United States v. Lopez
| Decision Date | 29 June 2020 |
| Docket Number | No. 18-50465,18-50465 |
| Parties | UNITED STATES OF AMERICA, Plaintiff - Appellee v. RICARDO LOPEZ, Defendant - Appellant |
| Court | U.S. Court of Appeals — Fifth Circuit |
Appeal from the United States District Court for the Western District of Texas
Before KING, GRAVES, and OLDHAM, Circuit Judges.
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The defendant was convicted of taking a bribe and engaging in other corrupt activity while serving as the mayor of a small city. On appeal, he does not contest his guilt but argues that the amount of restitution ordered was too high, his sentence too long, and his conditions of supervised release too onerous. We affirm the judgment of the district court in all respects.
In 2015, gambling entrepreneur Ngoc Tri Nguyen set his sights on Crystal City, Texas, looking for a new location to run an illegal "eight-liner" gambling operation.1 He found a place to rent, and as luck would have it, his landlord was Crystal City's mayor, defendant Ricardo Lopez. Nguyen soon sought to expand the building in order to fit more machines, and Lopez suggested that Nguyen buy the building from him. Lopez and Nguyen agreed to a cash price of $40,000. Unbeknownst to Nguyen, however, Lopez did not actually own the building. Lopez had been in talks with the building's true owner, a man named Harry Thompson, to buy it for $36,000, but the deal never materialized. Once Lopez agreed to "sell" the building to Nguyen, though, Lopez returned to Thompson with the news that he had found a buyer. Nguyen paid Lopez $40,000 in cash, Lopez paid Thompson $36,000 in cash, and Thompson transferred title to Nguyen.
This marked the beginning of a fruitful relationship for Lopez and Nguyen. Lopez took Nguyen's gambling operation under his wing, helping him pass electrical inspections, keeping him out of trouble with the law, and even renaming the street leading to Nguyen's building after Nguyen's son. At the same time, James Jonas, the city manager and city attorney, had the police shut down a rival eight-liner operation.
Soon Lopez was negotiating with another property owner, Titakudi Natarajan, on Nguyen's behalf. Nguyen had promised Lopez that, if all went well, he could run a restaurant that Nguyen was planning to build. The price that Natarajan quoted was outside Nguyen's price range, however, so Lopezproposed that Nguyen could get a loan from the city, which the city would then forgive, in order to afford the property.
At another point, Lopez approached Nguyen and asked for a $6000 loan, to buy a new car. Nguyen loaned him the money. Subsequently, Nguyen proposed to Lopez that he would forgive the loan if the city would waive around $4000 in taxes that Nguyen had coming due. Lopez agreed, and Jonas had the city's finance director waive Nguyen's taxes.
Ultimately, the government indicted Lopez, Jonas, Nguyen, and three city councilmembers, Rogelio Mata, Roel Mata, and Gilbert Urrabazo, for conspiring to commit federal-programs bribery. Only Lopez and Jonas went to trial. The two men were eventually charged with conspiring to commit federal-programs bribery, under 18 U.S.C. §§ 371, 666(a)(1)(B), and conspiring to commit wire fraud involving theft of honest services, under 18 U.S.C. §§ 1343, 1346, 1349, all in connection with their dealings with Nguyen as well as two other corrupt schemes that principally involved Jonas.2 Lopez was also charged with a substantive count of bribery for accepting forgiveness of Nguyen's $6000 loan and substantive counts of wire fraud in connection with the Natarajan property deal. The jury found Lopez guilty on all counts.
After the trial, Lopez sought to be released on bond pending sentencing. His counsel argued that Lopez had been prescribed painkillers for his recent back surgery but was only able to obtain ibuprofen while incarcerated. Counsel provided copies of the prescriptions to the district court, but the court becametroubled that Lopez had received three hydrocodone prescriptions, from three different doctors, in the span of one month, including two on the same day. The district court denied bond, stating that,
At sentencing, the district court remarked that Lopez's presentence investigation report (PSR) said nothing about the prescriptions that Lopez had provided at the bond hearing.3 The district court explained, "because it's an addictive substance I want to send him to drug aftercare and impose drug conditions." Lopez did not object. Among the conditions of his eventual supervised release, the district court ordered that Lopez "not knowingly purchase, possess, distribute, administer or otherwise use any psychoactive substances such as synthetic marijuana, bath salts, et cetera, that impair a person's physical or mental functioning, whether or not intended for human consumption."
The PSR contained a letter from Santos Camarillo, Crystal City's new city manager. According to the letter, Lopez "defrauded the taxpayers of the City of Crystal City in the amount of $18,003.95." The letter explained that Lopez made "unnecessary and frivolous trips" at taxpayer expense and that his requests for reimbursement often had "little to no backup documentation." The letter stated that Jonas told the city's finance department to "just pay [Lopez]" because they "need to keep the Mayor happy." The letter noted in particular that Lopez spent $1220.80 on a trip to El Paso to see a recycling center, $535.05on a trip to Houston for the lunar new year, and $571.54 attending a conference for lawyers, despite not being a lawyer himself. The letter also described other occasions on which Lopez allegedly misspent funds, but it did not contain any other specific dollar amounts.
At sentencing, Lopez objected both to the total amount and to the characterization of these expenses as "frivolous and unnecessary," and he subpoenaed Camarillo to testify. Camarillo testified that she totaled up and reviewed all of Lopez's expenses and concluded that "every single expenditure" was "frivolous and unnecessary." With regard to the trip to El Paso, she opined that "[i]t was frivolous because [Lopez] didn't have to go as far as El Paso" to see a recycling center. And she stated that the expenses relating to the conference were frivolous because they included "$78 for laundry" as well as "many" minibar expenses. Lopez presented no evidence to rebut Camarillo's testimony, and the district court thus overruled his objection, finding there to be "reasonable and reliable and credible evidence" that Lopez should have to repay $18,003.95 to the city. The district court thus imposed a restitution order of $24,003.95, consisting of the amount just discussed plus $6000 for Nguyen's waived taxes.4
The PSR also stated that Lopez should be held responsible for an intended loss to the city of between $15,000 and $40,000. The probation office arrived at this amount by summing (i) $11,291.73, the total amount of bribes that Lopez's coconspirators had received, and (ii) $6000, the amount that Nguyen paid Lopez.5 At sentencing, Lopez objected to the $11,291.73, on theground that he was unaware of and did not profit from those bribes. The district court overruled the objection, on the basis that Lopez was in a conspiracy with the individuals who did receive the bribes. Accordingly, Lopez was held responsible for a loss of $17,291.73, which raised his offense level by four under the sentencing guidelines. See U.S. Sentencing Guidelines Manual §§ 2B1.1(b)(1)(C), 2C1.1(b)(2) (U.S. Sentencing Comm'n 2018).
The PSR indicated that Lopez's offense level should be increased by an additional four because he "was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive." See id. § 3B1.1(a). Lopez objected to this enhancement as well, on the basis that he had "little or no control over" his coconspirators and that, in fact, Jonas and Rogelio and Roel Mata had a "much more substantial leadership role." The district court overruled this objection, stating that, based on the evidence at trial, "Lopez was very much involved in terms of giving instructions of how items and matters and monies were to be used; and how people were to be dealt with . . . ; and making sure that people on the city council . . . [and Jonas] were being taken care of."
Accordingly, Lopez's guideline sentencing range was 78-97 months, and the district court sentenced him to 97 months' imprisonment. This appeal followed.
We review "the legality of a restitution order de novo and the amount of the restitution order for an abuse of discretion." United States v. Arledge, 553 F.3d 881, 897 (5th Cir. 2008). And we review the district court's factual findingsunderlying the restitution order for clear error. See United States v. Sharma, 703 F.3d 318, 322 (5th Cir. 2012). The government bears the burden of demonstrating the amount that the victim lost. See 18 U.S.C. § 3664(e). "[E]xcessive restitution awards cannot be excused by harmless error; every dollar must be supported by record evidence." Sharma, 703 F.3d at 323.
Lopez argues that the restitution order was invalid because the government did not provide an evidentiary foundation for the entirety of the $18,003.95 claimed by Camarillo and because Camarillo's testimony was unreliable.6
There is no evidence in the record detailing the dollar amounts of each of Lopez's "frivolous and unnecessary" expenditures as mayor. But the district court did have sworn testimony from Camarillo that Lopez inappropriately charged the city $18,003.95. Although Lopez attempted to impeach Camarillo's credibility,7 the district court was entitled to, and evidently did, credit her testimony. And Lopez had no contrary evidence of his own. This case is thus unlike ...
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