
Caraballo has not argued there are any Fifth Amendment privilege
issues in this appeal. Caraballo has not established that he was
entitled to assert any Fifth Amendment privilege at the time of his
initial tip. The record established only that he knew of the
conspiracy, and does not establish that he had in fact agreed to
participate in the conspiracy. He waived any privilege as of the
time he disclosed to the police after he participated in the crime.
Nor does Caraballo argue that the Fifth Amendment shielded him from

-21-
 This deeply rooted social obligation is not
diminished when the witness to crime is
involved in illicit activities himself.
Unless his silence is protected by the
privilege against self-incrimination . . .,
the criminal defendant no less than any other
citizen is obliged to assist the authorities.

Id. at 558. Putting constitutional concerns aside momentarily, the

statutory text applies to "whoever" meets its criteria, and does

not necessarily exclude participants in crimes.8

Still, in Caraballo's favor is the fact that neither the

common law crime nor the statute was meant to punish in every

instance every person who knows of a crime but does not report it.

In 1822, Chief Justice Marshall noted, "It may be the duty of a

citizen to accuse every offender, and to proclaim every offense

which comes to his knowledge; but the law which would punish him in

every case for not performing this duty is too harsh for man."

Marbury v. Brooks, 20 U.S. (7 Wheat.) 556, 575-76 (1822). Further,

application of the statute.
The privilege may be waived, as Caraballo has done, thus
permitting plea bargains of this sort.
It may also be that the statute is curtailed by common law
privileges, such as the attorney-client privilege or spousal
immunity. See Mullis, supra, at 1099, 1110; see also Sykes, [1962]
A.C. at 564 (dismissing claim that "the offence of misprision is
impossibly wide," reasoning that "[n]on-disclosure may sometimes be
justified or excused on the ground of privilege," such as that
between attorneys and clients or between doctors and patients).
None of those common law privileges is involved here.
8
In Branzburg v. Hayes, 408 U.S. 665, 696 n.36 (1972), the
Supreme Court also noted that some lower courts had construed the
statute to require both knowledge of a crime and an affirmative act
of concealment or participation, but the Court did not adopt that
construction.

-22-
it is clear that misprision of felony cannot be read so broadly as

to "make a criminal of anyone who, as the victim of a crime or

faced with a criminal threat, resisted a . . . suggestion that the

police be called." United States v. Rakes, 136 F.3d 1, 5 (1st Cir.

1998). The scope of the obligations imposed by the statute is an

important issue in today's society where police investigations are

often hampered by codes of silence and fearful refusal by witnesses

to cooperate. Those issues are beyond the scope of this opinion.

Rather, Caraballo's argument turns on judicial

construction of the statute; since we have not yet adopted the

construction he urges, there is no plain error. However, we do not

foreclose later adoption of such a construction. Caraballo

particularly stresses the fact that many courts have interpreted

the "conceals and does not as soon as possible make known" language

as requiring an affirmative act of concealment. See, e.g., United

States v. Goldberg, 862 F.2d 101, 104 (6th Cir. 1988); United

States v. Davila, 698 F.2d 715, 717 (5th Cir. 1983); United States

v. Sampol, 636 F.2d 621, 653 (D.C. Cir. 1980); Daddano, 432 F.2d at

1124; Lancey v. United States, 356 F.2d 407, 410 (9th Cir. 1966);

Neal v. United States, 102 F.2d 643, 646 (8th Cir. 1939); Bratton

v. United States, 73 F.2d 795, 797-98 (10th Cir. 1934) (citing

United States v. Farrar, 38 F.2d 515, 517 (D. Mass), aff'd on

different grounds, 281 U.S. 624 (1930)).

-23-
 Whether it is a proper construction of the statute to

require an affirmative act of concealment has been questioned.

Mullis, supra, at 1104 ("The possibility that such a requirement

was originally intended by Congress is rather slim, since, by the

date of the statute's first enactment [in 1790], such a requirement

had never before been applied to the crime. It is much more

reasonable to conclude that Congress intended 'conceal and' to

signify a conscious and intentional non-disclosure.").

Caraballo argues that, in any of his capacities, he did

not conceal the drug conspiracy. Rather, he disclosed it, and his

refusal to provide the additional requested information cannot be

punished as an act of concealment.9 Caraballo relies on a series

of cases holding that mere silence does not qualify as an act of

concealment. See Goldberg, 862 F.2d at 105-06; Johnson, 546 F.2d

at 1227; Lancey, 356 F.2d at 410; Neal, 102 F.2d at 650; Bratton,

73 F.2d at 798. But mere silence cases do not necessarily help

him. Caraballo did not remain merely silent. He affirmatively

sought out federal agents to make partial disclosure, but then

declined to provide requested information.

Caraballo places special emphasis on Ciambrone, a Ninth

Circuit case. Ciambrone is not a mere silence case, but a partial

disclosure case. The defendant in Ciambrone truthfully, but only

9
In most cases, it is irrelevant whether the government had
other knowledge of the crime, as it apparently did here. Lancey,
356 F.2d at 409-10.

-24-
partially, disclosed his knowledge about a counterfeiting operation

to a Secret Service agent. 750 F.2d at 1417. The court held that

partial disclosure could not constitute misprision because if some

information were offered, there could be no greater concealment of

the felony than if the defendant who had knowledge of the crime had

said nothing. Id. at 1418. Ciambrone required an affirmative act

and implicitly held that the act of coming forward to provide

information, but refusing to answer other questions, does not

qualify as an affirmative act of concealment. None of the other

cases cited by Caraballo adopts Ciambrone's position with respect

to partial disclosures. Indeed, no federal court has followed

Ciambrone in holding that a truthful, but partial, disclosure is

insufficient to support a misprision conviction.

The Ciambrone logic, then, departs from the common law

position that there is a general duty on citizens to disclose, and

instead relies on a more limited rationale for the statute that

misprision is concerned only with situations in which the

government may be put in a worse situation or misled.

Caraballo admits that courts have sustained the

application of the misprision statute in cases where someone with

knowledge of a felony provided untruthful information. See Sampol,

636 F.2d at 656; cf. United States v. Salinas, 956 F.2d 80, 81 (5th

Cir. 1992). He distinguishes these cases on the facts here, on the

-25-
basis that it is not alleged that he provided false information to

federal agents.

There may be instances in which even partial truthful

disclosures can be misleading. Ciambrone assumes that the

government may not be misled by receipt of truthful information,

even if it is incomplete, 750 F.2d at 1418, but that is not

necessarily so. For example, United States v. Sessions, Nos. 00-

1756, 00-1791, 2000 WL 1456903 (8th Cir. Oct. 2, 2000) (unpublished

decision), held that the misprision statute was satisfied where the

defendant "gave incomplete information to police regarding his

knowledge of the [crime]," at least where he "gave the police

partial information that was misleading." Id. at *1. If the

statute is geared toward avoiding the misleading of police,

Ciambrone, 750 F.2d at 1418, it is still possible, in concept and

in fact, that even a truthful but partial disclosure could conceal

by misleading the government through the withholding of key

information.10

10
This concept is commonly accepted in other areas of law. See
United States v. Nelson-Rodriguez, 319 F.3d 12, 33 (1st Cir. 2003)
(recognizing that omitted facts in a wiretap warrant affidavit may
mislead); United States v. Reilly, 76 F.3d 1271, 1280 (2d Cir.
1996) (commenting that a "bare-bones description" submitted to
judge may have been "calculated to mislead"); United States v.
Stanert, 762 F.2d 775, 781 (9th Cir. 1985) (holding that omitted
facts in a warrant affidavit may mislead); United States v.
Previte, 648 F.2d 73, 85 (1st Cir. 1981) (noting that trial court's
use of slide transparencies to deliver jury instructions "had some
potential to mislead the jury, more by what they omitted than by
what they contained").

-26-
 We cannot tell from the facts here whether the giving of

partial information in this case in any way could have misled the

DEA -- the information against Caraballo alleged only that he

withheld information and the identities of co-conspirators, and did

not as soon as possible make the conspiracy known to the

appropriate authorities. On plain error review, even under a

modified Ciambrone approach, it is defendant's burden to show that

his truthful but partial disclosure was not misleading, and

Caraballo has not done so.

The government argues, as a second theory,11 that even if

there is a requirement for an affirmative misrepresentation from an

ordinary citizen, Caraballo had higher duties as a police officer.

This appears to present a novel interpretation of the statute. The

prosecution's theory derives from the obligations on police

officers to disclose information about crimes, irrespective of

whether civilians would have had such a duty. Caraballo was, at

11
At oral argument, but not in its brief, the government
presented an additional argument -- that the "concealment"
consisted of defendant's actions during the underlying drug crime
when, by providing a police escort, he tried to make it appear that
the transport of the drugs was legitimate. See United States v.
Gravitt, 590 F.2d 123, 125-26 (5th Cir. 1979) (defendant
transported robbers in his car to where stolen money was stashed
and then returned to his apartment where money was divided); see
also Lancey, 356 F.2d at 410-11 (defendant either himself concealed
or allowed bank robber to conceal numerous items related to
robbery). That was not the theory on which the plea was accepted.
On the other hand, had Caraballo raised questions before the
district court about the legitimacy of the government's misprision
theory, the government might have filed a new or amended
information raising this alternate theory of concealment.

-27-
the time, a police officer who had an affirmative duty to act on

information about a crime under Puerto Rican law. See P.R. Laws

Ann. tit. 25, § 3102 (duty of the "Puerto Rico Police" is to

"prevent, discover, investigate and persecute crime and, within the

scope of its authority, enforce obedience of the laws").

The prosecution argues that government officials,

particularly police, who are already under an affirmative duty to

report crimes, inherently conceal when they do not meet their duty

to disclose. We have found no misprision cases discussing this

theory.12

Nonetheless, the argument, in light of the theory of law

under the misprision statute to which Caraballo pled guilty, cannot

be said to be plainly erroneous. Roberts itself referred to "gross

12
Of the multiple misprision cases Caraballo cites in his
brief, only two involve defendants who were police officers. In
neither case, apparently, was this argument made. The defendant in
Bratton was a peace officer who apprehended someone feloniously
possessing alcohol. 73 F.2d at 796 n.1, 797. The officer released
the offender upon a promise of being paid a bribe, most of which
was in fact paid. Id. at 796 n.1. The Tenth Circuit, in 1934,
reversed the conviction, finding no act of concealment. Id. at
798-99. The court did not, however, consider the import of
Bratton's status as an officer. Id.
In Daddano, one of the defendants was the Chief Investigator
of the Special Investigations Unit for the county sheriff's
department. 432 F.2d at 1122. The Seventh Circuit held that the
jury could properly infer from the evidence that the officer had
arranged to have lie detector tests administered to a group of bank
robbers, at the request of a crime boss. Id. at 1122-23. The
court held that the administration of the lie detector tests
constituted an affirmative act of concealment. Id. at 1124-25.
But, as in Bratton, the court did not consider whether the
defendant's occupation as a police officer imposed special duties.
Id. at 1123-25.

-28-
indifference to the duty to report" and thought pertinent the

development of this duty in Anglo-Saxon law. Indeed, there is some

historical support in common law misprision doctrine for imposing

special responsibilities on public officials. In 1628, Lord Coke

in his Third Institute noted that "the concealment of felonies in

sheriffs, or bailiffs of liberties is more severely punished than

in others." Sykes, [1962] A.C. at 558 (internal quotation marks

omitted). Professor Glazebrook, although arguing for a broader

view of what constituted misprision under English common law, has

recognized that the term "misprision" in the fourteenth and

fifteenth centuries was thought "to have been . . . especially

appropriate to the misconduct of public officers." P.R.

Glazebrook, Misprision of Felony -- Shadow or Phantom?, 8 Am. J.

Legal Hist. 189, 191, 194 (1964). As another commentator has

noted, "In fact, a strong case can be made that misprision should

have particular applicability to public officers. Even at common

law, commission of misprision appears to have been especially

culpable for public officers, since they received a higher penalty

for the crime than that received by ordinary citizens." Mullis,

supra, at 1113 (citing W. Blackstone, 4 Commentaries 121). Because

the theory is novel under the statute, it has neither been accepted

nor rejected. The burden is on defendant to show that if there was

any error, that error was plain. Ramirez-Benitez, 292 F.3d at 27.

-29-
 This background buttresses our conclusion that if there

was any error, it was not plain error. We stress that we do not,

and need not, rule on the merits of issues pertaining to the

judicial construction of the statute. The analysis could end here,

but we comment briefly on the remaining prongs of the test.

C. Other Elements of Plain Error Test

Under the third prong, we must ask, as Caraballo has

framed the issue of the voluntariness of the plea,13 whether there

is a reasonable probability that, but for the alleged error,

Caraballo would have decided not to plead guilty. See Dominguez

Benitez, 542 U.S. at 83. We do so by looking at the entire record,

and not just at what was directly before the district court during

the plea hearing. Delgado-Hernandez, 420 F.3d at 28-32. In this

case, the plea was entirely voluntary, and defendant was fairly

apprised of both the law and the facts. See United States v. Cruz-

Rivera, 357 F.3d 10, 13 (1st Cir. 2004) (holding defendant to

guilty plea on plain error standard of review). Caraballo chose to

13
Caraballo has not argued more generally that he can show
"that the probability of a different result is sufficient to
undermine confidence in the outcome of the proceeding." Dominguez
Benitez, 542 U.S. at 83 (internal quotation marks omitted). He has
waived any other argument based on the adequacy of the facts
recited. Even if the issue had not been waived, as it has been, it
is without merit. The facts presented with the plea reasonably
constituted a basis on which the court could accept the plea. See
United States v. Matos-Quiñones, 456 F.3d 14, 21 (1st Cir. 2006).
Further, even if this court were to adopt some sort of affirmative
misrepresentation requirement, Caraballo has not shown that his
only partial disclosures were not affirmative acts and did not have
some misleading effect.

-30-
plead guilty as part of an extremely favorable plea deal he and his

counsel worked out with the government. He also chose to

cooperate, and he admitted to participation in the drug conspiracy,

for which he received a benefit. At his plea colloquy, Caraballo

agreed with the prosecutor's statement that he was a "conspirator,"

an obvious reference to the drug conspiracy. Caraballo's deal was

thus specifically structured to find a significantly less serious

offense to which he could plead, and one which would permit him to

avoid any imprisonment beyond the time already served. As

Caraballo's own counsel stated at sentencing: "Initially

[Caraballo] was tempted by the . . . economic gain that pervades

the drug traffic, and he wavered. . . . But he took certain steps

afterwards . . . and [the prosecutor] was wise enough and

interested enough in justice that he reviewed that, and we came up

with [this plea bargain]." Thus, even if the district court had

erred in its understanding of misprision law, there is nothing in

the record to suggest that the defendant would have been willing to

risk trial on the conspiracy charges in the absence of the error.

See United States v. Matos-Quiñones, 456 F.3d 14, 23 (1st Cir.

2006). Caraballo's substantial rights were not affected.

Under the fourth prong, we ask whether the plea

arrangement calls into question the integrity of the judicial

process. This case does not present the sort of miscarriage of

justice for which plain error is reserved. United States v.

-31-
Savinon-Acosta, 232 F.3d 265, 269 (1st Cir. 2000). Caraballo, who

participated in a major drug conspiracy, had his cooperation

generously rewarded. He was sentenced to time served of less than

sixteen months. If convicted of the original drug conspiracy or

attempt charge involving more than five kilograms of cocaine, he

faced a minimum sentence of "not . . . less than 10 years" under 21

U.S.C. §§ 841(b)(1)(A) and 846. If convicted of the original

firearms charge, he faced an additional five years of imprisonment

or more under 18 U.S.C. § 924(c)(1)(A)(i). Other officers who were

convicted in this same conspiracy received lengthy terms of

imprisonment on the order of twenty years. Sánchez-Berríos, 424

F.3d at 73; Villafane Jimenez, 410 F.3d at 78; Vázquez Guadalupe,

407 F.3d at 495; Flecha-Maldonado, 373 F.3d at 174. Whether or not

the lesser charge of misprision constituted, on these facts, a

viable theory of criminal liability, Caraballo, who was advised by

counsel, not surprisingly agreed to plead guilty to that theory.

Affirmed.

-Concurring and Dissenting Opinions Follow-

-32-
 BOUDIN, Chief Judge, concurring. From time to time in

the course of plea negotiations, the government and the defendant

join together in seeking to shoe-horn conduct into an offense less

serious than that charged in the indictment. If and when the plea

is accepted, the defendant occasionally seeks to have it both ways

by later attacking the conviction, asserting that what he did does

not constitute the crime of conviction. The barriers to attacks

based on second thoughts are high.

If made in the trial court an attempted withdrawal of a

guilty plea requires a "fair and just reason" for withdrawal. Fed.

R. Crim. P. 11(d)(2)(B). If, as here, the effort is not made until

the appeal, relief is discretionary and the defendant must meet the

very stiff Olano standards for plain error: error, plainness,

prejudice and something akin to a miscarriage of justice. United

States v. Olano, 507 U.S. 725, 734 (1993); see also United States

v. Mercedes Mercedes, 428 F.3d 355, 359 (1st Cir. 2005).

Caraballo-Rodriguez made his anonymous telephone call to

the authorities after he may have already engaged in conduct that

might have amounted to aiding in a drug conspiracy. Whether or not

the call was made in good faith or was an anchor to windward is

unclear. But the defendant was in some peril of being charged and

convicted of a crime that could have netted him a long sentence.

By the time of his guilty plea, he had already been indicted on

-33-
multiple counts of conspiring to distribute large amounts of

cocaine and on a related firearms charge.

As for the government, it may have wished to reward the

defendant's cooperation in securing convictions against others. Or

the prosecutor might have had concern that a jury would give undue

weight to the anonymous telephone call as supporting a claim, if

made by the defendant, that he had no criminal intent and had

merely played along in the conspiracy. And, any case settled by a

guilty plea saves government resources for other prosecutions.

The district court held a hearing, described the offense,

considered the proffer of evidence, heard the defendant admit guilt

and found that there was a reasonable factual basis for the plea.

No request to withdraw the plea was made in the district court. On

appeal, Caraballo-Rodriguez says that misprision requires an

affirmative act and that plain error occurred because the evidence

did not show such an act and the requirement was not fully

explained to him.

It turns out that, as the panel opinion shows, the law is

fuzzy. This circuit has not precisely defined "concealment" and,

even if concealment generally requires an affirmative act of some

kind (as may well be the case), just what constitutes such an act

in this context is debatable: conceivably, Caraballo-Rodriguez's

half-complete and anonymous telephone call could be regarded as

deceptive and affirmatively wrongful. It should not be assumed

-34-
that we must now resolve such issues as if this were an appeal

after a conviction. Under Olano, far more is required for claims

advanced for the first time on appeal.

If the government and the defendant had invented a wholly

imaginary offense, or the district court had fundamentally mis-

described the offense, or if the defendant had offered a factual

predicate unrelated to the elements of the crime, letting the plea

stand might well "seriously impair[] the fairness, integrity, or

public reputation of the proceeding." United States v. Negrón-

Narváez, 403 F.3d 33, 37 (1st Cir. 2005); see also United States v.

Delgado-Hernandez, 420 F.3d 16, 28 (1st Cir. 2005).

But misprision of felony is a real crime and the district

judge was required to do no more than give the required cautions,

describe the crime and determine whether there was a factual basis

for the plea. Fed. R. Crim. P. 11(b)(3).14 This does not mean that

the judge had to give final instructions or find that the defendant

was guilty of the crime; it is enough that there was a rational

basis for the plea. United States v. Cheal, 389 F.3d 35, 41 (1st

Cir. 2004).

14
The district judge described the offense as charged in the
information--concealment of information and the identities of
conspirators in communications with federal agents--and defense
counsel assured the court that he had reviewed the charges with the
defendant. "Where a defendant is represented by competent counsel,
the court usually may rely on that counsel's assurance that the
defendant has been properly informed of the nature and elements of
the charge to which he is pleading guilty." Bradshaw v. Stumpf,
545 U.S. 175, 183 (2005).

-35-
 We have previously declined to find plain error where

the issue was unsettled in the First Circuit and the law was not

crystal clear. See United States v. Diaz, 285 F.3d 92, 97 (1st

Cir. 2002), and it is hard to say that there was plainly no basis

for the plea or that the colloquy was plain error. Nor is it a

miscarriage of justice that the defendant--implicated in a serious

drug crime--should be convicted by guilty plea for a closely

related lesser crime of which he might have been convicted at

trial. See United States v. Colon-Nales, 464 F.3d 21, 28-29 (1st

Cir. 2006).

Even in criminal cases the two sides are allowed over a

broad range to reach their own accommodations.15 This serves both

sides' interests or else the agreements would not be reached. And

if attempts to back out of such agreements were freely indulged,

the agreements would less often be made. As the Supreme Court has

explained, relief from a guilty plea "will be difficult to get, as

it should be." United States v. Dominguez Benitez, 542 U.S. 74, 83

& n.9 (2004).

-Dissenting opinion follows-

15
In addition to plea agreements, examples include stipulations
of fact or of elements of the offense or issues arising in
sentencing, Alford (North Carolina v. Alford, 400 U.S. 25 (1970))
and nolo contendere pleas, and knowing waivers of possible
defenses.

-36-
 TORRUELLA, Circuit Judge, dissenting. On May 24, 2001,

Osvaldo Caraballo-Rodríguez learned of a conspiracy to commit drug

trafficking. That same day, Caraballo contacted the DEA and told

them about the conspiracy, but refused to give his name or those of

the other participants in the conspiracy. Caraballo was then

convicted, by guilty plea, of misprision of a felony, 18 U.S.C.

§ 4. Because partial but truthful disclosure of one's knowledge of

a criminal activity is insufficient to sustain a conviction for

misprision, I must respectfully dissent.

I. The Supplemental Appendix

Before I reach the substance of Caraballo's appeal, I

must first address the issue of the Government's "supplemental

appendix." This "supplemental appendix" contains information not

from Caraballo's conviction, but from another case initially

brought against Caraballo but later dismissed. The Government

urges us to consider this information in deciding this case. Our

rules of procedure are clear. Fed. R. App. P. 10 states in

relevant part:

(a) Composition of the Record on Appeal. The
following items constitute the record on
appeal:
(1) the original papers and exhibits filed in the
district court;
(2) the transcript of proceedings, if
any; and
(3) a certified copy of the docket entries
prepared by the district clerk.

-37-
The material offered by the Government was not part of the original

papers or exhibits filed in the district court, nor is it a

transcript of the proceedings or a certified copy of the docket

entries.16 Thus, we cannot consider it on appeal. See, e.g.,

Ruiz-Casillas v. Camacho-Morales, 415 F.3d 127, 132 (1st Cir.

2005); Lewis v. City of Boston, 321 F.3d 207, 215 n.7 (1st Cir.

2003) ("It is elementary, however, that we review the record as it

existed at the time the district court rendered its ruling . . . ."

(emphasis added)). The reasons for this rule are not trivial. The

district court is better suited for reviewing evidence and making

findings of fact. See Salve Regina College v. Russell, 499 U.S.

225, 233 (1991) (noting that "the respective institutional

advantages of" a trial court include "the unchallenged superiority

of the district court's factfinding ability"). Because of these

institutional advantages, we accord deference to trial court

rulings regarding the admissibility of evidence, see, e.g., United

States v. Smith, 292 F.3d 90, 99 (1st Cir. 2002), and credibility,

see, e.g., United States v. Marshall, 348 F.3d 281, 284 (1st Cir.

2003). Thus, we require that all evidence first be placed before

a district court because an appellate court's chief competence is

not evidentiary review. This is especially true here, where

16
The district court eventually transmitted a record to this
court which referred to the documents in the supplemental appendix,
but this record only noted that the documents were part of the
record in the conspiracy case, No. 01-613, rather than the
misprision case.

-38-
Caraballo raises a number of challenges to the admissibility and

credibility of the material the Government seeks to introduce.17

Furthermore, the fact that the judge was the same in both

criminal cases, or that the dockets are "intertwined" has no effect

on this conclusion; we generally do not allow parties in one case

to sift through the dockets of other cases to come up with evidence

to support their conclusions on appeal. The majority, in reaching

its conclusion, cites two cases for the proposition that judges may

reach across case lines and disregard evidentiary rules in the

sentencing context: United States v. Green, 426 F.3d 64, 66 (1st

Cir. 2005) ("[T]he district court may consider all the evidence,

even if inadmissible under the Federal Rules of Evidence, provided

that the information has 'sufficient indicia of reliability to

support its probable accuracy.'") and United States v. Canada, 960

F.2d 263, 267-68 (1st Cir. 1992) (approving use of transcripts from

codefendant's trial at sentencing hearing). These cases are

unpersuasive for the simple fact that they address sentencing.

Caraballo is not challenging his sentence; he is challenging his

conviction, and we have not yet disregarded evidentiary rules when

reviewing a conviction. In any case, regardless of whether the

17
It is worth noting that although I agree with the majority
that a document need not be admissible in evidence to be part of
the record on appeal, it would need to be admissible for a district
judge to consider it, and we would rule it error for the district
judge to have relied on inadmissible evidence in coming to its
conclusion. See Orta-Castro v. Merck, Sharp & Dohme Química P.R.,
Inc., 447 F.3d 105, 114 (1st Cir. 2006).

-39-
supplemental appendix is being used to sustain a conviction or a

sentence, it was not presented to the district court in Caraballo's

misprision case, and as such, we may not consider it. United

States v. Muriel-Cruz, 412 F.3d 9, 12 (1st Cir. 2005) ("Absent

extraordinary circumstances, not present here, we consult only the

record extant at the time the district court rendered its

decision."); United States v. Onyejekwe, No. 94-1772, 1995 WL

397015, at *1 n.1 (1st Cir. July 6, 1995) (unpublished opinion)

("We note that appellant's appendix includes many documents which

were not filed in the district court--including transcripts of

testimony before the grand jury--and are, thus, outside the record.

These latter documents, of course, cannot inform our decision [on

the appellant's sentencing appeal]." (citation omitted)). Simply

put, the majority offers no compelling reason for us to disregard

our consistently applied rule that we only consider evidence

presented in the district court. I see no reason to disregard it

in this case.18

18
In similar cases, where a defendant has challenged the
factual basis of a plea and the Government has responded with
additional evidence, other courts have suggested that a court might
either vacate the plea entirely or simply remand the case to the
district court for consideration of the new evidence. See, e.g.,
United States v. Goldberg, 862 F.2d 101, 107 (6th Cir. 1988) ("The
second alternative is to remand the case to permit the government
to supplement the record on the issue of 'active concealment' in an
attempt to satisfy the district court of the existence of a factual
basis for Goldberg's plea of guilty."). By deferring to a district
court's expertise in fact-finding, this would seem to be a more
sensible resolution of Caraballo's objection to the supplemental
appendix.

-40-
 II. Caraballo's Plea

A. Standard of Review

Before accepting a plea agreement, the Federal Rules of

Criminal Procedure require that a district court "determine that

there is a factual basis for the plea." Fed. R. Crim. P. 11(b)(3).

Thus, the district court must make a finding that "on the record as

it stands at the time of the plea," it has "a reasoned basis to

believe that the defendant actually committed the crime to which he

is admitting guilt." United States v. Matos-Quiñones, 456 F.3d 14,

21 (1st Cir. 2006). "The purpose of this requirement is to

'protect a defendant who is in the position of pleading voluntarily

with an understanding of the nature of the charge but without

realizing that his conduct does not actually fall within the

charge.'" United States v. Ventura-Cruel, 356 F.3d 55, 59-60 (1st

Cir. 2003) (quoting Advisory Committee Notes to the 1966 Amendment

to Fed. R. Crim P. 11.).

When an appellant pleads guilty and does not move to

withdraw his plea on the basis that the district court did not

comply with Rule 11, the Supreme Court has held that the

appropriate standard of review is plain error. United States v.

Vonn, 535 U.S. 55, 58-59 (2002). Thus, Caraballo must demonstrate

that "(1) there was error; (2) the error was plain; (3) the error

affected the defendant's substantial rights; and (4) the error

adversely impacted the fairness, integrity, or public reputation of

-41-
judicial proceedings." United States v. Riggs, 287 F.3d 221, 224

(1st Cir. 2002).

B. Was There Plain Error?

Caraballo pled guilty to misprision of a felony in

violation of 18 U.S.C. § 4, which provides:

Whoever, having knowledge of the actual
commission of a felony cognizable by a court
of the United States, conceals and does not as
soon as possible make known the same to some
judge or other person in civil or military
authority under the United States, shall be
fined under this title or imprisoned not more
than three years, or both.

The majority and I are in general agreement on the facts.

Caraballo was offered the opportunity to help his partner, a

corrupt police officer, with "escorting" cocaine to a drop-point at

the Carolina Mall in Puerto Rico. Caraballo called the DEA and

told them of the plan, but refused to give his name or the names of

those involved.19

19
The majority's version of the facts relies heavily upon the
supplemental appendix provided by the Government, which, as I have
stated, cannot be considered on appeal because it was not presented
to the district court. Thus, for example, we may not consider any
of the evidence presented that Caraballo had actually committed the
crime of conspiracy, a fact which has never been proven in any
court. The prosecutor's fleeting reference to "Caraballo and his
co-conspirators" does not establish Caraballo's guilt, especially
when one considers that the full statement made during the plea
colloquy was "Specifically, when the agents asked him for
information regarding the conspiracy that might identify the
Defendant or his co-conspirators, or the conspirators in the case,
he declined to furnish the specific information regarding the plot
at that time."

However, to the extent that the majority relies on the

-42-
 There is no dispute that Caraballo had knowledge of the

"actual commission" of a felony.20 For the purposes of argument,

I will assume that Caraballo did not make the felony known "as soon

as possible" to the authorities.21 The question then is whether

Caraballo "concealed" the felony. The majority acknowledges the

absence of any act of concealment on Caraballo's part and instead

relies on two theories without any support in the law, which

Government's supplemental appendix, I would add that not only did
Caraballo-Rodríguez make a full report to the DEA regarding what
happened during the cocaine escort, but he also gave the DEA all of
the money he had received, a fact not mentioned by the majority.
20
The only felony whose "actual commission" Caraballo is
alleged to have known was a conspiracy to distribute cocaine. 21
U.S.C. § 846. The majority also alleges that Caraballo was a
member of this conspiracy. Thus, in effect, the majority suggests
that we are able to punish Caraballo for failing to report his own
crime. Certainly, criminally punishing someone for failing to
incriminate themselves implicates the Fifth Amendment privilege
against self-incrimination. See United States v. Kuh, 541 F.2d
672, 677 (7th Cir. 1976) ("If the duty to notify federal
authorities [of criminal conduct] is precluded by constitutional
privilege, it is difficult to understand how a conviction [for
misprision] could be substantiated [when the defendant is also
involved in the criminal conduct]."). The majority suggests that
by pleading guilty, defendants waive this privilege. However, it
would be a very odd crime indeed which could only be prosecuted by
guilty plea.
21
Although I assume this fact for the sake of argument, it is
not entirely clear. First, in his initial call to the DEA,
Caraballo did in fact make the conspiracy "known," although he did
not provide additional details. In addition, under the majority's
version of the facts, which are tainted by reference to the
supplemental appendix, Caraballo later called the Government and
informed them in painstaking detail about the conspiracy. The
Government makes no attempt to argue that this later report was not
made "as soon as possible."

-43-
constitutes an overextension of the plain error doctrine, to

circumvent the affirmative act requirement.

1. Misprision Requires An Affirmative Act

First, the majority suggests that, in fact, 18 U.S.C. § 4

contains no requirement that a defendant commit an affirmative act

of concealment. Thus, the majority attempts to write the word

"conceals" out of the statute and suggests that Caraballo can be

convicted solely on the basis of (1) knowledge of a felony and (2)

inaction. In effect, the majority suggests that 18 U.S.C. § 4

imposes an affirmative duty on every citizen to report any crime

that is "known" to them. I agree with the majority that, in

general, it would be beneficial to have our citizenry report

crimes. See Roberts v. United States, 445 U.S. 552, 558 (1980)

("[G]ross indifference to the duty to report known criminal

behavior remains a badge of irresponsible citizenship.").

That, however, is not the law. The misprision statute

imposes no legal obligation on citizens to report crime, especially

where failure to comply with that obligation is criminally

punishable.22 Every court to have considered the issue, including

22
In fact, it is the lack of affirmative duties (including a
duty to report crimes) that remains one of the hallmarks of the
distinction between common law jurisdictions (such as the United
States) and civil law jurisdictions (such as those in Europe).
Compare Martin Vranken, Duty to Rescue in Civil Law and Common Law:
Les Extrêmes Se Touchent?, 47 Int'l & Comp. L. Q. 934, 937 (1998)
(noting that "the French [civil] legal system can lay claim to
[providing] 'the greatest encouragement to the Good Samaritan'"),
with Liam Murphy, Beneficence, Law, and Liberty: The Case of

-44-
the Supreme Court, has reached the same conclusion. See Roberts,

445 U.S. at 558 n.5 ("[The misprision statute] has been construed

to require 'both knowledge of a crime and some affirmative act of

concealment or participation.'");23 Branzburg v. Hayes, 408 U.S.

665, 696 n.36 (1972) (same); United States v. Bolden, 368 F.3d

1032, 1037 (8th Cir. 2004) ("[Misprision] requires proof of

'affirmative steps' to conceal a known felony. . . ."); Itani v.

Ashcroft, 298 F.3d 1213, 1216 (11th Cir. 2002) ("Misprision of a

felony 'require[s] both knowledge of a crime and some affirmative

act of concealment or participation.'" (alteration in original));

United States v. Gebbie, 294 F.3d 540, 544 (3d Cir. 2002) (holding

Required Rescue, 89 Geo. L.J. 605, 606 (2001) (discussing the
common law maxim that "positive legal duties threaten the common
law's traditional deference to individual liberty"). To the extent
that our system of law has imposed duties to act, they have been
imposed in order to prevent harm or peril to another. See
generally Melody J. Stewart, How Making the Failure to Assist
Illegal Fails to Assist: An Observation of Expanding Criminal
Omission Liability, 25 Am. J. Crim. L. 385, 392-96 (1998)
(discussing the role of traditionally recognized criminal-law
duties). Furthermore, criminal liability for omissions has been
imposed only when the defendant's omission can be said to have
caused the harm or peril. See Arthur Leavens, A Causation Approach
To Criminal Omissions, 76 Cal. L. Rev. 547, 562 (1988) (recognizing
"the critical underlying premise that criminal omissions can occur
only in 'cause-and-result' crimes, that is, crimes that proscribe
the causation of a particular harm"). The misprision statute
addresses conduct after any harm has occurred because it punishes
concealment only after the actual commission of a felony.
Furthermore, misprision does not appear to incorporate any element
of causation, thus further suggesting that any common law analysis
of criminal omission liability is inapposite.
23
It is worth noting that this is the "footnote omitted" in the
long quote from Roberts on pages 20-21 of the majority opinion.

-45-
that an element of misprision is that defendant "took steps to

conceal the crime"); United States v. Cefalu, 85 F.3d 964, 969 (2d

Cir. 1996) (same); United States v. Vásquez-Chan, 978 F.2d 546, 555

(9th Cir. 1992) ("that the defendant took an affirmative step to

conceal the crime"); United States v. Adams, 961 F.2d 505, 508-09

(5th Cir. 1992) ("must commit an affirmative act"); United States

v. Goldberg, 862 F.2d 101, 104 (6th Cir. 1988) ("[Misprision

requires that] the defendant took affirmative steps to conceal the

crime of the principal. Mere knowledge of the commission of the

felony or failure to report the felony, standing alone, is

insufficient to support a conviction for a misprision of a

felony."); United States v. Andrews, 790 F.2d 803, 809 (10th Cir.

1986) ("the accused took an affirmative step to conceal the

crime"); United States v. Sampol, 636 F.2d 621, 653 (D.C. Cir.

1980) ("wilful concealment from the authorities by some affirmative

act"); United States v. Kuh, 541 F.2d 672, 676 (7th Cir. 1976)

("[Misprision] consists of an act of concealment in addition to

failure to disclose, so that the statute did not purport to punish

one solely for failure to report facts which he has reasonable fear

might lead to his conviction of crime."). Legal commentators,

including those cited by the majority, have been equally unanimous

in their understanding that the misprision statute, as it currently

stands, "has been uniformly construed to require both active

concealment and a failure to disclose." Christopher Mark Curenton,

-46-
Comment, The Past, Present, and Future of 18 U.S.C. § 4: An

Exploration of the Federal Misprision of Felony Statute, 55 Ala. L.

Rev. 183, 185 (2003)("In order for a conviction to be sustained,

there must be a concealment--not merely an omission or failure to

report criminal activity."); see also Carl Wilson Mullis, III,

Comment, Misprision of Felony: A Reappraisal, 23 Emory L.J. 1095,

1103 (1974) ("Bratton [v. United States, 73 F.2d 795 (10th Cir.

1934)] firmly established the necessity of a positive act of

concealment for violation of the federal misprision statute.").

The result is that it is fairly plain from the statute that the

language "conceals and" requires an affirmative act:

The language is "conceals and does not as soon
as may be disclose." [sic] Some meaning must
be given to the words "conceal and." If it
should be held that a failure to disclose is
in itself a concealment, then a conviction may
be had for a failure to disclose without more,
and the words "conceal and" are thus
effectively excised from the statute.
Following settled rules of construction, we
must assume that Congress intended something
by the use of the words "conceal and."

Bratton, 73 F.2d at 797.

Nevertheless, the majority cites United States v.

Vázquez-Alomar, 342 F.3d 1 (1st Cir. 2003), as providing support

for the lack of an affirmative act requirement. I disagree with

their reading. Vázquez-Alomar simply stated that the defendant

"did not inform the authorities of these conversations, as federal

law requires. [18 U.S.C.] § 4." 342 F.3d at 2. Vázquez-Alomar did

-47-
not involve any challenge to or question regarding the defendant's

conviction for misprision. This naked citation appears to have

been provided merely as background to a case dealing with a

defendant's appeal of the district court's application of unrelated

sentencing guidelines. Id. at 5-6. It is at a minimum difficult

to conclude from this brief offhand comment in a sentencing case,

unaccompanied by any further explanation, that this Circuit

intended to split with over seventy years of pronouncements on the

elements of misprision by the Supreme Court and ten other courts of

appeal.

The majority also suggests that United States v.

Ciambrone, 750 F.2d 1416 (9th Cir. 1984), is of little use to

Caraballo. In fact, in Ciambrone, the Ninth Circuit found that

partial but truthful disclosure of a crime to the police was not

the required "affirmative act" for the purposes of the misprision

statute. Id. at 1418. This conclusion is logical, given that a

partial and truthful disclosure provides the authorities with, at

worst, no information, and at best, some helpful information.

Accordingly, such disclosures cannot be considered an "affirmative

act of concealment." The majority criticizes Ciambrone on two

grounds. First, the majority notes that no other court has

followed Ciambrone. But a number of courts have cited Ciambrone

for the proposition that an affirmative act of concealment is

required. See, e.g., Cefalu, 85 F.3d at 969; United States v.

-48-
Vásquez-Chan, 978 F.2d 546, 555 (9th Cir. 1992); Goldberg, 862 F.2d

at 104-105; United States v. Weekley, 389 F. Supp. 2d 1293, 1297

(D. Ala. 2005). The majority also argues that Ciambrone departs

from the common law position that no affirmative act is required.24

This is true, but the common law position on misprision is of

limited relevance because Congress was free to depart from the

common law in requiring an affirmative act for the misprision

offense. There are no federal common law crimes. Liparota v.

United States, 471 U.S. 419, 424 (1985). Given the unanimity of

decisions stating that misprision does require an affirmative act,

it is clear that Ciambrone does represent a proper interpretation

of the law.

The majority then departs even further from the

misprision statute in suggesting that the affirmative act

requirement may be excused because Caraballo was a police officer,

and he had a duty to report crime under P.R. Laws Ann. tit. 25,

§ 3102. As an initial matter, the majority's references to English

common law are of questionable relevance to this analysis. It has

24
On page 26 and in footnote 10 of the majority opinion, the
majority also suggests that "even a truthful but partial disclosure
could conceal by misleading." This is another example of the
majority stretching the definition of the statute in favor of the
Government. In addition, the Government made no allegation of fact
in the district court that Caraballo's brief phone call to the DEA
was misleading. That the partial disclosure might have been
misleading in other circumstances seems utterly irrelevant
considering that the Government in this case had full knowledge of
the facts.

-49-
long been understood that "[t]he definition of the elements of a

criminal offense is entrusted to the legislature, particularly in

the case of federal crimes, which are solely creatures of statute."

Liparota, 471 U.S. at 424; see also United States v. Hudson &

Goodwin, 11 U.S. 32, 33 (1812) (deciding that federal courts could

not "exercise a common law jurisdiction in criminal cases."). That

misprision was thought to have been an appropriate charge for

derelict officers in fifteenth century England is nothing more than

an interesting historical footnote, unless the majority can show

that Congress considered and adopted this history in drafting 18

U.S.C. § 4.25 Modern English law decisions are of even less

relevance, as they fail to reflect the common law as it existed

when Congress was drafting the misprision statute. Perhaps the

majority emphasizes the history of the misprision crime in England

because in this country, there is no support in the plain language

of the statute or the case law for excusing the affirmative act

requirement for police officers.26 Even the law review note cited

by the majority agrees that current law provides no such support.

25
Of course, to date, no reported decision in the history of
jurisprudence in the United States has mentioned what would appear
to be a fairly large "exception" to the affirmative act
requirement.
26
That Caraballo was a state police officer who is being
punished for failing to report a federal crime to federal
authorities may raise federalism concerns. See Printz v. United
States, 521 U.S. 898, 922 (1997) (finding that requiring state
officers to enforce a federal gun-control law violates the tenth
Amendment).

-50-
Curenton, supra, 55 Ala. L. Rev. at 185 ("[U]nlike its English

counterpart, the phrasing 'conceals and does not as soon as

possible make known' has been uniformly construed [by American

courts] to require both active concealment and a failure to

disclose.").

Even if the Government's second theory were plausible, it

suffers from an additional serious defect. The class of people in

this country with some sort of duty to report crime is quite

numerous. See, e.g., 28 U.S.C. § 547 ("[E]ach United States

attorney, within his district, shall--(1) prosecute for all

offenses against the United States."); Hagood v. Sonoma County

Water Agency, 81 F.3d 1465, 1480 (9th Cir. 1996) ("[A]ll federal

employees labor under a duty to report fraud against the

government."). Although many officers of the Government labor

under such a duty to report wrongdoing, it is clear from Supreme

Court precedent that these duties to report crime are not absolute.

With respect to police officers, there is a "deep-rooted nature of

law-enforcement discretion, even in the presence of seemingly

mandatory legislative commands." Town of Castle Rock v. Gonzáles,

545 U.S. 748, 760-61 (2005). In fact, in Town of Castle Rock, the

Court explicitly stated that duty-to-report statutes (such as P.R.

Laws. Ann. tit. 25, § 3102) "clearly do not mean that a police

officer may not lawfully decline to make an arrest." Id. (quoting

1 ABA Standards for Criminal Justice 1-4.5, commentary, at 1-124 to

-51-
1-125 (2d ed. 1980)).27 Given that Caraballo could have "lawfully

decline[d] to make an arrest" in this case, I have some difficulty

with the proposition expounded by the majority, based on irrelevant

English common law, that under the facts of this case he incurred

federal criminal liability under the misprision statute.

2. Accepting Caraballo's Plea Was Plain Error

Finding no support for either of the aforementioned

theories, the majority then resorts to the plain error standard to

sustain Caraballo's conviction. Having conceded that it might be

error for the court to have overlooked the affirmative act

requirement, the majority suggests that it was not plain error

because no decision of this Circuit has ever rejected the

extraordinary theory that a citizen may be convicted under federal

law for merely failing to report a crime. But in accepting

Caraballo's plea, it was incumbent on the district court to examine

"the relation between the law and the acts the defendant admits

having committed." McCarthy v. United States, 394 U.S. 459, 467

(1969). Not only does the misprision statute make clear that an

element of "concealment" is required, but two Supreme Court cases

and unanimity in the case law should be sufficient to make the

error in the majority's reasoning "plain." See United States v.

27
Town of Castle Rock found that a police officer's failure to
perform his statutory duty to report and investigate crime could
not even give rise to civil, let alone criminal, liability. Id. at
766.

-52-
Rodríguez-Pacheco, 475 F.3d 434 (1st Cir. 2007) (discussing the

fact that the majority's reading of an ambiguous question of prior

precedent "agrees with that of every circuit that has addressed the

question"); see also Colby v. J.C. Penney Co., 811 F.2d 1119, 1123

(7th Cir. 1987) ("Bearing in mind the interest in maintaining a

reasonable uniformity of federal law and in sparing the Supreme

Court the burden of taking cases merely to resolve conflicts

between circuits, we give most respectful consideration to the

decisions of the other courts of appeals and follow them whenever

we can."). The decisions of the Supreme Court and our sister

circuits are most certainly difficult to overlook. That our court

has not spoken as to the issue should not foreclose a finding of

"plain error," especially given the "archaic" and "uncommon" nature

of the crime. Roberts, 445 U.S. at 558; Goldberg, 862 F.2d at 109.

Otherwise, under the majority's approach, any theory of conviction,

regardless of its support in the law, could pass plain error review

so long as we have not rejected it.

The majority also suggests that we may affirm Caraballo's

conviction because the district court merely chose between two

competing interpretations of the misprision statute. Although we

have held that a court's choice of two competing interpretations of

a statute will not be disturbed on a plain error standard, these

competing interpretations have had some support in the case law.

See, e.g., Correa v. Hospital San Francisco, 69 F.3d 1184, 1196-97

-53-
(1st Cir. 1995) (finding support for both plaintiff's and

defendant's interpretations of 42 U.S.C. § 1395dd(d)(2) in

decisions from other circuits). Here, as the majority concedes,

any interpretation of the misprision statute that does not require

an affirmative act is not truly "competing": no court anywhere has

adopted either of the Government's proposed interpretations, and in

fact, every court to have considered them has rejected them.28

The majority also suggests that even if there was plain

error, it was not prejudicial. This conclusion rests on the

statement in United States v. Domínguez Benítez that to prove

prejudice, a defendant must "show a reasonable probability that,

but for the error, he would not have entered the [guilty] plea."

542 U.S. 74, 83 (2004). We have applied this standard before where

a defendant has argued that there was no factual basis to support

his guilty plea. See United States v. Delgado-Hernández, 420 F.3d

16, 20 (1st Cir. 2005). Likewise, the majority suggests that

Caraballo's conviction did not "adversely impact[] the fairness,

28
Moreover, if Caraballo had taken the time to pore over all
of the court decisions on this question, he would have found no
indication whatsoever that his failure to report the conspiracy was
criminally punishable. "Obviously, citizens should not be subject
to punishment without fair notice that their conduct is prohibited
by law." United States v. Thompson/Center Arms Co., 504 U.S. 505,
525 (1992). There is no reason to think that this requirement is
somehow less valid when a defendant pleads guilty to a crime. By
dodging the question of whether failure to report a felony
constitutes misprision, the majority creates substantial
uncertainty as to whether such omissions may be punished in the
future.

-54-
integrity, or public reputation of judicial proceedings." Riggs,

287 F.3d at 224.

It is hard for me to see how Caraballo would not be

prejudiced, or the public reputation of judicial proceedings would

not be adversely impacted if we affirm his conviction without any

factual basis to support it. First, it is important to point out

that in Delgado-Hernández, we decided that the Defendant was not

prejudiced by his guilty plea because it was supported by an

adequate factual basis. Id. at 32. We found, based on the

evidence placed on the record before the district court, that if

the Government had made a proper factual proffer, it could have

established a factual basis for the defendant's plea. Id. at 29;

see also United States v. Sawyer, 239 F.3d 31, 50 (1st Cir. 2001)

("To justify Sawyer's guilty plea, it was enough that the

government pointed to evidence, or proffered facts, that would

furnish a rational basis for the plea.") (Boudin, J., concurring).

The same cannot be said here, where accepting all of the

Government's factual allegations as true, there is still no

evidence to establish an affirmative act of concealment.

Furthermore, the entire purpose of the Rule 11

requirement that a district court find a factual basis for a plea

is to "protect a defendant who is in the position of pleading

voluntarily with an understanding of the nature of the charge but

without realizing that his conduct does not actually fall within

-55-
the charge." McCarthy, 394 U.S. at 467 (quoting Fed. R. Crim. P.

11, advisory committee's note). To put it another way, we do not

allow a defendant to plead guilty without making some sort of

determination, however cursory, that the defendant's conduct is

criminally punishable. As the record stands, even assuming the

complete truth of the Government's allegations, Caraballo plainly

did not commit the crime of misprision because he did not commit an

affirmative act of concealment. Nevertheless, he was allowed to be

convicted. Thus, there is before us the conviction of a man who is

plainly not guilty of the crime for which he was charged. A

miscarriage of justice more prejudicial would be difficult to

find.29

The Chief Judge's concurrence improves on the majority

opinion by not giving much credence to either of the Government's

proposed theories. But the concurrence still gets it wrong. When

a defendant challenges a plea accepted by the district court, we

29
Many courts have stated that the government's failure to
prove each element of an offense beyond a reasonable doubt at trial
is both prejudicial and a miscarriage of justice. See, e.g.,
United States v. Groves, 470 F.3d 311, 327-328 (7th Cir. 2006)
("[A]llowing a conviction to stand without proof of an essential
element of the crime meets the standard for plain error . . . .");
United States v. Gaydos, 108 F.3d 505, 509 (3d Cir. 1997) ("We
believe that affirming a conviction where the government has failed
to prove each essential element of the crime beyond a reasonable
doubt 'affects substantial rights,' and seriously impugns 'the
fairness, integrity and public reputation of judicial
proceedings.'"). Here, the Government cannot even meet the minimal
burden of showing that Caraballo committed a crime taking as true
all of the facts that the Government alleged.

-56-
grant the Government the extraordinary indulgence of not requiring

that they provide any evidence to support the plea. See, e.g.,

United States v. Fountain, 777 F.2d 351, 355 (7th Cir. 1985) ("A

sufficient factual basis can be found even when the court engages

in the most rudimentary questioning of the defendant if the

indictment and statement of the prosecution's evidence are

sufficiently specific to make clear to the defendant exactly what

is being admitted to."). We will allow a plea to rest on the

Government's allegations alone, so long as they were presented to

the district court. Sawyer, 239 F.3d at 50 (Boudin, J.,

concurring). This supports the policy of discouraging defendants

from seeking to withdraw their pleas by later claiming, "I didn't

do it."

However, the law does not allow us to affirm a plea

simply because the Government states "the defendant committed a

crime." Rather, we must determine that the defendant's conduct, as

alleged by the Government, constitutes a crime. See United States

v. Negrón-Nárvaez, 403 F.3d 33, 37 (1st Cir. 2005) ("At its most

abecedarian level, the requirement that a guilty plea must be

supported by an adequate factual basis ensures that the conduct to

which the defendant admits constitutes the crime with which he is

charged."). Not "maybe a crime," not "possibly a crime," but a

crime as codified in the United States Code. The misprision

statute, codified at 18 U.S.C. § 4, requires "concealment." Any

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reasonable reading of this statute suggests that an affirmative act

is required, as has been confirmed by years of unanimous precedent.

The majority and concurring opinions raise the question of whether

we should decide that a defendant can be convicted because he might

have committed a crime that we might define differently in the

future. In a system of justice that requires that defendants be

provided with notice of prohibited conduct, the answer is a clear

"No."

Finally, I think it is important to address the majority

opinion's concluding statements. The majority assuages its

concerns about the result by stating that Caraballo "participated

in a major drug conspiracy," and that other officers in the

conspiracy received lengthy terms of imprisonment. Thus, the

majority contends, Caraballo benefitted from his plea agreement and

is now looking a gift-horse in the mouth. It has long been my

understanding that defendants are entitled to the presumption of

innocence until proven guilty. Caraballo's indictment alone does

not establish that he is guilty of the crimes charged. Perhaps he

did, as the majority contends, plead guilty to avoid prison time on

more serious charges. Perhaps the Government had an interest in

offering Caraballo a plea, as the concurrence suggests, because the

Government had concerns about its own ability to obtain a

conviction in the conspiracy case. Perhaps Caraballo was

erroneously told that misprision charge against him was airtight

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because it required no showing of an affirmative act. We may never

know why Caraballo pled guilty to the misprision charge, but it is

ultimately irrelevant. Our country is a nation of laws, and we do

not countenance the conviction of a defendant for a crime he did

not commit simply because we suspect that he was bad or may have

committed other crimes. A defendant must engage in the proscribed

charged conduct to be found guilty of a crime, whether by plea or

by trial. Because Caraballo did not engage in the conduct

proscribed by 18 U.S.C. § 4, I would reverse his conviction.

Accordingly, I dissent.

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