Case: 10-50450 Document: 00511596601 Page: 1 Date Filed: 09/08/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 8, 2011
No. 10-50450
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff – Appellee
v.
MANUEL JOSEPH BARRAZA, also known as, Manuel Saavedra,
Defendant – Appellant
Appeal from the United States District Court
for the Western District of Texas
Before JONES, Chief Judge, and HIGGINBOTHAM and SOUTHWICK, Circuit
Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
Manuel Barraza was a state court judge and former criminal defense
attorney in El Paso, Texas. A jury found Barraza guilty of two counts of wire
fraud and one count of making false statements, stemming from Barraza’s use
of his position as a state judge to obtain money and sexual favors in exchange for
assisting a criminal defendant. He now appeals his conviction and his 60-month
concurrent sentences.
I.
This prosecution centers on promises Barraza made to a former client,
Diana Rivas Valencia, who was facing drug charges in El Paso. Rivas was
arrested in September 2008, and in December, Rivas conveyed to a friend that
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No. 10-50450
she was unhappy with her current attorney and wished to speak with Barraza.
Later that day, Barraza went to the jail to visit Rivas. At the time, Barraza had
won election to the state bench but had not yet been sworn in. Rivas testified
that Barraza promised to help her “get rid of the charges” once he assumed office
as a state judge. In exchange, Barraza indicated he wanted money and a
“buffet” of women.
By mid-January 2009, the FBI had recruited Rivas’s sister, Sarait, and a
friend to assist with their investigation. Sarait and an undercover FBI agent,
posing as a woman who would provide sexual favors, met with Barraza on
January 21. There, Barraza stated that he would try to move Rivas’s case to his
court and that he wished to replace Rivas’s court-appointed attorney with
someone he trusted. On January 23, Sarait met Barraza at the courthouse and
paid him $1,300. The same day, a transfer order appeared, trying to transfer
Rivas’s case to Barraza’s courtroom, but the court coordinator stopped the
transfer after discovering that Barraza had previously represented Rivas.
Despite the failed transfer, Barraza continued seeking money and sex from
Rivas’s family and friends in exchange for his assistance. In February 2009,
Barraza asked Sarait for the FBI undercover agent’s email address and began
soliciting her. On February 24, Sarait and the undercover agent met with
Barraza, who detailed the failed transfer order. Barraza stated that he was
trying to find other ways to remove the current judge in Rivas’s case, but he
would need more money. Three days later, Sarait met Barraza at the courthouse
and paid him an additional $3,800.
The FBI interviewed Barraza in March 2009, and he denied speaking with
Rivas’s family after becoming a judge. He was arrested on April 2 and indicted
on August 12, charged with two counts of wire fraud and the deprivation of
honest services, one count of mail fraud, and one count of making a false
statement. In February 2010, a jury found Barraza guilty of two counts of wire
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fraud and honest services fraud and one count of making a false statement.
Barraza was sentenced to an above-guidelines sentence of 60 months
imprisonment followed by three years of supervised release.
II.
Barraza’s first three challenges were raised before the district court in a
motion for new trial. Barraza contends that the district court erred in denying
his motion, in which he had asserted a juror made inappropriate remarks during
deliberations, the government withheld impeachment evidence, and extraneous
prejudicial testimony was introduced by a government witness. We review a
district court’s denial of a motion for new trial for abuse of discretion.1
A.
The morning of the second day of jury deliberations, the court security
officer informed the court that Juror 3 expressed a concern to him regarding
inappropriate remarks made by Juror 1. The court interviewed Juror 3 on the
record who said that Juror 1 was “all for” a guilty verdict and told the other
jurors that men with power always make sexual advances. Juror 1 also
allegedly relayed an experience she had at her place of employment, where she
was sexually harassed. These comments were very troubling to Juror 3, but the
court told her to return to deliberations and continue. Following a discussion
with counsel, the court decided to excuse Juror 1, bring in an alternate, and
instruct the jurors to restart deliberations from the beginning. However, before
this decision could be acted upon, the jury reached a verdict. Defense counsel
moved for a mistrial, which was denied.
Under Federal Rules of Evidence Rule 606(b), if Juror 1's sexual
harassment stories were “extraneous prejudicial information [that] was
improperly brought to the jury’s attention,” or an “outside influence [that] was
1
United States v. Bishop, 264 F.3d 535, 554 (5th Cir. 2001).
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improperly brought to bear upon any juror,” the jurors could testify during an
inquiry into the verdict. If, however, the statements were “emotions []
influencing the juror” or a part of “the juror’s mental processes” then the jurors
could not testify about their deliberations.
Here, the juror’s statements fall into the latter category. As we have
previously stated, “We cannot expunge from jury deliberations the subjective
opinions of jurors, their attitudinal expositions, or their philosophies.”2 Juror 1’s
statements were inappropriate, but they are not admissible to upset the verdict.
We reached a similar conclusion in United States v. Duzac,3 where we noted:
there is no evidence that any external influence was brought to bear
on members of the jury. The prejudice complained of is alleged to
be the product of personal experiences unrelated to this litigation.
The proper time to discover such prejudices was when the jury is
being selected . . . . Although the jury is obligated to decide the case
solely on the evidence, its verdict may not be disturbed if it is later
learned that personal prejudices were not put aside during
deliberations.4
Both here and in Duzac, the juror communicated a generalized prejudice, but
none of the statements related specifically to the defendant or the situation at
trial.5 Rule 606(b) would bar any testimony on the jury deliberations, and we
affirm the district court’s denial of the motion for new trial.
B.
Second, Barraza argues that the government withheld impeachment
evidence in violation of Brady v. Maryland.6 When a defendant seeks a new trial
2
United States v. McKinney, 429 F.2d 1019, 1022–23 (5th Cir. 1970).
3
622 F.2d 911 (5th Cir. 1980).
4
Id. at 913.
5
See United States v. Bennally, 546 F.3d 1230 (10th Cir. 2008).
6
373 U.S. 83 (1963).
4
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on the basis of withheld information, he must show that: “(1) the prosecution did
not disclose the evidence; (2) the evidence was favorable to the defense; and (3)
the evidence was material.”7 Favorable evidence is that which is exculpatory or
impeaching.8 Evidence is material if there is a reasonable probability that the
result of the proceeding would have differed had the prosecution disclosed the
evidence.9
Barraza first contends that Sarait changed her testimony, producing
relevant impeachment material. During her original FBI interview, Sarait did
not say that Barraza had agreed to help Rivas in his capacity as a judge.
Rather, Sarait simply said he had agreed to help Rivas, conceivably as her
former attorney. At trial, however, Sarait asserted that Barraza had promised
to help Rivas using his position as a judge. The government urges that Sarait’s
testimony did not change, but rather she elaborated at trial on the ways Barraza
said he would help. The trial court found that if the government knew Sarait
had made inconsistent statements, those statements would qualify as
impeachment information possibly favorable to Barraza. However, even if
Sarait’s testimony is considered impeachment evidence, it did not prejudice
Barraza. We have previously held that evidence turned over to the defense
during trial has not been “suppressed” within the meaning of Brady, so long as
“the evidence is received in time for its effective use at trial.”10 Barraza cross-
examined both Sarait and the FBI agent who interviewed her regarding this
alleged change in testimony, and counsel was able to adequately impeach Sarait
7
United States v. Davis, 609 F.3d 663, 696 (5th Cir. 2010) (internal quotation marks
omitted).
8
Banks v. Dretke, 540 U.S. 668 (2004).
9
Davis, 609 F.3d at 696.
10
Powell v. Quarterman, 536 F.3d 325, 335 (5th Cir. 2008).
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using the FBI’s witness report. Prior knowledge of the perceived inconsistency
would not have affected Barraza’s trial strategy; thus, he was not prejudiced by
any withholding of information.
Likewise, Barraza was not prejudiced by the government’s failure to
disclose its search of Barraza’s bailiff’s computer. The government’s search of
this computer found no incriminating information and no exculpatory
information because it yielded no information at all. The jury heard testimony
that the computer was seized and searched and that nothing was found on it.
Barraza’s knowledge of this search prior to trial could not have altered the
outcome of the trial. The district court did not err in finding no Brady violations.
C.
Barraza’s final challenge to the district court’s denial of his motion for new
trial involves extraneous information stated by a government witness. During
direct examination, Judge Angie Juarez Barill testified that Barraza had once
approached her to sign an order so that one of his clients, who had committed
aggravated sexual assault of a child, could be released from jail. Barraza’s
attorney immediately objected, and the district court sustained the objection.
The court then gave the jury a curative instruction, informing the jurors to
disregard the testimony.
A court does not abuse its discretion in denying a motion for new trial
unless “there is a significant possibility that the prejudicial evidence had a
substantial impact upon the jury verdict, in light of the entire record.”11
Moreover, “a prejudicial remark may be rendered harmless by curative
instructions to the jury.”12 Here, the district court concluded that the extraneous
comment could be cured by a jury instruction. We “give[] great weight to the
11
United States v. Paul, 142 F.3d 836, 844 (5th Cir. 1998).
12
United States v. Millsaps, 157 F.3d 989, 993 (5th Cir. 1998).
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trial judges’ assessment of the prejudicial effect” of remarks,13 and we find no
evidence here to indicate that the district court abused its discretion in refusing
to order a new trial based on this single remark.
III.
Barraza next urges that the jury may have convicted him based on a
“failure-to-disclose” theory of honest services liability that the Supreme Court
declared unconstitutional in Skilling v. United States, decided after the trial.14
The district court instructed the jury that it could find Barraza guilty of wire
fraud if he had either (1) defrauded the state of the intangible right of honest
services or (2) obtained money by fraud. In Count One, the jury found both types
of fraud, but in Count Two, the jury only found honest services fraud. Barraza’s
indictment stated that he committed honest services fraud in two ways: (1) by
“fail[ing] to disclose to his constituency and to the State of Texas that he received
money,” and (2) by accepting bribes. However, under Skilling, honest services
fraud only consists of bribery and kickbacks, not the failure to disclose receipt
of money.15 Therefore, the first portion of the indictment was an improper
grounds for conviction. Barraza challenges his conviction on an alternative-
theory error—the jury was instructed on alternative theories of guilt, rendered
a general verdict, and could have relied on an invalid theory in returning the
guilty verdict.16 The Government concedes error, but the question remains
whether the error was harmless.
The parties dispute the appropriate standard of review, with the
government urging plain error because Barraza did not challenge the honest
13
Id.
14
130 S. Ct. 2896 (2010).
15
Id. at 2931.
16
See United States v. Skilling, 638 F.3d 480 (5th Cir. 2011).
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services statute as void for vagueness in his motion for new trial, nor did he
object to the jury instructions. However, Barraza’s counsel filed a motion for
continuance on the ground that the Skilling oral argument was scheduled to
occur one month after the trial. Barraza sought to postpone the trial until after
the opinion in Skilling was handed down, noting that the constitutionality of the
statute was being challenged. The district court denied the motion, finding that
the outcome of the Supreme Court case would be irrelevant or could be
addressed through jury instructions. In support of the plain error standard, the
government cites a similar Third Circuit case, which applied this standard,
noting, however, “one could view [the plain error] application here as somewhat
harsh, given the defendant’s objection to the breadth of the honest services
charge, and a Supreme Court opinion that was not easy to predict.”17 Given that
Barraza’s counsel not only broadly challenged the honest services charge but
also raised questions about Skilling’s effect on the statute, plain error may be too
harsh in this case.
We need not decide the standard of review, however, because the error is
harmless regardless. An error is harmless if this court “after a thorough
examination of the record is able to conclude beyond a reasonable doubt that the
jury verdict would have been the same absent the error.”18 The error may also
be harmless “if the jury, in convicting on an invalid theory of guilt, necessarily
found facts establishing guilt on a valid theory.”19
Barraza contends that his failure to disclose fee-splitting with his former
partner while he was on the state bench would deprive his constituents of an
17
United States v. Riley, 621 F.3d 312, 322 n.12 (3d Cir. 2010) (citation omitted).
18
United States v. Skilling, 638 F.3d 480, 482 (5th Cir. 2011) (internal quotation marks
omitted).
19
Id.
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intangible honest service without also being bribery. However, a review of the
record suggests this is not the reason the jury found him guilty of Count Two.
The government’s opening statement never mentioned the fee-splitting
arrangement and likewise the closing argument focused on Barraza’s bribery,
not fee-splitting. Moreover, the witness testimony centered on Barraza’s
attempts to obtain money and sexual favors in exchange for his assistance in his
capacity as a judge. Based on the record, we are able to conclude beyond a
reasonable doubt that the verdict would have been the same absent any error in
the jury instructions and the indictment.
IV.
Barraza also challenges the sufficiency of the evidence in Count One,
urging that the email referenced cannot sustain a wire fraud conviction.
Specifically, Barraza asserts that the email related only to his efforts to obtain
sex, not money. In reviewing the sufficiency of the evidence, we “consider the
evidence in the light most favorable to the verdict, drawing all reasonable
inferences in favor of the verdict.”20
The text of the email forming the basis for Count One was written to the
undercover agent, Rita, and read: “Good afternoon, Rita, how are we doing?
Sarait told me that you are still interested. How are you doing on time?”
Barraza concedes that this email relates to his attempts to obtain sex from Rita,
but he argues that the email is not in furtherance of a scheme to obtain money.
The wire fraud statute requires the defendant to have devised a scheme
“for obtaining money or property” by false pretenses and use an interstate wire
to transmit a signal or writing.21 Here, Barraza’s scheme was to obtain money
and sex by promising Rivas’s family he would favorably handle her criminal
20
United States v. Cathey, 259 F.3d 365, 368 (5th Cir. 2001).
21
18 U.S.C. § 1343.
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charges. The wire “need not be an essential element of the scheme”; rather, “[i]t
is sufficient for the [wire] to be incident to an essential part of the scheme or a
step in [the] plot.”22 The underlying question is “whether the mailings
themselves somehow contributed to the successful continuation of the
scheme—and, if so, whether they were so intended by [the defendant].”23
Barraza intended his email to contribute to his overall scheme of acquiring
money and sex. Barraza understood Rita to be part of a package—of money and
sex—that Rivas’s family was providing to Barraza in exchange for his assistance.
Rivas’s sister introduced Rita to Barraza and also provided Rita’s email address.
Barraza himself defined the scheme: to use his position as a state judge to obtain
money and sex. That only one of these goals, obtaining money, is punishable
under the wire fraud statute does not afford him the opportunity to bifurcate the
goals of the scheme he created.
Moreover, even if Barraza’s email to Rita was not incident to an essential
element of his scheme, the evidence is more than sufficient to sustain Barraza’s
Count One conviction under the honest services fraud theory. The wire fraud
statute encompasses “a scheme or artifice to deprive another of the intangible
right of honest services,”24 and the jury found Barraza guilty of this offense in
Count One. Although Skilling limited the reach of honest services fraud to
bribes and kickbacks,25 we have previously held that furnishing sexual services
provides a “thing of value” sufficient to constitute bribery.26 Here, Barraza
22
Schmuck v. United States, 489 U.S. 705, 710–11 (1989) (citation and internal
quotation marks omitted) (third alteration in original).
23
United States v. Strong, 371 F.3d 225, 230 (5th Cir. 2004).
24
18 U.S.C. § 1346.
25
Skilling, 130 S. Ct. at 2931.
26
United States v. Tunnell, 667 F.2d 1182, 1185–86 (5th Cir. 1982) (finding that the
services of a prostitute were, under Texas law, an “economic gain” bestowed upon the recipient
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received a bribe of sexual favors in return for his help with Rivas’s case. The
email cited in Count One relates to his scheme to accept sexual bribes, depriving
Texans of honest judicial proceedings. Barraza’s sufficiency of the evidence
challenge fails.
V.
Barraza raises three challenges related to his sentencing: (1) the district
court erred in applying a specific offense characteristic based on Barraza’s status
as a public official; (2) the district court erred in increasing Barraza’s offense
level based on a second bribe that was not part of the charged criminal conduct;
and (3) the district court increased Barraza’s offense level based on an improper
calculation of the loss amount. We address each of these arguments in turn.
A.
Pursuant to U.S.S.G. § 2C1.1(a), Barraza’s base offense level was set at 14
because he was a “public official.” In addition, the Guidelines provide a specific
offense characteristic requiring a four-level increase for offenses involving “an
elected public official or any public official in a high-level decision-making or
sensitive position.”27 Barraza contends that applying both of these provisions
double-counts his status as an elected public official. We review the district
court’s interpretation and application of the Sentencing Guidelines de novo.28
public official sufficient to sustain a bribery conviction); see also United States v. Marmolejo,
89 F.3d 1185, 1191–92 (5th Cir. 1996) (interpreting 18 U.S.C. § 666(a)(1)(B) and finding that
the term “anything of value” is broad in scope, not restricted to money, goods, or services); id.
(citing the language “anything in value” found in other criminal statutes and noting it often
includes sex); McDonald v. State, 329 So. 2d 583, 587–88 (Ala. 1975) (holding that sexual
intercourse or the promise of sexual intercourse is a “thing of value” under the state bribery
statute).
27
U.S.S.G. § 2C1.1(b)(3).
28
United States v. Villanueva, 408 F.3d 193, 202 (5th Cir. 2005).
11
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We have previously noted that “[d]ouble counting is prohibited only if the
particular guidelines at issue specifically forbid it.”29 Here, the Guidelines
directly contemplate this form of “double-counting.” We interpret Barraza’s
argument to be that the Guidelines intended the specific offense characteristic
to apply to those who bribed high-level officials and not to those who were high-
level officials, but that double standard is not supported by the text. The
Guidelines do not limit the application of this specific offense characteristic. The
commentary explains that the four-level enhancement should be applied “if the
payment was for the purpose of influencing an official act by certain officials.”30
Here, the payment Barraza solicited was for the purpose of influencing the way
he handled a criminal case in his capacity as an elected state judge. The district
court properly applied the specific offense characteristic.
B.
U.S.S.G. § 2C1.1(b)(1) requires a two-level increase “[i]f the offense
involved more than one bribe.” In applying this increase, the district court cited
a second bribe Barraza received from a former client, although Barraza was not
charged or convicted for his involvement in this second bribe. The Guidelines
define “offense” to mean “the offense of conviction and all relevant conduct under
§ 1B1.3” unless otherwise indicated.31 Section 1B1.3 defines relevant conduct as
“all acts and omissions committed, aided, abetted . . . or willfully caused by the
defendant, . . . that occurred during the commission of the offense of conviction,
in preparation for that offense, or in the course of attempting to avoid detection
29
United States v. Hawkins, 69 F.3d 11, 14 (5th Cir. 1995).
30
U.S.S.G. § 1B1.1 cmt. background.
31
Id. at n.1(H).
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or responsibility for that offense.”32 In other words, separate acts or conduct that
did not occur during the commission of the presently charged offense may not be
relevant conduct. Thus, § 1B1.3(a)(1) alone does not automatically provide a
basis for including the second bribery charge in the sentencing calculation.
However, the second bribery charge may be included under § 1B1.3(a)(2).
There, the Guidelines instruct that for offenses that require grouping, as
multiple counts of bribery would, relevant conduct includes acts “that were part
of the same course of conduct or common scheme or plan as the offense of
conviction.” Common scheme or plan is defined as offenses that “must be
substantially connected to each other by at least one common factor, such as
common victims, common accomplices, common purpose, or similar modus
operandi.”33 Offenses are of the same course of conduct if “they are sufficiently
connected or related to each other as to warrant the conclusion that they are
part of a single episode, spree, or ongoing series of offenses.”34 The Guidelines
instruct that factors used to determine whether actions are sufficiently
connected include the degree of similarity, the regularity (repetitions) of the
offenses, and the time interval between offenses. “When one of the above factors
is absent, a stronger presence of at least one of the other factors is required.”35
Here, the two briberies involved similar modus operandi, a common purpose, and
occurred in close temporal proximity. These facts suggest that Barraza’s
briberies were part of a common scheme or of the same course of conduct. Thus,
32
U.S.S.G. § 1B1.3(a)(1); see also United States v. Woods, 907 F.2d 1540, 1543 (5th Cir.
1990) (noting that the Guidelines instruct the sentencing judge to consider “all acts or
omissions . . . for which the defendant would be otherwise accountable, that occurred during
the commission of the offense of conviction”).
33
U.S.S.G. § 1B1.3 cmt. n.9(A).
34
Id. at n.9(B).
35
Id.
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the second uncharged bribe may be used to increase the offense level for
Barraza’s bribery conviction.
C.
The district court also applied a specific offense characteristic
enhancement based on § 2C1.1(b)(2), which provides for an offense level increase
if the value of the payment or benefit exceeded $5,000. Barraza agrees that he
received $5,100 from Rivas’s family, but he urges that $2,000 was paid to his law
partner for legitimate attorney’s fees. Because Rivas received value for that
money in the form of valid legal representation, Barraza argues this amount
should not be counted in the sentencing enhancement.
The Guidelines provide that the bribery loss amount should be reduced by
the fair market value of services rendered by the defendant to the victim “before
the offense was detected,” whether detected by the victim or law enforcement.
The services of Barraza’s law partner were legitimately provided in February
and March 2009. However, law enforcement officials began investigating
Barraza in December 2008 and approached Rivas’s friend for assistance in
January 2009. Any monies rendered for legitimate legal services cannot be
subtracted from the loss value because Barraza and his colleague provided these
services after the offense was detected.
VI.
None of Barraza’s several challenges require a new trial, reversal of his
conviction, or resentencing. AFFIRMED.
14