United States v. William Kostopoulos ( 2019 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-12145
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D.C. Docket No. 1:15-cr-20459-MGC-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WILLIAM KOSTOPOULOS,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(March 14, 2019)
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Before JILL PRYOR and BRANCH, Circuit Judges, and REEVES, * District
Judge.
PER CURIAM:
The evidence presented at trial in this case showed that William Kostopoulos
abused his position as a police officer by stealing money from persons not lawfully
present in this country whom he pulled over while he was on duty. When
confronted by local law enforcement, he lied about his actions. A jury convicted
Kostopoulos of two counts of deprivation of civil rights under color of law, in
violation of 18 U.S.C. § 242, and one count of tampering with a witness, in
violation of 18 U.S.C. § 1512(b)(3). On appeal, Kostopoulos challenges his
convictions on two grounds. First, he argues that the district court abused its
discretion by allowing the government to admit evidence of his financial condition
around the time of the thefts. Second, he argues that the evidence was insufficient
to convict him of witness tampering. After careful review, and with the benefit of
oral argument, we affirm.
I. BACKGROUND
Kostopoulos, a detective with the Miami-Dade Police Department
(“MDPD”), was charged with two counts of deprivation of civil rights under color
*
The Honorable Danny C. Reeves, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
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of law and one count of tampering with a witness.1 The following evidence was
adduced at his criminal trial.
Hugo Gomez, who is from Guatemala, testified that around 9:00 p.m. one
evening in September 2013, he noticed a gray Ford Taurus following him as he
drove toward his house from a nearby store in Homestead, Florida. The driver of
the Taurus activated a blue light on the front windshield of the car, and Gomez
pulled over to the side of the road. The driver, a tall white man with a badge
hanging around his neck, later identified as Kostopoulos,2 approached Gomez and
asked for his driver’s license. Gomez responded that he did not have one.
Kostopoulos took Gomez’s keys, ordered him out of the car, and patted him down.
During the pat-down, Kostopoulos found a wallet in Gomez’s front pants pocket;
he removed the wallet and walked back to the Taurus, where he looked through the
wallet. Ten minutes later, Kostopoulos returned to Gomez, gave him back his
wallet, and told him to leave while making a “handcuff” gesture. Doc. 226 at 98. 3
Gomez drove home. Once home, he looked in his wallet and saw that $130
was missing. He was hesitant to call the police because of his status, but after
1
Kostopoulos also was charged with a third count of deprivation of civil rights, but the
government voluntarily dismissed that count.
2
Gomez identified both Kostopoulos and his car in a show-up identification
approximately a month later. Although there were some inconsistencies at trial regarding
witnesses’ identification of Kostopoulos, at this stage in the proceedings, we view the evidence
in the light most favorable to the jury verdict, drawing all reasonable inferences in favor of the
government. United States v. Ramsdale, 61 F.3d 825, 828-29 (11th Cir. 1995).
3
Citations to “Doc. #” refer to the numbered district court docket entries.
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discussing it with his then-wife, Luisa Bravo, he called 911 and reported the crime
to the Homestead Police Department (“HPD”). HPD followed up with Gomez
about the theft, but they had no leads and so took no further action.
Approximately a month later, Gomez saw the gray Ford Taurus parked at the
same store near his house. He recognized Kostopoulos as the man who had stolen
from him the month before. Gomez also saw his friend, Romeo Aguilar, in the
parking lot. Gomez explained to Aguilar that Kostopoulos had stolen his money.
He asked Aguilar to call or follow him if the Taurus followed Gomez when he left
the parking lot. Gomez drove out of the parking lot, and the Taurus started to
follow him. Aguilar followed behind the Taurus. Kostopoulos activated his
vehicle’s blue light, but Gomez did not stop this time. Instead Gomez drove
toward his house, calling 911 on the way. Kostopoulos continued to follow
Gomez, but eventually he pulled up next to Gomez, honked the horn, and drove
away. Gomez continued home and then met with the HPD officers who had
responded to the 911 call there.
Aguilar, having seen the Taurus follow Gomez at least most of the way to
Gomez’s home, tried to call his friend. Bravo, who was not at Gomez’s home but
was carrying Gomez’s phone at the time, answered. Aguilar explained to Bravo
what had just happened and drove to pick her up. Having decided to look for the
Taurus, the two headed back to the store where Aguilar had seen Gomez minutes
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before. While driving, they spotted the Taurus, which had pulled over another car.
Bravo recognized the driver of the stopped car, a man from Guatemala named
Santiago Garcia. Bravo got out of Aguilar’s car and began running toward Garcia
and Kostopoulos, yelling warnings to Garcia.
Garcia testified that before Bravo came running toward them, he had been
stopped by a gray car whose driver had activated a blue light to signal him to pull
over. When Kostopoulos approached and asked for his driver’s license, Garcia
answered that he did not have a license. Kostopoulos then asked for other
identification. Garcia pulled out his wallet and $200 in cash that was in his pocket.
Kostopoulos took the wallet and the money from Garcia and asked for his
registration. Garcia was looking for the registration when Bravo approached.
Kostopoulos, who had been rifling through Garcia’s wallet, tossed the wallet back
in Garcia’s car and left. After Kostopoulos left, Garcia realized that his $200 was
missing.
Bravo rode with Garcia to Gomez’s house, where Gomez was talking with
the HPD officers. Bravo and Garcia told the officers what had happened. HPD
issued a “be on the lookout” for Kostopoulos, who was apprehended later that
night by an HPD officer.
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Kostopoulos was taken to HPD headquarters and advised of his Miranda 4
rights. In a recorded interview, he admitted stopping Garcia earlier that night but
denied taking any money from Garcia during the traffic stop or seeing anyone
running toward him yelling. In December 2013, primary responsibility for the
investigation was turned over to the Federal Bureau of Investigation (“FBI”).
Pamela Jackson, a sergeant in the MDPD Internal Affairs Section (a part of the
MDPD’s Professional Compliance Bureau) made contact with the FBI investigator
who was investigating Kostopoulos’s case. She provided the FBI investigator with
documents relating to Kostopoulos’s activities on the days in question.
During the trial, the government introduced Kostopoulos’s bank records
from late July 2013 through late November 2013. An FBI forensic accountant
analyzed and summarized the records for the jury. Kostopoulos’s account, which
he shared with his wife, was regularly overdrawn before his bi-weekly paycheck.
Each time the account was overdrawn, Kostopoulos paid a $34 overdraft fee. On
the day of the first theft, his account had a $1.89 balance before a $500 recurring
phone payment put the account several hundred dollars in the red and triggered a
$34 fee. On the day of the second theft, his account had a negative balance, and he
had incurred three $34 fees since his last paycheck. He still had seven days until
the next paycheck would be deposited. The transactions that triggered most of the
4
Miranda v. Arizona, 384 U.S. 436 (1966).
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overdraft fees were associated with Kostopoulos’s wife’s debit card. Most of the
purchases were for ordinary expenses like fast food, gas, and groceries, rather than
luxury items. Kostopoulos’s bank never declined any transaction; it only charged
the $34 fee. During the four month period, Kostopoulos incurred $816 in
insufficient funds fees and $15 in an extended overdraft fee.
The government also presented testimony from Antonio Castaneda, an FBI
supervisory special agent, who monitored and oversaw civil rights cases in south
Florida. Castaneda supervised the Public Corruption and Civil Rights Squad for
Miami-Dade County, also known as the Miami Area Corruption Task Force, which
includes FBI agents and representatives from county and local police departments,
including the MDPD. Castaneda testified that the Public Corruption and Civil
Rights Squad investigates allegations of officers taking advantage of their positions
and that one type of civil rights violation the Squad pursues is theft by police
officers. The Squad works with local police departments as part of its role in
enforcing criminal civil rights violations. The FBI receives referrals from those
departments and evaluates all referrals of alleged civil rights abuses to determine if
the FBI will move forward with an investigation. Once the FBI began an
investigation, Castaneda explained, the FBI would coordinate with the internal
affairs supervisors of local police departments to keep those supervisors informed
of the progress of the case and to obtain information from those departments
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relating to the officers about whom allegations were made. Castaneda testified that
the Squad’s Homestead office opened and conducted an investigation into
Kostopoulos’s conduct.
Another government witness, MDPD officer and training advisor
Christopher Hodges, testified that he knew from his professional training and
experience that the FBI investigated civil rights violations committed by local
police officers.
Kostopoulos testified in his own defense. He testified that as a police officer
he made over $123,000 in 2013, which included overtime and off-duty
assignments. He denied being in Homestead on the date of the first theft but
admitted to being in Homestead on the date of the second theft. He explained that
on this second date he had attempted to stop a car driving recklessly but another
car—ostensibly Gomez—had gotten in the way. Kostopoulos said that he turned
on his blue light and went around the car that had gotten in his way, but he lost
sight of the recklessly driving car. He also admitted to stopping Garcia, but he
denied seeing anyone attempting to interrupt the stop or hearing anyone yelling.
The jury found Kostopoulos guilty on all counts. He was sentenced to a
total of 36 months’ imprisonment. Kostopoulos timely appealed his conviction.
II. STANDARDS OF REVIEW
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We review the trial court’s admission of evidence for an abuse of discretion.
United States v. Ramsdale, 61 F.3d 825, 829 (11th Cir. 1995). “We review
sufficiency of the evidence de novo, viewing the evidence in the light most
favorable to the government.” Id. at 828. We draw all reasonable inferences and
in favor of the jury verdict. “We [then] ask whether a reasonable trier of fact,
when choosing among reasonable constructions of the evidence, could have found
the defendant guilty beyond a reasonable doubt.” Id. at 828-89 (internal quotation
marks omitted).
III. ANALYSIS
On appeal, Kostopoulos argues that the district court erred when it allowed
the government to admit his bank records into evidence because the information in
those records was irrelevant and unduly prejudicial. He also argues that the
evidence was insufficient to sustain his conviction for witness tampering because
the government failed to prove an element of the offense—that he intended to
prevent communication of information to a federal official. We address each
argument in turn.
A. Admission of Financial Motive Evidence
Before trial, Kostopoulos filed a motion in limine to exclude as irrelevant
under Federal Rule of Evidence 401 all evidence concerning his bank account
activity. See Fed. R. Evid. 401(a) (“Evidence is relevant if . . . it has any tendency
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to make a fact [of consequence in determining the action] more or less probable
. . . .”). The district court granted in part and denied in part the motion, limiting the
admissible bank account records to those covering the four months immediately
surrounding the two thefts. Kostopoulos argues that district court abused its
discretion by allowing the government to admit into evidence those four months of
records. We cannot agree. Under the facts of this case, the district court did not
abuse its discretion because the evidence was relevant to show Kostopoulos’s
motive for the thefts and, considering its non-inflammatory content and limited
nature, was not unduly prejudicial.
In support of his argument that the district court should have excluded the
bank account records, Kostopoulos relies heavily on United States v. Reed, 700
F.2d 638 (11th Cir. 1983). In Reed, we held that testimony regarding the
defendant’s personal bankruptcy was irrelevant to the charge of embezzlement. Id.
at 642. We explained that “evidence of the defendant’s bankruptcy would only
become relevant indirectly if it was shown that the defendant was incurring large
debts or living beyond the means possible under the living allowance [provided by
the bankruptcy trustee].” Id. (emphasis added). In Reed, however, there was no
evidence that the defendant “was under any type of financial pressure.” Id. We
acknowledged that “[n]umerous courts have recognized that evidence of an
imminent financial burden on the defendant is admissible for the purpose of
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proving motive,” but we noted that in those cases “the defendant was faced by
potentially dire consequences . . . if he failed to meet certain financial obligations.”
Id. at 643. Although the evidence in Reed showed that “the defendant . . . in the
past [had] found himself unable to pay off his debts,” there was “no evidence . . .
presented that the defendant continued[d] to suffer from [that] inability.” Id.
The evidence of Kostopoulos’s bank account activity differs materially from
the evidence of Reed’s bankruptcy because Kostopoulos’s bank records
demonstrated that he, unlike Reed, was in fact “living beyond [his] means” and
“was under . . . financial pressure” during the time period surrounding the thefts.
Id. at 642. The bank account records showed that during the time period of the two
thefts Kostopoulos was unable to pay for basic living expenses like gas and
groceries without incurring overdraft fees. Over the course of four months, the
records showed, he incurred over $800 in such fees. Specifically, on the two days
when the thefts occurred, Kostopoulos’s account was overdrawn or about to be
overdrawn, and on the date of the second theft, he still had another week left until
his next paycheck.
Kostopoulos argues that Reed stands for the proposition that a defendant
must be facing “potentially dire consequences” for personal financial evidence to
be admissible. Id. at 643. He insists that he was not facing such consequences
because he merely was charged $34 for each overdraft; his transactions were never
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declined by the bank. We are unconvinced that Reed imposes such a strict burden
of proof. Regardless, although a single $34 overdraft fee would not seem dire, the
evidence did not show a single $34 fee. Instead, the evidence showed that
Kostopoulos incurred multiple fees that added up to a large sum of money over the
course of a relatively short period of time. At any point during those few months,
even a small purchase might trigger an overdraft fee and put his bank account
deeper in the red. This evidence was sufficient to show that Kostopoulos was
under significant financial pressure on the dates of the thefts.
To be clear, we are not suggesting that people living paycheck to paycheck
are more likely to commit crimes. Here, though, the evidence here showed “more
than the mere fact that the defendant [was] poor.” United States v. Mitchell, 172
F.3d 1104, 1108 (9th Cir. 1999) (internal quotation marks omitted). Instead, the
multiple overdraft fees incurred in a short period of time showed that Kostopoulos
was “squeezed, . . . not just [that he had a] financial interest in being richer.” Id. at
1109. The evidence thus was relevant to show Kostopoulos’s motive to commit
the thefts. See Fed. R. Evid. 401(a).
Concededly relevant evidence may be excluded, however, if its probative
value is substantially outweighed by the danger of unfair prejudice. Fed. R. Evid.
403. In this case, the probative value of the evidence was high—without it, the
jury would have been left to wonder why Kostopoulos, a police officer making
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over $120,000 a year, might choose to steal relatively small amounts of money
from vulnerable people in the community. And the danger of undue prejudice did
not substantially outweigh this probative value for two reasons. First, the evidence
of Kostopoulos’s financial difficulties did not reveal that he was purchasing luxury
items or needed money to sustain an extravagant lifestyle, one that might prejudice
the jury against him. Instead, the evidence showed that he was the primary
breadwinner for his family and that the money was used for basic needs such as
gas and groceries. On these facts, the danger of undue prejudice was relatively
low. Cf. Mitchell, 172 F.3d at 1110 (concluding that evidence of the defendant’s
financial condition “produced a high danger of unfair prejudice” because it
“portrayed him as a feckless man who did not support his wife and children”
(internal quotation marks omitted)).
Second, and importantly, the district court carefully limited the financial
motive evidence that it admitted. The government initially sought to introduce 15
months of bank account records. The district court expressed concern that the jury
might assume that Kostopoulos had “some other illegitimate source of income” to
cover his expenses during the time period outside of the two thefts, perhaps
committing “other robberies every time he was overdrawn and the people just
didn’t come forward.” Doc. 216 at 20-21. At the same time, the court
acknowledged that the jury would wonder about his motive and why a person with
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good job “would . . . be shaking down people who have no voice for 125 bucks.”
Id. at 25. The court therefore limited the evidence to the four months of records
immediately surrounding the thefts—from late July 2013 through late November
2013. In sum, the district court gave thoughtful consideration to the evidence’s
probative value and its potential for unfair prejudice. The court did not abuse its
discretion allowing the government to admit the four months of Kostopoulos’s
bank account records showing the accumulation of over $800 in overdraft fees.
B. Sufficiency of the Evidence for Federal Witness Tampering
Kostopoulos next argues that the government failed to prove that he
committed federal witness tampering, in violation of 18 U.S.C. § 1512(b)(3). To
establish a violation of this statute, the government bore the burden to prove that
(1) Kostopoulos engaged in misleading conduct toward another person, (2) he
intended to hinder, delay, or prevent the communication of information to a federal
official, and (3) the information related to the commission or possible commission
of a federal crime. 18 U.S.C. § 1512(b)(3). Here, we focus on whether
Kostopoulos intended to prevent communication of information to a federal
official.5 We refer to this requirement as the federal nexus.
5
We also conclude, based on our de novo review of the record, that the evidence was
sufficient to meet the third element, that the information related to the commission of a federal
crime—here, deprivation of civil rights. See 18 U.S.C. § 242.
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The federal nexus requirement easily may be proven when it is clear that the
defendant intends to prevent information from reaching a particular federal officer.
See Fowler v. United States, 563 U.S. 668, 672 (2011) (discussing a related statute,
18 U.S.C. § 1512(a)(1)(C), and noting that “[w]hen the defendant has in mind a
particular individual . . . application of the statute is relatively clear”). But what
must the government prove when, as here, the defendant intended to prevent
information from reaching law enforcement in general rather than a particular
officer? The Supreme Court has explained the government’s burden in this type of
situation: When the defendant’s conduct was made with the intent to prevent
communication to law enforcement officers in general rather than to some specific
set of officers, “the [g]overnment must show a reasonable likelihood, that, had,
e.g., the [person] communicated with law enforcement officers, at least one
relevant communication would have been made to a federal law enforcement
officer.” Id. at 677 (construing 18 U.S.C. § 1512(a)(1)(C)). Although the
government “need not show that such a communication . . . would have been
[made to a] federal [officer] beyond a reasonable doubt, [or] even that it [was]
more likely than not[,] . . . the [g]overnment must show that the likelihood of
communication to a federal officer was more than remote, outlandish, or simply
hypothetical.” Id. at 678.
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We therefore ask whether the government proved that it was reasonably
likely that the information Kostopoulos was trying to conceal would have been
relayed by the HPD officer to a federal law enforcement officer. Mindful that we
should not “extend[] the scope of this federal statute well beyond the primarily
federal area that Congress had in mind,” id. at 675, we conclude that the
government has met its burden here through the testimony of Jackson, Castaneda,
and Hodges. Together, these witnesses testified that the FBI had a special Squad—
dedicated to investigating public corruption in the Miami area—which contained
FBI officers and members of local police departments, including MDPD. Local
police departments referred allegations of civil rights violations against their
officers to the Squad. The Squad evaluated all cases referred to it and in fact
investigated Kostopoulos, receiving support, including important documentation,
from MDPD. Based on an MDPD officer’s experience and training, it was known
that the FBI would investigate alleged civil rights violations committed by police.
The testimony showed cooperation between Miami-area police departments and
the FBI in cases involving criminal civil rights violations, and particularly theft by
police officers. Importantly, the evidence demonstrated cooperation between the
MDPD and the FBI in this very case. That cooperation was no fluke: according to
Castaneda, the Squad evaluated all referrals by local police departments
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concerning alleged civil rights violations by police officers to determine whether to
open an investigation. And that cooperation was known to officers on the MDPD.
Under these facts, communication of information regarding Kostopoulos’s
theft to federal officers was not a mere possibility, nor was “the likelihood of
communication . . . remote, outlandish, or simply hypothetical,” but rather was at
least reasonably likely. Id. at 678. The government thus met its burden of proving
the required federal nexus. The evidence was sufficient to convict Kostopoulos of
violating 18 U.S.C. § 1512(b)(3).
IV. CONCLUSION
For the reasons set forth above, we affirm Kostopoulos’s conviction.
AFFIRMED.
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