United States v. Delgado

• Decision Date: 05 January 2021
• Docket Number: No. 19-20697,19-20697
• Citation: 984 F.3d 435
• Parties: UNITED STATES of America, Plaintiff—Appellee, v. Rodolfo Rudy DELGADO, Defendant—Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

984 F.3d 435

UNITED STATES of America, Plaintiff—Appellee,

v.Rodolfo Rudy DELGADO, Defendant—Appellant.

No. 19-20697

United States Court of Appeals, Fifth Circuit.

FILED January 5, 2021

Catherine Pick, Carmen Castillo Mitchell, Assistant U.S. Attorneys, U.S. Attorney's Office, Southern District of Texas, Houston, TX, for Plaintiff - Appellee.

Michael Clark Gross, Gross & Esparza, P.L.L.C., San Antonio, TX, for Defendant - Appellant.

Before Dennis, Higginson, and Willett, Circuit Judges.

Stephen A. Higginson, Circuit Judge:

Appellant Rodolfo Rudy Delgado was convicted by a jury of numerous bribery-related offenses carried out in connection with his duties as a judge on the 93rd Judicial District in Hidalgo County, Texas.

The case the Government presented at trial was relatively straightforward and involved two main players: Delgado and an attorney named Noe Perez. The jury found that over the course of a decade, Perez would routinely bribe Delgado in order to secure Personal Recognizance ("PR") bonds for his clients who had pending criminal matters before Delgado, when Delgado still presided as a judge.

The scheme purportedly began back in 2008, when Delgado received from Perez a pickup truck valued at $15,000. The truck incident, however, remains an outlier. Rather, the crux of the scheme involved a familiar pattern. Perez would drive to Delgado's house on the pretense of purchasing firewood from Delgado. Once there, Perez would discuss one of his clients who was appearing before Delgado and express hope that Delgado would release that client on a PR bond instead of holding him for detention or releasing him on a monetary bond.¹ Perez would then pay Delgado an inflated amount of cash for a bundle of firewood and Delgado would invariably release Perez's client on a PR bond.

Perez eventually came to the attention of the FBI for separate acts of possible corruption unrelated to Delgado, but soon the FBI began investigating Delgado with Perez as a cooperating informant. The FBI had Perez wear a wire and offer payments to Delgado on multiple occasions. The Government further offered proof that Delgado eventually became aware of the investigation and tried to interfere with it.

After considering the evidence presented at trial, the jury convicted Delgado on eight felony counts: conspiracy under 18 U.S.C. § 371 to commit federal program bribery in violation of 18 U.S.C. § 666(a)(1)(B) (Count One); federal program bribery in violation of 18 U.S.C. § 666(a)(1)(B) (Counts Two, Three, and Four); use of a facility in interstate commerce in aid of a racketeering enterprise in violation of 18 U.S.C. § 1952(a)(3) (Counts Five, Six, and Seven); and obstruction of justice in violation of 18 U.S.C. § 1512(c)(2) (Count Eight).

The district court sentenced Delgado to 48 months’ imprisonment on Counts One, Five, Six, and Seven, and 60 months’ imprisonment on Counts Two, Three, Four, and Eight—with both sentences to be served concurrently—followed by two years of supervised release.

On appeal, Delgado challenges the sufficiency of the evidence supporting each conviction. He also appeals his sentence on the ground that the district court improperly applied a six-level enhancement under U.S.S.G. § 2C1.1(b)(2) due to an incorrect calculation of the total "benefit received" in exchange for the bribes. We AFFIRM.

I

For over 16 years and up until the time of his arrest, Delgado served as a state judge in the 93rd Judicial District Court in Hidalgo County, Texas, presiding over criminal and civil cases.

Perez became an attorney in 2002, after having previously worked as a probation officer. After graduating from law school, Perez worked for a year at the law firm of Guerra and Moore (run by Carlos Guerra and Michael Moore) in McAllen, Texas. He then opened a solo practice performing criminal defense work (among other services), including in the 93rd Judicial District where Delgado presided. Carlos Guerra, Perez's former boss and a friend of Delgado's, introduced Perez to Delgado.

In November 2008, Perez was representing Edylfonso Montano, who faced a probation revocation hearing in front of Delgado. Perez charged a $15,000 fee for the case. In lieu of cash, Montano paid the fee by giving Perez a used pickup truck. Unsure if he could accept a truck as payment, Perez reached out to Carlos Guerra for advice. Guerra advised that accepting the truck was permissible and asked which judge Perez was appearing before on the matter. When Perez told Guerra that he was appearing before Delgado, Guerra informed Perez that he would call him back shortly.

Instead, Perez received a call from Delgado. Delgado asked Perez to meet him at a bar to discuss the truck. At the bar, Delgado instructed Perez to meet him the next day with the truck at Panther Motors, a dealership in town. The Government asked Perez on direct examination if he had discussed any of his clients with Delgado while at the bar, and Perez answered: "Well, it wasn't very much on the – on the client, it was more about the truck ...."

When the two met the next day at Panther Motors, Perez handed over the title to the truck to Delgado, who went inside while Perez waited in Delgado's car. Delgado then dropped off Perez at Perez's house.

Delgado never paid Perez for the truck. Records listed Montano as having sold the truck to Ignacio Ruiz, a close friend of Delgado and the owner of Panther Motors, on November 4, 2008. However, Montano was not present at Panther Motors that day, and had never been to Panther Motors. He never signed the title to Panther Motors or Ruiz, and Panther Motors had no records showing they paid Montano for the truck. Title to the truck was ultimately registered to Delgado's son.

When Perez later tried to discuss the truck with Delgado, Delgado would move the conversation to other topics. When asked by the Government on direct examination what he got in exchange for the truck, Perez stated: "I guess access to [Delgado] ... I would ask for – for things and it – you know, things would be granted." Delgado continued Montano's probation revocation hearing numerous times over the next four years, until it was eventually dismissed by another judge upon motion by the State.

In November 2016, the FBI received a tip from the spouse of one of Perez's clients. The spouse claimed that Perez had told the client that he had bribed a judge for a favorable ruling. The FBI had the spouse meet with Perez, while wearing a wire. At the meeting, Perez told the spouse that some of the client's fee would go to bribing the judge in the case. The judge in that case was not Judge Delgado, but a different judge.

The FBI then interviewed Perez. According to FBI Special Agent David Roncska, Perez admitted during that interview that he had been bribing Judge Delgado for several years in order to secure favorable rulings for his clients. In response to the FBI's questions about paying bribes to Delgado, Perez described that he would "purchase wood" from Delgado.

At trial, Perez explained on direct examination what he meant by "purchasing wood" in the timeframe prior to the FBI's investigation:

Q: Prior to the [FBI] investigation, did you go to Judge Delgado's home and give him money for things?

Perez: Yes ... I would kind of like disguise it in like buying wood and, you know, give him – I said I'm going to buy some wood and give him $250, 300 bucks, 250, 260.

Perez described that he would pay about $250 for 12 to 20 pieces of wood, which would normally cost about $30 or $40 at a local store. He explained that paying such prices was "beneficial" for him because his clients would "probably" receive a "favorable discretion or ruling." Specifically, whenever Perez went to Delgado's home to purchase wood, the two would always discuss Perez's cases and Perez would ask Delgado if he would consider releasing his clients on PR bonds. Perez would also sometimes pick up beer for Delgado, slipping $250 in cash into the beer box.

At the FBI's request, Perez provided a list of his clients on whose behalf he had bribed Delgado for favorable outcomes. The list included four names. The Government introduced records at trial showing that those four individuals had received favorable rulings from Delgado, including PR bonds, between 2014 and 2016.

Perez then began cooperating with the FBI, which asked him to set up meetings with Delgado in order to gather further evidence.

In December 2016, the FBI instructed Perez to set up a meeting with Delgado. The FBI gave Perez $260 to bribe Delgado, and told Perez that his client, Raul Sanchez, was in jail and had a motion to revoke probation pending in Delgado's court. Perez called Delgado to set up a meeting with him at Delgado's house.

On December 13, 2016, Perez went to Delgado's house wearing a wire. Perez told Delgado that he had a client "sitting in jail" on a motion to revoke. He then asks Delgado: "You think we could do a little wood?" Delgado responds: "Oh yeah ... A lot of wood once we get to some fact finding."

Perez and Delgado then engage in a back and forth about Raul Sanchez. Perez informs Delgado that he will be out of town on Sanchez's hearing date and needs to resolve it sooner. Delgado replies that he cannot pick Sanchez "out of the herd and say let me do magic over here. That could lead people to wonder and I don't want people wondering."

After the conversation digresses into a discussion of Perez's and Delgado's personal lives, Perez returns to the issue of Sanchez and asks Delgado to "see if we can get him out." Delgado responds: "I'm going to help you out ... [b]ut it's how to do it and-and—and you [sic] how to do it right. Cause I can't just be having these thoughts in the middle of the night about picking a critter out of the litter ... somebody can go[:] How'd that happened."

Perez then tells Delgado: "Let me pay for that wood now and then I come back maybe next week and get it." He then pays Perez the $260 dollars given to him by the FBI. Two days after the meeting, on December...