FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO [Hon. Aida M. Delgado-Colón, U.S.
Backiel on brief for appellant.
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.
Barron, Selya, and Lipez, Circuit Judges.
BARRON, Circuit Judge.
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
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.
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
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.
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
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
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.
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.
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.
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.
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."
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
2015, Ducoudray was indicted on federal charges of
obstructing the due administration of justice and tampering
with a witness, victim, or an informant,  in connection
with his visit to Castillo. A jury trial was held in January
2016, after which Ducoudray was convicted of both
offenses. He now appeals.
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. 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).
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 §
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
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). 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)).
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
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
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.
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 ...