United States v. Gilbert Sanchez , 502 F. App'x 375 ( 2012 )

Case: 11-50774 Document: 00512059867 Page: 1 Date Filed: 11/20/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 20, 2012
No. 11-50774 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
GILBERT SANCHEZ,
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:09-CR-1567-1
Before KING, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:*
This action concerns the attempt by an El Paso, Texas, attorney, Luther
Jones, and the El Paso County district clerk, Gilbert Sanchez, among others, to
have a county contract awarded to Jones’ client, for which Jones and Sanchez
were convicted of conspiring to commit wire and mail fraud to deprive citizens
of honest services and to obtain money by material false or fraudulent pretenses,
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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representations, or promises, in violation of 18 U.S.C. §§ 1341, 1343, 1346, and
1349. Jones was permitted to dismiss his appeal shortly before oral argument.
Sanchez challenges: the sufficiency of the evidence on the jurisdictional
elements for wire and mail fraud; the jury’s being instructed on a federal, not
state, law basis for honest-services fraud; the indictment’s failing to charge, and
the jury instructions’ failing to require finding, the conspiracy was intended to
deprive the county of money or property; and his post-verdict absence when the
jury was polled by the court sua sponte. AFFIRMED.
I.
Jones, an attorney in El Paso, had served as assistant district attorney,
state legislator, county attorney, and county judge. He was active in supporting
and advising candidates for public office in El Paso, with his assistance usually
being free. In 2002, Jones helped Sanchez win the election for district clerk.
Sanchez took office in January 2003.
After the election, Jones recommended Sanchez’ hiring Parra for the
clerk’s office. Parra, an information technology specialist, occasionally helped
Jones with computer issues and campaign activities, including Sanchez’. (Parra
was indicted as a co-conspirator, pled guilty, and testified against Jones and
Sanchez.)
Sanchez recognized a need for modernization of the clerk’s office and, with
Parra’s assistance, sought to develop a digitization plan to convert files into
electronic databases (the project). They began communicating with companies
capable of performing the project, including Altep, an El Paso company owned
by Miller.
Altep’s never having competed for a government contract, it sought legal
assistance; Miller met with Jones’ former law partner (Jones’ partner), who
encouraged Altep to hire both her and Jones, in part because Jones had
experience competing for government contracts, but also because of his
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assistance with Sanchez’ election and influence in local politics. It was agreed
that, if Altep were awarded the contract, Jones and his partner would receive
one-third of the net profit.
Jones encouraged Miller to meet with, and make campaign contributions
to, county commissioners to better position Altep for the contract, as the
commissioners court would select the vendor. Prior to Commissioner Flores’
receiving Miller’s contribution, Jones told Flores to support Sanchez’ project and
make sure Altep got the contract, in exchange for a contribution. Miller
contributed $1000 to Flores’ campaign; at Jones’ request, Miller also contributed
to three other commissioners. (Like Parra, Flores was indicted as a co-
conspirator, pled guilty, and testified against Jones and Sanchez.)
During February 2004, Altep co-sponsored an El Paso bar-association
seminar in Las Vegas, Nevada, where Altep provided attorneys with information
regarding “e-discovery” services. No new materials were presented relevant to
Sanchez or Parra. Nevertheless, Sanchez requested Altep pay for his Las Vegas
flight; Altep refused. Jones paid for Sanchez’ trip, providing him a $750 check,
which Sanchez cashed. When Parra learned Jones and his partner wanted to
pay for him to attend as well, he declined.
In addition to the Las Vegas trip, Jones paid for dinner, drinks, and other
entertainment for Sanchez and Parra while working on the project. Jones also
paid for Sanchez’ travel to Dallas, San Antonio, and New York.
In March 2004, the commissioners court authorized the county to issue a
“request for proposal” (RFP) for the project. Jones encouraged Parra and
Sanchez to meet with Altep representatives to assist in writing the RFP
specifications, as they were to be drafted to favor Altep. This access to
information and continuous communication allowed Altep to review the RFP
months prior to its release to the public, and gave Parra time to make
adjustments to the RFP to ensure Altep’s ability to comply.
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In response to the RFP, numerous vendors, in addition to Altep, submitted
proposals, many of which were submitted via Federal Express, an interstate
commercial carrier. Altep was able to ask questions directly to Parra, who
responded immediately; other vendors, however, had to officially submit
questions to the county’s purchasing department and wait for answers in the
form of addenda. Altep continued communicating with Jones and Sanchez to
determine the company’s prospects for obtaining the contract.
During May 2004, then-Commissioner Flores was the subject of an
investigation for not fully reporting received political contributions. Because
Jones was concerned Flores might be removed from the commissioners court, he
wanted the project rushed through. On 23 May 2004, Jones e-mailed his
partner, Miller, and Sanchez to suggest placing the vendor selection on the
agenda for the 7 June 2004 commissioners-court meeting; he also requested
input on the language to use for the agenda-item, and a meeting on 26 May in
Miller’s or his partner’s office to discuss the project. Upon meeting, they
discussed Flores’ status and moving quickly on the project. Sanchez initially
objected to the fast-track, but agreed eventually.
After proposals were submitted and reviewed by the county purchasing
department, Parra acquired the clerk’s office’s copies and created a spreadsheet
identifying whether a vendor complied with the requests in the RFP. Altep was
the only vendor that complied fully.
On 7 June 2004, the day the project was to be discussed at the
commissioners-court meeting, Parra provided Miller, Jones, his partner, and
Sanchez each with a copy of the spreadsheet; and Miller was told Altep had won
the contract (even though the decision had not yet been made). All but Jones
attended the commissioners-court meeting; Jones wanted to ensure his
participation in the project remained unknown.
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During the meeting, an assistant county attorney, the legal advisor to the
commissioners court, noticed Jones’ partner had the spreadsheet with the vendor
information, which was not to have been disclosed to anyone except the court.
The assistant county attorney immediately requested a recess. Because Jones’
partner’s access to the spreadsheet defeated the impartiality of the procurement
process, the assistant county attorney encouraged the court to reject the
proposals. It agreed, and instructed the purchasing agent to rebid the project.
The project was never revived. It was later discovered the county never
had the money to fund the contract. While some attempts were made to resume
the project, these efforts, according to Parra, ceased after Flores pled guilty in
July 2007 to her participation in the conspiracy.
A 2009 indictment charged Jones and Sanchez with conspiracy to commit
wire fraud (count 1), conspiracy to commit mail fraud (count 2), mail fraud
(count 3), and one count of bribery each (counts 4 and 5). Upon defendants’ joint
motion, the district court dismissed counts 3-5, leaving only the two conspiracy
counts.
At the jury trial in 2011, upon completion of the Government’s case-in-
chief, Jones and Sanchez moved unsuccessfully for judgments of acquittal; they
then presented evidence, including their testifying; and, after the Government’s
rebuttal evidence, Jones and Sanchez renewed their motions for judgments of
acquittal, which were again denied. A special-verdict form inquired whether
defendants conspired on each count in two ways: to defraud the citizens of El
Paso County of the right to honest services; and to obtain money through false
and fraudulent pretenses. Jones and Sanchez were found guilty on both prongs
for both counts. Immediately after the jury returned its verdict, Jones and
Sanchez were taken into custody; the district court, sua sponte and without
objection, then polled the jury out of Jones’ and Sanchez’ presence.
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Post-judgment, Jones and Sanchez moved for acquittal and a new trial; the
motions were denied. In August 2011, they were each sentenced, inter alia, to
72-months’ imprisonment on each count, to be served concurrently.
For his opening and reply briefs on appeal, pursuant to Federal Rule of
Appellate Procedure 28(i), Sanchez adopted Jones’ briefs, except for Jones’
challenge to the search of his law office. As noted, Jones’ unopposed motion to
dismiss his appeal was granted.
II.
Regarding his convictions of conspiracy to commit wire and mail fraud,
Sanchez challenges: the sufficiency of the evidence for the jurisdictional
elements of wire and mail fraud; the jury’s being instructed based on a federal,
not state, law basis for honest-services fraud; the indictment’s failing to charge,
and the jury instructions’ failing to require finding, the conspiracy was intended
to deprive the county of money or property; and his being absent when the jury
was polled.
A.
Sanchez claims insufficient evidence for a jury to find the wire-fraud
conspiracy involved interstate wiring and the mail-fraud conspiracy involved a
mailing or an intended mailing. As noted, Sanchez adopted this challenge from
Jones’ appellate briefs. This practice is permitted “when the arguments to be
adopted are equally applicable to the adopting co-appellants”. United States v.
Harris, 932 F.2d 1529, 1533 (5th Cir. 1991) (emphasis in original). Accordingly,
sufficiency-of-the-evidence, and other fact-specific, challenges, to the adopting
appellant’s conviction, without more, are generally “insufficient to raise that
point of error”. Id.; e.g., United States v. Morgan, 117 F.3d 849, 853 (5th Cir.
1997). Here, however, because Sanchez’ contention is “readily transferable from
the proponent’s case to the adopter’s case”, it will be considered. United States
v. Gibbs, 182 F.3d 408, 421 (6th Cir. 1999) (quotation marks and citation
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omitted) (allowing adoption by reference where contention, although fact-
specific, was readily transferrable to all defendants). See also United States v.
David, 940 F.2d 722, 737 (1st Cir. 1991) (“arguments adopted must be readily
transferrable”); United States ex rel. LaCorte v. SmithKline Beecham Clinical
Lab., Inc., 149 F.3d 227, 237-38 (3d Cir. 1998) (same).
Through his motions for judgment of acquittal, Sanchez preserved his
sufficiency challenge in district court; therefore, it is reviewed de novo. E.g.,
United States v. Delgado, 256 F.3d 264, 273 (5th Cir. 2001). The “verdict will be
affirmed if a reasonable trier of fact could conclude from the evidence that the
elements of the offense were established beyond a reasonable doubt”. Id. The
evidence is not evaluated for weight or credibility, but “in the light most
favorable to the verdict, drawing all reasonable inferences to support the
verdict”. Id. at 274.
1.
For conspiracy to commit wire fraud, the Government must prove beyond
a reasonable doubt, inter alia, that it was intended or reasonably foreseeable
that defendant “used interstate wire communications facilities [or] caused
another person to use interstate wire communications facilities”. FIFTH CIRCUIT
PATTERN JURY INSTRUCTION § 2.60. See 18 U.S.C. § 1343. E.g., United States v.
Odiodio, 244 F.3d 398, 402 (5th Cir. 2001). An FBI Special Agent testified as an
expert witness for the Government concerning the interstate nature of the e-
mails at issue.
The jury heard testimony of how e-mails are traced, and how the above-
described 23 May 2004 e-mail from Jones to his partner, Miller, and Sanchez
(and other e-mails between them) traveled through an interstate server in
California. The Agent testified that the tracing software he used never provided
an incorrect result. Viewing the evidence in the requisite light most favorable
to the verdict, a reasonable juror could find beyond a reasonable doubt that it
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was reasonably foreseeable to Sanchez that interstate wire communications
would be used.
2.
For conspiracy to commit mail fraud, the Government must prove beyond
a reasonable doubt, inter alia, that the mails were intended or reasonably
foreseen to be used to execute, or attempt to execute, a scheme to defraud, or to
obtain “money or property by means of false or fraudulent pretenses”. United
States v. McMillan, 600 F.3d 434, 447 (5th Cir. 2010) (citation omitted). See also
18 U.S.C. § 1341; FIFTH CIRCUIT PATTERN JURY INSTRUCTION § 2.59. It is not
necessary that Sanchez used the mails or intended them to be used; the
Government must show the mailing was “incident to an essential part of the
scheme”. United States v. Ingles, 445 F.3d 830, 835 (5th Cir. 2006) (citation
omitted). This requires proof that “completion of the alleged scheme . . .
depend[ed] in some way on the information or documents that passed through
the mail”. Id. (internal quotation marks and citation omitted).
The scheme at issue concerns the attempted award of a county contract to
a company represented by Jones. The county’s RFP was an essential part of that
scheme. The process required vendors to submit proposals in response to the
RFP, many of which were submitted through Federal Express, an interstate
carrier. Cf. id., 445 F.3d at 837-38 (mailings not part of execution of fraud or
incident to essential part of completion of scheme). In the light of the evidence,
discussed supra, a reasonable juror could find beyond a reasonable doubt that
the mailings were essential to executing the scheme.
B.
Sanchez next maintains, through Jones’ briefing, that the district court
committed reversible error by instructing the jury on the federal, rather than the
Texas, law basis for deprivation of honest services. Jury instructions are
ordinarily reviewed for abuse of discretion; but, when the instruction is claimed
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to misstate an element of the offense, review is de novo, subject to harmless-
error review. United States v. Guevara, 408 F.3d 252, 257 (5th Cir. 2005) (such
misstatement is an issue of statutory construction, warranting de novo review).
The relevant statute for deprivation of honest services, 18 U.S.C. § 1346,
provides: “For the purposes of this chapter [which includes §§ 1341, mail fraud,
and 1343, wire fraud], the term ‘scheme or artifice to defraud’ includes a scheme
or artifice to deprive another of the intangible right of honest services”. The
2009 indictment referenced state law, consistent with United States v. Brumley,
116 F.3d 728, 734 (5th Cir. 1997) (en banc) (conviction of state official for
deprivation of honest services under § 1346 must be predicated on breach of
state-law duty).
Subsequently, the Supreme Court considered the scope of § 1346 in
Skilling v. United States, 130 S. Ct. 2896 (2010). Skilling held § 1346 honest-
services fraud should be confined to bribery and kickback schemes, id. at 2932,
stating that this construction of § 1346 established a “uniform national
standard”, id. at 2933.
At trial in 2011, the Government maintained, contrary to the position
taken by defendants, that Skilling had established federal law as the
appropriate standard for § 1346, expressly foreclosing application of Texas’
version of honest-services fraud; the district court agreed. Sanchez maintains
Skilling’s “uniform national standard” confines such fraud to bribery and
kickback schemes as a general category, to include such schemes under state
law.
After briefs were filed, but before oral argument, United States v. Teel, 691
F.3d 578 (5th Cir. 2012), was decided. The Government and Jones, but not
Sanchez, filed letters under Federal Rule of Appellate Procedure 28(j), regarding
Teel’s application here.
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In Teel, appellants maintained that, in the light of Skilling, the jury
instructions were erroneous for defining bribery under Mississippi, rather than
federal, law. Id. at 582. Teel held otherwise:
A fair reading of Skilling, however, reveals that the Court was
establishing a uniform national standard by construing § 1346 to
clearly exclude conduct outside of bribery and kickbacks, such as
conflict-of-interest schemes, not to establish federal law as the
uniform national standard for the elements of bribery and kickbacks
in § 1346 prosecutions. . . . Accordingly, we read Skilling as
recognizing that § 1346 prosecutions may involve misconduct that
is also a violation of state law.
Id. at 583-84 (emphasis in original).
As stated in Teel, Skilling’s “uniform national standard” does not obviate
the requirement that a state official, when prosecuted under § 1346, owe a
state-law duty. Therefore, the federal-law based instructions in this case
constituted error. Accordingly, at issue is whether the error was harmless.
“A nonconstitutional trial error is harmless unless it had substantial and
injurious effect or influence in determining the jury’s verdict.” United States v.
Wright, 634 F.3d 770, 775 (5th Cir.), cert. denied, 132 S. Ct. 171 (2011) (citation
omitted). An erroneous jury instruction will not be reversed if, “based on the
entire record, [] the challenged instruction could not have affected the outcome
of the case”. United States v. Nguyen, 493 F.3d 613, 623 (5th Cir. 2007) (citation
omitted).
Sanchez maintains the jury instructions harmed him by failing to include
three of the requirements of Texas Penal Code § 36.02(a)(4): (1) a connection
between the benefit conferred and a “specific” act by the official; (2) a “but for”
causal connection between the benefit and the act; and (3) an “express
agreement” shown by “direct evidence”. Section 36.02(a)(4), however, concerns
only political contributions.
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The unchallenged instruction on conspiracy required the jury to agree
unanimously that at least one of 21 overt acts listed in the instructions occurred;
only one of them concerned political contributions. For example, one of the non-
political-contribution acts was: “On or about June 7, 2004, defendant Gilbert
Sanchez and Fernando Parra provided Altep’s president with a copy of the
evaluation sheet reflecting Altep as the lowest bidder.” Another overt act stated:
“Jones paid entertainment expenses, including meals and drinks” for Sanchez
and Parra, and the expenditures were reflected in Jones’ bank journal as “an
expense related to his representation of Altep”.
Texas Penal Code § 36.02(a) addresses other types of acts that constitute
bribery beyond subpart (a)(4)’s political contributions. The indictment cites
subpart (a)(1), which provides that a person commits bribery “if he
intentionally or knowingly offers, confers, or agrees to confer on another, or
solicits, accepts, or agrees to accept from another: (1) any benefit as
consideration for the recipient’s decision, opinion, recommendation, vote, or
other exercise of discretion as a public servant, party official or voter”. TEX.
PENAL CODE ANN. § 36.02(a)(1). Needless to say, this section has far greater
reach than § 36.02(a)(4) as it relates to the charged overt acts.
Nevertheless, Sanchez asserts § 36.02(a)(4) was the proper instruction for
all 21 of them. As § 36.02(a)(4) only applies to one of the overt acts upon which
the jury could base its conspiracy convictions, the failure to instruct on Texas-
based honest-services fraud was harmless error. There was substantial evidence
upon which a reasonable juror could have found any of the other 20 overt acts
formed the basis for the conspiracies. Re-stated, the instruction did not exert a
substantial influence on the outcome of the case.
C.
Through Jones’ briefing, Sanchez objects to the indictment’s failing to
charge, and to the instructions’ failing to require finding, the conspiracy was
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intended to deprive the county of money or property. For the offense of mail
fraud under 18 U.S.C. § 1341, the indictment must charge: “(1) the defendant
devised or intended to devise a scheme to defraud; (2) the mails were used for
the purpose of executing, or attempting to execute, the scheme; and (3) the
falsehoods employed in the scheme were material”. McMillan, 600 F.3d at 447(quotation marks and citation omitted). A “scheme to defraud” means “any
scheme to deprive another of money, property, or of the intangible right to
honest services by means of false or fraudulent pretenses, representations, or
promises”. FIFTH CIRCUIT PATTERN JURY INSTRUCTION § 2.59. E.g., Teel, 691
F.3d at 581 n.2. The elements for wire fraud under 18 U.S.C. § 1343 are the
same as for mail fraud, except, of course, wire is substituted for mail use: the
Government must establish the scheme was “perpetrated by means of wire,
radio, or television communication in interstate or foreign commerce”.
McMillan, 600 F.3d at 447 n.24.
Conspiracy to commit these crimes requires: (1) defendant and at least one
other person made an agreement to commit mail/wire fraud; (2) defendant knew
the agreement’s unlawful purpose and joined willfully, with the intent to further
that unlawful purpose; and (3) during the existence of the conspiracy, one
conspirator knowingly committed at least one overt act described in the
indictment to accomplish some object or purpose of the conspiracy. FIFTH
CIRCUIT PATTERN JURY INSTRUCTION § 2.20; 18 U.S.C. § 1349. E.g., United States
v. Peterson, 244 F.3d 385, 389 (5th Cir. 2001).
1.
Pre-trial, Sanchez did not raise his current challenge to the indictment.
Nevertheless, he is permitted to do so on appeal. FED. R. CRIM. P. 12(b)(3)(B)
(appellant must raise pre-trial motion alleging defect in indictment, but at any
time may raise issue that indictment fails to invoke jurisdiction or state an
offense). See, e.g., United States v. Devoll, 39 F.3d 575, 578 (5th Cir. 1994)
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(indictment’s failure to state element of offense proper for consideration when
raised for first time on appeal).
The sufficiency of an indictment is reviewed de novo; it must allege each
element of the charged offense “as to enable the accused to prepare his defense
and to allow the accused to invoke the double jeopardy clause in any subsequent
proceeding”. United States v. Bieganowski, 313 F.3d 264, 285 (5th Cir. 2002)
(quotation marks and citation omitted). Along that line, “the law does not
compel a ritual of words”, and “an indictment’s validity depends on practical, not
technical, considerations”. United States v. Ratcliff, 488 F.3d 639, 643 (5th Cir.
2007) (quotation marks and citations omitted).
Although the indictment does not state explicitly that the scheme was
intended to deprive the county of money or property, it states sufficiently the
elements of the charged offenses as described above. And, a review of the
indictment’s allegations more than supports the scheme’s being intended to
deprive the county of money or property.
2.
As discussed above, when a jury instruction possibly misstates an element
of the charged offense, it becomes an issue of statutory construction that
warrants de novo review. Guevara, 408 F.3d at 257. Sanchez challenges the
instructions for not requiring the jury to find the county was defrauded of money
or property.
This challenge, too, is without merit, because, as the jury was instructed,
completion of the contemplated scheme is not required to establish conspiracy.
See FIFTH CIRCUIT PATTERN JURY INSTRUCTION § 2.20 (“Nor must [the
Government] prove . . . that the alleged conspirators actually succeeded in
accomplishing their unlawful objectives”.). E.g., United States v. Delgado, 668
F.3d 219, 226 (5th Cir. 2012) (conspiracy conviction requires only proof of
agreement to commit underlying act). Nevertheless, the jury did have a special-
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verdict form, for it to find for each count, inter alia, whether: “Sanchez conspired
to create a scheme or artifice to obtain money by material false or fraudulent
pretenses, representations, or promises”.
D.
Finally, Sanchez contends, again through Jones’ briefing, that his absence
during the court’s sua sponte post-verdict jury-poll was reversible error. Because
he failed to make a contemporaneous challenge to not being present, review is
only for plain error. United States v. Curtis, 635 F.3d 704, 714 (5th Cir.), cert.
denied, 132 S. Ct. 191 (2011). For reversible plain error, Sanchez must show a
clear or obvious error that affected his substantial rights. E.g., Puckett v. United
States, 556 U.S. 129, 135 (2009). He fails to do so.
Federal Rule of Criminal Procedure 43 requires a criminal defendant’s
presence at all stages of his trial, to include the return of the verdict. FED. R.
CRIM . P. 43(a)(2). The right to be present stems primarily from the Sixth
Amendment’s Confrontation Clause, but is also protected under the Due Process
Clause when “[defendant’s] presence has a relation, reasonably substantial, to
the fulness of his opportunity to defend against the charge”. United States v.
Gagnon, 470 U.S. 522, 526 (1985) (quotation marks and citations omitted). The
reach of this protection is “to the extent that a fair and just hearing would be
thwarted by his absence, and to that extent only”. Id. Sanchez fails to cite any
decision holding Rule 43 violated when the court, sua sponte and after return of
the verdict in defendant’s presence, requires a jury-poll outside defendant’s
presence, nor any case with substantial similarity.
After the verdict was read and before Sanchez was removed from the
courtroom, his counsel did not request the jury’s being polled; nor did he request
Sanchez’ being returned to the courtroom after the court sua sponte ordered the
poll to be conducted. A jury poll serves “to ascertain with certainty that a
unanimous verdict has in fact been reached”. United States v. Jefferson, 258
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F.3d 405, 411 (5th Cir. 2001) (quotation marks and citation omitted). Each
juror’s affirmative response in the poll indicated no hint of a lack of unanimity.
III.
For the foregoing reasons, the judgment is AFFIRMED.
Judge King concurs in the judgment.
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