United States v. Sotomayor-Vazquez

United States Court of Appeals
For the First Circuit

Nos. 00-1096
00-1097
00-1279

UNITED STATES OF AMERICA,

Plaintiff, Appellee,

v.

JEANNETTE SOTOMAYOR-VÁZQUEZ,
ARMANDO BOREL-BARREIRO,
YAMIL KOURÍ-PÉREZ,

Defendants, Appellants.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. José Antonio Fusté, U.S. District Judge]

Before

Torruella, Chief Judge,

Coffin, Senior Circuit Judge,

and Selya, Circuit Judge.

Francisco Rebollo-Casalduc, with whom Nachman, Guillemard &
Rebollo, were on brief, for appellant Sotomayor.
Marlene Aponte-Cabrera, for appellant Borel.
Benjamin S. Waxman, with whom Alan S. Ross, Robbins, Tunkey, Ross,
Amsel, Raben, Waxman & Eiglarsh, P.A., Rafael F. Castro-Lang, Castro &
Castro and Fernando J. Carlo, were on brief, for appellant Kourí.
Richard A. Friedman, Appellate Section, Criminal Division, with
whom Guillermo Gil, United States Attorney, María Domínguez and Edna C.
Rosario, Assistant United States Attorneys, were on brief, for
appellee.

April 30, 2001

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 TORRUELLA, Chief Judge. After a 58-day jury trial,

appellants Jeannette Sotomayor-Vázquez (Sotomayor), Armando Borel-

Barreiro (Borel) and Yamil Kourí-Pérez (Kourí) were convicted of

various counts of conspiracy, embezzlement, money laundering and

witness tampering.1 Kourí was sentenced to 168 months imprisonment,

fined $17,500, and ordered to pay $1,394,358 in restitution. Sotomayor

was sentenced to 46 months imprisonment, fined $10,000, and ordered to

pay $35,689 in restitution. Borel was sentenced to a year and a day of

imprisonment and ordered to pay $18,777 in restitution. In these

appeals, they raise numerous claims of trial error. For the reasons

explained herein, we affirm the convictions in full.

BACKGROUND

We briefly summarize the relevant facts, which we develop in

greater detail where necessary.

I. The Embezzlement Scheme

1 Borel was convicted of one count of conspiracy to embezzle from an
organization receiving federal funds in violation of 18 U.S.C. § 371,
and two counts of embezzlement from such an organization in violation
of 18 U.S.C. § 666. Sotomayor was convicted of one count of
conspiracy, three counts of embezzlement, and one count of witness
tampering in violation of 18 U.S.C. § 1512(b). Kourí was convicted of
one count of conspiracy, two counts of embezzlement, and 24 counts of
money laundering in violation of 18 U.S.C. § 1956(a).

A number of other co-conspirators were also indicted, and were
either tried separately or pled guilty pursuant to agreements with the
U.S. Attorney.

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 Advanced Community Health Services, Inc. (ACHS) treated

persons with AIDS from 1987 to 1994 pursuant to a contract with the

City of San Juan, Puerto Rico. From 1990 to 1994, ACHS was a non-

profit organization eligible for federal funding, of which it received

approximately $15,000,000.

Appellant Kourí was an employee of the Harvard Institute for

International Development (HIID). Although Kourí was not officially an

employee of ACHS, the Government introduced evidence as to his

participation in the development of ACHS and its subsidiary, the AIDS

Institute. The evidence showed that he was essentially the director,

manager, and representative of those institutions. Appellant Sotomayor

was employed as the Operations Manager of ACHS. Appellant Borel was

employed by ACHS as a property custodian. He was also the incorporator

and purchasing agent of Octagon Corporation (Octagon), one of the

outside entities used to divert funds from ACHS.

The principal prosecution witness was co-conspirator Angel

Corcino, who had served as the comptroller of ACHS. Corcino explained

that Kourí and Sotomayor had diverted funds from ACHS by directing

Corcino to make checks payable either to organizations controlled by

Kourí2 or to individuals associated with ACHS (who were never told that

2 These organizations included Advanced Food Services, Octagon,
Fundación Panamericana and Medservices.

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checks were made in their names).3 Kourí and Sotomayor would cash the

checks for personal use or to make political contributions. Corcino

also testified as to Borel's more limited involvement in the

embezzlement.4

II. Recantation of a Key Defense Witness

Kourí's defense sought to establish that the payments to

Fundación Panamericana and Medservices had been made in exchange for

bona fide services, and that the two companies were not shell

organizations used to launder money. To this end, Kourí called

Dr. Gloria Ornelas (the director of Fundación Panamericana), who

testified that Panamericana had engaged in legitimate research

activity, and had been paid for that activity by ACHS.

3 Corcino testified that Kourí had cashed over $250,000 in checks to
provide political contributions (Count 2), that Kourí had received
$27,750 in other check proceeds (Count 7), and that Kourí had caused
ACHS to make payments on sham, post-dated contracts through Fundación
Panamericana and Medservices (Counts 9-20), the proceeds of which would
later be remitted to Kourí. To avoid discovery, Corcino would send
cashier's checks, which would not be returned to ACHS with fraudulent
endorsements.

Corcino also testified that Sotomayor had diverted $21,000 to pay
her housekeeper's salary (Count 4) and $45,000 to pay for the
construction of a co-conspirator's house (Count 6), as well as helping
Kourí with the embezzlement of the $27,750 (Count 7). Sotomayor was
also indicted for one count of witness tampering, in connection with an
attempt to convince her housekeeper to testify falsely about her
duties.
4 Corcino testified that Borel had been the maker and payee of $50,000
worth of checks funneled from ACHS through Octagon and Advanced Food
Service. Several of the checks were cashed by Borel, with the proceeds
ultimately paid to Kourí.

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 The Government later called Ornelas as its first rebuttal

witness, at which point she recanted her testimony in full. In

rebuttal, she testified that Kourí had induced her to lie, and that the

contract between ACHS and Fundación Panamericana was a sham that had

been altered and post-dated to make it appear legitimate. Although

Ornelas originally implicated Kourí's lead counsel (Benny Frankie

Cerezo) in the fabrication, she later testified that neither Cerezo nor

co-counsel Charles Daniels was involved in soliciting false testimony.

After both Sotomayor and Borel moved unsuccessfully for a mistrial,

Ornelas also testified that neither co-defendant had played any part in

the scheme to provide false testimony. The court provided both

Sotomayor and Borel the opportunity to cross-examine Ornelas,5 and

issued a limiting instruction to the jury.

DISCUSSION

We address the many issues raised in these appeals as

follows: (1) the sufficiency of the evidence on which Borel and Kourí

were convicted of violating 18 U.S.C. § 666; (2) evidentiary challenges

made by Sotomayor; (3) Kourí's Sixth Amendment claim of attorney

conflict-of-interest; (4) the potential prejudicial effect of Ornelas's

testimony on Sotomayor and Borel; (5) Kourí and Borel's challenge to

the jury instructions; (6) Kourí's sentencing challenge; (7) the

admissibility of evidence received by the FBI from the Comptroller

5 Kourí also had the opportunity to cross-examine Ornelas.

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General of Puerto Rico; and (8) the legal capacity of the interim U.S.

Attorney for the District of Puerto Rico.

I. The Sufficiency of the Evidence as to Kourí and Borel

When a conviction is challenged on sufficiency grounds, we

evaluate the evidence "'in the light most agreeable to the prosecution

and decide whether that evidence, including all plausible inferences

extractable therefrom, enables a rational fact-finder to conclude

beyond a reasonable doubt that the defendant committed the charged

crime.'" United States v. Ortiz de Jesús, 230 F.3d 1, 5 (1st Cir.

2000) (quoting United States v. Noah, 130 F.3d 490, 494 (1st Cir.

1997)).

A. Kourí

Kourí argues that insufficient evidence was introduced to

prove that he was an "agent" of ACHS, one of the elements of an

embezzlement conviction under 18 U.S.C. § 666. Section 666(d)(1)

defines the term "agent" as "a person authorized to act on behalf of

another person . . . and, in the case of an organization . . . ,

includ[ing] a servant or employee, and a partner, director, officer,

manager, and representative." Kourí's basic argument is that, because

he was merely an HIID-employed consultant providing advisory services

to ACHS, and was not on the ACHS payroll, he cannot fall under the

statutory definition of "agent." In other words, he argues that he was

not "authorized to act on behalf of ACHS." He also argues that, as an

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outside consultant, he was not an "agent" of ACHS by virtue of being an

ACHS employee, partner, director, officer, manager, or representative.

See United States v. Ferber, 966 F. Supp. 90, 100 (D. Mass. 1997)

(suggesting that a defendant may qualify as a § 666(d)(1) "agent" if he

is covered by either aspect of the statutory definition). We need not

determine whether Kourí was authorized to act on behalf of ACHS,

because we conclude that there was sufficient evidence to show that he

was a "director," "manager," or "representative" of ACHS in accordance

with the statutory definition.

In Salinas v. United States, 522 U.S. 52, 55-61 (1997), the

Supreme Court held that § 666 is extremely broad in scope. The Court

noted the "expansive, unqualified language" of the statute, as well as

the "broad definition of the 'circumstances' to which the statute

applies." Id. at 56-57. Although Salinas only addressed which

organizations receiving federal funds are covered by § 666 generally,

and not which persons are covered by § 666(d)(1) in particular, we

understand the Supreme Court's "expansive" approach to include persons

who act as directors, managers, or representatives of covered

organizations, even if those persons are not actually employed by the

organizations from which they embezzled. As Judge Garza recognized in

his dissent in United States v. Phillips, 219 F.3d 404 (5th Cir. 2000),

such an expansive definition of "agent" is necessary to fulfill the

purpose of § 666, i.e., to protect the integrity of federal funds:

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 [T]he expansive statutory definition [in
§ 666(d)(1)] recognizes that an individual can
affect agency funds despite a lack of power to
authorize their direct disbursement. Therefore,
to broadly protect the integrity of federal funds
given to an agency, § 666 applies to any
individual who represents the agency in any way,
as representing or acting on behalf of an agency
can affect its funds even if the action does not
directly involve financial disbursement.
Id. at 422 n.3 (Garza, J., dissenting).6 As the record in this case

clearly shows, an outside consultant with significant managerial

responsibility may pose as significant a threat to the integrity of

federal funds as a manager actually employed by the agency in question.

Furthermore, the inclusion of "employee" in the statutory language as

a separate qualification suggests that the definition of agent includes

"directors," "managers," and "representatives" who are not technically

employees.

The only question remaining is whether the evidence showed

that Kourí acted as a "director," "manager," or "representative" of

ACHS. Corcino testified at length that all ACHS decisions would be

approved by Kourí, that Kourí would meet with city officials on behalf

6 The Phillips majority did not disagree with this proposition. 219
F.3d at 411. They premised their decision (not finding an agency
relationship) on the indirect connection between the potential "agent"
and the government entity from which he was accused of embezzling. Id.
at 412-13. In the instant case, Kourí was directly involved with the
organization from which he embezzled, albeit not in a formal employer-
employee relationship. Our holding, therefore, is consistent with the
Phillips majority's conclusion that "there must be some nexus between
the criminal conduct and the agency receiving federal assistance." Id.
at 413-14.

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of ACHS, and that Kourí made employee firing and hiring decisions. In

short, although Kourí was officially a consultant to ACHS, the jury

rationally could have found that he acted as its executive director.

Kourí's claim that his opinions were merely advisory and could be

ignored by ACHS officials is not supported by any evidence. There was

thus sufficient evidence for a rational jury to find beyond a

reasonable doubt that Kourí was an "agent" of ACHS for purposes of 18

U.S.C. § 666(d)(1).

B. Borel

Borel makes a three-part challenge to the sufficiency of the

evidence for his conviction: first, he argues that the evidence shows

that he embezzled from Octagon (a corporation that does not receive

federal funds) rather than from ACHS; second, he claims that there was

insufficient evidence to prove his specific intent to embezzle; and

third, he argues that there was insufficient evidence to prove that he

was an agent of ACHS at the time of the embezzlement, as required by

§ 666.

1. Embezzlement from ACHS and Specific Intent

The Government argues that the evidence clearly shows Borel's

involvement in the $50,000 embezzlement for which he was convicted.

Two $25,000 ACHS checks, drawn in part from federal funds, were

deposited into Octagon's account on September 24, 1992. Corcino

testified that these checks were made at the direction of Kourí, were

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not for any legitimate purpose, and had been picked up at Corcino's

office by Borel, who had control of the Octagon operating account and

check-writing privileges at the time. Several days later, between

September 28 and October 1, 1992, seven checks were issued from the

Octagon account, in uneven amounts, totaling precisely $50,000.7 All

seven checks were written by Borel. Four of the checks were made

payable to Advanced Food Service, an entity controlled by Kourí.

Corcino delivered the cash proceeds of these four checks directly to

Kourí. The three remaining checks were payable directly to Borel, who

told Corcino that he had cashed them and delivered the proceeds to

Kourí.

Corcino's testimony and the supporting documentary evidence

detail a transaction in which the following occurred: Kourí ordered

that ACHS pay $50,000 to Octagon for no legitimate reason. Borel, who

was in charge of the Octagon checking account, picked up these checks

from Corcino's office, and deposited them in the Octagon account.

Borel was thus aware that Octagon had $50,000 of ACHS money in its

account. Borel then wrote seven checks for seemingly random amounts,

which happened to total exactly $50,000. Four of these checks were

made to an organization primarily run by Kourí. Those four checks were

cashed, and the cash found its way to Kourí. The other three checks

7 The checks were for $7,142.85, $8,343.85, $3,290.50, $7,598.55,
$8,677.30, $6,993.50 and $7,953.45.

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were made payable to Borel. He cashed those checks and gave the

proceeds to Kourí.

From this evidence, particularly the fact that Borel was

involved in the transaction prior to the deposit of ACHS funds in the

Octagon checking account, a rational jury could conclude beyond a

reasonable doubt that Borel participated in an embezzlement from ACHS.8

Moreover, the evidence details a somewhat complicated scheme in which

Borel wrote checks totaling the exact amount of illegitimate funds and

delivered significant amounts of cash to Kourí. Even if Borel was

unaware that the payments were destined for a political organization,

the jury could have concluded beyond a reasonable doubt that Borel knew

that ACHS money was being funneled through Octagon to Kourí for no

apparent legitimate reason, and that Borel had the specific intent to

collaborate in that embezzlement.

2. Agency

Borel also argues that there was insufficient evidence to

prove that he was an "agent" of ACHS for purposes of 18 U.S.C. § 666.

As we explained above, § 666 has been given a wide scope, to include

all employees "from the lowest clerk to the highest administrator."

8 Borel argues, in part, that he cannot be convicted under § 666 for
embezzlement from Octagon, because Octagon is not an entity that
received federal funds. We need not address this argument because we
find that the evidence is sufficient to prove that Borel embezzled, or
aided and abetted embezzlement, from ACHS (which undisputably is an
entity that received federal funds).

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United States v. Brann, 990 F.2d 98, 101 (3d Cir. 1993). Borel argues

inconsistently as to whether he was an employee of ACHS at the time of

the embezzlement for which he was charged (September 24 -October 1,

1992). At times, he admits that he was a "mere employee" of ACHS,

which would make him an agent pursuant to the statutory definition. 18

U.S.C. § 666(d)(1). Alternatively, he argues that the contract between

ACHS and Octagon transferred his services so that he became an employee

of Octagon and not an employee of ACHS. Corcino testified – and Borel

does not challenge – that under the ACHS-Octagon contract, ACHS

employees (such as Borel) would be available to Octagon but would

remain employed and paid by ACHS for six months after the contract was

executed. After those six months had passed, the employees would

become Octagon employees, and be paid by Octagon. The record indicates

that Octagon was incorporated on April 30, 1992, and that the contract

with ACHS was executed on June 1, 1992. Using either date, the

embezzlement occurred before the six-month window ended, while Borel

was still employed by ACHS. The jury therefore had sufficient evidence

to conclude beyond a reasonable doubt that Borel was an employee, and

therefore a § 666(d)(1) agent, of ACHS at the time of the embezzlement.

II. Evidentiary Challenges

Sotomayor makes three claims that certain evidence should not

have been admitted. We review the district court's evidentiary rulings

for abuse of discretion. United States v. Mojica-Báez, 229 F.3d 292,

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300 (1st Cir. 2000). Erroneous rulings not of a constitutional

magnitude are harmless if it is highly probable that the error did not

contribute to the verdict. United States v. Tse, 135 F.3d 200, 209-10

(1st Cir. 1998).

A. The Testimony of the FBI Agent

During direct examination, Sotomayor's counsel asked

Sotomayor why she had referred to the federal agents in a negative

manner during prior testimony. Sotomayor responded that "[her] house

was visited [by agents] several times," and that an FBI agent had taken

her mother "out of bed by striking her." The prosecution immediately

objected, noting that no evidence of police brutality had been

introduced, claiming that no such brutality had occurred, and

suggesting that Sotomayor was attempting to prejudice the jury in her

favor. In response, the court indicated that it would allow the

prosecution to call the federal agents as witnesses in order to clarify

for the jury whether any police brutality had occurred.

Sotomayor claims that the court's persistence in ensuring

that her testimony would be rebutted by federal agents amounted to the

court calling a witness to impeach her; she argues that this action was

so prejudicial that it warrants reversal of her conviction.9 Even if

9 Sotomayor focuses on the court's use of the word "insist" in its
statement that "[it is] insisting, for the sake of clearing the matter,
that you bring the agents involved in your rebuttal." In the context
of the colloquy, however, it is clear that the court was only insisting
that some response be made to Sotomayor's provocative and unsupported

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the district court erred in soliciting the testimony of the FBI agent,

any such error was harmless. This was one short incident in a fifty-

eight day jury trial. Cf. United States v. Filani, 74 F.3d 378, 386

(2d Cir. 1996) ("[I]n reviewing the trial transcript we must take care

not to focus on isolated episodes, but to assess the trial court's

inquiries in light of the record as a whole."). Furthermore, the

agent's testimony was on a minor matter collateral to the issue of

Sotomayor's guilt. Lastly, Sotomayor's testimony had already been

impeached at length by extensive evidence that she had committed the

crimes for which she was charged, including the crime of witness

tampering. It is highly probable that any error here did not

contribute to the verdict. Tse, 135 F.3d at 209-10.

B. Recorded Conversations

At trial, Sotomayor objected to the introduction of three

conversations recorded with the consent of Sotomayor's housekeeper,

Josefa Navarro.10 The district court ruled that the recorded

statements, and that it was only the defense's refusal to enter an
appropriate stipulation that mandated the calling of a rebuttal
witness.
10These included a telephone conversation between Navarro and co-
conspirator Milagros García León (who pled guilty to witness
tampering), a telephone conversation between Navarro and Sotomayor, and
a face-to-face conversation among Navarro, García, and Sotomayor.

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conversations were admissible in full as statements against penal

interest by an unavailable witness, Fed. R. Evid. 804(b)(3), and party

admissions, Fed. R. Evid. 801(d)(2)(A). On appeal, Sotomayor

challenges only the admission of García's statements as a violation of

the Confrontation Clause of the Sixth Amendment. Bruton v. United

States, 391 U.S. 123 (1968). This Court has held that a Bruton error

occurs "where the codefendant's statement 'expressly implicates' the

defendant, leaving no doubt that [the statement] would prove

'powerfully incriminating.'" United States v. Smith, 46 F.3d 1223,

1228 (1st Cir. 1995) (quoting Bruton, 391 U.S. at 124 n.1) (internal

quotations omitted). No Bruton error occurs when the statements are

only incriminating because they have been "'linked with evidence

introduced at trial.'" Id. (quoting Richardson v. Marsh, 481 U.S. 200,

208 (1987)). In other words, the Confrontation Clause permits "out of

court statements [which] neither name nor impugn [the defendant]

directly, and thus cannot be supposed to have implanted in the jurors'

minds the kinds of powerfully incriminating impressions against which

Bruton protects." United States v. Limberopolous, 26 F.3d 245, 253

(1st Cir. 1994). We have scrutinized the passages deemed prejudicial

by Sotomayor and found that García's statements about guiding Navarro's

future testimony concerned only a list of work duties Navarro claimed

to have performed for ACHS. Sotomayor's objection is a tortuous one:

such a list of duties, being an imperfect description, put pressure on

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her to testify. This falls far short of indicating how the statements

either "expressly implicated" her or were "powerfully incriminating."

Our careful review of the record provides no additional support for her

claim. The district court therefore did not abuse its discretion in

admitting the recorded conversations.

C. Testimony of Fernández and Granados Navedo

On direct examination, Sotomayor testified that she had never

been "involved with [Corcino or Kourí] in a scheme to divert [ACHS]

checks for personal or political favors." The district court allowed

the Government to impeach this testimony by introducing evidence that,

on a prior occasion in 1988, Sotomayor had directed Antonio Fernández

to purchase an expensive video camera for use in Granados Navedo's

campaign,11 and that in order for Fernández to be repaid, he had been

asked to endorse a check in excess of what he was owed. The court then

issued a limiting instruction that the evidence could only be used for

impeachment purposes.12 Sotomayor suggests that the evidence in

question did not aim to impeach her direct testimony but her cross, and

that the district court erred in not excluding it as inadmissible

extrinsic evidence of a prior bad act. Fed. R. Evid. 404(b). Because

11At the time of the incident, Fernández was an advertising contractor
for ACHS. Granados Navedo was a candidate for Mayor of San Juan.
12The Government had also sought admission pursuant to Fed. R. Evid.
404(b), as probative of intent and absence of mistake. The court
denied this request.

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we see no abuse of discretion in the court's finding that Sotomayor

opened the door during her direct testimony, we need not address the

Rule 404(b) alternative, which was not relied on by the district court.

When a defendant has, on direct examination, made a general

denial of engaging in conduct material to the case, the prosecution may

impeach that testimony by proving that the defendant did engage in that

conduct on a prior occasion. United States v. Cudlitz, 72 F.3d 992,

996 (1st Cir. 1996) (citing United States v. Havens, 446 U.S. 620, 627

(1980); United States v. Pérez-Pérez, 72 F.3d 224, 227 (1st Cir.

1995)). Here, on direct examination, Sotomayor denied using ACHS funds

to make political contributions. The testimony of Fernández and

Granados Navedo acted to impeach that denial. The district court,

therefore, did not abuse its discretion by admitting that evidence.

III. Kourí's Sixth Amendment Claim

Appellant Kourí premises a Sixth Amendment ineffective

assistance of counsel claim on the bizarre circumstances associated

with Ornelas's recantation of her defense testimony and subsequent

testimony for the prosecution. Specifically, he argues that various

conflicts of interest faced by Attorney Daniels during the cross-

examination of Ornelas deprived him of his right to effective counsel.

Cuyler v. Sullivan, 446 U.S. 335, 348 (1980) (conflict of interest may

deprive defendant of effective representation). He also suggests that

the district court inadequately inquired into the potential conflicts,

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thus triggering automatic reversal. United States v. Levy, 25 F.3d

146, 154 (2d Cir. 1994). Although claims of ineffective assistance

must generally be reserved for collateral proceedings under 18 U.S.C.

§ 2255, we find the record here "sufficiently developed to allow

reasoned consideration" of this claim on direct appeal. United States

v. Natanel, 938 F.2d 302, 309 (1st Cir. 1991). We present the factual

background for this claim at some length below.

A. The Facts

On May 3, 1999, Ornelas testified by video-conference from

Mexico City as a defense witness. Her testimony sought to establish

that the payments made to Fundación Panamericana, of which she was the

director, were legitimate payments for services rendered to ACHS.

Daniels was scheduled to examine Ornelas on May 4, 1999. When Daniels

met with Ornelas early that morning to discuss her testimony, she

indicated that her testimony of the previous day was perjurious, and

that certain documentation supporting that testimony had been back-

dated or fabricated. She did not apparently suggest at that time that

either Kourí or Attorney Cerezo were involved in the fraud, however.

As a result, Cerezo and Daniels informed the district court that

Ornelas had elected to end her testimony. Daniels told the court that

"serious ethical considerations" prevented Ornelas from testifying

further; Cerezo noted that there was a "small discrepancy" in the

facts, and also told the court that Ornelas had ceased her testimony

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because her lawyers refused to recognize the authority of the U.S.

Attorney in Mexico. The court accepted counsel's explanations,

informed the jury that Ornelas would not be able to testify further at

that time, and reserved its decision as to the appropriate remedy

(e.g., striking Ornelas's previous testimony) for another day.

On May 29, 1999, Ornelas met with representatives of the U.S.

Attorney's Office in Miami, Florida. She informed the United States

that her May 3 video-conference testimony had been false. Ornelas then

said that Kourí had encouraged her to testify falsely by telling her

that she would go to jail if she told the truth (and exposed his money-

laundering scheme). Ornelas also implicated Cerezo in the scheme to

provide false testimony. The United States subsequently filed an ex

parte informative motion alerting the district court to Ornelas's

perjury and proposed recantation, and suggesting that the court might

need a waiver from Kourí to allow Cerezo's continued representation of

him. The ex parte motion did not implicate Daniels in any respect.

On June 7, 1999, before Ornelas testified for the

prosecution, the district court met with counsel to determine the

appropriate course of action to avoid a mistrial. The court concluded

that there was no per se Sixth Amendment violation requiring Cerezo's

automatic withdrawal, because the allegation of witness tampering did

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not implicate Cerezo in the conduct for which Kourí was charged.13

However, the court determined that Cerezo would not be able to continue

his representation of Kourí unless Kourí provided a waiver, and decided

to hold a hearing on this issue.14 At the hearing, the district court

explained Cerezo's potential conflict of interest to Kourí, and asked

Kourí if he wanted Cerezo to continue to represent him. Kourí answered

in the affirmative. 15 Kourí also said that he wished to have Daniels

continue to represent him. The court further explained that Daniels

would conduct the cross-examination of Ornelas, and Kourí assented to

this approach.16

The Government then commenced its voir dire examination of

Ornelas, at which she recanted her earlier testimony and detailed

Kourí's involvement in the fabrication of that testimony. The

13See United States v. Marcano-García, 622 F.2d 12, 17 (1st Cir. 1980)
(withdrawal required when counsel implicated in the crime for which his
client is on trial).
14 The court indicated that the hearing would resemble a Rule 44(c)
hearing, which is mandatory when counsel represents more than one
defendant. Fed. R. Crim. P. 44(c). Here, of course, Cerezo and
Daniels represented only Kourí, and thus Rule 44(c) was not applicable.
15The Court: "So, for the time being, you are waiving any conflict of
interest between you and Mr. Cerezo."

The Defendant: "Yes."
16The Court: "You don't have any problem with Mr. Daniels being in
charge of the examination, at least this afternoon . . . ."

The Defendant: "Not at all. . . . I have no problem with that."

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Government also introduced documents providing evidence of the

fabrication and supporting Ornelas's revised testimony.

Prior to cross-examination, the Government proffered that

Ornelas would testify that Cerezo had suborned perjury. Cerezo denied

this charge. The district court then allowed the Government to conduct

a direct examination of Ornelas, in chambers, solely with respect to

the involvement of Cerezo and Daniels in the fabrication of testimony.

At that point, Ornelas testified that Cerezo and Daniels were unaware

of Kourí's scheme to fabricate testimony, and that Kourí had expressed

dismay that his lawyers might find out about the scheme. She indicated

that all of Kourí's explicit instructions to her on how to testify had

occurred at private meetings between her and Kourí without either

Cerezo or Daniels being present. Ornelas also testified that, to the

extent she had told the U.S. Attorney that Cerezo was involved, she had

mistakenly named Cerezo instead of Kourí.

Ornelas then repeated her recantation before the jury, after

which Daniels cross-examined her in open court. On cross, Ornelas

reviewed some of her prior testimony as to particular events. She also

testified on cross-examination that Kourí had never asked her to cover

up his fraudulent acts at the time that they occurred, but had only

sought her help in back-dating documents at the time of trial.

-22-
Finally, Daniels asked Ornelas if any of Kourí's attorneys had been

involved in the fabrication of evidence; she again answered no.17

B. Analysis

Kourí does not contend that the potential conflict of

interest with Cerezo caused a Sixth Amendment violation. However, he

does suggest that Daniels's cross-examination of Ornelas was so plagued

by conflicts of interest as to constitute ineffective assistance of

counsel. Kourí points to three specific conflicts: first, that Daniels

had an incentive to avoid implicating himself in the perjury; second,

that Daniels was a material witness to the perjury; and third, that

although not conflicted himself, Daniels relied on the counsel of

conflict-ridden Cerezo. We may immediately discount the third claim of

conflict: Kourí had waived any Sixth Amendment conflict of interest

claim with respect to Cerezo. This waiver cannot be erased by a claim

against Daniels which is premised on Cerezo's conflicts. Moreover,

Kourí has adduced no evidence that Daniels relied on Cerezo in cross-

examining Ornelas, nor that Daniels was unprepared to conduct that

cross-examination. The instant case is thus significantly different

from that relied upon by Kourí, United States v. Tatum, 943 F.2d 370,

375-78 (4th Cir. 1991), in which a new trial was required when there

17 Daniels had expressed the worry that the jury would conclude that
he and Cerezo had cooperated in Kourí's scheme to defraud the court,
and that their representation of Kourí would be irreparably harmed by
that conclusion. The court suggested that he ask Ornelas this question
in order to clarify counsel's non-involvement during cross-examination.

-23-
was an actual, un-waived conflict of interest on the part of lead

counsel, and co-counsel had heavily relied on lead counsel during the

trial.

Kourí raised no objection at trial to Daniels's cross-

examination of Ornelas; in fact, he endorsed such representation at the

hearing where he waived his conflict with Cerezo.18 Where a defendant,

having knowledge of the circumstances giving rise to an arguable

conflict on his lawyer's part, fails to object to the lawyer's

continued representation despite having been afforded the opportunity

to do so, he must demonstrate that an actual conflict of interest

adversely affected his lawyer's performance in order to establish a per

se Sixth Amendment violation. United States v. Soldevila-López, 17

F.3d 480, 486 (1st Cir. 1994); United States v. Rodríguez Rodríguez,

929 F.2d 747, 749 (1st Cir. 1991). To show an actual conflict of

interest, the defendant must show that "the lawyer could have pursued

a plausible alternative defense strategy or tactic" and that "the

alternative strategy or tactic was inherently in conflict with or not

undertaken due to the attorney's other interests or loyalties."

Soldevila-López, 17 F.3d at 486 (citing Guaraldi v. Cunningham, 819

F.2d 15, 17 (1st Cir. 1987)). Kourí's claim that Daniels should

have cross-examined Ornelas at greater length and in greater detail

18Because we find that there was no actual conflict of interest here,
we need not determine whether Kourí's assent to Daniels's cross-
examination of Ornelas was a sufficient waiver.

-24-
does not meet this standard for several reasons. First, there is no

evidence of Daniels's conflict. Kourí, Ornelas, and the U.S. Attorney

had repeatedly maintained that Daniels was not involved in the

subornation of perjury. Kourí does not even now suggest that Daniels

suborned perjury, only that Daniels feared being implicated in the

fabrication. Given the overwhelming evidence that Daniels was not

involved in the plot to fabricate evidence and suborn perjury, we see

no reason for him to have altered his cross-examination to avoid being

implicated. Second, even if Daniels did harbor some fear that Ornelas

would implicate him in the fabrication, it is not likely that a cross-

examination designed to discredit Ornelas's rebuttal testimony would

have caused her to implicate him in the matter. Simply put, Kourí has

not adequately explained how the alleged conflict might have affected

Daniels's course of action. Third, although a more aggressive cross-

examination of Ornelas may have been a "plausible" strategy, it was

probably not superior to Daniels's approach: in fact, such a low-key

cross-examination served Kourí's interests in minimizing the

prejudicial effect of the perjury and witness tampering (however

difficult to accomplish). Given the number of documents introduced

supporting Ornelas's rebuttal testimony, it would have been foolhardy

for Daniels to have pursued the strategy Kourí now suggests; i.e., to

have attempted to discredit the rebuttal. Cf. United States v.

-25-
Buculavas, 98 F.3d 652, 656-67 (1st Cir. 1996) (proposed alternative

strategy would have resulted in "cross-examinational meat grinder").

As for the possibility that Daniels might have been called

as a material witness to Ornelas's perjury, this is little more than

speculation on Kourí's part. See Soldevila-López, 17 F.3d at 487

("theoretical or merely speculative conflict" insufficient for Sixth

Amendment violation) (internal quotations omitted). Not only was

Daniels never called as a witness, but the Government never suggested

that he would be called. Moreover, Kourí has not alleged how any

theoretical possibility that Daniels might be called as a witness

affected his behavior as counsel. Cf. United States v. Kliti, 156 F.3d

150, 155 (2d Cir. 1998) (hearing necessary only when a defendant would

forgo important testimony by his attorney because of continued

representation by that attorney). Kourí has not suggested that he

needed Daniels to testify on his behalf, nor that Daniels's continued

representation prevented any such testimony.

Finally, we cannot agree that the district court failed to

conduct an appropriate inquiry as to Daniels's potential conflicts.

Kourí suggests that he was entitled to a Foster hearing, at which the

court would have explained any potential conflicts and sought an

explicit waiver from the defendant. See United States v. Foster, 469

F.2d 1, 4 (1st Cir. 1972). However, this Court has said that the

circumstances in which a Foster hearing is required are "narrow"; i.e.,

-26-
only in "criminal prosecutions where one attorney speaks for two or

more defendants." Buculavas, 98 F.3d at 655-56. Such was not the case

here. Cerezo and Daniels represented only Kourí. Moreover, as we

detailed above, the district court undertook a sufficiently extensive

inquiry into the circumstances of the fabrication, after which it was

satisfied that Daniels was not implicated in the subornation of

perjury, and thus had no conflict with Kourí. See id. at 657

(relevance of determination by trial judge that no conflict existed);

see also Brien v. United States, 695 F.2d 10, 15 n.10 (1st Cir. 1982)

(automatic reversal only required when actual conflict discovered, even

if trial court fails to conduct full inquiry).

IV. Spillover Prejudice

Appellants Borel and Sotomayor were not aware that Ornelas

would recant her testimony until the Government called her as a

rebuttal witness. At that point, they were made aware of the

Government's ex parte motion, which detailed Ornelas's proposed

testimony. They did not object, move for a severance, or move for a

mistrial at that time. However, after Ornelas testified, Borel and

Sotomayor moved for a mid-trial severance or, in the alternative, for

a mistrial. The district court refused to grant either motion, but did

give the jury a limiting instruction indicating that it should not hold

Kourí's shenanigans against the other two defendants. The court also

allowed counsel to elicit from Ornelas that neither Borel nor Sotomayor

-27-
was involved in, or even aware of, the plot to fabricate testimony.

Nonetheless, Borel and Sotomayor now argue that the prejudice resulting

from the fabrication and recantation was so severe as to make the

court's refusal to grant a mistrial or to sever proceedings in mid-

trial an abuse of discretion.

A. Severance

There is a strong preference in the federal system for

jointly trying defendants involved in related crimes. Zafiro v. United

States, 506 U.S. 534, 537 (1993). Separate trials are not warranted

unless "there is a serious risk that a joint trial would compromise a

specific trial right of one of the defendants or prevent the jury from

making a reliable judgment about guilt or innocence." Id. at 539. The

trial court is afforded "considerable leeway" in determining whether

severance is appropriate, and we will overturn that determination "only

if that wide discretion is plainly abused." United States v. Pierro,

32 F.3d 611, 616 (1st Cir. 1994) (internal quotations omitted). A mid-

trial severance is therefore an "extraordinary measure, warranted in

very few cases." United States v. Fisher, 106 F.3d 622, 632 (5th Cir.

1997).

Borel and Sotomayor suggest that the revelation of Kourí's

extensive plot to fabricate testimony "spilled over" so that the jury

viewed them in a negative light. For a claim of spillover prejudice to

prevail, "a defendant must prove prejudice so pervasive that a

-28-
miscarriage of justice looms." Pierro, 32 F.3d at 615 (citing United

States v. Sabatino, 943 F.2d 94, 96-97 (1st Cir. 1991)). That quantum

of prejudice did not exist here. Neither Borel nor Sotomayor were

implicated in the scheme to fabricate testimony; in fact, testimony was

elicited to show that they had no knowledge of the scheme. See id.

("[N]othing implicated appellant in the peccadilloes."). At any rate,

the trial court provided limiting instructions to account for the

unusual situation; instructions that we must presume were heeded by the

jury. Id. at 616. Moreover, the fact that Kourí was impeached by

Ornelas's testimony is not prejudicial toward the other defendants.

United States v. La Torre, 639 F.2d 245, 249 (5th Cir. Unit A Mar.

1981) (impeachment of co-defendant with prior perjury conviction);

United States v. Shorter, 54 F.3d 1248, 1259 (7th Cir. 1995). The fact

that the jury was more likely to find Kourí guilty after learning of

his actions is also not prejudicial with respect to the other

appellants. Cf. United States v. Martin, 964 F.2d 714, 717 (7th Cir.

1992) (co-defendant's entrance of guilty plea during trial). In fact,

the only example cited by appellants in which the potential for

spillover prejudice required mid-trial severance occurred where the

prejudice resulted from evidence later ruled inadmissible. Fisher, 106

F.3d at 631-32. Such is not the case here. All of Ornelas's testimony

was admissible.

-29-
 The fact that Kourí's scheme was disruptive is also

insufficient to mandate severance, absent the demonstration of "special

prejudice of a kind or to a degree not susceptible to remediation by

prompt curative instructions." Pierro, 32 F.3d at 616; see also United

States v. Rocha, 916 F.2d 219, 230 (5th Cir. 1991) (jury instruction

sufficient to remedy disturbance caused by co-defendant); United States

v. Tashjian, 660 F.2d 829, 838 (1st Cir. 1981) (same). Because the

district court retained firm control of the trial, the disruptive

effect of the recantation was limited and not prejudicial.

Finally, appellants argue that they were unfairly prejudiced

because they had premised their defenses on Ornelas's original promised

testimony, and they had no way of knowing that the proposed testimony

was a fabrication. As for Borel, this argument is without merit, as

Ornelas's testimony was essentially unrelated to the crime for which he

was charged, or to his conviction. Although Sotomayor was more

extensively implicated by Ornelas's revised testimony, she also was in

a position to know that the proposed testimony was perjurious. She was

not bound to offer a defense consistent with Kourí's; this Court has

allowed co-defendants to offer inconsistent defenses without requiring

severance. United States v. Drougas, 748 F.2d 8, 19 (1st Cir. 1984).

Moreover, she had ample opportunity to cross-examine Ornelas in order

to re-establish her defense. And lastly, Sotomayor has not suggested

-30-
how she would have conducted her defense differently were it not for

Ornelas's testimony and recantation.

B. Mistrial

For much the same reasons, the district court's refusal to

grant a mistrial was not an abuse of discretion. First, limiting

instructions are ordinarily an appropriate method of preempting a

mistrial. United States v. Sepúlveda, 15 F.3d 1161, 1184-85 (1st Cir.

1993). Appellants did not object to the court's choice of jury

instructions, and they have not challenged it here. Second, "swiftness

in judicial response is an important element in alleviating prejudice

once the jury has been exposed to improper testimony." Id. Here, the

district court immediately suggested that Ornelas be asked a question

allowing her to testify that neither Sotomayor nor Borel were involved

in the plan to fabricate testimony. The court then offered a limiting

instruction. There was no time for "sores to fester." Id. at 1185.

Finally, we must presume that jurors are able and willing to heed

limiting instructions. Id. Appellants have cited no reason why the

jury would be unable to do so here.

One final note. We cannot ignore appellants' delay in

bringing their motion for such extraordinary remedies. Although they

became aware of the contents of the ex parte motion prior to Ornelas's

testimony, and thus could anticipate what that testimony would entail,

they waited to object until after Ornelas had testified. Whatever

-31-
appellants' reason for waiting to object, we cannot be overly generous

in remediation. Tashjian, 660 F.2d at 838. Appellants should have

sought severance at the earliest opportunity, not after the fireworks

had been set off.

V. Jury Instructions

The statutory definition of "agent" in 18 U.S.C. § 666

defines the term as "a person authorized to act on behalf of another

person . . . , and, in the case of an organization . . . , includ[ing]

a servant . . . [,] employee, . . . , partner, director, officer,

manager, and representative."

The district court, having concluded that it was appropriate

to expand slightly on the definition of agency provided in § 666, gave

the following instruction:

The term "agent" is defined in the statute as a
person authorized to act on behalf of another
person or a government and, in the case of an
organization or government, includes a servant or
employee, and a partner, director, officer,
manager, and representative. The term "agent"
means any employee, officer or director of
Advanced Community Health Services and/or the San
Juan AIDS Institute. The term "agent" also
includes a person authorized by another to act
for or in place of him, or one entrusted with
another's business. The term "agent" also
includes one who the principal, either
intentionally or by want of ordinary care,
induces third persons to believe to be his agent,
though he has not, either expressly or by
implication, conferred authority on him. A
person who, whether or not authorized, reasonably
appears to third persons, because of

-32-
 manifestations of another, to be authorized to
act as agent for such other, is also an agent.

Basically, the district court instructed the jury that a person with

"apparent authority" could be an agent for purposes of § 666. Both

Borel and Kourí argue that the statutory definition of "agent" excludes

persons with only apparent authority, and that the jury instruction was

therefore erroneous.

Because neither defendant objected to the instruction in

accordance with Federal Rule of Criminal Procedure 30,19 we review for

plain error. United States v. Randazzo, 80 F.3d 623, 631 (1st Cir.

1996). For an instruction to be in plain error, it must have "affected

substantial rights," id. at 632, meaning that it must probably have

affected the outcome of the trial, United States v. Romano, 137 F.3d

677, 682 (1st Cir. 1998). Moreover, it must be an error of the type

that causes a "miscarriage of justice, . . . seriously affect[s] the

integrity [of the trial,] or impair[s] 'public confidence' in the

proceedings." Randazzo, 80 F.3d at 632 (quoting United States v.

Olano, 507 U.S. 725, 736-37 (1993)).

We cannot say that there was plain error here. Even if the

district court's conclusion as to the scope of 18 U.S.C. § 666(d)(1)

was incorrect, sufficient evidence was introduced to convict both Borel

19 "No party may assign as error any portion of the charge or omission
therefrom unless that party objects thereto before the jury retires to
consider its verdict, stating distinctly the matter to which that party
objects and the grounds of the objection." Fed. R. Crim. P. 30.

-33-
and Kourí without any reliance on the "apparent authority" segment of

the jury instruction. As we explained above, Borel was an employee of

ACHS, and was thus clearly included in the statutory definition of

"agent" provided by the district court. Although Kourí was technically

a consultant of ACHS without a formal position, the evidence indicated

that ACHS employees reported directly to him and that he had the

responsibilities and authority of manager, director, or representative

of ACHS. Cf. United States v. Phillips, 219 F.3d at 423 n.3 (Garza,

J., dissenting) ("the expansive statutory definition of 'agent' . . .

recognizes that an individual can affect agency funds despite a lack of

power to authorize their direct disbursement"); see also Salinas, 522

U.S. at 57-60 (scope of § 666 to be construed broadly); United States

v. Neder, 527 U.S. 1, 18 (1999) (affirming convictions in spite of

instructional error where the evidence made it clear beyond a

reasonable doubt that a rational jury would have found defendants

guilty even if properly instructed). In all likelihood, the jury would

have convicted Kourí even without the expanded instruction. Thus even

if the instruction was erroneous, it did not affect either appellant's

substantial rights, and was not plain error.

VI. Sentencing

Kourí challenges the two-level enhancement to his sentence

for an abuse of a position of trust. U.S.S.G. § 3B1.3. His primary

argument is that he could not have abused a position of trust because,

-34-
as an outside consultant to ACHS, he lacked actual decision-making

power and other individuals with discretionary power could have ignored

his counsel. In determining the appropriateness of a sentence

enhancement, we determine the legal meaning of the Guideline de novo,

but review the district court's application of the Guideline to the

facts at hand for clear error. United States v. Tardiff, 969 F.2d

1283, 1289 (1st Cir. 1992). This Court has already determined that a

defendant need not legally occupy a formal "position of trust," nor

have "legal control" of an organization, for the enhancement to apply.

United States v. Newman, 49 F.3d 1, 8-9 (1st Cir. 1995). De facto

control, which allows the defendant to exercise the type of discretion

contemplated by the enhancement, suffices. Id. The district court

found that Kourí was for all purposes the "heart and soul" of ACHS,

i.e., that he controlled ACHS finances. The court also noted Kourí's

role in making decisions for corporations that had direct business

relationships with ACHS. In short, the district court found that Kourí

enjoyed the "professional or managerial discretion" contemplated by the

Guideline. U.S.S.G. § 3B1.3 cmt. n.1. As the record amply supports

this conclusion, we can find no clear error here.

VII. Evidence Received from the Office of the Comptroller

Appellants sought suppression of all evidence obtained by the

United States from the Office of the Comptroller General of Puerto

-35-
Rico, based on the fact that the Comptroller had released that evidence

to the FBI in contravention of Puerto Rico law. The district court

considered the constitutional and statutory framework governing the

Office of the Comptroller, and concluded that these laws and

regulations did not prohibit such a referral. United States v. Kourí-

Pérez, No. 97-091 (JAF) (D.P.R. Apr. 22, 1998) (memorandum order). We

need not determine whether the disclosure by the Office of the

Comptroller violated Puerto Rico law, for "it is well settled that in

federal prosecutions evidence admissible under federal law cannot be

excluded because it would be inadmissible under state law." United

States v. Santana, 895 F.2d 850, 853 (1st Cir. 1990) (quoting United

States v. Quiñones, 758 F.2d 40, 43 (1st Cir. 1985)) (internal

quotation marks omitted). Appellants have suggested no federal law or

federal constitutional right that was violated here.

VIII. The Interim United States Attorney

Appellants claim that the unusual tenure of interim U.S.

Attorney Guillermo Gil, who has acted in an interim capacity for over

seven years, violates the Appointments Clause and constitutional

principles of separation of powers, and is unconstitutional as applied

to these appellants. This Court, however, has already held that "the

interim United States attorney [for the District of Puerto Rico] holds

his office lawfully." United States v. Hilario, 218 F.3d 19, 21 (1st

Cir.), cert. denied, 121 S. Ct. 572 (2000).

-36-
 CONCLUSION

For the reasons herein, the convictions and sentences of

Yamil Kourí-Pérez, Jeannette Sotomayor-Vázquez and Armando Borel-

Barreiro are upheld, and the challenged judgments of the district court

are affirmed.

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