United States v. Dubon-Otero

United States Court of Appeals
For the First Circuit

No. 00-2029

UNITED STATES,

Appellee,

v.

LUIS E. DUBÓN-OTERO,

Defendant - Appellant.

No. 00-2030

UNITED STATES,

Appellee,

v.

JORGE L. GARIB-BAZAIN,

Defendant - Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. José Antonio Fusté, U.S. District Judge]

Before

Selya, Circuit Judge,

John R. Gibson,* Senior Circuit Judge,

* Of the Eighth Circuit, sitting by designation.
 and Lipez, Circuit Judge.

David W. Roman, with whom Brown & Ubarri, Frederick P. Hafetz,
Susan R. Necheles, Elizabeth M. Johnson, and Goldman & Hafetz were on
brief, for appellant Dubón.
Scott A. Srebnick, with whom Howard M. Srebnick and Black,
Srebnick, & Kornspan were on brief, for appellant Garib.
Richard A. Friedman, United States Department of Justice, with
whom Guillermo Gil, United States Attorney, and Maria Dominguez and
Thomas F. Klumper, Assistant United States Attorneys, were on brief,
for appellee.

May 29, 2002

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 JOHN R. GIBSON, Senior Circuit Judge. Luis Dubón-Otero and

Jorge L. Garib-Bazain appeal from their convictions, after a joint

trial, for conspiring to steal property worth more than $5,000 from an

organization receiving more than $10,000 in federal benefits in any

one-year period. See 18 U.S.C. §§ 371, 666(a)(1)(A) and (2) (1994).

They argue that there was a constructive amendment of the indictment,

that there was insufficient evidence to convict them, and that the jury

instructions were defective. They also challenge the makeup of their

jury and the appointment of the United States Attorney. Garib also

appeals his conviction for making false declarations before a grand

jury in violation of 18 U.S.C. § 1623 (1994). We affirm.

Advanced Community Health Services (Health Services) was

incorporated in the Commonwealth of Puerto Rico in 1987 as a for-profit

corporation.1 Dubón, a lawyer, and Garib, a doctor, were shareholders

and directors. Dubón served as legal advisor to Health Services and

Garib as the Medical Director of Patient Services. Dr. Yamil Kourí-

Perez was a consultant from the Harvard Institute for International

1 Health Services later became a non-profit corporation.

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Development who, together with Jeanette Sotomayor-Vazquez, the

administrative director, and Angel Luis Corcino-Mauras, the

comptroller, conducted the day-to-day operations of Health Services.

Dubón and Garib were charged with conspiring to use Health

Services funds to pay personal expenses and make political payoffs.

The principal witness at trial was Corcino, whose testimony painted a

picture of Kourí as the primary conspirator. Kourí and Sotomayor were

indicted along with Dubón and Garib, but tried separately. They were

convicted, and we affirmed in United States v. Sotomayor-Vazquez, 249

F.3d 1 (1st Cir. 2001).

In January 1988, Health Services contracted with the

Municipality of San Juan to provide services for AIDS patients. The

initial contract provided that the Municipality would pay Health

Services a flat fee of $3.2 million per year for these services.

Because under the contract Health Services became "the exclusive source

of AIDS counseling and professional services in San Juan," United

States v. Dubón-Otero, No. 97-091, slip op. at 10 (D. P.R. March 3,

2000), federal monies began to find their way to Health Services.

The Government introduced evidence regarding the payment of

these federal monies to Health Services, and the ways in which Dubón

and Garib diverted these funds. This evidence will be discussed in

greater detail below, as we discuss the various arguments made by Dubón

and Garib on appeal.

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 I.

Dubón and Garib argue that the district court erred by

allowing a constructive amendment of the indictment. Specifically,

they complain the court admitted evidence that the funds the defendants

had stolen were federal or public funds, which may have been entrusted

to Health Services but never lost their federal or public character.

Appellants argue admission of this evidence constituted a constructive

amendment of the indictment. They construe the indictment as limiting

the charge against them to conspiring to steal only Health Services

funds.

A constructive amendment occurs when the charging terms of
the indictment are altered, either literally or in effect,
by prosecution or court after the grand jury has last passed
upon them. An amendment of the indictment is considered
prejudicial per se and grounds for reversal of a conviction
whether it is brought about by a literal alteration of the
words of the indictment, a jury instruction which modifies
the offense charged in the indictment, or the admission of
evidence of an offense not charged by the grand jury.

United States v. Dunn, 758 F.2d 30, 35 (1st Cir. 1985) (internal

quotation marks and citations omitted).2

The charging paragraph of the indictment alleged that Dubón

and Garib, "as agents of an organization which received benefits in

2 Because our ultimate conclusion is that there was no
constructive amendment in this case, we need not address the
Government's argument that the rule of per se reversal of cases
where there has been a constructive amendment has been modified
by the Supreme Court's recent decision in Neder v. United
States, 527 U.S. 1 (1999) (holding that failure to instruct jury
on element of crime is subject to harmless error review).

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excess of $10,000.00 under a Federal program involving a grant, or

other form of Federal assistance," conspired with others to "embezzle,

steal, and obtain by fraud, and without authority knowingly convert to

the use of a person not the rightful owner, and intentionally misapply

property worth at least $5,000.00 owned by such organization, that is,

monies in excess of $2,000,000.00 in program funds." (Emphasis added.)

(Paragraph Thirty-Seven of the indictment read: "the defendants

embezzled, stole and obtained by fraud, in excess of $2,000,000.00 of

public funds." (Emphasis added.)) The indictment incorporated Counts

Two through Thirty-Four as overt acts, which further described the

funds in question as "owned by or under the care, custody, and control

of [Health Services]." (Emphasis added.). Under Count I, the

indictment charged Dubón and Garib generally with conspiracy to violate

§ 666. Section 666 seeks, among other things, to punish any agent of

an organization receiving more than $10,000 in federal benefits in any

one-year period, who "embezzles, steals, obtains by fraud, or otherwise

without authority knowingly converts to the use of any person other

than the rightful owner or intentionally misapplies property that--(i)

is valued at $5,000 or more, and (ii) is owned by, or is under the

care, custody, or control of such organization." 18 U.S.C. §

666(a)(1)(A) (emphasis added).3 While the elements of the charged crime

3 The statute provides in relevant part:

(a) Whoever, if the circumstances described in subsection (b) of

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have to "appear primarily from the language in the indictment . . .

common sense suggests that such a citation should not be entirely

ignored where, as here, it so plainly reinforces what is implicit in

the text." United States v. McLennan, 672 F.2d 239, 243-44 (1st Cir.

1982).

Dubón and Garib cite United States v. Pheaster, 544 F.2d 353

this section exists--
(1) being an agent of an organization, or of a State, local,
or Indian tribal government, or agency thereof--
(A) embezzles, steals, obtains by fraud, or otherwise
without authority knowingly converts to the use of any
person other than the rightful owner or intentionally
misapplies, property that--
(i) is valued at $5,000 or more, and
(ii) is owned by, or is under the care, custody,
or control of such organization, government, or
agency;
. . .
shall be fined under this title, imprisoned not more than 10
years, or both.
(b) The 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.
(c) This section does not apply to bona fide salary, wages,
fees, or other compensation paid, or expenses paid or
reimbursed, in the usual course of business.
(d) As used in this section--
. . .
(5) the term "in any one-year period" means a continuous
period that commences no earlier than twelve months before
the commission of the offense or that ends no later than
twelve months after the commission of the offense. Such
period may include time both before and after the commission
of the offense.

18 U.S.C. § 666.

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(9th Cir. 1976), for the proposition that overt acts cannot supply an

element missing from the charging paragraph. See id. at 361 ("[A]

conspiracy indictment's specification of overt acts cannot be used to

supply the allegation of a critical element completely missing from the

charging language."). However, Pheaster itself recognized that

"reference to the overt acts is appropriate to confirm an otherwise

commonsense interpretation of an allegation which is included in the

charging language," id. at 362, and thus is of no help to Appellants.

A primary objective of the rule against constructive

amendment of indictments is to ensure defendants have notice of the

charges they must defend against. United States v. Kelly, 722 F.2d

873, 876 (1st Cir. 1983); cf. United States v. Delano, 55 F.3d 720, 729

(2d Cir. 1995) ("[W]e have consistently permitted significant

flexibility in proof, provided that the defendant was given notice . .

. ."). The indictment here put Appellants on notice that they would

have to defend against exactly the type of evidence of entrustment of

which they now complain. If Dubón and Garib chose not to defend

against that type of evidence, that choice does not make the district

court's permitting the Government to go forward with such evidence a

constructive amendment.

II.

The indictment in this case charged a conspiracy covering the

years 1989 to 1994. Dubón and Garib argue the district court erred by

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refusing to acquit them following trial because the Government failed

to prove Health Services received any federal benefits before 1991.

They contend that amounts received in 1989 were commercial payments,

not federal benefits, and thus their convictions could not be

predicated on pre-1991 conduct.4 Since there would be no way of

assuring the jury did not rely on pre-1991 conduct in reaching its

conclusion, the conviction could then not stand. See Yates v. United

States, 354 U.S. 298, 312 (1957) ("[W]e think the proper rule to be

applied is that which requires a verdict to be set aside in cases where

the verdict is supportable on one ground, but not another, and it is

impossible to tell which ground the jury selected."). The Government,

on the other hand, argues it proved Health Services received federal

benefits beginning in January 1989. In the alternative, the Government

argues the Supreme Court's decision in Neder v. United States, 527

U.S. 1 (1999), modified Yates to allow harmless error review,

and the error here was indeed harmless.5

We review a denial of a Rule 29 motion for acquittal de novo.

United States v. Czubinski, 106 F.3d 1069, 1073 (1st Cir. 1997). We

also review de novo the question of what type of transactions

4 As we explain below, federal monies are not synonymous
with federal benefits for purposes of a conviction under § 666.
5As in Part I above, our ultimate conclusion here precludes
our having to address the Government's alternative Neder
argument.

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constitute benefits under § 666. See United States v. Peery, 977 F.2d

1230, 1233 n.2 (8th Cir. 1992) ("[D]etermining whether section 666

applies to Peery's conduct is a question of law."). Finally, we review

de novo the question of whether the Government presented sufficient

evidence at trial to prove Health Services in fact received benefits

under § 666, viewing the evidence in the light most favorable to the

Government. See United States v. Otero-Mendez, 273 F.3d 46, 50 (1st

Cir. 2001); United States v. Fischer, 168 F.3d 1273, 1276 n.7 (11th

Cir. 1999), aff'd Fischer v. United States, 529 U.S. 667 (2000); United

States v. Copeland, 143 F.3d 1439, 1442 (11th Cir. 1998).

Appellants concede Health Services received federal benefits

beginning in 1991. The question we must answer is whether Health

Services' receipt of federal monies between 1989 and 1991 constituted

receipt of federal benefits. Three distinct transactions are at issue.

First, on January 13, 1989, Health Services deposited two checks

totaling $11,862.14 from the Centers for Disease Control, a federal

agency. The Centers for Disease Control had contracted with the

Municipality to test members of the public for AIDS, and the

Municipality subcontracted the work to Health Services. Health

Services was paid directly by the Centers for Disease Control. There

was evidence Health Services received another $11,124.03 from the

Centers for Disease Control in August 1989 for similar work. Second,

Health Services received $70,680 in 1989, and $99,729 in 1990, to

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operate an assessment and intervention center for drug addicts. This

money came from the Municipality. The Municipality in turn had

received it from the Commonwealth, which had received it as a grant

from the National Institute on Drug Abuse (the Institute), a federal

agency. Third, on January 10, 1989, Health Services received $100,000

for work on a mass-media education project on AIDS. Although this

money was paid by the Municipality, there was testimony from a

municipal official that this payment had its source in federal funds,

which passed through the Puerto Rico Department of Health to the

Municipality.

The Supreme Court recently addressed the issue of what

constitutes receipt of benefits under § 666 in Fischer v. United

States, 529 U.S. 667 (2000).6 In that case, the Court concluded that

§ 666 "covers fraud perpetrated on organizations participating in the

Medicare program." Id. at 669. The Court reached this conclusion

because the "nature and purposes of the Medicare program," id. at 671,

indicated payments were made "for significant and substantial reasons

in addition to compensation or reimbursement," such as assisting "the

hospital in making available and maintaining a certain level and

6 Fischer was decided after the convictions in this case.
Nonetheless, it applies on direct appeal. See United States v.
Ochs, 842 F.2d 515, 519 (1st Cir. 1988) ("[I]n our direct review
of the convictions entered below, we are bound by McNally[ v.
United States, 483 U.S. 350 (1987)], even though it was decided
after the completion of proceedings in the district court.").

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quality of medical care, all in the interest of both the hospital and

the greater community," id. at 679-80. The Court stated that the term

"benefits" is used in the statute in its ordinary sense, id. at 677,

and since the hospitals themselves derive significant advantage from

participating in Medicare, they could be said to be deriving benefits

within the meaning of § 666, "a statute we have described as

'expansive,' 'both as to the [conduct] forbidden and the activities

covered,'" id. at 678 (quoting Salinas v. United States, 522 U.S. 52,

56 (1997)). The Court saw this conclusion as consistent with the

language of the statute, which "indicates that Congress viewed many

federal assistance programs as providing benefits to participating

organizations," as well as "Congress' expansive, unambiguous intent to

ensure the integrity of organizations participating in federal

assistance programs." Id. at 678. The Court set out the following

test:

To determine whether an organization participating in a
federal assistance program receives "benefits," an
examination must be undertaken of the program's structure,
operation, and purpose. The inquiry should examine the
conditions under which the organization receives the federal
payments. The answer could depend, as it does here, on
whether the recipient's own operations are one of the
reasons for maintaining the program.

Id. at 681.

The Court rejected the notion that Medicare payments made to

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the hospitals were compensation of the type excluded by § 666(c).7 In

addition to the fact that monies paid included sums to enhance the

hospitals themselves, Medicare placed conditions on recipient

hospitals, "unlike the case of a contractor whom the Government does

not regulate or assist for long-term objectives or for significant

purposes beyond performance of an immediate transaction." Id. at 680.8

The Court also rejected the contention that since the primary

beneficiary of Medicare was the individual patient, the hospitals could

not also be said to have received a benefit under the program. Id. at

7 Subsection (c) states: "This section does not apply to
bona fide salary, wages, fees, or other compensation paid, or
expenses paid or reimbursed, in the usual course of business."
8 A number of cases from other circuits, which preceded
Fischer, also support the proposition that, while purely
commercial payments made by the government "as a commercial
entity, such as payments for supplies or equipment," do not
constitute benefits under § 666, the mere presence of quid pro quo
does not preclude a finding of federal benefits. United States v.
Rooney, 986 F.2d 31, 33-34 (2d Cir. 1993) (holding that loan proceeds
received from the Farmers Home Administration constituted benefits);
see United States v. Copeland, 143 F.3d 1439, 1441 (11th Cir. 1998)
(holding that money paid to Lockheed Aeronautical Systems Company as
the prime contractor for the Department of Defense did not constitute
benefits under § 666); United States v. Marmolejo, 89 F.3d 1185, 1189-
91 (5th Cir. 1996) (holding that funds provided to a county jail, in
exchange for the jail housing federal prisoners, constituted benefits),
aff'd sub nom. Salinas v. United States, 522 U.S. 52 (1997). Those
cases distinguish purely commercial transactions from "monies
distributed through 'Federal programs,' for which there is 'a specific
statutory scheme authorizing the Federal assistance in order to promote
or achieve certain policy objectives.'" Rooney, 986 F.2d at 35
(quoting S. Rep. No. 98-225, at 369 (1984), reprinted in 1984
U.S.C.C.A.N. 3182, 3510); see Copeland, 143 F.3d at 1441-42; Marmolejo,
89 F.3d at 1190.

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677. Finally, the Court refused to endorse the notion that all that

was required for funds to constitute benefits under § 666 was to

establish that they came from a federal program. Id.

When we apply Fischer to this case, we conclude, and the jury

supportably could have so found, that the Institute payments that

Health Services received constituted benefits.9 The Institute10 monies

in this case were originally disbursed under a grant to the Puerto Rico

Department of Anti-Addiction Services. Anti-Addiction Services in turn

made a grant of a portion of these funds to the Municipality, which

then paid Health Services. Dubón acknowledges this money was "clearly

a grant intended to assist AIDS patients in Puerto Rico," and "may also

have been intended to assist the Commonwealth or the Municipality in

that it enabled these government entities to assist citizens with drug

addictions." Dubón questions, however, "whether the program under

which this money was paid was intended to aid or promote the well being

of [Health Services]." We point out that the Supreme Court in Fischer

only said that "[t]he answer [to the question of whether there are

9We thus need not decide the character of the Centers for Disease
Control or mass-media education project payments.
10The National Institute on Drug Abuse "supports over 85 percent
of the world's research on the health aspects of drug abuse and
addiction." National Institute on Drug Abuse, Welcome to the NIDA
Website, at http://www.drugabuse.gov/NIDAWelcome.html (last visited May
17, 2002). Part of its mission "is to ensure the rapid and effective
dissemination and use of the results of that research to significantly
improve drug abuse and addiction prevention, treatment, and policy."
Id. Distribution of funds is authorized under 21 U.S.C. § 1177 (1994).

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federal benefits under § 666] could depend . . . on whether the

recipient's own operations are one of the reasons for maintaining the

program. . . . Other cases may present questions requiring further

examination and elaboration of the term 'benefits.'" 529 U.S. at 681-

82 (emphasis added).

One of the Institute's goals in making grants is to "insure

care of good quality, in general community facilities." 21 U.S.C. §

1177(f).11 Under its contract with the Municipality, Health Services

was "the exclusive source of AIDS counseling and professional services

in San Juan . . . supplying AIDS services under a federally financed

11Congress has authorized the Secretary of Health and Human
Services, "acting through the National Institute on Drug Abuse,"
to make grants and "enter into contracts with individuals and
public and private nonprofit entities" in order to provide
"educational programs, technical assistance for the development,
demonstration, and evaluation of drug abuse prevention,
treatment, and rehabilitation programs," and in so doing to
"accord a high priority to applications for grants or contracts
for primary prevention programs." 21 U.S.C. § 1177(a). The
Secretary is to "require coordination of all applications for
programs." § 1177(c). Projects and programs for prevention and
treatment services are subject to specific requirements. They
should, "whenever possible, be community based, insure care of
good quality in general community care facilities . . . and be
integrated with, and provide for the active participation of, a
wide range of public and nongovernmental agencies,
organizations, institutions, and individuals." § 1177(f).
"[W]here a substantial number of the individuals in the
population served by the project or program are of limited
English-speaking ability[, they should] . . . utilize . . .
outreach workers fluent in the language spoken," and "identify
an individual who is fluent both in that language and English"
to provide guidance to individuals of limited English-speaking
ability. Id.

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program." Dubón-Otero, No. 97-091, slip op. at 10.12 Therefore, the

Institute would naturally intend its monies to assist Health Services

in providing AIDS care, much as Medicare monies assist hospitals in

providing patient care.

It makes no difference that Health Services received this

money indirectly. It is now well established that benefits under

§ 666 are not limited solely to primary target recipients or

beneficiaries. See Fischer, 168 F.3d at 1278 ("[T]he plain language of

§ 666(b) does not distinguish between an organization . . . that

receives 'benefits' directly under a federal program and an

organization . . . that receives 'benefits' as an assignee under a

federal program."); cf. Fischer, 529 U.S. at 677-78 ("Medicare operates

12The contract with the Municipality provides in pertinent
part that:

The Municipality must hire the services of a company
with personnel that has the experience and
professional knowledge necessary to design, establish,
direct and manage the AIDS program of San Juan . . .
. [Health Services] will utilize the equipment located
at the facilities provided by the Municipality . . .
. Epidemiological services will be provided in order
to establish a state of alertness of the disease as
well as counseling and treatment to the patients. The
epidemiological activities shall be coordinated with
the respective state and federal authorities. . . .
[Health Services] will establish an educational
program for the community in order to create public
conscience especially to high risk groups. . . . The
population at large will be educated regarding
prevention of AIDS and the different methods of
transmission.

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with a purpose and design above and beyond point-of-sale patient

care."). Health Services' contract with the Municipality contemplated

a relationship between Health Services and the United States

Government, and those operating federal assistance programs like the

Institute are well aware that recipients of program funds use subgrants

and subcontracts to further effectuate the program's goals. Lawrence

Poole, a grants manager for the United States Department of

Health and Human Services,13 testified that "a grant award [that]

is issued by an agency could and does in fact translate into

subcontracts or subgrantee relationships with other

organizations." Poole further testified that Health Services

received federal funding as a subgrantee for the years of 1988

and 1989, and that "the requirements for each subgrantee or

subcontract relationship are subject to the same requirements

for accountability of federal funds and terms of the award as

the actual grantee recipient of federal funds." We conclude that

if the payments in Fischer were "made not simply to reimburse," 529

U.S. at 679, then neither were the payments here.

13The Department of Health and Human Services encompasses
the National Institute on Drug Abuse. Mr. Poole described his
duties as administering individual discretionary grant programs
geared primarily toward provision of health care in United
States territories. He had been with Health and Human Services
approximately thirty years and was very familiar with their
federal grant programs.

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 III.

Dubón and Garib argue that the district court erred in

denying their motions for acquittal for insufficient evidence.

Pointing to the fact that the indictment charged them with conspiring

to steal from Health Services, they assert the Government did not prove

the crucial element of lack of consent of the corporation. They cite

United States v. Burbank for the proposition that there can be no theft

where "[n]o evidence [is] presented by the government to show that the

transactions were not authorized by the corporation." 848 F.2d 453,

454 (4th Cir. 1988).14 They contend Health Services' shareholders and

board of directors consented to the transactions at issue and therefore

there was no theft.

In reviewing a challenge to the sufficiency of the evidence,

"[t]he verdict of a jury must be sustained if there is substantial

evidence, taking the view most favorable to the Government, to support

it." Glasser v. United States, 315 U.S. 60, 80 (1942); see United

14Because we ultimately conclude that there was sufficient
evidence for the jury to find a lack of valid authorization,
Appellants' Burbank argument need not detain us. We have
serious concerns about some of the broad language in Burbank,
but it suffices to say that while it is one thing to decide that
the consent of sole or co-owners can preclude conviction for
interstate transport of stolen money (as was the case in Burbank
under 18 U.S.C. § 2314 (2000)), it would be quite another to
extend that holding to this case involving a conspiracy to
embezzle or steal funds from an organization receiving funds
from the federal government, especially given the attendant
complexities of 18 U.S.C. § 666.

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States v. Mena-Robles, 4 F.3d 1026, 1031 (1st Cir. 1993) (stating that

the issue in a sufficiency challenge is "whether the evidence and

reasonable inferences therefrom, taken as a whole and in the light most

favorable to the prosecution, would allow a rational jury to determine

beyond a reasonable doubt that the defendants were guilty as charged").

The Government presented evidence that between 1987 and May

1991 Dubón received $10,000 per month from Health Services as a legal

retainer, although Health Services' board of directors had authorized

a retainer of only $5,000. Someone had tampered with the original

board minutes to show authorization for a monthly retainer of $10,000,

allowing Dubón to funnel the additional $5,000 per month to Kourí.

Specifically, the director of the word processing center where the

minutes were transcribed testified that the original page of the

minutes setting forth the retainer as $5,000 was replaced in another

set of minutes with a page showing the retainer as $10,000. The page

showing the retainer as $10,000 was a different consistency than the

rest of the minutes and was not produced at the same word processing

center. Corcino testified the additional $5,000 was going to Kourí to

pay Kourí's home rent and credit card bills. Corcino further testified

that Kourí could not be on Health Services' payroll because Kourí was

under contract with the Harvard Institute for International

Development, which in turn had a contract directly with the

Municipality of San Juan.

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 The Government also presented evidence that Garib employed

a personal housekeeper, as well as a secretary for his private

practice, using Health Services' money. Corcino, Health Services'

comptroller, testified that for a long time he was not aware that

Health Services was paying for a private secretary and personal

housekeeper for Garib, and that in his opinion such payments

constituted an unauthorized diversion of Health Services funds for

personal use. The housekeeper testified that the signature on the

timesheets bearing her name was not hers. The secretary testified that

while she was paid by Health Services, ninety-nine percent of her time

was spent on tasks related to Garib's private practice.

Finally, there was evidence at trial that Appellants also

used Health Services assets to purchase political support, which Health

Services was dependent upon for its funding. Before the San Juan

mayoral election of 1988, Garib allegedly loaned a $19,000 video camera

to one of the candidates, Jose Granados-Navedo. The camera had been

purchased with a Health Services check. Garib and Kourí later met with

Granados to discuss Health Services providing other financial support

for his campaign.

To generate more cash, Garib, Sotomayor, and Corcino then met

with Antonio Fernandez, the owner of IMA Productions, and presented him

a Health Services check made out to IMA in the amount of $60,000 and

signed by Garib and Sotomayor. Only some of this money was intended to

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pay for services performed by IMA. Garib asked Fernandez to endorse

the check and cash it--or else write separate IMA checks payable to

other persons who had not rendered services--so Garib could recover the

excess in cash. Garib explained Health Services had an urgent need of

cash to make certain payments that it could not make by company check.

When Fernandez refused to participate, Garib stated that he had solved

the problem in another way. Garib later met with Granados and gave him

a box containing more than $100,000 in cash.

Granados lost the election. After the new administration

assumed office, payments on the AIDS contract were delayed. Kourí

later told Corcino that he had taken care of the problem by arranging

for $5,000 a month to be paid to the candidate who had won the

election, Mayor Hector Luis Acevedo, and $5,000 to the Director of the

Health Department of the Municipality, Dr. Freddie Borras. Regular

payments by the Municipality on the AIDS contract then resumed. The

$10,000 monthly payments were raised by cashing Health Services checks

issued to persons who had performed no services. Several of these

checks were signed by Garib and Dubón. Dubón's law firm was also

involved in cashing a series of these Health Services checks at Dubón's

direction, with at least one of the checks being issued to Dubón's son,

who had performed no services. Toward the end of 1990 Dubón told

Corcino, "I am not going to sign for that [expletive] any longer." He

did not, however, object to the continued diversion of the funds.

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 Viewing this evidence in the light most favorable to the

Government, as we must, we conclude that a rational jury could find

beyond a reasonable doubt that Dubón and Garib were participants in a

conspiracy to use Health Services funds to pay personal expenses and

make political payoffs as charged in the indictment. The evidence of

informal alterations of the board minutes as a means to funnel funds to

Kourí, of the apparent use of a forged signature to divert Health

Services' funds to pay for Garib's personal housekeeper, of the use of

a Health Services' employee to do work almost exclusively for Garib's

private practice, and of the clandestine efforts to turn Health

Services checks into cash are all evidence from which a jury could find

that defendants "without valid authority" embezzled, stole, or obtained

by fraud money or property.

IV.

Dubón and Garib challenge a number of the district court's

decisions regarding jury instructions. We address each in turn,

recognizing that when alleged errors involve particular instructions'

adequacy in explaining the law, as they do here, "[w]e must look at the

entire charge, in light of the evidence, and determine whether, taken

as whole, the court's instructions fairly and adequately submitted the

issues in the case to the jury." United States v. Woodward, 149 F.3d

46, 69 (1st Cir. 1998).

A.

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 The district court denied defendants' requested jury

instructions, including instructions which required the Government to

prove that the actions of defendants were designed to "cheat Health

Services," that Health Services was the "victim," and that

authorization by Health Services was thus a defense.15 Instead, the

district court instructed the jury that it was sufficient to find that

the funds at issue were "something of value in excess of $5,000 in

connection with federal funding" and "under the care, custody or

control" of Health Services.

We conclude the district court did not err in its

instructions to the jury. The district court instructed that theft

involved taking property without authority and that embezzlement

15One of the requested instructions said that "to act with
intent to defraud means to act knowingly with the intent or the
purpose to obtain, deceive, or cheat [Health Services] out of
money or property." There was also a request to instruct the
jury that

The government must prove beyond a reasonable doubt
that [Health Services] did not authorize the
expenditure. One of the ways by which a corporation
can authorize a payment is by the board of directors.
If the board of directors of Advanced Community Health
Services authorized an expenditure, then this
expenditure was not theft or embezzlement.

Other instructions were requested, but since they all embody
variations of the same theme as the ones above, we need not set
them all out.

-23-
involved taking property under one's control belonging to another.16

Its further instructions that there was a crime if the money or

property stolen "was owned by or was under the care, custody, or

control of [Health Services]," was proper in light of our discussion

above in Part I. The instructions taken as a whole fairly and

adequately informed the jury of the applicable law.

B.

Dubón and Garib argue the district court erred by refusing

to instruct the jury on the requested definition of federal benefits.

We have already set out the applicable law as to what constitutes

federal benefits under § 666 in Part II above.

Dubón and Garib requested the following instructions: (1) Not

every payment by the federal government to an organization constitutes

16 The district court instructed:

Embezzlement is the fraudulent appropriation of
property with [sic] one properly entrusted with its
possession.
It is to willfully convert to one's own use,
without authority, another's money and property, of
which the wrongdoer acquired possession validly, of
[sic] some office, employment or position of trust.
Theft, also known as larceny, is the act of
stealing or taking of property without the owner's
consent. It is the fraudulent taking of personal
property for [sic] money belonging to another from his
possession or from the possession of some person
holding the same for him without his consent, with an
intent to deprive the owner of the value of the same
and to appropriate it to the use or benefit of the
person taking it.

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federal "benefits" as required by the statute; (2) Federal money paid

to a private corporation as payment of fees for services already

rendered by the corporation does not qualify as federal benefits; (3)

Payments made by the federal government to a private corporation as

part of an ordinary commercial transaction do not qualify as federal

benefits; (4) Money paid to a corporation is a federal benefit if the

corporation was required to "administer" the money under an agreement

with the government or to "disburse" the money to others. The district

court, meanwhile, tracked the statutory language in instructing the

jury.17 Cf. United States v. Paradies, 98 F.3d 1266, 1289 (11th Cir.

1996) (concluding there was no plain error in district court's failure

to instruct on an element of § 666, where the instructions "tracked the

statutory requirements" and the evidence at trial was sufficient for a

jury to find the element in question satisfied).18

17The district court instructed the jury that in order for
them to return a guilty verdict, Health Services must have
received

in any one-year period benefits in excess of $10,000
under a federal program involving a grant, a contract,
a subsidy, a loan, a guarantee, insurance or other
form of federal assistance. This section [666] does
not apply to bona fide salary, wages, fees, or other
compensation paid, or expenses paid or reimbursed in
the usual course of business.

The district court reiterated this element of § 666 later.
18Dubón and Garib cite Marmolejo, 89 F.3d at 1189, for the
proposition that "[t]he plain language of § 666 is ambiguous in
defining 'Federal Program' and 'Federal Assistance,'" and

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 We conclude the first three of the requested instructions

were adequately covered by the district court when it instructed the

jury that "legitimate, valid, bona fide salary, wages, fees, or

other compensation paid or expenses paid or reimbursed in the

ordinary course of business" did not constitute benefits. As to

the fourth requested instruction, Dubón and Garib direct us to no

authority supporting such a definition of federal benefits under § 666,

nor do we believe that such is a complete statement of the law in this

respect.19 We cannot conclude that there is error in refusing an

offered instruction where we are left to speculate as to an appellant's

legal underpinning for the proposed instruction. One may argue that

United States v. Rooney, 986 F.2d 31 (2d Cir. 1993), provides some

support. In that case the Second Circuit stated that "[i]n each of the

therefore more was required than mere recitation of the
statutory language. However, there can be little doubt that the
National Institute on Drug Abuse (which we have concluded is the
source of the federal benefits at issue here) is a federal
assistance program. Thus, even if we were to find error in the
district court's failure to define "federal program" and
"federal assistance" in its instructions, such error would be
harmless. See Bastien v. Goddard, 279 F.3d 10, 16 (1st Cir.
2002) (instructional error "entitles appellant to a new trial on
his claim only if it had a prejudicial effect").
19 Garib acknowledges the requested instructions were
written "so that the jury could differentiate between the
payments Health Services received in 1989 (which were not
'benefits'), and the federal grants it received after February
1991 (which were 'benefits')." Since we have already concluded
that Health Services did receive benefits in 1989, the requested
instructions buckle under their own weight.

-26-
cases [enumerated by the Senate Report to illustrate situations § 666

is intended to include], the organization . . . provided the Federal

government with a service by administering a government program." Id.

at 35 But that discussion of legislative history was dictum, since the

court there had already concluded that benefits were present on the

basis of § 666's statutory language. Id. at 34. More importantly, a

court's refusal to instruct in the language of an appellate opinion

does not justify reversal. See Kent v. Smith, 404 F.2d 241, 244 (2d

Cir. 1968) ("[I]t is generally not helpful to take quotations from the

opinions of appellate courts, that were never intended to be used as

instructions to juries, and submit these in the form of requests to

charge.").

We are aware that the Supreme Court in Fischer stated that

"[t]o determine whether an organization participating in a federal

assistance program receives 'benefits,' an examination must be

undertaken of the program's structure, operation, and purpose." 529

U.S. at 681. The record before us demonstrates that evidence was

before the jury relevant to these issues, and the district court, in

ruling on the motion for acquittal, expressly analyzed these issues.20

20 The district court stated:

Defendants' requests are premised upon their enduring
contention that federal money paid to a private
corporation which performs a service for the
government can not constitute federal benefits.
We have disagreed, and continue to disagree,

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The district court did not err in instructing the jury in this respect.

C.

Dubón and Garib argue that the district court erred by

refusing to instruct the jury that it could only return a verdict of

guilty on the basis of conduct occurring after Health Services first

received federal benefits. The requested instruction stated:

An expenditure that occurred before [Health Services] ever
received any federal benefits is not a violation of 18
U.S.C. section 666. The government must prove that the
defendant agreed to an unauthorized expenditure or
expenditures that occurred after [Health Services] received
federal benefits. Therefore, if the defendant agreed only
to an expenditure or expenditures occurring before Health
Services received any federal benefits, you must find the
defendant not guilty of count 1.

with such a contention. To summarize, we find that
[Health Services] was not in a purely commercial
relationship with the federal government. First, the
contract between the Municipality of San Juan and
[Health Services] provided that [Health Services] was
to be the exclusive source of AIDS counseling and
professional services in San Juan and that the
Municipality maintained administrative and supervisory
roles over [Health Services]. This fact alone clearly
indicates more than a commercial relationship.
Moreover, we find that the contractual relationship
itself is a form of a federal assistance, supplying
AIDS services under a federally financed program. See
United States v. Copeland, 143 F.3d 1439, 1441 (11th
Cir. 1998) ("[O]rganizations engaged in contractual
relationships with the federal government would fall
within the scope of [section 666], if those
'contractual relationships constitut[ed] some form of
Federal assistance.'") (internal citations omitted).
We instructed the jury accordingly.

Dubón-Otero, No. 97-091, slip op. at 10-11.

-28-
The district court denied this request.

The relevant statutory language states: "[T]he circumstance

[that must exist for there to be a federal crime] is that the

organization . . . 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." § 666(b). The statute further defines one-year period as

"a continuous period that commences no earlier than twelve months

before the commission of the offense or that ends no later than twelve

months after the commission of the offense. Such period may include

time both before and after the commission of the offense." §

666(b)(5).

Garib now argues the instruction given by the district court

allowed the jury to return a guilty verdict on the basis of conduct

occurring before Health Services received any federal money at all,

much less federal benefits.21 For instance, the jury could have found

Garib guilty on the basis of conduct occurring only in 1988 (before

Health Services received any federal monies), added twelve months to

get into 1989 (when Health Services received over $10,000 in federal

funds), and thus satisfied the instruction. Garib argues federally

21Because Dubón's conduct all involved 1989, and because we
have already concluded that there was indeed sufficient evidence
for the jury to find that Health Services had received federal
benefits in 1989, we only need to consider this argument as it
pertains to Garib.

-29-
criminalizing his 1988 conduct in that way would exceed the

government's authority under the Spending Clause of the United States

Constitution, U.S. Const. art. I, § 8, cl. 1. See Fischer, 529 U.S.

at 689 (Thomas, J., dissenting) ("We have held that the spending power

requires, at least, that the exercise of federal power be related 'to

the federal interest in particular national projects or programs.'")

(quoting South Dakota v. Dole, 483 U.S. 203, 207 (1987)); United States

v. Zwick, 199 F.3d 672, 687 (3d Cir. 1999) ("Applying § 666 to offense

conduct, absent evidence of any federal interest, would appear to be an

unconstitutional exercise of power under the Spending Clause.").

In support of his contention that the jury could have found

him guilty based solely on 1988 conduct, Garib points to the

Government's argument to the jury in summation:

And you will recall that Mr. Poole testified that on January
10 of 1989, federal funds were received through that grant.
And you will recall that that grant was in excess of
$10,000. And why is that date important? Because, as the
judge will instruct you on what the law is for federal
program fraud, the government has to prove that $10,000 were
received in any one calender [sic] year period either before
or after the commission of the offense. And if you take the
date of January 10th of 1989 and go back one year, it takes
you to January 10th of 1988, close to the date on which
[Health Services] was created.

Garib and Dubón requested a special verdict that would have required

the jury to identify what conduct it was basing its verdict on, but the

Government objected, and the district court did not submit a special

verdict form.

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 The Government responds that the indictment charged a

conspiracy beginning in 1989 and that the jury was instructed

accordingly. It argues the 1988 conduct was only presented to show the

existence of a conspiracy. It further argues that even if 1988 conduct

was a basis for the jury's verdict, there in fact was federal interest

in the form of pending contracts. Finally, the Government argues any

error was harmless because the jury found that a conspiracy existed,

that Dubón's conduct occurred in 1989, and that Garib, as a co-

conspirator, was responsible for that conduct.

We conclude there was no error. To begin with, the

instruction requested by Dubón and Garib was not a correct statement of

the law, because what the Government had to prove was that the

defendants agreed to join a conspiracy to steal from Health Services

and that an overt act in furtherance of that conspiracy occurred after

§ 666 became applicable. The requested language was simply too narrow.

Most importantly, however, the district court's instructions as to the

scope of the indictment properly limited the jury:

So let's now talk about conspiracy. For you to find a
defendant guilty of conspiracy, you must be convinced that
the government has proved each of the following elements
beyond a reasonable doubt.
First, that between in or about January of 1989
up to and including February of 1994, the agreement
specified in the indictment and not some other agreement or
agreements existed between at least two of the defendants
charged in the indictment; and second, that the defendants
Luis Dubon and Jorge Garib each willfully joined in that
agreement; and third that at least one of the conspirators
committed at least one overt act in the an [sic] effort to

-31-
 further the purpose of the conspiracy.

(Emphasis added.)

As for the Government's argument to the jury in summation,

it was not the subject of a timely objection and we will not say it was

plain error to permit it.22 See Chute v. Sears Roebuck and Co., 143

F.3d 629, 630 (1st Cir. 1998) ("[T]he court of appeals will consider a

forfeited objection only if an error was committed, if the error was

'plain' (i.e. clear under current law), if the error was prejudicial,

and if review is needed to prevent a miscarriage of justice.") (citing

United States v. Olano, 507 U.S. 725, 733-37 (1993)).

V.

Garib challenges his perjury conviction. See 18 U.S.C. §

1623 (imposing punishment on anyone who, under oath in any proceeding

before any grand jury, knowingly makes any false material declaration).

Garib's perjury charge stems from testimony he gave before the grand

jury. As part of that testimony he denied giving political

22Garib also points to the district court's reimbursement order
following the conviction as evidence of the district court's alleged
confusion on this issue. In that order, the district court required
Garib to repay the federal government for losses it incurred as a
result of Garib's conduct in 1988. Even if we were to agree that the
reimbursement order suggests a misunderstanding of the law on the part
of the judge, it does not invalidate the judge's instructions. The
judge need not be correct in his reasoning, so long as he was correct
in his decision being challenged on appeal. See Helvering v. Gowran,
302 U.S. 238, 245 (1937) ("In the review of judicial proceedings the
rule is settled that if the decision below is correct, it must be
affirmed, although the lower court relied upon a wrong ground or gave
a wrong reason.").

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contributions, or loaning a video camera, to Granados. He also denied

asking Fernandez to sign a $60,000 check so Garib could generate cash.

Garib now argues he was denied a fair trial on his perjury charge for

two reasons. First, he argues that by improperly instructing the jury

as to § 666's "one-year-period" and Health Services' authorization

defense, the court effectively directed a verdict as to materiality.

Because we have concluded above that the district court's instructions

on these matters were not improper, Garib's argument on this first

point must fail. Second, Garib argues the district court's

instructions as to perjury removed the Government's burden of proving

the falsity of the statements at issue. The district court instructed

the jury that:

In order to sustain its burden of proof for the purpose of
making a false declaration before the federal grand jury as
charged in Count Thirty-five of the indictment, the
government must prove the following four essential elements
beyond a reasonable doubt. One, that the defendant Jorge
Garib gave testimony under oath before a federal grand jury;
number two, that the defendant Jorge Garib made the false
material statement as detailed in the indictment during that
testimony; three, the defendant Jorge Garib knew that the
statements were false when he gave the testimony; and four,
that the statement or representation was material, meaning
that it had a natural tendency to influence or was capable
of influencing a decision or an action, whether or not it
actually influenced or deceived anyone. I also instruct you
that truth is a defense to perjury.

(Emphasis added.) We see no error in the district court's instructions

because they adequately covered the Government's burden of proof. See

United States v. Watson, 623 F.2d 1198, 1204 (7th Cir. 1980) (upholding

-33-
similar instruction).23

VI.

Finally, Dubón and Garib challenge the makeup of their jury

and the appointment of the interim United States Attorney.

A.

Dubón and Garib argue that their right, as criminal

defendants, to a petit jury selected from a fair cross-section of the

community, see Taylor v. Louisiana, 419 U.S. 522, 528 (1975) ("the

selection of a petit jury from a representative cross section of the

community is an essential component of the Sixth Amendment right to a

jury trial") (citing also 28 U.S.C. § 1861), is denied in Puerto Rico

by the exclusion of potential jurors who are not proficient in English-

-an exclusion which they allege systematically excludes the poor. We

previously held a similar challenge to be unavailing in United States

v. Benmuhar, 658 F.2d 14 (1st Cir. 1981). Dubón and Garib seek to

distinguish Benmuhar as having been decided in part upon the absence of

any viable alternative, while here they suggested simultaneous

translation. However, we stated in United States v. Flores-Rivera,

23Garib raises three other arguments, which we conclude are
without merit. As phrased in his brief, they are: "The District
Court's Flawed Instructions On § 666 Propelled The Prosecutor To
Argue That Dr. Garib Had A Motive To Lie To The Grand Jury";
"The District Court's Endorsement Of The Flawed Theory Of
Prosecution Invited The Prosecutor To Assail Dr. Garib's
Character And Prejudice His Right To A Fair Trial"; "The
Cumulative Effect Of The District Court's Errors Deprived Dr.
Garib Of A Fair Trial."

-34-
that it is "the overwhelming national interest served by the use of

English in a United States court," which "justifies conducting

proceedings in the District of Puerto Rico in English and requiring

jurors to be proficient in that language." 56 F.3d 319, 326 (1st Cir.

1995) (quoting United States v. Aponte-Suarez, 905 F.2d 483, 492 (1st

Cir. 1990)). This justification is independent of the presence or lack

of any viable alternatives. Accordingly, we reject Appellants'

contention.

B.

Dubón and Garib challenge the appointment of interim United

States Attorney Guillermo Gil as statutorily and constitutionally

defective. As Appellants themselves recognize, this issue has been

definitively resolved in the Government's favor. United States v.

Hilario, 218 F.3d 19, 22 (1st Cir. 2000).

VII.

Accordingly, we affirm.

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