UNITED STATES OF AMERICA, Plaintiff – Appellee, v. SAMUEL OCASIO, Defendant – Appellant.
No. 12-4462
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
April 29, 2014
PUBLISHED. Argued: December 11, 2013. Granted by Supreme Court March 2, 2015.
Before MOTZ, KING, and SHEDD, Circuit Judges.
Affirmed in part, vacated in part, and remanded by published opinion. Judge King wrote the opinion, in which Judge Motz and Judge Shedd joined.
ARGUED: Matthew Scott Owen, KING & SPALDING LLP, Washington, D.C., for Appellant. Kathleen O‘Connell Gavin, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF: Daniel S. Epps, KING & SPALDING LLP, Washington, D.C., for Appellant. Rod J. Rosenstein, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
In 2012, a jury found defendant Samuel Ocasio, a former officer of the Baltimore Police Department (the “BPD“), guilty of four offenses relating to his involvement in a kickback scheme to funnel wrecked automobiles to a Baltimore auto repair shop in exchange for monetary payments. Ocasio was convicted on three Hobbs Act extortion counts, see
I.
A.
On March 9, 2011, Ocasio and ten codefendants were indicted in the District of Maryland in connection with the kickback scheme involving payments to BPD officers in exchange for referrals to a Baltimore business called Majestic Auto Repair Shop LLC (the “Majestic Repair Shop,” or simply “Majestic“). Nine of the defendants were BPD officers, and the others were Herman Alexis Moreno and Edwin Javier Mejia, brothers who were
Seven months later, on October 19, 2011, the grand jury returned a seven-count superseding indictment charging only two defendants, Ocasio and another BPD officer, Kelvin Quade Manrich, who had not been named in the initial indictment. Thereafter, the conspiracy offense in the first indictment was dismissed as to each of the other defendants, in exchange for guilty pleas. Each defendant entered into a plea agreement with the government and pleaded guilty to a separately-filed superseding information, predicated on admitted involvement in the kickback scheme.2 In connection with their guilty pleas, the
Count One of the superseding indictment — naming both Ocasio and Manrich — repeated the charge of conspiring to violate the Hobbs Act, in contravention of
In Count One, the superseding indictment alleged the
From in or about the Spring of 2008, and continuing through at least February 2011, [Ocasio and Manrich], and others both known and unknown to the Grand Jury,
did knowingly and unlawfully combine, conspire, confederate, and agree together, with other [BPD officers], and with Moreno and Mejia to obstruct, delay, and affect commerce and the movement of any article and commodity in commerce by extortion, that is, to unlawfully obtain under color of official right, money and other property from Moreno, Mejia, and [the Majestic Repair Shop], with their consent, not due the defendants or their official position, in violation of [the Hobbs Act].
J.A. 50. According to Count One, the purpose of the conspiracy was for “Moreno and Mejia to enrich over 50 BPD Officers . . . by issuing payments to the BPD Officers in exchange for the BPD Officers’ exercise of their official positions and influence to cause vehicles to be towed or otherwise delivered to Majestic for automobile services and repair.” Id. at 51. Count One spelled out two overt acts in furtherance of the conspiracy — a December 14, 2010 phone call between Manrich and Moreno, plus a January 15, 2011 call between Ocasio and Moreno — and incorporated by reference, as additional overt acts, each of the six substantive Hobbs Act extortion counts.
B.
The prosecutions underlying this appeal were the result of an extensive investigation conducted by the BPD and the FBI. The BPD began its investigation in the summer of 2009. When federal authorities joined the investigation in late 2010, the BPD had identified approximately fifty of its officers as possibly involved in wrongdoing with the Majestic Repair Shop.
The trial evidence established a wide-ranging kickback scheme involving the Majestic Repair Shop and BPD officers.4 The scheme was fairly straightforward: BPD officers would refer accident victims to Majestic for body work and, in exchange for such referrals, the officers would receive monetary payments. The payments made to BPD officers by the Majestic Repair Shop for their referrals of wrecked vehicles were made by both cash and check, and ranged from $150 to $300 per vehicle. After the kickback and extortion scheme began, knowledge of it spread by word-of-mouth throughout the BPD.
The referral of accident victims to the Majestic Repair Shop by BPD officers in exchange for money violated the BPD‘s established procedures. The BPD General Orders specify that BPD officers shall not violate any state or federal laws or city ordinances, or solicit or accept any “compensation, reward,
1.
The Count One conspiracy commenced in late 2008 or early 2009. Officer Ocasio first became involved in the kickback
a.
Around midnight on January 17, 2010, Officer Ocasio responded to an accident scene in Baltimore. After determining that one of the wrecked vehicles was not driveable, Ocasio called the driver, a Mr. Taylor, to the BPD patrol car and gave
b.
Several months later, in March 2010, a driver flagged Ocasio down around midnight to report that his vehicle had been vandalized. Ocasio, after ascertaining that the car could not be driven and was blocking a city street, recommended calling
On November 7, 2010, Officer Ocasio was again working the BPD‘s night shift. Around 4:00 that morning, Ocasio was called to an area of Baltimore where four parked vehicles had been hit by a fifth vehicle. Ocasio called Moreno to describe the four damaged vehicles and to see if Moreno would like any of them referred to the Majestic Repair Shop. During this call, Ocasio described the car that had collided with the parked vehicles, advising Moreno that it was “an Acura Legend” with “full cover,” conveying to Moreno that the car at fault was a luxury vehicle and that its insurer would pay for the damages suffered by the other vehicles. See J.A. 416. Moreno expressed concerns to Ocasio about the values of the four damaged automobiles, questioning whether they would be worth towing and repairing. Ocasio then identified one of those cars as a 2006 Toyota, which interested Moreno because the Toyota was more valuable than the others. Ocasio advised Moreno that there was no need to tow the Toyota, however, because it could still be driven. In response,
After Moreno and Ocasio agreed that the Toyota should be referred to the Majestic Repair Shop, Ocasio identified its owner, a Mr. Tran, through the computer in a BPD patrol car. Despite the early morning hour and the fact that the Toyota was in operating condition, Ocasio went personally to Tran‘s home and misrepresented the accident situation. Ocasio falsely advised Tran that the accident report had to be completed that very morning. Officer Rogich, another BPD officer who was at the scene, explained otherwise to the jury, stating that he “wouldn‘t have knocked on [the owners‘] doors,” and “would have just left” accident report forms on the windshields of the damaged cars or at the owners’ doors. See J.A. 926. While in Tran‘s residence, Ocasio recommended that Majestic fix the Toyota. Ocasio then called Moreno, who arrived soon thereafter and convinced Tran to have the Toyota towed to Majestic for repairs. Moreno also gave Tran documentation reflecting that his Toyota had been towed to Majestic. Rather than towing the Toyota, however, Moreno drove it from the accident scene to Majestic. En route, Moreno stopped at a nearby convenience store and met Ocasio. While there, Moreno withdrew $300 in cash from a Majestic bank account, which was paid to Ocasio.
In the early morning hours of January 10, 2011, Officer Ocasio was called to the scene of a hit-and-run accident in Baltimore to translate for an accident victim, Mr. Quintanilla, who did not speak English. Quintanilla‘s SUV had been damaged in the accident, and it had been pushed off the street into a yard. The first BPD officer to respond to the scene concluded that there was no need to tow the SUV. Ocasio, after asking Quintanilla if he knew where the SUV could be fixed, recommended that it be towed to the Majestic Repair Shop. Ocasio then called Moreno to describe the damaged SUV, and Moreno responded by sending one of his associates to tow it to Majestic. That afternoon, Ocasio called Moreno seeking his referral fee. On January 14, 2011, Ocasio picked up Moreno at Majestic and they travelled together to a nearby ATM. Moreno then withdrew $300 in cash from a Majestic bank account and paid it to Ocasio.
d.
On January 15, 2011, Officer Ocasio made yet another referral to the Majestic Repair Shop. Shortly after 2:00 a.m., Ocasio arrived at the scene of a hit-and-run accident, being one of several BPD officers to respond. Ocasio had not been assigned to the accident by the BPD dispatcher, however, and should have been on “special detail” in another area of Baltimore. The wrecked vehicle was badly damaged and could not
2.
Officer Ocasio also personally utilized the services of the Majestic Repair Shop. On January 29, 2010, Ocasio‘s wife was involved in a traffic accident that caused only slight damage to the rear bumper of her SUV. As a result, Ocasio called Moreno and asked that his wife‘s SUV be towed to Majestic. Because Ocasio‘s insurance company (GEICO) was unlikely to pay for such minor repairs, Ocasio overstated the SUV‘s damage on a GEICO claim form. Moreno then caused additional damage to the SUV —
On December 29, 2010, Ocasio again called on the Majestic Repair Shop‘s towing and repair services for his personal needs. When Ocasio‘s private vehicle broke down in Baltimore, he called Moreno for a tow. Moreno advised Ocasio that he would take care of the towing fee and sent a friend from another towing service to tow Ocasio‘s vehicle. Rather than have his automobile towed to Majestic‘s shop, however, Ocasio had it towed to his residence. The towing fee was $150, more than Moreno had anticipated. When Moreno asked Ocasio to split the towing fee, Ocasio agreed to do so, but thereafter reneged on that arrangement.
Prior to Ocasio and Manrich‘s joint trial on the superseding indictment, the prosecution submitted its proposed jury instructions to the district court. In response, Ocasio made objections and submitted his own proposed instructions. Therein, Ocasio raised the primary argument that he pursues on appeal: that he could not be convicted of conspiring with Moreno and Mejia, because they were the victims of the alleged Hobbs Act extortion conspiracy. Ocasio‘s argument relied on United States v. Brock, 501 F.3d 762 (6th Cir. 2007), wherein the Sixth Circuit concluded that the victim of a Hobbs Act conspiracy must be a person outside the alleged conspiracy, i.e., the victim cannot also be a coconspirator in the extortion scheme.9 The prosecution objected to Ocasio‘s proposed Brock
The trial began in Baltimore on February 13, 2012. On February 22, 2012, after presenting twenty-four witnesses, the prosecution rested. Ocasio and Manrich each moved for judgments of acquittal. With respect to the Count One extortion conspiracy, Ocasio pursued his Brock argument that Count One rested on a legally impermissible theory under which he could not be convicted. The district court denied Ocasio‘s acquittal motion, as well as Manrich‘s, distinguishing Brock and concluding that this Court‘s decision in United States v. Spitler, 800 F.2d 1267 (4th Cir. 1986), controlled.
The following day, Manrich pleaded guilty to the charges lodged against him in the superseding indictment. Ocasio, however, proceeded with the trial and called five witnesses in his defense, three of whom were character witnesses. Ocasio himself did not testify. At the conclusion of the evidentiary presentations, Ocasio renewed his judgment of acquittal motion, which was again denied.
On February 24, 2012, prior to deliberations, the district court instructed the jury, including in those instructions the essential elements of the Hobbs Act conspiracy and extortion offenses lodged against Ocasio. The court did not instruct the jury on Ocasio‘s Brock argument. That afternoon, the jury found
On June 1, 2012, the district court sentenced Ocasio to eighteen months in prison, to be followed by three years of supervised release. The court also ordered Ocasio to make restitution to the BPD in the sum of $1,500.00, the aggregate value of the cash payments Ocasio had received from the Majestic Repair Shop. The prosecution sought further restitution with respect to Erie Insurance, predicated on the proposition that Ocasio had defrauded GEICO, which in turn had been reimbursed by Erie (as insurer for the at-fault driver involved in the accident with Ocasio‘s wife). At sentencing, the court deferred ruling on the Erie restitution issue and took the matter under advisement. The criminal judgment, without addressing the prosecution‘s restitution request with respect to Erie, was entered on June 5, 2012. On July 23, 2012, the court entered an amended judgment, directing Ocasio to make restitution to Erie in the sum of $1,870.58. That amount represented the difference between the total reimbursement made by Erie and the amount actually attributable to the Erie-insured motorist.
Ocasio timely noticed this appeal, and we possess jurisdiction pursuant to
On appeal, Ocasio maintains that the Count One conspiracy conviction is fatally flawed. Under Ocasio‘s theory, conspiring to extort property from one‘s own coconspirator does not contravene federal law, and thus the conspiracy offense was not proven and the district court erred in denying him an acquittal on Count One. Additionally, Ocasio challenges the restitution award to Erie Insurance, contending that Erie is not a victim of any of his offenses of conviction.
A.
We first address and reject Ocasio‘s contention that his Count One conspiracy conviction is legally invalid.10 We review de novo a district court‘s denial of a motion for judgment of acquittal. See United States v. Smith, 451 F.3d 209, 216 (4th Cir. 2006). In conducting such a review, we must sustain a guilty verdict if, viewing the evidence in the light most favorable to the prosecution, it is supported by substantial evidence. See id. Moreover, we review de novo a question of
1.
Ocasio was convicted under
two or more persons conspire . . . to commit any offense against the United States . . . in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy.
Consistent with the statutory language, the trial court instructed that, in order to convict Ocasio of the Count One conspiracy, the jury was obliged to find that the prosecution satisfied the following elements:
- First, that two or more persons entered the unlawful agreement that is charged in the [superseding] indictment, starting in or about the spring of 2008, and this is the agreement to commit extortion under color of official right[;]
- Second, that the defendant, Mr. Ocasio, knowingly and willfully became a member of that conspiracy[;]
- Third, that one of the members of the conspiracy knowingly committed at least one of the overt acts charged in the [superseding] indictment; and
- [F]ourth, that the overt act, which you find to have been committed, was done to further some objective of the conspiracy.
The statutory object of the Count One conspiracy was to violate the Hobbs Act, which provides, in pertinent part, that
[w]hoever in any way or degree obstructs, delays, or affects commerce . . . by . . . extortion . . . in furtherance of a plan or purpose to do anything in violation of this section shall be [guilty of an offense against the United States].
2.
Ocasio, relying on the Sixth Circuit‘s decision in United States v. Brock, 501 F.3d 762 (6th Cir. 2007), contends that his conspiracy conviction is fatally flawed because a public official cannot be convicted of conspiring to extort property from his own coconspirator. He seeks to distinguish our decision in United States v. Spitler, 800 F.2d 1267 (4th Cir. 1985) — the decision primarily relied upon by the district court to reject Ocasio‘s theory.
a.
We begin our analysis by discussing Brock and Spitler.12 In the latter case, we ruled that Spitler, an employee of a state
In so ruling, Spitler recognized the extremes of a spectrum of conduct ranging from “mere acquiescence” (which is not punishable under conspiracy principles) to active solicitation and inducement (which plainly fall within the purview of the conspiracy statutes). See 800 F.2d at 1276-78. Writing for the panel, Judge Russell found it unnecessary to “paint with a broad brush and declare a bright line at which a payor‘s conduct constitutes sufficient activity beyond the mere acquiescence of a victim so as to subject him to prosecution as an aider and
Thereafter, in its contrary Brock decision, the Sixth Circuit ruled that the Hobbs Act‘s conspiracy provision did not reach conduct by private citizens who had concocted a bribery scheme to pay off a county clerk. Brock and his brother operated a bail bond business. When a client “skipped town” and the Brocks became liable on the bond, Brock asked the county clerk to “make the problem go away by removing the scheduled forfeiture hearing from the court‘s calendar.” See 501 F.3d at 765 (internal quotation marks and punctuation omitted). Brock then paid the clerk for altering the court‘s schedule. Brock and his brother conducted the scheme with the county clerk over several years, securing the clerk‘s cooperation when their bonding clients absconded. The court of appeals determined that, because the Brocks were victims of the clerk‘s extortion scheme, they could not also be conspirators.
In so ruling, the Brock court focused on the language of the Hobbs Act, reasoning that a Hobbs Act conspiracy requires an agreement to obtain “‘property from another,’ which is to say,
b.
As the district court determined, Ocasio‘s case is governed by our Spitler precedent. The Spitler rule is that a person like Moreno or Mejia, who actively participates (rather than merely acquiesces) in a conspiratorial extortion scheme, can be named and prosecuted as a coconspirator even though he is also a purported victim of the conspiratorial agreement. That rule comports with basic conspiracy principles: One who knowingly participates in a conspiracy to violate federal law can be held accountable for not only his actions, but also the actions of his coconspirators. See, e.g., United States v. Burgos, 94 F.3d 849, 858 (4th Cir. 1996) (en banc). Put simply, as Judge
Ocasio contends to the contrary. Relying on Brock, he argues that the Hobbs Act‘s “from another” language requires that a coconspirator obtain property “from someone outside the conspiracy.” 501 F.3d at 767. At the outset, we note that the language of the Hobbs Act does not compel this conclusion: the “from another” requirement refers to a person or entity other than the public official. That is, it provides only that a public official cannot extort himself. Thus, where a defendant is charged with conspiring to commit Hobbs Act extortion, the prosecution must show that the object of the conspiracy was for the conspiring public official to extort property from someone other than himself. Nothing in the Hobbs Act forecloses the possibility that the “another” can also be a coconspirator of the public official.
Ocasio next contends that the law must require that a victim under the Hobbs Act be a person outside the conspiracy because, otherwise, every victim‘s “consent” could be considered his agreement to enter into a conspiracy with his victimizer, “thereby creating a separately punishable conspiracy in every
Although we affirm Ocasio‘s convictions, we vacate the sentencing court‘s award of restitution to Erie Insurance. Ocasio maintains that Erie was not a victim of any of his offenses of conviction. At best, he contends, Erie was the victim of an uncharged insurance fraud scheme. Our review of the court‘s restitution order is for abuse of discretion. See United States v. Llamas, 599 F.3d 381, 387 (4th Cir. 2010). We assess de novo any legal questions raised with respect to restitution issues, including matters of statutory interpretation. See United States v. Ryan-Webster, 353 F.3d 353, 359 (4th Cir. 2003).
The Victim Witness Protection Act (the “VWPA“) provides in pertinent part that a district court, when sentencing a defendant convicted under Title 18, may order him to make restitution to any victim of the offenses of conviction. See
a person directly and proximately harmed as a result of the commission of an offense for which restitution
may be ordered including, in the case of an offense that involves as an element a scheme, conspiracy, or pattern of criminal activity, any person directly harmed by the defendant‘s criminal conduct in the course of the scheme, conspiracy, or pattern.
Applying the foregoing standard to these circumstances, we are unable to endorse the sentencing court‘s determination that Erie Insurance suffered any losses that resulted from the Hobbs Act extortion conspiracy charged in Count One. Indeed, nothing in the superseding indictment or in the trial evidence suggests that an object of that conspiracy was to commit insurance fraud. Nor does the record suggest that an insurance fraud scheme was part of a pattern of criminal activity included as an element of the Count One conspiracy. Perhaps Ocasio could also have been convicted of defrauding Erie Insurance or conspiring to do so, but that did not occur. The United States Attorney and the grand jury did not see fit to charge Ocasio with an insurance fraud scheme, and it would thus be inappropriate to penalize him as though he was also convicted of that offense. Because Erie was not a “victim” under the VWPA, the district court‘s award of restitution to Erie Insurance must be vacated.15
Pursuant to the foregoing, Ocasio‘s convictions and sentence, as reflected in the district court‘s judgment order of June 6, 2012, are affirmed. The court‘s amended judgment order of July 23, 2012, however, is vacated to the extent that it includes the award of restitution to Erie Insurance. We remand for such other and further proceedings as may be appropriate.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED
Notes
J.A. 136.In order to convict a defendant of conspiracy to commit extortion under color of official right, the government must prove beyond a reasonable doubt that the conspiracy was to obtain money or property from some person who was not a member of the conspiracy. Therefore, if you find that the only person or persons from whom a defendant conspired to obtain money by extortion under color of official right was another person or other persons who were also members of the conspiracy, then you must find the defendant not guilty of the conspiracy.