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.
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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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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
16a
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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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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.