U.S. v. Bustamante

• Decision Date: 13 February 1995
• Docket Number: No. 93-8705,93-8705
• Citation: 45 F.3d 933
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Albert G. BUSTAMANTE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 933

45 F.3d 933

UNITED STATES of America, Plaintiff-Appellee, v. Albert G. BUSTAMANTE, Defendant-Appellant.

No. 93-8705.

United States Court of Appeals Fifth Circuit.

Feb. 13, 1995.

Rehearing and Suggestion for Rehearing En Banc Denied April 5, 1995.

Nancy Barohn, Bernard Campion, San Antonio, TX, for appellant.

Michael A. Attanasio, Trial Atty., Crim.Div., Jackie M. Bennett, Jr., U.S. Dept. of Justice, Washington, DC, for appellee.

Appeal from the United States District Court For the Western District of Texas.

Before DAVIS, BARKSDALE and STEWART, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Bustamante appeals his conviction and sentence on two counts of a ten count indictment charging RICO and related offenses. We affirm.

I.

Albert G. Bustamante was elected to the United States House of Representatives in November 1984 and served until his defeat in 1992. In 1993, a federal grand jury returned a ten-count indictment against Bustamante, accusing him of using his public office for personal enrichment.

Count One alleged that Bustamante conducted the affairs of an enterprise, his congressional office, through a pattern of racketeering activity, in violation of the Racketeer Influenced and Corrupt Organizations (RICO) statute, 18 U.S.C. Sec. 1962(c). The alleged pattern of racketeering activity consisted of nine predicate acts: accepting a bribe in violation of former 18 U.S.C. Sec. 201(c) (now Sec. 201(b)) and accepting eight illegal gratuities in violation of current 18 U.S.C. Sec. 201(c) and its predecessor, 18 U.S.C. Sec. 201(g). Count Two charged Bustamante with conspiring to violate the RICO statute. In Counts Three through Ten, the same eight acts of accepting illegal gratuities were charged as individual violations of the gratuity statutes.

After a two-week trial, the jury found Bustamante guilty of Counts One and Four and acquitted him of the other charges. To support the RICO conviction, the jury found that Bustamante had committed Predicate Act One (accepting the bribe) and Predicate Act Three (accepting the same illegal gratuity charged in Count Four).

Using the United States Sentencing Guidelines, the district court sentenced Bustamante to concurrent terms of incarceration of 42 months on Count One and 24 months on Count Four, and concurrent terms of supervised release of two years on Count One and one year on Count Four. Bustamante was also ordered to pay total fines of $55,000 and a $100 special assessment.

Bustamante challenges his convictions and sentence on numerous grounds which we consider below.

II. Sufficiency of the Evidence

Bustamante contends that the government failed to produce sufficient evidence to support his conviction on either the bribery charge (Predicate Act One) or the illegal gratuity charge (Predicate Act Three/Count Four). As Bustamante correctly points out, his RICO conviction is based on only two predicate acts, the minimum number required to establish a pattern of racketeering activity. 18 U.S.C. Sec. 1961(5). If the evidence is insufficient to support the jury's finding that Bustamante committed either predicate act, his RICO conviction must be overturned.

This Court will uphold a conviction as long as a rational trier of fact could have found that the evidence established the elements of the crime beyond a reasonable doubt. United States v. Pofahl, 990 F.2d 1456, 1467 (5th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 266, 126 L.Ed.2d 218 (1993). The jury is free to choose among reasonable constructs of the evidence, which need not exclude every reasonable hypothesis of innocence. United States v. Maseratti, 1 F.3d 330, 337 (5th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1096, 127 L.Ed.2d 409 (1994). We view all inferences from the evidence in the light most favorable to the jury verdict. United States v. Basey, 816 F.2d 980, 1001 (5th Cir.1987). With these ground rules in mind, we turn to the particular facts and proof of each predicate act.

A. The Bribe

As Predicate Act One, the indictment alleged that in February 1986, Bustamante accepted a $35,000 bribe in exchange for using his official influence on behalf of Falcon Food Services and Management, Inc. (Falcon Foods). Since 1983, Falcon Foods had held the food service contract for Lackland Air Force Base (Lackland) in San Antonio, Texas. This contract was set to expire in 1986, when the Air Force planned to conduct a competitive bidding process to award a new multi-million dollar contract. Hoping to win the renewed contract, Falcon Foods enlisted Bustamante's aid.

In late 1985, Bustamante invited Brigadier General Richard Gillis to lunch at a private club in San Antonio. At that time, General Gillis was in charge of the San Antonio Contracting Center, which handled all procurement for military bases in the region, including Lackland. At trial, General Gillis testified that he believed he would be having lunch only with Bustamante and did not expect to discuss the Lackland contract.

When General Gillis arrived at the club, Bustamante introduced him to Douglas Jaffe, Jr., owner of Falcon Foods, Evaristo "Eddie" Garcia, president of Falcon Foods, and Morris Jaffe, Douglas Jaffe's father. During lunch, Douglas Jaffe (Jaffe) persistently tried to persuade General Gillis that Falcon Foods was doing a great job at Lackland and should have its contract renewed. Prohibited by regulations from discussing a contract that was open to bidding, General Gillis became increasingly uncomfortable with Jaffe's lobbying effort. When his repeated attempts to change the subject were unsuccessful, General Gillis left the club.

In January of 1986, a $223,000 promissory note bearing Bustamante and his wife's signatures came due. By mid-February, the Bustamantes had paid (or made arrangements to pay) all but $35,000 of the amount owed. On February 15, although he had not yet received the remaining $35,000 from any source, Bustamante wrote a check that completely satisfied the promissory note.

Three days later, Bustamante received a check for $35,000 from Garcia, which he deposited into his bank account. This check bore the handwritten notation "sale of note." This notation allegedly referred to a $35,000 second lien note that Bustamante held on a former home. Bustamante claimed that he sold this second lien note to Garcia to raise the money to pay off the balance of the $223,000 promissory note. However, no other written documentation of the alleged sale was produced at trial. Additionally, though it had a face value of $35,000, in February 1986 the second lien note's present value was only $22,000.

At the time that he wrote the check to Bustamante, Garcia only had $493.42 in his checking account; within a few days, Garcia's account had overdrawn by more than $34,000. Douglas Jaffe wrote Garcia a $35,000 check from Jaffe's personal account, which Garcia deposited on February 24.

At some point in February, Bustamante also applied for a $35,000 loan from San Antonio Savings Association (SASA). On February 25, SASA approved the loan. Bustamante took no prompt action on the loan.

On March 4, Bustamante placed a telephone call to Isodoro Leos, the officer assigned to handle the Lackland contract, and left a message complaining about the fact that the Air Force had delayed bidding on the Lackland contract. Returning the call, Leos informed Bustamante's secretary that the Congressman should make his future inquiries in writing. ¹

The next day, Bustamante closed on the SASA loan and executed a $35,000 promissory note. Bustamante secured the loan with the same second lien note he claimed to have sold to Garcia weeks earlier. On March 14, SASA issued a $35,000 cashier's check to Bustamante, representing the principal of the loan. The back of the check showed that Bustamante endorsed both his and his wife's names. The check also bore a typewritten notation stating "Deposit Only to the HSB Construction Inc. Account" and listing an account number. HSB Construction belonged to Douglas Jaffe. Unlike most of Jaffe's companies, however, HSB Construction was not a subsidiary of Jaffe's corporate umbrella, the Jaffe Group, Inc.

On March 18, the Air Force opened the sealed bids for the Lackland Contract. Falcon Foods had submitted the highest of seven bids. Following standard procedure, the Air Force began to work its way up from the bottom of the list, looking for the lowest bidder that was also "responsive and responsible," factors having to do with a contractor's ability to carry through on its promised performance. After disqualifying the two lowest bidders, the Air Force found itself running out of time to hire a new contractor before the existing Falcon Foods contract expired on April 30.

To ease the time crunch, on April 17 the Air Force attempted to exercise its contractual option to temporarily extend its existing contract. Unfortunately for the Air Force, the notification deadline had expired two days earlier. No longer bound by the contract, Falcon Foods responded with a counter-offer that was $150,000 more per month than it had previously charged. The Air Force rejected the counter-offer. Afraid that it would not find a qualified bidder by April 30, the Air Force decided to place the new contract through a faster minority set-aside program operated by the Small Business Administration. In this manner, the Air Force awarded the Lackland contract to Aleman Food Service (Aleman Foods). Aleman Foods had been the fourth lowest bidder.

On April 24, the day of the award to Aleman, Leos received a call from Bustamante, who insisted that Leos explain why the original bidding process had been scuttled. Dissatisfied with Leos, Bustamante next berated Leos' boss, the deputy director for contracting. Still unplacated, Bustamante telephoned General Gillis and expressed his anger that Falcon Foods had not been awarded the Lackland contract. Bustamante threatened General Gillis that he had "better turn this around"...