United States Court of Appeals
For the First Circuit
No. 03-1790
UNITED STATES OF AMERICA,
Appellee,
v.
LIBORIO RUBEN CARO-MUÑIZ,
Defendant/Appellant.
_________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S.
District Judge]
Before
Torruella, Circuit Judge,
Howard, Circuit Judge,
Carter,* Senior District Judge.
Gael Mahony, for appellant.
Jose A. Ruiz, Assistant United States Attorney, with whom
H. S. Garcia, United States Attorney, Nelson Perez-Sosa,
Assistant United States Attorney, Thomas
F. Klumper, Assistant
United States Attorney, were on brief
for appellee.
|
April 22, 2005 |
|
CARTER,
Senior District Judge. Defendant Liborio Ruben Caro-Muñiz (hereinafter ACaro@) appeals from a judgment of the United States District
Court for the District of Puerto Rico convicting him, after a jury trial, of
six counts of bribery, in violation of 18 U.S.C. ' 666(a)(1)(B), one count of money laundering, in violation
of 18 U.S.C. ' 1956(a)(1)(A)(i), and one count of witness tampering, in
violation of 18 U.S.C. ' 1512(b)(1). In this
appeal, Caro makes two challenges to his convictions and one challenge to his
sentence. First, he asserts that the
federal bribery statute is unconstitutional as applied to the facts of this
case. Second, Caro assigns error to the
district court=s failure to conduct an in camera review of
tape recordings made by a government informant during the course of the federal
investigation. Finally, Caro claims that
the district court erred in its application of sentencing enhancements under
the federal sentencing guidelines.1
For the reasons set forth below, we will affirm Caro=s conviction on all counts and remand the case for
re-sentencing in light of the district court=s error, agreed upon by both parties, in calculating Caro=s Adjusted Total Offense Level.
I.
Because this appeal follows a
conviction, we recite the facts in the light most favorable to the
verdict. See United States
v. Fazal-Ur-Raheman-Fazal, 355 F.3d 40, 42 (1st Cir. 2004).
During the years 1999 and 2000,
Caro served as the mayor of the Municipality of Rincón, Puerto Rico. Rincón received federal funds from the Federal Emergency
Management Agency in excess of $10,000 during the calendar years 1999 and 2000.
In 1999, the Federal Bureau of
Investigation (hereinafter AFBI@) commenced an investigation relating to the possible
solicitation of bribes by public officials.
Caro was one official targeted by the investigation. In furtherance of its investigation, the FBI
utilized a paid informant, José Calderón, who was an engineer in the business of providing
engineering services to Puerto Rican municipalities. Calderón was
equipped with audio and video recording equipment, which he used to record
conversations with municipal mayors. As
a result of Calderón=s activities as an informant, the FBI accumulated 140 tapes
of conversations between Calderón and public officials --
including Caro.
Calderón and Caro met multiple times during 1999 and 2000 to
discuss municipal construction projects in Rincón. At these meetings, or shortly thereafter,
Caro solicited bribes from Calderón in
connection with awarding government contracts.
Specifically, Caro solicited bribes for the preparation of two of four
phases of a territorial allocation plan and the contract for the design of a
floodlight tower for a municipal sports complex. The record does not support a finding that
the territorial allocation plan or the floodlight tower were funded with
federal monies.
At an August 18, 2000, meeting
at the mayor=s office, Calderón informed
Caro that the cost of preparing the floodlight towers would be $15,000. Caro responded by requesting $5000 for
awarding the contract. Caro received
this $5000 payment from Calderón on August 29, 2000. In early September 2002, Caro solicited a
bribe in the amount of $3000 from Calderón in
connection with the contract for the territorial allocation plan. This bribe was paid in cash.
Caro subsequently used $3000 of
the bribe proceeds to pay an invoice at a print shop related to his purchase of
political materials for his reelection campaign. Caro also represented on his Puerto Rico
Elections Commission reports that the payments received from Calderón were political contributions to his 2000 reelection
campaign.
As a result of the FBI
investigation, a federal grand jury returned a ten count superseding indictment
charging Caro with solicitation of bribes (counts I-VI), extortion (counts VII
and VIII), money laundering (count IX), and witness tampering (count
X).2
Following a twelve day trial, a jury convicted Caro of counts I-VI, IX,
and X. The district court sentenced Caro
to a term of imprisonment totaling seventy-two months and a three-year term of
supervised release. This appeal
followed.
II.
Caro=s first challenge on appeal concerns the constitutionality
of the federal bribery statute, 18 U.S.C. ' 666. The federal
bribery statute provides in relevant part:
(a) Whoever, if the circumstance
described in subsection (b) of this section exists--
(1) being an agent of an organization,
or of a State, local, or Indian tribal government, or any agency thereof--
...
(B) corruptly solicits or demands for
the benefit of any person, or accepts or agrees to accept, anything of value
from any person, intending to be influenced or rewarded in connection with any
business, transaction, or series of transactions of such organization,
government, or agency involving any thing of value of $5,000 or more;
...
shall be fined under this title, imprisoned
not more than ten years, or both.
(b) The circumstance referred to in
subsection (a) of this section is that the organization, government, or agency
receives, in any one year period, benefits in excess of $10,000 under a Federal
program involving a grant, contract, subsidy, loan, guarantee, insurance, or
other form of Federal assistance.
18 U.S.C. ' 666. Caro does not
dispute that the Municipality of Rincón received
more than $10,000 in federal funds during the relevant period, or that the
value of the alleged bribery in this case exceeded $5000. Instead, Caro asserts that section 666 Acannot constitutionally be applied in his case, because the
criminalization of alleged bribery transactions that are unconnected to federal
funds or a federally funded program is not a necessary or proper means of
furthering Congress=s legitimate interest in protecting federal funds.@ Brief for Appellant
at 10.
We
review challenges to the constitutionality of a statute de novo. See Planned Parenthood v. Heed,
390 F.3d 53, 57 (1st Cir. 2004). In Sabri
v. United States, 124 S. Ct. 1941 (2004), the United States Supreme
Court held that section 666 was not an unconstitutional exercise of
congressional authority under the Spending Clause, U.S. Const. Art. I, ' 8, cl. 1, or the Necessary and Proper Clause, U.S. Const.
Art. I, ' 8, cl. 18. Sabri,
124
S. Ct. at 1942-43. Specifically, the Court stated:
It is true ... that not every bribe or
kickback offered or paid to agents of governments covered by ' 666(b) will be traceably skimmed from specific federal
payments, or show up in the guise of a quid pro quo for some dereliction
in spending a federal grant. But this
possibility portends no enforcement beyond the scope of federal interest, for
the reason that corruption does not have to be that limited to affect the
federal interest. Money is fungible,
bribed officials are untrustworthy stewards of federal funds, and corrupt
contractors do not deliver dollar-for-dollar value. Liquidity is not a financial term for
nothing; money can be drained off here because a federal grant is pouring in
there. And officials are not any the
less threatening to the objects behind federal spending just because they may
accept general retainers. It is
certainly enough that the statutes condition the offense on a threshold amount
of federal dollars defining the federal interest, such as that provided here,
and on a bribe that goes well beyond liquor and cigars.
Id. at
1946 (internal citations omitted). Caro
suggests a narrow reading of Sabri, whereby we would view the Supreme
Court=s decision as only standing for the proposition that section
666 is facially valid. Under this
interpretation, Caro suggests that this court may entertain as-applied
challenges to the constitutionality of section 666 in instances where it is
established that there exists no direct connection between charged bribery
payments and federal funds. We decline
this invitation.
This court has previously
rejected a challenge to a conviction under section 666 in which the defendants
contended that there was an insufficient connection between their conduct and
federal funds received by a municipal police department. See United States v. Cianci,
378 F.3d 71, 96 (1st Cir. 2004). The
district court in Cianci instructed the jury -- without objection --
that a connection between the alleged bribe and federal funds was
necessary. Id. at 96-97. On appeal, the Cianci panel concluded
that the application of United States v. Zanghi, 189 F.3d 71 (1st
Cir. 1999), requires the court to Adisregard the nexus instruction upon which Corrente and
Autiello base their sufficiency challenges to their joint federal bribery
conspiracy convictions.@ Cianci, 378
F.3d at 97.3 Because the Cianci panel concluded
that the nexus instruction was erroneous in light of Sabri, the panel
affirmed the appellants= convictions and implicitly held that a nexus requirement is
unnecessary in offenses charged under section 666.
Caro argues that the Cianci
panel misapplied Sabri insofar as the panel purportedly overlooked the
fact that the Supreme Court held in Sabri that section 666 was valid on
its face, but subject to as-applied challenges.
In support of his position that an as-applied challenge to section 666
may be entertained on appeal, Caro cites United States v. Zwick,
199 F.3d 672 (3d Cir. 1999), and United States v. Santopietro,
166 F.3d 88 (2d Cir. 1999), both of which suggest a nexus between the charged
bribery and specific federal funds received by a municipality must be established
to support a conviction under section 666.
However, both Zwick and Santopietro predated the Supreme
Court=s decision in Sabri, and we find post-Sabri
decisions to be more instructive.
In addition to this court=s holding in Cianci, our sister circuits have also
held that after Sabri, section 666 does not require a nexus between the
alleged bribery and the receipt of federal funds. See United States v. Spano,
No. 03-1110, 2005 WL 674838, at *3 (7th Cir. Mar. 24, 2005) (Aalthough Sabri involved a facial constitutional
challenge only, the opinion also forecloses the defendants= as-applied challenge .... [T]he district court was correct
in finding that a nexus between the theft/bribe and the federal funds received
by the Town of Cicero was not an element of the crimes with which the
defendants were charged@); United States v. Kranovich, No. 03-10226,
2005 WL 665254, at *3 (9th Cir. Mar. 23, 2005) (Awe ... hold the government was not required to establish any
connection between the embezzled funds and a federal interest, apart from the
express requirement in section 666(b) that the County received federal benefits
in excess of $10,000@); United States v. Mirikitani, 380 F.3d 1223,
1225 (9th Cir. 2004) (Athe Supreme Court [in Sabri] not only held that a
federal nexus was not an element of the crime, but it held that no federal
nexus must be shown at all.@).4
We now extend the implicit holding of Cianci and join our sister
circuits in holding that the government is not required to prove a nexus
between the bribery charged and the municipality=s receipt of federal funds.5
III.
We now turn to the second issue
raised on appeal: whether the district court erred in failing to conduct an in
camera review of tape recordings as requested by Caro. Of the 140 tapes generated by José Calderón=s work as an informant, the government disclosed only
seventy-one of these tapes to Caro prior to trial. Caro moved for the production of all
previously undisclosed recordings on the basis that they might contain exculpatory
or impeachment evidence.6
The district court referred this motion to the magistrate judge. In her order, the magistrate judge
stated:
[T]he defense also filed a AMotion Requesting Discovery@ pursuing the disclosure of approximately 71 audio
recordings, not yet provided in discovery.
The defense argues these may reveal exculpatory evidence and that the
government should not be the party making such [a] determination. The government claims it has disclosed all
tapes where defendant appears talking to José Calderón and that others are not exculpatory.
The government is instructed, unless
it can argue that disclosure will jeopardize the case, B an investigation or life of others - to arrange for ways
and means in which the defense can examine those other related recordings. (i.e.
probably allowing for reading of transcripts ...)
Order of August 9, 2001, at
2. Caro objected to the magistrate judge=s order and specifically moved in the district court for a
vacation of this order. In an order
dated February 28, 2002, the district court ruled as follows:
[T]he United States will submit an
affidavit sworn by F.B.I. Special Agent Paul Bingham in which he avers that he
has listened to and received each of the recordings that had not been disclosed
to defendant, that he represents under oath that none of them are related
directly or indirectly to this case, that defendant Caro-Muñiz=s voice is not heard in any of them and that nor
[sic] is he or anyone related to the facts of this case mentioned in these
recordings.
Order of February 28, 2001, at
1. Caro did not object to this
order. Special Agent Paul Bingham
submitted an affidavit pursuant to the district court=s order and upon receipt of this affidavit, the district
court required the government to disclose three recordings where Caro=s voice is heard, six additional recordings that were
directly or indirectly related to the Rincón
investigation, and transcripts of eight recordings that were not directly or
indirectly related to the Rincón investigation. Order of April 25, 2002, at 1. Caro=s request for the remaining recordings was denied. Caro did not move for reconsideration of this
order, nor did he raise again the issue at trial.
Caro now challenges the district
court=s denial of his request for an in camera
inquiry into the contents of the recordings.
The government contends that Caro has waived his right to assert this
claim on appeal because he failed to preserve the issue at trial. We do not agree. The district court=s order on Caro=s motion constituted a final resolution of the issue. Caro had no basis upon which to believe that
raising this pretrial discovery issue again during the course of the trial
proceedings would be met with a more favorable result. Cf. Fusco v. Gen. Motors
Corp., 11 F.3d 259, 262-63 (1st Cir. 1993) (Awhere the pretrial proffer is adequate and evidence is
excluded unconditionally by a pretrial order, then we think that the proponent
has preserved the issue for appeal@). The same rationale
applies here. Because appellant properly
raised the Brady discovery issue before the district court through
pretrial motions, we find that the issue is properly preserved for purposes of
appellate review. With that said, we
turn to the merits of Caro=s challenge.
We review the district court=s determinations under Rule 16, Brady, and Giglio for abuse of
discretion. See United States v. Rosario-Peralta,
175 F.3d 48, 55 (1st Cir. 1999). At the
outset, we note that methods of enforcing disclosure requirements in criminal
trials are generally left to the discretion of the trial court. See United States v. Valera,
845 F.2d 923, 927 (11th Cir. 1988).
The United States Supreme Court=s holding in Brady requires the government to
disclose any exculpatory evidence which is Amaterial either to guilt or to punishment.@ Brady, 373
U.S. at 87. AInformation is material if there is a reasonable probability
that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different."
Rosario-Peralta, 175 F.3d at 53 (internal quotation and
punctuation omitted). However, A[a] defendant=s right to discover exculpatory evidence does not include
the unsupervised authority to search through the [government's] files.@ Pennsylvania
v. Ritchie, 480 U.S. 39, 59 (1987).
Similarly, Brady does not permit a defendant Ato conduct an in camera fishing expedition
through the government's files ....@ United States
v. Pou, 953 F.2d 363, 367 (8th Cir. 1992). Indeed, A[t]here is no general constitutional right to discovery in a
criminal case, and Brady did not create one.@ Weatherford
v. Bursey, 429 U.S. 545, 559 (1977).
Instead, Ato establish a violation of Brady, a defendant must
provide the court with some indication that the materials to which he ... needs
access contain material and potentially exculpatory evidence.@ United States
v. Brandon, 17 F.3d 409, 456 (1st Cir. 1994).
In support of his position that
the district court erred in failing to conduct an in camera
inspection of the tapes, Caro relies on this court=s decision in Rosario-Peralta. In Rosario-Paralta, we held that the
district court abused its discretion when it refused to review central
communication records and tapes related to the pursuit of defendants= alleged drug-transporting vessel. Rosario-Peralta, 175 F.3d at 54. The defendants argued that disclosure of
these materials was essential to their theory that their boat could not have
traveled from the location where bales of cocaine were dumped in the ocean to
the location where the defendants= vessel was intercepted during the time frame suggested by
the government. Id. at 55. The defendants alleged that the records and
tapes requested in discovery contained evidence that law enforcement lost sight
of the vessel during its pursuit. Id.
at 54. This court held that A[i]n light of defendants= theory of the case, and in light of the fact that the
government does not dispute that the logs contain the seemingly relevant times
and locations of the units in the area, we find that the district court
abused its discretion in finding the logs to be irrelevant without first
reviewing them.@ Id. at 55
(emphasis added).
This case is easily
distinguishable. Caro has presented
neither a theory regarding the existence of potentially exculpatory evidence on
the tapes, nor has he made any showing that the tapes would be of substantial assistance
to his defense. His discovery request to
the district court only stated that A[t]he recordings not provided in discovery may
contain evidence that exculpates the defendant.@ Motion Requesting
Discovery, at 2. This is insufficient to
warrant an in camera review of the tapes. Caro=s request that seventy-one tape recordings containing hours
of dialogue be reviewed by the district court is hardly particularized. This is precisely the type of fishing
expedition that Brady does not permit.
Caro identified no particular tape of specific interest and has provided
no basis for this court to conclude that any recording contained potentially
favorable evidence. In the absence of a
particularized and focused request, the district court is not required to troll
through voluminous recordings in search of potentially exculpatory
evidence.
When a defendant fails to
present a narrowly tailored and specific request, Brady places the
burden of disclosing evidence favorable to the defendant on the government, not
on the court. See Ritchie,
480 U.S. at 59 (AIn the typical case where a defendant makes only a general
request for exculpatory material under Brady v. Maryland, 373
U.S. 83 (1963), it is the State that decides which information must be
disclosed. Unless defense counsel
becomes aware that other exculpatory evidence was withheld and brings it to the
court=s attention, the prosecutor=s decision on disclosure is final.@); cf. United States v. Brooks, 966
F.2d 1500, 1505 (D.C. Cir. 1992) (AAlthough the defendant has pinpointed specific files, he has
not identified exculpatory evidence [that the prosecution] withheld, so the
case calls for the usual prosecutorial rather than judicial examination.@) (internal citation and punctuation omitted). Furthermore, Aif the government does fail to disclose Brady
material, the defendant has a constitutional remedy for the nondisclosure only
if the defendant can show that there is a reasonable probability that >the omission deprived the defendant of a fair trial.=@ United States
v. Presser, 844 F.2d 1275, 1282 (6th Cir. 1988) (quoting United
States v. Agurs, 427 U.S. 97, 108 (1976)) (internal citations
omitted). Without a specific reference
to potentially exculpatory evidence, we hold that the district court did not
abuse its discretion in allowing prosecutorial examination of the tapes.
IV.
Having concluded that Caro=s convictions stand, we turn now to the sentence imposed by
the district court. Caro alleges that
the district court erred in its application of a sentencing enhancement
pursuant to United States Sentencing Guidelines (hereinafter AU.S.S.G.@) ' 2J1.7.
We review a district court=s interpretation of the sentencing guidelines de novo. See United States v. McLaughlin,
378 F.3d 35, 38 (1st Cir. 2004).
Pursuant to U.S.S.G. ' 3D1.2(c), the district court grouped together the eight
counts upon which Caro was convicted. In
accordance with U.S.S.G. ' 3D1.3, the district court determined that the appropriate
offense level is that for the most serious counts comprising the group. The district court properly determined that
Caro=s money laundering conviction was the most serious of the
eight counts. For sentencing purposes, a
conviction in violation of 18 U.S.C. ' 1956(a)(1)(A)(i) mandates the
application of the Aoffense level for the underlying offense from which the
laundered funds were derived, if (A) the defendant committed the underlying offense
(or would be accountable for the underlying offense under subsection (a)(1)(A)
of ' 1B1.3 (Relevant Conduct)).@ U.S.S.G. ' 2S1.1. The Base
Offense Level for soliciting and receiving bribes is 10. The Court then applied a number of
enhancements to the Base Offense Level under the Sentencing Guidelines, one of
which was a three-level enhancement under U.S.S.G. ' 2J1.7.7
It is the application of this enhancement under ' 2J1.7 that Caro contests.
Caro alleges that the district court erroneously applied the enhancement
to the money laundering offense when it could only properly be applied to the
witness tampering offense. He does so
because this application yielded an Adjusted Total Offense Level of 27 instead
of 24.
The Government agrees that the
district court=s application of the ' 2J1.7 enhancement was erroneous.
The United States concedes that the
district court erred at sentencing. The
court improperly applied a three-level enhancement under United States
Sentencing Guidelines ' 2J1.7. Section 2J1.7
requires that the three-level enhancement be only applied [to] the offense
committed on release. In this case, the
witness tampering offense was the only offense committed on release. The sentencing court improperly applied the
three-level enhancement to the money laundering offense which had been
determined to be the highest offense following United States Sentencing
Guidelines ' 3D1.2. Therefore,
Caro=s case should be remanded for re-sentencing.
Brief for Appellee at 14-15. The position so expressed is supported by the
case of United States v. Bahhur, 200 F.3d 917 (6th Cir.
2000). We have carefully considered the
sentencing record herein and conclude that the agreed-upon position of the
parties is correct and that the ' 2J1.7 enhancement was improperly applied, to the prejudice
of the appellant, and improperly inflated the Adjusted Total Offense
Level. The sentence must be vacated as
erroneous.
V.
For the reasons set forth above,
we affirm Caro=s convictions on all counts.
We vacate Caro=s sentence and remand the case to the district court
for re-sentencing consistent with this opinion.
All issues concerning application of the present advisory guideline
regime, post United States v. Booker, 125 S. Ct. 738 (2005),
remain open for resolution in the district court on re-sentencing.
SO ORDERED.
*Of the District of Maine, sitting by designation.
1Following oral argument, Caro filed a letter with the court pursuant to Fed. R. App. P. 28j, in which he asks the court to examine his sentence in light of the United States Supreme Court=s decision in United States v. Booker, 125 S. Ct. 738 (2005). Because the parties agree that the district court erred in determining Caro=s sentence, and because we vacate his sentence and remand the case to the district court for re-sentencing, we do not reach any Booker related issues.
2The
witness tampering count arose from Caro=s false representations to the Elections Commission. 18 U.S.C. ' 1512(b) provides that:
Whoever knowingly uses intimidation, threatens or corruptly
persuades another person, or attempts to do so, or engages in misleading
conduct toward another person, with intent
to--
(1) influence, delay or prevent the testimony of any person
in an official proceeding;
...
shall be fined under this title or imprisoned not more than ten years, or both.
Id.
3The Cianci panel stated that the rule of Zanghi was Aan unchallenged jury instruction that is faithful to the indictment and >not patently incorrect or internally inconsistent= becomes the standard by which evidentiary sufficiency is to be measured.@ Cianci, 378 F.3d at 84 (quoting United States v. Gomes, 969 F.2d 1290, 1294 (1st Cir. 1992)).
4Caro points to no decisions -- nor does the court find any -- following Sabri in which a court has required proof of a nexus in an offense charged under section 666.
5Caro=s challenge to his money laundering and witness tampering convictions is based upon his claim that reversal of the bribery convictions would eliminate an essential element of both the money laundering and witness tampering convictions, thus requiring vacation of these convictions. Because we affirm Caro=s bribery convictions, and there being no other independent basis upon which Caro challenges his money laundering and witness tampering convictions, we affirm those convictions as well.
6 Although Caro did not specifically state the legal basis for his discovery request, the Court assumes his request was made pursuant to Fed. R. Crim. P. 16, Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972).
7
U.S.S.G.
'
2J1.7 reads as follows:
If an enhancement under 18 U.S.C. ' 3147 applies, add 3 levels to the
offense level for the offense committed while on release as if this section
were a specific offence characteristic contained in the offense guideline for
the offense committed while on release.