United States v. Ducoudray-Acevedo
882 F.3d 251
1st Cir.2018Background
- In July–August 2012 a federal complaint and then an indictment charged Edwin Hernández and co-defendant Julio Castillo in a drug‑trafficking conspiracy; Castillo cooperated with authorities.
- Attorney Federico Ducoudray filed a notice of appearance for Hernández and then traveled from Puerto Rico to New York to visit Castillo in jail the day the federal indictment was returned.
- At the visit, Castillo testified, Ducoudray asked him to “retract” his statements to law enforcement so Hernández could “beat his case,” told Castillo not to tell others about the visit, and gave conflicting accounts about having permission from Castillo’s lawyer.
- Castillo’s lawyer, Peter Frankel, testified that Ducoudray later called and initially denied the visit, then admitted it and claimed he had called to find out who Castillo’s lawyer was; Frankel reported the visit to the AUSA and emailed an account.
- In 2015 Ducoudray was indicted for witness tampering (18 U.S.C. § 1512(b)(1)) and obstruction of justice (18 U.S.C. § 1503); a jury convicted him on both counts in January 2016. He appealed principally on sufficiency and multiple trial‑error grounds.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence to prove knowing, corrupt persuasion to influence testimony under § 1512(b)(1) and corrupt intent under § 1503 | Govt: evidence (notice of appearance, Castillo’s testimony, concealment of visit, false statements, Frankel’s report) shows Ducoudray knew Castillo would likely testify and encouraged him to retract/lie, proving elements beyond doubt | Ducoudray: request to "retract" was at most to tell the truth, invoke Fifth Amendment, or avoid implicating Hernández; no proof he knowingly asked Castillo to provide false testimony or that Castillo was a government witness | Affirmed: viewed favorably to gov’t, record allowed inference Ducoudray knowingly sought to persuade Castillo to retract and, if needed, lie; evidence sufficient for both convictions |
| Admissibility of Frankel’s testimony and email recounting Castillo’s statements (hearsay) | Govt: Frankel testimony admissible because defendant waived hearsay objection; email even if error was harmless because duplicates Frankel’s testimony | Ducoudray: email and Frankel’s recounting impermissible hearsay and prejudicial repetition of Castillo’s statements | Affirmed: Ducoudray waived objection to Frankel’s testimony; any error admitting the email was harmless |
| Jury instructions — refusal to give cooperating‑witness "caution" instruction | Ducoudray: jurors should have been explicitly told to view Castillo’s testimony with particular caution because of plea/cooperation agreement | Govt: general credibility instructions plus evidence of plea/cooperation sufficed; failure preserved only for plain‑error review | Affirmed: omission not plain error; general instructions and record evidence of bias cured potential prejudice |
| Supplemental instruction on ABA Model Rule 4.2 (no contact with represented party) | Ducoudray: instruction unwarranted, ambiguous, and risked relieving govt of proving corrupt intent; prejudicial because it suggested Rule violation | Govt: instruction merely described a professional proscription relevant to mens rea; jury was not told to find a Rule 4.2 violation as an element | Affirmed: instruction permissible as evidentiary context for intent; no abuse of discretion and did not substitute Rule 4.2 violation for mens rea requirement |
Key Cases Cited
- United States v. Gabriele, 63 F.3d 61 (1st Cir. 1995) (standard for sufficiency review and role of circumstantial evidence)
- United States v. Cruzado-Laureano, 404 F.3d 470 (1st Cir. 2005) ("corruptly persuading" includes trying to procure false testimony)
- United States v. Misla-Aldarondo, 478 F.3d 52 (1st Cir. 2007) (knowledge that actions are likely to affect an official proceeding is the relevant inquiry)
- Aguilar v. United States, 515 U.S. 593 (1995) (intent/knowledge that actions likely to affect judicial proceeding for § 1503)
- United States v. Hernández, 218 F.3d 58 (1st Cir. 2000) (de novo review of Rule 29 denials and credibility/jury‑role principles)
- United States v. Diaz, 300 F.3d 66 (1st Cir. 2002) (Rule 29 review requires consideration of all evidence admitted to the jury)