U.S. v. Soto, 400

• Decision Date: 10 February 1995
• Docket Number: No. 400,D,400
• Parties: UNITED STATES of America, Appellee, v. Miguel SOTO and Luisa Cespedes, Defendants, Pedro Pena also known as Johnny, Defendant-Appellant. ocket 94-1021.
• Court: U.S. Court of Appeals — Second Circuit

Page 546

47 F.3d 546

UNITED STATES of America, Appellee, v. Miguel SOTO and Luisa Cespedes, Defendants, Pedro Pena also known as Johnny, Defendant-Appellant.

No. 400, Docket 94-1021.

United States Court of Appeals, Second Circuit.

Argued Nov. 16, 1994.

Decided Feb. 10, 1995.

S. Michael Weisberg, New York City, for defendant-appellant.

Lisa M. Fleischman, Asst. U.S. Atty. E.D.N.Y., Brooklyn, NY (Zachary Carter, U.S. Atty. and Peter A. Norling, Asst. U.S. Atty., on the brief) for appellee.

Before: OAKES, ALTIMARI, and WALKER, Circuit Judges.

ALTIMARI, Circuit Judge:

Defendant-appellant Pedro Pena appeals his conviction, after a jury trial (Johnson, J.), of conspiring to bribe, and bribery of, a United States Customs official in violation of 18 U.S.C. Secs. 371 and 201(b)(1)(C). Pena was Cespedes imported Dominican rum for sale in this country. Pena, a 42 year old salesman, worked for several grocery businesses in the years preceding the investigation. During a stint with Goya Foods he was named salesman of the year in two consecutive years. He later became a partner in another business that dealt with supermarket products. As a result of his job with Goya he met Cespedes and agreed to start a new venture with her. Cespedes's efforts to find a contact to help her illegally import rum triggered an undercover investigation.

sentenced to a term of imprisonment of 24 months, a supervised release term of three years, restitution in the amount of $73,700 and a $100 special assessment.

Customs Service special agent John Cianci pretended to be a corrupt Customs official. A private customs broker informed Soto that Cianci could help the conspirators get rum through Customs illegally. Before Cianci was contacted by the conspirators, the conspirators left a phone number at the office of the private customs broker whose information led to the investigation. An agent of the Customs Service called the phone number several times; each time a man named Johnny answered the telephone. Pena was also known as Johnny.

In April 1993, Cianci was contacted through a beeper whose telephone number had been given to Soto. When Cianci returned the phone call, Soto answered the phone. Cianci identified himself as "the Customs person." Soto offered Cianci $5,000 to stamp documents authorizing the release of Soto's Dominican rum. On April 29, 1993, Soto and Cespedes met the undercover agent at a Sheepshead Bay, Brooklyn diner. At that point, Cianci told them that he needed to think about the offer that Soto had reiterated. Two weeks later, Soto and Cespedes again met the agent at the diner. In exchange for $3,000 in cash, Cianci stamped their documents with an official Customs stamp.

On May 19, Pena and Cespedes met Cianci in the diner parking lot. The agent stamped the conspirators' documents in the parking lot and received $3,000 in a plain envelope. A surveillance photo shows Pena looking over Cianci's shoulder during the stamping. At that meeting, Cianci mentioned that he was worried about being out of the office for too long. During a subsequent phone conversation with Pena, the agent again confided that he was afraid that he would "get in trouble at work." Pena offered to "take care of that next time."

Less than a week later, Cianci met the conspirators in the same parking lot for the same purpose. During the meeting, Pena talked to the agent about the business. He commented that "[m]ost people ... they don't pay taxes, they don't pay anything you know." Pena also assured Cianci that he was "gonna make a lot of money." Cianci told Pena he wasn't the only "customer," to which Pena responded "I ... understand." Having completed two successful meetings, Soto and Cianci spoke by phone again. Soto instructed the agent to deal with Pena if Soto were unavailable.

Following the diner meetings, agents watched the conspirators drive to an intersection near Kennedy Airport. The driver of the conspirators' car signalled a white truck to follow the vehicle into the airport where it was loaded with cartons from the premises of the common carrier that was holding the rum. The truck then proceeded to a warehouse in Newark, New Jersey. On June 4, Pena, Cespedes and Soto were arrested at the Newark warehouse. Ultimately, Cianci received $15,000 and stamped documents permitting 1340 cases of rum to enter the country illegally. Almost $75,000 in taxes would have been owed on such a quantity.

During the investigation Cianci wore undistinguished dark blue uniform pants and a civilian windbreaker. Although Cianci wore a uniform shirt with Customs Service emblems on the shoulders, the shirt was concealed under the nondescript windbreaker at least some of the time. However, the agent also wore a gold Customs inspection badge above his left shirt pocket. The testimony at trial established that, at least on some occasions, Cianci left his jacket unzipped so that the badge was visible. Furthermore, the agent testified that he had to open his windbreaker in order to reach into his shirt pocket At trial, Pena claimed that he believed that the business was a legitimate concern that would sell grocery items like the ones he had experience with, as well as imported rum. Further, he had left the business only three weeks after the conspirators occupied the warehouse because of a fight with Cespedes. Pena insists that he did not know that Cianci was from the Customs Service. Testifying in Pena's defense, Soto swore that he had never told Pena who Cianci was. Pena allegedly believed the agent was a private customs broker who retrieved the rum from Customs for Cespedes.

to get the stamp he used on the documents.

Despite his falling out with Cespedes, Pena had continued to visit the Newark warehouse during the time in question. He explained at trial that he attended the parking lot meetings in his capacity as Cespedes's translator or driver, and that he did so because Soto had asked him to, and because he was anxious to maintain good relations with Cespedes since they were jointly indebted. He testified that he neither saw nor knew the content of the papers that Cespedes gave to the undercover agent. Pena admitted, though, that he suspected that the white envelopes given to Cianci contained money.

Pena was convicted of one count of conspiracy to bribe a public official and one count of bribery. Prior to sentencing, Pena's counsel addressed himself to his client's minor role in the conspiracy. Pointing out that Pena had not benefitted from the crime, his attorney informed the court that Pena had no money and was about to file for bankruptcy. The district court then sentenced Pena to two concurrent 24-month terms of imprisonment and two concurrent three-year terms of supervised release. In addition, the district court directed Pena to pay $73,700, the amount of lost tax revenue, in restitution to the United States Customs Service. After Pena was sentenced the government noted that Pena's home, which provided the security for his bail bond, had been foreclosed upon. Pena now appeals.

We address three of Pena's arguments. He challenges the sufficiency of the evidence. Pena also urges that the district court failed to consider his financial resources before ordering him to make restitution. Finally, Pena insists that any restitution order ought to create joint and several liability with Soto.

DISCUSSION

A. Sufficiency of the Evidence

A defendant who claims that the evidence was not sufficient to sustain a conviction bears a " 'very heavy burden.' " United States v. Brewer, 36 F.3d 266, 268 (2d Cir.1994) (quoting United States v. Rosenthal, 9 F.3d 1016, 1024 (2d Cir.1993) (quoting United States v. Ragosta, 970 F.2d 1085, 1089 (2d Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 608, 121 L.Ed.2d 543 (1992)). In order to overturn a conviction on this ground, after viewing the evidence in the light most favorable to the United States and drawing all reasonable inferences and resolving all issues of credibility in favor of the government, this Court must conclude that "no 'rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt.' " Brewer, 36 F.3d at 268 (quoting United States v. Jones, 16 F.3d 487, 490 (2d Cir.1994) (citation omitted)).

Pena challenges his convictions on both counts, insisting that no rational jury could have found that he either knowingly conspired to bribe, or knowingly bribed, a public official. His argument is that, because Cianci neither informed Pena that he was a Customs agent, nor wore conspicuous Customs Service identification, the jury could not have inferred that Pena knew Cianci was a public official.

Viewing the evidence, as we must, in the light most favorable to the prosecution, we reject this contention. A rational jury could have found that Pena knew that Cianci was a Customs agent. Cianci stamped documents in front of Pena on two occasions. He did so with an official stamp, leaving the documents imprinted with the agency's official authorization and his own badge number. The jury had before it a photograph showing the defendant looking over Cianci's shoulder while he was stamping documents. Moreover, Cianci's testimony established that his jacket Other circumstances, viewed in their totality, also support an inference that Pena knew Cianci was a customs agent. An experienced businessman like Pena, who had been not only a salesman but a partner in a small business, would surely have questioned the need to bribe, or deal furtively with, a legitimate business contact. We believe that a jury reasonably could have inferred knowledge on Pena's part from his presence at times when Cianci was actually being bribed by two people who clearly knew that he was a public official. Further, in view of Soto's uncontested knowledge of the nature of the transaction, his direction that the agent deal with Pena in his absence could clearly give rise to a fair inference that Pena knew...