United States v. CarrascoUnited States v. Carrasco
BESOSA, District Judge.
Before the Court is defendant Alejandro Carrasco-Castillo (“Carrasco”)’s motion for judgment of acquittal pursuant to
I. Background
On July 8, 2014, a grand jury charged Carrasco with soliciting bribes in violation of the Comprehensive Crime Control Act of 1984,
Carrasco is an experienced and “well known” attorney. (Docket No. 376 at p. 7.) Eduard Rivera-Correa (“Rivera”), Sol Luis Fontanes-Olivo (“Fontanes”) and Alfredo Alejandro Carrión (“Carrión”) are the former mayors of Río Grande, Barceloneta and Juncos, respectively (“mayors”). (Docket No. 375 at p. 31; Docket No. 376 at pp. 7, 10 and 21.)1 Carrasco forged personal relationships with Rivera, Fontanes, and Carrión. (Docket No. 375 at p. 31.) The mayors placed their “total trust” in Carrasco, holding the attorney in high esteem. Id. at p. 28.
Once Rivera, Fontanes and Carrión assumed office, the municipalities retained Carrasco to represent them in court, оffer seminars to government employees, and to provide legal advice regarding, among other matters, contracts and disbursements. See Trial Ex. 7A (Barceloneta Legal Services Contract), Trial Ex. 19A (Río Grande Contract for Legal Services and Consulting) & Trial Ex. 26A (Juncos Legal Services Contract). Río Grande and Barceloneta also hired Carrasco as an “independent contractor” to collect taxes and debts, compensating him with “ten percent (10%) of collections made.” See Trial Ex. 12A (Barceloneta Professional and Consulting Services Contract) & Trial Ex. 17A (Río Grande Legal and Advisory Services Contract). Carrascо received “hundreds and thousands of dollars” in his capacity as a municipal attorney, a position he held from at least 2008 to 2012. (Draft Transcript at p. 38.)2
Juan Carlos Mercado-Torres (“Mercado”) is an environmental engineer, specializing in landfill management. (Docket No. 375 at p. 16.) His clients include private companies, developers, and municipalities. Id. at p. 18. Carrasco and Mercado met in 2001 regarding a landfill project in Toa Alta, where Carrasco provided legal services. (Docket No. 376 at p. 5.) The landfill
A. The Corrupt Agreement
Mercado initially secured engineering contracts in Río Grande, Barceloneta and Juncos pursuant to legitimate procedures, submitting proposals and engaging in negotiations with government officials. (Docket No. 375 at pp. 20-28.) Carrasco assisted Mercado in navigating municipal politics. Indeed, Carrasco personally requested that Mercado address an infrastructure еmergency in Barceloneta and introduced Mercado to Rivera, Fontanes and Carrión. Id. at p. 25.
The contract procurement process devolved, however, into a corrupt scheme. The mayor of Juncos stated explicitly to Mercado that he need not pay bribes, requesting only that Mercado “defend the interests of the municipality before the Federal Government” in an environmental dispute. (Docket No. 376 at p. 29.) Fontanes, Rivera and Francisco Pumarejo (“Pumarejo”), a city planner in Barceloneta, demanded bribes, however, in exchange for municipal contracts. Id. at p. 30. Mercado complied, remitting thousands of dollars to Fontanes, Rivera, and Pumarejo. (Docket No. 375 at p. 20; Docket No. 376 at p. 45.)3
Carrasco also solicited bribes from Mercado. (Docket No. 376 at p. 30.) In 2006, Carrasco notified Mercado about the imminent construction of a public square in Río Grande, the “plaza pública” project. Id. The Municipality of Río Grande awarded the plaza pública contract to Mercado, but not before Carrasco demanded a bribe. Id. at p. 32. He questioned Mercado “how much was in there for him,” meaning Carrasco expected monetary compensation in return for “protection” and “wаtching [Mercado’s] back.” Id. at p. 33.4 Mercado agreed to “take care of Carrasco” by paying him $500 a month in cash. Id. at pp. 35 and 43. These kickback payments ensured that Mercado would receive the plaza pública contract and prevented Carrasco from disparaging him to Rivera. Id. at p. 36.
The plaza pública project marked the first of several requests for kickback payments. For ongoing projects, Carrasco periodically asked Mercado for “misas sueltas” (“loose change”). Id. at p. 53. Mercado subsequently paid for the “misas sueltas” to Carrasco by check. Id. These checks constituted powerful evidence at trial, demonstrating that thousands of dollars flowed from the three municipalities to Mercado, and ultimately to Carrasco. The kickback payments to Carrasco issued shortly after the municipalities disbursed
Mercado and Carrasco devised methods for concealing their arrangement. To fabricate a valid justification for the payments, Mercado wrote fictitious descriptions in the memo line of his checks to Carrasco. Id. at p. 62. To mention one example, on the $24,000 check for the Barceloneta contract, Mercado marked “legal fees (personal and commercial).” Id. Although Carrasco occasionally performed legitimate legal services for Mercado, the check for $24,000 and several others were not to pay for attorney’s fees for work done for Mercado. Id. They were bribes. Id. This “trick” equipped Mercado and Carrasco with a plausible explanation for the checks: that Carrasco received compensation for legal services as Mercado’s personal attorney. Id. at p. 63. The amount of the kickback payments varied because Mercado and Carrasco “understood that [they] could not make the checks for the same amounts” to avoid detection. Id. at p. 69. From 2008 through 2011, Mercado paid Carrasco at least $201,980. Id. at p. 82—86.5 A fraction of this amount constituted legitimate legal services. (Docket No. 377 at pp. 56—57.) Mercado testified that he paid $183,000 in bribes to Carrasco. Id. at p. 57. The United States presented evidence that Carrasco received “over $180,000 in bribes.” (Docket No. 387 at p. 45.)
B. Mercado is Arrested
Law enforcement officers arrested Mercado on February 16, 2012 “for bribes to Francisсo Pumarejo.” Docket No. 362 at p. 37; see Case No. 12-266.6 Mercado subsequently recorded his conversations with Carrasco and Rivera in coordination with the Federal Bureau of Investigation (“F.B.I.”). (Docket No. 362 at p. 54.) The United States moved to dismiss the criminal complaint against Mercado after he completed an eighteen-month Pretrial Diversion Program. Id.; see Case No. 12-266, Docket No. 20. The Court dismissed the criminal complaint without prejudice on December 21, 2012 pursuant to
The recorded conversations between Mercado and Carrasco confirm that “there was no other justification for those checks other than kickbacks.” (Docket No. 362 at p. 80.) Mercado and Carrasco discussed alternative explanations for the checks and expressed fear concerning an F.B.I. investigation, evincing a consciousness of guilt. Id. at p. 70. When Mercado speculated about the consequences of lying to federal agents, Carrasco stated “you’re fucked.” Id. Carrasco suggested that Mercado invoke the attorney-client privilege to shield the checks from public scrutiny. (Docket No. 377 at p. 10.) Mercado stated: “If I tell the truth, everybody is in trouble.” Id. at p. 11. Carrasco answered: “Everyone is you and me.” Id. They also referred to the five-year statute of limitations for federal program bribery. Id. at p. 19; see
Mercado’s testimony, the kickback checks, the recorded conversations and other evidence presented at trial persuaded the jury to find Carrasco guilty. He filed a timely motion for judgment of acquittal. (Docket No. 394.) The United States responded, and Carrasco replied. (Docket Nos. 397 and 399.) Carrasco’s sentencing hearing is scheduled for March 12, 2020. (Docket No. 382.)
II. Rule 29 Legal Standard
A court may set aside a jury’s guilty verdict аnd enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction. See
Rule 29 motions require a court to “take into account all evidence, both direct and circumstantial, and [to] resolve evidentiary conflicts and credibility disputеs in favor of the jury’s verdict.” United States v. Valerio, 676 F.3d 237, 244 (1st Cir. 2012). The First Circuit Court of Appeals has called this sufficiency of evidence challenge “a tough sell,” United States v. Polanco, 634 F.3d 39, 45 (1st Cir. 2011), observing that defendants seeking acquittal on this basis “face an uphill battle.” United States v. Pérez-Meléndez, 599 F.3d 31, 40 (1st Cir. 2010); accord United States v. Hatch, 434 F.3d 1, 4 (1st Cir. 2006) (referring to the sufficiency of evidence burden as a “daunting hurdle[]”) (internal quotation marks omitted).
While the sufficiency of the evidence is at the heart of the Rule 29 inquiry, deference to the jury’s verdict informs the Court’s analysis. To uphold the jury’s guilty verdict, the Court need only determine that the conviction “finds support in a plausible rendition of the record.” See, e.g., United States v. Shaw, 670 F.3d 360, 362 (1st Cir. 2012). Ultimately, Carrasco must establish that “the evidence is so scant that a rational factfinder cоuld not conclude that the government proved all the essential elements of the charged crime beyond a reasonable doubt.” United States v. Vázquez-Soto, 939 F.3d 365, 371 (1st Cir. 2019).
III. Discussion
Congress enacted
corruptly solicit[ing] or demand[ing] for the benefit of any person, or accept[ing] or agree[ing] to accept, anything of value from any person, intending to be influenced or rewarded in cоnnection with any business, transaction, or series of transactions of [the Municipality] involving anything of value of $5,000 or more.
Carrasco challenges his conviction on four grounds. (Docket No. 394.) First, Carrasco asserts that no reasonable juror could find that he qualified as an “agent” within the meaning of
A. Carrasco is an Agent Pursuant to Section 666
The indictment classifies Carrasco as an “agent” of Barceloneta, Río Grande and Juncos. (Docket No. 3.) This designation is significant because the charge of conviction applies only to agents of federally funded government entities or organizations.
[any] person authorized to act on behalf of another person or government and, in the case of an organization or government, includes a servant or employee, and a partner, director, officer, manager, and representative.
Unlike Kouri and ACHS, Carrasco and the municipalities memorialized their employment agreements. Counts one and four concern bribes that occurred in Barceloneta from July 2009 through August 2009 and “[f]rom in or around July 2011,” respectively. (Docket No. 3.) Count two pertains to bribery that occurred in Río Grande from March 2010 through July 2010. Id. Count three alleges that Carrasco was “an agent and representative of the Municipality of Juncos” from August 2010 through October 2016. Id.8 The contracts between Carrasco and the municipalities were admitted at trial during the testimony of Carlos Pérez-Rivera (“Pérez”), a documents administrator for the PROC. (Draft Transcript.)9 These contracts solidify Carrasco’s status as an agent.10
Carrasco and Barceloneta entered into multiple “Legal Services Contract[s].” Trial Exs. 11A, 12A, 13A and 15A. Pursuant to these contracts, Carrasco agreed to: (1) “represent [Barceloneta] in the Courts of Puerto Rico on any matter [Fontanes, in his capacity as mayor], refer[ed] to him,” (2) advise Barceloneta regarding “drafts of audit reports submitted for comments by the PROC,” (3) prepare action plans and intervention reports for the PROC, (4) evaluate “operational areas . . . such as Budget, Accounting, Disbursements, Contracts, Personnel, Purchases, Bids, and other related aspects for the purpose of informing about their condition and recommending corrective measures,” (5) “meet regularly with municipality’s officials,” (6) “represent [Barceloneta] in the administrative and investigative agencies,” (7) provide seminars to municipal officials, and (8) “act as the Examining Official at administrative hearings.” Trial Ex. 11A at pp. 1-2. Carrasco received $125 an hour for his
The agreements with Río Grande and Juncos are nearly identical, requiring Carrasco to represent the municipalities in court and before administrative agencies, evaluate contracts, offer seminars, and to complete tasks assigned by the mayors. (Trial Exs. 19A, 21A and 27A.)
Carrasco relies on a misguided and overly restrictive interpretation of the Sotomayor decision. Docket No. 394 (citing 249 F.3d 1). According to Carrasco, the First Circuit Court of Appeals held that agents “include either direct employees of the covered entities or outside consultants only when they had managerial responsibility or had acted as officers or directors of the covered entity.” Id. at p. 3. This binary standard is unfounded. The dispositive inquiry is whether the putative agent “represents the agency in any way.” Sotomayor, 249 F.3d at 8 (citing United States v. Philips, 219 F.3d 414, 422 n.28 (5th Cir. 2000) (Garza, J., dissenting)).
Carrasco’s сontracts with the municipalities are explicit manifestations of his status as an agent. Indeed, the evidence presented at Carrasco’s trial is more concrete and persuasive than the evidence in Sotomayor because the jury relied on the memorialized agreements and Mercado’s testimony that “[h]e was the attorney for the Municipalities.” (Docket No. 375 at p. 26.) Appearing on behalf of Río Grande, Barceloneta, and Juncos in court is a quintessential form of representation, equipping the jury with a sufficient basis to find that Carrasco is an “agent” pursuant to
Although the Río Grande agreements stipulated that “there is no employer-employee relationship,” the statutory text in
Evidence of Carrasco’s role as a municipal attorney belies the proposition that he is not an “agent” pursuant to
B. Corrupt Intent
According to Carrasco, the jury misapprehended the mens rea requirement in
Carrasco argues that “[n]o reasonable juror should confuse Mercado’s perception with an intent by Carrasco to be influenced.” (Docket No. 394 at p. 9.) In Carrasco’s closing argument, defense counsel asserted that “Mercado is a liar [and] a conman.” (Docket No. 387 at p. 82.) Defense counsel also alleged that Mercado cooperated with the United States for immunity and “planned what his testimony would be before [the jury] in this Court.” Id. at p. 84. Credibility assessments are within the province of the jury. United States v. Santos-Soto, 799 F.3d 49, 57 (1st Cir. 2015) (“We do not assess the credibility of a witness, as that is the role reserved for the jury.”). The jury considered defense counsel’s arguments regarding Mercado’s credibility and observed his testimony in court, concluding that the evidence warranted a guilty verdict. The Court will
C. Official Act
Carrasco challenges his conviction by modifying the elements of
Carrasco contends that his conviction cannot stand because he lacked “any authority” to award municipal contracts. (Docket No. 394 at p. 4.) The authority to allocate federal funds is not, however, an element of
D. The Evidence Established a Quid Pro Quo Agreement
Carrasco maintains that the payments he received from Mercado were gratuities rather than bribes. (Docket No. 394 at p. 18.) The First Circuit Court of Appeals has held that “gratuities are not criminalized under § 666.” Fernández, 722 F.3d at 23. In United States v. Sun-Diamond Growers, the United States Supreme Court held unanimously that “[t]he distinguishing feature of each crime is its intent element. Bribery requires intent ‘to influence’ an official act or ‘to be influenced’ in an official act.” 526 U.S. 408, 412 (1999). In contrast, a gratuity is conveyed exclusively as a “reward,” not to influence the recipient. Fernández, 722 F.3d at 19 (citation omitted). Accordingly, “the timing of the payment in relation to the official act for which it is made is (in theory) irrelevant.” United States v. Jennings, 160 F.3d 1006, 1014 (4th Cir. 1998).
The First Circuit Court of Appeals further clarified that “the essential difference between a bribe and an illegal gratuity is the intention of the bribe giver to effect a quid pro quo.” United States v. Mariano, 983 F.2d 1150, 1159 (1st Cir. 1993). In sustaining a
Carrasco purports that the evidence failed to demonstrate “whether any ensuing payment(s) to [him] were bribes or gratuities beсause “the [uncertain] timing of the alleged agreement in relation to the contracts.” (Docket No. 394 at p. 18.) When Carrasco first requested a bribe from Mercado, however, he did so before Mercado received the plaza pública contract. (Docket No. 375 at p. 35) (emphasis added). Subsequently, Carrasco demanded bribes “to continue collecting recurrently based on [Mercado’s contracts].” Id. at pp. 51-52; see United States v. Ganim, 510 F.3d 134, 142 (2d Cir. 2007) (“[T]he requisite quid pro quo for [
IV. Conclusion
For the reasons set forth above, Carrasco’s motion for judgment of acquittal is DENIED. (Docket No. 394.)
IT IS SO ORDERED.
San Juan, Puerto Rico, February 26, 2020.
s/ Francisco A. Besosa
FRANCISCO A. BESOSA
UNITED STATES DISTRICT JUDGE