United States v. Fernandez
| Decision Date | 22 August 2022 |
| Docket Number | 19-15044,19-15165 |
| Parties | UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MANUEL R. FERNANDEZ, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (11th Circuit) |
DO NOT PUBLISH
Appeals from the United States District Court for the Southern District of Florida D.C. Docket No 1:17-cr-20780-MGC-2 Before WILLIAM PRYOR, Chief Judge, ROSENBAUM, and BRASHER, Circuit Judges.
Manuel Fernandez appeals his conviction and 75-month total sentence for conspiracy to receive bribes, in violation of 18 U.S.C § 371, bribery, in violation of 18 U.S.C. § 201(b)(2)(C), making a false statement to a federal agency in violation of 18 U.S.C. § 1001(a)(2), wire fraud, in violation of 18 U.S.C. § 1343, and aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1). After careful review, and with the benefit of oral argument, we affirm.
On November 2, 2017, a federal grand jury in the Southern District of Florida returned an indictment charging Manuel Fernandez with one count of conspiracy to commit an offense against the United States, i.e., receiving bribes, in violation of 18 U.S.C. § 371 (Count One), fifteen counts of bribery, in violation of 18 U.S.C. § 201(b)(2)(C) (Counts Seventeen though Thirty-One), one count of making false statements in a matter within the jurisdiction of the Federal Aviation Administration ("FAA") and U.S. Department of Transportation ("DOT"), in violation of 18 U.S.C. § 1001(a)(2) (Count Thirty-Two), two counts of wire fraud, in violation of 18 U.S.C. § 1343 (Counts Thirty-Three and Thirty-Four), and two counts of aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1) (Counts Thirty-Five and Thirty-Six). The indictment sought forfeiture of any property constituting or derived from proceeds traceable to the conspiracy, bribery, and wire fraud counts.
Fernandez worked at the FAA. The FAA oversees a vast array of businesses that operate in the aviation industry in the United States, including repair stations. Avcom Avionics &Instruments, Inc. ("AVCOM") was a repair station based in Doral, Florida. AVCOM specialized in avionics, which are components used in the navigation of an aircraft. The FAA employs Aviation Safety Inspectors ("ASIs") to inspect and oversee the operations of businesses and entities subject to FAA regulation. ASIs have lead responsibility for overseeing the operations of FAA certified repair stations. The FAA employed Fernandez as an ASI in Florida from August 2007 to June 2013, when he resigned.
FAA regulations barred Fernandez from accepting outside employment with any aviation-related business in Florida, which may be subject to inspection, licensing, certification, or other official contact by the FAA. And that included AVCOM.
From January 2010 through June 2013, Fernandez conspired with AVCOM's owners, Rolando and Patricia Suarez, to receive and accept bribes in return for Fernandez's agreement to violate his official duties with the FAA to advance AVCOM's financial interests. Fernandez (1) enlisted a contact who worked at Delta Airlines to covertly steal confidential proprietary repair manuals owned by Delta and Honeywell, a major avionics component manufacturer, directed the stolen repair manuals to AVCOM, and concealed his conduct from FAA authorities by communicating over private e-mail addresses with his Delta contact; (2) used his position with the FAA to access Honeywell's web portal as another means of attempting to steal Honeywell's repair manuals for AVCOM's use; (3) agreed to attempt to influence the FAA's review and approval process of AVCOM's request to add a new repair specification to its approved operations; (4) notified AVCOM of FAA inspections in advance; (5) revealed to AVCOM financial information about AVCOM's competitors to assist AVCOM in bargaining for favorable pricing in purchasing used avionics components; (6) offered to sell to AVCOM proprietary repair plans held by another business that Fernandez had on his FAA computer; and (7) proposed setting up a partnership to repair airplane glass using proprietary repair plans that Fernandez had obtained through an enforcement action on a separate business.
As part of the bribery scheme, AVCOM compensated Fernandez with items of value including cash, jewelry, clothing, Miami Heat tickets, and a four-day cruise.
Fernandez concealed both the bribery scheme and his outside employment with AVCOM from the FAA. His outside employment included marketing and promoting AVCOM's business to its existing and potential customers and serving as a point-of-contact to such customers. He received payments in one of three ways: (1) cash payments, (2) checks and bank transfers as his AVCOM salary, and (3) checks and bank transfers as his mother's AVCOM salary. AVCOM paid Fernandez about $14,900 indirectly by placing Fernandez's mother, Juana Fores, on their payroll.
Fernandez and Fores deposited the cash payments in bank accounts controlled by either Fernandez or Fores. During an entire pay period in June 2013 when he claimed "sick leave" with the FAA, Fernandez was actually working at AVCOM. His gross pay for the entire pay period in June 2013 was $4,052. As a result of Fernandez taking sick leave during that pay period, his annual leave balance and corresponding pay-out after he resigned was 80 hours higher than it should have been. To corroborate his claim of sick leave, he submitted an allegedly forged doctor's note from a page of a prescription pad stolen from a local physician.
Following a 15-day trial, a jury found Fernandez guilty on all counts.
The district court later sentenced Fernandez to a 75-month total sentence. In calculating that sentence, the district court added two levels to the base offense pursuant to U.S.S.G. § 3C1.1(c), because Fernandez obstructed justice by knowingly suborning perjury from five family members, including testimony regarding the source of the cash deposits into the bank accounts controlled by Fernandez. The district court also found that Fernandez should not be able to work in the airline industry or the airline parts industry as a condition of his supervised release. Finally, the district court entered a forfeiture order of $183,730.76 against Fernandez.
We have jurisdiction under 28 U.S.C. § 1291 to review the district court's final judgments and authority to examine Fernandez's challenges to his sentence pursuant to 18 U.S.C. § 3742(a). And the district court had jurisdiction to enter its judgments pursuant to 18 U.S.C. § 3231.
Fernandez appeals his conviction on four grounds. First, he contends that the district court erroneously instructed the jury as to his official duties. Second, Fernandez argues that the district court incorrectly admitted evidence of his official duties. Third, he avers that the district court improperly permitted the government to misrepresent trial evidence in its closing argument. Finally, he challenges the sufficiency of the evidence on his bribery, wire fraud, and aggravated identity theft convictions.
Counts 17-31 of the indictment charged Fernandez with violations of 18 U.S.C. § 201(b)(2)(C). That statute prohibits public officials from receiving or agreeing to receive things of value in return for "being induced to do or omit to do any act in violation of the official duty of such official or person." Id. The statute does not define "official duty" as used (and charged here) under this subsection.
In contrast, 18 U.S.C. § 201(b)(2)(A) prohibits receiving or agreeing to receive things of value in return for being influenced in the performance of any "official act." "Official act" is a statutory term of art defined as "any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official's official capacity, or in such official's place of trust or profit." Id. § 201(a)(3).
Fernandez submitted a proposed jury instruction that would have applied the definition of "official act" from our pattern instruction O5.2 to "official duty." That proposed instruction defined "official duty" as follows:
To qualify as an "official duty," the public official must have [made a decision or taken an action] [agreed to make a decision or take an action] on a question, matter, cause, suit, proceeding, or controversy. Further, the question, matter, cause, suit, proceeding, or controversy must involve the formal exercise of governmental power. It must be similar in nature to a lawsuit before a court, a determination before an agency, or a hearing before a committee. It must also be something specific which requires particular attention by a public official.
The government argued below that Fernandez "is not charged with official act bribery" but instead, having violated his "official duties," "doing things that he is not authorized to do." The government urged the district court not to conflate "official duty," as charged in this case under § 201(b)(2)(C), with "official act," as used in § 201(b)(2)(A). The district court rejected Fernandez's proposed instruction. Our task here is to review the correctness of that decision.
We review the legal correctness of jury instructions de novo but review both the district court's phrasing of a jury instruction and refusal to give a requested instruction for abuse of discretion. United States v. Singer, 963 F.3d 1144, 1162 (11th Cir. 2020). We will not reverse a district court's decision to deny a requested jury instruction unless all of these conditions exist: (1) "the proposed instruction correctly reflects the law"; (2) the jury instructions the district court actually...
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