U.S. v. Rivera-Hernandez

• Decision Date: 03 August 2007
• Docket Number: No. 06-1355.,06-1355.
• Citation: 497 F.3d 71
• Parties: UNITED STATES of America, Appellee, v. Miguel RIVERA-HERNÁNDEZ, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

497 F.3d 71

UNITED STATES of America, Appellee, v. Miguel RIVERA-HERNÁNDEZ, Defendant, Appellant.

No. 06-1355.

United States Court of Appeals, First Circuit.

Heard April 4, 2007.

Decided August 3, 2007.

José R. Gaztambide, with whom Lizabel M. Negrón were on brief, for appellant.

Nelson J. Pérez-Sosa, Assistant U.S. Attorney, Chief, Appellate Division, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, was on brief, for appellee.

Before TORRUELLA, Circuit Judge, SELYA, Senior Circuit Judge, and TASHIMA,^* Senior Circuit Judge.

TORRUELLA, Circuit Judge.

On May 12, 2003, Miguel Rivera-Hernández, the Puerto Rico Administrator for the Administración de Instituciones Juveniles ("AIJ") from 1993 until May 1999, was indicted on charges of extortion and money laundering. A jury acquitted him of the extortion charge but convicted him of money laundering. After the jury rendered its verdict, Rivera-Hernández moved to set it aside, arguing that the Government had not submitted sufficient evidence to support the money-laundering conviction. The district court denied this motion. On appeal, Rivera-Hernández attacks his conviction on several grounds. After careful consideration, we affirm.

I. Facts

We relay the facts in the light most favorable to the jury's verdict. United States v. Castellini, 392 F.3d 35, 39 (1st Cir.2004).

During Rivera-Hernández's tenure as Administrator, the AIJ published a Request for Proposal ("RFP") for a contract to build a juvenile penal institution in Puerto Rico. Correctional Services Corporation ("CSC"), a Florida-based corporation specializing in the contract-bidding process, submitted its proposal for the project at a site in Salinas, Puerto Rico. In November 1997, AIJ awarded CSC the project and on December 20, 1991, the parties entered into a contract to design, develop, and build a juvenile correctional facility in Salinas, Puerto Rico.

In the fall of 1997, Rivera-Hernández asked Henoc Dávila, a contractor, to recommend a subcontractor for the Salinas project. Dávila recommended José Cobián, a friend who owned a general contracting company. At Rivera-Hernández's request, Dávila contacted Cobián by telephone to schedule a lunch meeting for Rivera-Hernández, Dávila, and Cobián to discuss the project. Within two to three weeks, Rivera-Hernández, Cobián, and Dávila met at El Hipopótamo, a restaurant in Río Piedras.

According to Cobián, Rivera-Hernández arrived at the restaurant with an "air of power," escorted by two or three men. During the meeting, Rivera-Hernández explained that CSC was planning to build a prison in Salinas and that the company needed a contractor for the project. The Government introduced testimony that Rivera-Hernández indicated that the contract was not subject to the bidding process, and that when Cobián expressed interest in the job, Rivera-Hernández responded by saying, "Well, it's going to cost you." Having paid bribes in order to secure contracts in the past, Cobián testified that he understood this to mean that he would have to pay Rivera-Hernández money to secure the contract. He further testified that had he not paid Rivera-Hernández nearly $100,000, he would have been denied the opportunity to work on the Salinas project.

Although Cobián agreed to pay Rivera-Hernández, he explained that his business did not operate in cash. Cobián testified that in response, Rivera-Hernández said, "Don't worry, I'll take care of that," and that at a later meeting, Rivera-Hernández asked Cobián to pay him $100,000 for the contract.

According to Cobián, Rivera-Hernández devised a scheme whereby payment would be made through Multi-Equipment Repairs & Services ("Multi-Equipment"), a company owned by Rivera-Hernández's father, Miguel Rivera-Díaz. Under the scheme, Multi-Equipment would submit fraudulent invoices to Ingenieros & Proyectistas, a company owned by Fernando Vigil, Cobián's friend. Because Vigil owed Cobián money, he agreed to pay the invoices to repay that debt.

The Government introduced evidence that Vigil made the payments without ever meeting Rivera-Hernández or his father, Rivera-Díaz, that Vigil never asked what the invoices were for, and that none of Vigil's equipment was ever repaired by Multi-Equipment. At trial, Rivera-Díaz admitted that his company never repaired equipment belonging to Ingenieros & Proyectistas and that he did not know Vigil. Rivera-Díaz also testified that he prepared fake invoices because his son asked him to prepare them.

Rivera-Hernández and Cobián met again several times to exchange fraudulent invoices for payments. During one of their meetings, Cobián gave Rivera-Hernández a check for $39,900 prepared by Vigil from Ingenieros & Proyectistas, dated December 26, 1997. That check was purportedly intended to cover two Multi-Equipment invoices for equipment repair work, one dated August 21, 1997 for $18,995, and another dated September 2, 1997 for $20,995. The check was deposited in Multi-Equipment's bank account at RG Premier Bank. After this first payment, CSC and Cobián's construction company, Cobián, Agustín & Ramos, entered into a contract to build the Salinas juvenile institution.

In March 1998, three additional invoices totaling $59,820 were submitted to Ingenieros & Proyectistas, one for $25,795, another for $24,825, and the last for $9,200. As before, Ingenieros & Proyectistas issued a check for $59,820 to Multi-Equipment in payment for the fraudulent invoices. Combined with the first payment, the total amount paid by Cobián to Rivera-Hernández, through Vigil, was approximately $100,000. The Government introduced evidence that Rivera-Díaz, Rivera-Hernández's father, gradually transferred the monies to Rivera-Hernández, which were used to purchase a luxury vehicle, make a down payment on a new house, and make home improvements.

The Government also introduced evidence that Rivera-Hernández never reported any income from the near-$100,000 received from Cobián, or made mention of any business arrangements with Cobián in the 1997-98 financial report he was required to submit to the AIJ ethics committee. Rivera-Hernández also ignored a request by the ethics committee for more information about his finances, including the provenance of the money he used for the down payment on his house.

All told, Cobián's company received three contracts with CSC, totaling approximately $9 million. After working on the Salinas project, Cobián worked on various remodeling projects in Bayamón, which he admitted to having obtained after bribing CSC's representative, Ramón Horta.¹

On May 12, 2003, a grand jury returned a two-count indictment against Rivera-Hernández: Count One charged that Rivera-Hernández unlawfully obtained by extortion, under color of official right, approximately $100,000 from Cobián, in violation of the Hobbs Act, 18 U.S.C. § 1951; Count Two charged Rivera-Hernández with money laundering, in violation of 18 U.S.C. § 1957.

The case went to trial. After nearly two days of deliberations, the jury returned a not guilty verdict on the extortion count and a guilty verdict on the money-laundering count.

After the verdict was announced, Rivera-Hernández moved orally for judgment notwithstanding the verdict, arguing that the jury's verdict was inconsistent. The court requested the motion be made in writing, and on September 22, 2005, Rivera-Hernández filed a motion to set aside the jury's verdict on the money-laundering charge. The Government filed an opposition to the motion on September 17, 2005, and on October 19, 2005, the district court denied Rivera-Hernández's motion. On January 24, 2006, Rivera-Hernández was fined $25,000 and sentenced to a 37-month term of imprisonment, followed by a three-year term of supervised release.

II. Discussion

Rivera-Hernández appeals his conviction on four grounds. First, he argues that the Government failed to present sufficient evidence to support the money-laundering conviction. Second, Rivera-Hernández contends that the Government engaged in at least three instances of prosecutorial misconduct that prejudiced him at trial. Third, he argues that the district court erroneously excluded testimony that would have justified his use of fraudulent invoices. And finally, Rivera-Hernández argues that the district court erred in failing to instruct the jury on specific elements of money laundering for a second time. We discuss each of these claims in turn.

A. Sufficiency of the Evidence

Rivera-Hernández first challenges the sufficiency of the evidence supporting his conviction of money laundering. "On challenges to sufficiency of the evidence, we take all the evidence and inferences in the light most favorable to the verdict and ask whether a rational factfinder could find, beyond a reasonable doubt, that the prosecution successfully proved the essential elements of the crime." Castellini, 392 F.3d at 44 (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).

To sustain the money-laundering conviction under 18 U.S.C. § 1957(a), the Government must show that Rivera-Hernández (1) knowingly engaged or attempted to engage in a monetary transaction (2) in criminally derived property (3) of a value greater than $10,000, and (4) derived from specified unlawful activity. However, "[i]n a prosecution for an offense under this section, the Government is not required to prove the defendant knew that the offense from which the criminally derived property was derived was specified unlawful activity." Id. § 1957(c).

Rivera-Hernández argues that the Government failed to prove that the laundered money "derived from specified unlawful activity," in this case, extortion under the color of official right. Rivera-Hernández contends that the only evidence introduced in support of extortion was the "inconsistent[ ], inherent[ly] unrealiable[ ], and insufficien[t]" testimony of two cooperating witnesses. Appellant's Br. 19. Rivera-Hernández points out that the jury...