REVISED, JANUARY 25, 2001
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 99-20188
_______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BEN T. REYES; ELIZABETH MALDONADO,
Defendants-Appellants.
_________________________________________________________________
Appeals from the United States District Court
for the Southern District of Texas
_________________________________________________________________
January 23, 2001
Before DUHÉ and PARKER, Circuit Judges, and FOLSOM,* District
Judge.
DAVID FOLSOM, District Judge:
After a three-month-long trial, Appellants-Defendants Ben T.
Reyes and Elizabeth (“Betti”) Maldonado (hereinafter “Reyes” and
“Maldonado” respectively) were convicted of bribery and
conspiracy to commit bribery and Reyes of mail fraud. Reyes and
*
District Judge of the Eastern District of Texas,
sitting by designation.
Maldonado appeal their convictions and the sentences that
followed. We find no error as to either defendant and therefore
affirm the district court’s rulings in all respects.
I. FACTUAL BACKGROUND
In August 1995, the FBI instituted a sting operation in
connection with its investigation into allegations of official
wrongdoing by Houston city councilman Ben Reyes. The allegations
centered on charges by Berta Flores--Reyes’s “political enemy”
and a paid informant to the FBI--that Reyes had received
kickbacks on city contracts. The centerpiece of the FBI’s
operation was a fictitious corporation dubbed the “Cayman Group.”
The Cayman Group was purportedly interested in investment
opportunities in hotels, resorts, and real estate. It was also
represented that the company was comprised of wealthy, Hispanic
foreign nationals and was based in South America. The FBI made
one of its agents, Robert Dogium, president; Julio Molineiro, a
paid confidential informant, agreed to act as a representative
for the company.1 The account of the sting operation that
follows is largely undisputed.
A. Reyes’s
Initial Involvement
with the Cayman Group
1
Agent Dogium’s undercover name was Marcos Correa.
Molineiro’s was Carlos Montero.
2
First contact between the Cayman Group and Reyes occurred
August 1, 1995, when Molineiro and Reyes met at Reyes’s district
office. The meeting, like most during the operation, was
recorded. Molineiro stated that the Cayman Group was looking for
opportunities to invest in hotels, resorts, and the like. Reyes
referred Molineiro to his brother, Gregg, who, Reyes said, had in
the past received $20 million in city contracts. Reyes also
introduced Molineiro to a second brother, Tony, who likewise had
been successful in obtaining city contracts.
On August 16, Gregg, along with Tony, met with Molineiro.
The three discussed the city’s plan to build a hotel adjacent to
the downtown convention center (the “hotel project”). Gregg
explained that one of the bidders on the project, Wayne
Duddlesten, had submitted a plan that called for ethnic minority
financing (the “Duddlesten plan”). Gregg urged Molineiro and the
Cayman Group to consider the project “carefully.” The next day,
Gregg touted Reyes’s ability to push business through the city
council. Gregg noted, however, that Reyes’s assistance came at a
price: “It’s not free, that’s what Ben says.” Gregg requested
that Molineiro keep their conversations “very confidential.”
Later that day, Reyes confirmed that he expected to receive a fee
from the developer that won the hotel project.
On August 23, Gregg called Molineiro to confirm the Cayman
Group’s interest in the hotel project. The next day, Molineiro
asked whether Reyes was committed to any other bidders, “or is he
3
going to get the contract for us?” Gregg responded: “For us!
For us! Because, well, he’s going to be part of this.” On
August 25, Tony emphasized that the Cayman Group’s involvement in
the hotel project would be a joint venture, involving “myself,
you, . . . Ben, and Gregg.” Tony, however, cautioned Molineiro
that Reyes “has to be careful . . . [because] it’s a conflict of
interest.” At the same time, though, Tony emphasized that “it’s
almost certain [that Reyes] can get the deal.” On September 7,
regarding Reyes’s involvement in the hotel project, Tony stated
that Reyes’s “expenses are included there in several areas. . . .
We have always asked between forty-five and fifty percent. Let’s
say fifty. I, Ben, and Gregg are going to be included in the
fifty.”
On September 13, Tony asked Molineiro to meet him the next
day. Tony said the meeting was needed to discuss “something very
urgent” but explained that he would “rather not talk too much
about this on the phone.” The next day, Tony provided Molineiro
with a letter expressing interest in the hotel project and asked
him to send it to Duddlesten. Tony explained that it was Reyes
“who is asking for this.” Tony said the letter was drafted by a
friend of Reyes’s who is a consultant to Duddlesten. Tony also
recommended that the Cayman Group change its name but cautioned
that, whatever name was chosen, it must not suggest a conflict of
interest. Tony explained that if the Reyeses’ interest in the
4
hotel project were exposed, “we’ll lose Ben’s vote. So we don’t
want to do that.”
Before the September 14 meeting ended, Tony urged Molineiro
to send the letter to Duddlesten by the following day. Molineiro
responded that he had to confer with his associates first. Tony
called Reyes to explain that the letter might be delayed. Reyes
insisted that if the letter was not sent by the next day, the
opportunity to invest in the hotel project might be lost. Tony
decided he would send the letter himself, an idea Reyes said
would be “a good way for [Duddlesten] to see that we’re working
on it.”
Molineiro had several times invited Reyes and his family to
Florida to meet with a partner in the Cayman Group. On September
23, Reyes, his son, and Tony flew first-class to Florida on
tickets purchased by the Cayman Group. The Reyeses’ lodging at a
Florida resort was also paid by the Cayman Group. Reyes and Tony
met with Molineiro, Agent Dogium, and a second FBI agent, Len
Carey. The five discussed the opportunity presented by the
Duddlesten plan. Like he had before, Tony warned that Reyes’s
interest could not become public; further, Reyes himself said
that he could not be part of the deal because of his position on
the city council. The last day of the trip, however, Tony
backpedaled: he told Molineiro that Reyes expected to be paid for
his work on the project but that he felt uncomfortable admitting
as much in front of Carey. Later, with Reyes present, Tony again
5
asked Molineiro to change the Cayman Group’s name. Tony also
explained that he and Reyes had selected a Houston representative
for the Cayman Group: “[W]e already have a Hispanic lawyer who’s
very smart . . . [and] a trustworthy friend. . . . He’s going to
be your partner in this.” The lawyer, Isaias Torres, was
described as Reyes’s “political friend.” Reyes explained that
Torres would act as “the front.”
On October 5, Torres delivered to Duddlesten’s office the
September 14 letter Tony had provided Molineiro. The letter
represented that Torres was the Cayman Group’s agent; instead of
“Cayman Group,” however, the company was referred to as the
“Latin American Enterprise Group.” On October 19, Torres
attended a city council meeting, the purpose of which was to
discuss the competing bids for the hotel project. Torres’s
attendance was at the invitation of Duddlesten, who had
previously written Torres about the meeting. Reyes in his
capacity as a city councilman was also present at the meeting.
Though he never revealed that he might have an interest in the
Duddlesten plan, Reyes asked a number of questions about the
competing bids. In a letter dated October 31, Duddlesten thanked
Torres for his support, promised to keep in touch, and enclosed a
number of documents concerning the Duddlesten plan.
On November 3, Tony declared to Molineiro that he would no
longer participate in the hotel project: “I told Ben, well, if
you want to be in charge, you be in charge. . . . I’m going to
6
retire from all of this.” Reyes confirmed Tony’s departure to
Molineiro: “I want you to call me directly. . . . From now, we’re
going to handle it straight.” Reyes said that, henceforth, he
was “going to get completely involved” in the effort to secure a
piece of the hotel project for the Cayman Group. Shortly
thereafter, Reyes told Dogium that he was interested in investing
in real estate purchased at auction; he suggested that the two go
in together, each putting up $50,000. Reyes stated that such an
investment would be “my private business” and that it “has
nothing to do with the city.” The two agreed to discuss the
matter later.
On November 6, Reyes met Dogium at the Cayman Group’s
offices. Dogium expressed concern that a Duddlesten competitor
might win the hotel project because the competitor was making
larger contributions. Reyes explained the difference between
campaign contributions and cash payments and why the latter had
greater power to influence than the former: “You spend the cash
and it’s not accounted for. . . . These guys work day and night
for nothing. . . . And you are more on their side than any damn
checks that you could give them. Because they can’t even spend
those checks to eat.” Dogium agreed but expressed concern that
the cash reach its intended target, “so that no one is making an
ass out of me.” Reyes empathized with Dogium’s concern: Reyes
said that he too had been cheated by intermediaries.
7
Reyes then turned to the subject of the real estate venture
he had proposed before. Reyes said that the properties would
give him a “front” for any unexplained accumulation of wealth:
“Because cash, you can’t spend that, if you don’t have a front.”
But Doguim said that the Cayman Group was not interested in
Reyes’s proposal; however, if the money was for Reyes personally,
Doguim said, “that is the way I can help you.” Reyes responded
that he needed the money for two reasons: “One, for the
friendship . . . . And the other is [to] . . . start businesses
together.” Dogium agreed to give Reyes the money, and Reyes said
that he would continue his work for the Cayman Group.
The next day, November 7, Reyes called Molineiro several
times, looking for Dogium. Dogium eventually returned Reyes’s
call: “I’m . . . getting your package together for you,” Dogium
told Reyes. When Reyes again mentioned his idea to buy real
estate at auction, Dogium said, “that’s not mine, that is yours.”
On November 9, Dogium showed Reyes a writing intended to
memorialize Reyes’s receipt of $50,000 and their business
dealings generally. Reyes objected, stating that the money was
his private business and not related to the hotel project. At
the same time, though, Reyes explained how the properties would
effectively deflect questions about the income he expected from
the hotel project:
And then you can do me a favor when this other money
comes. . . . [Then, I will] be able to buy myself a
damn new car . . . or a suit . . . a very good suit . .
8
. and not have the damn people asking, “Where the hell
is that bastard getting that money from?” With a
hundred, two hundred houses . . . . [y]ou can cover
everything with that.
Reyes continued, rehearsing for Dogium what he planned to tell
anyone who questioned the source of his new-found wealth:
Look, you bastard, look. There are two hundred damn
properties here, and they bring me one-fifty, two-fifty
for each one every month. There it is, you bastard! .
. . I have a brand-new Mercedes. I have a half-
million-dollar home. Well, right, you bastard. There
it is. . . . It comes from these.
On November 17, Molineiro promised Reyes $50,000 in time for the
next auction.
On November 29, Reyes met with Molineiro at a Houston
restaurant; Reyes again asked for the $50,000. Reyes explained
that he did not “even have a damn nickel” for an upcoming trip to
Mexico and asked Molineiro for help. Molineiro gave Reyes $1000.
On December 1, Molineiro called Reyes with news that the “big
package” was ready. That day, at Molineiro’s apartment,
Molineiro told Reyes that the Cayman Group was pleased with
Reyes’s efforts: “They all think that you’ve done an excellent
job in helping us get a part of this hotel.” Molineiro then gave
Reyes a satchel containing $50,000 in fifty-dollar bills.
On December 13, Reyes faxed a letter to the Texas attorney
general marked “urgent message.” The letter asked the attorney
general to determine whether Duddlesten could take advantage of
certain tax benefits. The council had delayed its consideration
of the hotel project until the tax issue was resolved. On
9
December 15, the attorney general issued an opinion favorable to
Duddlesten. Reyes, describing his role in obtaining the opinion,
said to Molineiro, “that’s raw power, man.” Having performed a
service valuable to Duddlesten, Reyes suggested that they move to
secure the Cayman Group’s participation in the Duddlesten plan:
“Let’s squeeze this bastard[], Duddlesten[], because right now we
have him.”
B. Maldonado’s Involvement
Begins; Reyes Steps
Up His Efforts
On December 21, Reyes and Molineiro met together with Betti
Maldonado for the first time. Sometime before, Reyes and Ross
Allyn, Reyes’s former aide and at the time an advisor to
Duddlesten, had asked Maldonado to assist the Cayman Group with
the hotel project. Maldonado was a public relations specialist
and lobbyist, with a particular interest in issues affecting
Houston’s Hispanic community. Maldonado also served as a
commissioner for the Port of Houston and had experience working
on political campaigns. Before Maldonado arrived at the meeting,
Reyes told Molineiro that Maldonado was well-connected to the
city’s leadership and was a “very good friend.” Reyes also told
Molineiro that they would treat Maldonado “as if she were going
to do P.R. work for us now.” Reyes gave Maldonado $1500 when she
arrived and asked her to lobby certain city council members, the
Hispanic chamber of commerce, and the mayor’s office on behalf of
10
the Cayman Group. Maldonado agreed. Later that day, Reyes and
Maldonado, along with Torres, met over lunch. Neither Molineiro
nor Dogium were present and the meeting was not recorded.
Reyes’s city council term expired January 2, 1996. On
January 8, Reyes, Allyn, and Molineiro met at the Cayman Group’s
offices. The three dissected, member by member, the city
council’s projected vote on the hotel project. Allyn remarked
that they needed to “touch” Councilman Peavy; he said to Reyes,
“Ben, I really need you to work him.” Reyes added that
Councilman Yarbrough had requested a cash payment. The three
agreed that, among the council, John Castillo and Michael
Yarbrough were best to lead the effort for the Duddlesten plan.
Reyes then stated:
[W]e’re gonna go buy us some leaders. . . . ‘Cause
that’s what it takes, I mean . . . I never did it for
nothing. . . . The [guy] wants me to lead. . . . I
gotta get fed. I gotta pay the grocery bills. . . . I
never said I . . . ain’t no different than you and me!
Yeah, he helped me get elected, so what [about] now?
Before Allyn left, Reyes reminded everyone that “all this stuff
is just between us.” Then, with respect to Councilman Peavy,
Reyes told Molineiro, “I think . . . we promised him five. . . .
We’ll give him two-and-a-half, and we tell him once we’re done .
. . once we win, you’ll get the other two-and-a-half.” With
respect to Councilman Yarbrough, Reyes recommended $3000, half
paid before the vote, half after. Councilman Castillo, Reyes
said, should get a lump-sum payment of $3000.
11
On January 10, Reyes asked Molineiro to meet him and
Councilman Castillo at a Houston restaurant. Molineiro walked in
the restaurant and saw Castillo and Reyes together at the bar.
As he approached, Molineiro saw Reyes place an envelope in
Castillo’s pocket. Castillo promised to support the Duddlesten
plan and left. Reyes explained what had transpired:
I told him, “Look, our group is going to win, and
you’re going to win. . . . If I win, you will win. I’m
never going to forget you. . . . We know you have your
own problems, and everything. We’re going to help you.
This is a gift, eh?”
On January 11, Reyes told Molineiro he had scheduled a
restaurant meeting with Councilman Yarbrough for the following
afternoon. The next day, on the way to the meeting, Reyes took
an envelope containing $1500 from Molineiro’s briefcase and
placed it in his pocket. As he put the envelope in his pocket,
Reyes said, “I’m going to invite him [i.e., Yarbrough] to the
bathroom.” When they arrived at the restaurant, Reyes introduced
Molineiro and told Yarbrough, “in just a while we go to the
bathroom.” After the three ate, Reyes and Yarbrough went to the
men’s room together. Leaving the restaurant, Reyes said he gave
Yarbrough the money: “I told him, once we win, you’ll get another
package.” Reyes explained that he did not expressly mention that
Yarbrough would get cash because he did not want to “scare him.”
The next day, January 16, Reyes, Molineiro, and Dogium met
Councilman Peavy for breakfast. Before the meeting, Reyes
rehearsed what he planned to tell Peavy: “Look, two-and-a-half,
12
and then, once we win, you’ll get another two-and-a-half.” At
the restaurant, Reyes explained to Peavy that he was working to
get the city to accept the Duddlesten bid and that he needed
Peavy’s help. While Peavy and Dogium were alone at the table,
Molineiro handed Reyes an envelope containing $2500. Reyes then
turned to Peavy: “Let me talk to you a little bit.” The two left
for the men’s room, where Reyes said he gave Peavy the envelope.
Leaving, Peavy told Dogium and Reyes that they would talk again
before the vote, though Peavy did not expressly promise to
support the Duddlesten plan.
On January 18, Reyes met with Molineiro at the Cayman
Group’s office. Reyes related a remark Dogium made that Reyes
might have kept the money intended for Peavy. Reyes expressed
his dismay at Dogium’s comment:
[H]e did it like a joke. . . . [W]e are involved in a
serious business. . . . Look, . . . what I did there .
. . for that I can be sent to the damn jail for life,
and more than anything, it would screw up my career. .
. . [I]t’s not easy to do what I do.
Reyes told Molineiro, “we’ve been working our asses off,
Saturdays, Sundays, . . . and I’ve been taking packages to
the black guys so they will stay with us.” Reyes stated
that he was not certain whether Dogium could be trusted.
C. Maldonado’s
Involvement Grows
The day before, January 17, Betti Maldonado met with
Dogium and Molineiro to discuss her lobbying effort for the
13
Cayman Group. Maldonado explained which council members
were ripe for influence. Some council members, she said,
they’re real different than our Latinos. They are
like, “You tell me what’s in it for me first, and I’ll
vote on it.” . . . But our guys are like, “I gotta see
if it’s right first,” then they’ll vote on it. You . .
. can play with them more.
The next day, Molineiro noted that Yarbrough had already received
$1500 from the Cayman Group; Maldonado responded that Yarbrough
was “a very close friend of mine” and agreed to see if he wanted
more money.
On January 22, Maldonado again met with Molineiro and Dogium
at the Cayman Group’s office. Speaking of Felix Fraga, John
Peavy, and Wayne Duddlesten, Dogium said to Maldonado, “take care
of these three people.” At the same time, Dogium said he did not
want to make anyone feel uncomfortable by what he had asked of
Maldonado. Maldonado responded, “no, it’s not uncomfortable at
all.” She also described her relationships with various members
of the council: “[W]hen they deal with me, it’s more, ah--with
[Councilman] Yarbrough, okay, I can get away with more cause he
and I are friends--it’s very up-and-up, you know. I’ve never had
a relationship with them where I’ve done what Ben did.” But
Maldonado emphasized that she did not feel uncomfortable by what
Dogium had asked of her. Maldonado also predicted that Yarbrough
would support the Duddlesten plan, though she thought he was
going to “see how much [he] could get out of the deal.”
14
Maldonado arranged for Councilman Yarbrough to meet Dogium
at the Cayman Group’s offices January 24. Before she left to get
Yarbrough, Maldonado asked Dogium and Molineiro to increase her
compensation to $9000, plus a bonus if the Cayman Group was
successful. The three also discussed whether they ought to have
cash on hand for Yarbrough. Maldonado said, “with him, it’d
probably never hurt.” Maldonado returned to the Cayman Group’s
office with Yarbrough. Yarbrough and Dogium met in private, and
Yarbrough received another $1500 in return for his pledge to
support the Duddlesten plan. While Yarbrough and Dogium met,
Maldonado said Yarbrough told her that, like the other council
members, he too wanted to profit from the hotel project.
On January 31, the city council approved the Duddlesten plan
and authorized the legal department to enter into negotiations
with Duddlesten. After the vote, Reyes told Molineiro and Dogium
they should not give Councilman Peavy the promised second payment
because he failed to pledge his support in advance of the vote.
Dogium disagreed, stating that they should fulfill their
commitment to Peavy, and Reyes agreed to schedule a meeting.
Dogium met Peavy and Reyes at a Houston restaurant February 20.
When Dogium arrived, Reyes said, “John is ready to leave. . . .
He told me that you’re going to give him something. Do it right
now.” The three walked outside, where Dogium thanked Peavy for
his support and handed him an envelope containing $2500.
15
In early April, Dogium told Maldonado that Reyes had fallen
out of favor with the Cayman Group. Dogium informed Maldonado
that he wanted a provision in the hotel contract that would
secure the Cayman Group’s participation, and the two discussed
how to achieve this end. Dogium reminded Maldonado that his
influence over the council was unquantifiable: “I’m out a
significant amount, you know, we had cash disbursements to
council members that I can’t put on a piece of [paper].” “I
know,” Maldonado responded. Maldonado explained that she did not
know how much influence Dogium had over the council:
[S]ince before you guys, I don’t really know how much
they’ve--I can’t be naive about it either--how much
they actually get [in] cash stuff, you know, not on the
records? But I . . . was working on this other project
for this huge engineering firm and they were giving out
money like I’ve never seen before.
Maldonado suggested how she could help Dogium: “I’m very honest
with you. I’m going to tell you how you can get the most for the
least. . . . I’m never going to tell you, give just to give. I
know what you can get away with, with who.” Maldonado, however,
said she wanted to check with Reyes before she proceeded. On
April 12, Maldonado reported that Reyes had approved her plan to
secure contract language favorable to the Cayman Group.
On April 19, Maldonado told Dogium and Molineiro that she
would determine whether council members wanted additional
payments for their continued support: “I’m gonna just feel them
to see, . . . are they just . . . . gonna be interested ‘cause
16
it’s the right thing, or do they want something more. . . . [W]e
can start off by assuming that they’re all gonna want something,
if you want to do it that way.” On April 23, Maldonado told
Molineiro she had obtained commitments from council members
Yarbrough, Sanchez, Saenz, and Fraga. She explained that she had
not yet secured Councilman Castillo’s support and recommended
that they prepare a “package” for him.
On April 29, Maldonado told Molineiro she had scheduled a
meeting with Castillo that afternoon at a restaurant. Molineiro
responded that he would prepare an envelope for Castillio,
including a letter containing the needed contract language. As
Maldonado watched, Molineiro counted out $3000 and placed it in
an envelope. Molineiro suggested Maldonado show Castillo the
letter and then signal for the cash. At the restaurant,
Maldonado gave Castillo the letter; Molineiro left the table and
Maldonado handed the envelope of cash to Castillo, who placed it
in his portfolio.
The next day, April 30, Maldonado reported that the meeting
with Castillo had gone “very well.” She also told Molineiro that
she had scheduled a meeting with Councilman Fraga for the
following afternoon. Maldondado told Molineiro to prepare “two
grand” for Fraga because “he is in the process of reorganizing
his office and he’s hiring a consultant to . . . do that, and he
really, really needs it.” The next day, Molineiro gave Maldonado
an envelope containing $2000 and the requested contract language.
17
At the meeting, Fraga reviewed the language and expressed support
for the Cayman Group. When Maldonado tried to pass him the cash,
however, Fraga declined to accept it.
On May 1, Maldonado and Molineiro met Councilman Peavy at a
Houston hotel. The meeting was arranged by Maldonado the
previous day, and before the meeting, Maldonado and Molineiro
discussed how they would pass Peavy the payment. When the three
met, Peavy reviewed the contract language and stated that he
fully supported the Cayman Group. As he did before, Molineiro
got up from the table. Maldonado then offered Peavy the cash-
filled envelope, but he refused to take it.
Later that day, Maldonado expressed frustration over the
botched payments: “I have an intimate, friendly relationship with
these guys. But like I told you, I had never, ever dealt with
them that way. Never.” Maldonado contrasted her own experience,
however, with that of certain members of the council: “John
[Castillo] has already been in this forever, so it’s no big deal.
Michael [Yarbrough] is also . . . no big deal. . . . And really,
Peavy normally is no big deal. Normally.” Maldonado said she
should have paid Fraga and Peavy privately. The Cayman Group’s
office, however, would not work: “[T]hey don’t really know you
guys. What if you have a camera in there? . . . That’s what they
think. One of them already told me that!” The next day, May 2,
Maldonado was confronted by agents of FBI and agreed to cooperate
with their investigation.
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II. PROCEDURAL HISTORY
On July 30, 1997, an indictment was filed in the district
court as to Reyes, Maldonado, and four others.2 The indictment
charged Reyes with six counts: conspiracy to commit bribery;
accepting a bribe ($50,000 Dec. 1); making a bribe (three counts:
$3000 to Castillo Jan. 10; $1500 to Yarbrough Jan. 11; & $5000 to
Peavy Jan. 11 & 31); and mail fraud. Maldonado was charged with
three counts: conspiracy to commit bribery and two counts of
making a bribe ($1500 to Yarbrough Jan. 24 & $3000 to Castillo
Apr. 30). The named defendants were tried together to a jury
beginning March 10, 1998. On May 21, the district court declared
a mistrial, the jury being unable to reach a verdict.3 Reyes and
Maldonado were tried a second time--separate from their
codefendants--beginning September 16, 1998. Each moved for a
judgment of acquittal at the close of the government’s case-in-
chief, which the district court denied November 5. On December
14, the jury found Reyes and Maldonado guilty as to each charged
offense. Reyes’s and Maldonado’s motions for new trial were
denied shortly thereafter.
Sentencing was February 24, 1999. With respect to Reyes’s
and Maldonado’s bribery convictions, the district court
2
The indictment also named Ross Allyn, John Castillo,
John Peavy, and Michael Yarbrough.
3
The charges against Ross Allyn were dismissed by the
district court before jury deliberations began.
19
determined that a two-level upward departure was warranted for
conduct it deemed “systematic or pervasive.” The effect of this
departure raised Reyes’s offense level from 26 to 28 and
Maldonado’s from 20 to 22. Additionally, the district court
assigned Reyes two criminal history points for two prior
offenses. This adjustment raised Reyes’s criminal history
category from I to II. The district court sentenced Reyes to 60
months’ imprisonment for conspiracy to commit bribery and also
for mail fraud, and he received 108 months’ for each of his four
bribery convictions. All terms were designated to run
concurrently. Maldonado was sentenced to 51 months’ for each
offense, and her terms of imprisonment were likewise designated
to run concurrently. Final judgment was entered March 1, 1999,
and Reyes and Maldonado each made timely appeals therefrom.4
III. DISCUSSION
On appeal, Reyes argues that the district court erred in the
following ways: (1) in finding that there was a sufficient
connection between federal dollars and the charged criminal acts
under the federal bribery statute; (2) in finding that there was
sufficient evidence to support a conviction for mail fraud; (3)
in refusing to admit evidence of a May 4 conversation he had with
Maldonado; (4) in not finding entrapment as a matter of law; (5)
4
The remaining codefendants--Castillo, Peavy, and
Yarbrough--were tried together beginning March 29, 1999. On May
26, the charges against the three were dismissed by the district
court.
20
in not instructing the jury on positional predisposition; (6) in
departing from the sentencing guidelines for conduct it deemed
“systematic or pervasive”; and (7) in counting two prior
sentences as “separate” under the sentencing guidelines.
Maldonado joins Reyes as to all but (2), (3), and (7). Maldonado
also argues that the evidence is insufficient that she possessed
the requisite mental state for bribery or that she conspired with
anyone besides a government agent or informant to commit bribery.
Our jurisdiction to review these matters is conferred by 28
U.S.C. § 1291 (“final decisions of district courts”) and 18
U.S.C. § 3742 (“review of a sentence”).
A. Connection to
Federal Dollars
Reyes argues that his convictions under 18 U.S.C. § 666 for
federal programs bribery must be reversed because the government
failed to establish the required connection between the charged
criminal acts and federal dollars. Whether under § 666 the
requisite nexus between the criminal activity and federal dollars
exists is a question of law we review de novo. See United States
v. Westmoreland, 841 F.2d 572, 576 (5th Cir. 1988). Section 666,
entitled “theft or bribery concerning programs receiving Federal
funds,” provides, in relevant part:
(a) Whoever, if the circumstance described in subsection (b)
of this section exists--
(1) being an agent of an organization, or of
a State, local, or Indian tribal government,
or any agency thereof--
21
. . . .
(B) corruptly gives, offers, or
agrees to give anything of value to
any person, with intent to
influence or reward an agent of an
organization or of a State, local
or Indian tribal government, or
agency thereof, in connection with
any business, transaction, or
series of transactions of such
organization, government, or agency
involving anything of value of
$5,000 or more. . . .
. . . .
shall be fined under this title, imprisoned not more
than 10 years, or both.
(b) The circumstances referred to in subsection (a) of
this section is that the organization, government, or
agency receives, in any one year period, benefits in
excess of $10,000 under a Federal program involving a
grant, contract, subsidy, loan, guarantee, insurance,
or other form of federal assistance.
. . . .
18 U.S.C. § 666.
In United States v. Westmoreland, we said that § 666 “limits
its reach to entities that receive a substantial amount of
federal funds and to agents who have the authority to effect such
significant transactions.” 841 F.2d at 578. In that case, the
defendant was convicted of receiving kickbacks on purchases he
made for the county government. We upheld the conviction, noting
that the defendant “served as a county supervisor” and that the
county “received federal revenue sharing funds.” Id. at 575.
Later, in United States v. Moeller, 987 F.2d 1134 (5th Cir.
1993), we further delineated the reach of § 666, concluding that
the “particular program involved in the theft or bribery scheme
22
need not be the recipient of federal funds,” id. at 1137 (citing
United States v. Little, 889 F.2d 1367 (5th Cir. 1989)). There,
the defendants worked for the Texas Federal Inspection Service
(“TFIS”), an agency jointly supervised by the Texas Department of
Agriculture (“TDA”) and the United States Department of
Agriculture. The defendants were alleged to have improperly
awarded consulting contracts to supporters of candidates for TDA
commissioner. One defendant was an associate director of TFIS;
the other held various managerial positions. The district court
dismissed the indictment, concluding that TFIS did not receive
the statutory amount in federal benefits. On appeal, we
reversed, concluding that it was enough that the TDA, which in
part was responsible for TFIS, received the level of federal
funding required under § 666. Id. at 1137.
Applying Westmoreland and Moeller to the case at bar, we
conclude that the connection between federal benefits and the
charged conduct is sufficient to uphold Reyes’s convictions under
§ 666. It is not disputed that, during the relevant periods in
this case, three city of Houston departments received federal
funding in excess of § 666's statutory requirement: the Finance
and Administration Department; the Housing and Community
Development Department, including $28.5 million in fiscal year
1996; and the city legal department.5 Like the federally-funded
5
It is also not disputed that the Duddlesten plan, as
submitted to the city council, included a loan from the U.S.
23
TDA did with respect to TFIS in Moeller, the evidence in this
case shows that these same three city departments shared
responsibility for the hotel project: the legal department was
responsible for evaluating competing bids to develop the hotel;
the finance department was responsible for soliciting bids and
coordinating the process through which bids were considered; and
the housing and community development agency oversaw
revitalization and improvement of downtown Houston, wherein the
hotel project was planned. Further, like the county supervisor
in Westmoreland and the senior agency officials in Moeller, here
the charged criminal conduct related to city council members,
who, by voting up or down on bids, ultimately decide how federal
money will be spent.
Reyes argues that we should follow a line of cases decided
after the Supreme Court announced its opinion in Salinas v.
United States, 522 U.S. 52 (1997). In Salinas, the Court held
that to sustain a conviction under § 666 the government need not
show that federal dollars were directly tied to the alleged
bribery transaction. Id. at 58. The Court, however, declined to
detail the connection required under § 666 or even state whether
Department of Housing and Urban Development (“HUD”) for
approximately $35 million. As approved by the city council, the
HUD loan amounted to $16 million. Reyes argues that under § 666
the federal dollars must have been “received,” whereas the
federal dollars for the Duddlesten plan were merely designated.
We decline to address this argument in light of our conclusion
that other allocations of federal dollars are sufficiently
connected to the charged criminal conduct.
24
such a connection is required at all. Id. at 59.6 The two post-
Salinas cases that Reyes urges us to follow now--United States v.
Zwick, 199 F.3d 672 (3d Cir. 1999), and United States v.
Santopietro, 166 F.3d 88 (2d Cir. 1999)--enunciated a degree of
connectivity between the federal dollars and the charged conduct
perhaps more exacting than other recent cases, cf. United States
v. Dakota, 188 F.3d 663, 668 (6th Cir. 1999)(upholding a
conviction under § 666 where the defendant was alleged to have
received kickbacks on an Indian tribe’s lease of gaming machines
and the tribe, for purposes not specified by the court, received
yearly federal funds in excess of the statutory amount); United
States v. Grossi, 143 F.3d 348, 350 (7th Cir. 1998)(upholding a
conviction under § 666 where the defendant, a township
supervisor, received kickbacks for making distributions from the
town’s general assistance program, which received no federal
money).
We are not convinced that Salinas wrought a change upon our
earlier precedents. Even if we were to follow the two cases
proffered by Reyes, however, we would arrive at the same result.
In one of Reyes’s cases, United States v. Zwick, the Third
6
In our recent opinion in United States v. Phillips, 219
F.3d 404 (5th Cir. 2000), we also expressly declined to address
the question, id. at 411 n.9, 412 n.10, though we found that the
absence of a connection between the defendant’s position (tax
assessor) and any federal funds reinforced our conclusion that
the defendant was not an agent authorized to act on behalf of the
Louisiana parish that received federal monies, as required by §
666(d)(1), id. at 413-14.
25
Circuit concluded that the uses for which federal funds were
provided--snow removal and prevention of stream-bank erosion--
bore “no obvious connection” to the charged conduct and that the
defendant’s conduct did not therefore constitute a violation of §
666. 199 F.3d at 688. There, an elected member of the city
board of commissioners was alleged to have solicited money from
persons with business before the town’s board; one such person
needed a permit for sewer access, another had requested a use
permit, and a third had sought a city contract for landscaping
services. The limited amount of federal funds involved in Zwick,
coupled with the specific and narrow purposes for which such
funds were given, bears no resemblance to the facts in this case.
In Reyes’s other case, United States v. Santopietro, the
defendant mayor accepted bribes from real estate developers that
wanted to influence the decisions of various city departments
before which the developers had pending business. 166 F.3d at
91. In that case, the Second Circuit concluded that the
connectivity requirement of § 666 was met: “Since federal funds
were received by [the city] for housing and urban development
programs and the corrupt payments concerned real estate
transactions within the purview of the agencies administering
federal funds, the requisite connection between the bribes and
the integrity of federal funding programs is satisfied.” Id. at
93. The facts of Santopietro are in accord with those in this
case, and Santopietro’s holding, like ours in Moeller, directly
26
contradicts Reyes’s argument that the government must tie the
federal monies to the specific project involved in the illegal
activity.7
B. Reyes’s Mail
Fraud Conviction
Reyes challenges his conviction for violation of the mail
fraud statute, 18 U.S.C. §§ 1341 & 1346. To establish mail
fraud, the government must show beyond a reasonable doubt “that
the defendant (1) used a scheme to defraud, (2) which involved a
use of the mails, and (3) that the mails were used for the
purpose of executing the scheme.” United States v. Sneed, 63
F.3d 381, 385 n.3 (5th Cir. 1995). Reyes argues that the
government failed to prove the existence of a scheme; that, even
if a scheme existed, the use of the mails was a reasonably
foreseeable result of the scheme; and that the mailing occurred
in furtherance of the scheme.8 “In evaluating the sufficiency of
the evidence, our standard of review is whether, viewing the
evidence in the light most favorable to the government, a
7
By letter dated November 7, 2000, Maldonado adopted
Reyes’s argument concerning the connection between the charged
offenses and federal dollars under § 666. See Fed. R. App. P.
28(i). For the reasons stated above, we also reject Maldonado’s
argument.
8
Reyes also argues that the government failed to prove
intent to harm the property rights of others. Such a showing,
however, is not required where, like here, the defendant was
indicted for “honest services” mail fraud. See 18 U.S.C. § 1346
(defining “scheme or artifice to defraud” under § 1341 to include
a scheme “to deprive another of the intangible right to honest
services”).
27
rational trier of fact could have found the essential elements of
the offense beyond a reasonable doubt.” United States v. Greer,
137 F.3d 247, 249 (5th Cir. 1998).
We conclude that a rational jury could find that Reyes
devised a scheme to surreptitiously and unlawfully benefit from
his position on the city council. The first element of mail
fraud--proof of a scheme to defraud--requires that the government
prove fraudulent activity and “that the defendant had a conscious
knowing intent to defraud.” See United States v. Krenning, 93
F.3d 1257, 1264 (5th Cir. 1996). The evidence shows that Reyes,
while still a member of the city council, agreed to work for the
Cayman Group while the hotel project was under consideration by
the city. During the course of his work, Reyes twice received
cash payments--$1000 November 29 and $50,000 December 1--along
with a trip to Florida and the promise of post-council
employment. The jury heard that, as a sitting city official,
Reyes could not legitimately work to advance the Cayman Group’s
interests in the hotel project; so Reyes asked Torres, his
“political friend,” to be “the front” for the Cayman Group.
Thereafter, Torres acted as a public representative for the
Cayman Group, communicating the group’s interest in the hotel
project to Duddlesten and appearing on behalf of the group at a
city council meeting. Throughout, the evidence shows, Torres
coordinated his activities through Reyes and Reyes’s brothers.
28
There is also sufficient evidence to conclude that the use
of the mails was a foreseeable consequence of the scheme. To
prove the second element of mail fraud--use of the mails--the
government must show that the defendant did “‘an act with
knowledge that the use of the mails will follow in the ordinary
course of business, or where such use can reasonably be foreseen.
. . .’” See Sneed, 63 F.3d at 385 n.4 (quoting Pereira v. United
States, 347 U.S. 1, 8-9 (1954)). “‘The defendant need not intend
to cause the mails to be used.’” Id. at 385 (quoting United
States v. Massey, 827 F.2d 995, 1002 (5th Cir. 1987)). As
described above, the evidence would allow the jury to conclude
that Torres was part of Reyes’s scheme to surreptitiously secure
a place for the Cayman Group in the hotel project. In September,
Reyes, with the assistance of Allyn and through his brother,
Tony, provided Torres with a draft letter to Duddlesten
expressing interest in Duddlesten’s plan. The letter was written
on behalf of the Cayman Group and, as provided by Tony, was
printed on Torres’s letterhead. On October 5, Torres delivered
the letter to Duddlesten’s office. Duddlesten, in turn, by
letter, invited Torres to attend the October 19 city council
meeting concerning the hotel project. Torres attended the
meeting, during which Duddlesten and a competitor each presented
their bid for the hotel project. After the meeting, in an
October 31 letter, Duddlesten thanked Torres for his “efforts to
solidify our proposal” and promised to keep Torres advised of the
29
plan’s progress. It was this last letter upon which the
government based its charge of mail fraud against Reyes.
Duddlesten’s thank-you note, the jury could properly conclude,
was a foreseeable consequence of Reyes’s retention of Torres to
communicate his interest in the Duddlesten plan.
Finally, we conclude that there is sufficient evidence to
sustain a finding that the use of the mails in this case was in
furtherance of the scheme to defraud. “To be part of the
execution of the fraud, . . . the use of the mails need not be an
essential element of the scheme. . . . It is sufficient for the
mailing to be incident to an essential part of the scheme . . .
or a step in the plot.” Schmuck v. United States, 489 U.S. 705,
710-11 (1989)(internal quotations omitted). The evidence showed
that the success of Reyes’s scheme to defraud depended upon the
Cayman Group’s inclusion in the hotel project plan advanced by
Duddlesten. Participation in the plan, at least in part,
required a commitment from Duddlesten. To secure such a
commitment, Reyes had to convince Duddlesten of the Cayman
Group’s financial viability. At the same time, because an
appearance of legitimacy was needed for Duddlesten’s support,
Reyes asked Torres to act as “the front.” Reyes directed Torres
to send a letter to Duddlesten pledging the Cayman Group’s
support for the Duddlesten plan; later, Torres appeared at the
October 19 city council meeting. Duddlesten’s thank-you note to
Torres followed. A rational jury could conclude that an
30
expression of appreciation by the man whose support of the Cayman
Group was essential to the group’s participation in the hotel
project was a key step in the scheme to defraud.
C. Maldonado’s
Bribery Convictions
Maldonado argues that there is insufficient evidence to
uphold the first of her two convictions for federal programs
bribery,9 18 U.S.C. § 666(a)(2), and her conviction for
conspiracy to commit federal programs bribery, 18 U.S.C. § 371.
Specifically, Maldonado argues that the evidence is insufficient
to conclude that she intended to assist in the January 24 bribery
of Councilman Yarbrough or that she reached an agreement with
anyone besides a government agent to commit bribery. Again, we
must view the evidence in the light most favorable to the verdict
and may reverse only if no rational jury could have found each
element of the charged offense beyond a reasonable doubt. See
Greer, 137 F.3d at 249.
There is more than sufficient evidence to conclude that
Maldonado possessed the requisite mental state with respect to
the bribery of Councilman Yarbrough. To convict under §
666(a)(2), the jury must find that the defendant acted with
“intent to influence or reward” a government agent. See 18
9
Maldonado does not contest the sufficiency of the
evidence as to her conviction for bribing Councilman Castillo
April 29.
31
U.S.C. § 666(a)(2). The evidence was that Maldonado worked for
the Cayman Group for more than a month before the Yarbrough
payment occurred, from December 21 to January 24. The evidence
from that time, among other things, shows the following: that
Torres revealed to Maldonado that then-councilman Reyes was being
paid to secure a spot for the Cayman Group in the city’s hotel
project (Dec. 21); that Dogium told Maldonado that a payment had
already been made to Yarbrough (Jan. 17); that Maldonado
explained that some council members expected compensation for
their votes (Jan. 17); that she said that she dealt with most
council members on a “very up-and-up” basis but that with
Yarbrough she “can get away with more because he and I are
friends” (Jan. 22); and that Maldonado said that the reason
Yarbrough was reticent to declare his support for the Duddlesten
plan is that he wanted to “see how much he can get out of the
deal”--“that’s his style” (Jan. 22). Then, from the day of the
January 24 meeting with Yarbrough, the evidence shows that
Maldonado understood that her role with the Cayman Group had
evolved--“[I]t’s a different deal than when I started. You want
me to do a lot more.”--and that she said that they ought to have
cash on hand for Yarbrough because “with him, it’d probably never
hurt.” And while Yarbrough and Dogium met on the 24th, Maldonado
said that Yarbrough told her he too wanted to profit from the
hotel project (“[H]e sees everybody getting rich, and what about
32
him?”).10 Based on the foregoing evidence, a rational jury could
conclude that Maldonado knew the Cayman Group was engaged in the
bribery of public officials and that, by arranging the January 24
meeting with Yarbrough, Maldonado intended to facilitate such
bribery.
Maldonado contends that she had intended to arrange for
Yarbrough to receive a lawful campaign contribution and that she
did not know that the Cayman Group planned to make an illegal
cash payment. In support of her argument, Maldonado notes that
the work that she was hired for--public relations and lobbying--
was indisputably lawful. Maldonado also points to evidence of a
December 21 conversation Reyes had with Molineiro, wherein the
two agreed to treat Maldonado “as if she were going to do P.R.
work for us now.” Testimony shows, however, that within hours
after the Reyes-Molineiro conversation occurred, Torres over
lunch candidly told Maldonado that Reyes was on the Cayman
Group’s payroll. The jury also heard evidence that at the time
of Torres’s disclosure Reyes was still a member of the city
council, and that the Cayman Group--as Maldonado well knew--was
actively seeking a place in the city’s hotel project. Although
Maldonado testified that Torres never made such a disclosure, the
10
Maldonado urges us to consider the “whole context” in
which her January statements were made, stating that the district
court denied her proffer of evidence of the complete
conversations. Maldonado does not contest the propriety of the
district court’s rulings, and therefore we will not consider them
now.
33
jury, as arbiter of credibility, could have chosen to believe
Torres instead.
Other evidence Maldonado relies upon is also subject to
contradiction. Maldonado notes that in her conversations with
Molineiro and Dogium, the two used ambiguous terms like “help,”
“influence,” and “personal assurances” to describe cash payments
the Cayman Group made or planned to make to council members. At
trial, Maldonado argued that the use of such language led her to
conclude that Molineiro and Dogium were referring to lawful
campaign contributions. Maldonado also argues that since Dogium
and Yarbrough met in private January 24 she did not have direct
knowledge of what Doguim and Yarbrough discussed or that
Yarbrough received a cash payment. As detailed above, however,
there is evidence upon which the jury could rely to find that
Maldonado learned of the Cayman Group’s illegal activity soon
after she was hired or, in any event, before Councilman Yarbrough
was bribed January 24.
Likewise, the evidence is sufficient to uphold Maldonado’s
conviction for conspiracy to commit federal programs bribery.
Conspiracy under 18 U.S.C. § 371 requires an agreement between
two or more people to commit a federal crime and an act by one of
the conspirators in furtherance of that agreement. See United
States v. Jobe, 101 F.3d 1046, 1063 (5th Cir. 1996). “[A]
government agent cannot be a co-conspirator and . . . there can
be no conspiracy between one defendant and a government
34
informer.” United States v. Manotas-Mejia, 824 F.2d 360, 365
(5th Cir. 1987). Maldonado argues that there is insufficient
evidence to find that she agreed with anyone other than Molineiro
or Dogium to commit bribery. We disagree.
From the evidence adduced at trial, a rational jury could
conclude that there was an unlawful agreement between Maldonado
and, among others, Reyes, Torres, and Allyn. “A conspiracy
agreement may be tacit, and the trier of fact may infer [an]
agreement from circumstantial evidence.” United States v.
Hernandez-Palacios, 838 F.2d 1346, 1348 (5th Cir. 1988). Based
on the evidence, the jury could infer that sometime before
Maldonado met with Molineiro and Reyes December 21, Reyes and
Allyn briefed her on the Cayman Group, the Duddlesten plan, and
the hotel project generally. Maldonado, Reyes, and Allyn were
longtime friends. Immediately upon her arrival at the December
21 meeting, Reyes handed Maldonado $1500 cash. Later that day,
Isasis Torres, who also was a close friend of Maldonado’s, joined
her and Reyes for lunch. The evidence from that lunch meeting
shows that Torres revealed that Reyes was on the Cayman Group’s
payroll; Torres asked Maldonado to keep this information secret
and she agreed. The evidence of these meetings, in light of that
of her illegal acts during the days that followed, would allow a
rational jury to conclude that Maldonado agreed to participate in
a bribery scheme with someone other than a government agent.
35
Additionally, the record would allow the jury to infer an
unlawful agreement arose from Maldonado’s meeting with Reyes
sometime in early April. By the time of the meeting, Reyes’s
role with the Cayman Group had been substantially lessened;
before Maldonado would agree to continue with the Cayman Group,
she told Dogium and Molineiro that she wanted Reyes’s approval.
On April 12, Maldonado reported that Reyes had given his consent.
Thereafter, as described above, Maldonado’s statements and
conduct lacked little or no pretext regarding the legitmacy of
her work for the Cayman Group. Again, from this evidence, and in
light of the evidence of her conduct that followed the April
meeting with Reyes, the jury could reasonably infer that
Maldonado agreed with one or more persons--none of whom worked
for the government--to unlawfully influence city officials.
D. Entrapment
Reyes and Maldonado each argue entrapment as a matter of
law. “Entrapment is an affirmative defense with two related
elements: government inducement of the crime and a lack of
predisposition on the part of the defendant to engage in the
criminal conduct.” United States v. Wise, 221 F.3d 140, 154 (5th
Cir. 2000), petition for cert. filed, __ U.S.L.W. __ (U.S. Dec.
4, 2000)(No. 00-7342). “When a jury, which was fully charged on
entrapment, rejects the defendant’s entrapment defense, the
applicable standard of review is the same which applies to
36
sufficiency of the evidence.” United States v. Rodriguez, 43
F.3d 117, 126 (5th Cir. 1995). In other words, we must accept
every fact in the light most favorable to the jury’s guilty
verdict, and we may reverse only if no rational jury could have
found beyond a reasonable doubt either (1) lack of government
inducement or (2) predisposition to commit the charged crime.
See United States v. Thompson, 130 F.3d 676, 689 (5th Cir. 1997).
We focus our attention on the sufficiency of the
predisposition evidence.11 “Many factors may indicate a
defendant’s predisposition. . . .” United States v. Chavez, 119
F.3d 342, 346 (5th Cir. 1997)(per curiam). In particular, we
have said that a defendant’s ready and willing participation in
government-solicited criminal activity, standing alone, is
sufficient to prove predisposition. See Wise, 221 F.3d at 154.
Other circuits have likewise recognized the value of a
defendant’s eagerness (or lack thereof) as proof of
predisposition. See United States v. Higham, 98 F.3d 285, 290-91
(7th Cir. 1996)(“[W]hether the defendant demonstrated a
reluctance to commit the offense that was overcome by government
persuasion. . . . is the most important factor in evaluating a
defendant’s disposition.”); United States v. Skarie, 971 F.2d
317, 320 (9th Cir. 1992)(same). Other factors that may tend to
prove predisposition include desire for profit; demonstrated
11
Government inducement is not disputed with respect to
Reyes, but it is with respect to Maldonado, see supra note 13.
37
knowledge or experience with the criminal activity under
investigation; the character of the defendant, including past
criminal history; whether the government first suggested criminal
activity; and the nature of the inducement offered by the
government. See, e.g., Chavez, 119 F.3d at 346; Higham, 98 F.3d
at 290; United States v. Hernandez, 31 F.3d 354, 360 (6th Cir.
1994)); Skarie, 971 F.2d at 320; cf. United States v. Brown, 43
F.3d 618, 626 (11th Cir. 1996)(concluding that “entrapment as a
matter of law cannot be reduced to any enumerated list of factors
for a reviewing court to examine” but recognizing that “several
guiding principles” are helpful).
1. Reyes’s
Predisposition
We conclude that there is sufficient evidence to support a
finding that Reyes was predisposed to commit the charged crimes.
From the outset, there was good reason to be dubious of the
Cayman Group and its representatives: the group was heretofore
unheard of, the company was purportedly based outside the United
States, and it was composed of wealthy-but-unidentified South
American nationals. Indeed, the evidence shows that Reyes and
his brothers recognized that the group had a suspicious air about
it: they repeatedly urged Molineiro and Dogium to use a more
“American” sounding name, and, according to Reyes, Tony suggested
that they ask the police to investigate the group.
38
Rather than proceed with caution, however, the evidence
shows that Reyes without hesitation made himself an integral part
of the Cayman Group’s business with the city. Reyes arranged for
Molineiro to meet with Reyes’s brothers, who, in turn, steered
Molineiro and the Cayman Group toward the hotel project and
Duddlesten’s plan to develop it. The evidence shows that Reyes,
through Tony, offered to use his position on the council to
secure a place for the Cayman Group in the city’s hotel project.
The evidence also shows that Reyes, again through Tony, asked the
Cayman Group to send a letter (which Reyes himself had provided)
to Duddlesten expressing interest in Duddlesten’s plan to develop
the hotel. Reyes got Isasis Torres, his longtime friend and
former attorney, to represent the group before the city council.
The record also shows that Reyes devised a plan to, in his words,
“buy us some leaders.” Reyes identified council members he
thought would accept bribes and suggested when and how payments
should be made. The evidence shows that Reyes recommended that
the Cayman Group retain Maldonado to help with the bribery
scheme. And the jury could conclude that Reyes’s intervention
with the Texas attorney general was intended to bring the hotel
project to a vote before Reyes left the council.
Further, the record clearly shows that Reyes sought to
profit from his illegal involvement with the Cayman Group. In
his January 6 comments to Dogium (quoted above), Reyes stated
that he expected to receive a substantial windfall from the hotel
39
project. Several times Reyes asked Dogium and Molineiro for
$50,000 to establish a “front” for this anticipated wealth.
Although Reyes offered testimony that the money was intended as a
loan, the record reveals no evidence of loan documents, agreement
papers, or repayments. Further, on more than one occasion,
Dogium rejected any suggestion that the $50,000 was intended to
fund a venture separate from the Cayman Group’s interest in the
hotel project. The evidence also shows that Molineiro gave Reyes
$1000 when he claimed to have run out of money and asked for
assistance. Finally, the jury could take cognizance of the fact
that the Reyeses received an all-expenses-paid trip to Florida,
as guests of the Cayman Group, in violation of the city
ordinances prohibiting the receipt of such benefits.12
Reyes also demonstrated that he was knowledgeable and
experienced in making and receiving bribes. On November 6, Reyes
told Dogium that bribes were virtually a fact of life for the
city council. The same day, Reyes remembered a conversation with
the target of a bribe, wherein he learned that he had been
cheated by an intermediary: “I sent you forty. How did you end
up with twenty?” Later, on January 8, Reyes explained how he, as
a city councilman, viewed entreaties for assistance: “The [guy]
wants me to lead. . . . I gotta get fed. I gotta pay the grocery
12
Reyes offered testimony that Molineiro threatened to
kill him if he refused to go to Florida. This evidence is
uncorroborated, and the jury, if it so chose, could have accorded
it no weight.
40
bills. . . . Yeah, he helped me get elected, so what [about]
now?” Although Reyes offered testimony that the foregoing
remarks were “puffery” and “bolstering,” intended to convince
Molineiro and Dogium that he had the ability to advance the
Cayman Group’s interests, the jury could have chosen to reject
the explanation as self-serving.
Moreover, there is little, if any, evidence that the jury
could have credited as proof that Reyes tried to disentangle
himself from the illegal activity. At trial, Reyes offered
evidence that he and his brothers several times told Molineiro
and Dogium that Reyes, by virtue of his position on the city
council, could not have a personal stake in the hotel project.
But the evidence of these remarks stands in stark contrast to
that of numerous other statements wherein Reyes or his associates
confirmed Reyes’s personal involvement and asked that it be kept
secret. Likewise, evidence that Reyes warned Molineiro and
Dogium that their mode of business was not proper in the United
States could have been disregarded by the jury as half-hearted at
best and wholly at odds with other evidence of Reyes’s conduct.
In the face of the foregoing evidence, Reyes urges that the
government’s elaborate scheme and aggressive inducement defeats
the jury’s finding of predisposition. We disagree. Although
there was evidence that Molineiro attempted to foster a familial
relationship with Reyes, frequently referring to Reyes in Spanish
as his brother, we nor any other court has held that inducement-
41
through-friendship, standing alone, is sufficient to find
entrapment as a matter of law. Reyes also testified that the
Duddlesten plan and the promise of ethnic minority participation
in its financing presented a “once in a lifetime” opportunity for
the Hispanic community and that, with the plan on the table, the
Cayman Group arrived exactly when ethnic minority investors were
needed. The jury, however, could reasonably reject Reyes’s
contention that the Cayman Group, whose representatives showed
little respect for the city’s laws or its elected officials,
presented such an extraordinary opportunity. Finally, Reyes
testified that he had few prospects for post-council employment
and that Dogium’s offer of a position with the Cayman Group--an
offer that Reyes says was made contingent on the group’s success
in the hotel project--induced him to act as he did. Again, we
think that the jury could reasonably reject Reyes’s argument,
concluding that Reyes, an elected official who no doubt had
accumulated many valuable contacts during his 25 years’ of public
service, was not faced with a situation so dire that he was
induced to act against his predisposition.
2. Maldonado’s
Predisposition
We likewise conclude that there was sufficient evidence for
the jury to find that Maldonado was predisposed to commit the
42
charged crimes.13 As noted above, a defendant’s eager
willingness to participate in government-solicited criminal
activity is sufficient to prove predisposition. The linchpin of
Maldonado’s argument here is that she did not know about Reyes’s
and the Cayman Group’s cash payments to council members;
therefore, she argues, her work on behalf of the group, though it
might appear differently to others, did not constitute an eager
willingness to engage in the charged crimes. Having already
found that the evidence is sufficient to conclude that Maldonado
intended to bribe Councilman Yarbrough January 24, and it being
undisputed that she intended to do the same with respect to
Councilman Castillo April 29, we reject this argument. We
conclude, therefore, that a rational jury, looking at the
evidence of Maldonado’s conduct as an objective manifestation of
her predisposition, could find that she was a willing and eager
participant in the charged acts of bribery.
Maldonado argues that once she became a knowing participant
in the scheme to bribe council members, she “hesitated and
stalled” when Molineiro or Dogium thereafter asked her to meet
13
Maldonado was first contacted by someone other than a
government agent or informant. In United States v. Barnett, 197
F.3d 138, 143 (5th Cir.), cert. denied, 120 S. Ct. 1966 (2000),
we stated that the “defense of entrapment is not applicable where
one is induced to engage in criminal activity by a private
citizen acting alone.” Pointing to Barnett, the government
argues that Maldonado, as a matter of law, could not have been
entrapped. We need not consider this argument in light of our
conclusion that the evidence is sufficient to find that Maldonado
was predisposed to commit the charged crimes.
43
with members of the council. She contends that she tried to
steer her lobbying efforts toward the mayor and other officials
and that she once lied to Molineiro about Councilman Yarbrough’s
travel plans so that she could avoid a meeting with him.
Maldonado also contends that she urged Dogium to make an above-
board contribution to Councilman Fraga’s campaign for Congress,
rather than a cash payment.
Other evidence, however, reveals that Maldonado continued to
play an integral role in the bribery scheme right up until the
time she was confronted by law enforcement. In April Maldonado
told Dogium, “I’m going to tell you how you can get the most for
the least.” On April 19, Maldonado promised that she would
determine which council members would want cash for their
support, adding “we can start off by assuming that they’re all
gonna want something.” On April 29, Maldonado handed a cash-
filled envelope to Councilman Castillo. Later that day,
Maldonado asked Molineiro to prepare “two grand” for a meeting
the next day with Councilman Fraga, who she remarked “really,
really needs it.” And on each of the next two days that
followed--April 30 and May 1--the evidence shows that Maldonado
attempted to pass a bribe.
Like Reyes, Maldonado argues that the government’s
aggressive inducement defeats any finding of predisposition. We
disagree. At trial, Maldonado argued that the government’s
inducement was designed to “tug at the core of her being.” Like
44
Reyes, she contended that the hotel project represented a
“historic opportunity for her community” because “of its promise
of inclusion to ethnic minorities.” A rational jury, however,
could have correctly concluded that the introduction of the
Cayman Group and its representatives into Reyes’s and Maldonado’s
community did not represent the extraordinary opportunity
Maldonado argued that it did.
3. Positional
Predisposition
Reyes and Maldonado each argue that their respective cases
present a question of “positional predisposition,” as that
concept is described in United States v. Hollingsworth, 27 F.3d
1196 (7th Cir. 1994)(en banc), and that the trial court erred in
refusing to charge the jury on the issue. We review the district
court’s refusal to give a requested jury instruction for an abuse
of discretion. See United States v. Dixon, 185 F.3d 393, 402
(5th Cir. 1999).
In Hollingsworth, the Seventh Circuit concluded that
“[p]redisposition is not a purely mental state, the state of
being willing to swallow the government bait. It has positional
as well as dispositional force.” 27 F.3d at 1200. To be
positionally predisposed, the “defendant must be so situated by
reason of previous training or experience or occupation or
acquaintances that it is likely that if the government had not
induced him to commit the crime some criminal would have done
45
so.” Id. In United States v. Brace, 145 F.3d 247 (5th Cir.
1998)(en banc), this court, sitting en banc, vacated a panel
opinion that had adopted Hollingsworth’s positional
predisposition doctrine. In so doing, we did not reject
positional predisposition outright but instead concluded that the
issue was not properly before the court. Id. at 265. We have
not since considered the merits of positional predisposition,
although in our recent opinion in United States v. Wise, 221 F.3d
140, 155-56 (5th Cir. 2000), we concluded that the defendant
there did not show that he was not positionally predisposed under
Hollingsworth.
Like we did in Wise, we here conclude that Reyes and
Maldonado have failed to show that they were not positionally
predisposed.14 In Hollingsworth, the court stated that public
officials such as Reyes are in the position to take bribes. And
we conclude that Maldonado, a lobbyist and political activist,
had the training, experience, and contacts to satisfy
Hollingsworth’s positional requirement. Further, we reject
Reyes’s and Maldonado’s argument that the opportunity for ethnic
minority investment in a major city project would not have
occurred absent the government’s sting operation. For one, the
government had nothing to do with the Duddlesten plan; and it was
14
In rejecting Reyes’s and Maldonado’s arguments, we
express no opinion as to the merits of the positional
predisposition doctrine.
46
that plan--not the Cayman Group--that presented the opportunity
Reyes and Maldonado describe. Nor is it true that absent
government involvement no minority investors existed to consider
investing in the hotel project; to the contrary, Reyes, in his
brief, notes that he had communicated with other minority groups
interested in the Duddlesten proposal. We therefore conclude
that the district court did not err in refusing the instruction.
E. Exclusion
of Recording
Reyes argues that the district court erred in excluding a
conversation recorded May 4 between himself and Maldonado. “We
review the district court’s admission of evidence for an abuse of
discretion.” See United States v. Phillips, 219 F.3d 404, 409
(5th Cir. 2000). At trial, Reyes submitted that the recording
was relevant (indeed essential) to his defense theory--namely,
that the things he did and said during the investigation were
part of his secret plan to “scam the scammers.” Reyes argues
that the exclusion of the recording deprived him of the
opportunity to put on an effective defense and therefore violated
his right to due process. Further, he argues that the recorded
conversation is not hearsay, and that even if it were so
construed, it is excepted as a then-existing mental state. We
reject each point.
At the outset, we note that the opportunity to present
evidence, as part of the right to a meaningful defense, applies
47
only to that evidence deemed competent. See Crane v. Kentucky,
476 U.S. 683, 690 (1986)(“[W]e have never questioned the power of
States to exclude evidence through the application of evidentiary
rules that themselves serve the interests of fairness and
reliability--even if the defendant would prefer to see that
evidence admitted.”). Here, the recorded May 4 conversation is
hearsay, and it is not a statement of a then-existing mental
state under Rule 803(3) of the Federal Rules of Evidence. Rule
803(3) permits admission of such statements where, among other
things, the statements occurred contemporaneous with the event
sought to be proved and the defendant did not have a chance to
reflect (i.e., the defendant had no time to fabricate or
misrepresent his thoughts). See United States v. Jackson, 780
F.2d 1305, 1315 (7th Cir. 1986); see generally 5 Jack B.
Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence §
803.06 (Joseph M. McLaughlin ed., 2d ed. 2000). The recording in
question was made after Maldonado was confronted by law
enforcement and pledged to cooperate in their investigation. At
trial, Reyes’s attorney stated that Reyes by May 4 suspected that
Maldonado was cooperating with authorities. The likelihood that
the conversation was being monitored or recorded makes it
probable that Reyes’s recorded remarks were more self-serving
than they were candid, and therefore their probative value is
greatly diminished. See United States v. Schwartz, 924 F.2d 410,
423-24 (2d Cir. 1991). Additionally, the duration between the
48
recorded conversation and Reyes’s last criminal act (February 20)
is large enough for the district court to rightly conclude that
the remarks had little or no probative value with respect to
Reyes’s then-existing mental state. See Colasanto v. Life Ins.
Co. of N. Am., 100 F.3d 203, 213 (1st Cir. 1996)(holding
inadmissible state-of-mind evidence where dispute between
litigants arose after material time but before evidence
recorded). In short, we conclude that the district court acted
well within its accorded discretion in excluding the May 4
recording.
F. Upward
Departure
Reyes argues that the district court erred in departing from
the sentencing guidelines because his case is not atypical from
those the sentencing commission considered when it drafted the
guidelines. In United States v. Threadgill, 172 F.3d 357 (5th
Cir.), cert. denied, 528 U.S. 871 (1999), we discussed departure
under the sentencing guidelines in the wake of the Supreme
Court’s landmark decision in Koon v. United States, 518 U.S. 81
(1996). In Threadgill, we said that the propriety of departure
depends upon, among other things, “whether the departure factors
relied on by the district court were permissible.” 172 F.3d at
376. Impermissible factors include those “already considered by
the Guidelines and not present to an exceptional degree” in the
case at hand. See id. at 375. Whether a factor is a permissible
49
basis for departure is a question of law we review de novo. See
Koon, 518 U.S. at 100.
In this case, the district court departed pursuant to
application note 5 of § 2C1.1 of the sentencing guidelines.
Application note 5 provides that “[w]here the court finds that
the defendant’s conduct was part of a systematic or pervasive
corruption of a governmental function, process, or office that
may cause loss of public confidence in government, an upward
departure may be warranted.” U.S. Sentencing Guidelines Manual
(“U.S.S.G.”) § 2C1.1 app. n.5. At the outset, we note that if
systematic-or-pervasive corruption were considered part of the
typical bribery offense, the commission would not have separately
provided for departure based on a finding of the same. See
United States v. Shenberg, 89 F.3d 1461, 1476 (11th Cir. 1996).
Thus, we think it follows that factors concomitant with
systematic-or-pervasive corruption were likewise not considered
by the commission when it crafted § 2C1.1. We also note that to
the term “systematic or pervasive corruption,” application note 5
adds the clause “that may cause loss of public confidence in
government.” The effect of the latter clause is to modify the
former, meaning that the described corruption must be of the kind
that “may” lead to a loss of confidence in government.
Admittedly, there would seem to be few instances where a
“systematic or pervasive corruption of a government function”
could never result in a “loss of public confidence in
50
government.” In any case, a straight-forward reading of
application note 5 reveals two points: (1) that the sentencing
commission did not consider factors concomitant with systematic-
or-pervasive corruption; (2) and that the systematic-or-pervasive
corruption that warrants departure is of the kind that may result
in a loss of public confidence in government. With the foregoing
construction in mind, we turn to the findings enunciated by the
district court.
We conclude that the factors used by the district court to
depart from the sentencing guidelines in this case were proper.
First, in finding systematic-or-pervasive corruption by the
defendant, the district court relied on Reyes’s role in the
criminal activity. The district court stated: “the record
clearly identifies at least five criminally-responsible
participants. . . . The evidence is unquestionable as to the
organizer role this defendant played in this offense.” The
court’s finding with respect to Reyes’s role in the corruption is
in accord with the meaning of “systematic,” “pervasive,” or
both.15 Second, in finding a loss of public confidence, the
district court noted the following: that Reyes, by his own
admission, had “stained” the city council; that the mayor urged
15
See Merriam Webster’s Collegiate Dictionary 1198 (10th
ed. 1993)(defining “systematic” as, inter alia, “methodical in
procedure or plan” and “marked by thoroughness and regularity”);
id. at 868 (defining “pervade” as “to become diffused throughout
every part of”).
51
citizens not to let the verdicts reflect upon city officials
generally; that a county judge, in his state-of-the-county
address, spoke of “corruption in government” and “envelopes full
of cash”; and that “widely reported media coverage of this case .
. . has fueled the public perception of corruption of our own
city council here in Houston.” These findings are consistent
with the conclusion that Reyes’s systematic-or-pervasive
corruption may result in a loss of public confidence in
government.
Reyes argues that cases wherein courts have upheld departure
under application note 5 show that the factors that give rise to
a finding of systematic-or-pervasive corruption are markedly more
severe than those in his case. Reyes urges us to consider three
circuit-court opinions: United States v. Reece, No. 97-4106, 139
F.3d 895 (4th Cir. Mar. 17, 1998)(unpublished table opinion)
available at 1998 WL 116163; United States v. Shenberg, 89 F.3d
1461 (11th Cir. 1996); and United States v. Schweitzer, 5 F.3d 44
(3d Cir. 1993). In Reece, the defendant was a manager of the
Bureau of Alcohol, Tobacco, and Firearms aircraft leasing
program. During the course of a five-year scam, the defendant
made 22 false submissions for aircraft leases and bilked his
agency out of over a half-million dollars. The sentencing court
recognized the record size of the theft, that the case had
generated significant controversy, and that the defendant’s
conduct may result in a loss of public trust. Reece, 1998 WL
52
116163, at *2. In the second case, Shenberg, the defendant, a
state-court judge, took bribes to fix cases, enticed other judges
to do the same, and revealed the identity of a government
informant, knowing that the informant might be killed. The
Eleventh Circuit concluded that “the government overwhelmingly
proved systematic corruption by a preponderance of the evidence.
. . . [and that a] loss of public confidence in government, of
course, is not subject to reasonable dispute.” Shenberg, 89 F.3d
at 1476-77. And, in Schweitzer, the defendant, in violation of
federal law, obtained and sold confidential information on
individuals from the Social Security Administration, which he
then sold for about $10,000. The Third Circuit concluded that
the “evidence supports the district court’s conclusion that
Schweitzer’s conduct went well beyond the heartland bribery
offense covered by § 2C1.1 both because of its extent and because
of the consequence of that conduct for the large number of
victims that it impacted.” Schweitzer, 5 F.3d at 47.
We find nothing in the above-discussed cases that mitigates
against departure in this one. Admittedly, Reyes’s corrupt acts
were far less disturbing than those committed by the state-court
judge in Shenberg. But we note that the court there found that,
in light of the defendant’s conduct, the propriety of departure
was not subject to reasonable dispute. Reyes makes much of the
fact that, unlike the defendant in Reece, his alleged corruption
pertained to a single project and that the amounts involved were
53
comparatively small. Whatever the effect of these distinctions,
however, we note that, unlike the defendant in Reece, Reyes went
out of his way to entice other government officials and citizens
to involve themselves in his corrupt scheme. And though the
defendant in Reece was a high-ranking ATF official, Reyes, a
long-time city council member, was at the apex of city government
and had responsibilities that affected the lives of hundreds of
thousands.
Finally, Reyes argues that the district court’s reliance on
media coverage as an indicator of potential loss of public
confidence is improper because that factor is invariably present
in the typical public corruption case. This point, however, is
refuted by two of the cases Reyes relies on here: in both Reece
and Schweitzer, the courts considered media coverage relevant in
evaluating whether there was a potential for loss of public
confidence. And while Reyes may be correct in his assertion that
media coverage is attendant in more public corruption cases than
not, we again note that the systematic-or-pervasive conduct that
warrants departure must have the potential to cause a loss in
public trust. Of course, the media has long played an important
role in rooting out and reporting on such conduct.
Lastly, Reyes argues that § 5K2.7 of the sentencing
guidelines shows that the circumstances in this case do not
warrant departure. We disagree with this point too. The
district court did not rely on § 5K2.7, entitled “Disruption of
54
Government Function (Policy Statement),” to depart from the
guidelines; as already noted, departure was based on application
note 5 of § 2C1.1. Application note 5, however, references § 5K
of the guidelines. But this reference is to chapter 5, part K
generally (“Departures”), and not § 5K2.7 specifically. Part K,
among other things, discusses departure as a policy matter, see §
5K2.0, and enumerates certain factors that may warrant departure,
e.g., § 5K2.1 (death), § 5K2.2 (physical injury). The grounds
for departure provided in part K are in addition to those, like
application note 5, that are found elsewhere in the guidelines.
See U.S.S.G. ch. 1, pt. A, intro. cmt. 4(b). Accordingly,
whether departure is warranted under application note 5 of §
2C1.1 is not dependant on whether it is also warranted under §
5K2.7.16
G. Adjustment for
Reyes’s Criminal History
Reyes argues that the district court erred when it counted
two misdemeanor charges for which he received deferred
adjudications as “separate” when it made an adjustment for prior
16
In her brief, Maldonado adopts Reyes’s argument with
respect to the district court’s upward departure from the
sentencing guidelines. As seen above, the question whether
departure is proper requires that the appeals court consider the
factors relied upon by the sentencing court. Based on our review
of the record, however, it does not appear that the relevant
portions of Maldonado’s sentencing were transcribed. Under the
rules of this circuit, it is Maldonado’s responsibility to order
transcripts from the pertinent proceedings. See 5th Cir. R.
10(b)(1). We therefore do not consider Maldonado’s departure
argument.
55
criminal history. Under the sentencing guidelines, two or more
prior sentences are “related” (and are therefore counted as one
for purposes of determining criminal history) if, among other
things, they were consolidated for trial or sentencing. See
U.S.S.G. § 4A1.2 app. n.3. Reyes argues that his prior offenses-
-one an election code violation, the other theft of a tree--were
consolidated and therefore are “related” under the guidelines.
Reyes admits, however, that there was no state-court order that
consolidated the two cases. We have rejected this argument
before. See United States v. Valazquez-Overa, 100 F.3d 418, 423-
24 (5th Cir. 1996)(“Moreover, as we have recognized in the past,
there can be no informal consolidation of offenses under Texas
law.”)(citing United States v. Garcia, 962 F.2d 479 (5th Cir.
1992). We conclude that the district court’s characterization of
Reyes’s prior offenses was proper and that Reyes’s argument is
without merit.
IV. CONCLUSION
For each of the foregoing reasons, Reyes’s and Maldonado’s
respective convictions and sentences are AFFIRMED.
56
United States v. Reyes
Court: Court of Appeals for the Fifth Circuit
Date filed: 2001-01-26
Citations: 239 F.3d 722
Copy CitationsCombined Opinion