U.S. v. Vigil

• Decision Date: 19 January 2007
• Docket Number: No. CR 05-2051 JB.,CR 05-2051 JB.
• Citation: 506 F.Supp.2d 544
• Parties: UNITED STATES of America, Plaintiff, v. Robert VIGIL, Defendant.
• Court: U.S. District Court — District of New Mexico

506 F.Supp.2d 544

UNITED STATES of America, Plaintiff, v. Robert VIGIL, Defendant.

No. CR 05-2051 JB.

United States District Court, D. New Mexico.

January 19, 2007.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

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

Jason Bowles, B.J. Crow, Bowles & Crow, Albuquerque, NM, N and N, Samuel H. Bregman, II, Eric Loman, The Bregman Law Firm, P.C., Albuquerque, NM, for Defendant.

MEMORANDUM OPINION AND ORDER

BROWNING, District Judge.

THIS MATTER comes before the Court on the Defendant's Motion to Set Aside Verdict and for Judgment of Acquittal on Count 24 of the Fifth Superseding Indictment Under Fed.R.Crim.P. 29 as the Evidence is Insufficient to Sustain a Conviction, filed October 5, 2006 (Doc. 410)("Motion to Acquit"). The Court held a hearing on this motion on December 1, 2006. The primary issue is whether the Court should set aside the jury verdict against Defendant Robert Vigil for attempted extortion under the Hobbs Act, because there is insufficient evidence that he took a substantial step toward the completion of the crime charged. Because the Court concludes that there is sufficient evidence, taken in the aggregate, that Vigil took a substantial step toward the completion of the crime of extortion, the Court will deny Vigil's motion.

FACTUAL BACKGROUND

Much of the factual evidence pertinent to this motion is not in dispute. Vigil does not seriously dispute that the evidence presented at trial was insufficient for a reasonable jury to find that Vigil intended to extort George Everage or that he took some steps toward extorting Everage. The issue is whether the largely undisputed evidence of those steps constitutes a substantial step toward completion of the crime of extortion.

1. Evidence of Vigil's Motive to Commit the Crime.

The United States contends that it presented evidence at trial of several factors that motivated Vigil, while serving as the New Mexico State Treasurer, to transfer funds to Michael Montoya, the former State Treasurer who preceded Vigil. See United States' Response to Motion to Set Aside Verdict and For Judgment of Acquittal on Count 24 of the Fifth Superseding Indictment Under Fed.R.Crim.P. 29 as the Evidence is Insufficient to Sustain a Conviction at 3, filed October 19, 2006 (Doc. 412)("United States' Response"). First, there is evidence that, in 1999, after Vigil was unsuccessful in his bid to run for Governor of New Mexico, Montoya hired Vigil as his Deputy State Treasurer. See Transcript of Trial at 158:10-15 (Montoya)(taken September 13, 2006)("Sept. 13 Transcript").¹ There is also evidence that later, when Vigil ran for the position of Treasurer, Montoya, in combination with Angelo Garcia and Kent Nelson, provided Vigil significant monetary and other support. See id. at 242:22-243:12. There was evidence presented that Montoya and Garcia kept a record of these expenditures, that they shared this record with Vigil, and that they indicated to Vigil that they, and Nelson, had mutually contributed to cover these expenses. See id. at 258:6-14; id. at 263:2-6.

The United States further asserts that it presented evidence that Vigil failed to report these contributions on his campaign finance report forms and knew that Montoya possessed documents through which he could prove Vigil received this money. See United States' Response at 4. Montoya testified that he showed these documents to Judy Espinosa, the New Mexico State Treasurer's Office's. ("NMSTO") public relations officer, and Espinosa confirmed that she confronted Vigil about what she believed were contributions missing from his campaign finance reports. See id. at 285:2-286:24 (Montoya); Transcript of Trial at 49:11-14 (Espinosa)(taken September 19, 2006)("Sept. 19 Transcript").

In addition, there was also evidence presented that Montoya placed pressure on Vigil by threatening to run against him in the next election. See Sept. 13 Transcript at 283:10-15 (Montoya). The jury heard a recorded conversation in which Vigil said to Garcia that, if the NMSTO was going to contract with Everage for securities lending, the NMSTO needed to ensure that Samatha Sais, Montoya's wife, receive a job as part of the transaction. See Transcript of Recorded Conversation at 7 (taken February 23, 2005)(Government's Exhibit 589 — T). Vigil's acknowledgment that "[Montoya] is all over there telling everybody he's running for Treasurer" followed that statement. Id. Similarly, during a conversation with Nelson on May 2, 2005, Vigil indicated that he felt he could prevent Montoya from running for State Treasurer by securing Sais a job in the securities-lending project. See Transcript of Recorded Conversation at 38-39 (taken May 2, 2005)(Government's Exhibit 592 — T).

2. Evidence that Vigil Previously Directed Funds to Montoya.

The United States asserts that the jury heard evidence that, during his tenure as State Treasurer, Vigil arranged for Montoya to receive illicit payments. See United States' Response at 3. Garcia testified that he issued a check, written out to "Cash" in the amount of $30,000.00, to Montoya in August 2003. See Transcript of Trial at 86:18-87:4 (Garcia)(taken September 20, 2006)("Sept. 20 Transcript"); MAV Investments' Check Payable to Cash (dated August 27, 2003)(Government Exhibit 185 at Bates AG_MAV7205 ___ 264). Garcia testified that these funds reflected a portion of commissions that Nelson earned from a number of securities transactions Nelson executed with the NMSTO earlier in 2003. See Sept. 20 Transcript at 85:4-9 (Garcia). Garcia testified that Vigil had informed him that the NMSTO was going to execute the transactions with Nelson earlier in August 2003, and told Garcia to "just take care of [Montoya] and get him off my back." Id. at 87:11-14.

3. Securities Lending.

Everage testified that, while employed at the NMSTO, he proposed to Vigil that the NMSTO initiate a securities-lending program to earn additional income on the office's securities inventory. See Transcript of Direct Testimony of George Everage at 23:7-19 (taken September 15, 2006)("Everage Direct Examination"). Everage indicated that Vigil was initially reluctant because of his awareness that other state agencies had enjoyed varying degrees of success implementing similar programs. See id. at 24:24-25:3. In response to Vigil's concerns, Everage suggested that the NMSTO could use multiple securities-lending agents, and bid the project out to the various agents to create competition and to ensure the NMSTO a better yield on its lending activity. See id. at 25:17-21. Everage estimated that the NMSTO could earn between one and three million dollars annually through the securities-lending program. See id. at 31:19-23. Everage understood, however, that the securities-lending program had the potential to not make money or to make less money than he estimated. See id. at 149:10-15; Transcript of Cross-Examination and Redirect-Examination of George Everage at 13:21-14:1 (taken. September 18, 2006)("Everage Cross-Redirect").

To institute the securities-lending program, Everage recommended that the NMSTO create a position — securities-lending oversight manager ("SLOM") — to oversee the securities-lending agents and to ensure the agents complied with the NMSTO's investment policy. See Everage Direct Examination at 27:15-22. Everage stated that, when he proposed the securities-lending plan to Vigil, he told Vigil that a NMSTO employee could handle the SLOM position's duties "in-house," or the NMSTO could contract with a third-party to act as the SLOM. Id. at 32:4-12. Everage represented that Vigil decided to issue a contract for the SLOM position, because the NMSTO did not have the budgetary resources to have an in-house employee perform the job functions. See id. at 36:9-14. Everage also understood that the New Mexico Legislature never allocated the NMSTO funds to have the SLOM position funded in-house. See Everage Cross-Redirect at 37:12-15. Upon learning that the NMSTO would contract the SLOM position, Everage informed Vigil that, if and when the securities-lending program was implemented, Everage would like the opportunity to bid on the contract for the SLOM position. See Everage Direct Examination at'36:22-23.

Everage, in association with several other NMSTO employees — Vigil, Assistant State Treasurer Ann Marie Gallegos, Deputy State Treasurer Elaine Olah, the NMSTO's counsel, Dave Romero, and the NMSTO's Investment Advisor, Mark Canavan — drafted a request for proposals ("RFP") for the SLOM position. See id. at 43:6-16; Notice of Request for Proposals for Securities Lending Oversight Manager (Government's Exhibit 512)("SLOM RFP"). Among the provisions included in the SLOM RFP was a prohibition against subcontracting work the SLOM would perform on behalf of the NMSTO. See Everage Direct Examination at 46:8-14; SLOM RFP, Part II.C ¶ 4. The SLOM RFP also indicated that the State Treasurer could terminate any contract between the NMSTO and the SLOM at will. See Everage Cross-Redirect at 22:2-4; 22:11-14; SLOM RFP, Professional Service Contract ¶ 5. Finally, the RFP established that the SLOM would be paid a fee calculated as a percentage of the value of securities that the NMSTO lent. See Everage Cross-Redirect at 35:17-23; SLOM RFP, Professional Service Contract ¶ 2.

Everage testified that, when he informed Vigil that he was interested in applying for the SLOM position, Vigil indicated that he had a friend whose wife needed a job and inquired if Everage would be willing to hire her should he receive the SLOM contract. See Everage Direct Examination at 37:5-12. Everage learned that this woman was Sais. See id. at 38:3-9. Everage testified that Vigil told him that Sais "was being a pain in his ass," and that he would appreciate Everage assisting him in "get[ting] her off his ass." Id. at 41:13-15....