author: THOMPSON, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Fernando DÍAZ-RODRÍGUEZ, Defendant, Appellant.
    No. 15-1307
    United States Court of Appeals, First Circuit.
    March 17, 2017

      Joshua L. Solomon and Pollack, Solomon, Duffy LLP, Boston, MA, on brief for appellant.
    Tiffany V. Monrose, Assistant United States Attorney, Rosa Emilia Rodriguez-Yélez, United States Attorney, and Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, on brief for appellee.
    Before TORRUELLA, THOMPSON, KAYATTA, Circuit Judges.
   THOMPSON, Circuit Judge.

Appellant Fernando Diaz-Rodriguez (“Diaz”) pled guilty to aiding and abetting others in the possession of a firearm that was discharged during a robbery in violation of 18 U.S.C. §§ 924(c)(1)(A)(iii) and 2. On appeal, Diaz argues that his sentence should be vacated for lack of a factual basis to support his guilty plea. After careful review, we affirm the district court’s sentence.

Background

The facts of this case are largely undisputed. On September 1, 2010, two employees of the Ranger American Armored Services were driving an armored truck on their normal delivery route. When they arrived at the Morovena Credit Union in Morovis, Puerto Rico to deliver $80,000 to the bank, they were attacked by several armed robbers who pulled up behind them in a dark-grey Toyota. Diaz was one of the robbers. During the course of the heist, one robber struck the employee who had exited the armored truck with the cash in the back of the head, while another robber pointed a .357 Magnum at that employee. The employee ultimately threw the bag of money to the ground and one robber picked it up. Diaz then grabbed the employee in a bear-hug from behind and the employee noticed that he, too, was carrying a gun. The robber wielding the .357 Magnum then fired shots in the direction of both the employee and Diaz. Diaz was struck in the left arm and left leg, the employee was shot in the abdomen, and they both collapsed to the ground. Another rifle-toting robber fired at the second Ranger American employee who had remained inside the armored truck, but he managed to drive away and escape the scene. Then the robbers attempted to shoot the remaining wounded employee in the head. Fortunately, the robbers were out of ammunition and the employee was able to escape. The robbers, including Diaz, then re-entered the dark-grey Toyota and drove off, but were later apprehended by authorities.

On March 3, 2011 the government filed a superseding two-count indictment charging Diaz with aiding and abetting others in the robbery of a bank armored truck in violation of 18 U.S.C. §§ 1951 and 2 (Count One) and with carrying and using a firearm that was discharged during and in relation to the robbery in violation of 18 U.S.C. §§ 924(c)(1)(A) and 2 (Count Two). Count Two did not actually use the words “aiding and abetting” as Count One did; however, it did cite to the aiding and abetting statute at 18 U.S.C. § 2 (which specifically provides that “[w]hoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal”).

On October 3, 2014, the parties entered into a plea agreement (the “Agreement”). By the precise terms of the Agreement, Diaz agreed to plead guilty to Count One, which “charge[d] that [Diaz], aiding and abetting others, did obstruct, delay, and affect commerce, and the movement of articles and commodities in such commerce, by robbery in violation of 18 U.S.C. §§ 1951 and 2.” Diaz also agreed to plead guilty to Count Two, which “charge[d] that [Diaz], aiding and abetting others, did knowingly carry and use a firearm, which firearm was discharged, during and in relation to [the robbery charged in Count One].” The parties also agreed to the statutory penalties applicable to both counts. In relevant part, the parties .agreed that Count One had a statutory maximum imprisonment term of no more than twenty years (or 240 months) pursuant to 18 U.S.C. § 1951. The parties also agreed that Count Two had a mandatory minimum term of not less than ten years (or 120 months) and a potential maximum of life imprisonment pursuant to 18 U.S.C. § 924(c)(l)(A)(iii).

For the purposes of calculating Diaz’s sentence under the United States Sentencing Guidelines Manual (“Guidelines”), the parties further agreed to a total offense level of 28 for Count One, made no determination as to the applicable criminal history category, and agreed that Count Two was subject to á 120-month (or ten year) mandatory minimum to run consecutively to Count One. The Agreement also contained a waiver-of-appeal clause which provided that Diaz knowingly and voluntarily waived the right to appeal the judgment and sentence in his case, provided that he was sentenced in accordance with the terms and conditions set forth in the sentencing recommendation provisions of the Agreement.

On October 3, 2014, Diaz pled guilty to both counts of the indictment and on February 18, 2015, finding an applicable criminal history category of III and a total offense level of 28, the court sentenced Diaz in accordance with the terms of the plea agreement to 120 months as to Count One and another 120 months as to Count Two, to be served consecutively. Diaz did not challenge the court’s sentencing nor did he attempt to withdraw his guilty plea.

Diaz now appeals his sentence, arguing that the court incorrectly sentenced him to 120 months as to Count Two (Diaz does not challenge the court’s sentence as to Count One). Diaz argues that although he signed a plea agreement with a waiver-of-appeal clause and was sentenced in accordance with that agreement, his sentence on Count Two should be reversed because the court did not properly calculate the applicable Guidelines range. Specifically, Diaz argues that there was an insufficient factual basis for the court’s acceptance of his guilty pléa as to Count Two.

Discussion

Before turning to the merits of this appeal, we pause to note that the Agreement contained a waiver-of-appeal provision that foreclosed any appeal so long as Diaz was sentenced in accordance with the agreement’s terms. Accordingly, the government argues that because Diaz was sentenced in accordance with the terms of his plea agreement, he has waived his right to appeal. Diaz contends that his arguments on appeal are not within the scope of the waiver-of-appeal clause because the district court improperly calculated the applicable Guidelines range. We need not tarry with th'e parties’ waiver arguments. Because Diaz’s claims can be easily resolved on the merits, we assume arguendo that the waiver-of-appeal provision does not bar maintenance of his appeal. See United States v. Sánchez-Maldonado, 737 F.3d 826, 827-28 (1st Cir. 2013).

Here, Diaz’s primary contention is that the district court erred in accepting his guilty plea (with regards to Count Two) because there was no factual basis for the intent element of the aiding and abetting charge to which he pled guilty. Because Diaz did not present the issue of an insufficient factual basis to the district court, he now “faces the ‘heavy burden’ of plain-error review and must” demonstrate that a clear error occurred, which “affected [his] substantial rights [and] seriously impaired the fairness, integrity, or public reputation of judicial proceedings.” United States v. Delgado-López, 837 F.3d 131, 134 (1st Cir. 2016) (alterations in original) (quoting United States v. Ramos-Mejía, 721 F.3d 12, 14 (1st Cir. 2013)). Díaz can make no such showing.

Our inquiry is guided by both Rule 11 of the Federal Rules of Criminal Procedure and the aiding and abetting statute, 18 U.S.C. § 2. Federal Rule of Criminal Procedure 11(b)(3) requires that a court determine the factual basis for a guilty plea prior to entering judgment on that plea. Under Rule 11, the necessary showing for the “factual basis” requirement is “fairly modest” and “the evidence need not conclusively demonstrate guilt beyond a reasonable doubt.” Ramos-Mejía, 721 F.3d at 16 (citing United States v. Pimentel, 539 F.3d 26, 29 (1st Cir. 2008)). Indeed, “the government need only show a rational basis in fact for the defendant’s guilt.” Id (citing Pimentel, 539 F.3d at 29; United States v. Delgado-Hernández, 420 F.3d 16, 27 (1st Cir. 2005)). “[T]he government is [also] not required to support every element of the charged crime by direct evidence” and a district court “may infer ‘[t]he factual predicate for the requisite mens rea’ ... from all the evidence alluded to at the Rule 11 hearing.” Id

“[A] person is liable under [18 U.S.C.] § 2 for aiding and abetting a crime if (and only if) he (1) takes an affirmative act in furtherance of that offense, (2) with the intent of facilitating the offense’s commission.” Rosemond v. United States, — U.S. -, 134 S.Ct. 1240, 1245, 188 L.Ed.2d 248 (2014). In Rosemond, the Supreme Court held that in order to meet the intent requirement when accusing a defendant of aiding or abetting a § 924(c) offense, the government must show “that the defendant actively participated in the underlying drug trafficking or violent crime with advance knowledge that a confederate would use or carry a gun during the crime’s commission.” Id at 1243. The Supreme Court defined “advance knowledge” as “knowledge at a time the accomplice can do something with it — most notably, opt to walk away.” Id. at 1249-50.

Relying on Rosemond, Diaz argues that there was an insufficient showing that he had advance knowledge that his fellow robbers would carry or discharge firearms during the robbery and therefore there was an insufficient factual basis to support the intent requirement of the aiding and abetting offense. The government argues that there was a sufficient factual basis to satisfy the intent element of the aiding and abetting statute.

During Diaz’s change-of-plea colloquy, the court detailed the charges to which Diaz was pleading guilty/ With regard to the relevant aiding and abetting count (Count Two) the following exchange took place:

THE COURT: And Count Two charges that you knowingly carried and used a firearm and that the firearm was discharged during and in relation to a crime of violence for which you may be prosecuted in the Court of the United States, which was the interference with commerce and robbery that is set forth in Count One, and aiding and abetting others to do that.
As to Count Two, Mr. Diaz, is that what did you [sic]?
[DÍAZ]: Yes, sir.
THE COURT: Is that what you are pleading guilty to?
[DÍAZ]: Yes, sir.
THE COURT: The maximum and minimum punishment that the law provides for the offenses to which you want to plead guilty are as follows....
So, Mr. Diaz, for Count Two, the term of imprisonment, as I told you is not less than 10 years, 120 months, and can go up to life imprisonment....
Do you understand all those serious possible consequences of your plea of guilty?
[DÍAZ]: Yes, sir.

The government then described the facts and evidence it would have presented at trial to prove its case: namely that Diaz was an accomplice involved in the armored truck robbery; that several robbers, including Diaz himself possessed weapons during the course of the robbery; that at least two weapons, including a .357 Magnum and a rifle, were discharged and in fact injured a victim during the robbery; and that Diaz partook in and facilitated the robbery until the very end when the robbers fled the scene.

The district court then asked Diaz whether he “agree[d] with the Government’s version [of the facts].” He responded that he agreed and admitted to committing the crime as described by the prosecutor.

In light of his factual concessions, we find that there was a sufficient basis to support the requisite intent for aiding and abetting possession of a firearm that was discharged during the course of the robbery. “[A]s long as the government’s proffered facts, conceded by the defendant to be true, touch all the bases, there is a sufficient factual basis for the tendered plea.” United States v. Jiminez, 498 F.3d 82, 87 (1st Cir. 2007). And “[t]he facts relevant to [the Rule 11 ‘factual basis’] inquiry may be gleaned either from .the defendant’s admissions or from the prosecution’s version of the evidence (to the extent that it is acknowledged by the defendant).” Id. at 86.

Here, Diaz agreed with the statement of facts presented by the government both at his change-of-plea hearing and within his signed plea agreement. He admitted that he was in a vehicle with confederates — all of whom possessed weapons, including a .357 Magnum and a rifle — and that they robbed an armored truck. He admitted that he himself possessed a weapon that was brandished during the robbery and that his armed confederates discharged their weapons from the moment they exited their vehicle until they ran out of ammunition or drove away from the crime scene. Diaz also conceded that he held one of the victims of the robbery in a bear-hug while a fellow robber “opened fire” on the victim and Diaz. After the victim was hit, and even after Diaz himself had been wounded, Diaz conceded that he remained in confederation with his fellow robbers, one of whom used his rifle to shoot at a second victim. After both victims eventually escaped, Diaz entered the same vehicle he arrived in with his fellow confederates and fled the crime scene. These concessions form a rational basis for accepting Diaz’s guilty plea and make Diaz’s arguments that he did not know that his confederates possessed and planned to use their weapons highly unlikely. See United States v. Laracuent, 778 F.3d 347, 351 (1st Cir. 2015) (suggesting that where a defendant “agreed that he himself knowingly and unlawfully possessed” firearms used in furtherance of a drug-trafficking offense, his arguments that he lacked advance knowledge that one of his confederates would carry a gun were “particularly flimsy”).

At the very least, even if Diaz was unaware that his confederates possessed and intended to discharge their weapons prior to arriving at the crime scene, either after his armed confederates began shooting at the victims upon exit from their vehicle or certainly after a fellow robber used his weapon to shoot at a victim who Diaz restrained in a bear-hug or, again, after another robber used his rifle to shoot at a second victim, Diaz was afforded ample opportunities upon which he possessed the knowledge necessary to “enable[] him to make the relevant legal (and indeed, moral) choice.” Rosemond, 134 S.Ct. at 1249-50. Indeed, he possessed the relevant “knowledge at a time [he could] do something with it — most notably, opt to walk away.” Id. at 1250. Yet, despite obtaining the requisite knowledge regarding his confederates’ possession and use of weapons in sufficient time to withdraw from the crime — in multiple instances, Diaz simply chose otherwise.

Based on Diaz’s own concessions, the district court properly concluded that the government had proffered sufficient facts to form a rational basis from which to infer that Diaz possessed the requisite intent for his guilty plea. See Ramos-Mejía, 721 F.3d at 16.

Before concluding, we tie up some loose ends raised by Diaz himself. Despite being represented by competent counsel, Diaz requested and was granted permission to file a supplemental pro se brief. In that brief, Diaz argues that: (1) he was not' placed on “sufficient notice” that he was pleading guilty to an aiding and abetting charge; (2) the indictment was “fatally defective” because it did not include the “aiding and abetting” statutory language in Count Two; (3) the district court failed to take into account his age at sentencing; and (4) the district court erred in failing to grant him a downward departure due to his physical injuries. Like those of his counsel, Diaz’s pro se arguments are equally unavailing.

First, the unambiguous terms of the plea agreement itself make clear that Diaz agreed to plead guilty to “aiding and abetting others” who carried and used a disehargéd weapon during the course of the robbery (Count Two). “In the plea-bargain context, the text of the plea agreement and the content of the change-of-plea colloquy are critically important to a determination of knowledge and volition.” United States v. Teeter, 257 F.3d 14, 24 (1st Cir. 2001). Here, despite Diaz’s contentions, both the text of the plea agreement and the record of the change-of-plea colloquy demonstrate that he knowingly and voluntarily pled guilty to aiding and abetting others in the use of a discharged firearm during and in relation to the robbery (Count Two).

And while the facts as described by the government, and affirmed by Diaz, contained no mention of his gun being discharged, there can be no confusion that Diaz clearly pled guilty to aiding and abetting others whose firearms were discharged, as the district court clearly indicated such during the change-of-plea colloquy.

Next, Diaz’s contention that the indictment was fatally defective because it did not include the “aiding and abetting” statutory language also fails. The indictment did explicitly cite the aiding and abetting statute, 18 U.S.C. § 2. Absent any “unfair surprise,” that was more than enough. See United States v. Sanchez, 917 F.2d 607, 611 (1st Cir. 1990) (“Aiding and abetting is ‘an alternative charge in every ... count, whether explicit or implicit.’ ” (quoting United States v. McKnight, 799 F.2d 443, 445 (8th Cir. 1986))). Accordingly, the indictment here was more than sufficient when it clearly indicated that Diaz was being charged pursuant to the aiding and abetting statute, 18 U.S.C. § 2.

Diaz also argues that the district court ignored 18 U.S.C. § 3553(a) factors because it failed to consider his age at sentencing. To the contrary, the record demonstrates that the court fully considered Diaz’s age, noting that he was “over 54 years old,” had a “seventh grade education,” and that he was a “father of three children and a grandfather of four.” “That [Diaz] would prefer an alternative weighing of the circumstances [and specifically his age] does not undermine the district court’s sentencing decision.” See United States v. Rossignol, 780 F.3d 475, 479 (1st Cir. 2015).

Lastly, Diaz argues that the district court should have granted him a downward departure because of his physical impairments under § 5H1.4 of the Guidelines, which provides that “[a]n extraordinary physical impairment may be a reason to depart downward.” We review the district court’s decision not to depart from the Guidelines for reasonableness. See United States v. Anonymous Defendant, 629 F.3d 68, 74 (1st Cir. 2010) (“This review [for reasonableness] encompasses virtually the entire gamut of sentences imposed under the advisory guidelines, including sentences shaped by discretionary departure decisions.”). And a “[r]eview for reasonableness is functionally equivalent to [a] review for abuse of discretion.” Id. (citing United States v. Carrasco-De-Jesús, 589 F.3d 22, 26 (1st Cir. 2009)).

We have clarified that “departures based on physical condition are discouraged” and have further noted that a departure may be appropriate when a court finds an “extraordinary impairment,” i.e., where “imprisonment would threaten or shorten a defendant’s life or when the Bureau of Prisons would be unable to adequately meet the defendant’s medical needs.” United States v. Martin, 363 F.3d 25, 49 (1st Cir. 2004). In this case, the district court found no such extraordinary circumstances.

The court heard arguments from both Díaz and the government regarding his physical impairments and even noted its consideration of Diaz’s physical ailments and whether he could receive adequate treatment in custody, remarking that “[t]he issue to [the court] is whether [Diaz] can be treated either at a prison hospital or at a Care Level 2 facility.” Ultimately, the court determined that Diaz could receive adequate treatment while in custody, recognizing that “Mr. Diaz requires medical treatment for the leg wound he received during the robbery” and that “[t]he Court [would] recommend that he be allowed to benefit from medical care offered by the Bureau of Prisons.” After careful review of the record, we agree with the district court’s decision not to depart. There is nothing in the record which indicates that Diaz’s life would be threatened or shortened by virtue of being incarcerated or that the Bureau of Prisons would be unable to adequately accommodate his medical needs. The district court’s decision was thus reasonable given the facts of this case.

Conclusion

For the foregoing reasons, we find no error in the district court’s acceptance of Diaz’s guilty plea with regards to the aiding and abetting count (Count Two).

Affirmed.

      . Because this sentencing appeal follows a guilty plea, we gather the pertinent facts from the change-of-plea colloquy and plea agreement. United States v. Ríos-Hernández, 645 F.3d 456, 458 (1st Cir. 2011).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    LEX CLAIMS, LLC et al., Plaintiffs, Appellees, v. FINANCIAL OVERSIGHT AND MANAGEMENT BOARD, Intervenor, Appellant, Alejandro García-Padilla et al., Defendants. Lex Claims, LLC et al., Plaintiffs, Appellees, v. Jose F. Rodriguez et al., Intervenors, Appellants, Alejandro García-Padilla et al., Defendants. Lex Claims, LLC et al., Plaintiffs, Appellees, v. Ambac Assurance Corporation, Defendant, Appellant, Alejandro García-Padilla et al., Defendants.
    No. 17-1241, No. 17-1248, No. 17-1272
    United States Court of Appeals, First Circuit.
    April 4, 2017
    See also 845 F.3d 505.

      Michael Luskin, with whom Stephan Hornung and Luskin, Stern & Eisler LLP, New York, NY, were on brief, for appellant Financial Oversight and Management Board.
    Susheel Kirpalani, New York, NY, with whom David Cooper, Daniel Salinas-Serrano, Washington, DC, Darren M. Goldman, Daniel P. Mach, New York, NY, Quinn Emanuel Urquhart & Sullivan LLP, Rafael Escalera, Sylvia M. Arizmendi, Carlos R. Rivera-Ortiz, and Reichard & Escal-era, San Juan, PR, were on brief, for appellants Jose F. Rodriguez, Decagon Holdings 2, LLC, Decagon Holdings 1, LLC, Decagon Holdings 3, LLC, Decagon Holdings 4, LLC, Decagon Holdings 5, LLC, Decagon Holdings 6, LLC, Decagon Holdings 7, LLC, Decagon Holdings 8, LLC, Decagon Holdings 9, LLC, Decagon Holdings 10, LLC, Golden. Tree Asset Management LP, Merced Capital, LP, Old Bellows Partners LLP, Scoggin Management LLP, Taconic Master Fund 1.5 LP, Taconic Opportunity Master Fund LP, Til-den Park Capital Management LP, White-box Advisors LLC, Varde Credit Partners Master, LP, Varde Investment Partners, LP, Varde Investment Partners Offshore Master, LP, and Varde Skyway Master Fund, LP.
    Dennis F. Dunne, New York, NY, with whom Andrew M. Leblanc, Washington, DC, Atara Miller, Grant R. Mainland, Mil-bank, Tweed, Hadley & McCloy, LLP, Roberto A. Cámara-Fuertes, and Ferraiuoli LLC were on brief, for appellant Ambac Assurance Corporation.
    Mark T. Stancil, with whom Ariel N. Lavinbuk, Donald Burke, and Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP, Washington, DC, were on brief, for appellees.

      Before HOWARD, Chief Judge, LYNCH and BARRON, Circuit Judges.
   PER CURIAM.

This is our second set of appeals involving the automatic stay provision of the Puerto Rico Oversight, Management, and Economic Stability Act (“PROMESA”), see 48 U.S.C. §§ 2101-2241, which employs language very similar to that of the bankruptcy stay statute. For additional background, we refer thé reader to our prior opinion in Peaje Investments LLC v. García-Padilla, 845 F.3d 505 (1st Cir. 2017). Here, the parties dispute whether four claims included in the plaintiffs’ Second Amended Complaint (namely, the first, second, third, and twelfth causes of action) are within the scope of PROMESA’s temporary stay (set to expire on May 1, 2017). See 48 U.S.C. § 2194(a)-(b).

In district court, the plaintiffs, holders of general obligation (“GO”) bonds issued by the Commonwealth of Puerto Rico, conceded that the majority of their claims were subject to the stay. The court, however, allowed the suit to proceed on the four specific counts now at issue, all of which are purportedly brought under various provisions of PROMESA. Appellants Financial Oversight and Management Board, Jose F. Rodriguez et al. (the “Senior CO-FINA bondholders”), and Ambac Assurance Corporation (together, the “Appellants”) challenge this ruling on appeal. We have jurisdiction under 28 U.S.C. § 1291. See In re Atlas Exp. Corp., 761 F.3d 177, 182 (1st Cir. 2014).

On March 20, 2017, we stayed the district court action pending further notice. We found it unnecessary to consider whether the PROMESA stay should be applied to the entire “action or proceeding,” as the Appellants argue, or claim-by-claim, as the district court ruled. Noting the unitary nature of the plaintiffs’ claims and the relief sought during the PROME-SA stay period, we saw a substantial likelihood that the entire action should have been stayed. Full briefing and oral argument followed. After expedited consideration, and applying de novo review, see Parkview Adventist Med. Ctr. v. United States, 842 F.3d 757, 762 (1st Cir. 2016), we now hew to the same outcome and reverse the decision of the district court insofar as it denied a stay of the first, second, third, and twelfth counts of the Second Amended Complaint. We write briefly in explanation.

The Commonwealth has various creditors, of which the two dominant groups by debt load are the GO bondholders and the Puerto Rico Sales Tax Financing Corporation (“COFINA”) bondholders. We can safely assume that the Oversight Board’s PROMESA negotiations, now entering their critical stage in the final month of the PROMESA stay, must find a way to accommodate and balance the respective interests of these bondholders if there is to be a consensual resolution.

When Congress enacted PROME-SA and its “immediate — but temporary— stay” of litigation, 48 U.S.C. § 2194(m)(5), it could hardly have envisaged that, during the stay period, one of these groups of bondholders could seek and potentially obtain injunctive relief that would dispossess the other by driving its bonds into default. And yet, that is what the GO bondholders evidently intend to do. The “Relief That Plaintiffs Seek At This Time” (meaning during the stay period) is sweeping. Beyond certain declarations as to the legality of the Commonwealth’s post-PROMESA measures and the constitutional priority of the GO bonds “over all other expenditures, including payments to COFINA and CO-FINA bondholders,” the plaintiffs also seek to:

--“[e]njoi[n] enforcement or implementation of the unlawful Executive Order and the Moratorium Act” as applied to the Constitutional Debt;
--“prohibi[t] the diversion of revenues arising from collection of the SUT [sales and use tax] (or any substitute revenues) to COFINA and requir[e] the Commonwealth Officer Defendants ... and the COFINA Defendants to direct such funds to Puerto Rico’s Treasury”;
--“direc[t] the COFINA Defendants to transfer any revenues received from the collection of the Commonwealth’s SUT in their possession or held on behalf of COFINA to the Commonwealth”;
--“direc[t] the Commonwealth Officer Defendants to segregate and preserve such funds arising from collection of the SUT or transferred from the CO-FINA Defendants”; and
--“requir[e] the Commonwealth Officer Defendants, in their official capacities as Commonwealth officers, to segregate and preserve all funds clawed back, to be clawed back, or available to be clawed back under contractual and legal provisions expressly acknowledging that those funds are subject to turnover for purposes of paying the Constitutional Debt.”

In toto, the relief that the plaintiffs seek during the stay period would, at a minimum, force the Commonwealth to set aside SUT revenues and “clawed back” (or available to be clawed back) funds; indeed, if taken at face value, “enjoining” the enforcement of the Executive Order and the Moratorium Act, which together resulted in the Commonwealth’s default on the Constitutional Debt, might mean that the Commonwealth must stop defaulting on the GO bonds and pay those bondholders now. The flip side is, of course, that the Commonwealth might default on all COFI-NA bonds, which would be starved of SUT revenues as well as any alternative funding. An “act” of litigation that leads the Commonwealth to default on such a large tranche of its debt, while preserving the corresponding funds for a rival class of bonds, exercises “control” over the Commonwealth’s property in any reasonable sense of that term. See 48 U.S.C. § 2194(b)(3) (staying, among other things, “any act ... to exercise control over property of the Government of Puerto Rico”). To rule otherwise, as the district court did, was an error of law. We know of no analogous bankruptcy case declining to automatically stay debt litigation involving relief comparable to that requested here.

The plaintiffs counter that they are not seeking “constructive possession” of Commonwealth property. But § 2194(b)(3) encompasses more than possession and constructive possession. In the analogous subsection of the bankruptcy stay statute, courts have defined “control” quite broadly. See Thompson v. Gen. Motors Acceptance Corp., 566 F.3d 699, 702 (7th Cir. 2009) (defining “control” to include the exercise of “restraining or directing influence over” property (quoting Merriam-Webster’s Collegiate Dictionary (11th ed. 2003))). Such a broad definition is also consistent with legislative history. Pri- or to 1984, the bankruptcy “stay provision only prohibited any act to obtain possession of property belonging to a bankruptcy estate.” Id. Congress amended the statute to also prohibit “conduct ‘exercising control’ ” over such property. Id. PROMESA incorporated this amended language. “Although Congress did not provide an explanation of that amendment, the mere fact that Congress expanded the provision to prohibit conduct above and beyond obtaining possession of an asset suggests” that the current stay provision must not be so limited as the plaintiffs contend. Id (citation omitted). The lone ease cited by the plaintiffs on this issue, merely stands for the proposition that the relevant subsection of the bankruptcy stay statute includes acts of constructive possession. See In re Weidenbenner, 521 B.R. 74, 79 (Bankr. S.D.N.Y. 2014). The court did not purport to hold that constructive possession is required to trigger the stay.

From this expansive understanding of “control,” it follows that the stay applies to litigation seeking declaratory and in-junctive relief at least where, as here, the express purpose of the lawsuit is to preclude the Commonwealth from using its own funds as it sees fit. Indeed, in the Chapter 9 context, district courts have often found declaratory and injunctive actions against the municipality to violate the bankruptcy stay statute. See In re City of San Bernardino, 558 B.R. 321, 329 (C.D. Cal. 2016); In re City of San Bernardino, 530 B.R. 489, 499 (C.D. Cal. 2015); In re City of Detroit, 504 B.R. 97, 166-67 (Bkrtcy. E.D. Mich. 2013); In re Jefferson Cty., 484 B.R. 427, 446-47 (Bkrtcy. N.D. Ala. 2012). While we do not imply that all such litigation constitutes an exercise of “control,” or endorse the specific holdings of the cases cited above, the claims at issue here plainly constitute attempts to exercise control over Commonwealth revenues.

The plaintiffs also cite authorities for the unremarkable proposition that the relevant subsection of the bankruptcy stay provision does not necessarily preclude “post-petition suits to enjoin unlawful conduct.” But the only such unlawful conduct alleged here is the Commonwealth’s allocation of its own revenues to pay certain creditors as opposed to others. As explained above, the plaintiffs’ attempt to alter that resource-allocation decision through litigation falls comfortably within PROMESA’s stay of acts to exercise control over Commonwealth property. The cases relied on by the plaintiffs are readily distinguishable. See, e.g., Dominic’s Rest. of Dayton, Inc. v. Mantia, 683 F.3d 757, 761 (6th Cir. 2012) (holding that bankruptcy stay did not apply to contempt proceedings stemming from debtor’s alleged trademark infringement).

Because the relief that the plaintiffs seek at this time is stayed by § 2194(b)(3), regardless of when the underlying claims arose, it is unnecessary to consider whether pleading artifice alone has converted what would otherwise have been pre-PROMESA local-law claims into PROMESA-based federal claims. We similarly need not decide whether the plaintiffs’ claims also fall within any other subsection of the PROMESA stay provision, or whether the district court should have exercised its inherent authority to issue a discretionary stay.

The district court’s holding that the PROMESA stay did not apply to the plaintiffs’ first, second, third, and twelfth causes of action is REVERSED, and the matter is remanded for proceedings consistent with this opinion. The court’s denial of the Senior COFINA bondholders’ motion to intervene solely for the purposes of addressing the stay issue is therefore moot. See Peaje, 845 F.3d at 515 n.6. The mandate shall issue forthwith, and the parties shall bear their own costs.

      . The term as used here includes instrumen-talities of the Commonwealth such as COFI-NA. See 48 U.S.C. § 2104(11).

      . See Fiscal Plan for Puerto Rico 26 (Mar. 13, 2017), https://juntasupervision.pr.gov/wp-content/uploads/wpfd/50/58c71815e9d43 .pdf.

      . It is telling that the GO bondholders omit to itemize the relief they seek now anywhere in their brief, instead describing it in the most general terms as "negative injunctive relief that would prevent the Commonwealth from continuing to dissipate assets in violation of PROMESA,” and as compelling Puerto Rico "only to ‘move’ funds within its government and ‘retain' those funds.”

      . COFINA bonds are "non-recourse” bonds, leaving holders with no security beyond the SUT revenue stream. See P.R. Laws Ann. tit. 13, § 13(d).

      . We reject the plaintiffs’ invitation, mentioned for the first time at oral argument, to allow a freestanding claim for declaratory relief to go forward. See Piazza v. Aponte Roque, 909 F.2d 35, 37 (1st Cir. 1990).

      . The district court subsequently permitted the Senior COFINA bondholders to intervene in the case more generally.


author: SOUTER, Associate Justice.

text:
    Lisa RICCHIO, Plaintiff, Appellant, v. Clark MCLEAN, Ashvinkumar Patel, Sima Patel, Bijal, Inc. d/b/a Shangri-La Motel, Defendants, Appellees.
    No. 16-1680
    United States Court of Appeals, First Circuit.
    April 5, 2017

      Felicia H. Ellsworth, with whom Cynthia D. Vreeland, Jason H. Liss, Lucy Heenan Ewins, and Wilmer Cutler Pickering Hale and Dorr LLP, Boston, MA, were on brief, for appellant.
    Michael David Resnick, with whom John B. Reilly and John Reilly & Associates, Providence, RI, were on brief, for appel-lees.
    Before LYNCH, Circuit Judge, SOUTER, Associate Justice, and SELYA, Circuit Judge.

       Hon. David H. Souter, Associate Justice (Ret.) of the Supreme Court of the United States, sitting by designation.

   SOUTER, Associate Justice.

Lisa Ricchio brought actions for civil liability under the Trafficking Victims Protection Act against four defendants, including Ashvinkumar Patel, Sima Patel, and Bijal, Inc. As to them, the district court dismissed under Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim. We now reverse.

For the purposes of this review of the dismissal motion and order, the allegations and inferences favorable to Ricchio may be summarized briefly. See SEC v. Tambone, 597 F.3d 436, 441 (1st Cir. 2010) (en banc) (at the 12(b)(6) stage, “we accept as true all well-pleaded facts set out in the complaint and indulge all reasonable inferences in favor of the pleader”). At the relevant time, the Shangri-La Motel was owned by the defendant Bijal, Inc., and operated by the Patel defendants, husband and wife, who themselves lived there. In June 2011, Clark McLean enticed Ricchio to drive from Maine to the Shangri-La in Massachusetts, where he took her captive and held her against her will. Over the course of several days there, McLean physically and sexually abused Ricchio, repeatedly raping her, starving and drugging her, and leaving her visibly haggard and bruised. He told her that he was grooming her for service as a prostitute subject to his control. McLean had prior commercial dealings with the Patels, which the parties wished to reinstate for profit. McLean and Mr. Patel enthusiastically expressed this intent by exchanging high-fives in the motel’s parking lot while speaking about “getting this thing going again,” in circumstances in which McLean’s coercive and abusive treatment of Ricchio as a sex slave had become apparent to the Patels. Ms. Patel had not only nonchalantly ignored Ricchio’s plea for help in escaping from McLean’s custody at the motel but, when visiting the rented quarters to demand further payment, had shown indifference to Ricchio’s obvious physical deterioration. And in plain daylight view of the front office of the motel, either of the Patels on duty there would have seen McLean grab Ricchio, kick her, and force her. back toward the rented quarters when she had tried to escape. In these circumstances, it was a plausible understanding that McLean was forcing sex in the motel room where he held Ricchio hostage, and fairly inferable that the gainful business that Mr. Patel and McLean spoke of had been and would be in supplying sexual gratification. It is likewise inferable that the Patels understood that in receiving money as rent for the quarters where McLean was mistreating Ricchio, they were associating with him in an effort to force Ricchio to serve their business objective.

Under Claims 1, 2, 3, 5, 6, and 7 of the complaint, these allegations and infer-enees suffice as plausible support for pleading statutory violations by the Patel defendants in their own right and as agents for renting out Bijal’s motel space, and by Bijal in consequence of the Patels’ agency. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 178 L.Ed.2d 868 (2009) (to survive a motion to dismiss, a complaint “must contain sufficient factual matter ... to ‘state a claim to relief that is plausible on its face’ ” (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007))); see also Decotiis v. Whittemore, 635 F.3d 22, 29 (1st Cir. 2011) (“Applying the plausibility standard is ‘a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.’ ” (quoting Iqbal, 556 U.S. at 679, 129 S.Ct. 1937)).

In support of this conclusion, we note the following points of congruence between the extensive allegations just summarized and provisions of the discursive Act. In doing this we do not mean to imply that the complaint does not support claims under other provisions. Our point is merely that it withstands the general dismissal motion.

Claim 1, under 18 U.S.C. §§ 1589 and 1595(a): The defendants’ association with McLean was a “venture,” that is, a “group of two or more individuals associated in fact,” § 1591(e)(5), in conducting which the Patels (and hence Bijal) knowingly benefited, that is, “receiv[ed something] of value,” § 1589(b), through renting space in which McLean obtained, among other things, forced sexual labor or services from Ricchio. United States v. Cook, 782 F.3d 983, 988 (8th Cir. 2015) (“The phrase ‘anything of value’ [in the Act] is extremely broad.”). The Patels acted, at the least, in reckless disregard of the fact that the venture included such conduct on McLean’s part. See 18 U.S.C. § 1589(b); United States v. Kaufman, 546 F.3d 1242, 1259-63 (10th Cir. 2008) (holding that “labor or services” in § 1589 is not limited to “work in an economic sense” and extends to forced sexual acts). The defendants’ knowing benefit from that conduct entitles Ricchio to damages under the derivative civil liability provision of § 1595(a) in the instance of this claim and by like application under those that follow.
Claim 2, under §§ 1590 and 1595(a): In continuing to rent him the room after McLean’s conduct was manifest, the Pa-tels knowingly harbored Ricchio at the Shangri-La Motel for the purpose of McLean’s object of obtaining her sexual labor or services. See § 1590(a); Kaufman, 546 F.3d at 1259-63.
Claim 3, under §§ 1591 and 1595(a): The defendants knowingly benefitted from the venture with McLean, since they knew, or at least recklessly disregarded, the factual prospect that force or threats of force would be used to cause Ricchio to engage in a commercial sex act. See § 1591(a)(2).
Claim 5, under § 1594(b) and (c), and § 1595(a): The venture constituted a conspiracy to violate §§ 1589, 1590, and 1591 (see Claims 1, 2, and 3), the necessary overt acts including the harboring of Ricchio and the receipt of the benefit noted above. See United States v. Ngige, 780 F.3d 497, 503 (1st Cir. 2015) (discussing the requirements of a conspiracy generally).
Claim 6, under §§ 1594(a) and 1595(a): The defendants at the least attempted to violate §§ 1589, 1590, and 1591 (see Claims 1, 2, and 3), the necessary substantial steps including the harboring of Ricchio and the receipt of benefit. See United States v. Turner, 501 F.3d 59, 68 (1st Cir. 2007) (“While ‘mere preparation’ does not constitute a substantial step [for the purposes of attempt], a defendant ‘does not have to get very far along the line toward ultimate commission of the object crime in order to commit the attempt offense.’ ” (quoting United States v. Doyon, 194 F.3d 207, 211 (1st Cir. 1999))).
Claim 7, under §§ 1593A and 1595(a)(which § 1593A treats as creating an independent violation): The defendants knowingly benefitted (again, by way of payment for the motel room) from participating in the venture as charged in the preceding claims that formed a predicate for civil recovery under § 1595(a). The complaint plausibly supports a claim that they acted with at least reckless disregard of the fact that the venture activity resulted in a “violation” of that section.

We repeat that we do not present this summary as necessarily exhausting every variant of statutory violation and basis for civil liability that could survive the general Rule 12(b)(6) motion. Our purpose here is solely to indicate that the claims so summarized (but yet to be proven) are supported by factual allegations and reasonable inferences in Ricchio’s favor sufficient to pass muster under the plausibility standard.

We conclude by focusing on specific points of disagreement with the views expressed by the district court in the order granting the motion to dismiss and the order denying reconsideration. To begin with, we give attention to the whole body of allegations as circumstantially supplying meaning to particular acts by the Patels that the trial judge found too ambiguous to support the claims when considered in isolation. See Cardigan Mountain Sch. v. N.H. Ins. Co., 787 F.3d 82, 88 (1st Cir. 2015) (“The factual allegations [in the complaint] are ‘circumstantial,’ to be sure, but there is no requirement for direct evidence.” (citation omitted)); see also García-Catalán v. United States, 734 F.3d 100, 101, 103 (1st Cir. 2013) (cautioning courts not to apply the plausibility standard “too mechanically” and to read complaints “as a whole”). Most significantly, the district court found it “meaningless” that McLean and Mr. Patel exchanged high-fives in speaking about “getting this thing going again.” In isolation this may be so, but the complaint is to be read as a whole, and we read the statement in light of the allegations of the Patels’ complaisance in response to the several alleged exhibitions of McLean’s coercive and brutal behavior to a physically deteriorating Ricchio, who pleaded for help. Not only were McLean’s actions different from the expectable behavior of a man who simply wished to overcome a woman’s reluctance to engage in sexual activity; they were indications of what he and Mr. Patel had in mind when McLean spoke of “this thing.”

Our second major point of disagreement with the district court is its holding that the various statutes under which this action is brought require a showing that the Patels’ actions, in conjunction with McLean’s, succeeded in actually establishing a going business of supplying third parties with sexual opportunities. Although § 1589 requires that labor or services be provided or obtained, the other provisions noted here do not. See § 1590(a) (prohibiting the “knowing[ ] ... harborpng] ... [of] any person for labor or services,” which is most obviously read as requiring only intent to produce the result described); § 1594(a), (b), and (c) (prohibiting attempt and conspiracy to violate §§ 1589, 1590, or 1591); United States v. Mozie, 752 F.3d 1271, 1286 (11th Cir. 2014) (“It is enough [for § 1591 liability] that [the defendant] ‘recruited’ the victims ... to engage in commercial sex acts even though they did not actually do so.”); United States v. Jungers, 702 F.3d 1066, 1073 (8th Cir. 2013) (“In many, if not all cases, the commercial sex act is still in the future at the time the purchaser ... [is] in violation of § 1591.”); United States v. Todd, 627 F.3d 329, 334 (9th Cir. 2010) (“The knowledge required of the defendant [for § 1591 liability] is such that if things go as he has planned, force, fraud or coercion will be employed to cause his victim to engage in a commercial sex transaction.”); see also United States v. Roy, 630 Fed.Appx. 169, 170-71 (4th Cir. 2015) (adopting the approach in Todd, 627 F.3d at 334, while reviewing a conspiracy to violate § 1591 conviction). This conclusion (that the objective of forced labor, forced services, or the intended trafficking need not be satisfied for liability to attach) is confirmed in part by the definition of “victim of trafficking” in a related statute as, among other things, a person who has been “harbor[ed] [or] obtained] ... for the purpose of a commercial sex act.” 22 U.S.C. § 7102(10), (15). It is therefore not to the point under the allegations in this case that no “act of commercial sex” with a third party was plausibly pled.

The district court’s judgment dismissing Ricchio’s claims against defendants Bijal, Inc., and the Patels is reversed, and this case is remanded for further proceedings.

      . Claim 4 charges a violation by McLean alone. It is now moot, owing to voluntary dismissal of the complaint as against him, following his conviction and incarceration on state charges.

      . 18 U.S.C. § 1595(a) is the civil remedy provision of the Trafficking Victims Protection Act:
      An individual who is a victim of a violation of this chapter may bring a civil action against the perpetrator (or whoever knowingly benefits, financially or by receiving anything of value from participation in a venture which that person knew or should have known has engaged in a violation of this chapter) in an appropriate district court of the United States and may recover damages and reasonable attorneys fees.