United States Court of Appeals
For the First Circuit
No. 16-2247
UNITED STATES OF AMERICA,
Appellee,
v.
FEDERICO DUCOUDRAY ACEVEDO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Aida M. Delgado-Colón, U.S. District Judge]
Before
Barron, Selya, and Lipez,
Circuit Judges.
Linda Backiel on brief for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana
E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, and Thomas F. Klumper, Assistant United States
Attorney, Senior Appellate Counsel, on brief for appellee.
February 14, 2018
BARRON, Circuit Judge. Federico Ducoudray Acevedo
("Ducoudray"), formerly an attorney in Puerto Rico, appeals his
convictions for tampering with a witness, victim, or an informant,
18 U.S.C. § 1512(b)(1), and for obstructing the due administration
of justice, 18 U.S.C. § 1503. These convictions arise from a visit
that Ducoudray made in August of 2012 to an alleged co-conspirator
of one of Ducoudray's clients, who at the time was facing several
criminal charges in both state and federal court. The government
alleged that Ducoudray committed the underlying offenses by,
during that visit, requesting that the co-conspirator "retract"
the statements that he made to law enforcement that implicated
Ducoudray's client.
On appeal, Ducoudray contends that there was not
sufficient evidence to support the convictions. He argues, in the
alternative, that a series of errors occurred at his trial that,
he contends, show either singly or in combination that the
convictions may not stand. We affirm both convictions.
I.
We reserve a discussion of the full set of facts,
complicated as they are, for our discussion of the individual
issues Ducoudray raises. For now, it suffices to recount those
facts that make it possible to understand the charges underlying
the convictions.
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The relevant sequence of events begins on July 21, 2012.
A federal criminal complaint was filed that day in the United
States District Court for the District of Puerto Rico against Edwin
Santana Hernández ("Hernández"), a client of Ducoudray. The
complaint charged Hernández with being a participant in a drug
trafficking conspiracy.
The complaint included a probable cause affidavit. The
affidavit stated that Hernández's cousin, Julio Santana Castillo
("Castillo"), had already been arrested in New York as a
participant in the same drug trafficking conspiracy in which
Hernández was implicated. The affidavit also stated that Castillo
was cooperating with federal law enforcement by providing law
enforcement with evidence of Hernández's involvement in that
conspiracy.
Hernández was arrested on the same day that the federal
criminal complaint was filed against him. Two days later,
Ducoudray provided a "notice of appearance" in that federal case
indicating that he had been retained to serve as Hernández's
attorney.
The next day, Castillo, who was being held at the time
in a correctional facility in New York City on a New York state
law charge of conspiracy to traffic narcotics, hired a defense
attorney named Peter Frankel ("Frankel") to represent him. Over
the course of the next week, Frankel met with Castillo in the
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correctional facility, appeared in state court on Castillo's
behalf in connection with the conspiracy charges that had been
brought against Castillo, and was present at a proffer session
with state and federal authorities during which Castillo confessed
to his participation in the drug trafficking conspiracy.
Soon thereafter, on August 1, 2012, a grand jury in the
United States District Court for the District of Puerto Rico
indicted both Hernández and Castillo, as co-defendants. The
indictment charged them with various counts related to the drug
trafficking conspiracy in which they were alleged to have
participated.1
The next key events for present purposes were as follows.
On the same day that the federal indictment of Hernández and
Castillo came down, August 1, 2012, Ducoudray left Puerto Rico and
headed to New York City in hopes of visiting with Castillo at the
correctional facility where Castillo was being held. Then, the
next day, according to Castillo's testimony at Ducoudray's trial,
Ducoudray met with Castillo at the correctional facility and told
him that he should "retract [the] story" that he had told to law
enforcement, as "Hernández was going to trial, and [Castillo's
1 This indictment was docketed as a different matter than the
matter in which the federal criminal complaint had previously been
filed against Hernández, although the case previously filed
against Hernández was merged into the newly docketed case on August
1, 2012.
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retraction] was the only way [Hernández] was going to beat [his]
case." In addition, Castillo testified, Ducoudray first told
Castillo that he had called Castillo's lawyer several times and
that Castillo's lawyer never picked up. But, Castillo testified,
Ducoudray later in the conversation "changed the story" to say
that Castillo's lawyer had, in fact, given Ducoudray permission to
speak with Castillo.
Ducoudray ended the meeting, according to Castillo's
testimony, by telling Castillo that he should not tell his brother
or his attorney about the meeting. But, Castillo testified, after
the visit Castillo feared for his safety and told his brother about
the visit.
Soon after meeting with Castillo, moreover, Ducoudray
contacted Frankel, according to Frankel's testimony at Ducoudray's
trial. Frankel testified that, when the two men talked, Ducoudray
identified himself as Hernández's attorney and asked Frankel
whether Castillo was cooperating with law enforcement but that
Ducoudray did not reveal that he was in New York City or that he
had just visited Castillo. Frankel also testified that, after he
later learned from Castillo's brother that there had been an
unauthorized visit by a lawyer to Castillo, Frankel called
Ducoudray. According to Frankel's testimony, Ducoudray initially
denied that the visit had occurred, stating that he was in Puerto
Rico, but, when pressed by Frankel, admitted that he had visited
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and spoken with Castillo, though he stated it was only to "find
out who [Castillo's] lawyer was."
The next morning, Frankel testified, he contacted the
Assistant United States Attorney ("AUSA") prosecuting Hernández's
case and reported the incident to that AUSA, both orally and later
by email. The email included an account of what Castillo had told
Frankel about what Ducoudray had said to Castillo during their
meeting at the correctional facility.
In 2015, Ducoudray was indicted on federal charges of
obstructing the due administration of justice2 and tampering with
a witness, victim, or an informant,3 in connection with his visit
to Castillo. A jury trial was held in January 2016, after which
Ducoudray was convicted of both offenses.4 He now appeals.
2 "Whoever corruptly, . . . impedes, or endeavors to
influence, obstruct, or impede, the due administration of justice,
shall be punished . . . ." 18 U.S.C. § 1503.
3 "Whoever knowingly . . . corruptly persuades another person,
or attempts to do so, . . . with intent to . . . influence, delay,
or prevent the testimony of any person in an official proceeding
. . . shall be fined under this title or imprisoned . . . ." 18
U.S.C. § 1512(b).
4 Prior to trial, in October 2012, Castillo and Hernández
entered into plea agreements with respect to the federal drug
charges against them. They were both sentenced in 2013, with
Castillo receiving a reduced sentence recommendation due to his
cooperation with law enforcement.
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II.
We first address Ducoudray's contention that the
District Court wrongly denied his motion for a judgment of
acquittal pursuant to Federal Rule of Criminal Procedure 29, as to
both charges.5 To succeed on his Rule 29 motion, Ducoudray must
show that the evidence presented at trial, even when viewed in the
light most favorable to the government, did not suffice to prove
the elements of the offenses beyond a reasonable doubt. See United
States v. Gabriele, 63 F.3d 61, 67 (1st Cir. 1995).
In order to convict Ducoudray of a violation of 18 U.S.C.
§ 1512(b)(1), the government had to prove beyond a reasonable doubt
that Ducoudray "(i) knowingly (ii) . . . corruptly persuaded
[Castillo], or attempted to do so . . . (iii) with intent to
influence[, delay, or prevent the] testimony [of Castillo] (iv) in
an official proceeding." United States v. Cruzado-Laureano, 404
F.3d 470, 487 (1st. Cir. 2005). We have previously held, moreover,
that "[t]rying to persuade a witness to give false testimony counts
as 'corruptly persuading' under § 1512(b)[(1)]." Id.
5
The Rule 29 motion Ducoudray filed appeared to be limited
to a motion for acquittal on just the 18 U.S.C. § 1512(b)(1)
offense. However, the District Court did reference the criminal
statutes underlying both offenses in its ruling denying the motion.
On appeal, Ducoudray appears to argue that his Rule 29 motion
encompassed the convictions for both offenses, and the government
does not contest this characterization. For the purpose of our
Rule 29 analysis, therefore, we assume without deciding that
Ducoudray's Rule 29 motion below concerned both offenses.
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In order to convict Ducoudray of violating 18 U.S.C.
§ 1503, the government had to prove beyond a reasonable doubt the
following: that there was a pending judicial proceeding; that
Ducoudray had notice of the proceeding; and that Ducoudray acted
corruptly with the intent to influence or obstruct, or endeavored
to influence or obstruct, the proceeding. See United States v.
Cueto, 151 F.3d 620, 633 (7th Cir. 1998); United States v.
Frankhauser, 80 F.3d 641, 650-51 (1st Cir. 1996). The government
contends that proof that Ducoudray tried to persuade Castillo to
provide false testimony at Hernández's criminal trial would
suffice to support Ducoudray's conviction for violating § 1503,
just as it would suffice to support his conviction for violating
§ 1512(b)(1). Ducoudray makes no argument to the contrary.
Accordingly, setting to one side any other theories of
criminal liability that the parties address in their briefing to
us, Ducoudray's challenge to the denial of his Rule 29 motion fails
if the evidence at trial sufficed to show that, in Ducoudray's
words, he "knowingly attempted to persuade [Castillo] to violate
the law by providing false testimony." Our review of the denial
of the motion is de novo. United States v. Hernández, 218 F.3d
58, 64 (1st Cir. 2000).6 But that review is "quite limited," as
6 Ducoudray submitted a Rule 29 motion at the close of the
government's evidence, but he did not renew his Rule 29 motion
after the verdict. Contrary to the government's assertion that
this failure to renew means the standard of review should be "for
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"we must affirm unless the evidence, viewed in the light most
favorable to the government, could not have persuaded any trier of
fact of the defendant's guilt beyond a reasonable doubt." Id.
(quoting United States v. Paradis, 802 F.2d 553, 559 (1st Cir.
1986)). Moreover, "[i]n applying this standard, 'no premium is
placed upon direct as opposed to circumstantial evidence; both
types of proof can adequately ground a conviction.'" Id. (quoting
United States v. Ortiz, 966 F.2d 707, 711 (1st Cir. 1992)).
Finally, "[a] trial court in passing on [a Rule 29] motion
considers all of the evidence it has admitted, and . . . it must
be this same quantum of evidence which is considered by the
reviewing court." United States v. Diaz, 300 F.3d 66, 77 (1st
Cir. 2002) (quoting Lockhart v. Nelson, 488 U.S. 33, 41-42 (1988)).
Thus, on appeal, "[u]nder Rule 29, we must examine 'all the
evidence submitted to the jury, regardless of whether it was
properly admitted.'" Id. (quoting United States v. Gonzalez-
Sanchez, 825 F.2d 572, 588 (1st Cir. 1987)).7
clear and gross injustice only," because Ducoudray did not put on
any evidence in his defense he did not have to renew his motion in
order to preserve the issue. See Hernández, 218 F.3d at 63 n.3.
As such, our review is de novo. See id. at 64.
7 We thus reject Ducoudray's contention that we must ignore,
or discount the weight to be given, certain evidence in evaluating
his challenge to the denial of his Rule 29 motion due to the errors
that he alleges the District Court made at trial with respect to
that evidence. Later in this opinion, however, we do consider the
challenges that Ducoudray makes to those trial rulings, but only
in connection with Ducoudray's contention that those alleged
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Applying these principles, we first consider Ducoudray's
contention that the evidence did not supportably show beyond a
reasonable doubt that Ducoudray "knew . . . [Castillo] was a
witness in Hernández's pending proceeding." In considering that
contention, however, we must keep in mind that "[t]he key is not
whether the defendant knows or doesn't know that someone is a
'witness.'" See United States v. Misla-Aldarondo, 478 F.3d 52, 69
(1st Cir. 2007). The key is whether the defendant knew that the
person might be providing testimony in an upcoming official
proceeding that the defendant's actions were likely to affect.
See id. (interpreting § 1512(b) and explaining that the inquiry is
into "whether [the defendant] is intending to head off the
possibility of testimony in an 'official proceeding'"); United
States v. Aguilar, 515 U.S. 593, 599 (1995) (holding, with respect
to intent to influence, obstruct, or impede testimony in an
official proceeding under § 1503, a defendant must have "knowledge
that his actions are likely to affect the judicial proceeding").
Here, the government put forth sufficient evidence from
which a jury could find "that [Ducoudray] knew that an official
proceeding had begun [against Hernández], or that he believed one
to be likely in the future," Misla-Aldarondo, 478 F.3d at 69
(footnote omitted). The government also put forth sufficient
errors provide a basis, either individually or in combination, for
vacating his convictions. See infra §§ III-IV.
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evidence from which a jury could reasonably conclude that Ducoudray
knew that Castillo was likely to be a witness for the government
in that proceeding.
That evidence included a copy of the notice of appearance
that Ducoudray filed in federal court confirming his
representation of Hernández in the federal case against him. That
evidence also included Castillo's testimony about Ducoudray's
request that Castillo "retract" his statements to law enforcement
so that Hernández could "beat his case" at trial. After all, a
jury could reasonably conclude from this testimony that Ducoudray
was concerned about getting Castillo to change his story to help
Hernández "beat his case" because Ducoudray thought that Castillo
was likely both to testify as a witness against Hernández at trial
and to provide testimony that would help the government to convict
Hernández. Hernández, 218 F.3d at 64 (explaining that "all
reasonable inferences [are] made in the light most favorable to
the government" (quoting United States v. Loder, 23 F.3d 586, 590
(1st Cir. 1994))); Diaz, 300 F.3d at 77 ("In assessing the
sufficiency of the evidence under Rule 29, 'we view the evidence
and draw reasonable inferences in the light most favorable to the
verdict.'" (quoting United States v. McGauley, 279 F.3d 62, 66
(1st Cir. 2002))).8
8
Ducoudray also contends that Castillo's testimony cannot
suffice to sustain the verdicts because he was a "biased witness,"
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We turn, then, to the question of whether the evidence
also sufficed to show that Ducoudray "knowingly" sought to persuade
Castillo to give false testimony, if need be, at the upcoming trial
of Hernández. Ducoudray's chief argument that the evidence did
not suffice in that regard is that "[t]he prosecution made no
effort to show that . . . Ducoudray knowingly asked [Castillo] to
retract truthful statements." He contends the evidence suffices
at most to show that Ducoudray was merely asking Castillo either
to not "falsely implicate[]" Hernández or to invoke a valid Fifth-
Amendment privilege against testifying. In connection with this
contention, Ducoudray argues the testimony that he told Castillo
to "accept [his] responsibilities" shows that, in asking Castillo
to "retract" what he had told authorities, Ducoudray was merely
asking Castillo to "correct what [Hernández] had told [Ducoudray]
were lies."
We must, however, consider the evidence in the light
most favorable to the verdict. Hernández, 218 F.3d at 64
(explaining that the court of appeals "must uphold any verdict
that is 'supported by a plausible rendition of the record'"
who was cooperating with the government. But, in reviewing the
denial of a Rule 29 motion, we do not "weigh the evidence or make
credibility judgments; these tasks are solely within the jury's
province." Hernández, 218 F.3d at 64. Insofar as Ducoudray is
also challenging the District Court's failure to provide a
requested cooperating witness jury instruction, we separately
address that argument later in this opinion. See infra § III.B.
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(quoting Ortiz, 966 F.2d at 711)). In addition, "if the evidence
can be construed in various reasonable alternatives, the jury is
entitled to freely choose from among them." United States v.
Smith, 680 F.2d 255, 259 (1st Cir. 1982). Furthermore, "the
government need not present evidence that precludes every
reasonable hypothesis inconsistent with guilt in order to sustain
a conviction." Hernández, 218 F.3d at 64 (quoting Loder, 23 F.3d
at 590).
When we review the record from this verdict-friendly
perspective, it is clear that the evidence did not require the
jury to view Ducoudray's attempt to persuade Castillo to "retract"
his statements to authorities as merely a request to testify
truthfully or to invoke a valid privilege. Most significantly,
Castillo testified that he understood the "retract" statement not
to be advice that he should invoke a Fifth-Amendment right, but
rather to be a request that he lie to authorities to help Hernández
to "beat his case" at trial. Furthermore, Castillo testified that,
during the same conversation in which the "retract" statement was
made, he had told Ducoudray that what he had told authorities about
Hernández's culpability for the conspiracy was the truth. Thus,
the jury could supportably find that, in making the request to
"retract" the statement, Ducoudray was not merely requesting
Castillo to stay silent or tell the truth, but instead, if need
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be, to lie in his own testimony at Hernández's trial to enable
Hernández to "beat his case."
The reasonableness of such a conclusion about the
intention behind Ducoudray's request to Castillo is bolstered by
the ample record evidence that supports the conclusion that
Ducoudray was trying to hide the fact of his visit to Castillo.
That evidence ranges from evidence that shows that Ducoudray
entered a false address in the visitor log of the correctional
facility at which he visited Castillo, to evidence that shows that
Ducoudray lied to Castillo about Castillo's lawyer giving
Ducoudray permission to speak with Castillo, to evidence that shows
that Ducoudray told Castillo not to tell anyone about the visit,
to evidence that shows that Ducoudray falsely claimed that he had
not made the visit when Frankel initially asked him about it.
To be sure, a jury was by no means required to conclude
that Ducoudray sought to conceal his visit because he had asked
Castillo to lie. Perhaps, as Ducoudray posits in his reply brief,
the jury could have found that Ducoudray was "aware[] that he was
at least skirting a professional rule" -- namely Model Rule 4.2 of
the American Bar Association Model Rules of Professional Conduct
("Rule 4.2")9 -- and thus that he "act[ed] surreptitiously [only]
in order to avoid potential professional problems."
9Rule 4.2 states that "[i]n representing a client, a lawyer
shall not communicate about the subject of the representation with
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But, a jury was entitled to draw a less favorable
inference. And, thus, the evidence supports the convictions. See
Misla-Aldarondo, 478 F.3d at 69 (interpreting § 1512(b)). For,
even if, as Ducoudray posits, there might be some other "reasonable
hypothesis" with respect to his actions that is "inconsistent with
guilt," that possibility, on this record, does not reveal the
evidence to be insufficient. Accordingly, we conclude that
Ducoudray's challenge to the denial of his Rule 29 motion fails.10
a person the lawyer knows to be represented by another lawyer in
the matter, unless the lawyer has the consent of the other lawyer
or is authorized to do so by law or a court order." Model Rules
of Prof'l Conduct r. 4.2 (Am. Bar Ass'n 2016).
10 In light of the evidence just described, Ducoudray's
challenge to the Rule 29 motion fails even if we assume that, as
he contends, the District Court was mistakenly of the view both
that, in visiting Castillo, Ducoudray violated Rule 4.2 and that
such a violation "was relevant to proof of intent" with respect to
either offense. But, wholly apart from whether there was evidence
to support a finding that Ducoudray violated the prohibition set
forth in Rule 4.2, a jury could have reasonably found from the
evidence that we have described above that Ducoudray knew that
Castillo was likely to testify at Hernández's trial and that
Ducoudray encouraged Castillo, if need be, to lie in providing
that testimony.
Moreover, because the evidence suffices to support the
convictions apart from whether the evidence reveals that Ducoudray
violated Rule 4.2, we need not address Ducoudray's additional
argument that the District Court erred in denying his Rule 29
motion for the separate reason that there was no evidence that
Ducoudray knew that Castillo was represented in the "same matter"
as Hernández and thus that there was no basis for finding that
Ducoudray violated Rule 4.2. We do address later in this opinion,
however, Ducoudray's challenge to the supplemental jury
instruction concerning Rule 4.2, see infra § III.D, including his
contention that the instruction was unwarranted by the facts.
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III.
Ducoudray contends in the alternative that, even if his
convictions need not be reversed due to insufficiency of the
evidence, they must be vacated due to various trial errors that
the District Court made. We consider these various claimed trial
errors in turn.
A.
Ducoudray first argues that the District Court erred
when it admitted into evidence the email that Frankel sent to the
AUSA and certain testimony that Frankel provided at trial, insofar
as this evidence purported to describe what Castillo told Frankel
concerning Castillo's conversation with Ducoudray. Ducoudray
contends that the email and the testimony -- by offering that
description -- were inadmissible hearsay under Federal Rule of
Evidence 802 and that the erroneous admission of this evidence was
not harmless. In this regard, Ducoudray contends that this
evidence had the prejudicial effect of lending credibility to
statements of Castillo, "a convicted felon," by allowing such
statements to be repeated through "the modulated voice of an
attorney, practiced in the art of addressing judges and juries."
"We review the legal interpretation of a rule of evidence
de novo, but the decision to admit or exclude evidence is reviewed
for an abuse of discretion." United States v. Phoeun Lang, 672
F.3d 17, 23 (1st Cir. 2012). In addition, we review any
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"subsidiary fact-finding" that bears on the issue "for clear
error." See United States v. Burgos-Montes, 786 F.3d 92, 114 (1st
Cir. 2015).
1.
We start with Ducoudray's challenge to the Frankel
testimony. That testimony concerned what Castillo told Frankel
about what Ducoudray "advised" Castillo during his visit with him.
That testimony also concerned what Ducoudray told Castillo during
that visit with respect to "whether or not . . . Ducoudray had
spoken to [Frankel] prior to [that] visit."
The problem for Ducoudray is the following. At first
Ducoudray made a hearsay objection to the admission of any
testimony from Frankel concerning the content of Castillo's
conversation with Ducoudray. But, before Frankel actually
testified as to what Castillo told him, Ducoudray's counsel then
reversed course by telling the District Court that "whatever was
covered in direct examination or cross-examination of [Castillo]
could be covered by [Frankel]," because "[i]t would be hearsay,
but it would be admissible." As the record shows that Castillo
had testified on direct examination and cross-examination about
his conversation with Ducoudray at the correctional facility, we
thus agree with the government that Ducoudray waived his hearsay
objection to the Frankel testimony insofar as it purported to relay
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what Ducoudray had said to Castillo during the visit. See United
States v. Sánchez-Berríos, 424 F.3d 65, 74 (1st Cir. 2005).
2.
We turn, then, to the email that Frankel sent. The
government acknowledges that Ducoudray preserved his hearsay
objection to the admission of the email. The government contends,
however, that even if the email was improperly admitted, any error
was harmless. We agree. Ducoudray does not contend on appeal
that the email described any statements attributed to Castillo
that exceeded the scope of Frankel's testimony about what Ducoudray
or Castillo had said during their meeting. Thus, because Ducoudray
waived his challenge to the Frankel testimony, any error in
admitting the email was harmless. See, e.g., United States v.
Vigneau, 187 F.3d 70, 78-79 (1st Cir. 1999); United States v.
Fulmer, 108 F.3d 1486, 1502 (1st Cir. 1997).
B.
Ducoudray also challenges the jury instructions. But
here, too, we find Ducoudray's arguments unpersuasive.
Ducoudray first challenges the District Court's refusal
to grant his request to give the jury a portion of the District
Courts of the First Circuit Pattern Criminal Jury Instruction 2.08
"on the caution due testimony witnesses cooperating under an
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agreement with the prosecution."11 Ducoudray argues that the
District Court's refusal to give his requested instruction was in
error because Castillo was a cooperating witness. Ducoudray points
out that Castillo "testified in [Ducoudray's] case as a result of
his status as an accomplice in another [case -- the case against
Hernández --], in which he signed a plea and cooperation
agreement."
Ducoudray further contends that he was prejudiced by the
District Court's refusal to give this "caution due" instruction.
As he explains, even though "[t]he defense theory hung upon the
lack of credibility of [Castillo]'s testimony," "the jury never
learned the legal principle that [Castillo]'s testimony should be
received with 'particular caution' because he 'may have had reason
to make up stories or exaggerate . . [sic] because he wanted to
help himself."
Ducoudray concedes, however, that, insofar as he failed
to object or renew his request for this instruction at trial after
it had been denied, then our review is only for plain error. And,
11The instruction as requested by Ducoudray read: "You have
heard the testimony of [Castillo]. He provided evidence under
agreements with the government[.] Some people in this position
are entirely truthful when testifying. Still, you should consider
the testimony of [Castillo] with particular caution. He may have
had reason to make up stories or exaggerate what others did because
he wanted to help himself. You must determine whether the
testimony of such a witness has been affected by any interest in
the outcome of this case, any prejudice for or against the
defendant."
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because we find that he did so fail, Ducoudray must overcome the
hurdle of plain error review, which "nowhere looms larger than in
the context of alleged instructional errors." See United States
v. Paniagua-Ramos, 251 F.3d 242, 246 (1st Cir. 2001).12
To "vault this hurdle," Ducoudray must show "that an
error occurred," "that the error was clear or obvious," "that the
error affected his substantial rights," and "that the error so
seriously impaired the fairness, integrity, or public reputation
of the proceedings as to threaten a miscarriage of justice." Id.
We have made it clear, moreover, that "a showing of 'mere
possibilities [is] not enough' to prove that an instructional error
affected a defendant's substantial rights." United States v.
Rivera-Izquierdo, 850 F.3d 38, 44 (1st Cir.), cert. denied, 137 S.
Ct. 2204 (2017) (quoting United States v. Procopio, 88 F.3d 21, 31
(1st Cir. 1996)).
Here, in light of the fact that the requested instruction
would have only cautioned the jury that Castillo might have had
"reason to make up stories or exaggerate" to "help himself," we do
not see how Ducoudray can show on this record that the "outcome of
the case would likely have changed" if the omitted instruction had
been given. Id. (quoting United States v. Colon, 744 F.3d 752,
12
We, therefore, need not address the government's argument
that Ducoudray waived appellate review of this challenge due to
his actions below.
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758 (1st Cir. 2014)). Ducoudray does not dispute that he visited
Castillo and asked him to "retract" his statements to law
enforcement. He contends instead that he was not asking Castillo
to lie. But Castillo's less innocent interpretation of Ducoudray's
"retract" request was bolstered circumstantially by the wealth of
evidence indicating that Ducoudray sought to conceal his visit
with Castillo.
The conclusion that Ducoudray has failed to show the
required effect on his substantial rights, draws further support
from the fact the District Court did instruct the jurors that they
"[did not] have to accept the testimony of any witness if [they
did not] find the witness credible" and that they should consider
a witness's "apparent fairness or any bias that they may have
displayed" and "any interest [they] may discern that [a witness]
may have had in the outcome of the case." See United States v.
Carr, 5 F.3d 986, 992 (6th Cir. 1993). Given that "we customarily
assume that jurors follow the instructions given to them by the
district court," United States v. Rodríguez, 735 F.3d 1, 12 (1st
Cir. 2013), and that the jury had been apprised of both the
evidence of Castillo's plea agreement (including its terms) and
his cooperation with law enforcement, those general instructions
provided a basis for the jury to be on the lookout for Castillo's
potential bias.
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Accordingly, on this record, "it would be pure
speculation to conclude that the [failure to provide the 'caution
due' instruction] had any effect on deliberations," and "[s]uch
speculation is insufficient to ground a successful claim that a
clear error affected the defendant's substantial rights." United
States v. McFarlane, 491 F.3d 53, 61 (1st Cir. 2007); see also
Carr, 5 F.3d at 992 (finding no error in the trial court's failure
to give a particular credibility instruction where the court had
given general credibility instructions that "adequately informed
the jury regarding the credibility of witness testimony"). Nor
does Ducoudray identify any authority suggesting otherwise. We
thus find no plain error.
C.
Ducoudray separately argues that the instructions for
the offense of tampering with a victim, witness, or an informant
under 18 U.S.C. § 1512(b)(1) misstated the offense. He points to
the fact that the District Court rejected the Third Circuit pattern
instruction regarding the specific intent element of that offense.
He also contends that the failure to give that instruction was
especially problematic because of the way that the District Court
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described the offense and because the District Court also gave a
supplemental instruction on Rule 4.2.13
But, here, too, we find that the challenge to the
District Court's instruction fails. Prior to instructing the jury
on this count, the District Court modified the instruction that
the District Court intended to give the jury by including some
additional text regarding the meaning of "corruptly persuades" in
light of concerns that Ducoudray raised. The District Court then
announced the text of the instruction that would be (and was)
provided to the jury. In response, Ducoudray's counsel
affirmatively stated that he had "no objection." We thus find
that Ducoudray waived this challenge. See United States v. Hansen,
434 F.3d 92, 101 (1st Cir. 2006).
D.
That brings us to Ducoudray's final challenge to the
jury instructions, which concerns the supplemental jury
13
In his opening brief, Ducoudray states that his "arguments
[with respect to the tampering with a victim, witness, or informant
count] concerning the definition of 'corruptly' . . . apply with
equal force to [the obstructing the due administration of justice
count]." However, Ducoudray does not explain why his argument
concerning the instruction on the "corruptly persuades" element of
the offense of tampering with a victim, witness, or informant would
be applicable to the distinct jury instruction concerning the
"corruptly" element of the offense of obstructing the due
administration of justice. Accordingly, we find the argument
waived. See United States v. Zannino, 895 F.2d 1, 17 (1990)
("[I]ssues adverted to in a perfunctory manner, unaccompanied by
some effort at developed argumentation, are deemed waived.").
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instruction that the District Court gave regarding Rule 4.2. The
instruction stated:
The Cannons of Professional Conduct for
Lawyers provide that, while representing a
specific client, the lawyer shall not
communicate about the subject of the
representation with another defendant whom the
lawyer knows to be represented by another
lawyer in the matter, unless the lawyer has
the consent of the other lawyer or is
authorized to do so by law or a court order.
These Canons are part of the Local Rules of
this Court and have the force of law.
The District Court, with respect to this instruction, did not
instruct the jury that it had to find whether or not a violation
of Rule 4.2 occurred.
Ducoudray attacks the Rule 4.2 instruction on a number
of grounds. None, however, has merit.
Ducoudray first argues that the instruction on Rule 4.2
"was unwarranted by the facts." He contends that "Frankel never
represented [Castillo] in any federal case." He also contends
that the record does not support the finding that Ducoudray knew
that Castillo was a defendant in the same case as Hernández. He
argues, therefore, that in meeting with Castillo he could not
possibly have been violating Rule 4.2.
It does not appear that Ducoudray raised this
"unwarranted by the facts" objection to the Rule 4.2 instruction
below. But, even if our review of the District Court's decision
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to give this instruction on this record is only for an abuse of
discretion, we find none. See United States v. Anguiano-Morfin,
713 F.3d 1208, 1209 (9th Cir. 2013) ("We review for an abuse of
discretion whether [a jury instruction] has some foundation in the
evidence." (internal quotation marks omitted)).
Castillo testified that Ducoudray told him that
Ducoudray had permission from Castillo's lawyer to speak with
Castillo. That statement reasonably provides circumstantial
evidence that Ducoudray understood Castillo to be represented in
the federal matter, especially when that statement is considered
in the context of the tight timing between Castillo being named in
the federal indictment with Hernández and Ducoudray's decision to
go visit Castillo in the correctional facility in New York City.
Moreover, when the fact of Castillo's representation came up during
the conversation between Ducoudray and Castillo, the record
supportably shows that Ducoudray did not stop the conversation.
In addition, Frankel, Castillo's lawyer, testified that he
represented Castillo with respect to the federal charges and that
he had not given Ducoudray permission to speak with Castillo.14
14
Ducoudray separately contends that, at the time of his
visit with Castillo, Castillo "was simply not 'another defendant
who the lawyer knows to be represented by another lawyer in the
matter,'" because the sealed indictment charging both Castillo and
Hernández was not entered on the docket until the day of
Ducoudray's visit with Castillo. But, Ducoudray does not identify
where the record shows that he made the argument below that the
timing of the sealed indictment's entry into the docket somehow
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Thus, the record clearly provides "some foundation," id., for
finding that Frankel did represent Castillo with respect to the
federal charges against Castillo, that Ducoudray understood
Castillo to be a represented co-defendant in the same matter as
Hernández, and that Ducoudray nevertheless chose to speak with
Castillo without "the consent of [Castillo's] lawyer" in that
matter or "authoriz[ation] to do so by law or a court order."
Model Rules of Prof'l Conduct r. 4.2.
Ducoudray argues, in the alternative, that the
instruction was given in error because the jury was in no position
to determine what conduct would constitute a violation of Rule
4.2. Here, too, Ducoudray's challenge to the instruction was not
apparently made below. But, once again, even if we review the
instruction for an abuse of discretion, see United States v.
Gonzalez, 570 F.3d 16, 21 (1st Cir. 2009), we find none.
Ducoudray's challenge on this score appears to rest
entirely on his assertions in his brief about Rule 4.2's ambiguity.
But, Ducoudray points to no authority to support his contention
that a jury may not be permitted to pass on whether a professional
rule such as Rule 4.2 was violated simply due to possible
precludes a finding that, at the time of his visit with Castillo,
Ducoudray had knowledge that Castillo was a defendant in the same
case as Hernández. And, in any event, the evidence discussed above
permitted the jury to infer that Ducoudray did know that Castillo
was represented by Frankel in the federal matter, notwithstanding
the timing of the entry on the docket of the sealed indictment.
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uncertainty about what the rule prohibits. Moreover, the
government identifies precedents in which juries have been
permitted to consider the ethical obligations of attorneys under
seemingly similar professional rules, which contain their own
ambiguities. See, e.g., United States v. Machi, 811 F.2d 991,
1000-02 (7th Cir. 1987). Accordingly, and in light of the fact
that jury was not instructed that it had to make a determination
regarding whether Ducoudray violated Rule 4.2 or not, we do not
see how we could conclude, based on what Ducoudray has argued in
this regard, that the District Court abused its discretion in
giving this instruction.
Ducoudray's final challenge to the instruction regarding
Rule 4.2 is that it improperly "relieved the prosecution of its
burden to prove the element of corruption at the heart of both
counts of the indictment by allowing the jury to rely upon its
view of whether [Rule 4.2] was violated to find the required mens
rea of both offenses."15 Ducoudray further contends that this
instructional error is one of law and should be reviewed de novo.
15 In his opening brief, Ducoudray makes only passing
reference to the additional argument that he had no opportunity at
trial to "fairly address" the purported Rule 4.2 violation "with
facts and argument" or to argue that any violation of Rule 4.2 was
not the corrupt intent charged in the indictment. Thus, we regard
this underdeveloped argument as waived. See Zannino, 895 F.2d at
17. And, in any event, the record reveals that at the beginning
of the second day of trial and prior to Frankel's testimony (and
even before the close of the government's evidence), the District
Court informed the parties that it would be providing an
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But, the instruction, as written, did not tell the jury
that it had to find that proof of the violation of Rule 4.2 in and
of itself would satisfy any element of either of the offenses that
Ducoudray was charged with committing. Nor, by terms, did the
instruction even tell the jury that proof of such a violation could
in and of itself satisfy any such element. Accordingly, this
challenge is ultimately to the potentially misleading nature of
the instruction's wording, and so our review of this preserved
challenge to the instruction is only for abuse of discretion. See
Gonzalez, 570 F.3d at 21.16
The government contends that the District Court did not
err in providing this instruction. In so arguing, the government
relies on the explanation that the District Court gave when it
addressed this issue in the context of a post-conviction motion
for bail by Ducoudray. There, the District Court stated that the
instruction concerning Rule 4.2. Additionally, the record reveals
no objection was offered by Ducoudray to the inclusion of the Rule
4.2 instruction on the grounds that he lacked the opportunity to
introduce or elicit evidence to rebut a purported Rule 4.2
violation.
16 Below, Ducoudray requested the District Court change the
"have the force of law" language in the instruction to "carry
enforceability" by arguing that while Rule 4.2 embodies a "rule of
ethics" and describes conduct that would be "improper" and
"unethical" for a lawyer to undertake, a violation of Rule 4.2 by
a lawyer is "not illegal" because Rule 4.2 is "not a rule of law."
Ducoudray, however, does not raise this argument in his briefing
on appeal, and so we do not consider it. See United States v.
Bauzó-Santiago, 867 F.3d 13, 21 (1st Cir. 2017).
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instruction "did not tell the jury that [Ducoudray's] alleged
conduct was, in fact, an ethical violation, and a violation of
law," "did not suggest an absolute prohibition on legal visits to
represented persons," and "did not direct[] the jury to determine
that [Ducoudray] had the requisite mens rea." United States v.
Ducoudray-Acevedo, Criminal No. 15-166 (ADC), 2017 WL 1286783, *3
(D.P.R. Apr. 5, 2017) (internal quotation marks omitted). Thus,
according to the government, this instruction was not improper
because it merely identified "peripheral concepts" relevant to the
jury's evaluation of Ducoudray's conduct and, insofar as it served
this evidentiary function, it was perfectly permissible. See id.
As the government notes, precedent supports the
conclusion that proof of a violation of a professional rule may
play an evidentiary function in assessing the mens rea of a lawyer
charged with criminal conduct in other contexts. See, e.g., United
States v. Kelly, 888 F.2d 732, 744 (11th Cir. 1989); Machi, 811
F.2d at 1000-02; United States v. DeLucca, 630 F.2d 294, 301 (5th
Cir. 1980); see also, e.g., United States v. Klauber, 611 F.2d
512, 520 (4th Cir. 1979). And while it is true, as Ducoudray
argues, that none of these cases concern Rule 4.2, we do not see
why that fact shows that proof of a violation of Rule 4.2 could
not serve a similar evidentiary function concerning Ducoudray's
mens rea here.
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The fact that Ducoudray was visiting Castillo in
violation of a professional ethical rule, such as Rule 4.2, could
well be relevant to an assessment of whether he was acting with
the required "corrupt" intent, rather than with the innocent intent
that Ducoudray contended that he had. And Ducoudray identifies no
authority that supports a contrary conclusion. Thus, Ducoudray
supplies no basis on which we could rule that the District Court
abused its discretion, insofar as the supplemental instruction
served only the function of identifying the proscription that Rule
4.2 sets forth.
Moreover, Ducoudray never explains how the wording of
the instruction misled the jury into concluding that proof of a
violation to Rule 4.2 could, in and of itself, "stand in for the
elements of the offenses," rather than that such proof could simply
be relevant to the determination of whether Ducoudray had acted
with the requisite corrupt intent.17 Consequently, we do not see
a basis for concluding that the inclusion of this supplemental
instruction was an abuse of discretion. After all, the instruction
was given only as a supplemental instruction after the jury had
been separately instructed about the elements of each offense that
it was required to find in order to convict Ducoudray. And the
17Ducoudray, in passing, asserts that the wording of the Rule
4.2 instruction "implied that [Ducoudray] had violated [Rule
4.2]," but never explains how exactly the text of the instruction
implies that is so.
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instruction, which clearly appeared as a stand-alone instruction
in the written instructions, did not, by its terms, reference any
of the elements of the offenses or say anything about how Rule 4.2
related to them.
For these reasons, we see no merit in Ducoudray's various
challenges to the supplemental instruction concerning Rule 4.2.
And thus we see no basis for concluding that áthis instruction
requires that the convictions -- with respect to either offense
-- be vacated.
IV.
Ducoudray's final argument is that his convictions must
be reversed on the distinct ground that, even if no single error
at trial warrants reversal, the cumulative effect of the errors
does. But, although "[i]ndividual errors, insufficient in
themselves to necessitate a new trial, may in the aggregate have
a more debilitating effect," United States v. Sepulveda, 15 F.3d
1161, 1195-96 (1st Cir. 1993), the cumulative error doctrine offers
no help to Ducoudray.
Our review of the individual alleged errors reveals that
there were either no errors or that the objections to the alleged
errors were waived, with the sole exception being the admission of
the Frankel email to the AUSA. But, as to that email evidence, we
found that any error on the part of the District Court in admitting
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that evidence was harmless. As such, we find Ducoudray's
cumulative error argument to be meritless.
V.
The judgment is affirmed.
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