United States v. Martinez-Maldonado , 722 F.3d 1 ( 2013 )

United States Court of Appeals
For the First Circuit
Nos. 12-1289, 12-1290
UNITED STATES OF AMERICA,
Appellee,
v.
JUAN BRAVO FERNANDEZ; HECTOR MARTÍNEZ MALDONADO,
Defendants, Appellants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Howard, Lipez, and Thompson,
Circuit Judges.
Martin G. Weinberg, with whom David Z. Chesnoff, Chesnoff &
Schonfeld, Kimberly Homan, Jose A. Pagan, and Pagan Law Offices
were on brief, for appellant Bravo Fernandez.
Abbe David Lowell, with whom Christopher D. Man and Chadbourne
& Parke LLP were on brief, for appellant Martínez Maldonado.
Peter M. Koski, Deputy Chief, Criminal Division, Public
Integrity Section, United States Department of Justice, with whom
Lanny A. Breuer, Assistant Attorney General, and Mary Patrice
Brown, Deputy Assistant Attorney General, were on brief, for
appellee.
June 26, 2013
LIPEZ, Circuit Judge. This case presents multiple issues
of substantial importance, including a question of first impression
in this circuit on the interpretation of the federal program
bribery statute, 18 U.S.C. § 666. Defendants are a Puerto Rico
legislator and a Commonwealth businessman who were charged, inter
alia, with unlawfully exchanging a trip to Las Vegas to attend a
prize fight for favorable action on legislation. A jury returned
guilty verdicts against both men, Juan Bravo Fernandez ("Bravo")
and Hector Martínez Maldonado ("Martínez"), and they now challenge
their convictions on numerous grounds. Foremost is their
contention that the jury was allowed to convict on a gratuity
theory which is beyond the scope of § 666.
Unlike most circuits to have addressed this issue, we
conclude that § 666 does not criminalize gratuities. Because the
district court's instructions permitted the jury to find guilt on
the § 666 counts based on a gratuity theory, Defendants'
convictions on that count must be vacated. In addition, we
conclude that the Double Jeopardy Clause, though for reasons that
differ for each Defendant, entitles both men to acquittal on their
respective conspiracy charges.
I.
A. Factual Background
We briefly summarize the relevant facts, reserving for
our analysis a more detailed discussion of the facts relevant to
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each issue presented on appeal. We view the facts in the light
most favorable to the jury's verdicts. See United States v.
Ciresi, 697 F.3d 19, 23 (1st Cir. 2012).
From January 2005 until early 2011, Martínez served in
the Senate of the Commonwealth of Puerto Rico.1 When Martínez
became a senator he was assigned to the Public Safety Committee,
where he served as chairman. Bravo was the president of Ranger
American, a private firm that provides security services, including
armored car transportation and security guard staffing.
In early 2005, Bravo advocated for the passage of
legislation related to the security industry in Puerto Rico. One
of these bills, Senate Project 410, addressed issues pertaining to
security at shopping malls, while the other, Senate Project 471,
involved licensing requirements for armored car companies. The
government produced testimony at trial that the passage of these
bills would have provided substantial financial benefits to Ranger
American. As chairman of the Public Safety Committee, Martínez was
in a position to exercise a measure of control over the
introduction and progression of the bills through the Committee and
the Senate.
1
The record does not specify the duration of Martínez's
tenure in the Puerto Rico Senate. We take judicial notice of the
fact that he resigned his seat in early 2011. See Fed. R. Evid.
201(b) (allowing a court to take judicial notice of a fact "not
subject to reasonable dispute because it . . . can be accurately
and readily determined from sources whose accuracy cannot
reasonably be questioned").
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On May 14, 2005, prominent Puerto Rican boxer Félix
"Tito" Trinidad was scheduled to fight Ronald Lamont "Winky" Wright
at the MGM Grand Hotel & Casino in Las Vegas, Nevada. On March 2,
Bravo purchased four tickets to the fight at a cost of $1,000 per
ticket. The same day, Martínez submitted Senate Project 410 for
consideration by the Puerto Rico Senate. On April 20, Martínez
presided over a Public Safety Committee hearing on Senate Project
471 at which Bravo testified. The next day, Bravo booked one room
at the Mandalay Bay Hotel in Las Vegas. On May 11, Martínez issued
a Committee report in support of Senate Project 471.
Bravo arranged for first-class airline tickets to Las
Vegas for himself, Martínez, and another senator, Jorge de Castro
Font.2 In Las Vegas, the three men stayed in separate rooms at the
Mandalay Bay for two nights. Bravo paid for Martínez's room the
first night, and de Castro Font paid for Martínez's room the second
night. The men, along with de Castro Font's assistant, went out to
dinner the day before the fight, with Bravo footing the $495 bill.
The men attended the Tito Trinidad fight the next night, using the
$1,000 tickets Bravo had purchased.
2
In 2008, Jorge de Castro Font was indicted on numerous
counts relating to corruption by an elected official. See United
States v. De Castro-Font, 587 F. Supp. 2d 353, 355 (D.P.R. 2008).
On January 29, 2009, de Castro Font pled guilty to 21 counts of the
indictment filed against him. He received a sentence of sixty
months' imprisonment. See United States v. De Castro-Font, 08-CR-
337-01(FAB), Doc. 353 (D.P.R. May 17, 2011).
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The day after the fight, Bravo, Martínez, and de Castro
Font flew from Las Vegas to Miami, where they spent the night in
individual hotel rooms at the Marriott South Beach. The rooms were
reserved and paid for by Bravo at a total cost of $954.75. The
next day, on May 16, the three returned to Puerto Rico.
On May 17, de Castro Font, acting as Chair of the
Committee on Rules and Calendars, scheduled an immediate vote on
the floor of the Puerto Rico Senate for Senate Project 471. Both
de Castro Font and Martínez voted in support of the bill. The next
day, Martínez issued a Committee report in favor of Senate Project
410. On May 23, de Castro Font scheduled an immediate vote on the
floor of the Senate for Senate Project 410. Again, both de Castro
Font and Martínez voted for the bill.
B. Procedural Background
On June 22, 2010, a grand jury returned an indictment
charging Bravo and Martínez with (1) violating 18 U.S.C. § 371 by
conspiring to (a) commit federal program bribery, and (b) travel in
interstate commerce in aid of racketeering; (2) violating 18 U.S.C.
§ 1952(a)(3)(A) by traveling in interstate commerce with the intent
to "[p]romote, establish, carry on, and facilitate the promotion,
establishment, and carrying on," of unlawful activity, specifically
(a) federal program bribery in violation of § 666, and (b) bribery
in violation of P.R. Laws Ann., tit. 33, §§ 4360 and 4363; and (3)
federal program bribery in violation of § 666. Martínez was
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additionally indicted for obstruction of justice, in violation of
18 U.S.C. § 1512(b)(3).
The case went to trial on February 14, 2011. On March 7,
2011, a jury convicted Bravo of conspiracy to travel in interstate
commerce in aid of racketeering (count one), interstate travel in
aid of racketeering with the intent to promote bribery in violation
of Puerto Rico law (count two), and federal program bribery (count
four). The jury found Martínez guilty of conspiracy (count one),
but checked "No" as to each potential object of the conspiracy. He
was also convicted of federal program bribery (count five). The
jury acquitted Martínez of interstate travel in aid of racketeering
(count three) and obstruction of justice (count six).
The trial court granted Bravo's motion for judgment of
acquittal on count two, finding that the repeal of the Puerto Rico
bribery laws before the trip took place made it impossible for
Bravo to satisfy the "thereafter" element3 of a Travel Act
violation. It initially "dismissed" Martínez's conviction on count
one because the jury rejected both potential objects of the
conspiracy, but then "reinstated" the conviction the next day, and
eventually dismissed it without prejudice. On March 1, 2012, the
district court sentenced both defendants to 48 months of
3
See infra Part V.
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imprisonment. Bravo received a fine of $175,000 and Martínez a
fine of $17,500.4
C. Issues on Appeal
Both Defendants challenge their substantive § 666
convictions on numerous grounds. Martínez challenges on double
jeopardy grounds the district court's decision to reinstate his
conspiracy conviction and then dismiss it without prejudice. Bravo
also challenges his conspiracy conviction, arguing, among other
things, that the judgment of acquittal on the Travel Act count
requires the entry of judgment of acquittal on the conspiracy
count, as § 666, given the findings by the jury, cannot serve as an
object of the conspiracy to violate the Travel Act.
II.
Defendants raise several challenges to the scope of the
federal program bribery statute, 18 U.S.C. § 666, and, identifying
certain elements of the statute, they also claim that the
circumstances of this case do not satisfy any of those elements.
We review the questions of law raised in their arguments de novo,
4
Bravo and Martínez both filed motions for bail pending
appeal before the district court, and both motions were denied.
Martínez began serving his sentence on March 1, 2012, while Bravo
began serving his on May 7, 2012. Bravo began serving his sentence
later because of some health issues. Defendants subsequently
brought their motions for bail pending appeal before us, and, in
early March 2012, both were denied. Following oral argument in
November 2013, we received Defendants' renewed motions for bail
pending appeal on December 11, 2012. They were granted on January
2, 2013.
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United States v. Place, 693 F.3d 219, 227 (1st Cir. 2012); to the
extent that their claims challenge the sufficiency of the
government's evidence, we again employ de novo review, appraising
the proof in the light most favorable to the verdict, United States
v. Rodríguez-Vélez, 597 F.3d 32, 38 (1st Cir. 2010).
A. Agents
Section 666 requires the government to show that the
individual receiving or soliciting the bribe was "an agent of an
organization, or of a State, local, or Indian tribal government, or
any agency thereof." 18 U.S.C. § 666(a)(1). The term "agent" is
defined as "a person authorized to act on behalf of another person
or a government and, in the case of an organization or government,
includes a servant or employee, and a partner, director, officer,
manager, and representative." Id. § 666(d)(1). Defendant Martínez
maintains that he could not be convicted under § 666(a)(1)(B)
because he was not an agent of the Commonwealth of Puerto Rico.
Defendant Bravo argues that because neither Martínez nor de Castro
Font were agents of the Commonwealth, he cannot be guilty of
bribing them pursuant to § 666(a)(2).
1. The Scope of the Agency
At the outset, we reject any notion that state
legislators are categorically exempt from prosecution under § 666.
Indeed, the plain language of the statute includes a
"representative" of a "government" in the list of positions that
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fall under the statute's definition of "agent," 18 U.S.C. §
666(d)(1), and there is no more classic government "representative"
than a legislative branch officer. See United States v. Lipscomb,
299 F.3d 303, 333 (5th Cir. 2002) ("Congress clearly sought to
apply § 666 to legislative-branch officials."); United States v.
Sunia, 643 F. Supp. 2d 51, 67 (D.D.C. 2009) (acknowledging that "a
legislator who misuses his legislative authority to facilitate
corrupt practices affecting agency programs that receive federal
funds may well fall within the ambit of § 666").
Defendants' more nuanced argument is that the government
failed to sufficiently specify the entity for which Martínez and de
Castro Font were agents. They maintain that Martínez may only be
appropriately classified as a representative (and thus an agent) of
the Puerto Rico Senate, and not -- as the indictment alleged -- of
the Commonwealth as a whole. This distinction is significant,
Defendants claim, because the Puerto Rico Senate itself had no
connection with, or control over, the federal funds identified by
the two government witnesses, and without such a connection the
government cannot show that "the organization, government, or
agency receives, in any one year period, benefits in excess of
$10,000 under a Federal program." 18 U.S.C. § 666(b). If the
$10,000 threshold is not met, then the actions of the agents of the
non-qualifying organization, government, or agency -- or the
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actions of others with respect to those agents -- cannot implicate
§ 666.
Once again we need go no further than the plain language
of the statute to conclude that Martínez and de Castro Font may be
properly considered "agents" of the Commonwealth of Puerto Rico.
Among the five types of entities for which one may be an agent
within the meaning of § 666 is a state government.5 See 18 U.S.C.
§ 666(a)(1), (2) (referring to "an agent of an organization, or of
a State, local, or Indian tribal government, or any agency
thereof"). The Puerto Rico Senate is a constituent part of the
Commonwealth government, created by the Puerto Rico Constitution.
See P.R. Const. art. III, § 1. Its members are thus part of the
limited category of government officials who represent the "State"
as a whole, unlike employees of localities or of agencies at every
level of government. As such, they easily fall within the concept
of "an agent of . . . a State . . . government." Martínez and de
Castro Font were thus properly considered agents of the
Commonwealth of Puerto Rico under § 666.
At trial, the Associate Director for the Office of Budget
and Management testified that during 2005 -- the year of the
5
Under § 666, the definition of "State" includes "a State of
the United States, the District of Columbia, and any commonwealth,
territory, or possession of the United States." 18 U.S.C.
§ 666(d)(4) (emphasis added). Because "State" is a term of art in
§ 666, we shall refer to Martínez and de Castro Font as "State
senators."
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charged conduct -- the Commonwealth received over $4.7 billion in
federal funds. Because Martínez and de Castro Font are agents of
the Commonwealth, the evidence was sufficient to show that they are
agents of a "government . . . [that] receives, in any one year
period, benefits in excess of $10,000 under a Federal program." 18
U.S.C. § 666(b).
2. Agent Control of Expenditures
Defendants argue that being an "agent" under § 666 must
include an element beyond merely representing the entity. Framing
their argument partially in constitutional terms, they assert that,
to establish the requisite link to Congress's authority to
legislate under the Necessary and Proper Clause, an "agent" under
§ 666 "must be 'authorized to act on behalf of [the entity] with
respect to its funds.'" United States v. Whitfield, 590 F.3d 325,
344 (5th Cir. 2009) (quoting United States v. Phillips, 219 F.3d
404, 411 (5th Cir. 2000)); see also Sabri v. United States, 541
U.S. 600, 605 (2004) (describing Congress's authority under the
Necessary and Proper Clause). Defendants maintain that the
government failed to adduce any evidence at trial establishing that
either Martínez or de Castro Font, acting as senators, had the
authority to control the expenditure of funds by any entity
receiving federal funds, and that the senators therefore do not
qualify as "agents" for purposes of § 666.
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We disagree. Neither the statutory language nor
constitutional principles lead to such a restricted understanding
of the provision. As the Eleventh Circuit recently noted when
presented with this argument, "[n]owhere does the statutory text
either mention or imply an additional qualifying requirement that
the person be authorized to act specifically with respect to the
entity's funds." United States v. Keen, 676 F.3d 981, 989-90 (11th
Cir. 2012). The statute merely requires that the individual be
"authorized to act on behalf of another person or government." 18
U.S.C. § 666(d)(1). In interpreting the text of a statute, "we
will not depart from, or otherwise embellish, the language of a
statute absent either undeniable textual ambiguity, or some other
extraordinary consideration, such as the prospect of yielding a
patently absurd result." Pritzker v. Yari, 42 F.3d 53, 67-68 (1st
Cir. 1994) (citations omitted); cf. Salinas v. United States, 522
U.S. 52, 57-58 (1997). Defendants fail to show that any absurd
result would follow from a reading loyal to the plain meaning of
the statute.
The Supreme Court's and this circuit's § 666
jurisprudence support the conclusion that the statute incorporates
no embellishment on the concept of "agent." Indeed, the Supreme
Court has repeatedly rejected constructions of § 666 that would
impose limits beyond those set out in the plain meaning of the
statute. In Salinas, for example, the Court rejected a defendant's
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attempt to read into the statute an extra-textual requirement of
proof that "the bribe in some way affected federal funds, for
instance by diverting or misappropriating them, before the bribe
violates § 666(a)(1)(B)." 522 U.S. at 55-56. In reaching its
conclusion, the Court pointed to the "enactment's expansive,
unqualified language, both as to the bribes forbidden and the
entities covered." Id. at 56. Seven years later, in Sabri v.
United States, the Court rejected a similar argument that the
statute requires proof of a "nexus" between a bribe or kickback and
some federal money. It noted that while "not every bribe or
kickback offered or paid to agents of governments covered by
§ 666(b) will be traceably skimmed from specific federal payments,
or show up in the guise of a quid pro quo for some dereliction in
spending a federal grant," the absence of such links does not
"portend[] . . . enforcement beyond the scope of federal interest,
for the reason that corruption does not have to be that limited to
affect the federal interest." 541 U.S. at 605-06; see also Fischer
v. United States, 529 U.S. 667, 677-79 (2000) (adopting broad
reading of "benefits" under § 666(b) in light of statutory language
"reveal[ing] Congress' expansive, unambiguous intent to ensure the
integrity of organizations participating in federal assistance
programs").
We previously addressed the scope of § 666(d)(1)'s
definition of "agent" in United States v. Sotomayor-Vázquez, 249
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F.3d 1 (1st Cir. 2001). Drawing largely from the Supreme Court's
interpretation of the statute in Salinas, we held that "an
expansive definition of 'agent' is necessary to fulfill the purpose
of § 666, i.e., to protect the integrity of federal funds." Id. at
8. In support of this reading, we quoted at length from the
dissent in United States v. Phillips:
[T]he expansive statutory definition [in
§ 666(d)(1)] recognizes that an individual can
affect agency funds despite a lack of power to
authorize their direct disbursement.
Therefore, to broadly protect the integrity of
federal funds given to an agency, § 666
applies to any individual who represents the
agency in any way, as representing or acting
on behalf of an agency can affect its funds
even if the action does not directly involve
financial disbursement.
Id. at 8 (quoting Phillips, 219 F.3d at 422 n.3 (Garza, J.,
dissenting)). We thus held that "an outside consultant with
significant managerial responsibility" could be an "agent" of a
government entity. Id.
In keeping with our own precedent and that of the Supreme
Court, we conclude that embracing an approach faithful to the plain
language of § 666 is appropriate here. Even if the officials
accepting bribes do not have the ability to control the expenditure
of an entity's funds, "it cannot be denied that their fraudulent
conduct poses a threat to the integrity of the entity, which in
turn poses a threat to the federal funds entrusted to that entity."
Keen, 676 F.3d at 990; see also United States v. Hines, 541 F.3d
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833, 835-36 (8th Cir. 2008). Such conduct "raise[s] the risk
[that] participating organizations will lack the resources
requisite to provide the level and quality of care envisioned by
the program." Fischer, 529 U.S. at 681-82; cf. Sabri, 541 U.S. at
606 ("Money is fungible, bribed officials are untrustworthy
stewards of federal funds, and corrupt contractors do not deliver
dollar-for-dollar value."). Narrowing the scope of § 666(d)(1)'s
definition of "agent" would be "inconsistent not only with the
expansive, unqualified language that Congress has elected to use,
but also with Congress' clear objective of ensuring the integrity
of entities receiving substantial sums of federal funds." Keen,
676 F.3d at 991 (citation omitted) (internal quotation marks
omitted). We therefore decline to do so.
These concerns about financial integrity also doom
Defendants' constitutional argument. "[I]n determining whether the
Necessary and Proper Clause grants Congress the legislative
authority to enact a particular federal statute, we look to see
whether the statute constitutes a means that is rationally related
to the implementation of a constitutionally enumerated power."
United States v. Comstock, 130 S. Ct. 1949, 1956 (2010). In
rejecting a different Necessary and Proper Clause challenge to
§ 666 in Sabri,6 the Supreme Court wrote:
6
The defendant in Sabri argued that § 666 could not be
constitutionally applied "because it fails to require proof of any
connection between a bribe or kickback and some federal money."
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Congress has authority under the Spending
Clause to appropriate federal moneys to
promote the general welfare, Art. I, § 8, cl.
1, and it has corresponding authority under
the Necessary and Proper Clause . . . to see
to it that taxpayer dollars appropriated under
that power are in fact spent for the general
welfare, and not frittered away in graft or on
projects undermined when funds are siphoned
off or corrupt public officers are derelict
about demanding value for dollars.
541 U.S. at 605.
We have no hesitation in concluding that "measures to
police the integrity of entities receiving federal funds fall under
the scope of this power," Keen, 676 F.3d at 991, even absent
evidence of an agent's authority to act specifically with respect
to the covered entity's funds. "Congress does not have to sit by
and accept the risk of operations thwarted by local and state
improbity." Sabri, 541 U.S. at 605. To accept that there can only
be harmful effects of such dishonest conduct when the actor has
authority to control the expenditure of the entity's funds would be
naive; to accept that the prohibition of such conduct by such
individuals is not "rationally related" to Congress' implementation
of its constitutionally enumerated powers would be an unduly
restrictive application of that standard. The Supreme Court has
stated that to fall within the scope of the federal interest, "[i]t
is certainly enough that the statutes condition the offense on a
threshold amount of federal dollars defining the federal interest,
541 U.S. at 604.
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such as that provided [in § 666]." Id. at 606. We see no basis
for departing from that view here.
B. The Transactional Element
For a bribe to fall within the purview of § 666, it must
be made "in connection with any business, transaction, or series of
transactions of [the covered] organization, government, or agency
involving anything of value of $5,000 or more." 18 U.S.C.
§ 666(a)(1)(B), (a)(2). This requirement has been referred to as
the "transactional element" of § 666. United States v. Robinson,
663 F.3d 265, 270 (7th Cir. 2011). Defendants point out that a
circuit split exists as to how the $5,000 threshold in the
transactional element is met, but argue that under either approach
the government's evidence was insufficient. Taking this
opportunity to clarify the correct standard, we conclude that under
the proper approach the evidence was sufficient to satisfy the
$5,000 threshold and the transactional element generally.
1. Value of Bribe or Transaction?
In determining how to calculate the $5,000 requirement,
some courts have suggested that a court should look to the value of
the bribe actually offered or paid. See United States v. Abbey,
560 F.3d 513, 521 (6th Cir. 2009) (stating that "§ 666 contains
. . . a requirement that the illegal gift or bribe be worth over
$5,000"); United States v. Spano, 401 F.3d 837, 839 (7th Cir. 2005)
("[T]o establish a case under § 666, the government need only prove
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that an agent . . . was offered or accepted a bribe worth $5000 or
more . . . ."); United States v. LaHue, 170 F.3d 1026, 1028 (10th
Cir. 1999) (stating that § 666 "prohibits the unlawful acceptance
of anything of value of $5,000 or more"). Other courts, however,
have held that the $5,000 requirement "refers to the value of the
'business, transaction, or series of transactions,' not the value
of the bribe." United States v. McNair, 605 F.3d 1152, 1185 n.38
(11th Cir. 2010); see also United States v. Duvall, 846 F.2d 966,
976 (5th Cir. 1988) ("[I]t is clear that the $5000 figure qualifies
the transactions or series of transactions that the recipient of
the bribe carries out in exchange for receiving 'anything of
value.'").
In our view, the statutory language is unambiguous and
plainly requires the latter reading. Applied to the present case,
§ 666(a)(1)(B) prohibits a government agent from accepting or
agreeing to accept "anything of value" from another individual
"intending to be influenced or rewarded in connection with any
business, transaction, or series of transactions" of that
government "involving anything of value of $5,000 or more." 18
U.S.C. § 666(a)(1)(B) (emphasis added). Section 666(a)(2)
prohibits offering, giving, or agreeing to give "anything of value"
to an individual with the "intent to influence or reward" a
government agent "in connection with any business, transaction, or
series of transactions" of that government "involving anything of
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value of $5,000 or more." Id. § 666(a)(2) (emphasis added). The
thing accepted or agreed to be accepted in § 666(a)(1)(B) -- and
the thing given or offered in § 666(a)(2) -- is the bribe. Thus,
the bribe can be "anything of value" -- it need not be worth
$5,000. The $5,000 element instead refers to the value of the
"business" or "transaction" sought to be influenced by the bribe.
"In other words, the subject matter of the bribe must be valued at
$5,000 or more; the bribe itself need only be 'anything of value.'"
Robinson, 663 F.3d at 271.
We note, however, that the value of the bribe may be
relevant in determining the value of the bribe's objective. In
United States v. Marmolejo, 89 F.3d 1185 (5th Cir. 1996), for
example, the court looked to the value of bribes where the subject
matter of the bribes consisted of "intangible items." The
defendants in Marmolejo were two local law enforcement officers who
had agreed to permit conjugal visits between an inmate and his wife
(and his girlfriend) in exchange for a monthly payment of $6,000
and $1,000 per conjugal visit. Id. at 1191. The court noted that
"[t]he transactions involved something of value -- conjugal visits
that [the prisoner] was willing to pay for," id. at 1193 -- and it
looked to "traditional valuation methods" to estimate that value,
id. at 1194. The court concluded that the prisoner's willingness
to pay $6,000 per month plus $1,000 per visit set the market value
for the conjugal visits, and it thus found that the transactions
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between the prisoner and the two defendants "involved something of
value of $5,000 or more." Id. at 1194 (internal quotation marks
omitted).
Hence, where the subject matter of the bribe is a "thing
of value" without a fixed price, courts may look to the value of
the bribe as evidence of the value of the "business, transaction,
or series of transactions." That collateral use does not alter the
proposition that the bribe itself need only consist of "anything of
value."
2. "Business or transaction" requirement
Defendants maintain that the enactment of Senate Projects
410 and 471 should not be considered to be "in connection with any
business, transaction, or series of transactions . . . involving
anything of value of $5,000 or more" under § 666. They offer
several justifications for this position. We find none of them
persuasive.
First, Defendants focus on the "in connection with"
language. Their attack is anchored in a Fifth Circuit case, United
States v. Whitfield, which involved two state judges who were
convicted of accepting bribes from an attorney in exchange for
favorable rulings in his cases. 590 F.3d at 335. The government
argued, and the court assumed, that the judges were "agents" of the
Administrative Office of the Courts ("AOC"), a Mississippi state
agency that received over $10,000 in federal funds and was "charged
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with assist[ing] in the efficient administration of the nonjudicial
business of the courts of the state." Id. at 344 (emphasis added)
(citation omitted) (internal quotation marks omitted). The court
held, however, that the judges' rulings were not made "in
connection with" the business or transactions of the AOC, as they
were made while the judges were performing purely judicial duties.
Id. at 346-47. Here, Defendants maintain that the federal funds
identified by the government went to the Puerto Rico Departments of
Education and Treasury, and because there is no nexus between the
Departments of Education and Treasury and the act of legislating
Senate Projects 410 and 471 in the Puerto Rico Senate, the
legislation was not "in connection with" the business or
transactions of the federally funded entity.
Whatever the merits of Whitfield's "nexus" requirement,
they are not implicated in this case, as we have determined that
Martínez and de Castro Font were agents of the Commonwealth of
Puerto Rico, which receives federal funds. When the judges in
Whitfield were acting in their capacity as judicial decisionmakers,
they were not acting within their scope as agents of the AOC, as
the AOC was specifically limited to the nonjudicial business of the
courts. By contrast, when Martínez and de Castro Font were acting
in their capacity as legislators, they were performing the precise
functions that members of a state legislative body perform as
agents of a state government. The legislative acts that
-22-
constituted the subject of the bribes had a direct "connection with
the business, transaction, or series of transactions" of the
Commonwealth of Puerto Rico.
Second, Defendants argue that the passing of Senate
legislation cannot be considered "business" or a "transaction"
under § 666. The thrust of their argument is that the terms
"business" and "transaction" should be construed narrowly to
encompass only commercial conduct, and "the Senate does not conduct
business or financial transactions through legislating."
In Salinas, the Supreme Court rejected a defendant's
similar attempt to impose a narrowing construction on § 666. 522
U.S. at 57. There, the defendant argued that federal funds must be
affected to violate § 666(a)(1)(B). Id. at 56. Looking to the
language of the statute, the Court concluded that the word "any,"
which precedes the business or transaction clause, undercuts the
attempt to impose the defendant's narrow interpretation. Id. at
56-57. The Court's emphasis on the expansive language in
§ 666(a)(1)(B) in Salinas suggests that the courts should avoid
imposing narrowing constructions on that language. Furthermore,
such a reading would foreclose large swaths of government activity
that, though technically "non-commercial," could be profitable for
unscrupulous individuals to attempt to influence. This narrow
construction would be contrary to Congress's intent. See id. at 56
(citing § 666's "expansive, unqualified language, both as to the
-23-
bribes forbidden and the entities covered," as evidence of
legislative intent to construe statute broadly). Recently
confronting this argument, the Seventh Circuit stated:
The "business" of a federally funded
"organization, government, or agency" is not
commonly "business" in the commercial sense of
the word. An interpretation that narrowly
limits the scope of the transactional element
to business or transactions that are
commercial in nature would have the effect of
excluding bribes paid to influence agents of
state and local governments. This contradicts
the express statutory text.
Robinson, 663 F.3d at 274; see also Marmolejo, 89 F.3d at 1191-92.
We agree, and hold that the business or transaction clause in § 666
does not limit the statute's reach to purely commercial conduct.
Third, Defendants focus on the word "involving,"7 and
posit that in order to satisfy § 666, the profit that Ranger
American would stand to gain from the passage of the Senate
Projects would "have to have been a part of or a necessary
consequence of the legislation or have been included in its scope
to satisfy the $5,000 requirement." Because the legislation itself
was "revenue-neutral" and gave nothing directly to Ranger American,
Defendants maintain that neither of the Senate Projects "involved"
7
See 18 U.S.C. § 666(a)(1)(B) (prohibiting an agent from,
inter alia, accepting or agreeing to accept anything of value
"intending to be influenced or rewarded in connection with any
business, transaction, or series of transactions of such
organization, government, or agency involving anything of value of
$5,000 or more") (emphasis added).
-24-
prospective revenues for Ranger American (and, by extension,
Bravo).
We find no support in the case law or the statutory
language for this unnecessarily restrictive interpretation of
§ 666. Even if legislation is revenue-neutral on its face, it is
sufficient if the direct and foreseeable effect of that legislation
would be to give the individual offering the bribe a particular
desired result -- assuming, of course, that the transaction
involved something of value of $5,000 or more. Here, the
government presented evidence that the foreseeable effect of the
passage of Senate Project 471 would be a change in the armored car
service industry, which in turn would result in financial benefits
to Ranger American and Bravo far exceeding $5,000. This impact is
sufficient to satisfy the "involving" requirement of § 666.8
3. Sufficiency of the Evidence
With the appropriate understanding of the statute in
mind, we can easily reject Defendants' sufficiency challenge as to
the $5,000 requirement. Miguel Portilla, the president of Capitol
8
For the reasons discussed above, we also reject Defendants'
claim that it would somehow violate the Due Process Clause to apply
§ 666 to state senators who receive bribes in connection with
legislation pending before them. Such prosecutions fall squarely
within the plain terms of § 666. See United States v. Councilman,
418 F.3d 67, 84-85 (1st Cir. 2005) (rejecting defendant's argument
that court engaged in "unforeseeably expansive interpretation" of
criminal statute, as acts alleged constitute "'conduct that . . .
the statute . . . has fairly disclosed to be within its scope.'"
(quoting United States v. Lanier, 520 U.S. 259, 266 (1997))).
-25-
Security -- a company with which Ranger American competed --
testified that Senate Project 471, which sought to amend Law 108,9
would have forced Ranger American's only competitors in the armored
car protection business to close down, thereby ensuring that Ranger
American would have an effective monopoly on that sector of the
security industry in Puerto Rico. Nestor Medina, the former
general manager of Loomis Puerto Rico -- a subsidiary of Loomis
U.S., an armored car service -- testified that Loomis controlled
roughly 35% of the armored car service industry, Ranger American
52%, and Brinks the remainder. Medina stated that Loomis Puerto
Rico netted $1.5 million in profits in 2005, and that there would
therefore be an extra $1.5 million in additional profits available
for other armored car companies to capture if Loomis were to leave
the market.10 Because, according to Portilla's testimony, Ranger
American would have been the only company left in that market, it
9
Portilla testified that Law 108 regulates the licensing of
security agencies in Puerto Rico.
10
Defendants take issue with certain of the district court's
evidentiary rulings as to Medina's testimony. These arguments do
not affect our sufficiency analysis for two reasons. First,
Defendants would have suffered no prejudice by this testimony.
Portilla's testimony -- which is not challenged by Defendants --
alone provides sufficient evidence on this issue. Any error with
respect to the admission of Medina's testimony would therefore be
harmless. Second, reviewing the district court's evidentiary
rulings under the proper standard, see United States v. Appolon,
695 F.3d 44, 60 (1st Cir. 2012), we cannot say that the district
court abused its discretion in permitting Medina to testify on
redirect about his views regarding Senate Project 471 and its
potential impact on Loomis, nor in its decision denying recross of
Medina.
-26-
is reasonable to conclude that Bravo's company would stand to
capture a substantial portion of that profit. This testimony
provided sufficient evidence for a reasonable jury to conclude that
Senate Project 471 was worth $5,000 or more to Bravo.
III.
Defendants challenge the district court's jury
instructions as to the § 666 counts on several grounds. We need
reach only Defendants' contention that the court's instructions,
reinforced by the government's closing argument, permitted the jury
to find them guilty of offering and receiving a gratuity, rather
than a bribe. This claim necessarily encompasses the argument that
§ 666 does not in fact criminalize gratuities, a question of first
impression in this circuit and an issue that has generated
considerable debate in the courts and among commentators.
"We review de novo preserved claims of legal error in
jury instructions, but we review for abuse of discretion claimed
errors in instructions' form or wording." Uphoff Figueroa v.
Alejandro, 597 F.3d 423, 434 (1st Cir. 2010). In our review, "we
look to the challenged instructions in relation to the charge as a
whole, asking whether the charge in its entirety -- and in the
context of the evidence -- presented the relevant issues to the
jury fairly and adequately." Drumgold v. Callahan, 707 F.3d 28, 53
(1st Cir. 2013) (quoting Sony BMG Music Entm't v. Tenenbaum, 660
F.3d 487, 503 (1st Cir. 2011)) (internal quotation marks omitted).
-27-
Even if we find that a court's instructions were erroneous, we will
vacate only if we determine that the error was prejudicial "based
on a review of the record as a whole." Mass. Eye & Ear Infirmary
v. QLT Phototherapeutics, Inc., 552 F.3d 47, 72 (1st Cir. 2009).
We begin by reviewing the instructions. Because we agree
that they allowed a gratuities theory of guilt, we then consider
the scope of § 666.
A. The Instructions
1. Background
Three of the district court's thirty-six jury
instructions are relevant here. The first is Jury Instruction 20,
titled "Bribery Concerning Programs Receiving Federal Funds, 18
U.S.C. § 666(a)(2)." This instruction concerns Defendant Bravo. It
explains that
Defendant Bravo is accused of corruptly
giving, offering, or agreeing to give things
of value to defendant Martínez and/or Jorge de
Castro-Font, with intent to influence or
reward defendant Martínez and/or de
Castro-Font in connection with a business,
transaction, or series of transactions of the
Commonwealth of Puerto Rico government
involving more than $5,000.
Much of the language that follows this introduction tracks the
language of the statute and is not problematic. For instance,
paragraphs two through four of Jury Instruction 20 state the
following:
For you to find defendant Bravo guilty of
bribery, you must be convinced that the
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Government has proven each of the following
things beyond a reasonable doubt:
First, that defendant Bravo gave,
offered, or agreed to give any thing of value
to any person;
Second, that defendant Bravo did so
corruptly with the intent to influence or
reward an agent of the Puerto Rico government
in connection with any business, transaction,
or series of transactions of the Puerto Rico
government . . . .
This same type of statute-tracking language is found in
the second relevant instruction, Jury Instruction 21, titled
"Bribery Concerning Programs Receiving Federal Funds, 18 U.S.C.
§ 666(a)(1)(B)." This instruction concerns the § 666 charges
against Defendant Martínez. Paragraphs two through five state:
For you to find defendant Martínez guilty of
bribery, you must be convinced that the
Government has proven each of the following
things beyond a reasonable doubt:
First, that defendant Martínez was an
agent of the Commonwealth of Puerto Rico
government whose duties included those of an
elected Senator of the Commonwealth of Puerto
Rico, as charged;
Second, that defendant Martínez
solicited, demanded, accepted or agreed to
accept any thing of value from another person;
Third, that defendant Martínez did so
corruptly with the intent to be influenced or
rewarded in connection with some business,
transaction or series of transactions of the
Puerto Rico government . . . .
However, certain parts of these two instructions include
language that does not track the statute. Among these are
paragraph ten of Jury Instruction 20 and paragraph eleven of Jury
Instruction 21. Paragraph ten states:
-29-
When considering the First and Second
elements above, I instruct you that a
defendant is not required to have given,
offered, or agreed to give a thing of value
before the business, transaction, or series of
transactions. Rather, the Government may
prove that defendant Bravo gave, offered, or
agreed to give the thing of value before,
after, or at the same time as the business,
transaction, or series of transactions.
Therefore, the government does not need to
prove that defendant Bravo gave, offered, or
agreed to offer the trip to Las Vegas before
defendant Martínez performed any official
action or series of acts.
(Emphases added.) Paragraph eleven of Jury Instruction 21 appears
to have a purpose similar to that of paragraph ten of Jury
Instruction 20, though paragraph eleven is concerned with the
timing of Defendant Martínez's solicitation, demand, acceptance, or
agreement to accept the thing of value:
When considering the Second and Third
elements above, I instruct you that a
defendant is not required to have accepted or
received a thing of value before the business,
transaction, or series of transactions.
Rather, the Government may prove that
defendant Martínez solicited, demanded,
accepted, or agreed to accept the thing of
value before, after, or at the same time as
the business, transaction, or series of
transactions. Therefore, the Government does
not need to prove that defendant Martínez
solicited, demanded, accepted or agreed to
accept the trip to Las Vegas before defendant
Martínez performed any official act or series
of acts.
(Emphases added.)
The final relevant instruction is Jury Instruction 22,
titled simply "Bribery." This instruction states in full:
-30-
I have used the word "bribery" in these
instructions. Bribery requires that the
government prove beyond a reasonable doubt the
existence of a quid pro quo or, in plain
English, an agreement that the thing of value
that is given to the public official is in
exchange for that public official promising to
perform official acts for the giver. It is
not sufficient that the thing of value is made
to curry favor because of the official's
position or that there is some connection in
time or place with an official act that is
promised to the giver; rather there must be an
agreement that the thing of value was offered
by defendant Bravo and accepted by Senator
Martínez in exchange for a promise to perform
an official act.
Defendants maintain that the district court's directions
in Jury Instructions 20 and 21 allowed the jury to convict Martínez
and Bravo of a gratuity offense. They argue that a permissible
construction of Jury Instruction 20 could read as follows:
[T]he Government may prove that defendant
Bravo . . . offered . . . the thing of value
. . . after . . . the business, transaction,
or series of transactions. Therefore, the
government does not need to prove that
defendant Bravo . . . offered . . . the trip
to Las Vegas before defendant Martínez
performed any official action or series of
acts.
Similarly, Jury Instruction 21 could be read to state:
[T]he Government may prove that defendant
Martínez . . . agreed to accept the thing of
value . . . after . . . the business,
transaction, or series of transactions.
Therefore, the Government does not need to
prove that defendant Martínez . . . agreed to
accept the trip to Las Vegas before defendant
Martínez performed any official act or series
of acts.
-31-
Defendants argue that if Bravo had not offered Martínez anything
before Martínez performed an official act, and Martínez had
therefore not accepted (or even agreed to accept) anything from
Bravo before performing that act, any subsequent offer of a thing
of value from Bravo to Martínez cannot be construed as a bribe.
Instead, the offer would merely be an offer of a reward for an act
taken by Martínez in the past. This, Defendants maintain, is an
offer of a gratuity, not a bribe.
The government does not explicitly address this
potentially problematic construction of paragraph ten of Jury
Instruction 20 and paragraph eleven of Jury Instruction 21. It
argues that the titles of those instructions -- "Bribery Concerning
Programs Receiving Federal Funds, 18 U.S.C. § 666(a)(2)" and
"Bribery Concerning Programs Receiving Federal Funds, 18 U.S.C.
§ 666(a)(1)(B)" -- make clear that the jury must find bribery, not
a mere gratuity. Additionally, the government points to the
unambiguous quid pro quo language of Jury Instruction 22, which, it
claims, leaves no doubt that the jury was required to find bribery
to convict Defendants of violating § 666.
Relatedly, Defendants maintain that the effect of the
alleged errors in Jury Instructions 20 and 21 was magnified by
certain statements made by the government during its closing
argument. Defendants point to the government's statement to the
jury that
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it doesn't matter when it was offered or when
it was accepted . . . . These instructions
clarify that -- that it doesn't matter if the
trip was offered before official acts were
taken, at the same time official acts were
taken, or after official acts were taken,
because the crime is offering or accepting the
trip with intent to influence or reward.
(Emphasis added.) This language, Defendants posit, suggests that
the government need only prove a "connection" between the official
acts and the offer of the Las Vegas trip, rather than a causal
relationship. Defendants argue that the government essentially
told the jurors that they could convict Martínez and Bravo of
violating § 666 if they found that a mere gratuity -- as opposed to
a bribe -- was offered by Bravo and accepted by Martínez.
2. Analysis
The Supreme Court explained the distinction between
bribes and illegal gratuities in United States v. Sun-Diamond
Growers of California, 526 U.S. 398 (1999):
The distinguishing feature of each crime is
its intent element. Bribery requires intent
"to influence" an official act or "to be
influenced" in an official act, while illegal
gratuity requires only that the gratuity be
given or accepted "for or because of" an
official act. In other words, for bribery
there must be a quid pro quo -- a specific
intent to give or receive something of value
in exchange for an official act. An illegal
gratuity, on the other hand, may constitute
merely a reward for some future act that the
public official will take (and may already
have determined to take), or for a past act
that he has already taken.
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Id. at 404-05 (third emphasis added) (construing the general
federal bribery and gratuity statute, 18 U.S.C. § 201); see also
United States v. Mariano, 983 F.2d 1150, 1159 (1st Cir. 1993)
(noting in a § 666 case that "[t]he essential difference between a
bribe and an illegal gratuity is the intention of the bribe-giver
to effect a quid pro quo"). As the Eighth Circuit has noted,
"[t]he core difference between a bribe and a gratuity is not the
time the illegal payment is made, but the quid pro quo, or the
agreement to exchange [a thing of value] for official action."
United States v. Griffin, 154 F.3d 762, 764 (8th Cir. 1998).
Although the timing of the payment may not provide a conclusive
answer as to whether that payment is a bribe or a gratuity, the
timing of the agreement to make or receive a payment may: one
cannot agree to perform an act in exchange for payment when that
act has already been performed. Therefore, if the agreement to
exchange a thing of value for an act is made after that act has
been performed, that agreement cannot be properly viewed as an
agreement to offer or accept a bribe.
With this distinction in mind, it is clear that paragraph
ten of Jury Instruction 20 and paragraph eleven of Jury Instruction
21 told the jury that Bravo could be convicted under § 666 for
agreeing to give Martínez a gratuity, and that Martínez could be
convicted under § 666 for agreeing to accept the same. Paragraph
ten explains that for a conviction under § 666, the government need
-34-
not prove that Bravo offered or agreed to give Martínez anything of
value before the transaction that was the subject of the "payment"
took place, and that it is sufficient for conviction to show that
Bravo "offered, or agreed to give the thing of value . . . after
. . . the . . . transaction." Similarly, paragraph eleven suggests
that the government need not prove that Martínez accepted or agreed
to accept the thing of value before he performed the act that was
the subject of the "payment," and that it is sufficient to show
that Martínez "agreed to accept the thing of value . . . after
. . . the transaction."
This view of the requirements of § 666 was reinforced by
the government's closing argument. Like the court's jury
instructions, significant portions of the government's closing
argument were consistent with a bribery theory under § 666.
However, in emphasizing that "it doesn't matter if the trip was
offered . . . after official acts were taken," the government
invited the jury to find guilt based on a gratuity theory of
liability.
While the language in Jury Instruction 22 correctly
states the requirements for a bribery conviction, it was not
sufficient to offset the flatly contrary language in Jury
Instructions 20 and 21. This is particularly so because the
gratuities theory was offered in the instructions on the § 666
counts themselves, whereas the correct bribery language was in a
-35-
subsequent global instruction that applied to both the Puerto Rico
and federal bribery counts.
Importantly, the evidence presented at trial could
support a finding that the "payment" Bravo gave and Martínez
received constituted a gratuity. The evidence showed that Martínez
supported the Senate Projects after the Las Vegas trip -- he voted
in support of both bills within a week of returning -- which is
consistent with a quid pro quo, and therefore with a bribery
theory. However, he first took actions in support of Senate
Projects 410 and 471 -- such as submitting the bills to the Senate
-- weeks or months before the trip to Las Vegas, which is
consistent with a gratuity theory. Hence, the jury reasonably
could have found that the trip was a reward for that prior conduct,
rather than the quid pro quo for Martínez's later support of the
bills.
Although the instructions allowed the jury to convict
Bravo and Martínez of violating § 666 by giving or accepting
gratuities, there remains the more difficult question of whether
this instruction was legally erroneous. We have never decided
whether § 666 criminalizes gratuities in addition to bribes, as the
issue has never been squarely before us. We now turn to that
question.
-36-
B. Section 666
1. Statutory Context
We ordinarily begin with the plain language of a statute
in assessing its meaning. See United States v. Lachman, 387 F.3d
42, 50 (1st Cir. 2004). Here, however, much of the relevant
language originates in another provision, 18 U.S.C. § 201, and it
is therefore useful to take a step back and place § 666 into
statutory context before looking at its specific language.
Section 666 "was born as the stepchild of another
statute, 18 U.S.C. § 201." Justin Weitz, Note, The Devil is in the
Details: 18 U.S.C. § 666 after Skilling v. United States, 14 N.Y.U.
J. Legis. & Pub. Pol'y 805, 816 (2011). Section 201 criminalizes
bribes and gratuities on the part of federal officials. The
statute separates the crimes of illegal bribes and illegal
gratuities into two sections: § 201(b) outlaws the offering of
bribes to public officials, as well as the acceptance of bribes by
those officials, while § 201(c) outlaws the offering and acceptance
of illegal gratuities. 18 U.S.C. § 201(b), (c).
The scope of § 201 is limited to those "acting for or on
behalf of the United States." As the Senate Report for § 666
noted:
With respect to bribery, 18 U.S.C. 201
generally punishes corrupt payments to federal
public officials, but there is some doubt as
to whether or under what circumstances persons
not employed by the federal government may be
considered as a "public official" under the
-37-
definition in 18 U.S.C. 201(a) as anyone
"acting for or on behalf of the United States,
or any department, agency or branch of
government thereof, including the District of
Columbia, in any official function." The
courts of appeals have divided on the question
whether a person employed by a private
organization receiving Federal monies pursuant
to a program is a "public official" for
purposes of section 201.
S. Rep. No. 98-225, at 369 (1983), reprinted in 1984 U.S.C.C.A.N.
3182, 3510. Spurred by the Supreme Court's pending consideration
of the meaning of § 201 in Dixson v. United States, 465 U.S. 482
(1984), which sought to resolve whether § 201 applied to state and
local officials, Congress created § 666 as part of the
Comprehensive Crime Control Act of 1984 ("CCCA"), Pub. L. No.
98-473, 98 Stat. 1837 (1984). According to the Senate Report, the
purpose of § 666 was to "augment the ability of the United States
to vindicate significant acts of theft, fraud, and bribery
involving Federal monies which are disbursed to private
organizations or State and local governments pursuant to a Federal
program."11 S. Rep. No. 98-225 at 369; 1984 U.S.C.C.A.N. at 3510.
Significantly, the Senate Report stated that § 666 was to be
interpreted "consistent with the purpose of this section to protect
the integrity of the vast sums of money distributed through Federal
11
Section 666 has a separate provision that covers theft and
fraud. See 18 U.S.C. § 666(a)(1)(A). That provision is not
implicated in this case.
-38-
programs from theft, fraud, and undue influence by bribery." S.
Rep. No. 98-225 at 370; 1984 U.S.C.C.A.N. at 3511 (emphasis added).
As originally enacted as part of the CCCA, the 1984
version of § 666 differed somewhat from the current law. For
instance, what is now § 666(a)(2) was originally § 666(c), which
read in relevant part:
(c) Whoever offers, gives or agrees to give an
agent of an organization or of a State or
local government agency . . . anything of
value for or because of the recipient's
conduct in any transaction or matter or any
series of transactions or matters involving
$5,000 or more concerning the affairs of such
organization or State or local government
agency, shall be imprisoned not more than ten
years or fined not more than $100,000 . . . .
18 U.S.C. § 666(c) (1984) (emphasis added). Section 666 was
amended in 1986 as part of the Criminal Law and Procedure Technical
Amendments Act of 1986 ("CLPTA"), Pub. L. No. 99-646, 100 Stat.
3592 (1986). The House Report noted that "the enactment of the
CCCA came during the final weeks of the 98th Congress, and, due to
demanding time constraints, the CCCA contained a number of
ambiguities and technical defects." H.R. Rep. No. 99-797, at 16
(1986), reprinted in 1986 U.S.C.C.A.N. 6138. The purpose of the
CLPTA was "to eliminate these technical defects and to make minor
substantive revisions." Id. With respect to § 666 specifically,
the House Report clarified that section 42 of the CLPTA amended the
statute "to avoid its possible application to acceptable commercial
and business practices." Id. at 30. The Report explained further:
-39-
18 U.S.C. 666 prohibits bribery of certain
public officials, but does not seek to
constrain lawful commercial business
transactions. Thus, 18 U.S.C. 666 prohibits
corruptly giving or receiving anything of
value for the purpose of influencing or being
influenced in connection with any business,
transaction, or series of transactions. The
provision parallels the bank bribery provision
(18 U.S.C. 215).
Id. at 30 n.9 (emphasis added).
Two changes to § 666 effected by the CLPTA are
noteworthy. First, the "for or because of" language was replaced
with "intending to be influenced or rewarded" in § 666(a)(1)(B)
(the provision applicable to agents) and "with intent to influence
or reward" in § 666(a)(2) (the provision applicable to the
individual offering the agent something of value). This change is
especially notable, as the pre-amendment language was similar to
that found in 18 U.S.C. § 201(c) -- § 201's gratuity provision.
Section 201(c)(1)(A) prohibits one from "giv[ing], offer[ing], or
promis[ing] anything of value to any public official . . . for or
because of any official act performed or to be performed by such
public official," 18 U.S.C. § 201(c)(1)(A), and the complementary
subsection prohibits public officials from "demand[ing], seek[ing],
receiv[ing], accept[ing], or agree[ing] to receive or accept
anything of value . . . for or because of any official act," id.
§ 201(c)(1)(B). Section 666's post-amendments language is much
closer to that found in 18 U.S.C. § 201(b) -- § 201's bribery
provision. It imposes punishment on one who gives or offers
-40-
anything of value to a public official "with intent . . . to
influence" an official act, id. § 201(b)(1)(A), and on a public
official who agrees to accept a thing of value "in return for
. . . being influenced in the performance of any official act," id.
§ 201(b)(2)(A). As the Supreme Court noted in Sun-Diamond,
§ 201(b)'s intent language implies that "for bribery there must be
a quid pro quo -- a specific intent to give or receive something of
value in exchange for an official act." 526 U.S. at 404-05.
The second relevant alteration is the addition of the
word "corruptly" to the beginning of § 666(a)(1)(B) and (a)(2).
Congress neither explained the reason for this change nor defined
the term. However, this is another instance where the language of
§ 666 was amended in a way that brought the statute closer to
§ 201's bribery provision. Section 201(b)(1) punishes one who
"corruptly gives, offers or promises anything of value to any
public official," id. § 201(b)(1) (emphasis added), and punishes a
public official who "corruptly demands, seeks, receives, accepts,
or agrees to receive or accept anything of value," id. § 201(b)(2)
(emphasis added). The word "corruptly" does not appear in
§ 201(c), the gratuities provision.
With this background in mind, we now analyze the text and
structure of the statute.
-41-
2. The Meaning of § 666
The text of § 666 has remained largely unchanged since
the 1986 amendments. Today, the statute reads in relevant part:
(a) Whoever . . . --
(1) being an agent of an organization, or of a
State, local, or Indian tribal government, or any
agency thereof--
. . . .
(B) corruptly solicits or demands for the
benefit of any person, or accepts or agrees
to accept, anything of value from any person,
intending to be influenced or rewarded in
connection with any business, transaction, or
series of transactions of such organization,
government, or agency involving anything of
value of $5,000 or more; or
(2) corruptly gives, offers, or agrees to give
anything of value to any person, with intent to
influence or reward an agent of an organization or
of a State, local or Indian tribal government, or
any agency thereof, in connection with any
business, transaction, or series of transactions
of such organization, government, or agency
involving anything of value of $5,000 or more;
shall be fined under this title, imprisoned not more than
10 years, or both.
18 U.S.C. § 666(a). One of the most conspicuous differences
between the texts of § 666 and § 201 concerns the intent element:
while § 666 prohibits one from corruptly offering a thing of value
with intent to "influence or reward" an agent, and prohibits an
agent from corruptly soliciting or demanding a thing of value with
intent to be "influenced or rewarded," the bribery provision
applicable to federal officials, § 201(b), does not include the
-42-
alternative "reward": it prohibits one from corruptly offering a
thing of value with intent to "influence" an act, and prohibits an
official from corruptly soliciting a thing of value with an intent
to be "influenced." The word "reward" in § 666 is open to (at
least) two different interpretations.12
Under the first interpretation, when a payor intends to
influence an official's future actions, the payment constitutes a
bribe; when a payor intends to reward the official's past conduct
(or future conduct the official is already committed to taking),
the payment constitutes a gratuity. United States v. Anderson, 517
F.3d 953, 961 (7th Cir. 2008). Several circuits have adopted this
reading of the language. Id.; United States v. Ganim, 510 F.3d
134, 150 (2d Cir. 2007) ("[A] payment made to 'influence' connotes
bribery, whereas a payment made to 'reward' connotes an illegal
gratuity."); United States v. Zimmerman, 509 F.3d 920, 927 (8th
Cir. 2007) (citing § 666(a)(1)(B)'s "influenced or rewarded"
language in support of finding that "Section 666(a)(1)(B) prohibits
both the acceptance of bribes and the acceptance of gratuities
intended to be a bonus for taking official action"); United States
v. Agostino, 132 F.3d 1183, 1195 (7th Cir. 1997).
Under the second interpretation, the word "reward" does
not create a separate gratuity offense in § 666, but rather serves
12
Unfortunately, the legislative history contains no clues
about why this word was added in the 1986 amendments.
-43-
a more modest purpose: it merely clarifies "that a bribe can be
promised before, but paid after, the official's action on the
payor's behalf." United States v. Jennings, 160 F.3d 1006, 1015
n.3 (4th Cir. 1998). "This definition accords with the traditional
meaning of the term 'reward' as something offered to induce another
to act favorably on one's behalf (for example, a bounty offered for
the capture of a fugitive)." Id. Under this reading, the terms
"influence" and "reward" each retain independent meaning.
"Influence" would be used in situations in which, for instance, a
payment was made to a local government commissioner in order to
induce him to vote in a certain way on a particular matter.
"Reward" would be used if a promise of payment was made, contingent
upon that commissioner's vote; once the commissioner voted in the
way the payor requested, a "reward" would follow. Both of these
situations involve a quid pro quo, and both therefore constitute
bribes. What matters, of course, is that the offer of payment
precedes the official act.
Moreover, a reading consistent with the second
interpretation would help to explain the presence of the
"corruptly" language in § 666(a)(1)(B) and (a)(2). As discussed
supra, § 201 uses the word corruptly only in its bribery provision,
§ 201(b), not in the gratuity provision, § 201(c). The Fourth
Circuit puzzled over this issue in United States v. Jennings,
"namely, why § 666(a)(2)'s language prohibiting 'rewards' given
-44-
'corruptly' should be interpreted to cover gratuities, when under
§ 201 any payment made 'corruptly' is a bribe, not an illegal
gratuity." Id. (emphasis added). If the inclusion of the word
"reward" in § 666 does no more than clarify that the payment of a
bribe can occur after the act that is the subject of the bribe is
completed (so long as the agreement to pay the bribe for the act or
acts is made before the act or acts takes place), the statute still
applies only to bribery, and the use of the word "corruptly" in
§ 666 would comport with the use of the same word in § 201(b): any
payment made "corruptly" is a bribe.13 Cf. Anderson, 517 F.3d at
13
The Second Circuit took a different view of "corruptly," in
keeping with its prior conclusion that § 666 covers gratuities. In
United States v. Bahel, the Second Circuit rejected the defendant's
argument that the jury charge should have specified that the
government needed to prove that he "'had been "corrupted" at the
time he acted in his official business.'" 662 F.3d 610, 638 (2d
Cir. 2011) (emphasis added). Instead, the court concluded that "in
the case of a gratuity, the corrupt intent required under Section
666 refers to an individual's state of mind at the time the payment
is received." Id. (emphasis added). This interpretation of
"corruptly" is at odds with that of the Fourth Circuit in Jennings,
which would appear to require the corrupt intent at the time the
agent engages in the act that is the subject of the reward. While
Bahel's definition of "corruptly" supports the Second Circuit's
interpretation of § 666 as criminalizing gratuities as well as
bribes, the question raised in Jennings remains: if "corruptly" in
fact means nothing more than a lack of an innocent motive at the
time one receives payment, why does § 201 -- the statute upon which
§ 666 is based -- fail to include that language in its gratuity
provision when it is included in § 201's bribery provision? In
other words, although the Second Circuit provides an avenue by
which the word "corruptly" could be given independent meaning
without cabining § 666 to bribery, that interpretation would seem
to vitiate the independent meaning of the same word in § 201 --
again, an important consideration given that § 666 was based on
§ 201.
-45-
961 ("Unlike a gratuity, a bribe is a payment made with 'a corrupt
purpose, such as inducing a public official to participate in a
fraud or to influence his official action.'" (quoting U.S.S.G.
§ 2C1.1 cmt. background)).
Another critical difference between § 666 and § 201 is
the maximum penalty authorized under the statutes. One who
violates § 201(b), the bribery provision, may be fined, "or
imprisoned for not more than fifteen years, or both." 18 U.S.C.
§ 201(b) (emphasis added). For a violation -- any violation -- of
§ 666, the statute provides a punishment of a fine, a term of
imprisonment of "not more than 10 years," or both. Id. § 666(a)
(emphasis added). An even more striking difference in penalties,
however, exists between § 666 and § 201's gratuity subsection, the
latter of which calls for a term of imprisonment of "not more than
two years," id. § 201(c) (emphasis added) -- meaning that § 666
authorizes a term of imprisonment five times longer than that
allowed by § 201's gratuities provision.
This dramatic discrepancy in maximum penalties between
§ 666 and § 201(c) makes it difficult to accept that the statutes
target the same type of crime -- illegal gratuities. The
difference in sentences contemplated by § 201(b) and § 666 is both
less dramatic and more understandable: § 201(b) targets (primarily)
federal officials, while § 666 targets non-federal officials who
happen to have a connection to federal funds. It is reasonable to
-46-
assume that the federal government viewed corrupt federal officials
involved in the receipt of bribes as more culpable.14
The distinct penalties for bribes and gratuities
contained in § 201 highlights an obvious yet important structural
difference between §§ 666 and 201: § 666 does not have separate
bribery and gratuity subsections. For those circuits that have
found that § 666 criminalizes gratuities, two subsections of § 666
do the same work as four subsections of § 201. We think it
unlikely that Congress would condense two distinct offenses into
the same subsection in § 666 when the statute upon which it is
based has separate subsections for each offense. See George D.
Brown, Stealth Statute -- Corruption, the Spending Power, and the
Rise of 18 U.S.C. § 666, 73 Notre Dame L. Rev. 247, 310 (1998)
("Congress did not . . . enact a mirror image of § 201 for
nonfederal officials. Section 201 contains separate subsections to
deal with bribery and gratuities. Section 666 does not. It is a
mistake to attempt to read the two statutes as equal in reach.").
Furthermore, if Congress did choose to condense bribes and
gratuities into a single provision in § 666, it would be odd to do
so by merely plugging slightly modified language from § 201(b), its
bribery provision, into the statute. Surely the word "gratuity" --
14
The legislative history of § 666 sheds no light on the
reason for these differences in penalties.
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which is, of course, mentioned nowhere in the text or legislative
history of § 666 -- was not foreign to Congress in 1986.
Although § 666 was enacted to supplement § 201, we can
easily hypothesize at least two reasons why Congress may have
chosen to supplement only § 201's prohibition of bribery. First,
bribes are simply worse than illegal gratuities. See Sun-Diamond,
526 U.S. at 405 (noting the difference in the maximum sentences
allowed under § 201(b) and (c) and stating that "[t]he punishments
prescribed for the two offenses reflect their relative
seriousness"); Charles N. Whitaker, Note, Federal Prosecution of
State and Local Bribery: Inappropriate Tools and the Need for a
Structured Approach, 78 Va. L. Rev. 1617, 1622 (1992) ("The typical
one- to two-year penalty under gratuities statutes evidences the
lesser degree of culpability in accepting a gratuity as opposed to
a bribe."). Under this theory, Congress may have viewed bribery as
far more of a threat to the proper functioning of federally funded
programs than gratuities. Because the application of § 666 to
gratuities offenses would "take[] the statute deeply into a range
of government ethics issues that may be better handled at the state
level," Congress may have intended to cabin § 666 "to the hard-core
area of bribery[,] where any federal interest in government
integrity will be stronger." Brown, supra, at 310 (footnote
omitted).
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A second (and related) reason why Congress may have
limited § 666 to bribery is to avoid what has been characterized as
federal overcriminalization. See generally Weitz, supra, at 840;
Alex Kozinski & Misha Tseytlin, You're (Probably) a Federal
Criminal, in In the Name of Justice 43-56 (Timothy Lynch ed.,
2009); Sanford H. Kadish, Comment: The Folly of Overfederalization,
46 Hastings L.J. 1247, 1249-50 (1995). In other words, Congress
may have been wary of venturing too far into the thickets of state
and local corruption, which often implicate the political processes
of the state. See Brown, supra, at 310.
In Sun-Diamond, a case addressing the scope of § 201's
gratuity provision, the Supreme Court noted that,
when Congress has wanted to adopt . . . a
broadly prophylactic criminal prohibition upon
gift giving, it has done so in a more precise
and more administrable fashion.
. . .
[Because] this is an area where precisely
targeted prohibitions are commonplace, and
where more general prohibitions have been
qualified by numerous exceptions . . . a
statute in this field that can linguistically
be interpreted to be either a meat axe or a
scalpel should reasonably be taken to be the
latter.
526 U.S. at 408, 412. Here, too, we feel obligated to choose the
scalpel. Other than the ambiguous use of the word "rewarded," the
text of § 666, as well as its legislative history and purpose, do
not support the argument that Congress intended the statute to
-49-
reach gratuities. The statute was amended in a way that brought
its language closer to § 201's bribery provision, and further from
§ 201's gratuity provision, suggesting the true targets of § 666
are bribes, not gratuities. Critically, accepting that § 666
criminalizes gratuities would expose defendants convicted of
gratuities violations under § 666 to penalties far greater than
those faced by individuals convicted of gratuities violations under
§ 201 -- a strange outcome that we doubt Congress intended. We
therefore hold that gratuities are not criminalized under § 666.15
15
We have two responses to the thoughtful concurrence of our
colleague that the statute is unclear enough that the rule of
lenity precludes Defendants' convictions to the extent that they
could have rested on a gratuity. First, the rule of lenity is
rarely applied, and should be reserved for situations in which,
"after considering text, structure, history, and purpose, there
remains a grievous ambiguity or uncertainty in the statute such
that the Court must simply guess as to what Congress intended."
Barber v. Thomas, 130 S. Ct. 2499, 2509-10 (2010) (citations
omitted) (internal quotation marks omitted); see also Muscarello v.
United States, 524 U.S. 125, 138-39 (1998) ("The simple existence
of some statutory ambiguity . . . is not sufficient to warrant
application of that rule, for most statutes are ambiguous to some
degree."); United States v. Jimenez, 507 F.3d 13, 21 (1st Cir.
2007) ("[G]enuine ambiguity requires more than a possible
alternative construction."); accord United States v. Flemming, 617
F.3d 252, 272 (3d Cir. 2010) (noting that "[a]pplication of the
rule of lenity is called for only in rare cases"). We have
construed § 666 using traditional tools of construction and find no
grievous ambiguity or uncertainty. Lenity is therefore
inapplicable. See Councilman, 418 F.3d at 83.
Second, we acknowledge, as our colleague notes, that the
Federal Sentencing Guidelines Manual applies separate guidelines
for bribes and gratuities under § 201, and it states that both of
these guidelines are applicable to § 666. U.S. Sentencing
Guidelines Manual app. A (2011). Some have suggested that this
determination on the part of the Sentencing Commission "weighs in
favor of a conclusion that § 666 encompasses bribes and
gratuities." See, e.g., Mark S. Gaioni, Note, Federal
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C. Conclusion
Given this holding, the language in paragraph ten of Jury
Instruction 20 and paragraph eleven of Jury Instruction 21 had no
place in the § 666 instructions. By including that language, the
court improperly invited the jury to convict both Martínez and
Bravo for conduct involving gratuities rather than bribes.
Consequently, the jury was allowed to convict Martínez and Bravo on
a legally erroneous theory. Although other parts of the jury
instructions accurately stated the requirements for a bribery
conviction, the fact remains that the jury was confronted with the
flatly contrary instructions in paragraph ten of Jury Instruction
Anticorruption Law in the State and Local Context: Defining the
Scope of 18 U.S.C. § 666, 46 Colum. J. L. & Soc. Probs. 207, 239-41
(2012). We disagree. The Sentencing Commission is in the business
of "establish[ing] sentencing policies and practices for the
Federal criminal justice system" and "develop[ing] means of
measuring the degree to which the sentencing, penal, and
correctional practices are effective," 28 U.S.C. § 991(b); it is
not in the business of determining what type of conduct a statute
does and does not criminalize. See, e.g., United States v.
Morales, 590 F.3d 1049, 1052 (9th Cir. 2010) ("Of course, the
Commission can't tell federal courts how to interpret statutes.").
The Commission's choice to apply the gratuities guideline to § 666
therefore carries no weight in our analysis. Cf. DePierre v.
United States, 131 S. Ct. 2225, 2236 (2011) ("We have never held
that, when interpreting a criminal statute, deference is warranted
to the Sentencing Commission's definition of the same term in the
Guidelines."); United States v. Gowing, 683 F.3d 406, 410 (2d Cir.
2012) ("The Sentencing Commission, which promulgates the
Guidelines, is entitled to no deference when it interprets criminal
statutes."); United States v. Palacio, 4 F.3d 150, 155 (2d Cir.
1993) ("[U]nless the Sentencing Commission is construing its own
authority as an agency, its view of the substantive meaning of a
criminal statute is unlikely to be entitled to any deference."
(internal citations omitted)).
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20 and paragraph eleven of Jury Instruction 21. As noted, the
government's closing argument improperly invited the jury to
convict the Defendants on the proscribed "gratuity theory," and the
evidence presented at trial could support a finding that the
"payment" Bravo gave and Martínez received constituted a gratuity.
See supra Part III(A)(2). Under these circumstances, we cannot say
"with fair assurance, after pondering all that happened without
stripping the erroneous action from the whole, that the judgment
was not substantially swayed by the error."16 Kotteakos v. United
States, 328 U.S. 750, 765 (1946). We therefore conclude that we
must vacate Defendants' convictions under § 666 because of the
deficiencies in Jury Instructions 20 and 21. See Fiore v. White,
531 U.S. 225, 228 (2001) (holding that conviction of defendant for
conduct that a "criminal statute, as properly interpreted, does not
prohibit . . . violate[s] due process").
16
Even if a defendant has properly preserved his objection to
an incorrect jury instruction, we will not set aside the verdict if
we find that the error was harmless. United States v. Sasso, 695
F.3d 25, 29 (1st Cir. 2012). However, we measure harmless error in
a criminal case using two distinct standards. The stricter
standard, known as the Chapman standard, is "applicable mainly to
issues of constitutional dimension, [and] requires the government
to prove beyond a reasonable doubt that the error did not influence
the verdict." Id.; see Chapman v. California, 386 U.S. 18, 23-24
(1967). The less stringent standard we cite above, called the
Kotteakos standard, is "applicable mainly to trial errors that are
not of constitutional dimension." Sasso, 695 F.3d at 29. Here it
makes no difference what standard we apply because, even assuming
the applicably of the less stringent Kotteakos standard, the error
was not harmless. See id.
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IV.
Defendants argue that their convictions should be
reversed because the indictment was barred by the statute of
limitations. The alleged unlawful conduct at issue took place
through May 2005. The indictment against Defendants was returned
on June 22, 2010, more than five years after the conduct occurred.
Pursuant to 18 U.S.C. § 3282(a), "[e]xcept as otherwise expressly
provided by law, no person shall be prosecuted, tried, or punished
for any offense, not capital, unless the indictment is found or the
information is instituted within five years next after such offense
shall have been committed." However, Defendants signed tolling
agreements waiving their right to allege an affirmative defense
based on the statute of limitations.17 Defendants maintain that (1)
the tolling agreements were void because they were not properly
executed by the government, and (2) even if they were not void, the
tolling agreements did not extend the statute of limitations period
for a gratuity theory of liability on the § 666 counts.
"We review de novo a district court's decision not to
dismiss on statute of limitations grounds." United States v.
Munoz-Franco, 487 F.3d 25, 52 (1st Cir. 2007); see also United
17
The record does not disclose the precise reason why
Defendants signed the tolling agreements. However, "[s]uch
agreements are typically entered into . . . in exchange for the
government's agreement not to indict before a certain time in the
hope that further discussion may result in a more favorable
disposition or prevent an indictment altogether." Robert S.
Hunter, Fed. Trial Handbook: Criminal § 12:28 (2012).
-53-
States v. Spector, 55 F.3d 22, 25 (1st Cir. 1995) (applying de novo
review to question of whether tolling agreement was effective
waiver of defendant's rights under statute of limitations).
Defendants argue that the tolling agreements never became effective
because, although both Defendants and their attorneys signed them,
they were never signed by the government. They rely primarily on
our opinion in United States v. Spector to support this argument.
In Spector, the government and the defendants sought to enter into
a tolling agreement that would bar the application of the § 3282
limitations period. 55 F.3d at 23. That agreement provided that
it would be effective "'upon execution by [the defendants] and
their respective counsel and the United States by its counsel.'"
Id. at 24. The agreement was signed by the defendants and their
counsel, but not by counsel for the government. Id. We found that
the tolling agreement was ineffective, pointing to, inter alia, the
unambiguous language in the agreement. Id. at 25.
Defendants argue unpersuasively that we should extend
Spector to the facts of this case. We summarized our holding in
Spector as follows: "[w]here the parties have so deliberately set
forth in writing the conditions necessary to make their agreement
effective, we think it inadvisable for a court to condone deviation
from one of the explicit terms, absent some good reason to do so."
Id. We also explicitly limited our holding:
We emphasize that we are not saying that, to
be enforced, an agreement to extend the
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statute of limitations must be made in
writing, or must be signed by the government.
We say only that, where the parties themselves
have chosen to set forth the terms in writing,
it makes sense to hold them to those terms,
absent good reason to do otherwise.
Id. at 26 n.4 (citations omitted).
Defendants' tolling agreements in the present case state:
"By signing this document, I knowingly and voluntarily waive any
rights I may have under the statute of limitations regarding
charges which may result from the grand jury investigation . . .
provided that such charges are brought on or before June 25, 2010."
(Emphasis added.) The agreements thus make clear that their
provisions will go into effect when signed by Defendants; nothing
in the agreements require counsel for the United States to sign the
document as a condition of enforceability. We therefore conclude
that the failure of the government to sign the tolling agreements
does not render them invalid.
As to Defendants' second argument, we need not determine
whether the tolling agreements cover a gratuity theory of liability
under § 666, as we have found that § 666 does not criminalize
gratuities. The government may not pursue a conviction on that
ground if Defendants are retried.
V.
Bravo challenges his conviction on count one for
conspiracy to violate the Travel Act, claiming that he is entitled
to a judgment of acquittal on that count.
-55-
A. Background
Count one of the indictment charged Bravo with conspiring
with Martínez and de Castro Font to commit two different crimes:
(1) bribery in violation of § 666 and (2) traveling in interstate
commerce in violation of 18 U.S.C. § 1952 ("the Travel Act"). A
Travel Act charge must identify an unlawful purpose for the
travel,18 and the Travel Act conspiracy alleged against Bravo
specified that his travel was to aid "racketeering" -- a term that
covers various types of unlawful activity.19 In this case, the only
18
Section 1952, which is titled "Interstate and foreign travel
or transportation in aid of racketeering enterprises," states, in
pertinent part:
(a) Whoever travels in interstate or foreign commerce or
uses the mail or any facility in interstate or foreign
commerce, with intent to--
. . .
(3) . . . promote, manage, establish, carry on, or
facilitate the promotion, management, establishment, or
carrying on, of any unlawful activity,
and thereafter performs or attempts to perform--
(A) an act described in paragraph (1) or (3) shall be
fined under this title, imprisoned not more than 5 years,
or both . . . .
19
A "racketeering activity" is defined in the United States
Code as "any act or threat" involving certain specified crimes,
including bribery, "which is chargeable under State law and
punishable by imprisonment for more than one year," as well as any
act indictable under numerous federal statutory provisions,
including the Travel Act. See 18 U.S.C. § 1961(1); see also 18
U.S.C. § 1959(b)(1) (adopting the meaning of "racketeering
activity" set forth in § 1961).
-56-
racketeering conduct that has been identified by the government is
bribery in violation of federal and Puerto Rico laws.20 Indeed,
count two, which alleged a substantive Travel Act violation,
charged Bravo with traveling in interstate commerce with the intent
to commit those two types of bribery, i.e., in violation of § 666
and in violation of Puerto Rico law.
On count one, the jury found Bravo guilty of conspiracy,
but it rejected the § 666 (federal bribery) objective. It found
that he had conspired only to travel in interstate commerce "in aid
of racketeering." The jurors were not asked to specify the
unlawful activity that was the purpose of the travel.21 However,
20
The Travel Act object of the conspiracy described in the
indictment reads as follows:
Interstate Travel in Aid of Racketeering: that is, to
travel in interstate commerce from the Commonwealth of
Puerto Rico to the State of Nevada, with intent to
promote, manage, establish, carry on, and facilitate the
promotion, management, establishment, and carrying on, of
an unlawful activity, to wit bribery in violation of the
laws of the United States and the Commonwealth of Puerto
Rico, in violation of Title 18, United States Code,
Sections 1952(a)(3)(A) and 2.
21
The combination of a conspiracy offense and the Travel Act
produces unusual complexity because each requires an unlawful
objective. The result is that, when the two crimes are charged
together, the government must show multiple layers of predicates.
Hence, to prove a conspiracy to violate the Travel Act, the
government must show (1) a conspiratorial agreement (2) to travel
(3) in aid of a specified unlawful activity. Here, the verdict
form identified only the generic "racketeering" as the purpose of
the Travel Act conspiracy, though it alleged two Travel Act
objectives in the substantive count: bribery under § 666 and
bribery under Puerto Rico law. As noted, the jury found only the
latter.
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on count two, the substantive Travel Act offense, the jury found
Bravo guilty of traveling in interstate commerce with the intent to
commit bribery in violation of Puerto Rico bribery law. The jury
found that he did not violate the Travel Act with the intent to
commit § 666 bribery. Thus, in both the context of identifying the
object of the alleged conspiracy (§ 666 bribery or Travel Act) and
in the context of choosing the unlawful activity that was the
target of the Travel Act (§ 666 bribery or bribery under Puerto
Rico law), the jury rejected the allegation that Bravo's conduct
implicated the federal bribery statute.
Bravo moved for a judgment of acquittal on count two
because the Puerto Rico bribery statutes that provided the
predicate for the Travel Act violation were repealed before the Las
Vegas trip took place. Specifically, the laws were repealed on
June 18, 2004, nearly one year before the trip; the repeal became
effective on May 1, 2005, about two weeks before the trip took
place. Because § 1952 requires the commission of an overt act to
promote the criminal object of the travel after the interstate
travel takes place, see 18 U.S.C. § 1952(a), the district court
granted Bravo's motion, concluding that "the acts that defendant
Bravo took to fulfill the 'thereafter' requirement all occurred
after May 1, 2005, and therefore, after section 4363 was repealed.
Defendant Bravo cannot be convicted of conduct that was effectively
-58-
not a crime at the time the offense took place." United States v.
Bravo-Fernandez, 828 F. Supp. 2d 441, 449 (D.P.R. 2011).22
Bravo also moved for acquittal on the conspiracy charge,
arguing that the conspiracy conviction -- which was based on a
Travel Act violation -- necessarily must fall with the substantive
Travel Act charge. His theory was as follows: if the only target
of the Travel Act found by the jury when considering the
substantive Travel Act charge (count two) was to further a
violation of the Puerto Rico statutes, and that targeted activity
was not unlawful, there could be no unlawful conspiracy to violate
the Travel Act. In other words, he argued that the conspiracy
count must be dismissed because the jury verdicts rejecting § 666
as an object of the conspiracy and as a predicate for the
substantive Travel Act charge left only the repealed Puerto Rico
bribery laws as the crime the jury could have found as the
racketeering activity alleged to be the target of the Travel Act
conspiracy. In that circumstance, there was no viable predicate
for the Travel Act conspiracy.
The district court denied the motion. It held that the
jury could have reached different conclusions about the objective
of Bravo's travel when separately considering the conspiracy and
22
Although the Commonwealth legislature enacted new bribery
provisions to replace the repealed statutes, the government has not
argued that the new laws provide any basis for the convictions
here.
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substantive Travel Act counts. Stated otherwise, the court found
that the jury's unelaborated finding on count one that Bravo had
conspired to travel "in aid of racketeering" could have reflected
a finding that Bravo had conspired to violate the Travel Act with
the intent to promote federal program bribery. The court
considered this outcome possible even though, when considering the
substantive Travel Act crime (count two), the jury found that Bravo
did not violate the Travel Act for that purpose and even though the
jury explicitly found (on count one) that Bravo did not conspire to
violate § 666. The court held that any inconsistency in such a
scenario was not problematic.
On appeal, Bravo reiterates his argument for acquittal on
the conspiracy charge. He again asserts that it was impossible to
engage in a conspiratorial agreement to travel to violate the
Puerto Rico bribery statutes on May 13, 2005, two weeks after the
repeal became effective and nearly a year after the legislature
voted to repeal the statutes, because "one cannot conspire to
commit a nonexistent crime." In addition, he maintains that, even
if the district court correctly ruled that he could be convicted
for conspiring to travel in connection with a bribery that is
unlawful under § 666 -- despite the jury's rejection of federal
bribery as the predicate for his substantive Travel Act offense --
the conspiracy conviction cannot stand. The problem, he asserts,
-60-
is that it is impossible to tell whether the jury based its Travel
Act conspiracy finding on the federal or Commonwealth statutes.
The government, noting that a defendant may be convicted
on a conspiracy charge even if he does not successfully complete
the crime that is the object of the conspiracy, argues that the
jury could have found that Bravo conspired to travel to violate the
Puerto Rico bribery laws if an overt act was taken before the
statute was repealed. The government points out that the statute
was still in effect when Bravo booked the hotel reservations,
ordered the boxing tickets, and took other acts "which were in
furtherance of the corrupt exchange." The government interprets
Bravo's argument to be a legal impossibility defense -- i.e., he
could not be found guilty because it would have been impossible for
him to commit the crime -- and states that "[c]ourts have come to
abolish impossibility as a defense, particularly with respect to
the crime of conspiracy."
Having set the scene, we now proceed to consider whether
Bravo's conspiracy conviction may stand with either § 666 or Puerto
Rico bribery law as the Travel Act predicate.
B. Conspiracy to Violate the Travel Act to Promote Puerto Rico
Bribery
Although the government is correct that "legal
impossibility" is often an ineffective defense in a conspiracy case
because a conspiracy charge does not require a completed crime,
Bravo's argument implicates a more potent form of the doctrine. He
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invokes what has been referred to as "pure legal impossibility,"
which arises when no statute "proscribe[s] the result that the
defendant expected, desired, and intended to achieve." See Ira P.
Robbins, Attempting the Impossible: the Emerging Consensus, 23
Harv. J. on Legis. 377, 390 (1986); see also United States v.
Farner, 251 F.3d 510, 513 n.2 (5th Cir. 2001); In re Sealed Case,
223 F.3d 775, 779 (D.C. Cir. 2000). "Pure legal impossibility is
always a defense. For example, a hunter cannot be convicted of
attempting to shoot a deer if the law does not prohibit shooting
deer in the first place." United States v. Hsu, 155 F.3d 189, 199
n.16 (3d Cir. 1998). Although Hsu's hypothetical discussed pure
legal impossibility in the context of attempts, "[o]bviously a
charge of conspiracy to shoot a deer would be equally untenable."
In re Sealed Case, 223 F.3d at 779.
The type of legal impossibility that the government cites
has been referred to as "mixed fact/law impossibility." Such cases
"involve a factual mistake relating to a legal determination. In
every case . . . a pre-existing law proscribed the actor's goal,
thus distinguishing this category from pure legal impossibility."
Robbins, supra, at 394. These cases "use[] the label 'legal
impossibility' to refer to the impossibility of actually
accomplishing the intended plot," although there is never "any
question that if the plot had succeeded the conduct itself would be
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criminal." United States v. Ali, 561 F. Supp. 2d 265, 267-68
(E.D.N.Y. 2008).
This is a case of pure legal impossibility. The jury
found a conspiracy to violate the Travel Act with the intent to
facilitate racketeering activity (either federal or state bribery).
The evidence shows, and the indictment alleges, that the travel
underlying the charge was to take place on a specific date to
coincide with the boxing match between Felix Trinidad and Winky
Wright scheduled for May 14, 2005 -- nearly two weeks after the
repeal of the Puerto Rico bribery statutes was to go into effect.
Thus, the jury could not have found Bravo guilty of conspiracy to
violate the Travel Act for the purpose of aiding a violation of
these Puerto Rico bribery laws because the alleged agreement was to
travel at a time when Bravo's conduct could not violate those laws.
That the plans to take the trip to Las Vegas were allegedly made
before the statute's repeal took effect is of no significance,
since the plans envisioned travel on a specific date -- after May
1. In this case, "a pre-existing statute [did] not proscribe the
result that the defendant expected, desired, and intended to
achieve," Robbins, supra, at 390, because the Puerto Rico bribery
statutes at issue would no longer "exist" when the travel was to
take place. In short, Defendants were "conspiring" to do something
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that would not be prohibited by these Puerto Rico bribery laws on
the date they planned to do it.23
An extension of the deer hunting hypothetical used in
Hsu and In re Sealed Case illustrates this point. Assume that deer
hunting season begins on September 1; it is against the law to hunt
deer before September 1. On August 15, a man and his friend visit
a sporting goods store to purchase rifles and ammunition, intending
to use them to hunt deer on September 2. Are the men guilty of
conspiring to illegally hunt deer? They are not: although their
planning took place during a time when it would have been illegal
to engage in the subject activity, no statute prohibited that
activity on the date on which they planned to engage in it.
It therefore follows that, with respect to the Puerto
Rico bribery basis for the alleged Travel Act violation, "since the
conduct allegedly underlying the conspiracy was not a crime, no
. . . conspiracy to commit that conduct can exist either." Ali,
561 F. Supp. 2d at 267.24 The government claims, however, that even
23
We reject the government's assertion that Bravo may not
benefit from the repeal without demonstrating that he had notice of
it.
24
In this case, it is not pertinent that, at the time Bravo
and the others agreed to travel, the repeal of the Puerto Rico
bribery statutes at issue had not yet gone into effect. The state
of the law at the time of their agreement was such that, on the day
they planned to travel, such travel would not be unlawful. Hence,
there was no unlawful objective of their agreement, and therefore
no basis for a conspiracy charge.
It might be a different case if, at the time they agreed, the
legislature had not already decided to change the state of the law
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if the Puerto Rico bribery predicate must be struck, the jury could
have relied on § 666 as a predicate for the conspiracy to violate
the Travel Act. We now turn to that possibility.
C. Conspiracy to Violate the Travel Act to Promote Federal Bribery
The government urges us to adopt the view taken by the
district court, i.e., that the jury's rejection of § 666 as a
direct object of the conspiracy and as a predicate for the
substantive Travel Act violations does not negate the possibility
that the jury could have found that the conspiracy to violate the
Travel Act involved planning to travel to violate § 666. The gist
of this approach is that the jury could have found that Bravo
conspired with others to travel for the purpose of promoting
federal bribery, while also finding that he neither agreed with
others directly to commit federal bribery (its finding on count
one) nor in fact traveled to promote federal bribery (its finding
on count two). The government admits that such a view of the
jury's judgments appears inconsistent, but it asserts that the
verdicts are reconcilable and therefore permissible. It cites
precedent in which inconsistent verdicts have been upheld. See,
e.g., United States v. Powell, 469 U.S. 57, 69 (1984).
effective May 1, 2005. In other words, we do not address the
hypothetical situation in which Bravo and his cohorts had set their
plan in motion before the legislature acted to repeal the statutes.
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But the problem here is not merely the possibility of
inconsistent verdicts. Rather, even if we were to assume that the
jury could have relied on a § 666 theory in finding Bravo guilty on
the Travel Act conspiracy count, we do not in fact know whether the
racketeering activity found by the jury as a predicate was bribery
under federal law or bribery under the repealed Puerto Rico
statutes. We are thus confronted with a situation in which "the
verdict is supportable on one ground, but not on another, and it is
impossible to tell which ground the jury selected." Yates v.
United States, 354 U.S. 298, 312 (1957), overruled on other grounds
by Burks v. United States, 437 U.S. 1 (1978). "When a jury has
been presented with several bases for conviction, one of which is
legally erroneous, and it is impossible to tell which ground the
jury convicted upon, the conviction cannot stand." United States
v. Sawyer, 85 F.3d 713, 730-31 (1st Cir. 1996); see also United
States v. Mubayyid, 658 F.3d 35, 71 (1st Cir. 2011); United States
v. Kavazanjian, 623 F.2d 730, 739-40 (1st Cir. 1980) (reversing
verdict on multi-object conspiracy conviction under § 371 where one
object failed to state a crime). We therefore conclude that
Bravo's conspiracy conviction cannot be upheld.
But our inquiry does not end here. The question remains
whether the judgment entered on count one as to Bravo must be
reversed or whether it should be vacated and the case remanded for
further proceedings. Generally, when we find that a conviction
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cannot stand because the jury may have convicted upon a legally
invalid basis, we will remand for a new trial, provided that there
is sufficient evidence to support a conviction on a valid basis (or
bases). See United States v. Pendergraft, 297 F.3d 1198, 1210
(11th Cir. 2002); Kavazanjian, 623 F.2d at 739. The government
argues for that course here. It maintains that the evidence was
sufficient for the jury to find that Bravo conspired to travel in
interstate commerce to violate § 666 and, hence, he should be
retried on count one.
We disagree. Regardless of the sufficiency of the
evidence, retrial on the conspiracy count is barred by the Double
Jeopardy Clause.25 While the Double Jeopardy Clause is widely
understood to bar retrial on a charge on which a defendant was
previously acquitted, Yeager v. United States, 557 U.S. 110, 117-18
(2009), it also "precludes the Government from relitigating any
issue that was necessarily decided by a jury's acquittal in a prior
trial," id. at 119 (emphasis added); see also Ashe v. Swenson, 397
U.S. 436, 443-44 (1970); United States v. Orrego-Martinez, 575 F.3d
1, 6 (1st Cir. 2009). This is known as the "issue preclusion" or
"collateral estoppel" prong of the Double Jeopardy Clause. United
States v. Coughlin, 610 F.3d 89, 95 (D.C. Cir. 2010); United States
v. Wittig, 575 F.3d 1085, 1095 (10th Cir. 2009). In determining
25
Although Bravo did not formally label his challenge to the
conspiracy conviction as a double jeopardy challenge, the logical
conclusion of his argument is exactly that.
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what was "necessarily decided" for purposes of issue preclusion,
the Supreme Court has recently reaffirmed that "courts should
'examine the record of a prior proceeding, taking into account the
pleadings, evidence, charge, and other relevant matter, and
conclude whether a rational jury could have grounded its verdict
upon an issue other than that which the defendant seeks to
foreclose from consideration.'" Yeager, 557 U.S. at 119-20
(quoting Ashe, 397 U.S. at 444). The Court has made clear that
this "inquiry 'must be set in a practical frame and viewed with an
eye to all the circumstances of the proceedings,'" id. (quoting
Ashe, 397 U.S. at 444), and that "the rule of collateral estoppel
in criminal cases is not to be applied with the hypertechnical and
archaic approach of a 19th century pleading book, but with realism
and rationality," Ashe, 397 U.S. at 444.
Here, the jury's verdict on count one did not expressly
acquit Bravo on a Travel Act conspiracy whose purpose was to
promote § 666 bribery. The verdict form for count one asked the
jury to answer "yes" or "no" only as to whether Bravo had conspired
to violate the Travel Act "in aid of racketeering," without
specifying any racketeering activity. However, federal program
bribery in violation of § 666 was one of the two racketeering
crimes alleged in the indictment and argued by the government --
the other being bribery in violation of Puerto Rico law.
Significantly, the jury did render a conspiracy judgment with
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respect to § 666, rejecting federal bribery as a direct object of
the conspiracy. The pertinent question, then, is this: by
unambiguously stating on the verdict form that Bravo did not
conspire to violate § 666, did the jury also "necessarily decide"
that he did not conspire to travel for the purpose of violating
§ 666? Taking a practical, realistic approach to this question, we
must answer it in the affirmative.
First, we find it difficult to fathom how the jury could
have found that Bravo conspired to travel for the purpose of
violating § 666 without also finding that he conspired to violate
§ 666. The jury's explicit rejection of the allegation that Bravo
conspired to violate § 666 is strong evidence that the jury did not
find federal program bribery to be the racketeering activity
underlying the Travel Act conspiracy. Cf. United States v.
Cabrera, 804 F. Supp. 2d 1261, 1267-70 (M.D. Fla. 2011). Second,
the jury found on count two -- the substantive Travel Act count --
that Bravo was guilty only of traveling with the intent to commit
bribery in violation of Puerto Rico law. Again, the jury
explicitly rejected allegations that either the conspiracy or the
Travel Act conduct implicated § 666.
Given these other § 666 judgments by the jury, we
conclude that its verdict on the Travel Act conspiracy can only
rationally be understood as a finding that Bravo conspired to
travel to Las Vegas in mid-May 2005 for the purpose of promoting
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Puerto Rico bribery. We will not bend over backwards to formulate
some route by which the jury could have conceivably found that
§ 666 was the predicate of the Travel Act conspiracy when any
reasonable assessment of the verdict shows that no such road was
taken. We therefore conclude that re-prosecuting Bravo on count
one would violate the Double Jeopardy Clause.
VI.
Martínez also challenges his conspiracy conviction. As
we shall explain, although the circumstances are different from
Bravo's, the outcome is the same.
A. Background
The jury indicated that it unanimously found Martínez
guilty of conspiracy on count one. The verdict form listed three
potential objects of the conspiracy, and the jury was instructed to
"check all that you unanimously find to apply." The jury checked
"No" as to each of the three identified objects of the conspiracy.
In other words, although the jury was unanimous in finding that
Martínez was guilty of conspiring to do something illegal, they
were not unanimous in their view of what that illegality was.
Immediately after the verdict was read by the courtroom
deputy, Martínez's attorney, Mr. Lowell, asked the court to strike
the verdict on count one, stating: "As to Hector Martínez, they
found 'no' for all the particulars, so, consequently, this is an
impossibility." The court and the government were uncertain about
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the proper course. Lowell, however, remained steadfast, asserting
that "as to Count 1, by law, you have to enter the verdict of not
guilty as to Count 1 as to Mr. Martínez."
Lowell then asked the court to poll the jury individually
as to count five, the substantive federal bribery count. The
government recommended that the court simply take a general poll.
Bravo's attorney, Mr. Chesnoff, asked that the jury be polled
individually "as to every count and every specification," stating
that "[y]ou have a jury that has obviously been confused about its
verdict." The court rejected both defense attorneys' requests and
conducted only a general poll, asking each juror if the verdict
announced by the courtroom deputy was his or her verdict. This
approach did not clarify the issue with the conspiracy verdict as
to Martínez.
After the jury was polled, the court asked if there were
any motions by the defense. Attorney Lowell reiterated his
contention that "the Court must vacate Count 1." The court
responded: "All right. Well, let me discharge the jury, and well
-- we'll deal with those legal matters later." The jury was
escorted from the courtroom, and Lowell again stated that the
jury's verdict on Martínez's conspiracy charge was "a legal
impossibility," and "that being the case, the Court must strike
that guilty verdict. There's no alternative." The government
pushed back, asking the court for time to brief the issue before it
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made its decision. After some further back and forth, the court
stated: "I agree with Mr. Lowell. Count 1 as far as Defendant
Martínez is dismissed." The discussion then shifted to other
matters.
In a short order issued the next day, the court sua
sponte "reinstated" Martínez's conviction on count one "without
prejudice of the parties having a full opportunity to brief the
issues discussed in open court." Martínez filed an eighteen-page
brief three days later, stating that the court's change of course
was "beyond surprising" and insisting that the further proceedings
ordered by the court "are an affront to the Fifth Amendment's Due
Process and Double Jeopardy Clauses, and the Sixth Amendment's
right to trial by jury." He argued that "[a]lthough the statutory
basis for Mr. Lowell's motion and this Court's decision was not
cited, it was plainly a motion made and a judgment rendered under
[Federal] Rule [of Criminal Procedure] 29," and that double
jeopardy therefore attached. The government filed a
"non-opposition" to Martínez's motion shortly thereafter,
indicating that "the Court should dismiss defendant Martínez's
guilty verdict on Count One." The next day, however, the
government filed a supplemental response, arguing that, at most,
Martínez would be entitled to a mistrial pursuant to Federal Rule
of Criminal Procedure 33 on count one and a dismissal without
prejudice, not a Rule 29 dismissal based on insufficiency of the
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evidence. Martínez replied that the dismissal sought and granted
was a dismissal pursuant to Rule 29, that the dismissal was
properly granted, and that the court's decision could not be
withdrawn or relitigated, as jeopardy attached to it.
On August 30, 2011, the district court issued an order
stating that the initial dismissal did not preclude a mistrial. The
court stated that because it did not explicitly make a finding that
the evidence was insufficient to sustain the conviction, Rule 29
was not implicated. Instead, it maintained that "the Court
'dismissed' [the] verdict based on defense counsel's claim of
'legal impossibility.'" Moreover, the court stated that even if
its actions fell within the scope of Rule 29, the Double Jeopardy
Clause permits a prosecution appeal to reinstate a jury's guilty
verdict that a judge subsequently discarded.
B. Legal Principles
The Fifth Amendment states that no person shall "be
subject for the same offence to be twice put in jeopardy of life or
limb." U.S. Const. amend. V. The Double Jeopardy Clause "shields
a defendant from a second prosecution for the same offense after
either conviction or acquittal." United States v. Morris, 99 F.3d
476, 478 (1st Cir. 1996). In determining whether the Double
Jeopardy Clause has been violated, "a reviewing court first must
ask whether jeopardy attached in the original [trial] court
proceeding." United States v. Pacheco, 434 F.3d 106, 112 (1st Cir.
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2006) (alteration in original) (citation omitted) (internal
quotation marks omitted).
"Perhaps the most fundamental rule in the history of
double jeopardy jurisprudence has been that '[a] verdict of
acquittal . . . could not be reviewed, on error or otherwise,
without putting [a defendant] twice in jeopardy, and thereby
violating the Constitution.'" United States v. Martin Linen Supply
Co., 430 U.S. 564, 571 (1977) (alteration in original) (quoting
United States v. Ball, 163 U.S. 662, 671 (1896)). We have
previously held that "[i]t is beyond cavil that, for double
jeopardy purposes, the finality accorded to jury verdicts of
acquittal extends equally to judicially rendered judgments of
acquittal." Pacheco, 434 F.3d at 112. It is therefore critical to
determine whether the district court's statement that "Count 1 as
far as Defendant Martínez is dismissed" constitutes a judgment of
acquittal.
The Supreme Court has repeatedly "emphasized that what
constitutes an 'acquittal' is not to be controlled by the form of
the judge's action." Martin Linen, 430 U.S. at 571; see also
United States v. Scott, 437 U.S. 82, 96 (1978); United States v.
Sisson, 399 U.S. 267, 290 (1970). Instead, a reviewing court "must
determine whether the ruling of the judge, whatever its label,
actually represents a resolution, correct or not, of some or all of
the factual elements of the offense charged." Martin Linen, 430
-74-
U.S. at 571; see also Pacheco, 434 F.3d at 112. That the district
court did not explicitly invoke Rule 29 in "dismissing" count one,
then, is not dispositive on the issue of whether its actions
constituted an acquittal. Cf. United States v. Jorn, 400 U.S. 470,
478 n.7 (1971) ("[T]he trial judge's characterization of his own
action cannot control the classification of the action for the
purposes of our appellate jurisdiction.").
The difficulty in this case is that the district court's
assessment of the conspiracy charge as to Martínez does not
directly engage with the facts presented at trial. Instead of the
normal inquiry into factual sufficiency, the court's determination
that the conspiracy count must be "dismissed" appears to be based
on a legal conclusion regarding the requirements of a conspiracy
conviction under 18 U.S.C. § 371 -- specifically, that if the jury
cannot reach an agreement as to the object of a conspiracy, the
conviction cannot stand as a matter of law. The Supreme Court,
however, has not limited acquittals for double jeopardy purposes to
cases involving factual assessments of the evidence presented to
the jury. In several cases, including one decided earlier this
year, the Supreme Court has held that legal determinations by the
court can create a double jeopardy bar to retrial.
In Arizona v. Rumsey, an Arizona trial judge conducted a
sentencing hearing to determine whether a defendant convicted of
armed robbery and first degree murder was eligible for the death
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penalty. 467 U.S. 203, 205 (1984). The trial judge mistakenly
held that Arizona's statutory aggravating factor covering killings
for pecuniary gain was limited to "a contract-type killing
situation and not robbery, burglary, etc." Id. at 206 (quotation
marks omitted). The judge therefore found no aggravating
circumstances and sentenced the defendant to life imprisonment.
Id. The State successfully appealed to the Supreme Court of
Arizona and obtained a death sentence on remand under the proper
standard. Id. at 207-08. The U.S. Supreme Court found that the
retrial on the penalty phase issue was a double jeopardy violation,
because the trial judge's original "judgment, based on findings
sufficient to establish legal entitlement to the life sentence,
amounts to an acquittal on the merits and, as such, bars any
retrial of the appropriateness of the death penalty." Id. at 211.
It continued:
In making its findings, the trial court relied
on a misconstruction of the statute defining
the pecuniary gain aggravating circumstance.
Reliance on an error of law, however, does not
change the double jeopardy effects of a
judgment that amounts to an acquittal on the
merits. "[T]he fact that the acquittal may
result from erroneous evidentiary rulings or
erroneous interpretations of governing legal
principles . . . affects the accuracy of that
determination, but it does not alter its
essential character."
Id. (quoting United States v. Scott, 437 U.S. 82, 98 (1978))
(emphasis added) (internal quotation marks omitted).
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Just two years after Rumsey, the Court considered another
case in which a judge's "legal determination" was at issue. In
Smalis v. Pennsylvania, the Supreme Court of Pennsylvania held that
a demurrer, which requires the court to determine "whether the
evidence, if credited by the jury, is legally sufficient to warrant
the conclusion that the defendant is guilty beyond a reasonable
doubt," does not involve a factual determination, but rather
"purely one of law," and is therefore not the equivalent of an
acquittal for double jeopardy purposes. 476 U.S. 140, 143 (1986)
(internal quotation marks omitted). The U.S. Supreme Court
reversed in a brief opinion, stating that "[w]hat the demurring
defendant seeks is a ruling that as a matter of law the State's
evidence is insufficient to establish his factual guilt," which
constitutes an acquittal under the Double Jeopardy Clause. Id. at
144.
The Court recently reaffirmed its positions in Rumsey and
Smalis in Evans v. Michigan, 133 S. Ct. 1069 (2013). In Evans, the
Supreme Court considered "whether retrial is barred when a trial
court grants an acquittal because the prosecution had failed to
prove an 'element' of the offense that, in actuality, it did not
have to prove." Id. at 1074. The Court found that, in substance,
the issue was no different than the one presented in Rumsey: it
"involve[d] an antecedent legal error that led to an acquittal
because the State failed to prove some fact it was not actually
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required to prove." Id. at 1076. The fact that Evans involved the
addition of a nonessential element, while Rumsey involved only the
misinterpretation of an essential element, was of no moment to the
Court. Id. at 1076-77. The Court held that the trial court's
"judgment, however erroneous it was, precludes reprosecution." Id.
at 1078 (internal quotation marks omitted).
C. Application
With these decisions in mind, we have little difficulty
concluding that the district court's "dismissal" of the conspiracy
count against Martínez was an acquittal. Rightly or wrongly,26 the
court agreed with Lowell's assertions that a conspiracy with no
object was "a legal impossibility," and that the jury's verdict
must be "struck" and the count "dismissed." In so finding, the
court made a determination as to the legal requirements necessary
for a conspiracy conviction under § 371 and concluded that the jury
had found the evidence insufficient to meet those requirements.27
26
Because the correctness of the district court's decision on
this issue is irrelevant, we choose not to address it, other than
to note that there appears to be no case law directly on point.
Martínez relies primarily upon an out-of-circuit district court
case involving facts that differ materially from the present case,
United States v. Lucarelli, 490 F. Supp. 2d 295 (D. Conn. 2007),
while the government cites to an Eighth Circuit case that involved
a special verdict form in a bankruptcy fraud case, United States v.
Mitchell, 476 F.3d 539 (8th Cir. 2007). Neither offers clear
guidance.
27
Although double jeopardy cases in which courts order an
acquittal based on the sufficiency of the evidence ordinarily
involve the court's assessment of the evidence itself, the
principles are equally applicable in this somewhat different
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For our purposes, it does not matter if this interpretation of
§ 371 added "an 'element' of the offense that, in actuality, [the
government] did not have to prove," id. at 1074; misconstrued the
actual elements of the statute, Rumsey, 467 U.S. at 211; or
faithfully adhered to the statute's requirements. All that matters
is that the district court made "a determination that the
[government] had failed to prove its case." Evans, 133 S. Ct. at
1075.
One issue remains for our consideration. In declaring a
mistrial, the district court found that even if the initial
"dismissal" could be considered a judgment of acquittal, the Double
Jeopardy Clause would not prevent an appeal by the government to
reinstate the jury's original guilty verdict. In support of this
proposition, the court cited Smith v. Massachusetts, which states:
Our cases have made a single exception to the
principle that acquittal by judge precludes
reexamination of guilt no less than acquittal
by jury: When a jury returns a verdict of
guilty and a trial judge (or an appellate
court) sets aside that verdict and enters a
judgment of acquittal, the Double Jeopardy
Clause does not preclude a prosecution appeal
to reinstate the jury verdict of guilty.
context. Here, the court determined that the jury had functionally
acquitted Martínez on the conspiracy count. See Evans, 133 S. Ct.
at 1075 ("[A]n 'acquittal' includes a ruling by the court that the
evidence is insufficient to convict, a factual finding [that]
necessarily establish[es] the criminal defendant's lack of criminal
culpability, and any other rulin[g] which relate[s] to the ultimate
question of guilt or innocence." (alterations in original)
(emphasis added) (citations omitted) (internal quotation marks
omitted)).
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543 U.S. 462, 467 (2005). Although at first blush this principle,
first announced in United States v. Wilson, 420 U.S. 332, 352-53
(1975), seems potentially applicable to the present case, it is
not.
As the Court noted in Rumsey, "[n]o double jeopardy
problem was presented in Wilson because the appellate court, upon
reviewing asserted legal errors of the trial judge, could simply
order the jury's guilty verdict reinstated; no new factfinding
would be necessary, and the defendant therefore would not be twice
placed in jeopardy." 467 U.S. at 211-12. The Rumsey Court found
that the Wilson exception was inapplicable to that case, because
"[w]hereas the defendant in Wilson was not to be subjected to a
second trial after an acquittal at his first, that is precisely
what . . . happened" to Rumsey. The Court has made clear that the
Wilson exception does not violate the Double Jeopardy Clause
precisely because allowing appeal in those circumstances does not
subject a defendant "to further factfinding proceedings going to
guilt or innocence" following an acquittal. Smith, 543 U.S. at 467
(internal quotation marks omitted); see also Smalis, 476 U.S. at
145 ("[S]ubjecting the defendant to postacquittal factfinding
proceedings going to guilt or innocence violates the Double
Jeopardy Clause.").
Here, the government presumably requested a dismissal
without prejudice of Martínez's conviction so that it can
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reprosecute him under § 371. If we were to allow the district
court to recast its acquittal as a mistrial, the government would
get another opportunity to subject Martínez to "factfinding
proceedings going to guilt or innocence," hoping this time for a
less ambiguous result. That would be a classic instance of
impermissible double jeopardy. Because the court's "dismissal" was
an acquittal for double jeopardy purposes, and because the Wilson
exception does not apply, the decision cannot be reconsidered. See
Smith, 543 U.S. at 470-73.
VII.
For the foregoing reasons, we reverse Bravo's conspiracy
conviction, and reverse the district court's order declaring a
mistrial as to Martínez's conspiracy count. We direct the district
court to enter a judgment of acquittal on both charges. We vacate
Martínez's and Bravo's § 666 convictions and remand for further
proceedings consistent with this opinion.
– Concurring Opinion Follows –
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HOWARD, Circuit Judge, concurring in part and concurring
in the judgment. I join the court's judgment, although on one
issue I would reach the same result by a different route. The
majority concludes, as a matter of law, that Section 666 does not
criminalize gratuities. I believe that the statute is unclear
enough that the rule of lenity precludes the defendants'
convictions to the extent that they could have rested on a
gratuity. While the majority does an admirable job of explaining
its reasoning, other considerations give me pause.
First, the Supreme Court has stated that "[a]n illegal
gratuity . . . may constitute merely a reward for some future act
that the public official will take (and may already have determined
to take), or for a past act that he has already taken." United
States v. Sun-Diamond Growers of Cal., 526 U.S. 398, 405 (1999)
(emphasis added). Thus, a "reward" can be a payment that does not
influence an official's actions, a reading that the majority
rejects when interpreting Section 666. Although the Court was not
interpreting Section 666 or defining the word "reward," it was
interpreting Section 201, a closely related statute. Thus, I
hesitate to conclude that the meaning of "reward" as used in
Section 666 is at odds with the Court's use of that word.
Second, a problem arises if we read the bribery provision
of Section 201(b) to prohibit the same conduct as Section 666.
Section 201(b) prohibits giving or receiving anything of value with
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the intent to "influence" or of "being influenced." 18 U.S.C.
§ 201(b)(1)(A), (b)(2)(A). Section 666, by contrast, prohibits
giving or receiving anything of value with the intent to "influence
or reward" or "to be influenced or rewarded." Id. § 666(a)(2),
(a)(1)(B). If the scope of these prohibitions is the same, then
the word "reward" has no independent meaning in Section 666, which
would seem to violate the requirement that we are to give effect to
every word of a statute. See Ransom v. FIA Card Servs., N.A., 131
S. Ct. 716, 724 (2011). I am not sure that this problem can be
resolved by reading "reward" as clarifying how a bribe can be
timed, as the majority does.
Third, Appendix A to the United States Sentencing
Guidelines Manual provides that Section 2C1.2, the guideline
covering gratuities, applies to both Section 666(a)(1)(B) and
Section 666(a)(2). Although the Sentencing Commission cannot
change the meaning of a statute, Congress does have the opportunity
to review proposed guidelines before they become effective.
28 U.S.C. § 994(p).28 Moreover, we have held that "Chevron
deference is the proper criterion for determining whether a
guideline (or, for that matter, commentary that suggests how a
28
Like the majority, I am concerned with the disparity between
the statutory maximum sentences for an illegal gratuity under
Section 201 and for a violation of Section 666. But I would point
out that an illegal gratuity carries a base offense level three
levels lower than bribery does, U.S. Sentencing Guidelines Manual
§§ 2C1.1(a), 2C1.2(a) (2012).
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guideline should be read) contravenes a statute." United States v.
LaBonte, 70 F.3d 1396, 1404 (1st Cir. 1995), rev'd on other
grounds, 520 U.S. 751 (1997).29 While I do not suggest that
LaBonte's rule applies here, the Sentencing Commission's
determination that the gratuity guideline applies to Section 666
does at least give me pause as to Congress's meaning.
In the end, I would apply the rule of lenity because it
is ambiguous whether Section 666 criminalizes gratuities. "The
rule of lenity requires ambiguous criminal laws to be interpreted
in favor of the defendants subjected to them." United States v.
Santos, 553 U.S. 507, 514 (2008) (plurality opinion). We apply the
rule of lenity "only if, after seizing everything from which aid
can be derived, we can make no more than a guess as to what
Congress intended." Reno v. Koray, 515 U.S. 50, 65 (1995)
(citations omitted) (internal quotation marks omitted). Here, I
can make no more than a guess as to what Congress intended
Section 666 to mean. Therefore, I would hold that the defendants
cannot be convicted for giving or receiving a gratuity.
29
When the Supreme Court decided United States v. LaBonte, the
three dissenting justices stated that Chevron deference was
appropriate, 520 U.S. at 777 (Breyer, J., dissenting), while the
remaining justices chose not to decide the issue, id. at 762 n.6.
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