United States Court of Appeals
For the First Circuit
No. 03-2073
No. 04-1424
UNITED STATES OF AMERICA,
Appellee,
v.
EDISON MISLA-ALDARONDO,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Howard, Circuit Judge,
Stahl and Baldock,* Senior Circuit Judges.
Laura Maldonado Rodríguez for appellant.
Thomas M. Gannon, Attorney, Appellate Section, Civil
Division, U.S. Department of Justice, with whom Rosa E.
Rodríguez-Velez, United States Attorney, and Nelson Perez-Sosa,
Assistant United States Attorney, were on brief, for appellee.
March 2, 2007
*
Of the Tenth Circuit, sitting by designation.
STAHL, Senior Circuit Judge. Edison Misla Aldorando
("Misla"), the former Speaker of the Puerto Rico House of
Representatives, was convicted in U.S. District Court for the
District of Puerto Rico of extortion, money laundering, and witness
tampering. The charges stemmed from a scheme by a group bidding to
purchase a state hospital being privatized. The group sought, and
paid for, Misla's help in securing the regulatory approval needed
for the purchase. A jury convicted Misla and he was sentenced to
71 months' imprisonment and three years' supervised release, fined
$12,500, and ordered to forfeit $147,400. Misla now appeals his
conviction and sentence, and the denial of his motion for a new
trial. We affirm.
I. Factual Background
In the late 1990s, the Puerto Rico Department of Health
(PRDH) and the Government Development Bank (GDB) began privatizing
the island’s state-owned hospitals. See P.R. Laws Ann. tit. 24, §§
3301-3325 (repealed 2003). Investors were identified through a
competitive bidding process, with private entities with an existing
hospital management contract being given an option to purchase that
particular hospital without participating in any competitive
bidding process.
The Dr. Alejandro Otero Lopez Hospital (HAOL) in Manatí,
Puerto Rico, was a public hospital managed by Carribean Hospital
Corporation (CHC). Co-defendants Dr. José De Jesús Toro ("De
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Jesús") and Dr. Alvin Ramírez Ortiz ("Ramírez") owned Carribean
Anesthesia Services, Inc. (CAS), HAOL's anesthesiology provider.
CAS wished to purchase HAOL, and to circumvent the bidding process
it needed first to acquire CHC's management contract.
De Jesús and Ramírez hired co-defendant José Ivan Ramos
Cubano ("Ramos") to assist with the purchase of the CHC contract
and, ultimately, HAOL in exchange for consulting fees of $15,000
per month and a partnership in their company. The first step, the
purchase of the CHC contract, required the approval of PRDH. Ramos
arranged for a meeting with co-defendant José Gerardo Cruz Arroyo
("Cruz"), the head of PRDH's legal division. Ultimately, Cruz
would take a bribe in order to allow CAS to purchase CHC's contract
to manage HAOL.
The next step was obtaining GDB's approval for the
purchase of HAOL outright. Ramos testified that he solicited the
assistance of Misla because Misla had a close relationship with
Marcos Rodríguez Ema ("Rodríguez"), GDB's president. Misla agreed
to help secure GDB's approval in exchange for payment. Ramos also
testified that Misla, in furtherance of the agreement, arranged
meetings between CAS and Rodríguez that CAS could not have
otherwise obtained. Ramos’s testimony was corroborated by that of
Ramírez.
In October 1997, an independent law firm engaged by GDB
recommended that CAS be deemed ineligible to purchase HAOL because
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CAS owed an outstanding debt to PRDH. Regardless, Rodríguez
ordered the privatization committee to accept CAS’s offer of $14
million for HAOL and to arrange for CAS to repay the outstanding
debt at a future date. The sale of HAOL to CAS was completed on
September 17, 1998.
Between August and October 1998, Ramos transferred
approximately $147,400 from HAOL -- now managed by CAS -- to Misla
by cashing checks and furnishing the proceeds directly to Misla or
his associates.
In May 2001, Puerto Rico’s Justice Department began
investigating the transaction and eventually Misla. In October
2001, Ramos agreed to cooperate with the government and record his
conversations with Misla. While being recorded, Misla suggested,
among other things, that Ramos leave the country for a while; that
they come up with a cover story for the payments; and that he,
Misla, would work to stall or stop the investigation.
On October 25, 2001, Misla was indicted for extortion,
money laundering, and witness tampering. Following a jury trial,
Misla was convicted on five of the six charges.1 On June 20, 2003,
the district court sentenced Misla to concurrent terms of 71
months' imprisonment for each conviction and three years'
1
He was not convicted on Count 5, one of the extortion
charges.
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supervised release. The court also ordered him to forfeit the
$147,400 paid to him by Ramos.
Additional facts relevant to the various issues on appeal
are recited below.
II. Discussion
A. Pretrial Motions
1. Background
The indictment, as well as unrelated charges against
Misla for sexual assault on a minor, generated considerable
pretrial publicity. The publicity included posters put up
throughout San Juan bearing Misla’s photograph and the caption,
“Stealing Prohibited: the Government does not admit competitors.”2
Alleging that this pretrial publicity was prejudicial, Misla moved
for a change of venue to the Virgin Islands and, in the
alternative, a 90-day continuance to allow for any pretrial
publicity to subside. Misla also requested expanded jury voir
dire.
The district court denied all motions, but conducted
individualized voir dire over a five-day period. Misla submitted
a list of 84 proposed voir dire questions to the court. The court
selected several of Misla’s proposed questions, including questions
concerning pretrial publicity, the sexual assault charges pending
against Misla, and whether the jurors believed Misla to be a
2
This is the translation as provided by the defendant.
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corrupt politician. During voir dire, Misla requested five
additional peremptory challenges. He renewed his request at the
close of voir dire. Both motions were denied.
Of the 84 jurors interviewed, 13 were excused for
possible bias. After the completion of voir dire, Misla challenged
an additional eight jurors for cause. The district court denied
the challenges. Ultimately, the final petit jury contained only
one of the jurors that had been challenged by Misla.3
We review a district court's decisions on motions for
change of venue, continuance, expanded voir dire, and additional
peremptory challenges for abuse of discretion. See United States
v. Brandon, 17 F.3d 409, 441 (1st Cir. 1994) (change of venue);
United States v. Rodríguez-Marrero, 390 F.3d 1, 21-22 (1st Cir.
2004) (continuance); United States v. Anagnos, 853 F.2d 1, 5 (1st
Cir. 1988) (expanded voir dire); United States v. Marrero-Ortíz,
160 F.3d 768, 776 (1st Cir. 1998) (peremptory challenges) (citing
United States v. Cox, 752 F.2d 741, 748 (1st Cir. 1985)).
2. Change of Venue
A change of venue is proper if the court determines that
there exists "so great a prejudice against the defendant . . . in
the transferring district that the defendant cannot obtain a fair
and impartial trial there." Fed. R. Crim. P. 21(a). In making
3
This juror, number 80, was challenged because he had
expressed his understanding that, as a matter of statistics, most
defendants are found guilty at trial.
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this determination, we ask 1) whether the degree of inflammatory
publicity had so saturated the community such as to make it
"virtually impossible to obtain an impartial jury," United States
v. McNeill, 728 F.2d 5, 9 (1st Cir. 1984), or 2) if prejudice
cannot be presumed, whether nonetheless the empaneled jury was
actually prejudiced against the defendant. See United States v.
Rodríguez-Cardona, 924 F.2d 1148, 1158 (1st Cir. 1991); United
States v. Angiulo, 897 F.2d 1169, 1181 (1st Cir. 1990). Misla does
not argue actual juror prejudice on appeal, and so we review only
for whether prejudice should have been presumed from the extent of
the pretrial publicity.
A presumption of prejudice is reserved for those extreme
cases where publicity is "both extensive and sensational in
nature." Id. Merely a high volume of media coverage is not
sufficient to presume prejudice, if that coverage is factual, as
opposed to inflammatory. Id.; see Brandon, 17 F.3d at 441. A
court may judge the partiality of the community by looking to the
"length to which the trial court must go in order to select jurors
who appear to be impartial." Murphy v. Florida, 421 U.S. 794, 802-
03 (1975). In general, "[i]t is sufficient if the juror can lay
aside his impression or opinion and render a verdict based on the
evidence presented in court." Dobbert v. Florida, 432 U.S. 282,
302 (1977) (quoting Irvin v. Dowd, 366 U.S. 717, 723 (1961)). But
when a large percentage of the venire is disqualified, this
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evidence of prejudice in the community may lead a court to
"properly question the remaining jurors' avowals of impartiality."
Angiulo, 897 F.2d at 1181-82 (citing Murphy, 421 U.S. at 802-03).
The publicity surrounding this case was undoubtedly
extensive. Misla had been the Speaker of the Puerto Rico House of
Representatives and was simultaneously being investigated on
charges of sexual assault on a minor. To address this, the
district court conducted an extensive and individualized voir dire,
taking 15 to 25 minutes with each juror and asking each upwards of
50 questions.
The questions were substantially the same for all jurors
and covered subjects such as: the jurors' own beliefs in Misla's
guilt or innocence; which newspapers they read, radio stations they
listened to, and television stations they watched; whether they had
read particular newspaper articles or columns; whether they had
listened to the comments of the Secretary of Justice; whether they
had participated in, or listened to the results of, any radio
polls; whether they had discussions with others about the case;
whether they were members of a political party; and whether they
had views about the corruption of politicians in general, and Misla
and his party in particular. The district court further inquired
into whether the jurors or any close friends or family members had
ever been a victim of rape or sexual molestation. The district
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court also inquired extensively into the jurors' understanding of
the presumption of innocence and the burden of proof.
In the end, only 13 out of 84 jurors were excused for
possible bias. This rate of disqualification, roughly 15 percent,
is too low to be sufficient to presume prejudice in the community.
See Murphy, 421 U.S. at 803 (no prejudice presumed where around 25
percent of venire "indicated an opinion" as to guilt); Brecheen v.
Reynolds, 41 F.3d 1343, 1351 (10th Cir. 1994) (25% of venire
excluded "for cause"); United States v. Moreno Morales, 815 F.2d
725, 735 (1st Cir. 1987) (25% of venire "admitted . . . to
believing that defendants were guilty"); accord Irvin, 366 U.S. at
727 (prejudice presumed where 90% of venire "entertained some
opinion as to guilt"). Even if we include the eight additional
jurors that Misla challenged for cause (but which the judge found
were not biased), the percentage would only be 25 percent.
While a low percentage of disqualification is not a safe
harbor against a finding of prejudice, it is strong evidence
against it. But it may nonetheless be countered by persuasive
direct evidence of the level of saturation of inflammatory
publicity. See Rodríguez-Cardona, 924 F.2d at 1158. Here, Misla
provided the district court with, by his count, over 180 articles
attempting to show such saturation, and the court nonetheless held
that change of venue was not necessary given the extensive voir
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dire that was planned.4 Misla does not now point us to any
specific evidence that would lead us to believe that the judge
abused her discretion in denying the motion, especially given the
success of the voir dire.5 Accord Rideau v. Louisiana, 373 U.S.
723 (1963) (holding, in reversing conviction based solely on
pretrial publicity without a finding of actual prejudice in jurors,
that television broadcast of filmed confession seen by two-thirds
of the community necessitated a presumption of prejudice) (cited in
Moreno Morales, 815 F.2d at 735-36).
3. Continuance
"We grant 'broad discretion' to a trial court to decide
a continuance motion and will only find abuse of that discretion
with a showing that the court exhibited an 'unreasonable and
arbitrary insistence upon expeditiousness in the face of a
justifiable request for delay.'" United States v. Rodríguez-
Marrero, 390 F.3d 1, 21-22 (1st Cir. 2004) (quoting United States
v. Rodríguez Cortes, 949 F.2d 532, 545 (1st Cir. 1991)). "Among
the factors to be considered in reviewing a denial of a motion for
a continuance are . . . the defendant's diligence, the
4
In denying Misla's motion for reconsideration of the denial
of the motion for change of venue, the district court said that it
would reconsider the issue of venue if the voir dire was
unsuccessful.
5
Misla argues, incorrectly, that the district court denied the
change of venue motion because it was filed close to the beginning
of trial. In fact, that reason was raised only in the denial of
the certification to appeal.
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inconvenience to the court and other parties, the likely utility of
a continuance, and any unfair prejudice caused by the denial."
United States v. Orlando-Figueroa, 229 F.3d 33, 40 (1st Cir. 2000).
Here, Misla argues for a continuance only on the grounds
of pretrial publicity, which, as discussed above, was sufficiently
addressed by the voir dire. With that issue dealt with, denying
the motion for continuance was not an unreasonable or arbitrary
insistence on expeditiousness, and thus the judge did not abuse her
discretion.
4. Expanded Voir Dire
Misla is imprecise in his objection to the voir dire
procedures. In his brief, Misla at times seems to be saying that
the voir dire should have been expanded to allow more of his
questions to be asked. At other times, he seems to be arguing that
the questions that were asked were prejudicial (which, if true,
would not be solved by expanding the number of questions). The
latter argument has no merit since the questions Misla complains of
here, relating to sexual molestation, were precisely those that he
requested be asked.
The former argument, that the voir dire should have been
expanded yet further beyond the already expanded voir dire that the
court conducted, also fails. In deciding on the manner in which to
conduct voir dire, the court "has broad discretion . . . subject
only to the essential demands of fairness. It need not permit
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counsel to dominate the process, nor pose every voir dire question
requested by a litigant." Real v. Hogan, 828 F.2d 58, 62 (1st Cir.
1987) (citation omitted).
The only specific question Misla says should have been
asked was one regarding whether the jurors were talking about the
case among themselves while awaiting voir dire. The judge denied
the particular question as being too open-ended and not probative
of whether the particular juror being questioned had talked about
it in a way that might have influenced the juror's opinion of
Misla's guilt. The judge said that the existing voir dire
questions adequately delved into that area. We agree. The judge
did a thorough job of probing for bias and Misla is far from making
the required showing that the lack of this question or others
prejudiced him.6 See Murphy, 421 U.S. at 803; see also United
States v. Casas, 425 F.3d 23, 48-49 (1st Cir. 2005) (lengthy
individualized voir dire sufficient to overcome any prejudice as a
result of juror communications with third party).
5. Additional Peremptory Challenges
Misla asked for, and was denied, five additional
peremptory challenges. Misla argues, essentially, that he was owed
more peremptory challenges because he had been denied several of
his for-cause challenges. To the degree that this is a roundabout
6
In addition to the lack of any evidence of actual prejudice
on the part of the jury, we note the additional fact that the jury
empaneled through this process actually acquitted Misla on Count 5.
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attempt to challenge those for-cause denials, it fails. "'There
are few aspects of a jury trial where we would be less inclined to
disturb a trial judge's exercise of discretion, absent clear abuse,
than in ruling on challenges for cause in the empaneling of a
jury.'" United States v. González-Soberal, 109 F.3d 64, 69-70 (1st
Cir. 1997) (quoting United States v. McCarthy, 961 F.2d 972, 976
(1st Cir. 1992)). Misla raises no other substantive argument for
why more peremptory challenges were required. Given that he did
not use any of his allotted ten challenges on the cause-challenged
jurors, we fail to see the connection, particularly since, again,
there has been no claim of actual prejudice among the petit jury
members. There was no abuse of discretion.
B. Ramos-Pubill Connection
1. Background
During trial on December 4, 2002, counsel for Misla was
cross-examining Ramos, the government's cooperating witness.
Seeking to impeach him, counsel asked Ramos about several different
bad acts allegedly attributable to him. In one particular
exchange, counsel asked Ramos about an investment of $300,000 he'd
taken from a gas station owner named Eduardo Pubill to invest on
his behalf in a company called Telefónica Hispanoamericano. It
turned out that Eduardo Pubill's son, Edgardo, was a convicted drug
trafficker, and that it was likely that the $300,000 were proceeds
of illegal drug sales that Edgardo was seeking to launder through
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his father's gas station and the Telefónica Hispanoamericano
investment.
Counsel for Misla challenged Ramos on whether he knew
that he was laundering money, but Ramos denied knowing the source
of the money, saying that he simply believed that an owner of a gas
station would be likely to have excess cash to invest. At sidebar,
the government said that Ramos had only discovered the illegal
source of the funds while being debriefed by then–U.S. Attorney
Guillermo Gil in preparation for trial in this case. Gil, having
worked on the prosecution of Edgardo Pubill, was aware of the gas
station in question because he had attempted to seek its
forfeiture, since it was likely a front for Edgardo's drug
trafficking. The district court ordered the government to look
into the Ramos-Pubill transaction further, and any other potential
activities or cases involving Eduardo Pubill, the father.
Two days later, on December 6, 2002, the prosecution
reported that Eduardo Pubill had no federal convictions. The court
then ordered the prosecution to obtain official certification from
federal investigating agencies, such as the Federal Bureau of
Investigation (FBI), the Drug Enforcement Administration (DEA), and
the U.S. Customs Service, as to whether there was any evidence that
Ramos laundered money for Eduardo Pubill or his son, Edgardo.
On December 9, 2002, the judge, having inquired with the
Probation Office, reported that Eduardo Pubill did in fact have a
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prior conviction, in case no. 92-194. On the same date, the court
issued an order requiring the FBI, DEA, Customs Service, and
Internal Revenue Service to produce any interview or investigation
reports related to case no. "92-094," against Eduardo Pubill, and
no. "91-299," against Edgardo Pubill, that referenced Ramos or
Telefónica Hispanoamericana. Unbeknownst to the court or counsel,
case no. 92-194 was incorrectly cited on the order as no. 92-094.
Perhaps because of this error, no further information about a
conviction of Eduardo Pubill was discovered.
Upon learning of the court's order, Deputy U.S. Marshal
Roberto Vizcarrondo recalled an interview he had done with an
informant named Pedro Torres Molano ("Torres") on December 4, 2001,
when Vizcarrondo was detailed to the FBI Intelligence Research
Center, in which Torres had stated that he had helped to launder
the Pubills' money through Ramos, and that Ramos was well aware of
the source of the funds. On December 11, 2002, he forwarded the
draft Form 302 interview sheet ("Form 302"), in which he had
earlier written the details of the conversation, to FBI agent José
Figueroa. The next day, the Form 302 was provided to the court by
FBI agent Jane Erickson. She noted that the Form 302 was not
related to the case numbers referenced in the court’s December 9
order, but was relevant to Ramos and Telefónica Hispanoamericano.
After an inspection of the document, the court issued a
subsequent order that: (1) indicated that the newly discovered Form
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302 was relevant to witness Ramos; (2) included a redacted copy of
the Form 302; and (3) granted Misla a continuance until December
17, 2002.
Torres was called to testify, and in his testimony on
December 20, 2002, he stated that he informed Ramos that
“supposedly the money came from an illegal source.” Tr. 12/20/02
at 44. Soon after that, the court interrupted the testimony to
hold an evidentiary hearing to determine whether Misla could also
use the Form 302 to impeach Ramos. During the evidentiary hearing,
Vizcarrondo, FBI Special Agent Judith Priegues-López ("Priegues"),
and FBI Agent Carlos Hernández testified that the Form 302 was
created but never indexed or uploaded to the central server where
other agents would have been able to query the form. They also
testified that Vizcarrando had originally provided the Form 302 to
Priegues, who then hand-delivered a disk with the interview to
Hernández's office after telling him by phone to expect it.
Hernández testified that he recalled the conversation with
Priegues, but that he never received the disk, and did not follow
up with Priegues when it did not appear.
Misla then moved to have the jury discharged and the
indictment dismissed, alleging prosecutorial misconduct. Misla
argued that Hernández had been present during Ramos's testimony and
remained silent despite remembering his conversation with Priegues
about the Form 302. The district court denied the motion ruling
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that, while Misla had difficulty obtaining the impeachment
material, he now had the material and could make effective use of
it.
The testimony of Torres resumed after the close of the
evidentiary hearing. Torres was allowed to review the Form 302,
and he clarified his earlier testimony by further stating that he
"told Ramos . . . that it was being said that the money coming from
Pubil[l] were proceeds of drugs." Tr. 12/20/02 at 163.
The trial continued on December 26, 2002. Misla recalled
Ramos and cross-examined him regarding his prior testimony about
the transaction with Eduardo Pubill. Misla also moved that day to
question both Hernández and Priegues regarding the Form 302,
stating that such testimony would allow the jury to make inferences
regarding the government's intention to withhold impeachment
material.
On January 14, 2003, the district court denied Misla's
motion to question Hernández and Priegues. The court stated that
Misla was merely attempting to demonstrate prosecutorial
misconduct, and that such evidence was not relevant to impeaching
Ramos. Trial continued from that point, and a verdict was reached.
On October 9, 2003, nearly nine months after the jury had
returned a verdict, the prosecution filed an informative motion
stating that Eduardo Pubill, the source of the money that Ramos
invested in the Telefónica Hispanoamericano stock, had been
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previously convicted in federal court of structuring financial
transactions to avoid reporting requirements, in violation of 31
U.S.C. § 5324. The motion stated that the government was filing
the motion because this information was contrary to the
government's assertion at trial that Eduardo Pubill had no
convictions. The government explained this lapse by saying that
earlier database searches by several agencies had turned up nothing
except for the conviction of Eduardo's son, Edgardo Pubill. The
case number for this conviction was 92-194, which, as discussed
above, had been erroneously given as 92-094 in the district court's
order seeking more information on Pubill.
Misla moved to dismiss the indictment or, in the
alternative, for a new trial. He argued that the failure to
disclose Eduardo Pubill's conviction earlier was prosecutorial
misconduct that denied him the chance to fully impeach Ramos, the
government's main witness. The district court denied the motion,
saying that even without the record of Eduardo Pubill's conviction,
there was ample material with which to impeach Ramos, including the
testimony of Torres. The district court also stated that it would
have been straightforward for Misla to discover the error in the
case number and bring it to court's attention.
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2. The Form 302 Interview
We review for abuse of discretion a district court's
decision on how to handle a delayed disclosure. United States v.
Catano, 65 F.3d 219, 227 (1st Cir. 1995).
Prior to trial, Misla sought discovery under Giglio v.
United States, 405 U.S. 150 (1972), of information potentially
useful in impeaching government witnesses. Under Giglio, the
withholding of such impeachment information would fall under the
rule of Brady v. Maryland, 373 U.S. 83 (1963), that suppression of
favorable evidence violates due process if the evidence is material
to guilt or punishment. Giglio, 405 U.S. at 154. Where the
evidence is never forthcoming, we ask whether that nondisclosure
"might have affected the outcome of the trial." United States v.
Agurs, 427 U.S. 97, 104 (1976). However, where the evidence is
only delayed, we ask instead "whether defendant's counsel was
prevented by the delay from using the disclosed material
effectively in preparing and presenting the defendant's case."
United States v. Ingraldi, 793 F.2d 408, 411-12 (1st Cir. 1986);
see Catano, 65 F.3d at 227.
To prevail on this argument, the defendant must at a
minimum make "a prima facie showing of a plausible strategic option
which the delay foreclosed." United States v. Devin, 918 F.2d 280,
290 (1st Cir. 1990); see United States v. Lemmerer, 277 F.3d 579,
588 (1st Cir. 2002). Misla has made no such showing here.
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Instead, he argues only that the circumstances of the disclosure
imply an attempt by the government to deliberately keep the
information from Misla. Even if that were true, it is not
sufficient to force a mistrial where the defendant is not
prejudiced. "The critical inquiry is not why disclosure was
delayed but whether the tardiness prevented defense counsel from
employing the material to good effect." Devin, 918 F.2d at 290.
The district court found that the delayed disclosure had
no effect, since Misla was still able to use the information to
impeach Ramos. Indeed, Misla appears to have been fully aware of
the allegations contained in the Form 302 prior to trial, since the
allegations of money laundering first came to light through his
counsel's cross-examination of Ramos. Given this, we fail to see
how Misla was prejudiced by the delayed disclosure of the Form 302
interview with Torres.
Misla also challenges the district court's ruling to
disallow the testimony of Hernández and Priegues, the FBI agents
who had originally handled the Form 302. The court stated that
testimony regarding an alleged cover-up was not relevant to the
case, especially given that Misla already had the Form 302 admitted
into evidence to use to impeach Ramos. Misla argues that the fact
of any government cover-up would have bolstered his argument that
Ramos was lying about laundering the Pubill money.
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It may be that this ruling should be reviewed as a
typical evidentiary matter, rather than as a ruling on a possible
sanction for a Brady violation, but regardless our review is solely
for abuse of discretion. United States v. Guerrier, 428 F.3d 76,
79 (1st Cir. 2005) (as to evidentiary ruling); Catano, 65 F.3d at
227 (as to decision on delayed disclosure). For the same reasons
as discussed above, we find no such abuse here.
3. The Eduardo Pubill Conviction
Following the government's informative motion of October
9, 2003, regarding Eduardo Pubill's conviction for structuring
financial transactions to avoid reporting requirements, Misla moved
to dismiss the indictment or, in the alternative, for a new trial.
The judge denied the motion.
This issue presents a slight puzzle with respect to our
standard of review, though it is easily resolved. The denial of
the motion appears to be subject to our review under the standards
given in Brady and Gigilio, just as the delayed disclosure of the
Form 302 interview with Torres was, as discussed above. The
government's informative motion describes this as a case of
nondisclosure, which would subject them to a relatively tough
standard of review if we were to review under Brady. See Agurs,
427 U.S. at 104 (whether disclosure "might have affected the
outcome of the trial"). However, it's not clear that this is
nondisclosure -- or even delayed disclosure -- since the court
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informed both parties on December 9, 2002, during trial, of exactly
this conviction. The trouble arises because of the court's error
in noting the case as no. 92-094 rather than no. 92-194 in its
December 9 order. Perhaps as a result of that clerical error,
though we can't know for sure, no party seems to have followed up
on that particular case, and thus no party informed the court of
its error in reporting the case number.7
As the district court itself noted after receiving the
government's informative motion,
[t]he fact that this motion has been filed at all leads
to confusion since the Court, despite the government's
representation during trial that Mr. Eduardo Pubill-
Rivera had not been convicted, took the initiative to
probe into the matter. The result of that inquiry was
the disclosure to the parties of Mr. Eduardo Pubill-
Rivera's conviction and sentence. . . . We do not
anticipate any controversy arising from the information
provided in the government's last motion since this is
not newly discovered information but rather data
disclosed and utilized during the trial.
7
We note that in the transcript for December 9, 2002, the case
number was given correctly at one point. Tr. 12/9/02 at 4.
Therefore, it would have been a simple matter for the mistake to be
corrected. We have not found any reference in the transcripts, nor
have the parties pointed us to one, where the parties reported
pursuing the mistakenly cited case no. 92-094 and discovering that
it was unrelated to Pubill.
It's not entirely clear from the record why what should have
been a routine matter of searching conviction records was so
fraught with difficulty. In addition to the judge's clerical error
in reporting the case number, some confusion about names may have
played a role. In the instant case, Eduardo and Edgardo's surname
is given as "Pubill," but in the transcripts the parties also used
"Pubil" and "Purill." The indictment and judgment of Edgardo also
used "Pubil."
-22-
Sealed Order, October 10, 2003. We agree with the district court's
reasoning. This is at worst an instance of delayed disclosure,
since the information came out during trial, and thus we again ask
"whether defendant's counsel was prevented by the delay from using
the disclosed material effectively in preparing and presenting the
defendant's case." Ingraldi, 793 F.2d at 411-12. Our standard of
review of the denial of the motion is, again, abuse of discretion.8
8
The government's brief would have us review the denial of a
new trial under the standards of Fed. R. Crim. P. 33, rather than
Brady, presumably because they would classify the evidence of
Pubill's conviction as "newly discovered" rather than as something
known to the government but not disclosed. If it were true that
the conviction had never been disclosed, this distinction would be
important. We would find an abuse of discretion in the denial of
a motion for a new trial under Rule 33 only if the new evidence
created an "actual probability that an acquittal would have
resulted if the evidence had been available." United States v.
Sepulveda, 15 F.3d 1216, 1220 (1st Cir. 1993). On the other hand,
we would find an abuse of discretion in the denial of a new trial
for a Brady violation if the new evidence merely created a
"reasonable probability that the evidence would have changed the
result." United States v. Josleyn, 206 F.3d 144, 151 (1st Cir.
2000). "The standard applied to new trial motions based on Brady
violations is thus more favorable to defendants." Id. However,
because the disclosure was at worst delayed, rather than
nonexistent, our review standards are substantially equivalent.
See United States v. Osorio, 929 F.2d 753, 758 (1st Cir. 1991)
(noting that standard of review for delayed disclosure under
Ingraldi is essentially one of prejudice).
This spares us the difficulty of determining whether the
government can "newly discover" a conviction that it itself
secured. Cf. Kyles v. Whitley, 514 U.S. 419, 437 (1995) (holding
that "prosecutor has a duty to learn of any favorable evidence
known to the others acting on the government's behalf in the case"
(emphasis added)); Osorio, 929 F.2d at 761 (applying Brady to
evidence of a witness's drug dealing that was not known to
prosecutor, but known to others in his office, and holding that the
"prosecutor charged with discovery obligations cannot avoid finding
out what 'the government' knows, simply by declining to make
reasonable inquiry of those in a position to have relevant
-23-
Catano, 65 F.3d at 227. We find no such abuse here, simply because
Misla was not prevented from preparing by the delay. In his brief,
Misla constructs an unlikely string of events: knowledge of Eduardo
Pubill's conviction for a financial crime would have led to him
being called to testify; he would then have disclosed the money
laundering scheme with Ramos; the judge would have been forced to
instruct the jury that Ramos was a perjurer; and this would have so
undermined his credibility, as the government's main witness, as to
make conviction of Misla impossible. This is inference piled upon
inference, particularly since Ramos had already been impeached over
the Pubill connection (not to mention his own involvement in the
conspiracy at issue in the instant case). More fundamentally,
because Misla was provided this information during trial, but
apparently did not pursue it, we cannot say that the delay caused
any prejudice.
Finally, it should not be forgotten that Ramos was the
witness, not Pubill. While prior convictions of Ramos would
clearly be material under Giglio, it is not so clear that the
conviction of a person with whom that witness did business is also
material. At some point, the human chain of bad behavior becomes
too attenuated to be relevant to the trial at hand. Here, however,
knowledge"). But cf. United States v. Bender, 304 F.3d 161, 164
(1st Cir. 2002) (stating, in dictum, that duties under Brady may be
required only of those such as "members of the prosecuting team,
including police investigators working for the prosecution").
-24-
we are not called upon to make that determination, because in any
event Misla was not prejudiced. Therefore, the judge did not abuse
her discretion.
C. Ramírez Testimony
Misla next argues that the district court should have
struck the testimony of Alvin Ramírez, one of the CAS principals,
on the grounds that he lacked personal knowledge. Because this was
an evidentiary ruling to which Misla objected, our review is for
abuse of discretion. United States v. Brown, 450 F.3d 76, 78 (1st
Cir. 2006). Even if the court erred, we will not reverse if the
error is harmless. Id. at 79; see United States v. García-Morales,
382 F.3d 12, 17 (1st Cir. 2004) (error is harmless "if it is highly
probable that the error did not influence the verdict").
Ramírez testified about seeing checks from HAOL to Ramos
that ultimately ended up in the hands of Cruz and Misla. Ramírez
testified several times, however, that he did not know at the time
about the intended use of these specific checks, but only found out
when the government showed him the evidence that they had gathered
during their investigation. Defense counsel objected, but the
district judge allowed the testimony, saying that Misla was free to
cross-examine Ramírez about the source of his knowledge.
Misla's argument is thinly developed, and he cites to no
particular rule of evidence or cases supporting the proposition
-25-
that to have allowed this testimony is reversible error.9 We
decline now to explore all the possible interpretations of the
argument since, in any event, any potential error was harmless.
Despite not knowing the specific purpose of the funds, Ramírez
testified -- based on his personal knowledge -- that he saw the
checks; that he knew that Ramos intended to pay Misla; that Ramos
told him that "nothing in life is free and everything costs money,"
tr. 11/25/02 at 16; and that he assumed that the meeting they were
able to secure with Misla "was [not] a favor that was done just to
help us," id. at 61. Furthermore, the jury heard explicitly about
the source of his knowledge, whether it came during the events in
question or only during later litigation, and thus had a sufficient
basis to judge his credibility. Finally, the other evidence
against Misla was substantial. Given this, even if it were error
to allow the testimony, any error was harmless. See Fed. R. Crim.
P. 52(b).
D. Insufficient Evidence as to Counts 2, 3, 4, and 6
Misla contends that the district court erred in not
dismissing Counts 2 (Hobbs Act extortion, 18 U.S.C. § 1951(a)), 3,
9
United States v. Falu-González, 205 F.3d 436 (1st Cir. 2000),
the one case that Misla does point us to, is inapposite. In that
case, a witness testified to knowing about some sales of drugs, but
in fact had not observed the sales and had only been told of them
by another. The judge allowed the testimony as an admission of a
co-conspirator, and thus admissible under an exception to the
hearsay rule. Id. at 438; see Fed. R. Evid. 802(d)(2)(E). That
analysis is not relevant here.
-26-
4 (two counts of conspiring to launder money, 18 U.S.C. §
1956(a)(1)(B)(i), (a)(3)(A) & (B), and (h)), and 6 (witness
tampering, 18 U.S.C. § 1512). He avers that there was insufficient
evidence to sustain a guilty verdict on each count. We review
attacks on the sufficiency of evidence supporting jury verdicts de
novo. United States v. Washington, 434 F.3d 7, 15 (1st Cir. 2006).
In doing so, we review the evidence "in the light most favorable to
the prosecution," considering whether "any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt." Id.
1. Count 2
To challenge his conviction for extortion under color of
official right, Misla latches onto a clerical error in the
indictment. The indictment names Count 2 as "Interference with
Commerce by Extortion Induced by Economic Fear and Under Color of
Official Right" (emphasis added). Therefore, Misla argues, the
government was bound to prove both economic fear and color of
official right, not just one or the other, which is all that the
statue requires. See 18 U.S.C. § 1951(b)(2) ("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" (emphasis added)).10
10
Count 1, charging conspiracy to commit extortion, did not
contain this misstatement, saying instead "Economic Fear and/or
Under Color of Official Right." Misla does not appeal his
-27-
We have held that:
Where a statute . . . sets forth several different means
by which an offense may be committed, it is permissible
for a count in an indictment to allege all or several of
these means in the conjunctive. A conviction on such a
count will stand if the evidence establishing one or more
of the means of commission alleged is sufficient to
support a jury verdict.
United States v. Garcia-Torres, 341 F.3d 61, 66 (1st Cir. 2003)
(quoting United States v. Barbato, 471 F.2d 918, 922 n.3 (1st Cir.
1973)).11
Working from the incorrect assumption that the government
had to prove both elements, Misla argues the insufficiency only of
the "economic fear" element, but does not challenge the evidence
for the "under color of official right" element. The judge
correctly instructed the jury in the disjunctive (following the
language of the statute, not the indictment), and thus a jury could
have convicted Misla by finding "color of official right" extortion
conviction under Count 1.
11
We note that this does not conflict with our holdings
prohibiting duplicitous indictments. See, e.g., United States v.
Verrecchia, 196 F.3d 294, 297 (1st Cir. 1999) (prohibited
duplicitous indictments are those that join in a single count two
or more distinct offenses). The problem with a duplicitous
indictment is that a jury could convict without unanimity as to any
particular offense. Here, because Count 2 names only one offense,
this is not a concern. See United States v. Arreola, 467 F.3d
1153, 1157 (9th Cir. 2006) (noting distinction between whether "the
statute at issue creates separate offenses, or simply describes
alternative means to commit the same crime").
-28-
alone. That evidence is unchallenged here and this fact is
sufficient to dispose of the issue.12
2. Counts 3 and 4
Misla's challenge to the money laundering charge is that
the government described the same acts as both extortion and money
laundering. Because he was charged with laundering the proceeds of
the extortion, the two acts must be distinct, he argues, and
therefore there was insufficient evidence to sustain a conviction
for money laundering.
To prove conspiracy to commit money laundering, the
government was required to show that Misla agreed with one or more
co-conspirators to 1) knowingly conduct a financial transaction 2)
involving funds that Misla knew to be the proceeds of some form of
unlawful activity and 3) that were in fact the proceeds of a
"specified unlawful activity," and 4) that Misla knew the
transactions to be designed in whole or in part to conceal or
disguise the nature, location, source, ownership, or control of the
proceeds of such unlawful activity. 18 U.S.C. § 1956(a)(1)(B)(i);
12
Even so, the fear element was also presented to the jury.
The fear element of the statute can include fear of economic loss,
including loss of future business opportunities. See United States
v. Bucci, 839 F.2d 825, 827-28 (1st Cir. 1988). The government
argued at trial, and there was sufficient evidence for a jury to
find, that the parties were induced to pay Misla in part for fear
that, if another bidder won the right to buy HAOL, CAS's
anaesthesiology contract might not be renewed.
-29-
see, e.g., United States v. Cruzado-Laureano, 404 F.3d 470, 483
(1st Cir. 2005).
"The laundering of funds cannot occur in the same
transaction through which those funds first became tainted by
crime." United States v. Richard, 234 F.3d 763, 769 (1st Cir.
2000). However, this is "not a requirement that the underlying
crime must be fully completed before any money laundering can
begin." United States v. Castellini, 392 F.3d 35, 48 (1st Cir.
2004). The two crimes need not be "entirely separate in time."
Id.
Misla argues that, until the money reached his hands, the
act of extortion was not completed, and that since, once the money
reached him, there was no effort to conceal it, there was no money
laundering. Any of the acts that took place prior to his receiving
the money, he argues, cannot suffice to be money laundering because
there were no proceeds of extortion yet to conceal. The government
responds that the extortion was completed when Ramos, a co-
conspirator, received the funds from HAOL, Ramírez, and De Jesús,
and that Ramos and Misla took steps at that point to conceal the
transactions, including making some checks payable to Misla's sons
and an aide.
That Misla attempted to conceal the source of the money
before it actually came into his possession cannot relieve him of
criminal liability for money laundering. As we said in Castellini,
-30-
focusing on simultaneity would "obscure the real principle" behind
separating the offenses, viz. "that 'money laundering criminalizes
a transaction in proceeds, not the transaction that creates the
proceeds.'" Id. at 38 (quoting United States v. Mankarious, 151
F.3d 694, 705 (7th Cir. 1998)). The transaction that created the
proceeds -- the act of extortion -- is sufficiently distinct from
the side transactions done to hide the trail -- e.g., writing
checks to relatives and aides -- even if both crimes were complete
only upon the arrival of the funds in Misla's hands.
Furthermore, we should not forget that here Misla was
charged with conspiracy to commit both money laundering and
extortion, and therefore is liable for the acts of his co-
conspirators. Indeed, the indictment specifically references the
facts of Count 1 (the conspiracy to extort) to describe the source
of the unlawful funds applicable to both Counts 3 and 4. Since
Misla is liable for the acts of his co-conspirators, such as Ramos,
a reasonable jury could have found that the act of extortion was
sufficiently complete upon Ramos taking control of the funds from
HAOL. Any of the concealing transactions that follow thus would
clearly involve proceeds of unlawful activity.
3. Count 6
Finally, Misla challenges his conviction for witness
tampering, in violation of 18 U.S.C. § 1512(b)(1), (2), and (3).
After Ramos had agreed to cooperate with the government, he
-31-
recorded conversations with Misla in which Misla discussed ways to
conceal the crime, including having Ramos say that he had actually
been repaying a loan to Misla, and having Ramos leave Puerto Rico.
Misla argues that because Misla's tampering was directed at Ramos,
a "plan instituted by conspirators to provide a false story to
protect themselves cannot constitute witness tampering." Def.
Brief at 45. He claims that, because he did not know that Ramos
was already cooperating, he did not have the necessary intent to
commit the crime of witness tampering.
Section 1512(b) states, in relevant part:
Whoever knowingly . . . corruptly persuades another
person, or attempts to do so, . . . with intent to
influence, delay, or prevent the testimony of any person
in any official proceeding [or] cause or induce any
person to withhold testimony . . . shall be fined under
this title or imprisoned not more than ten years, or
both.13
In his brief, Misla argues that he could not have known that Ramos
was a "witness," given that he believed they were still co-
conspirators, and thus he lacked the necessary intent. That
argument is off the mark, since it focuses on the status of the
person, rather than the proceedings. The key is not whether the
defendant knows or doesn't know that someone is a "witness" (a term
not in the text of the statute), but rather whether he is intending
13
Persuading or trying to persuade a potential witness to
testify to something other than the persuader's "true belief"
counts as "corruptly persuading" a person under § 1512. Cruzado-
Laureano, 404 F.3d at 487.
-32-
to head off the possibility of testimony in an "official
proceeding."
What's necessary is that there be sufficient evidence
that the defendant knew that an official proceeding14 had begun, or
that he believed one to be likely in the future, and that he
intended to influence any possible testimony in that proceeding.
See United States v. Frankhauser, 80 F.3d 641, 652 (1st Cir. 1996)
(analyzing § 1512(b)(2)(B)); United States v. Kelley, 36 F.3d 1118,
1128 (D.C. Cir. 1994) ("The statute only requires that the jury be
able reasonably to infer from the circumstances that [the
defendant], fearing that a grand jury proceeding had been or might
be instituted, corruptly persuaded persons with the intent to
influence their possible testimony in such a proceeding.").
However, while the proceeding need not be imminent, 18 U.S.C. §
1512(e)(1), it must be more than merely foreseeable, Frankhauser,
80 F.3d at 652. To hold otherwise would allow a witness tampering
charge in, e.g., any conspiracy where the co-conspirators agreed to
a story at the outset of the conspiracy, merely because they had
foreseen a possibility of eventual arrest and trial. This is the
class of cases in which Misla would like to place himself.
His efforts to do so are unsuccessful. There was
substantial evidence that Misla believed an investigation to be
14
An "official proceeding" includes federal trials and federal
grand jury investigations. United States v. Frankhauser, 80 F.3d
641, 651 (1st Cir. 1996)
-33-
likely and forthcoming when he began his attempts to persuade
Ramos. Indeed, Ramos testified, regarding his first taped
conversation with Misla:
A. [Ramos] . . . So I went to Mr. Edison Misla and I
told him, "Edison, we are being investigated."
He said, "I'm going to send my attorney to investigate at
the U.S. Attorney's Office if I'm a target."
. . .
Q. [Prosecution] Sir, when you used the word target,
what do you mean by that?
A. A target is the object of an investigation being
held.
Q. Did you continue having conversations with Edison
Misla concerning this investigation?
A. That's right . . . . And then one or two days later
he told me that he had sent his attorney, and his
attorneys had gone to the federal U.S. Attorney's Office
and spoken to prosecutor Gil and yourself, and that you
had told him that Mr. Misla was not a target.
Tr. 12/2/02 at 13.
It is thus clear that Misla was aware of an ongoing
investigation and the likelihood of a future official proceeding,
and any of the later conversations with Ramos were directed at
influencing or preventing Ramos's possible testimony in such a
proceeding. See United States v. Freeman, 208 F.3d 332, 338 (1st
Cir. 2000) (finding evidence sufficient where defendant knew of
investigation, and knew that his own conduct might subject him to
criminal liability). It is immaterial whether or not Misla knew or
believed that Ramos was already cooperating. Indeed, it's
-34-
immaterial whether Ramos actually was cooperating, or even that he
actually testify at all. See United States v. Risken, 788 F.2d
1361, 1369 (8th Cir. 1986) ("witness status is expressly not
required under § 1512, which specifically refers to 'persons' and
not 'witnesses'").15 There was sufficient evidence for the jury to
believe that Misla, fearing the results of an investigation that he
knew was ongoing, attempted to persuade Ramos to change or withhold
testimony, and that ends the matter.
E. Sentencing
1. Guidelines Calculation
Misla contends that the district court erred in
calculating his Sentencing Guidelines range. In particular, he
challenges the enhancement for more than one bribe being involved,
the imposition of a fine, and the enhancement for the amount of
loss. These objections were properly preserved for appeal. We
review the district court's interpretation of the sentencing
guidelines de novo and the factual findings underlying the sentence
for clear error. See, e.g., United States v. Meada, 408 F.3d 14,
24 (1st Cir. 2005).
Section 2C1.1(b)(1) of the Sentencing Guidelines calls
for a two-level increase to the base offense level for extortion
15
It is also immaterial that the U.S. Attorney's Office told
him he was not a target. First, a jury could find that he still
feared that he could become a target later. Second, the statute
does not require that the person attempting to tamper with a
witness actually be the target of the official proceeding.
-35-
where more than one bribe is involved. Section 1B1.3 states that,
when calculating the base offense levels under Chapter Two of the
Guidelines, a sentencing court should include, "in the case of a
jointly undertaken criminal activity . . . , all reasonably
foreseeable acts and omissions of others in furtherance of the
jointly undertaken criminal activity." Misla contends here that he
should not be held accountable for the bribes of his co-defendant
Cruz, because he had no knowledge of them.
Misla raised this issue below, and the district court
held that, even if Misla didn't know about specific bribes, it was
reasonably foreseeable to him that Cruz would receive a bribe. The
court pointed to a lunch meeting arranged by a lobbyist whom CAS
and Ramos had hired to introduce Ramos, De Jesús, and Ramírez to
Cruz, the head of the legal department at PRDH and central to
getting PRDH's approval for CAS's purchase of the CHC management
contract. Cruz would eventually take a bribe from the group in
order to secure approval. Ramos testifed:
Q. [Prosecution] Do you know, sir -- if you know -- did
José Gerardo Cruz Arroyo request anything in exchange
from Dr. DeJésus [sic] for giving the okay to this
transaction?
A. [Ramos] All I remember is a conversation with Dr.
DeJésus where he told me that he was taking care of
everything.
. . .
Q. When Dr. DeJésus told you he was taking care of
everything, did he explain to you what he was taking care
of and what he was doing?
-36-
A. At that moment, he didn't, but later on I realized
what was going on.
Q. What did you realize later on that was going on?
A. Well, I discovered that a car was being paid for him.
And then months later, after he left in December the
Department of Health, I realized that he had been forced
to get a contract and work with the CAS Management
office.
Q. [Prosecution] When you say he had been forced, who is
"he"?
A. [Ramos] Dr. DeJésus Toro had forced the management to
give work to attorney José Gerardo Cruz.
Tr. 11/27/02 at 8-9. Misla argued at sentencing, based on
testimony in the case, that Ramos only mentioned Cruz to Misla
once, and that it was prior to Cruz receiving the car Ramos
testified to above. Therefore, he argues, the only time Misla
heard anything about Cruz, he could not have heard about a bribe.
The court held that a later piece of testimony by Ramos
about that meeting with Misla called that inference into question:
Q. So on this first occasion, sir, what is it that you
explained, to the best of your recollection, to Edison
Misla?
A. I called him and explained to him, explained what our
objective was, which was to purchase the hospital, that
he knew about it, that we had already spoken to Freddy
Valentin, and that the contact had already been made with
[José] Gerardo Cruz, with attorney [José] Gerardo Cruz,
and that all that was left was for us to obtain the favor
from the Government Development Bank.
Id. at 24. The court held that, because of this meeting and
conversation, it was reasonably foreseeable to Misla that Cruz was
-37-
being bribed, like himself, for his participation in the scheme.
We cannot say that this finding was clearly erroneous.
Misla next argues that the court erred in fining him
$12,500, the bottom of the applicable range of $12,500 to $500,000.
Under the Sentencing Guidelines, "the court shall impose a fine in
all cases, except where the defendant establishes that he is unable
to pay and is not likely to become able to pay any fine." USSG §
5E1.2. We review a sentencing court's imposition of fines for
abuse of discretion. United States v. Savoie, 985 F.2d 612, 620
(1st Cir. 1993). "The defendant bears the burden of demonstrating
that his case warrants an exception to the rule that a fine be
imposed." United States v. Peppe, 80 F.3d 19, 22 (1st Cir. 1996).
Misla concedes that he withheld information on his finances during
the preparation of the presentence report (PSR). Because of this,
the court held, he had not met his burden of showing that he would
be unable to pay.
Misla now points to his objection to the PSR, in which he
stated that his "only source of income to be able to pay a fine
would be his monthly pension. The pension is used to satisfy his
debts, as already listed in the report." The judge did not abuse
her discretion in deciding that this was insufficient to meet
Misla's burden.
Finally, Misla argues that the combination of the
$12,500 fine and the $147,000 forfeiture violates the Eighth
-38-
Amendment. We pause only to note that forfeiture will violate the
Eighth Amendment only if it is "grossly disproportional to the
gravity of the defendant's offense." United States v. Bajakajian,
524 U.S. 321, 328 (1998); see United States v. Heldeman, 402 F.3d
220, 223 (1st Cir. 2005). As we discuss in Section II.E, infra, it
is not grossly disproportional, and neither is its combination with
a fine that is less than three percent of the allowable fine under
the Guidelines.
2. Booker Error
Misla argues that the district court erred in sentencing
him under a mandatory guidelines system. Here, he relies on the
Supreme Court's decision in United States v. Booker, 543 U.S. 220
(2005). However, he concedes that he did not preserve this claim
of error. As a result, our review is only for plain error. United
States v. Antonakopoulos, 399 F.3d 68, 75 (1st Cir. 2005). We will
find such error only if "the defendant [points] to circumstances
creating a reasonable probability that the district court would
impose a different sentence more favorable to the defendant under
the new 'advisory Guidelines' Booker regime." Id. First, we note
that Misla's sentence of 71 months' imprisonment is right in the
middle of the Guidelines range of 63 to 78 months, evidence that
the judge was comfortable with the Guidelines range. Furthermore,
Misla raises only the same objections he made to the Guidelines
calculation itself. Those issues having been resolved in favor of
-39-
the government, we see no reasonable probability that the judge
would have sentenced differently under an "advisory Guidelines"
system.
F. Forfeiture
1. Money Judgment
Misla's challenge to the forfeiture order involves a
question that often comes up in cases where the government seeks
criminal forfeiture of cash, rather than specific property.
Pursuant to Rule 7(c)(2) of the Federal Rules of Criminal
Procedure, the government gave notice in the indictment of an
intent to seek forfeiture of all property involved in, or traceable
to, the money laundering offense. It later filed a Bill of
Particulars pointing to specific property it alleged was traceable
to the money laundering proceeds, including an apartment in
Luquillo, Puerto Rico. The government did not mention in the
indictment any intent to seek substitute assets in lieu of the
property it named as traceable to the proceeds of the offense.
After the verdict, the government moved for a judgment of
forfeiture under Rule 32.2 of the Federal Rules of Criminal
Procedure, and a hearing was held. At the hearing, the government
stated an intention to go after only cash, rather than the real
property that had been in the Bill of Particulars. The government
also stated that it did not intend to seek forfeiture of any
substitute assets. Misla argued that the government was not in a
-40-
position to ask for forfeiture of cash because they had not
identified any particular pool of cash that could be traceable to
the money laundering. The court ordered forfeiture of $147,400,
pointing to specific checks that the government had provided as
exhibits.
On appeal, Misla makes a subtle, but ultimately
unavailing, argument. He says that any attempt by the government
to seize cash is equivalent to seizing substitute assets, because
the original proceeds of the offense are no longer available, and
that is something that the government expressly declined an
interest in doing. It being therefore impossible to execute this
forfeiture order, he argues, the order should not have been issued
in the first place. He also argues that it would be too late now
for the government to try to seek any substitute assets, since he
was given no notice in the indictment of an intent to do so.
As to his first point, we have said that
[a] money judgment permits the government to collect on
the forfeiture order in the same way that a successful
plaintiff collects a money judgment from a civil
defendant. Thus, even if a defendant does not have
sufficient funds to cover the forfeiture at the time of
the conviction, the government may seize future assets to
satisfy the order.
United States v. Hall, 434 F.3d 42, 59 (1st Cir. 2006); see United
States v. Candelaria-Silva, 166 F.3d 19, 42 (1st Cir. 1999)
(“[C]riminal forfeiture may take several forms [including] an in
personam judgment against the defendant for the amount of money the
-41-
defendant obtained as proceeds of the offense.”). Here, the
government sought a forfeiture judgment under Rule 32.2, which
provides that "[i]f the government seeks a personal money judgment,
the court must determine the amount of money that the defendant
will be ordered to pay." Fed. R. Crim. P. 32.2(b)(1). This is in
contrast to where the government seeks forfeiture of "specific
property," in which case the government has to show a "nexus
between the property and the offense." Id.
Misla is mistaken, therefore, in arguing that a
forfeiture order can apply only to the specific proceeds of the
offense. If the government seeks, and the court grants, a money
judgment16 as part of the forfeiture order, then "the government
need not prove that the defendant actually has the forfeited
proceeds in his possession at the time of conviction." Hall, 434
F.3d at 59. If the government has proven that there was at one
point an amount of cash that was directly traceable to the offense,
and that thus would be forfeitable under 18 U.S.C. § 982(a), that
is sufficient for a court to issue a money judgment, for which the
16
The district court's order is not as explicit as we would
like in this regard. The order of forfeiture could be read as
referring only to the specific funds that were laundered, though
the subsequent judgment includes an unambiguous order to forfeit
$147,400 in cash. Misla does not pursue this point on appeal, so
we assume here that a money judgment was entered against him. This
position is bolstered by the transcript of the forfeiture hearing,
in which the long discussion between the judge and the attorneys
centered specifically around the power of the judge to enter a
money judgment, rather than an order to forfeit the specific
traceable proceeds.
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defendant will be fully liable whether or not he still has the
original corpus of tainted funds -- indeed, whether or not he has
any funds at all.
The question of how the government can enforce that
judgment is a somewhat different question, however. There is a
split of authority as to whether the government can seize assets
with a money judgment just as any judgment creditor could, or
whether the government must follow the substitute assets provisions
of 21 U.S.C. § 853(p)17 (we discuss the dispute briefly below).
Here, however, we need not answer that question, because it does
not appear from the record that the government has yet taken any
action to enforce the judgment. We note, however, that, contrary
to Misla's assertion, the government would not be constrained from
seeking forfeiture of substitute assets under § 853(p) in the
future. Misla argues that the government's disclaimer at the
forfeiture hearing of an intent to seek substitute assets, coupled
with the lack of any notice of an intent to do so in the
indictment, would be fatal to any later attempts to go after
substitute assets. If this were true, Misla's objection to the
forfeiture order would have some teeth. But it is not true.
"Criminal forfeiture orders are something of a mongrel,"
United States v. Hurley, 63 F.3d 1, 23 (1st Cir. 1995), and this
17
18 U.S.C. § 982(b)(1) incorporates 21 U.S.C. § 853, with the
exception of subsection (d).
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fact seems to have confused Misla. Although the government must
include in the indictment notice of which property it plans to seek
forfeiture of, Fed. R. Civ. P. 7(c)(2), that notice is only as to
particular property, not as to particular statutory elements. Even
though it must be mentioned in the indictment, forfeiture is not a
substantive element of an offense, but is rather "an element of the
sentence imposed following conviction." Libretti v. United States,
516 U.S. 29, 38-39 (1995) (emphasis in original); see United States
v. Moffitt, Zwerling & Kemler, P.C., 83 F.3d 660, 664-65 (4th Cir.
1996). Section 982 says simply that "[t]he court, in imposing
sentence . . . shall order" the forfeiture of property "involved
in" or "traceable to" the offense. 18 U.S.C. § 982(a)(1). And in
cases where, inter alia, the original property "cannot be located
upon the exercise of due diligence" or "has been transferred or
sold to, or deposited with, a third party" then "the court shall
order the forfeiture of any other property of the defendant." 21
U.S.C. § 853(p)(1)(A) & (B), (2). All that is necessary,
therefore, for a court order to issue is that these conditions be
met. No additional notice is necessary.18
In Hurley, we allowed an order for substitute assets to
be entered after the case had already been appealed, which would
18
Even if notice were to be required, there was plenty. The
government asked for forfeiture under 18 U.S.C. § 982, without
specifying a subsection. § 982 expressly incorporates 21 U.S.C. §
853. 18 U.S.C. § 982(b)(1). Thus § 982 also incorporates the
substitute assets provision at § 853(p).
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imply that the government could ask for such an order at any time.
63 F.3d at 23-24. We noted there that "the government might not
even know that substitution is necessary until it seeks to take
possession of the property specified in the initial forfeiture
order." Id.; see United States v. Voigt, 89 F.3d 1050, 1088 (3d
Cir. 1996) (on remand to apply the substitute assets provision, no
de novo hearing necessary).
In Candelaria-Silva we said that "[t]he forfeiture of
substitute assets is a matter left solely to the court." 166 F.3d
at 43. In that case the parties chose, unlike here, to have the
forfeiture amount tried to a jury, which determined that $6,000,000
in proceeds was the asset subject to forfeiture. But, we said,
"the jury has no role in determining, subsequently, whether the
property has been dissipated and whether the government is thereby
entitled to the forfeiture of substitute assets." Id. All we said
that was necessary for the government to show was that the
principal forfeitable property was not available. Id. at 42. This
is where the burden of the government lies: in showing that the
principal forfeitable assets -- that is, those named in the
indictment -- are unavailable at the end of the trial, not in
giving notice at the beginning of the trial of an intent to invoke
the substitute assets provisions. Indeed, to allow the failure to
specifically name the substitute assets provision of the forfeiture
statute in the indictment -- or the substitute assets themselves --
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to defeat any later attempt to go after substitute assets would
allow defendants to avoid forfeiture simply by transferring away
the assets after the indictment has come down. See United States v.
Hatcher, 323 F.3d 666, 673 (8th Cir. 2003) ("The defendant does not
need to know the identity of the substitute assets to marshal a
defense to the forfeiture. Accordingly, [it is] not require[d] that
the indictment specify what property will be sought as substitute
assets.")
If the government instead acts to enforce the money
judgment without using the substitute assets provisions of §
853(p), it raises the question of whether that is permitted, which
is a question we need not reach here. The question is important,
since § 853(p) places a greater burden on the government before
assets can be seized. There is some split of authority among the
circuits on whether the government must follow the procedures of §
853(p) or not. See, e.g., United States v. Vampire Nation, 451
F.3d 189, 202 (3d Cir. 2006) ("[T]he in personam forfeiture
judgment may also be distinguished from a general judgment in
personam. The judgment in personam here is one in forfeiture and
is limited by the provisions of [§ 853]."); Hall, 434 F.3d at 59
(noting that a forfeiture money judgment is equivalent to a civil
judgment, though that issue was not directly before the court).
In summary, a court may properly issue a money judgment
as part of a forfeiture order, whether or not the defendant still
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retains the actual property involved in the offense, or any
property at all. Furthermore, the money judgment can be used in
the future to seek forfeiture of substitute assets by court order
under § 853(p) and Rule 32.2, even where the government has not
expressed an intent to do so at any time before it seeks such an
order. We leave for another day the question of whether, in
seeking to seize assets to satisfy that judgment, the government is
required to do so under the substitute assets provisions of §
853(p), or whether it may use the judgment to attach assets just
like any other judgment creditor could.
2. Forfeiture Amount
After reviewing the record we find that the judge made no
error in calculating the forfeiture amount. The $147,400 amount is
supported by checks entered into evidence and testimony of Ramos
that the funds from the checks were delivered to Misla. Misla
attempts some arithmetical sleight of hand to arrive at a lower
figure, but he and the government largely agree on the
characterization of most of the checks. They differ only as to the
checks made out to Francisco Diez and Raul Ferrer (exhibits 89 and
91) and one $10,000 check Ramos received from the hospital (exhibit
94).
Misla argues that the government stated at the forfeiture
hearing that the Diez and Ferrer checks were not included in the
forfeiture calculation. In fact, the government stated only that
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Diez's check was not included; it did not disavow the Ferrer check.
Moreover, even the disavowal of the Diez check was oversight on the
government's part; the Diez check was included in the forfeiture
calculation, and the government pointed to the evidence and
testimony in the record supporting its inclusion in the forfeiture
amount. As to the $10,000 check, Misla simply misreads the
testimony. Misla argues that two $10,000 checks constituted
Ramos's salary and thus should not have been considered. In fact,
only the second of the two $10,000 checks constituted Ramos's
salary. He testified that he gave Misla either $9000 or $9500 of
the first $10,000, and the government relied on the lower figure in
calculating the amount. There was no error.19
III. Conclusion
For the foregoing reasons, the judgment of the district
court is affirmed.
19
Misla makes an additional argument tying back to his earlier
argument regarding the money judgment and substitute assets, namely
that he can only forfeit those amounts still in his possession and
unspent. As discussed above, this argument is unavailing to him.
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