United States Court of Appeals
For the First Circuit
No. 99-1232
UNITED STATES OF AMERICA,
Appellee,
v.
EDWARD R. HUGHES,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
Before
Torruella, Chief Judge,
Selya, and Lipez, Circuit Judges.
Joseph R. Palumbo, Jr. for appellant.
Donald C. Lockhart, Assistant United States Attorney, with
whom Margaret E. Curran, United States Attorney, and Edwin J.
Gale, Assistant United States Attorney, were on brief for
appellee.
May 8, 2000
LIPEZ, Circuit Judge. The defendant, Edward Hughes,
was convicted by a jury on one count of attempted extortion.
According to the government, Hughes attempted to extort money
from his employer by murdering the company president, Brian
McCarthy, in Mexico, reporting it as a kidnapping and issuing a
phony ransom demand. On appeal, Hughes contends that: (1) the
evidence was insufficient to support the conviction; (2) the
government improperly made statements to the jury during closing
argument that were unsupported by the evidence in the record;
(3) the government's failure to produce all of the crime scene
photographs violated his right to a fair trial; (4) his sentence
was incorrectly calculated using the guideline for first degree
murder; and (5) the district court erred in ordering him to pay
restitution. Unpersuaded by these arguments, we affirm both the
conviction and the sentence.
I. THE PLOT
We begin by summarizing the twisted plot, adding more
detail below as it becomes relevant to the legal analysis. We
recite the facts in the light most favorable to the jury's
verdict, to the extent consistent with record support. See
United States v. Escobar-de Jesus, 187 F.3d 148, 157 (1st Cir.
1999). By the early 1980s, Hughes had earned a reputation as
one of the top computer software engineers in America. After
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designing complex computer systems for the United States
Department of Defense, Hughes and his close friend, Dennis
Toomey, started their own computer software company, Ocean
Systems. The two added a third partner, Donald Hastings, and in
1982 the three men sold the company to Analysis & Technology ("A
& T"), staying on as A & T employees. In 1986, A & T entered
into a joint business venture with Browne & Sharpe to create
Automation Software, Inc. ("ASI"). Thereafter, Hughes, Toomey,
and Hastings became ASI employees, with Hastings serving as
president and Hughes as vice president. Hastings died the
following year, and the ASI board commenced a search for a new
president. The top candidates were Hughes and Brian McCarthy,
a new ASI employee in sales and marketing hired by Hastings
shortly before his death. Although McCarthy was an ASI
neophyte, significantly younger than Hughes, and lacked Hughes's
technical expertise, the board chose McCarthy to succeed
Hastings. Hughes was upset. As the sitting vice president, he
believed that he should have been offered the job, and he
questioned McCarthy's qualifications for the position.
Moreover, McCarthy's vision for ASI clashed with Hughes's.
McCarthy wanted to expand ASI into a large company; Hughes
wanted ASI to remain small, employing only elite software
designers who would produce high-end programs.
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In 1992, Hughes resigned as vice president, contracting
to work half time in exchange for two-thirds of his original
salary. Thereafter, Hughes spent most of his time in Mexico,
installing and servicing computer software for ASI's Mexican
customers. Although Hughes maintained his residence in Rhode
Island, he purchased a home in Mexico and planned to relocate
there. Meanwhile, Hughes persistently complained about the
quality of ASI's software under McCarthy's leadership,
occasionally even criticizing ASI's software in front of
clients. Aware of this conduct, McCarthy arranged at a meeting
of ASI's board of directors to terminate Hughes's relationship
with the company by buying out the remainder of his contract. In
mid-January 1994, McCarthy decided to travel to Mexico to meet
with Martin Marquez, an ASI sales representative, and to visit
the Cummins diesel engine plant, an ASI customer located in San
Luis Potosi. While there, McCarthy also planned to tell Hughes
about the board's decision to terminate his employment
relationship with ASI.
On January 30, Hughes traveled by bus from Florida,
where he had been vacationing with his wife, to Laredo, Texas.
Hughes later told FBI Special Agent Nicholas Murphy that he was
in no hurry because he did not expect to install the new ASI
equipment at the Chrysler plant in Toluca, Mexico, until
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February 3 or 4. Arriving in Laredo on February 1, Hughes rented
a Ford Tempo from the Budget rental agency in Laredo and drove
to Mexico City. Upon reaching Mexico City, Hughes notified
Marquez that he planned to pick up McCarthy at the Mexico City
airport on Sunday night and that the two of them would drive to
San Luis Potosi, four hours northwest of Mexico City. Marquez
advised Hughes not to drive, and even volunteered to drive
himself, but Hughes insisted, saying that he needed to talk to
McCarthy in private.
On Sunday, February 6, McCarthy celebrated his
daughter's tenth birthday in Michigan. He then boarded an
airplane to Mexico City, meeting Hughes at the airport at
approximately 10:30 p.m. The two men left the airport in
Hughes's rental car and drove northwest toward Queretaro, a city
about half way between Mexico City and San Luis Potosi.
McCarthy was never again seen alive. The next day, February 7,
at approximately 10:00 p.m., the Mexican authorities found his
partially buried body in rubble alongside the Queretaro bypass
highway. He had been shot five times.
On February 7 at 5:15 p.m., Hughes boarded a flight
from Mexico City to New York, arriving in New York at 11:00 p.m.
The next morning, while still in New York, Hughes placed a
telephone call to Joanne Keaney, ASI's controller. He told her
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that during the drive from the Mexico City airport to San Luis
Potosi, when he and McCarthy had pulled over to the side of the
road because McCarthy had to relieve himself, they were attacked
by three men. He said that the assailants threw him into the
back seat of the rental car, ordered him to keep his head down,
and drove the car around for a while before stopping at a house.
In the house, Hughes said he heard his abductors refer to
McCarthy in the present tense, thereby implying that McCarthy
was still alive. The kidnappers then brought Hughes to the
airport, provided him with his credit card and passport, and
warned him that they would kill McCarthy if he did not return
with one million pesos (about $325,000) within forty-eight
hours.
Later that morning, when he arrived back at ASI's Rhode
Island office, Hughes met with several members of ASI's
management team. He recounted the story of the kidnapping and
ransom demand. ASI owned executive kidnapping insurance, and the
insurer promptly hired the Ackerman Group, a Miami-based company
that specializes in handling executive kidnappings.
Collaborating with Emanuel Ackerman, the group devised a plan to
wire the ransom money to Hughes and an ASI vice president,
Stephen Logee, in Mexico. Hughes would then meet with the
kidnappers to make the payment. Hughes objected to the plan.
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He proposed instead that the money be given to him directly and
that he fly alone to Mexico to execute the exchange. Hughes
refused to say exactly where the ransom exchange would be,
stating only that he was to contact the kidnappers in a public
place. The group decided to follow the Ackerman plan, in part
because customs procedures would prevent carrying large sums of
cash across the border.
Hughes then borrowed a car, explaining that he wanted
to go home to take a shower. A little while later, Hughes
called the office to say that he had decided not to return to
Mexico. After some coaxing, however, Hughes agreed to travel
to Miami with Logee to meet with Ackerman. Meanwhile, the
Mexican police, who had recovered McCarthy's body the night
before, traced a bloody parking ticket found in his shirt pocket
to his company car parked in the Detroit airport. When Hughes
arrived at Rhode Island's T.F. Green airport later that
afternoon for his trip to Miami, Logee informed him that the
Mexican police had recovered a body believed to be McCarthy's.
Hughes, appearing to get sick, immediately left the airport and
refused to travel to Miami. The next day Hughes called Keaney to
say that he was resigning from ASI.
In September 1996, a federal grand jury indicted Hughes
for attempting to extort money from ASI in violation of the
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Hobbs Act, 18 U.S.C. § 1951.1 Following a ten day trial, Hughes
was convicted by a jury, sentenced to twenty years' imprisonment
and three years' supervised release, and ordered to pay
restitution. Hughes now appeals from his conviction and
sentence.
II. THE SUFFICIENCY OF THE EVIDENCE
We must evaluate whether the evidence, viewed in the
light most favorable to the government, was sufficient to
support the jury's verdict--i.e., whether a rational trier of
fact could have found the essential elements of the crime beyond
a reasonable doubt. See United States v. Czubinski, 106 F.3d
1069, 1073 (1st Cir. 1997). When reviewing for the sufficiency
of the evidence, "all reasonable inferences must be drawn in the
light most favorable to the government." United States v. Bay
State Ambulance & Hosp. Rental Serv., Inc., 874 F.2d 20, 36 (1st
Cir. 1989) (citation omitted). The government need not produce
direct evidence to meet its burden of proof: "circumstantial
evidence, if it meets all the other criteria of admissibility,
1
Hughes was prosecuted for homicide in Mexico. He was
initially acquitted, but, as permitted under Mexican law, the
acquittal was appealed by the public prosecutor. The Mexican
appellate court reversed, convicting Hughes of murder and
sentencing him to 19 years imprisonment. Prior to the appellate
court's conviction, Hughes had been released on bail, and at the
time of his trial in the United States, Hughes was a fugitive
from the Mexican judicial system.
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is just as appropriate as direct evidence and is entitled to be
given whatever weight the jury deems it should be given under
the circumstances within which it unfolds." United States v.
Gamache, 156 F.3d 1, 8 (1st Cir. 1998). Moreover, the
government "need not present evidence that precludes every
reasonable hypothesis inconsistent with guilt"; the jury is
generally "at liberty to select freely among a variety of
reasonable alternative constructions of the evidence." United
States v. Reeder, 170 F.3d 93, 102 (1st Cir. 1999).
To affirm Hughes's conviction under the Hobbs Act, 18
U.S.C. § 1951,2 we must find that the evidence was sufficient to
permit a jury to conclude beyond a reasonable doubt that Hughes
attempted to extort money from ASI.3 Our sufficiency inquiry
2 The Hobbs Act, 18 U.S.C. § 1951(a), provides in relevant
part:
Whoever in any way or degree obstructs, delays, or
affects commerce or the movement of any article or
commodity in commerce, by robbery or extortion or
attempts or conspires so to do, or commits or
threatens physical violence to any person or property
in furtherance of a plan or purpose to do anything in
violation of this section shall be fined under this
title or imprisoned not more than twenty years, or
both.
3For a conviction under the Hobbs Act, the government must
also prove that the extortion "obstructs, delays, or affects"
interstate commerce. See 18 U.S.C. § 1951(a). ASI does
business in several states and Mexico, and Hughes does not
contest that an attempt to extort money from ASI would have an
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must, therefore, focus on whether Hughes killed McCarthy. If he
did, the kidnapping story was bogus and his ransom request was
an attempt to extort money from ASI. Conversely, if Hughes was
an innocent messenger merely conveying the kidnappers' ransom
demand, he is obviously not guilty of extortion.
We conclude that there was sufficient circumstantial
evidence to establish that Hughes killed McCarthy and contrived
a fallacious kidnapping and ransom story. First, Hughes was the
last person seen alive with McCarthy. McCarthy's body was found
on a bypass highway where Hughes and McCarthy were likely to
have been traveling together on their drive from Mexico City to
San Luis Potosi. The autopsy established that the time of death
was between 2:00 a.m. and 8:00 a.m. on February 7. Thus,
McCarthy was already dead by the evening of February 7, the time
that Hughes says the bandits made the ransom demand and took him
to the Mexico City airport.
Second, Hughes had a motive to kill McCarthy. There
is no doubt that the relationship between the two men had been
strained from the time that ASI's board selected McCarthy over
Hughes to serve as company president. Hughes objected to
McCarthy's leadership and vision for the company, and frequently
effect on interstate commerce sufficient to trigger the Hobbs
Act.
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complained about McCarthy. Hughes confessed to his friend
Toomey that he feared he would be fired and that ASI would
"abrogate" his employment contract. Hughes's fears were well
founded. Prior to traveling to Mexico, McCarthy arranged with
ASI's board to terminate Hughes, and he planned to convey the
news to Hughes during the trip to Mexico. Of course, the money
Hughes stood to recover as ransom provides an independent
financial motive for the murder.
Third, Hughes behaved unusually in the days preceding
the murder in several ways. Although Hughes did not like to
drive in Mexico, and virtually never did, he rebuffed Marquez's
offer to drive and decided to rent a car. Moreover, although he
could have rented the car in Mexico City, he went to Laredo,
Texas, twelve hours from his destination. What is normally a
twelve hour drive from Laredo to Mexico City took Hughes forty-
six hours to complete. Hughes told McCarthy's secretary to book
McCarthy on a late flight into Mexico because Hughes said he
would be busy all day. As it turns out, Hughes was not busy at
all. Finally, although Marquez warned him that the roads were
bad and advised him not to drive at night, Hughes decided to
pick up McCarthy at the airport at 10:00 p.m. and to drive four
hours to San Luis Potosi, explaining to Marquez that he needed
to talk to McCarthy in private.
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Fourth, Hughes arrived in the Mexico City airport for
a flight home in the late afternoon of February 7, but he did
not notify anyone about the kidnapping or ransom demand until
the morning of February 8--almost 15 hours later. He offered
only the lame excuse that he did not have his calling card with
him.
Fifth, McCarthy's five-thousand-dollar laptop computer
and a car worth over ten thousand dollars were found abandoned.
Why would bandits, who were allegedly seeking ransom money,
abandon these valuable items? No good explanation was offered.
Sixth, the story told by Hughes to Special Agent Murphy
was full of holes. Hughes told Murphy that when he arrived in
Laredo on February 1, he considered traveling to Mexico City by
bus. However, Marquez testified that in January 1994, almost a
month earlier, Hughes told him that when McCarthy came to Mexico
he planned to rent a car in Laredo. Hughes also told Murphy
that when he arrived in San Luis Potosi, on his way to Mexico
City, he tried unsuccessfully to reach Marquez. Yet, Marquez
testified that he or some family member was home all day.
Hughes said that he slept in his car that night because he could
not find a hotel, even though San Luis Potosi is a large city
with many hotels and Hughes had stayed in hotels there on prior
occasions. Hughes said he awoke at 2:00 a.m. and continued his
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drive to Mexico City, arriving at approximately 2:00 p.m. This
means that it took Hughes almost twelve hours to complete the
four hour drive from San Luis Potosi to Mexico City. Hughes
also stated that the bandits held McCarthy because McCarthy was
dressed in business attire. Yet, the evidence suggests that
McCarthy was wearing jeans and boat shoes when he left Detroit
for Mexico. Hughes claimed that he was forced to stop several
times during the drive because McCarthy complained of some kind
of intestinal infection and needed to relieve himself. The
autopsy report, however, showed no sign of intestinal distress,
and McCarthy's wife testified that her husband had not been ill
when he left home several hours earlier.
Seventh, when Hughes met with ASI officers, he was
adamant that he be given the money directly and that he be
allowed to return alone to Mexico to execute the ransom
exchange. He refused to divulge the precise location where the
ransom exchange would take place. Yet, after the ASI officers
decided to wire the money to Mexico, and to send Logee to Mexico
to accompany him, Hughes refused to participate in the rescue
plan.
Finally, and decisively, the FBI recovered cartridge
casings on Hughes's property in Rhode Island, and the ballistics
expert testified that these casings were expelled from the same
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gun that produced the spent cartridge casings recovered at the
scene of the crime in Queretaro. Moreover, the expert stated
that only one gun in the world could have produced the signature
markings shared by these casings, explaining that a gun leaves
unique marks on a spent shell casing somewhat akin to a
fingerprint. The expert further testified that all the casings
were 9 mm, and that the bullet fragments recovered from
McCarthy's body could have been 9 mm. In addition, a salesman
at a Rhode Island gun store testified that in September 1993,
Hughes purchased a Sig Sauer 9 mm pistol, and a friend of
Hughes's son testified that he had participated in some target
shooting on Hughes's Rhode Island property a short time before
the murder took place using a gun that resembled the Sig Sauer.
The evidence, therefore, indicates that the same 9 mm pistol
used on Hughes's Rhode Island property was used to kill
McCarthy, or, more precisely, that Hughes's 9 mm Sig Sauer
pistol purchased in September 1993 was the murder weapon.4
4
Hughes also contends that the evidence was insufficient to
establish his intent to extort money from ASI because
"[a]ssuming arguendo that the defendant for some reason did not
truthfully reveal the events of the night of February 6, the
evidence points at least equally to an intent solely to cover up
the events as it does to any intent to actually obtain money
from ASI as 'revenge.'" Hughes confuses motive with intent.
Even if, as Hughes contends, his primary motive was to cover up
the murder, he nevertheless intended to carry out the cover up
scheme by issuing an extortionate demand to ASI.
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For all of these reasons, we find that the evidence was
sufficient to permit a rational jury to conclude beyond a
reasonable doubt that Hughes murdered McCarthy. Accordingly,
Hughes did not innocently transmit to ASI a ransom demand for
one million pesos. Instead, he used the threat of harm to
McCarthy to extort money from ASI.5
III. THE GOVERNMENT'S CLOSING ARGUMENT
Hughes assails the government for making numerous
statements--nine in all--within its closing argument that were
unsupported by the evidence in the record.6 He demands a new
5 Hughes also contends that the district court omitted an
essential element of the crime by failing to instruct the jury
that it had to find beyond a reasonable doubt that ASI was the
victim of the attempted extortion. This contention is
frivolous. The court instructed the jury in plain terms that
the charge against Hughes was that he "attempted to obtain money
from Automation Software, Inc. by the wrongful use of fear or
threats of violence or violence." (Emphasis added.)
6Hughes also identifies an additional twenty-seven errors of
this kind in an addendum to his brief. With respect to those
errors asserted only in the addendum, Hughes has waived his
argument. It is a "settled appellate rule that issues adverted
to in a perfunctory manner, unaccompanied by some effort at
developed argumentation, are deemed waived." United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990). Whatever level of
development is required to satisfy this standard, it is not met
by merely cataloguing bare portions of the record in an
addendum. Although Local Rule 28(a)(4) provides that the
appellant must include in an addendum, "Other items or short
excerpts from the record, if any, considered necessary for
understanding the specific issues on appeal," inclusion in the
addendum is no substitute for developed argumentation in the
body of the brief. Indeed, allowing a party to use an addendum
to raise a laundry list of additional issues not individually
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trial because of these abuses. Given defense counsel's failure
to object to these statements at trial, we review the
prosecutor's remarks only for plain error. See United States v.
Bey, 188 F.3d 1, 6 (1st Cir. 1999). We will not reverse a
conviction for plain error unless it is clear that, inter alia,
the error "affected the outcome of the proceedings." Id. (citing
United States v. Olano, 507 U.S. 725, 734 (1993)). We discern
only one minor error--and no plain error--in the prosecutor's
closing argument.
A. The Ballistics Expert's Testimony
Hughes objects to the prosecution's statement to the
jury that the ballistics expert's testimony, "tells us,
circumstantially, that the murder weapon was the Defendant's 9
mm Sig Sauer, the one he bought on September 30th of 1993 from
D & L Shooting Supplies." Hughes contends: (1) that the
ballistics expert did not identify the type of gun used in the
murder; (2) that the bullets were as likely to have come from a
.38 caliber as a 9 millimeter; (3) that there was no evidence
addressed and argued in the brief would all but eviscerate Fed.
R. App. P. 32(a)(7), which prescribes detailed page limitations
to which both parties must adhere. We do not suggest that
waiver applies unless every objected-to portion of the record is
quoted in full in the brief. Rather we reiterate that,
irrespective of any material reproduced in an addendum, we will
only credit arguments actually developed within the body of the
brief.
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that Hughes had a gun in Mexico; (4) that the presence of the
cartridge casings at the murder scene was not tied to the
bullets recovered from the body; and (5) that there was no proof
that the bullets from the spent cartridge casings were fired
where the cartridge casings were found or that they were fired
from Hughes's 9 mm Sig Sauer pistol.
Hughes's objections disregard the nature of
circumstantial evidence and reasonable inferences drawn
therefrom. The ballistics expert testified that only one gun in
the world could have produced the markings found on both the
cartridge casings recovered at the scene of the crime and those
found on Hughes's property in Rhode Island. As detailed above,
this evidence permits the inference that the same 9 mm pistol
that was used on Hughes's Rhode Island property was also used as
the murder weapon, and that this gun was the Sig Sauer 9 mm
pistol that Hughes purchased in September 1993. Moreover, as
detailed below, the evidence suggests that the likely reason
that Hughes drove from Laredo, Texas, to Mexico City just prior
to McCarthy's arrival was to smuggle his pistol into Mexico.
B. The Trip Across the Mexican Border
Hughes objects to the prosecutor's statement to the
jury that:
the defendant tells [FBI Special Agent]
Murphy that he gets the car from Budget. He
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must have told them that he wasn't going
south of Monterey. Why did he have to have a
car? He needed a car to get his gun across
the border. That's what it boils down to,
Ladies and Gentlemen. No magnetometers, no
x-rays, lots of places to hide a gun.
There is ample evidence in the record to support this statement.
Hughes told agent Murphy that he rented a car from the Budget
agency in Laredo, Texas. Because the manager at that agency
testified that it was company policy not to allow cars to be
driven south of Monterey, and the agency rented a car to Hughes,
it is reasonable to infer that Hughes said he was not going
south of Monterey.
The evidence also supports an inference that Hughes
rented a car and drove across the border as a means of smuggling
a gun into Mexico. First, on the numerous prior occasions that
Hughes visited Mexico on business, he had virtually never rented
a car. Marquez testified that Hughes disliked driving in Mexico
and typically requested that Marquez drive. Second, there is
simply no good alternative explanation for Hughes's decision to
rent a car in Laredo, Texas, a twelve hour drive from his final
destination of Mexico City. There were rental cars available in
Mexico City, including cars from American rental car agencies.
Third, because the evidence suggested that Hughes's 9 mm Sig
Sauer pistol ejected the cartridge casings found at the crime
scene in Queretaro, Hughes must have transported a gun into
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Mexico somehow. The most plausible explanation is that he
carried it with him during his drive from Laredo. It is common
knowledge that airports have magnetometers and x-ray machines
designed to detect concealed weapons.
C. McCarthy's Late-Night Arrival in Mexico
Hughes objects to the prosecutor's statement that
Hughes "said [to Sawicke] he was busy that weekend, and he
couldn't pick up [Brian McCarthy] until at least ten o'clock. .
. . This is the reason. He wants it dark. Darkness is the
ancient ally of criminals." Hughes insists that the
prosecutor's attempt to show that he was not actually busy on
that date was misleading because the "undisputed evidence"
indicated that he would have been busy but for the failure of
certain equipment to be delivered to the Chrysler plant in
Toluca. Moreover, the attribution, "he wants it dark," was
particularly misleading because it was McCarthy who selected the
evening flight time. We find no error.
Sandy Sawicke, McCarthy's secretary, testified that
in a telephone conversation with Hughes, he said that he had a
very busy schedule that weekend and McCarthy should not arrive
before 10:00 Sunday night. Although McCarthy had previously
suggested that he take an evening flight, the 10:00 p.m. arrival
time was scheduled at the behest of Hughes, not McCarthy.
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Furthermore, the evidence established that Hughes was not
particularly busy that Sunday, as he had claimed he would be.
Although there was some indication that Hughes's work plans may
have been disrupted by a delayed shipment of ASI equipment to
the Chrysler plant, the jury was entitled to infer that Hughes's
busy schedule was a pretext to justify McCarthy's late arrival.
From the evidence that Hughes wanted McCarthy to arrive late,
and that Hughes's Sig Sauer was the likely murder weapon, a
reasonable juror could also have inferred that Hughes wanted it
dark during the drive to San Luis Potosi so that he could kill
McCarthy undetected.
D. The Queretaro Bypass Highway
The defendant objects to the prosecutor's following
statements:
Let's briefly talk about the murder. You
know that the Defendant picked up Brian
McCarthy between ten and eleven in Mexico
City. The Defendant uses the directions
provided to him by Martin Marquez to get on
the road to Queretaro. Two days earlier, of
course, he's had lots and lots of time to go
through in daylight and at night to check
out any sites he might want to use for
killing Brian McCarthy. And it's late at
night, and the evidence is that the
Defendant took the Queretaro bypass.
. . . .
He had a lot of time, a lot of time to scope
out a location where he would kill McCarthy
on the way to San Luis Potosi. Against the
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advice of Martin Marquez, he chose to drive
that lonely dark road in the middle of the
night, when there was just no reason to.
Hughes insists that this is a "prejudicial misstatement of fact"
because there is no evidence that Hughes and McCarthy took the
bypass road around Queretaro, or that Hughes spent time during
the previous two days checking out a site to murder McCarthy.
We disagree.
Marquez testified that Hughes told him he planned to
pick up McCarthy at the Mexico City airport and drive to San
Luis Potosi. The city of Queretaro is on the way from Mexico
City to San Luis Potosi, about half way between those two
cities, and it would have been logical for Hughes to take the
bypass highway. There was also ample evidence from which the
jury could infer that Hughes spent time during his trip from
Laredo to Mexico City checking out potential murder sites.
Special Agent Murphy testified that Hughes told him that he
crossed the border into Mexico at about 4:00 p.m. on February 1,
and did not arrive in Mexico City until 2:00 p.m. on February 3,
forty-six hours later. The drive from Laredo to Mexico City
normally takes about twelve hours and the route runs past
Queretaro. Thus, Hughes had plenty of unaccounted-for time in
the area of the murder. Finally, because Marquez testified that
he told Hughes that the roads between Queretaro and San Luis
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Potosi were under construction and dangerous, and he advised
Hughes against driving at night, the prosecutor's statement to
that effect was accurate.
E. The Murder Site
Hughes objects to these statements of the prosecutor:
Let me ask you, Ladies and Gentlemen, an
ideal place to kill Brian McCarthy, but why
would bandits select that site? The
evidence suggests they wouldn't, and this is
why. You will recall that Hughes tells us
that once they're attacked, they're put in
the car and driven around for some length of
time. This is a toll road, and to get off
this road, you have to go through another
toll. What bandits. What bandit is going
to drive through a toll booth, where there's
evidence there are police with Mr. Hughes in
the back seat as a hostage?
. . . .
No Robber is going to work off that toll
road. Why? . . . [T]here's a toll booth
just before you get on it. . . . [L]ikewise,
. . . there's a toll booth just before you
get off.
Hughes argues that "[t]here is no evidence, expert,
circumstantial, or otherwise, that McCarthy was killed at the
place that he was found. There is no evidence that the accused
was ever on that toll road. There is no evidence that anyone
had to drive through 'another toll.'" (Emphasis in original.)
Absent any evidence that the body was moved or
transported, it was appropriate for a jury to infer that
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McCarthy was killed where he was found, particularly when the
shell casings were found near the body and a trail of blood led
from the roadside to a shallow grave in which the body was
buried. As discussed above, there was circumstantial evidence
that Hughes and McCarthy drove on the bypass highway. There was
also evidence that the bypass was a toll road with at least one
tollbooth, and that it is common practice in Mexico for police
or military officers to be stationed at tollbooths. Hence,
there was some basis in the evidence for the government's
explanation of why kidnappers would be unlikely to abduct
someone on the bypass highway.
To the extent, however, that the government's statement
emphasized the existence of a second toll booth through which
the bandits would have had to pass after the abduction, there
was an insufficient evidentiary basis for that assertion.
Indeed, FBI Special Agent Gilbert Contreras testified that he
did not think that there was a second toll booth in place at the
time of the killing. We readily conclude, nonetheless, that
this misstatement, in the context of the substantial
circumstantial evidence supporting the jury's verdict, did not
prejudice Hughes, and therefore, did not constitute plain error.
See United States v. Rodriguez-Cardona, 924 F.2d 1148, 1153-54
(1st Cir. 1991) (no plain error where improper remarks in
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government's closing statement did not effect the outcome of the
trial given the strength of the government's case against the
defendant).
F. The Leatherman Tool
Hughes complains that "twice, the prosecutor misstated
the evidence about the Leatherman tool to inflame the jury."
During closing argument, the prosecution suggested that Hughes's
description of the kidnappers patting him down did not square
with the fact that he arrived back in the United States carrying
the Leatherman tool--a device with several sharp knives--in his
canvas bag. Moreover, the government argued that because Hughes
realized this inconsistency in his story, he eagerly sought to
retrieve the bag from the FBI. Again, we find the government's
reasoning valid.
The Leatherman tool was considered dangerous enough
that it was confiscated by a flight attendant during Hughes's
return trip to the United States from Mexico; Hughes told agent
Murphy that the bandits had patted him down; and Hughes did
appear especially eager to retrieve the canvas bag, telephoning
Loraine Bertolini, in whose car he had left it, to ask her to
get the bag back from the FBI because it had "sentimental value"
to his wife.
G. The Tire Tracks
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According to Hughes, it was a "raw abuse" of power for
the government to tell the jury that "the tire tracks are not
part of the case." Once again, Hughes's complaint misses the
mark. Although a crime scene investigator for the Mexican
government testified that he had noted tire tracks by the
roadside, the significance of this evidence was fairly
debatable. Hughes presented a witness who testified that the
factory tires on the Ford Tempo he rented were slightly wider
than the tracks measured at the crime scene. Hughes argued that
the rental car probably had factory tires because it was new,
and the discrepancy in the measurements proved that Hughes's
rental car did not make the tracks found at the crime scene.
Upon cross-examination, however, Hughes's witness admitted that
he had never measured the imprint that such a tire would make in
sand, the surface at the crime scene, and that he did not know
what make of tire was actually on the car that Hughes drove.
Accordingly, the government was entitled to argue that the tire
track evidence was insignificant, although, as always, the jury
was free to adopt a different interpretation of the evidence.
IV. THE MISSING CRIME SCENE PHOTOGRAPHS
Roberto Gonzalez Moreno, a Mexican police officer, took
thirty-seven photographs of the crime scene, some of which were
apparently used during Hughes's murder trial in Mexico. Only
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nine of these photographs, however, made their way to the United
States Attorney's Office for use in the trial. One of these
nine photographs depicted one of the two cartridge casings
recovered from the crime scene. Hughes insists that this
photograph was exculpatory because the cartridge casing depicted
in the photograph differed in color from the actual cartridge
casing that the government introduced in evidence. Among the
missing photographs was one that depicted the second cartridge
casing recovered at the crime scene. Extrapolating from the
putatively exculpatory value of the picture of the first
cartridge casing, Hughes contends that this missing photograph
would likely have proven exculpatory as well. Thus, Hughes
argued to the court at trial that the government's failure to
produce the photograph of the second cartridge casing required
the court to exclude both of the actual cartridge casings from
evidence.7
The district court rejected this argument, concluding
that the government was under no obligation to produce the
missing photographs because they were not within the
7In addition to his objections based on the missing
photographs, Hughes vigorously contested at trial the
authenticity of the shell casings and the bullet fragments. The
court focused considerable attention on this issue before ruling
that the casings and the fragments had been properly
authenticated and were admissible as evidence. Hughes does not
challenge these evidentiary rulings on appeal.
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government's control. Moreover, despite Hughes's insistence
that the photograph of the first cartridge casing was
exculpatory, the court found "the color of the casing in that
photograph . . . to be the same as the casing the government
intends to offer," and concluded, "I fail to see anything
exculpatory about it."
In affirming the district court's ruling, we need not
inquire into the potential exculpatory value of the missing
photographs. Because the government was never in control of the
photographs, it is not responsible for any failure to produce
them. See United States v. Friedman, 593 F.2d 109, 119-20 (9th
Cir. 1979) (evidence that was in Chile was not within the
control of the government for the purposes of Brady or Rule 16);
United States v. Flores, 540 F.2d 432, 437-38 (9th Cir. 1976).
It is axiomatic that the government must provide the criminal
defendant with access to material exculpatory evidence within
its control, see Brady v. Maryland, 373 U.S. 83, 87 (1963); see
also Fed. R. Crim. P. 16(a)(1)(C),8 and the government may not
in bad faith fail to preserve potentially exculpatory evidence,
8
Federal Rule of Criminal Procedure 16(a)(1)(C) provides in
relevant part: "Upon request of the defendant the government
shall permit the defendant to inspect . . . photographs . . .
which are within the possession, custody or control of the
government, and which are material to the preparation of the
defendant's defense . . . ."
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see Arizona v. Youngblood, 488 U.S. 51, 58 (1988). However, the
government has no duty to produce evidence outside of its
control, see United States v. Sepulveda, 15 F.3d 1161, 1179 (1st
Cir. 1993), and it is not responsible for the preservation of
evidence that was never in its control in the first place, see
United States v. Lewis, 40 F.3d 1325, 1340 (1st Cir. 1994);
United States v. Femia, 9 F.3d 990, 993 (1st Cir. 1993).
Although the government obviously did not have physical
possession or custody of the missing photographs, Hughes
contends that its inadequate efforts to secure the missing
photographs from Mexico belied its ability to control them.
This argument is unavailing. As the district court aptly
explained, "Mexico is a sovereign nation, and it's clear that
the United States Government has no authority to require the
Mexican Government to produce any evidence that may be in its
possession or under its control. It has to rely on the Mexican
government to comply with reasonable and appropriate requests."
The government's persistent, but fruitless, efforts to
obtain the missing photographs demonstrate its lack of control
over them. In December 1997, the United States Justice
Department requested in writing that the Mexican government
produce all "sketches and photographs of the crime scene"; in
early 1998, FBI Special Agent Jimmy Garcia asked Mexican
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officials several times to turn over all evidence in the case,
only to be told that such evidence could not be relinquished
because it was still under review; eight days before trial,
Agent Garcia asked an official in the Mexico Attorney General's
office to contact several Queretaro justice officials to help
obtain the missing photographs, only to be told that all of the
evidence had already been turned over to the U.S. government;
one week before trial Agent Garcia asked each of the Mexican
officials who were to testify as government witnesses about the
photographs in hopes of locating them; and during trial, the
FBI's Legate Office in Mexico made yet another request of the
Mexican government to search for the missing photographs. Like
the district court, we wonder "what else the United States
Government could have reasonably done under the circumstances."
V. THE SENTENCING ENHANCEMENT FOR FIRST DEGREE MURDER
Sentencing guideline § 2B3.2 sets the base offense
level for extortion in violation of 18 U.S.C. § 1951. Section
2B3.2 contains a cross-reference provision, § 2B3.2(c)(1), which
applies when the extortion scheme results in a murder that
occurs outside the territorial or maritime jurisdiction of the
United States. In particular, § 2B3.2(c)(1) states:
If a victim was killed under circumstances
that would constitute murder under 18 U.S.C.
§ 1111 had such killing taken place within
the territorial or maritime jurisdiction of
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the United States, apply § 2A1.1 (First
Degree Murder).
Guideline § 2A1.1, in turn, describes the punishment for first
degree murder in violation of 18 U.S.C. § 1111. Section 2A1.1
sets a base offense level of 43, which translates into life
imprisonment pursuant to the sentencing table in the guidelines.
The district court sentenced Hughes to twenty years'
imprisonment. It arrived at this sentence by applying the
guideline for first degree murder, § 2A1.1, after determining
that Hughes's extortion scheme resulted in the murder of
McCarthy outside the territorial or maritime jurisdiction of the
United States, and thus triggered the cross-reference found in
§ 2B3.2(c)(1). Pursuant to § 2A1.1's base offense level of 43,
the district court would have sentenced Hughes to life
imprisonment, but 18 U.S.C. § 1951 sets the maximum penalty for
extortion at twenty years' imprisonment. See USSG § 5G1.1
("Where the statutorily authorized maximum sentence is less than
the minimum of the applicable guideline range, the statutorily
authorized maximum sentence shall be the guideline sentence.").
Hughes argues that the district court erred in applying
the § 2B3.2(c)(1) cross-reference for three reasons: (A)
§ 2B3.2(c)(1) is superceded by 18 U.S.C. § 1119; (B) there was
insufficient evidence of first degree murder; and (C) McCarthy
was not "a victim" of the extortion scheme within the meaning of
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§ 2B3.2(c)(1). Rejecting each of these arguments, we affirm
Hughes's sentence.
A. The Relationship Between § 2B3.2(c)(1) and 18 U.S.C. § 1119
Hughes argues that § 2B3.2(c)(1) is superceded by 18
U.S.C. § 1119. Section 1119 provides that "[a] person who,
being a national of the United States, kills or attempts to kill
a national of the United States while such national is outside
the United States but within the jurisdiction of another country
shall be punished as provided under sections 1111 [murder], 1112
[manslaughter], and 1113 [attempted murder/manslaughter]."
Section 1119 also contains the following limitation: "No
prosecution shall be approved if prosecution has been previously
undertaken by a foreign country for the same conduct." Hughes
insists that this limitation prevents calculating his sentence
using § 2B3.2(c)(1)'s cross-reference to the first degree murder
guideline because he was previously prosecuted for (and
convicted of) murder in Mexico. See supra note 1. We disagree.
By its own terms, the limiting language within § 1119
speaks only of "prosecutions," not sentence enhancements.
Moreover, although § 1119 prohibits prosecuting a defendant for
murder "as provided under section[] 1111," Hughes was not being
prosecuted or punished for murder in violation of § 1111, but
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for extortion in violation of § 1951. If Hughes had been
prosecuted and punished for murder, he would have received the
death penalty or life imprisonment, see 18 U.S.C. § 1111, not
twenty years' imprisonment, the statutory maximum for extortion.
It is well-established that a defendant's sentence may
be enhanced pursuant to the sentencing guidelines for conduct
underlying a prior prosecution, conviction, and punishment. As
the Supreme Court explained in Witte:
To the extent that the Guidelines aggravate
punishment for related conduct outside the
elements of the crime on the theory that
such conduct bears upon the "character of
the offense," the offender is still punished
only for the fact that the present offense
was carried out in a manner that warrants
increased punishment, not for a different
offense (which that related conduct may or
may not constitute).
Witte v. United States, 515 U.S. 389, 402-03 (1995). This is
true even where, as in this case, the defendant is subject to
"separate prosecutions involving the same or overlapping
'relevant conduct'" Id. at 404 (emphasis added) (citation
omitted). The guidelines specifically contemplate multiple
prosecutions for different offenses based on the same conduct.
See, e.g., USSG § 5G1.3(c).
B. Sufficiency of the Evidence of First Degree Murder
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Hughes contends that there was insufficient evidence
to support the district court's finding that he murdered
McCarthy within the meaning of 18 U.S.C. § 1111--i.e., that
Hughes killed McCarthy with "malice aforethought." See 18
U.S.C. § 1111. Our review "of a sentencing court's
fact-specific determination of a defendant's role in the offense
is limited to clear error." United States v. Alicea, 204 F.3d
480, 485 (1st Cir. 2000).
First degree murder is "willful, deliberate, malicious,
and premeditated killing." 18 U.S.C. § 1111. Hughes argues
that the evidence equally supports a finding that he committed
voluntary manslaughter--i.e., killing "[u]pon a sudden quarrel
or heat of passion." 18 U.S.C. § 1112. The government,
however, presented strong circumstantial evidence that Hughes
planned to murder McCarthy when they met in Mexico. Hughes
purchased a gun, devised a plan to transport it to Mexico,
surveyed the area of the crime to choose a suitable location to
kill McCarthy, and planned for McCarthy to arrive late at night.
To sustain a sentencing enhancement, the government need only
prove the relevant facts by a preponderance of the evidence. See
United States v. Medina, 167 F.3d 77, 79 (1st Cir. 1999). The
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district court did not commit clear error in finding that the
government met its burden.9
C. The Meaning of "A Victim" Within § 2B3.2(c)(1)
Arguing that the district court erred in determining
that McCarthy was "a victim" of the extortion within the meaning
of § 2B3.2(c)(1), Hughes encourages us to read that term
narrowly to require that the "victim" be the target of the
extortionate demand. We decline Hughes's invitation, concluding
instead that § 2B3.2(c)(1) contemplates that there may be
"victims" of an extortion scheme other than the target of the
extortionate demand.
Application note 7 to § 2B3.2 explains that "[i]f the
offense involved the threat of death or serious bodily injury to
numerous victims (e.g., in the case of a plan to derail a
passenger train or poison consumer products), an upward
9
Although the jury's conviction on the extortion charge
required it to find as a factual predicate that Hughes killed
McCarthy--i.e., that the two were not victims of a kidnapping
and ransom scheme as Hughes had claimed--the jury need not have
concluded that, as a legal matter, Hughes murdered McCarthy
within the meaning of § 1111--that is, that he killed him with
malice aforethought. Indeed, despite strong circumstantial
evidence to the contrary, it is possible that the jury concluded
that Hughes killed McCarthy without malice and, as such, only
committed manslaughter. See 18 U.S.C. § 1112. Whatever the
factual predicate the jury relied upon to convict Hughes,
however, the evidence supported the sentencing court's finding
by a preponderance of the evidence that, for the purpose of
applying the § 2B3.2(c)(1) cross-reference, Hughes's conduct
constituted first degree murder.
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departure may be warranted." (Emphasis added.) In this example,
the train passengers are "victims" of the train derailment
extortion scheme even though the extortionate demand is not made
of the passengers themselves. Likewise, because Hughes's plan
to extort money from ASI included killing McCarthy, McCarthy was
a victim of the extortion scheme even though Hughes never
demanded that McCarthy pay him any money.
Additional support for this conclusion comes from the
text of § 2B3.2. Section 2B3.2(b)(2) adds levels to the base
offense level for excessive "loss to the victim." There, the
use of the definite article “the” to indicate a narrower class
of "victims" makes sense because only the target of the
extortionate demand will suffer a financial "loss" as a result
of the extortion scheme. Section 2B3.2(c)(1) uses the
indefinite article, referring the sentencing court to the first-
degree murder guideline "[i]f a victim was killed under
circumstances that would constitute murder under 18 U.S.C. §
1111." In contrast to § 2B3.3(b)(2), the use of the indefinite
article suggests a class of potential victims broader than the
target or targets of the extortionate demand.
There are many precedents for a similar construction
of the term "victim" in other guidelines sections. The Fifth
Circuit concluded that a person killed in the aftermath of a
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bank robbery, though not the target of the robbery itself, was
"a victim" within the meaning of § 2B3.1(c)(1). See United
States v. Harris, 104 F.3d 1465, 1474-75 (5th Cir. 1997)
(construing a cross-reference provision identical to §
2B3.2(c)(1)). Other courts have declined to construe the term
"victim" narrowly, except where the guidelines employ the
definite article. See United States v. Sickinger, 179 F.3d
1091, 1094 (8th Cir. 1999) (emphasizing that "increases based on
injury to 'the victim' under sentencing guideline for
kidnapping, abduction, unlawful restraint, § 2A4.1, are
predicated on the risk to a single intended individual," and
distinguishing "the victim" from the phrase "any victim" found
in the robbery guideline) (internal quotation marks and
citations omitted) (emphasis added); United States v. Malpeso,
115 F.3d 155, 170 (2d Cir. 1997) (under assault-with-intent-to-
commit-murder guideline, § 2A2.1(b)(1), holding that phrase "the
victim" refers only to a single intended victim of assault, and
distinguishing provisions that employ the phrase "any victim");
United States v. Sherwood, 98 F.3d 402, 412-13 (9th Cir. 1996)
(under USSG § 5K2.8, the kidnapped child, not just the father
who was the target of the extortionate demand, was a "victim.");
United States v. Muhammmad, 948 F.2d 1449, 1456 (6th Cir. 1991)
(under robbery guideline, § 2B3.1(b)(3), adjustment referring to
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"any victim" covered bystander injured during bank robbery
despite defense argument that only the bank was the victim of
the offense); United States v. Robertson, 872 F.2d 597, 604-05
(5th Cir. 1989) (under USSG § 5K2.8, interpreting "victim" to
include indirect victims of the offense).
We conclude, therefore, that the district court
properly determined that McCarthy was a victim within the
meaning of § 2B3.2(c)(1), and correctly calculated Hughes's
sentence using the cross-reference to the first-degree murder
guideline.10
VI. THE RESTITUTION ORDER
The district court also ordered that Hughes "pay full
restitution to the Hartford Insurance Company" in an amount of
$123,100, plus additional amounts paid by the insurance company
to McCarthy's widow until Hughes is released from prison.
Hughes argues that the district court's order to pay restitution
10
We note that the district court indicated that even if the
cross-reference provision of § 2B3.2(c)(1) did not apply, it
would have sentenced Hughes to twenty years' imprisonment. The
court explained:
[T]he murder here is relevant conduct that takes this
case outside of the Heartland of the run of the mill
extortion case and therefore would be ample grounds
for an upward departure. . . . [I] don't think it is
debatable that the court should go to, at least, to
level thirty-seven which would trigger the twenty year
maximum sentence under the statute.
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was "fatally flawed" because it failed to take into account his
inability to pay. We disagree.
"We have repeatedly pointed out that the provision
addressing restitution, [the former] 18 U.S.C. § 3664(a) (1994),
does not require an explicit finding that the defendant has the
ability to pay the restitution ordered. Rather, it is
sufficient if the record on appeal reveals that the judge made
implicit findings or otherwise adequately evinced his
consideration of those factors."11 United States v. LiCausi, 167
F.3d 36, 52 (1st Cir.), cert. denied, 120 S. Ct. 79 (1999)
(internal quotation marks and citations omitted). A district
court adequately considers the defendant's ability to pay if the
defendant's financial information is contained in the
presentence report (PSR), and the district court relies on the
PSR in issuing its restitution order. See United States v.
Newman, 49 F.3d 1, 10 (1st Cir. 1995); United States v. Ahmad,
2 F.3d 245, 246 (7th Cir. 1993). Although Hughes claimed to
have no assets, the PSR reflects that between 1974 and 1994, he
earned an aggregate salary of over $2 million. Moreover, as a
talented software designer, Hughes has substantial human
11
The most recent version of § 3664 provides that the
sentencing court "shall order restitution . . . without
consideration of the economic circumstances of the defendant."
18 U.S.C. § 3664(f)(1)(A) (Supp. II 1996).
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capital, and there was evidence presented at trial that Hughes
owned stock options and had recently purchased a house in
Mexico. The district court did not err in ordering restitution.
Affirmed.
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