U.S. v. Misla-Aldarondo, 03-2073.

• Decision Date: 02 March 2007
• Docket Number: No. 03-2073.,No. 04-1424.,03-2073.,04-1424.
• Citation: 478 F.3d 52
• Parties: UNITED STATES of America, Appellee, v. Edison MISLA-ALDARONDO, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

478 F.3d 52

UNITED STATES of America, Appellee, v. Edison MISLA-ALDARONDO, Defendant, Appellant.

No. 03-2073.

No. 04-1424.

United States Court of Appeals, First Circuit.

Heard November 1, 2006.

Decided March 2, 2007.

Laura Maldonado Rodriguez for appellant.

Thomas M. Gannon, Attorney, Appellate Section, Civil Division, U.S. Department of Justice, with whom Rosa E. Rodriguez-Velez, United States Attorney, and Nelson Perez-Sosa, Assistant United States Attorney, were on brief, for appellee.

Before HOWARD, Circuit Judge, STAHL and BALDOCK,^* Senior Circuit Judges.

STAHL, Senior Circuit Judge.

Edison Misla Aldorando ("Misla"), the former Speaker of the Puerto Rico House of Representatives, was convicted in U.S. District Court for the District of Puerto Rico of extortion, money laundering, and witness tampering. The charges stemmed from a scheme by a group bidding to purchase a state hospital being privatized. The group sought, and paid for, Misla's help in securing the regulatory approval needed for the purchase. A jury convicted Misla and he was sentenced to 71 months' imprisonment and three years' supervised release, fined $12,500, and ordered to forfeit $147,400. Misla now appeals his conviction and sentence, and the denial of his motion for a new trial. We affirm.

I. Factual Background

In the late 1990s, the Puerto Rico Department of Health (PRDH) and the Government Development Bank (GDB) began privatizing the island's state-owned hospitals. See P.R. Laws Ann. tit. 24, §§ 3301-3325 (repealed 2003). Investors were identified through a competitive bidding process, with private entities with an existing hospital management contract being given an option to purchase that particular hospital without participating in any competitive bidding process.

The Dr. Alejandro Otero Lopez Hospital (HAOL) in Manat, Puerto Rico, was a public hospital managed by Carribean Hospital Corporation (CHC). Co-defendants Dr. Jos De Jess Toro ("De Jess") and Dr. Alvin Ramirez Ortiz ("Ramírez") owned Carribean Anesthesia Services, Inc. (CAS), HAOL's anesthesiology provider. CAS wished to purchase HAOL, and to circumvent the bidding process it needed first to acquire CHC's management contract.

De Jesús and Ramírez hired co-defendant José Ivan Ramos Cubano ("Ramos") to assist with the purchase of the CHC contract and, ultimately, HAOL in exchange for consulting fees of $15,000 per month and a partnership in their company. The first step, the purchase of the CHC contract, required the approval of PRDH. Ramos arranged for a meeting with co-defendant José Gerardo Cruz Arroyo ("Cruz"), the head of PRDH's legal division. Ultimately, Cruz would take a bribe in order to allow CAS to purchase CHC's contract to manage HAOL.

The next step was obtaining GDB's approval for the purchase of HAOL outright. Ramos testified that he solicited the assistance of Misla because Misla had a close relationship with Marcos Rodriguez Ema ("Rodríguez"), GDB's president. Misla agreed to help secure GDB's approval in exchange for payment. Ramos also testified that Misla, in furtherance of the agreement, arranged meetings between CAS and Rodríguez that CAS could not have otherwise obtained. Ramos's testimony was corroborated by that of Ramírez.

In October 1997, an independent law firm engaged by GDB recommended that CAS be deemed ineligible to purchase HAOL because CAS owed an outstanding debt to PRDH. Regardless, Rodríguez ordered the privatization committee to accept CAS's offer of $14 million for HAOL and to arrange for CAS to repay the outstanding debt at a future date. The sale of HAOL to CAS was completed on September 17, 1998.

Between August and October 1998, Ramos transferred approximately $147,400 from HAOL — now managed by CAS — to Misla by cashing checks and furnishing the proceeds directly to Misla or his associates.

In May 2001, Puerto Rico's Justice Department began investigating the transaction and eventually Misla. In October 2001, Ramos agreed to cooperate with the government and record his conversations with Misla. While being recorded, Misla suggested, among other things, that Ramos leave the country for a while; that they come up with a cover story for the payments; and that he, Misla, would work to stall or stop the investigation.

On October 25, 2001, Misla was indicted for extortion, money laundering, and witness tampering. Following a jury trial, Misla was convicted on five of the six charges.¹ On June 20, 2003, the district court sentenced Misla to concurrent terms of 71 months' imprisonment for each conviction and three years' supervised release. The court also ordered him to forfeit the $147,400 paid to him by Ramos.

Additional facts relevant to the various issues on appeal are recited below.

II. Discussion

A. Pretrial Motions

1. Background

The indictment, as well as unrelated charges against Misla for sexual assault on a minor, generated considerable pretrial publicity. The publicity included posters put up throughout San Juan bearing Misla's photograph and the caption, "Stealing Prohibited: the Government does not admit competitors."² Alleging that this pretrial publicity was prejudicial, Misla moved for a change of venue to the Virgin Islands and, in the alternative, a 90-day continuance to allow for any pretrial publicity to subside. Misla also requested expanded jury voir dire.

The district court denied all motions, but conducted individualized voir dire over a five-day period. Misla submitted a list of 84 proposed voir dire questions to the court. The court selected several of Misla's proposed questions, including questions concerning pretrial publicity, the sexual assault charges pending against Misla, and whether the jurors believed Misla to be a corrupt politician. During voir dire, Misla requested five additional peremptory challenges. He renewed his request at the close of voir dire. Both motions were denied.

Of the 84 jurors interviewed, 13 were excused for possible bias. After the completion of voir dire, Misla challenged an additional eight jurors for cause. The district court denied the challenges. Ultimately, the final petit jury contained only one of the jurors that had been challenged by Misla.³

We review a district court's decisions on motions for change of venue, continuance, expanded voir dire, and additional peremptory challenges for abuse of discretion. See United States v. Brandon, 17 F.3d 409, 441 (1st Cir.1994) (change of venue); United States v. Rodríguez-Marrero, 390 F.3d 1, 21-22 (1st Cir.2004) (continuance); United States v. Anagnos, 853 F.2d 1, 5 (1st Cir.1988) (expanded voir dire); United States v. Marrero-Ortiz, 160 F.3d 768, 776 (1st Cir.1998) (peremptory challenges) (citing United States v. Cox, 752 F.2d 741, 748 (1st Cir.1985)).

2. Change of Venue

A change of venue is proper if the court determines that there exists "so great a prejudice against the defendant . . . in the transferring district that the defendant cannot obtain a fair and impartial trial there." Fed.R.Crim.P. 21(a). In making this determination, we ask 1) whether the degree of inflammatory publicity had so saturated the community such as to make it "virtually impossible to obtain an impartial jury," United States v. McNeill, 728 F.2d 5, 9 (1st Cir.1984), or 2) if prejudice cannot be presumed, whether nonetheless the empaneled jury was actually prejudiced against the defendant. See United States v. Rodríguez-Cardona, 924 F.2d 1148, 1158 (1st Cir.1991); United States v. Angiulo, 897 F.2d 1169, 1181 (1st Cir.1990). Misla does not argue actual juror prejudice on appeal, and so we review only for whether prejudice should have been presumed from the extent of the pretrial publicity.

A presumption of prejudice is reserved for those extreme cases where publicity is "both extensive and sensational in nature." Id. Merely a high volume of media coverage is not sufficient to presume prejudice, if that coverage is factual, as opposed to inflammatory. Id.; see Brandon, 17 F.3d at 441. A court may judge the partiality of the community by looking to the "length to which the trial court must go in order to select jurors who appear to be impartial." Murphy v. Florida, 421 U.S. 794, 802-03, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975). In general, "[i]t is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court." Dobbert v. Florida, 432 U.S. 282, 302, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977) (quoting Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961)). But when a large percentage of the venire is disqualified, this evidence of prejudice in the community may lead a court to "properly question the remaining jurors' avowals of impartiality." Angiulo, 897 F.2d at 1181-82 (citing Murphy, 421 U.S. at 802-03, 95 S.Ct. 2031).

The publicity surrounding this case was undoubtedly extensive. Misla had been the Speaker of the Puerto Rico House of Representatives and was simultaneously being investigated on charges of sexual assault on a minor. To address this, the district court conducted an extensive and individualized voir dire, taking 15 to 25 minutes with each juror and asking each upwards of 50 questions.

The questions were substantially the same for all jurors and covered subjects such as: the jurors' own beliefs in Misla's guilt or innocence; which newspapers they read, radio stations they listened to, and television stations they watched; whether they had read particular newspaper articles or columns; whether they had listened to the comments of the Secretary of Justice; whether they had participated in, or listened to the results of, any radio polls; whether they had discussions with others about the case; whether they were members of a political party; and whether they had views about the corruption of politicians in general, and Misla and his party in particular. The district court further inquired into whether the jurors or any close friends or family...