United States v. Acevedo-Hernandez , 898 F.3d 150 ( 2018 )

United States Court of Appeals
For the First Circuit
No. 15-1763
UNITED STATES OF AMERICA,
Appellee,
v.
MANUEL ACEVEDO-HERNÁNDEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Aida M. Delgado-Colón, U.S. District Judge]
Before
Torruella, Lipez, and Barron,
Circuit Judges.
Lydia Lizarríbar-Masini, for appellant.
Scott A.C. Meisler, Criminal Division, Appellate Section,
U.S. Department of Justice, with whom Kenneth A. Blanco, Acting
Assistant Attorney General, Trevor N. McFadden, Acting Principal
Deputy Assistant Attorney General, Rosa Emilia Rodríguez-Vélez,
United States Attorney, Timothy R. Henwood, Assistant United
States Attorney, and José Capó-Iriarte, Assistant United States
Attorney, were on brief, for appellee.
August 6, 2018
TORRUELLA, Circuit Judge. After a jury trial, Defendant-
Appellant Manuel Acevedo-Hernández ("Acevedo"), a former Puerto
Rico Superior Court Judge, was convicted of participating in a
conspiracy to bribe an agent of an organization receiving federal
funds, in violation of 18 U.S.C. § 371 (Count One), and of
receiving a bribe, in violation of 18 U.S.C. § 666(a)(1)(B) (Count
Three). He appeals his conviction and sentence, citing a number
of alleged trial and sentencing errors. After carefully reviewing
his claims, we affirm.
I. Background1
A. Factual Background
Acevedo was a Puerto Rico Superior Court Judge in the
Aguadilla judicial region of Puerto Rico. In 2012, he was assigned
to preside over the criminal case brought against Lutgardo Acevedo-
López ("Lutgardo"), 2 an accountant and attorney charged with
aggravated negligent homicide, obstruction of justice, and driving
under the influence of alcohol ("DUI"). Lutgardo's charges
stemmed from a car accident that took place on June 30, 2012, in
1 We summarize the relevant facts, reserving for our analysis a
more detailed discussion of the facts relevant to each issue
presented on appeal.
2 Because several individuals mentioned in this opinion have the
last name "Acevedo," we refer to them by either their first name
or a nickname used in the record. We mean no disrespect.
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which Lutgardo's BMW crossed into the opposite lane, and collided
with Félix Babilonia's ("Babilonia") vehicle, killing him.
Lutgardo wanted to be acquitted from the state criminal
charges, among other obvious reasons, so that he could be eligible
to enter into business contracts with the government. To further
his goal, Lutgardo enlisted the help of his friend of fifteen
years, Ángel Román-Badillo ("Lito"). Lito owned a restaurant and
a bar, and also worked as a facilitator (or "gestor" in Spanish).3
Lutgardo trusted Lito, who had done things for him in the past,
including buying drugs for him so that Lutgardo did not have to go
to "drug points" himself. Lito had known Acevedo for more than a
decade, and was a neighbor to Acevedo's brother, Saúl Acevedo-
Hernández ("Saúl"). Lito also stood to benefit from Lutgardo's
acquittal because Lito would participate in the government
contracts Lutgardo hoped to receive.
Lutgardo, who knew that the criminal case against him
would be assigned to Acevedo, believed that "everybody had a price"
and thus instructed Lito to find out what Acevedo's price was.
Through Saúl, Lito coordinated a meeting with Acevedo at Rompe
Olas Restaurant in Aguadilla, Puerto Rico. Saúl, Lito, Acevedo,
and Acevedo's nephew, Miguel Acevedo ("Miguel") attended that
3 Lito's bar was located across from Lutgardo's accounting office.
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meeting, which took place in November 2012. The attendees
discussed Lutgardo's criminal case. Lito informed Acevedo that
the case would be assigned to him. Acevedo responded that he
would inform Lito if the case was indeed assigned to him, and Lito
and Acevedo exchanged phone numbers. When Acevedo was in fact
assigned to preside over Lutgardo's case, he notified Lito.
Although Acevedo initially mentioned that Lutgardo's
case was so delicate that it "could not be worked on, not even for
$100,000," he eventually agreed to provide Lutgardo with favorable
treatment, including, crucially, acquitting him from the criminal
charges. Acevedo told Lito that, in exchange for his participation
in the scheme, he wanted a state appellate judgeship -- which had
a higher salary than the position he then held -- as well as jobs
for his brother Saúl at the Puerto Rico Treasury Department, and
for his nephew Miguel at the Puerto Rico State Insurance Fund
Corporation. Acevedo was "practically supporting" Saúl and
Miguel, so he wanted to be relieved from the financial burden they
represented. Accordingly, Acevedo provided Lito with his resume
along with those of Saúl and Miguel, which Lito then forwarded to
Lutgardo.
Lutgardo deposited $30,000 into Lito's personal bank
account to pay for expenses related to the scheme. After the
November 2012 meeting, and until April 2013, Lito and Acevedo
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talked on a daily basis and went out practically every Wednesday
through Sunday to bars and restaurants. They spent $200-$300 per
outing. All expenses were paid by Lito, using money provided by
Lutgardo.
Lutgardo planned to use his good childhood friend,
Anaudi Hernández-Pérez ("Anaudi"), to help Acevedo obtain his
desired position through a recess appointment4 to the Puerto Rico
Court of Appeals. Anaudi was a businessman and fundraiser for the
political party that had just won the governorship. He had strong
ties with the then-governor elect, Alejandro García-Padilla
("García-Padilla"), maintained good relationships with many other
politicians, and had previously assisted another candidate in his
reappointment to an additional term in the judiciary. Lutgardo's
brother, Bebe, 5 told Anaudi that Acevedo had been assigned to
preside over Lutgardo's case and asked him to help Acevedo get his
desired promotion.
4 In Puerto Rico, ordinarily, state appellate judges are nominated
by the governor and then confirmed by the Senate. However, if the
governor appoints a candidate while the Senate is in recess --
known as a recess appointment -- that nominee sits as an appellate
judge until the Senate reconvenes. If the judge were to retire
in the interim, he would still retire as an appellate judge.
5 Because Lutgardo and his brother share the same name, Lutgardo
Acevedo, we refer to Lutgardo's brother by his nickname, "Bebe."
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Anaudi had organized a golf tournament for December 30,
2012, in Aguadilla, where the then-governor elect García-Padilla
and other high-ranking politicians for the incoming political
party would be in attendance.6 On December 29, Lutgardo instructed
Lito to take Acevedo to the golf tournament so that Acevedo could
meet García-Padilla and confirm that Lutgardo had the political
connections to deliver the appellate judgeship that Acevedo
wanted. The next day, Lito picked up Acevedo at his house, took
him for breakfast -- during the course of which Lito explained to
Acevedo that García-Padilla and other high-ranking politicians
would be at the golf tournament -- and then drove him to the
tournament. When they got to the tournament, Acevedo refused to
get out of the car because he "was nervous" to be seen with
Lutgardo's acquaintances, but told Lito that "there was no doubt
that there was power" to make good on the judgeship offer. At
some point that day, Anaudi asked Bebe, who was also at the golf
tournament, why Acevedo had not yet arrived. Bebe responded that
Acevedo did not get out of the car because, as the judge presiding
over Lutgardo's case, he was nervous about being seen.
Around three weeks later, on January 21, 2013, Lito drove
Acevedo to Anaudi's house in Aguadilla to meet Anaudi and "come to
6 García-Padilla's swearing-in ceremony was held three days later,
on January 2, 2013.
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an agreement" as to how Acevedo would be promoted to the Court of
Appeals. During the meeting, Acevedo told Anaudi that he had been
a trial judge for twenty-eight to thirty years and that his dream
was to retire as an appellate judge. He requested Anaudi's help
in getting promoted, as well as in getting government employment
for Saúl and Miguel. They also talked about Lutgardo's pending
criminal case, and Anaudi referred to Lutgardo as his "special
friend."
To keep Acevedo happy, between January and February
2013, Lito, on behalf of Lutgardo, made two payments totaling over
$3,200 towards Acevedo's income tax debt with the Treasury
Department. Lito also gave Acevedo watches and ball-point pens,
and paid for the supplies, labor and other costs associated with
the remodeling of Acevedo's garage, bedroom, and bathroom.
Lutgardo provided the money to cover these expenses.
Honoring his role in the scheme, from January through
March 2013, Acevedo provided strategic legal advice in Lutgardo's
criminal case. Lito functioned as the middleman between Acevedo
and Lutgardo. Lito and Lutgardo constantly spoke about what
Lutgardo wanted to inquire from Acevedo. Lito then relayed any
information given by Acevedo to Lutgardo and his defense counsel,
attorneys Mayra López-Mulero and Harry Padilla. Acevedo instructed
Lito regarding what motions defense counsel should file, when to
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file them, and how Acevedo would rule on the issues. He also
reviewed draft motions and pleadings prepared by Lutgardo's
defense counsel. Acevedo suggested edits and discussed them with
Lito, who then shared Acevedo's feedback with Lutgardo's defense
counsel before they filed the corrected motion or pleading. For
example, in January 2013, Acevedo suggested that Lutgardo file a
motion for the state to return him his BMW, and then to have an
expert examine it. Following Acevedo's advice, Lutgardo's defense
counsel filed the motion, which Acevedo then granted.
Additionally, Lutgardo provided a diagram of the accident to Lito
and instructed him to discuss it with Acevedo. Following
Lutgardo's instruction, Lito discussed the diagram -- described as
an important piece of the trial strategy -- with Acevedo, who then
said that he needed to visit the site of the accident just "to be
clear." Accordingly, Lito and Acevedo made two ex parte visits
to the site of the accident while the case was pending.
On March 22, 2013 -- three days before the trial started
-- Acevedo told Lito that Lutgardo's defense counsel should use
phone records to effectively cross-examine the government's eye
witnesses to the auto collision in order to show that they were
distracted on the phone while the collision occurred and thus make
them look unreliable. Lito, in turn, relayed this advice to
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Lutgardo. Lito and Acevedo also joked that Lutgardo must have
been in urgent need of Imodium.7
The next day, Lito and Acevedo went to the home of Lito's
aunt in Guánica, Puerto Rico, to buy a red motorcycle for Acevedo.8
Lito paid $1,200 for Acevedo's motorcycle with money provided by
Lutgardo.9
The following day, on the eve of the trial, Lito hosted
a barbecue at his house where he and Acevedo discussed Lutgardo's
case. At some point, Lutgardo called Lito on his cell phone to
ask "how was everything going," and Acevedo mentioned that Lutgardo
"should remain calm and not be such a prick."
Lutgardo's trial began on Monday March 25, 2013, during
Holy Week. 10 As part of the strategy, Acevedo had purposely
scheduled the trial -- which would not last more than three days
-- during Holy Week because people would be distracted with other
matters going on that week and thus would not pay too much
7 Imodium is a common over-the-counter remedy for diarrhea.
8 Lito also bought two other motorcycles for himself.
9 They stored Acevedo's motorcycle at Lito's house. The plan was
for Acevedo to get it once the trial had ended, but Acevedo never
took possession of the motorcycle because of the events that took
place on April 5, which will be explained shortly.
10 Holy Week in Christianity is the week before Easter, beginning
with Palm Sunday and ending on Holy Saturday, the day before Easter
Sunday.
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attention to the trial. Although Lutgardo knew all along that he
was going to have a bench trial, in order to avoid raising
suspicions, he waited until the first day of trial to waive his
right to a jury trial. Both Lutgardo and Acevedo instructed Lito
not to attend the trial because Lito had been seen socializing
with Acevedo so frequently that both of them thought it would be
troublesome for Lito to be seen at the trial. Instead, Lutgardo
had his cousin and driver, Rafael Lorenzo-López ("Lorenzo") attend
the trial. During court recesses, Acevedo communicated with Lito
to let him know "how everything was going" and to inform him
whether defense counsel "need[ed] to change anything." Lito
passed along this information to Lorenzo, who in turn shared it
with either Lutgardo or his defense counsel. Acevedo also granted
Lutgardo's motion to preclude the prosecution from calling any
rebuttal witnesses. On March 27, 2013, Acevedo acquitted Lutgardo
of all criminal charges pending against him. Acevedo then spoke
with Lito to inform him that he had just acquitted Lutgardo and to
tell him that he should look at the newscast. The next day,
Lutgardo had Lorenzo deliver to Lito a $25,000 check for
reimbursement of expenses that Lito had spent on Acevedo. One
week later, Lutgardo sent Lito a second check for $25,000, also
for reimbursement of expenses related to the scheme.
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On April 5, 2013, Lito rented a Hyundai Sonata at Budget
Car Rental in Aguadilla and, per Acevedo's request, drove Acevedo
to a seminar for judges at the Court of Appeals in San Juan. While
Acevedo was at the seminar, Lito went to the Macy's store located
at Plaza Las Américas shopping mall and bought cufflinks, ties,
tie clips, and shirts for Acevedo. Lito then returned to the
Court of Appeals to pick up Acevedo from the seminar. Afterwards,
they stopped at a place near the Court of Appeals to have "a couple
of drinks," before heading back to Aguadilla. On their way to
Aguadilla, they stopped at another establishment in which they had
more drinks, ate, and danced for a while. Lito and Acevedo then
left the establishment and hit the road, drinks in hand.
Police officers eventually pulled Lito's rental car over
for speeding. One of the officers, Elvis Soto, saw Acevedo and
immediately recognized him. Officer Soto also "perceiv[ed] a
strong smell of alcohol" and noticed that Lito's eyes were reddish.
Accordingly, he informed Lito that there was a DUI checkpoint
farther ahead, and that he needed to take Lito there to perform a
breathalyzer test. Acevedo tried to intervene on Lito's behalf,
attempting to keep Lito from facing criminal charges. Another
officer drove Lito's rental car to the DUI checkpoint, which was
close by. Several police officers who had been involved in
Lutgardo's case were at the DUI checkpoint and, upon learning that
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Lito was accompanied by Acevedo, immediately associated Lito with
Lutgardo and commented that they now knew "what happened in the
trial."
The media made the incident public, which revived public
concerns over the integrity of Lutgardo's trial. Thereafter, Lito
gave Acevedo $3,000 or $4,000 in cash so that Acevedo could hire
an attorney and "prepare [himself] for whatever c[ould] come
forward." The two of them then stopped communicating.
Months later, Lutgardo and Lito created a backdated
contract to conceal and provide a false explanation for the money
that Lutgardo had given Lito to pay Acevedo or otherwise use in
furtherance of the scheme. They intended for it to appear as if
the money had been for a legitimate investment by Lutgardo in
Lito's bar business in 2013.
In December 2013, Lito began cooperating with the
Federal Bureau of Investigations ("FBI"). As part of his
cooperation, Lito contacted Acevedo and secretly recorded a
conversation between the two of them. In this conversation,
Acevedo rued the day he was assigned to preside over "[t]he fucking
case," talked about the red motorcycle that Lito had bought for
him, and lamented that Anaudi had not delivered the appellate
judgeship position, and that Officer Soto had "screwed" them.
Lito also secretly recorded a conversation he had with Lutgardo.
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On April 14, 2014, FBI agents executed a search warrant
on Acevedo's house and interviewed Acevedo.11 The agents asked
Acevedo whether he had received anything of value from Lutgardo,
Lito, or anyone associated with Lutgardo, and whether he had ever
been to Anaudi's house in Aguadilla, all to which Acevedo responded
in the negative. When the agents told Acevedo that they had
information that Lito had given him a watch, Acevedo gave
conflicting stories. He initially denied having received a watch,
but then admitted to having received one from Lito. Acevedo also
claimed that he destroyed the watch and threw it into the ocean.
He then changed his story and said he gave the watch to a relative.
When the agents then showed Acevedo the cufflinks and two watches
that they had seized from Acevedo's nightstand tables, Acevedo
became "really nervous" and his demeanor changed. Acevedo
eventually admitted that Lito drove him to Anaudi's house to
deliver his resume, as well as the resumes of two relatives.
B. Procedural Background
On May 28, 2014, a grand jury returned an indictment
charging Acevedo with conspiracy to bribe an agent of an
organization receiving federal funds, in violation of 18 U.S.C.
§ 371 (Count One), and receipt of a bribe by an agent of an
11 Acevedo was advised of his rights, which he voluntarily waived.
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organization receiving federal funds, in violation of 18 U.S.C.
§ 666(a)(1)(B) (Count Three).12
Acevedo's jury trial began on January 9, 2015. The
government called nineteen witnesses during its case-in-chief,
including Lito -- its main witness -- and Miriam Rodríguez --
Babilonia's mother-in-law -- who briefly testified on the second
day of trial. At the close of the government's case, Acevedo
moved for a judgment of acquittal under Rule 29 of the Federal
Rules of Criminal Procedure, which the district court denied.
Acevedo subpoenaed Lutgardo to testify, but Lutgardo invoked his
Fifth Amendment right against self-incrimination. After a hearing
outside of the presence of the jury to discuss Lutgardo's assertion
of his Fifth Amendment right, the district court upheld Lutgardo's
assertion of that right. After presenting his witnesses, Acevedo
renewed his motion for acquittal, which the court again denied.
12 Lutgardo was also charged in Count One of the indictment, as
well as with paying a bribe to an agent of an organization
receiving federal funds, in violation of 18 U.S.C. § 666(a)(2).
He pled guilty to both counts and was sentenced to nine years of
imprisonment. We affirmed his sentence. See United States v.
Acevedo-López, 873 F.3d 330 (1st Cir. 2017).
Lito waived indictment and pled guilty to a two-count information
charging him with conspiracy to bribe an agent of an organization
receiving federal funds, in violation of 18 U.S.C. § 371, and
paying a bribe to an agent of an organization receiving federal
funds in violation of 18 U.S.C. § 666(a)(2). See Cr. No. 14-368
(ADC), ECF Nos. 1-3. He is awaiting sentencing in the U.S.
District Court for the District of Puerto Rico.
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On January 20, 2015, after a seven-day trial, the jury found
Acevedo guilty of both counts.
At sentencing, the district court rejected Acevedo's
objections to two sentencing enhancements. First, the court
rejected Acevedo's contention that all payments made to him
constituted a single incident of bribery. Accordingly, the court
applied the two-level enhancement provided in U.S. Sentencing
Guidelines ("U.S.S.G.") § 2C1.1(b)(1) for offenses involving more
than one bribe. Second, the district court determined that "the
value of the payment and the benefit received or to be received or
the value of anything obtained" by Acevedo exceeded $120,000, which
triggered a ten-level enhancement pursuant to U.S.S.G.
§ 2C1.1(b)(2).13 When these contested enhancements -- as well as
the uncontested four-level enhancement under U.S.S.G.
§ 2C1.1(b)(3) for being a public official in a sensitive position
-- were added to the base offense level of fourteen pursuant to
U.S.S.G. § 2C1.1(a)(1), the total offense level resulted in thirty.
This, in conjunction with Acevedo's criminal history category of
I, yielded an advisory guidelines sentencing range ("GSR") of sixty
months of imprisonment for Count One and 97-120 months of
imprisonment for Count Three.14 The government requested that
13 The court determined that the value was at least $155,780.
14 The GSR for Count Three was 97-121 months of imprisonment, but
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Acevedo be sentenced to a total of 120 months' imprisonment, while
Acevedo asked for a sentence of time served or "house incarceration
or . . . probation for a term of years." Acevedo was ultimately
sentenced to sixty months of imprisonment for Count One and 120
months for Count Three, to be served concurrently. The court also
imposed three years of supervised release for each count, to be
served concurrently after his release from prison. Acevedo timely
appealed.
II. Discussion
A. Sufficiency of the Evidence
Acevedo challenges the sufficiency of the evidence
supporting his convictions. Regarding Count One, Acevedo argues
that the district court erred in denying his motion for acquittal
because the evidence was insufficient to prove that he knowingly
and voluntarily participated in the conspiracy. Specifically,
Acevedo argues that Lito "controlled and orchestrated every move"
to advance his own interest in obtaining money from Lutgardo, and
that Acevedo never shared Lito's knowledge of the underlying
criminal act. According to Acevedo, the evidence presented at
trial proved a conspiracy between Lito and Lutgardo, but failed to
his GSR was capped at 120 months under U.S.S.G. § 5G1.2(b) because
the statutory maximum for the count of conviction was ten years.
See 18 U.S.C. § 666(a).
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show that Acevedo "saw, heard, met or discussed anything with
codefendant Lutgardo," which, he says, shows that he was not a
knowing participant in the conspiracy. Acevedo further claims
that he never asked for money or anything of value; that the
"alleged watches, cufflinks and [items] that [Lito] testified he
bought for [Acevedo] were gifts"; and that he never applied for
the appellate judge position.
Regarding his conviction on Count 3, Acevedo posits that
the evidence was insufficient because, contrary to the district
court's determination, the items he received from Lito did not
meet the $5,000 threshold amount established in 18 U.S.C. § 666.
Finally, he alleges that the district court erroneously considered
payments made to him by Lito after the conspiracy had already
concluded.
1. Standard of Review
Because Acevedo preserved his challenge to the
sufficiency of the evidence, we review de novo the district court's
denial of his motion for judgment of acquittal. United States v.
Trinidad-Acosta, 773 F.3d 298, 310 (1st Cir. 2014). In so doing,
we must determine whether "any reasonable jury could find all the
elements of the crime [proven] beyond a reasonable doubt." United
States v. Santos-Soto, 799 F.3d 49, 57 (1st Cir. 2015) (quoting
United States v. Azubike, 564 F.3d 59, 64 (1st Cir. 2009)). We
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need not conclude that "no verdict other than a guilty verdict
could sensibly be reached, but must only [be] satisfied . . . that
the guilty verdict finds support in a plausible rendition of the
record." United States v. Hatch, 434 F.3d 1, 4 (1st Cir. 2006)
(internal quotation marks omitted).
In determining whether the record provides such support,
we do not view each piece of evidence separately, re-weigh the
evidence, or second-guess the jury's credibility calls. Santos-
Soto, 799 F.3d at 57; United States v. Acosta-Colón, 741 F.3d 179,
191 (1st Cir. 2013). Instead, we evaluate the sum of all the
evidence and inferences drawn therefrom in the light most favorable
to the government, resolve all credibility disputes in its favor,
and "determine whether that sum is enough for any reasonable jury
to find all the elements of the crime proven beyond a reasonable
doubt, even if the individual pieces of evidence are not enough
when viewed in isolation." Santos-Soto, 799 F.3d at 57; see also
United States v. Gaw, 817 F.3d 1, 3-4 (1st Cir. 2016); Acosta-
Colón, 741 F.3d at 191 (noting that the court is required to choose
the inference "most compatible" with the jury's guilty verdict
when confronted with competing inferences). Furthermore, we need
not be convinced "that the government succeeded in eliminating
every possible theory consistent with the defendant's innocence."
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Trinidad-Acosta, 773 F.3d at 310-11 (quoting United States v. Troy,
583 F.3d 20, 24 (1st Cir. 2009)).
In sum, we will only reverse on a sufficiency challenge
if, "after viewing the evidence and reasonable inferences in the
light most flattering to the prosecution, [we conclude that] no
rational jury could have found him guilty beyond a reasonable
doubt." Acosta-Colón, 741 F.3d at 191.
2. Applicable Law
To make out a case of conspiracy under 18 U.S.C. § 371,
the government has to prove: 1) the existence of an agreement to
commit an unlawful act; 2) the defendant's voluntary and knowing
participation in the conspiracy; and, 3) an overt act committed in
furtherance of the conspiracy. United States v. Ngige, 780 F.3d
497, 503 (1st Cir. 2015). "[A]n agreement to join a conspiracy
may be express or tacit . . . and may be proved by direct or
circumstantial evidence." United States v. McDonough, 727 F.3d
143, 156 (1st Cir. 2013) (internal quotations omitted). "Such
evidence may include the defendants' acts that furthered the
conspiracy's purposes." Id. In addition, to determine whether a
conspiracy exists, we must consider "the totality of the
circumstances, paying particular heed to factors such as the
existence of a common goal, evidence of interdependence among the
participants, and the degree to which their roles overlap."
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United States v. Rodríguez-Reyes, 714 F.3d 1, 7 (1st Cir. 2013)
(quoting United States v. Fenton, 367 F.3d 14, 19 (1st Cir. 2004)).
Moreover, "each coconspirator need not know of or have contact
with all other members of the conspiracy, nor must they know all
of the details of the conspiracy or participate in every act in
furtherance of it." Id. (alteration omitted) (quoting United
States v. Martínez-Medina, 279 F.3d 105, 113 (1st Cir. 2002)).
Here, the unlawful object of the agreement was the
violation of 18 U.S.C. § 666, which criminalizes "bribery
concerning programs receiving Federal funds." A bribe under this
statute "must be made 'in connection with any business,
transaction, or series of transactions of the covered
organization, government, or agency involving anything of value of
$5,000 or more.'" United States v. Bravo-Fernández, 722 F.3d 1,
12 (1st Cir. 2013) (alteration omitted) (quoting 18 U.S.C. § 666).
This is known as the "transactional element requirement." Id.
This Court has clarified that the transactional element
requirement of $5,000 "refers to the value of the 'business' or
'transaction' sought to be influenced by the bribe," and not to
the value of the bribe itself. Id. at 12-13.
That is, the bribe is anything of value "accepted or
agreed to be accepted" and does not need to meet the $5,000
threshold; only the "subject matter of the bribe" (the "business"
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or "transaction" sought to be influenced by the bribe) must be
$5,000 or more. Id. at 13. However, when the subject matter of
the bribe is an intangible or does not have a fixed price, "courts
may look to the value of the bribe as evidence of the value of the
'business' . . . [or] 'transaction'" to determine if the
transactional element requirement under § 666 is met. Id.
3. Analysis
With regard to his Count One conviction, Acevedo
challenges only the district court's finding that he knowingly and
voluntarily participated in the conspiracy. Thus, the other two
elements of § 371 are not before us. A defendant's knowing and
voluntary participation "can be proven through circumstantial
evidence, including inferences from acts committed by the
defendant that furthered the conspiracy's purposes." United
States v. Castro-Davis, 612 F.3d 53, 60 (1st Cir. 2010) (quoting
United States v. García-Pastrana, 584 F.3d 351, 377 (1st Cir.
2009)).
The evidence presented at trial is sufficient to permit
a reasonable jury to conclude beyond a reasonable doubt that
Acevedo knowingly and voluntarily participated in the conspiracy.
The evidence, construed in the light most favorable to the verdict,
shows that Lito and Lutgardo devised a scheme to get Lutgardo
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acquitted of his pending criminal charges,15 and that Lito informed
Acevedo of the scheme and invited him to participate. Acevedo
then accepted this invitation by notifying Lito that Lutgardo's
case had been assigned to him and by going along with the plan to
provide favorable treatment to Lutgardo, including acquitting him,
in exchange for an appellate judgeship,16 money, meals and drinks,
gifts, the remodeling of some areas in Acevedo's house, and
employment for his brother and nephew. Acevedo complied with his
part of the agreement by: advising Lito regarding what motions
defense counsel should file and when to file them, reviewing and
editing those motions before they were filed, and giving Lito
advanced notice as to how he would rule on them; reviewing and
discussing with Lito a diagram of the accident; twice visiting the
site of the accident with Lito and sharing his impressions with
him so that Lito could, in turn, relay that information to
Lutgardo's defense counsel; suggesting that defense counsel use
phone records to cross-examine the government's eye witnesses;
scheduling the trial for Holy Week to avoid drawing too much
15 Acevedo concedes as much.
16 That Acevedo had not applied to a position at the Court of
Appeals since 2008 is of no consequence. The jury could draw the
reasonable inference that Acevedo was waiting to get Anaudi's
endorsement before officially applying for the position or that he
meant to apply after the trial ended, but failed to do so because
of the public concern raised by the April 5 incident.
-22-
attention to it; using Lito as an intermediary to communicate with
defense counsel during trial and informing them what they needed
to do; precluding the prosecution from calling rebuttal witnesses;
and finally acquitting Lutgardo of all charges.
Furthermore, additional evidence shows that Acevedo also
cashed in on his participation on the scheme. It shows that
Acevedo went out for months to restaurants and bars with Lito and
that all expenses were paid by Lito with money provided by
Lutgardo. He also voluntarily accepted gifts, money, payments to
the Treasury Department on his behalf, and remodeling work at his
house. Furthermore, Acevedo took affirmative steps to procure
help from Anaudi (to whom Lutgardo was a "special friend") in order
to obtain a seat on the Court of Appeals and government jobs for
his brother and nephew.
The government presented not only testimonial evidence
-- with some witnesses corroborating the testimony of others17 --
but also additional corroborating evidence including: recorded
conversations between Lito and Acevedo and between Lito and
Lutgardo; bank records; receipts from Macy's, Budget Car Rental,
17 Such was the case with Lorenzo, Lutgardo's cousin and driver.
Lorenzo's testimony corroborated Lito's testimony about the nature
of the bribery agreement, Lito's role as a middleman between
Lutgardo and Acevedo, and his own role as an intermediary between
Acevedo, Lito, and defense counsel during Lutgardo's state trial.
-23-
the hardware store where the materials used to remodel Acevedo's
garage had been purchased, and various restaurants; cufflinks and
watches that Lito had gifted Acevedo; Acevedo's, Saúl's, and
Miguel's resumes; numerous photos of Lito hanging out with Acevedo,
of Acevedo sitting on the red motorcycle that Lito had bought for
him, and of Lito hanging out with Lutgardo and his defense counsel;
toll records for Lito's rented car on April 5; records from the
Puerto Rico Treasury Department regarding Acevedo's debt and
payments; and statements from Acevedo when he was questioned by
law enforcement the day the FBI searched his house. In the
recorded conversations the jury heard Acevedo giving advice to
Lito three days before the trial started, about how Lutgardo's
defense counsel could use phone records to attack the prosecution's
case. In this same recording, the jury heard Lito, on behalf of
Lutgardo, reimbursing Acevedo for some construction materials
related to the remodeling of his garage. Furthermore, in another
recorded conversation between Lito and Acevedo, the jury heard
Acevedo: lamenting the day he was assigned to preside over
Lutgardo's case; complaining that Anaudi had not yet called him
with news on the appellate judgeship; talking about the red
motorcycle that Lito had bought for him; and stating that Officer
Soto had "screwed" them.
-24-
Considering the sum of all the evidence and the
reasonable inferences drawn therefrom in the light most favorable
to the verdict, we conclude that a reasonable jury could have found
beyond a reasonable doubt that Acevedo knowingly and voluntarily
participated in the conspiracy to acquit Lutgardo. Furthermore,
Acevedo's argument that he never saw, heard, met or discussed
anything with Lutgardo fails because "each coconspirator need not
know of or have contact with all other members of the conspiracy,
nor must they know all of the details of the conspiracy or
participate in every act in furtherance of it." Rodríguez-Reyes,
714 F.3d at 7. Thus, evidence that Acevedo met or talked to
Lutgardo was not required to prove his participation in the
conspiracy.
We also find that there was sufficient evidence to
support Acevedo's conviction on Count Three. Here, Lutgardo's
acquittal was the "business" or "transaction" in connection to
which the bribe was made. However, because the monetary value of
Lutgardo's acquittal cannot be determined, we evaluate the value
of the bribe to determine if the transactional element requirement
is met. Acevedo concedes that he received $4,615 in benefits from
Lutgardo, including a $3,788 tax debt paid to the Treasury
Department by Lito, $420 in gifts from Macy's, and $407 related to
some other expenses for which receipts were entered into evidence.
-25-
Moreover, the evidence at trial demonstrates that Acevedo received
other benefits and items valued over $385 that, combined with the
$4,615 that Acevedo concedes, would meet the $5,000 threshold.
A summary of expenditures prepared by Lito, and
introduced into evidence at trial, shows a total of $63,380 in
payments made to Acevedo or on Acevedo's behalf, including $18,720
in labor costs related to the construction work in Acevedo's house
and $4,550 in expenses in restaurants and bars. In addition,
Acevedo also expected to receive an appellate judgeship and jobs
for Saúl and Miguel at the Treasury Department and the State
Insurance Fund Corporation, respectively. From the appellate
judgeship alone, Acevedo would have received a salary increase of
around $15,400 annually until his retirement at age 70.18
The government also points to the $3,000 to $4,000 cash
payment that Acevedo received in April 2013, after the April 5
incident, to cover expenses related to any investigation or
possible charges that could be brought against him. Acevedo
argues, however, that this amount should not be considered because
the alleged conspiracy had concluded by then. The government, on
18 Ms. Ginorli Maldonado, the Director of the Office of Budget
and Planning at the Puerto Rico Court Administration testified
that a Superior Court Judge's yearly salary is $89,600, whereas a
state appellate judge earns $105,000 annually. We also note that
in Acevedo-López this court calculated Acevedo's expected benefit
from the appellate judgeship to be $123,200, based on the years
remaining until Acevedo's retirement. 873 F.3d at 335.
-26-
the contrary, argues that the conspiracy was still ongoing because
Lito and Lutgardo still had to make good on their promise of
benefits to Acevedo. We need not decide this issue because even
if we do not take into consideration the payment in question,
§ 666's $5,000 threshold is easily met with the $63,380 in
expenditures and/or the expected salary increase from the
appellate judgeship. Accordingly, the district court did not err
in finding that the transactional element under § 666 was met.
B. Challenged Remarks during Opening Statement and Closing
Argument, and Miriam Rodríguez's Testimony
Acevedo next argues that the government improperly
appealed to the jury's emotions and inflamed the passions of the
jurors through its opening statement and closing argument, as well
as with its presentation of Miriam Rodríguez ("Rodríguez"),
Babilonia's mother-in-law, as a witness.
Acevedo complains of the following remarks during the
government's opening statement:
Félix Babilonia was 49 years old when he was killed
on the evening of June 30, 2012. He was involved in
a car collision, with another vehicle driven by
[Lut]gardo Acevedo López on the west coast of Puerto
Rico. When Félix died he left behind his wife Lesley
and three children. Lutgardo was charged with among
other crimes, vehicular homicide and his criminal
trial was eventually assigned to the defendant, Manuel
Acevedo Hernández. However, the defendant did not
give Félix Babilonia and his family a fair trial. Did
not give them justice. Instead his greed and ambition
had him take bribes, from Lutgardo, more than
$50,000.00 in goods and services in exchange for
-27-
finding him not guilty, violating the very core of
the institution that the defendant swore to uphold.
. . .
On March 2013 [sic], the Félix Babilonia's [sic]
family entered a courtroom such as this one, expecting
and deserving fairness. Lutgardo was charged with
vehicular homicide because witnesses said he had been
driving drunk and high. Lutgardo was charged with
obstruction of justice because he refused to take a
breathalyzer test. Félix's family deserved justice.
They deserved a fair trial where everyone followed
rules. Did they get that? No. Why not? Because
when they walked into that courtroom the Judge that
they saw sitting on the bench is the man sitting right
there. Defendant Manuel Acevedo Hernández. And [in]
his courtroom justice was for sale.
. . .
The defendant is entitled to a fair trial, unlike the
one he denied Félix Babilonia's family, and the law
requires us to prove him guilty beyond a reasonable
doubt. We embrace the burden, ladies and gentlemen,
and we want you to hold us to it.
Regarding closing argument, Acevedo does not point to
any specific statement, but rather argues generally that during
closing argument, "the government retook the theme that justice
had been denied by [Acevedo] to . . . Babilonia."19
19 The record reveals that the prosecutor mentioned the term
"justice" twice during the government's closing argument; once at
the beginning of his argument, when he stated that Acevedo "did
not give Félix Babilonia and his family justice" and at the end of
his argument, when he stated that "[a] guilty verdict here for
both counts will embrace justice."
-28-
On the second day of trial, Rodríguez, Babilonia's
mother-in-law, briefly testified as part of the government's case-
in-chief. When Rodríguez was called to the witness stand, defense
counsel asked for a proffer of her testimony. In response, the
prosecutor explained that Rodríguez would provide "a little bit of
background about [her] son-in-law['s] life" and would also testify
about what she observed in state court when she attended Lutgardo's
trial. Defense counsel stated that it would be "improper" for
Rodríguez's testimony to include "her interpretations of what
happened in court." The district court allowed Rodríguez to
testify as long as her testimony was based on personal knowledge.
Thereafter, Rodríguez testified, without any objection,
that Babilonia, "an excellent man and a marvelous father" of three,
died as a result of a "car collision" on June 30, 2012. She also
testified, again without objection, that his family lost his income
when he passed away, and had not overcome his death. Rodríguez
further testified that Lutgardo was charged with "vehicular
homicide" for Babilonia's death, that the case was assigned to
Acevedo, and that she attended Lutgardo's state trial.
Additionally, she testified that it "seemed odd" that Acevedo
suggested in January 2013 that expert reports on Lutgardo's BMW
might be important, that Acevedo then ordered the government to
turn over Lutgardo's BMW so that defense counsel could hire an
-29-
expert to examine it, and that Acevedo postponed the trial date
until March so that Lutgardo could retain an expert to examine the
car. When Rodríguez was asked by the prosecutor whether she had
been able to observe Acevedo's demeanor during the trial, Acevedo's
defense counsel objected because Rodríguez was not "the best
evidence" as to "what happened in court."
In response to defense counsel's objection, the court
held a sidebar discussion where the prosecutor explained that he
was asking about what Rodríguez had observed at trial because
following the trial, she had made "an official complaint" against
Acevedo. Defense counsel argued that the fact that Rodríguez had
filed a complaint against Acevedo was irrelevant. The court
stated that it had been "very attentive to see" that Rodríguez's
testimony had not turned into "an emotional rally," determined
that there was "no indicia" of having "appeal[ed] to the jury
emotions" and that Rodríguez's testimony had been "pretty
factual," and therefore allowed the government's line of
questioning to continue as long as it was limited to the fact that
Rodríguez felt the process had been "unfair and that [had] lead
her to file a complaint." Back in open court, in response to the
government's line of questioning, Rodríguez then testified that
her impression was that the trial had been unfair and, after she
-30-
heard in the news that Lito had been stopped while accompanied by
Acevedo, she decided to file a complaint against Acevedo.
On appeal, Acevedo argues that the government's opening
statement and closing argument concentrated on seeking justice for
Babilonia and his family. Yet, whether justice had been denied
to Babilonia or his family did not go to any of the elements of
the crimes being charged. Likewise, Acevedo contends that
Rodríguez's testimony, although initially portrayed by the
government as "factual," turned out not to be factual at all
because it did not go to any of the elements of the charges that
Acevedo was facing, and she knew nothing about the conspiracy or
the alleged bribe. Thus, the government's remarks at opening
statement and closing argument, as well as Rodríguez's testimony,
were irrelevant and improper, and "only appealed to the jury's
sentiment." According to Acevedo, by making these remarks and
introducing Rodríguez's testimony, the government "distorted the
issues, gave weight to an unrelated matter and appealed to the
jury to find for the government," tainting the jury's verdict and
resulting in prejudice to Acevedo, which warrants a new trial.
1. Unpreserved Challenges to Opening Statement, Closing
Argument, and Rodríguez's Testimony
Acevedo did not object to the prosecutor's remarks
during the government's opening statement or closing argument.
Nor did he object to the admission of Rodríguez's testimony about
-31-
Babilonia and the effects of his death on his family. Thus, we
review Acevedo's newly raised challenges for plain error.20 United
States v. Rodríguez, 675 F.3d 48, 64 (1st Cir. 2012); see also
United States v. González-Pérez, 778 F.3d 3, 19 (1st Cir. 2015);
United States v. Flemmi, 402 F.3d 79, 86 (1st Cir. 2005). In
order to succeed under the plain error standard, the "defendant
must demonstrate: (1) that an error occurred (2) which was clear
or obvious and which not only (3) affected the defendant's
substantial rights, but also (4) seriously impaired the fairness,
integrity, or public reputation of judicial proceedings." United
States v. Moran, 393 F.3d 1, 13 (1st Cir. 2004) (quoting United
States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001)). This standard
of review places a heavy burden on the defendant and "tends to
afford relief . . . only for 'blockbuster' errors." Id. (quoting
United States v. Griffin, 818 F.2d 97, 100 (1st Cir. 1987)).
The government maintains that there was no error in the
government's opening statement and closing argument because the
20 Where a timely objection has been made to a statement in the
government's opening or closing, we review de novo whether the
challenged portion of the government's statement was improper and
if so, whether it was harmful. United States v. Appolon, 695 F.3d
44, 66 (1st Cir. 2012). However, improper remarks by the government
"are grounds for reversal only if they 'so poisoned the well' as
to have likely affected the trial's outcome." United States v.
Mooney, 315 F.3d 54, 60 (1st Cir. 2002) (quoting United States v.
Cartagena-Carrasquillo, 70 F.3d 706, 713 (1st Cir. 1995)).
-32-
challenged remarks merely tied "the bribery scheme to the
vehicular-manslaughter case from which it arose." According to
the government, when "charging a judge with taking a bribe to fix
a criminal trial, [the government] can permissibly remind jurors
that the judge's actions had the effect of depriving the parties
to that case . . . of a fair trial" and, here, the challenged
remarks had the purpose of establishing that Acevedo's "conduct
had real-world victims and consequences." The government further
notes that the prosecution alluded to Babilonia only a few times
during the course of a seven-day trial, that most of these
instances were days before the jury deliberated, and that it did
not mention Babilonia at all during its rebuttal, so any alleged
impropriety was neither pervasive nor severe. Alternatively, the
government maintains that "any impropriety was not clear or
obvious" and, consequently, does not amount to clear error.
Specifically as to Rodríguez's testimony, the government argues
that the district court made a specific finding that there had
been no indicia of the government appealing to the jury emotions
and that the court had been "very attentive to see that
[Rodríguez's testimony] was not going to turn into an emotional
rally and it [had] not." Finally the government maintains that,
even if the government's remarks at opening statement or closing
argument, and Rodríguez's unchallenged testimony had been clearly
-33-
erroneous, reversal is not warranted because they did not "so
poison[] the well that the trial's outcome was likely affected."
We need not decide whether there was an error in
admitting Rodríguez's unchallenged testimony, or in the
government's opening statement or closing argument, or whether the
alleged errors were clear or obvious because, even assuming that
Acevedo meets the first two prongs of the plain error standard,
his challenges nevertheless fail under the last two prongs.
Acevedo did not demonstrate that any alleged error
affected his substantial rights or that they impaired the fairness,
integrity, or the public reputation of the judicial proceedings.
We are hard-pressed to find that Acevedo's substantial rights were
affected considering the strength of the evidence against him,
which included, among other things, direct evidence of Acevedo (in
his own voice) providing strategic legal advice to Lutgardo's
counsel, the testimony of numerous witnesses (including Lito), and
corroborating evidence of these testimonies, such as recorded
conversations, phone records, photos, receipts, toll records, and
gifts that were seized from Acevedo's house. We are confident
that this overwhelming evidence "would have corrected any jury
misperception arising from the government's opening statement [or
closing argument]" or from Rodríguez's unchallenged testimony.
United States v. Cruz, 156 F.3d 22, 31 (1st Cir. 1998). Moreover,
-34-
regarding the remarks made during the government's opening
statement and closing argument, the district court instructed the
jury that statements by the attorneys did not constitute evidence,
and the jury is presumed to have followed these instructions. Cf.
Rodríguez, 675 F.3d at 63. Because, "any lingering prejudicial
effect from the [government's] remarks [or Rodríguez's
unchallenged testimony] pales in comparison with the overwhelming
strength of the government's evidence against [Acevedo]," United
States v. Mooney, 315 F.3d 54, 60 (1st Cir. 2002), the comments
referring to the denial of justice to Babilonia and his family and
the testimony about the effects of Babilonia's death on his family
do not amount to reversible plain error.
2. Preserved Challenge to Rodríguez's Testimony
Because Acevedo launched a timely objection to
Rodríguez's testimony about Acevedo's conduct during Lutgardo's
state trial, we review the admission of that part of her testimony
for abuse of discretion. Gay v. Stonebridge Life Ins. Co., 660
F.3d 58, 61 (1st Cir. 2011); Peña–Crespo v. Puerto Rico, 408 F.3d
10, 14 (1st Cir. 2005). If we determine that the court abused its
discretion in admitting the testimony, "we then review the
admission for harmless error." Gay, 660 F.3d at 62. "The
essential inquiry in harmless error review is whether the
improperly admitted evidence likely affected the outcome of [the]
-35-
trial." United States v. Torres-Galindo, 206 F.3d 136, 141 (1st
Cir. 2000).
The government argues that the district court did not
abuse its discretion in allowing Rodríguez to testify about
Acevedo's handling of Lutgardo's state trial and her filing of a
complaint against him because this testimony was relevant. It
posits that "federal rules of evidence set a very low bar for
relevance, allowing admission if the evidence has any tendency to
make a material fact more or less likely" and that, here, her
testimony "clears that low bar." (Internal quotation marks
omitted). It further argues that Rodríguez's observation that
Acevedo frequently ruled in favor of Lutgardo, as well as her
explanation of the circumstances leading to her filing of a
complaint, "had at least some tendency to show that [Acevedo] was
on the take."
Although we agree with the government that Rodríguez's
testimony clears the low bar for relevance, we note that even
relevant evidence is subject to exclusion if its unfair prejudicial
effect substantially outweighs its probative value. United States
v. Breton, 740 F.3d 1, 14 (1st Cir. 2014) (quoting Fed. R. Evid.
403). We need not decide, however, whether the district court
abused its discretion in allowing Rodríguez's testimony because,
even if we were to find that the testimony should have been
-36-
excluded, the error would be harmless. Given the strength of the
evidence against Acevedo, we find that Rodríguez's testimony did
not affect the outcome of the case. See, e.g., United States v.
Rose, 104 F.3d 1408, 1414 (1st Cir. 1997) (finding that admission
of potentially inflammatory evidence was an abuse of discretion,
but harmless because of overwhelming evidence of guilt). Thus,
Rodríguez's testimony, while perhaps best left out, was not
reversible error.
C. Lutgardo's Fifth Amendment Privilege
Lutgardo invoked his right against self-incrimination
after Acevedo subpoenaed him to testify at trial. The district
court convened a hearing outside the presence of the jury to
conduct an inquiry into Lutgardo's invocation of the Fifth
Amendment privilege. Acevedo's defense counsel presented the
questions he would pose to Lutgardo were he to testify. The
questions focused on Lito and the "monies given to him" by
Lutgardo. Lutgardo, who was assisted by counsel, declined to
answer the questions, fearing the answers could expose him to
additional criminal charges. The trial court upheld the
privilege, finding that "based on the proposed questions of
examination . . . [Lutgardo] could be exposing himself to the
filing of not only possible Federal charges but possible State
charges and other charges by any other entity."
-37-
We review "favorable rulings on th[e] invocation of the
Fifth Amendment privilege for abuse of discretion." United States
v. Ramos, 763 F.3d 45, 53 (1st Cir. 2014) (citing United States v.
Gary, 74 F.3d 304, 310 (1st Cir. 1996)). We will reverse a
district court's determination that a witness properly invoked the
privilege only when it is "perfectly clear . . . that the answers
[sought from the witness] cannot possibly incriminate." United
States v. De la Cruz, 996 F.2d 1307, 1312 (1st Cir. 1993) (omission
in original) (internal quotation marks omitted) (citing United
States v. Johnson, 488 F.2d 1206, 1209 (1st Cir. 1973)). After
careful review of the record, we discern no abuse of discretion in
the district court's ruling.
Acevedo claims that the district court infringed upon
his Sixth Amendment right to present a defense by allowing Lutgardo
to invoke his Fifth Amendment privilege against self-
incrimination. The Sixth Amendment guarantees an accused's right
"to have compulsory process for obtaining witnesses in his favor,"
U.S. Const. amend. VI, which includes "[t]he right to offer the
testimony of witnesses, and to compel their attendance, if
necessary." Washington v. Texas, 388 U.S. 14, 18–19 (1967). The
Sixth Amendment, however, does not provide an absolute right to
present a defense. See DiBenedetto v. Hall, 272 F.3d 1, 8 (1st
Cir. 2001) ("[A] defendant's right to present relevant evidence is
-38-
not unlimited, but rather is subject to reasonable restrictions
. . . and evidentiary exclusions will not violate the constitution
so long as they are not arbitrary or disproportionate to the
purposes they are designed to serve." (internal quotation marks
omitted) (quoting United States v. Scheffer, 523 U.S. 303, 308
(1998))); Gary, 74 F.3d at 309 ("[T]he Sixth Amendment does not
confer the right to present testimony free from the legitimate
demands of the adversary system." (quoting United States v. Nobles,
422 U.S. 225, 241 (1975))). Consequently, we have held that "a
witness may invoke the Fifth Amendment if testifying might
incriminate him on direct or cross-examination, despite a
defendant's Sixth Amendment interests in presenting that
testimony." Ramos, 763 F.3d at 53. The witness need only show
"some reasonable possibility that, by testifying, he may open
himself to prosecution." United States v. Castro, 129 F.3d 226,
229 (1st Cir. 1997) (citing In re Kave, 760 F.2d 343, 354 (1st
Cir. 1985)).
We turn to Acevedo's contention that Lutgardo could not
invoke the Fifth Amendment because Acevedo's defense counsel would
only ask questions related to facts to which Lutgardo had already
pled guilty. We have found this reasoning to be "overly
simplistic," as it ignores what the government might bring up
during cross examination that the conviction does not shield from
-39-
criminal liability, and the fact that the plea agreement does not
preclude further federal or state prosecution. Id. at 231–32.
The district court appropriately noted that the plea colloquy
"leaves open the door" on cross examination and allows "space for
the government to conduct an investigation possibly charging Mr.
Lutgardo Acevedo." It added that, were Lutgardo to testify, he
would have to answer questions on cross examination without
limiting his responses. While this court has acknowledged that
the government does not have a constitutional right to cross-
examine defense witnesses, we have also recognized that it is "one
of the legitimate demands of the adversary system." Gary, 74 F.3d
at 309. We ordinarily do not allow a witness to testify on direct
if the court has "adequate reason to believe that the witness
validly will invoke the Fifth Amendment on cross-examination with
regard to matters which are bound up with those discussed on
direct." Castro, 129 F.3d at 230 (citing Gary, 74 F.3d at 309).
Here, Lutgardo understood that by answering Acevedo's
questions, as well as any follow-up questions, he might have
incriminated himself as to other criminal conduct for which future
charges could be filed against him. Lutgardo did not face a
"particularly onerous burden" to validly invoke the Fifth
Amendment. Id. at 229. Rather, it simply "need[ed] [to] be
evident from the implications of the question . . . that a
-40-
responsive answer to the question or an explanation of why it
cannot be answered might be dangerous because injurious disclosure
could result." Ramos, 763 F.3d at 55; see also Castro, 129 F.3d
at 229 ("For the privilege to attach, the questions and answers
need not be directly incriminating. If a reply to a seemingly
innocuous question reasonably will tend to sculpt a rung in the
ladder of evidence leading to prosecution, the privilege
appropriately may be invoked." (citing Hoffman v. United States,
341 U.S. 479, 486 (1951))). The court had adequate reason to
believe that Lutgardo faced potential incrimination and would not
answer any questions on cross examination even if he was allowed
to answer Acevedo's questions on direct examination. During the
district court's inquiry, the prosecutor provided a specific
example of a potential line of questioning for cross examination:
"the United States would have the opportunity . . . to explore
[Lutgardo's] relationship with [Lito] or any others," and "whether
he has done other criminal activity with that individual, whether
it relates to taxes or otherwise." The government, in an effort
to undercut Acevedo's claim that Lito simply sought to obtain money
from Lutgardo and to do so had involved Acevedo without his
knowledge, could have gone into further detail as to other
incidents, not necessarily limited to Lito, which would have given
the government the opportunity to ask if Lutgardo had been involved
-41-
in drug transactions with Lito, a question he would have declined
to answer. Thus, the cross examination would have been rendered
ineffective, and, as the district court noted, "[t]he
determination ha[d] to be done with both elements in the balance."21
See Ramos, 763 F.3d at 55 ("It is crucial for a district court to
inform its discretion through appropriate inquiries.").
Moreover, as the district court correctly emphasized,
Lutgardo had yet to be sentenced. A defendant who has been
convicted but is awaiting sentencing "retains a legitimate
protectable Fifth Amendment interest as to matters that could
affect his sentence." Id. at 54 (quoting De la Cruz, 996 F.2d at
1312). Any potentially incriminating statements during Lutgardo's
testimony, or statements and evidence casting him in a negative
light, could have unfavorably affected his sentence. See De la
Cruz, 996 F.2d at 1313 (finding that the convicted defendant's
compelled testimony could have affected his chances at any possible
sentencing reduction or might have exposed him to enhancements).
Nothing in Lutgardo's plea agreement prevented the sentencing
21 To the extent Acevedo claims that the district court should
have limited the government's cross examination, here, "effective
government cross-examination would have been seriously impaired if
the prosecutor were denied latitude to explore" Lito and Lutgardo's
dealings. De la Cruz, 996 F.2d at 1313. We have held that courts
may not limit cross examination when that limitation would be
unduly prejudicial to a party. Gary, 74 F.3d at 311-12.
-42-
court from using such statements against him when determining his
sentence.
The record reveals that the district court carefully
assessed Lutgardo's invocation of the Fifth Amendment and
exercised its discretion appropriately. In light of the district
court's thorough inquiry and the "substantial and real . . .
hazards of incrimination," Ramos, 763 F.3d at 55 (internal
quotation marks omitted), we conclude that the district court did
not abuse its discretion in declining to compel Lutgardo's
testimony.
D. Sentencing
Acevedo argues that the district court erred in
calculating the applicable GSR in two respects. First, he contends
that the court's determination that the offense included more than
one bribe, and its consequent imposition of a two-level enhancement
under U.S.S.G. § 2C1.1(b)(1),22 was incorrect because the offense
only involved a single incident of bribery which sought to obtain
one benefit -- Lutgardo's acquittal. According to Acevedo, that
the scheme included a number of installment payments that "varied
in quantity is inconsequential and irrelevant," because the
22 U.S.S.G. § 2C1.1(b)(1) directs the court to increase the base
offense level by two levels "[i]f the offense involved more than
one bribe or extortion."
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purpose of the bribe was singular. Acevedo notes that, as the
district court found, the cash payment that Lito made to Acevedo
after the April 5 incident was for a purpose other than obtaining
Lutgardo's acquittal. He argues that, however, this payment
should have not been considered because it did not fall within the
conspiracy and bribe charged since that conspiracy had already
ended by then. Second, Acevedo argues that the court erred in
calculating the value to be obtained by him for his participation
in the bribe, for purposes of applying a ten-level enhancement
under U.S.S.G. § 2C1.1(b)(2). He posits that the salary increase
of $92,400,23 on which the ten-level enhancement partially relied,
is impermissibly speculative because he never applied for the
appellate judgeship and the record does not show that he would
have received it. In consequence, his argument goes, the increase
in salary between a superior judge and an appellate judge should
not have been considered. Acevedo admits to having received
benefits amounting to $63,380, which he argues would warrant only
a six-level enhancement.
23 The court arrived at this amount by multiplying $15,400 (the
increase in salary that Acevedo would have received had he been
appointed to the Court of Appeals ($105,000 for an appellate judge
yearly salary minus $89,600 for a superior judge yearly salary))
by six, which was the most conservative number of years that
Acevedo would have held that position until his retirement at age
seventy.
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In response to Acevedo's arguments, the government
alleges that Lito and Lutgardo bribed Acevedo to "provide favorable
treatment throughout Lutgardo's state case," which would not only
get Lutgardo acquitted, but also give the appearance that the
acquittal had been reasonable. According to the government,
multiple acts taken by Acevedo to support Lutgardo's acquittal
(e.g. Acevedo's rulings on motions, strategy advice, ex parte
visits to the site of the accident, etc.) point toward multiple
bribes. Moreover, the government argues that the scheme involved
different forms of payment -- gifts, payments, remodeling work,
social outings, a motorcycle, and an appellate judgeship -- and
that the payment made after Lutgardo's acquittal was made during
the scope of the conspiracy, which still existed by January 2014
when Lito and Lutgardo created a backdated contract to provide a
false explanation for the money that Lutgardo gave Lito in
furtherance of the conspiracy.
Regarding the ten-level enhancement under § 2C1.1(b)(2),
the government argues that, under United States v. Berroa, 856
F.3d 141, 162 (1st Cir. 2017), the enhancement was proper because
it applies so long as Acevedo "received or expected to receive the
requisite benefit." The government tells us that the language of
the Guidelines "prescribes a 'forward-looking' inquiry that
focuses on the defendant's reasonable expectation at the time of
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the offense" thus, making irrelevant that Acevedo did not apply
for the appellate judgeship, and points to evidence in the record
showing that Acevedo expected the appellate judgeship.
The government further urges us to uphold Acevedo's
sentence by finding that any error in calculating the GSR would
nonetheless be harmless in light of the district court's statement
that it would impose the same sentence even if the applicable GSR
would have been lower.
Both of Acevedo's alleged sentencing errors go to the
calculation of the GSR. Yet, aware of the parties' disagreement
as to the proper calculation of the GSR, the district court made
it abundantly clear that it would have imposed the same sentence
regardless of the applicable GSR. It stated the following:
I would like to make clear that regardless of the
application of the guidelines, regardless of whether
any other of those adjustments would have been proper,
this Court would have, considering such a
determination, that the guidelines would not properly
reflect the seriousness of the offense and the
participation of this defendant and the Court would
have engaged in a variance under the 3553 factors and
would have imposed the same sentence that I am
imposing here today.
In light of this clear indication in the record that the
court would have imposed the same sentence even without any of the
alleged errors, we find that any errors in calculating Acevedo's
GSR would have been harmless. See United States v. Tavares, 705
F.3d 4, 25 (1st Cir. 2013) ("If 'the district court would have
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imposed the same sentence' even without the error, it was
harmless." (quoting Williams v. United States, 503 U.S. 193, 202-
03 (1992))).
E. Cumulative Error
Acevedo also seeks reversal based on the cumulative
error doctrine. Having found that some of Acevedo's allegations
of error are entirely without merit, and that none of the alleged
errors resulted in substantial prejudice or affected the outcome
of the trial, we also conclude that the aggregate effect of his
claimed errors does not call for reversal either. See United
States v. Peña-Santo, 809 F.3d 686, 702 (1st Cir. 2015); Torres-
Galindo, 206 F.3d at 141. The evidence against Acevedo was
overwhelming, and "the district court did not conduct the trial in
a manner that undermined his right to a fair trial." Peña-Santo,
809 F.3d at 702-03. Consequently, we reject his contention that
his conviction was tainted by cumulative error.
III. Conclusion
The record reflects that Acevedo's conviction was not
tainted by prejudicial error either from the admission of
Rodríguez's testimony or in the government's opening statement or
closing argument, and the evidence of his guilt was more than
sufficient to support the jury's verdict. It further shows that
the court did not abuse its discretion in upholding Lutgardo's
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invocation of his Fifth Amendment privilege. Finally, the record
reflects that any sentencing error would be harmless. Accordingly,
Acevedo's conviction and sentence are affirmed.
Affirmed.
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