United States v. Gonzalez

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 98-40670
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VICTOR GONZALEZ,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(M-98-CR-28)
_________________________________________________________________
August 18, 1999
Before SMITH, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:1
Victor Gonzalez appeals on three principal bases his 18 U.S.C.
§ 666 bribery conviction for referring prisoners to a bail
bondsman; but, because of his failure to properly preserve the
points in district court, two of those bases are subject to very
limited review. We AFFIRM.
I.
This case concerns prisoner-referral payments by bail bondsman
Homero Longoria to several officials in Starr County, Texas,
1
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this opinion should not be published and is not precedent except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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including Gonzalez, a jail administrator. Following monitoring of
Longoria’s office telephone, including several calls with Gonzalez,
Longoria cooperated with the FBI, from mid-1997 to early 1998, by
wearing a recording device and allowing a concealed video camera in
his office. He was told not to alter his bribe-payment behavior,
and to report it to the FBI.
In four incidents recorded by video and audio, Longoria
appeared to pay Gonzalez for prisoner referrals. As discussed
infra, although indicted for payments received for each of the four
incidents, Gonzalez was convicted only on the first two described
below (Garcia and Salinas incidents).
In late November 1997, Longoria paid Gonzalez $300, stating,
with Gonzalez’s evident agreement, that it was for prisoner Daniel
Garcia, whom Longoria and Gonzalez had discussed earlier that day.
And, late that December, Gonzalez explained to Longoria that a
prisoner known as “El Gallo” was Eugenio Salinas and indicated he
(Gonzalez) could approve his bond. (In fact, the approval was
beyond his authority.) In early January 1998, Longoria paid
Gonzalez $300 and told him, again with Gonzalez’s evident
agreement, that it was for approving (with the sheriff) Salinas’
bond. In addition, Gonzalez met with a prisoner in early November
1997 prior to receiving a payment from Longoria, and spoke to
Longoria in early December 1997 about three other prisoners prior
to another payment.
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Gonzalez was indicted in January 1998 on one count of
conspiracy to commit bribery and four substantive bribery counts,
in violation of 18 U.S.C. § 666. He testified that Longoria’s
payments simply repaid money he had loaned Longoria. A jury
convicted Gonzalez on the Garcia and Salinas bribery counts, but
acquitted him on the conspiracy count and the other two bribery
counts.
Gonzalez’s new trial motion, premised on the court’s refusal
to give an entrapment instruction, was denied. Gonzalez was
sentenced, inter alia, to one year and one day in prison.
II.
A.
Among other things, 18 U.S.C. § 666(a)(1)(B) prohibits agents
of certain organizations (per § 666(b), those receiving over
$10,000 of federal funds within a year) from corruptly accepting
anything of value intending to be influenced or rewarded in
connection with a transaction involving over $5,000 in value.
Gonzalez makes several challenges to his indictment and the
sufficiency of the evidence.
Because he did not properly contest the indictment in district
court and did not move for acquittal at the appropriate time
(Gonzalez so moved at the close of the Government’s case-in-chief,
but not at the close of all the evidence or post-verdict), our
review is very narrow. Concerning the indictment, because Gonzalez
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claims no prejudice, we will reverse only if, read with “maximum
liberality”, the indictment is “so defective that under any
reasonable construction, it fails to charge the offense for which
the defendant is convicted”. United States v. Fitzgerald, 89 F.3d
218, 221 (5th Cir. 1996). Likewise, for evidentiary sufficiency,
we determine only whether the conviction resulted in a manifest
miscarriage of justice. E.g., United States v. Resio-Trejo, 45
F.3d 907, 910 n.6 (5th Cir. 1995).
1.
Gonzalez contends that referring prisoners to bail bondsmen
for money is not illegal in his county; and that, as a result, he
did not act “corruptly” under § 666. He reasons that his conduct
is legal because TEX. CIV. STAT. art. 2372p-3(15), which criminalizes
referral of bond business in counties where bondsmen must be
licensed, does not include low-population counties without bail
bond boards, such as his.
Gonzalez offers no basis why his conduct, even assuming it was
permitted under art. 2372p-3(15), does not nevertheless violate the
general Texas bribery statute, TEX. PENAL CODE § 36.02(a)(1)
(criminalizing, inter alia, acceptance of benefit in exchange for
decision as public servant). In any event, for purposes of our
limited review, Gonzalez acted “corruptly”; the indictment and
evidence were sufficient in this regard.
2.
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Because the Starr County Sheriff’s Department, Gonzalez’s
employer, receives money (far more than the statutory $10,000
annual requirement) to house federal prisoners, it meets, certainly
for purposes of our limited review, § 666(b)’s requirement of a
connection between federal funds and bribery. As the Department’s
agent, Gonzalez therefore fell within § 666(a)(1)(B).
Gonzalez, however, urges requiring a closer relationship
between funding and bribery than that on the face of the statute.
He maintains that corrupt referral of state prisoners, even when
housed in a facility built with, and otherwise receiving, federal
funds, lies outside § 666, claiming that the statute extends only
to activities receiving federal funds, and not to all federally-
funded organizations.
Where bribery involves the requisite sort of employee of an
organization receiving sufficient federal funds, “the direct
involvement of federal funds in a transaction is not an essential
element of bribery under section 666(b)”, United States v.
Westmoreland, 841 F.2d 572, 578 (5th Cir. 1988) (emphasis added);
the statute’s language is “plain and unambiguous” and “eliminate[s]
the need to trace the flow of federal monies”, id. at 576, 577.
Gonzalez acknowledges Westmoreland, but seeks a requirement
somewhere between that on the face of the statute (that bribery
involve an agent of an organization receiving requisite federal
funds) and the “direct connection” rejected in Westmoreland.
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However, to require a connection between bribery and federally-
funded activities beyond a connection to federal-fund-receiving
organizations would require the very fund-tracing Westmoreland
disavows. And, certainly for purposes of our very narrow review,
Westmoreland also sufficiently answers any question left open by
United States v. Salinas, 118 S.Ct 469, 474 (1998) (“whether the
statute requires some other kind of connection between a bribe and
the expenditure of federal funds” less stringent than that
satisfied when bribery involves federal prisoners for whom funding
is made).2
3.
Gonzalez highlights an evident typographical error in his
indictment, which describes his substantive bribery counts under a
general “Counts Two Through Five” heading, but then refers to “the
[prisoners] listed in counts two through three”. The indictment
then lists four individual prisoners and dates, numbered 2 through
5, followed by the description “All in violation of [18 U.S.C. §]
666(a)(1)(B)”.
In context, it is obvious that counts 4 and 5 name prisoners
whom Gonzalez referred for money at particular times, and that “two
2
Gonzalez asserts in passing, without adequately briefing the
issue, that local bribery unrelated to federally-funded activities
lies outside constitutionally proper federal power. Because
inadequate briefing constitutes a waiver, e.g., Cinel v. Connick,
15 F.3d 1338, 1345 (5th Cir. 1994), we do not address this issue.
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through three” should have instead been “two through five”.
Needless to say, the claim does not pass muster.
4.
Gonzalez does not challenge evidentiary sufficiency for one of
the two counts on which he was convicted (count 3, the Garcia
referral); but, for count 5, the Salinas referral, he claims that
explaining the identity of “El Gallo” only gave Longoria publicly-
available information.
Gonzalez omits, however, his recorded statement that he would
get Salinas’ bond approved and his recorded agreement with Longoria
that the $300 payment concerned Salinas. In short, there is no
manifest miscarriage of justice.
B.
Gonzalez claims plain error in the district court’s not
declaring a mistrial — Gonzalez did not request one — after it
sustained his objections to questioning and the Government’s
closing argument. The limited standard advanced by Gonzalez is
correct; because he received all the relief he requested, we review
only for plain error. United States v. Carter, 953 F.2d 1449, 1466
(5th Cir. 1992).
After Gonzalez testified that Longoria merely repaid a loan,
rather than rewarding prisoner referrals, the Government asked
these questions:
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Q. When you got arrested by these agents,
FBI agents, did you tell them, “Hey, this is a
mistake. This is just a big loan. I was
getting loan payment back from him.” You
never told them that, did you?
A. Why would I tell them?
Q. Well, they walked in and accused you
of accepting four bribe payments, they took
you to jail, you went to court. You never
told the agents one time in January that that
money you received was a loan payment, did
you?
A. Why would I have to tell them? I’m
explaining it right now, sir.
Q. My question is, did you ever tell the
agents before today that the money you
received on that tape was a loan payment?
A. They didn’t ask me and I didn’t tell
them that.
Q. You were given the opportunity to talk
to the agents, were you not?
A. There was no need for me to talk.
Q. Did you ever tell –
A. No, sir.
Q. – before you went to court in McAllen,
“Judge, this is a loan payment. I don’t know
what’s going on here.” You never said that
before, did you?”
A. I’m explaining it right now.
Q. So for the first time –
Gonzalez’s lawyer finally objected (but without stating a basis);
the Court immediately responded, “Sustained. Sustained”.
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Notwithstanding the foregoing ruling, the Government’s closing
argument included these comments:
How does he have the unmitigated gall to come
in here, take the witness stand and tell you
all, “Oh, I was discussing my loan payments.”
If it was loan payments, when the FBI went out
and picked him up in January, what should have
been the first thing out of his mouth? “Wait
a minute, why are you arresting me? I didn’t
take any bribes. This is a loan payment.” He
never said that —
Gonzalez objected: “He’s making an improper comment on his
Constitutional right not to say anything, and that is improper”.
The Court instructed the jury: “Remember my instructions. If the
attorneys make reference to the law and it’s not consistent with
that which I gave you, you are to disregard what the attorneys say
to you”. Accordingly, the Government quickly reversed course,
stating:
And he has a Constitutional right not to say
anything. And we don’t have a problem with
that. But what’s so curious, this so-called
loan, did you see any promissory notes,
anything in writing, any other witnesses? No.
There were none because there are none, the
loan never occurred.
(Emphasis added.)
In general, under Doyle v. Ohio, 426 U.S. 610, 611 (1976), and
its progeny, the Government may not use post-Miranda-warning
silence to impeach an exculpatory story. However, a mistrial is
required only where a prosecutor’s comment has a “clear effect” on
the jury. E.g., United States v. Robles-Vertiz, 155 F.3d 725, 731
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(5th Cir. 1998). In any event, as noted, Gonzalez did not request
a mistrial.
We find no plain error. The Government’s closing explicitly
disavows any inference from Gonzalez’s silence; moreover, its
language implicitly agrees with Gonzalez’s earlier statements under
cross-examination that he had no need to tell his story upon
arrest. Considering the denial of any inference from the silence,
the prior evocation of testimony on the subject was harmless. It
is not obvious that the comments, so diluted, had a clear effect on
the jury.
Those cases in which this court has found plain error in the
Government’s invitation to a jury to infer recent fabrication from
post-arrest silence, such as United States v. Harp, 536 F.2d 601(5th Cir. 1976) (cited by Chapman v. United States, 547 F.2d 1240,
1248 (5th Cir. 1977)); United States v. Johnson, 558 F.2d 1225 (5th
Cir. 1977); and United States v. Meneses-Davila, 580 F.2d 888 (5th
Cir. 1978); all involve far more pointed commentary on post-arrest
silence.
In Harp, the Government’s closing compared the defendant’s
story to “Santa Claus and Easter Bunny and the Good Fairy and all
of that”, asked five rhetorical questions wondering why no
statement was given, and restated three versions of what the
defendant should have said post-arrest were his story at trial
true. Harp, 536 F.2d at 602-03 n.2. Johnson involved four
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separate non-cooperating actions by the defendant upon arrest,
elicited from two witnesses. Johnson, 558 F.2d at 1226-28. As
well, it applies a later-repudiated standard on the prejudice of
Doyle error. See Carter, 953 F.2d at 1466 n.7. Meneses-Davila
also involved four separate Doyle violations (three witnesses and
in closing) during a one-day trial; the compressed nature of the
trial was critical to the court’s conclusion. Meneses-Davila, 580
F.2d at 895 & n.12.
By contrast, Gonzalez’s trial lasted three days; both sets of
references to post-arrest silence were interrupted by objections,
which were sustained; and the second set led to the Government’s
disavowal of the forbidden inference of recent fabrication.
C.
The district court refused Gonzalez’s entrapment instruction,
and, as noted, denied his new trial motion premised on that
refusal. Gonzalez’s appellate challenge to that refusal is
reviewed for abuse of discretion. E.g., United States v.
Pankhurst, 118 F.3d 345, 350 (5th Cir. 1997). The instruction is
required upon a defendant’s prima facie showing that he was (1)
induced to commit a criminal act by a government agent, and (2) not
disposed to commit the act without the inducement. E.g., United
States v. Thompson, 130 F.3d 676, 689 (5th Cir. 1997).
No evidence of government inducement was presented. Longoria
testified that, upon cooperating with the FBI, he behaved just as
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he had earlier; that he was never told to pursue Gonzalez, and did
not at that point attempt to involve him. Because government
inducement is the “creative activity of law enforcement officials
in spurring an individual to crime”, United States v. Bradfield,
113 F.3d 515, 522 (5th Cir. 1997), only if Longoria’s actions
differed following his cooperation may they arguably constitute
such inducement; otherwise they are simply not “creative activity”.
Gonzalez introduced no evidence to rebut Longoria’s testimony
in a way making inducement more plausible. Rather than suggesting
that Longoria’s behavior affected him in late 1997 in a manner
distinct from how it had previously, Gonzalez’s version of events
— that Longoria simply repaid a loan made several months before any
of the bribes in question — contradicts entrapment. According to
Gonzalez, the claimed prior loan to Longoria, not Longoria’s
behavior, spurred his actions in receiving the money; and, Gonzalez
denied having anything to do with the relevant prisoners.
Moreover, Longoria’s payments on each of the four recorded
occasions followed Gonzalez’s critical role (as inferred from the
evidence) in referring the prisoners.
III.
Accordingly, the judgment is
AFFIRMED.
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