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United States v. Acevedo

United States Court of Appeals, First Circuit

February 14, 2018



          Linda Backiel on brief for appellant.

          Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, and Thomas F. Klumper, Assistant United States Attorney, Senior Appellate Counsel, on brief for appellee.

          Before Barron, Selya, and Lipez, Circuit Judges.

          BARRON, Circuit Judge.

         Federico Ducoudray Acevedo ("Ducoudray"), formerly an attorney in Puerto Rico, appeals his convictions for tampering with a witness, victim, or an informant, 18 U.S.C. § 1512(b)(1), and for obstructing the due administration of justice, 18 U.S.C. § 1503. These convictions arise from a visit that Ducoudray made in August of 2012 to an alleged co-conspirator of one of Ducoudray's clients, who at the time was facing several criminal charges in both state and federal court. The government alleged that Ducoudray committed the underlying offenses by, during that visit, requesting that the co-conspirator "retract" the statements that he made to law enforcement that implicated Ducoudray's client.

         On appeal, Ducoudray contends that there was not sufficient evidence to support the convictions. He argues, in the alternative, that a series of errors occurred at his trial that, he contends, show either singly or in combination that the convictions may not stand. We affirm both convictions.


         We reserve a discussion of the full set of facts, complicated as they are, for our discussion of the individual issues Ducoudray raises. For now, it suffices to recount those facts that make it possible to understand the charges underlying the convictions.

          The relevant sequence of events begins on July 21, 2012. A federal criminal complaint was filed that day in the United States District Court for the District of Puerto Rico against Edwin Santana Hernández ("Hernández"), a client of Ducoudray. The complaint charged Hernández with being a participant in a drug trafficking conspiracy.

         The complaint included a probable cause affidavit. The affidavit stated that Hernández's cousin, Julio Santana Castillo ("Castillo"), had already been arrested in New York as a participant in the same drug trafficking conspiracy in which Hernández was implicated. The affidavit also stated that Castillo was cooperating with federal law enforcement by providing law enforcement with evidence of Hernández's involvement in that conspiracy.

         Hernández was arrested on the same day that the federal criminal complaint was filed against him. Two days later, Ducoudray provided a "notice of appearance" in that federal case indicating that he had been retained to serve as Hernández's attorney.

         The next day, Castillo, who was being held at the time in a correctional facility in New York City on a New York state law charge of conspiracy to traffic narcotics, hired a defense attorney named Peter Frankel ("Frankel") to represent him. Over the course of the next week, Frankel met with Castillo in the correctional facility, appeared in state court on Castillo's behalf in connection with the conspiracy charges that had been brought against Castillo, and was present at a proffer session with state and federal authorities during which Castillo confessed to his participation in the drug trafficking conspiracy.

         Soon thereafter, on August 1, 2012, a grand jury in the United States District Court for the District of Puerto Rico indicted both Hernández and Castillo, as co-defendants. The indictment charged them with various counts related to the drug trafficking conspiracy in which they were alleged to have participated.[1]

         The next key events for present purposes were as follows. On the same day that the federal indictment of Hernández and Castillo came down, August 1, 2012, Ducoudray left Puerto Rico and headed to New York City in hopes of visiting with Castillo at the correctional facility where Castillo was being held. Then, the next day, according to Castillo's testimony at Ducoudray's trial, Ducoudray met with Castillo at the correctional facility and told him that he should "retract [the] story" that he had told to law enforcement, as "Hernández was going to trial, and [Castillo's retraction] was the only way [Hernández] was going to beat [his] case." In addition, Castillo testified, Ducoudray first told Castillo that he had called Castillo's lawyer several times and that Castillo's lawyer never picked up. But, Castillo testified, Ducoudray later in the conversation "changed the story" to say that Castillo's lawyer had, in fact, given Ducoudray permission to speak with Castillo.

         Ducoudray ended the meeting, according to Castillo's testimony, by telling Castillo that he should not tell his brother or his attorney about the meeting. But, Castillo testified, after the visit Castillo feared for his safety and told his brother about the visit.

         Soon after meeting with Castillo, moreover, Ducoudray contacted Frankel, according to Frankel's testimony at Ducoudray's trial. Frankel testified that, when the two men talked, Ducoudray identified himself as Hernández's attorney and asked Frankel whether Castillo was cooperating with law enforcement but that Ducoudray did not reveal that he was in New York City or that he had just visited Castillo. Frankel also testified that, after he later learned from Castillo's brother that there had been an unauthorized visit by a lawyer to Castillo, Frankel called Ducoudray. According to Frankel's testimony, Ducoudray initially denied that the visit had occurred, stating that he was in Puerto Rico, but, when pressed by Frankel, admitted that he had visited and spoken with Castillo, though he stated it was only to "find out who [Castillo's] lawyer was."

         The next morning, Frankel testified, he contacted the Assistant United States Attorney ("AUSA") prosecuting Hernández's case and reported the incident to that AUSA, both orally and later by email. The email included an account of what Castillo had told Frankel about what Ducoudray had said to Castillo during their meeting at the correctional facility.

         In 2015, Ducoudray was indicted on federal charges of obstructing the due administration of justice[2] and tampering with a witness, victim, or an informant, [3] in connection with his visit to Castillo. A jury trial was held in January 2016, after which Ducoudray was convicted of both offenses.[4] He now appeals.


         We first address Ducoudray's contention that the District Court wrongly denied his motion for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29, as to both charges.[5] To succeed on his Rule 29 motion, Ducoudray must show that the evidence presented at trial, even when viewed in the light most favorable to the government, did not suffice to prove the elements of the offenses beyond a reasonable doubt. See United States v. Gabriele, 63 F.3d 61, 67 (1st Cir. 1995).

         In order to convict Ducoudray of a violation of 18 U.S.C. § 1512(b)(1), the government had to prove beyond a reasonable doubt that Ducoudray "(i) knowingly (ii) . . . corruptly persuaded [Castillo], or attempted to do so . . . (iii) with intent to influence[, delay, or prevent the] testimony [of Castillo] (iv) in an official proceeding." United States v. Cruzado-Laureano, 404 F.3d 470, 487 (1st. Cir. 2005). We have previously held, moreover, that "[t]rying to persuade a witness to give false testimony counts as 'corruptly persuading' under § 1512(b)[(1)]." Id.

          In order to convict Ducoudray of violating 18 U.S.C. § 1503, the government had to prove beyond a reasonable doubt the following: that there was a pending judicial proceeding; that Ducoudray had notice of the proceeding; and that Ducoudray acted corruptly with the intent to influence or obstruct, or endeavored to influence or obstruct, the proceeding. See United States v. Cueto, 151 F.3d 620, 633 (7th Cir. 1998); United States v. Frankhauser, 80 F.3d 641, 650-51 (1st Cir. 1996). The government contends that proof that Ducoudray tried to persuade Castillo to provide false testimony at Hernández's criminal trial would suffice to support Ducoudray's conviction for violating § 1503, just as it would suffice to support his conviction for violating § 1512(b)(1). Ducoudray makes no argument to the contrary.

         Accordingly, setting to one side any other theories of criminal liability that the parties address in their briefing to us, Ducoudray's challenge to the denial of his Rule 29 motion fails if the evidence at trial sufficed to show that, in Ducoudray's words, he "knowingly attempted to persuade [Castillo] to violate the law by providing false testimony." Our review of the denial of the motion is de novo. United States v. Hernández, 218 F.3d 58, 64 (1st Cir. 2000).[6] But that review is "quite limited, " as "we must affirm unless the evidence, viewed in the light most favorable to the government, could not have persuaded any trier of fact of the defendant's guilt beyond a reasonable doubt." Id. (quoting United States v. Paradis, 802 F.2d 553, 559 (1st Cir. 1986)). Moreover, "[i]n applying this standard, 'no premium is placed upon direct as opposed to circumstantial evidence; both types of proof can adequately ground a conviction.'" Id. (quoting United States v. Ortiz, 966 F.2d 707, 711 (1st Cir. 1992)). Finally, "[a] trial court in passing on [a Rule 29] motion considers all of the evidence it has admitted, and . . . it must be this same quantum of evidence which is considered by the reviewing court." United States v. Diaz, 300 F.3d 66, 77 (1st Cir. 2002) (quoting Lockhart v. Nelson, 488 U.S. 33, 41-42 (1988)). Thus, on appeal, "[u]nder Rule 29, we must examine 'all the evidence submitted to the jury, regardless of whether it was properly admitted.'" Id. (quoting United States v. Gonzalez-Sanchez, 825 F.2d 572, 588 (1st Cir. 1987)).[7]

          Applying these principles, we first consider Ducoudray's contention that the evidence did not supportably show beyond a reasonable doubt that Ducoudray "knew . . . [Castillo] was a witness in Hernández's pending proceeding." In considering that contention, however, we must keep in mind that "[t]he key is not whether the defendant knows or doesn't know that someone is a 'witness.'" See United States v. Misla-Aldarondo, 478 F.3d 52, 69 (1st Cir. 2007). The key is whether the defendant knew that the person might be providing testimony in an upcoming official proceeding that the defendant's actions were likely to affect. See id. (interpreting § 1512(b) and explaining that the inquiry is into "whether [the defendant] is intending to head off the possibility of testimony in an 'official proceeding'"); United States v. Aguilar, 515 U.S. 593, 599 (1995) (holding, with respect to intent to influence, obstruct, or impede testimony in an official proceeding under § 1503, a defendant must have "knowledge that his actions are likely to affect the judicial proceeding").

         Here, the government put forth sufficient evidence from which a jury could find "that [Ducoudray] knew that an official proceeding had begun [against Hernández], or that he believed one to be likely in the future, " Misla-Aldarondo, 478 F.3d at 69 (footnote omitted). The government also put forth sufficient evidence from which a jury could reasonably conclude that Ducoudray knew that Castillo was likely to be a witness for the government in that proceeding.

         That evidence included a copy of the notice of appearance that Ducoudray filed in federal court confirming his representation of Hernández in the federal case against him. That evidence also included Castillo's testimony about Ducoudray's request that Castillo "retract" his statements to law enforcement so that Hernández could "beat his case" at trial. After all, a jury could reasonably conclude from this testimony that Ducoudray was concerned about getting Castillo to change his story to help Hernández "beat his case" because Ducoudray thought that Castillo was likely both to testify as a witness against Hernández at trial and to provide testimony that would help the government to convict Hernández. Hernández, 218 F.3d at 64 (explaining that "all reasonable inferences [are] made in the light most favorable to the government" (quoting United States v. Loder, 23 F.3d 586, 590 (1st Cir. 1994))); Diaz, 300 F.3d at 77 ("In assessing the sufficiency of the evidence under Rule 29, 'we view the evidence and draw reasonable inferences in the light most favorable to the verdict.'" (quoting United States v. McGauley, 279 F.3d 62, 66 (1st Cir. 2002))).[8]

          We turn, then, to the question of whether the evidence also sufficed to show that Ducoudray "knowingly" sought to persuade Castillo to give false testimony, if need be, at the upcoming trial of Hernández. Ducoudray's chief argument that the evidence did not suffice in that regard is that "[t]he prosecution made no effort to show that . . . Ducoudray knowingly asked [Castillo] to retract truthful statements." He contends the evidence suffices at most to show that Ducoudray was merely asking Castillo either to not "falsely implicate[]" Hernández or to invoke a valid Fifth-Amendment privilege against testifying. In connection with this contention, Ducoudray argues the testimony that he told Castillo to "accept [his] responsibilities" shows that, in asking ...

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