United States v. Rivera-Rangel

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."

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 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,

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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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