U.S. v. Pagan-Santini

• Decision Date: 14 June 2006
• Docket Number: No. 03-2574.,03-2574.
• Citation: 451 F.3d 258
• Parties: UNITED STATES of America, Appellee, v. Rafael PAGÁN-SANTINI, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 258

451 F.3d 258

UNITED STATES of America, Appellee, v. Rafael PAGÁN-SANTINI, Defendant, Appellant.

No. 03-2574.

United States Court of Appeals, First Circuit.

Heard March 6, 2006.

Decided June 14, 2006.

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Bruce J. McGiverin, for defendant, appellant.

Armando O. Bonilla, Public Integrity Section, Criminal Division, Department of Justice, with whom Noel L. Hillman, Chief, Public Integrity Section, Criminal Division, Department of Justice, and Mary K. Butler, Public Integrity Section, Criminal Division, Department of Justice, were on brief for appellee.

Before BOUDIN, Chief Judge, TORRUELLA and SELYA, Circuit Judges.

BOUDIN, Chief Judge.

Rafael Pagán Santini ("Pagán") was indicted in the district court in Puerto Rico for obstruction of justice, 18 U.S.C. § 1503(a) (2000), perjury, id. § 1623(a), subornation of perjury, id. § 1622, and conspiracy to do the above, id. § 371. After a lengthy jury trial in May and June 2003, he was found guilty on all counts and sentenced to 18 months in prison. Now before us is an appeal from that conviction.

Pagán's own trial followed another trial that is background to the present case. In the late 1990s, while Pagán was serving as executive director of the Puerto Rico Community Network for Clinical Research on AIDS, authorities were investigating the apparent embezzlement of over $1 million in federal funds from another organization, the San Juan AIDS Institute.

The prime target of the investigation was Yamil Kourí-Pérez, a doctor who at the time worked for the Harvard Institute for International Development. The Harvard entity had a contract with a company called Advanced Community Health Services ("ACHS"), which in turn had been hired to run the San Juan AIDS Institute from the late 1980s until 1994. In 1997, a federal grand jury indicted Kourí and others in connection with the suspected embezzlement.

After learning of the investigation, Kourí and his co-conspirators hatched a scheme to draft and back-date fraudulent contracts to demonstrate (falsely) that the allegedly embezzled funds had been legitimately paid—in particular, to a Mexican entity called Fundacion Panamericana in return for AIDS educational materials. According to the government, several people who were not originally involved in the embezzlement scheme, including Pagán, helped Kourí in his efforts to conceal his crime. Kourí's attempted coverup was thwarted when, in mid-trial, a key defense witness, Gloria Ornelas, suddenly refused to continue her testimony and, to avoid prosecution, returned to court to testify against Kourí. Kourí was convicted and began cooperating with the government.

At Pagán's trial, Kourí and others testified as to Pagán's involvement in the conspiracy to obstruct Kourí's trial and to elicit perjured testimony. If believed, the testimony allowed a jury to conclude that Kourí had enlisted Pagán in a scheme to secure Kourí's acquittal; that Pagán had received financial and other benefits in return; and that Pagán knowingly assisted in the fabrication of cover stories to refute embezzlement charges against Kourí, testified falsely in support of such cover stories at Kourí's trial, and sought to persuade or assist other witnesses to testify falsely in defense of Kourí.

Specifically, the government offered evidence that Pagán had solicited Ornelas to resume her false testimony in Kourí's trial after she faltered. When she refused, Pagán then had assisted in preparing a replacement witness—Hector Ramírez Lugo ("Ramírez"), a Mexican doctor, who testified falsely at Kourí's trial that he had worked for Ornelas at Panamericana and that Panamericana had done legitimate AIDS-related work for ACHS in return for the funds that the government claimed Kourí had misappropriated.

On Pagán's appeal from his own conviction, he does not contest the sufficiency of the evidence against him, save on one of the four counts (his conviction for committing perjury). Most of Pagán's claims of trial error concern evidentiary rulings and instructions. He also requested resentencing, although he withdrew that request as moot in his reply brief.¹ The standard of review varies depending upon the type of error alleged.

Pagán's first claim is that the district judge erred in refusing to suppress admissions made by Pagán on February 13, 2002, at a meeting with FBI agents and federal prosecutors in Puerto Rico. For this meeting, Pagán traveled from Mexico to San Juan after being assured, in a letter by prosecutors to Pagán's father, that "we have not sought or obtained a criminal indictment against [Pagán], and we will not arrest him next week if he travels to Puerto Rico to meet with us."

During the meeting, Pagán made statements that were used against him during the trial on all four counts—statements especially damaging to his defense against the perjury charge. For example, according to FBI agent testimony, Pagán admitted that in April 1999 he had seen certain contracts (which turned out to have been back-dated) between the San Juan AIDS Institute and Panamericana (contrary to his May 1999 testimony at the Kourí trial that he had never before seen the contracts); admitted that certain portions of his testimony at Kourí's trial had been false; and admitted that he testified in favor of Kourí because he believed he would benefit from his association with Kourí.

The district judge refused to suppress the admissions on any of the grounds asserted by Pagán, which were primarily that the admissions were secured by false assurances by the government, without a Miranda warning, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), by coercion and (finally) by interference with Pagán's right to counsel. We review de novo the district court's legal conclusions on the motion to suppress and its factual findings for clear error. See, e.g., United States v. Leon-Delfis, 203 F.3d 103, 107 (1st Cir. 2000).

There were no false assurances. Pagán was not arrested during his trip and, according to uncontradicted government witnesses at the suppression hearing, at that time the government had not yet decided whether to seek to indict Pagán. That the government might have been building a case against Pagán should have been obvious to him—that is surely why he asked about possible arrest—but, obvious or not, the government under these circumstances had no affirmative obligation to warn him that he was a possible target. See, e.g., United States v. Okwumabua, 828 F.2d 950, 953 (2d Cir.1987), cert. denied, 484 U.S. 1063, 108 S.Ct. 1022, 98 L.Ed.2d 987 (1988).

As for Pagán's Miranda claim, no Miranda warning was required because Pagán was not "in custody." Miranda, 384 U.S. at 477-78, 86 S.Ct. 1602; McCown v. Callahan, 726 F.2d 1, 5 (1st Cir.), cert. denied, 469 U.S. 839, 105 S.Ct. 139, 83 L.Ed.2d 78 (1984). The test is whether a reasonable person would believe he is "in custody" under the circumstances. United States v. Fernandez Ventura, 85 F.3d 708, 711 (1st Cir.1996). Although the interview with Pagán lasted nine hours, he rejected breaks or a deferral of some questioning to a second day (because he wanted to complete the interview that day).

The district court did not believe Pagán's claims that he had been barred from leaving the meeting or verbally abused, permissibly crediting FBI testimony to the contrary. That Pagán was not allowed to wander through the FBI premises except under escort is no surprise; it is unlikely that a federal judge would fare any better. Finally, even if Pagán was at the time of the interview a target of the government investigation—a point the government witnesses disputed—that alone would not entitle him to Miranda warnings. See United States v. Quinn, 815 F.2d 153, 160 (1st Cir.1987).

Pagán also claimed that the government violated his Sixth Amendment right to counsel. But even if we by-pass Davis v. United States, 512 U.S. 452, 456-57, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994) (right attaches upon "the initiation of adversary criminal proceedings"), the trial court supportably found that Pagán never asked to confer with or have present any lawyer. Pagán argues that his father (an attorney) asked to speak with him while he was being interviewed; what occurred was disputed but it is sufficient that (as the district court found) Pagán himself made no request for counsel. Moran v. Burbine, 475 U.S. 412, 433 n. 4, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986).

Somewhat more troubling is Pagán's next claim of error. Over his objection, the court permitted the prosecutor to offer testimony at trial that during the preparation for the Kourí trial Pagán had gotten drunk and on multiple occasions sexually harassed Ramírez, whom Pagán was preparing as a witness for Kourí. The evidence included relatively terse testimony by Ramírez that Pagán had sought to kiss him, had sought to touch him and had masturbated in front of him.

Pagán first argues, as he did in the district court, that the testimony was irrelevant, save solely for the inference that Pagán had a bad character—a purpose for which the evidence would not be allowed. Fed.R.Evid. 404(b). But the testimony was relevant: it explained certain interactions between Pagán, Ramírez and Kourí during the period in which Pagán was seeking to coach Ramírez and thereby made more plausible the government's depiction of Pagán's role and his importance to Kourí's scheme.

Merely as an example, the evidence showed that Ramírez, who was initially lodged with Pagán, left after the harassment and had to be persuaded by Kourí to stay elsewhere and to confer with Pagán at a neutral location. Thus, the harassment explained Ramírez' decision to move out while his continued meetings with Pagán elsewhere, brokered by Kourí, showed how important to the conspiracy was Pagán's continued involvement as the best available coach with the detailed knowledge to get Ramírez prepared.

Although the...