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Date: 08-19-2021
Case Style:
United States of America v. SALLY LÓPEZ MARTÍNEZ
Case Number: 17-1924
Judge: David J. Barron
Court: United States Court of Appeals
For the First Circuit
Plaintiff's Attorney: Thomas F. Klumper, Assistant United States Attorney, Senior
Appellate Counsel, with whom W. Stephen Muldrow, United States
Attorney, and Mariana E. Bauzá-Almonte, Assistant United States
Attorney, Chief, Appellate Division, were on brief.
Defendant's Attorney:
Description:
Boston, MA - Criminal defense lawyer represented defendant with various federal
offenses relating to public corruption involving the awarding of contracts to entities affiliated with Hernández by ADL, AAA, and the Puerto Rico House of Representatives charges.
The following facts are not in dispute. In January of
2013, López was nominated by the then-Governor of Puerto Rico,
Alejandro García Padilla ("García"), to the position of
- 4 -
administrator of the Puerto Rico Workforce Development
Administration ("ADL"). She held the position of interim
administrator at ADL until she was confirmed for the permanent
post in June 2013.
During López's tenure as the interim administrator and
then as the administrator, ADL held job fairs to bring together
unemployed or soon-to-be-unemployed workers and prospective
employers. López's responsibilities at the helm of ADL included
coordinating the job fairs.
Government contractors carried out much of the work
involved in holding the fairs. During López's time running the
agency, ADL awarded contracts relating to the fairs to entities
affiliated with Anaudi Hernández Pérez ("Hernández"). Hernández
had been a fundraiser for García's gubernatorial campaign and had
helped bring about López's nomination to be the administrator of
ADL. He also provided various gifts to López while she was running
ADL and while that agency was awarding contracts to entities that
were affiliated with him. During roughly the same time period,
both the Puerto Rico Aqueduct and Sewer Authority ("AAA")1 and the
Puerto Rico House of Representatives awarded contracts to entities
affiliated with Hernández.
1 AAA is the Spanish-language acronym for the Aqueduct and
Sewer Authority, which is occasionally referred to by its Englishlanguage acronym, PRASA, in the record.
- 5 -
In November 2014, the Federal Bureau of Investigation
raided the offices of 3 Comm Global, which was an entity affiliated
with Hernández. Thereafter, on December 2, 2015, López, Hernández,
and a number of others were charged in a twenty-five-count
indictment in the District of Puerto Rico.
The indictment included charges on various federal
offenses relating to public corruption involving the awarding of
contracts to entities affiliated with Hernández by ADL, AAA, and
the Puerto Rico House of Representatives. López was charged in
six of the indictment's counts. Hernández was charged in sixteen
of them. The six counts that charged López were for:
(1) conspiracy in violation of 18 U.S.C. § 371 to commit honest
services wire fraud in violation of 18 U.S.C. §§ 1343 and 1346 or
federal programs bribery in violation of 18 U.S.C. § 666 (Count
One); (2) conspiracy to commit honest services wire fraud in
violation of 18 U.S.C. § 1349 (Count Two); (3) honest services
wire fraud in violation of 18 U.S.C. §§ 1343 and 1346 (Counts
Three, Four, and Five); and (4) receipt of a bribe by an agent of
an organization receiving federal funds in violation of 18 U.S.C.
§ 666(a)(1)(B) (Count Eleven).
The indictment charged eight individuals in addition to
López and Hernández. Two were business partners of Hernández --
Javier Muñiz Alvarez ("Muñiz"), a de facto part-owner of JM
Professional & Training Group, Inc. ("JMP"); and Carlos Luna Cruz,
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who was the face of JMP and signed all of the firm's contracts.
Three were employees of the Puerto Rico House of Representatives
-- Xavier González Calderón ("González"), the Administrator for
the House; Víctor Burgos Cotto ("Burgos"), the Director of
Technology; and Glenn Rivera Pizarro ("Rivera"), Special Assistant
for Administration. Two more worked for AAA -- Ivonne Falcón
Nieves ("Ivonne Falcón") was AAA's Vice President and Sonia Barreto
Colón ("Barreto") was the agency's Purchasing Director. The last
of the eight others named in the indictment was Marielis Falcón
Nieves ("Marielis Falcón"), Ivonne Falcón's sister, who was not a
public official.
In February of 2016, Muñiz filed a motion under Rule 142
and Rule 8(b)3 of the Federal Rules of Criminal Procedure. He
contended under Rule 8(b) that the counts that he faced had been
improperly joined with those of others charged in the indictment,
though he did not contend that the counts that charged López were
improperly joined with his counts. He also contended under Rule
2 Rule 14(a) provides: "If the joinder of offenses or
defendants in an indictment . . . appears to prejudice a defendant
or the government, the court may order separate trials of counts,
sever the defendants' trials, or provide any other relief that
justice requires."
3 Rule 8(b) provides: "The indictment . . . may charge 2 or
more defendants if they are alleged to have participated in the
same act or transaction, or in the same series of acts or
transactions, constituting an offense or offenses. The defendants
may be charged in one or more counts together or separately. All
defendants need not be charged in each count."
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14 that his trial should be severed from that of his codefendants,
including López.
López moved to join Muñiz's motion, though seemingly
only with respect to his claim of error concerning improper joinder
pursuant to Rule 8(b). The District Court ultimately permitted
her to do so. It also permitted Barreto, Marielis Falcón, and
Rivera to join Muñiz's motion.
While Muñiz's motion was pending, Hernández pleaded
guilty on February 18, 2016, to all the charges against him except
for those set forth in Counts Sixteen (which alleged extortion in
violation of 18 U.S.C. § 1951) and Eighteen (which alleged money
laundering in violation of 18 U.S.C. § 1956(h)). Hernández was
not tried, however, on either of those counts.
Then, on April 21, 2016, the District Court denied the
pending motion by Muñiz across the board. The District Court
concluded that there was no improper joinder under Rule 8(b),
because, taking the allegations in the indictment to be true, "the
acts charged [were] part of an over-arching conspiracy" common to
all the counts, the purpose of which "was for the defendants to
utilize the public officials in positions within the government of
Puerto Rico to benefit and enrich themselves through bribery."
The District Court also rejected the request for severance under
Rule 14 because it "d[id] not clear the high hurdle set in the
- 8 -
caselaw," and noted that any risk of spillover prejudice from
conducting a single trial could be cured by jury instructions.
Over the next few months, five of the remaining
codefendants pleaded guilty. That left only López, the Falcón
sisters, and Rivera to be tried together.
Following the denial of the severance motion that Muñiz
had first filed, López and the three other remaining defendants
repeatedly moved for separate trials, including even after their
joint trial had begun. These motions, too, were denied. After
twenty-nine days of trial, each of these four codefendants --
including López -- was found guilty on all the charges that he or
she faced.
Judgment entered against López on August 31, 2017. She
filed a timely notice of appeal on September 13, 2017. See Fed.
R. App. P. 4(b)(1)(A).
II.
One of the grounds on which López challenges her
convictions is that they were based on insufficient evidence.4 We
begin our analysis of her challenges to her convictions on that
4 In addition to these sufficiency challenges and the
severance and misjoinder challenges we address below, López also
brings challenges to the jury instructions, to various evidentiary
rulings by the District Court, and to her sentence. Because we
ultimately conclude that she prevails on her severance claim with
respect to Rivera, and that we consequently must remand for a new
trial on all of her convictions, we do not reach these other
arguments.
- 9 -
ground, because, insofar as the sufficiency challenges that she
brings have merit, they would preclude her from being retried for
the underlying charges. See United States v. Godin, 534 F.3d 51,
61 (1st Cir. 2008).
In considering a challenge to a conviction based on the
sufficiency of the evidence to support it, "the relevant question
is whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt."
United States v. Woodward, 149 F.3d 46, 56 (1st Cir. 1998) (quoting
Jackson v. Virginia, 443 U.S. 307, 319 (1979)). We look to "the
totality of the evidence, both direct and circumstantial." Id.
(quoting United States v. Czubinski, 106 F.3d 1069, 1073 (1st Cir.
1997)). We will reverse the conviction only if no reasonable juror
could find the defendant guilty beyond a reasonable doubt of all
the elements of the offense of conviction. See United States v.
Alejandro-Montañez, 778 F.3d 352, 357 (1st Cir. 2015). Our review
is de novo. United States v. Negrón-Sostre, 790 F.3d 295, 307
(1st Cir. 2015).
We begin by considering López's challenges to the
sufficiency of the evidence as to five of her six convictions --
namely, her convictions on Counts Three through Five and Count
Eleven, each of which was for a substantive offense, and on Count
Two, which was for a conspiracy offense. After explaining why we
- 10 -
conclude that the evidence suffices to support each of those five
convictions, we then take up her challenge to the sufficiency of
the evidence as to her one remaining conviction, which was on Count
One and which like Count Two also concerned a conspiracy offense.
There, too, we reject her contention that the evidence does not
suffice to support the conviction.
A.
To convict López on Count Eleven, which was for federal
programs bribery in violation of 18 U.S.C. § 666, the government
was required to prove, among other things, that López accepted a
thing of value while "intending to be influenced" by it to perform
an official act. 18 U.S.C. § 666(a)(1)(B). To convict her on
Counts Three, Four, and Five, which were for honest services wire
fraud in violation of 18 U.S.C. §§ 1343 and 1346, the government
was required to prove, among other things, that she acted "with
the specific intent to defraud." Woodward, 149 F.3d at 54 (quoting
United States v. Sawyer, 85 F.3d 713, 723 (1st Cir. 1996)). That
mental state may be established by proving the defendant had a
"bribery-like, corrupt intent" to deprive the public of honest
services. Sawyer, 85 F.3d at 730.
There remains López's conviction on Count Two, in which
she was charged with conspiring to commit honest services wire
fraud in violation of 18 U.S.C. § 1349. The government does not
argue, however, that this conviction, which is for a conspiracy
- 11 -
offense, could stand even if the evidence at trial is insufficient
to establish that López had the intent required to prove she
committed the predicate offense, which is honest services wire
fraud.
Thus, for López's convictions on each of these five
counts, including the one that charged her with committing a
conspiracy offense, the government accepts that it was required to
prove beyond a reasonable doubt the following: (1) that López
accepted various benefits from Hernández with the intent to be
influenced by them in the performance of her official duties
running ADL; and (2) that in performing those duties she steered
contracts from ADL to companies affiliated with Hernández in return
for the benefits that he provided to her.
López, for her part, concedes that her sufficiency
challenges to these five convictions fail if the evidence suffices
to prove that she received the things of value that Hernández
provided to her with the intention to be influenced by them to use
her authority at ADL to steer the contracts at issue to the
entities affiliated with him. Moreover, we do not understand López
to be disputing that the government could prove that she had such
an intent based on what is known as a "stream of benefits" theory,
by which the government may "prove an agreement for the ongoing
stream of benefits rather than . . . for stand-alone bribes" and
so is not required to "link the value of the government business
- 12 -
conferred to any particular benefit received by the official."
United States v. Lopez-Cotto, 884 F.3d 1, 8 (1st Cir. 2018); see
id. at 8 n.5 (noting the applicability of the "stream of benefits"
theory to honest services fraud). Nor, for that matter, do we
understand López to be disputing that the government could prove
the charges set forth in these counts by showing that she received
the stream of benefits in return for taking a series of official
acts rather than any official act in particular. See United
States v. McDonough, 727 F.3d 143, 154 (1st Cir. 2013) ("Bribery
can be accomplished through an ongoing course of conduct, so long
as the evidence shows that the favors and gifts flowing to a public
official are in exchange for a pattern of official actions
favorable to the donor." (alterations and quotation marks omitted)
(quoting United States v. Ganim, 510 F.3d 134, 149 (2d Cir.
2007))); id. at 152-53 ("It is sufficient if the public official
understood that he or she was expected to exercise some influence
on the payor's behalf as opportunities arose." (quoting United
States v. Terry, 707 F.3d 607, 612 (6th Cir. 2013))); Ganim, 510
F.3d at 147 (Sotomayor, J.) ("Once the quid pro quo has been
established . . . the specific transactions comprising the illegal
scheme need not match up this for that. While it frequently will
be true that particular bribes or extorted payments are linked at
the time of the corrupt agreement to particular official acts,
that will not always be the case -- for example, because the
- 13 -
opportunity to undertake the requested act has not arisen, or
because the payment is one of a series to ensure an ongoing
commitment to perform acts to further the payor's interests.");
United States v. Jennings, 160 F.3d 1006, 1014 (4th Cir. 1998)
("[T]he intended exchange in bribery can be 'this for these' or
'these for these,' not just 'this for that.'"); see also
Skilling v. United States, 561 U.S. 358, 367, 412 (2010)
(interpreting §§ 1343 and 1346 as a "prohibition on fraudulently
depriving another of one's honest services by accepting bribes or
kickbacks").
Thus, López's sufficiency challenges to her convictions
on these five counts turn on what the record shows about her intent
to be influenced in the performance of her duties running ADL by
the stream of benefits that she received from Hernández. We
therefore now turn to a review of what the record shows on that
score.
López is right that there was no direct evidence
introduced at trial that demonstrates that she had the requisite
intent in the relevant respect. But, it is clear that a rational
juror could supportably find on this record that López, while
running ADL, signed agency contracts and amendments to agency
contracts with entities affiliated with Hernández and his business
partners that collectively were worth more than $1,000,000. It is
equally clear that a rational juror could supportably find on this
- 14 -
record that, during the period of time in which ADL awarded the
contracts at issue to those entities, Hernández, who had helped
bring about López's nomination to be administrator, bought her
meals, champagne, shoes, three designer purses, a Mont Blanc book,
and an iPhone and met and corresponded with her regularly.
Moreover, López does not dispute that, as to each of these
convictions, the evidence suffices to support a finding that
Hernández possessed the requisite corrupt intent in providing this
stream of benefits to her in order to obtain the contracts from
ADL.
López nevertheless contends that the evidence did not
suffice to support the necessary finding regarding her intent with
respect to any of these five convictions, because she argues that
the record reveals that there are innocent explanations for the
date of receipt of some or all of the things of value that Hernández
provided to her. For example, she argues that the iPhone she
received from Hernández on February 19, 2014, was a Valentine's
Day gift, and thus does not provide a basis for drawing an
inference about her intent in approving a contract amendment worth
$659,500 on February 26, 2014. She makes similar arguments as to
the timing of the other gifts that she received from Hernández.
But, López's focus on whether the temporal proximity of
the receipt of the gifts to the awarding of the contracts supports
the necessary inference regarding her intent is misplaced. Even
- 15 -
if she were right that the evidence of timing in and of itself
could not suffice to support such an inference about her intent (a
position about which we take no view), the record contains evidence
from which a rational juror could supportably find that López used
her position as the head of ADL to afford preferential treatment
to Hernández-affiliated entities during the time period in which
he provided her with the stream of benefits. For example, Heidi
Rosado Nieves ("Rosado"), an ADL employee who worked directly for
López in 2013 and 2014, testified that invoices for entities
affiliated with Hernández were processed more quickly than those
for other vendors and that the directive to provide "preferential
treatment was coming from . . . López." Rosado further testified
that another employee of ADL informed her that "you don't give
[Hernández] instructions" and that she discovered over time that
Hernández was "untouchable" within the agency.
Nor was Rosado's testimony about this favoritism merely
of a general character. Rosado testified more specifically about
an incident in which she refused to approve the funds for a JMP
contract because it was overpriced and López informed her that she
had to sign the invoice because López had reached an off-book,
unspecified agreement with JMP to provide "additional things." In
addition, Rosado testified that another one of JMP's contracts was
amended on multiple occasions, without going through the proper
- 16 -
legal channels at ADL, even though the firm had failed to submit
the follow-up data it was contractually obligated to provide.
This evidence of preferential treatment, when combined
with the evidence of the timing of the receipt of the benefits and
the awarding of the contracts, suffices to permit a rational juror
to reject the more benign account of López's state of mind in
receiving those benefits that she contends is the only one that a
rational juror could credit. The evidence as a whole instead
permits the reasonable inference that there was an agreement
between López and Hernández to provide him and the entities
affiliated with him the favorable treatment just described with
respect to the ADL contracts at issue in return for the benefits
that she received from him while running that agency. As a result,
a rational juror could supportably reject López's contention that
the benefits Hernández provided were "merely a reward for some
future act that [she would] take . . . or for a past act that [s]he
ha[d] already taken." United States v. Sun-Diamond Growers of
Cal., 526 U.S. 398, 405 (1999).
The inference that there was an agreement between López
and Hernández regarding the steering of ADL contracts in return
for the stream of benefits would, to be sure, be based on
circumstantial rather than direct evidence. But, that feature of
the evidence does not make it insufficient. "[E]vidence of a
corrupt agreement . . . is usually circumstantial, because bribes
- 17 -
are seldom accompanied by written contracts, receipts or public
declarations of intentions." McDonough, 727 F.3d at 153 (quoting
United States v. Friedman, 854 F.2d 535, 554 (2d Cir. 1988)); see
also United States v. Wright, 665 F.3d 560, 569 (3d Cir. 2012)
("Parties to a bribery scheme rarely reduce their intent to words,
but the law does not require that."). We thus reject López's
sufficiency challenges to these five convictions.
B.
That brings us, then, to López's sufficiency challenge
to her sole remaining conviction, which is for Count One. That
count charged her with conspiracy under 18 U.S.C. § 371 to commit
honest services wire fraud in violation of 18 U.S.C. §§ 1343 and
1346 or federal programs bribery in violation of 18 U.S.C. § 666.
The count alleged that López was a participant in a conspiracy
with Hernández, Muñiz, Barreto, and Ivonne Falcón to "utilize the
public officials' positions within the government of the
Commonwealth of Puerto Rico to benefit and enrich themselves
through bribery."
López does not dispute that if the evidence suffices to
show that, as the count alleges, she conspired with the individuals
named above to steer an AAA contract funded by ADL to an entity
affiliated with Hernández in return for his providing a stream of
benefits to López, Ivonne Falcón, and Barreto, then the evidence
- 18 -
would suffice to sustain this conviction. Accordingly, we will
now consider what the record shows in that regard.
López does not dispute that the evidence in the record
suffices to establish that Hernández was providing a stream of
benefits to each of Ivonne Falcón and Barreto, who were both
officials at AAA, in exchange for their providing entities
affiliated with him preferential treatment in the bidding process
for contracts awarded by that agency. She also does not dispute
that the evidence in the record suffices to prove that those
benefits were in fact conferred and that Ivonne Falcón and Barreto
accepted them with the requisite intent to be influenced in taking
official acts. Furthermore, López does not dispute either that,
during this same time span, she also received from Hernández a
stream of benefits, which we described above in connection with
her convictions on the five other counts at issue, or that the
evidence suffices to show he provided those benefits to her to
influence her in his favor in her performance of her official
duties at ADL.
Nonetheless, López contends that the evidence does not
suffice to show that she participated in the alleged scheme to
steer the ADL-funded AAA contract to an entity affiliated with
Hernández because her conduct in relation to AAA's award of that
contract was not "illegal, or even irregular" in any respect. We
are not persuaded.
- 19 -
To start, Hernández testified at trial about a meeting
that he had with Ivonne Falcón, Barreto, and Eder Ortiz ("Ortiz"),
an electoral commissioner and former senator, in which Ortiz came
up with a scheme to have ADL provide funding to AAA that AAA then
could use to award a contract to train new employees of AAA to a
company affiliated with Hernández, Links Group. In addition, the
evidence at trial supportably shows that this meeting occurred
while Hernández was providing a stream of benefits not only to
Ivonne Falcón and Barreto but also to López herself. And,
Hernández testified at trial that he and Ortiz presented López
with the scheme that had been discussed at the earlier meeting and
"she said yes, she was interested, since for the agency it would
be a creation for new jobs."
What is more, there also was testimony at trial that
López subsequently met with all the alleged coconspirators to
discuss a transfer of funds from ADL to AAA so that AAA could fund
the contract with Hernández's company. In particular, Hernández
testified that he met with López, Ivonne Falcón, Barreto, Ortiz,
and Muñiz to "talk[] about the possibility of seeing how . . .
[they] could make this project work."
Indeed, López acknowledges that the evidence supportably
shows that, following that meeting, she provided a sample letter
that had been used in the past to obtain approval for inter-agency
use of funds to help facilitate this plan to have AAA retain Links
- 20 -
Group. And, further, the government introduced evidence at trial
that supportably shows that López intervened to ensure that ADL
would continue to fund AAA's contract with Links Group as planned,
even in the face of concerns having been raised by her staff.
Specifically, López's aide at ADL, Rosado, testified that even
though the contract between AAA and Links Group at issue was
"really difficult" to audit and put the agency at "risk" of losing
money, López insisted that the contract would remain in effect,
that Links Group would continue to provide the services in
question, and that the subject was not up for debate.
Thus, we see no merit to López's contention that there
was "no proof that she was even aware of . . . Hernández'[s] other
schemes" involving AAA and no proof that she acted corruptly in
connection with the ADL-funded AAA contract at issue. Rosado's
testimony provides support for a reasonable juror to find that
López took unusual steps to intervene to ensure that the ADL
funding would be provided to AAA and that she did so after she had
met with Hernández, Ortiz, Muñiz, Ivonne Falcón, and Barreto in
regard to the plan to guarantee that those funds would be available
to pay for a contract with an entity affiliated with Hernández.
And, the record supportably shows that López took those unusual
steps at a time when she, Ivonne Falcón, and Barreto were all
receiving benefits from Hernández that he gave to them to influence
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their performance of their duties in his favor at their respective
agencies.
From this collection of evidence, considered as a whole,
a reasonable juror supportably could infer that López, contrary to
her contention, was not only aware of the scheme involving ADL and
AAA as a result of her meeting with the other alleged
coconspirators about it but also that, in the wake of that meeting,
she willingly took steps to assist them in carrying it out both by
providing the sample letter and by overriding internal concerns
within her own agency about the transfer of funds to AAA that would
make the Links Group contract possible. See United States v.
Santos-Soto, 799 F.3d 49, 59 (1st Cir. 2015) (explaining that "a
defendant must know that a conspiracy exists and that his
participation, even if limited to a peripheral service, is designed
to foster that conspiracy").5
III.
We now turn to López's other contentions, through which
she seeks to vacate rather than reverse her convictions. We begin
5 López also points out that Links Group ultimately "did not
benefit at all from the contract." However, it is well established
that "a conviction for conspiracy does not require that the
defendant was successful in the underlying offense, but only that
an agreement to commit the underlying offense existed, and that at
least one co-conspirator committed an overt act in furtherance of
the conspiracy." United States v. Martin, 228 F.3d 1, 13 (1st
Cir. 2000) (citations omitted). The evidence was sufficient for
the jury to conclude that as much occurred here, regardless of the
ultimate impact of the agreement on Links Group's finances.
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-- and, as it happens, end -- our consideration of these challenges
with the ones that she brings under Rules 8 and 14 of the Federal
Rules of Criminal Procedure. As we will explain, we conclude that
her Rule 14 challenge to the District Court's refusal to grant her
a separate trial from one of her codefendants -- Rivera, who was
an official in the Puerto Rico House of Representatives -- requires
that each of her convictions must be vacated due to the prejudicial
evidence to which the jury in her case was exposed in consequence
of her being tried jointly with that codefendant. As a result of
our holding on that score, we do not consider any of her other
challenges, including the additional ones that she brings under
Rule 14 with respect to her joint trial with her other codefendants
or under Rule 8, whether concerning the joinder of her counts with
those naming Rivera or with those counts naming any of her other
codefendants. Nonetheless, to set the stage for assessing her
challenges under Rule 14 to her convictions based on her joint
trial with Rivera, it is useful briefly to set forth the relevant
legal principles relating to both that rule and Rule 8(b).
A.
Rule 8(b) authorizes the joinder of two or more
defendants in an indictment if "they are alleged to have
participated in the same act or transaction, or in the same series
of acts or transactions, constituting an offense or offenses."
Fed. R. Crim. P. 8(b). The rule does not require that every count
- 23 -
charge every defendant -- the "defendants may be charged in one or
more counts together or separately." Id. What Rule 8(b) does
require is "some common activity" that binds the indictees and
that "encompasses all the charged offenses." United States v.
Azor, 881 F.3d 1, 10 (1st Cir. 2017) (quoting United States v.
Natanel, 938 F.2d 302, 307 (1st Cir. 1991)).
We have explained that "[a] conspiracy count can be a
sufficient connecting link between co-defendants and separate
substantive offenses to permit their joinder in a single
indictment." United States v. Luna, 585 F.2d 1, 4 (1st Cir. 1978).
Moreover, multiple conspiracy counts may themselves be part of
"the same series of acts or transactions," Fed. R. Crim. P. 8(b);
see, e.g., United States v. Grassi, 616 F.2d 1295, 1303 (5th Cir.
1980); Bost v. United States, 178 A.3d 1156, 1184-85 (D.C. 2018),
even if only because they are part of a larger uncharged scheme or
plan, see, e.g., United States v. Wadena, 152 F.3d 831, 848-49
(8th Cir. 1998).
We evaluate misjoinder from the face of the indictment
rather than from the evidence introduced at trial. See Natanel,
938 F.2d at 306. A Rule 8(b) violation can be "harmless" if it
"did not result in 'actual prejudice.'" United States v. Edgar,
82 F.3d 499, 503-04 (1st Cir. 1996) (quoting United States v. Lane,
474 U.S. 438, 449 (1986)). "Actual prejudice in this context means
'the substantial and injurious effect or influence in determining
- 24 -
the jury's verdict.'" United States v. Zimny, 873 F.3d 38, 59
(1st Cir. 2017) (quoting United States v. Ponzo, 853 F.3d 558, 568
(1st Cir. 2017)). We review a claim of misjoinder under Rule 8(b)
de novo. Id.
As a general matter, if joinder is proper under Rule
8(b), then "those indicted together are tried together to prevent
inconsistent verdicts and to conserve judicial and prosecutorial
resources." United States v. DeCologero, 530 F.3d 36, 52 (1st
Cir. 2008) (quoting United States v. Soto-Beníquez, 356 F.3d 1, 29
(1st Cir. 2003)). But, even still, Rule 14 of the Federal Rules
of Criminal Procedure does provide that, in some cases in which
Rule 8(b) is satisfied, a joint trial may be improper in
consequence of the prejudice it may cause. See Fed. R. Crim. P.
14.
To be sure, Rule 14 does not necessarily require
severance "even if prejudice is shown; rather, it leaves the
tailoring of the relief to be granted, if any, to the district
court's sound discretion." Zafiro v. United States, 506 U.S. 534,
538-39 (1993). Severance is required under Rule 14, in other
words, only if a defendant can establish that "there is a serious
risk that a joint trial would compromise a specific trial right of
one of the defendants, or prevent the jury from making a reliable
judgment about guilt or innocence." Id. at 539.
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Thus, to prevail on appeal in a challenge to a denial of
a Rule 14 motion, the burden is on the defendant not only to
establish prejudice but "to make a strong showing" of the same.
United States v. Boylan, 898 F.2d 230, 246 (1st Cir. 1990)
(emphasis added) (quoting United States v. Porter, 764 F.2d 1, 12
(1st Cir. 1985)). "This is a difficult battle for a defendant to
win," id., because a district court is entitled to "considerable
latitude" in evaluating such a claim, Natanel, 938 F.2d at 308.
Consistent with those principles, we have noted that there is
always a risk of some degree of "garden variety" prejudice in any
joint trial and that prejudice of that sort cannot "in and of
itself . . . suffice" to carry a defendant's burden to establish
that failure to sever was an abuse of discretion. Boylan, 898
F.2d at 246. Indeed, we have explained that "[w]here evidence
featuring one defendant is independently admissible against a
codefendant, the latter cannot convincingly complain of an
improper spillover effect." United States v. Floyd, 740 F.3d 22,
37 (1st Cir. 2014) (quoting United States v. O'Bryant, 998 F.2d
21, 26 (1st Cir. 1993)). We review the denial of a severance
motion under Rule 14 for abuse of discretion. Zimny, 873 F.3d at
59.
Finally, we note that our inquiry into whether evidence
would be independently admissible against the defendant seeking
severance is guided by the indictment, which sets the outer limits
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of the permissible basis for conviction, see United States v.
McBride, 962 F.3d 25, 32 (1st Cir. 2020), and of what the
government may endeavor to prove at trial, see United States v.
Dunn, 758 F.2d 30, 35 (1st Cir. 1985). In evaluating the
indictment's reach, we read it "in a plain and commonsense manner,"
United States v. Mubayyid, 658 F.3d 35, 70 (1st Cir. 2011),
focusing on the text and what it reveals about the scope of the
crimes the grand jury intended to charge, see United States v.
Miller, 471 U.S. 130, 142-43 (1985); United States v. Pierre, 484
F.3d 75, 82 (1st Cir. 2007); see also United States v. Hitt, 249
F.3d 1010, 1016 (D.C. Cir. 2001) ("Adherence to the language of
the indictment is essential . . . ."); United States v. Roshko,
969 F.2d 1, 6 (2d Cir. 1992) ("[W]e are unpersuaded by the
government's contention that when the grand jury wrote 'an alien'
it really meant 'aliens' . . . .").
B.
Against this background, we now take up López's Rule 14
challenge concerning the denial of her request that her trial be
severed from Rivera's. In doing so, we recognize that the District
Court stated in rejecting López's original motion under Rule 8(b),
which concerned the improper joinder of her counts with
codefendants including Rivera, that "the acts charged [were] part
of an over-arching conspiracy" linking the various counts. But,
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as we have just explained, whether Rule 14 was violated does not
depend on whether Rule 8(b) was.
Here, the District Court did conclude that the various
offenses charged in the sprawling indictment each related to a
"master scheme" that had a pyramid structure with Hernández at the
top. But, we do not understand the District Court to have ruled
that López and Rivera were in fact charged with being
coconspirators in any count contained in the indictment. And,
consistent with that understanding, the government expressly
represents to us on appeal that the two were charged only with
distinct offenses, even though López was charged in one of the
counts with conspiring with another of her codefendants.
Thus, in accord with a "plain and commonsense" reading
of the indictment, Mubayyid, 658 F.3d at 70, we proceed in
reviewing López's Rule 14 challenge on the understanding that she
does not need to overcome the particularly formidable hurdle that
faces a defendant seeking severance from a codefendant with whom
she has been charged with conspiring, see United States v. DeLuca,
137 F.3d 24, 36 (1st Cir. 1998) ("[I]n the context of conspiracy,
severance will rarely, if ever, be required." (quoting United
States v. Flores-Rivera, 56 F.3d 319, 325 (1st Cir. 1995))).
Nonetheless, the government argues here that López's challenge to
the District Court's refusal to grant her a separate trial from
Rivera must be rejected because any prejudice that López suffered
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from the joint trial was either of the sort to be expected in any
joint trial or of the sort that, in light of the evidence
independently introduced against her and the instructions given to
the jurors, was too slight to permit a contrary conclusion. We
disagree.
The jury before which López was tried was exposed to
days of detailed evidence regarding Hernández's role in corrupting
the contract bidding process at the Puerto Rico House of
Representatives, where Rivera worked, to benefit entities
affiliated with him. The government's showing in that regard
included the presentation of direct evidence of the corrupt
intentions of those alleged to have been involved in rigging that
bidding process. For example, the evidence included testimony
from Víctor Burgos Cotto, who was the Director of Technology at
the House during the time in question and a witness for the
government, recounting that Rivera had told Burgos that Burgos
"had to find a way to help friends" like Hernández in the
contracting process and that failure to do so would result in
termination.6
6 Burgos's testimony ran across three days of trial, during
which Burgos told the jury about how Rivera, González, and the
Speaker of the House had overtly pressured him to select
Hernández's company as a contract vendor despite the inferiority
of the company's proposals and its employees' lack of expertise
with the subject matter.
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But, López was not herself employed by the Puerto Rico
House of Representatives, let alone charged with any offense
pertaining to the corruption of that bidding process. We thus
cannot see how evidence of such depth and quality about the nature
of the allegedly corrupt scheme at the Puerto Rico House of
Representatives in which Rivera was charged with having a role
could have been admitted at a trial against López alone on the
counts that she faced. For, even if such evidence might have been
relevant to the counts that she faced independently of Rivera to
prove Hernández's intent in supplying benefits to her as the head
of ADL, the admission of that evidence in a trial of López alone
still would have been limited by Federal Rule of Evidence 404(b)7
and limited, too, by Federal Rule of Evidence 403.8 And that is
especially so given that Hernández's intent was not in dispute as
to any of the counts involving López. After all, he had pleaded
guilty to the ADL- and AAA-related counts that he faced prior to
López's trial, and he testified at the trial that the reason that
7 Federal Rule of Evidence 404(b)(1) provides: "Evidence of
any other crime, wrong, or act is not admissible to prove a
person's character in order to show that on a particular occasion
the person acted in accordance with the character."
8 Federal Rule of Evidence 403 provides: "The court may
exclude relevant evidence if its probative value is substantially
outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative evidence."
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he provided benefits to public officials was to induce their
assistance in his business dealings.
Nor does the government contend otherwise. It notably
makes no argument in response to López's Rule 14 challenge on
appeal that the evidence concerning Rivera and the Puerto Rico
House of Representatives scheme was itself relevant to any of the
charges that López herself faced. To the contrary, it premises
its contention about the lack of spillover prejudice from that
evidence on what it contends was the distinct nature of the
offenses that each of these two defendants faced and the
correspondingly distinct nature of the evidence that was relevant
to those offenses. According to the government, in consequence,
a jury could easily compartmentalize the evidence put forward
regarding Rivera from that relevant to the case against López.
And, in further support of that contention, it characterizes the
case against López on her charges as strong.
We have already explained, however, that the case
against López in the six counts that she faced regarding whether
she had the intent to be influenced by the benefits that Hernández
supplied to her -- which the government concedes it was required
to show -- was circumstantial. Indeed, López's primary defense to
the charges against her was that Hernández acted corruptly and
intended to influence her but that she merely accepted gifts from
him without any sort of quid pro quo. For that reason, the evidence
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about how Hernández corruptly schemed with others in connection
with the Puerto Rico House of Representatives that could not have
been introduced at a trial against her alone but to which her jury
nonetheless was exposed did create a grave risk of spillover
prejudice. Specifically, that evidence risked leading the jury in
considering her charges to impute the states of mind of the
employees of the Puerto Rico House of Representatives -- based on
the direct evidence of their intent that was introduced -- to López
and thereby "prevent[ing] the jury from making a reliable judgment
about [her] guilt or innocence." Zafiro, 506 U.S. at 539.
The District Court did give limiting instructions, as
the government emphasizes, but they did not suffice to mitigate
this risk of spillover prejudice here. Cf. DeCologero, 530 F.3d
at 56 (citing Zafiro, 506 U.S. at 540-41).9 The joint trial enabled
the government to put forth direct evidence of the corrupt intent
of Hernández's collaborators in a distinct scheme, even though the
government had only circumstantial evidence as to López's state of
mind and the trial both implicated a number of players and involved
9 The District Court instructed the jurors that they "must
give separate consideration to each individual defendant as to
each separate charge against him or her," and that "[e]ach
defendant is entitled to have his or her case determined from his
or her conduct and from the evidence that may be applicable to him
or her." López does not take issue with the wording of that
instruction but instead contends that no such "separate
consideration" instruction, regardless of formulation, would have
been adequate to defray the risk of prejudice.
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a number of complicated charges. Cf. O'Bryant, 998 F.2d at 26 n.5
(upholding a denial of severance where "the charges were fairly
simple" and "the case involved only two defendants and four
counts"). Adding to our concern is the fact that the prosecution's
presentation of its case repeatedly blurred the lines between the
schemes. For example, the prosecution asked Hernández during his
testimony whether he was "working those proposals" -- namely, one
of the ADL contracts and the telecommunications contract with the
House -- "at more or less the same time frame," and it introduced
evidence about those schemes back-to-back. Thus, the risk that
spillover prejudice occurred because the jury was unable to
distinguish between the two schemes was heightened. Cf. United
States v. Drougas, 748 F.2d 8, 18-19 (1st Cir. 1984) (considering
the trial court's careful differentiation between allegations and
evidence against the coconspirators when evaluating the risk of
jury confusion).
Of course, we have been "reluctant" to overturn
severance denials. Azor, 881 F.3d at 12 (quoting Boylan, 898 F.2d
at 246). But, as López rightly notes, prejudice from being tried
jointly "can come in various forms, including jury confusion, the
impact of evidence that is admissible against only some defendants,
and 'spillover' effects where the crimes of some defendants are
more horrific or better documented than the crimes of others."
United States v. Innamorati, 996 F.2d 456, 469 (1st Cir. 1993).
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And, we are persuaded that this is the rare case in which "[t]he
dangers for transference of guilt from one to another across the
line separating conspiracies, subconsciously or otherwise, [were]
so great" as to require severance. Kotteakos v. United States,
328 U.S. 750, 774 (1946).
Our conclusion is bolstered by the fact that this is not
a case in which the results of the trial might be thought to
undermine any claim of prejudice. Every codefendant who went to
trial was convicted on every charged count, underscoring the
possibility that the effects of the joint trial were damaging.
Cf. Zimny, 873 F.3d at 60 (noting that an acquittal on a subset of
the charged counts "helps undercut an actual-prejudice claim"
(quoting Ponzo, 853 F.3d at 569)); DeCologero, 530 F.3d at 56
(explaining that the "highly individualized verdicts" returned by
the jury, where "there were some charges for which the jury
acquitted all defendants, and others for which the jury convicted
some defendants while acquitting others . . . were not the
verdicts of a jury confused about the identity and culpability of
the individual defendants").
The government does invoke a number of precedents in
support of its argument that "there was no risk that the jury would
have held López guilty for the . . . acts of a different
conspiracy." But, the government exposed López's jury to days of
evidence of how other public officials in a complex alleged public
- 34 -
corruption scheme in which López herself was not charged acted
corruptly on behalf of the very figure (Hernández) who was alleged
to have corruptly influenced López during roughly the same time
period in the alleged corruption scheme for which she was charged.
And, the concerning exposure to that evidence occurred even though
the central evidence in the case against López regarding whether
she had been corruptly influenced by that figure was entirely
circumstantial in nature. None of the cases to which the
government points in contending that the risk of prejudice from
the exposure of López's jury to days of Rivera-related evidence
was minimal presents the kind of concerns that trouble us here.
See United States v. De La Cruz, 514 F.3d 121, 139-40 (1st Cir.
2008) (rejecting a claim brought "with little attempt at developed
argument" that the jury may have attributed guilt to the defendant
based on allegations involving a separate conspiracy where that
evidence was limited, easy to separate out, and the court carefully
instructed the jury on the evidence it could consider); United
States v. Warner, 690 F.2d 545, 553 (6th Cir. 1982) (rejecting a
severance claim where the prosecution charged a single conspiracy,
the evidence "was fairly straightforward and was unlikely to
confuse the jury," and "[t]he jury's verdict show[ed] that it
followed the[] [jury] instructions, making an individualized
determination" and acquitting the defendant of one substantive
count); United States v. Losing, 560 F.2d 906, 911-12 (8th Cir.
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1977) (rejecting a severance claim where the codefendants were
charged in a single conspiracy); United States v. Kenny, 462 F.2d
1205, 1218 (3d Cir. 1972) (rejecting a severance claim where "the
granting of separate trials would not have significantly benefited
the defendants who now complain"). Thus, we conclude that the
District Court abused its discretion in declining to sever López's
trial from that of Rivera and that the resulting prejudice was
such that her convictions may not stand.
Outcome: We conclude that López's Rule 14 challenge to her joint
trial with respect to Rivera has merit. We thus need not reach
her other arguments as to why a new trial or a resentencing
proceeding is warranted, as we conclude that, based on the merit
of that challenge alone, we must vacate the judgment of conviction
as to each of the six counts on which she was convicted and remand
the case for a new trial
Plaintiff's Experts:
Defendant's Experts:
Comments: