United States Court of Appeals
For the First Circuit
No. 06-1355
UNITED STATES OF AMERICA,
Appellee,
v.
MIGUEL RIVERA-HERNÁNDEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Torruella, Circuit Judge,
Selya, Senior Circuit Judge,
and Tashima,* Senior Circuit Judge.
José R. Gaztambide, with whom Lizabel M. Negrón were on brief,
for appellant.
Nelson J. Pérez-Sosa, Assistant U.S. Attorney, Chief,
Appellate Division, with whom Rosa Emilia Rodríguez-Vélez, United
States Attorney, was on brief, for appellee.
August 3, 2007
*
Of the Ninth Circuit, sitting by designation.
TORRUELLA, Circuit Judge. On May 12, 2003, Miguel
Rivera-Hernández, the Puerto Rico Administrator for the
Administración de Instituciones Juveniles ("AIJ") from 1993 until
May 1999, was indicted on charges of extortion and money
laundering. A jury acquitted him of the extortion charge but
convicted him of money laundering. After the jury rendered its
verdict, Rivera-Hernández moved to set it aside, arguing that the
Government had not submitted sufficient evidence to support the
money-laundering conviction. The district court denied this
motion. On appeal, Rivera-Hernández attacks his conviction on
several grounds. After careful consideration, we affirm.
I. Facts
We relay the facts in the light most favorable to the
jury's verdict. United States v. Castellini, 392 F.3d 35, 39 (1st
Cir. 2004).
During Rivera-Hernández's tenure as Administrator, the
AIJ published a Request for Proposal ("RFP") for a contract to
build a juvenile penal institution in Puerto Rico. Correctional
Services Corporation ("CSC"), a Florida-based corporation
specializing in the contract-bidding process, submitted its
proposal for the project at a site in Salinas, Puerto Rico. In
November 1997, AIJ awarded CSC the project and on December 20,
1991, the parties entered into a contract to design, develop, and
build a juvenile correctional facility in Salinas, Puerto Rico.
-2-
In the fall of 1997, Rivera-Hernández asked Henoc Dávila,
a contractor, to recommend a subcontractor for the Salinas project.
Dávila recommended José Cobián, a friend who owned a general
contracting company. At Rivera-Hernández's request, Dávila
contacted Cobián by telephone to schedule a lunch meeting for
Rivera-Hernández, Dávila, and Cobián to discuss the project.
Within two to three weeks, Rivera-Hernández, Cobián, and Dávila met
at El Hipopótamo, a restaurant in Río Piedras.
According to Cobián, Rivera-Hernández arrived at the
restaurant with an "air of power," escorted by two or three men.
During the meeting, Rivera-Hernández explained that CSC was
planning to build a prison in Salinas and that the company needed
a contractor for the project. The Government introduced testimony
that Rivera-Hernández indicated that the contract was not subject
to the bidding process, and that when Cobián expressed interest in
the job, Rivera-Hernández responded by saying, "Well, it's going to
cost you." Having paid bribes in order to secure contracts in the
past, Cobián testified that he understood this to mean that he
would have to pay Rivera-Hernández money to secure the contract.
He further testified that had he not paid Rivera-Hernández nearly
$100,000, he would have been denied the opportunity to work on the
Salinas project.
Although Cobián agreed to pay Rivera-Hernández, he
explained that his business did not operate in cash. Cobián
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testified that in response, Rivera-Hernández said, "Don't worry,
I'll take care of that," and that at a later meeting, Rivera-
Hernández asked Cobián to pay him $100,000 for the contract.
According to Cobián, Rivera-Hernández devised a scheme
whereby payment would be made through Multi-Equipment Repairs &
Services ("Multi-Equipment"), a company owned by Rivera-Hernández's
father, Miguel Rivera-Díaz. Under the scheme, Multi-Equipment
would submit fraudulent invoices to Ingenieros & Proyectistas, a
company owned by Fernando Vigil, Cobián's friend. Because Vigil
owed Cobián money, he agreed to pay the invoices to repay that
debt.
The Government introduced evidence that Vigil made the
payments without ever meeting Rivera-Hernández or his father,
Rivera-Díaz, that Vigil never asked what the invoices were for, and
that none of Vigil's equipment was ever repaired by Multi-
Equipment. At trial, Rivera-Díaz admitted that his company never
repaired equipment belonging to Ingenieros & Proyectistas and that
he did not know Vigil. Rivera-Díaz also testified that he prepared
fake invoices because his son asked him to prepare them.
Rivera-Hernández and Cobián met again several times to
exchange fraudulent invoices for payments. During one of their
meetings, Cobián gave Rivera-Hernández a check for $39,900 prepared
by Vigil from Ingenieros & Proyectistas, dated December 26, 1997.
That check was purportedly intended to cover two Multi-Equipment
-4-
invoices for equipment repair work, one dated August 21, 1997 for
$18,995, and another dated September 2, 1997 for $20,995. The
check was deposited in Multi-Equipment's bank account at RG Premier
Bank. After this first payment, CSC and Cobián's construction
company, Cobián, Agustín & Ramos, entered into a contract to build
the Salinas juvenile institution.
In March 1998, three additional invoices totaling $59,820
were submitted to Ingenieros & Proyectistas, one for $25,795,
another for $24,825, and the last for $9,200. As before,
Ingenieros & Proyectistas issued a check for $59,820 to Multi-
Equipment in payment for the fraudulent invoices. Combined with
the first payment, the total amount paid by Cobián to Rivera-
Hernández, through Vigil, was approximately $100,000. The
Government introduced evidence that Rivera-Díaz, Rivera-Hernández's
father, gradually transferred the monies to Rivera-Hernández, which
were used to purchase a luxury vehicle, make a down payment on a
new house, and make home improvements.
The Government also introduced evidence that Rivera-
Hernández never reported any income from the near-$100,000 received
from Cobián, or made mention of any business arrangements with
Cobián in the 1997-98 financial report he was required to submit to
the AIJ ethics committee. Rivera-Hernández also ignored a request
by the ethics committee for more information about his finances,
-5-
including the provenance of the money he used for the down payment
on his house.
All told, Cobián's company received three contracts with
CSC, totaling approximately $9 million. After working on the
Salinas project, Cobián worked on various remodeling projects in
Bayamón, which he admitted to having obtained after bribing CSC's
representative, Ramón Horta.1
On May 12, 2003, a grand jury returned a two-count
indictment against Rivera-Hernández: Count One charged that Rivera-
Hernández unlawfully obtained by extortion, under color of official
right, approximately $100,000 from Cobián, in violation of the
Hobbs Act, 18 U.S.C. § 1951; Count Two charged Rivera-Hernández
with money laundering, in violation of 18 U.S.C. § 1957.
The case went to trial. After nearly two days of
deliberations, the jury returned a not guilty verdict on the
extortion count and a guilty verdict on the money-laundering count.
After the verdict was announced, Rivera-Hernández moved
orally for judgment notwithstanding the verdict, arguing that the
1
Rivera-Hernández disputed the version of the facts ultimately
accepted by the jury. He challenged Cobián's credibility, pointing
to inconsistencies between Cobián's testimony in court and
statements he made to the FBI. Furthermore, Rivera-Hernández
emphasized that Cobián was facing criminal punishment for other
bribery-related charges and thus had much to benefit from assisting
the Government. Lastly, Rivera-Hernández objected to what he
viewed as an erroneous decision by the district court that
prevented the defense from exploring the relationship between
Cobián and Horta.
-6-
jury's verdict was inconsistent. The court requested the motion be
made in writing, and on September 22, 2005, Rivera-Hernández filed
a motion to set aside the jury's verdict on the money-laundering
charge. The Government filed an opposition to the motion on
September 17, 2005, and on October 19, 2005, the district court
denied Rivera-Hernández's motion. On January 24, 2006, Rivera-
Hernández was fined $25,000 and sentenced to a 37-month term of
imprisonment, followed by a three-year term of supervised release.
II. Discussion
Rivera-Hernández appeals his conviction on four grounds.
First, he argues that the Government failed to present sufficient
evidence to support the money-laundering conviction. Second,
Rivera-Hernández contends that the Government engaged in at least
three instances of prosecutorial misconduct that prejudiced him at
trial. Third, he argues that the district court erroneously
excluded testimony that would have justified his use of fraudulent
invoices. And finally, Rivera-Hernández argues that the district
court erred in failing to instruct the jury on specific elements of
money laundering for a second time. We discuss each of these
claims in turn.
A. Sufficiency of the Evidence
Rivera-Hernández first challenges the sufficiency of the
evidence supporting his conviction of money laundering. "On
challenges to sufficiency of the evidence, we take all the evidence
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and inferences in the light most favorable to the verdict and ask
whether a rational factfinder could find, beyond a reasonable
doubt, that the prosecution successfully proved the essential
elements of the crime." Castellini, 392 F.3d at 44 (citing Jackson
v. Virginia, 443 U.S. 307, 319 (1979)).
To sustain the money-laundering conviction under 19
U.S.C. § 1957(a), the Government must show that Rivera-Hernández
(1) knowingly engaged or attempted to engage in a monetary
transaction (2) in criminally derived property (3) of a value
greater than $10,000, and (4) derived from specified unlawful
activity. However, "[i]n a prosecution for an offense under this
section, the Government is not required to prove the defendant knew
that the offense from which the criminally derived property was
derived was specified unlawful activity." Id. § 1957(c).
Rivera-Hernández argues that the Government failed to
prove that the laundered money "derived from specified unlawful
activity," in this case, extortion under the color of official
right. Rivera-Hernández contends that the only evidence introduced
in support of extortion was the "inconsistent[], inherent[ly]
unrealiable[], and insufficien[t]" testimony of two cooperating
witnesses. Appellant's Br. 19. Rivera-Hernández points out that
the jury acquitted him of the extortion charge, and argues that
although that acquittal does not automatically bar the money-
laundering conviction, it serves as evidence that the Government
-8-
failed to prove that the laundered money "derived from specified
unlawful activity" beyond a reasonable doubt.
The main problem with Rivera-Hernández's argument is that
it does not actually test the sufficiency of the evidence the
Government introduced in support of the extortion charge. Rivera-
Hernández's first argument that the Government's evidence was
insufficient because it was not credible is essentially irrelevant
on appeal. In reviewing a sufficiency of the evidence claim, we
view all of the evidence in the light most favorable to the
Government. See Castellini, 392 F.3d at 44. Thus, as long as
there was sufficient admissible evidence to support all of the
elements of the crime charged, we will affirm the conviction.
The second argument Rivera-Hernández advances is equally
unhelpful. This circuit has specifically upheld money-laundering
convictions in cases where there is an actual acquittal of the
underlying predicate offense. For example, in United States v.
Richard, we noted that "the fact that the jury did not convict
[the] defendant on the relevant underlying charges does not
undermine the money-laundering convictions. The only relevant
question when reconciling inconsistent verdicts is whether there
was enough evidence presented to support the conviction." 234 F.3d
763, 768 (1st Cir. 2000) (quoting United States v. Whatley, 133
F.3d 601, 605-06 (8th Cir. 1998) (internal quotation marks and
alternations omitted)); accord United States v. Acosta, 67 F.3d
-9-
334, 339 (1st Cir. 1995) ("A jury in a criminal case is not obliged
to be consistent in its verdicts; on virtually the same evidence
the jury may acquit on one count and convict on the other." (citing
United States v. Powell, 469 U.S. 57, 65 (1984))).2
We think the Government introduced sufficient evidence to
support the jury's conclusion that the laundered money was obtained
through extortion. To establish extortion under color of official
right under 18 U.S.C. § 1951, the Government must show that the
defendant, a public official, has received a payment that he was
not entitled to receive, with knowledge that the payment was
tendered in exchange for some official act. Evans v. United States,
504 U.S. 255, 268 (1992); United States v. Cruzado-Laureano, 404
F.3d 470, 481 (1st Cir. 2005).
To that end, the Government presented testimony that
Rivera-Hernández was the Administrator of the AIJ, a public office,
at the time he received money from Cobián. With respect to the
receipt of payment to which he was not entitled, the Government
introduced testimonial and documentary evidence that Cobián paid
Rivera-Hernández close to $100,000 to secure the contract with CSC
through the exchange of fraudulent invoices for payment. Finally,
2
The First Circuit is not alone in upholding money-laundering
convictions even though the defendant was not convicted of the
underlying offense by which he obtained the money. See, e.g.,
United States v. De La Mata, 266 F.3d 1275, 1292 (11th Cir. 2001);
United States v. Mankarious, 151 F.3d 694, 703 (7th Cir. 1998);
Whatley, 133 F.3d at 605-06; United States v. Kennedy, 64 F.3d
1465, 1480 (10th Cir. 1995).
-10-
the Government introduced evidence that Rivera-Hernández knew that
the payment was tendered in exchange for some official act in the
form of testimony that Rivera-Hernández met with Cobián to discuss
the subcontract for the Salinas project, and that in response to
Cobián's interest in working on the project, Rivera-Hernández
responded, "It's going to cost you." The Government also submitted
evidence that based on Cobián's past experience working with public
officials in Puerto Rico, the statement meant he would have to pay
Rivera-Hernández to get the contract. Moreover, there was
testimonial and documentary evidence that in an effort to cover up
the payments, Rivera-Hernández devised a scheme to filter the funds
though his father's company using fraudulent invoices, and that
over the course of many months, Rivera-Díaz prepared false invoices
on behalf of Multi-Equipment to be submitted to Ingenieros &
Proyectistas at Rivera-Hernández's request. There was also
evidence that Rivera-Hernández excluded the receipt of that money
from the AIJ ethics report. Taken as a whole, this evidence
suffices to support the jury's conclusion that Rivera-Hernández, a
public official, received payments that he was not entitled to
receive, with knowledge that the payment was tendered in exchange
for some official act. See United States v. Cruz-Arroyo, 461 F.3d
69, 74 (1st Cir. 2006) ("Since a plausible view of the evidence
supports a finding that the appellant accepted the money . . . in
exchange for official acts, the proposition that the government
-11-
failed to establish extortion under color of official right
necessarily fails.").
B. Prosecutorial Misconduct
Rivera-Hernández also argues that the district court
should have dismissed the case or granted a mistrial based on three
instances of alleged prosecutorial misconduct: (1) the Government's
comment on Rivera-Hernández's decision not to testify, (2) the
Government's failure to provide the defense with statements by the
cooperating witnesses, and (3) a prosecutor's meeting with Dávila
and Cobián (both cooperating witnesses), in which she "actively
participat[ed] in a suggestive, improper manner in the
discussion[,] . . . 'refreshing' their testimony so they could
'correct' their conflicting version of the events as to
Rivera-Hernández."
1. Fifth Amendment Violation
Rivera-Hernández first argues that the Government
violated his rights under the Fifth Amendment by commenting on his
option to testify in an objection to defense counsel's opening
statement. We set forth the relevant exchange:
DEFENSE COUNSEL: Now, who is my client,
Miguel Rivera-Hernández, what will the
evidence show about my client? My client was
born and raised in Puerto Rico. He graduated
from high school in Puerto Rico at the age of
16. From there he went to the university,
graduated with a degree in political science
at twenty years of age. From there, he went
to obtain a Master's degree in Criminal
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Justice, and he obtained that at the age of
21.
PROSECUTOR: Your Honor, may I object unless
the defendant is going to testify?
Rivera-Hernández argues that the prosecutor's comment,
"unless the defendant is going to testify," violated his Fifth
Amendment right to remain silent because it called attention to the
defendant's decision not to testify. We review de novo whether a
prosecutor's comment violated the Fifth Amendment privilege against
self-incrimination, United States v. Sullivan, 85 F.3d 743, 751
(1st Cir. 1996).
"A prosecutor's comment is improper where, under the
circumstances of the case, the language used was manifestly
intended or was of such character that the jury would naturally and
necessarily take it to be a comment on the failure of the accused
to testify." United States v. Hardy, 37 F.3d 753, 757 (1st Cir.
1994) (internal quotation marks omitted). We find that the
prosecutor's comment in this case did not violate
Rivera-Hernández's right against self-incrimination under the Fifth
Amendment mainly because we do not think the jury understood the
objection to be a comment on Rivera-Hernández's failure to testify.
In United States v. Sullivan, 85 F.3d at 751, the
defendant argued that a mistrial should have been granted after the
prosecutor commented during his opening statement that the jury
would "meet" the two defendants because the statement was an
-13-
improper comment on his right not to testify. On appeal, we held
that the prosecutor did not violate the defendant's Fifth Amendment
right against self-incrimination because, "[i]n context, the
prosecutor's word choice did not 'naturally and necessarily'
comment on the defendants' privilege against self-incrimination."
Id. at 751.
Similarly in this case, we find that, in context, the
prosecutor's comment, "unless the defendant is going to testify,"
did not violate Rivera-Hernández's Fifth Amendment right by
impermissibly calling attention to his option not to testify.
Given that it immediately followed an objection, it is clear that
the statement was intended to qualify the objection, rather than to
comment on the defendant's failure to testify. In fact, at the
stage of the proceedings in which the comment was made -- opening
statements -- the jury had no information as to whether
Rivera-Hernández would testify. As such, we find that the comment
was "at most a glancing brush rather than a blow against the
privilege." United States v. Procopio, 88 F.3d 21, 30 (1st Cir.
1996).
2. Brady Violation
Rivera-Hernández further argues that the Government's
delay in providing certain 302 forms -- forms routinely used by the
FBI to memorialize interviews of potential witnesses -- and its
refusal to provide other "requested discovery" violated his right
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to due process. See Brady v. Maryland, 373 U.S. 83, 87 (1963)
(holding that the prosecution violates due process when it
suppresses material evidence favorable to the accused); see also
Giglio v. United States, 405 U.S. 150, 154 (1972) (concluding that
the nondisclosure of certain impeachment information falls within
the Brady rubric). Rivera-Hernández contends that because the
Government relied heavily on the testimony of cooperating
witnesses, the lack of information about those witnesses impaired
his ability to cross-examine them effectively. We review the
district court's determination of whether the Government failed to
provide Brady material for abuse of discretion. United States v.
Perkins, 926 F.2d 1271, 1276 (1st Cir. 1991).
Brady requires the Government to disclose any exculpatory
evidence which is "material either to guilt or to punishment."
Brady, 373 U.S. at 87. "Information is material if there is a
reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different."
United States v. Rosario-Peralta, 175 F.3d 48, 53 (1st Cir. 1999)
(internal quotation marks omitted). However, "[t]here is no
general constitutional right to discovery in a criminal case, and
Brady did not create one." Weatherford v. Bursey, 429 U.S. 545,
559 (1977). Instead, "to establish a violation of Brady, a
defendant must provide the court with some indication that the
[information] to which he . . . needs access contain[s] material
-15-
and potentially exculpatory evidence." United States v. Brandon,
17 F.3d 409, 456 (1st Cir. 1994). On appeal, Rivera-Hernández has
made no attempt to describe the information he sought from the
Government, much less explain its materiality or its potential to
exculpate him.
Furthermore, Rivera-Hernández's argument fails because he
has not established prejudice. When Brady or Giglio information
surfaces belatedly, "the critical inquiry is not why disclosure was
delayed but whether the tardiness prevented defense counsel from
employing the material to good effect." United States v. Devin,
918 F.2d 280, 290 (1st Cir. 1990). Although Rivera-Hernández
argues that his ability to mount an effective cross-examination was
impaired, he does not show how his defense was impaired. See id.
("A defendant who claims that his hand was prematurely forced by
delayed disclosure cannot rely on wholly conclusory assertions but
must bear the burden of producing, at the very least, a prima facie
showing of a plausible strategic option which the delay
foreclosed."). As such, we find that Rivera-Hernández has failed
to establish a Brady violation.
3. Improper Coaching
During Dávila's cross-examination, he testified that
immediately after he appeared before the grand jury on April 15,
2003, he met with Assistant United States Attorney ("AUSA") Rebecca
Kellogg to discuss his testimony. His attorney, FBI agent Brenda
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Díaz, and Cobián were also present. At the meeting, they discussed
the payments made by Cobián to Rivera-Hernández. Apparently Cobián
said that he had given Rivera-Hernández a cash payment in an
envelope at the restaurant El Hipopótamo. Dávila disagreed and
told Cobián that he did not see him give Rivera-Hernández an
envelope filled with cash at the restaurant. Cobián responded that
he had given Rivera-Hernández $40,000 in cash in $20 bills, and
Dávila pointed out that $40,000 in $20 bills is 2,000 bills, which
would not fit in an envelope. Dávila testified that at that point,
his lawyer said that if the money was given at the "El Hipopótamo,"
it had to have been given in Glad plastic bags. Then, AUSA Kellogg
intervened and allegedly told Cobián and Dávila that they both had
a "light memory" and that the money was paid by check. Dávila
testified that she showed the checks to Cobián. After the meeting,
Cobián testified before the grand jury that he never paid
Rivera-Hernández in cash, only checks.
Rivera-Hernández argues that "[i]t was highly improper
for the prosecutor to set up a meeting with two cooperating
witnesses at the same time, in order to 'discuss' their testimony
and 'refresh' their recollections so that conflicting statements
would be avoided." Appellant's Br. 23.
It is unsurprising that Rivera-Hernández does not cite
any case law in support of the argument that this meeting was so
improper as to warrant a new trial. Prosecutors and defense
-17-
attorneys alike are entitled to prepare their witnesses. Moreover,
the allegedly "coached" testimony, which related only to the form
of payment (cash or check), is not central to the Government's
case. Rivera-Hernández admits to having received the $100,000 and
contests only what it paid for; his defense does not depend on
Cobián's form of payment. As such, even assuming that the meeting
between the AUSA and the cooperating witnesses was improper, it was
not prejudicial because it did not "so poison[] the well as to have
likely affected the trial's outcome." United States v. Mooney, 315
F.3d 54, 60 (1st Cir. 2002) (internal quotation marks omitted).3
C. Hearsay Evidence
Rivera-Hernández also attacks his conviction on the
ground that the district court erred in excluding evidence
justifying his use of the fraudulent invoices. He argues that the
district court should have allowed his statement to Rivera-Díaz
that "he was providing consulting services to [Cobián], but since
he was still a public official and could not hold other employment,
payment would be effected through Multi-Equipment." Appellant's
Br. 23. At trial, the Government objected to that testimony,
arguing that it was hearsay. The district court sustained the
3
To the extent Rivera-Hernández is arguing that the prosecution
should have notified the defense of inconsistencies it discovered
in its witnesses' testimony, a mistrial is foreclosed by the fact
that defense counsel learned about the meeting before Dávila or
Cobián testified and cross-examined both about the meeting. See
United States v. Pérez-Ruiz, 353 F.3d 1, 8 (1st Cir. 2003).
-18-
objection, finding that the testimony was offered to prove the
truth of the matter asserted. After Rivera-Hernández moved for
reconsideration, the district court again denied the request,
finding that the statement did not qualify under any exception to
the hearsay rule.
The Federal Rules of Evidence provide that an out-of-
court statement offered to prove the truth of the matter asserted
(commonly known as "hearsay") is inadmissible as evidence. See
Fed. R. Evid. 801, 802. However, this rule is subject to a series
of exceptions. Rivera-Hernández argues that the evidence should
have been admitted under one of two exceptions: as a statement of
then-existing state of mind, under Fed. R. Evid. 803(3), or as a
co-conspirator's statement, under Fed. R. Evid. 801(d)(2)(E).
1. State of Mind Exception
Rule 803(3) authorizes the introduction into evidence of
statements that concern "the declarant's then existing state of
mind . . . such as intent, plan, motive, design, mental
feeling . . . but not including a statement of memory or belief to
prove the fact remembered or believed." Fed. R. Evid. 803(3).
At trial, Rivera-Hernández sought to introduce the
statement justifying his request for false invoices as an
alternative explanation for his agreement with Cobián to exchange
$100,000 for Rivera-Hernández's services. However, the district
court excluded the evidence as hearsay, finding that the statement
-19-
did not qualify under the state-of-mind exception because the
circumstances under which it was made were highly suspicious.
Because disputes over whether particular statements come
within a state-of-mind exception are fact sensitive, see United
States v. Cianci, 378 F.3d 71, 106 (1st Cir. 2004), "the trial
court is in the best position to resolve them," Colasanto v. Life
Ins. Co. of N. Am., 100 F.3d 203, 212 (1st Cir. 1996). We will
therefore find error in the district court's exclusion of evidence
only if the district court has abused its discretion. See United
States v. Ventura-Meléndez, 275 F.3d 9, 13 (1st Cir. 2001).
To be admissible under the state-of-mind exception, "a
declaration . . . must mirror a state of mind, which, in light of
all the circumstances, including proximity in time, is reasonably
likely to have been the same condition existing at the material
time." Colasanto, 100 F.3d at 212 (internal quotation marks and
citations omitted); see also Horton v. Allen, 370 F.3d 75, 85 (1st
Cir. 2004) ("The premise for admitting hearsay statements
evidencing state-of-mind is that such statements are reliable
because of their spontaneity and [the] resulting probable
sincerity." (internal quotation marks and citations omitted
(alteration in original))). Indeed, the advisory committee notes
to Rule 803(3) require a "substantial contemporaneity of event and
statement" when admitting an out-of-court statement under the
state-of-mind exception. Fed. R. Evid. 803(1) advisory committee's
-20-
note (emphasis added); Fed. R. Evid. 803(3) advisory committee's
note ("[Rule 803(3) is essentially a specialized application of
[Rule 803(1)], presented separately to enhance its usefulness and
accessibility."). This contemporaneity requirement is imposed to
diminish the likelihood of fabrication or deliberate
misrepresentation. See Fed. R. Evid. 803(1) advisory committee's
note.
Given this contemporaneity requirement, we find that the
district court did not abuse its discretion in holding that the
state-of-mind exception did not apply to Rivera-Hernández's
justification for his need of fraudulent invoices. In order to
satisfy Rule 803(3), Rivera-Hernández's statement must have been
made contemporaneously with his demand to Cobián for the $100,000,
thereby mirroring Rivera-Hernández's state of mind at that time.4
4
To the extent that Rivera-Hernández argues that the statement
was made contemporaneously with the request for the invoices, we
make two observations. First, there is no information in the
record about the timing of the request for invoices relative to the
statement justifying that request. See, e.g., United States v.
Ponticelli, 622 F.2d 985, 991 (9th Cir. 1985) (overruled on other
grounds) ("Since, in proffering this testimony, [the defendant's]
trial attorney did not advise the court how much time elapsed
between the [discovery that he was under investigation] and the
statements, the court was entitled to conclude that [the defendant]
had sufficient time prior to the meeting with [the trial attorney]
to concoct an explanation for his possession of [incriminating
evidence]."). Second, and more importantly, Rivera-Hernández is
seeking to introduce the statement to reflect his state of mind
with respect to the demand for and receipt of Cobián's $100,000.
As such, the relevant time by which to judge the admissibility of
his statement is not when Rivera-Hernández requested the invoices,
but rather when he agreed with Cobián to exchange services for
money. See, e.g., Colasanto, 100 F.3d at 212-13 (excluding written
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But evidence in the record confirms that Rivera-Hernández's
statement to his father occurred well after his demand to Cobián
for the money. As such, the district court could have reasonably
concluded that the statement was untrusworthy, and therefore
unreliable, because Rivera-Hernández had enough time to fabricate
and misrepresent his statement. See United States v. Naiden, 424
F.3d 718, 721-23 (8th Cir. 2005) (excluding defendant's statement
to a friend that he did not believe his online victim was really
fourteen because the statement was made a day after the defendant
met the victim and it was therefore "not made as an immediate
reaction to his communication with her, but after he had had ample
opportunity to reflect on the situation"); United States v. Macey,
8 F.3d 462, 467-68 (7th Cir. 1993) (excluding a statement
justifying defendant's request for fraudulent invoices in part
because "[t]he district court could have reasonably concluded that
[the defendant] had time to fabricate a story in the four hours
between his fraud and his statement to [the employee]"). Thus, the
district court did not abuse its discretion in finding the state-
statements introduced to show the declarant's state of mind in
February 1994 because "it did not relate to [the declarant's]
intent in February, but only to [the declarant's] intent [in March
and April 2004,] at or about the time he wrote the letters");
United States v. Jackson, 780 F.2d 1305, 1315 (7th Cir. 1986)
(excluding the defendants' statements denying any wrongdoing
because they "had two years to reflect upon their actions and
potentially an incentive to misrepresent the truth . . . . In
addition, the defendants' statements . . . reflect only their lack
of criminal intent in 1983, while the charges against them arose
from actions several years earlier.").
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of-mind exception inapplicable to Rivera-Hernández's statement to
his father.
2. Co-Conspirator Statement Exception
Under Federal Rule of Evidence 801(d)(2)(E), "[a]
statement is not hearsay if . . . [t]he statement is offered
against a party and is . . . a statement by a coconspirator of a
party during the course and in furtherance of the conspiracy."
Rivera-Hernández claims that the district court should
have admitted his statement under the co-conspirator statement
exception to the hearsay rule because it was made by Rivera-
Hernández's father, an alleged co-conspirator, in furtherance of
the conspiracy of preparing false invoices. We review the district
court's evidentiary rulings for abuse of discretion. United States
v. Lara, 181 F.3d 183, 195 (1st Cir. 1999).
The alleged statement made by Rivera-Hernández is
inadmissible under Rule 801(d)(2)(E), however, because it was not
offered "against" his position at trial.5 To the contrary, Rivera-
5
Applying other sub-sections of Rule 801(d)(2), courts (including
our own) have interpreted the requirement that a statement be
offered "against a party" to mean that it must be introduced
against that party's position at trial. See, e.g., United States
v. Palow, 777 F.2d 52, 56 (1st Cir. 1985) ("Rule 801(d)(2)(A)
. . . requires that the admission at issue be contrary to a party's
position at trial."); Auto-Owners Ins. Co. v. Jensen, 667 F.2d 714,
722 (8th Cir. 1981) ("An admission must be contrary to a party's
position at trial."); Butler v. S. Pac. Co., 431 F.2d 77, 80 (5th
Cir. 1970) ("To be received in evidence an admission . . . must be
contrary to that party's position at the time of the trial.").
Because the requirement that the statement be made against the
party precedes all of Rule 801(d)(2)'s sub-sections, we think it
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Hernández's explanation for the request for fraudulent invoices was
offered as a means to exculpate him. As such, we find that the
district court did not abuse its discretion in finding the co-
conspirator statement exception inapplicable to Rivera-Hernández's
statement to his father.
D. Jury Instructions
Mid-deliberation, the jury requested that the court
repeat the instructions on the extortion and the money-laundering
charges. After meeting with all counsel, the court told the jury
that it could read all of the instructions again. The jury replied
that they only wished to hear the requested instructions, not all
of the instructions. At that point, Rivera-Hernández asked the
court to read the "specific intent" and the "knowingly, willfully
and unlawfully" instructions along with the instructions on the
extortion and money-laundering charges. The district court denied
this demand and read only the instructions the jury requested.
Although Rivera-Hernández acknowledges that the reading
of post-charge instructions is left to the sound discretion of the
trial judge, he argues that the jury's mid-deliberation request for
the definition of both the extortion and money-laundering
instructions demonstrates that the jury was confused as to the
elements of the offenses. Rivera-Hernández contends that the
logical to apply the same meaning to all sub-sections. Thus, to
qualify under the co-conspirator exception, a statement must be
contrary to a party's position at trial.
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court's refusal to read the instructions on "specific intent" and
"knowingly, willfully and unlawfully" compounded this confusion,
such that he is entitled to a new trial. However, given that the
jury specifically stated that it only wanted instructions on the
extortion and money-laundering charges, we find that the district
court did not abuse its discretion in refusing to re-instruct the
jury more broadly. See United States v. Ladd, 885 F.2d 954, 961
(1st Cir. 1989) ("The district court is not bound to submit to a
party's wish list of charges to be ingeminated. Decisions of that
sort are committed to the court's informed judgment and
discretion." (internal quotation marks and citations omitted)).
III. Conclusion
For the above-stated reasons, we affirm the district
court's denial of Rivera-Hernández's motion to set aside the jury
verdict.
Affirmed.
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