884 F.3d 681
7th Cir.2018Background
- In Oct. 2013 Euripides Caguana sought a hit on two state witnesses against his son; he communicated with longtime acquaintance James Valentin, who then alerted police and worked with FBI.
- Recorded calls and meetings: Caguana discussed paying $7,500 ($5,000 first murder, $2,000 second, $500 for a gun), gave $500 for a gun, showed surveillance notes/photos, and met an undercover officer posing as a hit-man.
- Caguana was arrested after a recorded meeting; indicted on four counts under 18 U.S.C. § 1958(a) (use of interstate commerce facilities with intent that a murder-for-hire be committed). Jury convicted on all counts; district court sentenced to a total of 210 months.
- After conviction Caguana moved under Fed. R. Crim. P. 33 for a new trial based on newly discovered evidence suggesting Valentin was a paid informant; the district court held an evidentiary hearing and denied the motion. Caguana appealed both the convictions/sentence and the Rule 33 denial; appeals were consolidated.
- The Seventh Circuit reviewed sufficiency of evidence (intent and entrapment), the entrapment jury instruction, and guideline application to sentencing, and affirmed.
Issues
| Issue | Plaintiff's Argument (Caguana) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Sufficiency of evidence as to §1958 intent element | Government failed to prove a promise/ agreement to pay "anything of pecuniary value"; requires contract-like consideration | Evidence (recordings, $500, surveillance notes, stated offers of $7,000, meeting with hit-man) shows intent to pay for murders | Affirmed — §1958 does not require a formal contract; circumstantial and recorded evidence sufficient to prove intent |
| Entrapment (instruction and sufficiency) | Valentin induced Caguana and/or acted as government agent; instruction lowered Government burden | Valentin either was a private person (no entrapment) or, if agent, Caguana was predisposed; district instruction correctly distinguished private actors from government agents | Affirmed — defendant waived challenge to instruction; instruction was legally correct; jury reasonably rejected entrapment |
| New trial under Rule 33 (post-trial evidence about Valentin) | Newly discovered evidence shows Valentin was a paid informant and perjured himself, warranting a new trial | Post-trial investigation and hearing showed evidence was impeachment/cumulative and not sufficient to overturn verdict | District court denial stands (Caguana did not meaningfully challenge denial on appeal) |
| Sentencing: U.S.S.G. §2A1.5(b)(1) enhancement ("offer of pecuniary value") | Application of the 4-level enhancement double-counted conduct already element of §1958 and thus was erroneous | Base offense level covers solicitation generally; enhancement applies in addition when solicitation involved an offer to pay; cumulative application permitted | Affirmed — no double counting; enhancement properly applied and sentence was substantively reasonable |
Key Cases Cited
- United States v. Maloney, 71 F.3d 645 (7th Cir. 1995) (standard for sufficiency review: view evidence in light most favorable to government)
- United States v. Webber, 536 F.3d 584 (7th Cir. 2008) (appellate limits on weighing evidence and reviewing credibility)
- United States v. Dvorkin, 799 F.3d 867 (7th Cir. 2015) (§1958 intent element requires intent that murder be committed for payment but not a formal contract)
- United States v. Gibson, 530 F.3d 606 (7th Cir. 2008) ("consideration" in §1958 does not import full contract law; code language may suffice)
- United States v. Contreras, 820 F.3d 255 (7th Cir. 2016) (credibility findings will not be overturned absent internal inconsistency or extrinsic contradiction)
- United States v. Morris, 549 F.3d 548 (7th Cir. 2008) (no defense of private entrapment)
- United States v. Bender, 539 F.3d 449 (7th Cir. 2008) (new trial based on cumulative impeachment evidence is generally unwarranted)
- United States v. Grzegorczyk, 800 F.3d 402 (7th Cir. 2015) (standards of review for guideline interpretation and sentence reasonableness)
- United States v. Vizcarra, 668 F.3d 516 (7th Cir. 2012) (same conduct can determine base level and also trigger cumulative enhancements absent instruction otherwise)