United States Court of Appeals
For the First Circuit
No. 21-1396
UNITED STATES,
Appellee,
v.
ALEJANDRO CARRASCO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Barron, Chief Judge,
Lipez and Montecalvo, Circuit Judges.
Rachel Brill for appellant.
Nicole R. Lockhart, Trial Attorney, with whom Kenneth A.
Polite, Assistant Attorney General, Lisa H. Miller, Deputy
Assistant Attorney General, Corey R. Amundson, Chief, Public
Integrity Section, and James I. Pearce, Attorney, Appellate
Section, were on brief, for appellee.
August 28, 2023
BARRON, Chief Judge. Alejandro Carrasco Castillo
("Carrasco") appeals his convictions and sentence for violating 18
U.S.C. § 666. The underlying charges stem from his role in the
allegedly corrupt awarding of contracts by various Puerto Rico
municipalities. We affirm.
I.
More than a decade ago, federal authorities began
investigating allegations that three Puerto Rico municipalities
had corruptly awarded contracts to a company owned by Juan Carlos
Mercado, who at the time was a contractor and environmental
engineer. Federal authorities arrested Mercado in February 2012
in connection with the investigation, and he agreed to cooperate
with them by recording his conversations with Eduardo
Rivera-Correa, who was the mayor of one of the municipalities, and
Carrasco, an attorney retained by each of the three municipalities
to provide legal representation.1
Thereafter, on July 8, 2014, Carrasco was indicted in
the United States District Court for the District of Puerto Rico
on four counts of violating 18 U.S.C. § 666(a)(1)(B).2 Section
666(a)(1)(B) provides in relevant part:
1 The
criminal complaint against Mercado was dismissed without
prejudice in December 2012 pending Mercado's completion of an
eighteen-month pretrial diversion program.
The same indictment also charged Rivera-Correa with various
2
offenses related to the alleged scheme.
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[w]hoever . . . being an agent of an
organization, or of a State, local, or Indian
tribal government, or any agency thereof . . .
corruptly solicits or demands for the benefit
of any person, or accepts or agrees to accept,
anything of value from any person, intending
to be influenced or rewarded in connection
with any business, transaction, or series of
transactions of such organization,
government, or agency involving any thing of
value of $5,000 or more . . . shall be fined
under this title, imprisoned not more than 10
years, or both.3
Each count alleges that, in violation of § 666, Carrasco
took payments from Mercado in connection with the award of
contracts to Mercado's environmental consulting firm by one of the
three Puerto Rican municipalities that had retained Carrasco. The
first count alleges that Carrasco received payments from July 2009
through August 2009 in connection with contracts awarded by the
municipality of Barceloneta. The second count alleges that he
received payments from March 2010 to July 2010 in connection with
contracts awarded by the municipality of Rio Grande. The third
count alleges that he received payments from August 2010 through
October 2010 in connection with contracts awarded by the
The provisions of 18 U.S.C. § 666(a) apply only "if the
3
circumstance described in subsection (b) of [18 U.S.C. § 666]
exists." Subsection (b) provides that "[t]he circumstance
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." Carrasco accepts that each
of the three municipalities met this condition in the relevant
years.
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municipality of Juncos. The fourth count alleges that he received
payments in July 2011 in connection with contracts awarded by,
once again, Barceloneta.
Carrasco was tried on the charges before a jury in
December 2019 and was found guilty on all four counts. A judgment
of conviction was entered, and the District Court sentenced him on
April 27, 2021, to 120 months of imprisonment and 3 years of
supervised release. Carrasco then timely filed this appeal.
II.
Carrasco first seeks the reversal of his convictions on
the ground that they are not supported by sufficient evidence. To
succeed, he must show that the evidence in the record does not
suffice to permit a rational juror to find him guilty beyond a
reasonable doubt of violating § 666. See United States v. Levin,
13 F.4th 96, 99-100 (1st Cir. 2021). Our review is de novo, but
we "review[] the evidence, and mak[e] all inferences and
credibility choices, in the government's favor." United States v.
Rodríguez-Torres, 939 F.3d 16, 23 (1st Cir. 2019).
A.
Carrasco directs our attention initially to what the
record shows with respect to the element of the offense --- set
forth in § 666(a)(1) -- that requires the government to prove
beyond a reasonable doubt that he was an "agent of a[] . . . local
. . . government." Section 666(d)(1) defines an "agent" of a local
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government to be "a person authorized to act on behalf of" it and
specifies that the definition of the term "includes a servant or
employee, and a partner, director, officer, manager, and
representative."
To prove that Carrasco was such an "agent," the
government submitted into evidence his contracts with Barceloneta,
Rio Grande, and Juncos. Carrasco does not dispute that the text
of each of the contracts authorized him to provide legal
representation to the named municipality "in the Courts of Puerto
Rico" and "the administrative and investigative agencies."
Therefore, it would appear that the evidence does suffice to
support the "agent" element of the offense, as each of the
contracts would appear to show that he was "authorized to act on
behalf of" the relevant municipality and so that he was an "agent"
of that municipality. See Representative, Black's Law Dictionary
(11th ed. 2019) (defining "representative" as "[s]omeone who
stands for or acts on behalf of another").4
Carrasco nonetheless contends that the evidence does not
suffice to satisfy the "agent" element because no evidence in the
4Carrasco does point to our prior statement that "there is
no more classic government 'representative' than a legislative
branch officer," United States v. Fernandez, 722 F.3d 1, 8 (1st
Cir. 2013), to argue that he cannot be an "agent" of the
municipalities solely because the contracts make him a
"representative" of the municipalities. But, our conclusion that
Carrasco is an "agent" for purposes of § 666(d)(1) relies on the
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record suffices to show that he took any specific action under any
of the contracts on behalf of any of the municipalities. But the
text of § 666(d)(1) does not support a construction of the statute
that would require the government to make that showing to satisfy
the "agent" element.
By its plain terms, the text of the statute defines an
"agent" to be merely "a person authorized to act on behalf
of . . . a government." 18 U.S.C. § 666(d)(1) (emphasis added).
It does not define an "agent" to be only a person who "acts" on
behalf of a government.
Nor is there any reason to conclude from the text of
related provisions that the words "authorized to act" in
§ 666(d)(1) mean "acts," such that it is not enough to prove that
the person has been merely authorized to act. After all, a
separate provision of § 666(d)(1) states that a "person" qualifies
as an "agent" if that person is a "representative." Id. Thus,
that provision does not state that a "person" so qualifies even if
they have only been "authorized to be a . . . representative."
Reinforcing the conclusion that the words "authorized to
act" mean what they say is the fact that the Supreme Court of the
United States has explained in construing other parts of § 666
term "represent" as used in the contracts, not on the term
"representative" as used in § 666(d)(1). We thus need not address
Carrasco's contention that Fernandez would preclude us from
relying on that term.
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that the statute's "expansive" and "unqualified language," Salinas
v. United States, 522 U.S. 52, 56 (1997), "reveals Congress'
expansive, unambiguous intent to ensure the integrity of
organizations participating in federal assistance programs,"
Fischer v. United States, 529 U.S. 667, 678 (2000). In addition,
both our Circuit and the Supreme Court have "repeatedly rejected
constructions of § 666 that would impose limits beyond those set
out in the plain meaning of the statute."5 United States v.
Fernandez, 722 F.3d 1, 10 (1st Cir. 2013); see also Fischer, 529
U.S. at 678.
Carrasco contends that a prior precedent of ours, United
States v. Sotomayor-Vázquez, 249 F.3d 1 (1st Cir. 2001), as well
as two precedents from other circuits, United States v. Lupton,
620 F.3d 790, 800-01 (7th Cir. 2010); United States v. Hudson, 491
F.3d 590, 594-95 (6th Cir. 2007), support his position. We
disagree.
Sotomayor-Vázquez did hold that evidence in the record
in that case showed that the defendant was an "agent" of the
non-profit entity at issue because, although the defendant was
formally an independent contractor, the defendant "acted as [the]
5 Carrasco's contention that the government was required to
show a nexus between the matters on which Carrasco was authorized
to act on behalf of the municipalities and the contracts that he
was alleged to have helped Mercado obtain fails for the same
reason: Carrasco does not identify, nor can we discern, any textual
basis for such a limitation on the reach of § 666(d)(1).
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executive director" of the entity by approving all its
organizational decisions, meeting with city officials on the
agency's behalf, and making decisions regarding hiring and firing.
249 F.3d at 8-9. But we made clear in so holding that the
definition of "agent" under § 666(d)(1) has two "aspect[s]": one
relating to a person's having been "authorized to act on behalf
of" the covered entity and the other relating to whether the person
was an "employee, partner, director, officer, manager, or
representative" of that entity. Id. at 8. We also made clear
that we based our holding only on that second "aspect of the
statutory definition." Id. Thus, our decision there in no way
indicates either that an "agent" is not merely a person who was
"authorized to act on behalf of" the relevant entity or that
evidence that suffices to show only that the defendant was so
authorized cannot suffice to show that the person qualifies as an
"agent."
Lupton also is no help to Carrasco. The evidence there
was deemed sufficient to render the defendant an "agent" based on
the activities of the defendant vis-à-vis a state agency. 620
F.3d at 800-01. But the contract between the real estate firm
that employed the defendant in that case and the state of Wisconsin
expressly provided that the firm was acting as "an independent
contractor and not as an officer, employee, or agent of the state."
Id. at 800. Thus, while the court in Lupton looked beyond the
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terms of the contract to determine that the defendant was an
"agent" for purposes of § 666, the court did not thereby suggest
that contracts like those at issue in Carrasco's case are
inadequate on their own to supportably show that a defendant is an
"agent" of a local government.
Finally, in Hudson, the Sixth Circuit determined that
the evidence sufficed to satisfy the "agent" element based on both
contract terms that "gave [the defendant] broad authority to set
up a television station in the high school" and testimony that the
defendant exercised that authority. 491 F.3d at 594-95. But,
once again, nothing in that case suggests that a contract's terms,
standing alone, are insufficient to support a jury's finding that
a defendant was an "agent" in the relevant sense when those terms
authorize the defendant to act on behalf of the relevant entity.
Carrasco does also argue that he is similarly situated
to the defendant in United States v. Pinson, 860 F.3d 152 (4th
Cir. 2017). There, the defendant was convicted of aiding and
abetting -- in violation of § 666 -- theft carried out by an
employee of a company that had been hired by a county in South
Carolina. Id. The Fourth Circuit concluded that the employee was
not an "agent" under § 666(d)(1) because of the limited nature of
the tasks that he performed for his employer. Id. at 165-66. As
the court explained, the employee "had no actual or implied
authority to act on [the county's] behalf in any capacity." Id.
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at 166. Rather, because the employee's only relevant duty was
"receiving and packaging invoices from the company's contractors
and submitting them to [the county] for payment," the employee
"acted solely on behalf of the" corporate entity, not the county.
Id. at 165.
Carrasco contends that, for all the record shows in his
case, he could have been tasked with carrying out only the same
sort of limited tasks that were determined to be insufficient in
Pinson to permit the employee there to be deemed an agent under
§ 666. Carrasco thus contends that the contracts alone cannot
suffice to permit a factfinder to find that he was an "agent" under
§ 666.
But, while the Fourth Circuit's conclusion in Pinson
hinged on the evidence presented to show the employee's
relationship with the county, there is no suggestion in Pinson
that any evidence was presented to show that, notwithstanding the
employee's actual duties, the employee was formally authorized to
act on the county's behalf. In Carrasco's case, by contrast, a
rational jury could conclude based on the contracts between him
and the municipalities that he was authorized to act on behalf of
those municipalities, given the express authorization in each
contract for him to "represent" the relevant municipality. We
thus do not see how Pinson supports Carrasco's position any more
than the other readily distinguishable precedents on which he
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relies and so reject his sufficiency challenge insofar as it takes
aim at the record support for the "agent" element of the offense
that underlies his convictions.
B.
Carrasco's other ground for challenging his § 666
convictions on sufficiency grounds is that the government failed
to supportably show that he engaged in any "official act." Here,
he contends that the government was required to prove that he
received funds in exchange for taking "an official act" to prove
that he violated § 666. He then goes on to contend that we must
apply the definition of "official act" that the Supreme Court set
forth in construing the "official act" element of 18 U.S.C.
§ 201(a)(3) in McDonnell v. United States, 579 U.S. 550 (2016),
and that there is no evidence in the record that could suffice to
show that he received the funds from Mercado in exchange for taking
such an "official act."
The Court explained in McDonnell that an "official act"
occurs when a "public official . . . make[s]" (or agrees to make)
"a decision or take[s]" (or agrees to take) "an action on [a]
'question, matter, cause, suit, proceeding, or controversy.'" 579
U.S. at 574 (quoting 18 U.S.C. § 201(a)(3)). The Court further
explained that § 201(a)(3) required that the "question, matter,
cause, suit, proceeding or controversy," § 201(a)(3), must be one
which is, or which may at a future time be, "pending" before the
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official. 579 U.S. at 570 (quoting 18 U.S.C. § 201(a)(3)). The
Court also explained that an "official act" occurs for purposes of
§ 201 when a public official "us[es] his official position to exert
pressure on another official to perform an 'official act,' or to
advise another official, knowing or intending that such advice
will form the basis for an 'official act' by another official."
Id. at 574.
The necessary premise of this ground of Carrasco's
sufficiency challenge is that § 666 has an "official act" element.
But the text of § 666, unlike the text of § 201 that the Supreme
Court construed in McDonnell, does not include the phrase "official
act." And, as the government points out, several circuits have
held that the government need not show that a defendant engaged in
an "official act" to secure a conviction under § 666. See United
States v. Lindberg, 39 F.4th 151, 165-169 (4th Cir. 2022); United
States v. Roberson, 998 F.3d 1237, 1246-47 (11th Cir. 2021); United
States v. Ng Lap Seng, 934 F.3d 110, 131-34 (2d Cir. 2019); United
States v. Porter, 886 F.3d 562, 565-66 (6th Cir. 2018).
Moreover, although our Circuit has proceeded in some
cases on the understanding that § 666 does contain an "official
act" element, we have done so only in cases in which the government
did not dispute the point and in which the jury had been instructed
that the offense does contain an "official act" element, see, e.g.,
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United States v. Martínez, 994 F.3d 1, 6-7 (1st Cir. 2021). We
thus have not held that § 666 does have an "official act" element.
Against this precedential backdrop, it is potentially
significant both that the District Court did not instruct the jury
in Carrasco's case that § 666 has an "official act" element6 and
that in this case the government contests whether § 666 has such
an element. But we need not decide whether § 666 has the element
in question because Carrasco has failed to show that the government
did not present sufficient evidence for a rational juror to
conclude that element was met.
The record supportably shows that Carrasco agreed to
"advise" the mayors of the relevant municipalities "knowing or
intending that such advice w[ould] form the basis for an 'official
act'" by those municipal officials -- namely, the awarding of
contracts by those municipalities to a company associated with
Mercado. McDonnell, 579 U.S. at 574. That evidence takes the
form chiefly of testimony from Mercado himself.
Mercado testified that his environmental consulting firm
had contracts with the municipalities of Barceloneta, Juncos, and
Rio Grande. He further testified that the contracts were not
6 Carrasco's briefing does at points assert that "[t]he jury
should . . . have been instructed in conjunction with McDonnell's
two-part test" and thus instructed to identify an official act
taken by Carrasco, but Carrasco's counsel clarified during oral
argument that no challenge was being made on appeal to the jury
instructions given by the District Court.
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awarded pursuant to a bidding process but instead after a
negotiation with the municipal government. He then testified that
he made payments to Carrasco in exchange for Carrasco providing
"[a]ccess, protection, watch my back," while explaining that the
basis for his belief in Carrasco's ability to deliver the
agreed-upon "[a]ccess," "protection," and back-watching was
Mercado's belief that Carrasco had "[t]otal access" and held
"[t]otal influence" over the mayors in the three municipalities.
Mercado further testified that he understood Carrasco would, in
exchange for the payments, ensure that Mercado would receive
municipal contracts. And, finally, Mercado testified that he
understood Carrasco to be soliciting these payments by asking for
"loose change" in connection with Mercado's receipt of municipal
contracts.
In addition, the record shows both that the government
submitted into evidence certain checks that Mercado made out to
Carrasco and that Mercado testified that those checks were paid in
connection with the specific contracts identified in the
indictment. So, there is evidence that at least partly
corroborates Mercado's testimony.
Notwithstanding this collection of evidence, Carrasco
contends that the evidence in the record does not suffice to
satisfy the "official act" element. He does so by focusing on
Mercado's description of Carrasco's alleged provision of
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"[a]ccess, protection," and watching Mercado's back. Carrasco
argues that these services are too "speculative and
nebulously-described" to meet the McDonnell standard for what
constitutes an "official act." Carrasco then contends that the
payments Mercado made to him were not bribes but rather were akin
to the speculative gift-giving at issue in United States v.
Sun-Diamond Growers of California, 526 U.S. 398 (1999), which the
Supreme Court concluded was not in exchange for an "official act."
But Mercado's testimony, as we have explained, provides
a basis for finding more than that Carrasco had provided Mercado
with merely "access" or "protection." It also suffices to permit
a finding that Carrasco "advise[d]" the mayors "knowing or
intending that [his] advice w[ould] form the basis for an 'official
act'" taken by the mayors -- namely, the award of the contracts to
Mercado. McDonnell, 579 U.S. at 574. And because Carrasco makes
no argument as to why such advice would not for that reason qualify
as an "official act," we reject his contention that the evidence
does not suffice under McDonnell to allow a rational jury to
conclude that he had undertaken such an act.
III.
We still must consider Carrasco's two evidentiary
challenges, each of which was preserved below, and each of which
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he contends supports our vacating his convictions. We reject these
challenges as well.
A.
Carrasco first argues that the District Court erred in
admitting evidence of municipal contracts and related payments
made by Mercado to Carrasco that went beyond the specific contracts
and related payments that ground the specific § 666 charges for
which Carrasco was indicted. The relevant facts are as follows.
Carrasco's indictment charged him with receiving
approximately $72,300 in payments from Mercado related to seven
municipal contracts. The evidence of these payments at trial took
the form of checks that were made out from Mercado to Carrasco.
The memo field on each check stated that the check was paid for
"legal services" or some other seemingly legitimate service that
Carrasco had provided or was to provide to Mercado. But the
government did not submit into evidence only checks from Mercado
to Carrasco that the government contended were payments to Carrasco
in return for influencing the award of the contracts that form the
predicate for the § 666 charges against Carrasco. The government
also submitted into evidence additional checks that Mercado
testified were kickbacks from Mercado to Carrasco in exchange for
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Carrasco agreeing to steer to Mercado contracts beyond the
contracts mentioned in the indictment.7
Carrasco contends that the District Court erred in
admitting into evidence these additional checks as well as
Mercado's related testimony. In his view, that evidence
constituted propensity evidence of the type prohibited by Federal
Rule of Evidence 404(b).
To make out this contention, Carrasco first argues that
the evidence was not admissible under Rule 404(b) as evidence
"intrinsic" to the conduct for which Carrasco was indicted. He
contends that is so because this evidence was relevant only to
other, uncharged conduct -- that is, the evidence was "extrinsic
to the crime charged." United States v. Gonyer, 761 F.3d 157, 162
(1st Cir. 2014) (quoting United States v. Roszkowski, 700 F.3d 50,
56 (1st Cir. 2012)).
The government responds that even if the evidence
regarding the additional checks is "extrinsic," it is admissible
because it has a "special relevance" under Rule 404(b). United
7 In total, the government submitted into evidence forty-one
checks representing approximately $195,000 in payments from
Mercado to Carrasco. Mercado testified that three of those checks,
totaling $2,989, were for legitimate legal services. It appears
that Mercado was not asked to testify as to whether four of the
checks, totaling $5,850, were payments for legitimate services
provided by Carrasco or payments related to the steering of
contracts to Mercado. Mercado testified that the remaining
thirty-four checks were payments made in exchange for Carrasco
agreeing to steer contracts to Mercado.
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States v. Henry, 848 F.3d 1, 8 (1st Cir. 2017) (citing United
States v. Hicks, 575 F.3d 130, 142 (1st Cir. 2009)). In
particular, the government argues that the evidence is specially
relevant because it shows not only Carrasco's intent in accepting
the payments for which he was charged but also his modus operandi
for receiving payments in connection with his agreement with
Mercado to influence the mayors to steer contracts to Mercado's
firm in exchange for his receiving payments from Mercado. See id.
(quoting Fed. R. Evid. 404(b)(2)) (noting that "special relevance
under Rule 404(b)" includes "proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or
lack of accident"). And, notably, Carrasco does not dispute that
the evidence was of this specially relevant sort.
Thus, in the end, Carrasco's challenge boils down to his
contention that this evidence was not admissible because the
evidence was unduly prejudicial and thus violative of Rule 403.
See id. ("If prior crime evidence has special relevance under Rule
404(b), the court must move on to consider whether the evidence
should nevertheless be excluded under Rule 403."). But, as the
party opposing the admission of evidence on Rule 403 grounds,
Carrasco bears the burden of establishing "that the probative
value" of the evidence at issue "is substantially outweighed by
the danger of unfair prejudice." United States v. Tse, 375 F.3d
148, 162 (1st Cir. 2004). And, given that "we afford deference to
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a [district court]'s balancing decision, and '[o]nly rarely -- and
in extraordinarily compelling circumstances -- will we, from the
vista of a cold appellate record, reverse a district court's
on-the-spot judgment concerning the relative weighing of probative
value and unfair effect,'" United States v. Doe, 741 F.3d 217, 229
(1st Cir. 2013) (alteration in original) (internal quotation
omitted) (quoting United States v. Li, 206 F.3d 78, 84-85 (1st
Cir. 2000)), we conclude that Carrasco has not carried that burden
here.
Carrasco's only argument as to why the admission of the
challenged evidence was unduly prejudicial is that "[f]looding the
jury" with that evidence "about uncharged conduct practically
guaranteed that the jury would be unduly influenced" and thus
unable to disentangle the acceptable non-propensity inference from
the forbidden propensity inference. And Carrasco relies for this
argument solely on United States v. Gilbert, 229 F.3d 15, 21-25
(1st Cir. 2000).
But, in Gilbert, we affirmed, in an interlocutory appeal
brought by the government, a district court's decision to exclude
evidence, id. at 20. Here, by contrast, we are reviewing a
defendant's challenge to a district court's decision to admit
evidence.
Moreover, in affirming the district court's decision not
to admit the evidence in Gilbert, we concluded that the
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non-propensity purpose of admitting the evidence was of only
marginal relevance to the government's case. Id. at 24. By
contrast, Carrasco's intent in accepting checks with innocuous
explanations in their memo lines -- namely, whether he believed
those checks to be payments for legitimate services or for steering
contracts to Mercado -- was a central issue at trial.
To be sure, we have acknowledged that evidence
admissible for a special purpose under Rule 404(b) may be unfairly
prejudicial when other evidence that carries less risk of being
unduly prejudicial could have been used to prove the fact in
question. See United States v. Varoudakis, 233 F.3d 113, 122 (1st
Cir. 2000). But in Varoudakis, we noted that the record was
replete with compelling, alternative evidence already before the
jury that spoke to the same issue, thereby lessening any probative
value of the proffered "other acts" evidence. Here, by contrast,
the evidence of the additional checks and Mercado's related
testimony were central to establishing Carrasco's intent. And,
although Carrasco claims that the admission of the other checks
and accompanying testimony risked "[f]looding the jury" with
evidence of uncharged bad acts and thus that the jury would make
an improper propensity inference,8 it is unclear how many of the
8To the extent Carrasco challenges the illustrative charts
the government used to summarize the evidence of payments, both
charged and uncharged, that Mercado made to Carrasco, he has failed
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checks might have been admitted without creating that risk.
Moreover, we have in similar circumstances found no error in the
admission of repetitive evidence of prior bad acts with special
relevance when "the repetition of the conduct was itself distinctly
probative." United States v. Rodriguez-Estrada, 877 F.2d 153, 156
(1st Cir. 1989); see id. at 155-56 (affirming, in a case where
defendant was charged with twenty counts of embezzlement for
misappropriating twenty weekly expense allowances, the admission
under Rule 404(b) of thirty-one checks the government argued
represented thirty-one identical but uncharged misappropriations
of weekly allowances). We thus conclude that the District Court
did not abuse its discretion in admitting evidence of Mercado's
illicit but uncharged payments to Carrasco.9
to develop the argument and thus has waived it. See United States
v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
9 Carrasco contends that the District Court erred in failing
to give the jury a limiting instruction concerning the purpose for
which the jury could consider the evidence of the prior payments
he had accepted from Mercado. But Carrasco "may not complain about
the absence of a limiting instruction because he never requested
one." United States v. Lugo Guerrero, 524 F.3d 5, 14 (1st Cir.
2008) (citing Huddleston v. United States, 485 U.S. 681, 691–92
(1988)) (explaining that Huddleston "not[ed] that Federal Rule of
Evidence 105 provides protection from unfair prejudice by
requiring the trial court, upon request, to instruct the jury that
the evidence of other acts is to be considered only for the proper
purpose for which it was admitted"). The District Court therefore
"did not err by failing to issue, sua sponte, the limiting
instruction that [Carrasco] now claims was essential." Id. (citing
United States v. Cartagena–Carrasquillo, 70 F.3d 706, 713 (1st
Cir. 1995)) (explaining that Cartagena-Carrasquillo "refus[ed] to
impose obligation on court to give, sua sponte, a limiting
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B.
Carrasco's second evidentiary challenge concerns
portions of Mercado's testimony in which Mercado characterized the
content of certain interactions he recounted and certain recorded
conversations that were played for the jury. Carrasco contends
that Mercado's characterizations of these conversations
contravened Federal Rule of Evidence 701 and so were improperly
admitted into evidence. We need not decide whether that is so,
however, because we agree with the government that any error on
this score was harmless.
The admission of improper testimony is harmless if it is
"highly probable that the error did not influence the verdict."
United States v. Flores-De-Jesus, 569 F.3d 8, 27 (1st Cir. 2009)
(quoting United States v. Casas, 356 F.3d 104, 121 (1st Cir.
2004)). The government bears the burden of making that showing.
See id. (quoting United States v. Rodriguez-Marrero, 390 F.3d 1,
18 (1st Cir. 2004)). To determine whether the government has made
that showing, we must engage in "a panoramic, case-specific
inquiry" that considers multiple factors, including "the
centrality of the tainted material," its "prejudicial impact," and
"the relative strengths of the parties' cases." Id. (quoting
instruction because that decision is 'within the ken of counsel
and part of litigation strategy and judgment'").
- 22 -
United States v. Sepúlveda, 15 F.3d 1161, 1182 (1st Cir. 1993)).
We conclude that the government has made the necessary showing.
As the government points out, the testimony by Mercado
that is at issue formed only one part of Mercado's testimony, and
that testimony was itself only part of the government's case.
Specifically, in testifying, Mercado did more than address his
understanding of the meaning of words that appeared in the
transcripts of his conversations with Carrasco. He also testified,
without objection from Carrasco, about the yearslong corrupt
relationship between the two of them, with specific reference to
the bribes and contracts charged in the indictment.
The evidence also included the many checks that Mercado
paid to Carrasco and Mercado's testimony about those checks.
Mercado testified in that respect that he made payments to Carrasco
for "[a]ccess" and "protection" due to his belief that Carrasco
had "[t]otal access" and "[t]otal influence" over the mayors in
the three municipalities at issue and that Mercado understood by
making those payments that Carrasco would ensure that Mercado
received municipal contracts.
Finally, as the government notes, the transcripts of the
recorded conversations were themselves in evidence. And the
transcripts on their face are plainly incriminating even setting
aside Mercado's testimony about the meaning of what was said in
them. For example, the transcript of one of the recorded
- 23 -
conversations shows that Mercado mentioned explicitly to Carrasco
that investigators would be asking Mercado questions regarding
whether Mercado received "kickbacks" for "contracts" and that
Mercado could not "lie" about it. That transcript also shows that
Mercado then stated repeatedly, speaking only to Carrasco, that he
did not "have a way to justify that money" and that "out of the
checks we had, there were many . . . very close to . . . your
clients' contracts without any justification." Soon after,
according to the transcript, Carrasco stated: "If you at least get
me the information on the date and amount I could find out what
sort of things happened during, during those dates, because we may
have some sort of explanation. It's the only thing . . . if not
. . . we're screwed." (Emphasis added).
The government argues based on this evidence that the
recorded conversations themselves, in combination with the other
evidence, are enough to establish Carrasco's guilt even without
Mercado's commentary interpreting them. Yet Carrasco offers no
explanation for why the plain meaning of these comments does not
reflect a corrupt relationship between Mercado and Carrasco. He
thus offers no explanation for why the admission of Mercado's
interpretations of those conversations would not have been
harmless. And without any such explanation from Carrasco, we must
conclude that the record in this case "offers every assurance that
- 24 -
the [challenged testimony] did not affect the trial's outcome" and
so was "harmless." Sepúlveda, 15 F.3d at 1182.
IV.
Carrasco separately challenges his 120-month prison
sentence as procedurally and substantively unreasonable. He does
so by advancing three preserved challenges to the District Court's
application of the Guidelines, as well as claims regarding the
disparity between his sentence and both the sentences imposed for
similar offenses nationwide and the sentence received by Mercado.
A.
We begin with Carrasco's claims that his sentence is
procedurally unreasonable. We review the District Court's factual
determinations for clear error, its legal interpretation and
application of the sentencing guidelines de novo, and its judgement
calls for abuse of discretion. United States v. Ouellette, 985
F.3d 107, 110 (1st Cir. 2021).
1.
Carrasco first challenges the District Court's
application of the two-level enhancement that U.S.S.G. § 3C1.1
sets forth if:
the defendant willfully obstructed or impeded,
or attempted to obstruct or impede, the
administration of justice with respect to the
investigation, prosecution, or sentencing of
the instant offense of conviction, and [if]
the obstructive conduct related to . . . the
defendant's offense of conviction and any
- 25 -
relevant conduct; or . . . a closely related
offense.
The District Court determined that the enhancement applied to
Carrasco because Carrasco "attempt[ed] to convince . . . Mercado
. . . that the best strategy to face their problem was for them to
keep silent and not tell anything to anyone, to invoke the
attorney-client privilege to cover their scheme, or to lie to the
Federal Bureau of Investigation." The District Court based the
predicate determination on, among other things, a conversation
that Mercado recorded between himself and Carrasco at the behest
of law enforcement.10
To the extent that Carrasco contends that the District
Court clearly erred in determining that Carrasco had attempted to
10 That conversation went as follows:
Mercado: And what about when they ask you,
why was he your client?
Carrasco: I cannot give out any details.
Mercado: You know, they are going to ask that
to me. And I am going to tell them,
"Yes, he was my attorney." "What
for?"
Carrasco: For everything.
Mercado: For this. . . Well, that would be
lying to them.
Carrasco: For everything, you understand.
Mercado: You would say for everything?
Carrasco: Yes, for everything.
- 26 -
convince Mercado that Mercado should invoke attorney-client
privilege, we cannot agree. The District Court's reading of the
transcript is certainly a plausible one. See United States v.
Rivera, 51 F.4th 47, 53 (1st Cir. 2022) ("[W]here there is more
than one plausible view of the circumstances, the sentencing
court's choice among supportable alternatives cannot be clearly
erroneous." (quoting United States v. Ilarraza, 963 F.3d 1, 14
(1st Cir. 2020))).
Carrasco separately contends that, even if he engaged in
the conduct described above, the District Court erred by applying
the enhancement to him. He notes that Application Note 5 to
§ 3C1.1 lays out "a non-exhaustive list" of certain conduct which
"ordinarily do[es] not warrant application" of the enhancement.
He goes on to point out that Section B of that Note explains that
one type of conduct which "ordinarily" is insufficient to trigger
the enhancement is "making false statements, not under oath, to
Mercado: But, but I will earn myself eight
years.
Carrasco: No, no, wait a minute, I am not
telling you to—
Mercado: [Crosstalk] I mean, I don’t have
. . . What evidence do I have?
Carrasco: Listen to me. I am telling you
about me, what I would say, "For
everything."
- 27 -
law enforcement officers, unless Application Note 4(G) above
applies." And, finally, he emphasizes that Application Note 4
lays out "a non-exhaustive list of examples of the types of
conduct" that justifies application of the enhancement, including
Section G, which provides that the enhancement applies if the
defendant "provid[ed] a materially false statement to a law
enforcement officer that significantly obstructed or impeded the
official investigation or prosecution of the instant offense."
See U.S.S.G. § 3C1.1 n.4 & n.5. Carrasco then pulls the argument
together by contending that his conduct is properly categorized as
an unsworn false statement to law enforcement under Application
Note 5(B) rather than as a "materially false statement to a law
enforcement officer that significantly obstructed or impeded the
official investigation or prosecution" under Application Note
4(G).11
In support of this contention, Carrasco argues that his
suggestion that Mercado lie to law enforcement could not have
To the extent Carrasco argues that the enhancement does not
11
apply to him at all because he made the statements in question to
Mercado and Mercado was not a member of law enforcement, Carrasco
misapprehends the reach of the enhancement. Under Application
Note 9, Carrasco would be accountable both for his "own conduct
and for conduct that [he] aided or abetted, counseled, commanded,
induced, procured, or willfully caused." U.S.S.G. § 3C1.1 n.9.
Because Carrasco advised Mercado to make a false claim of
attorney-client privilege to law enforcement, the fact that
Mercado rather than Carrasco would have actually lied to law
enforcement would be no defense to the application of the
enhancement to Carrasco.
- 28 -
created the necessary significant obstruction or impediment under
Note 4(G), given that Mercado was already cooperating with law
enforcement. He further notes that, even if Mercado had not been
cooperating with law enforcement at the time, Application Note
4(G) applies only if the obstructive conduct "significantly
obstructed or impeded" an investigation or prosecution. For that
reason, Carrasco contends that the enhancement could not apply to
him because the District Court made no finding that his suggestion
to Mercado would have had such an impact if Mercado had not already
been cooperating with law enforcement and had instead, at
Carrasco's suggestion, claimed a nonexistent lawyer-client
confidentiality.
Carrasco ignores, however, the import of Application
Note 4(A), which makes the enhancement applicable when a defendant
"threaten[s], intimidat[es], or otherwise unlawfully influenc[es]
a . . . witness . . . directly or indirectly, or attempt[s] to do
so." U.S.S.G. § 3C1.1 n.4(A) (emphasis added). While Carrasco
contends that he did not attempt to "threaten[]" or "intimidat[e]"
Mercado, we have previously explained that simply asking a
potential witness to lie to law enforcement "plainly constitutes
an attempt to 'unlawfully influenc[e] a . . . witness.'" United
States v. Coffin, 946 F.3d 1, 8 (1st Cir. 2019); see also United
States v. Batchu, 724 F.3d 1, 12 (1st Cir. 2013); cf. United States
v. O'Brien, 870 F.3d 11, 18 (1st Cir. 2017). Because Carrasco
- 29 -
does not explain why our reasoning in such cases is not applicable
here, we reject his challenge to the application of the obstruction
of justice enhancement to him.
2.
Carrasco next contends that the District Court erred in
applying a two-level enhancement based on § 2C1.1(a)(1) of the
Guidelines. He does so on the ground that the District Court was
wrong to treat him as a "public official" within the meaning of
that Guideline.
In applying the enhancement, the District Court relied
on the first Application Note to § 2C1.1. The District Court noted
that the Application Note provides that the term "'public official'
shall be construed broadly." U.S.S.G. § 2C1.1 n.1. It also noted
that Section C of that Application Note provides that the term
"public official" includes:
[a]n officer or employee or person acting for
or on behalf of a state or local government,
or any department, agency, or branch of
government thereof, in any official function,
under or by authority of such department,
- 30 -
agency, or branch of government, or a juror in
a state or local trial.
Id. § 2C1.1 n.1(C).
The District Court also noted that Section E of that
Application Note provides in relevant part that a "public official"
includes:
[a]n individual who . . . (i) is in a position
of public trust with official responsibility
for carrying out a government program or
policy; (ii) acts under color of law or
official right; or (iii) participates so
substantially in government operations as to
possess de facto authority to make
governmental decisions (e.g., which may
include a leader of a state or local political
party who acts in the manner described in this
subdivision).
Id. § 2C1.1 n.1(E).
In contending that the District Court was wrong to apply
the enhancement, Carrasco argues that the record indisputably
shows that he was never appointed or elected to any office, that
he was not employed by the municipalities for whom he performed
contract services, and that "his contractual relationship was not
shown to afford him decision-making authority or any other indicia
of public trust." He thus contends that there was no basis for
applying the enhancement set forth in the Guideline to him.
But the District Court explained that its determination
that Carrasco was a "public official" was based on "the duties
that [he] assumed and performed under his contracts with the
- 31 -
[m]unicipalities of Barceloneta, Rio Grande, and Juncos" and that,
in the District Court's view, Carrasco "was in a position of public
trust that infused him with enough de facto authority to act for
or on behalf of those municipalities and influence the
decision-making process, particularly as it relate[d] to ensuring
that the municipalities awarded contracts to . . . Mercado."
Moreover, shortly before denying Carrasco's objection to the
application of the sentence enhancement to him, the District Court
had denied Carrasco's objection to the presentence report's
description of Carrasco as "the main advisor/attorney for the
mayors of Barceloneta, Rio Grande, and Juncos" and, in doing so,
had pointed to Mercado's testimony that Carrasco had close
relationships with all three mayors and had "total influence" over
each of them.
We thus conclude that the District Court determined,
albeit implicitly, that Mercado's testimony detailing Carrasco's
relationships with the mayors supported a finding that, by a
preponderance of the evidence, Carrasco "participate[d] so
substantially in government operations as to possess de facto
authority to make governmental decisions." U.S.S.G. § 2C1.1
n.1(E)(iii). Carrasco's only argument for why the District Court
would have been wrong to so conclude, however, is that Carrasco
was, at most, only an "advisor" to the mayors. Yet this argument
fails to grapple with Mercado's testimony that Carrasco had "total
- 32 -
influence" over the mayors, as it is difficult to see how Carrasco
could be understood to have "total influence" over the mayors if
he did not have "de facto authority to make . . . decisions"
regarding to whom the contracts would be awarded. We thus see no
error in the District Court's application of this enhancement to
Carrasco.
3.
Carrasco's final Guidelines-related contention is that
the District Court erred by applying a four-level enhancement to
him under § 2C1.1(b)(3). That guideline provides that the
enhancement applies when the "offense involved an elected public
official or any public official in a high-level decision-making or
sensitive position." Id. Carrasco argues that the guideline has
no application to him because he "was not convicted of bribing an
elected official or with joining with Mercado to do so."
Carrasco misapprehends the basis for the District
Court's application of the enhancement. The District Court did
not apply the enhancement because Carrasco was found to be part of
a scheme to pay the mayors in exchange for the award of contracts.
It did so because it determined that Carrasco "used his influence
over and his access to the mayors of the [m]unicipalities of
Barceloneta, Rio Grande, and Juncos, who are elected public
officials," to steer contracts to Mercado and because Carrasco
- 33 -
himself was a "public official" in a "high level decision-making
or sensitive position."
Carrasco makes no argument that the District Court's
determination on either point was incorrect. And even if we were
to disregard the former determination, Carrasco makes no argument
that the latter determination -- that Carrasco himself was a
"public official in a high-level decision-making or sensitive
position" -- would not have alone been sufficient to justify the
application of the enhancement. See United States v. Hill, 645
F.3d 900, 908 (7th Cir. 2011) (affirming application of
§ 2C1.1(b)(3) enhancement to defendant based on finding that
defendant "held a sensitive position").
Nor can we see how the determination that Carrasco was
a "public official in a high-level decision-making or sensitive
position" was incorrect. We explained above that the District
Court was not wrong to find that Carrasco had "de facto authority
to make governmental decisions" when applying an enhancement to
him for being a "public official." We also conclude that the
District Court was not wrong to determine on this same basis that
Carrasco occupied a "high-level decision-making position," given
that such a position is "characterized by a direct authority to
make decisions" for the municipalities. We thus see no mistake in
the District Court's application of this enhancement to Carrasco.
- 34 -
B.
Finally, we address Carrasco's challenges to the
substantive reasonableness of his sentence. Our review is for
abuse of discretion, United States v. Reyes-Torres, 979 F.3d 1, 9
(1st Cir. 2020), and we uphold a sentence against such a challenge
so long as the district court provided "a plausible sentencing
rationale" in support of "a defensible result," United States v.
Contreras-Delgado, 913 F.3d 232, 243 (1st Cir. 2019) (quoting
United States v. Zapata-Vázquez, 778 F.3d 21, 24 (1st Cir. 2015)).
1.
Carrasco's first substantive-reasonableness-based
challenge is that the District Court created an unjustified
disparity between his sentence and the sentences imposed on
similarly situated defendants nationally. This disparity argument
rests on the contention that the District Court erred in declining
to credit statistics showing that the average sentence in the
United States for a bribery-related offense was twenty-five months
in 2019. Carrasco, relying on these statistics, contends that the
District Court should have sentenced him to a comparable period of
incarceration.
But a claim of national disparity relies on "apples . . .
being compared to apples," United States v. Joubert, 778 F.3d 247,
256 (1st Cir 2015). And, as the District Court correctly noted,
various statistical measures of the average sentences imposed upon
- 35 -
defendants convicted of bribery offenses include sentences imposed
upon defendants convicted under a number of federal statutes, not
just defendants who, like Carrasco, were convicted for violating
18 U.S.C. § 666. Thus, the District Court committed no error in
finding that Carrasco's statistics were over-inclusive and thus
provided no basis for a claim of national disparity.12
2.
Carrasco's second challenge to the substantive
reasonableness of his sentence is another disparity-based
challenge. Here, he contends that the District Court erred in
sentencing him to 120 months of imprisonment when Mercado was
sentenced only to a pretrial diversion program. But, as with his
claim of national disparity, Carrasco must convince us that he and
Mercado were similarly situated. United States v. Gonzalez, 981
F.3d 11, 23 (1st Cir. 2020). Yet Carrasco cannot do so given the
substantial differences between Mercado and Carrasco, which
12 Carrasco also challenges the procedural reasonableness of
his sentence based on what he contends was an inappropriate
reference by the District Court to other sentences handed down for
violations of § 666 in the District of Puerto Rico. But, the
District Court made clear that it was not "purport[ing] to hold
[Carrasco] responsible for all of the wrongs caused by corruption
in Puerto Rico" and that the District Court was "required to impose
a sentence that is commensurate" to his "offenses" and "personal
characteristics" as well as the sentence's deterrent effect.
Carrasco does not explain why, despite these statements by the
District Court, we must understand the District Court to have
impermissibly relied on community characteristics in determining
his sentence.
- 36 -
include the fact that Mercado cooperated with law enforcement and
Carrasco did not. Cf. United States v. Mateo-Espejo, 426 F.3d
508, 514 (1st Cir. 2005) (rejecting sentencing disparity claim in
light of "appellant's belated and grudging cooperation" compared
to codefendant's "prompt and full cooperation").13
3.
Carrasco's final substantive-reasonableness challenge
to his sentence is that the District Court erred in sentencing him
to the statutory maximum. As Carrasco himself acknowledges, the
statutory maximum for the offenses of which he was convicted is
one month below the lower end of the calculated Guidelines range.
Nonetheless, Carrasco objects to the District Court's refusal to
vary even further downward in light of what he characterizes as
"the overwhelmingly mitigating personal considerations" present in
his case.
But the District Court at the sentencing hearing
explicitly considered the mitigating circumstances to which
Carrasco directs our attention. Indeed, after taking note of
13 To the extent Carrasco claims that the District Court
imposed a penalty upon him for not pleading guilty, the claim fails
for similar reasons: Carrasco cannot show that any similarly
situated codefendant received a lesser sentence simply because he
went to trial rather than pleading guilty, particularly given that,
in handing down Carrasco's sentence, the District Court noted that
the mayor of Barceloneta received the same sentence "even though
he pled guilty and less money was involved" in the crimes to which
to mayor pled guilty than the crimes of which Carrasco was found
guilty.
- 37 -
Carrasco's age, family, and multiple medical conditions, the
District Court also noted that Carrasco had worked as an attorney
"for more than 30 years" and that Carrasco had submitted "many
letters of recommendation" that spoke to his "good moral character
and values" and that "describe[d] him as an exemplary son, father,
and friend, and as an honorable citizen and consummate professional
. . . who still has much to offer." The District Court then noted,
however, that none of those letters mentioned Carrasco's
corruption convictions and that "it would not be honest or show
integrity" for an attorney to "do what [Carrasco] was convicted of
doing in this case over five years," such as "accept[ing] bribes,
cover[ing] up a scheme involving paying bribes, or telling someone
to lie concerning the bribe scheme." The District Court therefore
concluded that the 120-month guideline sentence was "the
appropriate punishment pursuant to the facts of this case and in
accordance with the [§] 3553(a) factors." We cannot conclude that
the District Court's conclusion on this score was predicated on
implausible reasoning or yielded an indefensible result. We thus
reject Carrasco's challenge.
V.
For the above reasons, we affirm Carrasco's convictions
and his sentence.
- 38 -