United States v. López-Martínez

Decision Date21 September 2020
Docket NumberCRIM. NO. 15-739 (PAD)
CourtUnited States District Courts. 1st Circuit. District of Puerto Rico

Delgado-Hernández, District Judge.

After 29 days of trial, a jury found defendants guilty of various offenses (Docket No. 810). Before the court are Ivonne Falcón-Nieves,' Marielis Falcón-Nieves,' and Glenn O. Rivera-Pizarro's motions for judgment of acquittal and for new trial (Docket Nos. 1036, 1037, 1054, 1055, and 1056), all of which the government opposed (Docket No. 1117).1 Defendants replied (Docket No. 1141). The Government responded, noting that no substantive sur-reply was needed (Docket No. 1169).2 For the reasons explained below, the motions are DENIED except for Mr. Rivera-Pizarro's request for judgment of acquittal as to Count 25, which is GRANTED.3 To facilitate review, a table of contents is included in the Appendix.


Defendants were charged with seven other defendants in a 24-Count Indictment (Docket No. 3). Six of the codefendants pled guilty prior to trial. See, Docket No. 185 (Mr. Anaudi Hernández); Docket No. 288 (Mr. Carlos Luna); Docket No. 320 (Ms. Sonia Barreto); Docket No. 336 (Mr. Javier Muñiz); Docket No. 365 (Mr. Víctor Burgos); and Docket No. 475 (Mr. Xavier González). Defendants and a codefendant - Ms. Sally López - went to trial and were found guilty as charged. Ms. López was found guilty as to Counts 1, 2, 3, 4, and 11. See, Docket No. 812. Ms. Falcón-Nieves was found guilty as to Counts 1, 6, 7, 8, 9, 13 and 17. See, Docket No. 813. Ms. Falcón was found guilty as to Count 17. See, Docket No. 814. Mr. Rivera-Pizarro was found guilty as to Counts 24 and 25. See, Docket No. 815. Ms. López was sentenced (Docket Nos. 1254 and 1255), and appealed the conviction to the First Circuit (Docket No. 1262).4 The remaining defendants - the movants here - seek a judgment of acquittal or a new trial. See, Docket Nos. 1036, 1037, 1054, 1055, and 1056.


Rule 29 of the Federal Rules of Criminal Procedure authorizes the court to set aside the verdict and enter an acquittal after a jury verdict or discharge. See, Fed.R.Crim.P. 29(c)(2)(setting forth authorization). A motion for judgment of acquittal requires examination of the evidence in the light most amiable to the government to assess whether, taking all reasonable inferences in its favor, a rational fact finder could find that the prosecution "proved each of the elements of the charged crime beyond a reasonable doubt." United States v. Lara, 181 F.3d 183, 200 (1st Cir. 1999). The hurdle to overturn a jury's conviction based on a sufficiency challenge is high, and the standard ofreview "exceedingly deferential." United States v. Binday, 804 F.3d 558, 572 (2d Cir. 2015). The government "need not succeed in eliminating every possible theory consistent with the defendant's innocence." United States v. Rodríguez-Durán, 507 F.3d 749, 758 (1st Cir. 2007).

In ruling on a motion for judgement of acquittal, the trial court "must resolve all evidentiary conflicts and credibility questions in the prosecution's favor; and moreover, as among competing inferences, two or more of which are plausible, the [court] must choose the inference that best fits the prosecution's theory of guilt." United States v. Olbres, 61 F.3d 967, 970 (1st Cir. 1995). Likewise, it "must reject only those interpretations that are unreasonable, insupportable, or overly speculative, and must uphold any verdict that is supported by a plausible rendition of the record." United States v. Ofray-Campos, 534 F.3d 1, 31-32 (1st Cir. 2008). Ultimately, it "need not believe that no verdict other than a guilty verdict could sensibly be reached, but must only satisfy itself that the guilty verdict finds support in a plausible rendition of the record." United States v. Cruzado-Laureano, 404 F.3d 470, 480 (1st Cir. 2005).

In turn, Rule 33 of the Federal Rules of Criminal Procedure provides that "[u]pon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires." Fed.R.Crim.P. 33(a). The court's authority to grant a new trial is broader than the authority to "overturn a jury's verdict through a judgment of acquittal." United States v. Rothrock, 806 F.2d 318, 321 (1st Cir. 1986). The court may weigh the evidence and assess the credibility of the witnesses who testified at trial. Id. But the remedy of a new trial should be sparingly used. Id. A trial judge "is not a thirteenth juror who may set aside the verdict merely because he would have reached a different result." Id. at 322. A new trial is warranted "only where there would be a miscarriage of justice or where the evidence preponderates heavily against the verdict." United States v. Rodríguez-De Jesús, 202 F.3d 482, 486 (1st Cir. 2000).


Defendants were convicted of one or more of the following offenses: conspiracy to commit federal programs fraud and honest services wire fraud in violation of 18 U.S.C. §§ 371 and 1349; honest services wire fraud in violation of 18 U.S.C. §§ 1343 and 1346; intentional misapplication of property by agent of an organization receiving federal funds in violation of 18 U.S.C. § 666(a)(1)(A); receipt of a bribe by an agent of an organization receiving federal funds in violation of 18 U.S.C. § 666(a)(1)(B); and extortion through fear of economic harm in violation of 18 U.S.C. § 1951.

The conspiracy counts fall under 18 U.S.C. §§ 371 and 1349. Section 371 ("Conspiracy to commit offense or to defraud United States"), provides that if two or more persons conspire either to commit any offense against the United States or to defraud the United States or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined or imprisoned or both. See, 18 U.S.C. § 371. Section 1349 ("Attempt and Conspiracy") states that any person who attempts or conspires to commit any offense under Chapter 63 of Title 18 of the United States Code ("Mail Fraud and other Fraud Offenses"), shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy. See, 18 U.S.C. § 1349.

The substantive counts derive from 18 U.S.C. §§ 1343, 1346, 666(a)(1)(A), 666(a)(1)(B), and 1951. Section 1343 ("Fraud by wire, radio, or television") provides in part that whoever, having devised or intending to devise any scheme or artifice to defraud, transmits by means of wire in interstate or foreign commerce, any writing for the purpose of executing such scheme or artifice, shall be fined, imprisoned or both.5 18 U.S.C. § 1343. Traditionally, the mail and wire fraud statutes reached schemes that deprived the fraud victim of money, property or some other item of economic value. See, Martin, 228 F.3d at 15 (so noting). Some courts expanded the permissible statutory scope to encompass schemes intended to defraud citizens of their intangible, non-property right to the honest services of their public officials. See, United States v. Sawyer, 85 F.3d 713, 723 (1st Cir. 1996)(discussing honest services theory).

In 1987, the Supreme Court held that the mail fraud statute was limited to the protection of property rights, and did not prohibit schemes to defraud citizens of their right to honest and impartial government. See, McNally v. United States, 483 U.S. 350, 359 (1987)(so holding). Congress reacted by enacting Section 1346. See, Sawyer, 85 F.3d at 723 (explaining origin of Section 1346). To this end, Section 1346 provides that, for purposes of, inter alia, the mail and wire fraud statutes, the term "scheme or artifice to defraud" includes a scheme or artifice to deprive another of the intangible right of honest services. See, 18 U.S.C. § 1346.

In 2010, the Supreme Court concluded that Section 1346 covers only "bribery and kickback schemes." Skilling v. United States, 561 U.S. 358, 367 (2010). In this connection, Section 201 ("Bribery of public officials and witnesses"), provides in part that it is unlawful for a public official to demand, seek, receive, accept, or agree to receive or accept anything of value personally or for any other person or entity in return for being influenced in the performance of any official act, being influenced to commit or aid in committing, or to collude in, or allow, any fraud, or make opportunity for the commission of any fraud on the United States, or being induced to do or omitto do any act in violation of the official duty or such official or person. See, 18 U.S.C. § 201 (b)(2).6

Section 666(a)(1)(A)("Theft or bribery concerning programs receiving Federal funds"), provides that whoever, being an agent of an organization, or of a State, local, or Indian tribal government, or any agency thereof, embezzles, steals, obtains by fraud, or otherwise without authority knowingly converts to the use of any person other than the rightful owner or intentionally misapplies property that is valued at $5,000 or more, and is owned by, or is under the care, custody, or control of such organization, government or agency, where the organization, government, or agency receives, in any one year period, benefits in excess of $10,000 under a Federal program involving a grant, contract, subsidy, loan, guarantee, insurance, or other form of Federal assistance, shall be fined, imprisoned or both. See, 18 U.S.C. § 666(a)(1)(A) and (b).

Section 666(a)(1)(B) ("Theft or bribery concerning programs receiving Federal funds"), provides that whoever, 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...

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