United States v. Medina - Roman

United States Court of Appeals
For the First Circuit

No. 02-2392

UNITED STATES OF AMERICA,

Appellee,

v.

KEILA MEDINA-ROMÁN,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. José Antonio Fusté, U.S. District Judge]

Before

Torruella, Circuit Judge,
Coffin, Senior Circuit Judge,
and Lipez, Circuit Judge.

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

July 12, 2004
 TORRUELLA, Circuit Judge. Keila Medina-Román ("Medina")

seeks an opportunity to withdraw her plea of guilty to the charge

of aiding and abetting the carrying of a firearm in the commission

of a drug trafficking offense in violation of 18 U.S.C. § 924

(c)(1).1 Medina challenges the district court's colloquy under

Fed. R. Crim. P. 11, arguing that she was inadequately informed of

the elements of the crime to which she pleaded guilty. Because

Medina did not object to the Rule 11 proceedings below, we review

under the plain error standard. See United States v. Vonn, 535

U.S. 55, 59 (2002). After careful review, we affirm Medina's

conviction.

I.

Medina was a police officer for the Commonwealth of

Puerto Rico when she became involved in a conspiracy to distribute

controlled substances. The operation involved the transport for

payment of what Medina and her co-defendants believed to be a

1
This sub-section enhances the sentences of

any person who, during and in relation to any
crime of violence or drug trafficking crime
(including a crime of violence or drug
trafficking crime that provides for an
enhanced punishment if committed by the use of
a deadly or dangerous weapon or device) for
which the person may be prosecuted in a court
of the United States, uses or carries a
firearm, or who, in furtherance of any such
crime, possesses a firearm . . . .

18 U.S.C. § 924(c)(1)(A).

-2-
quantity of cocaine. On November 11, 2001, Medina was indicted on

seven counts along with three co-defendants, including her husband

Richard Díaz-Baerga. Arrested on November 27th, Medina pleaded not

guilty to all counts at her arraignment three days later. After

the government filed motions designating evidence, Medina filed for

a change of plea hearing, which was granted.

During the plea colloquy at issue, Medina pleaded guilty

to Counts One, Two, and Seven, pursuant to a written plea agreement

with the government filed that day.2 With respect to Count Two,

charging Medina and Díaz-Baerga with aiding and abetting each other

in carrying firearms in relation to a drug trafficking offense,

Medina informed the district court that although she was aware that

there were weapons in the conspiracy, she herself never carried a

weapon.

The question before us is whether the colloquy that

ensued demonstrates that the district court "inform[ed] [Medina]

of, and determine[d] that [she] underst[ood] . . . the nature of

the charge to which the plea [was] offered," Fed. R. Crim. P.

11(c)(1), and if not, whether any error commands the exercise of

our discretion to give Medina an opportunity to withdraw her plea.

2
Count One charged Medina with conspiracy to distribute
controlled substances in violation of 21 U.S.C. §§ 841(a)(1) and
846. Count Two, at issue in this appeal, charged aiding and
abetting the carrying of firearms in violation of 18 U.S.C. § 924
(c)(1)(A), and Count Seven charged forfeiture under 21 U.S.C.
§ 853. As part of the plea agreement, all other counts against
Medina were dismissed.

-3-
 II.

Rule 11(c)(1)3 establishes a procedure for district

courts to ensure that a plea of guilty is constitutionally valid.

Above all else, a plea must be "'voluntary' and 'intelligent.'"

Bousley v. United States, 523 U.S. 614, 618 (1998) (quoting Brady

v. United States, 397 U.S. 742, 748 (1970)). The Supreme Court has

"long held that a plea does not qualify as intelligent unless a

criminal defendant first receives 'real notice of the true nature

of the charge against [her], the first and most universally

recognized requirement of due process.'" Id. (quoting Smith v.

O'Grady, 312 U.S. 329, 334 (1941)). Reading the indictment to the

defendant is not enough if "the District Court subsequently

misinformed [her] as to the elements of a § 924(c)(1) offense."

Id.

The first step, then, is to ascertain the elements the

government would have to prove to convict Medina under Count Two.

The parties direct us to superficially divergent circuit authority

which we must reconcile in order to proceed. The government

contends that its burden at trial would be to "prove that the

accomplice must have known 'to a practical certainty' that a

3
The colloquy took place on April 26, 2002, prior to the
amendment of Rule 11 on December 1, 2002. The operative language
from the former Rule 11(c)(1) is now found at Rule 11(b)(1)(G).

-4-
firearm would be used or carried during a qualified offense."4 To

support this proposition, the government relies primarily on United

States v. Balsam, 203 F.3d 72 (1st Cir. 2000), and United States v.

DeMasi, 40 F.3d 1306 (1st Cir. 1994). Medina, on the other hand,

draws our attention to United States v. Luciano-Mosquera, 63 F.3d

1142 (1st Cir. 1995), to support her contention that the government

carries the burden of not one, but two, elements on this count: it

must show the defendant's knowledge of the co-defendant's

"carrying" of a firearm and, further, that the defendant has "taken

some affirmative action that facilitated violation of § 924(c)(1)."

Id. at 1150.

Our cases have failed to make transparent the relation

between these two articulations, and as we must begin our analysis

of the Rule 11 proceedings with an understanding of what Medina

4
In its brief, the government states that "[s]ince a Pinkerton-
type of liability is appropriate as an alternative theory in a
§ 924(c) violation, Keila Medina-Román could be held responsible
for a firearm carried by a co-conspirator in furtherance of a drug
trafficking crime, if she was a member of the conspiracy, and if it
was reasonably foreseeable to her that a firearm would be carried
in relation to the drug trafficking offense." It is true that a
jury may be instructed to consider the liability theory established
in Pinkerton v. United States, 328 U.S. 640 (1946), as an
alternative ground for conviction under § 924(c)(1) in addition to
an aiding and abetting theory under 18 U.S.C. § 2. United States
v. Shea, 150 F.3d 44, 49-51 (1st Cir. 1998). During the colloquy,
however, the government stated before the district court that
"Count Two is charged under the aiding and abetting theory."
Because Medina was not informed that she was chargeable with Díaz-
Baerga's carrying of a firearm under the Pinkerton reasonable
foreseeability standard, our review of the adequacy of the Rule 11
proceedings tracks the aiding and abetting charge and its burdens
of proof.

-5-
should have understood the government to be required to prove at

trial, we will take the opportunity to discuss the matter here.

The roots of modern doctrines of aiding and abetting liability can

be traced to Judge Learned Hand's famous formulation in United

States v. Peoni, 100 F.2d 401, 402 (2d Cir. 1938), and the Supreme

Court's endorsement of that formulation in Nye & Nissen v. United

States, 336 U.S. 613, 619 (1949). As stated by the Court:

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

Id. (quoting Peoni, 100 F.2d at 402). That concise expression has

been the source of multifarious approaches to the difficult task of

determining what the law requires to convict an accomplice as a

principal. See generally Baruch Weiss, What Were They Thinking?:

The Mental States of the Aider and Abettor and the Causer under

Federal Law, 70 Fordham L. Rev. 1341 (2002). We have recognized

that the requisite burden of proof can vary from one aiding and

abetting crime to another. See, e.g., United States v. Spinney, 65

F.3d 231, 236-37 (1st Cir. 1995) (noting that conviction for aiding

and abetting firearm charge under 18 U.S.C. § 2113(d) requires

lesser degree of knowledge than under 18 U.S.C. § 924(c)). We are

-6-
concerned here with the crime of aiding and abetting the use or

carrying of a firearm in violation of 18 U.S.C. § 924(c)(1).5

Our cases treating the subject have generally involved a

claim that the government introduced insufficient evidence to

support a conviction. In United States v. Torres-Maldonado, 14

F.3d 95 (1st Cir. 1994), we began our analysis by stating that,

"[i]t is well settled in the case law interpreting section

924(c)(1) that an 'accomplice must have known to a practical

certainty that the principal would be [using] a gun.'" Id. at 103

(quoting United States v. Powell, 929 F.2d 724, 728 (D.C. Cir.

1991)). The D.C. Circuit's holding in Powell, which we followed in

Torres-Maldonado, explains that the "[practical certainty] standard

puts the accomplice on a level with the principal, requiring the

same knowledge for both." Powell, 929 F.2d at 727 (citations

omitted). By recognizing that when an accomplice is practically

certain the principal will be carrying or using a gun he bears

guilt for the carrying or use of that weapon as if he were the

5
We follow circuit precedent in requiring the same standard of
culpability for conviction for aiding and abetting the use of a
firearm in violation of § 924(c)(1) as for aiding and abetting the
carrying of a firearm in violation of § 924(c)(1). See, e.g.,
United States v. Bennett, 75 F.3d 40, 45 (1st Cir. 1996); United
States v. Sullivan, 85 F.3d 743, 747-48 (1st Cir. 1996); United
States v. Otero-Méndez, 273 F.3d 46, 52-53 (1st Cir. 2001). But
see Note, A Question of Intent: Aiding and Abetting Law and the
Rule of Accomplice Liability Under 924(c), 96 Mich. L. Rev. 783,
799 (1997) (recommending a more stringent burden of proof for
conviction for aiding and abetting the carrying of a firearm as
opposed to its use).

-7-
principal, Powell invokes the Peoni principle: if this accomplice

is participating in the predicate crime with a practical certainty

that his co-defendant is also violating § 924(c)(1), then the

elements are present to infer that regarding the carrying or use of

the firearm the abettor has "in some sort associate[d] himself with

the venture . . . , he participate[d] in it as in something that he

wishe[d] to bring about, [and] that he [sought] by his action to

make it succeed." Nye & Nissen, 336 U.S. at 619.

In Luciano-Mosquera, 63 F.3d 1142, we were faced with

several defendants challenging, inter alia, the sufficiency of the

evidence on aiding and abetting § 924(c) charges. The case

involved a major drug delivery to a Puerto Rico beach. After a

raid, officers arrested a number of men and found an M-16

underneath a jeep where several of them were hiding. After citing

to the Peoni formulation (as expressed in First Circuit case law),

we explained that

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

Id. at 1150 (emphasis supplied) (citation omitted). This language

indicates that proof of aiding and abetting the carrying of a

firearm includes a distinct facilitation element. "Of course,

knowledge that a gun would be carried is also required." Id.

-8-
(citing Torres-Maldonado, 14 F.3d at 103, and DeMasi, 40 F.3d at

1316).

The circumstances in Luciano-Mosquera required us to

delimit a reasonable factfinder's capacity to infer aiding and

abetting the carrying or use of a firearm based on involvement in

a drug or violent conspiracy. As to defendant Lugo-Maya, we could

not find the basis for the necessary inferences:

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

Id. Without addressing whether Lugo-Maya possessed the requisite

knowledge, we determined that his conviction had to be reversed

given the dearth of evidence associating Lugo-Maya in any way with

that part of the drug conspiracy which involved the M-16.

The "practical certainty" test for aiding and abetting

liability is not applied in a vacuum: a defendant's knowledge that

his confederate would carry or use a firearm can only support

aiding and abetting liability if the defendant somehow facilitated

that carrying. In the ordinary drug or violent crime, that

facilitation is part and parcel of the involvement in the drug or

-9-
violent scheme. Cf. DeMasi, 40 F.3d at 1316 n.10 (distinguishing

United States v. Medina, 32 F.3d 40 (2d Cir. 1994), in which Second

Circuit reversed conviction on insufficient evidence that defendant

"consciously and affirmatively assisted" in § 924(c) violation,

because the DeMasi defendant "was present at and played a

significant part in the attempted armed robbery"). In United

States v. Bennett, 75 F.3d 40 (1st Cir. 1996), we rejected a

challenge to the sufficiency of the evidence and observed,

reflecting on Luciano-Mosquera, that "once knowledge on the part of

the aider and abettor is established, it does not take much to

satisfy the facilitation element." Id. at 45.

Since Luciano-Mosquera, we have sometimes referenced the

two-part scheme defined there. See United States v. Otero-Méndez,

273 F.3d 46, 52 (1st Cir. 2001) ("prosecution must prove that

appellant knew a firearm would be carried or used in a crime of

violence and that he willingly took some action to facilitate that

carriage or use"); United States v. Sullivan, 85 F.3d 743, 748 (1st

Cir. 1996) ("evidence was sufficient to show that [defendant] knew

the shotgun would be used or carried during the robbery and that he

took some action intending to cause the gun to be used or

carried"); Bennett, 75 F.3d at 45 ("conviction can be sustained

. . . if [defendant] knew a firearm would be carried or used by a

co-conspirator in the drug trafficking offense and willingly took

some action to facilitate the carriage or use"). In other cases,

-10-
we have applied the uniform "practical certainty" test. See United

States v. Balsam, 203 F.3d 72, 83 (1st Cir. 2000) ("[T]he evidence

supported a rational inference that [defendant] knew to a

'practical certainty' that [co-conspirator] would use a gun in the

second robbery."); United States v. Spinney, 65 F.3d 231, 239-40

(1st Cir. 1995) ("This is the rare case in which the evidence . . .

fails the practical certainty test and, therefore, does not justify

the appellant's conviction for aiding and abetting the principal's

use of a firearm during and in relation to a crime of violence.").

While we acknowledge that the inconsistent expressions

may engender some confusion, we fail to find any contradiction in

the law. Knowledge is the central element of the crime of aiding

and abetting the carrying or use of a firearm in violation of § 924

(c)(1). To support aiding and abetting criminal liability under 18

U.S.C. § 2, that knowledge cannot be mere knowledge of a likelihood

that a firearm will be carried or used but rather must amount to a

practical certainty of the other's carrying or use. See Spinney,

65 F.3d at 238 ("'practical certainty' is a rubric that calls for

proof verging on actual knowledge"). That level of knowledge will

in many instances stem from such an intimate involvement in the

enterprise that the requirement for an affirmative action to

facilitate the crime inevitably will be met. In other

circumstances, however, a showing of knowledge to a "practical

certainty" may be insufficient on its own. That is to say, when an

-11-
accomplice's affirmative link to a principal's carrying or use of

a firearm is not implicit by virtue of participation in the

predicate crime, even where knowledge of the carrying or use of a

firearm could be inferred by a rational factfinder, the prosecution

must present evidence permitting the inference that the defendant

willingly took some step to facilitate the carrying or use in order

to convict of aiding and abetting in violation of § 924(c)(1). See

Luciano-Mosquera, 63 F.3d at 1150-51.

Accordingly, to convict Medina on a charge of aiding and

abetting a violation of § 924(c) "[t]he evidence [at trial would

be] sufficient [only if the government could] show that [Medina]

knew [to a practical certainty] the [firearm] would be used or

carried during the [drug trafficking offense] and that [she] took

some action intending to cause the gun to be used or carried."

Sullivan, 85 F.3d at 748 (citing Luciano-Mosquera, 63 F.3d at

1150). Therefore, Rule 11(c)(1) entitled Medina to be informed by

the district court, and to understand, that the government would

have to prove to a practical certainty her knowledge of Díaz-

Baerga's carrying of a firearm and that she willingly facilitated

that carrying.

III.

The district court told Medina that as to Count Two "the

government has to prove that the two defendants that I have

mentioned, yourself and your husband, were aiding and abetting each

-12-
other or helping each other to commit a crime." When asked, Medina

replied that she understood. The court added that "in the context

of that criminal conduct you knew that firearms would be used or

carried." When asked, Medina replied that she understood. The

court next stated: "And it's not necessarily determined whether you

had it in your pocket or in your holster or not -- do you

understand that -- as long as you people, the two of you, were

using firearms to commit the offense, that is enough for you to be

guilty of this crime. Do you understand that?" Medina responded

that she did. The district court then informed Medina of a further

component of the charge, with language that directly recalls Peoni:

"Here the government also has to prove that you knowingly did -- in

other words, that you had a bad purpose to disobey the law in using

[a firearm] in the context of aiding and abetting firearms during

the commission of a drug trafficking [offense]." When asked,

Medina replied that she understood.

While we have not explicitly emphasized the "bad purpose"

ingredient of a § 924(c)(1) aiding and abetting offense in our case

law, the foundation for Luciano-Mosquera's recognition of the

willing facilitation element was that mere knowledge does not make

a defendant an aider and abettor unless he has willingly done

something to bring about the other's carrying or use of a firearm.

See Luciano-Mosquera, 63 F.3d at 1149-50 ("Aiding and abetting

requires that 'the defendant [have] associated himself with the

-13-
venture, participated in it as in something he wished to bring

about, and sought by his actions to make it succeed.'") (quoting

United States v. Álvarez, 987 F.2d 77, 83 (1st Cir. 1993). In

other words, by informing Medina that the government had to prove

that she had a bad purpose as to Díaz-Baerga's carrying of a

firearm in the execution of the drug trafficking offense, the

district court took steps to ensure that Medina understood (1) that

mere knowledge of the carrying was insufficient for conviction; and

(2) that the additional element involved the demonstration of her

bad purpose as to that carrying.

The district court did not inform Medina that the

government would carry the burden, however slight it might have

been under the circumstances, of proving that Medina willingly took

action facilitating co-defendant Díaz-Baerga's carrying of a

firearm. However, because Medina did not raise her claim of error

below, we can only grant her an opportunity to withdraw her plea if

she shows with "reasonable probability that, but for the error,

[s]he would not have entered the plea." United States v. Domínguez

Benítez, __ U.S. __, 2004 U.S. Lexis 4177, at *6 (June 14, 2004)

(articulating standard for determining whether a violation of Rule

11 constitutes reversible plain error). In conjuring the

counterfactual colloquy that would have complied with Rule 11, we

must be mindful that the "intelligence" requirement of a plea of

guilty cuts both ways for a defendant: Rule 11 is disserved if a

-14-
defendant chooses trial based on a misappreciation of the weight --

light or heavy -- of the government's burden as to a charge and its

elements. The question is whether Medina has persuaded us to a

"reasonable probability" that had she understood "the nature of the

charge to which the plea [was] offered," Fed. R. Crim. P. 11(c)(1),

she would have chosen trial. Given that Medina pleaded guilty

after being informed that her knowledge alone would not suffice for

guilt absent proof that she harbored a bad purpose toward the

carrying of the firearm, she bears a heavy burden indeed.

To reach our judgment, we review the entire record.

Domínguez Benítez, __ U.S. at __, 2004 U.S. Lexis 4177, at *18;

Vonn, 535 U.S. at 74-75. Before the district court's recitation of

the elements of Count Two, Medina had already stated that "I was

aware there were weapons in this conspiracy, and I told the

undercover agent that a weapon was going to be taken. That is why

I am accepting this weapons charge." The undercover agent referred

to here initiated the drug operation by paying Medina and her

husband $10,000 as an initial payment for the transportation of the

cocaine. Even before carrying out the operation, therefore, Medina

knew about the carrying of the firearm and talked about it as part

of the plan in which she played a pivotal role. On the day of the

operation, as admitted to during the colloquy, Medina provided

escort and protection to the vehicle driven by her husband, whom

she knew was carrying a firearm. This conduct would easily permit

-15-
a reasonable jury to conclude beyond a reasonable doubt that she

aided and abetted the carrying of a firearm. See, e.g., Bennett,

75 F.3d at 45 ("[F]acilitation is essentially undisputed since

Bennett provided his car to transport himself, his co-conspirators,

and the gun to execute the raid."). If the district court had

correctly informed Medina of the elements of the crime, we believe

she would have pleaded guilty. Medina has failed to persuade us

otherwise to a reasonable probability.

The district court's recitation of the elements of the

crime may have been less than ideal, but the colloquy was

constitutionally sufficient to ensure that Medina made an

intelligent plea and thereby did not prejudice "the fairness,

integrity or public reputation of judicial proceedings." Olano,

507 U.S. at 736 (quotations and citations omitted).

IV.

For the foregoing reasons, we find no reversible error in

the Rule 11 proceedings. The judgment is affirmed.

Affirmed.

-16-