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United States v. Acevedo-Hernandez

United States Court of Appeals, First Circuit

August 6, 2018



          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.

          Before Torruella, Lipez, and Barron, Circuit Judges.


         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. Background[1]

         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 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 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 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 appointment[4] 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.

          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 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 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 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 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.

          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 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.

         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 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. 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 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 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 ...

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