Petition for Writ of Certiorari — Alejandro Carrasco, Petitioner v. United States

Supreme Court briefJun 14, 2024

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No. ______

In the Supreme Court of the United States

_____________________

ALEJANDRO CARRASCO, PETITIONER,

v.

UNITED STATES OF AMERICA, RESPONDENT.

_____________________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

_____________________

APPENDIX

_____________________

TABLE OF APPENDICES

Appendix A

Order denying Petition for Rehearing,

United States Court of Appeals for the First

Circuit, United States v. Carrasco, No. 211396 (Jan. 16, 2024) ………………….Appx-1a

Appendix B

Opinion, United States Court of Appeals for

the First Circuit, United States v. Carrasco,

No. 21-1396 (Aug. 28, 2023) ………...Appx-2a

Appendix C

Judgment, United States District Court for

the District of Puerto Rico, United

States v. Carrasco, No. 14-CR-423-01

(FAB) (Apr. 27, 2021) ………………Appx-21a

Appendix D

Excerpt from Trial Transcript, United

States District Court for the District of

Puerto Rico, United States v. Carrasco,

No. 14-CR-423-01 (FAB) (Feb 8, 2022)

…………………………………………Appx-28a

Appendix E

Relevant Statutory Provisions,

18 U.S.C.A. § 666 ……………………Appx-30a

Appendix F

Relevant Statutory Provisions,

18 U.S.C.A. § 201 ……………………Appx-32a

1a

Appendix A

United States Court of Appeals

For the First Circuit

_____________________

No. 21-1396

UNITED STATES,

Appellee,

v.

ALEJANDRO CARRASCO,

Defendant - Appellant.

__________________

Before

Barron, Chief Judge,

Lipez, Kayatta, Gelpí*, Montecalvo, and Rikelman

Circuit Judges.

__________________

ORDER OF COURT

Entered: January 16, 2024

Pursuant to First Circuit Internal Operating Procedure X(C), the petition for rehearing en

banc has also been treated as a petition for rehearing before the original panel. The petition for

rehearing having been denied by the panel of judges who decided the case, and the petition for

rehearing en banc having been submitted to the active judges of this court and a majority of the

judges not having voted that the case be heard en banc, it is ordered that the petition for rehearing

and petition for rehearing en banc be denied.

By the Court:

Maria R. Hamilton, Clerk

cc:

Rachel Brill, Franco L. Pérez-Redondo, Jose A. Ruiz-Santiago, Myriam Y. Fernandez-Gonzalez,

Mariana E. Bauzá Almonte, James I. Pearce, Nicole R. Lockhart

*

Judge Gelpí is recused and did not participate in the determination of this matter.

2a

Appendix B

153

U.S. v. CARRASCO

Cite as 79 F.4th 153 (1st Cir. 2023)

rate interest of one spouse is subject to

rights of the co-owner. By reason of this

limitation, we must value the debtor’s interest at something less that the interest

of a single owner in fee simple absolute.’’);

Town of N. Reading v. Welch, 46 Mass.

App.Ct. 818, 711 N.E.2d 603, 605 (1999)

(noting, in the context of a tax foreclosure

on a property held in a tenancy by the

entirety, that ‘‘[t]he actuarial value of [the

spouse’s] survivorship interest TTT is likely

to be less than the fair market value of the

locus unencumbered’’).

Bankruptcy courts are in the best position to divine fair market value in any

individual case, and we go no further than

to reiterate the need to focus on the text of

the Code. The task in this appeal is simple

enough at this juncture: the stipulation

stands, because neither state nor federal

law requires a valuation of Minkina’s interest as the full value of her home, and the

bankruptcy court thus correctly accepted

the valuation of no more than $525,000.8

The bankruptcy court’s order is therefore

affirmed.9

,

UNITED STATES, Appellee,

v.

Alejandro CARRASCO, Defendant,

Appellant.

No. 21-1396

United States Court of Appeals,

First Circuit.

August 28, 2023

Background: Defendant was convicted in

the United States District Court for the

District of Puerto Rico, Francisco A. Besosa, J., of theft or bribery concerning programs receiving federal funds and was

sentenced to 120 months of imprisonment

and 3 years of supervised release. Defendant appealed.

Holdings: The Court of Appeals, Barron,

Chief Judge, held that:

(1) sufficient evidence supported finding

that defendant was ‘‘agent’’ of a local

government, as element of offense of

theft or bribery concerning programs

receiving federal funds;

(2) sufficient evidence supported finding

that defendant engaged in an ‘‘official

act,’’ as element of offense of theft or

bribery concerning programs receiving

federal funds;

(3) evidence of company owner’s illicit but

uncharged payments to defendant was

8.

RPS also urges us to cap Minkina’s homestead exemption for the purposes of the

§ 522(f) formula at 50 percent if we affirm the

bankruptcy court’s order (as we have done).

The firm claims that, because Massachusetts

law provides that a homestead exemption

‘‘shall remain whole and unallocated’’ in the

case of a tenancy by the entirety or a joint

tenancy, but the bankruptcy court’s valuation

approach ostensibly constitutes ‘‘treating each

individual as a tenant in common,’’ we should

treat the homestead exemption in line with

provisions for the latter, as well. Mass. Gen.

Laws ch. 188, § 1. However, as explained

above, abiding by the no more than $525,000

valuation does not negate the nature of Minkina and her husband’s tenancy by the entirety.

RPS’s argument is therefore unavailing.

9.

Our holding in this case is limited to Massachusetts law and -- as illustrated above -- is

intertwined with the SJC’s holding in Coraccio that a tenant by the entirety may convey

her share in the tenancy. We express no opinion on whether the outcome would be different in a jurisdiction where such a conveyance

would not be allowed.

3a

Appendix B

154

79 FEDERAL REPORTER, 4th SERIES

not unduly prejudicial, and thus was

admissible;

(4) any error in admitting company owner’s lay witness opinion testimony was

harmless;

(5) application of two-level obstruction of

justice sentencing enhancement was

warranted;

(6) application of two-level sentencing enhancement for bribery offenses involving public official was warranted; and

(7) defendant’s 120-month sentence was

not substantively unreasonable.

Affirmed.

1. Criminal Law O561(1)

To succeed on sufficiency of evidence

challenge, defendant must show that the

evidence in the record does not suffice to

permit a rational juror to find him guilty

beyond a reasonable doubt.

2. Criminal Law O1139, 1144.13(1)

Court of Appeals reviews sufficiency

of evidence challenges de novo, but reviews the evidence, and makes all inferences and credibility choices, in the government’s favor.

3. Bribery O1(1)

Sufficient evidence supported finding

that defendant, who was attorney retained

by three municipalities, was ‘‘agent’’ of a

local government, as element of offense of

theft or bribery concerning programs receiving federal funds based on defendant’s

role in alleged corrupt awarding of municipal contracts to environmental engineering

company, where defendant’s contracts with

municipalities authorized him to provide

legal representation to named municipality

‘‘in the Courts of Puerto Rico’’ and ‘‘the

administrative and investigative agencies.’’

18 U.S.C.A. § 666(d)(1).

4. Bribery O1(1)

Sufficient evidence supported finding

that defendant, who was attorney retained

by three municipalities, engaged in an ‘‘official act,’’ as element of offense of theft or

bribery concerning programs receiving

federal funds based on defendant’s role in

alleged corrupt awarding of municipal contracts to environmental engineering company, where defendant agreed to ‘‘advise’’

mayors of municipalities knowing or intending that such advice would form basis

for an ‘‘official act’’ by those municipal

officials, namely, awarding of contracts by

those municipalities to company, and company’s owner made payments to defendant

for his access to, and influence over, mayors. 18 U.S.C.A. § 666.

5. Criminal Law O371.16, 371.20

Evidence of environmental engineering company owner’s illicit but uncharged

payments to defendant was not unduly

prejudicial, and thus was admissible in

prosecution for theft or bribery concerning

programs receiving federal funds based on

defendant’s role in allegedly corrupt

awarding of municipal contracts to company, although defendant argued that evidence flooded jury with evidence about

uncharged conduct, where defendant’s intent in accepting checks with innocuous

explanations in their memo lines, namely,

whether he believed those checks to be

payments for legitimate services or for

steering contracts to company owner, was

central issue at trial. 18 U.S.C.A. § 666;

Fed. R. Evid. 403, 404(b).

6. Criminal Law O338(7)

Party opposing admission of evidence

on grounds that its probative value is substantially outweighed by danger of unfair

prejudice bears burden of establishing that

probative value of evidence at issue is substantially outweighed by danger of unfair

prejudice. Fed. R. Evid. 403.

4a

Appendix B

U.S. v. CARRASCO

Cite as 79 F.4th 153 (1st Cir. 2023)

7. Criminal Law O1153.3

Appellate court affords deference to a

trial judge’s balancing decision regarding

whether relevant evidence is unfairly

prejudicial, and only rarely, and in extraordinarily compelling circumstances,

will appellate court, from the vista of a

cold appellate record, reverse a trial

court’s on-the-spot judgment concerning

the relative weighing of probative value

and unfair effect. Fed. R. Evid. 403.

8. Criminal Law O1169.1(1)

Admission of improper testimony is

harmless if it is highly probable that error

did not influence verdict.

9. Criminal Law O1163(3)

Government bears the burden of establishing harmlessness of the admission

of improper testimony.

10. Criminal Law O1169.1(1)

To determine whether government

has made showing that admission of improper testimony was harmless, court

must engage in panoramic, case-specific

inquiry that considers multiple factors, including centrality of tainted material, its

prejudicial impact, and relative strengths

of parties’ cases.

11. Criminal Law O1169.2(8)

Any error in admitting environmental

engineering company owner’s lay witness

opinion testimony regarding his years-long

corrupt relationship with defendant was

harmless, in prosecution for theft or bribery concerning programs receiving federal

funds, based on role of defendant, who was

attorney retained by three municipalities,

in alleged corrupt awarding of municipal

contracts to company, where transcripts of

recorded conversations between defendant

and owner, showing that defendant and

owner discussed defendant receiving ‘‘kickbacks’’ for contracts, were themselves in

evidence, and transcripts, on their face,

155

were plainly incriminating, even setting

aside owner’s testimony about meaning of

what was said in them. 18 U.S.C.A. § 666;

Fed. R. Evid. 701.

12. Criminal Law O1139, 1156.2, 1158.34

In reviewing reasonableness of sentence, Court of Appeals reviews district

court’s factual determinations for clear error, its legal interpretation and application

of sentencing guidelines de novo, and its

judgment calls for abuse of discretion.

U.S.S.G. § 1B1.1 et seq.

13. Sentencing and Punishment O761

Application of two-level obstruction of

justice sentencing enhancement was warranted, in prosecution for theft or bribery

concerning programs receiving federal

funds, based on role of defendant, who was

attorney retained by three municipalities,

in alleged corrupt awarding of municipal

contracts to environmental engineering

company, where defendant attempted to

convince company owner that best strategy to face their problem, namely, investigation by federal authorities, was for them

to keep silent and not tell anything to

anyone, to invoke attorney-client privilege

to cover their scheme, or to lie to the FBI.

18 U.S.C.A. § 666; U.S.S.G. § 3C1.1.

14. Sentencing and Punishment O699

Application of two-level sentencing enhancement for bribery offenses involving

any public official was warranted, in prosecution for theft or bribery concerning programs receiving federal funds, based on

role of defendant, who was attorney retained by three municipalities, in alleged

corrupt awarding of municipal contracts to

environmental engineering company, although defendant argued that he was not a

‘‘public official’’ within meaning of the

Guideline, where defendant, through his

position and influence over municipalities,

participated so substantially in govern-

5a

Appendix B

156

79 FEDERAL REPORTER, 4th SERIES

ment operations as to possess de facto

authority to make governmental decisions.

18 U.S.C.A. § 666; U.S.S.G. § 2C1.1.

15. Sentencing and Punishment O699

Application of four-level sentencing

enhancement for offense involving an

elected public official or any public official

in a high-level decision-making or sensitive

position was warranted, in prosecution for

theft or bribery concerning programs receiving federal funds, based on role of

defendant, who was attorney retained by

three municipalities, in alleged corrupt

awarding of municipal contracts to environmental engineering company, where

defendant used his influence over and his

access to mayors of municipalities, who

were elected public officials, to steer contracts to company owner, and defendant

himself was a ‘‘public official’’ in high level

decision-making or sensitive position. 18

U.S.C.A. § 666; U.S.S.G. § 2C1.1(b)(3).

16. Criminal Law O1156.2

In assessing substantive reasonableness of a sentence, Court of Appeals reviews for abuse of discretion, and will uphold a sentence against such a challenge so

long as the district court provided a plausible sentencing rationale in support of a

defensible result.

17. Bribery O16

Sentencing and Punishment O55

Defendant’s 120-month sentence for

theft or bribery concerning programs receiving federal funds was not substantively

unreasonable, even though it was statistically longer than national average, where

statistics offered by defendant included

sentences imposed upon defendants convicted under a number of federal statutes,

not just defendants convicted of defendant’s offense, and thus were overinclusive. 18 U.S.C.A. § 666.

18. Bribery O16

Sentencing and Punishment O56

Defendant’s 120-month sentence for

theft or bribery concerning programs receiving federal funds was not substantively

unreasonable, in prosecution based on role

of defendant, who was attorney retained

by three municipalities, in alleged corrupt

awarding of municipal contracts to environmental engineering company, based on

fact that company owner was sentenced

only to pretrial diversion program, where

defendant and owner were not similarly

situated, since owner cooperated with law

enforcement and defendant did not. 18

U.S.C.A. § 666.

19. Bribery O16

Sentencing and Punishment O61

Defendant’s 120-month sentence for

theft or bribery concerning programs receiving federal funds was not substantively

unreasonable based on fact that defendant

was sentenced to statutory maximum, in

prosecution based on role of defendant,

who was attorney retained by three municipalities, in alleged corrupt awarding of

municipal contracts to environmental engineering company, where sentencing court

explicitly considered mitigating circumstances, including defendant’s age, family,

and multiple medical conditions, but determined that sentence was appropriate punishment pursuant to facts of case and in

accordance with statutory factors. 18

U.S.C.A. §§ 666, 3553(a).

APPEAL FROM THE UNITED

STATES DISTRICT COURT FOR THE

DISTRICT OF PUERTO RICO [Hon.

Francisco A. Besosa, U.S. District Judge]

Rachel Brill for appellant.

Nicole R. Lockhart, Trial Attorney, with

whom Kenneth A. Polite, Assistant Attorney General, Lisa H. Miller, Deputy Assis-

6a

Appendix B

U.S. v. CARRASCO

Cite as 79 F.4th 153 (1st Cir. 2023)

tant Attorney General, Corey R. Amundson, Chief, Public Integrity Section, and

James I. Pearce, Attorney, Appellate Section, were on brief, for appellee.

Before Barron, Chief Judge, Lipez and

Montecalvo, Circuit Judges.

BARRON, Chief Judge.

Alejandro Carrasco Castillo (‘‘Carrasco’’)

appeals his convictions and sentence for

violating 18 U.S.C. § 666. The underlying

charges stem from his role in the allegedly

corrupt awarding of contracts by various

Puerto Rico municipalities. We affirm.

I.

More than a decade ago, federal authorities began investigating allegations that

three Puerto Rico municipalities had corruptly awarded contracts to a company

owned by Juan Carlos Mercado, who at

the time was a contractor and environmental engineer. Federal authorities arrested

Mercado in February 2012 in connection

with the investigation, and he agreed to

cooperate with them by recording his conversations with Eduardo Rivera-Correa,

who was the mayor of one of the municipalities, and Carrasco, an attorney retained by each of the three municipalities

to provide legal representation.1

Thereafter, on July 8, 2014, Carrasco

was indicted in the United States District

Court for the District of Puerto Rico on

four counts of violating 18 U.S.C.

1.

The criminal complaint against Mercado

was dismissed without prejudice in December

2012 pending Mercado’s completion of an

eighteen-month pretrial diversion program.

2.

The same indictment also charged RiveraCorrea with various offenses related to the

alleged scheme.

3.

The provisions of 18 U.S.C. § 666(a) apply

only ‘‘if the circumstance described in subsection (b) of [18 U.S.C. § 666] exists.’’ Subsec-

157

§ 666(a)(1)(B).2 Section 666(a)(1)(B) provides in relevant part:

[w]hoever TTT being an agent of an organization, or of a State, local, or Indian

tribal government, or any agency thereof TTT 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 TTT shall be fined under

this title, imprisoned not more than 10

years, or both.3

Each count alleges that, in violation of

§ 666, Carrasco took payments from Mercado in connection with the award of contracts to Mercado’s environmental consulting firm by one of the three Puerto Rican

municipalities that had retained Carrasco.

The first count alleges that Carrasco received payments from July 2009 through

August 2009 in connection with contracts

awarded by the municipality of Barceloneta. The second count alleges that he received payments from March 2010 to July

2010 in connection with contracts awarded

by the municipality of Rio Grande. The

third count alleges that he received payments from August 2010 through October

2010 in connection with contracts awarded

by the municipality of Juncos. The fourth

count alleges that he received payments in

tion (b) provides that ‘‘[t]he 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.’’ Carrasco accepts that each of

the three municipalities met this condition in

the relevant years.

7a

Appendix B

158

79 FEDERAL REPORTER, 4th SERIES

July 2011 in connection with contracts

awarded by, once again, Barceloneta.

Carrasco was tried on the charges before a jury in December 2019 and was

found guilty on all four counts. A judgment

of conviction was entered, and the District

Court sentenced him on April 27, 2021, to

120 months of imprisonment and 3 years of

supervised release. Carrasco then timely

filed this appeal.

II.

[1, 2] Carrasco first seeks the reversal

of his convictions on the ground that they

are not supported by sufficient evidence.

To succeed, he must show that the evidence in the record does not suffice to

permit a rational juror to find him guilty

beyond a reasonable doubt of violating

§ 666. See United States v. Levin, 13 F.4th

96, 99-100 (1st Cir. 2021). Our review is de

novo, but we ‘‘review[ ] the evidence, and

mak[e] all inferences and credibility

choices, in the government’s favor.’’ United

States v. Rodrı́guez-Torres, 939 F.3d 16,

23 (1st Cir. 2019).

A.

[3] Carrasco directs our attention initially to what the record shows with respect to the element of the offense --- set

forth in § 666(a)(1) -- that requires the

government to prove beyond a reasonable

doubt that he was an ‘‘agent of a[ ] TTT

local TTT government.’’ Section 666(d)(1)

defines an ‘‘agent’’ of a local government to

be ‘‘a person authorized to act on behalf

of’’ it and specifies that the definition of

4.

Carrasco does point to our prior statement

that ‘‘there is no more classic government

‘representative’ than a legislative branch officer,’’ United States v. Fernandez, 722 F.3d 1,

8 (1st Cir. 2013), to argue that he cannot be

an ‘‘agent’’ of the municipalities solely because the contracts make him a ‘‘representative’’ of the municipalities. But, our conclu-

the term ‘‘includes a servant or employee,

and a partner, director, officer, manager,

and representative.’’

To prove that Carrasco was such an

‘‘agent,’’ the government submitted into

evidence his contracts with Barceloneta,

Rio Grande, and Juncos. Carrasco does not

dispute that the text of each of the contracts authorized him to provide legal representation to the named municipality ‘‘in

the Courts of Puerto Rico’’ and ‘‘the administrative and investigative agencies.’’

Therefore, it would appear that the evidence does suffice to support the ‘‘agent’’

element of the offense, as each of the

contracts would appear to show that he

was ‘‘authorized to act on behalf of’’ the

relevant municipality and so that he was

an ‘‘agent’’ of that municipality. See Representative, Black’s Law Dictionary (11th ed.

2019)

(defining

‘‘representative’’

as

‘‘[s]omeone who stands for or acts on behalf of another’’).4

Carrasco nonetheless contends that the

evidence does not suffice to satisfy the

‘‘agent’’ element because no evidence in

the record suffices to show that he took

any specific action under any of the contracts on behalf of any of the municipalities. But the text of § 666(d)(1) does not

support a construction of the statute that

would require the government to make

that showing to satisfy the ‘‘agent’’ element.

By its plain terms, the text of the statute defines an ‘‘agent’’ to be merely ‘‘a

person authorized to act on behalf of TTT a

government.’’ 18 U.S.C. § 666(d)(1) (emsion that Carrasco is an ‘‘agent’’ for purposes

of § 666(d)(1) relies on the term ‘‘represent’’

as used in the contracts, not on the term

‘‘representative’’ as used in § 666(d)(1). We

thus need not address Carrasco’s contention

that Fernandez would preclude us from relying on that term.

8a

Appendix B

U.S. v. CARRASCO

Cite as 79 F.4th 153 (1st Cir. 2023)

159

phasis added). It does not define an

‘‘agent’’ to be only a person who ‘‘acts’’ on

behalf of a government.

800-01 (7th Cir. 2010); United States v.

Hudson, 491 F.3d 590, 594-95 (6th Cir.

2007), support his position. We disagree.

Nor is there any reason to conclude

from the text of related provisions that the

words ‘‘authorized to act’’ in § 666(d)(1)

mean ‘‘acts,’’ such that it is not enough to

prove that the person has been merely

authorized to act. After all, a separate

provision of § 666(d)(1) states that a ‘‘person’’ qualifies as an ‘‘agent’’ if that person

is a ‘‘representative.’’ Id. Thus, that provision does not state that a ‘‘person’’ so

qualifies even if they have only been ‘‘authorized to be a TTT representative.’’

Sotomayor-Vázquez did hold that evidence in the record in that case showed

that the defendant was an ‘‘agent’’ of the

non-profit entity at issue because, although

the defendant was formally an independent

contractor, the defendant ‘‘acted as [the]

executive director’’ of the entity by approving all its organizational decisions, meeting

with city officials on the agency’s behalf,

and making decisions regarding hiring and

firing. 249 F.3d at 8-9. But we made clear

in so holding that the definition of ‘‘agent’’

under § 666(d)(1) has two ‘‘aspect[s]’’: one

relating to a person’s having been ‘‘authorized to act on behalf of’’ the covered entity

and the other relating to whether the person was an ‘‘employee, partner, director,

officer, manager, or representative’’ of that

entity. Id. at 8. We also made clear that we

based our holding only on that second

‘‘aspect of the statutory definition.’’ Id.

Thus, our decision there in no way indicates either that an ‘‘agent’’ is not merely a

person who was ‘‘authorized to act on behalf of’’ the relevant entity or that evidence that suffices to show only that the

defendant was so authorized cannot suffice

to show that the person qualifies as an

‘‘agent.’’

Reinforcing the conclusion that the

words ‘‘authorized to act’’ mean what they

say is the fact that the Supreme Court of

the United States has explained in construing other parts of § 666 that the statute’s ‘‘expansive’’ and ‘‘unqualified language,’’ Salinas v. United States, 522 U.S.

52, 56, 118 S.Ct. 469, 139 L.Ed.2d 352

(1997), ‘‘reveals Congress’ expansive, unambiguous intent to ensure the integrity of

organizations participating in federal assistance programs,’’ Fischer v. United States,

529 U.S. 667, 678, 120 S.Ct. 1780, 146

L.Ed.2d 707 (2000). In addition, both our

Circuit and the Supreme Court have ‘‘repeatedly rejected constructions of § 666

that would impose limits beyond those set

out in the plain meaning of the statute.’’5

United States v. Fernandez, 722 F.3d 1, 10

(1st Cir. 2013); see also Fischer, 529 U.S.

at 678, 120 S.Ct. 1780.

Carrasco contends that a prior precedent of ours, United States v. SotomayorVázquez, 249 F.3d 1 (1st Cir. 2001), as well

as two precedents from other circuits,

United States v. Lupton, 620 F.3d 790,

5.

Carrasco’s contention that the government

was required to show a nexus between the

matters on which Carrasco was authorized to

act on behalf of the municipalities and the

contracts that he was alleged to have helped

Lupton also is no help to Carrasco. The

evidence there was deemed sufficient to

render the defendant an ‘‘agent’’ based on

the activities of the defendant vis-à-vis a

state agency. 620 F.3d at 800-01. But the

contract between the real estate firm that

employed the defendant in that case and

the state of Wisconsin expressly provided

that the firm was acting as ‘‘an indepenMercado obtain fails for the same reason:

Carrasco does not identify, nor can we discern, any textual basis for such a limitation

on the reach of § 666(d)(1).

9a

Appendix B

160

79 FEDERAL REPORTER, 4th SERIES

dent contractor and not as an officer, employee, or agent of the state.’’ Id. at 800.

Thus, while the court in Lupton looked

beyond the terms of the contract to determine that the defendant was an ‘‘agent’’

for purposes of § 666, the court did not

thereby suggest that contracts like those

at issue in Carrasco’s case are inadequate

on their own to supportably show that a

defendant is an ‘‘agent’’ of a local government.

Finally, in Hudson, the Sixth Circuit

determined that the evidence sufficed to

satisfy the ‘‘agent’’ element based on both

contract terms that ‘‘gave [the defendant]

broad authority to set up a television station in the high school’’ and testimony that

the defendant exercised that authority. 491

F.3d at 594-95. But, once again, nothing in

that case suggests that a contract’s terms,

standing alone, are insufficient to support

a jury’s finding that a defendant was an

‘‘agent’’ in the relevant sense when those

terms authorize the defendant to act on

behalf of the relevant entity.

Carrasco does also argue that he is similarly situated to the defendant in United

States v. Pinson, 860 F.3d 152 (4th Cir.

2017). There, the defendant was convicted

of aiding and abetting -- in violation of

§ 666 -- theft carried out by an employee

of a company that had been hired by a

county in South Carolina. Id. The Fourth

Circuit concluded that the employee was

not an ‘‘agent’’ under § 666(d)(1) because

of the limited nature of the tasks that he

performed for his employer. Id. at 165-66.

As the court explained, the employee ‘‘had

no actual or implied authority to act on

[the county’s] behalf in any capacity.’’ Id.

at 166. Rather, because the employee’s

only relevant duty was ‘‘receiving and

packaging invoices from the company’s

contractors and submitting them to [the

county] for payment,’’ the employee ‘‘acted

solely on behalf of the’’ corporate entity,

not the county. Id. at 165.

Carrasco contends that, for all the record shows in his case, he could have been

tasked with carrying out only the same

sort of limited tasks that were determined

to be insufficient in Pinson to permit the

employee there to be deemed an agent

under § 666. Carrasco thus contends that

the contracts alone cannot suffice to permit a factfinder to find that he was an

‘‘agent’’ under § 666.

But, while the Fourth Circuit’s conclusion in Pinson hinged on the evidence presented to show the employee’s relationship

with the county, there is no suggestion in

Pinson that any evidence was presented to

show that, notwithstanding the employee’s

actual duties, the employee was formally

authorized to act on the county’s behalf. In

Carrasco’s case, by contrast, a rational

jury could conclude based on the contracts

between him and the municipalities that he

was authorized to act on behalf of those

municipalities, given the express authorization in each contract for him to ‘‘represent’’ the relevant municipality. We thus

do not see how Pinson supports Carrasco’s

position any more than the other readily

distinguishable precedents on which he relies and so reject his sufficiency challenge

insofar as it takes aim at the record support for the ‘‘agent’’ element of the offense

that underlies his convictions.

B.

Carrasco’s other ground for challenging

his § 666 convictions on sufficiency

grounds is that the government failed to

supportably show that he engaged in any

‘‘official act.’’ Here, he contends that the

government was required to prove that he

received funds in exchange for taking ‘‘an

official act’’ to prove that he violated § 666.

He then goes on to contend that we must

apply the definition of ‘‘official act’’ that

10a

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U.S. v. CARRASCO

Cite as 79 F.4th 153 (1st Cir. 2023)

the Supreme Court set forth in construing

the ‘‘official act’’ element of 18 U.S.C.

§ 201(a)(3) in McDonnell v. United States,

579 U.S. 550, 136 S.Ct. 2355, 195 L.Ed.2d

639 (2016), and that there is no evidence in

the record that could suffice to show that

he received the funds from Mercado in

exchange for taking such an ‘‘official act.’’

The Court explained in McDonnell that

an ‘‘official act’’ occurs when a ‘‘public official TTT make[s]’’ (or agrees to make) ‘‘a

decision or take[s]’’ (or agrees to take) ‘‘an

action on [a] ‘question, matter, cause, suit,

proceeding, or controversy.’ ’’ 579 U.S. at

574, 136 S.Ct. 2355 (quoting 18 U.S.C.

§ 201(a)(3)). The Court further explained

that § 201(a)(3) required that the ‘‘question, matter, cause, suit, proceeding or controversy,’’ § 201(a)(3), must be one which

is, or which may at a future time be,

‘‘pending’’ before the official. 579 U.S. at

570, 136 S.Ct. 2355 (quoting 18 U.S.C.

§ 201(a)(3)). The Court also explained that

an ‘‘official act’’ occurs for purposes of

§ 201 when a public official ‘‘us[es] his

official position to exert pressure on another official to perform an ‘official act,’ or to

advise another official, knowing or intending that such advice will form the basis for

an ‘official act’ by another official.’’ Id. at

574, 136 S.Ct. 2355.

The necessary premise of this ground of

Carrasco’s sufficiency challenge is that

§ 666 has an ‘‘official act’’ element. But the

text of § 666, unlike the text of § 201 that

the Supreme Court construed in McDonnell, does not include the phrase ‘‘official

act.’’ And, as the government points out,

several circuits have held that the government need not show that a defendant engaged in an ‘‘official act’’ to secure a conviction under § 666. See United States v.

6.

Carrasco’s briefing does at points assert that

‘‘[t]he jury should TTT have been instructed in

conjunction with McDonnell’s two-part test’’

and thus instructed to identify an official act

161

Lindberg, 39 F.4th 151, 165-169 (4th Cir.

2022); United States v. Roberson, 998 F.3d

1237, 1246-47 (11th Cir. 2021); United

States v. Ng Lap Seng, 934 F.3d 110, 13134 (2d Cir. 2019); United States v. Porter,

886 F.3d 562, 565-66 (6th Cir. 2018).

Moreover, although our Circuit has proceeded in some cases on the understanding

that § 666 does contain an ‘‘official act’’

element, we have done so only in cases in

which the government did not dispute the

point and in which the jury had been instructed that the offense does contain an

‘‘official act’’ element, see, e.g., United

States v. Martı́nez, 994 F.3d 1, 6-7 (1st Cir.

2021). We thus have not held that § 666

does have an ‘‘official act’’ element.

Against this precedential backdrop, it is

potentially significant both that the District Court did not instruct the jury in

Carrasco’s case that § 666 has an ‘‘official

act’’ element 6 and that in this case the

government contests whether § 666 has

such an element. But we need not decide

whether § 666 has the element in question

because Carrasco has failed to show that

the government did not present sufficient

evidence for a rational juror to conclude

that element was met.

[4] The record supportably shows that

Carrasco agreed to ‘‘advise’’ the mayors of

the relevant municipalities ‘‘knowing or intending that such advice w[ould] form the

basis for an ‘official act’ ’’ by those municipal officials -- namely, the awarding of

contracts by those municipalities to a company associated with Mercado. McDonnell,

579 U.S. at 574, 136 S.Ct. 2355. That evidence takes the form chiefly of testimony

from Mercado himself.

taken by Carrasco, but Carrasco’s counsel

clarified during oral argument that no challenge was being made on appeal to the jury

instructions given by the District Court.

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79 FEDERAL REPORTER, 4th SERIES

Mercado testified that his environmental

consulting firm had contracts with the municipalities of Barceloneta, Juncos, and Rio

Grande. He further testified that the contracts were not awarded pursuant to a

bidding process but instead after a negotiation with the municipal government. He

then testified that he made payments to

Carrasco in exchange for Carrasco providing ‘‘[a]ccess, protection, watch my back,’’

while explaining that the basis for his belief in Carrasco’s ability to deliver the

agreed-upon ‘‘[a]ccess,’’ ‘‘protection,’’ and

back-watching was Mercado’s belief that

Carrasco had ‘‘[t]otal access’’ and held

‘‘[t]otal influence’’ over the mayors in the

three municipalities. Mercado further testified that he understood Carrasco would,

in exchange for the payments, ensure that

Mercado would receive municipal contracts. And, finally, Mercado testified that

he understood Carrasco to be soliciting

these payments by asking for ‘‘loose

change’’ in connection with Mercado’s receipt of municipal contracts.

In addition, the record shows both that

the government submitted into evidence

certain checks that Mercado made out to

Carrasco and that Mercado testified that

those checks were paid in connection with

the specific contracts identified in the indictment. So, there is evidence that at

least partly corroborates Mercado’s testimony.

Notwithstanding this collection of evidence, Carrasco contends that the evidence in the record does not suffice to

satisfy the ‘‘official act’’ element. He does

so by focusing on Mercado’s description of

Carrasco’s alleged provision of ‘‘[a]ccess,

protection,’’ and watching Mercado’s back.

Carrasco argues that these services are

too ‘‘speculative and nebulously-described’’

to meet the McDonnell standard for what

constitutes an ‘‘official act.’’ Carrasco then

contends that the payments Mercado made

to him were not bribes but rather were

akin to the speculative gift-giving at issue

in United States v. Sun-Diamond Growers

of California, 526 U.S. 398, 119 S.Ct. 1402,

143 L.Ed.2d 576 (1999), which the Supreme Court concluded was not in exchange for an ‘‘official act.’’

But Mercado’s testimony, as we have

explained, provides a basis for finding

more than that Carrasco had provided

Mercado with merely ‘‘access’’ or ‘‘protection.’’ It also suffices to permit a finding

that Carrasco ‘‘advise[d]’’ the mayors

‘‘knowing or intending that [his] advice

w[ould] form the basis for an ‘official act’ ’’

taken by the mayors -- namely, the award

of the contracts to Mercado. McDonnell,

579 U.S. at 574, 136 S.Ct. 2355. And because Carrasco makes no argument as to

why such advice would not for that reason

qualify as an ‘‘official act,’’ we reject his

contention that the evidence does not suffice under McDonnell to allow a rational

jury to conclude that he had undertaken

such an act.

III.

We still must consider Carrasco’s two

evidentiary challenges, each of which was

preserved below, and each of which he

contends supports our vacating his convictions. We reject these challenges as well.

A.

Carrasco first argues that the District

Court erred in admitting evidence of municipal contracts and related payments

made by Mercado to Carrasco that went

beyond the specific contracts and related

payments that ground the specific § 666

charges for which Carrasco was indicted.

The relevant facts are as follows.

Carrasco’s indictment charged him with

receiving approximately $72,300 in payments from Mercado related to seven mu-

12a

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U.S. v. CARRASCO

Cite as 79 F.4th 153 (1st Cir. 2023)

nicipal contracts. The evidence of these

payments at trial took the form of checks

that were made out from Mercado to Carrasco. The memo field on each check stated that the check was paid for ‘‘legal services’’ or some other seemingly legitimate

service that Carrasco had provided or was

to provide to Mercado. But the government did not submit into evidence only

checks from Mercado to Carrasco that the

government contended were payments to

Carrasco in return for influencing the

award of the contracts that form the predicate for the § 666 charges against Carrasco. The government also submitted into

evidence additional checks that Mercado

testified were kickbacks from Mercado to

Carrasco in exchange for Carrasco agreeing to steer to Mercado contracts beyond

the contracts mentioned in the indictment.7

Carrasco contends that the District

Court erred in admitting into evidence

these additional checks as well as Mercado’s related testimony. In his view, that

evidence constituted propensity evidence

of the type prohibited by Federal Rule of

Evidence 404(b).

To make out this contention, Carrasco

first argues that the evidence was not admissible under Rule 404(b) as evidence

‘‘intrinsic’’ to the conduct for which Carrasco was indicted. He contends that is so

because this evidence was relevant only to

other, uncharged conduct -- that is, the

evidence was ‘‘extrinsic to the crime

charged.’’ United States v. Gonyer, 761

F.3d 157, 162 (1st Cir. 2014) (quoting United States v. Roszkowski, 700 F.3d 50, 56

(1st Cir. 2012)).

7.

In total, the government submitted into evidence forty-one checks representing approximately $195,000 in payments from Mercado

to Carrasco. Mercado testified that three of

those checks, totaling $2,989, were for legitimate legal services. It appears that Mercado

was not asked to testify as to whether four of

163

The government responds that even if

the evidence regarding the additional

checks is ‘‘extrinsic,’’ it is admissible because it has a ‘‘special relevance’’ under

Rule 404(b). United States v. Henry, 848

F.3d 1, 8 (1st Cir. 2017) (citing United

States v. Hicks, 575 F.3d 130, 142 (1st Cir.

2009)). In particular, the government argues that the evidence is specially relevant

because it shows not only Carrasco’s intent

in accepting the payments for which he

was charged but also his modus operandi

for receiving payments in connection with

his agreement with Mercado to influence

the mayors to steer contracts to Mercado’s

firm in exchange for his receiving payments from Mercado. See id. (quoting Fed.

R. Evid. 404(b)(2)) (noting that ‘‘special

relevance under Rule 404(b)’’ includes

‘‘proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence

of mistake, or lack of accident’’). And, notably, Carrasco does not dispute that the

evidence was of this specially relevant sort.

[5–7] Thus, in the end, Carrasco’s challenge boils down to his contention that this

evidence was not admissible because the

evidence was unduly prejudicial and thus

violative of Rule 403. See id. (‘‘If prior

crime evidence has special relevance under

Rule 404(b), the court must move on to

consider whether the evidence should nevertheless be excluded under Rule 403.’’).

But, as the party opposing the admission

of evidence on Rule 403 grounds, Carrasco

bears the burden of establishing ‘‘that the

probative value’’ of the evidence at issue

‘‘is substantially outweighed by the danger

of unfair prejudice.’’ United States v. Tse,

375 F.3d 148, 162 (1st Cir. 2004). And,

the checks, totaling $5,850, were payments

for legitimate services provided by Carrasco

or payments related to the steering of contracts to Mercado. Mercado testified that the

remaining thirty-four checks were payments

made in exchange for Carrasco agreeing to

steer contracts to Mercado.

13a

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164

79 FEDERAL REPORTER, 4th SERIES

given that ‘‘we afford deference to a [district court]’s balancing decision, and ‘[o]nly

rarely -- and in extraordinarily compelling

circumstances -- will we, from the vista of

a cold appellate record, reverse a district

court’s on-the-spot judgment concerning

the relative weighing of probative value

and unfair effect,’ ’’ United States v. Doe,

741 F.3d 217, 229 (1st Cir. 2013) (alteration

in original) (internal quotation omitted)

(quoting United States v. Li, 206 F.3d 78,

84-85 (1st Cir. 2000)), we conclude that

Carrasco has not carried that burden here.

Carrasco’s only argument as to why the

admission of the challenged evidence was

unduly prejudicial is that ‘‘[f]looding the

jury’’ with that evidence ‘‘about uncharged

conduct practically guaranteed that the

jury would be unduly influenced’’ and thus

unable to disentangle the acceptable nonpropensity inference from the forbidden

propensity inference. And Carrasco relies

for this argument solely on United States

v. Gilbert, 229 F.3d 15, 21-25 (1st Cir.

2000).

But, in Gilbert, we affirmed, in an interlocutory appeal brought by the government, a district court’s decision to exclude

evidence, id. at 20. Here, by contrast, we

are reviewing a defendant’s challenge to a

district court’s decision to admit evidence.

Moreover, in affirming the district

court’s decision not to admit the evidence

in Gilbert, we concluded that the non-propensity purpose of admitting the evidence

was of only marginal relevance to the government’s case. Id. at 24. By contrast,

Carrasco’s intent in accepting checks with

innocuous explanations in their memo lines

-- namely, whether he believed those

checks to be payments for legitimate ser8.

To the extent Carrasco challenges the illustrative charts the government used to summarize the evidence of payments, both charged

and uncharged, that Mercado made to Car-

vices or for steering contracts to Mercado

-- was a central issue at trial.

To be sure, we have acknowledged that

evidence admissible for a special purpose

under Rule 404(b) may be unfairly prejudicial when other evidence that carries less

risk of being unduly prejudicial could have

been used to prove the fact in question.

See United States v. Varoudakis, 233 F.3d

113, 122 (1st Cir. 2000). But in Varoudakis,

we noted that the record was replete with

compelling, alternative evidence already

before the jury that spoke to the same

issue, thereby lessening any probative value of the proffered ‘‘other acts’’ evidence.

Here, by contrast, the evidence of the additional checks and Mercado’s related testimony were central to establishing Carrasco’s intent. And, although Carrasco

claims that the admission of the other

checks and accompanying testimony risked

‘‘[f]looding the jury’’ with evidence of uncharged bad acts and thus that the jury

would make an improper propensity inference,8 it is unclear how many of the checks

might have been admitted without creating

that risk. Moreover, we have in similar

circumstances found no error in the admission of repetitive evidence of prior bad acts

with special relevance when ‘‘the repetition

of the conduct was itself distinctly probative.’’ United States v. Rodriguez-Estrada,

877 F.2d 153, 156 (1st Cir. 1989); see id. at

155-56 (affirming, in a case where defendant was charged with twenty counts of

embezzlement for misappropriating twenty

weekly expense allowances, the admission

under Rule 404(b) of thirty-one checks the

government argued represented thirty-one

identical but uncharged misappropriations

of weekly allowances). We thus conclude

that the District Court did not abuse its

rasco, he has failed to develop the argument

and thus has waived it. See United States v.

Zannino, 895 F.2d 1, 17 (1st Cir. 1990).

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U.S. v. CARRASCO

Cite as 79 F.4th 153 (1st Cir. 2023)

discretion in admitting evidence of Mercado’s illicit but uncharged payments to Carrasco.9

165

of the parties’ cases.’’ Id. (quoting United

States v. Sepúlveda, 15 F.3d 1161, 1182

(1st Cir. 1993)). We conclude that the government has made the necessary showing.

B.

Carrasco’s second evidentiary challenge

concerns portions of Mercado’s testimony

in which Mercado characterized the content of certain interactions he recounted

and certain recorded conversations that

were played for the jury. Carrasco contends that Mercado’s characterizations of

these conversations contravened Federal

Rule of Evidence 701 and so were improperly admitted into evidence. We need not

decide whether that is so, however, because we agree with the government that

any error on this score was harmless.

[8–10] The admission of improper testimony is harmless if it is ‘‘highly probable

that the error did not influence the verdict.’’ United States v. Flores-De-Jesus,

569 F.3d 8, 27 (1st Cir. 2009) (quoting

United States v. Casas, 356 F.3d 104, 121

(1st Cir. 2004)). The government bears the

burden of making that showing. See id.

(quoting United States v. Rodriguez-Marrero, 390 F.3d 1, 18 (1st Cir. 2004)). To

determine whether the government has

made that showing, we must engage in ‘‘a

panoramic, case-specific inquiry’’ that considers multiple factors, including ‘‘the centrality of the tainted material,’’ its ‘‘prejudicial impact,’’ and ‘‘the relative strengths

9.

Carrasco contends that the District Court

erred in failing to give the jury a limiting

instruction concerning the purpose for which

the jury could consider the evidence of the

prior payments he had accepted from Mercado. But Carrasco ‘‘may not complain about

the absence of a limiting instruction because

he never requested one.’’ United States v.

Lugo Guerrero, 524 F.3d 5, 14 (1st Cir. 2008)

(citing Huddleston v. United States, 485 U.S.

681, 691–92, 108 S.Ct. 1496, 99 L.Ed.2d 771

(1988)) (explaining that Huddleston ‘‘not[ed]

that Federal Rule of Evidence 105 provides

protection from unfair prejudice by requiring

[11] As the government points out, the

testimony by Mercado that is at issue

formed only one part of Mercado’s testimony, and that testimony was itself only

part of the government’s case. Specifically,

in testifying, Mercado did more than address his understanding of the meaning of

words that appeared in the transcripts of

his conversations with Carrasco. He also

testified, without objection from Carrasco,

about the yearslong corrupt relationship

between the two of them, with specific

reference to the bribes and contracts

charged in the indictment.

The evidence also included the many

checks that Mercado paid to Carrasco and

Mercado’s testimony about those checks.

Mercado testified in that respect that he

made payments to Carrasco for ‘‘[a]ccess’’

and ‘‘protection’’ due to his belief that

Carrasco had ‘‘[t]otal access’’ and ‘‘[t]otal

influence’’ over the mayors in the three

municipalities at issue and that Mercado

understood by making those payments

that Carrasco would ensure that Mercado

received municipal contracts.

Finally, as the government notes, the

transcripts of the recorded conversations

were themselves in evidence. And the tranthe trial court, upon request, to instruct the

jury that the evidence of other acts is to be

considered only for the proper purpose for

which it was admitted’’). The District Court

therefore ‘‘did not err by failing to issue, sua

sponte, the limiting instruction that [Carrasco] now claims was essential.’’ Id. (citing

United States v. Cartagena–Carrasquillo, 70

F.3d 706, 713 (1st Cir. 1995)) (explaining that

Cartagena-Carrasquillo ‘‘refus[ed] to impose

obligation on court to give, sua sponte, a

limiting instruction because that decision is

‘within the ken of counsel and part of litigation strategy and judgment’ ’’).

15a

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166

79 FEDERAL REPORTER, 4th SERIES

scripts on their face are plainly incriminating even setting aside Mercado’s testimony about the meaning of what was said in

them. For example, the transcript of one

of the recorded conversations shows that

Mercado mentioned explicitly to Carrasco

that investigators would be asking Mercado questions regarding whether Mercado

received ‘‘kickbacks’’ for ‘‘contracts’’ and

that Mercado could not ‘‘lie’’ about it. That

transcript also shows that Mercado then

stated repeatedly, speaking only to Carrasco, that he did not ‘‘have a way to

justify that money’’ and that ‘‘out of the

checks we had, there were many TTT very

close to TTT your clients’ contracts without

any justification.’’ Soon after, according to

the transcript, Carrasco stated: ‘‘If you at

least get me the information on the date

and amount I could find out what sort of

things happened during, during those

dates, because we may have some sort of

explanation. It’s the only thing TTT if not

TTT we’re screwed.’’ (Emphasis added).

The government argues based on this

evidence that the recorded conversations

themselves, in combination with the other evidence, are enough to establish Carrasco’s guilt even without Mercado’s

commentary interpreting them. Yet Carrasco offers no explanation for why the

plain meaning of these comments does

not reflect a corrupt relationship between

Mercado and Carrasco. He thus offers

no explanation for why the admission of

Mercado’s interpretations of those conversations would not have been harmless.

And without any such explanation from

Carrasco, we must conclude that the record in this case ‘‘offers every assurance

that the [challenged testimony] did not

affect the trial’s outcome’’ and so was

‘‘harmless.’’ Sepúlveda, 15 F.3d at 1182.

IV.

Carrasco separately challenges his 120month prison sentence as procedurally and

substantively unreasonable. He does so by

advancing three preserved challenges to

the District Court’s application of the

Guidelines, as well as claims regarding the

disparity between his sentence and both

the sentences imposed for similar offenses

nationwide and the sentence received by

Mercado.

A.

[12] We begin with Carrasco’s claims

that his sentence is procedurally unreasonable. We review the District Court’s factual determinations for clear error, its legal

interpretation and application of the sentencing guidelines de novo, and its judgement calls for abuse of discretion. United

States v. Ouellette, 985 F.3d 107, 110 (1st

Cir. 2021).

1.

[13] Carrasco first challenges the District Court’s application of the two-level

enhancement that U.S.S.G. § 3C1.1 sets

forth if:

the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with

respect to the investigation, prosecution,

or sentencing of the instant offense of

conviction, and [if] the obstructive conduct related to TTT the defendant’s offense of conviction and any relevant conduct; or TTT a closely related offense.

The District Court determined that the

enhancement applied to Carrasco because

Carrasco ‘‘attempt[ed] to convince TTT

Mercado TTT that the best strategy to face

their problem was for them to keep silent

and not tell anything to anyone, to invoke

the attorney-client privilege to cover their

scheme, or to lie to the Federal Bureau of

Investigation.’’ The District Court based

the predicate determination on, among

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Appendix B

U.S. v. CARRASCO

Cite as 79 F.4th 153 (1st Cir. 2023)

other things, a conversation that Mercado

recorded between himself and Carrasco at

the behest of law enforcement.10

To the extent that Carrasco contends

that the District Court clearly erred in

determining that Carrasco had attempted

to convince Mercado that Mercado should

invoke attorney-client privilege, we cannot

agree. The District Court’s reading of the

transcript is certainly a plausible one. See

United States v. Rivera, 51 F.4th 47, 53

(1st Cir. 2022) (‘‘[W]here there is more

than one plausible view of the circumstances, the sentencing court’s choice

among supportable alternatives cannot be

clearly erroneous.’’ (quoting United States

v. Ilarraza, 963 F.3d 1, 14 (1st Cir. 2020))).

Carrasco separately contends that, even

if he engaged in the conduct described

above, the District Court erred by applying the enhancement to him. He notes that

Application Note 5 to § 3C1.1 lays out ‘‘a

non-exhaustive list’’ of certain conduct

which ‘‘ordinarily do[es] not warrant application’’ of the enhancement. He goes on to

point out that Section B of that Note explains that one type of conduct which ‘‘ordinarily’’ is insufficient to trigger the enhancement is ‘‘making false statements,

10.

That conversation went as follows:

Mercado: And what about when they ask

you, why was he your client?

Carrasco: I cannot give out any details.

Mercado: You know, they are going to ask

that to me. And I am going to tell them,

‘‘Yes, he was my attorney.’’ ‘‘What for?’’

Carrasco: For everything.

Mercado: For thisTTT Well, that would be

lying to them.

Carrasco: For everything, you understand.

Mercado: You would say for everything?

Carrasco: Yes, for everything.

Mercado: But, but I will earn myself eight

years.

Carrasco: No, no, wait a minute, I am not

telling you to—

Mercado: [Crosstalk] I mean, I don’t have

TTT What evidence do I have?

167

not under oath, to law enforcement officers, unless Application Note 4(G) above

applies.’’ And, finally, he emphasizes that

Application Note 4 lays out ‘‘a non-exhaustive list of examples of the types of conduct’’ that justifies application of the enhancement, including Section G, which

provides that the enhancement applies if

the defendant ‘‘provid[ed] a materially

false statement to a law enforcement officer that significantly obstructed or impeded the official investigation or prosecution

of the instant offense.’’ See U.S.S.G.

§ 3C1.1 n.4 & n.5. Carrasco then pulls the

argument together by contending that his

conduct is properly categorized as an unsworn false statement to law enforcement

under Application Note 5(B) rather than

as a ‘‘materially false statement to a law

enforcement officer that significantly obstructed or impeded the official investigation or prosecution’’ under Application

Note 4(G).11

In support of this contention, Carrasco

argues that his suggestion that Mercado

lie to law enforcement could not have created the necessary significant obstruction

or impediment under Note 4(G), given that

Carrasco: Listen to me. I am telling you

about me, what I would say, ‘‘For everything.’’

11. To the extent Carrasco argues that the

enhancement does not apply to him at all

because he made the statements in question

to Mercado and Mercado was not a member

of law enforcement, Carrasco misapprehends

the reach of the enhancement. Under Application Note 9, Carrasco would be accountable

both for his ‘‘own conduct and for conduct

that [he] aided or abetted, counseled, commanded, induced, procured, or willfully

caused.’’ U.S.S.G. § 3C1.1 n.9. Because Carrasco advised Mercado to make a false claim

of attorney-client privilege to law enforcement, the fact that Mercado rather than Carrasco would have actually lied to law enforcement would be no defense to the application

of the enhancement to Carrasco.

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79 FEDERAL REPORTER, 4th SERIES

Mercado was already cooperating with law

enforcement. He further notes that, even if

Mercado had not been cooperating with

law enforcement at the time, Application

Note 4(G) applies only if the obstructive

conduct ‘‘significantly obstructed or impeded’’ an investigation or prosecution. For

that reason, Carrasco contends that the

enhancement could not apply to him because the District Court made no finding

that his suggestion to Mercado would have

had such an impact if Mercado had not

already been cooperating with law enforcement and had instead, at Carrasco’s suggestion, claimed a nonexistent lawyerclient confidentiality.

Carrasco ignores, however, the import of

Application Note 4(A), which makes the

enhancement applicable when a defendant

‘‘threaten[s], intimidat[es], or otherwise

unlawfully influenc[es] a TTT witness TTT

directly or indirectly, or attempt[s] to do

so.’’ U.S.S.G. § 3C1.1 n.4(A) (emphasis

added). While Carrasco contends that he

did not attempt to ‘‘threaten[ ]’’ or ‘‘intimidat[e]’’ Mercado, we have previously explained that simply asking a potential witness to lie to law enforcement ‘‘plainly

constitutes an attempt to ‘unlawfully influenc[e] a TTT witness.’ ’’ United States v.

Coffin, 946 F.3d 1, 8 (1st Cir. 2019); see

also United States v. Batchu, 724 F.3d 1,

12 (1st Cir. 2013); cf. United States v.

O’Brien, 870 F.3d 11, 18 (1st Cir. 2017).

Because Carrasco does not explain why

our reasoning in such cases is not applicable here, we reject his challenge to the

application of the obstruction of justice

enhancement to him.

2.

[14] Carrasco next contends that the

District Court erred in applying a twolevel enhancement based on § 2C1.1(a)(1)

of the Guidelines. He does so on the

ground that the District Court was wrong

to treat him as a ‘‘public official’’ within the

meaning of that Guideline.

In applying the enhancement, the District Court relied on the first Application

Note to § 2C1.1. The District Court noted

that the Application Note provides that the

term ‘‘ ‘public official’ shall be construed

broadly.’’ U.S.S.G. § 2C1.1 n.1. It also noted that Section C of that Application Note

provides that the term ‘‘public official’’ includes:

[a]n officer or employee or person acting

for or on behalf of a state or local government, or any department, agency, or

branch of government thereof, in any

official function, under or by authority of

such department, agency, or branch of

government, or a juror in a state or local

trial.

Id. § 2C1.1 n.1(C).

The District Court also noted that Section E of that Application Note provides in

relevant part that a ‘‘public official’’ includes:

[a]n individual who TTT (i) is in a position

of public trust with official responsibility

for carrying out a government program

or policy; (ii) acts under color of law or

official right; or (iii) participates so substantially in government operations as to

possess de facto authority to make governmental decisions (e.g., which may include a leader of a state or local political

party who acts in the manner described

in this subdivision).

Id. § 2C1.1 n.1(E).

In contending that the District Court

was wrong to apply the enhancement, Carrasco argues that the record indisputably

shows that he was never appointed or

elected to any office, that he was not employed by the municipalities for whom he

performed contract services, and that ‘‘his

contractual relationship was not shown to

afford him decision-making authority or

18a

Appendix B

169

U.S. v. CARRASCO

Cite as 79 F.4th 153 (1st Cir. 2023)

any other indicia of public trust.’’ He thus

contends that there was no basis for applying the enhancement set forth in the

Guideline to him.

But the District Court explained that its

determination that Carrasco was a ‘‘public

official’’ was based on ‘‘the duties that [he]

assumed and performed under his contracts with the [m]unicipalities of Barceloneta, Rio Grande, and Juncos’’ and that,

in the District Court’s view, Carrasco ‘‘was

in a position of public trust that infused

him with enough de facto authority to act

for or on behalf of those municipalities and

influence the decision-making process, particularly as it relate[d] to ensuring that the

municipalities awarded contracts to TTT

Mercado.’’ Moreover, shortly before denying Carrasco’s objection to the application

of the sentence enhancement to him, the

District Court had denied Carrasco’s objection to the presentence report’s description of Carrasco as ‘‘the main advisor/attorney for the mayors of Barceloneta, Rio

Grande, and Juncos’’ and, in doing so, had

pointed to Mercado’s testimony that Carrasco had close relationships with all three

mayors and had ‘‘total influence’’ over each

of them.

We thus conclude that the District Court

determined, albeit implicitly, that Mercado’s testimony detailing Carrasco’s relationships with the mayors supported a

finding that, by a preponderance of the

evidence, Carrasco ‘‘participate[d] so substantially in government operations as to

possess de facto authority to make governmental decisions.’’ U.S.S.G. § 2C1.1

n.1(E)(iii). Carrasco’s only argument for

why the District Court would have been

wrong to so conclude, however, is that

Carrasco was, at most, only an ‘‘advisor’’ to

the mayors. Yet this argument fails to

grapple with Mercado’s testimony that

Carrasco had ‘‘total influence’’ over the

mayors, as it is difficult to see how Carras-

co could be understood to have ‘‘total influence’’ over the mayors if he did not have

‘‘de facto authority to make TTT decisions’’

regarding to whom the contracts would be

awarded. We thus see no error in the

District Court’s application of this enhancement to Carrasco.

3.

[15] Carrasco’s final Guidelines-related

contention is that the District Court erred

by applying a four-level enhancement to

him under § 2C1.1(b)(3). That guideline

provides that the enhancement applies

when the ‘‘offense involved an elected public official or any public official in a highlevel decision-making or sensitive position.’’ Id. Carrasco argues that the guideline has no application to him because he

‘‘was not convicted of bribing an elected

official or with joining with Mercado to do

so.’’

Carrasco misapprehends the basis for

the District Court’s application of the enhancement. The District Court did not apply the enhancement because Carrasco

was found to be part of a scheme to pay

the mayors in exchange for the award of

contracts. It did so because it determined

that Carrasco ‘‘used his influence over and

his access to the mayors of the [m]unicipalities of Barceloneta, Rio Grande, and Juncos, who are elected public officials,’’ to

steer contracts to Mercado and because

Carrasco himself was a ‘‘public official’’ in

a ‘‘high level decision-making or sensitive

position.’’

Carrasco makes no argument that the

District Court’s determination on either

point was incorrect. And even if we were

to disregard the former determination,

Carrasco makes no argument that the latter determination -- that Carrasco himself

was a ‘‘public official in a high-level decision-making or sensitive position’’ -- would

not have alone been sufficient to justify the

19a

Appendix B

170

79 FEDERAL REPORTER, 4th SERIES

application of the enhancement. See United States v. Hill, 645 F.3d 900, 908 (7th

Cir. 2011) (affirming application of

§ 2C1.1(b)(3) enhancement to defendant

based on finding that defendant ‘‘held a

sensitive position’’).

Nor can we see how the determination

that Carrasco was a ‘‘public official in a

high-level decision-making or sensitive position’’ was incorrect. We explained above

that the District Court was not wrong to

find that Carrasco had ‘‘de facto authority

to make governmental decisions’’ when applying an enhancement to him for being a

‘‘public official.’’ We also conclude that the

District Court was not wrong to determine

on this same basis that Carrasco occupied

a ‘‘high-level decision-making position,’’

given that such a position is ‘‘characterized

by a direct authority to make decisions’’

for the municipalities. We thus see no mistake in the District Court’s application of

this enhancement to Carrasco.

B.

[16] Finally, we address Carrasco’s

challenges to the substantive reasonableness of his sentence. Our review is for

abuse of discretion, United States v.

Reyes-Torres, 979 F.3d 1, 9 (1st Cir. 2020),

and we uphold a sentence against such a

challenge so long as the district court provided ‘‘a plausible sentencing rationale’’ in

support of ‘‘a defensible result,’’ United

States v. Contreras-Delgado, 913 F.3d 232,

243 (1st Cir. 2019) (quoting United States

v. Zapata-Vázquez, 778 F.3d 21, 24 (1st

Cir. 2015)).

12. Carrasco also challenges the procedural

reasonableness of his sentence based on what

he contends was an inappropriate reference

by the District Court to other sentences handed down for violations of § 666 in the District

of Puerto Rico. But, the District Court made

clear that it was not ‘‘purport[ing] to hold

[Carrasco] responsible for all of the wrongs

caused by corruption in Puerto Rico’’ and

1.

[17] Carrasco’s first substantive-reasonableness-based challenge is that the

District Court created an unjustified disparity between his sentence and the sentences imposed on similarly situated defendants nationally. This disparity argument

rests on the contention that the District

Court erred in declining to credit statistics

showing that the average sentence in the

United States for a bribery-related offense

was twenty-five months in 2019. Carrasco,

relying on these statistics, contends that

the District Court should have sentenced

him to a comparable period of incarceration.

But a claim of national disparity relies

on ‘‘apples TTT being compared to apples,’’

United States v. Joubert, 778 F.3d 247, 256

(1st Cir 2015). And, as the District Court

correctly noted, various statistical measures of the average sentences imposed

upon defendants convicted of bribery offenses include sentences imposed upon defendants convicted under a number of federal statutes, not just defendants who, like

Carrasco, were convicted for violating 18

U.S.C. § 666. Thus, the District Court

committed no error in finding that Carrasco’s statistics were over-inclusive and thus

provided no basis for a claim of national

disparity.12

2.

[18] Carrasco’s second challenge to the

substantive reasonableness of his sentence

that the District Court was ‘‘required to impose a sentence that is commensurate’’ to his

‘‘offenses’’ and ‘‘personal characteristics’’ as

well as the sentence’s deterrent effect. Carrasco does not explain why, despite these statements by the District Court, we must understand the District Court to have impermissibly

relied on community characteristics in determining his sentence.

20a

Appendix B

171

U.S. v. CARRASCO

Cite as 79 F.4th 153 (1st Cir. 2023)

is another disparity-based challenge. Here,

he contends that the District Court erred

in sentencing him to 120 months of imprisonment when Mercado was sentenced only

to a pretrial diversion program. But, as

with his claim of national disparity, Carrasco must convince us that he and Mercado were similarly situated. United States

v. Gonzalez, 981 F.3d 11, 23 (1st Cir. 2020).

Yet Carrasco cannot do so given the substantial differences between Mercado and

Carrasco, which include the fact that Mercado cooperated with law enforcement and

Carrasco did not. Cf. United States v. Mateo-Espejo, 426 F.3d 508, 514 (1st Cir.

2005) (rejecting sentencing disparity claim

in light of ‘‘appellant’s belated and grudging cooperation’’ compared to codefendant’s ‘‘prompt and full cooperation’’).13

3.

[19] Carrasco’s final substantive-reasonableness challenge to his sentence is

that the District Court erred in sentencing

him to the statutory maximum. As Carrasco himself acknowledges, the statutory

maximum for the offenses of which he was

convicted is one month below the lower

end of the calculated Guidelines range.

Nonetheless, Carrasco objects to the District Court’s refusal to vary even further

downward in light of what he characterizes

as ‘‘the overwhelmingly mitigating personal considerations’’ present in his case.

But the District Court at the sentencing

hearing explicitly considered the mitigating circumstances to which Carrasco directs our attention. Indeed, after taking

note of Carrasco’s age, family, and multiple medical conditions, the District Court

13. To the extent Carrasco claims that the District Court imposed a penalty upon him for

not pleading guilty, the claim fails for similar

reasons: Carrasco cannot show that any similarly situated codefendant received a lesser

sentence simply because he went to trial rather than pleading guilty, particularly given

also noted that Carrasco had worked as an

attorney ‘‘for more than 30 years’’ and that

Carrasco had submitted ‘‘many letters of

recommendation’’ that spoke to his ‘‘good

moral character and values’’ and that ‘‘describe[d] him as an exemplary son, father,

and friend, and as an honorable citizen and

consummate professional TTT who still has

much to offer.’’ The District Court then

noted, however, that none of those letters

mentioned Carrasco’s corruption convictions and that ‘‘it would not be honest or

show integrity’’ for an attorney to ‘‘do

what [Carrasco] was convicted of doing in

this case over five years,’’ such as ‘‘accept[ing] bribes, cover[ing] up a scheme

involving paying bribes, or telling someone

to lie concerning the bribe scheme.’’ The

District Court therefore concluded that the

120-month guideline sentence was ‘‘the appropriate punishment pursuant to the facts

of this case and in accordance with the [§]

3553(a) factors.’’ We cannot conclude that

the District Court’s conclusion on this

score was predicated on implausible reasoning or yielded an indefensible result.

We thus reject Carrasco’s challenge.

V.

For the above reasons, we affirm Carrasco’s convictions and his sentence.

,

that, in handing down Carrasco’s sentence,

the District Court noted that the mayor of

Barceloneta received the same sentence

‘‘even though he pled guilty and less money

was involved’’ in the crimes to which to mayor pled guilty than the crimes of which Carrasco was found guilty.

AO 245B (Rev. 09/19)

21a

Appendix C

Judgment in a Criminal Case

Sheet 1

UNITED STATES DISTRICT COURT

District

of Puerto

Rico

__________

District

of __________

)

)

)

)

)

)

)

)

)

UNITED STATES OF AMERICA

v.

Alejandro CARRASCO

THE DEFENDANT:

JUDGMENT IN A CRIMINAL CASE

Case Number: 3:14-CR-423-01 (FAB)

USM Number: 44511-069

Lydia Lizarribar, Esq. and Ruben Morales, Esq.

Defendant’s Attorney

G pleaded guilty to count(s)

G pleaded nolo contendere to count(s)

which was accepted by the court.

✔ was found guilty on count(s)

G

One (1), Two (2), Three (3), and Four (4)

after a plea of not guilty.

The defendant is adjudicated guilty of these offenses:

Title & Section

Nature of Offense

Offense Ended

18 USC § 666(a)(1)(B) & (b)

Bribery concerning programs receiving Federal Funds.

7/31/2011

7

The defendant is sentenced as provided in pages 2 through

the Sentencing Reform Act of 1984.

CountV

1 through 4

of this judgment. The sentence is imposed pursuant to

G The defendant has been found not guilty on count(s)

G Count(s)

G is

G are dismissed on the motion of the United States.

It is ordered that the defendant must notify the United States attorney for this district within 30 days of any change of name, residence,

or mailing address until all fines, restitution, costs, and special assessments imposed by this judgment are fully paid. If ordered to pay restitution,

the defendant must notify the court and United States attorney of material changes in economic circumstances.

4/27/2021

Date of Imposition of Judgment

/S/ FRANCISCO A. BESOSA

Signature of Judge

FRANCISCO A. BESOSA, U.S. DISTRICT JUDGE

Name and Title of Judge

4/27/2021

Date

22a

Appendix C

AO 245B (Rev. 09/19) Judgment in Criminal Case

Sheet 2 — Imprisonment

Judgment — Page

DEFENDANT: Alejandro CARRASCO

CASE NUMBER: 3:14-CR-423-01 (FAB)

2

of

7

IMPRISONMENT

The defendant is hereby committed to the custody of the Federal Bureau of Prisons to be imprisoned for a

total term of:

One Hundred and Twenty (120) months as to each counts one (1) through four (4) to be served concurrently to each other.

✔ The court makes the following recommendations to the Bureau of Prisons:

G

--That defendant be allowed to serve the term of imprisonment at FPC Pensacola.

-- That defendant while incarcerated be provided medical treatments for his glaucoma, high blood pressure and

asthma as well as any other medical condition, psychological treatment for depression, the 500 hours drug/alcohol

treatment, and vocational training. Finally, the defendant be allowed to provide legal counsel to other inmates.

G The defendant is remanded to the custody of the United States Marshal.

✔ The defendant shall surrender to the United States Marshal for this district:

G

✔ at

G

12:00

G a.m.

✔ p.m.

G

on

.

5/3/2021

G as notified by the United States Marshal.

G The defendant shall surrender for service of sentence at the institution designated by the Bureau of Prisons:

G before 2 p.m. on

.

G as notified by the United States Marshal.

G as notified by the Probation or Pretrial Services Office.

RETURN

I have executed this judgment as follows:

Defendant delivered on

at

to

, with a certified copy of this judgment.

UNITED STATES MARSHAL

By

DEPUTY UNITED STATES MARSHAL

AO 245B (Rev. 09/19)

Judgment in a Criminal Case

Sheet 3 — Supervised Release

23a

Appendix C

Judgment—Page

3

of

7

DEFENDANT: Alejandro CARRASCO

CASE NUMBER: 3:14-CR-423-01 (FAB)

SUPERVISED RELEASE

Upon release from imprisonment, you will be on supervised release for a term of:

Three (3) years as to each counts one (1) through four (4) to be served concurrently to each other, under the following

mandatory, standard, and Special/Additional Conditions of Supervision.

MANDATORY CONDITIONS

1.

2.

3.

4.

5.

6.

7.

You must not commit another federal, state or local crime.

You must not unlawfully possess a controlled substance.

You must refrain from any unlawful use of a controlled substance. You must submit to one drug test within 15 days of release from

imprisonment and at least two periodic drug tests thereafter, as determined by the court.

✔ The above drug testing condition is suspended, based on the court's determination that you

G

pose a low risk of future substance abuse. (check if applicable)

You

must

make restitution in accordance with 18 U.S.C. §§ 3663 and 3663A or any other statute authorizing a sentence of

G

restitution. (check if applicable)

✔ You must cooperate in the collection of DNA as directed by the probation officer. (check if applicable)

G

G You must comply with the requirements of the Sex Offender Registration and Notification Act (34 U.S.C. § 20901, et seq.) as

directed by the probation officer, the Bureau of Prisons, or any state sex offender registration agency in the location where you

reside, work, are a student, or were convicted of a qualifying offense. (check if applicable)

G You must participate in an approved program for domestic violence. (check if applicable)

You must comply with the standard conditions that have been adopted by this court as well as with any other conditions on the attached

page.

AO 245B (Rev. 09/19)

Judgment in a Criminal Case

Sheet 3A — Supervised Release

24a

Appendix C

Judgment—Page

4

of

7

DEFENDANT: Alejandro CARRASCO

CASE NUMBER: 3:14-CR-423-01 (FAB)

STANDARD CONDITIONS OF SUPERVISION

As part of your supervised release, you must comply with the following standard conditions of supervision. These conditions are imposed

because they establish the basic expectations for your behavior while on supervision and identify the minimum tools needed by probation

officers to keep informed, report to the court about, and bring about improvements in your conduct and condition.

1.

2.

3.

4.

5.

6.

7.

8.

9.

10.

11.

12.

13.

You must report to the probation office in the federal judicial district where you are authorized to reside within 72 hours of your

release from imprisonment, unless the probation officer instructs you to report to a different probation office or within a different time

frame.

After initially reporting to the probation office, you will receive instructions from the court or the probation officer about how and

when you must report to the probation officer, and you must report to the probation officer as instructed.

You must not knowingly leave the federal judicial district where you are authorized to reside without first getting permission from the

court or the probation officer.

You must answer truthfully the questions asked by your probation officer.

You must live at a place approved by the probation officer. If you plan to change where you live or anything about your living

arrangements (such as the people you live with), you must notify the probation officer at least 10 days before the change. If notifying

the probation officer in advance is not possible due to unanticipated circumstances, you must notify the probation officer within 72

hours of becoming aware of a change or expected change.

You must allow the probation officer to visit you at any time at your home or elsewhere, and you must permit the probation officer to

take any items prohibited by the conditions of your supervision that he or she observes in plain view.

You must work full time (at least 30 hours per week) at a lawful type of employment, unless the probation officer excuses you from

doing so. If you do not have full-time employment you must try to find full-time employment, unless the probation officer excuses

you from doing so. If you plan to change where you work or anything about your work (such as your position or your job

responsibilities), you must notify the probation officer at least 10 days before the change. If notifying the probation officer at least 10

days in advance is not possible due to unanticipated circumstances, you must notify the probation officer within 72 hours of

becoming aware of a change or expected change.

You must not communicate or interact with someone you know is engaged in criminal activity. If you know someone has been

convicted of a felony, you must not knowingly communicate or interact with that person without first getting the permission of the

probation officer.

If you are arrested or questioned by a law enforcement officer, you must notify the probation officer within 72 hours.

You must not own, possess, or have access to a firearm, ammunition, destructive device, or dangerous weapon (i.e., anything that was

designed, or was modified for, the specific purpose of causing bodily injury or death to another person such as nunchakus or tasers).

You must not act or make any agreement with a law enforcement agency to act as a confidential human source or informant without

first getting the permission of the court.

If the probation officer determines that you pose a risk to another person (including an organization), the probation officer may

require you to notify the person about the risk and you must comply with that instruction. The probation officer may contact the

person and confirm that you have notified the person about the risk.

You must follow the instructions of the probation officer related to the conditions of supervision.

U.S. Probation Office Use Only

A U.S. probation officer has instructed me on the conditions specified by the court and has provided me with a written copy of this

judgment containing these conditions. For further information regarding these conditions, see Overview of Probation and Supervised

Release Conditions, available at: www.uscourts.gov.

Defendant's Signature

Date

AO 245B (Rev. 09/19)

Judgment in a Criminal Case

Sheet 3B — Supervised Release

25a

Appendix C

Judgment—Page

DEFENDANT: Alejandro CARRASCO

CASE NUMBER: 3:14-CR-423-01 (FAB)

5

of

7

ADDITIONAL SUPERVISED RELEASE TERMS

1. He shall observe the standard conditions of supervised release recommended by the United States Sentencing Commission and

adopted by this Court.

2. He shall not commit another federal, state, or local crime.

3. He shall not possess firearms, destructive devices, or other dangerous weapons.

4. He shall not unlawfully possess controlled substances.

5. He shall submit himself and his property, house, residence, vehicles, papers and effects, computers and other electronic

communication or data storage devices or media to a search, at any time, with our without a warrant, by the Probation Officer, and if

necessary, with the assistance of any other law enforcement officer (in the lawful discharge of the supervision functions of the Probation

Officer) with reasonable suspicion of unlawful conduct or of a violation of a condition of supervised release. The probation officer may

seize any electronic communication or electronic device or medium which will be subject to further forensic investigation or analysis.

Failure to submit to a search and seizure may be grounds for revocation of supervised release. Mr. Carrasco shall warn any other

resident or occupant that the premises may be subject to searches pursuant to this condition.

6. He shall provide the U.S. Probation Officer complete access to any financial information upon request.

7. He shall cooperate in the collection of a DNA sample as directed by the Probation Officer, pursuant to the Revised DNA Collection

Requirements 18 U.S.C. § 3563(a)(9).

8. He shall perform 150 hours of unpaid community service work during the supervision period, at a private non-profit or public facility to

be selected under the arrangements that the U.S. Probation Officer may determine.

AO 245B (Rev. 09/19)

Judgment in a Criminal Case

Sheet 5 — Criminal Monetary Penalties

26a

Appendix C

Judgment — Page

DEFENDANT: Alejandro CARRASCO

CASE NUMBER: 3:14-CR-423-01 (FAB)

6

of

7

CRIMINAL MONETARY PENALTIES

The defendant must pay the total criminal monetary penalties under the schedule of payments on Sheet 6.

TOTALS

5HVWLWXWLRQ

$ 0.00

Assessment

$ 400.00

)LQH

$ 0.00

G The determination of restitution is deferred until

$9$$$VVHVVPHQW

$ 0.00

-97$$VVHVVPHQW

$ 0.00

. An Amended Judgment in a Criminal Case (AO 245C) will be

entered after such determination.

G The defendant must make restitution (including community restitution) to the following payees in the amount listed below.

If the defendant makes a partial payment, each payee shall receive an approximately proportioned payment, unless specified otherwise in

the priority order or percentage payment column below. However, pursuant to 18 U.S.C. § 3664(i), all nonfederal victims must be paid

before the United States is paid.

Name of Payee

TOTALS

Total Loss***

0.00

$

$

Restitution Ordered

Priority or Percentage

0.00

G

Restitution amount ordered pursuant to plea agreement $

G

The defendant must pay interest on restitution and a fine of more than $2,500, unless the restitution or fine is paid in full before the

fifteenth day after the date of the judgment, pursuant to 18 U.S.C. § 3612(f). All of the payment options on Sheet 6 may be subject

to penalties for delinquency and default, pursuant to 18 U.S.C. § 3612(g).

G

The court determined that the defendant does not have the ability to pay interest and it is ordered that:

G the interest requirement is waived for the

G the interest requirement for the

G fine

G fine

G restitution.

G restitution is modified as follows:

* Amy, Vicky, and Andy Child Pornography Victim Assistance Act of 2018, Pub. L. No. 115-299.

** Justice for Victims of Trafficking Act of 2015, Pub. L. No. 114-22.

*** Findings for the total amount of losses are required under Chapters 109A, 110, 110A, and 113A of Title 18 for offenses committed on

or after September 13, 1994, but before April 23, 1996.

AO 245B (Rev. 09/19)

27a

Appendix C

Judgment in a Criminal Case

Sheet 6 — Schedule of Payments

Judgment — Page

DEFENDANT: Alejandro CARRASCO

CASE NUMBER: 3:14-CR-423-01 (FAB)

7

of

7

SCHEDULE OF PAYMENTS

Having assessed the defendant’s ability to pay, payment of the total criminal monetary penalties is due as follows:

A

✔ Lump sum payment of $ 400.00

G

G

G

not later than

in accordance with G C,

due immediately, balance due

, or

G D,

G E, or

B

G Payment to begin immediately (may be combined with

C

G Payment in equal

D

G Payment in equal

G F below; or

G C,

G D, or

G F below); or

(e.g., weekly, monthly, quarterly) installments of $

over a period of

(e.g., months or years), to commence

(e.g., 30 or 60 days) after the date of this judgment; or

(e.g., weekly, monthly, quarterly) installments of $

over a period of

(e.g., months or years), to commence

(e.g., 30 or 60 days) after release from imprisonment to a

term of supervision; or

E

G Payment during the term of supervised release will commence within

(e.g., 30 or 60 days) after release from

imprisonment. The court will set the payment plan based on an assessment of the defendant’s ability to pay at that time; or

F

G Special instructions regarding the payment of criminal monetary penalties:

Unless the court has expressly ordered otherwise, if this judgment imposes imprisonment, payment of criminal monetary penalties is due during

the period of imprisonment. All criminal monetary penalties, except those payments made through the Federal Bureau of Prisons’ Inmate

Financial Responsibility Program, are made to the clerk of the court.

The defendant shall receive credit for all payments previously made toward any criminal monetary penalties imposed.

G Joint and Several

Case Number

Defendant and Co-Defendant Names

(including defendant number)

Total Amount

Joint and Several

Amount

Corresponding Payee,

if appropriate

G The defendant shall pay the cost of prosecution.

G The defendant shall pay the following court cost(s):

G The defendant shall forfeit the defendant’s interest in the following property to the United States:

Payments shall be applied in the following order: (1) assessment, (2) restitution principal, (3) restitution interest, (4) AVAA assessment,

(5) fine principal, (6) fine interest, (7) community restitution, (8) JVTA assessment, (9) penalties, and (10) costs, including cost of

prosecution and court costs.

28a

Appendix D

50

1

A

Yes.

2

Q

Focusing on the years after that, 2009 until your arrest

3

in 2012, did you receive additional contracts from Rio

4

Grande?

5

A

Yes.

6

Q

And what about the municipalities of Barceloneta and

7

Juncos in the period of 2009 to 2012, did you receive

8

contracts from those municipalities between those dates,

9

2009-2012?

10

A

Yes.

11

Q

Multiple contracts with each municipality?

12

A

Yes.

13

Q

And what was the Defendant's role, if any, in those

14

municipalities during that 2009 up to 2012 time period?

15

A

He was the attorney for the municipalities.

16

Q

Legal adviser to the mayors?

17

A

Yes.

18

Q

Did the Defendant offer to help you get those additional

19

contracts or at least some of those additional contracts in

20

Barceloneta, Rio Grande, Juncos between 2009 and 2012?

21

22

MS. LIZARRIBAR-MASINI:

Objection, Your Honor.

Leading.

23

THE COURT:

Overruled.

24

THE WITNESS:

Yes.

25

Joe Reynosa, CSR, RPR

Official Court Reporter

29a

Appendix D

1

BY MR. PEARCE:

2

Q

How?

3

A

Well, he kept me up to date as to the opportunities that

4

would come up in Rio Grande.

5

In Barceloneta, he would take me to the mayor to

6

help him solve multiple problems that were coming up with

7

multiple agencies.

8

And in Juncos, the same thing.

There was a big

9

problem at the Federal level with the landfill.

10

took me to meet Papo, and we worked from then.

11

Q

12

serving as your attorney?

13

A

No.

14

Q

Whose attorney was he?

15

A

Of the municipalities and mayors.

16

Q

Did you Defendant ask for payment in exchange for that

17

help?

18

A

Yes.

19

Q

How would he ask you -- how did he ask you?

20

A

The same methodology.

21

By helping you get those contracts, was the Defendant

"How much is in there for me?"

In the case of Barceloneta, he then wanted some

22

specific amounts.

23

Q

24

familiar with a specific term.

25

And so he

Let's talk about that shortly.

I want to ask if you are

Have you heard the term "misas sueltas"?

Joe Reynosa, CSR, RPR

Official Court Reporter

30a

Appendix E

United States Code Annotated

Title 18. Crimes and Criminal Procedure (Refs & Annos)

Part I. Crimes (Refs & Annos)

Chapter 31. Embezzlement and Theft (Refs & Annos)

18 U.S.C.A. § 666

§ 666. Theft or bribery concerning programs receiving Federal funds

Currentness

(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-(A) embezzles, steals, obtains by fraud, or otherwise without authority knowingly converts to the use of any person other

than the rightful owner or intentionally misapplies, property that-(i) is valued at $5,000 or more, and

(ii) is owned by, or is under the care, custody, or control of such organization, government, or agency; or

(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; or

(2) corruptly gives, offers, or agrees to give anything of value to any person, with intent to influence or reward an agent

of an organization or of a State, local or Indian tribal government, or any agency thereof, in connection with any business,

transaction, or series of transactions of such organization, government, or agency involving anything of value of $5,000 or

more;

shall be fined under this title, imprisoned not more than 10 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.

(c) This section does not apply to bona fide salary, wages, fees, or other compensation paid, or expenses paid or reimbursed,

in the usual course of business.

(d) As used in this section-© 2024 Thomson Reuters. No claim to original U.S. Government Works.

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Appendix E

(1) the term “agent” means a person authorized to act on behalf of another person or a government and, in the case of an

organization or government, includes a servant or employee, and a partner, director, officer, manager, and representative;

(2) the term “government agency” means a subdivision of the executive, legislative, judicial, or other branch of government,

including a department, independent establishment, commission, administration, authority, board, and bureau, and a

corporation or other legal entity established, and subject to control, by a government or governments for the execution of a

governmental or intergovernmental program;

(3) the term “local” means of or pertaining to a political subdivision within a State;

(4) the term “State” includes a State of the United States, the District of Columbia, and any commonwealth, territory, or

possession of the United States; and

(5) the term “in any one-year period” means a continuous period that commences no earlier than twelve months before the

commission of the offense or that ends no later than twelve months after the commission of the offense. Such period may

include time both before and after the commission of the offense.

CREDIT(S)

(Added Pub.L. 98-473, Title II, § 1104(a), Oct. 12, 1984, 98 Stat. 2143; amended Pub.L. 99-646, § 59(a), Nov. 10, 1986, 100

Stat. 3612; Pub.L. 101-647, Title XII, §§ 1205(d), 1209, Nov. 29, 1990, 104 Stat. 4831, 4832; Pub.L. 103-322, Title XXXIII,

§ 330003(c), Sept. 13, 1994, 108 Stat. 2140.)

U.S. SUPREME COURT OCTOBER TERM 2023

<U.S. Supreme Court, Oct. Term 2023, Oral Argument - Question Presented: Whether section 666 criminalizes

gratuities, i.e., payments in recognition of actions the official has already taken or committed to take, without any

quid pro quo agreement to take those actions. United States v. Snyder, 71 F.4th 555 (7th Cir.), cert. granted, 144 S.

Ct. 536, 217 L. Ed. 2d 284 (2023).>

Notes of Decisions (386)

18 U.S.C.A. § 666, 18 USCA § 666

Current through P.L. 118-62. Some statute sections may be more current, see credits for details.

End of Document

© 2024 Thomson Reuters. No claim to original U.S. Government Works.

© 2024 Thomson Reuters. No claim to original U.S. Government Works.

2

32a

Appendix F

United States Code Annotated

Title 18. Crimes and Criminal Procedure (Refs & Annos)

Part I. Crimes (Refs & Annos)

Chapter 11. Bribery, Graft, and Conflicts of Interest (Refs & Annos)

18 U.S.C.A. § 201

§ 201. Bribery of public officials and witnesses

Effective: December 22, 2023

Currentness

(a) For the purpose of this section-(1) the term “public official” means Member of Congress, Delegate, or Resident Commissioner, either before or after such

official has qualified, or an officer or employee or person acting for or on behalf of the United States, or any department,

agency or branch of Government thereof, including the District of Columbia, in any official function, under or by authority

of any such department, agency, or branch of Government, or a juror;

(2) the term “person who has been selected to be a public official” means any person who has been nominated or appointed

to be a public official, or has been officially informed that such person will be so nominated or appointed;

(3) the term “official act” means any decision or action on any question, matter, cause, suit, proceeding or controversy, which

may at any time be pending, or which may by law be brought before any public official, in such official's official capacity,

or in such official's place of trust or profit;

(4) the term “foreign official” means-(A)(i) any official or employee of a foreign government or any department, agency, or instrumentality thereof; or

(ii) any senior foreign political figure, as defined in section 1010.605 of title 31, Code of Federal Regulations, or any

successor regulation;

(B) any official or employee of a public international organization;

(C) any person acting in an official capacity for or on behalf of-(i) a government, department, agency, or instrumentality described in subparagraph (A)(i); or

(ii) a public international organization; or

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Appendix F

(D) any person acting in an unofficial capacity for or on behalf of-(i) a government, department, agency, or instrumentality described in subparagraph (A)(i); or

(ii) a public international organization; and

(5) the term “public international organization” means-(A) an organization that is designated by Executive order pursuant to section 1 of the International Organizations

Immunities Act (22 U.S.C. 288); or

(B) any other international organization that is designated by the President by Executive order for the purposes of this

section, effective as of the date of publication of such order in the Federal Register.

(b) Whoever-(1) directly or indirectly, corruptly gives, offers or promises anything of value to any public official or person who has been

selected to be a public official, or offers or promises any public official or any person who has been selected to be a public

official to give anything of value to any other person or entity, with intent-(A) to influence any official act; or

(B) to influence such public official or person who has been selected to be a public official to commit or aid in committing,

or collude in, or allow, any fraud, or make opportunity for the commission of any fraud, on the United States; or

(C) to induce such public official or such person who has been selected to be a public official to do or omit to do any act

in violation of the lawful duty of such official or person;

(2) being a public official or person selected to be a public official, directly or indirectly, corruptly demands, seeks, receives,

accepts, or agrees to receive or accept anything of value personally or for any other person or entity, in return for:

(A) being influenced in the performance of any official act;

(B) being influenced to commit or aid in committing, or to collude in, or allow, any fraud, or make opportunity for the

commission of any fraud, on the United States; or

(C) being induced to do or omit to do any act in violation of the official duty of such official or person;

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Appendix F

(3) directly or indirectly, corruptly gives, offers, or promises anything of value to any person, or offers or promises such

person to give anything of value to any other person or entity, with intent to influence the testimony under oath or affirmation

of such first-mentioned person as a witness upon a trial, hearing, or other proceeding, before any court, any committee of

either House or both Houses of Congress, or any agency, commission, or officer authorized by the laws of the United States

to hear evidence or take testimony, or with intent to influence such person to absent himself therefrom;

(4) directly or indirectly, corruptly demands, seeks, receives, accepts, or agrees to receive or accept anything of value

personally or for any other person or entity in return for being influenced in testimony under oath or affirmation as a witness

upon any such trial, hearing, or other proceeding, or in return for absenting himself therefrom;

shall be fined under this title or not more than three times the monetary equivalent of the thing of value, whichever is greater,

or imprisoned for not more than fifteen years, or both, and may be disqualified from holding any office of honor, trust, or profit

under the United States.

(c) Whoever-(1) otherwise than as provided by law for the proper discharge of official duty-(A) directly or indirectly gives, offers, or promises anything of value to any public official, former public official, or person

selected to be a public official, for or because of any official act performed or to be performed by such public official,

former public official, or person selected to be a public official; or

(B) being a public official, former public official, or person selected to be a public official, otherwise than as provided by

law for the proper discharge of official duty, directly or indirectly demands, seeks, receives, accepts, or agrees to receive

or accept anything of value personally for or because of any official act performed or to be performed by such official

or person;

(2) directly or indirectly, gives, offers, or promises anything of value to any person, for or because of the testimony under

oath or affirmation given or to be given by such person as a witness upon a trial, hearing, or other proceeding, before any

court, any committee of either House or both Houses of Congress, or any agency, commission, or officer authorized by the

laws of the United States to hear evidence or take testimony, or for or because of such person's absence therefrom;

(3) directly or indirectly, demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally for

or because of the testimony under oath or affirmation given or to be given by such person as a witness upon any such trial,

hearing, or other proceeding, or for or because of such person's absence therefrom;

shall be fined under this title or imprisoned for not more than two years, or both.

(d) Paragraphs (3) and (4) of subsection (b) and paragraphs (2) and (3) of subsection (c) shall not be construed to prohibit the

payment or receipt of witness fees provided by law, or the payment, by the party upon whose behalf a witness is called and

receipt by a witness, of the reasonable cost of travel and subsistence incurred and the reasonable value of time lost in attendance

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35a

Appendix F

at any such trial, hearing, or proceeding, or in the case of expert witnesses, a reasonable fee for time spent in the preparation

of such opinion, and in appearing and testifying.

(e) The offenses and penalties prescribed in this section are separate from and in addition to those prescribed in sections 1503,

1504, and 1505 of this title.

(f) Prohibition of demand for a bribe.-(1) Offense.--It shall be unlawful for any foreign official or person selected to be a foreign official to corruptly demand, seek,

receive, accept, or agree to receive or accept, directly or indirectly, anything of value personally or for any other person or

nongovernmental entity, by making use of the mails or any means or instrumentality of interstate commerce, from any person

(as defined in section 104A of the Foreign Corrupt Practices Act of 1977 (15 U.S.C. 78dd-3), except that that definition shall

be applied without regard to whether the person is an offender) while in the territory of the United States, from an issuer (as

defined in section 3(a) of the Securities Exchange Act of 1934 (15 U.S.C. 78c(a))), or from a domestic concern (as defined

in section 104 of the Foreign Corrupt Practices Act of 1977 (15 U.S.C. 78dd-2)), in return for-(A) being influenced in the performance of any official act;

(B) being induced to do or omit to do any act in violation of the official duty of such foreign official or person; or

(C) conferring any improper advantage,

in connection with obtaining or retaining business for or with, or directing business to, any person.

(2) Penalties.--Any person who violates paragraph (1) shall be fined not more than $250,000 or 3 times the monetary

equivalent of the thing of value, imprisoned for not more than 15 years, or both.

(3) Jurisdiction.--An offense under paragraph (1) shall be subject to extraterritorial Federal jurisdiction.

(4) Report.--Not later than 1 year after the date of enactment of the Foreign Extortion Prevention Act, and annually thereafter,

the Attorney General, in consultation with the Secretary of State as relevant, shall submit to the Committee on the Judiciary

and the Committee on Foreign Relations of the Senate and the Committee on the Judiciary and the Committee on Foreign

Affairs of the House of Representatives, and post on the publicly available website of the Department of Justice, a report-(A) focusing, in part, on demands by foreign officials for bribes from entities domiciled or incorporated in the United

States, and the efforts of foreign governments to prosecute such cases;

(B) addressing United States diplomatic efforts to protect entities domiciled or incorporated in the United States from

foreign bribery, and the effectiveness of those efforts in protecting such entities;

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Appendix F

(C) summarizing major actions taken under this section in the previous year, including enforcement actions taken and

penalties imposed;

(D) evaluating the effectiveness of the Department of Justice in enforcing this section; and

(E) detailing what resources or legislative action the Department of Justice needs to ensure adequate enforcement of this

section.

(5) Rule of construction.--This subsection shall not be construed as encompassing conduct that would violate section 30A of

the Securities Exchange Act of 1934 (15 U.S.C. 78dd-1) or section 104 or 104A of the Foreign Corrupt Practices Act of 1977

(15 U.S.C. 78dd-2; 15 U.S.C. 78dd-3) whether pursuant to a theory of direct liability, conspiracy, complicity, or otherwise.

CREDIT(S)

(Added Pub.L. 87-849, § 1(a), Oct. 23, 1962, 76 Stat. 1119; amended Pub.L. 91-405, Title II, § 204(d)(1), Sept. 22, 1970, 84

Stat. 853; Pub.L. 99-646, § 46(a) to (l), Nov. 10, 1986, 100 Stat. 3601; Pub.L. 103-322, Title XXXIII, §§ 330011(b), 330016(2)

(D), Sept. 13, 1994, 108 Stat. 2144, 2148; Pub.L. 118-31, Div. E, Title LI, § 5101, Dec. 22, 2023, 137 Stat. 931.)

EXECUTIVE ORDERS

EXECUTIVE ORDER NO. 11222

Ex. Ord. No. 11222, May 8, 1965, 30 F.R. 6469, as amended Ex. Ord. No. 11590, Apr. 23, 1971, 36 F.R. 7831; Ex. Ord. 12107,

Dec. 28, 1978, 44 F.R. 1055; Ex. Ord. No. 12565, Sept. 25, 1986, 51 F.R. 34437, which related to standards of ethical conduct

for government officers and employees, was revoked by Ex. Ord. No. 12674, Apr. 12, 1989, 54 F.R. 15159, as amended set out

as a note under section 7301 of Title 5, Government Organization and Employees. Ex. Ord. No. 12565, which amended Ex.

Ord. No. 11222, was also revoked by Ex. Ord. No. 12674.

MEMORANDUM OF ATTORNEY GENERAL REGARDING

CONFLICT OF INTEREST PROVISIONS OF PUBLIC LAW 87-849

<Feb. 1, 1963, 28 F.R. 985>

<January 28, 1963>

Public Law 87-849, “To strengthen the criminal laws relating to bribery, graft, and conflicts of interest, and for other purposes,”

came into force January 21, 1963. A number of departments and agencies of the Government have suggested that the Department

of Justice prepare and distribute a memorandum analyzing the conflict of interest provisions contained in the new act. I am

therefore distributing the attached memorandum.

One of the main purposes of the new legislation merits specific mention. That purpose is to help the Government obtain the

temporary or intermittent services of persons with special knowledge and skills whose principal employment is outside the

Government. For the most part the conflict of interest statutes superseded by Public Law 87-849 imposed the same restraints

on a person serving the Government temporarily or intermittently as on a full-time employee, and those statutes often had

an unnecessarily severe impact on the former. As a result, they impeded the departments and agencies in the recruitment of

© 2024 Thomson Reuters. No claim to original U.S. Government Works.

5

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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