United States v. Orlando Figueroa

United States Court of Appeals
For the First Circuit

No. 99-1952

UNITED STATES OF AMERICA,

Appellee,

v.

JOSE ORLANDO-FIGUEROA,

Defendant, Appellant.

No. 99-1954

UNITED STATES OF AMERICA,

Appellee,

v.

ANGEL E. RODRIGUEZ-CABRERA A/K/A "BUZO,"

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

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

Before

Lynch, Circuit Judge,
Coffin, Senior Circuit Judge,
 and Lipez, Circuit Judge.

Vilma M. Dapena-Rodriguez for appellant Orlando-Figueroa.
Juan A. Pedrosa-Trapaga for appellant Rodriguez-Cabrera.
María Domínguez-Victoriano, Assistant United States Attorney, with
whom Michelle Morales, United States Attorney, and Camille Veléz-Rive,
Assistant United States Attorney, were on brief, for appellee.

October 6, 2000
 LYNCH, Circuit Judge. Disasters are said to bring out the best

and the worst in people. In September 1998 Hurricane Georges wreaked

massive destruction in Puerto Rico. The municipality of Toa Alta was

badly hit and it sought federal disaster assistance monies from FEMA,

the Federal Emergency Management Agency. The influx of large disaster

relief funds can also provide fertile opportunities for corruption. In

1999 a jury convicted Angel E. Rodriguez-Cabrera, the Mayor of Toa

Alta, and his friend, José Orlando-Figueroa, the owner of a

construction company, of conspiracy and of corruptly soliciting a $2.5

million bribe from a private company as the cost of the company's

obtaining the debris

cleanup contract for the area. See 18 U.S.C. §§ 371, 666(a)(1)(B).

The two were acquitted on extortion charges. Each was sentenced to a

term of 57 months. The two men now appeal, raising more than a dozen

arguments. We reject the attacks on both the convictions and sentences

and affirm.

I.

Viewed in the light most favorable to the prosecution, the facts

of the underlying crime are as follows.

Rodriguez-Cabrera, nicknamed "Buzo," was the Mayor of Toa Alta,

and Orlando-Figueroa was a contractor and the President of JOF

Corporation in Puerto Rico. Toa Alta qualified for federal disaster

assistance through FEMA after being struck by Hurricane Georges in

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September 1998. In late September 1998, Orlando-Figueroa entered into

a business venture with David Crawford, the president of MD

Construction, a Miami-based company, and John Shavers, president of

JESCO Construction Corporation, a disaster cleanup company based in

Mississippi, and Crawford's former partner in other business ventures.

The purpose of this venture was to secure debris cleanup contracts with

local municipalities in Puerto Rico. Eventually, JESCO entered into a

contract with the municipality of Toa Alta (through its mayor,

Rodriguez-Cabrera) for post-hurricane debris disposal.1 The town was

to receive a "tipping fee" based on the amount of debris "tipped" into

its landfill from dump trucks. FEMA would pay for debris disposal (and

thus the tipping fee as well) based on the amount of debris certified

to it by town officials.

In the course of negotiating the contract, Crawford and Shavers

met with Orlando-Figueroa and Rodriguez-Cabrera on October 22, 1998, at

Rodriguez-Cabrera's office in the City Hall. During this meeting,

Orlando-Figueroa told Crawford and Shavers that the Mayor wanted $2.5

million, apparently in exchange for the contract to JESCO. Crawford

1
Cleanup consisted of picking up the debris, grinding
it, and dumping it in Toa Alta's landfill. The original
contract called for the town to pay JESCO $79.00 per cubic yard
of ground-up debris, with an estimate of 100,000 cubic yards,
for a total payment to JESCO of $7.9 million. The contract was
later amended to provide for a per cubic yard payment of $35.00
and included the charge to be paid by JESCO to use Toa Alta's
landfill.

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and Shavers, according to their own testimony, were confused by the

statement. Orlando-Figueroa repeated that the Mayor wanted $2.5

million. Mayor Rodriguez-Cabrera then tapped his chest and said,

"Buzo, two and a half million." After the meeting, Orlando-Figueroa

informed Crawford and Shavers that the Mayor had both Puerto Rican and

federal officials in his pocket and that he controlled the island.

Shavers understood the $2.5 million as extortion money to be paid from

funds fraudulently obtained from FEMA;2 the defendants at trial

characterized the sum as being the town's legitimate tipping fee for

the disposal of an estimated 500,000 cubic yards of debris at $5 per

cubic yard.

On November 9, 1998, Shavers informed the FBI of the kickback

scheme. The FBI wired Shavers for his future meetings with defendants.

On November 10, 1998, Orlando-Figueroa traveled to Mississippi to meet

with Shavers. He informed Shavers that Rodriguez-Cabrera also wanted

a pick-up truck and a three-wheeled motorcycle shipped with the tub

grinder (a machine used to grind debris) that was to be used for the

job. He also told Shavers that Rodriguez-Cabrera wanted JESCO to give

him the tub grinder. On the same day, an FBI undercover agent met with

Orlando-Figueroa and Shavers. During the meeting, Orlando-Figueroa

explained to the undercover agent that JESCO needed to pay him

2
The money, apparently, was to come from exaggerated reports
of the amount of debris deposited and false invoices that JESCO was to
fill out and submit to Toa Alta for later submission to FEMA.

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(Orlando-Figueroa) $2.5 million in order to grease Rodriguez-Cabrera's

palm.

The FBI also taped numerous telephone conversations between

Shavers and Orlando-Figueroa and Rodriguez-Cabrera. In the calls,

Shavers discussed the $2.5 million, how he had secured the money, and

how to deliver it to Rodriguez-Cabrera. At one point, Orlando-Figueroa

told Shavers that Rodriguez-Cabrera thought the phones might be tapped

and that they should not discuss the scheme over the telephone.

On November 24, 1998, Shavers delivered $20,000 to Orlando-

Figueroa as an initial deposit towards the $2.5 million. This

transaction was videotaped. Orlando-Figueroa used $3,000 to pay a debt

at a tile store and then delivered $12,000 of the money to Rodriguez-

Cabrera in the Mayor's office. Orlando-Figueroa left and was arrested

outside, and Buzo's chauffeur raced inside to tell the Mayor the news.

FBI agents then entered the building, through a milling crowd of over

one hundred people, and went to Rodriguez-Cabrera's office. Agent John

Johnson identified himself and informed Mayor Rodriguez-Cabrera that he

was under arrest. Rodriguez-Cabrera asked, "What is this about?"

Johnson responded that it was about the money. Rodriguez-Cabrera

nodded. Johnson then asked where the money was, and Rodriguez-Cabrera

pointed at his desk. Johnson then asked for consent to open the

drawer; Rodriguez-Cabrera opened it himself and handed the money to

Johnson. Rodriguez-Cabrera was not given Miranda warnings. See

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Miranda v. Arizona, 384 U.S. 436 (1966). While this was happening, the

Mayor's staff members were banging on the walls and yelling. The

agents wanted to move quickly to a more secure place.

The defense theory was that the defendants never demanded a $2.5

million kickback, that the $2.5 million figure represented the tipping

fee to be paid to the city for use of its landfill, and that it was

Shavers who was corrupt and who wanted to submit falsified documents to

FEMA to increase his profits. Both defendants testified. The jury

rejected their theory and found them guilty.

II.

Against this background, we discuss the issues raised on appeal.

Of the issues, the most serious are the denial of a continuance of the

trial and the exclusion of an old criminal conviction of Shavers.

1. Denial of the Defendants' Requests for Continuance Based on
Ability to Prepare for Trial

The defendants filed five motions for continuance of trial,

articulating three different grounds: (1) inadequate time to prepare;

(2) inadequate time to inspect the jury selection records; and (3)

excessive, negative pretrial publicity.3 The argument that has the most

3
It appears that only Rodriguez-Cabrera filed any
motions for continuance, although Orlando-Figueroa argues in his
brief that the district court erred in not granting a
continuance based upon inadequate time to prepare for trial.
Because we reject the argument, we do not inquire as to whether
Orlando-Figueroa preserved the issue.

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surface plausibility is that defendants were not given adequate time to

prepare for trial.

The district court has broad discretion to grant or deny

continuances. See United States v. Brand, 80 F.3d 560, 564 (1st Cir.

1996). A district court's decision stands unless it is a "manifest

abuse of discretion." United States v. Devin, 918 F.2d 280, 291 (1st

Cir. 1990) (denying mid-trial continuance) (citing Morris v. Slappy,

461 U.S. 1, 11-12 (1983)). That discretion is nonetheless limited by

the defendants' constitutional rights to effective assistance of

counsel and to the testimony of defense witnesses. United States v.

Soldevila-Lopez, 17 F.3d 480, 487 (1st Cir. 1994).

Among the factors to be considered in reviewing a denial of a

motion for a continuance are the amount of time necessary for trial

preparation, the amount of time actually available for preparation, the

defendant's diligence, the inconvenience to the court and other

parties, the likely utility of a continuance, and any unfair prejudice

caused by the denial. United States v. Saccoccia, 58 F.3d 754, 770

(1st Cir. 1995), cert. denied, 517 U.S. 1105 (1996); Soldevila-Lopez,

17 F.3d at 488.

The defendants were arrested and arraigned on November 24, 1998.

Soon thereafter (it is not clear exactly when), the defendants were

provided with copies of most of the FBI surveillance tapes.

Defendants were indicted on December 11, 1998. The district court held

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a status conference on January 5, 1999, at which time the trial date

was set for February 3, 1999. Ultimately, although a jury was

impaneled on February 3, opening arguments and the presentation of

evidence was postponed until February 8 to accommodate a personal

request by Orlando-Figueroa's attorney.

At the status conference, the court ordered the government to turn

over all Brady and Giglio materials by January 14, 1999, all

transcripts of the audio tapes by January 15, 1999, and all Jencks Act

discovery materials, including grand jury minutes, by January 22, 1999.

The court also ordered the government to file a written Fed. R. Crim.

P. 12(d)(2) designation of evidence by January 8, 1999.

The defendants' main argument is that on January 13, 1999, the

government overwhelmed them with 2,000 pages of documents, 19 tapes and

transcripts, and 2 video tapes and transcripts, and that they did not

have enough time to prepare for trial. In addition, the defendants

claim that the government provided them with sixty pages of FBI Form

302's and some Jencks material (they do not say how much) on January

26, 1999, one week before trial, and with some corrected transcripts on

February 1, two days before trial.

Although the bulk of the complained-about materials were provided

to the defendants on January 13, it was not until six days later, on

January 19, that the defendants filed their first motion for a

continuance. There is no explanation in the briefs for this delay.

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That first motion for a continuance (based on inadequate time to

prepare for trial) and the defendants' subsequent motions were all

denied by the district court. There is no mechanical test or formula

to apply in reviewing a decision to grant or deny a continuance; each

case must be evaluated on its own facts. See United States v. Torres,

793 F.2d 436, 440 (1st Cir. 1986).

The district court, in denying defendants' motion, first pointed

out that defendants had had in their possession the only relevant

videotape and fifteen audio tapes consisting of short telephonic

conversations prior to the indictment, which had occurred on December

11, 1998. Next, the court noted that it had taken "meticulous steps"

to ensure that defendants would receive what they needed to prepare

their defense. Specifically, the court had ordered the government (1)

to file its Fed. R. Crim. P. 12(d)(2) designation of evidence by

January 8, (2) to turn over Brady and Giglio material by January 14,

(3) to deliver transcripts of the audio tapes by January 15, and (4) to

produce Jencks Act discovery material, including grand jury minutes, by

January 22.

Turning to the factors set out in Saccoccia and Soldevila-Lopez,

the trial court noted that defendants had received total access to the

necessary information and that, during a conference held on February 3,

Rodriguez-Cabrera's counsel had recognized that the file was complete.

The court thus determined that defendants had adequate time to prepare

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their defense and that a continuance would not be useful. As to

inconvenience, the court stated that it had a full docket with many

multi-defendant cases already scheduled for trial. The court concluded

that defendants had not demonstrated unfair prejudice.

There was no error in denial of a continuance on grounds of

inadequate time to prepare. The tapes, which were the heart of the

prosecution's case, were in defendants' hands by December 11, 1998,

almost two months before trial. Defendants could have had transcripts

prepared then, but chose not to, and relied on the transcripts the

government prepared. They thus cannot complain about the

unavailability of transcripts, which are, we note, simply aids to the

jury. Defendants also say that if they had had more time, they might

have discovered two pieces of evidence which became the basis of the

new trial motion. We discuss those later and pause only to note that

there is no reason to think either piece of evidence would have made

any difference. Also, given the trial court's ruling that impeaching

evidence (past criminal convictions) as to Shavers was inadmissible,

further time to discover such evidence was pointless. If defendants

wanted, as they now say, an expert on debris (for reasons still vague),

such an expert should have been sought earlier. While the trial judge

held defendants to a tough schedule, in the absence of a showing of

unfair prejudice to defendants, there was no manifest abuse of

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discretion. The Speedy Trial Act, 18 U.S.C. § 3161, attempts, after

all, to get defendants to trial within 70 days of indictment.

2. Inadequate Time to Inspect the Jury Selection Records

Criminal defendants have an absolute right to inspect jury

selection records pursuant to 28 U.S.C. § 1867(f). See United States

v. Royal, 100 F.3d 1019, 1025 (1st Cir. 1996). These defendants sought

to examine the district court's jury selection records in order to

prepare a challenge to the requirement that jurors understand English.

Consequently, on January 19, 1999, the defendants filed a motion for

the disclosure of all jury selection documents. On January 25, after

an in-chambers conference, the district court granted access to the

documents. While acknowledging the defendants' right to inspect the

jury selection documents regardless of their reason for wanting to do

so, the court also clearly and correctly explained that any challenge

to the English proficiency requirement was foreclosed by First Circuit

precedent. See United States v. Flores-Rivera, 56 F.3d 319, 326 (1st

Cir. 1995).

On January 27, the defendants filed a motion requesting a stay of

proceedings to give them time to gather information on jury selection

and prepare a challenge. Because it felt the motion did not contain

the requisite sworn statement of facts which, if true, would

demonstrate that the jury selection method failed to comply with

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statutory requirements, see 28 U.S.C. § 1867(d), the district court

summarily denied the continuance. On February 1, the defendants then

filed a second motion to stay proceedings in order to inspect the jury

selection records and prepare a challenge. On February 2, this motion

was denied as well, for several reasons. The court noted again that

any challenge to the English language requirement was foreclosed by

circuit precedent, and that the motion was untimely. Pursuant to 28

U.S.C. § 1867(a), a defendant may file a motion to stay proceedings

premised upon a challenge to jury selection procedures "before the voir

dire examination begins, or within seven days after the defendant

discovered or could have discovered . . . the grounds [for the

challenge]." Id. The court found that the defendants had made clear

at the January 5 status conference that they intended to challenge the

English language requirement, but did not file their first motion to

stay proceedings until January 27, thus placing them beyond the seven-

day time limit of § 1867(a).

Although the trial judge was in error on several of his rulings --

matters we address to give guidance -- in the end none of these errors

would cause a reversal here, for various reasons.

There are two problems with the district court's rulings. First,

Royal held that "a district court may not require a defendant

requesting access to jury selection records to submit with that request

'a sworn statement of facts which, if true, would constitute a

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substantial failure to comply with the provisions of this title.'" 100

F.3d at 1025 (quoting § 1867(d)). Thus, only a formal § 1867(a) motion

actually challenging the jury selection process must be accompanied by

such a statement, not a request to examine the jury selection records

or a motion for a continuance to have time to study those records.

Second, the district court was in error in finding tardy

defendants' request for a stay in order to inspect the jury selection

records. The seven-day filing requirement applies only to the §

1867(a) motion actually challenging the jury selection process. That

is, subsection (a) itself refers only to such a motion, not to a

preliminary motion seeking access to jury selection documents. See

United States v. Alden, 776 F.2d 771, 773-75 (8th Cir. 1985) (a

defendant has the right to inspect before he or she makes a motion to

challenge the jury-selection procedures under § 1867(a); defendant need

only allege that he is preparing such motion), cited with approval in

Royal, 100 F.3d at 1025. Thus, the seven-day filing requirement, like

the sworn statement requirement at issue in Royal, did not apply to

defendants' request for time to study the jury records.

This, however, does not end the matter. Defendants' principal

argument here is that the district court did not afford them sufficient

time to obtain and review the jury selection material. The

"unqualified" right of access to such material, defendants contend,

would be meaningless without a reasonable time to inspect the material.

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 Although the point is a good one in principle, it fails on the

facts here. Rodriguez-Cabrera's attorney plainly was aware of the

English proficiency question, as the trial court found, before he

appeared in the case on December 14, 1998. Counsel nonetheless waited

over one month to file the initial inspection motion. The only ground

defendant was then raising was foreclosed by specific precedent. The

English proficiency requirement had been rejected by this court in

Flores-Rivera, supra. While defendants theoretically could have

discovered another reason for challenging the jury, they still, despite

the abundant amount of time they now have had, present no reason for

attacking the jury selection process. And so defendants cannot

prevail.4

3. Pre-Trial Publicity

The defendants also argue that the district court erred in not

granting their motion for a continuance based upon adverse pre-trial

publicity. There was intense media coverage of the arrest and

indictment; by defendants count there were 153 articles in seven

4
Further, the remedy for denial of access would be a remand
with instructions to permit defendant sufficient time to inspect the
relevant records. See Royal, 100 F.3d at 1025-26 (error in denying
access to jury selection records did not require reversal of
defendant's conviction but rather a remand for an opportunity to
inspect those records; if, on remand, defendant then found a basis on
which to mount a challenge to the jury, he could file a motion for a
new trial).

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newspapers on the topic in the 60 days after their arrest, and numerous

broadcast accounts. In fact, the district court issued a gag order on

January 5, 1999, in an attempt at control. The coverage then abated.

In the end, there is little merit to this claim. In deciding

whether to grant such a motion, the court must determine if prejudice

exists from the publicity. See United States v. Moreno-Morales, 815

F.2d 725, 733-34 (1st Cir.), cert. denied, 484 U.S. 966 (1987). It is

not enough for a defendant simply to claim that the jurors were exposed

to news accounts of the crime. See United States v. Medina, 761 F.2d

12, 18-19 (1st Cir. 1985). Instead, a defendant "must show that the

setting of the trial was inherently prejudicial." Id. (quoting Murphy

v. Florida, 421 U.S. 794, 803 (1975) (on change of venue)). Prejudice

may be presumed where inflammatory publicity has so saturated a

community as to render it difficult to draw an impartial jury or where

enough jurors admit to prejudice to cause concern as to any avowals of

impartiality by the other jurors. See United States v. Rodriguez-

Cardona, 924 F.2d 1148, 1158 (1st Cir.), cert. denied, 502 U.S. 809

(1991). In this case, the court determined that, although there was

substantial publicity surrounding the trial, there was nothing

particularly inflammatory about it, and that the coverage "r[an] the

gamut from maligning to championing to defending to praising to simply

reporting on the [d]efendant's situation." In their brief to this

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court, the defendants provide no citations to any evidence that the

pre-trial publicity was particularly inflammatory or prejudicial.

Nor did voir dire reveal bias. The defendants argue that the

district court erred in failing to individually voir dire each

prospective juror outside the presence of other jurors regarding his or

her exposure to pre-trial publicity and the effect, if any, of such

exposure. "In cases where there is, in the opinion of the court, a

significant possibility that jurors have been exposed to potentially

prejudicial material . . . the court should proceed to examine each

prospective juror apart from other jurors and prospective jurors."

Patriarca v. United States, 402 F.2d 314, 318 (1st Cir. 1968) (emphases

added), cert. denied, 393 U.S. 1022 (1969). At voir dire, however, the

district court asked whether anyone had seen or read anything about the

case. The court then questioned each prospective juror who had

answered affirmatively concerning the circumstances under which he or

she had been exposed to publicity and whether, despite this exposure,

the individual could put his or her knowledge about the case aside and

decide the case only on the evidence presented. The district judge

then excused several jurors following such questioning. Defendants do

not specify anything that the court missed or failed to inquire about

during these exchanges. "The trial court has broad discretion in its

conduct of the voir dire because the determination of impartiality . .

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. is particularly within the province of the trial judge." Medina, 761

F.2d at 20 (internal quotation marks and citations omitted).

Further, as the district court noted, the defendants had failed

to move for a change of venue, placing on them "a significantly heavier

burden to show that widespread community publicity . . . render[s

their] trial presumptively unfair." Moreno-Morales, 815 F.2d at 739.

This court has specifically noted that requesting a change of venue

"remains a feasible option for a Puerto Rico accused confronted with

publicity at home." Id. at 737. The district court also correctly

pointed out that Rodriguez-Cabrera was coming up for re-election in

November of 2000 and, so, it was unlikely that postponing trial would

have resulted in diminished press coverage. Cf. id. ("Application for

a continuance rather than a change of venue is particularly disfavored

where . . . there is little reason to believe that the prejudicial

publicity complained of will abate within a foreseeable period.")

Charges of corruption by high public figures inherently generate

considerable public attention and notice. This court has affirmed

denials of motions to change venue or postpone trial due to pre-trial

publicity in cases involving much more high-profile, sensational

criminal activity. See, e.g., United States v. Angiulo, 897 F.2d 1169,

1180-83 (1st Cir. 1990) (involving multi-defendant RICO trial of

leading Boston organized crime figures); Moreno-Morales, 815 F.2d at

729-31 (involving police shooting of two supporters of Puerto Rican

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independence and allegations in the press and at televised hearings

before Puerto Rico's senate that the police officers had murdered the

activists after they had been captured and fully subdued). Other

courts of appeals have done the same. See, e.g., United States v.

Maldonado-Rivera, 922 F.2d 934, 966-67 (2d Cir. 1990) (involving $7

million Brinks robbery by Puerto Rican independence group "Los

Macheteros," or "the machete wielders"), cert. denied, 501 U.S. 1233

(1991).

4. District Court's Determination of Jurors' Understanding of
English.

Defendants argue that the district court failed to adequately

probe whether the prospective jurors sufficiently understood English.

Their primary contentions are that the district court should have: (1)

used the questionnaire propounded by defendants; and (2) asked the

prospective jurors, in Spanish, not English, whether they had any

problems understanding the proceedings.5

5
Rule 24(a), Fed. R. Crim. P. provides that the district
court "may permit the defendant or the defendant's attorney and
the attorney for the government to conduct the examination of
prospective jurors or may itself conduct the examination." In
the latter case, the court shall allow the defendant or his
attorney and the attorney for the government to supplement the
questions posed by the court, or it "shall itself submit to the
prospective jurors such additional questions by the parties or
their attorneys as it deems proper." Id.

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 "Because voir dire determinations rely largely on . . . immediate

perceptions, federal judges have been accorded ample discretion in

determining how best to conduct the voir dire." United States v.

Brown, 938 F.2d 1482, 1485 (1st Cir.) (internal quotation marks

omitted), cert. denied, 502 U.S. 992 (1991). Such discretion is

"subject only to the essential demands of fairness." Real v. Hogan,

828 F.2d 58, 62 (1st Cir. 1987). Thus, a district court:

need not permit counsel to dominate the process, nor pose every
voir dire question requested by a litigant. It is more than
enough if the court covers the substance of the appropriate areas
of concern by framing its own questions in its own words.

Id.

Defendants had requested that the district court submit to the

prospective jurors a questionnaire concerning proficiency in English.

According to defendants, the district court denied this request but

stated that it would incorporate into its voir dire the questions it

deemed useful and pertinent. The voir dire examination, however, did

not include any questions concerning English language ability.

Defendants then asked the trial judge to inquire, in Spanish,

whether anyone was having problems understanding either the judge's

questions or his instructions. The judge replied that the language of

the court was English and that he already had addressed the issue in

writing. The judge nonetheless asked, in English, whether anyone had

had difficulty in understanding English during the session. One person

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answered affirmatively and he was excused. When defendants again

requested that the question be posed in Spanish, the judge refused and

responded that "[t]he jury plan in this district has taken care of

th[e] situation."

Defendants rely on Thornburg v. United States, 574 F.2d 33 (1st

Cir. 1978). The defendant there had been convicted in the federal

district court in Puerto Rico of drug-related offenses. He then filed

a § 2255 motion, claiming that at least one, and maybe as many as four,

jurors had been unable to understand English. See id. at 34. One

juror previously had been disqualified from jury service due to poor

English and two other jurors had indicated on the juror qualification

forms that they had little ability to read, write, speak, and

understand English. See id. at 34-35. Here, in contrast, defendants

do not point to any evidence that any juror's ability to understand

English was deficient.

The district court did not abuse its discretion in the manner in

which it conducted the voir dire.

5. Denial of the Motion to Suppress the Seized $12,000

Rodriguez-Cabrera moved, inter alia, to suppress the money seized

from his desk at the time of his arrest. After holding a suppression

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hearing, the district court denied this prong of the motion.6 Our

review of the district court's ultimate conclusion concerning the

suppression decision is de novo. See Ornelas v. United States, 517

U.S. 690, 699 (1996); United States v. Andrade, 94 F.3d 9, 12 (1st Cir.

1996).

The problem raised is this. The agent only knew of the location

of the money because he asked Rodriguez-Cabrera where it was, but

Rodriguez-Cabrera had not been given Miranda warnings before being

asked that question. Rodriguez-Cabrera thus argues the consensual

search that resulted in the discovery of the money was the "fruit of a

poisonous tree" -- the poisonous tree being Rodriguez-Cabrera's

statement elicited in violation of the Fifth Amendment -- and should

therefore have been suppressed. Whether or not the district court

erred in admitting the evidence is not an important issue in the case,

as the admission of the money, assuming dubitante there was error at

all, was harmless beyond a reasonable doubt. First, the actual bundle

of cash added little to the government's very strong case. Second, the

defense theory of the case was that Shavers was the one behind the

scheme. As to the money that changed hands, the defendants testified

that it was for payment to one of the local contractors who had done

6
The district court, however, suppressed evidence of
Rodriguez-Cabrera's gesture toward the desk drawer due to the
failure to give Miranda warnings.

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some work. Thus, the $12,000 dollars in Rodriguez-Cabrera's desk was

entirely consistent with the defense theory.

6. Admission of Evidence of Rodriguez-Cabrera's Prior Bad Acts

Rodriguez-Cabrera argues that the district court abused its

discretion in admitting evidence of his prior bad acts -- specifically,

evidence that he had previously demanded a sum of money and a per-tire

royalty in exchange for awarding a municipal tire removal contract.

Specifically, defendant conceded the evidence was admissible under Rule

404(b), Fed. R. Evid., but argues the court improperly balanced the

evidence under Rule 403, Fed. R. Evid. We review a district court's

decision to admit or exclude evidence for abuse of discretion.

See United States v. Gilbert, 181 F.3d 152, 160 (1st Cir. 1999).

The judge heard the government's proffer of the prior bad acts

evidence and deferred ruling after Rodriguez-Cabrera testified, denying

any attempt at extortion and saying that the transaction was innocent.

The court ultimately decided the testimony was admissible to prove

Rodriguez-Cabrera's intent and lack of mistake. The issue of intent

was thus before the jury. The district court also instructed the jury

that it could consider this evidence only for the limited purpose of

whether Rodriguez-Cabrera had the state of mind or intent to commit the

crime. The district court acted well within its discretion in

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admitting the evidence. See Gilbert, 181 F.3d at 160-61; see also

United States v. Aguilar-Aranceta, 58 F.3d 796, 798 (1st Cir. 1995).

Orlando-Figueroa also complains of spillover effect on him from

this evidence. But the judge's instructions to the jury made clear

that the evidence was only being offered as to Rodriguez-Cabrera for

the limited purpose of deciding whether Rodriguez-Cabrera had the state

of mind or intent necessary to commit the crimes. There was no error.

7. Excluding Shavers' Stale Conviction

The defendants argue that the district court abused its

discretion by excluding evidence of Shavers' more-than-ten-year-old

conviction in 1986 for mail fraud,7 a crime involving "dishonesty or

false statement" under Rule 609(a)(2), Fed. R. Evid. Under Rule

609(b), evidence of such a conviction is not admissible unless the

court determines "in the interests of justice, that the probative value

of the conviction supported by specific facts and circumstances

substantially outweighs its prejudicial effect." After two in-chambers

hearings, the district court concluded that the probative value of the

impeachment evidence did not substantially outweigh its prejudicial

effect.

7
Shavers had pled guilty to mail fraud as a result of
his participation in the preparation and submission of false financial
statements to a bank to obtain a loan for a client of his manufacturing
company.

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 While Rule 609, Fed. R. Evid. is primarily concerned with

potential unfairness to a defendant when his prior convictions are

offered, the 1990 Amendment to Rule 609(a) rejects the approach that

the rule does not also protect government witnesses. This is a case in

which the defense did put into dispute the behavior of the government

witness. A component of the defense was that the government had gone

after the wrong defendant -- that Shavers was the culprit. While this

increased the value of the 1986 conviction to the defense, it also

increased its prejudicial effect. The ruling was within the court's

discretion. While Shavers was a key witness, the case did not turn on

Shavers' testimony alone. In addition to the tapes of the defendants'

own words, at least three other witnesses corroborated Shavers' account

of the events. These included Crawford, an FBI agent who had attended

the Mississippi meeting with Shavers and Orlando-Figueroa, and a

cooperating witness who had pled guilty. The defense's purpose in

using the mail fraud conviction could well have been not so much to

show that Shavers' testimony was untrue but rather to use the evidence

as propensity evidence and thereby show that Shavers was just as

criminally culpable as the defendants.

Moreover, the defense was able to impeach Shavers' credibility

with more recent dishonest acts by Shavers. For example, defendants

were able to suggest through cross-examination that Shavers initially

was willing to engage in "wheeling and dealing" for his benefit and

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only went to the FBI once he was "confronted with the magnitude of the

corrupt solicitation and extortion." Defendants also presented

evidence that Shavers had more recently been under investigation for

paying off a Louisiana official in connection with a debris collection

contract. That is a more factually similar situation to this case than

the 1986 mail fraud conviction, and was used to attack Shavers'

credibility. While a judge could also have concluded that the mail

fraud conviction was admissible, there was no abuse of discretion in

the district court's balancing.

8. Allowing the Government to Recall A Witness for Rebuttal

Defendants argue that the district court abused its discretion by

allowing the government to recall a witness for rebuttal after it had

concluded its case in chief. Orlando-Figueroa testified for the

defense that on November 24, 1998, the day he was arrested, he was

going to meet with Marcos Reyes-Gonzalez in order to pay him (for

debris cleanup work he had performed) the $12,000 that was found in

Rodriguez-Cabrera's desk.

Reyes-Gonzalez was a cooperating government witness who had pled

guilty to charges related to his involvement in the scheme. He

testified during the government's case-in-chief regarding events that

took place before the arrests on November 24. Then, upon hearing

Orlando-Figueroa's testimony about the $12,000, the government sought

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to recall Reyes-Gonzalez to testify that he was not expecting any money

on November 24. The court allowed the testimony. This was proper

rebuttal testimony, and the defendants do not argue otherwise on

appeal. On rebuttal, Reyes-Gonzalez was also questioned, over

objection, about statements Orlando-Figueroa made to him about the $2.5

million. Defendants argue that the judge should not have allowed the

government to recall Reyes-Gonzalez at all, but the real issue is

whether the portion of his testimony regarding the $2.5 million should

have been allowed. The trial judge found that the government only

learned of the post-arrest conversations regarding the $2.5 million as

a result of preparing Reyes-Gonzalez to give his rebuttal testimony.

The defendants argued that the government should have elicited this

information from Reyes-Gonzalez in preparing him for direct examination

and should have presented it to the jury on direct examination. Reyes-

Gonzalez's direct testimony concerned the pre-arrest information, and

the trial court credited the explanation that Reyes-Gonzalez never told

the government at his pre-trial interviews that he had any post-arrest

information. On cross-examination on rebuttal, Reyes-Gonzalez

testified that he only recalled Orlando-Figueroa's post-arrest

statements about the $2.5 million after reading a newspaper article

about Orlando-Figueroa's testimony attempting to justify the $2.5

million.

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 Given the court's crediting of the government's explanation, there

was no abuse of discretion in allowing the government to recall Reyes-

Gonzalez to offer rebuttal testimony.

9. Denial of the Motion for a New Trial

The defendants claim that the district court abused its discretion

in denying the motion for a new trial based on newly discovered

evidence, primarily an independent survey commissioned by Shavers that

showed that the landfill contained approximately 285,160 cubic yards of

debris and could accommodate up to 565,000 cubic yards of debris.

According to the defendants, this shows that the $2.5 million was for

a tipping fee of $5.00 per cubic yard of debris. The survey had been

sent to FEMA, but FEMA had not provided it to the prosecutors. We

review a trial court's denial of a motion for a new trial based on

newly discovered evidence for abuse of discretion. See United States

v. Huddleston, 194 F.3d 214, 218 (1st Cir. 1999). The district court

assumed the survey was material, and found that this new evidence was

unavailable and that defendants had been diligent. The trial judge

ruled, nonetheless, that defendants had not shown the new evidence

"probably will result in an acquittal on retrial." Id. There was no

error.

The evidence at trial was that Orlando-Figueroa discussed with

Shavers submitting inflated invoices that would show amounts between

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800,000 and 1,000,000 cubic yards of debris. The new survey evidence,

assuming arguendo its validity and accuracy, could not have justified

the exorbitant amounts discussed by Orlando-Figueroa and Shavers.

Also, the survey could not corroborate defendants' tipping fee argument

since the tipping fee for the amount of debris that the survey

estimated was in the site, 285,160 cubic yards, at the final contract

rate of $6.00 per cubic yard, would have been at most $1.71 million,

not $2.5 million.8 And there was trial testimony, which the jury

apparently believed, that there was never even close to 500,000 cubic

yards of debris to be cleaned-up, regardless of how much the town dump

could hold.

Defendants also point to a second new document, which shows that

the "tub grinder" portion of the Mayor's emolument had been rented

originally and not purchased. There is no reason to think any of this

evidence would have made a difference. The remaining arguments for new

trial as to other evidence are without merit.

10. Sentencing

8
Moreover, the evidence was that debris had not yet been
collected, the tipping fee had not yet been invoiced or even
calculated, and that there was no legitimate basis for either
Rodriguez-Cabrera or Orlando-Figueroa to receive cash payments
on behalf of the municipality.

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 The defendants make a number of arguments related to sentencing.

A. Calculation of Intended Loss Figure

First, they claim that calculating an increase to their base

offense level based upon an intended loss of $2.5 million was error.

See U.S.S.G. § 2F1.1. Our review is for clear error. See United

States v. Rizzo, 121 F.3d 794, 798 (1st Cir. 1997). Application Note

8 to § 2F1.1 provides that "if an intended loss that the defendant was

attempting to inflict can be determined, this figure will be used if it

is greater than the actual loss." An intended loss finding should be

upheld "where there is good evidence of actual intent and some prospect

of success." United States v. Robbio, 186 F.3d 37, 44 (1st Cir.)

(internal quotation marks omitted), cert. denied, 120 S. Ct. 602

(1999). There was ample evidence of defendants' actual intent to cause

a loss. The only remaining question is whether there was some prospect

of success from defendants' fraudulent scheme. Defendants argue that

FEMA never would have paid that amount of money and so a loss of $2.5

million was not possible.

The argument is too broad and the cases on which defendants rely

are distinguishable. This is not a situation in which the fraud, if

successful, could, for other reasons, have caused no loss. Cf. United

States v. Khan, 969 F.2d 218, 220-22 (6th Cir. 1992). Nor is it a

situation in which the defendant mistakenly and unreasonably believes

-30-
that the amount he can get by insurance fraud is greater than an

objectively determined maximum the insurer could have paid. Cf. United

States v. Santiago, 977 F.2d 517, 525-26 (10th Cir. 1992). Nor is this

a case in which the prosecution's theory of intended loss is

economically irrational. Cf. United States v. Schneider, 930 F.2d 555,

558-59 (7th Cir. 1991). The rule this circuit has followed is that the

intended loss determination made by the district court must be based on

evidence of "some prospect of success." Robbio, 186 F.3d at 44. That

standard was met here.

The evidence showed that the defendants were going to submit

certified fraudulent dump truck tickets and landfill log entries and a

fraudulent survey from a licensed surveyor hired to inflate to FEMA the

amount of debris at the site. In light of the need for speed when

providing disaster relief, FEMA traditionally relies on the goodwill

and candor of local municipal officials, as embodied in such

certifications, rather than perform its own independent surveys. It is

more than a bit odd to have defendants, who obviously took steps to

make their fraudulent scheme successful, argue that the scheme in fact

had no prospect of success and so they must receive a lesser sentence.

The Guidelines do not give a break to defendants whose greed, in

retrospect, may have overreached their abilities. Nor do the

Guidelines impose an obligation of perfect diligence on the government

agency to avoid being defrauded.

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B. Enhancement for Perjury

Second, the defendants claim that their sentences should not have

been enhanced for obstructing justice -- specifically, for committing

perjury. See U.S.S.G. § 3C1.1. The judge identified three examples of

the commission of perjury: (1) the denial of solicitation attempts; (2)

the denial that anything of value was requested; and (3) Rodriguez-

Cabrera's explanation for the presence of $12,000 in his desk drawer.

The judge relied on the tape recordings for the finding of perjury. On

the evidence, the judge could clearly find that Rodriguez-Cabrera and

Orlando-Figueroa lied in their testimony.

C. Aberrant Behavior

Third, Rodriguez-Cabrera claims that he was entitled to a downward

departure based on "aberrant behavior." Except where the district

court misunderstands its authority to grant the departure, "a criminal

defendant cannot ground an appeal on a sentencing court's discretionary

decision not to depart below the guideline sentencing range." Robbio,

186 F.3d at 44 (internal quotation marks omitted). Nothing suggests

that the district court did not understand its legal authority to

depart downward.

Defendants' Eighth Amendment argument as to sentencing is

frivolous.

III.

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 To the extent defendants make other arguments, such arguments are

without merit.

The convictions and sentence are affirmed.

So ordered.

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