United States v. Reyes

REVISED, JANUARY 25, 2001

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

_______________________

No. 99-20188
_______________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BEN T. REYES; ELIZABETH MALDONADO,

Defendants-Appellants.

_________________________________________________________________

Appeals from the United States District Court
for the Southern District of Texas
_________________________________________________________________
January 23, 2001

Before DUHÉ and PARKER, Circuit Judges, and FOLSOM,* District
Judge.

DAVID FOLSOM, District Judge:

After a three-month-long trial, Appellants-Defendants Ben T.

Reyes and Elizabeth (“Betti”) Maldonado (hereinafter “Reyes” and

“Maldonado” respectively) were convicted of bribery and

conspiracy to commit bribery and Reyes of mail fraud. Reyes and

*
District Judge of the Eastern District of Texas,
sitting by designation.
Maldonado appeal their convictions and the sentences that

followed. We find no error as to either defendant and therefore

affirm the district court’s rulings in all respects.

I. FACTUAL BACKGROUND

In August 1995, the FBI instituted a sting operation in

connection with its investigation into allegations of official

wrongdoing by Houston city councilman Ben Reyes. The allegations

centered on charges by Berta Flores--Reyes’s “political enemy”

and a paid informant to the FBI--that Reyes had received

kickbacks on city contracts. The centerpiece of the FBI’s

operation was a fictitious corporation dubbed the “Cayman Group.”

The Cayman Group was purportedly interested in investment

opportunities in hotels, resorts, and real estate. It was also

represented that the company was comprised of wealthy, Hispanic

foreign nationals and was based in South America. The FBI made

one of its agents, Robert Dogium, president; Julio Molineiro, a

paid confidential informant, agreed to act as a representative

for the company.1 The account of the sting operation that

follows is largely undisputed.

A. Reyes’s
Initial Involvement
with the Cayman Group

1
Agent Dogium’s undercover name was Marcos Correa.
Molineiro’s was Carlos Montero.

2
 First contact between the Cayman Group and Reyes occurred

August 1, 1995, when Molineiro and Reyes met at Reyes’s district

office. The meeting, like most during the operation, was

recorded. Molineiro stated that the Cayman Group was looking for

opportunities to invest in hotels, resorts, and the like. Reyes

referred Molineiro to his brother, Gregg, who, Reyes said, had in

the past received $20 million in city contracts. Reyes also

introduced Molineiro to a second brother, Tony, who likewise had

been successful in obtaining city contracts.

On August 16, Gregg, along with Tony, met with Molineiro.

The three discussed the city’s plan to build a hotel adjacent to

the downtown convention center (the “hotel project”). Gregg

explained that one of the bidders on the project, Wayne

Duddlesten, had submitted a plan that called for ethnic minority

financing (the “Duddlesten plan”). Gregg urged Molineiro and the

Cayman Group to consider the project “carefully.” The next day,

Gregg touted Reyes’s ability to push business through the city

council. Gregg noted, however, that Reyes’s assistance came at a

price: “It’s not free, that’s what Ben says.” Gregg requested

that Molineiro keep their conversations “very confidential.”

Later that day, Reyes confirmed that he expected to receive a fee

from the developer that won the hotel project.

On August 23, Gregg called Molineiro to confirm the Cayman

Group’s interest in the hotel project. The next day, Molineiro

asked whether Reyes was committed to any other bidders, “or is he

3
going to get the contract for us?” Gregg responded: “For us!

For us! Because, well, he’s going to be part of this.” On

August 25, Tony emphasized that the Cayman Group’s involvement in

the hotel project would be a joint venture, involving “myself,

you, . . . Ben, and Gregg.” Tony, however, cautioned Molineiro

that Reyes “has to be careful . . . [because] it’s a conflict of

interest.” At the same time, though, Tony emphasized that “it’s

almost certain [that Reyes] can get the deal.” On September 7,

regarding Reyes’s involvement in the hotel project, Tony stated

that Reyes’s “expenses are included there in several areas. . . .

We have always asked between forty-five and fifty percent. Let’s

say fifty. I, Ben, and Gregg are going to be included in the

fifty.”

On September 13, Tony asked Molineiro to meet him the next

day. Tony said the meeting was needed to discuss “something very

urgent” but explained that he would “rather not talk too much

about this on the phone.” The next day, Tony provided Molineiro

with a letter expressing interest in the hotel project and asked

him to send it to Duddlesten. Tony explained that it was Reyes

“who is asking for this.” Tony said the letter was drafted by a

friend of Reyes’s who is a consultant to Duddlesten. Tony also

recommended that the Cayman Group change its name but cautioned

that, whatever name was chosen, it must not suggest a conflict of

interest. Tony explained that if the Reyeses’ interest in the

4
hotel project were exposed, “we’ll lose Ben’s vote. So we don’t

want to do that.”

Before the September 14 meeting ended, Tony urged Molineiro

to send the letter to Duddlesten by the following day. Molineiro

responded that he had to confer with his associates first. Tony

called Reyes to explain that the letter might be delayed. Reyes

insisted that if the letter was not sent by the next day, the

opportunity to invest in the hotel project might be lost. Tony

decided he would send the letter himself, an idea Reyes said

would be “a good way for [Duddlesten] to see that we’re working

on it.”

Molineiro had several times invited Reyes and his family to

Florida to meet with a partner in the Cayman Group. On September

23, Reyes, his son, and Tony flew first-class to Florida on

tickets purchased by the Cayman Group. The Reyeses’ lodging at a

Florida resort was also paid by the Cayman Group. Reyes and Tony

met with Molineiro, Agent Dogium, and a second FBI agent, Len

Carey. The five discussed the opportunity presented by the

Duddlesten plan. Like he had before, Tony warned that Reyes’s

interest could not become public; further, Reyes himself said

that he could not be part of the deal because of his position on

the city council. The last day of the trip, however, Tony

backpedaled: he told Molineiro that Reyes expected to be paid for

his work on the project but that he felt uncomfortable admitting

as much in front of Carey. Later, with Reyes present, Tony again

5
asked Molineiro to change the Cayman Group’s name. Tony also

explained that he and Reyes had selected a Houston representative

for the Cayman Group: “[W]e already have a Hispanic lawyer who’s

very smart . . . [and] a trustworthy friend. . . . He’s going to

be your partner in this.” The lawyer, Isaias Torres, was

described as Reyes’s “political friend.” Reyes explained that

Torres would act as “the front.”

On October 5, Torres delivered to Duddlesten’s office the

September 14 letter Tony had provided Molineiro. The letter

represented that Torres was the Cayman Group’s agent; instead of

“Cayman Group,” however, the company was referred to as the

“Latin American Enterprise Group.” On October 19, Torres

attended a city council meeting, the purpose of which was to

discuss the competing bids for the hotel project. Torres’s

attendance was at the invitation of Duddlesten, who had

previously written Torres about the meeting. Reyes in his

capacity as a city councilman was also present at the meeting.

Though he never revealed that he might have an interest in the

Duddlesten plan, Reyes asked a number of questions about the

competing bids. In a letter dated October 31, Duddlesten thanked

Torres for his support, promised to keep in touch, and enclosed a

number of documents concerning the Duddlesten plan.

On November 3, Tony declared to Molineiro that he would no

longer participate in the hotel project: “I told Ben, well, if

you want to be in charge, you be in charge. . . . I’m going to

6
retire from all of this.” Reyes confirmed Tony’s departure to

Molineiro: “I want you to call me directly. . . . From now, we’re

going to handle it straight.” Reyes said that, henceforth, he

was “going to get completely involved” in the effort to secure a

piece of the hotel project for the Cayman Group. Shortly

thereafter, Reyes told Dogium that he was interested in investing

in real estate purchased at auction; he suggested that the two go

in together, each putting up $50,000. Reyes stated that such an

investment would be “my private business” and that it “has

nothing to do with the city.” The two agreed to discuss the

matter later.

On November 6, Reyes met Dogium at the Cayman Group’s

offices. Dogium expressed concern that a Duddlesten competitor

might win the hotel project because the competitor was making

larger contributions. Reyes explained the difference between

campaign contributions and cash payments and why the latter had

greater power to influence than the former: “You spend the cash

and it’s not accounted for. . . . These guys work day and night

for nothing. . . . And you are more on their side than any damn

checks that you could give them. Because they can’t even spend

those checks to eat.” Dogium agreed but expressed concern that

the cash reach its intended target, “so that no one is making an

ass out of me.” Reyes empathized with Dogium’s concern: Reyes

said that he too had been cheated by intermediaries.

7
 Reyes then turned to the subject of the real estate venture

he had proposed before. Reyes said that the properties would

give him a “front” for any unexplained accumulation of wealth:

“Because cash, you can’t spend that, if you don’t have a front.”

But Doguim said that the Cayman Group was not interested in

Reyes’s proposal; however, if the money was for Reyes personally,

Doguim said, “that is the way I can help you.” Reyes responded

that he needed the money for two reasons: “One, for the

friendship . . . . And the other is [to] . . . start businesses

together.” Dogium agreed to give Reyes the money, and Reyes said

that he would continue his work for the Cayman Group.

The next day, November 7, Reyes called Molineiro several

times, looking for Dogium. Dogium eventually returned Reyes’s

call: “I’m . . . getting your package together for you,” Dogium

told Reyes. When Reyes again mentioned his idea to buy real

estate at auction, Dogium said, “that’s not mine, that is yours.”

On November 9, Dogium showed Reyes a writing intended to

memorialize Reyes’s receipt of $50,000 and their business

dealings generally. Reyes objected, stating that the money was

his private business and not related to the hotel project. At

the same time, though, Reyes explained how the properties would

effectively deflect questions about the income he expected from

the hotel project:

And then you can do me a favor when this other money
comes. . . . [Then, I will] be able to buy myself a
damn new car . . . or a suit . . . a very good suit . .

8
 . and not have the damn people asking, “Where the hell
is that bastard getting that money from?” With a
hundred, two hundred houses . . . . [y]ou can cover
everything with that.

Reyes continued, rehearsing for Dogium what he planned to tell

anyone who questioned the source of his new-found wealth:

Look, you bastard, look. There are two hundred damn
properties here, and they bring me one-fifty, two-fifty
for each one every month. There it is, you bastard! .
. . I have a brand-new Mercedes. I have a half-
million-dollar home. Well, right, you bastard. There
it is. . . . It comes from these.

On November 17, Molineiro promised Reyes $50,000 in time for the

next auction.

On November 29, Reyes met with Molineiro at a Houston

restaurant; Reyes again asked for the $50,000. Reyes explained

that he did not “even have a damn nickel” for an upcoming trip to

Mexico and asked Molineiro for help. Molineiro gave Reyes $1000.

On December 1, Molineiro called Reyes with news that the “big

package” was ready. That day, at Molineiro’s apartment,

Molineiro told Reyes that the Cayman Group was pleased with

Reyes’s efforts: “They all think that you’ve done an excellent

job in helping us get a part of this hotel.” Molineiro then gave

Reyes a satchel containing $50,000 in fifty-dollar bills.

On December 13, Reyes faxed a letter to the Texas attorney

general marked “urgent message.” The letter asked the attorney

general to determine whether Duddlesten could take advantage of

certain tax benefits. The council had delayed its consideration

of the hotel project until the tax issue was resolved. On

9
December 15, the attorney general issued an opinion favorable to

Duddlesten. Reyes, describing his role in obtaining the opinion,

said to Molineiro, “that’s raw power, man.” Having performed a

service valuable to Duddlesten, Reyes suggested that they move to

secure the Cayman Group’s participation in the Duddlesten plan:

“Let’s squeeze this bastard[], Duddlesten[], because right now we

have him.”

B. Maldonado’s Involvement
Begins; Reyes Steps
Up His Efforts

On December 21, Reyes and Molineiro met together with Betti

Maldonado for the first time. Sometime before, Reyes and Ross

Allyn, Reyes’s former aide and at the time an advisor to

Duddlesten, had asked Maldonado to assist the Cayman Group with

the hotel project. Maldonado was a public relations specialist

and lobbyist, with a particular interest in issues affecting

Houston’s Hispanic community. Maldonado also served as a

commissioner for the Port of Houston and had experience working

on political campaigns. Before Maldonado arrived at the meeting,

Reyes told Molineiro that Maldonado was well-connected to the

city’s leadership and was a “very good friend.” Reyes also told

Molineiro that they would treat Maldonado “as if she were going

to do P.R. work for us now.” Reyes gave Maldonado $1500 when she

arrived and asked her to lobby certain city council members, the

Hispanic chamber of commerce, and the mayor’s office on behalf of

10
the Cayman Group. Maldonado agreed. Later that day, Reyes and

Maldonado, along with Torres, met over lunch. Neither Molineiro

nor Dogium were present and the meeting was not recorded.

Reyes’s city council term expired January 2, 1996. On

January 8, Reyes, Allyn, and Molineiro met at the Cayman Group’s

offices. The three dissected, member by member, the city

council’s projected vote on the hotel project. Allyn remarked

that they needed to “touch” Councilman Peavy; he said to Reyes,

“Ben, I really need you to work him.” Reyes added that

Councilman Yarbrough had requested a cash payment. The three

agreed that, among the council, John Castillo and Michael

Yarbrough were best to lead the effort for the Duddlesten plan.

Reyes then stated:

[W]e’re gonna go buy us some leaders. . . . ‘Cause
that’s what it takes, I mean . . . I never did it for
nothing. . . . The [guy] wants me to lead. . . . I
gotta get fed. I gotta pay the grocery bills. . . . I
never said I . . . ain’t no different than you and me!
Yeah, he helped me get elected, so what [about] now?

Before Allyn left, Reyes reminded everyone that “all this stuff

is just between us.” Then, with respect to Councilman Peavy,

Reyes told Molineiro, “I think . . . we promised him five. . . .

We’ll give him two-and-a-half, and we tell him once we’re done .

. . once we win, you’ll get the other two-and-a-half.” With

respect to Councilman Yarbrough, Reyes recommended $3000, half

paid before the vote, half after. Councilman Castillo, Reyes

said, should get a lump-sum payment of $3000.

11
 On January 10, Reyes asked Molineiro to meet him and

Councilman Castillo at a Houston restaurant. Molineiro walked in

the restaurant and saw Castillo and Reyes together at the bar.

As he approached, Molineiro saw Reyes place an envelope in

Castillo’s pocket. Castillo promised to support the Duddlesten

plan and left. Reyes explained what had transpired:

I told him, “Look, our group is going to win, and
you’re going to win. . . . If I win, you will win. I’m
never going to forget you. . . . We know you have your
own problems, and everything. We’re going to help you.
This is a gift, eh?”

On January 11, Reyes told Molineiro he had scheduled a

restaurant meeting with Councilman Yarbrough for the following

afternoon. The next day, on the way to the meeting, Reyes took

an envelope containing $1500 from Molineiro’s briefcase and

placed it in his pocket. As he put the envelope in his pocket,

Reyes said, “I’m going to invite him [i.e., Yarbrough] to the

bathroom.” When they arrived at the restaurant, Reyes introduced

Molineiro and told Yarbrough, “in just a while we go to the

bathroom.” After the three ate, Reyes and Yarbrough went to the

men’s room together. Leaving the restaurant, Reyes said he gave

Yarbrough the money: “I told him, once we win, you’ll get another

package.” Reyes explained that he did not expressly mention that

Yarbrough would get cash because he did not want to “scare him.”

The next day, January 16, Reyes, Molineiro, and Dogium met

Councilman Peavy for breakfast. Before the meeting, Reyes

rehearsed what he planned to tell Peavy: “Look, two-and-a-half,

12
and then, once we win, you’ll get another two-and-a-half.” At

the restaurant, Reyes explained to Peavy that he was working to

get the city to accept the Duddlesten bid and that he needed

Peavy’s help. While Peavy and Dogium were alone at the table,

Molineiro handed Reyes an envelope containing $2500. Reyes then

turned to Peavy: “Let me talk to you a little bit.” The two left

for the men’s room, where Reyes said he gave Peavy the envelope.

Leaving, Peavy told Dogium and Reyes that they would talk again

before the vote, though Peavy did not expressly promise to

support the Duddlesten plan.

On January 18, Reyes met with Molineiro at the Cayman

Group’s office. Reyes related a remark Dogium made that Reyes

might have kept the money intended for Peavy. Reyes expressed

his dismay at Dogium’s comment:

[H]e did it like a joke. . . . [W]e are involved in a
serious business. . . . Look, . . . what I did there .
. . for that I can be sent to the damn jail for life,
and more than anything, it would screw up my career. .
. . [I]t’s not easy to do what I do.

Reyes told Molineiro, “we’ve been working our asses off,

Saturdays, Sundays, . . . and I’ve been taking packages to

the black guys so they will stay with us.” Reyes stated

that he was not certain whether Dogium could be trusted.

C. Maldonado’s
Involvement Grows

The day before, January 17, Betti Maldonado met with

Dogium and Molineiro to discuss her lobbying effort for the

13
Cayman Group. Maldonado explained which council members

were ripe for influence. Some council members, she said,

they’re real different than our Latinos. They are
like, “You tell me what’s in it for me first, and I’ll
vote on it.” . . . But our guys are like, “I gotta see
if it’s right first,” then they’ll vote on it. You . .
. can play with them more.

The next day, Molineiro noted that Yarbrough had already received

$1500 from the Cayman Group; Maldonado responded that Yarbrough

was “a very close friend of mine” and agreed to see if he wanted

more money.

On January 22, Maldonado again met with Molineiro and Dogium

at the Cayman Group’s office. Speaking of Felix Fraga, John

Peavy, and Wayne Duddlesten, Dogium said to Maldonado, “take care

of these three people.” At the same time, Dogium said he did not

want to make anyone feel uncomfortable by what he had asked of

Maldonado. Maldonado responded, “no, it’s not uncomfortable at

all.” She also described her relationships with various members

of the council: “[W]hen they deal with me, it’s more, ah--with

[Councilman] Yarbrough, okay, I can get away with more cause he

and I are friends--it’s very up-and-up, you know. I’ve never had

a relationship with them where I’ve done what Ben did.” But

Maldonado emphasized that she did not feel uncomfortable by what

Dogium had asked of her. Maldonado also predicted that Yarbrough

would support the Duddlesten plan, though she thought he was

going to “see how much [he] could get out of the deal.”

14
 Maldonado arranged for Councilman Yarbrough to meet Dogium

at the Cayman Group’s offices January 24. Before she left to get

Yarbrough, Maldonado asked Dogium and Molineiro to increase her

compensation to $9000, plus a bonus if the Cayman Group was

successful. The three also discussed whether they ought to have

cash on hand for Yarbrough. Maldonado said, “with him, it’d

probably never hurt.” Maldonado returned to the Cayman Group’s

office with Yarbrough. Yarbrough and Dogium met in private, and

Yarbrough received another $1500 in return for his pledge to

support the Duddlesten plan. While Yarbrough and Dogium met,

Maldonado said Yarbrough told her that, like the other council

members, he too wanted to profit from the hotel project.

On January 31, the city council approved the Duddlesten plan

and authorized the legal department to enter into negotiations

with Duddlesten. After the vote, Reyes told Molineiro and Dogium

they should not give Councilman Peavy the promised second payment

because he failed to pledge his support in advance of the vote.

Dogium disagreed, stating that they should fulfill their

commitment to Peavy, and Reyes agreed to schedule a meeting.

Dogium met Peavy and Reyes at a Houston restaurant February 20.

When Dogium arrived, Reyes said, “John is ready to leave. . . .

He told me that you’re going to give him something. Do it right

now.” The three walked outside, where Dogium thanked Peavy for

his support and handed him an envelope containing $2500.

15
 In early April, Dogium told Maldonado that Reyes had fallen

out of favor with the Cayman Group. Dogium informed Maldonado

that he wanted a provision in the hotel contract that would

secure the Cayman Group’s participation, and the two discussed

how to achieve this end. Dogium reminded Maldonado that his

influence over the council was unquantifiable: “I’m out a

significant amount, you know, we had cash disbursements to

council members that I can’t put on a piece of [paper].” “I

know,” Maldonado responded. Maldonado explained that she did not

know how much influence Dogium had over the council:

[S]ince before you guys, I don’t really know how much
they’ve--I can’t be naive about it either--how much
they actually get [in] cash stuff, you know, not on the
records? But I . . . was working on this other project
for this huge engineering firm and they were giving out
money like I’ve never seen before.

Maldonado suggested how she could help Dogium: “I’m very honest

with you. I’m going to tell you how you can get the most for the

least. . . . I’m never going to tell you, give just to give. I

know what you can get away with, with who.” Maldonado, however,

said she wanted to check with Reyes before she proceeded. On

April 12, Maldonado reported that Reyes had approved her plan to

secure contract language favorable to the Cayman Group.

On April 19, Maldonado told Dogium and Molineiro that she

would determine whether council members wanted additional

payments for their continued support: “I’m gonna just feel them

to see, . . . are they just . . . . gonna be interested ‘cause

16
it’s the right thing, or do they want something more. . . . [W]e

can start off by assuming that they’re all gonna want something,

if you want to do it that way.” On April 23, Maldonado told

Molineiro she had obtained commitments from council members

Yarbrough, Sanchez, Saenz, and Fraga. She explained that she had

not yet secured Councilman Castillo’s support and recommended

that they prepare a “package” for him.

On April 29, Maldonado told Molineiro she had scheduled a

meeting with Castillo that afternoon at a restaurant. Molineiro

responded that he would prepare an envelope for Castillio,

including a letter containing the needed contract language. As

Maldonado watched, Molineiro counted out $3000 and placed it in

an envelope. Molineiro suggested Maldonado show Castillo the

letter and then signal for the cash. At the restaurant,

Maldonado gave Castillo the letter; Molineiro left the table and

Maldonado handed the envelope of cash to Castillo, who placed it

in his portfolio.

The next day, April 30, Maldonado reported that the meeting

with Castillo had gone “very well.” She also told Molineiro that

she had scheduled a meeting with Councilman Fraga for the

following afternoon. Maldondado told Molineiro to prepare “two

grand” for Fraga because “he is in the process of reorganizing

his office and he’s hiring a consultant to . . . do that, and he

really, really needs it.” The next day, Molineiro gave Maldonado

an envelope containing $2000 and the requested contract language.

17
At the meeting, Fraga reviewed the language and expressed support

for the Cayman Group. When Maldonado tried to pass him the cash,

however, Fraga declined to accept it.

On May 1, Maldonado and Molineiro met Councilman Peavy at a

Houston hotel. The meeting was arranged by Maldonado the

previous day, and before the meeting, Maldonado and Molineiro

discussed how they would pass Peavy the payment. When the three

met, Peavy reviewed the contract language and stated that he

fully supported the Cayman Group. As he did before, Molineiro

got up from the table. Maldonado then offered Peavy the cash-

filled envelope, but he refused to take it.

Later that day, Maldonado expressed frustration over the

botched payments: “I have an intimate, friendly relationship with

these guys. But like I told you, I had never, ever dealt with

them that way. Never.” Maldonado contrasted her own experience,

however, with that of certain members of the council: “John

[Castillo] has already been in this forever, so it’s no big deal.

Michael [Yarbrough] is also . . . no big deal. . . . And really,

Peavy normally is no big deal. Normally.” Maldonado said she

should have paid Fraga and Peavy privately. The Cayman Group’s

office, however, would not work: “[T]hey don’t really know you

guys. What if you have a camera in there? . . . That’s what they

think. One of them already told me that!” The next day, May 2,

Maldonado was confronted by agents of FBI and agreed to cooperate

with their investigation.

18
 II. PROCEDURAL HISTORY

On July 30, 1997, an indictment was filed in the district

court as to Reyes, Maldonado, and four others.2 The indictment

charged Reyes with six counts: conspiracy to commit bribery;

accepting a bribe ($50,000 Dec. 1); making a bribe (three counts:

$3000 to Castillo Jan. 10; $1500 to Yarbrough Jan. 11; & $5000 to

Peavy Jan. 11 & 31); and mail fraud. Maldonado was charged with

three counts: conspiracy to commit bribery and two counts of

making a bribe ($1500 to Yarbrough Jan. 24 & $3000 to Castillo

Apr. 30). The named defendants were tried together to a jury

beginning March 10, 1998. On May 21, the district court declared

a mistrial, the jury being unable to reach a verdict.3 Reyes and

Maldonado were tried a second time--separate from their

codefendants--beginning September 16, 1998. Each moved for a

judgment of acquittal at the close of the government’s case-in-

chief, which the district court denied November 5. On December

14, the jury found Reyes and Maldonado guilty as to each charged

offense. Reyes’s and Maldonado’s motions for new trial were

denied shortly thereafter.

Sentencing was February 24, 1999. With respect to Reyes’s

and Maldonado’s bribery convictions, the district court

2
The indictment also named Ross Allyn, John Castillo,
John Peavy, and Michael Yarbrough.
3
The charges against Ross Allyn were dismissed by the
district court before jury deliberations began.

19
determined that a two-level upward departure was warranted for

conduct it deemed “systematic or pervasive.” The effect of this

departure raised Reyes’s offense level from 26 to 28 and

Maldonado’s from 20 to 22. Additionally, the district court

assigned Reyes two criminal history points for two prior

offenses. This adjustment raised Reyes’s criminal history

category from I to II. The district court sentenced Reyes to 60

months’ imprisonment for conspiracy to commit bribery and also

for mail fraud, and he received 108 months’ for each of his four

bribery convictions. All terms were designated to run

concurrently. Maldonado was sentenced to 51 months’ for each

offense, and her terms of imprisonment were likewise designated

to run concurrently. Final judgment was entered March 1, 1999,

and Reyes and Maldonado each made timely appeals therefrom.4

III. DISCUSSION

On appeal, Reyes argues that the district court erred in the

following ways: (1) in finding that there was a sufficient

connection between federal dollars and the charged criminal acts

under the federal bribery statute; (2) in finding that there was

sufficient evidence to support a conviction for mail fraud; (3)

in refusing to admit evidence of a May 4 conversation he had with

Maldonado; (4) in not finding entrapment as a matter of law; (5)

4
The remaining codefendants--Castillo, Peavy, and
Yarbrough--were tried together beginning March 29, 1999. On May
26, the charges against the three were dismissed by the district
court.

20
in not instructing the jury on positional predisposition; (6) in

departing from the sentencing guidelines for conduct it deemed

“systematic or pervasive”; and (7) in counting two prior

sentences as “separate” under the sentencing guidelines.

Maldonado joins Reyes as to all but (2), (3), and (7). Maldonado

also argues that the evidence is insufficient that she possessed

the requisite mental state for bribery or that she conspired with

anyone besides a government agent or informant to commit bribery.

Our jurisdiction to review these matters is conferred by 28

U.S.C. § 1291 (“final decisions of district courts”) and 18

U.S.C. § 3742 (“review of a sentence”).

A. Connection to
Federal Dollars

Reyes argues that his convictions under 18 U.S.C. § 666 for

federal programs bribery must be reversed because the government

failed to establish the required connection between the charged

criminal acts and federal dollars. Whether under § 666 the

requisite nexus between the criminal activity and federal dollars

exists is a question of law we review de novo. See United States

v. Westmoreland, 841 F.2d 572, 576 (5th Cir. 1988). Section 666,

entitled “theft or bribery concerning programs receiving Federal

funds,” provides, in relevant part:

(a) Whoever, if the circumstance described in subsection (b)
of this section exists--
(1) being an agent of an organization, or of
a State, local, or Indian tribal government,
or any agency thereof--

21
 . . . .
(B) corruptly gives, offers, or
agrees to give anything of value to
any person, with intent to
influence or reward an agent of an
organization or of a State, local
or Indian tribal government, or
agency thereof, in connection with
any business, transaction, or
series of transactions of such
organization, government, or agency
involving anything of value of
$5,000 or more. . . .
. . . .
shall be fined under this title, imprisoned not more
than 10 years, or both.

(b) The circumstances referred to in subsection (a) of
this section is that the organization, government, or
agency receives, in any one year period, benefits in
excess of $10,000 under a Federal program involving a
grant, contract, subsidy, loan, guarantee, insurance,
or other form of federal assistance.
. . . .

18 U.S.C. § 666.

In United States v. Westmoreland, we said that § 666 “limits

its reach to entities that receive a substantial amount of

federal funds and to agents who have the authority to effect such

significant transactions.” 841 F.2d at 578. In that case, the

defendant was convicted of receiving kickbacks on purchases he

made for the county government. We upheld the conviction, noting

that the defendant “served as a county supervisor” and that the

county “received federal revenue sharing funds.” Id. at 575.

Later, in United States v. Moeller, 987 F.2d 1134 (5th Cir.

1993), we further delineated the reach of § 666, concluding that

the “particular program involved in the theft or bribery scheme

22
need not be the recipient of federal funds,” id. at 1137 (citing

United States v. Little, 889 F.2d 1367 (5th Cir. 1989)). There,

the defendants worked for the Texas Federal Inspection Service

(“TFIS”), an agency jointly supervised by the Texas Department of

Agriculture (“TDA”) and the United States Department of

Agriculture. The defendants were alleged to have improperly

awarded consulting contracts to supporters of candidates for TDA

commissioner. One defendant was an associate director of TFIS;

the other held various managerial positions. The district court

dismissed the indictment, concluding that TFIS did not receive

the statutory amount in federal benefits. On appeal, we

reversed, concluding that it was enough that the TDA, which in

part was responsible for TFIS, received the level of federal

funding required under § 666. Id. at 1137.

Applying Westmoreland and Moeller to the case at bar, we

conclude that the connection between federal benefits and the

charged conduct is sufficient to uphold Reyes’s convictions under

§ 666. It is not disputed that, during the relevant periods in

this case, three city of Houston departments received federal

funding in excess of § 666's statutory requirement: the Finance

and Administration Department; the Housing and Community

Development Department, including $28.5 million in fiscal year

1996; and the city legal department.5 Like the federally-funded

5
It is also not disputed that the Duddlesten plan, as
submitted to the city council, included a loan from the U.S.

23
TDA did with respect to TFIS in Moeller, the evidence in this

case shows that these same three city departments shared

responsibility for the hotel project: the legal department was

responsible for evaluating competing bids to develop the hotel;

the finance department was responsible for soliciting bids and

coordinating the process through which bids were considered; and

the housing and community development agency oversaw

revitalization and improvement of downtown Houston, wherein the

hotel project was planned. Further, like the county supervisor

in Westmoreland and the senior agency officials in Moeller, here

the charged criminal conduct related to city council members,

who, by voting up or down on bids, ultimately decide how federal

money will be spent.

Reyes argues that we should follow a line of cases decided

after the Supreme Court announced its opinion in Salinas v.

United States, 522 U.S. 52 (1997). In Salinas, the Court held

that to sustain a conviction under § 666 the government need not

show that federal dollars were directly tied to the alleged

bribery transaction. Id. at 58. The Court, however, declined to

detail the connection required under § 666 or even state whether

Department of Housing and Urban Development (“HUD”) for
approximately $35 million. As approved by the city council, the
HUD loan amounted to $16 million. Reyes argues that under § 666
the federal dollars must have been “received,” whereas the
federal dollars for the Duddlesten plan were merely designated.
We decline to address this argument in light of our conclusion
that other allocations of federal dollars are sufficiently
connected to the charged criminal conduct.

24
such a connection is required at all. Id. at 59.6 The two post-

Salinas cases that Reyes urges us to follow now--United States v.

Zwick, 199 F.3d 672 (3d Cir. 1999), and United States v.

Santopietro, 166 F.3d 88 (2d Cir. 1999)--enunciated a degree of

connectivity between the federal dollars and the charged conduct

perhaps more exacting than other recent cases, cf. United States

v. Dakota, 188 F.3d 663, 668 (6th Cir. 1999)(upholding a

conviction under § 666 where the defendant was alleged to have

received kickbacks on an Indian tribe’s lease of gaming machines

and the tribe, for purposes not specified by the court, received

yearly federal funds in excess of the statutory amount); United

States v. Grossi, 143 F.3d 348, 350 (7th Cir. 1998)(upholding a

conviction under § 666 where the defendant, a township

supervisor, received kickbacks for making distributions from the

town’s general assistance program, which received no federal

money).

We are not convinced that Salinas wrought a change upon our

earlier precedents. Even if we were to follow the two cases

proffered by Reyes, however, we would arrive at the same result.

In one of Reyes’s cases, United States v. Zwick, the Third

6
In our recent opinion in United States v. Phillips, 219
F.3d 404 (5th Cir. 2000), we also expressly declined to address
the question, id. at 411 n.9, 412 n.10, though we found that the
absence of a connection between the defendant’s position (tax
assessor) and any federal funds reinforced our conclusion that
the defendant was not an agent authorized to act on behalf of the
Louisiana parish that received federal monies, as required by §
666(d)(1), id. at 413-14.

25
Circuit concluded that the uses for which federal funds were

provided--snow removal and prevention of stream-bank erosion--

bore “no obvious connection” to the charged conduct and that the

defendant’s conduct did not therefore constitute a violation of §

666. 199 F.3d at 688. There, an elected member of the city

board of commissioners was alleged to have solicited money from

persons with business before the town’s board; one such person

needed a permit for sewer access, another had requested a use

permit, and a third had sought a city contract for landscaping

services. The limited amount of federal funds involved in Zwick,

coupled with the specific and narrow purposes for which such

funds were given, bears no resemblance to the facts in this case.

In Reyes’s other case, United States v. Santopietro, the

defendant mayor accepted bribes from real estate developers that

wanted to influence the decisions of various city departments

before which the developers had pending business. 166 F.3d at

91. In that case, the Second Circuit concluded that the

connectivity requirement of § 666 was met: “Since federal funds

were received by [the city] for housing and urban development

programs and the corrupt payments concerned real estate

transactions within the purview of the agencies administering

federal funds, the requisite connection between the bribes and

the integrity of federal funding programs is satisfied.” Id. at

93. The facts of Santopietro are in accord with those in this

case, and Santopietro’s holding, like ours in Moeller, directly

26
contradicts Reyes’s argument that the government must tie the

federal monies to the specific project involved in the illegal

activity.7

B. Reyes’s Mail
Fraud Conviction

Reyes challenges his conviction for violation of the mail

fraud statute, 18 U.S.C. §§ 1341 & 1346. To establish mail

fraud, the government must show beyond a reasonable doubt “that

the defendant (1) used a scheme to defraud, (2) which involved a

use of the mails, and (3) that the mails were used for the

purpose of executing the scheme.” United States v. Sneed, 63

F.3d 381, 385 n.3 (5th Cir. 1995). Reyes argues that the

government failed to prove the existence of a scheme; that, even

if a scheme existed, the use of the mails was a reasonably

foreseeable result of the scheme; and that the mailing occurred

in furtherance of the scheme.8 “In evaluating the sufficiency of

the evidence, our standard of review is whether, viewing the

evidence in the light most favorable to the government, a

7
By letter dated November 7, 2000, Maldonado adopted
Reyes’s argument concerning the connection between the charged
offenses and federal dollars under § 666. See Fed. R. App. P.
28(i). For the reasons stated above, we also reject Maldonado’s
argument.
8
Reyes also argues that the government failed to prove
intent to harm the property rights of others. Such a showing,
however, is not required where, like here, the defendant was
indicted for “honest services” mail fraud. See 18 U.S.C. § 1346
(defining “scheme or artifice to defraud” under § 1341 to include
a scheme “to deprive another of the intangible right to honest
services”).

27
rational trier of fact could have found the essential elements of

the offense beyond a reasonable doubt.” United States v. Greer,

137 F.3d 247, 249 (5th Cir. 1998).

We conclude that a rational jury could find that Reyes

devised a scheme to surreptitiously and unlawfully benefit from

his position on the city council. The first element of mail

fraud--proof of a scheme to defraud--requires that the government

prove fraudulent activity and “that the defendant had a conscious

knowing intent to defraud.” See United States v. Krenning, 93

F.3d 1257, 1264 (5th Cir. 1996). The evidence shows that Reyes,

while still a member of the city council, agreed to work for the

Cayman Group while the hotel project was under consideration by

the city. During the course of his work, Reyes twice received

cash payments--$1000 November 29 and $50,000 December 1--along

with a trip to Florida and the promise of post-council

employment. The jury heard that, as a sitting city official,

Reyes could not legitimately work to advance the Cayman Group’s

interests in the hotel project; so Reyes asked Torres, his

“political friend,” to be “the front” for the Cayman Group.

Thereafter, Torres acted as a public representative for the

Cayman Group, communicating the group’s interest in the hotel

project to Duddlesten and appearing on behalf of the group at a

city council meeting. Throughout, the evidence shows, Torres

coordinated his activities through Reyes and Reyes’s brothers.

28
 There is also sufficient evidence to conclude that the use

of the mails was a foreseeable consequence of the scheme. To

prove the second element of mail fraud--use of the mails--the

government must show that the defendant did “‘an act with

knowledge that the use of the mails will follow in the ordinary

course of business, or where such use can reasonably be foreseen.

. . .’” See Sneed, 63 F.3d at 385 n.4 (quoting Pereira v. United

States, 347 U.S. 1, 8-9 (1954)). “‘The defendant need not intend

to cause the mails to be used.’” Id. at 385 (quoting United

States v. Massey, 827 F.2d 995, 1002 (5th Cir. 1987)). As

described above, the evidence would allow the jury to conclude

that Torres was part of Reyes’s scheme to surreptitiously secure

a place for the Cayman Group in the hotel project. In September,

Reyes, with the assistance of Allyn and through his brother,

Tony, provided Torres with a draft letter to Duddlesten

expressing interest in Duddlesten’s plan. The letter was written

on behalf of the Cayman Group and, as provided by Tony, was

printed on Torres’s letterhead. On October 5, Torres delivered

the letter to Duddlesten’s office. Duddlesten, in turn, by

letter, invited Torres to attend the October 19 city council

meeting concerning the hotel project. Torres attended the

meeting, during which Duddlesten and a competitor each presented

their bid for the hotel project. After the meeting, in an

October 31 letter, Duddlesten thanked Torres for his “efforts to

solidify our proposal” and promised to keep Torres advised of the

29
plan’s progress. It was this last letter upon which the

government based its charge of mail fraud against Reyes.

Duddlesten’s thank-you note, the jury could properly conclude,

was a foreseeable consequence of Reyes’s retention of Torres to

communicate his interest in the Duddlesten plan.

Finally, we conclude that there is sufficient evidence to

sustain a finding that the use of the mails in this case was in

furtherance of the scheme to defraud. “To be part of the

execution of the fraud, . . . the use of the mails need not be an

essential element of the scheme. . . . It is sufficient for the

mailing to be incident to an essential part of the scheme . . .

or a step in the plot.” Schmuck v. United States, 489 U.S. 705,

710-11 (1989)(internal quotations omitted). The evidence showed

that the success of Reyes’s scheme to defraud depended upon the

Cayman Group’s inclusion in the hotel project plan advanced by

Duddlesten. Participation in the plan, at least in part,

required a commitment from Duddlesten. To secure such a

commitment, Reyes had to convince Duddlesten of the Cayman

Group’s financial viability. At the same time, because an

appearance of legitimacy was needed for Duddlesten’s support,

Reyes asked Torres to act as “the front.” Reyes directed Torres

to send a letter to Duddlesten pledging the Cayman Group’s

support for the Duddlesten plan; later, Torres appeared at the

October 19 city council meeting. Duddlesten’s thank-you note to

Torres followed. A rational jury could conclude that an

30
expression of appreciation by the man whose support of the Cayman

Group was essential to the group’s participation in the hotel

project was a key step in the scheme to defraud.

C. Maldonado’s
Bribery Convictions

Maldonado argues that there is insufficient evidence to

uphold the first of her two convictions for federal programs

bribery,9 18 U.S.C. § 666(a)(2), and her conviction for

conspiracy to commit federal programs bribery, 18 U.S.C. § 371.

Specifically, Maldonado argues that the evidence is insufficient

to conclude that she intended to assist in the January 24 bribery

of Councilman Yarbrough or that she reached an agreement with

anyone besides a government agent to commit bribery. Again, we

must view the evidence in the light most favorable to the verdict

and may reverse only if no rational jury could have found each

element of the charged offense beyond a reasonable doubt. See

Greer, 137 F.3d at 249.

There is more than sufficient evidence to conclude that

Maldonado possessed the requisite mental state with respect to

the bribery of Councilman Yarbrough. To convict under §

666(a)(2), the jury must find that the defendant acted with

“intent to influence or reward” a government agent. See 18

9
Maldonado does not contest the sufficiency of the
evidence as to her conviction for bribing Councilman Castillo
April 29.

31
U.S.C. § 666(a)(2). The evidence was that Maldonado worked for

the Cayman Group for more than a month before the Yarbrough

payment occurred, from December 21 to January 24. The evidence

from that time, among other things, shows the following: that

Torres revealed to Maldonado that then-councilman Reyes was being

paid to secure a spot for the Cayman Group in the city’s hotel

project (Dec. 21); that Dogium told Maldonado that a payment had

already been made to Yarbrough (Jan. 17); that Maldonado

explained that some council members expected compensation for

their votes (Jan. 17); that she said that she dealt with most

council members on a “very up-and-up” basis but that with

Yarbrough she “can get away with more because he and I are

friends” (Jan. 22); and that Maldonado said that the reason

Yarbrough was reticent to declare his support for the Duddlesten

plan is that he wanted to “see how much he can get out of the

deal”--“that’s his style” (Jan. 22). Then, from the day of the

January 24 meeting with Yarbrough, the evidence shows that

Maldonado understood that her role with the Cayman Group had

evolved--“[I]t’s a different deal than when I started. You want

me to do a lot more.”--and that she said that they ought to have

cash on hand for Yarbrough because “with him, it’d probably never

hurt.” And while Yarbrough and Dogium met on the 24th, Maldonado

said that Yarbrough told her he too wanted to profit from the

hotel project (“[H]e sees everybody getting rich, and what about

32
him?”).10 Based on the foregoing evidence, a rational jury could

conclude that Maldonado knew the Cayman Group was engaged in the

bribery of public officials and that, by arranging the January 24

meeting with Yarbrough, Maldonado intended to facilitate such

bribery.

Maldonado contends that she had intended to arrange for

Yarbrough to receive a lawful campaign contribution and that she

did not know that the Cayman Group planned to make an illegal

cash payment. In support of her argument, Maldonado notes that

the work that she was hired for--public relations and lobbying--

was indisputably lawful. Maldonado also points to evidence of a

December 21 conversation Reyes had with Molineiro, wherein the

two agreed to treat Maldonado “as if she were going to do P.R.

work for us now.” Testimony shows, however, that within hours

after the Reyes-Molineiro conversation occurred, Torres over

lunch candidly told Maldonado that Reyes was on the Cayman

Group’s payroll. The jury also heard evidence that at the time

of Torres’s disclosure Reyes was still a member of the city

council, and that the Cayman Group--as Maldonado well knew--was

actively seeking a place in the city’s hotel project. Although

Maldonado testified that Torres never made such a disclosure, the

10
Maldonado urges us to consider the “whole context” in
which her January statements were made, stating that the district
court denied her proffer of evidence of the complete
conversations. Maldonado does not contest the propriety of the
district court’s rulings, and therefore we will not consider them
now.

33
jury, as arbiter of credibility, could have chosen to believe

Torres instead.

Other evidence Maldonado relies upon is also subject to

contradiction. Maldonado notes that in her conversations with

Molineiro and Dogium, the two used ambiguous terms like “help,”

“influence,” and “personal assurances” to describe cash payments

the Cayman Group made or planned to make to council members. At

trial, Maldonado argued that the use of such language led her to

conclude that Molineiro and Dogium were referring to lawful

campaign contributions. Maldonado also argues that since Dogium

and Yarbrough met in private January 24 she did not have direct

knowledge of what Doguim and Yarbrough discussed or that

Yarbrough received a cash payment. As detailed above, however,

there is evidence upon which the jury could rely to find that

Maldonado learned of the Cayman Group’s illegal activity soon

after she was hired or, in any event, before Councilman Yarbrough

was bribed January 24.

Likewise, the evidence is sufficient to uphold Maldonado’s

conviction for conspiracy to commit federal programs bribery.

Conspiracy under 18 U.S.C. § 371 requires an agreement between

two or more people to commit a federal crime and an act by one of

the conspirators in furtherance of that agreement. See United

States v. Jobe, 101 F.3d 1046, 1063 (5th Cir. 1996). “[A]

government agent cannot be a co-conspirator and . . . there can

be no conspiracy between one defendant and a government

34
informer.” United States v. Manotas-Mejia, 824 F.2d 360, 365

(5th Cir. 1987). Maldonado argues that there is insufficient

evidence to find that she agreed with anyone other than Molineiro

or Dogium to commit bribery. We disagree.

From the evidence adduced at trial, a rational jury could

conclude that there was an unlawful agreement between Maldonado

and, among others, Reyes, Torres, and Allyn. “A conspiracy

agreement may be tacit, and the trier of fact may infer [an]

agreement from circumstantial evidence.” United States v.

Hernandez-Palacios, 838 F.2d 1346, 1348 (5th Cir. 1988). Based

on the evidence, the jury could infer that sometime before

Maldonado met with Molineiro and Reyes December 21, Reyes and

Allyn briefed her on the Cayman Group, the Duddlesten plan, and

the hotel project generally. Maldonado, Reyes, and Allyn were

longtime friends. Immediately upon her arrival at the December

21 meeting, Reyes handed Maldonado $1500 cash. Later that day,

Isasis Torres, who also was a close friend of Maldonado’s, joined

her and Reyes for lunch. The evidence from that lunch meeting

shows that Torres revealed that Reyes was on the Cayman Group’s

payroll; Torres asked Maldonado to keep this information secret

and she agreed. The evidence of these meetings, in light of that

of her illegal acts during the days that followed, would allow a

rational jury to conclude that Maldonado agreed to participate in

a bribery scheme with someone other than a government agent.

35
 Additionally, the record would allow the jury to infer an

unlawful agreement arose from Maldonado’s meeting with Reyes

sometime in early April. By the time of the meeting, Reyes’s

role with the Cayman Group had been substantially lessened;

before Maldonado would agree to continue with the Cayman Group,

she told Dogium and Molineiro that she wanted Reyes’s approval.

On April 12, Maldonado reported that Reyes had given his consent.

Thereafter, as described above, Maldonado’s statements and

conduct lacked little or no pretext regarding the legitmacy of

her work for the Cayman Group. Again, from this evidence, and in

light of the evidence of her conduct that followed the April

meeting with Reyes, the jury could reasonably infer that

Maldonado agreed with one or more persons--none of whom worked

for the government--to unlawfully influence city officials.

D. Entrapment

Reyes and Maldonado each argue entrapment as a matter of

law. “Entrapment is an affirmative defense with two related

elements: government inducement of the crime and a lack of

predisposition on the part of the defendant to engage in the

criminal conduct.” United States v. Wise, 221 F.3d 140, 154 (5th

Cir. 2000), petition for cert. filed, __ U.S.L.W. __ (U.S. Dec.

4, 2000)(No. 00-7342). “When a jury, which was fully charged on

entrapment, rejects the defendant’s entrapment defense, the

applicable standard of review is the same which applies to

36
sufficiency of the evidence.” United States v. Rodriguez, 43

F.3d 117, 126 (5th Cir. 1995). In other words, we must accept

every fact in the light most favorable to the jury’s guilty

verdict, and we may reverse only if no rational jury could have

found beyond a reasonable doubt either (1) lack of government

inducement or (2) predisposition to commit the charged crime.

See United States v. Thompson, 130 F.3d 676, 689 (5th Cir. 1997).

We focus our attention on the sufficiency of the

predisposition evidence.11 “Many factors may indicate a

defendant’s predisposition. . . .” United States v. Chavez, 119

F.3d 342, 346 (5th Cir. 1997)(per curiam). In particular, we

have said that a defendant’s ready and willing participation in

government-solicited criminal activity, standing alone, is

sufficient to prove predisposition. See Wise, 221 F.3d at 154.

Other circuits have likewise recognized the value of a

defendant’s eagerness (or lack thereof) as proof of

predisposition. See United States v. Higham, 98 F.3d 285, 290-91

(7th Cir. 1996)(“[W]hether the defendant demonstrated a

reluctance to commit the offense that was overcome by government

persuasion. . . . is the most important factor in evaluating a

defendant’s disposition.”); United States v. Skarie, 971 F.2d

317, 320 (9th Cir. 1992)(same). Other factors that may tend to

prove predisposition include desire for profit; demonstrated

11
Government inducement is not disputed with respect to
Reyes, but it is with respect to Maldonado, see supra note 13.

37
knowledge or experience with the criminal activity under

investigation; the character of the defendant, including past

criminal history; whether the government first suggested criminal

activity; and the nature of the inducement offered by the

government. See, e.g., Chavez, 119 F.3d at 346; Higham, 98 F.3d

at 290; United States v. Hernandez, 31 F.3d 354, 360 (6th Cir.

1994)); Skarie, 971 F.2d at 320; cf. United States v. Brown, 43

F.3d 618, 626 (11th Cir. 1996)(concluding that “entrapment as a

matter of law cannot be reduced to any enumerated list of factors

for a reviewing court to examine” but recognizing that “several

guiding principles” are helpful).

1. Reyes’s
Predisposition

We conclude that there is sufficient evidence to support a

finding that Reyes was predisposed to commit the charged crimes.

From the outset, there was good reason to be dubious of the

Cayman Group and its representatives: the group was heretofore

unheard of, the company was purportedly based outside the United

States, and it was composed of wealthy-but-unidentified South

American nationals. Indeed, the evidence shows that Reyes and

his brothers recognized that the group had a suspicious air about

it: they repeatedly urged Molineiro and Dogium to use a more

“American” sounding name, and, according to Reyes, Tony suggested

that they ask the police to investigate the group.

38
 Rather than proceed with caution, however, the evidence

shows that Reyes without hesitation made himself an integral part

of the Cayman Group’s business with the city. Reyes arranged for

Molineiro to meet with Reyes’s brothers, who, in turn, steered

Molineiro and the Cayman Group toward the hotel project and

Duddlesten’s plan to develop it. The evidence shows that Reyes,

through Tony, offered to use his position on the council to

secure a place for the Cayman Group in the city’s hotel project.

The evidence also shows that Reyes, again through Tony, asked the

Cayman Group to send a letter (which Reyes himself had provided)

to Duddlesten expressing interest in Duddlesten’s plan to develop

the hotel. Reyes got Isasis Torres, his longtime friend and

former attorney, to represent the group before the city council.

The record also shows that Reyes devised a plan to, in his words,

“buy us some leaders.” Reyes identified council members he

thought would accept bribes and suggested when and how payments

should be made. The evidence shows that Reyes recommended that

the Cayman Group retain Maldonado to help with the bribery

scheme. And the jury could conclude that Reyes’s intervention

with the Texas attorney general was intended to bring the hotel

project to a vote before Reyes left the council.

Further, the record clearly shows that Reyes sought to

profit from his illegal involvement with the Cayman Group. In

his January 6 comments to Dogium (quoted above), Reyes stated

that he expected to receive a substantial windfall from the hotel

39
project. Several times Reyes asked Dogium and Molineiro for

$50,000 to establish a “front” for this anticipated wealth.

Although Reyes offered testimony that the money was intended as a

loan, the record reveals no evidence of loan documents, agreement

papers, or repayments. Further, on more than one occasion,

Dogium rejected any suggestion that the $50,000 was intended to

fund a venture separate from the Cayman Group’s interest in the

hotel project. The evidence also shows that Molineiro gave Reyes

$1000 when he claimed to have run out of money and asked for

assistance. Finally, the jury could take cognizance of the fact

that the Reyeses received an all-expenses-paid trip to Florida,

as guests of the Cayman Group, in violation of the city

ordinances prohibiting the receipt of such benefits.12

Reyes also demonstrated that he was knowledgeable and

experienced in making and receiving bribes. On November 6, Reyes

told Dogium that bribes were virtually a fact of life for the

city council. The same day, Reyes remembered a conversation with

the target of a bribe, wherein he learned that he had been

cheated by an intermediary: “I sent you forty. How did you end

up with twenty?” Later, on January 8, Reyes explained how he, as

a city councilman, viewed entreaties for assistance: “The [guy]

wants me to lead. . . . I gotta get fed. I gotta pay the grocery

12
Reyes offered testimony that Molineiro threatened to
kill him if he refused to go to Florida. This evidence is
uncorroborated, and the jury, if it so chose, could have accorded
it no weight.

40
bills. . . . Yeah, he helped me get elected, so what [about]

now?” Although Reyes offered testimony that the foregoing

remarks were “puffery” and “bolstering,” intended to convince

Molineiro and Dogium that he had the ability to advance the

Cayman Group’s interests, the jury could have chosen to reject

the explanation as self-serving.

Moreover, there is little, if any, evidence that the jury

could have credited as proof that Reyes tried to disentangle

himself from the illegal activity. At trial, Reyes offered

evidence that he and his brothers several times told Molineiro

and Dogium that Reyes, by virtue of his position on the city

council, could not have a personal stake in the hotel project.

But the evidence of these remarks stands in stark contrast to

that of numerous other statements wherein Reyes or his associates

confirmed Reyes’s personal involvement and asked that it be kept

secret. Likewise, evidence that Reyes warned Molineiro and

Dogium that their mode of business was not proper in the United

States could have been disregarded by the jury as half-hearted at

best and wholly at odds with other evidence of Reyes’s conduct.

In the face of the foregoing evidence, Reyes urges that the

government’s elaborate scheme and aggressive inducement defeats

the jury’s finding of predisposition. We disagree. Although

there was evidence that Molineiro attempted to foster a familial

relationship with Reyes, frequently referring to Reyes in Spanish

as his brother, we nor any other court has held that inducement-

41
through-friendship, standing alone, is sufficient to find

entrapment as a matter of law. Reyes also testified that the

Duddlesten plan and the promise of ethnic minority participation

in its financing presented a “once in a lifetime” opportunity for

the Hispanic community and that, with the plan on the table, the

Cayman Group arrived exactly when ethnic minority investors were

needed. The jury, however, could reasonably reject Reyes’s

contention that the Cayman Group, whose representatives showed

little respect for the city’s laws or its elected officials,

presented such an extraordinary opportunity. Finally, Reyes

testified that he had few prospects for post-council employment

and that Dogium’s offer of a position with the Cayman Group--an

offer that Reyes says was made contingent on the group’s success

in the hotel project--induced him to act as he did. Again, we

think that the jury could reasonably reject Reyes’s argument,

concluding that Reyes, an elected official who no doubt had

accumulated many valuable contacts during his 25 years’ of public

service, was not faced with a situation so dire that he was

induced to act against his predisposition.

2. Maldonado’s
Predisposition

We likewise conclude that there was sufficient evidence for

the jury to find that Maldonado was predisposed to commit the

42
charged crimes.13 As noted above, a defendant’s eager

willingness to participate in government-solicited criminal

activity is sufficient to prove predisposition. The linchpin of

Maldonado’s argument here is that she did not know about Reyes’s

and the Cayman Group’s cash payments to council members;

therefore, she argues, her work on behalf of the group, though it

might appear differently to others, did not constitute an eager

willingness to engage in the charged crimes. Having already

found that the evidence is sufficient to conclude that Maldonado

intended to bribe Councilman Yarbrough January 24, and it being

undisputed that she intended to do the same with respect to

Councilman Castillo April 29, we reject this argument. We

conclude, therefore, that a rational jury, looking at the

evidence of Maldonado’s conduct as an objective manifestation of

her predisposition, could find that she was a willing and eager

participant in the charged acts of bribery.

Maldonado argues that once she became a knowing participant

in the scheme to bribe council members, she “hesitated and

stalled” when Molineiro or Dogium thereafter asked her to meet

13
Maldonado was first contacted by someone other than a
government agent or informant. In United States v. Barnett, 197
F.3d 138, 143 (5th Cir.), cert. denied, 120 S. Ct. 1966 (2000),
we stated that the “defense of entrapment is not applicable where
one is induced to engage in criminal activity by a private
citizen acting alone.” Pointing to Barnett, the government
argues that Maldonado, as a matter of law, could not have been
entrapped. We need not consider this argument in light of our
conclusion that the evidence is sufficient to find that Maldonado
was predisposed to commit the charged crimes.

43
with members of the council. She contends that she tried to

steer her lobbying efforts toward the mayor and other officials

and that she once lied to Molineiro about Councilman Yarbrough’s

travel plans so that she could avoid a meeting with him.

Maldonado also contends that she urged Dogium to make an above-

board contribution to Councilman Fraga’s campaign for Congress,

rather than a cash payment.

Other evidence, however, reveals that Maldonado continued to

play an integral role in the bribery scheme right up until the

time she was confronted by law enforcement. In April Maldonado

told Dogium, “I’m going to tell you how you can get the most for

the least.” On April 19, Maldonado promised that she would

determine which council members would want cash for their

support, adding “we can start off by assuming that they’re all

gonna want something.” On April 29, Maldonado handed a cash-

filled envelope to Councilman Castillo. Later that day,

Maldonado asked Molineiro to prepare “two grand” for a meeting

the next day with Councilman Fraga, who she remarked “really,

really needs it.” And on each of the next two days that

followed--April 30 and May 1--the evidence shows that Maldonado

attempted to pass a bribe.

Like Reyes, Maldonado argues that the government’s

aggressive inducement defeats any finding of predisposition. We

disagree. At trial, Maldonado argued that the government’s

inducement was designed to “tug at the core of her being.” Like

44
Reyes, she contended that the hotel project represented a

“historic opportunity for her community” because “of its promise

of inclusion to ethnic minorities.” A rational jury, however,

could have correctly concluded that the introduction of the

Cayman Group and its representatives into Reyes’s and Maldonado’s

community did not represent the extraordinary opportunity

Maldonado argued that it did.

3. Positional
Predisposition

Reyes and Maldonado each argue that their respective cases

present a question of “positional predisposition,” as that

concept is described in United States v. Hollingsworth, 27 F.3d

1196 (7th Cir. 1994)(en banc), and that the trial court erred in

refusing to charge the jury on the issue. We review the district

court’s refusal to give a requested jury instruction for an abuse

of discretion. See United States v. Dixon, 185 F.3d 393, 402

(5th Cir. 1999).

In Hollingsworth, the Seventh Circuit concluded that

“[p]redisposition is not a purely mental state, the state of

being willing to swallow the government bait. It has positional

as well as dispositional force.” 27 F.3d at 1200. To be

positionally predisposed, the “defendant must be so situated by

reason of previous training or experience or occupation or

acquaintances that it is likely that if the government had not

induced him to commit the crime some criminal would have done

45
so.” Id. In United States v. Brace, 145 F.3d 247 (5th Cir.

1998)(en banc), this court, sitting en banc, vacated a panel

opinion that had adopted Hollingsworth’s positional

predisposition doctrine. In so doing, we did not reject

positional predisposition outright but instead concluded that the

issue was not properly before the court. Id. at 265. We have

not since considered the merits of positional predisposition,

although in our recent opinion in United States v. Wise, 221 F.3d

140, 155-56 (5th Cir. 2000), we concluded that the defendant

there did not show that he was not positionally predisposed under

Hollingsworth.

Like we did in Wise, we here conclude that Reyes and

Maldonado have failed to show that they were not positionally

predisposed.14 In Hollingsworth, the court stated that public

officials such as Reyes are in the position to take bribes. And

we conclude that Maldonado, a lobbyist and political activist,

had the training, experience, and contacts to satisfy

Hollingsworth’s positional requirement. Further, we reject

Reyes’s and Maldonado’s argument that the opportunity for ethnic

minority investment in a major city project would not have

occurred absent the government’s sting operation. For one, the

government had nothing to do with the Duddlesten plan; and it was

14
In rejecting Reyes’s and Maldonado’s arguments, we
express no opinion as to the merits of the positional
predisposition doctrine.

46
that plan--not the Cayman Group--that presented the opportunity

Reyes and Maldonado describe. Nor is it true that absent

government involvement no minority investors existed to consider

investing in the hotel project; to the contrary, Reyes, in his

brief, notes that he had communicated with other minority groups

interested in the Duddlesten proposal. We therefore conclude

that the district court did not err in refusing the instruction.

E. Exclusion
of Recording

Reyes argues that the district court erred in excluding a

conversation recorded May 4 between himself and Maldonado. “We

review the district court’s admission of evidence for an abuse of

discretion.” See United States v. Phillips, 219 F.3d 404, 409

(5th Cir. 2000). At trial, Reyes submitted that the recording

was relevant (indeed essential) to his defense theory--namely,

that the things he did and said during the investigation were

part of his secret plan to “scam the scammers.” Reyes argues

that the exclusion of the recording deprived him of the

opportunity to put on an effective defense and therefore violated

his right to due process. Further, he argues that the recorded

conversation is not hearsay, and that even if it were so

construed, it is excepted as a then-existing mental state. We

reject each point.

At the outset, we note that the opportunity to present

evidence, as part of the right to a meaningful defense, applies

47
only to that evidence deemed competent. See Crane v. Kentucky,

476 U.S. 683, 690 (1986)(“[W]e have never questioned the power of

States to exclude evidence through the application of evidentiary

rules that themselves serve the interests of fairness and

reliability--even if the defendant would prefer to see that

evidence admitted.”). Here, the recorded May 4 conversation is

hearsay, and it is not a statement of a then-existing mental

state under Rule 803(3) of the Federal Rules of Evidence. Rule

803(3) permits admission of such statements where, among other

things, the statements occurred contemporaneous with the event

sought to be proved and the defendant did not have a chance to

reflect (i.e., the defendant had no time to fabricate or

misrepresent his thoughts). See United States v. Jackson, 780

F.2d 1305, 1315 (7th Cir. 1986); see generally 5 Jack B.

Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence §

803.06 (Joseph M. McLaughlin ed., 2d ed. 2000). The recording in

question was made after Maldonado was confronted by law

enforcement and pledged to cooperate in their investigation. At

trial, Reyes’s attorney stated that Reyes by May 4 suspected that

Maldonado was cooperating with authorities. The likelihood that

the conversation was being monitored or recorded makes it

probable that Reyes’s recorded remarks were more self-serving

than they were candid, and therefore their probative value is

greatly diminished. See United States v. Schwartz, 924 F.2d 410,

423-24 (2d Cir. 1991). Additionally, the duration between the

48
recorded conversation and Reyes’s last criminal act (February 20)

is large enough for the district court to rightly conclude that

the remarks had little or no probative value with respect to

Reyes’s then-existing mental state. See Colasanto v. Life Ins.

Co. of N. Am., 100 F.3d 203, 213 (1st Cir. 1996)(holding

inadmissible state-of-mind evidence where dispute between

litigants arose after material time but before evidence

recorded). In short, we conclude that the district court acted

well within its accorded discretion in excluding the May 4

recording.

F. Upward
Departure

Reyes argues that the district court erred in departing from

the sentencing guidelines because his case is not atypical from

those the sentencing commission considered when it drafted the

guidelines. In United States v. Threadgill, 172 F.3d 357 (5th

Cir.), cert. denied, 528 U.S. 871 (1999), we discussed departure

under the sentencing guidelines in the wake of the Supreme

Court’s landmark decision in Koon v. United States, 518 U.S. 81

(1996). In Threadgill, we said that the propriety of departure

depends upon, among other things, “whether the departure factors

relied on by the district court were permissible.” 172 F.3d at

376. Impermissible factors include those “already considered by

the Guidelines and not present to an exceptional degree” in the

case at hand. See id. at 375. Whether a factor is a permissible

49
basis for departure is a question of law we review de novo. See

Koon, 518 U.S. at 100.

In this case, the district court departed pursuant to

application note 5 of § 2C1.1 of the sentencing guidelines.

Application note 5 provides that “[w]here the court finds that

the defendant’s conduct was part of a systematic or pervasive

corruption of a governmental function, process, or office that

may cause loss of public confidence in government, an upward

departure may be warranted.” U.S. Sentencing Guidelines Manual

(“U.S.S.G.”) § 2C1.1 app. n.5. At the outset, we note that if

systematic-or-pervasive corruption were considered part of the

typical bribery offense, the commission would not have separately

provided for departure based on a finding of the same. See

United States v. Shenberg, 89 F.3d 1461, 1476 (11th Cir. 1996).

Thus, we think it follows that factors concomitant with

systematic-or-pervasive corruption were likewise not considered

by the commission when it crafted § 2C1.1. We also note that to

the term “systematic or pervasive corruption,” application note 5

adds the clause “that may cause loss of public confidence in

government.” The effect of the latter clause is to modify the

former, meaning that the described corruption must be of the kind

that “may” lead to a loss of confidence in government.

Admittedly, there would seem to be few instances where a

“systematic or pervasive corruption of a government function”

could never result in a “loss of public confidence in

50
government.” In any case, a straight-forward reading of

application note 5 reveals two points: (1) that the sentencing

commission did not consider factors concomitant with systematic-

or-pervasive corruption; (2) and that the systematic-or-pervasive

corruption that warrants departure is of the kind that may result

in a loss of public confidence in government. With the foregoing

construction in mind, we turn to the findings enunciated by the

district court.

We conclude that the factors used by the district court to

depart from the sentencing guidelines in this case were proper.

First, in finding systematic-or-pervasive corruption by the

defendant, the district court relied on Reyes’s role in the

criminal activity. The district court stated: “the record

clearly identifies at least five criminally-responsible

participants. . . . The evidence is unquestionable as to the

organizer role this defendant played in this offense.” The

court’s finding with respect to Reyes’s role in the corruption is

in accord with the meaning of “systematic,” “pervasive,” or

both.15 Second, in finding a loss of public confidence, the

district court noted the following: that Reyes, by his own

admission, had “stained” the city council; that the mayor urged

15
See Merriam Webster’s Collegiate Dictionary 1198 (10th
ed. 1993)(defining “systematic” as, inter alia, “methodical in
procedure or plan” and “marked by thoroughness and regularity”);
id. at 868 (defining “pervade” as “to become diffused throughout
every part of”).

51
citizens not to let the verdicts reflect upon city officials

generally; that a county judge, in his state-of-the-county

address, spoke of “corruption in government” and “envelopes full

of cash”; and that “widely reported media coverage of this case .

. . has fueled the public perception of corruption of our own

city council here in Houston.” These findings are consistent

with the conclusion that Reyes’s systematic-or-pervasive

corruption may result in a loss of public confidence in

government.

Reyes argues that cases wherein courts have upheld departure

under application note 5 show that the factors that give rise to

a finding of systematic-or-pervasive corruption are markedly more

severe than those in his case. Reyes urges us to consider three

circuit-court opinions: United States v. Reece, No. 97-4106, 139

F.3d 895 (4th Cir. Mar. 17, 1998)(unpublished table opinion)

available at 1998 WL 116163; United States v. Shenberg, 89 F.3d

1461 (11th Cir. 1996); and United States v. Schweitzer, 5 F.3d 44

(3d Cir. 1993). In Reece, the defendant was a manager of the

Bureau of Alcohol, Tobacco, and Firearms aircraft leasing

program. During the course of a five-year scam, the defendant

made 22 false submissions for aircraft leases and bilked his

agency out of over a half-million dollars. The sentencing court

recognized the record size of the theft, that the case had

generated significant controversy, and that the defendant’s

conduct may result in a loss of public trust. Reece, 1998 WL

52
116163, at *2. In the second case, Shenberg, the defendant, a

state-court judge, took bribes to fix cases, enticed other judges

to do the same, and revealed the identity of a government

informant, knowing that the informant might be killed. The

Eleventh Circuit concluded that “the government overwhelmingly

proved systematic corruption by a preponderance of the evidence.

. . . [and that a] loss of public confidence in government, of

course, is not subject to reasonable dispute.” Shenberg, 89 F.3d

at 1476-77. And, in Schweitzer, the defendant, in violation of

federal law, obtained and sold confidential information on

individuals from the Social Security Administration, which he

then sold for about $10,000. The Third Circuit concluded that

the “evidence supports the district court’s conclusion that

Schweitzer’s conduct went well beyond the heartland bribery

offense covered by § 2C1.1 both because of its extent and because

of the consequence of that conduct for the large number of

victims that it impacted.” Schweitzer, 5 F.3d at 47.

We find nothing in the above-discussed cases that mitigates

against departure in this one. Admittedly, Reyes’s corrupt acts

were far less disturbing than those committed by the state-court

judge in Shenberg. But we note that the court there found that,

in light of the defendant’s conduct, the propriety of departure

was not subject to reasonable dispute. Reyes makes much of the

fact that, unlike the defendant in Reece, his alleged corruption

pertained to a single project and that the amounts involved were

53
comparatively small. Whatever the effect of these distinctions,

however, we note that, unlike the defendant in Reece, Reyes went

out of his way to entice other government officials and citizens

to involve themselves in his corrupt scheme. And though the

defendant in Reece was a high-ranking ATF official, Reyes, a

long-time city council member, was at the apex of city government

and had responsibilities that affected the lives of hundreds of

thousands.

Finally, Reyes argues that the district court’s reliance on

media coverage as an indicator of potential loss of public

confidence is improper because that factor is invariably present

in the typical public corruption case. This point, however, is

refuted by two of the cases Reyes relies on here: in both Reece

and Schweitzer, the courts considered media coverage relevant in

evaluating whether there was a potential for loss of public

confidence. And while Reyes may be correct in his assertion that

media coverage is attendant in more public corruption cases than

not, we again note that the systematic-or-pervasive conduct that

warrants departure must have the potential to cause a loss in

public trust. Of course, the media has long played an important

role in rooting out and reporting on such conduct.

Lastly, Reyes argues that § 5K2.7 of the sentencing

guidelines shows that the circumstances in this case do not

warrant departure. We disagree with this point too. The

district court did not rely on § 5K2.7, entitled “Disruption of

54
Government Function (Policy Statement),” to depart from the

guidelines; as already noted, departure was based on application

note 5 of § 2C1.1. Application note 5, however, references § 5K

of the guidelines. But this reference is to chapter 5, part K

generally (“Departures”), and not § 5K2.7 specifically. Part K,

among other things, discusses departure as a policy matter, see §

5K2.0, and enumerates certain factors that may warrant departure,

e.g., § 5K2.1 (death), § 5K2.2 (physical injury). The grounds

for departure provided in part K are in addition to those, like

application note 5, that are found elsewhere in the guidelines.

See U.S.S.G. ch. 1, pt. A, intro. cmt. 4(b). Accordingly,

whether departure is warranted under application note 5 of §

2C1.1 is not dependant on whether it is also warranted under §

5K2.7.16

G. Adjustment for
Reyes’s Criminal History

Reyes argues that the district court erred when it counted

two misdemeanor charges for which he received deferred

adjudications as “separate” when it made an adjustment for prior

16
In her brief, Maldonado adopts Reyes’s argument with
respect to the district court’s upward departure from the
sentencing guidelines. As seen above, the question whether
departure is proper requires that the appeals court consider the
factors relied upon by the sentencing court. Based on our review
of the record, however, it does not appear that the relevant
portions of Maldonado’s sentencing were transcribed. Under the
rules of this circuit, it is Maldonado’s responsibility to order
transcripts from the pertinent proceedings. See 5th Cir. R.
10(b)(1). We therefore do not consider Maldonado’s departure
argument.

55
criminal history. Under the sentencing guidelines, two or more

prior sentences are “related” (and are therefore counted as one

for purposes of determining criminal history) if, among other

things, they were consolidated for trial or sentencing. See

U.S.S.G. § 4A1.2 app. n.3. Reyes argues that his prior offenses-

-one an election code violation, the other theft of a tree--were

consolidated and therefore are “related” under the guidelines.

Reyes admits, however, that there was no state-court order that

consolidated the two cases. We have rejected this argument

before. See United States v. Valazquez-Overa, 100 F.3d 418, 423-

24 (5th Cir. 1996)(“Moreover, as we have recognized in the past,

there can be no informal consolidation of offenses under Texas

law.”)(citing United States v. Garcia, 962 F.2d 479 (5th Cir.

1992). We conclude that the district court’s characterization of

Reyes’s prior offenses was proper and that Reyes’s argument is

without merit.

IV. CONCLUSION

For each of the foregoing reasons, Reyes’s and Maldonado’s

respective convictions and sentences are AFFIRMED.

56