U.S. v. Vigil

Decision Date13 February 2007
Docket NumberNo. CR 05-2051 JB.,CR 05-2051 JB.
Citation476 F.Supp.2d 1231
PartiesUNITED STATES of America, Plaintiff, v. Robert VIGIL, Defendant.
CourtU.S. District Court — District of New Mexico

David C. Iglesias, United States Attorney, Jonathon M. Gerson, Steven C. Yarbrough, Assistant United States Attorneys, Albuquerque, NM, for plaintiff.

Jason Bowles, B.J. Crow, Bowles and Crow, Sam Bregman, Eric Loman, The Bregman Law Firm, Albuquerque, NM, for Defendant.

MEMORANDUM OPINION AND ORDER

BROWNING, District Judge.

THIS MATTER comes before the Court on: (i) the United States' Objections to Pre-Sentence Report, filed December 22, 2006 (Doc. 429)("United States' PSR Objections"); (ii) the Defendant's Objections to the Presentence Report, filed January 5, 2006 (Doc. 430)("Vigil's PSR Objections"); and (iii) the Defendant's Motion for Downward Departure, filed January 16, 2006 (Doc. 437)("Motion for Downward Departure"). The Court heard these objections at the sentencing hearing held on January 24, 2007. The primary issues are: (i) whether the conviction for attempted extortion is properly grouped under the United States Sentencing Guidelines with other uncharged conduct and the conduct for which Defendant Robert Vigil was acquitted, requiring the Court to consider that conduct under the Guidelines; (ii) whether it is constitutional for the Court to consider conduct, established by a preponderance of the evidence, for which Vigil was acquitted at trial; (iii) whether the Court should depart downward under the Guidelines because of a number of factors that Vigil advances; and (iv) whether the Court should vary from the Guidelines because the Guidelines' sentence of 235 to 240 months is not reasonable. Because the Court believes that the United States Probation Office ("USPO") has, with a few exceptions, properly applied the Guidelines in its Presentence Investigation Report ("PSR") and its Addendum to the Presentence Report ("Addendum"), because current law within the United States Court of Appeals for the Tenth Circuit counsels that the Court calculate the guideline sentence using conduct found by a preponderance of the evidence, and because the Court believes that the guideline sentence would not be a reasonable sentence for Vigil, the Court will, for the most part, overrule the objections and vary from the guideline sentence.

PROCEDURAL BACKGROUND

In the course of resolving the parties' pre-trial and post-trial motions, and in making evidentiary rulings throughout the course of the proceedings, the Court has already made some factual findings, by a preponderance of the evidence, that are relevant to the sentencing. The Court found by a preponderance of the evidence, for example, that Vigil was a member of a conspiracy to engage in racketeering activity — along with Michael Montoya, Angelo Garcia, Kent Nelson, and Leo Sandoval — for the purpose of admitting co-conspirator statements at trial as non-hearsay pursuant to rule 801(d)(2)(E) of the Federal Rules of Evidence. See Memorandum Opinion and Order, filed August 31, 2006 (Doc. 329)("Court's Co-Conspirator Opinion"). The USPO has, in turn, included all conduct for which Vigil was acquitted, but which involved his co-conspirators, in the guideline calculation. The USPO has then proposed that the Court vary from the guideline sentence. See PSR ¶ 122, at 44. Together, the United States and Vigil disagree with much of what the USPO has done or suggests.

1. The Fifth Superseding Indictment.

On July 25, 2006, a grand jury returned a Fifth Superceding Indictment charging Vigil with twenty-four counts of racketeering and extortion in violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962(c)-(d), and the Hobbs Act, 18 U.S.C. §§ 1951 & 1952. See Fifth Superceding Indictment, filed July 25, 2006 (Doc. 259)("Indictment"). The Court held a jury trial in this case from September 5, 2006 to September 30, 2006. The jury returned a verdict on September 30, 2006 finding Vigil not guilty on Counts One through Twenty-Three and guilty on Count Twenty-Four of the Indictment. See Verdict, filed September 30, 2006 (Doc. 408)("Verdict").

Count Twenty-Four of the Fifth Superseding Indictment charges:

Between May 2, 2005 and September 15, 2005, both dates being approximate and inclusive, in the State and District of New Mexico, the defendant Robert Vigil, did knowingly and unlawfully affect and attempt to affect interstate commerce and the movement of articles and commodities in interstate commerce by extortion, in that the defendant Robert Vigil attempted to cause George Everage to provide money and property to another person, with Everage's consent, induced by wrongful use and threat of use of economic harm and under color of official right, in connection with Everage's efforts to work as the Securities Lending Oversight Manager for the New Mexico State Treasurer's Office.

Indictment at 31.

The United States' charging language in Count Twenty-Four does not precisely track the language of the Hobbs Act. Count Twenty-Four of the United States' Indictment, unlike 18 U.S.C. § 1951(b)(2), is worded in the conjunctive. Paragraph two of Count Twenty-Four charges that Vigil attempted to extort property "by wrongful use and threat of use of economic harm and under color of official right." Indictment at 31 (emphasis added). The Hobbs Act's definition of "extortion" is written in the disjunctive — encompassing the taking of property "by wrongful use of actual or threatened force, violence, or fear, or under color of official right." 18 U.S.C. § 1951(b)(2) (emphasis added).

2. Finding of Conspiracy.

The Court has made some relevant decisions about the existence of the conspiracy in response to the United States' motion to allow the admission of co-conspirator statements as non-hearsay pursuant to rule 801(d)(2)(E). See Government's Motion to Admit Co-Conspirator Statements as Non-Hearsay Pursuant to Fed.R.Evid 801(d)(2)(E), filed August 4, 2007 (Doc. 267). The Court has already found, by a preponderance of the evidence, a conspiracy to engage in racketeering activities existed and that Vigil — along with Montoya, Garcia, Nelson, and Sandoval — was a member of the conspiracy. See Court's Co-Conspirator Opinion at 10. The pattern of activity that comprised the substantive acts in furtherance of the conspiracy's objectives constitutes much of the relevant conduct that the PSR attributes to Vigil. In its PSR, the USPO has also linked the conspiracy's conduct and Vigil's offense of conviction into a single course of conduct.

In issuing its decision on the United States' motion to admit the co-conspirator statements, the Court relied upon its earlier denial of a rule 29 motion Vigil filed after his first trial before the Honorable James A. Parker, Senior United States District Judge for the District of New Mexico. See Memorandum Opinion and Order, filed August 7, 2006 (Doc. 268). The Court noted in its Co-Conspirator Opinion that it "ha[d] already ruled that there was sufficient evidence at the first trial for a reasonable jury to conclude that the United States proved, beyond a reasonable doubt, that Vigil took part in the racketeering conspiracy charged in the indictment." Court's Co-Conspirator Opinion at 7. The Court went on to "find[] that the same evidence establishes, by a preponderance, the existence of a conspiracy and of Vigil's membership therein." Id. at 10. The Court has, accordingly, already found — by the same evidentiary standard to be used at sentencing — that the conspiracy alleged in the indictment existed and that Vigil was a member thereof.

3. Jury Instructions and Verdict Form.

Unlike the language of the United States' Fifth Superceding Indictment, the Court's jury instructions related to Count Twenty-Four tracked the language of the Hobbs Act and charged the jury that they could find Vigil attempted to extort Everage "either (a) by wrongful use of actual or threatened fear, or (b) under color of official right." Court's Final Jury Instructions with Citations, Instruction No. 31, at 68, filed September 28, 2006 (Doc. 394)("Jury Instructions"). On the other hand, the verdict form presented to the jury required that the jury find Vigil guilty or not guilty "as charged in Count Twenty-Four of the indictment." Verdict at 5.

The Court's instructions directed the jury that "[t] o reach a verdict, whether it is guilty or not guilty, [every juror] must agree." Jury Instructions, Instruction No. 39, at 79. The jury was told that its "verdict must be unanimous on each count of the indictment." Id. The verdict form did not contain, however, any special interrogatories requiring the jury to identify upon which method of extortion it based its unanimous verdict.

4. Rule 29 Motions.

On September 28, 2006, at the close of the United States' evidence, Vigil moved, under rule 29 of the Federal Rules of Criminal Procedure, to dismiss all charges. The Court took the motion under advisement, but indicated to the parties that it was inclined to submit all the counts to the jury. See Transcript of Trial at 147:2-149:1 (Court)(taken September 28, 2006). Subsequent to the Court reserving its ruling, Vigil chose not to present any evidence. The jury returned a verdict on September 30, 2006, finding Vigil not guilty on Counts One through Twenty-Three and guilty on Count Twenty-Four of the Fifth Superceding Indictment. See Verdict.

On October 5, 2006, Vigil filed two motions, pursuant to rule 29, requesting that the Court enter a judgment of acquittal on Vigil's behalf. Vigil's first motion argued that the evidence presented at trial, when considered in the light most favorable to the jury's verdict, was insufficient to sustain a conviction for attempted extortion because the...

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