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Second Circuit Reverses Conviction for Failure to Present Sufficient Basis of Mens Rea: Aybar

The Second Circuit Found that the plea did not establish a factual basis even when the plain error test was applied.

Aybar-Peguero (referred to as Aybar) pled guilty to drug trafficking and concealment money laundering. The claim was that narcotics were being sold out of a convenience store. While allocating to the concealment money laundering case, Aybar said that he knew that what he was doing was illegal. But the following exchange happened:

THE COURT: I'm trying to understand what the conduct was underneath the money laundering count. Did you ... get money from the drug dealing?

THE DEFENDANT: Yes, I did receive money.

THE COURT: And what did you do with it?

THE DEFENDANT: I put it in the bank.

THE COURT: And why did you do that? Why did you put it in the bank?

THE DEFENDANT: I don't know. It was a way to save my money.

THE COURT: Did you want to hide that it was from the drug dealing?

THE DEFENDANT: It wasn't so much hiding it from drugs. I was also working. I wanted to put it with the money that I was making.

THE COURT: So you put it with money from legitimate sources. Is that what you're saying?

THE DEFENDANT: What do you refer to with legitimate accounts?

[The court took a break]

THE COURT: All right. What do you want to tell me, Mr. Aybar?

THE DEFENDANT: I was putting money from my work and I was joining it with money from the drugs.\

Later in the hearing, the court asked Aybar what he thought of the government’s evidence and Aybar said the following:

THE DEFENDANT: I'm not too much in agreement because not all of that money came from drugs. There was some of it that came from my work. So both of them were there.

The magistrate recommended that the guilty plea be accepted, which it later was. Aybar was sentenced to 87 months on both charges to run concurrent.

On appeal, Aybar alleged that there was not a factual basis for the plea and as such, the district court erred.

The court noted that when reviewing this claim the court can look at the facts at its disposal as well as the defendant’s own admissions. The court also noted that when ““a defendant raises on appeal a claim of Rule 11 error that he did not raise in the district court, that claim is reviewable only for plain error.”

The court also reviewed 18 U.S.C. § 1956(a)(1)(B)(i), which provides that, as relevant here a person who “conducts or attempts to conduct such a financial transaction which in fact involves the proceeds of specified unlawful activity ... knowing that the transaction is designed in whole or in part ... to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity ... shall be [guilty].”

In finding that the district court lacked a sufficient basis to accept the plea, the court noted that Aybar’s colloquy with the court undermined the claim that he had the necessary mens rea, pointing to the portions of the colloquy where Aybar said that his motivation was not to hide the money that was from the drug dealing, indicating that he was working and wanted to put in the money that he was making.

The fact that the Aybar “denied an element of the offense or generally maintain[ed] his innocence” meant that more was required to develop a factual basis.  But the court did not do any more to ensure that the record of the proceeding contained evidence of the motive to conceal funds.  And the court rejected government’s statement that the PSR provided an adequate basis for the plea as the court stated that facts adduced after a plea hearing should not be considered by the district judge and there was no indicating that the district court considered the PSR.

The court determined that there was not a sufficient basis to satisfy the mens rea requirement and the court ultimately found that it was plain error for the court to accept the guilty plea.

No. 21-1711(L)

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