UNITED STATES OF AMERICA, Appellee, v. FEDERICO DUCOUDRAY ACEVEDO, Defendant, Appellant.
No. 16-2247
United States Court of Appeals For the First Circuit
February 14, 2018
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Aida M. Delgado-Colón, U.S. District Judge]
Before Barron, Selya, and Lipez, Circuit Judges. Linda Backiel on brief for appellant. Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, and Thomas F. Klumper, Assistant United States Attorney, Senior Appellate Counsel, on brief for appellee.
On appeal, Ducoudray contends that there was not sufficient evidence to support the convictions. He argues, in the alternative, that a series of errors occurred at his trial that, he contends, show either singly or in combination that the convictions may not stand. We affirm both convictions.
I.
We reserve a discussion of the full set of facts, complicated as they are, for our discussion of the individual issues Ducoudray raises. For now, it suffices to recount those facts that make it possible to understand the charges underlying the convictions.
The complaint included a probable cause affidavit. The affidavit stated that Hernández‘s cousin, Julio Santana Castillo (“Castillo“), had already been arrested in New York as a participant in the same drug trafficking conspiracy in which Hernández was implicated. The affidavit also stated that Castillo was cooperating with federal law enforcement by providing law enforcement with evidence of Hernández‘s involvement in that conspiracy.
Hernández was arrested on the same day that the federal criminal complaint was filed against him. Two days later, Ducoudray provided a “notice of appearance” in that federal case indicating that he had been retained to serve as Hernández‘s attorney.
The next day, Castillo, who was being held at the time in a correctional facility in New York City on a New York state law charge of conspiracy to traffic narcotics, hired a defense attorney named Peter Frankel (“Frankel“) to represent him. Over the course of the next week, Frankel met with Castillo in the
Soon thereafter, on August 1, 2012, a grand jury in the United States District Court for the District of Puerto Rico indicted both Hernández and Castillo, as co-defendants. The indictment charged them with various counts related to the drug trafficking conspiracy in which they were alleged to have participated.1
The next key events for present purposes were as follows. On the same day that the federal indictment of Hernández and Castillo came down, August 1, 2012, Ducoudray left Puerto Rico and headed to New York City in hopes of visiting with Castillo at the correctional facility where Castillo was being held. Then, the next day, according to Castillo‘s testimony at Ducoudray‘s trial, Ducoudray met with Castillo at the correctional facility and told him that he should “retract [the] story” that he had told to law enforcement, as “Hernández was going to trial, and [Castillo‘s
Ducoudray ended the meeting, according to Castillo‘s testimony, by telling Castillo that he should not tell his brother or his attorney about the meeting. But, Castillo testified, after the visit Castillo feared for his safety and told his brother about the visit.
Soon after meeting with Castillo, moreover, Ducoudray contacted Frankel, according to Frankel‘s testimony at Ducoudray‘s trial. Frankel testified that, when the two men talked, Ducoudray identified himself as Hernández‘s attorney and asked Frankel whether Castillo was cooperating with law enforcement but that Ducoudray did not reveal that he was in New York City or that he had just visited Castillo. Frankel also testified that, after he later learned from Castillo‘s brother that there had been an unauthorized visit by a lawyer to Castillo, Frankel called Ducoudray. According to Frankel‘s testimony, Ducoudray initially denied that the visit had occurred, stating that he was in Puerto Rico, but, when pressed by Frankel, admitted that he had visited
The next morning, Frankel testified, he contacted the Assistant United States Attorney (“AUSA“) prosecuting Hernández‘s case and reported the incident to that AUSA, both orally and later by email. The email included an account of what Castillo had told Frankel about what Ducoudray had said to Castillo during their meeting at the correctional facility.
In 2015, Ducoudray was indicted on federal charges of obstructing the due administration of justice2 and tampering with a witness, victim, or an informant,3 in connection with his visit to Castillo. A jury trial was held in January 2016, after which Ducoudray was convicted of both offenses.4 He now appeals.
We first address Ducoudray‘s contention that the District Court wrongly denied his motion for a judgment of acquittal pursuant to
In order to convict Ducoudray of a violation of
Accordingly, setting to one side any other theories of criminal liability that the parties address in their briefing to us, Ducoudray‘s challenge to the denial of his Rule 29 motion fails if the evidence at trial sufficed to show that, in Ducoudray‘s words, he “knowingly attempted to persuade [Castillo] to violate the law by providing false testimony.” Our review of the denial of the motion is de novo. United States v. Hernández, 218 F.3d 58, 64 (1st Cir. 2000).6 But that review is “quite limited,” as
Applying these principles, we first consider Ducoudray‘s contention that the evidence did not supportably show beyond a reasonable doubt that Ducoudray “knew . . . [Castillo] was a witness in Hernández‘s pending proceeding.” In considering that contention, however, we must keep in mind that “[t]he key is not whether the defendant knows or doesn‘t know that someone is a ‘witness.‘” See United States v. Misla-Aldarondo, 478 F.3d 52, 69 (1st Cir. 2007). The key is whether the defendant knew that the person might be providing testimony in an upcoming official proceeding that the defendant‘s actions were likely to affect. See id. (interpreting
Here, the government put forth sufficient evidence from which a jury could find “that [Ducoudray] knew that an official proceeding had begun [against Hernández], or that he believed one to be likely in the future,” Misla-Aldarondo, 478 F.3d at 69 (footnote omitted). The government also put forth sufficient
That evidence included a copy of the notice of appearance that Ducoudray filed in federal court confirming his representation of Hernández in the federal case against him. That evidence also included Castillo‘s testimony about Ducoudray‘s request that Castillo “retract” his statements to law enforcement so that Hernández could “beat his case” at trial. After all, a jury could reasonably conclude from this testimony that Ducoudray was concerned about getting Castillo to change his story to help Hernández “beat his case” because Ducoudray thought that Castillo was likely both to testify as a witness against Hernández at trial and to provide testimony that would help the government to convict Hernández. Hernández, 218 F.3d at 64 (explaining that “all reasonable inferences [are] made in the light most favorable to the government” (quoting United States v. Loder, 23 F.3d 586, 590 (1st Cir. 1994))); Diaz, 300 F.3d at 77 (“‘In assessing the sufficiency of the evidence under Rule 29, we view the evidence and draw reasonable inferences in the light most favorable to the verdict.‘” (quoting United States v. McGauley, 279 F.3d 62, 66 (1st Cir. 2002))).8
We turn, then, to the question of whether the evidence also sufficed to show that Ducoudray “knowingly” sought to persuade Castillo to give false testimony, if need be, at the upcoming trial of Hernández. Ducoudray‘s chief argument that the evidence did not suffice in that regard is that “[t]he prosecution made no effort to show that . . . Ducoudray knowingly asked [Castillo] to retract truthful statements.” He contends the evidence suffices at most to show that Ducoudray was merely asking Castillo either to not “falsely implicate[]” Hernández or to invoke a valid Fifth-Amendment privilege against testifying. In connection with this contention, Ducoudray argues the testimony that he told Castillo to “accept [his] responsibilities” shows that, in asking Castillo to “retract” what he had told authorities, Ducoudray was merely asking Castillo to “correct what [Hernández] had told [Ducoudray] were lies.”
We must, however, consider the evidence in the light most favorable to the verdict. Hernández, 218 F.3d at 64 (explaining that the court of appeals “must uphold any verdict that is ‘supported by a plausible rendition of the record‘”
When we review the record from this verdict-friendly perspective, it is clear that the evidence did not require the jury to view Ducoudray‘s attempt to persuade Castillo to “retract” his statements to authorities as merely a request to testify truthfully or to invoke a valid privilege. Most significantly, Castillo testified that he understood the “retract” statement not to be advice that he should invoke a Fifth-Amendment right, but rather to be a request that he lie to authorities to help Hernández to “beat his case” at trial. Furthermore, Castillo testified that, during the same conversation in which the “retract” statement was made, he had told Ducoudray that what he had told authorities about Hernández‘s culpability for the conspiracy was the truth. Thus, the jury could supportably find that, in making the request to “retract” the statement, Ducoudray was not merely requesting Castillo to stay silent or tell the truth, but instead, if need
The reasonableness of such a conclusion about the intention behind Ducoudray‘s request to Castillo is bolstered by the ample record evidence that supports the conclusion that Ducoudray was trying to hide the fact of his visit to Castillo. That evidence ranges from evidence that shows that Ducoudray entered a false address in the visitor log of the correctional facility at which he visited Castillo, to evidence that shows that Ducoudray lied to Castillo about Castillo‘s lawyer giving Ducoudray permission to speak with Castillo, to evidence that shows that Ducoudray told Castillo not to tell anyone about the visit, to evidence that shows that Ducoudray falsely claimed that he had not made the visit when Frankel initially asked him about it.
To be sure, a jury was by no means required to conclude that Ducoudray sought to conceal his visit because he had asked Castillo to lie. Perhaps, as Ducoudray posits in his reply brief, the jury could have found that Ducoudray was “aware[] that he was at least skirting a professional rule” -- namely Model Rule 4.2 of the American Bar Association Model Rules of Professional Conduct (“Rule 4.2“)9 -- and thus that he “act[ed] surreptitiously [only] in order to avoid potential professional problems.”
But, a jury was entitled to draw a less favorable inference. And, thus, the evidence supports the convictions. See Misla-Aldarondo, 478 F.3d at 69 (interpreting
Ducoudray contends in the alternative that, even if his convictions need not be reversed due to insufficiency of the evidence, they must be vacated due to various trial errors that the District Court made. We consider these various claimed trial errors in turn.
A.
Ducoudray first argues that the District Court erred when it admitted into evidence the email that Frankel sent to the AUSA and certain testimony that Frankel provided at trial, insofar as this evidence purported to describe what Castillo told Frankel concerning Castillo‘s conversation with Ducoudray. Ducoudray contends that the email and the testimony -- by offering that description -- were inadmissible hearsay under
“We review the legal interpretation of a rule of evidence de novo, but the decision to admit or exclude evidence is reviewed for an abuse of discretion.” United States v. Phoeun Lang, 672 F.3d 17, 23 (1st Cir. 2012). In addition, we review any
1.
We start with Ducoudray‘s challenge to the Frankel testimony. That testimony concerned what Castillo told Frankel about what Ducoudray “advised” Castillo during his visit with him. That testimony also concerned what Ducoudray told Castillo during that visit with respect to “whether or not . . . Ducoudray had spoken to [Frankel] prior to [that] visit.”
The problem for Ducoudray is the following. At first Ducoudray made a hearsay objection to the admission of any testimony from Frankel concerning the content of Castillo‘s conversation with Ducoudray. But, before Frankel actually testified as to what Castillo told him, Ducoudray‘s counsel then reversed course by telling the District Court that “whatever was covered in direct examination or cross-examination of [Castillo] could be covered by [Frankel],” because “[i]t would be hearsay, but it would be admissible.” As the record shows that Castillo had testified on direct examination and cross-examination about his conversation with Ducoudray at the correctional facility, we thus agree with the government that Ducoudray waived his hearsay objection to the Frankel testimony insofar as it purported to relay
2.
We turn, then, to the email that Frankel sent. The government acknowledges that Ducoudray preserved his hearsay objection to the admission of the email. The government contends, however, that even if the email was improperly admitted, any error was harmless. We agree. Ducoudray does not contend on appeal that the email described any statements attributed to Castillo that exceeded the scope of Frankel‘s testimony about what Ducoudray or Castillo had said during their meeting. Thus, because Ducoudray waived his challenge to the Frankel testimony, any error in admitting the email was harmless. See, e.g., United States v. Vigneau, 187 F.3d 70, 78-79 (1st Cir. 1999); United States v. Fulmer, 108 F.3d 1486, 1502 (1st Cir. 1997).
B.
Ducoudray also challenges the jury instructions. But here, too, we find Ducoudray‘s arguments unpersuasive.
Ducoudray first challenges the District Court‘s refusal to grant his request to give the jury a portion of the District Courts of the First Circuit Pattern Criminal Jury Instruction 2.08 “on the caution due testimony witnesses cooperating under an
Ducoudray further contends that he was prejudiced by the District Court‘s refusal to give this “caution due” instruction. As he explains, even though “[t]he defense theory hung upon the lack of credibility of [Castillo]‘s testimony,” “the jury never learned the legal principle that [Castillo]‘s testimony should be received with ‘particular caution’ because he ‘may have had reason to make up stories or exaggerate . . . [sic] because he wanted to help himself.”
Ducoudray concedes, however, that, insofar as he failed to object or renew his request for this instruction at trial after it had been denied, then our review is only for plain error. And,
To “vault this hurdle,” Ducoudray must show “that an error occurred,” “that the error was clear or obvious,” “that the error affected his substantial rights,” and “that the error so seriously impaired the fairness, integrity, or public reputation of the proceedings as to threaten a miscarriage of justice.” Id. We have made it clear, moreover, that “a showing of ‘mere possibilities [is] not enough’ to prove that an instructional error affected a defendant‘s substantial rights.” United States v. Rivera-Izquierdo, 850 F.3d 38, 44 (1st Cir.), cert. denied, 137 S. Ct. 2204 (2017) (quoting United States v. Procopio, 88 F.3d 21, 31 (1st Cir. 1996)).
Here, in light of the fact that the requested instruction would have only cautioned the jury that Castillo might have had “reason to make up stories or exaggerate” to “help himself,” we do not see how Ducoudray can show on this record that the “outcome of the case would likely have changed” if the omitted instruction had been given. Id. (quoting United States v. Colon, 744 F.3d 752,
The conclusion that Ducoudray has failed to show the required effect on his substantial rights, draws further support from the fact the District Court did instruct the jurors that they “[did not] have to accept the testimony of any witness if [they did not] find the witness credible” and that they should consider a witness‘s “apparent fairness or any bias that they may have displayed” and “any interest [they] may discern that [a witness] may have had in the outcome of the case.” See United States v. Carr, 5 F.3d 986, 992 (6th Cir. 1993). Given that “we customarily assume that jurors follow the instructions given to them by the district court,” United States v. Rodríguez, 735 F.3d 1, 12 (1st Cir. 2013), and that the jury had been apprised of both the evidence of Castillo‘s plea agreement (including its terms) and his cooperation with law enforcement, those general instructions provided a basis for the jury to be on the lookout for Castillo‘s potential bias.
C.
Ducoudray separately argues that the instructions for the offense of tampering with a victim, witness, or an informant under
But, here, too, we find that the challenge to the District Court‘s instruction fails. Prior to instructing the jury on this count, the District Court modified the instruction that the District Court intended to give the jury by including some additional text regarding the meaning of “corruptly persuades” in light of concerns that Ducoudray raised. The District Court then announced the text of the instruction that would be (and was) provided to the jury. In response, Ducoudray‘s counsel affirmatively stated that he had “no objection.” We thus find that Ducoudray waived this challenge. See United States v. Hansen, 434 F.3d 92, 101 (1st Cir. 2006).
D.
That brings us to Ducoudray‘s final challenge to the jury instructions, which concerns the supplemental jury
The Cannons of Professional Conduct for Lawyers provide that, while representing a specific client, the lawyer shall not communicate about the subject of the representation with another defendant whom the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order. These Canons are part of the Local Rules of this Court and have the force of law.
The District Court, with respect to this instruction, did not instruct the jury that it had to find whether or not a violation of Rule 4.2 occurred.
Ducoudray attacks the Rule 4.2 instruction on a number of grounds. None, however, has merit.
Ducoudray first argues that the instruction on Rule 4.2 “was unwarranted by the facts.” He contends that “Frankel never represented [Castillo] in any federal case.” He also contends that the record does not support the finding that Ducoudray knew that Castillo was a defendant in the same case as Hernández. He argues, therefore, that in meeting with Castillo he could not possibly have been violating Rule 4.2.
It does not appear that Ducoudray raised this “unwarranted by the facts” objection to the Rule 4.2 instruction below. But, even if our review of the District Court‘s decision
Castillo testified that Ducoudray told him that Ducoudray had permission from Castillo‘s lawyer to speak with Castillo. That statement reasonably provides circumstantial evidence that Ducoudray understood Castillo to be represented in the federal matter, especially when that statement is considered in the context of the tight timing between Castillo being named in the federal indictment with Hernández and Ducoudray‘s decision to go visit Castillo in the correctional facility in New York City. Moreover, when the fact of Castillo‘s representation came up during the conversation between Ducoudray and Castillo, the record supportably shows that Ducoudray did not stop the conversation. In addition, Frankel, Castillo‘s lawyer, testified that he represented Castillo with respect to the federal charges and that he had not given Ducoudray permission to speak with Castillo.14
Thus, the record clearly provides “some foundation,” id., for finding that Frankel did represent Castillo with respect to the federal charges against Castillo, that Ducoudray understood Castillo to be a represented co-defendant in the same matter as Hernández, and that Ducoudray nevertheless chose to speak with Castillo without “the consent of [Castillo‘s] lawyer” in that matter or “authoriz[ation] to do so by law or a court order.”
Ducoudray argues, in the alternative, that the instruction was given in error because the jury was in no position to determine what conduct would constitute a violation of Rule 4.2. Here, too, Ducoudray‘s challenge to the instruction was not apparently made below. But, once again, even if we review the instruction for an abuse of discretion, see United States v. Gonzalez, 570 F.3d 16, 21 (1st Cir. 2009), we find none.
Ducoudray‘s challenge on this score appears to rest entirely on his assertions in his brief about Rule 4.2‘s ambiguity. But, Ducoudray points to no authority to support his contention that a jury may not be permitted to pass on whether a professional rule such as Rule 4.2 was violated simply due to possible
Ducoudray‘s final challenge to the instruction regarding Rule 4.2 is that it improperly “relieved the prosecution of its burden to prove the element of corruption at the heart of both counts of the indictment by allowing the jury to rely upon its view of whether [Rule 4.2] was violated to find the required mens rea of both offenses.”15 Ducoudray further contends that this instructional error is one of law and should be reviewed de novo.
But, the instruction, as written, did not tell the jury that it had to find that proof of the violation of Rule 4.2 in and of itself would satisfy any element of either of the offenses that Ducoudray was charged with committing. Nor, by terms, did the instruction even tell the jury that proof of such a violation could in and of itself satisfy any such element. Accordingly, this challenge is ultimately to the potentially misleading nature of the instruction‘s wording, and so our review of this preserved challenge to the instruction is only for abuse of discretion. See Gonzalez, 570 F.3d at 21.16
The government contends that the District Court did not err in providing this instruction. In so arguing, the government relies on the explanation that the District Court gave when it addressed this issue in the context of a post-conviction motion for bail by Ducoudray. There, the District Court stated that the
As the government notes, precedent supports the conclusion that proof of a violation of a professional rule may play an evidentiary function in assessing the mens rea of a lawyer charged with criminal conduct in other contexts. See, e.g., United States v. Kelly, 888 F.2d 732, 744 (11th Cir. 1989); Machi, 811 F.2d at 1000-02; United States v. DeLucca, 630 F.2d 294, 301 (5th Cir. 1980); see also, e.g., United States v. Klauber, 611 F.2d 512, 520 (4th Cir. 1979). And while it is true, as Ducoudray argues, that none of these cases concern Rule 4.2, we do not see why that fact shows that proof of a violation of Rule 4.2 could not serve a similar evidentiary function concerning Ducoudray‘s mens rea here.
Moreover, Ducoudray never explains how the wording of the instruction misled the jury into concluding that proof of a violation to Rule 4.2 could, in and of itself, “stand in for the elements of the offenses,” rather than that such proof could simply be relevant to the determination of whether Ducoudray had acted with the requisite corrupt intent.17 Consequently, we do not see a basis for concluding that the inclusion of this supplemental instruction was an abuse of discretion. After all, the instruction was given only as a supplemental instruction after the jury had been separately instructed about the elements of each offense that it was required to find in order to convict Ducoudray. And the
For these reasons, we see no merit in Ducoudray‘s various challenges to the supplemental instruction concerning Rule 4.2. And thus we see no basis for concluding that this instruction requires that the convictions -- with respect to either offense -- be vacated.
IV.
Ducoudray‘s final argument is that his convictions must be reversed on the distinct ground that, even if no single error at trial warrants reversal, the cumulative effect of the errors does. But, although “[i]ndividual errors, insufficient in themselves to necessitate a new trial, may in the aggregate have a more debilitating effect,” United States v. Sepulveda, 15 F.3d 1161, 1195-96 (1st Cir. 1993), the cumulative error doctrine offers no help to Ducoudray.
Our review of the individual alleged errors reveals that there were either no errors or that the objections to the alleged errors were waived, with the sole exception being the admission of the Frankel email to the AUSA. But, as to that email evidence, we found that any error on the part of the District Court in admitting
V.
The judgment is affirmed.