United States Court of Appeals
For the First Circuit
Nos. 03-2544
04-1791
UNITED STATES,
Appellant,
v.
MARIA DE LOS ANGELES RIVERA RANGEL, A/K/A ANGIE,
Defendant, Appellee.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Lynch, Circuit Judge,
Stahl, Senior Circuit Judge,
and Howard, Circuit Judge.
Kathleen A. Felton, Attorney, with whom H.S. Garcia, United
States Attorney, Guillermo Gil, Assistant United States Attorney,
and Maritza Gonzalez de Miranda, Assistant United States Attorney,
U.S. Department of Justice, were on brief, for appellant.
Ignacio Fernández de Lahongrais, with whom Edgar Vega Pabon
was on brief, for appellee.
February 8, 2005
STAHL, Senior Circuit Judge. Appellee Maria de los
Angeles Rivera Rangel ("Rivera") used her position as an executive
assistant to the Governor of Puerto Rico to help four contractors--
Jose Ventura Asilis ("Ventura"), Angel Ocasio Ramos ("Ocasio"),
Joaquin Arbona ("Arbona"), and Edwin Loubriel ("Loubriel")--gain
access to government officials and obtain expedited treatment of
their government business. The contractors paid Rivera for her
assistance.
As a result of these arrangements, Rivera was charged
with one count of conspiracy to interfere with commerce by
extortion induced by fear of economic harm and under color of
official right, in violation of 18 U.S.C. § 1951 ("the Hobbs Act"),
and one count of aiding and abetting the underlying offense, in
violation of the Hobbs Act and 18 U.S.C. § 2.1 Rivera was tried
before a jury and convicted on both counts. She then moved for a
judgment of acquittal or a new trial. The district court granted
Rivera a judgment of acquittal and, if that judgment were reversed
on appeal, a new trial. The government now appeals those rulings.
We reverse and remand with the instruction that the jury verdict be
reinstated and for proceedings consistent with this opinion.
1
According to 18 U.S.C. § 2(a), "Whoever commits an offense
against the United States or aids, abets, counsels, commands,
induces or procures its commission, is punishable as a principal."
-2-
I. Background
We present the relevant facts in the light most favorable
to the verdict. See United States v. Llinas, 373 F.3d 26, 28 (1st
Cir. 2004). The facts are derived from testimony given during
Rivera's trial.
In 1992, Ventura, a contractor who provided services to
the government of Puerto Rico,2 met Ocasio, who at that time was
the Deputy Chief of Staff to the Governor of Puerto Rico. Ocasio
told Ventura that if he needed any help with his business dealings
with the government, Ocasio would be "at [his] service."
Thereafter, Ventura would call Ocasio whenever he had difficulty
obtaining government permits and Ocasio would arrange meetings
between Ventura and those government officials who had authority to
issue the permits Ventura desired. In return, Ventura paid Ocasio
$30,000 to $35,000 per year. This arrangement continued until
Ocasio left his government post in 1995 and set up a private
consulting business that provided services to the government of
Puerto Rico. At that point, Ventura concluded that, to further his
business interests, he would need the assistance of another
government insider.
Thus, in 1996, acting on the suggestion of Loubriel, a
fellow contractor and friend, Ventura sought out Rivera, an
2
Ventura purchased materials for his various construction
projects from the United States mainland.
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executive assistant to the Governor of Puerto Rico. Rivera offered
to help Ventura gain access to government officials with authority
to issue the permits his projects required. On several occasions
in 1997, Ventura asked for Rivera's help, and she responded by
calling government officials and arranging meetings between the
officials and Ventura or asking the officials "to try to help [him]
out." Government officials were receptive to Rivera because, as
one official explained, "she was the assistant to the Governor, .
. . and [they] expect[ed] that all the calls that she made . . .
were on behalf of the Governor." Initially, Rivera made no demand
for payment from Ventura for her assistance.
Then, one evening in early 1998, Ventura ran into Rivera
at a supermarket across the street from his office and invited her
back to his office. While there, Rivera complained to Ventura
"that she had too many expenses and that her salary was never
enough for her to be able to meet [her expenses]." Rivera said she
hoped "some friends could help her out." Ventura testified that he
interpreted Rivera's statements as a demand that she be paid for
her continued assistance. Ventura said that he agreed to pay
Rivera between $3,000 and $5,000 per month because he
realized that having received a proposition
from someone who had so much influence and so
much power, to deny it would be putting at
risk a lot of [his] ability to generate
business. . . . [W]ith all the influence and
power that she had, she had the power to help
[him] and likewise she could [have] cause[d
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him] harm because she [had] access to all of
the offices of the government.3
Soon thereafter, Ventura and Rivera began a romantic
relationship, which lasted only a few months. That relationship
had no impact on Ventura and Rivera's "business" arrangement.
In early 1999, Ventura met with Arbona, Loubriel, and
Ocasio. At that time, Rivera was independently helping all four
contractors.4 Arbona explained to the other three that Rivera had
demanded that she be paid $6,000 per month for her assistance. The
contractors each agreed to pay Rivera $1,500 per month.5 Ventura
later asked Rivera whether he could deduct $1,500 from the amount
he had previously agreed to pay her each month. Rivera refused,
and from then on, Ventura paid her $4,500 to $6,500 per month.
3
Ventura obtained the money he used to pay Rivera by inflating
the invoices he sent to the government in connection with his
government contracts.
4
In addition to setting up meetings between the contractors
and government officials, Rivera would also call officials to
expedite matters for the contractors, including the payment of
invoices and the relaxation of construction requirements.
5
Ocasio, who by 1999 had already been paying Rivera on a
regular basis for her assistance for several years, explained that
he did so because, after he left his government position, he did
not have influence over government officials and she wielded
tremendous influence. In fact, he stated that "[a]ny phone call
coming in from her was construed as having the support of [the
Governor] . . . ." Ocasio likened Rivera's power within the
government to that of "a bull dozer . . . that [could] just take
out anything that is [i]n its way," and he testified that she
helped him obtain government contracts by "mak[ing] phone calls to
[government officials] to facilitate the process."
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As a result of these activities, Rivera was charged under
the Hobbs Act with conspiracy to interfere with commerce by
extortion induced by fear of economic harm and under color of
official right, as well as aiding and abetting the underlying
offense. After a jury found Rivera guilty on both counts, she
filed a motion for a judgment of acquittal and, in the alternative,
a new trial. The district court awarded Rivera a judgment of
acquittal and, alternatively, if that judgment were reversed on
appeal, a new trial.
The district court granted the judgment of acquittal
based on its conclusion that, on the evidence produced at trial,
Rivera could not have been found guilty of the charged crimes, as
she could not have been found to have committed extortion. The
district court conditionally awarded Rivera a new trial because it
felt that the government had not presented sufficient evidence to
support the verdict and had violated its obligations under Brady v.
Maryland, 373 U.S. 83 (1963), which requires that the government
disclose all evidence in its possession that is both material and
exculpatory.
The Brady violation was predicated on the government's
alleged failure to disclose a plea agreement it had entered into
with Ocasio. The district court reasoned that Ocasio, who pleaded
guilty shortly before trial, must have entered into a plea
agreement because he met with government prosecutors prior to
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pleading guilty and the government moved for a downward departure
at his sentencing hearing. The district court found the existence
of a plea agreement despite Ocasio's insistence at trial that he
had not entered into any such agreement, and affidavits of the
government's two trial prosecutors and a Federal Bureau of
Investigation ("FBI") agent to that same effect.6
The government now seeks review of the grant of the
judgment of acquittal and the conditional new trial.
II. Judgment of Acquittal
We review the grant of a motion for judgment of acquittal
de novo. See United States v. Hernandez, 146 F.3d 30, 32 (1st Cir.
1998). In reviewing such a grant, we must consider "all the
evidence, direct and circumstantial, in the light most favorable to
the prosecution, drawing all reasonable inferences consistent with
the verdict, and avoiding credibility judgments, to determine
whether a rational jury could have found guilt beyond a reasonable
6
The district court also stated that, in light of the
government's alleged failure to disclose the plea agreement, it was
"very troubled" by an allegation that the government had failed to
disclose a notebook in which Ventura purportedly listed illegal
payments he had made to various government officials. However, the
district court did not base its finding of a Brady violation on
this allegation, and consequently, we need not address it to
resolve this appeal. Nevertheless, we note that even if there were
evidence that the notebook existed and that the government had it
in its possession (and we have been presented with none), that
evidence would not have been sufficient to support a Brady
violation, as the information allegedly contained in the notebook
was cumulative of that which Rivera already possessed. See Conley
v. United States, 323 F.3d 7, 30 (1st Cir. 2003).
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doubt." Llinas, 373 F.3d at 30 (internal quotation marks omitted).
So long as "the guilty verdict finds support in a plausible
rendition of the record," it must be allowed to stand (and the
acquittal must be reversed). United States v. Rivera-Ruiz, 244
F.3d 263, 266 (1st Cir. 2001) (internal quotation marks omitted).
The district court awarded the judgment of acquittal
because it concluded that, on the evidence presented at trial, no
rational jury could have found Rivera guilty of extortion either
through fear of economic loss or under color of official right. We
disagree; the evidence was sufficient to prove extortion under both
theories.
Under the Hobbs Act, "Whoever in any way or degree
obstructs, delays, or affects commerce or the movement of any
article or commodity in commerce, by . . . extortion or attempts or
conspires so to do . . . shall be [punished]." 18 U.S.C. §
1951(a). "[T]he government need only show a realistic probability
of a de minimis effect on interstate commerce[] in order to bring
extortion within the reach of the Hobbs Act." United States v.
Rivera-Medina, 845 F.2d 12, 15 (1st Cir. 1988); see United States
v. Hathaway, 534 F.2d 386, 396 (1st Cir. 1976) ("The Hobbs Act . .
. has . . . been held to reach even those effects which are merely
potential or subtle." (internal quotation marks and citation
omitted)). Extortion is defined as "the obtaining of property from
another, with his consent, induced by wrongful use of . . . fear,
-8-
or under color of official right." 18 U.S.C. § 1951(b)(2). "Fear"
encompasses "fear of economic loss, . . . including the possibility
of lost business opportunities." United States v. Bucci, 839 F.2d
825, 827-28 (1st Cir. 1988) (internal quotation marks and citation
omitted). Thus, an individual commits extortion if he obtains
property from another, with the other's consent, either through
fear of economic loss or under color of official right.
A. Extortion Through Fear of Economic Loss
We first address whether there was sufficient evidence to
prove extortion through fear of economic loss. To establish
extortion through fear of economic loss, the government must "show
that the victim believed that economic loss would result from his
. . . failure to comply with the alleged extortionist's terms, and
that the circumstances . . . rendered that fear reasonable." Id.
at 828; see United States v. Capo, 817 F.2d 947, 951 (2d Cir. 1987)
(en banc) ("[T]he proof need establish that the victim reasonably
believed: first, that the defendant had the power to harm the
victim, and second, that the defendant would exploit that power to
the victim's detriment." (emphasis in original)). Significantly,
the loss feared must be "a particular economic loss, not merely the
loss of a potential benefit." United States v. Edwards, 303 F.3d
606, 635 (5th Cir. 2002); see United States v. Garcia, 907 F.2d
380, 385 (2d Cir. 1990) (reversing an extortion conviction where
the jury was permitted to consider the theory of fear of economic
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loss because the evidence "did not establish that the company acted
out of fear that without these payments it would lose existing
contracts or even opportunities to which it was legally entitled").
We think that the evidence regarding Ventura alone was
sufficient to establish extortion induced by fear of economic loss.
There was ample evidence that Ventura feared that he would suffer
economic loss if he failed to pay Rivera. Ventura testified that
he began paying Rivera $3,000 to $5,000 per month in 1998 because
he feared that if he did not, he "would be putting at risk a lot of
[his] ability to generate business." Ventura believed that "with
all the influence and power that [Rivera] had, she had the power to
help [him] and likewise she could [have] cause[d him] harm." The
fact that Ventura reluctantly agreed to pay Rivera an additional
$1,500 per month in 1999 further supports the finding that Ventura
acted out of a fear of economic loss and that this was "not a
situation . . . in which [Ventura] w[as] merely attempting to
obtain preferential access and thought that, even without the
payments, [he] would have a fair opportunity to [obtain permits]."
Edwards, 303 F.3d at 636; compare United States v. Collins, 78 F.3d
1021, 1030 (6th Cir. 1996) ("[T]he evidence in this case was
sufficient to establish that [the victims] acted out of fear that
without the payments they could lose the opportunity to compete for
government contracts on a level playing field. . . . They paid out
of a fear that unless they paid money to Defendant . . . , they
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would forfeit any potential business opportunity with the
[state]."), with Capo, 817 F.2d at 952-54 (reversing a finding of
extortion through fear of economic loss because the victims did not
act out of fear of the harm the defendants might inflict upon them
if they refused to pay; rather, they were seeking to secure the
defendants' assistance to improve their chances of obtaining jobs).
And, given Rivera's access to, and influence over, the officials
who decided whether to grant the permits Ventura needed, we cannot
say that Ventura's fear was unreasonable.7
B. Extortion Under Color of Official Right
We turn now to the issue of whether the evidence was
sufficient to prove extortion under color of official right. To
7
Although the district court found it significant that Ventura
initiated the meeting that resulted in the monthly payments to
Rivera, that fact was irrelevant to the central issue of whether
there was ample evidence for the jury to conclude that Ventura
reasonably believed that he would suffer economic loss if he
refused to pay Rivera. See Rivera-Medina, 845 F.2d at 14 ("The
fact that [the victim] approached [the extorter] first does not
mean that extortion did not occur."). The district court also
emphasized that Ventura suffered no personal loss as a result of
his arrangement with Rivera because he obtained the money that he
used to pay Rivera by inflating the invoices he sent to the
government in connection with his government contracts. But, that
fact also had no bearing on whether there was sufficient evidence
to support the finding that Ventura paid Rivera to avoid losing the
ability to obtain government permits. In addition, we note that it
is immaterial that Rivera never explicitly threatened Ventura, see
Bucci, 839 F.2d at 828 (holding that it is enough if the victim
"understood the defendant's conduct as an implied threat"), and
that the two had a friendly--and even for a time intimate--
relationship, see United States v. Rastelli, 551 F.2d 902, 905 (2d
Cir. 1977) ("The fact that relations between the victims and the
extorters were often cordial is not inconsistent with extortion."
(internal quotation marks omitted)).
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prove extortion under color of official right, "the Government need
only show that a public official has obtained a payment to which he
was not entitled, knowing that the payment was made in return for
official acts." Evans v. United States, 504 U.S. 255, 268 (1992);
see United States v. Cianci, 378 F.3d 71, 99 (1st Cir. 2004).
The jury could have found that the evidence presented
concerning Ventura was itself sufficient to establish extortion
under color of official right. There is no dispute that Rivera was
a public official8 who obtained payments to which she was not
entitled with the understanding that the payments were made in
return for her assisting Ventura with his government business, that
is, in return for her calling government officials in her official
capacity and requesting that they meet with Ventura or "try to help
[him] out." However, Rivera argues, and the district court
implicitly found, that those calls were not "official acts" and,
thus, she could not have committed extortion under color of
official right. We disagree. Rivera made the calls from her
government office and in her official capacity as executive
assistant to the Governor of Puerto Rico, and therefore, the calls
were official acts.9 Because Rivera was paid to use her official
8
See United States v. Freeman, 6 F.3d 586, 593 (9th Cir. 1993)
("[T]he Hobbs Act reaches anyone who actually exercises official
powers, regardless of whether those powers were conferred by
election, appointment, or some other method.").
9
Indeed, had Rivera made the calls in her personal capacity,
it is unlikely that she would have gotten the desired results.
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powers to further Ventura's interests, the jury could reasonably
have found her guilty of extortion under color of official right.
See United States v. Freeman, 6 F.3d 586, 593-94 (9th Cir. 1993)
("Because the evidence demonstrates that [defendant] possessed and
misused official powers in connection with his [official] position
. . . , we hold that a rational trier of fact could have found the
essential elements of the crime of official right extortion beyond
a reasonable doubt." (internal quotation marks and alteration
omitted)); United States v. Loftus, 992 F.2d 793, 796 (8th Cir.
1993) ("In this case, we consider whether [defendant] promised to
use his official position . . . to serve the bribe-giver's
interests.").
We note that it is irrelevant that Rivera lacked (and
that Ventura knew she lacked) the ultimate authority to issue
permits or otherwise affect his government business; Rivera, in her
official capacity, had the power to facilitate Ventura's government
business, and it was that power that Ventura paid her to exercise.
Loftus, 992 F.2d at 796 ("Actual authority over the end result . .
. is not controlling if [defendant], through his official position,
had influence and authority over a means to that end.").
Furthermore, there can be no question that Rivera's actions had the
requisite "realistic probability of a de minimis effect on
Government officials assumed "that all the calls that [Rivera] made
. . . were on behalf of the Governor."
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interstate commerce" to implicate the Hobbs Act. Rivera-Medina,
845 F.2d at 15. Ventura purchased materials for his construction
projects from the mainland United States, and it was reasonable for
him to conclude that had he not paid Rivera, she may have used her
influence to cause his business to suffer. Rivera's actions thus
had a "realistic probability" of affecting interstate commerce
because, had Ventura refused to pay, Rivera may have caused his
business to suffer and, in so doing, indirectly caused him to
purchase fewer materials from the mainland United States. See
United States v. Jarabek, 726 F.2d 889, 901 (1st Cir. 1984) (noting
"that the requisite interstate commerce nexus could be established
if the jury found that, unless the victim gave in to the
extortionate demands, the victim's business might have been
hindered or destroyed, thereby halting or reducing interstate
movement of material to the victim's business.").
Because there was sufficient evidence to prove extortion
both through fear of economic harm and under color of official
right, we find that the district court erred in granting Rivera's
motion for a judgment of acquittal.
III. Conditional New Trial
Having determined that the district court erred in
granting Rivera's motion for a judgment of acquittal, we now
consider whether it also erred in conditionally awarding Rivera a
new trial. The district court granted a new trial based on its
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belief that the evidence presented to the jury was insufficient to
support Rivera's convictions and the government violated Brady v.
Maryland, 373 U.S. 83 (1963), by failing to turn over to Rivera
impeachment evidence that was in its possession.10 A district court
may award a new trial pursuant to the government's failure to meet
its disclosure obligations under Brady if the defendant
demonstrates that
(1) the evidence at issue is material and
favorable to the accused; (2) the evidence was
suppressed by the prosecution; and (3) [he]
was prejudiced by the suppression in that
there is a reasonable probability that, had
the evidence been disclosed to the defense,
the result of the proceeding would have been
different.
United States v. Conley, 249 F.3d 38, 45 (1st Cir. 2001) (internal
quotation marks omitted). We "review a district court's decision
on a motion for a new trial . . . for manifest abuse of
discretion." Id. at 44 (citation omitted).
There are, however, "definite limits upon a district
court's right to upset a jury verdict." United States v. Rothrock,
806 F.2d 318, 322 (1st Cir. 1986). A district court "judge is not
a thirteenth juror who may set aside a verdict merely because he
would have reached a different result." Id. Thus, where the award
10
"Under Brady, the government is required to produce to
defendants exculpatory and impeachment evidence that is in its
custody, possession, and control . . . ." United States v. Wall,
349 F.3d 18, 22 n.6 (1st Cir. 2003) (internal quotation marks and
citation omitted).
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of "a new trial is predicated on the district court's evaluation of
the weight of the evidence rather than its concern about the effect
of prejudicial acts that may have resulted in an unfair trial, . .
. it [must be] quite clear that the jury has reached a seriously
erroneous result." Id. (internal quotation marks and citation
omitted).
We first review the propriety of the district court's
grant of a new trial pursuant to its belief that the evidence was
insufficient to support the verdict. We have already determined
that there was ample evidence to support the verdict. Therefore,
because it is not "clear that the jury . . . reached a seriously
erroneous result," id. (internal quotation marks omitted), we find
that the district court manifestly abused its discretion in
awarding Rivera a new trial.
We next address whether the district court was justified
in awarding Rivera a new trial based on the government's alleged
failure to meet its obligations under Brady, that is, its alleged
failure to disclose that it had entered into a plea agreement with
Ocasio. The grant of a new trial on this ground was unjustified.
Even if there were no question as to the existence of the plea
agreement (and there is, in fact, a serious question on that
issue),11 we think that it was a manifest abuse of discretion to
11
The district court surmised that Ocasio entered into a plea
agreement because he met with government prosecutors prior to
pleading guilty and the government moved for a downward departure
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find that there was a reasonable probability that Rivera would have
been acquitted had the agreement been disclosed. See Conley, 249
F.3d at 45 (noting that "where a defendant claims that . . .
evidence should have been produced under Brady[,] . . . the
defendant must establish that . . . had the evidence been disclosed
. . . , the result of the proceeding would have been different"
(internal quotation marks omitted)). This is because even if the
jury had ignored all evidence pertaining to Ocasio, there was still
ample evidence relating to Rivera's relationship with Ventura to
convict.
Reversed and remanded with the instruction that the jury
verdict be reinstated and for proceedings consistent with this
opinion.
at his sentencing hearing. But, Ocasio insisted at trial that he
had not entered into any such agreement, and the government's two
trial prosecutors, as well as an FBI agent, submitted affidavits to
that same effect. Thus, the district court's finding that Ocasio
entered into a plea agreement was entirely at odds with the only
evidence--which was in the form of sworn statements--that had been
offered on the subject, and as a result, it was unjustified. See
Moreno-Morales v. United States, 334 F.3d 140, 146 (1st Cir. 2003)
("From the evidence presented, we cannot make the leaps necessary
to support [appellant's] conclusory assumption[s].").
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