United States v. Fernandez
| Decision Date | 26 June 2013 |
| Docket Number | Nos. 12–1289,12–1290.,s. 12–1289 |
| Citation | 722 F.3d 1 |
| Parties | UNITED STATES of America, Appellee, v. Juan Bravo FERNANDEZ; Hector Martínez Maldonado, Defendants, Appellants. |
| Court | U.S. Court of Appeals — First Circuit |
OPINION TEXT STARTS HERE
Martin G. Weinberg, with whom David Z. Chesnoff, Chesnoff & Schonfeld, Kimberly Homan, Jose A. Pagan, and Pagan Law Offices were on brief, for appellant Bravo Fernandez.
Abbe David Lowell, with whom Christopher D. Man and Chadbourne & Parke LLP were on brief, for appellant Martínez Maldonado.
Peter M. Koski, Deputy Chief, Criminal Division, Public Integrity Section, United States Department of Justice, with whom Lanny A. Breuer, Assistant Attorney General, and Mary Patrice Brown, Deputy Assistant Attorney General, were on brief, for appellee.
Before HOWARD, LIPEZ, and THOMPSON, Circuit Judges.
This case presents multiple issues of substantial importance, including a question of first impression in this circuit on the interpretation of the federal program bribery statute, 18 U.S.C. § 666. Defendants are a Puerto Rico legislator and a Commonwealth businessman who were charged, inter alia, with unlawfully exchanging a trip to Las Vegas to attend a prize fight for favorable action on legislation. A jury returned guilty verdicts against both men, Juan Bravo Fernandez (“Bravo”) and Hector Martínez Maldonado (“Martínez”), and they now challenge their convictions on numerous grounds. Foremost is their contention that the jury was allowed to convict on a gratuity theory which is beyond the scope of § 666.
Unlike most circuits to have addressed this issue, we conclude that § 666 does not criminalize gratuities. Because the district court's instructions permitted the jury to find guilt on the § 666 counts based on a gratuity theory, Defendants' convictions on that count must be vacated. In addition, we conclude that the Double Jeopardy Clause, though for reasons that differ for each Defendant, entitles both men to acquittal on their respective conspiracy charges.
We briefly summarize the relevant facts, reserving for our analysis a more detailed discussion of the facts relevant to each issue presented on appeal. We view the facts in the light most favorable to the jury's verdicts. See United States v. Ciresi, 697 F.3d 19, 23 (1st Cir.2012).
From January 2005 until early 2011, Martínez served in the Senate of the Commonwealth of Puerto Rico.1 When Martínez became a senator he was assigned to the Public Safety Committee, where he served as chairman. Bravo was the president of Ranger American, a private firm that provides security services, including armored car transportation and security guard staffing.
In early 2005, Bravo advocated for the passage of legislation related to the security industry in Puerto Rico. One of these bills, Senate Project 410, addressed issues pertaining to security at shopping malls, while the other, Senate Project 471, involved licensing requirements for armored car companies. The government produced testimony at trial that the passage of these bills would have provided substantial financial benefits to Ranger American. As chairman of the Public Safety Committee, Martínez was in a position to exercise a measure of control over the introduction and progression of the bills through the Committee and the Senate.
On May 14, 2005, prominent Puerto Rican boxer Félix “Tito” Trinidad was scheduled to fight Ronald Lamont “Winky” Wright at the MGM Grand Hotel & Casino in Las Vegas, Nevada. On March 2, Bravo purchased four tickets to the fight at a cost of $1,000 per ticket. The same day, Martínez submitted Senate Project 410 for consideration by the Puerto Rico Senate. On April 20, Martínez presided over a Public Safety Committee hearing on Senate Project 471 at which Bravo testified. The next day, Bravo booked one room at the Mandalay Bay Hotel in Las Vegas. On May 11, Martínez issued a Committee report in support of Senate Project 471.
Bravo arranged for first-class airline tickets to Las Vegas for himself, Martínez, and another senator, Jorge de Castro Font.2 In Las Vegas, the three men stayed in separate rooms at the Mandalay Bay for two nights. Bravo paid for Martínez's room the first night, and de Castro Font paid for Martínez's room the second night. The men, along with de Castro Font's assistant, went out to dinner the day before the fight, with Bravo footing the $495 bill. The men attended the Tito Trinidad fight the next night, using the $1,000 tickets Bravo had purchased.
The day after the fight, Bravo, Martínez, and de Castro Font flew from Las Vegas to Miami, where they spent the night in individual hotel rooms at the Marriott South Beach. The rooms were reserved and paid for by Bravo at a total cost of $954.75. The next day, on May 16, the three returned to Puerto Rico.
On May 17, de Castro Font, acting as Chair of the Committee on Rules and Calendars, scheduled an immediate vote on the floor of the Puerto Rico Senate for Senate Project 471. Both de Castro Font and Martínez voted in support of the bill. The next day, Martínez issued a Committee report in favor of Senate Project 410. On May 23, de Castro Font scheduled an immediate vote on the floor of the Senate for Senate Project 410. Again, both de Castro Font and Martínez voted for the bill.
On June 22, 2010, a grand jury returned an indictment charging Bravo and Martínez with (1) violating 18 U.S.C. § 371 by conspiring to (a) commit federal program bribery, and (b) travel in interstate commerce in aid of racketeering; (2) violating 18 U.S.C. § 1952(a)(3)(A) by traveling in interstate commerce with the intent to “[p]romote, establish, carry on, and facilitate the promotion, establishment, and carrying on,” of unlawful activity, specifically (a) federal program bribery in violation of § 666, and (b) bribery in violation of P.R. Laws Ann., tit. 33, §§ 4360 and 4363; and (3) federal program bribery in violation of § 666. Martínez was additionally indicted for obstruction of justice, in violation of 18 U.S.C. § 1512(b)(3).
The case went to trial on February 14, 2011. On March 7, 2011, a jury convicted Bravo of conspiracy to travel in interstate commerce in aid of racketeering (count one), interstate travel in aid of racketeering with the intent to promote bribery in violation of Puerto Rico law (count two), and federal program bribery (count four). The jury found Martínez guilty of conspiracy (count one), but checked “No” as to each potential object of the conspiracy. He was also convicted of federal program bribery (count five). The jury acquitted Martínez of interstate travel in aid of racketeering (count three) and obstruction of justice (count six).
The trial court granted Bravo's motion for judgment of acquittal on count two, finding that the repeal of the Puerto Rico bribery laws before the trip took place made it impossible for Bravo to satisfy the “thereafter” element 3 of a Travel Act violation.It initially “dismissed” Martínez's conviction on count one because the jury rejected both potential objects of the conspiracy, but then “reinstated” the conviction the next day, and eventually dismissed it without prejudice. On March 1, 2012, the district court sentenced both defendants to 48 months of imprisonment. Bravo received a fine of $175,000 and Martínez a fine of $17,500.4
Both Defendants challenge their substantive § 666 convictions on numerous grounds. Martínez challenges on double jeopardy grounds the district court's decision to reinstate his conspiracy conviction and then dismiss it without prejudice. Bravo also challenges his conspiracy conviction, arguing, among other things, that the judgment of acquittal on the Travel Act count requires the entry of judgment of acquittal on the conspiracy count, as § 666, given the findings by the jury, cannot serve as an object of the conspiracy to violate the Travel Act.
Defendants raise several challenges to the scope of the federal program bribery statute, 18 U.S.C. § 666, and, identifying certain elements of the statute, they also claim that the circumstances of this case do not satisfy any of those elements. We review the questions of law raised in their arguments de novo, United States v. Place, 693 F.3d 219, 227 (1st Cir.2012); to the extent that their claims challenge the sufficiency of the government's evidence, we again employ de novo review, appraising the proof in the light most favorable to the verdict, United States v. Rodríguez–Vélez, 597 F.3d 32, 38 (1st Cir.2010).
Section 666 requires the government to show that the individual receiving or soliciting the bribe was “an agent of an organization, or of a State, local, or Indian tribal government, or any agency thereof.” 18 U.S.C. § 666(a)(1). The term “agent” is defined as “a person authorized to act on behalf of another person or a government and, in the case of an organization or government, includes a servant or employee, and a partner, director, officer, manager, and representative.” Id. § 666(d)(1). Defendant Martínez maintains that he could not be convicted under § 666(a)(1)(B) because he was not an agent of the Commonwealth of Puerto Rico. Defendant Bravo argues that because neither Martínez nor de Castro Font were agents of the Commonwealth, he cannot be guilty of bribing them pursuant to § 666(a)(2).
At the outset, we reject any notion that state legislators are categorically exempt from prosecution under § 666. Indeed, the plain language of the statute includes a “representative” of a “government” in the list of positions that fall under the statute's definition of “agent,” 18 U.S.C. § 666(d)(1), and there is no more classic government “representative” than a legislative branch officer. See United States v. Lipscomb, 299 F.3d 303, 333 (5th Cir.2002) (); United States v. Sunia, 643 F.Supp.2d 51, 67 (...
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