United States v. Carrasco

• Docket Number: 21-1396
• Decision Date: 28 August 2023
• Parties: UNITED STATES, Appellee, v. ALEJANDRO CARRASCO, Defendant, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

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UNITED STATES, Appellee,
v.
ALEJANDRO CARRASCO, Defendant, Appellant.

No. 21-1396

United States Court of Appeals, First Circuit

August 28, 2023

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Francisco A. Besosa, U.S. District Judge]

Rachel Brill for appellant.

Nicole R. Lockhart, Trial Attorney, with whom Kenneth A. Polite, Assistant Attorney General, Lisa H. Miller, Deputy Assistant Attorney General, Corey R. Amundson, Chief, Public Integrity Section, and James I. Pearce, Attorney, Appellate Section, were on brief, for appellee.

Before Barron, Chief Judge, Lipez and Montecalvo, Circuit Judges.

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BARRON, CHIEF JUDGE

Alejandro Carrasco Castillo ("Carrasco") appeals his convictions and sentence for violating 18 U.S.C. § 666. The underlying charges stem from his role in the allegedly corrupt awarding of contracts by various Puerto Rico municipalities. We affirm.

I.

More than a decade ago, federal authorities began investigating allegations that three Puerto Rico municipalities had corruptly awarded contracts to a company owned by Juan Carlos Mercado, who at the time was a contractor and environmental engineer. Federal authorities arrested Mercado in February 2012 in connection with the investigation, and he agreed to cooperate with them by recording his conversations with Eduardo Rivera-Correa, who was the mayor of one of the municipalities, and Carrasco, an attorney retained by each of the three municipalities to provide legal representation.^[1]

Thereafter, on July 8, 2014, Carrasco was indicted in the United States District Court for the District of Puerto Rico on four counts of violating 18 U.S.C. § 666(a)(1)(B).^[2] Section 666(a)(1)(B) provides in relevant part:

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[w]hoever . . . being an agent of an organization, or of a State, local, or Indian tribal government, or any agency thereof . . . corruptly solicits or demands for the benefit of any person, or accepts or agrees to accept, anything of value from any person, intending to be influenced or rewarded in connection with any business, transaction, or series of transactions of such organization, government, or agency involving any thing of value of $5,000 or more . . . shall be fined under this title, imprisoned not more than 10 years, or both.^[3]

Each count alleges that, in violation of § 666, Carrasco took payments from Mercado in connection with the award of contracts to Mercado's environmental consulting firm by one of the three Puerto Rican municipalities that had retained Carrasco. The first count alleges that Carrasco received payments from July 2009 through August 2009 in connection with contracts awarded by the municipality of Barceloneta. The second count alleges that he received payments from March 2010 to July 2010 in connection with contracts awarded by the municipality of Rio Grande. The third count alleges that he received payments from August 2010 through October 2010 in connection with contracts awarded by the

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municipality of Juncos. The fourth count alleges that he received payments in July 2011 in connection with contracts awarded by, once again, Barceloneta.

Carrasco was tried on the charges before a jury in December 2019 and was found guilty on all four counts. A judgment of conviction was entered, and the District Court sentenced him on April 27, 2021, to 120 months of imprisonment and 3 years of supervised release. Carrasco then timely filed this appeal.

II.

Carrasco first seeks the reversal of his convictions on the ground that they are not supported by sufficient evidence. To succeed, he must show that the evidence in the record does not suffice to permit a rational juror to find him guilty beyond a reasonable doubt of violating § 666. See United States v. Levin, 13 F.4th 96, 99-100 (1st Cir. 2021). Our review is de novo, but we "review[] the evidence, and mak[e] all inferences and credibility choices, in the government's favor." United States v. Rodríguez-Torres, 939 F.3d 16, 23 (1st Cir. 2019).

A.

Carrasco directs our attention initially to what the record shows with respect to the element of the offense --- set forth in § 666(a)(1) -- that requires the government to prove beyond a reasonable doubt that he was an "agent of a[] . . . local . . . government." Section 666(d)(1) defines an "agent" of a local

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government to be "a person authorized to act on behalf of" it and specifies that the definition of the term "includes a servant or employee, and a partner, director, officer, manager, and representative."

To prove that Carrasco was such an "agent," the government submitted into evidence his contracts with Barceloneta, Rio Grande, and Juncos. Carrasco does not dispute that the text of each of the contracts authorized him to provide legal representation to the named municipality "in the Courts of Puerto Rico" and "the administrative and investigative agencies." Therefore, it would appear that the evidence does suffice to support the "agent" element of the offense, as each of the contracts would appear to show that he was "authorized to act on behalf of" the relevant municipality and so that he was an "agent" of that municipality. See Representative, Black's Law Dictionary (11th ed. 2019) (defining "representative" as "[s]omeone who stands for or acts on behalf of another").^[4]

Carrasco nonetheless contends that the evidence does not suffice to satisfy the "agent" element because no evidence in the

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record suffices to show that he took any specific action under any of the contracts on behalf of any of the municipalities. But the text of § 666(d)(1) does not support a construction of the statute that would require the government to make that showing to satisfy the "agent" element.

By its plain terms, the text of the statute defines an "agent" to be merely "a person authorized to act on behalf of . . . a government." 18 U.S.C. § 666(d)(1) (emphasis added). It does not define an "agent" to be only a person who "acts" on behalf of a government.

Nor is there any reason to conclude from the text of related provisions that the words "authorized to act" in § 666(d)(1) mean "acts," such that it is not enough to prove that the person has been merely authorized to act. After all, a separate provision of § 666(d)(1) states that a "person" qualifies as an "agent" if that person is a "representative." Id. Thus, that provision does not state that a "person" so qualifies even if they have only been "authorized to be a . . . representative."

Reinforcing the conclusion that the words "authorized to act" mean what they say is the fact that the Supreme Court of the United States has explained in construing other parts of § 666

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that the statute's "expansive" and "unqualified language," Salinas v. United States, 522 U.S. 52, 56 (1997), "reveals Congress' expansive, unambiguous intent to ensure the integrity of organizations participating in federal assistance programs," Fischer v. United States, 529 U.S. 667, 678 (2000). In addition, both our Circuit and the Supreme Court have "repeatedly rejected constructions of § 666 that would impose limits beyond those set out in the plain meaning of the statute."^[5] United States v. Fernandez, 722 F.3d 1, 10 (1st Cir. 2013); see also Fischer, 529 U.S. at 678.

Carrasco contends that a prior precedent of ours, United States v. Sotomayor-Vazquez, 249 F.3d 1 (1st Cir. 2001), as well as two precedents from other circuits, United States v. Lupton, 620 F.3d 790, 800-01 (7th Cir. 2010); United States v. Hudson, 491 F.3d 590, 594-95 (6th Cir. 2007), support his position. We disagree.

Sotomayor-Vazquez did hold that evidence in the record in that case showed that the defendant was an "agent" of the non-profit entity at issue because, although the defendant was formally an independent contractor, the defendant "acted as [the]

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executive director" of the entity by approving all its organizational decisions, meeting with city officials on the agency's behalf, and making decisions regarding hiring and firing. 249 F.3d at 8-9. But we made clear in so holding that the definition of "agent" under § 666(d)(1) has two "aspect[s]": one relating to a person's having been "authorized to act on behalf of" the covered entity and the other relating to whether the person was an "employee, partner, director, officer, manager, or representative" of that entity. Id. at 8. We also made clear that we based our holding only on that second "aspect of the statutory definition." Id. Thus, our decision there in no way indicates either that an "agent" is not merely a person who was "authorized to act on behalf of" the relevant entity or that evidence that suffices to show only that the defendant was so authorized cannot suffice to show that the person qualifies as an "agent."

Lupton also is no help to Carrasco. The evidence there was deemed sufficient to render the defendant an "agent" based on the activities of the defendant vis-a-vis a state agency. 620 F.3d at 800-01. But the contract between the real estate firm that employed the defendant in that case and the state of Wisconsin expressly provided that the firm was acting as "an independent contractor and not as an officer, employee, or agent of the state." Id. at 800. Thus, while the court in Lupton looked beyond the

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terms of the contract to determine that the defendant was an "agent" for purposes of § 666, the court did not thereby suggest that contracts like those at issue in Carrasco's case are inadequate on their own to supportably show that a defendant is an "agent" of a local government.

Finally, in Hudson, the Sixth Circuit determined that the evidence sufficed to satisfy the "agent" element based on both contract terms that "gave [the defendant] broad authority to set up a television station in the high school" and testimony that the defendant exercised that authority. 491 F.3d at 594-95. But, once again, nothing...