United States v. Meléndez-González

• Decision Date: 04 June 2018
• Docket Number: No. 17-1084, No. 17-1113,17-1084
• Citation: 892 F.3d 9
• Parties: UNITED STATES of America, Appellee, v. Carlos MELÉNDEZ–GONZÁLEZ, Defendant, Appellant. United States of America, Appellee, v. Enrique Costas–Torres, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

892 F.3d 9

UNITED STATES of America, Appellee,

v.Carlos MELÉNDEZ–GONZÁLEZ, Defendant, Appellant.

United States of America, Appellee,

v.Enrique Costas–Torres, Defendant, Appellant.

No. 17-1084

No. 17-1113

United States Court of Appeals, First Circuit.

June 4, 2018

Edgar L. Sánchez–Mercado and ESM Law Office, San Juan, PA, on brief for appellant Carlos Meléndez–González.

Allan A. Rivera–Fernández, Hato Rey, PR, with whom Luis Rafael Rivera–Rodríguez and Luis Rafael Rivera Rodríguez Law Offices, San Juan, PR, were on brief, for appellant Enrique Costas–Torres.

Steven L. Lane, Appellate Counsel, National Security Division, U.S. Department of Justice, with whom Rosa E. Rodríguez–Vélez, United States Attorney, was on brief, for appellee.

Before Torruella, Selya, and Lynch, Circuit Judges.

LYNCH, Circuit Judge.

This case involves convictions in December 2016 for fraudulent recruitment practices from March 2006 through June 2008 by members of the U.S. Army National Guard in Puerto Rico. Defendant National Guard officers Carlos Meléndez–González and Enrique Costas–Torres carried out a scheme to procure recruitment bonuses to which they were not entitled. They were convicted after a jury trial of wire fraud, embezzlement of public money, and conspiracy. Their appeals from their convictions raise multiple issues, including tolling under the Wartime Suspension of Limitations Act, 18 U.S.C. § 3287 ; rulings by the district court as to dress in the courtroom, meant to protect the jury from prejudicial influence; sufficiency of the evidence of a conspiracy to defraud the United States; and what constitutes impermissible "overview" testimony. Finding no merit in any of defendants' many claims of error, we affirm.

I.

We review the evidence "in the light most favorable to the verdict." United States v. Van Horn, 277 F.3d 48, 50 (1st Cir. 2002) (citing United States v. Escobar-de Jesus, 187 F.3d 148, 157 (1st Cir. 1999) ).

In 2005, the Department of Defense instituted the National Guard Recruiting Assistance Program ("G–RAP") to help recruit soldiers during the ongoing conflicts in Iraq and Afghanistan. G–RAP was intended to supplement the National Guard's traditional reliance on full-time recruiters. It enabled Guard members who are not full-time recruiters to register as "Recruiting Assistants," use their personal networks to identify and nominate potential recruits and refer them to full-time recruiters, and receive bonuses if their nominees ultimately enlist. Docupak, a marketing company and contractor, administered G–RAP by hiring and managing Recruiting Assistants and processing bonus payments.

To become a Recruiting Assistant, an applicant completed an online application, verified his eligibility, created an online profile, and completed a mandatory training. Importantly, Recruiting Assistants were prohibited from sharing G–RAP bonuses with full-time recruiters, and this limit was emphasized in the original training module. The rules also specified, as set forth in a revised training module, that Recruiting Assistants were prohibited from receiving information about a nominee from a recruiter without the nominee's consent, and from nominating an individual they did not know.

Only upon successfully completing training (which entailed reviewing the information in the training modules and then passing a quiz) could a Recruiting Assistant begin identifying potential recruits. After making a nomination, the Recruiting Assistant would facilitate a meeting between the nominee and a full-time recruiter. The full-time recruiter would assess the nominee's qualifications, perform aptitude tests, and run a background check. The Recruiting Assistant was expected to provide support and mentorship to the nominee throughout this process. As compensation, the Recruiting Assistant would receive a $1,000 payment if the nominee enlisted and an additional $1,000 payment if the nominee progressed to basic training. Each Recruiting Assistant recorded his or her participation in the online system administered by Docupak: first by creating a profile for each nominee with the nominee's personal identifying information, then by adding entries detailing each nominee's progress.

Carlos Meléndez–González ("Meléndez"), a part-time member of the Army National Guard, became a Recruiting Assistant in 2006. Between 2006 and 2008, Meléndez received $21,000 in recruitment bonuses for twelve new National Guard enlistees recorded as his nominees on his G–RAP account.

After an Army Audit Agency review found "signs of possible fraud" in G–RAP, the Army Criminal Investigations Division ("CID") launched a nationwide investigation.

In an interview with investigators in 2013, Meléndez admitted that he did not know most of his nominees. Nor did he act as a Recruiting Assistant for any of them; the nominees were all recruited by Enrique Costas–Torres ("Costas"), a full-time recruiter who was not eligible for recruitment bonuses. Meléndez knew Costas from a previous posting. The investigation also revealed that Meléndez's G–RAP account contained various false statements, including claims that he had had meetings with nominees that in fact never occurred. Meléndez also informed investigators that he had provided his G–RAP account password to Costas.

The investigators concluded that Meléndez and Costas had carried out a fraudulent scheme to obtain recruitment bonuses: Costas enlisted new recruits and provided Meléndez with their personal identifying information, and Meléndez pretended that the recruits were his own leads in order to collect bonuses and then to split the proceeds with Costas. On October 21, 2015, a grand jury returned an indictment charging Costas and Meléndez with conspiracy to defraud the United States, in violation of 18 U.S.C. § 371 ; conspiracy to commit wire fraud, in violation of 18 U.S.C. § 1349 ; wire fraud, in violation of 18 U.S.C. § 1343 ; and aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1). All charges pertained to conduct that occurred between March 2006 and June 2008. On April 13, 2016, the grand jury returned a superseding indictment charging the same offenses plus one count of embezzling public money, in violation of 18 U.S.C. §§ 641 – 642, pertaining to the same conduct.

The two were tried jointly. Neither testified. At the close of an eight-day trial by jury, Meléndez was convicted of one count of conspiracy to defraud the United States, one count of embezzling public money, one count of conspiracy to commit wire fraud, and thirteen counts of wire fraud. Costas was convicted of three counts of wire fraud. The district court granted the defendants' motion for acquittal on one count of wire fraud and one count of aggravated identity theft. The jury found the defendants not guilty on the remaining counts.

Costas was sentenced to one year in prison, three years of supervised release, a $5,000 fine, and $3,000 in restitution. Meléndez was sentenced to time served (approximately two months), two years of supervised release, and $20,000 in restitution. The court found that Costas had the "main role" in the scheme because he was "a higher ranking officer and was the one with access to the personal and identifying information for all the recruited ... persons for which payments were processed." The court determined that Costas had not only provided his recruits' personal information to Meléndez but had also himself accessed Meléndez's G–RAP account and directly input information for certain recruits.

Costas appealed his conviction and sentence. Meléndez appealed only his conviction. Their appeals were consolidated.¹

II.

We address defendants' challenges to their convictions, then dispose of Costas's challenges to his sentence. Costas's brief repeats virtually verbatim the language in Meléndez's brief and raises claims of his own. We treat the shared arguments together.²

A. Statute of Limitations and Pre–Indictment Delay

Defendants first argue that the district court erred in denying their pretrial motion to dismiss the indictment as untimely. We review this issue de novo. United States v. Ngige, 780 F.3d 497, 502 (1st Cir. 2015).

Defendants were indicted in 2015 for conduct that took place between March 2006 and June 2008. The district court held that the general five-year statute of limitations that applies to the criminal statutes under which defendants were charged, see 18 U.S.C. § 3282(a), was tolled by the Wartime Suspension of Limitations Act, 18 U.S.C. § 3287 ("WSLA").

As amended in October 2008,³ the WSLA tolls the statute of limitations for any offense involving, inter alia, fraud against the United States, "[w]hen the United States is at war or Congress has enacted a specific authorization for the use of the Armed Forces ... until 5 years after the termination of hostilities as proclaimed by a Presidential proclamation, with notice to Congress, or by a concurrent resolution of Congress." Id. The district court found that the 2001 Authorization for the Use of Military Force, Pub. L. No. 107–40, 115 Stat. 224 (2001) ("AUMF"), "triggered, and continues to trigger," the WSLA's tolling provisions.

On appeal, defendants renew two arguments that the district court considered and soundly rejected: (1) that the AUMF constitutes an unconstitutional delegation of legislative authority to the President in violation of separation of powers principles, and (2) that the hostilities authorized by the AUMF ended before defendants' alleged crimes occurred. We reject these arguments for substantially the same reasons. Defendants' claim is that the AUMF lacks a "sufficient statutory standard to guide the President." But defendants do not deny that tolling of the WSLA is triggered by the "enact[ment] of a specific authorization for the use of the Armed Forces" and that the AUMF indisputably qualifies as such.

The WSLA provides for tolling until the termination of hostilities is formally announced "by a Presidential proclamation, with notice to Congress, or...