U.S.A. v. Leon-Delfis

• Decision Date: 01 November 1999
• Docket Number: LEON-DELFI,No. 99-1021,D,SANTIAGO-SANCHE,N,99-1021
• Parties: (1st Cir. 2000) UNITED STATES, Appellee, v. HECTORefendant, Appellant. UNITED STATES, Appellee, v. ELADIOefendant, Appellant. o. 99-1299. Heard
• Court: U.S. Court of Appeals — First Circuit

Page 103

203 F.3d 103 (1st Cir. 2000)

UNITED STATES, Appellee, v. HECTOR LEON-DELFIS, Defendant, Appellant.

UNITED STATES, Appellee, v. ELADIO SANTIAGO-SANCHEZ, Defendant, Appellant.

No. 99-1021, No. 99-1299.

United States Court of Appeals for the First Circuit

Heard Nov. 1, 1999.

Decided February 16, 2000.

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. Juan M. Perez-Gimenez, U.S. District Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Eric M. Quetglas-Jordan, by appointment of the Court, for appellant Hector Leon-Delfis.

Joaquin Monserrate-Matienzo, with whom Joaquin Monserrate-Penagarcano, was on brief, for appellant Eladio Santiago-Sanchez.

Aixa Maldonado-Quinones and Michelle Morales, Assistant United States Attorneys, with whom Guillermo Gil, United States Attorney, and Jorge E. Vega-Pacheco, Chief, Criminal Division, were on brief, for appellee.

Before Torruella, Chief Judge, Wallace,^* Senior Circuit Judge, and Lynch, Circuit Judge.

WALLACE, Senior Circuit Judge.

Hector Leon-Delfis and Eladio Santiago-Sanchez were tried together for their participation in a conspiracy to embezzle money while they were employees of the United States Department of Veterans Affairs in Puerto Rico. Leon-Delfis was convicted of one count of conspiracy to embezzle monies of the United States in violation of 18 U.S.C. §§ 371, 641, 654. Santiago-Sanchez was convicted of (1) conspiracy to embezzle monies of the United States; (2) embezzlement of public money; (3) embezzlement of money by an employee of the United States; and (4) money laundering, in violation of 18 U.S.C. §§ 371, 641, 654, 1957. The district court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have jurisdiction over these timely appeals pursuant to 28 U.S.C. § 1291. We reverse Leon-Delfis' conviction, but affirm Santiago-Sanchez's conviction.

I.

The Department of Veterans Affairs (Department) reimburses veterans for certain medical expenses. To be reimbursed, a veteran submits a claim with the help of a Department benefits counselor. A claim examiner inspects the claim to determine accuracy and eligibility, then reviews the claim with a senior claim examiner. After the senior claim examiner approves the claim, the veteran is paid. The entire process normally takes 48 days to complete.

The government alleged in its indictment that Department employees in Puerto Rico encouraged veterans to submit inflated medical expense claims fraudulently which they processed more quickly than normal in return for a fifty-percent kickback. It stated that the government lost more than $1.3 million through this embezzlement. The government indicted six people for their involvement, including Leon-Delfis, a benefits counselor, and Santiago-Sanchez, a claim examiner.

On appeal, Leon-Delfis argues that the district court erred in (1) not suppressing evidence of a confession he gave to Federal Bureau of Investigation (FBI) agents following a polygraph test and (2) not giving the jury a multiple conspiracy instruction. Leon-Delfis, who filed his appellate brief first, attempted to adopt by reference those arguments that Santiago-Sanchez would raise later in his brief. Even assuming he can do so, Santiago-Sanchez raised no new issues that apply to Leon-Delfis.

Santiago-Sanchez, in his brief, attempted to adopt by reference Leon-Delfis' argument regarding the jury instruction. See Fed. R. App. P. 28(i). Additionally, he argues the district court (1) made several evidentiary errors against him and (2) should not have sentenced him to pay restitution.

II.

Leon-Delfis contends that the district court should have granted his motion to suppress evidence of a confession he gave to FBI agents after he took a polygraph test because he did not waive his Sixth Amendment right to counsel for purposes of the post-polygraph questioning. In reviewing the denial of a motion to suppress, we review the district court's findings of fact for clear error and its conclusions of law and rulings on the constitutionality of the government's conduct de novo. See United States v. Beras, 183 F.3d 22, 25 (1st Cir. 1999).

A.

Leon-Delfis testified to the following events at the hearing on the motion to suppress. Shortly before trial began in June 1998, he and his attorney attempted to hold a meeting with the Assistant United States Attorney prosecuting the case. The meeting was denied; however, Leon-Delfis was asked, and agreed, to submit to a polygraph test. He reported to FBI special agents for the test, but the appointment was rescheduled because he was not accompanied by counsel. On June 15, Leon-Delfis and his attorney arrived for the test. Special Agent Lopez asked Leon-Delfis to sign two waiver of rights forms in Spanish: a general Miranda waiver, and a specific waiver for polygraph questioning. A translation of the first form reads as follows:

INTERROGATORY; NOTIFICATION OF THE RIGHTS; YOUR RIGHTS

Before I make [sic] any questions you should understand what your rights are.

You have the right to keep silent.

Whatever you say can be used in the court against you.

You have the right to consult a lawyer so that he can instruct you before we make [sic] the questions and also you have the right that the lawyer be present during the interrogatory.

If you cannot pay for the expenses of a lawyer, one will be assigned to you before we begin the interrogatory, if you so wish.

If you decide to answer the questions now without the presence of a lawyer, still you have the right to deny to answer in any moment. You also have the right to interrupt at any moment until you have consulted a lawyer.

RESIGNATION OF THE RIGHTS

I have read this statement of my rights and I understand what they are. I am willing to make a statement and answer the questions. I do not want a lawyer to be present at this moment. I am conscious of what I do. They have not made promises to me and I have not been threatened, and they have not put any pressure on me.

A translation of the second form reads as follows:

CONSENT FOR INTERROGATORIES WITH THE USE OF POLYGRAPH

Before we make [sic] any question with the use of polygraph (liar [sic] detector) with respect to receipt of money from Veterans Administration clients you should have knowing [sic] of your rights

YOUR RIGHTS

You have the rights [sic] to deny to take an examination with the polygraph.

If you decide to take the examination with the polygraph, you have the right to deny to answer any question.

RESIGNATION OF RIGHTS AND CONSENT

I have read this statement about my rights and I understand my rights. I am willing of my own voluntary [sic] to be questioned using the polygraph during my interview. I understand and I know what to do. Nobody made me promises, threatened [sic] neither have used any pressure against me in order to obtain my consent for the used [sic] of the polygraph. I understand my consent for the used [sic] of the polygraph. . . .

Leon-Delfis testified that he understood that the first waiver applied to questions Agent Lopez would ask him before the actual polygraph test, and that the second waiver applied to yes-or-no questions asked during the polygraph test. He testified that he never consented to post-test questioning. Leon-Delfis stated that Agent Lopez told him the test would take two to two and one-half hours to complete and his attorney could not be present during the test. Leon-Delfis' attorney decided to return to his office, and he told Agent Lopez and Agent Narro, who would be observing the testing, that he was available by telephone. Additionally, he told Leon-Delfis to call him or return to his office immediately after the test was administered.

Leon-Delfis testified that Agent Lopez asked only eight questions, and the test took only 20 to 25 minutes. Leon-Delfis thought he was free to leave after the test. However, immediately after the test, while he was still attached to the polygraph, Agent Lopez asked him, "How do you think that you did?" Leon-Delfis responded, "Well, I think I did well because all I did was tell the truth." Agent Lopez responded, "Look, you flunked the test, so how about telling us the truth." Leon-Delfis remembered that Agent Lopez immediately began to question him, joined by Agent Narro shortly thereafter. He felt pressured: the agents told him the United States Attorney would "destroy you in Court in front of your family"; that he was a half-man; and that if he was going to cooperate, "it has to be between today or tomorrow," and if he delayed, they might press charges for other crimes. In an interview lasting over an hour that followed, Leon-Delfis confessed to his participation in the conspiracy.

Agent Lopez testified at the suppression hearing that a typical polygraph test consisted of pre-test questioning to determine suitability for testing and to build rapport between the examiner and the examinee; the test itself; and post-test questioning to present the results of the test and allow the examinee to explain the results if desired. However, when Agent Lopez was asked on cross-examination whether he informed Leon-Delfis and Leon-Delfis' attorney that post-test questioning might occur, he first answered, "I wasn't asked," and then, although not clear, he seemed to testify that he had not explained the post-test questioning procedure. He also acknowledged that post-test questioning was not mentioned in the waivers Leon-Delfis signed. When asked why he told Leon-Delfis that the test would take two to two and one-half hours to complete, when in fact the test took less than one-half hour, he answered "That was my estimate." He stated that FBI policy discouraged an attorney's presence during the test, but he denied prohibiting Leon-Delfis's attorney from attending. Agent Lopez said that after the test was finished, he merely said, "Mr. Leon, we have a problem. You are not being . . . completely honest," and that Leon-Delfis then "started...