United States v. Lopez-Cotto
884 F.3d 1
1st Cir.2018Background
- Lopez, a Lawrence, MA police officer, was indicted under 18 U.S.C. § 666(a)(1)(B) for accepting a "stream of benefits" from M & W Towing (discounted/ gratis cars, engine, snow plow) in exchange for directing tow business worth at least $5,000; he was also charged with making false statements and obstruction for providing a forged receipt and encouraging witnesses to lie.
- Government proof included testimony from M & W owner Calixto and employees Colon and Ortiz (all immunized), increased tow referrals by Lopez during M & W’s police weeks, and specific transfers/discounts (Suzuki deal, Ford Escape sale, Altima, engine, snow plow via a blank signed check).
- District court worried proof might not support an ongoing "stream" and chose to instruct the jury on the stream-of-benefits theory while reserving sufficiency rulings; it also gave a unanimity instruction requiring jurors to agree on at least one specific benefit comprising the stream.
- Lopez was convicted on all counts; on appeal he raised (1) alleged constructive amendment via jury instructions; (2) prejudice from the unanimity instruction; (3) improper admission of prior-bad-acts testimony about his treatment of Valley Towing; and (4) inadequate jury instruction regarding testimony of immunized cooperating witnesses.
- The First Circuit affirmed, rejecting Lopez’s constructive amendment and other claims under plain-error review, but acknowledged the unanimity instruction was erroneous though not prejudicial.
Issues
| Issue | Lopez's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether jury instructions constructively amended the indictment by permitting conviction on a single benefit rather than a "stream of benefits" | Jury instructions (lack of definition of "stream," $5,000 language, unanimity instruction) effectively allowed a single-benefit theory, altering the indictment | Instructions read as a whole repeatedly required proof of a "stream of benefits," so no amendment occurred | No constructive amendment; instructions as a whole required a stream-of-benefits theory |
| Whether the unanimity instruction was confusing/prejudicial | Inclusion required jurors to unanimously pick a specific benefit and misdirected jury from determining a single overarching agreement; prejudiced Lopez | Unanimity instruction was unnecessary and erroneous but, if anything, heightened government burden and therefore did not prejudice Lopez | Court erred in giving unanimity instruction but any error benefitted defendant; no plain-error prejudice |
| Admissibility of testimony about Lopez's prior conduct toward Valley Towing (Rule 404(b)/403) | Testimony was impermissible prior-bad-acts evidence and unduly prejudicial—could suggest extortion, not bribery | Calixto’s knowledge of Lopez’s reputation was specially relevant to Calixto’s state of mind when entering the deal; repetition by other witnesses was cumulative | Admission of Calixto’s testimony proper under 404(b) and not plainly erroneous under 403; repetition by others harmless given cumulative proof |
| Jury instruction on credibility of immunized cooperating witnesses | Instruction failed to make clear witnesses were accomplices and subject to prosecution for the same offenses if they lied, so jury couldn’t properly assess motive to lie | Court’s instruction fairly and sufficiently cautioned jurors to scrutinize and give immunized testimony cautionary weight; no magic words required | Instruction adequate; no plain error—jury told to scrutinize immunized witness testimony and weigh cautiously |
Key Cases Cited
- Mubayyid v. United States, 658 F.3d 35 (1st Cir.) (discussing constructive amendment and surplusage in indictments)
- McIvery v. United States, 806 F.3d 645 (1st Cir.) (plain-error standard for forfeited instructional errors)
- Newell v. United States, 658 F.3d 1 (1st Cir.) (unanimity instruction required where count bundles discrete offenses)
- McDonough v. United States, 727 F.3d 143 (1st Cir.) (explaining "stream of benefits" theory applicability in bribery contexts)
- Miller v. United States, 471 U.S. 130 (Sup. Ct.) (definition and treatment of surplusage in indictments)
- Dowdell v. United States, 595 F.3d 50 (1st Cir.) (surplusage in an indictment can be ignored without affecting sufficiency)