In re: US v. , 441 F.3d 44 ( 2008 )

United States Court of Appeals
For the First Circuit
Nos. 07-1205
07-1398
UNITED STATES OF AMERICA,
Appellee,
v.
RENÉ VÁZQUEZ-BOTET, M.D. and
MARCOS MORELL-CORRADA,
Defendants, Appellants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella, Circuit Judge,
and Selya, Senior Circuit Judge.
Scott A. Srebnick, with whom Howard M. Srebnick and Black,
Srebnick, Kornspan & Stumpf. P.A., was on brief for appellant
Vázquez-Botet.
Rafael F. Castro-Lang, for appellant Morell-Corrada.
Peter W. Miller, with whom Stuart A. Weinstein-Bacal, José A.
Cabiya-Morales, and Weinstein-Bacal & Miller, P.S.C., was on brief
for amicus curiae Caribbean International News, Inc. d/b/a El
Vocero, Santa Rita Acquisitions Corp. d/b/a The San Juan Star,
Wilfredo G. Blanco-Pi d/b/a Wapa Radio, and Madifide, Inc. d/b/a
Notiuno 630.
Mary K. Butler, Trial Attorney, Public Integrity Section,
Criminal Division, U.S. Department of Justice, with whom William M.
Welch, II, Chief, was on brief for appellee.
Efrem M. Grail, with whom Reed Smith LLP, Thomas J. Farrell,
and Dreier LLP, was on brief for intervenors Dick Corporation and
Dan Martin.
July 9, 2008
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TORRUELLA, Circuit Judge. René Vázquez-Botet ("Vázquez")
and Marcos Morell-Corrada ("Morell") were convicted of conspiracy,
extortion, and mail and wire fraud for their roles in demanding
money from construction contractors in exchange for using their
influence in the Puerto Rico government to secure them a major
project. On appeal, the defendants claim that the district court
committed a myriad of errors invalidating their convictions;
alternatively, they claim errors requiring remand for resentencing.
After careful consideration of each of these arguments in light of
the record, we affirm both defendants' convictions and sentences.
I. Background
Because Morell challenges the sufficiency of the evidence
supporting his conviction, we relate the facts "as the jury could
have found them, drawing all inferences in the light most
consistent with the jury's verdict." United States v. Colón-Díaz,
521 F.3d 29, 32 (1st Cir. 2008) (citation and internal quotation
marks omitted). We consider only those facts relevant to the
issues on appeal. In August 1994, the Puerto Rico Aqueduct and
Sewer Authority ("PRASA") solicited bids from construction
contractors to build a large water pipe -- dubbed the
"Superaqueduct" -- along Puerto Rico's north coast. The magnitude
of the project required the bidding contractors to form consortia
with local subcontractors for the provision of equipment,
expertise, financial resources, and labor. One of the aspirants
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was a consortium led by contractor Thames-Dick, a joint venture
between a British firm and the Dick Corporation of Pennsylvania.
Within the Thames-Dick consortium were a number of Puerto Rico
subcontractors: (1) Las Piedras Construction, owned by Pedro
"Cuco" Feliciano; (2) Constructora Hato Rey, owned by Waldemar
Camrona; (3) Longo de Puerto Rico, owned by Greg Laracy; (4)
Carrero Engineering, owned by Alberto "Tico" Carrero; and
(5) Cobián, Agustín & Ramos, controlled by José Cobián-Guzmán
("Cobián"). Thames-Dick won the $305 million contract in January
1996; it began construction in September 1996 and finished in 2000.
Cobián, a key government witness, testified at trial that
he knew from experience that, in order for his consortium to be
awarded the contract, he would need to bribe someone influential in
the government, which at the time was controlled by the New
Progressive Party ("NPP"). Thus, in June 1995, Cobián approached
Vázquez, an ophthalmologist and the manager of Governor Pedro
Rosselló's reelection campaign. Several witnesses testified that
Vázquez was believed to hold an almost unparalleled degree of sway
within the Rosselló government. Vázquez told Cobián that he would
do what he could in exchange for two percent of the total value of
the contracts awarded to the Thames-Dick subcontractors. Cobián
explained that the subcontractors' share of the total would be more
than $200 million; two percent was estimated to be about $2.4
million. Vázquez indicated that Morell, an attorney and NPP
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Secretary-General, and José Granados-Navedo ("Granados"), the NPP
chair of the House of Representatives infrastructure committee,
would be assisting him and would need a share of the $2 million.
Cobián proposed that it be split four ways, with him receiving a
quarter; Vázquez acquiesced. Vázquez said he would deal only with
Cobián and must be paid in cash, and that Cobián should approach
Morell and Granados directly to arrange their payments. Vázquez
did not explain to Cobián what actions he or others would take to
make sure Thames-Dick got the contract.
Cobián then went to subcontractors Feliciano, Carmona,
Laracy, and Carrero and told them that together they would have to
pay two percent of their part of the contract award to purchase the
assistance of influential people in the government. Although the
subcontractors had not delegated authority to Cobián to make such
a deal on their behalf, they grudgingly agreed to pay.
The subcontractors paid Cobián incrementally as they
received payments from Thames-Dick. They understood that Cobián
would then pass the payments on to the politicians in question.
Cobián delivered monthly cash payments to Vázquez in his office,
and made other payments to third parties for NPP campaign expenses
owed them by Vázquez. On one occasion Feliciano, who had figured
out that Vázquez was one of the recipients of the extortionate
payments, made a $5,760 payment to him in person at his medical
office.
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On Vázquez's instructions, Cobián went to Morell's law
office to arrange how his payments would be made. Morell drew up
a sham contract under which Cobián was to pay Morell's law firm
$5,000 per month for legal services; Cobián made these monthly
payments from 1997 to 1999. In addition, Morell and Cobián
arranged for Cobián to make several payments to third parties
(including Sears, a rental car company, an architectural firm, and
a basketball team) on Morell's behalf. Morell never actually
performed any legal services for Cobián or his company. Cobián
similarly made payments to third parties on Granados's behalf, and
also made some cash payments to Granados.
In all, the subcontractors gave Cobián cash and checks
totaling over $1 million; of this, Vázquez received the equivalent
of over $360,000, and Morell received over $125,000. Vázquez
failed to report to the Puerto Rico Treasury Department the money
he received from Cobián from 1997 to 1999, and concealed thousands
more dollars of cash payments made to him by his ophthalmology
patients and businesses involved in healthcare services. Morell
reported on his tax returns payments to his law firm by Cobián in
1997 and 1998 under the sham contract. Morell failed to report the
approximately $25,000 paid in 1999 and the many third-party
payments made by Cobián, which totaled some $23,000; he also failed
to report payments from other clients in 1998 totaling about
$22,000.
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In July 1999, when Cobián learned that he had been
indicted for unrelated conduct, he panicked and stopped making
payments to Vázquez, Morell, and Granados. After pleading guilty
to the indictment, Cobián decided to cooperate with the Government
in exchange for immunity with respect to further crimes for which
he might implicate himself in rendering such cooperation, and the
Government's recommendation of a sentencing reduction. Cobián then
told investigators of the details of the Superaqueduct extortion
scheme. On the basis of this and other information, the Government
sought indictments against Vázquez, Morell, and Granados.
On April 8, 2004, a grand jury returned a public
indictment charging Vázquez and Morell with the following: (1) one
count of conspiracy to commit extortion and launder money in
furtherance of a bribery scheme, in violation of 18 U.S.C. § 371;
(2) several counts of extortion under color of official right and
by economic fear, in violation of the Hobbs Act, 18 U.S.C. § 1951,
and aiding and abetting this offense under 18 U.S.C. § 2; and (3)
several counts of mail and wire fraud committed as part of a scheme
to defraud Puerto Rico of income tax payments, in violation of 18
U.S.C. §§ 2, 1341, and 1343.1 The Government's central theory was
that the defendants and Granados conspired to induce the
subcontractors to pay them a portion of their Superaqueduct profits
1
Morell was also charged with obstruction of justice under 18
U.S.C. § 1503 but was acquitted on this count, and this charge is
not at issue in this appeal.
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by making them fear that if they did not pay (and keep making
periodic payments), the defendants and Granados would use their
influence in the government: (1) to promote the subcontractors'
competitors for the bid; (2) to remove the subcontractors from the
contract after it was already awarded; or (3) would malign their
professional reputations so that their respective businesses would
not receive government contracts in the future.
After we ordered the recusal of the original trial judge
from this case, see In re United States, 441 F.3d 44, 49 (1st Cir.
2006), the case was randomly reassigned to Chief Judge Fusté.
Vázquez moved to recuse Chief Judge Fusté on a number of grounds,
and Chief Judge Fusté denied the motion, United States v. Vázquez-
Botet, 453 F. Supp. 2d 362, 374 (D.P.R. 2006). We denied mandamus
relief, noting that Vázquez could challenge the non-recusal on end-
of-case appeal if he were found guilty. In re Vázquez-Botet, 464
F.3d 54, 57 (1st Cir. 2006) (per curiam) ("Vázquez-Botet I") (facts
presented by Vázquez did not present the "'clear and indisputable'"
right to immediate mandamus relief necessary for such an
extraordinary remedy (quoting In re Cargill, Inc., 66 F.3d 1256,
1262 (1st Cir. 1995))). Vázquez now avails himself of the
opportunity to appeal the non-recusal.
Before trial, the then-lead prosecutor of the U.S.
Attorney's Office in Puerto Rico granted several of the
subcontractors immunity from prosecution in exchange for their
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testimony. Cobián also testified with immunity under the prior
agreement, and Granados pled guilty to crimes committed in carrying
out his role in the extortion scheme and also testified for the
Government. During the pretrial phase, responsibility for the
prosecution of the case was transferred from the U.S. Attorney's
Office in Puerto Rico to the Public Integrity Section of the
Department of Justice in Washington, D.C.
On September 25, 2006 -- the day before trial was set to
begin and more than two years after he was indicted -- Vázquez
subpoenaed two witnesses, hereinafter "Witness A" and "Witness B,"
to compel their testimony at trial; he also served a subpoena on
Dick Corporation for the production of certain documents.
Witness A was a Dick Corporation official and Witness B was a
consultant hired by Dick Corporation to conduct marketing
activities inside and outside Puerto Rico, including negotiations
for the construction of "intercity connectors" -- pipelines
connecting the Superaqueduct to municipal water systems.2 Vázquez
sought to argue at trial, inter alia, that it was Witness B,
another consultant ("Consultant C"), and powerful persons for whom
they worked who extorted money from the subcontractors in exchange
for the Superaqueduct contract, and not Vázquez. The Government,
Dick Corporation, and Witness B opposed the subpoenas. The
2
The indictment against Vázquez and Morell did not allege any
corruption or extortion with respect to the intercity connectors.
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district court ruled the proposed evidence irrelevant in light of
the uncontradicted statements of Witnesses A and B to investigators
that any relationship between Witness B and Dick Corporation began
at least two years after the Superaqueduct project had been
awarded. But the court stated that it would allow the defendants
to make an offer of proof nonetheless, in order to create a record
of its relevancy decision for appellate review.
Accordingly, on October 16, 2006, the district court held
a hearing at which Vázquez questioned Witnesses A and B and the
Government cross-examined Witness A.3 The court closed the hearing
to the press and public to preclude what it feared would be a
"sideshow"; the court clarified that "[t]his is not part of the
trial. This is a hearing to determine relevancy." Both witnesses
testified that Witness B and Consultant C did not represent Dick
Corporation in its efforts to obtain the Superaqueduct contract for
the Thames-Dick consortium. They also testified that Dick
Corporation did not even hire Witness B until 1998 or 1999 -- at
least two years after the awarding of the contract when the project
was nearing completion -- and hired Consultant C sometime
thereafter. Witnesses A and B also testified that, to the extent
that the tasks Witness B performed on behalf of Thames-Dick had
anything to do with the Superaqueduct project, they were confined
to negotiations surrounding the intercity connectors.
3
The Government chose not to cross-examine Witness B.
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On October 19, 2006, the district court issued a sealed
order confirming its earlier relevancy ruling and quashing both
subpoenas. The court took account of documents submitted by Dick
Corporation and the witnesses' testimony to confirm its pre-hearing
assessment with respect to Witness B: the proposed evidence was
irrelevant to any triable issue or defense, as the contractual
relationship between Witness B and Dick Corporation began more than
two years after the events giving rise to the accusations against
Vázquez; allowing testimony on this relationship would "result in
unnecessary and irrelevant distractions." With respect to
Witness A, the court found that he had no evidence to offer that
would tend to prove or disprove Vázquez's link to any wrongdoing,
save possible knowledge of two discrete events on which the
defendants should be permitted to question Witness A at trial; the
defendants did not ultimately avail themselves of this opportunity
and Witness A never appeared at trial. The district court
maintained the seal on all written and oral arguments in the
litigation surrounding the quashed subpoenas, and ordered that any
public dissemination of the hearing transcript or the exhibits
proffered at the hearing would result in "severe penalties by
contempt or otherwise." The court denied Vázquez's post-trial
motion to unseal this portion of the record. Vázquez and Morell
now argue before us that these decisions effected a violation of
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their Sixth Amendment right to a fair trial, compelling us to
vacate their convictions.
Trial began on September 26, 2006. Among others,
Feliciano, Carmona, Cobián, and Granados testified as government
witnesses. Among many other things, Cobián testified on direct that
Vázquez told him Morell would be among those helping Thames-Dick to
secure the Superaqueduct contract. Morell objected to this
testimony as hearsay not covered by the coconspirator exemption in
Federal Rule of Evidence 801(d)(2)(E). The district court
provisionally allowed the testimony and later confirmed the
applicability of Rule 801(d)(2)(E) and kept the testimony on the
record. Morell now claims this ruling constituted reversible error.
The Government also called the co-case agent, Federal
Bureau of Investigation ("FBI") special agent Ivan Vitousek.
Vitousek testified about a number of FBI investigatory practices,
including that of using cooperators in public corruption cases. In
the course of direct and cross-examination, Vitousek made several
statements that the defendants characterized as improper bolstering
of the credibility of other government witnesses. Vázquez and
Morell argue on appeal that Vitousek's vouching made the jury more
likely to believe these witnesses, thus prejudicing the outcome of
the trial to their detriment. During closing arguments, the
prosecutor made a number of statements the defendants now brand as
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prosecutorial misconduct mandating retrial. We discuss all these
challenges in greater detail below.
On November 3, 2006, the jury convicted Vázquez and Morell
on the conspiracy count, on several of the extortion counts, and on
several of the mail and wire fraud counts. On January 30, 2007, the
district court sentenced Vázquez and Morell each to five years'
imprisonment, and a $100,000 fine. The court determined their
respective guideline Sentencing ranges ("GSRs") by looking at the
total amount of profit earned by the subcontractors -- some $10
million. On appeal, both defendants challenge the propriety of this
methodology.
II. Discussion
A. Chief Judge Fusté's Non-Recusal
Before trial, Vázquez moved for Chief Judge Fusté to
recuse himself, claiming recusal was required for a number of
reasons. Chief Judge Fusté denied the motion, Vázquez-Botet, 453
F. Supp. 2d at 374, and Vázquez petitioned us for mandamus relief,
which we denied, Vázquez-Botet I, 464 F.3d at 57. On appeal,
Vázquez renews his claim that Chief Judge Fusté should have been
recused, but narrows the focus to two arguments. We address these
in turn. We will sustain Chief Judge Fusté's decision not to recuse
himself unless we find that it "cannot be defended as a rational
conclusion supported by [a] reasonable reading of the record."
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United States v. Snyder, 235 F.3d 42, 46 (1st Cir. 2000) (quoting
In re United States, 158 F.3d 26, 30 (1st Cir. 1998)).
Vázquez first questions Chief Judge Fusté's partiality
because of the professional activities of the judge's wife, an
attorney named Rachel Brill, in matters tangentially related to this
case. Specifically, Brill represented subcontractor Laracy during
several meetings between Laracy and the Government, negotiated the
agreement that provided Laracy with immunity in exchange for his
grand jury and trial testimony in this case, and represented him
when he testified before the grand jury that indicted Vázquez.
Brill also represented José Ventura, another local contractor not
involved in the events at issue here. During this representation,
Brill filed a public motion in the district court (presided over by
a different judge) in which she requested sanctions against
Vázquez's lawyer for attempting to intimidate Ventura. After
Vázquez had been indicted, Brill sent a letter to Vázquez's lawyers
accusing Vázquez of trying to extort money out of Ventura by falsely
accusing Ventura of slander; Brill copied this letter to the
prosecutors in this case so they could investigate whether Vázquez
had thereby violated his bail conditions.
Vázquez argues that Chief Judge Fusté's decision not to
recuse himself in light of his wife's activities constitutes
reversible error under 28 U.S.C. § 455(b)(5)(ii) (judge shall
disqualify himself if spouse "[i]s acting as a lawyer in the
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proceeding"); see also id. § 455(d)(1) ("'[P]roceeding' includes
pretrial, trial, appellate review, or other stages of litigation.").
We disagree. As we noted in Vázquez-Botet I, "while an attorney
need not be 'enrolled as counsel' of record in order to fall within
[§ 455(b)(5)(ii)], the attorney must at least 'actually participate
in the case.'" 464 F.3d at 58 (quoting McCuin v. Tex. Power & Light
Co., 714 F.2d 1255, 1260 (5th Cir. 1983)) (citations and alteration
omitted); accord United States ex rel. Weinberger v. Equifax, Inc.,
557 F.2d 456, 463-64 (5th Cir. 1977) (recusal required where judge's
family member actively participates). Chief Judge Fusté has issued
a standing order that Brill not appear as an attorney in any
proceeding before him. In line with this directive, Brill did not
appear before him in this case, as counsel for Ventura, Laracy, or
anyone else.
Specifically with respect to Brill's representation of
Ventura, it is clear that neither of the incidents impugned by
Vázquez counts as "actually participat[ing] in th[is] case."
Vázquez-Botet I, 464 F.3d at 58. Brill's motion requesting
sanctions against Vázquez's lawyer on Ventura's behalf occurred
before Vázquez was even indicted. We reaffirm our observation in
Vázquez-Botet I that this action thus fell outside the scope of
"pretrial, trial, appellate review, or other stages of litigation."
464 F.3d at 58 (quoting 28 U.S.C. § 455(d)(1)). In Vázquez-Botet I,
we likewise rejected Vázquez's other contention relating to Ventura:
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that Brill's post-indictment letter to Vázquez's lawyers, copied to
the prosecutor in this case, somehow converted her into a lawyer
acting in this proceeding. Id. at 59. Brill sent this letter in
response to a communication from Vázquez directly to Ventura seeking
$10 million for allegedly slandering him during testimony in other
judicial and legislative proceedings. In her letter, Brill cited
a statutory privilege for Ventura's testimony and characterized
Vázquez's demand as "laughable." However, while she remarked that
Vázquez's demand may also have been extortionate, she did not accuse
him of extortion outright. And the prosecutor did not act on the
letter by, for example, requesting sanctions against Vázquez for
violating his bail conditions, adding charges against him in this
case, or issuing a separate indictment for attempting to extort
money out of Ventura. Moreover, Brill made no submissions before
the district court in this case requesting action against Vázquez;
no party sought introduction of Brill's letter into evidence or made
any reference to it; and Ventura was not called to testify. These
considerations lead us readily to conclude, as we did in Vázquez-
Botet I, that any connection between Brill's letter and the events
in this case was simply too tangential to qualify her as a lawyer
acting in the proceeding.
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As for Laracy, while he did testify at trial, he was not
represented by Brill at the time.4 Brill's representation in the
negotiations for Laracy's immunity agreement occurred more than ten
months prior to Vázquez's indictment, and Brill was not mentioned
at any point during the trial. Thus, as we held in Vázquez-Botet I,
Brill's representation did not constitute acting in this proceeding.
464 F.3d at 58. We also expressed doubts in Vázquez-Botet I that
her representation of Laracy during his grand jury testimony could
be considered part of this proceeding because the grand jury is
functionally and constitutionally separate from the district court.
Id. at 58 n.6 (citing In re United States, 441 F.3d at 57). Today
we confirm our formerly expressed views and hold that, for purposes
of the recusal statute, the grand jury hearing was separate from
pretrial and trial proceedings in the district court.
Vázquez bases his second challenge to Chief Judge Fusté's
impartiality on the more general language of 28 U.S.C. § 455(a),
which requires recusal where the judge's "impartiality might
reasonably be questioned." Vázquez argues that a reasonable and
informed member of the public could fairly conclude that Chief Judge
Fusté was biased against him because Brill openly took sides in this
litigation by asking another judge to sanction Vázquez's lawyer;
moreover, as a conjugal partnership under Puerto Rico law, Chief
4
It is unclear from the record whether Laracy was accompanied by
any lawyer when he gave this testimony.
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Judge Fusté and Brill necessarily shared in the legal fees paid the
latter by Laracy, and the public surely believes the two talk about
their work in private. These arguments are unavailing.
Section 455(a) requires us to examine whether a reasonable
observer, knowing all the relevant facts, would have doubts about
Chief Judge Fusté's impartiality in this proceeding. Liljeberg v.
Health Serv. Acquisition Corp., 486 U.S. 847, 860-61 (1988).
Vázquez's speculative arguments assume that Brill played a much more
significant role than she actually did. Critically, Brill's
involvement in this case and in other matters tangentially
implicating Vázquez occurred more than two years before Chief Judge
Fusté was randomly assigned to replace the original district judge.
To that end, Vázquez provides no explanation as to how Brill's fees
could possibly have biased Chief Judge Fusté against Vázquez or
adversely affected any of his rulings. Furthermore, no reasonable
observer would interpret Brill's advocacy on behalf of Ventura as
evincing some sort of personal animosity toward Vázquez that somehow
endured through pretrial and trial proceedings and prompted her to
disparage him in front of her husband.
For these reasons, we cannot say that Chief Judge Fusté's
decision not to recuse himself was irrational or lacked support on
a reasonable reading of the record. Snyder, 235 F.3d at 46. As
such, we dismiss this ground of appeal and proceed to the next one.
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B. The Closed Relevancy Hearing
Vázquez and Morell argue that the October 16, 2006 closed
hearing violated their Sixth Amendment rights to a public trial and
to present evidence in their own defense. See Waller v. Georgia,
467 U.S. 39, 47 (1984); In re Oliver, 333 U.S. 257, 273 (1948). The
defendants argue that these errors were structural and we must,
therefore, vacate their convictions. See Owens v. United States,
483 F.3d 48, 64 (1st Cir. 2007). We allowed two Puerto Rico
newspapers and two radio stations to appear jointly as amici
curiae.5 In their brief and in oral arguments before us, the amici
joined the defendants in objecting to the October 16 hearing, but
on a new ground: that the hearing's closure and the sealing of
related documentation violated the press and public's First
Amendment right of access to criminal proceedings. See Globe
Newspaper Co. v. Superior Court for the County of Norfolk, 457 U.S.
596, 603 (1982). The Government counters that, as explicitly noted
by the district court, this particular hearing was merely an offer
of proof to preserve the court's relevancy determination, and that
neither the defendants' Sixth Amendment rights nor the press and
public's First Amendment rights were implicated.6 Under the
5
The amici point out that this case has received high media
attention in Puerto Rico due to the defendants' notoriety and
letters to newspapers written by Vázquez professing that what was
discussed at the October 16 hearing exonerates him.
6
The Government also asserts that the press may not raise a
First Amendment argument not raised by one of the parties.
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circumstances, the Government is correct on the first point; we need
not reach the merits of the second.
Vázquez proffered the testimony of Witness A and Witness B
and the subpoenaed Dick Corporation documents in an attempt to show
that Witness B, Consultant C, and powerful persons for whom they
worked were the ones who extorted money out of the subcontractors
in exchange for the Superaqueduct contract, and that the defendants
were framed in order to throw suspicion off of these and other
implicated individuals. After considering the testimony of Witness
A and Witness B from the October 16 hearing, the district court
confirmed its earlier ruling that the evidence was mostly irrelevant
to any matter at issue in the trial of Vázquez and Morell. The
court focused primarily on the timeline of the contractual
relationship between Witness B and Dick Corporation. Witness A and
Witness B indicated that Witness B began working informally on
behalf of Dick Corporation sometime in 1998, as a consultant and
marketing agent for the company in several construction projects in
Puerto Rico and elsewhere. This relationship was formalized in a
written contract in the fall of 1999, and Consultant C was hired at
around the same time. The witnesses also testified that Witness B
and Consultant C had nothing to do with the 1995-96 discussions
surrounding the Superaqueduct bid. The district court also examined
documents submitted by Dick Corporation, which confirmed that the
contractual relationship between Witness B and Dick Corporation
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began well after the bid was awarded, and opined that Vázquez's
subpoena to Dick Corporation "was a broad, sweeping fishing
expedition." The court concluded that Vázquez's theory that Witness
B was involved in the Superaqueduct extortion scheme was unfounded
speculation and that any evidence Witness B could provide at trial
would be irrelevant, and accordingly quashed Vázquez's subpoenas to
Witness B and Dick Corporation.7 The court ordered that the
transcript of the October 16 hearing and the proffered exhibits
remain sealed, and warned that their divulgence would be punished
by contempt.
We first address the defendants' contention that the
district court's relevancy ruling deprived them of an opportunity
to present exonerating evidence to the jury, and thus violated their
Sixth Amendment right to defend themselves. We afford the district
court considerable discretion in making relevancy determinations and
in excluding evidence for lack of relevance, and our review of such
determinations is for abuse of discretion. Richards v. Relentless,
Inc., 341 F.3d 35, 49 (1st Cir. 2003).
7
The court found Witness A's proposed testimony minimally
relevant with respect to "two very discrete areas," and left the
subpoena intact insofar as the defendants wished to ask him
questions only in relation to these areas. These areas had no
bearing on whether someone other than Vázquez, Morell, and Granados
was extorting money from the subcontractors. The defendants'
decision not to call Witness A at trial waives any objection
regarding that potential testimony.
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After examining the October 16 hearing transcript, the
documents provided by Dick Corporation, and the submissions of the
parties, we agree with the district court that the proposed evidence
was irrelevant to any issue in the prosecution of Vázquez and
Morell; we also agree that to place such evidence in front of the
jury would have resulted in a confusing and distracting sideshow.
Nothing in the transcript, the Dick Corporation documents submitted
at the hearing, or the sealed written submissions contains any
suggestion that Witness B or Consultant C was connected in any way
to the Superaqueduct project until at least 1998, and then only
tangentially with respect to the intercity connectors, which
involved a completely separate contract. Moreover, nothing in the
record reveals that either individual was involved in any scheme to
extort money from the subcontractors. The conduct the jury found
to be extortionate began in June 1995, when Vázquez told Cobián that
he, Morell, and Granados would use their influence to help Thames-
Dick win the contract in exchange for money. While the effects of
this conduct -- including the subcontractors' monthly payments to
the defendants and Granados -- continued for several years and
partially overlapped in time with Witness B's and Consultant C's
employment at Dick Corporation, the main criminal act was
accomplished long before these two persons appeared on the scene.
Indeed, Witness B testified that he had no contact at all with the
individual subcontractors with the exception of Carrero, with whom
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he had a social relationship and worked on matters unrelated to the
Superaqueduct. Witness B's testimony also indicates that his
contacts with persons in the Rosselló government were minimal and
his influence over them virtually nil.
The district court did not, therefore, abuse its
discretion in deeming the proposed evidence irrelevant and excluding
it from the trial. See Achille Bayart & Cie v. Crowe, 238 F.3d 44,
49 (1st Cir. 2001); cf. United States v. Nivica, 887 F.2d 1110, 1118
(1st Cir. 1989) (affirming district court's denial of subpoenas for
three proposed defense witnesses where the anticipated testimony
would have been irrelevant, in part because the witnesses'
involvement with the defendant occurred subsequent to his criminal
conduct). This conclusion disposes of the defendants' claim that
the district court violated their Sixth Amendment right to present
a defense, as no such right exists where the evidence proffered has
been properly ruled irrelevant. See United States v. Maxwell, 254
F.3d 21, 26 (1st Cir. 2001) (defendant's "wide-ranging right to
present a defense" still "does not give him a right to present
irrelevant evidence") (citing In re Oliver, 333 U.S. at 273-74
& n.31); United States v. Reeder, 170 F.3d 93, 108 (1st Cir. 1999)
(no "'unfettered'" Sixth Amendment right "'to offer [evidence] that
is incompetent, privileged, or otherwise inadmissible under standard
rules of evidence'" (quoting Montana v. Egelhoff, 518 U.S. 37, 42
(1996))).
-23-
We therefore turn to the defendants' remaining argument
concerning the October 16 hearing: that the closure of the hearing
and sealing of related documentation violated their Sixth Amendment
right to a public trial. Our review of this (preserved) claim is
plenary. See United States v. DeLuca, 137 F.3d 24, 33 (1st Cir.
1998). Despite the defendants' sweeping assertions regarding the
scope of the public-trial right, the question before us is quite
narrow. We think it clear that, as characterized by the district
court, the October 16 hearing was not a trial session, but rather
a "question-and-answer" offer of proof,8 the purpose of which was to
create a record so that we could determine the propriety of the
court's relevancy ruling.9 See Wright & Graham, Federal Practice
and Procedure § 5040.3, at 908 (2d ed. 2005) (in question-and-answer
offer of proof, proponent elicits proposed testimony by questioning
witness outside jury's presence); accord United States v. Adams, 271
8
Although the actual hearing took place on October 16, 2006 --
nearly three weeks after opening statements -- the subpoenas that
resulted in the hearing were issued before trial began, and the
district court expressly stated at the start of the hearing that it
was not part of the trial.
9
Although the district court did not use the term "offer of
proof," it is evident from the context that this is what the court
intended. Black's Legal Dictionary defines offer of proof as "[a]
presentation of evidence for the record (but outside the jury's
presence) . . . so that the evidence can be preserved on the record
for an appeal of the judge's ruling. . . . Such an offer may
include tangible evidence or testimony (through questions and
answers, a lawyer's narrative description, or an affidavit)."
Black's Law Dictionary 1114 (8th ed. 2004).
-24-
F.3d 1236, 1241 (10th Cir. 2001) (discussing the several types of
offer of proof, and expressing a preference for the question-and-
answer type).
The defendants point to no precedent in the Supreme Court,
this circuit, or elsewhere extending the Sixth Amendment public-
trial right to an outside-of-trial, question-and-answer offer of
proof -- or indeed, any type of offer of proof. Furthermore, the
October 16 hearing differed in at least two fundamental respects
from the categories of non-trial hearings to which the Sixth
Amendment public-trial right has been held to apply in the past,
such as hearings on motions to suppress, see, e.g., Waller, 467 U.S.
at 47, and jury-selection proceedings, see, e.g., Owens, 483 F.3d
at 62. First, the evidence elicited at the hearing had already
(correctly) been ruled irrelevant. Cf. Brown v. Kuhlmann, 142 F.3d
529, 541 (2d Cir. 1998) (courtroom closure during trial did not
infringe Sixth Amendment rights where it involved cumulative
testimony related to matter collateral to charged offense). Second,
the district court was under no obligation to hold the hearing in
the first place, but chose to do so for our and the defendants'
benefit when confronted with Vázquez's eleventh-hour request.
These differences render the Sixth Amendment precedent
invoked by the defendants inapposite in the circumstances. While
we leave open the possibility that the public-trial right may apply
to some offer-of-proof hearings, we decline to recognize such a
-25-
right on facts as uncompelling as these.10 We accordingly reject
this ground of appeal.11
The amici argue that the closure of the October 16 hearing
violated the press and public's First Amendment right of access to
criminal proceedings. As a remedy, the amici ask us to lift the
district court's seal on the hearing transcript along with the gag
order on those who know its contents, so that the press may examine
and report on what transpired there.
Crucially, however, the defendants did not raise this
argument. As we have often acknowledged, we ordinarily will not
consider novel arguments advanced by an amicus on appeal, but not
also raised by a party or another entity which has formally
intervened. See United States v. Sturm, Ruger & Co, Inc., 84 F.3d
1, 6 (1st Cir. 1996); Rhode Island v. Narragansett Indian Tribe, 19
F.3d 685, 705 n.22 (1st Cir. 1994) (declining to address
constitutional claims advanced by amici but not raised by parties);
accord Knetsch v. United States, 364 U.S. 361, 370 (1960). The
10
Vázquez would have us adopt a sweeping rule akin to that
articulated by the Fifth Circuit in Rovinsky v. McKaskle, 722 F.2d
197, 200 (5th Cir. 1984), which seems to hold the Sixth Amendment
right applicable to all but a very small fraction of pretrial and
trial proceedings. The facts of this case do not provide us reason
to endorse such an expansive reading of the law.
11
We also note that it was entirely proper -- and indeed required
-- for the district court to hold the hearing outside the presence
of the jury, and thereafter to take measures to keep the
irrelevant, and thus inadmissible, evidence from reaching the
jury's eyes and ears. See Fed. R. Evid. 103(c); United States v.
Galin, 222 F.3d 1123, 1126-27 (9th Cir. 2000).
-26-
facts present us with no reason to depart from the general rule.
Cf., e.g., United States v. Spock, 416 F.2d 165, 169 (1st Cir. 1969)
(opting to consider amicus's arguments as to unconstitutionally
broad applicability of statute criminalizing aiding and abetting
Vietnam War draft dodging). The amici are, of course, free to
return to the district court in an attempt to argue that changed
circumstances have rendered the seal on the hearing transcript and
related documentation no longer necessary, but that is an issue for
the district court -- not us -- to decide.
Having disposed of the challenges to the closed relevancy
hearing, we turn to the defendants' next assignment of error.
C. The Alleged Witness Vouching
Vázquez and Morell next argue that certain statements made
by Agent Vitousek during his testimony improperly vouched for the
credibility of other government witnesses, made these witnesses more
credible in the minds of the jurors, and thus unfairly prejudiced
the outcome of the trial. We describe the specific instances of
alleged vouching below, but begin with the applicable legal
framework.
A prosecutor may not vouch for one of her witnesses by
making personal assurances about him; she likewise may not
accomplish this goal by putting on another government witness, such
as an FBI agent, to make such assurances. This practice is
prohibited because of its potential to shore up a witness's
-27-
credibility by putting the prestige of the United States behind him
and thereby inviting the jury to find guilt on some basis other than
the evidence presented at trial. United States v. Rosario-Díaz, 202
F.3d 54, 65 (1st Cir. 2000); accord United States v. Pérez-Ruíz, 353
F.3d 1, 13 (1st Cir. 2003) ("Although the prosecution's success
often depends on its ability to convince the jury of a particular
witness's credibility, it cannot entice the jury to find guilt on
the basis of a [government] agent's opinion of the witness's
veracity.").
The district court's decision to admit testimony over a
preserved vouching objection is reviewed for abuse of discretion.
United States v. Tom, 330 F.3d 83, 94 (1st Cir. 2003). In
performing our inquiry, we consider various criteria, including the
overall strength of the Government's case against the defendant, the
prosecutor's willfulness in eliciting the statement from the witness
who did the vouching, the strength and clarity of any curative
instructions, and the likelihood that any prejudice that may have
survived the instructions affected the outcome of the case. See
United States v. Page, 521 F.3d 101, 108 (1st Cir. 2008); United
States v. Cormier, 468 F.3d 63, 73 (1st Cir. 2006). In all events,
we will not vacate a defendant's conviction on vouching grounds
unless the error likely affected the outcome of the trial. Tom, 330
F.3d at 95; Rosario-Díaz, 202 F.3d at 65.
-28-
During the first twelve days of trial, the Government
called several of the witnesses directly involved in the extortion
scheme. Included among them were Cobián and several of the
subcontractor-witnesses, all of whom received immunity in exchange
for their cooperation or testimony, and the coconspirator Granados,
who pled guilty to his role in the extortion and also cooperated
with investigators. On the thirteenth day, the Government called
Agent Vitousek, an experienced FBI fraud investigator.
The defendants identify four episodes in which Vitousek
allegedly vouched for other government witnesses; we address these
in turn. First, the Government sought to elicit from Agent Vitousek
that the FBI had followed normal procedures in investigating this
case. When the prosecutor asked Agent Vitousek why the FBI uses
cooperating insiders as sources in fraud investigations, Vázquez
interposed a vouching objection which the court overruled. Vitousek
then described the procedure employed with cooperating insiders,
stating such things as, "I will tell . . . these cooperating
witnesses to tell the truth about the information they are going to
provide us," and "a cooperating defendant . . . can explain exactly
what happened." We fail to see how the jury could possibly have
understood these generic descriptions of procedure -- with no
reference to any specific individual or case -- to be Vitousek's
assurances that Cobián and Granados were truthful in their dealings
with the FBI or otherwise. As the defendants provide nothing more,
-29-
we will go no further than this. See United States v. Parsons, 141
F.3d 386, 390 (1st Cir. 1988).
The second claimed instance of vouching occurred during
cross-examination by Vázquez. Vázquez asked Vitousek about an
incident in which Cobián told investigators that a certain public
official had accepted a bribe from him; the substance of the
interview was memorialized in a nonpublic FBI report. Later, Cobián
admitted to the investigators that the official had not actually
accepted a bribe. Vázquez questioned Vitousek at length over why
he failed to correct the FBI records on this point. While conceding
that mistakes had been made, Vitousek asserted that there was little
likelihood of negative repercussions for the official because the
government requires much more than a single interview before it will
indict someone. "Trust me," Vitousek added, "[w]e need much more
evidence." Vázquez argues that this testimony gave assurances to
the jury that Vitousek would never seek the indictment of an
innocent person, and that the FBI corroborated Cobián's information
on Vázquez's role in the Superaqueduct extortion with "much more
evidence." Since Vázquez did not timely object to this testimony
or move to strike it at trial, we review the challenge for plain
error. United States v. Brown, 510 F.3d 57, 72 (1st Cir. 2007).
Here again, we fail to see how the jury could possibly have
understood the testimony as bolstering the credibility of any of the
-30-
Government's witnesses, and Vázquez does not explain further. As
such, we cannot find error, much less plain error.
The defendants' third vouching challenge gets them no
further. During an exchange in cross-examination, Vázquez asked
Agent Vitousek several times why the Government relied on Cobián
despite its policy against dealing with cooperators who lie.
Ultimately, the following exchange occurred between Vázquez and
Vitousek:
Q. . . . Based on the records of other
people, Cuco and Laracy and all the other
people who the jury have heard from, you could
prosecute Cobián?
A. Yes.
Q. And the Government has given him a
benefit and chosen not to prosecute him.
A. He is cooperating.
. . .
Q. He will not be prosecuted for the
[Superaqueduct]?
A. If he tells the truth. And . . . up to
now, the assessment has been that he has been
truthful.
Vázquez objected to this last response as vouching. The district
court overruled the objection, finding that Vázquez had "opened the
door" to Vitousek's response. This ruling was entirely appropriate,
and certainly not an abuse of discretion: Vázquez cannot complain
about vouching in response to his own questions, United States v.
García-Morales, 382 F.3d 12, 18 n.1 (1st Cir. 2004), especially when
-31-
he very purposely invited the answer he got by repeatedly
questioning Vitousek about why he continued to deal with Cobián
despite the latter's dishonesty, see United States v. Cutler, 948
F.2d 691, 697 (10th Cir. 1991) ("It is fundamental that a defendant
cannot complain of error which he invited upon himself.") (quoting
United States v. Taylor, 828 F.2d 630, 633 (10th Cir. 1987))
(internal quotation marks omitted).12
The fourth and final claimed instance of vouching is
somewhat more problematic, but here too we must conclude that no
abuse of discretion occurred. On redirect examination, the
Government attempted to clarify an inconsistency raised during
Morell's cross:
Q. . . . [D]o you recall, at the end of
[Morell]'s cross-examination yesterday, he
ask[ed] you about the difference between the
amount of cash that José Cobián said he gave to
Granados and the amount of cash which Mr.
Granados admits he received?
A. Yes
. . .
Q. Do you recall that [Morell] asked you,
"Would it be fair to say one or both of those
cooperators is lying about that? Yes or no?"
12
The fact that, now on appeal, Morell belatedly signs on to
Vázquez's challenge to this instance of alleged vouching does not
compel a different conclusion with respect to Morell. In any
event, Morell failed to object at trial, and is thus relegated to
plain error review, see Brown, 510 F.3d at 72; United States v.
Palow, 777 F.2d 52, 54 (1st Cir. 1985), a standard he cannot
satisfy on these facts.
-32-
A. Yes.
Q. And do you recall that you answered, "If
you say that, yes." Please tell the members of
the jury what you mean by that answer.
A. . . . I want to explain that at no time
I was agreeing with that statement. That is
[Morell]'s statement, not mine. And I would
like to explain exactly what my words
are . . . .
. . .
Now, I want to say my words, and these are the
words of Ivan Vitousek. At no time no witness
brought here by the Government has lied under
oath in this courtroom. . . .
At this, Vázquez objected on vouching grounds. The court indicated
it would instruct the jury later, and allowed Vitousek to continue:
A. . . . There is a discrepancy on the
amounts of cash that were paid illegally by Mr.
Cobián to Mr. Granados Navedo, and there is a
discrepancy on the amount that Mr. Granados
Navedo says that he received in cash from
illegal payments from Mr. Cobián. That doesn't
mean that they are lying. . . .
At sidebar after redirect, Vázquez moved to strike this
testimony.13 The court denied the motion because Morell had opened
the door on cross by essentially asking Vitousek which of the two
men -- Cobián or Granados -- was lying. The court opted instead to
instruct the jury as follows:
The . . . duty to determine whether somebody
has been truthful or not is yours. You are the
13
Vázquez also moved for mistrial, which the court denied.
Vázquez then moved for severance from Morell, which the court also
denied. He appeals neither of these rulings.
-33-
judges of the believability of the witnesses.
You will decide how much of a witness'
testimony you are going to accept or you are
going to reject.
You should not take the testimony of Mr.
Vitousek just now as him telling you that you
should believe any witness. What he basically
told you was that he, rightly or wrongly,
believed what they told him, which is a
different story.
You are the sole judges of the credibility of
the witnesses. You will decide . . . whether
you believe Cobián [and] whether you believe
Granados . . . , and how much of their
testimony you are going to accept and how much
you are going to reject.
The court's end-of-trial jury instructions contained similar
language. Neither defendant objected to either set of instructions.
On appeal, Vázquez and Morell argue that Agent Vitousek's
statements improperly vouched both for the government's witnesses
in general, and for Cobián and Granados in particular. In the
circumstances, we need not decide whether either statement
constituted vouching because any error the district court may have
committed in allowing this testimony to stand was harmless. The
district court -- obviously mindful of the harm the impugned
statements might cause to the defendants -- gave a curative
instruction that the jurors not trust in Agent Vitousek's views on
any witness's veracity, but instead judge veracity for themselves
on the weight of the evidence. These instructions were timely (at
most a few minutes after Vitousek uttered the statements),
straightforward, explicit, and detailed. See Cormier, 468 F.3d at
-34-
74 (no prejudice where instructions were "'strong and clear'"
(quoting United States v. Rodríguez-Estrada, 877 F.2d 153 (1st Cir.
1989)); accord Olszewski v. Spencer, 466 F.3d 47, 60 (1st Cir.
2006); United States v. Palmer, 203 F.3d 55, 59 (1st Cir. 2000).
Moreover, as we have noted many times, we presume juries understand
and follow the court's instructions, see, e.g., United States v.
Kornegay, 410 F.3d 89, 97 (1st Cir. 2005), and Vázquez and Morell
have given us no reason to believe that this jury acted any
differently.14
Considering this factor together with the general strength
of the Government's case against each defendant, we conclude that
no prejudice survived the district court's curative instructions,
and therefore any vouching that may have occurred could not have
affected the outcome of the trial. See Page, 521 F.3d at 108;
Cormier, 468 F.3d at 73. For this reason, the district court did
not abuse its discretion in allowing this testimony to remain on the
record and in continuing with the trial. Tom, 330 F.3d at 94.
Having disposed of all the vouching challenges, we proceed
to the next assignment of error.
14
We also note that the prosecutor did not willfully seek such a
bold endorsement by Vitousek of the other witnesses' truthfulness.
Instead, these statements appear to have been a spontaneous effort
by Vitousek, who had obviously become frustrated with Morell's
aggressive cross-examination, to set the record straight.
-35-
D. The Prosecutor's Closing Argument
The defendants argue that certain of the prosecutor's
remarks in closing improperly disparaged defense counsel and
suggested that the defense bore the burden of proof. We again start
with the applicable legal framework, and then address the specific
instances of alleged misconduct.
If we find that remarks made by the prosecutor at trial
rise to the level of prosecutorial misconduct, we analyze them for
prejudice under the test in United States v. Manning, 23 F.3d 570(1st Cir. 1994). See United States v. Mooney, 315 F.3d 54, 59-60
(1st Cir. 2002). We ask whether the prosecutor's behavior "so
poisoned the well" that the defendant must be given a new trial.
Manning, 23 F.3d at 573 (quoting United States v. Hodge-Balwing, 952
F.2d 607, 610 (1st Cir.1991)). We consider a number of factors,
including the egregiousness of the conduct; the context in which it
occurred; whether the court gave curative instructions and what
effect these instructions likely had; and the overall strength of
the Government's case. Id.; see also United States v. Casas, 425
F.3d 23, 38 (1st Cir. 2005) (misconduct evaluated through a
"'balanced view of the evidence in the record'" (quoting United
States v. Rodríguez-de Jesús, 202 F.3d 482, 485 (1st Cir. 2000))).
We review de novo whether a given remark amounted to prosecutorial
misconduct; if we conclude that it did, we review the overruling of
a preserved objection to the making of the remark for abuse of
-36-
discretion. Casas, 425 F.3d at 39; accord United States v.
Robinson, 473 F.3d 387, 393 (1st Cir. 2007) (no vacatur if error
harmless).
The defendants point to several passages in the
prosecutor's closing argument that they say poisoned the well. In
opening summation, the prosecutor stated:
You've heard and seen a whole lot of evidence
of crime: Conspiracy, extortion, tax offenses,
and of course obstruction of justice. And the
defense has tried very hard to cloud and
complicate the real issues in this case, to
focus your attention on anyone, anything, but
them. That is their job.
In rebuttal, the prosecutor remarked along similar lines as follows:
[T]he government in this case has been accused
of political motivation. Is there any evidence
of that? We have been accused of intentionally
bringing in witnesses who would lie to you,
creating a whole fabricated case against these
defendants. There is no evidence of this kind
of behavior. And it is offensive, and you
should take it for what it is: The acts of
some very desperate lawyers, lawyers who want
to cloud the evidence.
Here, Vázquez objected, but the court made no ruling. The
prosecutor continued:
. . . [Morell] has told you repeatedly that if
the Government did not bring you a witness, you
are entitled to infer that witness would give
evidence that would exculpate, that would prove
his client is innocent. Make no mistake, the
defendant has no burden. No defendant has any
obligation to testify before the grand jury or
at trial. But the defendant has the same
subpoena power as the Government. And if
[Morell] or [Vázquez], for that matter, thought
they could subpoena a witness who would . . .
-37-
give you testimony that would exculpate the[m],
you would have heard it.15
Vázquez again objected and the district court overruled. The court
did not give curative instructions.
The defendants make two main arguments. First, they
object to the prosecutor's statement that "if [Morell] or [Vázquez]
. . . thought they could subpoena a witness who would . . . give you
testimony that would exculpate their clients, you would have heard
it"; they assert that this remark suggested to the jury that they
had the duty to present the missing evidence. See United States v.
Díaz-Díaz, 433 F.3d 128, 135 (1st Cir. 2005) (such a suggestion "may
cross the line"). Second, they contend that the prosecutor's
characterization of them as "desperate lawyers" seeking to "cloud
the issues" improperly disparaged defense counsel and their
important role in the justice system. See Manning, 23 F.3d at 573
n.1 (disapproving of prosecutor's remark that defense counsel were
like "Shakespeare's players, full of sound and fury signifying
nothing").
While we are reluctant to find categorically that these
remarks constituted misconduct,16 even assuming they did, we cannot
15
After Vázquez's objection was sustained, the prosecutor
continued: "You are entitled to disregard [Morell]'s argument that
[Morell's secretary] had any relevant, important evidence to give
in this case because the government did not call her. . . . Don't
go chasing off looking for witnesses you didn't hear."
16
For example, contrary to the defendants' suggestion, not every
comment on a defendant's failure to produce evidence supporting his
-38-
conclude that they so poisoned the well under Manning that the
defendants are entitled to a new trial. First, the remarks are
simply not that egregious, and come nowhere near the sort of remarks
we have found, in rare cases, to mandate a new trial. See, e.g.,
United States v. Hardy, 37 F.3d 753 (1st Cir. 1994) (conviction
vacated where prosecutor drew analogy between defendant's running
and hiding from police on the night of the crime, and running and
hiding again at trial by invoking Fifth Amendment right not to
testify); Manning, 23 F.3d 570 (conviction vacated where prosecutor
suggested that government witnesses cannot lie and urged jury to
"[t]ake responsibility for your community" by convicting defendant);
United States v. Arrieta-Agressot, 3 F.3d 525 (1st Cir. 1993)
(convictions vacated where prosecutor urged jury to consider case
as battle in war against drugs, and defendants as enemy soldiers
corrupting "our society").
Second, while the court did not give curative
instructions, it did instruct the jury at the end of trial that
nothing said during closing arguments could be taken as evidence,
and must be disregarded if it did not conform to the jury's
theory of the case is prohibited. See Díaz-Díaz, 433 F.3d at 135
(citing United States v. Kubitsky, 469 F.2d 1253, 1255 (1st Cir.
1972)). Indeed, in Díaz-Díaz, we suggested that such remarks would
not be improper if made in response to defense arguments "aimed at
having the jury draw the inference that the government did not call
the [witness] because his testimony would have been harmful to its
case." Id. As discussed below, the remarks here would seem to fit
this bill.
-39-
recollection of the evidence actually presented. The court also
reminded the jury that the Government had the burden of putting on
evidence to establish the defendants' guilt beyond a reasonable
doubt, and that the defendants bore no burden at all. Again,
Vázquez and Morell have given us no reason to believe the jury was
somehow unable to follow these instructions, and we do not believe
the impugned remarks "were of a caliber that would inherently compel
jurors to disregard their duty." United States v. Levy-Cordero, 67
F.3d 1002, 1009 (1st Cir. 1995); cf., e.g., Rodríguez-de Jesús, 202
F.3d at 486 (no retrial required where court gave no curative
instructions at time of remarks, but later instructed jury that
counsel's statements were not to be taken as evidence); Levy-
Cordero, 67 F.3d at 1009 (similar); Mooney, 315 F.3d at 60 (noting
that end-of-trial instructions "are sometimes enough to neutralize
any prejudice from improper remarks").
Third, on a comprehensive view of the record, the
Government's case against these two defendants was strong. It
rested on a solid foundation of testimony from several witnesses,
including many personally involved (albeit often grudgingly) in the
extortion and fraud schemes, as well as considerable documentary
evidence.
Fourth, specifically with respect to the remark on the
defendants' ability to subpoena witnesses, we have often
acknowledged that retrial is not required where the prosecutor's
-40-
remarks, even if arguably improper, are a closely tailored response
to defense counsel's equally improper remarks. See, e.g., United
States v. Nickens, 955 F.2d 112, 122 (1st Cir. 1992) ("[I]f the
prosecutor's remarks were 'invited,' and did no more than respond
substantially in order to 'right the scale,' such comments would not
warrant reversing a conviction." (quoting United States v. Young,
470 U.S. 1, 12-13 (1985))); United States v. Henderson, 320 F.3d 92,
107 (1st Cir. 2003) (same); see also United States v. Skerret-
Ortega, No. 06-1126, 2008 WL 2402254, at *5 (1st Cir. June 13, 2008)
(latitude given to prosecutors in responding to provocative remarks
by defense counsel); United States v. Pérez-Ruiz, 353 F.3d 1, 10
(1st Cir. 2003) (similar).
Morell argued in closing that if a witness with relevant
information was available to the Government, but the Government
chose not to call the witness to testify, the jury could acquit him
on the relevant count of the indictment. He referred specifically
to his secretary, who he argued would have corroborated his version
of the facts had the Government called her. In rebuttal a few
minutes later, the prosecutor reminded the jury (as quoted above)
that the defendants had no duty to put on evidence, but that they
would have subpoenaed a given witness had they believed her
testimony would exculpate them. We find this to have been a
limited, proportionate, and thus closely tailored, response to
-41-
Morell's rather outrageous invitation. See Henderson, 320 F.3d at
107.
Finally, we are mindful of the Supreme Court's admonition
that we not set guilty persons free simply to punish prosecutorial
misconduct. United States v. Auch, 187 F.3d 125, 133 (1st Cir.
1999) (citing United States v. Hasting, 461 U.S. 499, 506-07
(1983)). Ordering retrial is a rare remedy to which we resort only
where a miscarriage of justice would otherwise occur, or where the
evidence weighs heavily against the jury's verdict. Rodríguez-de
Jesús, 202 F.3d at 486. Neither of these conditions is present in
the circumstances.
In sum, the impugned remarks, even if rising to the level
of prosecutorial misconduct, did not poison the well to the degree
required under Manning.17 We therefore reject this ground of
appeal, and proceed to the next one.
17
In light of the several other factors militating against finding
an abuse of discretion here, our conclusion remains the same even
if, as Vázquez urges, we disregard the invited-response rule with
respect to him because it was Morell who told the jury that
uncalled Government witnesses would have exonerated him.
We also note that neither defendant objected at trial to the
first "cloud the evidence" remark, made during the prosecutor's
opening summation. For convenience we have considered both "cloud
the evidence" remarks in tandem, but if we were to consider them
independently of one another, we would review the first one for
plain error, see Henderson, 320 F.3d at 102, 107, and find that it
comes nowhere near requiring retrial under that standard.
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E. Sufficiency of the Evidence Against Morell
Morell mounts a broad challenge to the sufficiency of the
evidence used to convict him. He argues that no rational jury could
have found him guilty of any of the crimes of which this jury
convicted him. Those crimes were: (1) conspiracy in Count One of
the indictment; (2) Hobbs Act extortion of three subcontractors --
Feliciano, Carmona, and Laracy -- in Counts Two, Three, and Four,
respectively; (3) wire fraud in Counts Nine to Eleven; and (4) mail
fraud in Count Thirteen.18
Our central task in evaluating the sufficiency of the
evidence is to determine whether a rational factfinder could have
found each element of the crime in question beyond a reasonable
doubt. United States v. Lizardo, 445 F.3d 73, 81 (1st Cir. 2006).
Our review is plenary, looking at the record as a whole and
"resolv[ing] all questions of credibility and reasonable inferences
in favor of the verdict." Id.; accord United States v. Ortiz, 966
F.2d 707, 711 (1st Cir. 1992) ("[I]t is not the appellate court's
function to weigh the evidence or make credibility judgments.
Rather, it is for the jury to choose between varying interpretations
of the evidence."). We need not be convinced that a guilty verdict
was the only one available on the evidence, but merely that "a
18
The indictment had fourteen counts. The jury acquitted Morell
of Count Five, extortion of subcontractor Carrero; Count Twelve,
one of the wire fraud charges; and Count Fourteen, obstruction of
justice. Counts Six to Eight pertained only to Vázquez.
-43-
plausible rendition of the record" supports the verdict. Ortiz, 966
F.2d at 711. Evidence sufficient to support a guilty verdict may
be entirely circumstantial, and the factfinder is "free to choose
among reasonable interpretations of the evidence." United States
v. Wight, 968 F.2d 1393, 1395 (1st Cir. 1992).
Morell was convicted on three counts of Hobbs Act
extortion by fear of economic harm or under color of official right;
each of these counts pertained to the extortion of each of three
subcontractors: Feliciano, Carmona, and Laracy. We begin our
analysis by determining whether a rational jury could have found the
elements of extortion for these three subcontractors. The Hobbs Act
provides that "[w]hoever in any way or degree obstructs, delays, or
affects commerce or the movement of any article or commodity in
commerce, by . . . extortion or attempts or conspires so to do . .
. shall be [punished]." 18 U.S.C. § 1951(a). The Act defines
extortion as "the obtaining of property from another, with his
consent, induced by wrongful use of . . . fear, or under color of
official right." Id. § 1951(b)(2). We have clarified that "fear"
"encompasses 'fear of economic loss, . . . including the possibility
of lost business opportunities.'" United States v. Rivera Rangel,
396 F.3d 476, 483 (1st Cir. 2005) (quoting United States v. Bucci,
839 F.2d 825, 827-28 (1st Cir. 1988)). Therefore, an individual
commits Hobbs Act extortion if he: (1) obtains property from
another person; (2) with that person's consent; (3) through fear of
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economic loss or under color of official right; and (4) the
transaction affects interstate commerce. Id.Morell does not dispute the existence of the fourth
element, and we find sufficient evidence in the record to establish
this element19 and the first three. The first element is easily
satisfied: Cobián testified -- and a rational jury could have
believed -- that the subcontractors made periodic cash payments to
him between 1997 and 1999 which he then passed on to Vázquez,
Morell, and Granados. Several subcontractors verified that they
made such payments to Cobián, and this testimony was supported by
documentary evidence -- for example, sham checks from Carmona's
business to non-existent individuals for unperformed services, so
Carmona could generate the cash necessary to pay Cobián. Feliciano
also testified that he made one payment to Vázquez in person. The
second element is also easily met: Feliciano, Carmona, and Laracy
all testified that they agreed voluntarily (though reluctantly) to
pay the money demanded, and a rational jury could have believed this
testimony.
19
We have held that "the government need only show a realistic
probability of a de minimis effect on interstate commerce[] in
order to bring extortion within the reach of the Hobbs Act."
United States v. Rivera-Medina, 845 F.2d 12, 15 (1st Cir. 1988);
see also United States v. Hathaway, 534 F.2d 386, 396 (1st Cir.
1976) (Hobbs Act reaches "even those effects which are merely
potential or subtle" (internal quotation marks omitted)). We find
ample evidence on the record before us to prove this element.
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As for the third element -- inducement to pay by fear of
economic loss or color of official right -- it, too, is established
on the facts presented. As an initial matter, the two components
of this element are disjunctive, and an extortion conviction will
stand if there is sufficient evidence to prove either component.
Id. To prove the former, "the government must show that the victim
reasonably feared that noncompliance with the putative
extortionist's terms would result in economic loss." United
States v. Cruz-Arroyo, 461 F.3d 69, 74 (1st Cir. 2006), cert.
denied, 127 S. Ct. 1169 (2007).
The Government here put forth ample evidence to show that
Feliciano, Carmona, and Laracy reasonably feared economic harm if
they failed to pay the money demanded of them. Feliciano, for
example, testified that he agreed to pay the money because, if he
did not, "[t]he government" could "make life very difficult" for his
construction firm by delaying Superaqueduct project payments and not
awarding the firm government contracts in the future. Carmona
testified that he felt compelled to pay and keep paying because if
he failed to do so, the Thames-Dick consortium could be removed from
the Superaqueduct project and his construction firm might also
suffer other adverse consequences. Laracy testified in a similar
vein that he feared detriment to his business if he did not pay.
Feliciano, Carmona, and Laracy testified further that they knew the
recipients of the money were people with influence in the NPP
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government; they knew Granados to be among them; and Feliciano and
Carmona also knew Vázquez to be among them. Based on this
testimony, a rational jury could have concluded beyond a reasonable
doubt that Feliciano, Carmona, and Laracy paid Cobián out of fear
of detrimental consequences for their respective businesses, and
that this fear was reasonable because they believed the
extortionists to have real power to effect such detriment.
The next critical question we must answer is whether a
rational jury could have found Morell to be linked to the extortion
scheme in a manner that allows criminal liability to be imputed to
him. We must therefore examine whether a rational jury could have
found a conspiracy to exist, and Morell to be a member of it, as
charged in Count One of the indictment. To establish a conspiracy,
the Government must prove three elements: (1) an agreement to
commit an unlawful act; (2) the defendant's knowledge of the
agreement and voluntary participation in it; and (3) an overt act
by at least one of the coconspirators in furtherance of the
conspiracy. United States v. Muñoz-Franco, 487 F.3d 25, 45 (1st
Cir.), cert. denied, 128 S. Ct. 678 (2007). The Government need not
prove a formal agreement; instead, "[t]he agreement may be shown by
a concert of action, all the parties working together
understandingly, with a single design for the accomplishment of a
common purpose." Id. at 45-46 (quoting Am. Tobacco Co. v. United
States, 147 F.2d 93, 107 (4th Cir. 1944)) (internal quotation marks
-47-
omitted). Morell's conviction may be sustained on sufficient
evidence of a conspiracy to commit any of the three charged
conspiracy offenses. Id. at 46. For purposes of the present
analysis, we focus on conspiracy to commit extortion.
Morell does not seriously challenge the Government's
evidence on the first and third elements of conspiracy, and we find
an abundance of evidence in the record to support their existence.
Cobián and Granados testified that Vázquez and Cobián devised a plan
to compel the subcontractors to hand over a portion of their
Superaqueduct profits. As we have found above, a rational jury
could have considered this compelled payment to constitute extortion
-- the requisite unlawful act that is the object of the conspiracy.
And the record reveals many overt acts in furtherance of such a
conspiracy including, for example, Cobián's physical transfer of
periodic cash payments from Feliciano and Carmona to Vázquez's
medical office.
What remains, then, is the second element: whether Morell
knew of the extortion agreement and voluntary participated in it.
The most direct evidence against Morell in this regard is Cobián's
testimony about one of his initial meetings with Vázquez. According
to this testimony, Vázquez told Cobián that Morell and Granados
would be assisting him in his efforts to secure the Superaqueduct
contract for Thames-Dick, and that Cobián should approach Morell to
work out how Morell wished to receive his share of the payments.
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Yet even in the absence of this testimony, a rational factfinder
could still have inferred that Morell knew of and adhered to the
extortion agreement based on a significant quantum of other
evidence. For example, Cobián testified that, in 1997, he
approached Morell to arrange how the latter wished to receive his
share. Cobián stated that Morell was not surprised to see him, but
instead seemed to have been expecting him and had already devised
a specific plan for concealing the transfer of the subcontractors'
money. According to Cobián, Morell proceeded to draw up a sham
legal contract and made several other elaborate arrangements to this
end. Morell then accepted periodic payments from Cobián under the
sham contract and through third-party payments from 1997 to 1999 --
a period largely overlapping with the period during which Vázquez
and Granados were also receiving payments. Morell does not dispute
that he received thousands of dollars from Cobián over the course
of those two years.
As noted above, it is not for us to make credibility
determinations on a review of the sufficiency of the evidence, but
merely to say whether a rational jury could have believed this
testimony. See Ortiz, 966 F.2d at 711. We find that a rational
jury could have believed Cobián, and then drawn the reasonable
inference that Cobián's payments to Morell were not for legal
services and other licit ends, but were instead designed
clandestinely to channel him his part of the extortionate proceeds.
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A rational jury could then have drawn a second inference: that
Morell obviously knew of, and voluntarily participated in, the
scheme. Accordingly, a rational jury could have found all three
elements of conspiracy beyond a reasonable doubt, and this jury's
conviction of Morell under Count One was therefore supported by
sufficient evidence.
This brings us to the sufficiency of the evidence as to
the counts charging Morell with substantive crimes incident to the
conspiracy. Contrary to Morell's assertion at oral argument, the
law does not require proof that he personally took any steps to
instill economic fear in the subcontractors, to influence the award
of the contract or the payment for performance under the contract,
or that the subcontractors feared Morell or even knew of his
involvement. Instead, under the Pinkerton doctrine, a defendant can
be found liable for the substantive crime of a coconspirator
provided the crime was reasonably foreseeable and committed in
furtherance of the conspiracy. United States v. Gobbi, 471 F.3d
302, 309 n.3 (1st Cir. 2006) (citing Pinkerton v. United States, 328
U.S. 640, 647-48 (1946)). The district court properly instructed
the jury on the Pinkerton doctrine. Based on overwhelming evidence
in the record, the jury could rationally have found that Vázquez,
Cobián, or Granados committed extortion. Through Pinkerton, such
a jury could then have found Morell equally liable for the
substantive offense, since extortion was committed in furtherance
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of the conspiracy (and indeed was the conspiracy's object), and was
a reasonably foreseeable result of the conspiracy. See Díaz-Díaz,
433 F.3d at 137.20 For these reasons, Morell's substantive
extortion convictions under Counts Two to Four of the indictment
were also supported by substantial evidence.
The last set of convictions Morell challenges on
sufficiency grounds stem from various instances of mail and wire
fraud charged in Counts Nine to Eleven and Thirteen. In order to
convict an individual of mail or wire fraud under 18 U.S.C. §§ 1341and 1343, the Government must prove: "(1) the defendant's knowing
and willing participation in a scheme or artifice to defraud with
the specific intent to defraud, and (2) the use of the mails or
interstate wire communications in furtherance of the scheme."
United States v. Sawyer, 85 F.3d 713, 723 (1st Cir. 1996).
Counts Nine, Ten, and Eleven charged Morell with devising
a scheme to defraud the Puerto Rico Treasury Department ("Hacienda")
by failing to pay income taxes on revenue earned from the extortion.
Each count lists a separate wire transaction of thousands of dollars
20
Citing United States v. O'Campo, 973 F.2d 1015, 1021 (1st Cir.
1992), Morell argues that he cannot be held vicariously liable
through Pinkerton because Vázquez and Granados had already
committed extortion by the time he began receiving payments. We
reject this argument, as extortion can be an ongoing crime, see,
e.g., Bucci, 839 F.2d at 829-30, and this extortion went on until
the payments ceased in 1999. In any event, a rational jury could
have found that Morell adhered to the extortion agreement from its
inception, and not merely from 1997, when he began receiving
payments.
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dated April 16, 1999 from Thames-Dick to Feliciano, Carmona, and
Laracy, respectively. These were apparently chosen as
representative samples of the monthly wire transfers Thames-Dick
made to the subcontractors beginning in January 1997, a portion of
which the subcontractors then handed over to Cobián, who in turn
gave a portion to Morell, Vázquez, and Granados. The indictment
charges that Morell failed to account for this 1999 income on his
Puerto Rico tax return, and then used the mails to send the return
to the Puerto Rico tax agency. This mailing was the basis for the
mail-fraud charge in Count Thirteen.
Upon review of the record, we find sufficient evidence for
a rational jury to have convicted Morell on all of these counts.
A rational jury could have believed Cobián's testimony that Morell
directed Cobián to funnel him the subcontractors' money through
checks for sham legal services purportedly rendered to Cobián's
company, and through payments to third parties for Morell's benefit.
Such a jury could also have credited the certified copy of Morell's
1999 tax return in evidence, that failed to report payments made to
him by Cobián in that year. A rational jury could likewise have
believed Morell's tax preparer, who testified that Morell did not
tell him about income earned from Cobián's company in 1999, and that
he therefore did not include it on the 1999 return. These findings,
in turn, would be sufficient to satisfy the first element for both
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mail and wire fraud: that Morell intentionally, knowingly, and
willingly participated in a scheme to defraud Hacienda. See id.Specifically with respect to the wire-fraud counts, a
rational jury could then have found the second element fulfilled --
that wire communications were used in furtherance of the scheme.21
Morell need not have had any personal involvement in initiating the
wire transfers; instead, the use of the wires need only have been
"a reasonably foreseeable part of the scheme in which he
participated." Id. at 723 n.6 (quoting United States v. Boots, 80
F.3d 580, 585 n.8 (1st Cir. 1996)) (internal quotation marks and
alteration omitted); accord United States v. Fermín Castillo, 829
F.2d 1194, 1198 (1st Cir. 1987) (it must have been reasonably
foreseeable that use of the mails or wires would "follow in the
ordinary course of business" (quoting United States v. Benmuhar, 658
F.2d 14, 16-17 (1st Cir. 1981)) (internal quotation marks omitted));
see also id. (case law on mail-fraud statute instructive for wire-
fraud statute). From the evidence presented, a rational jury could
have inferred that it was reasonably foreseeable that interstate
wires would be used in the ordinary course of business for Thames-
Dick to transfer payments to the subcontractors. These transfers
were essential to the success of the extortion scheme and, in turn,
the scheme to defraud the Puerto Rico tax agency, because they
21
The parties stipulated that the wire payments traveled in
interstate commerce, so we need not address the evidence on this
element.
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provided the subcontractors the money they gave to Morell and the
others, and which Morell then failed to report. On the basis of
such findings, a rational jury could thus have concluded that Morell
was guilty of wire fraud on each of the three counts.22
Turning specifically to the mail-fraud count, a rational
jury could also have found the second element fulfilled here -- that
the mails were used in furtherance of the scheme. The district
court admitted into evidence a copy of a meter-marked envelope
addressed to Hacienda and bearing a Hacienda receipt stamp, along
with Morell's 1999 return. Morell does not dispute that these were
his envelope and return, but contends there is no proof that the
return was actually placed in the mail. We disagree, and conclude
that a rational jury could have credited evidence that Morell mailed
the return or reasonably expected that in the regular course of
business, it would be mailed to Hacienda on his behalf. Morell's
tax preparer, who formerly worked for Hacienda, testified that when
tax returns came in the mail, Hacienda kept the envelope and stapled
it to the return, but would likely discard an envelope accompanying
a hand-delivered return. A rational jury could have believed this
22
Morell makes much of the fact that the indictment also alleges
he committed fraud on his 1997 and 1998 tax returns, but the
evidence used to show wire transfers for Counts Nine to Eleven
consisted of April 1999 transactions made after the 1997 and 1998
returns had been filed. We need not address this argument because
all that was required to sustain Morell's convictions on these
counts was sufficient evidence that he committed fraud on one of
the returns, and the 1999 return meets this requirement.
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testimony, and inferred from it that the 1999 return and the meter-
marked envelope were actually mailed. The evidence was therefore
sufficient to support a finding of guilt by mail fraud.
For these reasons, we reject all of Morell's challenges
to the sufficiency of the evidence, and proceed to the next ground
of appeal.
F. Admission of Coconspirator Statement Against Morell
This ground of appeal, also advanced only by Morell,
concerns Cobián's testimony on direct examination about one of the
meetings in which Vázquez proposed the extortion scheme to Cobián.
Cobián testified that he asked Vázquez who else would be helping the
subcontractors to secure the Superaqueduct contract, and that
Vázquez told Cobián it would be Morell and Granados. At this,
Morell objected on hearsay grounds, arguing that this testimony was
inadmissible hearsay. The district court provisionally allowed the
testimony under our rule in United States v. Petrozziello, 548 F.2d
20 (1st Cir. 1977), and later kept it on the record after assessing
it in light of other evidence presented at trial. See United States
v. Mangual-García, 505 F.3d 1, 7-8 (1st Cir. 2007). Morell now
argues that this constituted reversible error because the testimony
was the only piece of evidence linking him to a conspiracy involving
Vázquez.
Our case law instructs district courts faced with a
challenge to the admission of a coconspirator hearsay statement to
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admit the statement provisionally and wait until the end of trial
to consider four factors in the light of all the evidence:
(1) whether a conspiracy existed; (2) whether the defendant was a
member of the conspiracy; (3) whether the declarant was also a
member of the conspiracy; and (4) whether the declarant's statement
was made in furtherance of the conspiracy. Colón-Díaz, 521 F.3d
at 35-36 (citing Petrozziello, 548 F.2d at 23; Fed. R.
Evid. 801(d)(2)(E)). If these four conditions are satisfied by a
preponderance of the evidence, the statement qualifies under the
coconspirator exemption to the hearsay rule and may therefore be
admitted into evidence -- including to prove the truth of the matter
asserted. Id. at 35. We review preserved challenges to a
Petrozziello determination (or a portion thereof) for abuse of
discretion, and unpreserved challenges for plain error. Id. at
36-37.
In a sealed written order, the district court made the
Petrozziello determination, finding the four Rule 801(d)(2)(E)
factors satisfied by a preponderance of the evidence. Morell did
not object to this assessment with respect to the first, third, and
fourth Rule 801(d)(2)(E) factors, and does not quarrel with it now.
As such, he forfeited any challenge to the court's findings on these
factors. United States v. Thompson, 449 F.3d 267, 273 (1st Cir.
2006). As concerns the second factor -- whether Morell was a member
of the conspiracy -- we have already concluded above that, on the
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evidence presented at trial, a rational jury could have found Morell
to be a member of the charged conspiracy beyond a reasonable doubt
even absent Cobián's testimony that Vázquez implicated Morell during
the meeting in question. A fortiori, the record contains ample
evidence to support a finding by the requisite preponderance that
Morell was a member of the conspiracy for purposes of
Rule 801(d)(2)(E). Cf. United States v. Gjerde, 110 F.3d 595, 602
(8th Cir. 1997) (finding certain Rule 801(d)(2)(E) factors as
necessarily satisfied by preponderance where court had already found
the relevant facts proven beyond reasonable doubt). The district
court did not, therefore, abuse its discretion in not striking the
statement, and the jury was entitled to consider it for the truth
of the matter asserted therein.
G. Sentencing
As their final ground of appeal, Vázquez and Morell
challenge the manner in which the district court calculated their
respective GSRs under the Sentencing Guidelines. We review the
district court's legal interpretation and application of the
Guidelines de novo, but its loss or benefits calculations are
reviewed only for clear error. United States v. Innarelli, 524 F.3d
286, 290 (1st Cir. 2008); United States v. Griffin, 324 F.3d 330,
365 (5th Cir. 2003).
At sentencing, the district court calculated the
defendants' respective GSRs in the manner recommended by their
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respective Presentence Reports ("PSRs"). It accordingly looked to
§ 2C1.1 of the 1998 Guidelines,23 on "Extortion Under Color of
Official Right":
(a) Base Offense Level: 10.
(b) Special Offense Characteristics
. . .
(2) (If more than one applies, use the greater):
(A) If the value of the payment, the benefit
received or to be received in return for the
payment, or the loss to the government from
the offense, whichever is greatest, exceeded
$2,000, increase by the corresponding number
of levels from the table in § 2F1.1 (Fraud
and Deceit). . . .
U.S.S.G. § 2C1.1 (1998). Section 2C1.1(b)(2)(A) thus provides three
alternative amounts, and the court must choose the greatest: (1)
the value of the payment; (2) the benefit received or to be received
in return for the payment; or (3) the loss to the government from
the offense.24
23
The PSRs recommended that the 1998 Guidelines be used by
operation of U.S.S.G. § 1B1.11(b)(1) (2006). The district court
followed this recommendation, and the parties did not object. We
accordingly use the 1998 Guidelines as well, noting that while
§ 2C1.1 has been amended since 1998, the key language for purposes
of analyzing the defendants' challenge remains virtually the same.
24
It is undisputed that the third alternative -- loss to the
government -- is not available because the government lost no money
as a result of the extortion scheme. Pursuant to U.S.S.G. § 3D1.2
cmt. n.6 (1998), the district court did not make an independent
determination of the defendants' sentences for defrauding the
Puerto Rico tax authorities. As such, those losses played no part
in the sentencing calculations in this case.
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Relying on the PSRs, the district court determined that
the alternative with the highest quantity was the "benefit to be
received in return for the payment," which the court estimated as
slightly over $10 million -- the approximate combined profit earned
by the subcontractors for their work on the Superaqueduct project.
Following the directive in § 2C1.1(b)(2)(A), the court then looked
to § 2F1.1, which instructed it to increase the defendants'
respective offense levels by fifteen because the "loss" the
defendants caused exceeded $10 million. Id. § 2F1.1(b)(1)(P)
(1998). Added to the base offense level of ten (which was
undisputed), the defendants were left with offense levels of twenty-
five, along with respective Criminal History Categories of I. This
produced a GSR of fifty-seven to seventy-one months. After
undertaking the remainder of the sentencing analysis, including an
examination of the factors in 18 U.S.C. § 3553(a), the court
sentenced Vázquez and Morell toward the lower end of this range, to
sixty months' imprisonment each. The defendants timely objected to
the methodology used to produce this sentence.
On appeal, Vázquez and Morell argue that the district
court erred in choosing the "benefit to be received" alternative
because there was no evidence that the subcontractors received the
roughly $10 million in profits "in return for the payment."
U.S.S.G. § 2C1.1(b)(2)(A). According to the defendants, it was
undisputed that the Thames-Dick consortium was the most qualified
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of the bidders, and there was no evidence that Vázquez or Morell
actually exerted any real influence on anyone responsible for
awarding Thames-Dick the contract. As Granados testified, the
coconspirators' promise to help the subcontractors was merely an
insurance policy to make sure nothing happened that would impede the
awarding of the contract -- not to compel or persuade the relevant
officials to award it. Therefore, because Thames-Dick was awarded
the contract based on its and the subcontractors' own merit through
a process not tainted by the defendants' crime, the "benefit . . .
to be received in return for the payment" was zero, and the court
must sentence the defendants under the (much lower) "value of the
payment" alternative in § 2C1.1(b)(2)(A). The district court did
not make specific findings on the amount of money the defendants
actually received, but other evidence suggested it was below
$1 million for each defendant.
We begin by determining whether the district court
committed legal error in its interpretation of the meaning of
"benefit . . . to be received in return for the payment" in
§ 2C1.1(b)(2)(A). This is a question of first impression in this
circuit. Evident from the plain language of the guideline --
"benefit . . . to be received" -- is the Sentencing Commission's
intention that this inquiry be forward-looking, a conclusion also
reached by the Fifth Circuit in one of the rare cases interpreting
the guideline in the context of extortion, as opposed to bribery:
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"[I]n determining the amount of benefit to be received, courts may
consider the expected benefits, not only the actual benefits
received." Griffin, 324 F.3d at 366 (emphasis added). This
prospective analysis comports with our closely analogous case law
on computing loss for purposes of sentencing. We have held that
when a person is convicted of a fraud offense, a proper analysis of
the loss he intended to cause asks what a person in his position at
the relevant time would reasonably have expected to happen to the
victim as a result of the fraud. See Innarelli, 524 F.3d at 291.
The rationale for an ex ante inquiry lies in the purpose of the
exercise: to set the defendant's punishment at a level commensurate
with the degree of his moral culpability. For this reason, it is
not determinative what loss the victim actually ended up suffering,
or indeed whether the victim suffered any loss at all. Id.25
This reasoning translates readily into the extortion
context. We think that the best interpretation of "benefit . . .
to be received in return for the payment" is the benefit a person
in the defendant's position at the time of the extortion would
reasonably have expected the victim to receive by paying him the
money he demanded. See Griffin, 324 F.3d at 366. This figure, in
turn, affords the court a gauge for how severely the defendant
25
As we noted in Innarelli, this rationale contrasts with that for
restitution, which is "necessarily a backward-looking inquiry"
because the defendant can only be made to reimburse the victim for
the loss he actually caused to the victim. 524 F.3d at 294.
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deserves to be punished. We reject the defendants' invitation to
look with 20-20 hindsight at whether, at the end of the day, they
actually did anything overt to help Thames-Dick get the contract.
As reasonable expectation at the time of the extortion is the
touchstone of the inquiry, the district court's interpretation was
the right one.
As for the amount of the benefit in this case, neither
defendant contests the district court's estimate of slightly more
than $10 million, a figure the court described as conservative. In
any event, our review of the record reveals this estimate to be
reasonable, and a reasonable estimate is all that is required. See
Innarelli, 524 F.3d at 290; Griffin, 324 F.3d at 365. We therefore
see no reason to deem this quantity clearly erroneous. United
States v. Gray, 521 F.3d 514, 542-43 (6th Cir. 2008) (amount of
benefit to be received reviewed for clear error); Griffin, 324 F.3d
at 365 (same).
Since more than $10 million is undisputably greater than
the other available alternative in § 2C1.1(b)(2)(A) -- the value of
the payments to Vázquez and Morell -- the district court properly
used it to determine how many additional levels to add to their
respective base offense levels. See U.S.S.G. §§ 2C1.1(b)(2),
2F1.1(b)(1)(P). Accordingly, the court's GSR calculation for each
defendant was correct, and in the absence of any further sentencing
challenges, our review ends there.
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III. Conclusion
For the foregoing reasons, we affirm Vázquez's conviction
and sentence, and affirm Morell's conviction and sentence.
Affirmed.
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