U.S. v. Vazquez-Botet, 07-1205.

• Decision Date: 09 July 2008
• Docket Number: No. 07-1205.,No. 07-1398.,07-1205.,07-1398.
• Court: U.S. Court of Appeals — First Circuit
• Parties: UNITED STATES of America, Appellee, v. René VÁZQUEZ-BOTET, M.D. and Marcos Morell-Corrada, Defendants, Appellants.

532 F.3d 37

UNITED STATES of America, Appellee, v. René VÁZQUEZ-BOTET, M.D. and Marcos Morell-Corrada, Defendants, Appellants.

No. 07-1205.

No. 07-1398.

United States Court of Appeals, First Circuit.

Heard March 5, 2008.

Decided July 9, 2008.

Scott A. Srebnick, with whom Howard M. Srebnick and Black, Srebnick, Kornspan & Stumpf, P.A., was on brief for appellant Vázquez-Botet.

Rafael F. Castro-Lang, for appellant Morell-Corrada.

Peter W. Miller, with whom Stuart A. Weinstein-Bacal, José A. Cabiya-Morales, and Weinstein-Bacal & Miller, P.S.C., was on brief for amicus curiae Caribbean International News, Inc. d/b/a El Vocero, Santa Rita Acquisitions Corp. d/b/a The San Juan Star, Wilfredo G. Blanco-Pi d/b/a Wapa Radio, and Madifide, Inc. d/b/a Notiuno 630.

Mary K. Butler, Trial Attorney, Public Integrity Section, Criminal Division, U.S. Department of Justice, with whom William M. Welch, II, Chief, was on brief for appellee.

Efrem M. Grail, with whom Reed Smith LLP, Thomas J. Farrell, and Dreier LLP, was on brief for intervenors Dick Corporation and Dan Martin.

Before LYNCH, Chief Judge, TORRUELLA, Circuit Judge, and SELYA, Senior Circuit Judge.

TORRUELLA, Circuit Judge.

René Vázquez-Botet ("Vázquez") and Marcos Morell-Corrada ("Morell") were convicted of conspiracy, extortion, and mail and wire fraud for their roles in demanding money from construction contractors in exchange for using their influence in the Puerto Rico government to secure them a major project. On appeal, the defendants claim that the district court committed a myriad of errors invalidating their convictions; alternatively, they claim errors requiring remand for resentencing. After careful consideration of each of these arguments in light of the record, we affirm both defendants' convictions and sentences.

I. Background

Because Morell challenges the sufficiency of the evidence supporting his conviction we relate the facts "as the jury could have found them, drawing all inferences in the light most consistent with the jury's verdict." United States v. Colón-Díaz, 521 F.3d 29, 32 (1st Cir.2008) (citation and internal quotation marks omitted). We consider only those facts relevant to the issues on appeal. In August 1994, the Puerto Rico Aqueduct and Sewer Authority ("PRASA") solicited bids from construction contractors to build a large water pipe — dubbed the "Superaqueduct" — along Puerto Rico's north coast. The magnitude of the project required the bidding contractors to form consortia with local subcontractors for the provision of equipment, expertise, financial resources, and labor. One of the aspirants was a consortium led by contractor Thames-Dick, a joint venture between a British firm and the Dick Corporation of Pennsylvania. Within the Thames-Dick consortium were a number of Puerto Rico subcontractors: (1) Las Piedras Construction, owned by Pedro "Cuco" Feliciano; (2) Constructora Hato Rey, owned by Waldemar Carmona; (3) Longo de Puerto Rico, owned by Greg Laracy; (4) Carrero Engineering, owned by Alberto "Tico" Carrero; and (5) Cobián, Agustín & Ramos, controlled by José Cobián-Guzmán ("Cobián"). Thames-Dick won the $305 million contract in January 1996; it began construction in September 1996 and finished in 2000.

Cobián, a key government witness, testified at trial that he knew from experience that, in order for his consortium to be awarded the contract, he would need to bribe someone influential in the government, which at the time was controlled by the New Progressive Party ("NPP"). Thus, in June 1995, Cobián approached Vázquez, an ophthalmologist and the manager of Governor Pedro Rosselló's reelection campaign. Several witnesses testified that Vázquez was believed to hold an almost unparalleled degree of sway within the Rosselló government. Vázquez told Cobián that he would do what he could in exchange for two percent of the total value of the contracts awarded to the Thames-Dick subcontractors. Cobián explained that the subcontractors' share of the total would be more than $200 million; two percent was estimated to be about $2.4 million. Vázquez indicated that Morell, an attorney and NPP Secretary-General, and José Granados-Navedo ("Granados"), the NPP chair of the House of Representatives infrastructure committee, would be assisting him and would need a share of the $2 million. Cobián proposed that it be split four ways, with him receiving a quarter; Vázquez acquiesced. Vázquez said he would deal only with Cobián and must be paid in cash, and that Cobián should approach Morell and Granados directly to arrange their payments. Vázquez did not explain to Cobián what actions he or others would take to make sure Thames-Dick got the contract.

Cobián then went to subcontractors Feliciano, Carmona, Laracy, and Carrero and told them that together they would have to pay two percent of their part of the contract award to purchase the assistance of influential people in the government. Although the subcontractors had not delegated authority to Cobián to make such a deal on their behalf, they grudgingly agreed to pay.

The subcontractors paid Cobián incrementally as they received payments from Thames-Dick. They understood that Cobián would then pass the payments on to the politicians in question. Cobián delivered monthly cash payments to Vázquez in his office, and made other payments to third parties for NPP campaign expenses owed them by Vázquez. On one occasion Feliciano, who had figured out that Vázquez was one of the recipients of the extortionate payments, made a $5,760 payment to him in person at his medical office.

On Vázquez's instructions, Cobián went to Morell's law office to arrange how his payments would be made. Morell drew up a sham contract under which Cobián was to pay Morell's law firm $5,000 per month for legal services; Cobián made these monthly payments from 1997 to 1999. In addition, Morell and Cobián arranged for Cobián to make several payments to third parties (including Sears, a rental car company, an architectural firm, and a basketball team) on Morell's behalf. Morell never actually performed any legal services for Cobián or his company. Cobián similarly made payments to third parties on Granados's behalf, and also made some cash payments to Granados.

In all, the subcontractors gave Cobián cash and checks totaling over $1 million; of this, Vázquez received the equivalent of over $360,000, and Morell received over $125,000. Vázquez failed to report to the Puerto Rico Treasury Department the money he received from Cobián from 1997 to 1999, and concealed thousands more dollars of cash payments made to him by his ophthalmology patients and businesses involved in healthcare services. Morell reported on his tax returns payments to his law firm by Cobián in 1997 and 1998 under the sham contract. Morell failed to report the approximately $25,000 paid in 1999 and the many third-party payments made by Cobián, which totaled some $23,000; he also failed to report payments from other clients in 1998 totaling about $22,000.

In July 1999, when Cobián learned that he had been indicted for unrelated conduct, he panicked and stopped making payments to Vázquez, Morell, and Granados. After pleading guilty to the indictment, Cobián decided to cooperate with the Government in exchange for immunity with respect to further crimes for which he might implicate himself in rendering such cooperation, and the Government's recommendation of a sentencing reduction. Cobián then told investigators of the details of the Superaqueduct extortion scheme. On the basis of this and other information, the Government sought indictments against Vázquez, Morell, and Granados.

On April 8, 2004, a grand jury returned a public indictment charging Vázquez and Morell with the following: (1) one count of conspiracy to commit extortion and launder money in furtherance of a bribery scheme, in violation of 18 U.S.C. § 371; (2) several counts of extortion under color of official right and by economic fear, in violation of the Hobbs Act, 18 U.S.C. § 1951, and aiding and abetting this offense under 18 U.S.C. § 2; and (3) several counts of mail and wire fraud committed as part of a scheme to defraud Puerto Rico of income tax payments, in violation of 18 U.S.C. §§ 2, 1341, and 1343.¹ The Government's central theory was that the defendants and Granados conspired to induce the subcontractors to pay them a portion of their Superaqueduct profits by making them fear that if they did not pay (and keep making periodic payments), the defendants and Granados would use their influence in the government: (1) to promote the subcontractors' competitors for the bid; (2) to remove the subcontractors from the contract after it was already awarded; or (3) to malign their professional reputations so that their respective businesses would not receive government contracts in the future.

After we ordered the recusal of the original trial judge from this case, see In re United States, 441 F.3d 44, 49 (1st Cir. 2006), the case was randomly reassigned to Chief Judge Fusté. Vázquez moved to recuse Chief Judge Fusté on a number of grounds, and Chief Judge Fusté denied the motion, United States v. Vázquez-Botet, 453 F.Supp.2d 362, 374 (D.P.R.2006). We denied mandamus relief, noting that Vázquez could challenge the non-recusal on end-of-case appeal if he were found guilty. In re Vázquez-Botet, 464 F.3d 54, 57 (1st Cir.2006) (per curiam) ("Vázquez-Botet I") (facts presented by Vázquez did not present the "`clear and indisputable'" right to immediate mandamus relief necessary for such an extraordinary remedy (quoting In re Cargill, Inc., 66 F.3d 1256, 1262 (1st Cir.1995))). Vázquez now avails himself of the opportunity to appeal the non-recusal.

Before trial, the then-lead prosecutor of the U.S. Attorney's Office in Puerto Rico granted several of the subcontractors immunity from prosecution in exchange for their testimony. Cobián also testified with immunity under the prior...