United States Court of Appeals
For the First Circuit
No. 02-2658
UNITED STATES OF AMERICA,
Appellee,
v.
JUAN M. CRUZADO-LAUREANO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José A. Fusté, U.S. District Judge]
Before
Torruella, Circuit Judge,
Coffin, Senior Circuit Judge,
and Lipez, Circuit Judge.
Alexander Zeno for appellant.
Thomas Klumper, Assistant U.S. Attorney, with whom H.S.
García, U.S. Attorney, and Nelson Pérez-Sosa, Assistant U.S.
Attorney and Senior Appellate Attorney, were on brief, for
appellee.
April 5, 2005
LIPEZ, Circuit Judge. On January 8, 2001, Juan Manuel
Cruzado Laureano, sometimes called "Manny" for short, took office
as mayor of Vega Alta, one of Puerto Rico's municipalities. On
January 25, 2002, a federal grand jury returned a superseding
indictment that charged him with a number of crimes tied to abuse
of his public office, including extortion, embezzlement, theft,
money laundering, and witness tampering. After a fourteen-day
trial, Cruzado was convicted of the following charges: one count of
embezzlement from a program receiving federal funds, 18 U.S.C. §
666(a)(1)(A)(i) and (a)(1)(A)(ii); five counts of extortion, id. §
1951(a); five counts of money laundering, id. § 1956(a)(1)(B)(i)
and (a)(1)(B)(ii); and one count of tampering with witnesses, id.
§ 1512(b)(1) and (b)(2). The district court sentenced Cruzado to
63 months' imprisonment on all counts except for the witness
tampering, for which Cruzado received 12 months. The sentences
were to run concurrently with each other. In this appeal, Cruzado
challenges the sufficiency of the evidence supporting his counts of
conviction. He also argues that his sentence was erroneously
calculated. Although we affirm the convictions, we vacate the
sentence and remand for resentencing.
I.
We first provide a brief overview of the case, taking our
information from the record as viewed in the light most favorable
to the jury's verdict. See United States v. Lara, 181 F.3d 183,
-2-
190 (1st Cir. 1999). We reserve a fuller discussion of the facts
for later sections to which they are particularly relevant.
After graduating from the University of Puerto Rico in
1969, Cruzado taught advanced mathematics at a local high school
until 1976. At that point, he moved into the construction
business. In 1992, he went into business with his then-wife, a
pediatric dentist, who opened a medical practice, incorporated as
Oficina Dental Las Colinas, Inc., often referred to by its acronym,
Onaden, Inc. From 1992 to 1995, Cruzado handled routine
administrative tasks for Onaden, including the opening of a bank
account at a local branch of Banco Popular, which would later prove
useful to his criminal endeavors. The account, in the name of
Oficina Dental Las Colinas, Inc., with Cruzado as the only
signatory, was used for such items as lease payments. When Cruzado
became mayor, however, he did not disclose the account’s existence
as required by the Ethics Office for the Commonwealth of Puerto
Rico.
From 1996 to 2000, Cruzado ran a check-cashing business,
El Cajero Expresso. In November 2000, Cruzado was elected mayor of
Vega Alta -- his first try at running for public office -- as a
member of the Popular Democratic Party and was duly sworn into
office on January 8, 2001. Upon his election, Cruzado appears to
have sold the check-cashing business to his oldest son, who took
over day-to-day control. Cruzado, however, retained the last word
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in business affairs and kept control over the business's checking
account.
Within a scant few weeks of becoming mayor, Cruzado began
using his official position to embezzle and extort thousands of
dollars from the municipality and from contractors who were working
for the municipality; he then laundered the money in the Onaden
bank account. We now describe the particulars of his criminal
activity. (See the chart, attached as an appendix, for a summary
of the charges and parties involved.)
A. Cristalería Vega Alta, Inc.
Cristalería Vega Alta is a firm that installs and repairs
glass and aluminum doors. Cristalería's owner, Juan Cuevas
Rodríguez, first got to know Cruzado through Cristalería's glass
work for Cruzado's construction business. Shortly after Cruzado
took office in January 2001, he embarked on an extensive program to
renovate Vega Alta's city hall, which was in poor shape. Cruzado
requested that Cristalería perform some locksmithing and remodeling
work on the building, and he asked Cuevas for a price estimate.
Cuevas quoted a price of $5,814. Cruzado then told Cuevas to add
$2,000 to his quote and give the extra money to him. Fearing that
he might be cut off from future work if he disobeyed, Cuevas
obliged.
Cristalería’s contract provided that the company would be
paid from a trust account of the municipality at Banco Santander,
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whose funds were reserved for making improvements to the city hall.
For some reason, there was a delay in the disbursement of those
funds. Cruzado spoke to Vega Alta’s director of finance, Damien O.
Colón Pabón, telling him that Cristalería was getting impatient
about the delay and asking whether the municipality could expedite
payment. Colón told Cruzado that the municipality’s regular
checking account might be faster, although disbursing funds from
that account would require additional paperwork: price quotes,
invoices, and various other papers. Also, when Banco Santander
eventually made the disbursement from the trust account, that money
would have to be put into the municipality’s checking account.
Cruzado then informed Cuevas that, to be paid, he would
need to procure some other, competing bids that were higher than
Cristalería's. Cuevas complied: he approached two competing glass
shops and told them to prepare fake bids that were higher than
Cristalería's quote. They agreed to do so, even though they had no
intention of submitting a formal bid for the work.
On April 4, 2001, the check from the trust account to pay
Cristalería for its work was delivered to Cruzado’s office. Colón
requested that the mayor deposit the check into the municipality’s
checking account. The mayor responded that Cristalería would be
working for the municipality in the future, and that the check
would be used to pay for that work. Colón criticized that plan,
reaffirming that the check should go into Vega Alta’s checking
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account and that, if Cristalería needed to be paid for new work,
then a new contract should be drawn up and the disbursements could
be made on that basis. Cruzado assured Colón that those
formalities were not necessary; he would be responsible for
retaining the check and making payments to Cristalería.
Cristalería was then paid twice for its work, receiving
checks from both of Vega Alta's bank accounts. Specifically, on
March 23, 2001, Cuevas picked up a check from city hall, drawn on
the municipality's regular checking account, for the inflated price
of $8,549 (minus a certain sum that Cuevas owed the municipality in
licensing fees). Cuevas deposited that check in Cristalería’s bank
account. Then, on April 4, 2001, Cuevas received a visit in his
office from Cruzado, who came bearing another check, this one also
for $8,549 (again, minus certain immaterial deductions) drawn from
the trust account. Cruzado told Cuevas to take the check,
explaining that Cristalería would earn the double payment by doing
more jobs for Vega Alta in the future. The next day, April 5,
2001, Cuevas issued two checks drawn on Cristalería’s account, each
for $2,000: one made out to "cash," and one made out to "Onaden,
Inc.," according to Cruzado's instructions. Cruzado's chauffeur
cashed the first check at the check-cashing business of Cruzado’s
son and gave Cruzado the money, while Cruzado deposited the second
check into the Onaden account at Banco Popular.
In early October 2001, Cruzado asked to meet with Cuevas,
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telling him he had something important to discuss. He claimed that
he was being audited, and that he was nervous about the $2,000
check that Cuevas had issued to Onaden, Inc. Cruzado told Cuevas
that, if asked about the check, he should say that it was a
repayment of a loan extended to him by Cruzado before becoming
mayor.
B. Sidney Travel and Tours, Inc.
In 2001, Vega Alta was celebrating its 225th anniversary
and, at Cruzado’s request, the organizers of the annual Puerto Rico
Day Parade in New York were going to dedicate that year’s parade to
the town. As mayor, Cruzado formed a committee, called the Puerto
Rico Day Parade Committee, to raise money and arrange for Vega
Alta’s delegation to travel to New York for the June parade. The
committee, which was composed of governmental employees and
representatives from local cultural groups, opened a checking
account under the name “Centro Cultural de Vega Alta,” which had
two signatories, neither of whom was Cruzado. The Committee chose
a local travel agency, Sidney Travel and Tours, to arrange for
airplane tickets, ground transportation, and hotels. Cruzado was
the only member of the committee who was handling lodging and hotel
accommodations. Sidney Travel’s owner, Lilia Alonso Alvarez, had
numerous contacts over the next few months with the committee while
planning the trip to New York. Between April and June 2001, the
committee raised about $160,000: $40,000 given by the
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municipality’s assembly, the rest through private donations. Any
money not needed for the trip was to be refunded to the
municipality.
The committee put down an initial deposit with Sidney
Travel to secure plane and hotel reservations. As the date of the
parade neared and the travel arrangements assumed their final form,
Alonso calculated that (1) the committee owed Sidney Travel
$67,240.90; and (2) Sidney Travel owed the committee a refund of
$14,816.74, which could be offset against the larger amount.
Alonso informed the committee of her tally. On May 25, 2001,
Cruzado arrived at Sidney Travel for a financial reckoning, bearing
a blank check from Centro Cultural's account. He was alone.
Instead of allowing Alonso to credit the entire $14,816.74 to the
committee's account, Cruzado told her that he wanted part of the
credit as a separate payment, which would be useful to him as food
money for children who would be attending the parade. So
instructed, Alonso made out a check for $5,816.74 to Onaden, Inc.,
and credited the remaining $9,000 to the committee's balance. The
mayor then paid off the balance with a Centro Cultural check for
$58,240.90. He later deposited the Onaden check into his private
account.
In New York, Cruzado stayed at the Grand Hyatt Hotel,
while most of Vega Alta’s other parade attendees stayed at the
Marriot Marquis. On June 11, 2001, the day after the parade,
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Cruzado sent a messenger to speak to Marilyn García, who served as
one of the two signatories on Centro Cultural checks. Cruzado’s
message: he wanted three signed, blank checks drawn on the Centro
Cultural account. García handed over the checks. Cruzado made out
the first two checks to the Grand Hyatt; the third, he made out to
Onaden, Inc., in the amount of $4,164. On July 3, 2001, that check
was deposited in the Onaden account.
On July 6, 2001, after the trip was over, Sidney Travel
made a final accounting. Again, a refund was due to the committee.
Cruzado went to Sidney Travel himself and instructed Alonso to
issue a check in the name of Onaden, Inc., for $8,174.80. Later,
that check was deposited into Onaden’s account.
On August 3, 2001, the Federal Bureau of Investigation
spoke to Alonso about Cruzado’s role in the committee’s travel
preparations. The next day, she informed Cruzado of the FBI’s
interest in his dealings. Cruzado then made out an Onaden check
for $13,991.54 (the total of Sidney Travel's May 25 and July 6
checks to Onaden), dated it July 7, 2001, and deposited it into the
Centro Cultural account on August 13, 2001.
C. Vega Alta Medical Hospital, Inc.
Like city hall, Vega Alta’s local health clinic, the
Centro de Diagnóstico y Tratamiento (CDT), needed renovations.
Located throughout Puerto Rico, CDTs provide basic health care to
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local populations.1 Shortly before the events of this case, Puerto
Rico had privatized many CDTs. Vega Alta’s CDT had been purchased
by a partnership formed by two doctors: Luis González Bermúdez and
Emilio Rivera Costas. The partnership was named Vega Alta Medical
Hospital, Inc. The partners divided their responsibilities: Dr.
González was the medical director, while Dr. Rivera was the
administrator, handling tasks relating to maintenance, repair, and
management. The partners had agreed with the municipality
(although not in a written contract) that Vega Alta would provide
two services -- ambulance service, crucial to the CDT’s
functioning, as well as groundskeeping. Vega Alta had also agreed
to donate an old, unused mobile health vehicle, which the CDT could
repair and then use to provide health care to rural and outlying
areas. Dr. González testified that the municipality was in charge
of maintaining and fixing the CDT's physical facilities, as
directed by Dr. Rivera.
Vega Alta’s CDT also lacked air conditioning in the
emergency room and administrative offices, a violation of Puerto
Rico’s health code. The doctors had been soliciting quotes from
several air-conditioning businesses to remedy the problem. In
1
Puerto Rican law defines a CDT as "an independent facility
or one operated in conjunction with a hospital which provides
community services for the diagnosis and treatment of ambulatory
patients under the professional supervision of persons licensed to
practice medicine, surgery or dentistry in Puerto Rico." 24 P.R.
Laws Ann. § 331a(A)(4).
-10-
January 2001, Cruzado visited the CDT for the first time, where he
met with Dr. Rivera, who explained to him some of their problems.
Cruzado said that he would send over a company, Martínez Air
Conditioning, who had done some work for the municipality in the
past, and that Dr. Rivera need not continue seeking bids. Cruzado
also informed Dr. Rivera that Martínez Air Conditioning would
install an air-conditioning unit in the CDT’s dentistry office,
located in a dilapidated and partially abandoned annex to the main
building. Dr. Rivera protested that his priority was to get air
conditioning for the emergency room, but Cruzado persisted.
Cruzado subsequently paid the CDT another visit to speak
to Dr. González, Dr. Rivera’s partner. The two men were alone.
Cruzado explained that his political party was trying to raise
money through donations. Feeling pressured by the mayor’s
authority and aware of the CDT’s critical need for ambulance
service from the municipality, Dr. González told him that he would
contribute, even though Dr. González did not belong to the mayor’s
political party. At the time, however, Dr. González did not give
the mayor any money.
Martínez Air Conditioning then arrived on the premises,
installed the air conditioner in the dentistry office, and invoiced
the CDT for $2,895, which the CDT did not immediately pay.
Meanwhile, Martínez sent an invoice to the municipality for the
same amount, from which he received a check on May 4, 2001.
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Shortly thereafter, the mayor asked Martínez to remove the air
conditioner from the CDT, for reasons known only to himself, and to
take it to a nearby police station. Martínez did so, and was paid
for his trouble with an $850 check from the municipality dated June
14, 2001.2
On July 10, 2001, Cruzado arrived at the CDT and asked
for money from Dr. Rivera, who understood the payment to be related
to the air conditioner (which, by then, had already been both
installed and removed). Dr. Rivera testified that he knew nothing
about the political contribution that Cruzado and Dr. González had
discussed. Dr. Rivera asked for an invoice; Cruzado left for five
or ten minutes and returned with an invoice for $5,000 on
letterhead reading “Onaden, Inc.” The invoice referred, however,
to work performed by Martínez Air Conditioning.3
Dr. Rivera had a blank payroll check available that had
already been signed by Dr. González. When Dr. Rivera called Dr.
González to inform him of the impending payment, the two partners
did not discuss the purpose of the payment. Dr. Rivera merely
2
The record does not disclose if the emergency room
eventually got an air conditioner.
3
We note that the CDT had already received one invoice from
Martínez Air Conditioning. Apparently, the CDT had also received
an invoice from the municipality for the same air conditioner.
According to Dr. González, however, the municipality bore the
ultimate responsibility for maintaining the CDT’s physical
facilities. Given the various invoices flying back and forth, the
precise division of financial obligations between the CDT and the
municipality for the cost of the air conditioner is unclear.
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informed Dr. González that the mayor was there looking for money,
and Dr. González said that paying him was fine. According to their
testimony, Dr. Rivera understood the payment to be for the air
conditioner, and Dr. González understood the payment to be the
political contribution that he had discussed with the mayor
earlier. Dr. Rivera then handed Cruzado a $5,000 check made out to
Onaden.
Later in October, while being investigated by the FBI,
Cruzado spoke to Dr. Rivera. Cruzado told Dr. Rivera to “tell the
truth,” which, according to Cruzado, was that the payment was a
political donation. Dr. Rivera refused, saying that he would
maintain that the payment was for the air conditioner, as evidenced
by the invoice.
D. Ebanistería Familia
Ebanistería Familia is a woodworking shop in Vega Alta
owned by Pedro A. Colón Muñoz, who knew Cruzado from patronizing
his check-cashing business. During his mayoral campaign, Cruzado
asked Colón for wooden poles to support advertising banners, which
Colón provided free of charge. Soon after his election, Cruzado
called Colón to city hall, where he explained that he wanted some
glasswork and woodwork done in the lobby of the building, including
seven wooden doors and some mahogany cabinets. Colón took some
measurements and quoted a price of $7,500. Cruzado then requested
some additional work. On February 12, 2001, Colón gave Cruzado a
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written price quote for $9,200, which included the requested extra
work. Colón testified that, typically, he requested a 50 percent
deposit from customers before beginning work, which he uses to buy
materials. He was told by Cruzado, however, that the municipality
did not pay such deposits. Cruzado then offered to lend Colón the
money from his son's check-cashing business. Colón went to El
Cajero Expresso and received $5,200.
After Colón had begun the work, Cruzado told him to
reduce the scope of the project, eliminating much of the extra work
which would have raised the project cost to $9,200. Colón complied
and eventually installed the woodwork at city hall. On April 4,
2001, Cruzado arrived at Colón’s place of business bearing a $8,556
check ($9,200 minus 7 percent taxes), drawn on the municipality’s
trust fund at Banco Santander. Evidently, the municipality's
payment had not been adjusted downward to account for the reduced
work. Cruzado asked Colón to take the check and give the excess
funds back in the form of a check payable to cash. Colón’s wife,
a certified public accountant who helped with the family business,
later prepared a check payable to herself for $6,956 (the $5,200
loan plus the municipality’s $1,756 overpayment), endorsed it, and
gave the check to Colón. Colón dropped off the check, which was
now as good as cash, at the check-cashing business of Cruzado's
son. The check was later cashed.
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E. Premier Electrical and General Contractors, Inc.
Premier Electrical and General Contractors, Inc. (Premier
Electrical), was owned by Juan Marrero Visalden, an electrician.
On June 19, 2001, Marrero contracted with Vega Alta (Cruzado signed
the contract) to build a local indoor basketball court, which would
include cement foundations, bathrooms, a cafeteria, sidewalks,
wiring work, and drainage. The base price for the project was
$293,000; with some additional items, the total price was $342,000.
After signing the contract, Premier Electrical began work in June
or July.
Cruzado paid occasional visits to the site, observing the
work and making casual conversation with Marrero. On one visit in
September, Cruzado asked Marrero for a $10,000 payment for the
Centro Cultural de Vega Alta. Marrero, who testified that he felt
“rather stunned” by the request, agreed to pay. When Marrero asked
how he could contact Cruzado, the mayor gave Marrero his business
card, on which he had written his cell phone number.
On September 28, 2001, Marrero issued a $10,000 check
payable to “Centro Cultural de Vega Alta,” drawn on Premier
Electrical’s account. By coincidence, that same day Cruzado showed
up at the project site. When Marrero told him that the check was
ready, however, the mayor told him to prepare a different check
payable to “cash.” The mayor said that he needed the money to take
care of some “problems” at the Centro Cultural. On October 15,
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2001, Marrero followed those instructions, issued the new check,
and gave it to the mayor at his office in city hall.
After Cruzado was arrested on October 24, Marrero
discovered that the check had not been cashed yet. The next day,
he ordered his bank to stop payment on it. Later, when Cruzado had
posted bond, he paid another visit to the project site. Cruzado
asked what Marrero had done with the check. When Marrero told him
that he had stopped payment on it, Cruzado told him he had done, in
Marrero’s words, “a good job.”
Later, when Cruzado was no longer mayor, he kept calling
Marrero. For example, he informed Marrero that his company had won
a bid that it had submitted to Vega Alta for improvements to a
local baseball field. Marrero knew that he had won the bid but had
yet to receive any official papers confirming that fact. In that
conversation, Cruzado also asked him whether he had met with the
FBI. When Marrero admitted that he had, Cruzado told him that he
would have to call him back. Eventually, Marrero felt compelled to
retain an attorney, who sent a letter to Cruzado asking that he
stop calling and checking into Marrero’s business affairs.
F. Mundo Construction, Inc.
Mundo Construction, Inc., owned by Luis A. Vargas López,
did business under the name Ferretería Mundo as a construction
company and hardware store. Like Colón, the owner of Ebanistería
Familia, Vargas knew Cruzado from using his check-cashing business.
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Vargas, too, helped with Cruzado’s mayoral campaign, setting up
platforms for political rallies without charge. In September 2001,
Cruzado took Vargas to a neighborhood in Vega Alta, where they
discussed a possible construction project involving sidewalks,
curbs, and drainage. Cruzado asked for a price quote from Vargas.
A few days later, after taking some measurements, Vargas delivered
a written estimate of $39,500 to the clerk’s office at city hall.
Vargas then received a telephone call from the mayor, who asked him
to add $2,000 to his quote. Vargas refused, explaining that he was
reluctant to pass the $40,000 mark in his bid.4 Moreover, Vargas
believed that Cruzado wanted the extra money for his private
benefit. Consequently, Vargas refused to add $2,000 to his bid,
and Cruzado then told him that the project would not be built
because of a lack of funds. Cruzado was arrested shortly
thereafter, and another contractor later completed most of the work
that Cruzado and Vargas had discussed.
II.
Some time in 2001, the federal government began
investigating Cruzado's conduct. During that investigation,
Cruzado added to his troubles when he attempted to tamper with
4
For contracts worth more than $40,000, prospective
contractors had to satisfy more formal bidding requirements imposed
by Vega Alta. It appears that the price for the total project was
already over $40,000, having been divided, somewhat artificially,
into one bid for the sidewalks and curbs – $39,500 – and another
bid for the drainage.
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potential witnesses, the owners of Cristalería and Vega Alta
Medical Hospital. The mayor was eventually indicted and arrested
on October 24, 2001. Cruzado posted bond on November 2, 2001, and
was released, whereupon he tampered with another potential witness,
the owner of Premier Electrical.
On January 25, 2002, the grand jury returned a 14-count
superseding indictment, charging Cruzado with the following
offenses:
• Count 1: embezzlement, 18 U.S.C. § 666(a)(1)(A)(i)
and (a)(1)(A)(ii);
• Counts 2, 4, 6, 12, 13, & 14: extortion, id. §
1951(a);
• Counts 3, 5, 7, 8, 9 & 10: money laundering, id. §
1956(a)(1)(B)(i) and 1956(a)(1)(B)(ii);
• Count 11: tampering with witnesses, id. §
1512(b)(1) and 1512(b)(2).
These counts are listed on the chart attached as an appendix to
this opinion, which shows how Cruzado's laundering counts all
derive from money that he was charged with embezzling or extorting.
Trial began on May 20, 2002. The government used a
combination of testimony from Cruzado’s victims and acquaintances,
along with documentary evidence of cancelled checks and the like,
to build its case. After the government rested on May 28, Cruzado
filed a motion for judgment of acquittal on counts 1, 4 through 10,
and 11 (thereby declining to challenge counts 2, 3, 12, 13, and
14). That motion was denied.
In his defense, through the cross-examination of
government witnesses and his own testimony, Cruzado tried to
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characterize some payments as political contributions; as for
others, he stressed that they had been innocent mistakes and that
he had eventually returned the money (he had returned some payments
after the government had begun investigating his dealings). He
also used character witnesses.
After Cruzado rested his case on June 5, he renewed his
motion for judgment of acquittal, which the court granted as to
count 10. On June 7, the jury found Cruzado guilty on all
remaining counts except count 12, for which it returned a verdict
of not guilty. On June 14, Cruzado filed a second motion for
judgment of acquittal as to all remaining counts except 2, 3, 13,
and 14, which the court denied on July 31, 2002. On November 8,
2002, Cruzado was sentenced to 63 months in prison for Counts 1
through 9, 13, and 14; and 1 year for Count 11, the terms to run
concurrently. More than a year later, on November 24, 2003, the
district court ordered Cruzado to pay restitution in the amount of
$14,251.82 to Vega Alta.5 This appeal followed.
III.
We review de novo a district court’s denial of a motion
for judgment of acquittal under Fed. R. Crim. P. 29.6 Our task is
5
The government told us at oral argument that the district
court had not made any findings as to loss amounts. It apparently
overlooked the district court’s restitution order.
6
Fed. R. Crim. P. 29(a) provides in part: "After the
government closes its evidence or after the close of all the
evidence, the court on the defendant's motion must enter a judgment
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to decide “whether, after assaying all the evidence in the light
most amiable to the government, and taking all reasonable
inferences in its favor, a rational factfinder could find, beyond
a reasonable doubt, that the prosecution successfully proved the
essential elements of the crime.” United States v. O’Brien, 14
F.3d 703, 706 (1st Cir. 1994); see also United States v. Piper, 298
F.3d 47, 59 (1st Cir. 2002). The government may satisfy its burden
of proof "by either direct or circumstantial evidence, or by any
combination thereof." United States v. Gifford, 17 F.3d 462, 467
(1st Cir. 1994). Moreover, we must "resolve all credibility
disputes in the verdict's favor." United States v. Taylor, 54 F.3d
967, 974 (1st Cir. 1995). Ultimately, the court "need not believe
that no verdict other than a guilty verdict could sensibly be
reached, but must only satisfy itself that the guilty verdict finds
support in a plausible rendition of the record." United States v.
Gomez, 255 F.3d 31, 35 (1st Cir. 2001) (citation and internal
quotation marks omitted).
Those daunting hurdles apply to the counts that Cruzado
contested below with a Rule 29 motion. He faces an even greater
challenge on the counts that he did not so contest: counts 2, 3,
13, and 14. Cruzado's failure to move for judgment of acquittal on
those counts means that he must show “clear and gross injustice” to
of acquittal of any offense for which the evidence is insufficient
to sustain a conviction."
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prevail now.7 United States v. Hadfield, 918 F.2d 987, 996 (1st
Cir. 1990); see also United States v. Lopez, 380 F.3d 538, 547 (1st
Cir. 2004). With those principles in mind, we assess the
sufficiency of the evidence, beginning with Cruzado’s unpreserved
challenges.
A. Cruzado's unpreserved challenges
1. Three counts of extortion (Counts 2, 13, and 14)
To establish a violation of the Hobbs Act, 18 U.S.C. §
1951, the government must prove three elements beyond a reasonable
doubt: (i) that the defendant induced someone to part with
property; (ii) that the defendant knowingly and willfully did so by
extortionate means; and (iii) that the extortionate transaction
affected interstate commerce. Id. § 1951(a).8 “The term
‘extortion’ means the obtaining of property from another, with his
consent, induced by wrongful use of actual or threatened force,
violence, or fear, or under color of official right.” Id. §
1951(b)(2).
Extortion by "fear" can mean fear of economic loss,
including the possibility of lost business opportunities. United
States v. Bucci, 839 F.2d 825, 827-28 (1st Cir. 1988); see also
7
Although Cruzado failed to move the court for judgment of
acquittal on count 12, the jury ultimately acquitted him of that
charge.
8
In 1946, Congress passed the Hobbs Act to amend the 1934
Anti-Racketeering Act. See Act of July 3, 1946, ch. 537, § 1(c),
60 Stat. 420. Rep. Hobbs introduced the bill that became law.
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United States v. Hathaway, 534 F.2d 386, 396 (1st Cir. 1976). The
government must "show that the victim believed that economic loss
would result from his or her failure to comply with the alleged
extortionist's terms, and that the circumstances . . . rendered
that fear reasonable." Bucci, 839 F.2d at 828; see also United
States v. Rivera Rangel, 396 F.3d 476, 483 (1st Cir. 2005).
Alternatively, to 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).
a. Extortion of Cristalería (Count 2)
Count 2 charged that on April 5, 2001, Cruzado extorted
money from Cuevas, Cristalería’s owner, by asking him to inflate
his price quote by $2,000 for work that he was doing at city hall.
After Cuevas was paid twice for the same work (one payment from the
municipality’s trust account, one from the city’s regular checking
account), Cuevas paid Cruzado $4,000.
Cruzado first stresses that the only evidence as to
Cruzado’s reason for requesting an extra $2,000 was Cuevas’s
testimony, which he assails as “speculative.” Next, he claims that
Cuevas never gave him the money. Finally, Cruzado makes the
curious argument that what really happened was theft, not
extortion, because the money did not truly belong to Cuevas but to
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the municipality: “In order for there to be extortion the money
must have belonged to Mr. Cuevas. However, the money they shared
belonged to the municipality.”
Cruzado’s first two arguments reduce to a simple
credibility dispute: Cuevas’s account supports the conviction,
while Cruzado’s does not. Appellate courts, however, are wisely
reluctant to “second-guess” a jury’s credibility determination.
United States v. Carroll, 105 F.3d 740, 743 (1st Cir. 1997); see
also United States v. Laboy-Delgado, 84 F.3d 22, 27 (1st Cir.
1996). In the context of a sufficiency challenge, moreover, we are
bound to “resolve all credibility disputes in the verdict's favor."
Taylor, 54 F.3d at 974. A reasonable jury could have rejected
Cruzado’s self-serving testimony, finding instead that Cuevas was
telling the truth.
Cruzado’s third argument -- that the money was not
legitimately Cuevas’s to begin with -– also fails. The statute
does not require that a victim of extortion part with his own
property. Indeed, "a defendant's claim of right to the property is
irrelevant. One may be found guilty of extortion even for
obtaining one's own property." United States v. Sturman, 49 F.3d
1275, 1284 (7th Cir. 1995). To be sure, the rightful owner of the
$4,000 was the municipality, not Cuevas; it was paying for work
that it had not received. Still, a reasonable jury could have
found beyond a reasonable doubt that the mayor induced Cuevas to
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part with the money when Cuevas had actual possession over the
property -- actual possession being "the state of immediate,
hands-on physical possession." United States v. Zavala Maldonado,
23 F.3d 4, 6 (1st Cir. 1994). Cuevas had deposited one of Vega
Alta’s checks into his bank account and had cashed the other; it
was solely because of the mayor’s actions that he relinquished
control over that money.
b. Attempted extortion of Premier Electrical (Count 13)
Premier Electrical’s owner, Marrero, had contracted with
the municipality to build an indoor basketball court. Cruzado
asked him for $10,000, supposedly on behalf of the Puerto Rico Day
Parade Committee, which was having unspecified “problems.”
Ultimately, Marrero gave the mayor a check payable to “cash” but
was able to stop payment after Cruzado was arrested.
Cruzado argues that he requested the $10,000 as a
political donation to Centro Cultural, “an entity controlled by his
party.” He thereby tries to use the requirement that a specific
quid pro quo is necessary for conviction under the Hobbs Act when
an official receives a political contribution. See McCormick v.
United States, 500 U.S. 257, 273 (1991) (official is guilty of
extortion "if the payments are made in return for an explicit
promise or undertaking by the official to perform or not to perform
an official act"). Here, Cruzado avers that he promised nothing
specific in return for accepting the “contribution,” and that
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therefore a reasonable jury could not have found him guilty.
This argument leads nowhere. Although Cruzado asserts
that the payment was a political contribution, he does not point to
any evidence showing that Centro Cultural was a political body or
had anything to do with his political campaign. In fact, Centro
Cultural was not under the control of Cruzado’s political party or
of any political party. While the committee had a number of
governmental representatives on it, there was no testimony that
they were members of a particular party. Moreover, the
governmental representatives were outnumbered on the committee by
members of other cultural groups, which belies the idea that the
committee was “controlled” by Cruzado’s party.
Finally, according to the testimony of Premier
Electrical’s owner, Cruzado requested in the end that the check be
made out to “cash,” not “Centro Cultural.” A reasonable jury could
have inferred that Cruzado intended not to use the money for
anything related to the committee’s activities (especially because
the committee was formed specifically for the Puerto Rico Day
Parade, then more than three months in the past), and that Cruzado
intended to cash the check and take the money for himself. The
jury could have further inferred from Marrero's testimony that, if
he did not pay Cruzado, the mayor would use his official power to
punish Marrero in the future by withholding city business.
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c. Extortion of Mundo Construction (Count 14)
Like Cristalería, Mundo Construction was a prospective
contractor with the municipality. Its owner, Vargas, knew Cruzado
from his check-cashing business and had donated free supplies to
his political campaign. As he did with Cristalería’s owner,
Cruzado asked Vargas to pad his price quote with an extra $2,000,
without explaining the purpose of the extra money. Vargas
understood, however, that the money was for the mayor’s private
benefit. When Vargas refused to pay, Cruzado suddenly told him
that there was no money after all for the project to build
sidewalks, curbs, and drainage.
Cruzado assails this conviction as being based on sheer
speculation as to his intent. It is true that, in this instance,
the jury did not have the benefit of following the transaction
through to completion, with the victim’s checks deposited in the
Onaden account (as with Cristalería). However, the jury was well
within its rights to believe Vargas's testimony and to find that
Cruzado canceled the project (which was later built by someone
else) as a reprisal for Vargas’s refusal to submit to his demands
for money.
2. One count of laundering money
from Cristalería (Count 3)
Cruzado received two $2,000 checks from Cristaleria: one
payable to “cash,” and one payable to “Onaden, Inc.” His chauffeur
cashed the first at the check-cashing business of Cruzado's son;
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the second was deposited into Cruzado’s private account.
To convict Cruzado of this offense, the government had to
prove four elements beyond a reasonable doubt: (1) that Cruzado
knowingly conducted a "financial transaction," (2) that he knew the
transaction involved funds that were the proceeds of some form of
unlawful activity, (3) that the funds involved were in fact the
proceeds of a "specified unlawful activity," and (4) that Cruzado
engaged in the financial transaction knowing that it was designed
in whole or in part to conceal or disguise the nature, location,
source, ownership, or control of the proceeds of such unlawful
activity. See U.S.C. § 1956(a)(1)(B)(i); United States v.
Cornier-Ortiz, 361 F.3d 29, 37 (1st Cir. 2004); United States v.
Martínez-Medina, 279 F.3d 105, 115 (1st Cir. 2002). A conviction
requires evidence of intent to disguise or conceal the transaction,
whether from direct evidence, like the defendant’s own statements,
or from circumstantial evidence, like the use of a third party to
disguise the true owner, or unusual secrecy. See United States v.
Castro-Lara, 970 F.2d 976, 981 (1st Cir. 1992) (“[C]ircumstantial
evidence, in and of itself, is often enough to ground a
conviction.”); see also Bourjaily v. United States, 483 U.S. 171,
179-80 (1987) (“[I]ndividual pieces of evidence, insufficient in
themselves to prove a point, may in cumulation prove it.”).
Cruzado essentially challenges only the fourth element,
intent to conceal. In his view, merely depositing his ill-gotten
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gains in the account of Oficina Dental Las Colinas, Inc., hardly
signifies an intent to conceal. Cruzado was well known all over
Vega Alta as the mayor and as a prominent citizen, and, according
to him, no rational jury could conclude that Cruzado was trying to
conceal the source of the money by depositing it in a bank where
everyone knew him and knew his sources of income.
We are, to say the least, unconvinced by this argument.
Cruzado deposited these funds, as he did with the other sums he
acquired, in an account in the name of his then-wife’s former
dental practice, for which he was the only signatory, and which he
failed to report upon being elected mayor. No one else knew of the
account. Every witness asked about the account testified that he
or she had never heard of “Onaden,” but assumed that it was
legitimate on the mayor’s authority. A reasonable jury could
easily have concluded that Cruzado intended to conceal the money
there and use it for his own private purposes. We see no “clear
and gross injustice” in this conviction. Hadfield, 918 F.2d at
996.
B. Cruzado's preserved challenges
1. One count of embezzlement or theft of more than
$5,000 from Vega Alta (count 1)
To convict Cruzado on this count, the government had to
prove three elements beyond a reasonable doubt: (i) that Cruzado
was “an agent of an organization, or of a State, local, or Indian
tribal government, or any agency thereof;” (ii) that Cruzado
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embezzled, stole, obtained by fraud, or converted or intentionally
misapplied property “valued at $5,000 or more” from “such
organization, government, or agency;” and (iii) that such
“organization, government, or agency receives, in any one year
period [federal funds] in excess of $10,000.” 18 U.S.C. § 666(a)
and (b). Theft can be committed in a variety of ways under § 666.
“The first four prohibitions cover any possibility of taking money
for one’s own use or benefit. Intentional misapplication, in order
to avoid redundancy, must mean intentional misapplication for
otherwise legitimate purposes; if it were for illegitimate
purposes, it would be covered by the prohibitions against
embezzlement, stealing, obtaining by fraud, or conversion." United
States v. Urlacher, 979 F.2d 935, 938 (2d Cir. 1992) (quoted in
United States v. Cornier-Ortiz, 361 F.3d 29, 36-37 (1st Cir.
2004)). The total value of funds stolen can be aggregated to
satisfy the $5,000 minimum that triggers criminal liability under
§ 666. United States v. Sanderson, 966 F.2d 184, 189 (6th Cir.
1992).
Cruzado concedes on appeal that he was an agent of a
local government -- namely, the mayor of Vega Alta -- which
received $10,000 or more in federal funds within a one-year period.
He maintains, however, that the government failed to present
sufficient evidence to allow a reasonable jury to conclude that he
embezzled or stole more than $5,000 from Vega Alta. Without
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explanation, Cruzado limits his possible wrongdoing to two
transactions: (1) Centro Cultural’s $4,165 check to Onaden, which
Cruzado wrote while in New York at the Puerto Rico Day Parade; and
(2) the $1,756 check made out to “cash,” which he obtained from
Ebanistería Familia’s owner, Colón, and which represented an
overpayment from Vega Alta for work that Colón had not done.
Cruzado argues that, first, he spent the $4,165 on
expenses related to the trip to New York. Even if he had not,
however, the money belonged not to the municipality but to the
parade committee, which had received it from Vega Alta with “no
strings attached.” Therefore, if Cruzado stole any money, he did
so from the committee, not Vega Alta. Second, Cruzado maintains
that Colón owed him the $1,756 as interest on the money that Colón
had borrowed from him as an advance. As noted, after Cruzado
claimed that the municipality would not pay a deposit on Colón’s
newly contracted job (as Colón’s other customers did), the mayor
offered to provide a loan from his son's check-cashing business, El
Cajero Expresso. Cruzado, in his words, “might be guilty of being
a smart businessman and/or a usurer, but he was not being accused
of usury.”
The facts, when viewed in the light most favorable to the
government, easily support Cruzado’s conviction on this count.
First of all, as the government points out, Cruzado neglects to
consider other incidents besides the two he cites as possibilities.
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For example, there was the $4,000 that he instructed Cristalería’s
owner to skim from Vega Alta’s double payment to him (one payment
from Vega Alta’s trust account, and one from its regular checking
account). While arguing against the extortion conviction vis-à-vis
Cristalería, Cruzado himself virtually concedes the theft by
writing, “Clearly, the evidence of what occurred on April 5th,
2001, the time period when the crime occurred, points to theft of
Municipal funds, not extortion.” In addition, there were two more
payments related to the trip to New York; in both cases, Cruzado
intercepted reimbursements from Sidney Travel that were intended
for the committee (and, ultimately, the municipality) and deposited
them in his own bank account. Those two payments amounted to
$13,991.54.
Even considering the two payments alone that Cruzado
cites, a reasonable jury could have found beyond a reasonable doubt
that Cruzado took them for his own private gain. First, there is
no evidence that Cruzado spent the $4,165 while in New York; to the
contrary, that check was deposited into the Onaden account on July
3, several weeks after the trip had ended. Cruzado produced no
receipts for the supposed expenditures.
His attempt to avoid the conviction by disputing that the
municipality was the victim also fails. The parade committee, with
Cruzado as its chairman, had agreed that any remaining funds would
be given to the municipality. Furthermore, Vega Alta required an
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accounting of the funds received by the committee. A reasonable
jury could have found that, by taking the $4,165, Cruzado was
intercepting the money from being ultimately reimbursed to the
municipality and such an interception constituted theft under §
666.
A reasonable jury could also have disbelieved Cruzado’s
argument that the $1,756 that Cruzado took from Colón, Ebanistería
Familia’s owner, represented interest on a loan. Cruzado had no
evidence for this interpretation besides his own self-serving
testimony, while Colón testified that Cruzado had specifically
requested that he receive the excess funds from Vega Alta’s
payment. Believing Cruzado’s explanation would require a perfect
coincidence between, on the one hand, the amount that Colón owed
Cruzado in interest and, on the other, Vega Alta’s overpayment to
Colón. The jury could reasonably reject such an argument that
“would elevate coincidence to an art form.” Lara, 181 F.3d at 201.
2. Two counts of extortion
a. Extortion of Sidney Travel (Count 4)
Cruzado twice intercepted refunds that Sidney Travel owed
to the committee (and, ultimately, to the municipality) and
deposited them in his private bank account. First, on May 25,
2001, he went to Sidney Travel and told its owner, Alonso, that
instead of issuing a check to the committee, she should issue a
check payable to Onaden, which he claimed to need for food money
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for children who were traveling to New York. Alonso complied,
issuing the check to a payee she had never heard of, in large part
because of Cruzado’s authority as the mayor. Second, on July 6,
2001, Cruzado again instructed Alonso to issue a check payable to
Onaden, which he deposited in his private account. She complied
again, largely for the same reasons.
Cruzado claims that he was not acting as a public
official but only as the chairman of a non-profit organization
which was unaffiliated with the municipality. Hence, the “under
color of public office” element of extortion does not apply.
Cruzado also argues that the money was due to the committee as a
refund anyway. Cruzado was the authorized representative for the
committee; Alonso knew that. Therefore, a rational jury could not
conclude that Cruzado induced her to part with property for
unlawful reasons, when he was merely asking her for a refund under
the authority that he had. Finally, Cruzado argues that he
returned the money as soon as he could (which happened to be soon
after the government opened its investigation); he notes that there
was no deadline to return the money, and he should not be punished
for the government’s unexpectedly hasty actions.
These are specious arguments. First, Cruzado did not
divest himself of his authority as mayor when he walked in the door
of Sidney Travel, especially when his mission on behalf of the
parade committee was so closely tied to the municipality itself;
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Cruzado was chairman because he was the mayor, the committee had
several other government officials as members, and the committee’s
entire reason for being was the celebration of the municipality’s
225th anniversary. A reasonable jury could have believed that
Cruzado knew that his authority would allow him to obtain the
refunds from Alonso, in return for his continued good graces and
future business from the municipality.
Cruzado’s other two arguments are easily dispatched. His
argument that the money was owed to the committee anyway is simply
question-begging. Of course the money was owed to the committee.
Cruzado’s criminal conduct relates to what happened to that money
before it could get to the committee. Finally, Cruzado’s argument
that he returned the money (a point which he repeated throughout
trial and on appeal) is little more than an implicit admission of
guilt and a plea for leniency. The jury was entitled to accord
little if any weight to such eleventh-hour maneuvers.
In short, Cruzado’s mishmash of allegedly innocent
mistakes and neutral explanations fails to convince us that a
reasonable jury could not have found Cruzado guilty of extorting
money from Sidney Travel.
b. Extortion of Vega Alta Medical Hospital (Count 6)
On July 10, 2001, after Cruzado had arrived at the CDT
asking for money, Dr. Rivera gave the mayor a $5,000 check payable
to Onaden. Dr. Rivera testified that he understood the payment to
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be for the air conditioner that had been installed in the CDT’s
dentistry office (at Cruzado’s instruction), even though that air
conditioner had by then been removed (again, at Cruzado’s
instruction). Dr. González, meanwhile, had earlier promised to
give the mayor a $5,000 political contribution; he testified that
he understood the July 10 payment to be for that purpose.
Cruzado repeats here his argument that what looks like
extortion was in fact only a political contribution. To sustain a
conviction under the Hobbs Act for political contributions, he
stresses, requires showing that the public official promised a
specific quid pro quo, see McCormick, 500 U.S. at 274, and he did
not promise anything. In support of his argument, he describes the
two doctors’ testimony as contradictory, resolving that supposed
contradiction in favor of Dr. González’s professed understanding
that the $5,000 payment was a political contribution. Cruzado
argues that Dr. Rivera would not have paid for an air conditioner
on July 10 which had already been removed by June 14. In Cruzado’s
view, then, Dr. Rivera testified untruthfully, and the $5,000 check
must have been a political contribution as testified to by the
person who authorized the check, Dr. González.
A reasonable jury could have found beyond a reasonable
doubt that, despite the past discussion between the mayor and Dr.
González of a political contribution, Cruzado asked for a check
made out to “Onaden” so that he could deposit the check in his own
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private bank account, and the doctors were too scared to refuse
him. After all, they both testified to their critical dependence
on the municipality for ambulance service. The jury could have
further concluded that the sham invoice given to Dr. Rivera served
to cover the illegal conduct initiated by Cruzado. The mystery of
paying for an air conditioner that had already been removed from
the CDT's premises only further buttresses such an inference. And
Cruzado never explains what connection Onaden might have had to
Cruzado’s Popular Democratic Party, or why he gave Dr. Rivera an
invoice for air-conditioning work in exchange for a political
contribution.
3. Four counts of laundering money
Cruzado was convicted of laundering money derived from
illegal transactions involving Sidney Travel (counts 5 and 8),
Centro Cultural (count 7), and Vega Alta Medical Hospital (count
9). Cruzado’s argument here is the same as his argument for the
count charging him with laundering money from Cristalería: no
rational jury could conclude that Cruzado was trying to conceal the
source of his money, when he was simply depositing the money in a
bank where everyone knew him and knew his sources of income.
Our response, too, remains the same. A reasonable jury
could easily have concluded that Cruzado was concealing these funds
in the Onaden account, which was unknown to anyone else and for
which he was the only signatory. That is a paradigm case of money
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laundering, and a reasonable jury was free to so find beyond a
reasonable doubt.
4. One count of tampering with three potential witnesses
(Count 11)9
To convict Cruzado on this count, the government had to
prove beyond a reasonable doubt that he: (i) knowingly (ii) used
intimidation, threatened, corruptly persuaded another person, or
attempted to do so, or engaged in misleading conduct toward another
person (iii) with intent to influence testimony (iv) in an official
proceeding. 18 U.S.C. § 1512(b)(1). Trying to persuade a witness
to give false testimony counts as “corruptly persuading” under §
1512(b). United States v. Khatami, 280 F.3d 907, 912-13 (9th Cir.
2002) (citing cases). However, “it is an affirmative defense, as
to which the defendant has the burden of proof by a preponderance
of the evidence, that the conduct consisted solely of lawful
conduct and that the defendant’s sole intention was to encourage,
induce, or cause the other person to testify truthfully.” 18
U.S.C. § 1512(e) (2005) (formerly subsection (d)).
The jury found Cruzado guilty of tampering or attempting
to tamper with the testimony of Cuevas (Cristalería's owner) on or
9
Cruzado erroneously contends that the jury found him guilty
of tampering with Lilia Alonso Alvarez (Sidney Travel's owner) in
a telephone call on August 4, 2001; Milton Martínez Arroyo (owner
of Martínez Air Conditioning) in late 2000 or early 2001; and Luis
A. Vargas López (owner of Mundo Construction, Inc.) in a telephone
call on December 9, 2001. The jury found him not guilty as to
those incidents.
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about October 9, 2001; Drs. González and Rivera (owners of Vega
Alta Medical Hospital, Inc.) on October 17, 2001; and Marrero
(owner of Premier Electrical) in a telephone call on December 10,
2001.
Cruzado’s argument is simple: all he did was urge
witnesses to tell the truth, which is not a crime. According to
the witnesses, Cruzado did ask that they tell the truth; however,
his version of “the truth” that he urged upon them was anything but
the truth. To Cuevas, Cruzado described the $4,000 as repayment of
a loan extended to Cuevas before he became mayor. At first, Cuevas
maintained that story in front of the FBI. He then changed his
tune, admitting that the money was skimmed from the inflated bid he
submitted to Vega Alta and the double payment he received in
return. As for the doctors, the jury was entitled to reject
Cruzado’s characterization of the $5,000 payment as a political
contribution, and instead find that the doctors’ need for the
mayor’s good graces induced them to hand over the money. Even with
respect to Dr. Rivera’s testimony -- that he believed the money was
for the air conditioner, as evidenced by the invoice he received
(on Onaden letterhead) -- the jury could have found that Cruzado
was trying to persuade a witness to testify to something other than
his true beliefs. Finally, the jury could have found that
Cruzado’s repeated calls to Marrero and his continued interest in
Marrero's business affairs, which culminated in Marrero's hiring a
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lawyer to send a cease-and-desist letter, constituted tampering.
III.
A. Choosing the correct guidelines manual
As a threshold matter, a sentencing court must first
decide which edition of the sentencing guidelines to use. A
defendant should be sentenced according to the guidelines in effect
on the date of sentencing, unless "the court determines that use of
the Guidelines Manual in effect on the date that the defendant is
sentenced would violate the ex post facto clause of the United
States Constitution,” in which case “the court shall use the
Guidelines Manual in effect on the date that the offense of
conviction was committed." USSG § 1B1.11(b)(1).10 Cruzado was
sentenced on November 8, 2002, seven days after the November 1
effective date of the 2002 guidelines. Nevertheless, the PSR used
a two-year-old edition of the guidelines, its only explanation
being the flat assertion that the "2000 edition . . . has been used
in this case to comply with the provisions of Guidelines §
1B1.11(b)(1)." The district court followed the PSR's lead and
sentenced Cruzado under the 2000 edition of the guidelines.
The PSR and the district court made a mistake, however,
10
The Constitutional prohibition against ex post facto laws,
U.S. Const., art. I, § 9, cl. 3, requires that a defendant be
sentenced under the guidelines in effect when he committed the
offense, rather than those in effect at time of sentencing, where
subsequent amendments would have increased his punishment. See
United States v. Colón-Muñoz, 318 F.3d 348, 361 (1st Cir. 2003).
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because Cruzado’s last offense of conviction occurred on December
10, 2001, thereby making the 2001 guidelines –- not 2000 –- the
relevant comparison with the 2002 guidelines for ex post facto
purposes. Even in a complex case like this one, involving conduct
that occurred on dates implicating different versions of the
manual, "it will not be necessary to compare more than two manuals
to determine the applicable guideline range -- the manual in effect
at the time the last offense of conviction was completed and the
manual in effect at the time of sentencing." Id. § 1B1.11, cmt.
background (emphasis added).
Count 11 charged Cruzado with, among other things,
unlawful conduct on December 10, 2001 -- tampering with the owner
of Premier Electrical. Cruzado was convicted of that offense.
December 10, 2001, was more than a month after the effective date
of the guidelines' 2001 edition. Therefore, the comparison for ex
post facto purposes is between the 2002 edition and the 2001
edition. As it turns out, the relevant sentencing guidelines did
not change between those two years. Therefore, Cruzado is right
that he should have been sentenced under the 2002 guidelines, and
the court, misled by the PSR, plainly erred in applying the 2000
guidelines.
B. Reasons for remanding
Arguably, we could continue our analysis to see if
Cruzado was prejudiced by the application of the 2000 guidelines.
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See United States v. Sedoma, 332 F.3d 20, 28 (1st Cir. 2003)
(reviewing a sentence for plain error). That analysis might reveal
that a sentence under the 2002 guidelines would involve the same
guidelines range as the 2000 guidelines. On the other hand,
Cruzado argues that he would receive a lower sentence under the
2002 guidelines, while the government and the district court
believe that he would receive a higher sentence. For two reasons,
however, we decline to undertake such an analysis here.
First, between the 2000 and 2002 editions, the sentencing
commission introduced a major change in the way that sentences for
money laundering are calculated. The 2000 guidelines simply gave
a fixed number as the base offense level for money laundering. The
2002 guidelines take a more complicated approach by incorporating
the offense level of the underlying offense.11 Sentencing under
that new regime might involve factual disputes or legal issues
which the district court has not yet had an opportunity to address.
If we were to explore this uncharted territory ourselves, we, in
effect, would be doing the sentencing rather than the district
court. That is not an appropriate allocation of functions. See
Koon v. United States, 518 U.S. 81, 98 (1996) ("District courts
have an institutional advantage over appellate courts" in some
11
The laundering guideline says to use the "offense level for
the underlying offense from which the laundered funds were derived,
if (A) the defendant committed the underlying offense . . . ; and
(B) the offense level for that offense can be determined." USSG §
2S1.1(a)(1). Both conditions are true for Cruzado.
-41-
sentencing matters.); United States v. Rivera, 994 F.2d 942, 950
(1st Cir. 1993) (Breyer, C.J.) (referring to district courts'
"institutional strength" as being able to "best understand the
relation of the Guidelines to case-specific, detailed facts").
Second, after United States v. Booker, 543 U.S. __, 125
S. Ct. 738 (2005), the sentencing guidelines are now advisory
rather than mandatory. See also United States v. Antonakopoulos,
399 F.3d 68 (1st Cir. 2005). That legal development injects even
more uncertainty into an attempt by us to reconstruct a sentencing
decision by the district court under the 2002 guidelines.
Therefore, we conclude that the most prudent course is to vacate
the sentence and remand for resentencing under the correct edition
of the guidelines.
IV.
We AFFIRM Cruzado’s convictions. We VACATE Cruzado’s
sentence and REMAND for further proceedings not inconsistent with
this opinion.
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Appendix
Embezzlement & Extortion Laundering 12 Tampering
Theft
Count 1: 18 Between Mar.
U.S.C. § 2001 & Jan.
666(a)(1)(A) 25, 2002:
stole more
(i) and than $5,000
(a)(1)(A)(ii) from Vega
Alta.
Count 2: id. § April 5,
1951(a) 2001: $4,000
from
Cristalería
Count 3: id. April 6, 2001:
1956(a)(1)(B)(i) cashed one
and $2,000 check,
(a)(1)(B)(ii) deposited
another $2,000
check from
Cristalería
Count 4: id. § May 25 &
1951(a) July 6,
2001:
$13,991.54
in refunds
from Sidney
Travel
Count 5: id. § May 30, 2001:
1956(a)(1)(B)(i) deposited
and $5,816.74 check
(a)(1)(B)(ii) from Sidney
Travel
Count 6: id. § May 25 &
1951(a) July 6,
2001: $5,000
from Vega
Alta Medical
Hospital
Count 7: id. § July 3, 2001:
1956(a)(1)(B)(i) deposited $4,165
and check from
(a)(1)(B)(ii) Centro Cultural
12
Except where noted (i.e., count 10), all deposits were
checks made payable to Onaden, Inc., and deposited into Cruzado’s
“Oficina Dental Las Colinas, Inc.” account at Banco Popular, Vega
Alta branch.
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Count 8: id. § July 9, 2001:
1956(a)(1)(B)(i) deposited
and $8,174.80 check
(a)(1)(B)(ii) from Sidney
Travel
Count 9: id. § July 11, 2001:
1956(a)(1)(B)(i) deposited $5,000
and check from Vega
(a)(1)(B)(ii) Alta Medical
Hospital
Count 10 (later Sept. 25, 2001:
dismissed): id. deposited
§ $3,788.51 check
1956(a)(1)(B)(i) from Centro
and Cultural to
(a)(1)(B)(ii) “Cash” in “El
Cajero Expresso"
account
Count 11: id. § Between Aug.
1512(b)(1) and 2001 & Dec.
(b)(2) 2001, tampered
with owners of
Cristalería,
Vega Alta
Medical
hospital, &
Premier
Electrical
(found not
guilty of
tampering with
Sidney Travel,
Martínez Air
Conditioning, &
Mundo
Construction)
Count 12 (not June & July
guilty): id. § 3, 2001:
1951(a) Cristalería
Count 13: id. § Between
1951(a) Sept. & Oct.
15, 2001:
$10,000 from
Premier
Electrical
Count 14: id. § Sept. & Oct.
1951(a) 2001: $2,000
from Mundo
Construction
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