In re: US v.

441 F.3d 44

• Court: Court of Appeals for the First Circuit
• Decided: July 9, 2008
• Docket: 06-1136
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

Nos. 07-1205 07-1398

UNITED STATES OF AMERICA,

Appellee,

v.

RENÉ VÁZQUEZ-BOTET, M.D. and MARCOS MORELL-CORRADA,

Defendants, Appellants.

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. José Antonio Fusté, U.S. District Judge]

Before

Lynch, Chief Judge, Torruella, Circuit Judge, and Selya, Senior Circuit Judge.

Scott A. Srebnick, with whom Howard M. Srebnick and Black, Srebnick, Kornspan & Stumpf. P.A., was on brief for appellant Vázquez-Botet. Rafael F. Castro-Lang, for appellant Morell-Corrada. Peter W. Miller, with whom Stuart A. Weinstein-Bacal, José A. Cabiya-Morales, and Weinstein-Bacal & Miller, P.S.C., was on brief for amicus curiae Caribbean International News, Inc. d/b/a El Vocero, Santa Rita Acquisitions Corp. d/b/a The San Juan Star, Wilfredo G. Blanco-Pi d/b/a Wapa Radio, and Madifide, Inc. d/b/a Notiuno 630. Mary K. Butler, Trial Attorney, Public Integrity Section, Criminal Division, U.S. Department of Justice, with whom William M. Welch, II, Chief, was on brief for appellee. Efrem M. Grail, with whom Reed Smith LLP, Thomas J. Farrell, and Dreier LLP, was on brief for intervenors Dick Corporation and Dan Martin.

July 9, 2008

-2- TORRUELLA, Circuit Judge. René Vázquez-Botet ("Vázquez")

and Marcos Morell-Corrada ("Morell") were convicted of conspiracy,

extortion, and mail and wire fraud for their roles in demanding

money from construction contractors in exchange for using their

influence in the Puerto Rico government to secure them a major

project. On appeal, the defendants claim that the district court

committed a myriad of errors invalidating their convictions;

alternatively, they claim errors requiring remand for resentencing.

After careful consideration of each of these arguments in light of

the record, we affirm both defendants' convictions and sentences.

I. Background

Because Morell challenges the sufficiency of the evidence

supporting his conviction, we relate the facts "as the jury could

have found them, drawing all inferences in the light most

consistent with the jury's verdict." United States v. Colón-Díaz,

521 F.3d 29, 32 (1st Cir. 2008) (citation and internal quotation

marks omitted). We consider only those facts relevant to the

issues on appeal. In August 1994, the Puerto Rico Aqueduct and

Sewer Authority ("PRASA") solicited bids from construction

contractors to build a large water pipe -- dubbed the

"Superaqueduct" -- along Puerto Rico's north coast. The magnitude

of the project required the bidding contractors to form consortia

with local subcontractors for the provision of equipment,

expertise, financial resources, and labor. One of the aspirants

-3- was a consortium led by contractor Thames-Dick, a joint venture

between a British firm and the Dick Corporation of Pennsylvania.

Within the Thames-Dick consortium were a number of Puerto Rico

subcontractors: (1) Las Piedras Construction, owned by Pedro

"Cuco" Feliciano; (2) Constructora Hato Rey, owned by Waldemar

Camrona; (3) Longo de Puerto Rico, owned by Greg Laracy; (4)

Carrero Engineering, owned by Alberto "Tico" Carrero; and

(5) Cobián, Agustín & Ramos, controlled by José Cobián-Guzmán

("Cobián"). Thames-Dick won the $305 million contract in January

1996; it began construction in September 1996 and finished in 2000.

Cobián, a key government witness, testified at trial that

he knew from experience that, in order for his consortium to be

awarded the contract, he would need to bribe someone influential in

the government, which at the time was controlled by the New

Progressive Party ("NPP"). Thus, in June 1995, Cobián approached

Vázquez, an ophthalmologist and the manager of Governor Pedro

Rosselló's reelection campaign. Several witnesses testified that

Vázquez was believed to hold an almost unparalleled degree of sway

within the Rosselló government. Vázquez told Cobián that he would

do what he could in exchange for two percent of the total value of

the contracts awarded to the Thames-Dick subcontractors. Cobián

explained that the subcontractors' share of the total would be more

than $200 million; two percent was estimated to be about $2.4

million. Vázquez indicated that Morell, an attorney and NPP

-4- Secretary-General, and José Granados-Navedo ("Granados"), the NPP

chair of the House of Representatives infrastructure committee,

would be assisting him and would need a share of the $2 million.

Cobián proposed that it be split four ways, with him receiving a

quarter; Vázquez acquiesced. Vázquez said he would deal only with

Cobián and must be paid in cash, and that Cobián should approach

Morell and Granados directly to arrange their payments. Vázquez

did not explain to Cobián what actions he or others would take to

make sure Thames-Dick got the contract.

Cobián then went to subcontractors Feliciano, Carmona,

Laracy, and Carrero and told them that together they would have to

pay two percent of their part of the contract award to purchase the

assistance of influential people in the government. Although the

subcontractors had not delegated authority to Cobián to make such

a deal on their behalf, they grudgingly agreed to pay.

The subcontractors paid Cobián incrementally as they

received payments from Thames-Dick. They understood that Cobián

would then pass the payments on to the politicians in question.

Cobián delivered monthly cash payments to Vázquez in his office,

and made other payments to third parties for NPP campaign expenses

owed them by Vázquez. On one occasion Feliciano, who had figured

out that Vázquez was one of the recipients of the extortionate

payments, made a $5,760 payment to him in person at his medical

office.

-5- On Vázquez's instructions, Cobián went to Morell's law

office to arrange how his payments would be made. Morell drew up

a sham contract under which Cobián was to pay Morell's law firm

$5,000 per month for legal services; Cobián made these monthly

payments from 1997 to 1999. In addition, Morell and Cobián

arranged for Cobián to make several payments to third parties

(including Sears, a rental car company, an architectural firm, and

a basketball team) on Morell's behalf. Morell never actually

performed any legal services for Cobián or his company. Cobián

similarly made payments to third parties on Granados's behalf, and

also made some cash payments to Granados.

In all, the subcontractors gave Cobián cash and checks

totaling over $1 million; of this, Vázquez received the equivalent

of over $360,000, and Morell received over $125,000. Vázquez

failed to report to the Puerto Rico Treasury Department the money

he received from Cobián from 1997 to 1999, and concealed thousands

more dollars of cash payments made to him by his ophthalmology

patients and businesses involved in healthcare services. Morell

reported on his tax returns payments to his law firm by Cobián in

1997 and 1998 under the sham contract. Morell failed to report the

approximately $25,000 paid in 1999 and the many third-party

payments made by Cobián, which totaled some $23,000; he also failed

to report payments from other clients in 1998 totaling about

$22,000.

-6- In July 1999, when Cobián learned that he had been

indicted for unrelated conduct, he panicked and stopped making

payments to Vázquez, Morell, and Granados. After pleading guilty

to the indictment, Cobián decided to cooperate with the Government

in exchange for immunity with respect to further crimes for which

he might implicate himself in rendering such cooperation, and the

Government's recommendation of a sentencing reduction. Cobián then

told investigators of the details of the Superaqueduct extortion

scheme. On the basis of this and other information, the Government

sought indictments against Vázquez, Morell, and Granados.

On April 8, 2004, a grand jury returned a public

indictment charging Vázquez and Morell with the following: (1) one

count of conspiracy to commit extortion and launder money in

furtherance of a bribery scheme, in violation of 18 U.S.C. § 371;

(2) several counts of extortion under color of official right and

by economic fear, in violation of the Hobbs Act, 18 U.S.C. § 1951,

and aiding and abetting this offense under 18 U.S.C. § 2; and (3)

several counts of mail and wire fraud committed as part of a scheme

to defraud Puerto Rico of income tax payments, in violation of 18

U.S.C. §§ 2, 1341, and 1343.1 The Government's central theory was

that the defendants and Granados conspired to induce the

subcontractors to pay them a portion of their Superaqueduct profits

1 Morell was also charged with obstruction of justice under 18 U.S.C. § 1503 but was acquitted on this count, and this charge is not at issue in this appeal.

-7- by making them fear that if they did not pay (and keep making

periodic payments), the defendants and Granados would use their

influence in the government: (1) to promote the subcontractors'

competitors for the bid; (2) to remove the subcontractors from the

contract after it was already awarded; or (3) would malign their

professional reputations so that their respective businesses would

not receive government contracts in the future.

After we ordered the recusal of the original trial judge

from this case, see In re United States, 441 F.3d 44, 49 (1st Cir.

2006), the case was randomly reassigned to Chief Judge Fusté.

Vázquez moved to recuse Chief Judge Fusté on a number of grounds,

and Chief Judge Fusté denied the motion, United States v. Vázquez-

Botet, 453 F. Supp. 2d 362, 374 (D.P.R. 2006). We denied mandamus

relief, noting that Vázquez could challenge the non-recusal on end-

of-case appeal if he were found guilty. In re Vázquez-Botet, 464

F.3d 54, 57 (1st Cir. 2006) (per curiam) ("Vázquez-Botet I") (facts

presented by Vázquez did not present the "'clear and indisputable'"

right to immediate mandamus relief necessary for such an

extraordinary remedy (quoting In re Cargill, Inc., 66 F.3d 1256,

1262 (1st Cir. 1995))). Vázquez now avails himself of the

opportunity to appeal the non-recusal.

Before trial, the then-lead prosecutor of the U.S.

Attorney's Office in Puerto Rico granted several of the

subcontractors immunity from prosecution in exchange for their

-8- testimony. Cobián also testified with immunity under the prior

agreement, and Granados pled guilty to crimes committed in carrying

out his role in the extortion scheme and also testified for the

Government. During the pretrial phase, responsibility for the

prosecution of the case was transferred from the U.S. Attorney's

Office in Puerto Rico to the Public Integrity Section of the

Department of Justice in Washington, D.C.

On September 25, 2006 -- the day before trial was set to

begin and more than two years after he was indicted -- Vázquez

subpoenaed two witnesses, hereinafter "Witness A" and "Witness B,"

to compel their testimony at trial; he also served a subpoena on

Dick Corporation for the production of certain documents.

Witness A was a Dick Corporation official and Witness B was a

consultant hired by Dick Corporation to conduct marketing

activities inside and outside Puerto Rico, including negotiations

for the construction of "intercity connectors" -- pipelines

connecting the Superaqueduct to municipal water systems.2 Vázquez

sought to argue at trial, inter alia, that it was Witness B,

another consultant ("Consultant C"), and powerful persons for whom

they worked who extorted money from the subcontractors in exchange

for the Superaqueduct contract, and not Vázquez. The Government,

Dick Corporation, and Witness B opposed the subpoenas. The

2 The indictment against Vázquez and Morell did not allege any corruption or extortion with respect to the intercity connectors.

-9- district court ruled the proposed evidence irrelevant in light of

the uncontradicted statements of Witnesses A and B to investigators

that any relationship between Witness B and Dick Corporation began

at least two years after the Superaqueduct project had been

awarded. But the court stated that it would allow the defendants

to make an offer of proof nonetheless, in order to create a record

of its relevancy decision for appellate review.

Accordingly, on October 16, 2006, the district court held

a hearing at which Vázquez questioned Witnesses A and B and the

Government cross-examined Witness A.3 The court closed the hearing

to the press and public to preclude what it feared would be a

"sideshow"; the court clarified that "[t]his is not part of the

trial. This is a hearing to determine relevancy." Both witnesses

testified that Witness B and Consultant C did not represent Dick

Corporation in its efforts to obtain the Superaqueduct contract for

the Thames-Dick consortium. They also testified that Dick

Corporation did not even hire Witness B until 1998 or 1999 -- at

least two years after the awarding of the contract when the project

was nearing completion -- and hired Consultant C sometime

thereafter. Witnesses A and B also testified that, to the extent

that the tasks Witness B performed on behalf of Thames-Dick had

anything to do with the Superaqueduct project, they were confined

to negotiations surrounding the intercity connectors.

3 The Government chose not to cross-examine Witness B.

-10- On October 19, 2006, the district court issued a sealed

order confirming its earlier relevancy ruling and quashing both

subpoenas. The court took account of documents submitted by Dick

Corporation and the witnesses' testimony to confirm its pre-hearing

assessment with respect to Witness B: the proposed evidence was

irrelevant to any triable issue or defense, as the contractual

relationship between Witness B and Dick Corporation began more than

two years after the events giving rise to the accusations against

Vázquez; allowing testimony on this relationship would "result in

unnecessary and irrelevant distractions." With respect to

Witness A, the court found that he had no evidence to offer that

would tend to prove or disprove Vázquez's link to any wrongdoing,

save possible knowledge of two discrete events on which the

defendants should be permitted to question Witness A at trial; the

defendants did not ultimately avail themselves of this opportunity

and Witness A never appeared at trial. The district court

maintained the seal on all written and oral arguments in the

litigation surrounding the quashed subpoenas, and ordered that any

public dissemination of the hearing transcript or the exhibits

proffered at the hearing would result in "severe penalties by

contempt or otherwise." The court denied Vázquez's post-trial

motion to unseal this portion of the record. Vázquez and Morell

now argue before us that these decisions effected a violation of

-11- their Sixth Amendment right to a fair trial, compelling us to

vacate their convictions.

Trial began on September 26, 2006. Among others,

Feliciano, Carmona, Cobián, and Granados testified as government

witnesses. Among many other things, Cobián testified on direct that

Vázquez told him Morell would be among those helping Thames-Dick to

secure the Superaqueduct contract. Morell objected to this

testimony as hearsay not covered by the coconspirator exemption in

Federal Rule of Evidence 801(d)(2)(E). The district court

provisionally allowed the testimony and later confirmed the

applicability of Rule 801(d)(2)(E) and kept the testimony on the

record. Morell now claims this ruling constituted reversible error.

The Government also called the co-case agent, Federal

Bureau of Investigation ("FBI") special agent Ivan Vitousek.

Vitousek testified about a number of FBI investigatory practices,

including that of using cooperators in public corruption cases. In

the course of direct and cross-examination, Vitousek made several

statements that the defendants characterized as improper bolstering

of the credibility of other government witnesses. Vázquez and

Morell argue on appeal that Vitousek's vouching made the jury more

likely to believe these witnesses, thus prejudicing the outcome of

the trial to their detriment. During closing arguments, the

prosecutor made a number of statements the defendants now brand as

-12- prosecutorial misconduct mandating retrial. We discuss all these

challenges in greater detail below.

On November 3, 2006, the jury convicted Vázquez and Morell

on the conspiracy count, on several of the extortion counts, and on

several of the mail and wire fraud counts. On January 30, 2007, the

district court sentenced Vázquez and Morell each to five years'

imprisonment, and a $100,000 fine. The court determined their

respective guideline Sentencing ranges ("GSRs") by looking at the

total amount of profit earned by the subcontractors -- some $10

million. On appeal, both defendants challenge the propriety of this

methodology.

II. Discussion

A. Chief Judge Fusté's Non-Recusal

Before trial, Vázquez moved for Chief Judge Fusté to

recuse himself, claiming recusal was required for a number of

reasons. Chief Judge Fusté denied the motion, Vázquez-Botet, 453

F. Supp. 2d at 374, and Vázquez petitioned us for mandamus relief,

which we denied, Vázquez-Botet I, 464 F.3d at 57. On appeal,

Vázquez renews his claim that Chief Judge Fusté should have been

recused, but narrows the focus to two arguments. We address these

in turn. We will sustain Chief Judge Fusté's decision not to recuse

himself unless we find that it "cannot be defended as a rational

conclusion supported by [a] reasonable reading of the record."

-13- United States v. Snyder, 235 F.3d 42, 46 (1st Cir. 2000) (quoting

In re United States, 158 F.3d 26, 30 (1st Cir. 1998)).

Vázquez first questions Chief Judge Fusté's partiality

because of the professional activities of the judge's wife, an

attorney named Rachel Brill, in matters tangentially related to this

case. Specifically, Brill represented subcontractor Laracy during

several meetings between Laracy and the Government, negotiated the

agreement that provided Laracy with immunity in exchange for his

grand jury and trial testimony in this case, and represented him

when he testified before the grand jury that indicted Vázquez.

Brill also represented José Ventura, another local contractor not

involved in the events at issue here. During this representation,

Brill filed a public motion in the district court (presided over by

a different judge) in which she requested sanctions against

Vázquez's lawyer for attempting to intimidate Ventura. After

Vázquez had been indicted, Brill sent a letter to Vázquez's lawyers

accusing Vázquez of trying to extort money out of Ventura by falsely

accusing Ventura of slander; Brill copied this letter to the

prosecutors in this case so they could investigate whether Vázquez

had thereby violated his bail conditions.

Vázquez argues that Chief Judge Fusté's decision not to

recuse himself in light of his wife's activities constitutes

reversible error under 28 U.S.C. § 455(b)(5)(ii) (judge shall

disqualify himself if spouse "[i]s acting as a lawyer in the

-14- proceeding"); see also id. § 455(d)(1) ("'[P]roceeding' includes

pretrial, trial, appellate review, or other stages of litigation.").

We disagree. As we noted in Vázquez-Botet I, "while an attorney

need not be 'enrolled as counsel' of record in order to fall within

[§ 455(b)(5)(ii)], the attorney must at least 'actually participate

in the case.'" 464 F.3d at 58 (quoting McCuin v. Tex. Power & Light

Co., 714 F.2d 1255, 1260 (5th Cir. 1983)) (citations and alteration

omitted); accord United States ex rel. Weinberger v. Equifax, Inc.,

557 F.2d 456, 463-64 (5th Cir. 1977) (recusal required where judge's

family member actively participates). Chief Judge Fusté has issued

a standing order that Brill not appear as an attorney in any

proceeding before him. In line with this directive, Brill did not

appear before him in this case, as counsel for Ventura, Laracy, or

anyone else.

Specifically with respect to Brill's representation of

Ventura, it is clear that neither of the incidents impugned by

Vázquez counts as "actually participat[ing] in th[is] case."

Vázquez-Botet I, 464 F.3d at 58. Brill's motion requesting

sanctions against Vázquez's lawyer on Ventura's behalf occurred

before Vázquez was even indicted. We reaffirm our observation in

Vázquez-Botet I that this action thus fell outside the scope of

"pretrial, trial, appellate review, or other stages of litigation."

464 F.3d at 58 (quoting 28 U.S.C. § 455(d)(1)). In Vázquez-Botet I,

we likewise rejected Vázquez's other contention relating to Ventura:

-15- that Brill's post-indictment letter to Vázquez's lawyers, copied to

the prosecutor in this case, somehow converted her into a lawyer

acting in this proceeding. Id. at 59. Brill sent this letter in

response to a communication from Vázquez directly to Ventura seeking

$10 million for allegedly slandering him during testimony in other

judicial and legislative proceedings. In her letter, Brill cited

a statutory privilege for Ventura's testimony and characterized

Vázquez's demand as "laughable." However, while she remarked that

Vázquez's demand may also have been extortionate, she did not accuse

him of extortion outright. And the prosecutor did not act on the

letter by, for example, requesting sanctions against Vázquez for

violating his bail conditions, adding charges against him in this

case, or issuing a separate indictment for attempting to extort

money out of Ventura. Moreover, Brill made no submissions before

the district court in this case requesting action against Vázquez;

no party sought introduction of Brill's letter into evidence or made

any reference to it; and Ventura was not called to testify. These

considerations lead us readily to conclude, as we did in Vázquez-

Botet I, that any connection between Brill's letter and the events

in this case was simply too tangential to qualify her as a lawyer

acting in the proceeding.

-16- As for Laracy, while he did testify at trial, he was not

represented by Brill at the time.4 Brill's representation in the

negotiations for Laracy's immunity agreement occurred more than ten

months prior to Vázquez's indictment, and Brill was not mentioned

at any point during the trial. Thus, as we held in Vázquez-Botet I,

Brill's representation did not constitute acting in this proceeding.

464 F.3d at 58. We also expressed doubts in Vázquez-Botet I that

her representation of Laracy during his grand jury testimony could

be considered part of this proceeding because the grand jury is

functionally and constitutionally separate from the district court.

Id. at 58 n.6 (citing In re United States, 441 F.3d at 57). Today

we confirm our formerly expressed views and hold that, for purposes

of the recusal statute, the grand jury hearing was separate from

pretrial and trial proceedings in the district court.

Vázquez bases his second challenge to Chief Judge Fusté's

impartiality on the more general language of 28 U.S.C. § 455(a),

which requires recusal where the judge's "impartiality might

reasonably be questioned." Vázquez argues that a reasonable and

informed member of the public could fairly conclude that Chief Judge

Fusté was biased against him because Brill openly took sides in this

litigation by asking another judge to sanction Vázquez's lawyer;

moreover, as a conjugal partnership under Puerto Rico law, Chief

4 It is unclear from the record whether Laracy was accompanied by any lawyer when he gave this testimony.

-17- Judge Fusté and Brill necessarily shared in the legal fees paid the

latter by Laracy, and the public surely believes the two talk about

their work in private. These arguments are unavailing.

Section 455(a) requires us to examine whether a reasonable

observer, knowing all the relevant facts, would have doubts about

Chief Judge Fusté's impartiality in this proceeding. Liljeberg v.

Health Serv. Acquisition Corp., 486 U.S. 847, 860-61 (1988).

Vázquez's speculative arguments assume that Brill played a much more

significant role than she actually did. Critically, Brill's

involvement in this case and in other matters tangentially

implicating Vázquez occurred more than two years before Chief Judge

Fusté was randomly assigned to replace the original district judge.

To that end, Vázquez provides no explanation as to how Brill's fees

could possibly have biased Chief Judge Fusté against Vázquez or

adversely affected any of his rulings. Furthermore, no reasonable

observer would interpret Brill's advocacy on behalf of Ventura as

evincing some sort of personal animosity toward Vázquez that somehow

endured through pretrial and trial proceedings and prompted her to

disparage him in front of her husband.

For these reasons, we cannot say that Chief Judge Fusté's

decision not to recuse himself was irrational or lacked support on

a reasonable reading of the record. Snyder, 235 F.3d at 46. As

such, we dismiss this ground of appeal and proceed to the next one.

-18- B. The Closed Relevancy Hearing

Vázquez and Morell argue that the October 16, 2006 closed

hearing violated their Sixth Amendment rights to a public trial and

to present evidence in their own defense. See Waller v. Georgia,

467 U.S. 39, 47 (1984); In re Oliver, 333 U.S. 257, 273 (1948). The

defendants argue that these errors were structural and we must,

therefore, vacate their convictions. See Owens v. United States,

483 F.3d 48, 64 (1st Cir. 2007). We allowed two Puerto Rico

newspapers and two radio stations to appear jointly as amici

curiae.5 In their brief and in oral arguments before us, the amici

joined the defendants in objecting to the October 16 hearing, but

on a new ground: that the hearing's closure and the sealing of

related documentation violated the press and public's First

Amendment right of access to criminal proceedings. See Globe

Newspaper Co. v. Superior Court for the County of Norfolk, 457 U.S.

596, 603 (1982). The Government counters that, as explicitly noted

by the district court, this particular hearing was merely an offer

of proof to preserve the court's relevancy determination, and that

neither the defendants' Sixth Amendment rights nor the press and

public's First Amendment rights were implicated.6 Under the

5 The amici point out that this case has received high media attention in Puerto Rico due to the defendants' notoriety and letters to newspapers written by Vázquez professing that what was discussed at the October 16 hearing exonerates him. 6 The Government also asserts that the press may not raise a First Amendment argument not raised by one of the parties.

-19- circumstances, the Government is correct on the first point; we need

not reach the merits of the second.

Vázquez proffered the testimony of Witness A and Witness B

and the subpoenaed Dick Corporation documents in an attempt to show

that Witness B, Consultant C, and powerful persons for whom they

worked were the ones who extorted money out of the subcontractors

in exchange for the Superaqueduct contract, and that the defendants

were framed in order to throw suspicion off of these and other

implicated individuals. After considering the testimony of Witness

A and Witness B from the October 16 hearing, the district court

confirmed its earlier ruling that the evidence was mostly irrelevant

to any matter at issue in the trial of Vázquez and Morell. The

court focused primarily on the timeline of the contractual

relationship between Witness B and Dick Corporation. Witness A and

Witness B indicated that Witness B began working informally on

behalf of Dick Corporation sometime in 1998, as a consultant and

marketing agent for the company in several construction projects in

Puerto Rico and elsewhere. This relationship was formalized in a

written contract in the fall of 1999, and Consultant C was hired at

around the same time. The witnesses also testified that Witness B

and Consultant C had nothing to do with the 1995-96 discussions

surrounding the Superaqueduct bid. The district court also examined

documents submitted by Dick Corporation, which confirmed that the

contractual relationship between Witness B and Dick Corporation

-20- began well after the bid was awarded, and opined that Vázquez's

subpoena to Dick Corporation "was a broad, sweeping fishing

expedition." The court concluded that Vázquez's theory that Witness

B was involved in the Superaqueduct extortion scheme was unfounded

speculation and that any evidence Witness B could provide at trial

would be irrelevant, and accordingly quashed Vázquez's subpoenas to

Witness B and Dick Corporation.7 The court ordered that the

transcript of the October 16 hearing and the proffered exhibits

remain sealed, and warned that their divulgence would be punished

by contempt.

We first address the defendants' contention that the

district court's relevancy ruling deprived them of an opportunity

to present exonerating evidence to the jury, and thus violated their

Sixth Amendment right to defend themselves. We afford the district

court considerable discretion in making relevancy determinations and

in excluding evidence for lack of relevance, and our review of such

determinations is for abuse of discretion. Richards v. Relentless,

Inc., 341 F.3d 35, 49 (1st Cir. 2003).

7 The court found Witness A's proposed testimony minimally relevant with respect to "two very discrete areas," and left the subpoena intact insofar as the defendants wished to ask him questions only in relation to these areas. These areas had no bearing on whether someone other than Vázquez, Morell, and Granados was extorting money from the subcontractors. The defendants' decision not to call Witness A at trial waives any objection regarding that potential testimony.

-21- After examining the October 16 hearing transcript, the

documents provided by Dick Corporation, and the submissions of the

parties, we agree with the district court that the proposed evidence

was irrelevant to any issue in the prosecution of Vázquez and

Morell; we also agree that to place such evidence in front of the

jury would have resulted in a confusing and distracting sideshow.

Nothing in the transcript, the Dick Corporation documents submitted

at the hearing, or the sealed written submissions contains any

suggestion that Witness B or Consultant C was connected in any way

to the Superaqueduct project until at least 1998, and then only

tangentially with respect to the intercity connectors, which

involved a completely separate contract. Moreover, nothing in the

record reveals that either individual was involved in any scheme to

extort money from the subcontractors. The conduct the jury found

to be extortionate began in June 1995, when Vázquez told Cobián that

he, Morell, and Granados would use their influence to help Thames-

Dick win the contract in exchange for money. While the effects of

this conduct -- including the subcontractors' monthly payments to

the defendants and Granados -- continued for several years and

partially overlapped in time with Witness B's and Consultant C's

employment at Dick Corporation, the main criminal act was

accomplished long before these two persons appeared on the scene.

Indeed, Witness B testified that he had no contact at all with the

individual subcontractors with the exception of Carrero, with whom

-22- he had a social relationship and worked on matters unrelated to the

Superaqueduct. Witness B's testimony also indicates that his

contacts with persons in the Rosselló government were minimal and

his influence over them virtually nil.

The district court did not, therefore, abuse its

discretion in deeming the proposed evidence irrelevant and excluding

it from the trial. See Achille Bayart & Cie v. Crowe, 238 F.3d 44,

49 (1st Cir. 2001); cf. United States v. Nivica, 887 F.2d 1110, 1118

(1st Cir. 1989) (affirming district court's denial of subpoenas for

three proposed defense witnesses where the anticipated testimony

would have been irrelevant, in part because the witnesses'

involvement with the defendant occurred subsequent to his criminal

conduct). This conclusion disposes of the defendants' claim that

the district court violated their Sixth Amendment right to present

a defense, as no such right exists where the evidence proffered has

been properly ruled irrelevant. See United States v. Maxwell, 254

F.3d 21, 26 (1st Cir. 2001) (defendant's "wide-ranging right to

present a defense" still "does not give him a right to present

irrelevant evidence") (citing In re Oliver, 333 U.S. at 273-74

& n.31); United States v. Reeder, 170 F.3d 93, 108 (1st Cir. 1999)

(no "'unfettered'" Sixth Amendment right "'to offer [evidence] that

is incompetent, privileged, or otherwise inadmissible under standard

rules of evidence'" (quoting Montana v. Egelhoff, 518 U.S. 37, 42

(1996))).

-23- We therefore turn to the defendants' remaining argument

concerning the October 16 hearing: that the closure of the hearing

and sealing of related documentation violated their Sixth Amendment

right to a public trial. Our review of this (preserved) claim is

plenary. See United States v. DeLuca, 137 F.3d 24, 33 (1st Cir.

1998). Despite the defendants' sweeping assertions regarding the

scope of the public-trial right, the question before us is quite

narrow. We think it clear that, as characterized by the district

court, the October 16 hearing was not a trial session, but rather

a "question-and-answer" offer of proof,8 the purpose of which was to

create a record so that we could determine the propriety of the

court's relevancy ruling.9 See Wright & Graham, Federal Practice

and Procedure § 5040.3, at 908 (2d ed. 2005) (in question-and-answer

offer of proof, proponent elicits proposed testimony by questioning

witness outside jury's presence); accord United States v. Adams, 271

8 Although the actual hearing took place on October 16, 2006 -- nearly three weeks after opening statements -- the subpoenas that resulted in the hearing were issued before trial began, and the district court expressly stated at the start of the hearing that it was not part of the trial. 9 Although the district court did not use the term "offer of proof," it is evident from the context that this is what the court intended. Black's Legal Dictionary defines offer of proof as "[a] presentation of evidence for the record (but outside the jury's presence) . . . so that the evidence can be preserved on the record for an appeal of the judge's ruling. . . . Such an offer may include tangible evidence or testimony (through questions and answers, a lawyer's narrative description, or an affidavit)." Black's Law Dictionary 1114 (8th ed. 2004).

-24- F.3d 1236, 1241 (10th Cir. 2001) (discussing the several types of

offer of proof, and expressing a preference for the question-and-

answer type).

The defendants point to no precedent in the Supreme Court,

this circuit, or elsewhere extending the Sixth Amendment public-

trial right to an outside-of-trial, question-and-answer offer of

proof -- or indeed, any type of offer of proof. Furthermore, the

October 16 hearing differed in at least two fundamental respects

from the categories of non-trial hearings to which the Sixth

Amendment public-trial right has been held to apply in the past,

such as hearings on motions to suppress, see, e.g., Waller, 467 U.S.

at 47, and jury-selection proceedings, see, e.g., Owens, 483 F.3d

at 62. First, the evidence elicited at the hearing had already

(correctly) been ruled irrelevant. Cf. Brown v. Kuhlmann, 142 F.3d

529, 541 (2d Cir. 1998) (courtroom closure during trial did not

infringe Sixth Amendment rights where it involved cumulative

testimony related to matter collateral to charged offense). Second,

the district court was under no obligation to hold the hearing in

the first place, but chose to do so for our and the defendants'

benefit when confronted with Vázquez's eleventh-hour request.

These differences render the Sixth Amendment precedent

invoked by the defendants inapposite in the circumstances. While

we leave open the possibility that the public-trial right may apply

to some offer-of-proof hearings, we decline to recognize such a

-25- right on facts as uncompelling as these.10 We accordingly reject

this ground of appeal.11

The amici argue that the closure of the October 16 hearing

violated the press and public's First Amendment right of access to

criminal proceedings. As a remedy, the amici ask us to lift the

district court's seal on the hearing transcript along with the gag

order on those who know its contents, so that the press may examine

and report on what transpired there.

Crucially, however, the defendants did not raise this

argument. As we have often acknowledged, we ordinarily will not

consider novel arguments advanced by an amicus on appeal, but not

also raised by a party or another entity which has formally

intervened. See United States v. Sturm, Ruger & Co, Inc., 84 F.3d

1, 6 (1st Cir. 1996); Rhode Island v. Narragansett Indian Tribe, 19

F.3d 685, 705 n.22 (1st Cir. 1994) (declining to address

constitutional claims advanced by amici but not raised by parties);

accord Knetsch v. United States, 364 U.S. 361, 370 (1960). The

10 Vázquez would have us adopt a sweeping rule akin to that articulated by the Fifth Circuit in Rovinsky v. McKaskle, 722 F.2d 197, 200 (5th Cir. 1984), which seems to hold the Sixth Amendment right applicable to all but a very small fraction of pretrial and trial proceedings. The facts of this case do not provide us reason to endorse such an expansive reading of the law. 11 We also note that it was entirely proper -- and indeed required -- for the district court to hold the hearing outside the presence of the jury, and thereafter to take measures to keep the irrelevant, and thus inadmissible, evidence from reaching the jury's eyes and ears. See Fed. R. Evid. 103(c); United States v. Galin, 222 F.3d 1123, 1126-27 (9th Cir. 2000).

-26- facts present us with no reason to depart from the general rule.

Cf., e.g., United States v. Spock, 416 F.2d 165, 169 (1st Cir. 1969)

(opting to consider amicus's arguments as to unconstitutionally

broad applicability of statute criminalizing aiding and abetting

Vietnam War draft dodging). The amici are, of course, free to

return to the district court in an attempt to argue that changed

circumstances have rendered the seal on the hearing transcript and

related documentation no longer necessary, but that is an issue for

the district court -- not us -- to decide.

Having disposed of the challenges to the closed relevancy

hearing, we turn to the defendants' next assignment of error.

C. The Alleged Witness Vouching

Vázquez and Morell next argue that certain statements made

by Agent Vitousek during his testimony improperly vouched for the

credibility of other government witnesses, made these witnesses more

credible in the minds of the jurors, and thus unfairly prejudiced

the outcome of the trial. We describe the specific instances of

alleged vouching below, but begin with the applicable legal

framework.

A prosecutor may not vouch for one of her witnesses by

making personal assurances about him; she likewise may not

accomplish this goal by putting on another government witness, such

as an FBI agent, to make such assurances. This practice is

prohibited because of its potential to shore up a witness's

-27- credibility by putting the prestige of the United States behind him

and thereby inviting the jury to find guilt on some basis other than

the evidence presented at trial. United States v. Rosario-Díaz, 202

F.3d 54, 65 (1st Cir. 2000); accord United States v. Pérez-Ruíz, 353

F.3d 1, 13 (1st Cir. 2003) ("Although the prosecution's success

often depends on its ability to convince the jury of a particular

witness's credibility, it cannot entice the jury to find guilt on

the basis of a [government] agent's opinion of the witness's

veracity.").

The district court's decision to admit testimony over a

preserved vouching objection is reviewed for abuse of discretion.

United States v. Tom, 330 F.3d 83, 94 (1st Cir. 2003). In

performing our inquiry, we consider various criteria, including the

overall strength of the Government's case against the defendant, the

prosecutor's willfulness in eliciting the statement from the witness

who did the vouching, the strength and clarity of any curative

instructions, and the likelihood that any prejudice that may have

survived the instructions affected the outcome of the case. See

United States v. Page, 521 F.3d 101, 108 (1st Cir. 2008); United

States v. Cormier, 468 F.3d 63, 73 (1st Cir. 2006). In all events,

we will not vacate a defendant's conviction on vouching grounds

unless the error likely affected the outcome of the trial. Tom, 330

F.3d at 95; Rosario-Díaz, 202 F.3d at 65.

-28- During the first twelve days of trial, the Government

called several of the witnesses directly involved in the extortion

scheme. Included among them were Cobián and several of the

subcontractor-witnesses, all of whom received immunity in exchange

for their cooperation or testimony, and the coconspirator Granados,

who pled guilty to his role in the extortion and also cooperated

with investigators. On the thirteenth day, the Government called

Agent Vitousek, an experienced FBI fraud investigator.

The defendants identify four episodes in which Vitousek

allegedly vouched for other government witnesses; we address these

in turn. First, the Government sought to elicit from Agent Vitousek

that the FBI had followed normal procedures in investigating this

case. When the prosecutor asked Agent Vitousek why the FBI uses

cooperating insiders as sources in fraud investigations, Vázquez

interposed a vouching objection which the court overruled. Vitousek

then described the procedure employed with cooperating insiders,

stating such things as, "I will tell . . . these cooperating

witnesses to tell the truth about the information they are going to

provide us," and "a cooperating defendant . . . can explain exactly

what happened." We fail to see how the jury could possibly have

understood these generic descriptions of procedure -- with no

reference to any specific individual or case -- to be Vitousek's

assurances that Cobián and Granados were truthful in their dealings

with the FBI or otherwise. As the defendants provide nothing more,

-29- we will go no further than this. See United States v. Parsons, 141

F.3d 386, 390 (1st Cir. 1988).

The second claimed instance of vouching occurred during

cross-examination by Vázquez. Vázquez asked Vitousek about an

incident in which Cobián told investigators that a certain public

official had accepted a bribe from him; the substance of the

interview was memorialized in a nonpublic FBI report. Later, Cobián

admitted to the investigators that the official had not actually

accepted a bribe. Vázquez questioned Vitousek at length over why

he failed to correct the FBI records on this point. While conceding

that mistakes had been made, Vitousek asserted that there was little

likelihood of negative repercussions for the official because the

government requires much more than a single interview before it will

indict someone. "Trust me," Vitousek added, "[w]e need much more

evidence." Vázquez argues that this testimony gave assurances to

the jury that Vitousek would never seek the indictment of an

innocent person, and that the FBI corroborated Cobián's information

on Vázquez's role in the Superaqueduct extortion with "much more

evidence." Since Vázquez did not timely object to this testimony

or move to strike it at trial, we review the challenge for plain

error. United States v. Brown, 510 F.3d 57, 72 (1st Cir. 2007).

Here again, we fail to see how the jury could possibly have

understood the testimony as bolstering the credibility of any of the

-30- Government's witnesses, and Vázquez does not explain further. As

such, we cannot find error, much less plain error.

The defendants' third vouching challenge gets them no

further. During an exchange in cross-examination, Vázquez asked

Agent Vitousek several times why the Government relied on Cobián

despite its policy against dealing with cooperators who lie.

Ultimately, the following exchange occurred between Vázquez and

Vitousek:

Q. . . . Based on the records of other people, Cuco and Laracy and all the other people who the jury have heard from, you could prosecute Cobián?

A. Yes.

Q. And the Government has given him a benefit and chosen not to prosecute him.

A. He is cooperating.

. . .

Q. He will not be prosecuted for the [Superaqueduct]?

A. If he tells the truth. And . . . up to now, the assessment has been that he has been truthful.

Vázquez objected to this last response as vouching. The district

court overruled the objection, finding that Vázquez had "opened the

door" to Vitousek's response. This ruling was entirely appropriate,

and certainly not an abuse of discretion: Vázquez cannot complain

about vouching in response to his own questions, United States v.

García-Morales, 382 F.3d 12, 18 n.1 (1st Cir. 2004), especially when

-31- he very purposely invited the answer he got by repeatedly

questioning Vitousek about why he continued to deal with Cobián

despite the latter's dishonesty, see United States v. Cutler, 948

F.2d 691, 697 (10th Cir. 1991) ("It is fundamental that a defendant

cannot complain of error which he invited upon himself.") (quoting

United States v. Taylor, 828 F.2d 630, 633 (10th Cir. 1987))

(internal quotation marks omitted).12

The fourth and final claimed instance of vouching is

somewhat more problematic, but here too we must conclude that no

abuse of discretion occurred. On redirect examination, the

Government attempted to clarify an inconsistency raised during

Morell's cross:

Q. . . . [D]o you recall, at the end of [Morell]'s cross-examination yesterday, he ask[ed] you about the difference between the amount of cash that José Cobián said he gave to Granados and the amount of cash which Mr. Granados admits he received?

A. Yes

Q. Do you recall that [Morell] asked you, "Would it be fair to say one or both of those cooperators is lying about that? Yes or no?"

12 The fact that, now on appeal, Morell belatedly signs on to Vázquez's challenge to this instance of alleged vouching does not compel a different conclusion with respect to Morell. In any event, Morell failed to object at trial, and is thus relegated to plain error review, see Brown, 510 F.3d at 72; United States v. Palow, 777 F.2d 52, 54 (1st Cir. 1985), a standard he cannot satisfy on these facts.

-32- A. Yes.

Q. And do you recall that you answered, "If you say that, yes." Please tell the members of the jury what you mean by that answer.

A. . . . I want to explain that at no time I was agreeing with that statement. That is [Morell]'s statement, not mine. And I would like to explain exactly what my words are . . . .

Now, I want to say my words, and these are the words of Ivan Vitousek. At no time no witness brought here by the Government has lied under oath in this courtroom. . . .

At this, Vázquez objected on vouching grounds. The court indicated

it would instruct the jury later, and allowed Vitousek to continue:

A. . . . There is a discrepancy on the amounts of cash that were paid illegally by Mr. Cobián to Mr. Granados Navedo, and there is a discrepancy on the amount that Mr. Granados Navedo says that he received in cash from illegal payments from Mr. Cobián. That doesn't mean that they are lying. . . .

At sidebar after redirect, Vázquez moved to strike this

testimony.13 The court denied the motion because Morell had opened

the door on cross by essentially asking Vitousek which of the two

men -- Cobián or Granados -- was lying. The court opted instead to

instruct the jury as follows:

The . . . duty to determine whether somebody has been truthful or not is yours. You are the

13 Vázquez also moved for mistrial, which the court denied. Vázquez then moved for severance from Morell, which the court also denied. He appeals neither of these rulings.

-33- judges of the believability of the witnesses. You will decide how much of a witness' testimony you are going to accept or you are going to reject.

You should not take the testimony of Mr. Vitousek just now as him telling you that you should believe any witness. What he basically told you was that he, rightly or wrongly, believed what they told him, which is a different story.

You are the sole judges of the credibility of the witnesses. You will decide . . . whether you believe Cobián [and] whether you believe Granados . . . , and how much of their testimony you are going to accept and how much you are going to reject.

The court's end-of-trial jury instructions contained similar

language. Neither defendant objected to either set of instructions.

On appeal, Vázquez and Morell argue that Agent Vitousek's

statements improperly vouched both for the government's witnesses

in general, and for Cobián and Granados in particular. In the

circumstances, we need not decide whether either statement

constituted vouching because any error the district court may have

committed in allowing this testimony to stand was harmless. The

district court -- obviously mindful of the harm the impugned

statements might cause to the defendants -- gave a curative

instruction that the jurors not trust in Agent Vitousek's views on

any witness's veracity, but instead judge veracity for themselves

on the weight of the evidence. These instructions were timely (at

most a few minutes after Vitousek uttered the statements),

straightforward, explicit, and detailed. See Cormier, 468 F.3d at

-34- 74 (no prejudice where instructions were "'strong and clear'"

(quoting United States v. Rodríguez-Estrada, 877 F.2d 153 (1st Cir.

1989)); accord Olszewski v. Spencer, 466 F.3d 47, 60 (1st Cir.

2006); United States v. Palmer, 203 F.3d 55, 59 (1st Cir. 2000).

Moreover, as we have noted many times, we presume juries understand

and follow the court's instructions, see, e.g., United States v.

Kornegay, 410 F.3d 89, 97 (1st Cir. 2005), and Vázquez and Morell

have given us no reason to believe that this jury acted any

differently.14

Considering this factor together with the general strength

of the Government's case against each defendant, we conclude that

no prejudice survived the district court's curative instructions,

and therefore any vouching that may have occurred could not have

affected the outcome of the trial. See Page, 521 F.3d at 108;

Cormier, 468 F.3d at 73. For this reason, the district court did

not abuse its discretion in allowing this testimony to remain on the

record and in continuing with the trial. Tom, 330 F.3d at 94.

Having disposed of all the vouching challenges, we proceed

to the next assignment of error.

14 We also note that the prosecutor did not willfully seek such a bold endorsement by Vitousek of the other witnesses' truthfulness. Instead, these statements appear to have been a spontaneous effort by Vitousek, who had obviously become frustrated with Morell's aggressive cross-examination, to set the record straight.

-35- D. The Prosecutor's Closing Argument

The defendants argue that certain of the prosecutor's

remarks in closing improperly disparaged defense counsel and

suggested that the defense bore the burden of proof. We again start

with the applicable legal framework, and then address the specific

instances of alleged misconduct.

If we find that remarks made by the prosecutor at trial

rise to the level of prosecutorial misconduct, we analyze them for

prejudice under the test in United States v. Manning, 23 F.3d 570

(1st Cir. 1994). See United States v. Mooney, 315 F.3d 54, 59-60

(1st Cir. 2002). We ask whether the prosecutor's behavior "so

poisoned the well" that the defendant must be given a new trial.

Manning, 23 F.3d at 573 (quoting United States v. Hodge-Balwing, 952

F.2d 607, 610 (1st Cir.1991)). We consider a number of factors,

including the egregiousness of the conduct; the context in which it

occurred; whether the court gave curative instructions and what

effect these instructions likely had; and the overall strength of

the Government's case. Id.; see also United States v. Casas, 425

F.3d 23, 38 (1st Cir. 2005) (misconduct evaluated through a

"'balanced view of the evidence in the record'" (quoting United

States v. Rodríguez-de Jesús, 202 F.3d 482, 485 (1st Cir. 2000))).

We review de novo whether a given remark amounted to prosecutorial

misconduct; if we conclude that it did, we review the overruling of

a preserved objection to the making of the remark for abuse of

-36- discretion. Casas, 425 F.3d at 39; accord United States v.

Robinson, 473 F.3d 387, 393 (1st Cir. 2007) (no vacatur if error

harmless).

The defendants point to several passages in the

prosecutor's closing argument that they say poisoned the well. In

opening summation, the prosecutor stated:

You've heard and seen a whole lot of evidence of crime: Conspiracy, extortion, tax offenses, and of course obstruction of justice. And the defense has tried very hard to cloud and complicate the real issues in this case, to focus your attention on anyone, anything, but them. That is their job.

In rebuttal, the prosecutor remarked along similar lines as follows:

[T]he government in this case has been accused of political motivation. Is there any evidence of that? We have been accused of intentionally bringing in witnesses who would lie to you, creating a whole fabricated case against these defendants. There is no evidence of this kind of behavior. And it is offensive, and you should take it for what it is: The acts of some very desperate lawyers, lawyers who want to cloud the evidence.

Here, Vázquez objected, but the court made no ruling. The

prosecutor continued:

. . . [Morell] has told you repeatedly that if the Government did not bring you a witness, you are entitled to infer that witness would give evidence that would exculpate, that would prove his client is innocent. Make no mistake, the defendant has no burden. No defendant has any obligation to testify before the grand jury or at trial. But the defendant has the same subpoena power as the Government. And if [Morell] or [Vázquez], for that matter, thought they could subpoena a witness who would . . .

-37- give you testimony that would exculpate the[m], you would have heard it.15

Vázquez again objected and the district court overruled. The court

did not give curative instructions.

The defendants make two main arguments. First, they

object to the prosecutor's statement that "if [Morell] or [Vázquez]

. . . thought they could subpoena a witness who would . . . give you

testimony that would exculpate their clients, you would have heard

it"; they assert that this remark suggested to the jury that they

had the duty to present the missing evidence. See United States v.

Díaz-Díaz, 433 F.3d 128, 135 (1st Cir. 2005) (such a suggestion "may

cross the line"). Second, they contend that the prosecutor's

characterization of them as "desperate lawyers" seeking to "cloud

the issues" improperly disparaged defense counsel and their

important role in the justice system. See Manning, 23 F.3d at 573

n.1 (disapproving of prosecutor's remark that defense counsel were

like "Shakespeare's players, full of sound and fury signifying

nothing").

While we are reluctant to find categorically that these

remarks constituted misconduct,16 even assuming they did, we cannot

15 After Vázquez's objection was sustained, the prosecutor continued: "You are entitled to disregard [Morell]'s argument that [Morell's secretary] had any relevant, important evidence to give in this case because the government did not call her. . . . Don't go chasing off looking for witnesses you didn't hear." 16 For example, contrary to the defendants' suggestion, not every comment on a defendant's failure to produce evidence supporting his

-38- conclude that they so poisoned the well under Manning that the

defendants are entitled to a new trial. First, the remarks are

simply not that egregious, and come nowhere near the sort of remarks

we have found, in rare cases, to mandate a new trial. See, e.g.,

United States v. Hardy, 37 F.3d 753 (1st Cir. 1994) (conviction

vacated where prosecutor drew analogy between defendant's running

and hiding from police on the night of the crime, and running and

hiding again at trial by invoking Fifth Amendment right not to

testify); Manning, 23 F.3d 570 (conviction vacated where prosecutor

suggested that government witnesses cannot lie and urged jury to

"[t]ake responsibility for your community" by convicting defendant);

United States v. Arrieta-Agressot, 3 F.3d 525 (1st Cir. 1993)

(convictions vacated where prosecutor urged jury to consider case

as battle in war against drugs, and defendants as enemy soldiers

corrupting "our society").

Second, while the court did not give curative

instructions, it did instruct the jury at the end of trial that

nothing said during closing arguments could be taken as evidence,

and must be disregarded if it did not conform to the jury's

theory of the case is prohibited. See Díaz-Díaz, 433 F.3d at 135 (citing United States v. Kubitsky, 469 F.2d 1253, 1255 (1st Cir. 1972)). Indeed, in Díaz-Díaz, we suggested that such remarks would not be improper if made in response to defense arguments "aimed at having the jury draw the inference that the government did not call the [witness] because his testimony would have been harmful to its case." Id. As discussed below, the remarks here would seem to fit this bill.

-39- recollection of the evidence actually presented. The court also

reminded the jury that the Government had the burden of putting on

evidence to establish the defendants' guilt beyond a reasonable

doubt, and that the defendants bore no burden at all. Again,

Vázquez and Morell have given us no reason to believe the jury was

somehow unable to follow these instructions, and we do not believe

the impugned remarks "were of a caliber that would inherently compel

jurors to disregard their duty." United States v. Levy-Cordero, 67

F.3d 1002, 1009 (1st Cir. 1995); cf., e.g., Rodríguez-de Jesús, 202

F.3d at 486 (no retrial required where court gave no curative

instructions at time of remarks, but later instructed jury that

counsel's statements were not to be taken as evidence); Levy-

Cordero, 67 F.3d at 1009 (similar); Mooney, 315 F.3d at 60 (noting

that end-of-trial instructions "are sometimes enough to neutralize

any prejudice from improper remarks").

Third, on a comprehensive view of the record, the

Government's case against these two defendants was strong. It

rested on a solid foundation of testimony from several witnesses,

including many personally involved (albeit often grudgingly) in the

extortion and fraud schemes, as well as considerable documentary

evidence.

Fourth, specifically with respect to the remark on the

defendants' ability to subpoena witnesses, we have often

acknowledged that retrial is not required where the prosecutor's

-40- remarks, even if arguably improper, are a closely tailored response

to defense counsel's equally improper remarks. See, e.g., United

States v. Nickens, 955 F.2d 112, 122 (1st Cir. 1992) ("[I]f the

prosecutor's remarks were 'invited,' and did no more than respond

substantially in order to 'right the scale,' such comments would not

warrant reversing a conviction." (quoting United States v. Young,

470 U.S. 1, 12-13 (1985))); United States v. Henderson, 320 F.3d 92,

107 (1st Cir. 2003) (same); see also United States v. Skerret-

Ortega, No. 06-1126, 2008 WL 2402254, at *5 (1st Cir. June 13, 2008)

(latitude given to prosecutors in responding to provocative remarks

by defense counsel); United States v. Pérez-Ruiz, 353 F.3d 1, 10

(1st Cir. 2003) (similar).

Morell argued in closing that if a witness with relevant

information was available to the Government, but the Government

chose not to call the witness to testify, the jury could acquit him

on the relevant count of the indictment. He referred specifically

to his secretary, who he argued would have corroborated his version

of the facts had the Government called her. In rebuttal a few

minutes later, the prosecutor reminded the jury (as quoted above)

that the defendants had no duty to put on evidence, but that they

would have subpoenaed a given witness had they believed her

testimony would exculpate them. We find this to have been a

limited, proportionate, and thus closely tailored, response to

-41- Morell's rather outrageous invitation. See Henderson, 320 F.3d at

107.

Finally, we are mindful of the Supreme Court's admonition

that we not set guilty persons free simply to punish prosecutorial

misconduct. United States v. Auch, 187 F.3d 125, 133 (1st Cir.

1999) (citing United States v. Hasting, 461 U.S. 499, 506-07

(1983)). Ordering retrial is a rare remedy to which we resort only

where a miscarriage of justice would otherwise occur, or where the

evidence weighs heavily against the jury's verdict. Rodríguez-de

Jesús, 202 F.3d at 486. Neither of these conditions is present in

the circumstances.

In sum, the impugned remarks, even if rising to the level

of prosecutorial misconduct, did not poison the well to the degree

required under Manning.17 We therefore reject this ground of

appeal, and proceed to the next one.

17 In light of the several other factors militating against finding an abuse of discretion here, our conclusion remains the same even if, as Vázquez urges, we disregard the invited-response rule with respect to him because it was Morell who told the jury that uncalled Government witnesses would have exonerated him.

We also note that neither defendant objected at trial to the first "cloud the evidence" remark, made during the prosecutor's opening summation. For convenience we have considered both "cloud the evidence" remarks in tandem, but if we were to consider them independently of one another, we would review the first one for plain error, see Henderson, 320 F.3d at 102, 107, and find that it comes nowhere near requiring retrial under that standard.

-42- E. Sufficiency of the Evidence Against Morell

Morell mounts a broad challenge to the sufficiency of the

evidence used to convict him. He argues that no rational jury could

have found him guilty of any of the crimes of which this jury

convicted him. Those crimes were: (1) conspiracy in Count One of

the indictment; (2) Hobbs Act extortion of three subcontractors --

Feliciano, Carmona, and Laracy -- in Counts Two, Three, and Four,

respectively; (3) wire fraud in Counts Nine to Eleven; and (4) mail

fraud in Count Thirteen.18

Our central task in evaluating the sufficiency of the

evidence is to determine whether a rational factfinder could have

found each element of the crime in question beyond a reasonable

doubt. United States v. Lizardo, 445 F.3d 73, 81 (1st Cir. 2006).

Our review is plenary, looking at the record as a whole and

"resolv[ing] all questions of credibility and reasonable inferences

in favor of the verdict." Id.; accord United States v. Ortiz, 966

F.2d 707, 711 (1st Cir. 1992) ("[I]t is not the appellate court's

function to weigh the evidence or make credibility judgments.

Rather, it is for the jury to choose between varying interpretations

of the evidence."). We need not be convinced that a guilty verdict

was the only one available on the evidence, but merely that "a

18 The indictment had fourteen counts. The jury acquitted Morell of Count Five, extortion of subcontractor Carrero; Count Twelve, one of the wire fraud charges; and Count Fourteen, obstruction of justice. Counts Six to Eight pertained only to Vázquez.

-43- plausible rendition of the record" supports the verdict. Ortiz, 966

F.2d at 711. Evidence sufficient to support a guilty verdict may

be entirely circumstantial, and the factfinder is "free to choose

among reasonable interpretations of the evidence." United States

v. Wight, 968 F.2d 1393, 1395 (1st Cir. 1992).

Morell was convicted on three counts of Hobbs Act

extortion by fear of economic harm or under color of official right;

each of these counts pertained to the extortion of each of three

subcontractors: Feliciano, Carmona, and Laracy. We begin our

analysis by determining whether a rational jury could have found the

elements of extortion for these three subcontractors. The Hobbs Act

provides that "[w]hoever in any way or degree obstructs, delays, or

affects commerce or the movement of any article or commodity in

commerce, by . . . extortion or attempts or conspires so to do . .

. shall be [punished]." 18 U.S.C. § 1951(a). The Act defines

extortion as "the obtaining of property from another, with his

consent, induced by wrongful use of . . . fear, or under color of

official right." Id. § 1951(b)(2). We have clarified that "fear"

"encompasses 'fear of economic loss, . . . including the possibility

of lost business opportunities.'" United States v. Rivera Rangel,

396 F.3d 476, 483 (1st Cir. 2005) (quoting United States v. Bucci,

839 F.2d 825, 827-28 (1st Cir. 1988)). Therefore, an individual

commits Hobbs Act extortion if he: (1) obtains property from

another person; (2) with that person's consent; (3) through fear of

-44- economic loss or under color of official right; and (4) the

transaction affects interstate commerce. Id.

Morell does not dispute the existence of the fourth

element, and we find sufficient evidence in the record to establish

this element19 and the first three. The first element is easily

satisfied: Cobián testified -- and a rational jury could have

believed -- that the subcontractors made periodic cash payments to

him between 1997 and 1999 which he then passed on to Vázquez,

Morell, and Granados. Several subcontractors verified that they

made such payments to Cobián, and this testimony was supported by

documentary evidence -- for example, sham checks from Carmona's

business to non-existent individuals for unperformed services, so

Carmona could generate the cash necessary to pay Cobián. Feliciano

also testified that he made one payment to Vázquez in person. The

second element is also easily met: Feliciano, Carmona, and Laracy

all testified that they agreed voluntarily (though reluctantly) to

pay the money demanded, and a rational jury could have believed this

testimony.

19 We have held that "the government need only show a realistic probability of a de minimis effect on interstate commerce[] in order to bring extortion within the reach of the Hobbs Act." United States v. Rivera-Medina, 845 F.2d 12, 15 (1st Cir. 1988); see also United States v. Hathaway, 534 F.2d 386, 396 (1st Cir. 1976) (Hobbs Act reaches "even those effects which are merely potential or subtle" (internal quotation marks omitted)). We find ample evidence on the record before us to prove this element.

-45- As for the third element -- inducement to pay by fear of

economic loss or color of official right -- it, too, is established

on the facts presented. As an initial matter, the two components

of this element are disjunctive, and an extortion conviction will

stand if there is sufficient evidence to prove either component.

Id. To prove the former, "the government must show that the victim

reasonably feared that noncompliance with the putative

extortionist's terms would result in economic loss." United

States v. Cruz-Arroyo, 461 F.3d 69, 74 (1st Cir. 2006), cert.

denied, 127 S. Ct. 1169 (2007).

The Government here put forth ample evidence to show that

Feliciano, Carmona, and Laracy reasonably feared economic harm if

they failed to pay the money demanded of them. Feliciano, for

example, testified that he agreed to pay the money because, if he

did not, "[t]he government" could "make life very difficult" for his

construction firm by delaying Superaqueduct project payments and not

awarding the firm government contracts in the future. Carmona

testified that he felt compelled to pay and keep paying because if

he failed to do so, the Thames-Dick consortium could be removed from

the Superaqueduct project and his construction firm might also

suffer other adverse consequences. Laracy testified in a similar

vein that he feared detriment to his business if he did not pay.

Feliciano, Carmona, and Laracy testified further that they knew the

recipients of the money were people with influence in the NPP

-46- government; they knew Granados to be among them; and Feliciano and

Carmona also knew Vázquez to be among them. Based on this

testimony, a rational jury could have concluded beyond a reasonable

doubt that Feliciano, Carmona, and Laracy paid Cobián out of fear

of detrimental consequences for their respective businesses, and

that this fear was reasonable because they believed the

extortionists to have real power to effect such detriment.

The next critical question we must answer is whether a

rational jury could have found Morell to be linked to the extortion

scheme in a manner that allows criminal liability to be imputed to

him. We must therefore examine whether a rational jury could have

found a conspiracy to exist, and Morell to be a member of it, as

charged in Count One of the indictment. To establish a conspiracy,

the Government must prove three elements: (1) an agreement to

commit an unlawful act; (2) the defendant's knowledge of the

agreement and voluntary participation in it; and (3) an overt act

by at least one of the coconspirators in furtherance of the

conspiracy. United States v. Muñoz-Franco, 487 F.3d 25, 45 (1st

Cir.), cert. denied, 128 S. Ct. 678 (2007). The Government need not

prove a formal agreement; instead, "[t]he agreement may be shown by

a concert of action, all the parties working together

understandingly, with a single design for the accomplishment of a

common purpose." Id. at 45-46 (quoting Am. Tobacco Co. v. United

States, 147 F.2d 93, 107 (4th Cir. 1944)) (internal quotation marks

-47- omitted). Morell's conviction may be sustained on sufficient

evidence of a conspiracy to commit any of the three charged

conspiracy offenses. Id. at 46. For purposes of the present

analysis, we focus on conspiracy to commit extortion.

Morell does not seriously challenge the Government's

evidence on the first and third elements of conspiracy, and we find

an abundance of evidence in the record to support their existence.

Cobián and Granados testified that Vázquez and Cobián devised a plan

to compel the subcontractors to hand over a portion of their

Superaqueduct profits. As we have found above, a rational jury

could have considered this compelled payment to constitute extortion

-- the requisite unlawful act that is the object of the conspiracy.

And the record reveals many overt acts in furtherance of such a

conspiracy including, for example, Cobián's physical transfer of

periodic cash payments from Feliciano and Carmona to Vázquez's

medical office.

What remains, then, is the second element: whether Morell

knew of the extortion agreement and voluntary participated in it.

The most direct evidence against Morell in this regard is Cobián's

testimony about one of his initial meetings with Vázquez. According

to this testimony, Vázquez told Cobián that Morell and Granados

would be assisting him in his efforts to secure the Superaqueduct

contract for Thames-Dick, and that Cobián should approach Morell to

work out how Morell wished to receive his share of the payments.

-48- Yet even in the absence of this testimony, a rational factfinder

could still have inferred that Morell knew of and adhered to the

extortion agreement based on a significant quantum of other

evidence. For example, Cobián testified that, in 1997, he

approached Morell to arrange how the latter wished to receive his

share. Cobián stated that Morell was not surprised to see him, but

instead seemed to have been expecting him and had already devised

a specific plan for concealing the transfer of the subcontractors'

money. According to Cobián, Morell proceeded to draw up a sham

legal contract and made several other elaborate arrangements to this

end. Morell then accepted periodic payments from Cobián under the

sham contract and through third-party payments from 1997 to 1999 --

a period largely overlapping with the period during which Vázquez

and Granados were also receiving payments. Morell does not dispute

that he received thousands of dollars from Cobián over the course

of those two years.

As noted above, it is not for us to make credibility

determinations on a review of the sufficiency of the evidence, but

merely to say whether a rational jury could have believed this

testimony. See Ortiz, 966 F.2d at 711. We find that a rational

jury could have believed Cobián, and then drawn the reasonable

inference that Cobián's payments to Morell were not for legal

services and other licit ends, but were instead designed

clandestinely to channel him his part of the extortionate proceeds.

-49- A rational jury could then have drawn a second inference: that

Morell obviously knew of, and voluntarily participated in, the

scheme. Accordingly, a rational jury could have found all three

elements of conspiracy beyond a reasonable doubt, and this jury's

conviction of Morell under Count One was therefore supported by

sufficient evidence.

This brings us to the sufficiency of the evidence as to

the counts charging Morell with substantive crimes incident to the

conspiracy. Contrary to Morell's assertion at oral argument, the

law does not require proof that he personally took any steps to

instill economic fear in the subcontractors, to influence the award

of the contract or the payment for performance under the contract,

or that the subcontractors feared Morell or even knew of his

involvement. Instead, under the Pinkerton doctrine, a defendant can

be found liable for the substantive crime of a coconspirator

provided the crime was reasonably foreseeable and committed in

furtherance of the conspiracy. United States v. Gobbi, 471 F.3d

302, 309 n.3 (1st Cir. 2006) (citing Pinkerton v. United States, 328

U.S. 640, 647-48 (1946)). The district court properly instructed

the jury on the Pinkerton doctrine. Based on overwhelming evidence

in the record, the jury could rationally have found that Vázquez,

Cobián, or Granados committed extortion. Through Pinkerton, such

a jury could then have found Morell equally liable for the

substantive offense, since extortion was committed in furtherance

-50- of the conspiracy (and indeed was the conspiracy's object), and was

a reasonably foreseeable result of the conspiracy. See Díaz-Díaz,

433 F.3d at 137.20 For these reasons, Morell's substantive

extortion convictions under Counts Two to Four of the indictment

were also supported by substantial evidence.

The last set of convictions Morell challenges on

sufficiency grounds stem from various instances of mail and wire

fraud charged in Counts Nine to Eleven and Thirteen. In order to

convict an individual of mail or wire fraud under 18 U.S.C. §§ 1341

and 1343, the Government must prove: "(1) the defendant's knowing

and willing participation in a scheme or artifice to defraud with

the specific intent to defraud, and (2) the use of the mails or

interstate wire communications in furtherance of the scheme."

United States v. Sawyer, 85 F.3d 713, 723 (1st Cir. 1996).

Counts Nine, Ten, and Eleven charged Morell with devising

a scheme to defraud the Puerto Rico Treasury Department ("Hacienda")

by failing to pay income taxes on revenue earned from the extortion.

Each count lists a separate wire transaction of thousands of dollars

20 Citing United States v. O'Campo, 973 F.2d 1015, 1021 (1st Cir. 1992), Morell argues that he cannot be held vicariously liable through Pinkerton because Vázquez and Granados had already committed extortion by the time he began receiving payments. We reject this argument, as extortion can be an ongoing crime, see, e.g., Bucci, 839 F.2d at 829-30, and this extortion went on until the payments ceased in 1999. In any event, a rational jury could have found that Morell adhered to the extortion agreement from its inception, and not merely from 1997, when he began receiving payments.

-51- dated April 16, 1999 from Thames-Dick to Feliciano, Carmona, and

Laracy, respectively. These were apparently chosen as

representative samples of the monthly wire transfers Thames-Dick

made to the subcontractors beginning in January 1997, a portion of

which the subcontractors then handed over to Cobián, who in turn

gave a portion to Morell, Vázquez, and Granados. The indictment

charges that Morell failed to account for this 1999 income on his

Puerto Rico tax return, and then used the mails to send the return

to the Puerto Rico tax agency. This mailing was the basis for the

mail-fraud charge in Count Thirteen.

Upon review of the record, we find sufficient evidence for

a rational jury to have convicted Morell on all of these counts.

A rational jury could have believed Cobián's testimony that Morell

directed Cobián to funnel him the subcontractors' money through

checks for sham legal services purportedly rendered to Cobián's

company, and through payments to third parties for Morell's benefit.

Such a jury could also have credited the certified copy of Morell's

1999 tax return in evidence, that failed to report payments made to

him by Cobián in that year. A rational jury could likewise have

believed Morell's tax preparer, who testified that Morell did not

tell him about income earned from Cobián's company in 1999, and that

he therefore did not include it on the 1999 return. These findings,

in turn, would be sufficient to satisfy the first element for both

-52- mail and wire fraud: that Morell intentionally, knowingly, and

willingly participated in a scheme to defraud Hacienda. See id.

Specifically with respect to the wire-fraud counts, a

rational jury could then have found the second element fulfilled --

that wire communications were used in furtherance of the scheme.21

Morell need not have had any personal involvement in initiating the

wire transfers; instead, the use of the wires need only have been

"a reasonably foreseeable part of the scheme in which he

participated." Id. at 723 n.6 (quoting United States v. Boots, 80

F.3d 580, 585 n.8 (1st Cir. 1996)) (internal quotation marks and

alteration omitted); accord United States v. Fermín Castillo, 829

F.2d 1194, 1198 (1st Cir. 1987) (it must have been reasonably

foreseeable that use of the mails or wires would "follow in the

ordinary course of business" (quoting United States v. Benmuhar, 658

F.2d 14, 16-17 (1st Cir. 1981)) (internal quotation marks omitted));

see also id. (case law on mail-fraud statute instructive for wire-

fraud statute). From the evidence presented, a rational jury could

have inferred that it was reasonably foreseeable that interstate

wires would be used in the ordinary course of business for Thames-

Dick to transfer payments to the subcontractors. These transfers

were essential to the success of the extortion scheme and, in turn,

the scheme to defraud the Puerto Rico tax agency, because they

21 The parties stipulated that the wire payments traveled in interstate commerce, so we need not address the evidence on this element.

-53- provided the subcontractors the money they gave to Morell and the

others, and which Morell then failed to report. On the basis of

such findings, a rational jury could thus have concluded that Morell

was guilty of wire fraud on each of the three counts.22

Turning specifically to the mail-fraud count, a rational

jury could also have found the second element fulfilled here -- that

the mails were used in furtherance of the scheme. The district

court admitted into evidence a copy of a meter-marked envelope

addressed to Hacienda and bearing a Hacienda receipt stamp, along

with Morell's 1999 return. Morell does not dispute that these were

his envelope and return, but contends there is no proof that the

return was actually placed in the mail. We disagree, and conclude

that a rational jury could have credited evidence that Morell mailed

the return or reasonably expected that in the regular course of

business, it would be mailed to Hacienda on his behalf. Morell's

tax preparer, who formerly worked for Hacienda, testified that when

tax returns came in the mail, Hacienda kept the envelope and stapled

it to the return, but would likely discard an envelope accompanying

a hand-delivered return. A rational jury could have believed this

22 Morell makes much of the fact that the indictment also alleges he committed fraud on his 1997 and 1998 tax returns, but the evidence used to show wire transfers for Counts Nine to Eleven consisted of April 1999 transactions made after the 1997 and 1998 returns had been filed. We need not address this argument because all that was required to sustain Morell's convictions on these counts was sufficient evidence that he committed fraud on one of the returns, and the 1999 return meets this requirement.

-54- testimony, and inferred from it that the 1999 return and the meter-

marked envelope were actually mailed. The evidence was therefore

sufficient to support a finding of guilt by mail fraud.

For these reasons, we reject all of Morell's challenges

to the sufficiency of the evidence, and proceed to the next ground

of appeal.

F. Admission of Coconspirator Statement Against Morell

This ground of appeal, also advanced only by Morell,

concerns Cobián's testimony on direct examination about one of the

meetings in which Vázquez proposed the extortion scheme to Cobián.

Cobián testified that he asked Vázquez who else would be helping the

subcontractors to secure the Superaqueduct contract, and that

Vázquez told Cobián it would be Morell and Granados. At this,

Morell objected on hearsay grounds, arguing that this testimony was

inadmissible hearsay. The district court provisionally allowed the

testimony under our rule in United States v. Petrozziello, 548 F.2d

20 (1st Cir. 1977), and later kept it on the record after assessing

it in light of other evidence presented at trial. See United States

v. Mangual-García, 505 F.3d 1, 7-8 (1st Cir. 2007). Morell now

argues that this constituted reversible error because the testimony

was the only piece of evidence linking him to a conspiracy involving

Vázquez.

Our case law instructs district courts faced with a

challenge to the admission of a coconspirator hearsay statement to

-55- admit the statement provisionally and wait until the end of trial

to consider four factors in the light of all the evidence:

(1) whether a conspiracy existed; (2) whether the defendant was a

member of the conspiracy; (3) whether the declarant was also a

member of the conspiracy; and (4) whether the declarant's statement

was made in furtherance of the conspiracy. Colón-Díaz, 521 F.3d

at 35-36 (citing Petrozziello, 548 F.2d at 23; Fed. R.

Evid. 801(d)(2)(E)). If these four conditions are satisfied by a

preponderance of the evidence, the statement qualifies under the

coconspirator exemption to the hearsay rule and may therefore be

admitted into evidence -- including to prove the truth of the matter

asserted. Id. at 35. We review preserved challenges to a

Petrozziello determination (or a portion thereof) for abuse of

discretion, and unpreserved challenges for plain error. Id. at

36-37.

In a sealed written order, the district court made the

Petrozziello determination, finding the four Rule 801(d)(2)(E)

factors satisfied by a preponderance of the evidence. Morell did

not object to this assessment with respect to the first, third, and

fourth Rule 801(d)(2)(E) factors, and does not quarrel with it now.

As such, he forfeited any challenge to the court's findings on these

factors. United States v. Thompson, 449 F.3d 267, 273 (1st Cir.

2006). As concerns the second factor -- whether Morell was a member

of the conspiracy -- we have already concluded above that, on the

-56- evidence presented at trial, a rational jury could have found Morell

to be a member of the charged conspiracy beyond a reasonable doubt

even absent Cobián's testimony that Vázquez implicated Morell during

the meeting in question. A fortiori, the record contains ample

evidence to support a finding by the requisite preponderance that

Morell was a member of the conspiracy for purposes of

Rule 801(d)(2)(E). Cf. United States v. Gjerde, 110 F.3d 595, 602

(8th Cir. 1997) (finding certain Rule 801(d)(2)(E) factors as

necessarily satisfied by preponderance where court had already found

the relevant facts proven beyond reasonable doubt). The district

court did not, therefore, abuse its discretion in not striking the

statement, and the jury was entitled to consider it for the truth

of the matter asserted therein.

G. Sentencing

As their final ground of appeal, Vázquez and Morell

challenge the manner in which the district court calculated their

respective GSRs under the Sentencing Guidelines. We review the

district court's legal interpretation and application of the

Guidelines de novo, but its loss or benefits calculations are

reviewed only for clear error. United States v. Innarelli, 524 F.3d

286, 290 (1st Cir. 2008); United States v. Griffin, 324 F.3d 330,

365 (5th Cir. 2003).

At sentencing, the district court calculated the

defendants' respective GSRs in the manner recommended by their

-57- respective Presentence Reports ("PSRs"). It accordingly looked to

§ 2C1.1 of the 1998 Guidelines,23 on "Extortion Under Color of

Official Right":

(a) Base Offense Level: 10.

(b) Special Offense Characteristics

(2) (If more than one applies, use the greater):

(A) If the value of the payment, the benefit received or to be received in return for the payment, or the loss to the government from the offense, whichever is greatest, exceeded $2,000, increase by the corresponding number of levels from the table in § 2F1.1 (Fraud and Deceit). . . .

U.S.S.G. § 2C1.1 (1998). Section 2C1.1(b)(2)(A) thus provides three

alternative amounts, and the court must choose the greatest: (1)

the value of the payment; (2) the benefit received or to be received

in return for the payment; or (3) the loss to the government from

the offense.24

23 The PSRs recommended that the 1998 Guidelines be used by operation of U.S.S.G. § 1B1.11(b)(1) (2006). The district court followed this recommendation, and the parties did not object. We accordingly use the 1998 Guidelines as well, noting that while § 2C1.1 has been amended since 1998, the key language for purposes of analyzing the defendants' challenge remains virtually the same. 24 It is undisputed that the third alternative -- loss to the government -- is not available because the government lost no money as a result of the extortion scheme. Pursuant to U.S.S.G. § 3D1.2 cmt. n.6 (1998), the district court did not make an independent determination of the defendants' sentences for defrauding the Puerto Rico tax authorities. As such, those losses played no part in the sentencing calculations in this case.

-58- Relying on the PSRs, the district court determined that

the alternative with the highest quantity was the "benefit to be

received in return for the payment," which the court estimated as

slightly over $10 million -- the approximate combined profit earned

by the subcontractors for their work on the Superaqueduct project.

Following the directive in § 2C1.1(b)(2)(A), the court then looked

to § 2F1.1, which instructed it to increase the defendants'

respective offense levels by fifteen because the "loss" the

defendants caused exceeded $10 million. Id. § 2F1.1(b)(1)(P)

(1998). Added to the base offense level of ten (which was

undisputed), the defendants were left with offense levels of twenty-

five, along with respective Criminal History Categories of I. This

produced a GSR of fifty-seven to seventy-one months. After

undertaking the remainder of the sentencing analysis, including an

examination of the factors in 18 U.S.C. § 3553(a), the court

sentenced Vázquez and Morell toward the lower end of this range, to

sixty months' imprisonment each. The defendants timely objected to

the methodology used to produce this sentence.

On appeal, Vázquez and Morell argue that the district

court erred in choosing the "benefit to be received" alternative

because there was no evidence that the subcontractors received the

roughly $10 million in profits "in return for the payment."

U.S.S.G. § 2C1.1(b)(2)(A). According to the defendants, it was

undisputed that the Thames-Dick consortium was the most qualified

-59- of the bidders, and there was no evidence that Vázquez or Morell

actually exerted any real influence on anyone responsible for

awarding Thames-Dick the contract. As Granados testified, the

coconspirators' promise to help the subcontractors was merely an

insurance policy to make sure nothing happened that would impede the

awarding of the contract -- not to compel or persuade the relevant

officials to award it. Therefore, because Thames-Dick was awarded

the contract based on its and the subcontractors' own merit through

a process not tainted by the defendants' crime, the "benefit . . .

to be received in return for the payment" was zero, and the court

must sentence the defendants under the (much lower) "value of the

payment" alternative in § 2C1.1(b)(2)(A). The district court did

not make specific findings on the amount of money the defendants

actually received, but other evidence suggested it was below

$1 million for each defendant.

We begin by determining whether the district court

committed legal error in its interpretation of the meaning of

"benefit . . . to be received in return for the payment" in

§ 2C1.1(b)(2)(A). This is a question of first impression in this

circuit. Evident from the plain language of the guideline --

"benefit . . . to be received" -- is the Sentencing Commission's

intention that this inquiry be forward-looking, a conclusion also

reached by the Fifth Circuit in one of the rare cases interpreting

the guideline in the context of extortion, as opposed to bribery:

-60- "[I]n determining the amount of benefit to be received, courts may

consider the expected benefits, not only the actual benefits

received." Griffin, 324 F.3d at 366 (emphasis added). This

prospective analysis comports with our closely analogous case law

on computing loss for purposes of sentencing. We have held that

when a person is convicted of a fraud offense, a proper analysis of

the loss he intended to cause asks what a person in his position at

the relevant time would reasonably have expected to happen to the

victim as a result of the fraud. See Innarelli, 524 F.3d at 291.

The rationale for an ex ante inquiry lies in the purpose of the

exercise: to set the defendant's punishment at a level commensurate

with the degree of his moral culpability. For this reason, it is

not determinative what loss the victim actually ended up suffering,

or indeed whether the victim suffered any loss at all. Id.25

This reasoning translates readily into the extortion

context. We think that the best interpretation of "benefit . . .

to be received in return for the payment" is the benefit a person

in the defendant's position at the time of the extortion would

reasonably have expected the victim to receive by paying him the

money he demanded. See Griffin, 324 F.3d at 366. This figure, in

turn, affords the court a gauge for how severely the defendant

25 As we noted in Innarelli, this rationale contrasts with that for restitution, which is "necessarily a backward-looking inquiry" because the defendant can only be made to reimburse the victim for the loss he actually caused to the victim. 524 F.3d at 294.

-61- deserves to be punished. We reject the defendants' invitation to

look with 20-20 hindsight at whether, at the end of the day, they

actually did anything overt to help Thames-Dick get the contract.

As reasonable expectation at the time of the extortion is the

touchstone of the inquiry, the district court's interpretation was

the right one.

As for the amount of the benefit in this case, neither

defendant contests the district court's estimate of slightly more

than $10 million, a figure the court described as conservative. In

any event, our review of the record reveals this estimate to be

reasonable, and a reasonable estimate is all that is required. See

Innarelli, 524 F.3d at 290; Griffin, 324 F.3d at 365. We therefore

see no reason to deem this quantity clearly erroneous. United

States v. Gray, 521 F.3d 514, 542-43 (6th Cir. 2008) (amount of

benefit to be received reviewed for clear error); Griffin, 324 F.3d

at 365 (same).

Since more than $10 million is undisputably greater than

the other available alternative in § 2C1.1(b)(2)(A) -- the value of

the payments to Vázquez and Morell -- the district court properly

used it to determine how many additional levels to add to their

respective base offense levels. See U.S.S.G. §§ 2C1.1(b)(2),

2F1.1(b)(1)(P). Accordingly, the court's GSR calculation for each

defendant was correct, and in the absence of any further sentencing

challenges, our review ends there.

-62- III. Conclusion

For the foregoing reasons, we affirm Vázquez's conviction

and sentence, and affirm Morell's conviction and sentence.

Affirmed.

-63-