United States v. Lopez-Cotto , 884 F.3d 1 ( 2018 )

United States Court of Appeals
For the First Circuit
No. 14-1142
UNITED STATES OF AMERICA,
Appellee,
v.
PEDRO LOPEZ-COTTO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
Before
Howard, Chief Judge,
Lynch and Lipez, Circuit Judges.
Michelle Menken, with whom The Law Office of Michelle Menken
was on brief, for appellant.
John Starcher, Attorney, United States Department of Justice,
with whom Carmen M. Ortiz, United States Attorney, was on brief,
for appellee.
February 27, 2018
LIPEZ, Circuit Judge. Appellant Pedro Jose Lopez-Cotto
("Lopez"), a police officer in the City of Lawrence, Massachusetts,
was indicted on charges of participating in a bribery scheme
whereby he referred large numbers of vehicle towing requests
to M & W Towing in exchange for a stream of benefits that included
discounts on the purchase of abandoned cars and equipment. After
a jury trial, Lopez was convicted of federal program bribery, lying
to a federal agent, and obstructing justice while attempting to
cover up the scheme.
In this appeal, Lopez argues that the district court's
jury instructions effected a constructive amendment of the
indictment on the bribery count. He also argues that the inclusion
of a unanimity instruction in the jury charge on the particular
benefits included within the "stream of benefits" alleged by the
government on the bribery count prejudiced him by confusing and
misleading the jury. Additionally, he claims that the court
admitted impermissible evidence of past bad acts and failed to
adequately instruct the jury about the testimony of immunized
cooperating witnesses.
After careful review of the record and the law, we
affirm.
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I.
We recount the facts of the case as presented at trial,
reserving additional details of the testimony and procedural
history for the analysis that follows.
M & W Towing is a business owned by Wilson Calixto, a
friend of Lopez. Lopez also knew Carlos Ortiz, one of M & W's tow
truck drivers, and Mayra Colon, the secretary at M & W. In June
2011, FBI agents visited M & W Towing to ask Calixto about a snow
plow that Lopez had purchased from a third party earlier that year.
Lopez had bought the plow for $4,000 using a check signed by
Calixto and drawn from M & W's account. Calixto told the FBI
agents that Lopez had never reimbursed him for the cost of the
plow.
After the FBI left, Lopez and Calixto spoke about the
FBI's visit. Lopez told Calixto that it was unethical for him to
receive the plow and he could face suspension or jail. Colon, M
& W's secretary, convinced Calixto that he should change his story
to help Lopez. She suggested that Calixto tell the FBI that Lopez
had reimbursed M & W, but he had forgotten because he was drunk at
the time of the FBI agents' visit. To support this story, Colon
created a fake receipt showing that Lopez had reimbursed M & W for
the $4,000 in February 2011. When the FBI visited M & W again,
both Colon and Calixto told the agents that Lopez had paid for the
snow plow. Around the same time, Lopez gave the FBI the fake
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receipt and told FBI agents that he had reimbursed M & W for the
plow.
Eventually, Calixto, Colon, and Ortiz all agreed to
cooperate with the government in exchange for immunity. This
cooperation led to Lopez's indictment on charges of federal program
bribery in violation of 18 U.S.C. § 666(a)(1)(B), making a false
statement to a federal agent in violation of 18 U.S.C. § 1001, and
obstruction of justice in violation of 18 U.S.C. § 1512(c)(2).
Lopez pleaded not guilty. Calixto, Colon, and Ortiz testified at
Lopez's trial.
There, the government presented evidence that Lopez had
been illegally using his position as a police officer to receive
benefits from M & W. During the relevant time period, the City of
Lawrence contracted with four towing companies, one of which was
M & W. These four companies towed vehicles for the Lawrence Police
Department one week per month during each company's respective
"police week." During that assigned week, patrolmen like Lopez
would call the company whenever they needed a vehicle to be towed
due to a violation, such as illegal parking or unlicensed driving.
In return, the towing companies earned money from the tows, either
from fees paid by the vehicle's owner when the owner claimed the
car or from the sale of abandoned cars. On average, M & W earned
$145 each time an owner reclaimed his or her towed car.
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The government presented evidence that Lopez abused this
towing system. Ortiz testified that Lopez approached him in
December 2010 to inquire about a Suzuki Reno that had been
abandoned in M & W's lot. M & W was asking $4,500 for the vehicle,
but Lopez proposed that he pay $1,000 in cash and then refer for
towing at least 35 vehicles during M & W's police week. Ortiz
relayed the proposal to Calixto, who calculated that the value of
the tows plus the $1,000 in cash was worth much more than his
asking price. Calixto testified that he also became worried that
if he did not agree to Lopez's proposal, Lopez would "shut off"
M & W and prevent it from towing vehicles during its police week.
Lopez had mentioned to Calixto that after another towing company,
Valley Towing, refused to give him a discount, he decided that "he
wouldn't tow no vehicles for that company unless it was really
necessary." Calixto accepted Lopez's offer for the Suzuki.
The government corroborated Calixto's testimony with
evidence that Lopez ordered many more cars towed during M & W's
police weeks in December 2010 and January 2011 than he had during
the same months of the previous year. Calixto also testified that,
after this increase, Lopez began to show interest in additional
abandoned vehicles on M & W's lot. As a result, Calixto sold Lopez
a Ford Escape for $1,000, despite an asking price of $1,500, and
he gave Lopez a Nissan Altima without any direct payment. Calixto
further testified that he bought Lopez a new engine for the Altima
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after the car began experiencing mechanical problems. Lastly, in
February 2011, Lopez asked Calixto for a snow plow to attach to
his truck. In response, Calixto gave Lopez a blank, signed check
drawn from M & W's account for the purpose of purchasing a plow -
- the transaction about which the FBI agents later questioned
Calixto during their June 2011 visit to M & W.
Calixto admitted at trial that he and Lopez never
explicitly discussed trading a specific number of tows for the
Escape, the Altima, the car engine, or the plow. However, Lopez
continued to refer a high volume of tows to M & W, and Calixto
felt that the tows served as adequate compensation for these items.
The government bolstered Calixto's testimony with evidence showing
that Lopez continued to request more tows during M & W's police
weeks through June 2011 -- excluding the month of April -- than he
had during the same months the year before. According to Calixto,
Lopez explained the April slow-down as a reaction to his fear that
he was being investigated.
During closing arguments, the government stated that
Lopez had directed a total of 162 tows to M & W during the period
in question. Multiplied by an average of $145 in fees earned for
each non-abandoned car, those tows came to approximately $23,000
in revenue for M & W. The jury found Lopez guilty on all three
counts. Lopez was sentenced to 18 months of incarceration followed
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by 36 months' supervised release, and was ordered to pay a fine of
$10,000. He timely appealed his conviction.
Lopez makes four arguments on appeal: (1) a combination
of problems with the jury instructions on the bribery charge
effected a constructive amendment of the indictment; (2) the
unanimity instruction, requiring the jury to agree unanimously on
the particular benefit or benefits included within the "stream of
benefits" alleged by the government on the bribery charge, was, on
its own, confusing, misleading, and prejudicial; (3) the court
erred in admitting testimony about Lopez's past actions toward
Valley Towing; and (4) the jury was inadequately instructed on how
to evaluate the credibility of immunized cooperating witnesses.
We consider each of these arguments in turn.
II.
Lopez contends that several errors in the jury
instructions on the bribery charge, taken together, constituted a
constructive amendment of the indictment. "[A] constructive
amendment occurs where the crime charged has been altered, 'either
literally or in effect,' after the grand jury last passed upon
it." United States v. Mubayyid, 658 F.3d 35, 49 (1st Cir. 2011)
(quoting United States v. Bunchan, 626 F.3d 29, 32 (1st Cir.
2010)). Lopez asserts that the flawed instructions improperly
allowed the jury to find him guilty based on an agreement for a
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single benefit rather than, as he was charged, an agreement for a
"stream of benefits."
Lopez concedes that he never raised this constructive
amendment issue in the district court. Plain error review,
therefore, applies. See United States v. McIvery, 806 F.3d 645,
651 (1st Cir. 2015).1 To meet the plain error standard, Lopez must
show: "(1) that an error occurred (2) which was clear or obvious
and which not only (3) affected [his] substantial rights, but also
(4) seriously impaired the fairness, integrity, or public
reputation of judicial proceedings." Id. (quoting United States
v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001)).2
Before examining the asserted instructional errors that
Lopez contends resulted in a constructive amendment, we briefly
1In McIvery, we clarified that "[f]orfeited errors are
normally reviewed only for plain error, and forfeited constructive
amendment claims are no exception." 806 F.3d at 651 (internal
citations omitted); see also United States v. Brandao, 539 F.3d
44, 60 (1st Cir. 2008) ("We agree with those circuits that apply
the standard prejudice evaluation to constructive amendment claims
on plain error review and do not presume prejudice.").
2Constructive amendments present serious concerns about a
defendant's substantial rights, implicating, inter alia, a
"defendant's Fifth Amendment right to indictment by grand jury"
and a "defendant's Sixth Amendment right to be informed of the
charges against him." McIvery, 806 F.3d at 652.
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review the bribery statute under which he was convicted, 18 U.S.C.
§ 666, and the allegations in the indictment.
A. The Statute
The federal program bribery statute, in relevant part,
prohibits public officials3 from
corruptly solicit[ing] or demand[ing] for the benefit of
any person, or accept[ing] or agree[ing] to accept,
anything of value from any person, intending to be
influenced or rewarded in connection with any business,
transaction, or series of transactions of [the relevant
state or local government agency] involving any thing of
value of $5,000 or more.
18 U.S.C. § 666(a)(1)(B). In other words, a violation of
§ 666(a)(1)(B) occurs when a government official exchanges
government business worth at least $5,000 for a benefit to the
official.
The actions of government officials can run afoul of
§ 666(a)(1)(B) in different ways. A government official violates
§ 666(a)(1)(B) if he exchanges or agrees to exchange $5,000 of
government business for a single benefit. For example,
§ 666(a)(1)(B) would be violated if an official awarded or agreed
to award government contracts worth a total value of $5,000 (or
more) to a landscaping company in exchange for the company's
3The statute applies only to officials of state, local, or
Indian tribal governments, or governmental agencies, that
"receive[], in any one year period, benefits in excess of $10,000
under a Federal program." 18 U.S.C. § 666(b). It is undisputed
that this jurisdictional requirement is met in this case.
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discounted, one-time landscaping of the official's backyard.
Alternatively, an official violates § 666(a)(1)(B) if he exchanges
or agrees to exchange $5,000 of government business for a series
of benefits. To use a similar example, a § 666(a)(1)(B) violation
would occur if a government official awarded or agreed to award
government contracts worth a total of $5,000 (or more) to a
landscaping company in exchange for the official's receipt, over
time, of a series of discounted landscape work at his home. See
United States v. McDonough, 727 F.3d 143, 154 (1st Cir. 2013)
(stating that "[b]ribery can be accomplished through an ongoing
course of conduct" (quoting United States v. Ganim, 510 F.3d 134,
149 (2nd Cir. 2007)).4
The latter scenario would permit a "stream of benefits"
prosecution approach, wherein a government official is charged
with entering into an ongoing agreement to accept benefits in
exchange for providing government business to the briber.5 When a
defendant is indicted on the stream of benefits approach, the
4 These scenarios are illustrative only, and we do not suggest
that they describe all fact patterns in which a government official
might violate § 666(a)(1)(b).
5 Although the case law on "stream of benefits" mostly
involves cases of honest services fraud, both parties accept its
applicability in the context of program bribery. Cf. United States
v. Sawyer, 85 F.3d 713, 730 (1st Cir. 1996) (holding that "a person
with continuing and long-term interests before an official might
engage in a pattern of repeated, intentional gratuity offenses in
order to coax ongoing favorable official action"); United States
v. Kemp, 500 F.3d 257, 282 (3d Cir. 2007).
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prosecution must prove an agreement for the ongoing stream of
benefits rather than an agreement for stand-alone bribes. The
prosecution need not, however, link the value of the government
business conferred to any particular benefit received by the
official. Rather, the government must show that, in the aggregate,
under the ongoing scheme, the government business conferred had a
value of at least $5,000.
B. The Indictment and the Jury Instructions
In colloquies with counsel during trial, the district
court expressed concern about the government's ability to prove
the indictment's allegation that Lopez agreed to accept a "stream
of benefits." Count One of the indictment alleged that Lopez
"corruptly solicited and demanded, and accepted and agreed to
accept, a stream of benefits from [M & W Towing], including, but
not limited to, a free $4,000.00 snow plow," in exchange for using
his position as a Lawrence patrolman to direct at least $5,000
worth of tows to M & W. Acknowledging that the government had
presented evidence of an initial agreement to exchange tows for a
discount on the Suzuki, the court questioned whether there was
evidence of an agreement to continue that exchange in relation to
other benefits. The court worried, however, that allowing the
government to change its theory to prove only one benefit, rather
than a "stream of benefits," would be a constructive amendment of
the crime alleged in the indictment. To avoid that problem, the
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court decided to charge the jury on the stream of benefits theory,
reserving its final judgment on whether there was sufficient
evidence to support that approach.6
Notwithstanding the court's decision to proceed with a
"stream of benefits" jury charge, Lopez identifies three aspects
of the instructions which, taken together, still effected, in his
view, a constructive amendment of the indictment by permitting the
jury to convict him of program bribery based on the single benefit
approach. First, he faults the district court for not explicitly
defining the concept of a "stream of benefits." Second, he claims
that the court's decision to deliver a unanimity instruction7
improperly implied that the "stream," an undefined concept, could
consist of only one item. Lastly, he asserts that the portion of
the instruction explaining that the government had to show that
"any proven bribe" involved at least $5,000 of towing business
could have, inadvertently, reinforced the idea that the jury could
convict Lopez based on a single benefit, rather than on a "stream
6 After the jury returned a guilty verdict on all counts, the
court denied Lopez's renewed motion for judgment of acquittal.
See Fed. R. Crim. P. 29.
7 We discuss the unanimity instruction in detail in section
III. Essentially, the judge told the jury that, in addition to
unanimously finding a stream of benefits, the jury had to
unanimously agree upon at least one of the component benefits which
comprised the stream.
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of benefits."8 The cumulative impact of these problems, Lopez
claims, was an instruction to the jury that described, in effect,
a crime different from the crime charged in the indictment.
Although Lopez draws our attention to three specific
aspects of the jury charge, we must look at the instructions "as
a whole" to determine if error occurred. United States v.
Candelario-Santana, 834 F.3d 8, 27 (1st Cir. 2016) (inquiring
whether the instructions "as a whole . . . adequately explain the
law without confusing or misleading the jury" (quoting United
States v. Fermin, 771 F.3d 71, 80 (1st Cir. 2014))). The court's
instructions on the bribery charge included the following language
pertinent to Lopez's constructive-amendment claim:
In Count 1, it is alleged, among other things, that
the defendant solicited, demanded, accepted, or agreed
to accept a stream of benefits from M & W Towing in
exchange for directing tows to the company. The
government argues that these benefits included the
opportunity to buy a Suzuki at a discounted price, the
opportunity to buy a Ford Escape at a discounted price,
the opportunity to get a Nissan Ultima free or at a
discounted price, and a free snow plow. The government
is not required to prove that the defendant solicited,
demanded, accepted, or agreed to accept every one of
these alleged benefits, however for the defendant to be
found guilty on Count 1 the government is required to
prove that the defendant corruptly solicited and
demanded, accepted, or agreed to accept a stream of
benefits that included at least one of them.
8The $5,000 threshold requirement of § 666 pertains to the
value of the government business conferred in the transaction --
the value of the tows supplied by Lopez -- not to the value of the
benefits Lopez received.
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To find that the government has proven this, you
must agree unanimously on which particular benefit or
benefits Mr. Lopez corruptly solicited, demanded,
accepted, or agreed to accept from M & W Towing as part
of an agreement to corruptly receive a stream of
benefits. It would not be enough for some of you to
find that the government has proven an agreement to
accept one or more of the alleged benefits while the
rest of you find the government has proven that the
defendant agreed to accept one or more of the other
alleged benefits. You would all have to agree that the
government has proven an agreement to accept at least
one particular alleged benefit as part of an agreement
to accept a stream of benefits in order to find the
defendant guilty on Count 1.
. . .
The fourth element the government is required to
prove in order to achieve a conviction on Count 1 is
that any proven bribe involved some business transaction
or series of transactions of the City of Lawrence Police
Department worth at least $5,000. In this case this
means that the government must prove that the alleged
bribe involved towing business worth at least $5,000,
that is $5,000 or more, to M & W Towing.
To be sure, parts of these instructions were imperfect.
The court focused, at times, on a single benefit when the alleged
crime -- per the indictment -- was an agreement for Lopez to
receive multiple benefits, over time. In addition, the unanimity
instruction -- the second paragraph reproduced above -- focused on
a single benefit in expressing the need for the jury to "agree
unanimously on which benefit or benefits" Lopez received. Indeed,
as the government all but concedes, the unanimity instruction was
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unnecessary, and it should not have been given. See infra Section
III.
Nevertheless, when we consider the full charge on Count
One, we find no error, let alone a plain error, that shifted the
theory of the case from a "stream of benefits" prosecution to a
single benefit prosecution.9 The instructions repeatedly
emphasized that the alleged object of Lopez's agreement with
Calixto was a "stream of benefits." The relevant instructions
started with the court's explanation that the indictment alleged
that Lopez "solicited, demanded, accepted, or agreed to accept a
stream of benefits." (Emphasis added). A few sentences later, the
court stated that, for the defendant to be found guilty, "the
government is required to prove that the defendant corruptly
solicited and demanded, accepted, or agreed to accept a stream of
benefits." (Emphasis added). Even when giving the unanimity
instruction, the court made clear that whatever particular benefit
the jury unanimously found, such a benefit must have been "part of
an agreement to corruptly receive a stream of benefits." (Emphasis
added). At no point during the charge were the jurors told they
9
The government contends that even if the instructions
permitted the jury to convict based on a single benefit in the
manner alleged by Lopez, the distinction between a single benefit
and a stream of benefits -- both "things of value" under §
666(a)(1)(b) -- would not amount to a constructive amendment. We
need not address that assertion, however, as the jury instructions
did not permit the jury to convict based on a single benefit.
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could find Lopez guilty of anything but the solicitation, the
demanding, the acceptance, or the agreement to accept a "stream of
benefits."
Moreover, although Lopez specifically criticizes the
"any proven bribe" language used in the $5,000 jurisdictional
section of the instructions, this language is an accurate
representation of the law. In a stream of benefits prosecution,
the relevant "anything of value" is the singular bribe of an
ongoing stream of benefits. Hence, the court's statement that
"the alleged bribe involved towing business worth at least $5,000"
accurately instructed the jury that the stream of benefits must be
exchanged for at least $5,000 of government business.
We are satisfied that the challenged instructions, read
as a whole, did not permit Lopez's conviction based on the single-
benefit approach to § 666(a)(1)(b). Therefore, Lopez's
constructive amendment claim fails.10
10We reject Lopez's assertion, in a letter filed under Federal
Rule of Appellate Procedure 28(j), that he raised a prejudicial
variance claim in his opening brief. See Mubayyid, 658 F.3d at 48
(stating that "[a] variance occurs when the facts proved at trial
differ materially from those alleged in the indictment without
altering the crime charged"). We find no instance, neither in the
district court nor in his opening brief, where Lopez raises a
prejudicial variance claim. Although his reply brief contains a
passing reference to "[t]he consequence of a variance," we have
held that "a legal argument made for the first time in an
appellant's reply brief comes too late and need not be addressed."
United States v. Brennan, 994 F.2d 918, 922 n.7 (1st Cir. 1993)
(quoting Rivera–Muriente v. Agosto–Alicea, 959 F.2d 349, 354 (1st
Cir. 1992)).
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III.
If his constructive amendment claim fails, Lopez asserts
that his bribery conviction must still be vacated because the
erroneous unanimity instruction so confused and misled the jury
that it caused him prejudice. The unanimity instruction,
reproduced above, required the jury to reach a unanimous finding
on at least one specific benefit that Lopez agreed to accept as
part of the stream of benefits. Lopez argues that he preserved
this claim when he requested in a written court filing that a
unanimity instruction not be included in the jury instruction. He
did not, however, object to its inclusion -- despite an express
invitation to do so by the court -- either when the court's
proposed instructions were first read during the charge
conference, or after the jury was instructed. Consequently, this
claim is not preserved and plain error review applies. See United
States v. Combs, 555 F.3d 60, 63 (1st Cir. 2009) (holding that a
defendant's failure to object to a jury charge "despite an express
invitation by the trial judge" results in appellate review "for
plain error only").
The government acknowledges that, in giving the
unanimity instruction, the district court misapplied our decision
in United States v. Newell, 658 F.3d 1 (1st Cir. 2011). In Newell,
the defendants were convicted, in part, of misapplying both tribal
funds and government and health care funds. On appeal, the
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defendants challenged their convictions, claiming that several
counts in the indictment were duplicitous. A duplicitous count is
one that alleges multiple, discrete criminal acts, each of which
could stand alone as a separate crime. The Newell defendants
argued that a count which charged them with fraudulently
misapplying funds on multiple, independent occasions allowed the
jury to convict them when some jurors thought they "had
intentionally misapplied funds on only a particular subset of
occasions, whereas other jurors could have thought that they had
misapplied funds on a different subset of occasions." Newell, 658
F.3d at 20. Agreeing, we held that the district court's failure
to give the jury a unanimity instruction in those circumstances
constituted error. Id. at 23-28. Without a unanimity instruction,
we reasoned, "a jury may return a guilty verdict even if . . .
they disagree [] as to which crime or crimes were committed." Id.
at 27 (emphasis omitted).
Here, however, Count I against Lopez alleged a single
criminal offense -- the agreement to accept a "stream of benefits"
in exchange for directing at least $5,000 worth of tows to M & W.
That Lopez allegedly received multiple things of value as part of
that single agreement does not mean that Count I, as worded,
supported multiple stand-alone crimes. Unlike in Newell, the
government did not "bundle[] multiple discrete violations of the
statute under [a] single count[]" in the indictment. Id. at 21.
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Rather, the multiple benefits Lopez received were, as charged, the
alleged components of the singular stream of benefits offense.
See id. at 27 ("[A] jury may return a guilty verdict even if the
jurors disagree about how a specific crime was committed.").
Newell does not apply in this context.
Beyond the misapplication of Newell, the court's
unanimity instruction was also erroneous because the reference to
a specific benefit in the indictment was surplusage. As Lopez
acknowledges, that reference to the "free $4,000.00 snow plow" did
not mean that the plow, or any of the specific benefits in the
stream, was an element of the crime. While such a reference was
perhaps helpful in giving the defendant further notice of the crime
alleged, its inclusion in the indictment had "no bearing on the
substance of the charge." United States v. Dowdell, 595 F.3d 50,
68 (1st Cir. 2010). The indictment's reference to the snow plow
"could have been omitted altogether without affecting the
sufficiency of the indictment." Mubayyid, 658 F.3d at 53; see
also United States v. Miller, 471 U.S. 130, 136, 105 S. Ct. 1811,
1815 (1985) (defining surplusage as "[a] part of the indictment
unnecessary to and independent of the allegations of the offense
proved [that] may normally be treated as 'a useless averment' [and]
'may be ignored'" (quoting Ford v. United States, 273 U.S. 593,
602 (1927))).
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To be sure, the government's proof of the individual
benefits received by Lopez was important to its effort to win jury
unanimity on the "stream of benefits" element of the crime alleged
-- that is, whether Lopez agreed to accept the "stream of benefits"
as the quid pro quo for government business conferred on M & W
towing. The individual benefits were relevant to the "stream of
benefits" theory of the case in that evidentiary sense -- the
specifics supported an inference of the general. As charged in
the indictment, however, the specific reference to the snow plow
was suplusage, and it is improper to instruct the jury to make a
unanimous finding on surplusage. The court's decision to include
a unanimity jury instruction on the particular benefits within the
"stream of benefits" was, therefore, clearly erroneous on both
Newell inapplicability and surplusage grounds.
We are unpersuaded, however, that this plain error
"affected [Lopez's] substantial rights." McIvery, 806 F.3d at
651. Lopez argues that the inclusion of the unanimity instruction
alone "misdirect[ed] the jury's attention away" from its proper
task of determining whether a single overarching agreement was
proved, and it "increased the likelihood of a conviction by
relieving the prosecution of its obligation to prove that the
agreement between Lopez and M&W encompassed more than the Suzuki."
We disagree.
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To the extent any party was prejudiced by the erroneous
inclusion of the unanimity instruction, it was the government, not
Lopez. The instruction required the government to win jury
unanimity not only on the "stream of benefits" element of the
bribery charge, but also on at least one of the benefits identified
by the government in its proof -- the Suzuki, the Ford, the Altima,
the engine, and the snow plow. In effect, the court transformed
a factual component of the government's bribery case -- the
individual benefits that comprise the stream of benefits -- into
an additional element of the crime. This transformation increased
the government's evidentiary burden, thereby benefiting Lopez.
Thus, we find no violation of Lopez's substantial rights.
IV.
Lopez argues that the district court erred by admitting
testimony about his decision to "shut off" Valley Towing after
that company refused to give him a discount. Calixto testified
that, before his initial agreement to sell Lopez the Suzuki, Lopez
had commented that he would not direct tows to another company,
Valley Towing, because they had refused to give him a discount on
a car that had been towed to their lot. Two other witnesses,
Edward Scales, who was an M & W tow truck driver, and Laurence
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Travaglia, an FBI agent who interviewed Lopez, also testified that
Lopez had told them that he would not direct tows to Valley Towing.
Lopez claims that the testimony about his actions toward
Valley Towing was improperly admitted prior "bad acts" evidence.
See Fed. R. Evid. 404(b); 403. He contends that we should deem
his evidentiary claim preserved because he filed a pre-trial motion
in limine asking the district court to exclude "any alleged
criminal or bad acts of the Defendant . . . with which he is not
charged." That motion, however, focused on evidence the government
intended to present of Lopez's attempt to initiate a similar scheme
with another company, Sheehan's Towing. When the district court
ruled on the motion, it addressed only the Sheehan's Towing
evidence, provisionally excluding that evidence but permitting the
government to raise the issue again at trial. At trial, Lopez did
not object when the government solicited testimony about Valley
Towing from the three witnesses. "Our rule as to motions in limine
is that a party must renew at trial its motion to offer or exclude
evidence if there has been an earlier provisional ruling by motion
in limine and a clear invitation to offer evidence at trial."
Crowe v. Bolduc, 334 F.3d 124, 133 (1st Cir. 2003). Hence, even
if the motion in limine could be construed to encompass the Valley
Towing evidence, Lopez failed to preserve his objection by renewing
it at trial. We review his forfeited evidentiary objection for
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plain error. See United States v. Iwuala, 789 F.3d 1, 5 (1st Cir.
2015).
We follow a two-step process for evaluating the
admissibility of evidence of a defendant's prior bad acts. See
United States v. Frankhauser, 80 F.3d 641, 648 (1st Cir. 1996).
First, to be admissible under Federal Rule of Evidence 404(b), the
evidence must have "special relevance," meaning that it is
"specially probative of an issue in the case -- such as intent or
knowledge -- without including bad character or propensity as a
necessary link in the inferential chain." Id. Second, the
probative value of the evidence must not be "substantially
outweighed by the danger of" unfair prejudice or another risk
outlined in Federal Rule of Evidence 403. Id.
The government argues, and we agree, that Calixto's
testimony about Lopez's treatment of Valley Towing has special
relevance to the case because it shed light on Calixto's state of
mind when the bribery scheme was initiated. See Iwuala, 789 F.3d
at 6 (finding that "evidence of a person's reputation may be
admitted to show the knowledge or state of mind of some other
person"). Just as a tenant's known reputation as a drug dealer
may provide a basis for a landlord to know that the tenant's
apartment is used for drug trafficking, see, e.g., United States
v. 890 Noyac Road, 945 F.2d 1252, 1260 (2d Cir. 1991), or a person's
reputation as a fraudster may provide a basis for someone else's
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knowledge that a proposed business venture is a scam, see, e.g.,
Iwuala, 789 F.3d at 6, so too may knowledge of Lopez's treatment
of Valley Towing serve to explain Calixto's state of mind when he
agreed to Lopez's car-towing scheme. From Calixto's point of view,
Lopez's reputation of requesting discounts from multiple towing
companies made it more likely that his interest was not limited to
the Suzuki. Cf. United States v. Goodoak, 836 F.2d 708, 714 (1st
Cir. 1988) (holding that "[a witness's] testimony explaining his
state of mind had probative value on the key question of whether
[the defendant] had threatened him, because evidence of the result
is relevant to whether there was an attempt"). In this context,
Lopez's actions toward Valley Towing had special relevance to
Calixto's state of mind when Lopez propositioned him. Federal Rule
of Evidence 404(b)'s prohibition on the use of prior bad acts was
not violated.
Lopez argues that, even if the testimony served a
permissible purpose, it was unduly prejudicial in violation of
Federal Rule of Evidence 403. He claims that Calixto's testimony
about Valley Towing suggested that Lopez was threatening Calixto,
and therefore he was guilty of extortion rather than bribery.
Extortion, Lopez states, is a more objectionable offense in the
minds of jurors because "the public official is the sole wrongdoer"
and "the law regards the payor as an innocent victim and not an
accomplice." Ocasio v. United States, 136 S. Ct. 1423, 1439 (2016)
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(Thomas, J., dissenting). Consequently, he argues that the
testimony should not have been admitted, at least without a
limiting instruction.
While Calixto's testimony cast Lopez in a negative
light, that image was tempered by the fact that Calixto also
testified that he "did the numbers" and agreed to the scheme only
after he realized that Lopez was offering him the chance to earn
"a lot more" money. Thus, the government's evidence did not frame
Calixto as simply "an innocent victim." Id. In balancing the
potential for undue prejudice from this testimony with its
probative value, we cannot say that the district court plainly
erred either by admitting Calixto's testimony or by failing to
issue a limiting instruction sua sponte. See Iwuala, 789 F.3d at
7 (requiring "clear or obvious error" in the court's admission of
evidence to overcome a forfeiture).
That said, the "special relevance" of Calixto's
testimony about Valley Towing does not extend to the testimony of
the two other witnesses, Scales and Travaglia. It is irrelevant
what Scales or Travaglia knew about Lopez's reputation as Lopez
never propositioned them with an agreement or scheme. Moreover,
information known only to Scales or Travaglia could not have
informed Calixto's state of mind. Nevertheless, because the same
information about Lopez's "bad act" was properly admitted through
Calixto's testimony, we find no harm in the repetition of that
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information by other witnesses. See United States v. Fulmer, 108
F.3d 1486, 1502 (1st Cir. 1997) (finding certain statements about
the defendant's bad acts to be cumulative, and therefore harmless,
given other testimony about the same bad acts that was relevant to
show the witness's state of mind).
V.
Lastly, Lopez challenges for the first time the district
court's jury instructions on the credibility of the cooperating
witnesses. Again, we review for plain error. United States v.
Prieto, 812 F.3d 6, 17 (1st Cir. 2016).
During the jury charge, the district court sua sponte
gave the following instruction regarding the testimony of
coconspirator witnesses Calixto, Colon, and Ortiz:
Three of the witnesses testified pursuant to court
orders that compelled them to testify and gave them
certain immunity. You heard those witnesses explain
their understanding of those orders. I instruct you
that the government is entitled to present the testimony
of an immunized witness. Some people who are given
immunity are entirely truthful when testifying.
However, the testimony of such witnesses, in this case
Mr. Calixto, Mr. Ortiz, and Ms. Colon, should be examined
by you with greater care than the testimony of an
ordinary witness. You should scrutinize it closely
because such a witness may have a motive to testify
falsely by making up stories or exaggerating what others
did because he or she wants to avoid being prosecuted.
As with all the evidence, in deciding whether some or
all of the testimony of a witness with immunity is
truthful, you should consider, among other things,
whether it was contradicted or corroborated by other
evidence in the case. As I said, you should scrutinize
the testimony of an immunized witness with great care
and rely on it with caution. If after doing so you find
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some or all of his or her testimony to be true, you
should give it whatever weight you believes it deserves.
Lopez did not object.
Lopez now argues that the instruction failed to
adequately convey to the jury that Calixto, Colon, and Ortiz were
accomplices to the charged bribery and obstruction of justice, and
that they could be prosecuted for those offenses if they did not
testify truthfully. He claims that the instruction's reference to
potential prosecution did not clarify that the witnesses were
subject to prosecution for their roles in the offenses at issue in
his trial, rather than some unconnected offense.11 This lack of
specificity, in turn, deprived the jurors of information that would
help them assess the witnesses' motives. Lopez also contends that
this omission furthered the government's supposed narrative that
he forced the bribery scheme upon unwilling and vulnerable victims
who were not themselves culpable.12
11Lopez notes that, for instance, Calixto testified that he
had been audited by the Internal Revenue Service and had to make
back payments for unpaid taxes to both the federal and state
governments, and also that he paid Colon under the table. Thus,
Lopez suggests, the jury could have inferred that Calixto was
receiving immunity from prosecution for tax evasion.
12 Lopez also suggests that Colon and Ortiz testified that
they were not receiving immunity from prosecution. This is an
inaccurate characterization of the testimony. Although only
Calixto specifically acknowledged that he could be "prosecuted in
connection with this case," Ortiz testified that if he lied on the
stand, he could "be charged." Similarly, Colon testified that she
understood her immunity agreement to mean that "if I say all the
truth, I won't be incriminated." The prosecutor responded by
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We find no error in the challenged instructions on the
credibility of cooperating witnesses. Not only is a district court
granted "considerable leeway" in choosing the specific language
for jury instructions, United States v. Paniagua-Ramos, 251 F.3d
242, 248 (1st Cir. 2001), we have even upheld convictions when no
instruction on coconspirator testimony was given, see, e.g.,
United States v. Newton, 891 F.2d 944, 950 (1st Cir. 1989) ("As
this court has noted before, although an accomplice witness
instruction is advisable when there is accomplice testimony, its
absence does not require reversal."). As long as the instructions
"constitute[] a fair statement of the applicable law concerning
accomplice testimony," no "magic words" are necessary. Paniagua-
Ramos, 251 F.3d at 245-47. Here, the court informed the jury that
the three witnesses testified pursuant to court orders, that those
orders gave them immunity from prosecution,13 that the witnesses
asking whether she meant that she wouldn't be prosecuted, and she
replied, "Yes, prosecuted."
13
Lopez appears to assert that the witnesses' testimony that
they were required to tell the truth to receive immunity improperly
bolstered their credibility in the eyes of the jury. He claims
that such a statement implied that "the government was monitoring
the witnesses' testimony[,] ensuring that the truth be told." We
have previously rejected the premise that merely informing the
jury about a witness's plea agreement constitutes error. See
United States v. Martin, 815 F.2d 818, 821 (1st Cir. 1987) ("We do
not agree that informing the jury of the contents of a plea
agreement of, at least, normal stripe is error."); United States
v. Munson, 819 F.2d 337, 344–45 (1st Cir. 1987) ("A defendant may
be denied a fair trial if the prosecution portrays itself 'as a
guarantor of truthfulness,'" but "[t]he government's narrow
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may have motives to lie or exaggerate to avoid prosecution, and
that the jurors should "scrutinize [their] testimony . . . with
great care and rely on it with caution." Hence, the possibility
that witnesses would falsify their testimony for their own benefit
was expressly stated. The instructions that the district court
delivered on the credibility of the cooperating witnesses were
error free.
Affirmed.
questions about whether these witnesses agreed to tell the truth
were not such portrayals.") (quoting Martin, 815 F.2d at 821).
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