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United States v. Edison Misla-Aldarondo
Citations: 478 F.3d 52; 2007 U.S. App. LEXIS 4803; 2007 WL 625124Docket: 04-1424
Court: Court of Appeals for the First Circuit; March 1, 2007; Federal Appellate Court
Edison Misla-Aldarondo, former Speaker of the Puerto Rico House of Representatives, was convicted of extortion, money laundering, and witness tampering in connection with a scheme involving the privatization of the Dr. Alejandro Otero Lopez Hospital (HAOL). Misla assisted a group led by co-defendants Dr. José De Jesús Toro and Dr. Alvin Ramirez Ortiz, who sought to circumvent a competitive bidding process to acquire HAOL by first obtaining a management contract from Caribbean Hospital Corporation (CHC). José Ivan Ramos Cubano, another co-defendant, facilitated the arrangement, which involved bribing PRDH officials, including the head of PRDH’s legal division. Misla leveraged his influence with Marcos Rodriguez Ema, president of the Government Development Bank (GDB), to secure necessary approvals for the transaction in exchange for payments. Despite an independent law firm's recommendation against CAS's eligibility for the purchase due to outstanding debts, GDB approved the sale of HAOL for $14 million. Misla received $147,400 in payments from CAS between August and October 1998. Following an investigation initiated by Puerto Rico's Justice Department in 2001, Ramos cooperated with authorities, recording conversations with Misla, during which Misla suggested strategies to evade the investigation. Misla was sentenced to 71 months in prison, three years of supervised release, fined $12,500, and ordered to forfeit $147,400. His appeal against the conviction and sentence was ultimately affirmed by the First Circuit Court of Appeals. On October 25, 2001, Misla was indicted on multiple charges, including extortion and money laundering. He was convicted on five of six counts after a jury trial and sentenced on June 20, 2003, to 71 months of concurrent imprisonment and three years of supervised release, along with a forfeiture of $147,400. Misla's case garnered significant pretrial publicity, including posters featuring his photo with a derogatory message. He requested a change of venue to the Virgin Islands, a 90-day continuance for publicity to fade, and expanded jury voir dire, all of which were denied by the district court, although individualized voir dire was conducted over five days. Misla proposed 84 voir dire questions, of which several were accepted, addressing pretrial publicity and his pending sexual assault charges. Despite excusing 13 jurors for potential bias, Misla's further challenges were denied, resulting in only one juror from his challenges remaining on the final jury. The appellate review of the district court's decisions regarding venue change, continuance, expanded voir dire, and additional peremptory challenges is conducted under an abuse of discretion standard. A change of venue is warranted if prejudicial publicity makes it impossible to secure an impartial jury, and while Misla does not assert actual juror prejudice on appeal, the focus is on whether presumed prejudice arose from the publicity. A presumption of prejudice in jury selection is only warranted in cases of extensive and sensational publicity. High media coverage alone is not sufficient for this presumption unless it is inflammatory. Courts assess community bias by evaluating the efforts required to select impartial jurors. Generally, jurors need only set aside their preconceptions to reach a verdict based on trial evidence. However, if a significant portion of potential jurors is disqualified, this may raise concerns about the impartiality of those remaining. In the case of Misla, significant media attention surrounded him due to his role as Speaker of the Puerto Rico House of Representatives and allegations of sexual assault against a minor. The district court conducted thorough voir dire, spending 15 to 25 minutes with each juror and asking over 50 standardized questions covering their opinions about Misla, their media consumption, discussions about the case, political affiliations, and personal experiences with sexual assault. Additionally, jurors were questioned on their understanding of the presumption of innocence and burden of proof. Ultimately, only 13 out of 84 jurors, approximately 15%, were excused for bias, a percentage deemed insufficient to presume community prejudice. This aligns with precedent indicating that a higher disqualification rate is necessary to raise concerns about impartiality, as seen in cases where 25% or more of jurors expressed bias. Even considering additional jurors challenged by Misla but not found biased, the disqualification rate would only rise to 25%. A low percentage of juror disqualification does not guarantee the absence of prejudice but serves as significant evidence against it, which can be rebutted by compelling evidence of extensive inflammatory publicity. Misla presented over 180 articles to the district court to demonstrate such publicity; however, the court decided against a venue change, citing the effectiveness of the planned voir dire process. Misla has not provided specific evidence indicating that the judge abused her discretion in denying the motion. Regarding continuance, a trial court has broad discretion in deciding such motions, and abuse is found only with a clear showing of unreasonable insistence on expeditiousness despite valid requests for delay. Misla's argument for a continuance based solely on pretrial publicity was addressed by the voir dire, thus justifying the denial of the motion. Concerning the voir dire procedures, Misla's objections lack clarity. He inconsistently argues for either an expansion of voir dire to include more questions or claims that the existing questions were prejudicial, the latter argument being invalid since the questioned topics were specifically requested by him. The court is allowed broad discretion in conducting voir dire and is not required to accept all proposed questions. Misla specifically requested a question about jurors discussing the case amongst themselves, which the judge deemed too broad and unprobative. The judge's existing questions were found sufficient in addressing potential bias, and Misla did not demonstrate how the lack of additional questions prejudiced him. Misla requested five additional peremptory challenges, which were denied. He argued that the denial of several for-cause challenges justified his request for more peremptory challenges. However, this argument was rejected as it indirectly contested the for-cause denials, which are typically left to the trial judge's discretion unless there is clear abuse. Misla did not utilize any of his ten allotted peremptory challenges on the jurors he had challenged for cause, and there was no indication of actual prejudice among the jury members. Therefore, the court found no abuse of discretion. During the trial on December 4, 2002, Misla's counsel cross-examined Ramos, a cooperating witness, regarding alleged bad acts and questioned him about a $300,000 investment from Eduardo Pubill, which might have been linked to money laundering due to connections with Edgardo Pubill, a convicted drug trafficker. Ramos denied knowingly laundering money, believing instead that a gas station owner would have excess cash to invest. The government informed the court that Ramos only became aware of the funds' illegal source during trial preparation with the U.S. Attorney's office. The court then ordered further investigation into the Ramos-Pubill transaction and any related activities involving Eduardo Pubill. On December 6, 2002, the prosecution reported that Eduardo Pubill had no federal convictions. Subsequently, the court mandated the prosecution to obtain official certifications from federal agencies regarding any evidence of money laundering related to the Pubills. On December 9, 2002, the judge discovered that Eduardo Pubill had a prior conviction, although an error in case number citation led to no further information being obtained regarding his conviction. Deputy U.S. Marshal Roberto Vizcarrondo recalled an interview with informant Pedro Torres Molano, who disclosed that he assisted in laundering money for the Pubills through Ramos, who was aware of the money's illegal origin. Vizcarrondo forwarded the details of this conversation in a draft Form 302 to FBI agent José Figueroa on December 11, 2002. The following day, FBI agent Jane Erickson submitted the Form 302 to the court, clarifying that it was relevant to Ramos and Telefónica Hispanoamericano, although not directly related to the case numbers specified in the court's December 9 order. Subsequently, the court recognized the Form 302's relevance, provided a redacted copy, and granted Misla a continuance until December 17, 2002. Torres testified on December 20, 2002, stating he informed Ramos that the money allegedly came from an illegal source. The court then conducted an evidentiary hearing regarding Misla's use of the Form 302 to impeach Ramos. Testimony revealed that the Form 302 had been created but not properly indexed for access by other agents. Misla moved to dismiss the indictment, alleging prosecutorial misconduct, claiming FBI Agent Hernández, who was present during Ramos's testimony, did not disclose his knowledge of the Form 302. The district court denied this motion, asserting Misla had received the necessary impeachment material. After the evidentiary hearing, Torres clarified his testimony, stating he told Ramos the funds were believed to be drug proceeds. The trial resumed on December 26, 2002, with Misla cross-examining Ramos and seeking to question Hernández and Priegues about the Form 302 to suggest the government's intent to withhold evidence. The district court denied this request on January 14, 2003, ruling the evidence was not relevant to impeaching Ramos. Following the trial, a verdict was reached, and on October 9, 2003, the prosecution disclosed that Eduardo Pubill, the source of the money for Ramos's investment, had a prior conviction for structuring financial transactions in violation of federal law, contradicting earlier claims made during the trial. This error was attributed to prior database searches that had incorrectly identified Pubill's conviction record. Misla filed a motion to dismiss the indictment or request a new trial, claiming prosecutorial misconduct due to the delayed disclosure of Eduardo Pubill's conviction, which he argued hindered his ability to effectively impeach the government's main witness, Ramos. The district court denied the motion, asserting that there was sufficient material available for impeachment regardless of the conviction record, including testimony from Torres. The court noted Misla could have discovered the error in the case number independently. The standard for reviewing delayed disclosures is whether the defendant's counsel was prevented from using the disclosed material effectively. Misla failed to demonstrate a plausible strategic option that the delay obstructed. His assertion of a government attempt to conceal information did not establish prejudice, as the court found that Misla successfully utilized the information against Ramos despite the delay. Additionally, the district court disallowed testimony from FBI agents Hernández and Priegues regarding an alleged cover-up, stating it was irrelevant since Misla had already admitted the Form 302 into evidence to impeach Ramos. The court's evidentiary ruling was reviewed for abuse of discretion and found to be appropriate. Following the government's notification about Pubill's conviction for financial transaction structuring, Misla again sought dismissal or a new trial, which the judge denied. The denial of the motion is reviewed under the standards set forth in Brady and Giglio, particularly regarding nondisclosure issues. The government labeled the matter as nondisclosure, which would invoke a stringent review standard, but the court had previously informed both parties about Eduardo Pubill-Rivera's conviction during the trial. A clerical error in identifying the case number led to confusion but did not result in actual nondisclosure, as the conviction information was disclosed during the trial. The district court recognized that the government's motion could cause confusion, as the court had already probed into Pubill-Rivera's conviction, which was shared with the parties. The court concluded that this situation was at most a delayed disclosure, and they reiterated the need to assess whether the delay hindered the defendant's preparation and presentation of his case. The standard of review for the denial of the motion is an abuse of discretion, which the court found was not present, since the defendant Misla was not prevented from effectively using the disclosed information. Misla posited an improbable chain of events regarding how knowledge of Pubill's conviction would have influenced the trial, but the court determined that this inference lacked merit, especially since Misla had access to the information during the trial and chose not to pursue it. Furthermore, the relevance of Ramos's prior convictions was acknowledged, but the connection to Pubill's conviction was deemed too indirect to impact the trial. Ultimately, the court concluded that Misla was not prejudiced by the delay, affirming that the judge did not abuse her discretion in the matter. Misla contends that the district court erred by allowing the testimony of Alvin Ramírez, a principal from CAS, claiming he lacked personal knowledge. The court's evidentiary ruling is reviewed for abuse of discretion, and any error must be deemed harmless to avoid reversal. Ramírez testified about checks from HAOL to Ramos that were eventually received by Cruz and Misla, admitting he initially did not know their intended use but learned about it later during the government's investigation. Despite defense objections, the district judge permitted the testimony, allowing for cross-examination on Ramírez's knowledge source. Misla's argument is inadequately supported by legal authority, and the potential error is considered harmless given Ramírez’s credible testimony about seeing the checks and his awareness of Ramos's intent regarding payment to Misla. The jury had sufficient information to assess Ramírez's credibility, and there was substantial evidence against Misla. Additionally, Misla challenges the sufficiency of evidence for Counts 2 (Hobbs Act extortion), 3 and 4 (money laundering), and 6 (witness tampering), arguing the district court should have dismissed these counts. The sufficiency of evidence is reviewed de novo, with the evidence viewed favorably to the prosecution. For Count 2, Misla points to a clerical error in the indictment, asserting that it required proof of both economic fear and color of official right. However, the court clarifies that a count can allege multiple means of committing an offense conjunctively, and a conviction can stand if evidence supports any of the alleged means. Misla's argument focuses on the sufficiency of evidence for the "economic fear" element of extortion while neglecting to challenge the "under color of official right" element. The jury was correctly instructed that it could convict based solely on the "color of official right" evidence, which remains unchallenged. Regarding the money laundering charge, Misla contends that extortion and money laundering cannot stem from the same acts, asserting insufficient evidence for the money laundering conviction. To prove conspiracy to commit money laundering, the government needed to show that Misla knowingly engaged in a financial transaction involving proceeds from unlawful activity, with awareness that these transactions aimed to conceal the nature or source of those proceeds. The court clarified that laundering cannot occur in the same transaction that generates the tainted funds, but does not require the underlying crime to be completed before money laundering begins. Misla argued that the extortion was incomplete until he received the funds, claiming that no effort to conceal the money existed at that time. The government countered that extortion was complete when co-conspirator Ramos received the funds and took steps to conceal the transactions. Misla's attempts to disguise the source of the money prior to its possession do not absolve him of liability. The court emphasized that money laundering pertains to transactions involving proceeds, not the act generating those proceeds, and noted Misla's culpability extends to his co-conspirators' actions. The indictment linked extortion to the source of unlawful funds for money laundering charges, allowing a reasonable jury to find the extortion complete when Ramos took control of the funds. Misla also challenged his conviction for witness tampering under 18 U.S.C. 1512(b)(1, 2, and 3). Ramos, after agreeing to cooperate with the government, recorded conversations with Misla, who suggested ways to conceal their criminal activities, including fabricating a loan repayment narrative and recommending Ramos leave Puerto Rico. Misla contends that his actions cannot constitute witness tampering since they were directed at Ramos, whom he believed remained a co-conspirator, thus lacking the intent necessary for witness tampering under Section 1512(b). This section penalizes individuals who knowingly persuade others with the intent to influence or prevent testimony in official proceedings. Misla's argument incorrectly focuses on Ramos' status as a "witness" rather than the potential for testimony in an official proceeding. The statute requires evidence that Misla knew or believed an official proceeding was likely and that he intended to influence testimony. The legal standard states that the possibility of an official proceeding must be more than merely foreseeable; there must be substantial evidence of an imminent investigation. Testimony from Ramos indicated that Misla was aware of an investigation and had even sent his attorney to inquire about being a target of that investigation, which contradicts Misla's claims and supports the conclusion that he acted with intent to tamper with potential testimony. Misla was aware of an ongoing investigation and the possibility of future legal proceedings, and his communications with Ramos aimed to influence or prevent Ramos's potential testimony. The courts have established that it is sufficient for a defendant to know about an investigation and the potential for criminal liability, regardless of whether they believed the witness was cooperating or would testify. Misla attempted to persuade Ramos to alter or withhold testimony, which the jury had enough evidence to support. On the issue of sentencing, Misla argues that the district court incorrectly calculated his Sentencing Guidelines range, specifically concerning enhancements for multiple bribes, the imposition of a fine, and the loss amount. These issues were preserved for appeal. The district court's interpretation of the guidelines is reviewed de novo, while factual findings are assessed for clear error. Under Section 2C1.1(b)(1), a two-level increase applies when more than one bribe is involved, and Section 1B1.3 allows for including all reasonably foreseeable actions of co-defendants in calculating base offense levels. Misla contends he should not be accountable for co-defendant Cruz's bribes due to lack of knowledge. However, the court found it reasonably foreseeable that Cruz would be bribed, citing a meeting arranged by a lobbyist to facilitate connections among parties involved. Testimony indicated that Cruz ultimately accepted a bribe to secure approval for a contract related to CAS, with Ramos recalling conversations that implied awareness of the bribery scheme. Misla contended at his sentencing that he only heard Ramos mention Cruz once, prior to Cruz acquiring a car, implying he could not have been aware of any bribery. However, the court found that subsequent testimony from Ramos indicated that Misla was informed about a meeting where the bribery scheme was discussed, leading to the conclusion that Misla should have reasonably foreseen Cruz's involvement in the bribery. Misla also challenged the imposition of a $12,500 fine, the minimum under the Sentencing Guidelines, arguing that the court did not consider his financial situation adequately. The court determined that Misla had not demonstrated an inability to pay the fine, particularly since he had not fully disclosed his financial status during the presentence report preparation. His claim that his pension was insufficient to cover the fine was deemed inadequate by the judge. Lastly, Misla asserted that the combination of the $12,500 fine and a $147,000 forfeiture violated the Eighth Amendment, arguing it was disproportionate to his offense. The court disagreed, noting that the penalties were not grossly disproportional. Additionally, Misla raised a claim of sentencing error under the mandatory guidelines system based on the Supreme Court's ruling in United States v. Booker; however, he acknowledged that he did not preserve this claim, limiting the court's review to plain error, which he failed to establish. Misla's 71-month prison sentence falls within the Guidelines range of 63 to 78 months, indicating the judge's acceptance of this range. Misla's objections to the Guidelines calculation were previously resolved in favor of the government, leading to the conclusion that there is no reasonable basis to believe the judge would have imposed a different sentence under an advisory Guidelines system. Regarding forfeiture, Misla challenged the government's order to forfeit cash linked to his money laundering offense. The government initially indicated in the indictment its intent to seek forfeiture of specific property, including an apartment in Puerto Rico, but later sought only cash. Misla contended that the government could not forfeit cash without identifying a specific pool of cash traceable to the crime. The court ordered the forfeiture of $147,400 based on specific checks presented by the government. On appeal, Misla argued that seizing cash is akin to seizing substitute assets, which the government had not expressed an intention to do, rendering the forfeiture order impossible to execute. He also claimed that it was too late for the government to seek substitute assets due to lack of notice in the indictment. However, it was clarified that a money judgment allows the government to collect on the forfeiture in a manner similar to civil judgments, meaning future assets may be seized to satisfy the order. The government sought a personal money judgment under Rule 32.2, which necessitates determining the amount owed by the defendant, differing from cases where specific property forfeiture requires demonstrating a nexus to the offense. Misla's argument that a forfeiture order is limited to specific proceeds of the offense is incorrect. A money judgment can be issued as part of the forfeiture order, allowing the government to hold the defendant liable for forfeitable proceeds without needing to prove possession of those proceeds at the time of conviction. If the government demonstrates that a sum of cash is traceable to the offense, it is sufficient for the issuance of a money judgment under 18 U.S.C. § 982(a). The enforcement of this judgment raises a separate issue, with differing opinions on whether the government can seize assets directly or must utilize substitute asset provisions under 21 U.S.C. § 853(p). However, no enforcement action has been taken so far against Misla, and he is mistaken in believing the government is barred from seeking substitute assets in the future. Misla's claims regarding the need for notice in the indictment about substitute assets are unfounded. While the government must provide notice of specific property it intends to forfeit, this does not extend to statutory elements of the offense. Forfeiture is viewed as part of the sentencing process rather than a substantive offense element. Under 18 U.S.C. § 982, the court must order forfeiture of property linked to the offense, and if the original property cannot be located or has been transferred, the court shall forfeit any other property of the defendant as per 21 U.S.C. § 853(p). Thus, no further notice is required for such orders. Case law supports that substitute asset orders can be issued even after appeals, indicating flexibility in the timing of such requests by the government. Forfeiture of substitute assets is exclusively under the court's jurisdiction. In a referenced case, while a jury determined a forfeiture amount of $6,000,000, it was clarified that the jury does not assess whether property has been dissipated, which would entitle the government to forfeit substitute assets. The government's burden lies in proving that the principal forfeitable assets identified in the indictment are unavailable at the trial's conclusion, rather than notifying the court of intent to invoke substitute asset provisions at the start. The failure to specify substitute assets in the indictment cannot hinder subsequent forfeiture attempts, preventing defendants from evading forfeiture by transferring assets post-indictment. Defendants do not need to know the identity of substitute assets to prepare a defense. If the government seeks to enforce a money judgment without utilizing the substitute asset provisions, it raises legal questions not addressed in this context. There is a circuit split regarding whether the government must adhere to the procedures of 853(p). A forfeiture money judgment can be issued regardless of whether the defendant retains the actual property involved. This judgment may later be used to seek forfeiture of substitute assets, even if the government did not indicate intent beforehand. Whether the government must follow substitute asset provisions when seizing assets to satisfy a judgment remains unresolved. The judge's calculation of a $147,400 forfeiture amount was upheld, supported by evidence including checks and testimony. Disagreements between parties pertain primarily to specific checks but do not significantly affect the overall characterization of the funds involved. Misla contends that the government improperly stated during the forfeiture hearing that the checks from Diez and Ferrer were not considered in the forfeiture calculation. However, the government clarified that only Diez's check was excluded, with no mention of the Ferrer check. Additionally, the exclusion of Diez's check was an oversight, as it was actually included in the forfeiture calculations, supported by evidence and testimony. Misla misinterprets testimony regarding two $10,000 checks, asserting they constituted Ramos's salary, when in fact only the second check was salary-related. Ramos testified he provided Misla with either $9,000 or $9,500 from the first check, with the government using the lower figure for calculations, indicating no error occurred. The district court's judgment is affirmed. The excerpt also addresses procedural matters concerning the denial of a motion for change of venue, clarifying that the denial was not based solely on the timing of the motion. Misla's claim of jury prejudice lacks evidence, and the jury acquitted him on one count. It notes clerical errors regarding case numbers and names in the records, which complicated the proceedings. The government argues that evidence regarding Pubill's conviction should be reviewed under Fed. R. Crim. P. 33 as newly discovered evidence, rather than Brady violations, suggesting that the distinction matters for evaluating whether a new trial should be granted based on potential acquittal probabilities. Abuse of discretion in denying a new trial for a Brady violation occurs if new evidence presents a reasonable probability of altering the outcome. The standard for new trial motions based on Brady violations is more favorable to defendants. However, if evidence was merely delayed rather than withheld, the review standards are similar, focusing on prejudice. The prosecutor has a duty to uncover favorable evidence known by others in the government’s employ. In a cited case, the court ruled that prosecutors must inquire reasonably about information within their office. The discussion distinguishes between what constitutes a duplicitous indictment, clarifying that a count naming only one offense does not risk jury non-unanimity. The fear element in extortion law can encompass fear of economic loss, which was adequately presented to the jury. Lastly, influencing a witness to testify contrary to their true beliefs constitutes "corruptly persuading" under specific legal provisions. An "official proceeding" encompasses federal trials and grand jury investigations. It is irrelevant whether the U.S. Attorney's Office indicated that an individual was not a target, as a jury might determine that the individual still feared becoming a target in the future. The statute does not necessitate that the person attempting witness tampering be a target of the official proceeding. The district court's forfeiture order is somewhat ambiguous, potentially suggesting forfeiture only of laundered funds, yet the judgment clearly orders the forfeiture of $147,400 in cash. Misla does not contest this on appeal, leading to the assumption that a money judgment was indeed entered against him. The transcript from the forfeiture hearing indicates that the judge and attorneys primarily discussed the judge's authority to issue a money judgment rather than forfeiting specific traceable proceeds. Under 18 U.S.C. 982(b)(1), which incorporates 21 U.S.C. 853 (excluding subsection (d)), even if notice were necessary, the government provided adequate notice for the forfeiture request without specifying a subsection. Moreover, 18 U.S.C. 982 includes the substitute assets provision from 21 U.S.C. 853(p). Misla's argument that he can only forfeit amounts still in his possession and unspent is unpersuasive, as established in prior discussions.