United States v. Falcon-Nieves

79 F.4th 116

• Court: Court of Appeals for the First Circuit
• Decided: August 23, 2023
• Docket: 20-2189
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

Nos. 20-2189 20-2190 UNITED STATES

Appellee,

v.

IVONNE M. FALCÓN-NIEVES

and

MARIELIS FALCÓN-NIEVES,

Appellants.

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

[Hon. Pedro A. Delgado-Hernández, U.S. District Judge]

Before

Barron, Chief Judge, Howard and Montecalvo, Circuit Judges.

Martin G. Weinberg, with whom Kimberly Homan was on brief, for appellant Ivonne M. Falcón-Nieves. Kendys Pimentel-Soto, with whom Kendys Pimentel-Soto Law Office LLC, Francisco Adams-Quesada, and Francisco J. Adams-Quesada Law Office were on brief, for appellant Marielis Falcón-Nieves. Timothy R. Henwood, Assistant United States Attorney, with whom W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, and Thomas F. Klumper, Assistant United States Attorney, were on brief, for appellee. August 23, 2023 BARRON, Chief Judge. These consolidated appeals concern

challenges by two sisters, Ivonne Falcón-Nieves ("Ivonne") and

Marielis Falcón-Nieves ("Marielis"), to their convictions on

various federal charges that relate to alleged public corruption

in the Commonwealth of Puerto Rico. The sisters contend that the

convictions are not supported by sufficient evidence and so must

be reversed. They argue in the alternative that the convictions

must be vacated because their motions for severance of their trials

from that of one of their codefendants were wrongly denied. Ivonne

also contends that one of her convictions for conspiracy must be

vacated due to a prejudicial variance.

The government contends that the evidence suffices to

support all of the sisters' convictions, such that none may be

reversed. It also rejects Ivonne's contention regarding the

prejudicial variance. But the government concedes that it was

error to deny the sisters' severance motions and that, as a result,

their convictions must be vacated.

We agree with the government that the evidence suffices

to support Ivonne's conviction on one of the three counts of honest

services wire fraud with which she was charged, her convictions

for conspiracy to commit honest services wire fraud or federal

program bribery, and Marielis's conviction for aiding and abetting

extortion. But we reject the government's arguments that the

evidence suffices to support Ivonne's conviction for federal

- 3 - program bribery, her other two convictions for honest services

wire fraud, and her conviction for aiding and abetting extortion.

Accordingly, we reverse those convictions. We also agree with

Ivonne that one of her conspiracy convictions must be vacated due

to a prejudicial variance. Finally, we vacate the rest of the

convictions because we do agree with the parties that it was error

for the District Court to deny the sisters' severance motions.

I.

On December 2, 2015, a grand jury in Puerto Rico issued

a twenty-five-count indictment against several government

officials and their associates that alleged public corruption in

Puerto Rico. Among those indicted were the appellants: Ivonne,

the Vice President of Administration and Finance for the Puerto

Rico Aqueduct and Sewer Authority ("AAA"),1 and her sister,

Marielis.

The indictment charged Ivonne with seven counts that

centered on her alleged use of her position at AAA to aid private

parties seeking government contracts. The counts were for:

conspiracy to commit honest services wire fraud or federal program

bribery, in violation of 18 U.S.C. § 371 (Count One); conspiracy

Prior to January 2013, Ivonne was the Treasurer of AAA. AAA 1

is the Spanish-language acronym for the Puerto Rico Aqueduct and Sewer Authority. It is also referred to as PRASA, the English- language acronym for the entity, throughout the record in this case. This opinion will use the Spanish-language acronym.

- 4 - to commit honest services wire fraud, in violation of 18 U.S.C.

§ 1349 (Count Six); honest services wire fraud, in violation of 18

U.S.C. §§ 1343 and 1346 (Counts Seven, Eight, and Nine); federal

program bribery, in violation of "18 U.S.C. §§ 666(a)(1)(B) and 2"

(Count Thirteen); and aiding and abetting in the commission of

extortion, in violation of "18 [U.S.C.] Section 1951(a) and 2"

(Count Seventeen).

The indictment charged Marielis with one count of aiding

and abetting extortion, in violation of "18 [U.S.C.] Section

1951(a) and 2" (Count Seventeen). The charge concerned her alleged

role in orchestrating payments for one of AAA's contractors.

Prior to, throughout, and after the trial, Ivonne and

Marielis requested that their cases be severed under Federal Rule

of Criminal Procedure 14 from the cases of several of their

codefendants, including that of Glenn Rivera ("Rivera"), a former

employee of the Puerto Rico House of Representatives ("House").

Ivonne and Marielis argued that severance was proper because the

indictment charged a number of their codefendants, including

Rivera, with participation in a fraud against the House in which,

according to the indictment, neither Ivonne nor Marielis was

implicated.2 See Fed. R. Crim. P. 14(a).

2 Marielis also argued that the charges against her were unrelated to the charges in every other count in the indictment.

- 5 - The District Court denied Ivonne and Marielis's requests

for severance. A jury found Ivonne and Marielis guilty on all the

counts with which they were charged. The sisters thereafter moved

for judgments of acquittal -- as they had at the close of all the

evidence and at the close of the government's case. The sisters

did so in part on the ground that the evidence presented at trial

was insufficient to support their convictions on any of the counts

for which they had been charged.

The District Court denied Ivonne's and Marielis's

motions for judgments of acquittal. Ivonne and Marielis timely

appealed.

II.

Ivonne and Marielis each argue on appeal that their

convictions must, at a minimum, be vacated because the District

Court erroneously denied their requests for severance under

Federal Rule of Criminal Procedure 14 from Rivera's trial. The

government concedes as much based on our decision in United States

v. Martínez, 994 F.3d 1, 11-17 (1st Cir. 2021), in which we vacated

the convictions of one of Ivonne and Marielis's codefendants in

the underlying action, former administrator of the Puerto Rico

Workforce Development Administration ("ADL") Sally López Martínez

("López"). See id.

We vacated López's convictions in Martínez on the ground

that the District Court improperly denied López's motions for

- 6 - severance from being tried with Rivera. See id. We explained

that denying López's request for severance allowed the jury in her

case to be "exposed to days of detailed evidence regarding" her

codefendants' activities pertaining to corruption in the House,

even though much, if not all, of that evidence would have been

inadmissible at a separate trial of López herself, given that she

was not alleged to have been involved in the corruption related to

the House. Id. at 14-15.

We agree with Ivonne, Marielis, and the government that

the reasoning on which Martínez relied in vacating the convictions

in that case applies equally to Ivonne's and Marielis's cases.

Thus, Ivonne's and Marielis's convictions must be vacated due to

the District Court's denial of the sisters' requests for severance.

As a result, we need not reach many of the sisters' other arguments

for vacating their convictions. Nor need we address their

challenges to their sentences.

We do still need to address, however, their contentions

that their convictions must be reversed -- rather than merely

vacated -- because their convictions are not supported by

sufficient evidence. And we also need to address Ivonne's related

argument that she was prejudiced by a variance as to one of her

conspiracy convictions. We next take up those arguments.

- 7 - III.

In reviewing a sufficiency challenge, "the relevant

question is whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable

doubt." United States v. Woodward, 149 F.3d 46, 56 (1st Cir. 1998)

(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Our

review of preserved sufficiency challenges is de novo, see United

States v. Millán-Machuca, 991 F.3d 7, 17 (1st Cir. 2021), while we

review sufficiency challenges raised for the first time on appeal

for "clear and gross injustice," United States v. Ponzo, 853 F.3d

558, 580 (1st Cir. 2017) (quoting United States v. Foley, 783 F.3d

7, 12 (1st Cir. 2015)).

We will begin with the sufficiency challenges that

Ivonne makes to her convictions on the substantive counts for

federal program bribery and honest services wire fraud -- which

are Counts Seven, Eight, Nine, and Thirteen. We will then address

Ivonne's sufficiency challenges to her conspiracy convictions,

which are Counts One and Six. Along the way, we will also address

the prejudicial-variance-based challenge that she makes to her

conviction on Count One. Finally, we will address the challenges

that Marielis and Ivonne raise with respect to their convictions

on Count Seventeen, which is for aiding and abetting extortion.

- 8 - A.

We begin with Ivonne's sufficiency challenge to her

conviction on Count Thirteen for federal program bribery under

"§§ 666(a)(1)(B) and 2." This count alleges that businessman and

political operator Anaudi Hernández Pérez ("Hernández") "gave

[Ivonne] things of value to influence and reward [Ivonne] for the

use of her official position to assist [Hernández] and his

associates by providing favorable treatment for [Hernández] and

his associates in official matters before AAA."

Ivonne takes aim in part at the sufficiency of the

evidence as to the "jurisdictional" element of § 666(a)(1)(B).

Her focus is on the element that requires the government to prove

beyond a reasonable doubt that the "agent" accused of a violation

under this provision works for an "organization, government, or

agency [that] receives, in any one year period, benefits in excess

of $10,000 under a Federal program involving a grant, contract,

subsidy, loan, guarantee, insurance, or other form of Federal

assistance," § 666(b); see United States v. Bravo-Fernández, 913

F.3d 244, 247 (1st Cir. 2019).

Ivonne concedes that she did not raise this ground for

challenging the conviction below. Our review of the challenge is

thus only for "clear and gross injustice," Ponzo, 853 F.3d at 580,

which is "a particularly exacting variant of plain error review,"

Foley, 783 F.3d at 12.

- 9 - Under this standard, Ivonne must show that the four

prongs required to demonstrate plain error are met. See United

States v. Duarte 246 F.3d 56, 60 (1st Cir. 2001) (explaining that

to establish plain error, a party must show "(1) that an error

occurred (2) which was clear or obvious and which not only (3)

affected the defendant's substantial rights, but also (4)

seriously impaired the fairness, integrity, or public reputation

of judicial proceedings"). And we will only reverse if her

conviction would result in "clear and gross injustice." United

States v. Pratt, 568 F.3d 11, 15 (1st Cir. 2009) (citation

omitted). Nonetheless, we conclude that Ivonne has made the

requisite showing. See United States v. Dawlett, 787 F.2d 771,

775-76 (1st Cir. 1986) ("'It is the imperative duty of a court to

see that all the elements of [a] crime are proved, or at least

that testimony is offered which justifies a jury finding those

elements.' In this instance the insufficiency of the evidence

mandates reversal since plain error has been committed in an area

so vital to the defendant. Surely our concept of justice is

violated when a man is convicted of a crime he did not commit."

(alteration in original) (citation omitted)).

The government concedes -- and we agree -- that the

evidence at trial that supportably shows that AAA received a gross

amount of federal funding in excess of $10,000 does not in and of

itself suffice to prove that AAA received the kind of benefits

- 10 - specified in § 666(b). But the government contends that other

evidence presented at trial does, such that there is sufficient

record support to show that this jurisdictional element is met.

The government rests this argument on the contention

that evidence in the record suffices to show that AAA received the

requisite kind and amount of funds in the form of the Workforce

Investment Act ("WIA") funds provided to AAA by the ADL. But we

agree with Ivonne that the evidence does not suffice to permit a

rational jury to find beyond a reasonable doubt that the requisite

amount of WIA funds were in fact transferred to AAA -- even if we

assume that WIA funds are federal benefits.

The government counters by pointing to testimony from

multiple government witnesses -- including Hernández, one of his

associates, and a former ADL employee -- that AAA signed a contract

that contemplated the transfer of more than $10,000 in WIA funds

from ADL to AAA. And the record does supportably show that the

contract provided that WIA funds of that amount would be

transferred from ADL to AAA to pay Links Group, a company

associated with Hernández that would provide employment training

for AAA employees in return for the WIA funds. Moreover, the

record supportably shows that the contract was signed and that

Links Group provided some of the training described in the

contract.

- 11 - But the question that matters is whether the record

suffices to show that the requisite amount of WIA funds was in

fact transferred from ADL to AAA as that contract contemplated.

And the record contains nothing to show that such an amount was.

The only evidence that directly addresses the amount of

funds transferred is the testimony of Mariet Rodriguez Melendez

("Rodriguez Melendez"), a former employee at ADL who directed the

agency's rapid response unit for displaced workers and employees.

But she testified that ADL does not pay providers funds

contemplated in their contracts with ADL until after the providers'

services are rendered; that at least one contract signed by AAA

and ADL, under which ADL was to provide funds for AAA to pay Links

Group to train AAA employees, was cancelled; and that ADL did not

transfer the funds contemplated in the cancelled contract to AAA

and "never paid for any Links Group contract."

The government points to no evidence that contradicts or

even casts doubt on this testimony. Nor does the government

identify anything in the record that would permit a rational jury

to conclude in the face of this testimony that the requisite amount

of WIA funds had been transferred from ADL to AAA. See

Bravo-Fernández, 913 F.3d at 248 (noting that evidence that may

establish the § 666 jurisdictional element may include, for

example, witness testimony, "with the support of documentation

- 12 - also admitted into evidence," that the relevant government entity

"annually received" federal benefits totaling over $10,000).

To that point, none of the testimony in the record on

which the government relies supportably shows that any WIA funds

were transferred from ADL to AAA, let alone that the required

amount was so transferred. Certainly, the testimony regarding

what "was going to" happen under the contracts provides no basis

for concluding that the funds were in fact transferred. Nor does

testimony that some services were rendered pursuant to the contract

in question, as nothing in the record suffices to support a finding

that the requisite amount of funds would have been transferred in

consequence of the services that the testimony supportably shows

were rendered.

Thus, the evidence plainly does not suffice to permit a

rational jury to find beyond a reasonable doubt that the

jurisdictional element of § 666(a)(1)(B) is met. See United States

v. Morillo, 158 F.3d 18, 22 (1st Cir. 1998) ("If the evidence

'viewed in the light most favorable to the verdict gives equal or

nearly equal circumstantial support to a theory of guilt and a

theory of innocence of the crime charged,' [we] must reverse the

conviction. This is so because . . . where an equal or nearly

equal theory of guilt and a theory of innocence is supported by

the evidence viewed in the light most favorable to the prosecution,

'a reasonable jury must necessarily entertain a reasonable

- 13 - doubt.'" (cleaned up) (citations omitted)). Accordingly, this

conviction must be reversed. See United States v. Peña-Lora, 225

F.3d 17, 26-28 (1st Cir. 2000); see also United States v.

Todosijevic, 161 F.3d 479, 483 (7th Cir. 1998) ("[R]equirements

for plain error are met with respect to sufficiency of the evidence

claims 'if the record is devoid of evidence pointing to guilt, or

if the evidence on a key element was so tenuous that a conviction

would be shocking.'" (citations omitted)); United States v.

Spinner, 152 F.3d 950, 956 (D.C. Cir. 1998) ("It would be a

manifest miscarriage of justice to let a conviction stand [where]

the government failed to present any evidence on an essential

element of the crime.").

B.

We now turn to Ivonne's challenges to the sufficiency of

the evidence supporting her convictions on Counts Seven, Eight,

and Nine, which were for honest services wire fraud under 18 U.S.C.

§§ 1343 and 1346. As these sufficiency challenges are preserved,

our review is de novo. See Millán-Machuca, 991 F.3d at 17. We

conclude that the evidence suffices to support Ivonne's conviction

on Count Seven but not her convictions on Counts Eight and Nine.

1.

To secure a conviction for honest services wire fraud

under §§ 1343 and 1346, the government must show "(1) the

defendant's knowing and willing participation in a scheme or

- 14 - 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) (footnote omitted).3 The government contends

that it could show that Ivonne acted with a "specific intent to

defraud" by demonstrating that she had a "'bribery-like, corrupt

intent' to deprive the public of honest services," Martínez, 994

F.3d at 7 (citations omitted). The government further contends

that it could prove that Ivonne had such a "bribery-like, corrupt

intent" by showing that she received a bribe by accepting "a thing

of value while 'intending to be influenced' by it to perform an

official act," id. at 6-7 (citation omitted).

In making this argument, the government emphasizes that

such a quid-pro-quo "agreement need not be tied to a specific act

by the recipient." United States v. McDonough, 727 F.3d 143, 152

(1st Cir. 2013). Rather, "[i]t is sufficient if the public

official understood that he or she was expected to exercise some

influence on the payor's behalf as opportunities arose." Id. at

152-53 (citation omitted). Further, "[b]ribery can be

accomplished through an ongoing course of conduct, so long as the

3The parties do not dispute that the second element required to prove honest services wire fraud was met for all three honest services wire fraud counts on which Ivonne was convicted based on emails Ivonne sent or received over the course of 2013. See Sawyer, 85 F.3d at 723.

- 15 - evidence shows that the 'favors and gifts flowing to a public

official [are] in exchange for a pattern of official actions

favorable to the donor.'" Woodward v. United States, 905 F.3d 40,

46 (1st Cir. 2018) (alterations in original) (citation omitted).

The government relies on McDonnell v. United States, 579

U.S. 550 (2016), for the standard for what constitutes taking an

"official act." There, consistent with a stipulation between the

parties, the Supreme Court of the United States drew on the

definition of "official act" in the federal bribery statute, 18

U.S.C. § 201, to define the "official act" component of the quid-

pro-quo exchange required to show a bribery-like corrupt intent

for purposes of honest services wire fraud under § 1343. See

McDonnell, 579 U.S. at 562, 580. In doing so, the Court explained

that an "official act" can be proved by showing that the defendant

"made a decision or took an action" -- or agreed to do so -- "on"

a "question, matter, cause, suit, proceeding or controversy" that

"may at any time be pending" or "may by law be brought before" any

public official. Id. at 567 (quoting § 201(a)(3)). The Court

went on to explain that the defendant may commit an "official act"

for purposes of honest services wire fraud by "us[ing] h[er]

official position to provide advice to another official, knowing

- 16 - or intending that such advice will form the basis for an 'official

act' by another official." Id. at 572.4

2.

support Ivonne's conviction on Count Seven because it suffices to

show that she agreed to take "official acts" to give preferential

treatment to a purchasing-website contract proposal submitted to

AAA by a company associated with Hernández, 3CG, in exchange for

a "stream of benefits" that he provided to her. See Woodward, 905

F.3d at 46. In challenging that contention, Ivonne does not

dispute that the evidence suffices to show that from roughly

February 2013 to May 2013 she was receiving benefits from Hernández

and that during that same span of time she both referred the 3CG

purchasing-website proposal to Héctor Sanabria ("Sanabria") -- who

was AAA's Director of Information Technology and thus the person

at AAA who was responsible for making a recommendation to AAA

leadership about to whom to award the contract for AAA's purchasing

website -- and discussed that proposal with him. But Ivonne

contends the evidence still does not suffice to support her

conviction on Count Seven. We disagree.

4 Ivonne does not dispute that McDonnell's definition of an "official act" governs the present case.

- 17 - a.

We begin with Ivonne's contention that the evidence does

not suffice to show that any of the alleged official acts she took

with respect to the 3CG purchasing-website contract proposal were

taken in exchange for the stream of benefits from Hernández.5 See

id. She explains that there is no direct evidence that she took

any such acts in exchange for that stream of benefits. She goes

on to argue that this evidentiary gap cannot be bridged

circumstantially because the benefits that the evidence shows she

received were simply too "paltry" to permit a rational jury to

infer the exchange's existence from the fact that the acts were

taken coincident to the receipt of the benefits.

But the evidence suffices to show that the stream of

benefits in question was hardly de minimis. The benefits consisted

of at least eight to ten meals paid for by Hernández and his

associates, including meals at Morton's Steak House, Los Gauchos,

5To the extent that Ivonne challenges the sufficiency of the evidence supporting her conviction on Count Seven on the ground that she did not have the requisite intent, cf. Sawyer, 85 F.3d at 725 (holding that a conviction of a public official for honest services wire fraud "cannot stand where the conduct does not actually deprive the public of its right to her honest services" and where the official through her conduct "is not shown to intend that [deprivation]"), we do not see how such an intent could not be present if Ivonne agreed to deprive the people of her honest services by agreeing to accept a bribe from Hernández in exchange for things of value provided to Ivonne by Hernández. Thus, in addressing whether the evidence suffices to show that such an agreement was present, we are addressing, too, whether the evidence suffices to show that Ivonne had the requisite intent.

- 18 - Devino Vocado, and Peleyo; Hernández's assistance with the

appointment of Sonia Barreto ("Barreto"), AAA's Purchasing

Director, whom Ivonne wanted appointed; an invitation from

Hernández to attend a closed political fundraiser with Barreto;

and a Montblanc pen from Hernández.6

The cases on which Ivonne relies in urging us to hold

that the benefits were too paltry also do not help her. They hold

only that the benefits received in those cases were sufficient to

support a conviction. They do not hold that benefits must be as

substantial as those benefits were to do so. See, e.g., Martínez,

994 F.3d at 8; Woodward, 149 F.3d at 52-53; United States v. Ganim,

510 F.3d 134, 138 (2d Cir. 2007); United States v. Kemp, 500 F.3d

257, 265 n.5, 266-68 (3d Cir. 2007); United States v. Whitfield,

590 F.3d 325, 336 (5th Cir. 2009); United States v. Abbey, 560

F.3d 513, 515 (6th Cir. 2009). Moreover, the government points to

cases that hold that benefits quite comparable to those at issue

here do suffice. See Woodward, 149 F.3d at 52-53 (affirming a

conviction for honest services wire fraud involving the receipt of

meals, rounds of golf, and other entertainment); Sawyer, 85 F.3d

at 731 (finding same evidence sufficient for proper conviction);

see also United States v. Ring, 706 F.3d 460, 464 (D.C. Cir. 2013)

(affirming a lobbyist's conviction for honest services wire fraud

6 Hernández paid a total of $1,665 for two Montblanc pens, only one of which he gave to Ivonne.

- 19 - involving the giving of "dinners, drinks, travel, concerts, and

sporting events").

Ivonne next contends that a rational jury could not infer

the required exchange occurred because her actions with respect to

the 3CG proposal (even if "official acts" under McDonnell)

constituted standard practice done in the "usual course of AAA

business." Specifically, Ivonne contends that -- prior to the

opening of a formal bidding process, which is when she was

assisting 3CG with its proposal -- it was "standard practice" to

"provid[e] information to persons preparing proposals for

submission;" to make "suggestions [to such persons] geared toward

making [their] proposals more in line with" AAA; and "[r]efer[]"

such proposals "to Sanabria for his evaluation."

But the record supportably shows that, despite 3CG's

limited experience in the relevant area, Ivonne helped 3CG develop

an initial proposal and provided 3CG with access to information

that it otherwise would not have had in an effort to bolster its

revised proposal when Sanabria deemed the initial one deficient.

The record then goes on supportably to show that she responded to

Sanabria's criticism of the revised proposal's reliance on a six-

year-old report by stating that the use of the report in the

proposal was "at [her] request[,]" while explaining that the report

constituted a "1 million dollar expense for the AAA that we never

- 20 - executed," that she "want[ed] to turn that expense into an

investment," and that "[i]n 6 years we did NOT implement the

recommendation and now we are going to make the change."

Ivonne points to no evidence that establishes (or even

suggests) that assistance of this quite substantial sort from

someone in her position within AAA was standard practice, let alone

that it was standard practice for a proposal from a potential

bidder with as thin a track record as 3CG's. Rather, she merely

asserts in conclusory fashion that the assistance of the kind that

she provided to this company's proposal was standard fare. Thus,

we do not see how this line of argument can support her sufficiency

challenge. See United States v. Ridolfi, 768 F.3d 57, 61 (1st

Cir. 2014) (stating that a jury may reach a guilty verdict by

drawing "reasonable, common sense inferences" from the evidence).

c.

Ivonne also contends that her conviction on Count Seven

cannot stand because the evidence presented at trial did not

suffice to show that, at the time Ivonne accepted the stream of

benefits she allegedly accepted, she understood that she was

accepting those things in exchange for official acts specifically

regarding the 3CG purchasing-website contract proposal. Ivonne

relies here on the Second Circuit's opinion in United States v.

Silver, 948 F.3d 538 (2d Cir. 2020).

- 21 - There, the Second Circuit reviewed jury instructions

that allowed for an honest services conviction so long as the

evidence showed that, in exchange for a thing of value, a public

official "promise[d] to take some or any official action beneficial

to the payor as the opportunity to do so arises." Id. at 552-53.

Silver held that the instructions were problematic because the

evidence must suffice to show that, in exchange for a thing of

value, the public official "promise[d] to take official action on

a particular question or matter as the opportunity to influence

that same question or matter arises." Id. at 553.

There is a question of whether Ivonne's challenge on

this score was preserved below. There is a question, too, of

whether we should adopt the Silver standard in this Circuit. But,

even if we were to resolve both questions in Ivonne's favor, this

challenge would fail.

Testimony at trial suffices to show that during the same

period that Ivonne was allegedly receiving benefits from

Hernández, she discussed the purchasing-website contract proposal

with him. And the record also supportably shows that, during this

same period, Ivonne took the various actions described above in

support of that proposal. From this evidence, a rational jury

could conclude that Ivonne promised to take the actions that she

allegedly took with respect to the 3CG purchasing-website proposal

in exchange for the stream of benefits bestowed upon her by

- 22 - Hernández. And nothing in Silver itself purports to contradict

that assessment of the record, as it concerned only a challenge to

jury instructions that did not require a finding of there having

been any promise to take official actions with respect to any

specific matter at all. We thus reject Ivonne's contention that

her conviction on Count Seven must be reversed under the standard

set forth under Silver, as that standard merely requires that the

evidence presented at trial show that a defendant promise, in

exchange for benefits, to take action on a specific matter rather

than promising "to take some or any official action beneficial to

the payor as the opportunity to do so arises," id. at 552-53.

d.

Ivonne separately argues that even if she took actions

with respect to the 3CG purchasing-website contract proposal in

exchange for things of value, such actions were not "official acts"

under the standard set forth by the Supreme Court in McDonnell.

But, as we will explain, the evidence suffices to support the

conclusion that Ivonne committed an "official act" by "using h[er]

official position to provide advice to" Sanabria, "knowing or

intending that such advice [would] form the basis for" Sanabria's

"official act" to recommend or decline to recommend the 3CG

contract to AAA leadership. See McDonnell, 579 U.S. at 572.

As we have explained, the evidence supports the

conclusion that when Sanabria, in evaluating 3CG's revised

- 23 - purchasing-website contract proposal, criticized the proposal's

reliance on a six-year-old report, Ivonne responded that the use

of the report in the proposal was "at [her] request." The evidence

further shows that Ivonne went on to explain to Sanabria that the

report constituted a "1 million dollar expense for the AAA that we

never executed" and that she "want[ed] to turn that expense into

an investment." And the record also supportably shows that she

told Sanabria at that time that "[i]n 6 years we did NOT implement

the recommendation and now we are going to make the change."

A rational jury could infer from this evidence that

Ivonne's defense of the revised proposal constituted "advice" that

Ivonne gave to Sanabria with the "inten[t]" that it would "form

the basis for" his decision regarding the revised proposal and was

thus an "official act." See id. And this conclusion is further

buttressed by evidence that supportably shows that her defense of

the proposal's reliance on the six-year-old report in the face of

Sanabria's expressed concerns followed not only her referrals of

both 3CG's initial and revised drafts of the proposal to Sanabria

to review7 but also her instruction to Sanabria to send information

to 3CG to assist with the proposals. Thus, we reject Ivonne's

contention that the evidence did not suffice to show that she

7 The evidence, particularly Sanabria's testimony, supportably shows that Ivonne and Barreto, who had also been in contact with Hernández and his affiliates at 3CG, referred the initial proposal.

- 24 - exchanged an "official act" related to the 3CG purchasing-website

contract proposal for things of value.

e.

from the evidence that she "crossed the line" between accepting

things of value "with the understanding that the giver was simply

seeking to cultivate a business relationship" and accepting

"things of value with the intent -- and agreement -- to perform

official acts to favor the interests of the giver." On this front,

she argues that Hernández and his partners did not testify to

"anything on the stand indicative of an unlawful quid-pro-quo

agreement between them and [Ivonne]" and instead merely expressed

an interest in "establishing relationships and obtaining access to

present business proposals." But insofar as Ivonne means to argue,

based on that testimony, that a rational jury could not infer that

she understood Hernández to be asking her to take any official

action in exchange for the stream of benefits, we cannot agree.

As discussed, what the evidence shows about the proximate timing

of Hernández's provision of those benefits relative to his

discussions with Ivonne about the 3CG proposal suffices to support

such an inference.

f.

Ivonne next contends that a rational jury could not find

the requisite exchange occurred because the evidence shows that

- 25 - the actions that she took in support of the 3CG proposal were taken

to benefit AAA. But, as Ivonne herself concedes, the contention

that she "acted for the benefit of AAA" is not "in itself" a

sufficient "defense" to her honest services wire fraud charge.

And the fact that a rational jury could find on this record that

Ivonne believed that the issuance of a purchasing-website contract

would benefit AAA does not preclude a finding that Ivonne's

favorable treatment of 3CG's purchasing-website contract proposal

was nonetheless given in exchange for the benefits bestowed upon

Ivonne by Hernández. Such treatment, if undertaken in exchange

for things of value, deprives the public of its right to Ivonne's

honest services, even if the issuance of a purchasing website

contract would ultimately benefit AAA. See Sawyer, 85 F.3d at

724-25. Thus, this last aspect of her sufficiency challenge to

her conviction on Count Seven also fails.

3.

We next address Ivonne's challenge to the sufficiency of

the evidence supporting her conviction on Count Eight, which is

also for honest services wire fraud under §§ 1343 and 1346. As

with Count Seven, the charge against Ivonne for honest services

wire fraud on Count Eight is predicated on her allegedly having

deprived the people of the Commonwealth of Puerto Rico of her

honest services through a quid-pro-quo agreement with Hernández.

See Skilling v. United States, 561 U.S. 358, 408-12 (2010).

- 26 - Specifically, Count Eight turns on Ivonne's having received from

Hernández and his associates the same things of value at issue in

Count Seven in exchange for Ivonne's allegedly taking an "official

act" related to AAA's participation in a job fair operated by a

company associated with Hernández.

The government contends that the inference that such an

exchange occurred is supported by the circumstantial evidence

regarding the benefits that Ivonne allegedly received and the two

emails sent to Ivonne regarding the job fair. But, unlike in Count

Seven, the record does not supportably show that Ivonne took or

planned to take any actions with respect to the job fair, even

though it supportably shows that she received the stream of

benefits from Hernández, as described above, at some point before

she allegedly received the emails regarding AAA's participation in

the fair.

The record does supportably show that on October 31,

2013, Hernández sent an email to Ivonne forwarding a message from

López that requested that AAA participate in a job fair hosted by

ADL and operated by a company associated with Hernández. It

further supportably shows that, on November 4, 2013, Hernández

sent an email to Barreto, copying Ivonne, that included two

attachments containing information about the layout of the job

fair and the AAA booth at the job fair. But it does not contain

any evidence that Ivonne actually read and responded to the emails

- 27 - sent to her or took or planned to take any particular action

related to AAA's participation in the job fair. And without

evidence that Ivonne took or planned to take any action with

respect to the job fair, a jury could not have drawn any non-

speculative inference that Ivonne took an official act in exchange

for something of value. See United States v. Guzman-Ortiz, 975

F.3d 43, 55 (1st Cir. 2020). We thus must reverse her conviction

on Count Eight due to a lack of sufficient evidence.

4.

We come to the same conclusion with respect to Ivonne's

sufficiency challenge to her conviction on Count Nine, which was

also for honest services wire fraud under §§ 1343 and 1346. This

count was predicated on the same activity that formed the basis

for Count Eight. The only difference between the two counts is

that Count Eight was predicated on Ivonne having received the first

email related to the job fair mentioned above, whereas Count Nine

was predicated on her having received the second email related to

the job fair mentioned above.

The parties agree that, as with Count Eight, Ivonne's

conviction on Count Nine may stand only if the evidence presented

at trial was sufficient to support a conclusion beyond a reasonable

doubt by a rational jury that Ivonne agreed to take an official

act related to the job fair described above in exchange for the

benefits allegedly bestowed upon her by Hernández. Because, as we

- 28 - explained in the context of Count Eight, a rational jury could not

come to such a conclusion without a reasonable doubt, Ivonne's

conviction on Count Nine must be reversed.

We turn now to Ivonne's challenges to her conspiracy

convictions on Counts One and Six for violating § 371 and § 1349,

respectively. To convict someone under § 371 or § 1349, "the

government must furnish sufficient evidence of three essential

elements: an agreement, the unlawful objective of the agreement,

and an overt act in furtherance of the agreement." United States

v. Floyd, 740 F.3d 22, 28 (1st Cir. 2014) (citation omitted). "It

also must establish 'the knowing participation of each defendant

in [the] conspiracy.'" Id. (alteration in original) (citation

omitted). And the government must establish two kinds of intent

with respect to the conspiracy: "intent to agree and intent to

commit the substantive offense," United States v. Bristol-Mártir,

570 F.3d 29, 39 (1st Cir. 2009) (citation omitted).

We begin by reviewing Ivonne's challenge to the broader

of the two conspiracies for which she was convicted, namely the

conspiracy alleged under Count One. Reviewing Ivonne's challenge

to the sufficiency of the evidence for that conspiracy conviction

de novo, see Millán-Machuca, 991 F.3d at 17, we reject it. But we

agree with her contention that this conviction must be vacated on

the ground that only a narrower conspiracy than the one charged in

- 29 - the indictment was proved, such that a prejudicial variance

resulted. We then review de novo Ivonne's challenge on sufficiency

grounds to her conspiracy conviction on Count Six, which we reject

as meritless.8

The indictment under Count One charged Ivonne,

Hernández, Barreto, López, and Javier A. Muñiz Alvarez, a

businessman who lived in Puerto Rico, with conspiracy to commit

honest services wire fraud or federal program bribery, in violation

of § 371. The indictment stated with respect to this count that

those charged

did knowingly combine, conspire, confederate, and agree with each other and others . . . to devise and intend to devise a scheme and artifice to defraud and deprive the United States and the citizens of Puerto Rico of the honest services from public officials [López], [Barreto] and [Ivonne], in violation of 18 U.S.C. §§ 1343 and 1346.

In support of this charge, the indictment alleged that

the defendants named in Count One engaged in a number of fraudulent

schemes. The schemes included each of the ones alleged to underlie

the substantive federal program bribery and honest services wire

fraud counts with which Ivonne was charged, including the WIA-

8It is not clear that Ivonne preserved all the challenges to her conspiracy convictions that she brings on appeal. Nevertheless, she contends that de novo review is the proper standard of review, and the government does not contest this, so we review her challenges under this standard.

- 30 - funded job training scheme, the 3CG website contracting proposal

scheme, and the job fair scheme. Additionally, Count One alleged

that Ivonne, at Hernández's request, helped facilitate payments to

one of AAA's contractors, IA Mech Chem ("IAMC"). IAMC was owned

by Ramon Crespo ("Crespo"), who was affiliated with Hernández.

Ivonne contends that the evidence does not suffice to

show that she committed the charged offense. But she concedes

that for her to be convicted of this count the evidence need not

be sufficient to support the conclusion beyond a reasonable doubt

that she participated in the broad conspiracy charged to commit

federal program bribery or honest services wire fraud via all of

the individual fraudulent schemes alleged under Count One. Rather,

she accepts that so long as the evidence suffices to show her

participation in a narrower conspiracy to carry out any of those

schemes, the conviction may not be reversed on sufficiency grounds.

She contends, however, that the evidence is not sufficient even to

support the conclusion that she so conspired with respect to any

of the individual fraudulent schemes alleged under Count One. And

that is so, she argues, because "[t]here was no evidentiary basis

on which a reasonable jury could conclude beyond a reasonable doubt

that [she] knew of the existence of [any of those] conspirac[ies],

that she agreed to participate in [them], or that she intended to

commit honest services fraud or federal program bribery." See

- 31 - Bristol-Mártir, 570 F.3d at 39; United States v. Lanza-Vázquez,

799 F.3d 134, 146 (1st Cir. 2015).

Ivonne is right that, for the reasons we explained above

with respect to Counts Eight and Nine, the evidence does not

suffice to permit a rational jury to find that Ivonne intended to

commit honest services fraud or federal program bribery based on

the evidence regarding the job fair. In addition, as we have

explained, the evidence is insufficient to show there was federal

program bribery. And that being so, we see no independent basis

for concluding that nonetheless the evidence sufficed to support

a rational jury to find that Ivonne conspired to commit that

offense.

But, for the reasons that we described above with respect

to Count Seven, the evidence does suffice to support the finding

that Ivonne agreed to take official acts with respect to the 3CG

purchasing-website contract proposal in exchange for the stream of

benefits from Hernández. And evidence of such an agreement

suffices to support Ivonne's conviction for honest services wire

fraud. Yet Ivonne does not argue -- and we do not see how she

could argue -- that she could have entered into that agreement

without having the requisite intent to commit honest services wire

fraud. See Bristol-Mártir, 570 F.3d at 39.

Moreover, the evidence suffices to show that Ivonne,

Hernández, and Barreto -- whom Hernández allegedly helped get

- 32 - appointed, in part by paying her tax debt -- met to discuss the

3CG proposal and both Ivonne and Barreto provided Hernández with

information about AAA to assist with the 3CG purchasing-website

proposal. And Ivonne does not argue that she could have entered

into the agreement with Hernández described above regarding that

proposal without knowing of and agreeing to participate in a

conspiracy with Hernández and Barreto to commit honest services

wire fraud. See Lanza-Vázquez, 799 F.3d at 146. Thus, there is

no merit to her sufficiency challenge to her conviction on this

count.

Ivonne does separately contend that, even if her

conviction on Count One need not be reversed on sufficiency

grounds, the evidence presented at trial does not suffice to prove

the "single conspiracy" alleged in that count of the indictment

insofar as that count alleged that Ivonne conspired with all the

other defendants named under that count. Thus, Ivonne contends

that her conviction on Count One at least resulted in a variance

because any conspiracy proved was narrower than the one charged.9

9 Ivonne did not contend in her opening brief that a variance would result if the evidence supported the conclusion that she conspired to commit honest services wire fraud or federal program bribery with all of the coconspirators charged under Count One through some but not all of the fraudulent schemes described under Count One. And, although she contends as much in her Reply, she does not explain how such a variance would be prejudicial. The

- 33 - She then goes on to argue that the variance was prejudicial and

therefore her conviction on Count One must at least be vacated.

We agree.

We have explained that "the mere fact that a central

person (the 'hub' of a wheel) is involved in multiple conspiracies

(the wheel's 'spokes') does not mean that a defendant . . . who

participated in a spoke conspiracy may be convicted of

participating in an overarching conspiracy encompassing the entire

wheel." United States v. Monserrate-Valentín, 729 F.3d 31, 44–45

(1st Cir. 2013) (alteration and citation omitted). Rather, "[t]he

government must also produce 'evidence from which a jury could

reasonably infer that the spoke defendant knew about and agreed to

join any larger overarching conspiracy.'" Id. at 45; see Kemp,

500 F.3d at 291; United States v. Fernandez, 892 F.2d 976, 986

(5th Cir. 1989).

To determine whether a defendant knew about and agreed

to join a single, broad conspiracy, we look to three factors: "(1)

the existence of a common goal, (2) overlap among the activities'

participants, and (3) interdependence among the participants."

United States v. Ciresi, 697 F.3d 19, 26 (1st Cir. 2012); see

United States v. Abdelaziz, 68 F.4th 1, 42 (1st Cir. 2023). "[A]n

argument is therefore waived. United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.").

- 34 - agreement to conspire may be express or tacit and can be proven

using direct or circumstantial evidence." Abdelaziz, 68 F.4th at

43 (citing United States v. Glenn, 828 F.2d 855, 857-58 (1st Cir.

1987)). But such an agreement requires, at a minimum, that the

spokes know the other spokes are spokes. See Monserrate-Valentín,

729 F.3d at 44–45; United States v. Dellosantos, 649 F.3d 109, 115

(1st Cir. 2011) ("[I]t is therefore essential to determine what

kind of agreement or understanding existed as to each defendant.")

(alteration in original) (citation omitted); Glenn, 828 F.2d at

857 (finding a "tacit agreement" between a drug distributor and a

"distant supplier," like a smuggler, can exist "at least when the

distributor knows that the smuggler probably exists, that

distributing drugs tends to help the smuggler, and that the

smuggler's contribution to the success of the entire enterprise is

likely needed if the distributor is to achieve his own more

immediate objective"); see also United States v. Chandler, 388

F.3d 796, 806 (11th Cir. 2004) ("Since no one can be said to have

agreed to a conspiracy that they do not know exists, proof of

knowledge of the overall scheme is critical to a finding of

conspiratorial intent.").

The parties agree that Count One alleges a hub-and-spoke

conspiracy with Hernández at the hub of a wheel that has two

spokes, one involving Ivonne and Barreto, and the other involving

López. Ivonne contends that, even if the evidence were sufficient

- 35 - to support the conclusion that she and López were spokes on such

a wheel with Hernández at the center, such that Ivonne and López

each conspired individually with Hernández to commit honest

services wire fraud or federal program bribery, the evidence does

not support the conclusion that Ivonne knew about and agreed to

join the broader conspiracy alleged under Count One insofar as it

encompassed not only Ivonne but also López. We agree.

The record contains no evidence -- and the government

identifies none -- that López had any involvement whatsoever in

the 3CG scheme, let alone an unlawful one. That scheme alleged

only that Ivonne agreed to take official acts with respect to the

3CG purchasing-website proposal in exchange for the stream of

benefits from Hernández.

Insofar as the evidence pertaining to the IAMC payment

scheme suffices to support Ivonne's conviction under § 371 -- a

proposition on which we decline to rule -- the record also contains

no evidence that López had any involvement in that scheme. That

scheme allegedly involved Ivonne's efforts, at Hernández's

request, to have employees within AAA issue payments to IAMC. But

the government does not dispute that there is no evidence that

López ever assisted with that scheme or even communicated with

Ivonne or anyone else about that scheme. Thus, here, too, the

evidence pertaining to this scheme does not suffice to show that

- 36 - the conspiracy in which Ivonne participated was as broad as the

conspiracy charged in Count One.

Moreover, for the reasons described above, the evidence

pertaining to the job-fair scheme cannot support Ivonne's

conviction under § 371. Thus, we need not consider whether the

evidence pertaining to the job fair suffices to show that Ivonne

knew that López was engaged in a conspiracy with respect to that

scheme.

That leaves the WIA-funded job training scheme. But

insofar as the evidence regarding that scheme suffices to support

Ivonne's conviction for conspiracy to commit honest services wire

fraud under § 371 -- a proposition on which we also decline to

rule -- the record does not support the conclusion that Ivonne and

López conspired in the requisite sense with respect to that scheme.

It is true that the evidence pertaining to that scheme

supports the conclusion that, while receiving a stream of benefits

from Hernández, Ivonne and López both desired for the WIA-funded

job training contract to be signed; worked together to make that

happen; and depended on one another for it to happen, insofar as

both AAA and ADL needed to agree on the transfer of WIA funds from

ADL to AAA in order for the contract to be possible. But, even if

the evidence could support the conclusion that Ivonne and López

were each conspiring to commit honest services wire fraud with

Hernández by agreeing to take official acts with respect to the

- 37 - WIA-funded job training scheme in exchange for the stream of

benefits that each received, the evidence does not suffice to

support a non-speculative inference that Ivonne and López knew

that the other was receiving a stream of benefits from Hernández

or that the other's interest in advancing the WIA-funded job

training scheme was in any way unlawful. Indeed, the record

contains no evidence to show that either was even aware that the

other was receiving any such benefit from him at all.10

Thus, we do not see how a rational jury could find on

this record beyond a reasonable doubt that Ivonne knew that López

was a spoke in a conspiracy, rather than an official lawfully

working on a proposal with another agency official and an outside

contractor. And without knowing more than that about López, Ivonne

could not have agreed to participate in the broad conspiracy

charged involving her.11 See Monserrate-Valentín, 729 F.3d at 44–

45.

10 The government does contend that an invitation to Hernández's birthday party and a Don Omar concert were benefits that were among the "stream of benefits" that Ivonne received from Hernández in exchange for her agreement to take official acts. And the government further alleges that both Ivonne and López attended Hernández's birthday party and that concert. But, insofar as the government means to argue that the mere fact that both Ivonne and López were present at this event supports a non- speculative inference that either knew that the other was receiving a stream of benefits from Hernández and was taking an "official act" in exchange, we disagree. We note that, in Martínez, we rejected López's sufficiency 11

challenge to her conviction on Count One. Martínez, 994 F.3d at

- 38 - Thus, insofar as the evidence suffices to convict Ivonne

under § 371 at all, such a conviction involved a conspiracy that

did not involve all the spokes in the broad conspiracy alleged in

the indictment. And so, we agree with Ivonne that a variance arose

with respect to Count One, which means we also must address whether

Ivonne is right that the variance was prejudicial. See Kotteakos

v. United States, 328 U.S. 750, 755-57 (1946).

When a government tries a defendant for a single,

overarching conspiracy, "a defendant may suffer from evidentiary

spillover, which is the transference of guilt to a defendant

involved in one conspiracy from evidence incriminating defendants

in another conspiracy in which the particular defendant was not

involved." Monserrate-Valentín, 729 F.3d at 50 (citation and

internal quotations omitted).

We agree with Ivonne that such transference could have

occurred in the present case. See id. Because the government

tried Ivonne for participating in a single, broad conspiracy

9-11. That challenge focused on the contention that the evidence did not suffice to show that López's actions with respect to the WIA-funded job training scheme were "illegal, or even irregular." Id. at 10. Although López also argued that there was no evidence "she was even aware of" the schemes involving 3CG and the IAMC payments, López did not challenge her conviction on Count One on the ground that she also did not know Ivonne was engaged in an unlawful quid-pro-quo involving the WIA-funded job training scheme and thus that López could not have entered into a broad conspiracy with Ivonne involving the WIA-funded job training scheme. Id. at 10-11. Therefore, in rejecting López's challenge to Count One, we had no reason to decide that latter issue.

- 39 - involving López, the jury that convicted Ivonne was exposed to

evidence regarding López's awarding of government contracts to

Hernández's companies; expensive gifts and champagne lunches that

Hernández and his associates allegedly bestowed upon López;

Hernández's efforts to have López confirmed as head of ADL; and

criticism of López's dealings with Hernández by a former ADL

employee. Moreover, the government presented the evidence against

Ivonne and López in chronological order rather than presenting the

case against each defendant separately. Cf. Kemp, 500 F.3d at 292

(finding no effect on defendant's substantial rights where the

government "rigorously segmented its proofs" and "the presentation

against the defendants . . . proceeded seriatim") (citation

omitted). Such evidence presented as it was could have prejudiced

Ivonne.

The government's argument to the contrary is not

persuasive. The government contends that any "evidentiary

spillover" is not an issue where, as here, "ample evidence was

presented against each individual defendant based on each

defendant's actions and statements." United States v. Brandon, 17

F.3d 409, 450-51 (1st Cir. 1994). But the evidence presented by

the government that Ivonne committed conspiracy to commit honest

services wire fraud under Count One included only circumstantial

evidence about a limited stream of benefits bestowed on Ivonne by

Hernández during the same period that Ivonne allegedly took a

- 40 - series of actions that benefitted Hernández and his associates.

While this evidence is sufficient to support Ivonne's conviction

under Count One, it is not sufficiently "ample" to eliminate the

risk that the jury based its conviction of Ivonne on evidence of

an unrelated offense. See id.

Moreover, although the government is right that the

Supreme Court has found before that charging defendants with a

single, broad conspiracy involving the "joinder of two

conspiracies" can be harmless error, the Court did so based on the

"circumstances of [the] case" before it and expressly declined to

rule on how such a variance would affect a "different case." See

Berger v. United States, 295 U.S. 78, 83-84 (1935); see also

Kotteakos, 328 U.S. at 766. And here, in light of the extensive

evidence presented against López in a way that did not clearly

delineate between the evidence against López and the evidence

against Ivonne, we find that the presentation of evidence against

López was prejudicial to Ivonne. We thus find that Ivonne's

conviction for conspiracy to commit honest services wire fraud

under Count One of the indictment could only have been based on a

narrower conspiracy than the one charged and trying her for the

broader conspiracy was prejudicial. See Kotteakos, 328 U.S. at

755-57.

- 41 - 3.

We next turn to Ivonne's challenge to the sufficiency of

the evidence supporting her conviction on Count Six. Under this

count, the indictment stated that Ivonne, Hernández, and Barreto

did knowingly combine, conspire, confederate, and agree with each other and others . . . to devise and intend to devise a scheme and artifice to defraud and deprive the United States and the citizens of Puerto Rico of the honest services from public officials [Barreto] and [Ivonne], in violation of [§ 1349].

The indictment also "re-alleged and incorporated" the allegations

contained in Count One of the indictment.

Ivonne does not contest that the evidence suffices to

support her conviction on Count Six if the evidence suffices to

show that she conspired with the others named in the conspiracy to

carry out any of the underlying schemes involving federal program

bribery or honest services wire fraud. But she contends there was

no such evidence. She argues that the evidence did not support

the conclusion that she "knew of the existence of the conspiracy,

that she agreed to participate in it, or that she intended to

commit honest services fraud or federal program bribery." See

Bristol-Mártir, 570 F.3d at 39.

As support for this argument, Ivonne draws on her

challenges to the underlying substantive offenses. She contends

that because the evidence does not suffice to show that she engaged

- 42 - in any unlawful quid-pro-quo or took an "official act" with respect

to any of the fraudulent schemes alleged in the indictment, the

evidence does not suffice to show that she "knew of" or "agreed to

participate in" any conspiracy or had the requisite intent with

respect to the substantive offenses underlying it.

But, for the reasons we have already described, the

evidence pertaining to the 3CG purchasing-website proposal

suffices to show that Ivonne intended to commit honest services

wire fraud and that she knew of and agreed to participate in a

conspiracy with Hernández and Barreto in order to do so. See

Bristol-Mártir, 570 F.3d at 39; Lanza-Vázquez, 799 F.3d at 146;

Floyd, 740 F.3d at 28. And Ivonne does not dispute that, insofar

as the evidence suffices to show that she conspired with Hernández

and Barreto to commit honest services wire fraud, the evidence

also sufficed to convict her on Count Six. We thus conclude that

the evidence sufficed to convict Ivonne of conspiracy to commit

honest services wire fraud under § 1349 and accordingly decline to

reverse her conviction on Count Six.

We turn finally to Ivonne and Marielis's challenges to

the sufficiency of the evidence supporting their convictions under

Count Seventeen for "aid[ing] and abet[ing] each other" in the

commission of extortion, in violation of "18 [U.S.C.] Section

1951(a) and 2." Reviewing these challenges de novo, see

- 43 - Millán-Machuca, 991 F.3d at 17, we conclude that the evidence was

sufficient to support Marielis's conviction on Count Seventeen,

but not Ivonne's.

To convict a defendant of aiding and abetting extortion,

the government must prove that a "principal committed" extortion

and that the defendant "associated [her]self with the venture,

participated in it as something [s]he wished to bring about, and

sought by h[er] actions to make it succeed." United States v.

Loder, 23 F.3d 586, 590-91 (1st Cir. 1994) (citation omitted). A

defendant is guilty of extortion if she "obtain[ed] . . . property

from another, with his consent, induced by wrongful use of actual

or threatened force, violence, or fear, or under color of official

right." 18 U.S.C. § 1951(b)(2). "With respect to the use of fear,

'[w]hat is required is evidence that the defendant knowingly and

willfully created or instilled fear, or used or exploited existing

fear with the specific purpose of inducing another to part with

property.'" United States v. Burhoe, 871 F.3d 1, 9 (1st Cir. 2017)

(quoting United States v. Coppola, 671 F.3d 220, 241 (2d Cir.

2012)).

The indictment charged specifically that "[Ivonne]

utilized her position at AAA in order to enable her sister,

[Marielis], to obtain property not due to [Marielis], . . . induced

through the wrongful use of a fear of economic loss." On this

- 44 - score, the parties do not dispute that the evidence put forth by

the government supports the following factual conclusions.

First, Marielis met Crespo in the mid-1990s, while

Marielis was working in the same building as Crespo's mother, whom

she also knew. In 2012, Crespo ran into Marielis, and they started

talking. While they were talking, Crespo mentioned to Marielis

that he did contracted work for AAA and sometimes he got paid

quickly for that work but sometimes it took a while for him to get

paid. Marielis asked Crespo if he knew who was responsible for

issuing the AAA payments, and Crespo responded that Ivonne was

responsible. Marielis then told Crespo that Ivonne was her sister.

Crespo later did work for Marielis on some apartments

she owned and told her she owed him roughly $2,500.12 Marielis

responded by making a call in front of Crespo to someone she

referred to as "Bonsi." Marielis told "Bonsi" that Marielis knew

Crespo's mother and "asked if [IAMC's] check could be issued."

Marielis then told Crespo that they were "squared off" such that,

in exchange for the issuance of the money he was owed by AAA, he

could no longer invoice her for the work he had done on her

apartments. Crespo testified that at this point, he thought he

12The District Court stated that the amount was $20,000, but at trial Crespo said that the amount was roughly "2,500, 2,450 dollars." He explained that "[i]t was 2,000 for the guys, and the incinerator, well, they charged 450, 500 dollars for you to dump it there."

- 45 - was "screwed" because if she had "the power to issue a check in

five minutes, [she] also ha[d] the power to stop it."

Soon after this phone call, Marielis began telling

Crespo weekly to go pick up payments from AAA. Marielis met him

at the bank where he went to pick up the check and said to him

"you know, talking as a friend . . . you see how we . . . deal

with this and how we can help with this. And for this, five or

ten percent is collected to do this." Crespo testified that he

interpreted this statement to mean that Marielis was demanding

payment for her "expedit[ing] the payment of the [AAA] checks."

Crespo paid Marielis what she requested, thinking "if you can issue

the check, you can stop the check." He testified that he "was

afraid that [his] payments . . . would stop" if he did not pay.

Crespo continued to pay Marielis each time he collected

the expedited AAA payments. When Crespo paid Marielis $2,000

instead of the $7,000 that she demanded, he did not receive a check

for almost a month. He then called Marielis and paid the balance.

Within AAA, Ivonne "played an active role" in expediting

AAA's payments to IAMC. She contacted and ordered AAA staff

members on numerous occasions to review IAMC invoices, find

funding, and pay IAMC, and she followed up when the payments were

not made in sufficient amounts. She also demanded that such

payments be made quickly. During the period that AAA was

expediting IAMC's payment, cash deposits totaling tens of

- 46 - thousands of dollars appeared in both Marielis's and Ivonne's bank

accounts.

The government contends that this evidence supports

Marielis's conviction on Count Seventeen because the evidence

supports the conclusion that Marielis induced in Crespo the fear

of delayed, reduced, and absent payments in exchange for Crespo's

cancellation of Marielis's debt to him and in exchange for a

percentage of his AAA payments. The government contends that the

evidence presented at trial supports Ivonne's conviction on Count

Seventeen because the evidence supports the conclusion that Ivonne

aided and abetted Marielis in using such fear to obtain such

property from Crespo.

Ivonne and Marielis respond that the evidence is not

sufficient to support the conclusion that Marielis used a "fear"

of "economic loss" to obtain property from Crespo. On this score,

they first argue that not receiving a payment in advance of the

normal time the payment would otherwise be issued is not an

"economic loss" but merely the absence of a potential benefit.

Thus, they contend, even if Marielis had instilled in Crespo a

fear that he would not receive early payments if he did not pay

her, such a fear was not a fear of economic "loss." And, they

argue, the evidence does not support the conclusion that Marielis

instilled in Crespo the fear of anything other than the absence of

early payments.

- 47 - Even if we agreed with Marielis that the absence of an

early payment was not an economic "loss," see United States v.

Rivera Rangel, 396 F.3d 476, 483 (1st Cir. 2005) ("[T]he loss

feared must be 'a particular economic loss, not merely the loss of

a potential benefit.'" (citation omitted)); United States v. Capo,

817 F.2d 947, 951 (2d Cir. 1987) (en banc), the evidence was

sufficient to support the conclusion that Marielis used Crespo's

reasonable fear of delayed, reduced, or cancelled payments to

secure his property. In particular, the evidence was sufficient

to support the conclusion that -- though Crespo had never asked

Marielis to help expedite his payments or help him in any other

way with his AAA payments -- Marielis called "Bonsi" in front of

Crespo, asked for Crespo's AAA money to be paid, and then told

Crespo he could no longer charge Marielis the roughly $2,500 she

owed him. Marielis's demonstration of influence in this regard,

which was not tied to a specific request from Crespo, supports a

finding by a rational jury that Marielis intended to communicate

to Crespo that she controlled his payments -- including their

issuing on time and in the full amount -- and that a fear on

Crespo's part that Marielis would have his AAA payments delayed,

reduced, or cancelled was reasonable.13 See Rivera Rangel, 396

This case is distinguishable from the Second Circuit's 13

ruling in Capo. There, the Second Circuit held that the evidence

- 48 - F.3d at 483. And Crespo's delayed, reduced, or cancelled payments

would constitute an "economic loss" under our precedents. See

United States v. Vázquez-Botet, 532 F.3d 37, 61 (1st Cir. 2008)

(holding that economic losses can include "delay[ed]" payments for

contracted work); United States v. Hathaway, 534 F.2d 386, 395 &

n.6 (1st Cir. 1976) ("[A] narrow perception of . . . economic loss

is misdirected. . . . The proper focus . . . is whether the

victim's interest, economic or otherwise, was sufficient to give

rise to fear.").

was not sufficient to support the defendants' extortion convictions, which were based on the defendants' bypassing of hiring procedures in order to give preferential treatment to job candidates who paid the defendants. Capo, 817 F.3d at 949-51. Unlike Ivonne and Marielis, however, the alleged extortion victims came to the defendants in search of preferential treatment, and the defendants did not make a show of their influence and demand payment in the way that Marielis did with Crespo. Id. And, unlike Crespo, those who paid the defendants in Capo testified that they did not fear adverse consequences if they did not pay. Id. at 952. Thus, in Capo, a rational jury could have concluded only that the people who paid the defendants for jobs were "willing participants seeking to improve their chances" of obtaining jobs, id., whereas in the present case, a jury could have found that Marielis's debt was cancelled because Crespo feared unusually delayed, reduced, or cancelled payments. This case is also distinguishable from United States v. Garcia, 907 F.2d 380 (2d Cir. 1990). There, the Second Circuit reversed an extortion conviction of a congressman who pressured an officer at a corporation to hire his wife in exchange for help with the corporation's government contracts. Id. at 382-83. But in Garcia, the officer did not testify that he perceived anything the congressman said to him as a threat to cause economic loss, rather than merely the withholding of preferential treatment with respect to the government contracts of the officer's corporation. Id. at 383-84.

- 49 - Marielis challenges the conclusion that she used a fear

of "economic loss" in the form of delayed, reduced, or cancelled

payments by contending that Crespo never told her "that his

business would suffer any hardship for late or lack of payments"

and that the record does not "show that Marielis had any reason to

believe that Crespo had any economic fear in that regard."

Specifically, she argues, Crespo did not tell her "about IAMC['s]

need to collect from AAA to be able to pay his employees and

suppliers."

To the extent Marielis is contending that she did not

know that Crespo feared an "economic loss" because she did not

know the specific impact that "late or lack of payments" would

have on Crespo, we are not persuaded. For Marielis to "use" the

fear of "economic loss" to secure property from Crespo, she need

not be aware that Crespo would suffer "hardship" from the loss,

nor need she be aware of exactly how the loss would impact IAMC or

how extensive the loss would be. See Hathaway, 534 F.2d at 395 &

n.6. Rather, she need only have used Crespo's reasonable fear of

some economic loss to secure Crespo's property. See id.; Rivera

Rangel, 396 F.3d at 483. And, to the extent Marielis means to

assert that she did not know Crespo would have the requisite

"economic fear" given that she did not know of the hardship he

would suffer, a reasonable jury could have inferred that Marielis

did know of and use that fear in light of the evidence of her show

- 50 - of influence over Crespo's payments and his subsequent

relinquishing of his property.

Ivonne's conviction on Count Seventeen, however,

requires reversal. For Ivonne to have "associated [her]self with

[Marielis's extortion] venture, participated in it as something

[s]he wished to bring about, and sought by h[er] actions to make

it succeed," see Loder, 23 F.3d at 590-91, she needs to have been

aware that it was occurring. That means that she needs to have

been aware that Marielis was using a "fear" of "economic loss" to

obtain property from Crespo.

But the evidence in the record is not sufficient to

support such a conclusion beyond a reasonable doubt. That is so

even if the record could support the conclusion that the person

Marielis referred to as "Bonsi" on the phone was Ivonne -- given

that name's similarity to "Bonnie," the nickname for Ivonne

identified in the Presentence Investigation Report -- and that

Ivonne instructed AAA employees to issue IAMC's payments quickly.

Such evidence, on its own, suffices to show only that Ivonne knew

that Marielis wanted the payments issued because, as Marielis

allegedly said on the phone to "Bonsi," Marielis "knew Crespo's

mother." Such evidence does not show that Ivonne knew that

Marielis made that call in front of Crespo or made any other show

of influence in front of him. Thus, such evidence, on its own,

does not suffice to support the conclusion that Ivonne was aware

- 51 - that Marielis was inducing "fear" of "economic loss" in Crespo to

obtain his property. See Guzman-Ortiz, 975 F.3d at 55.

Moreover, the evidence in the record is not sufficient

to tie to Crespo the cash deposits allegedly placed in Ivonne's

bank account during the time when Marielis was allegedly extorting

Crespo. This is so even though the evidence supports the

conclusion that Ivonne made eight cash deposits in two different

accounts over the course of a month while Marielis was allegedly

extorting Crespo; that Ivonne and Marielis sometimes made these

deposits "on the same day at the same branch" or "at different

branches on the same day;" and that the cash deposits were

sometimes "made by the same account holder at different branches

on the same day." Indeed, even if such evidence were sufficient

to support the conclusion that Ivonne and Marielis were attempting

to obscure the source of these funds, this evidence does not

suffice to tie these funds to Crespo.

But even if the evidence regarding the cash deposits did

somehow suffice to support the inference that these deposits were

from Crespo, such a conclusion still would not suffice to support

the further conclusion that Ivonne was aware that these funds were

provided to her and Marielis because Crespo feared an "economic

loss" if he did not pay them. Indeed, to come to such a conclusion

would require inferring that Ivonne knew that Crespo provided the

money; that he did so in response to the issuance of his AAA

- 52 - payments; and that that response was out of fear of "economic loss"

in the form of the absence of such payments. But such inference

stacking does not suffice to support a conclusion beyond a

reasonable doubt. See id.; Abdelaziz, 68 F.4th at 50.

Without evidence sufficing to support the conclusion

that Ivonne was aware that Marielis was "us[ing]" "fear" of

"economic loss" to obtain Crespo's property, Ivonne could not have

been aware that an extortion was taking place. See Loder, 23 F.3d

at 590-91. Thus, we reverse Ivonne's conviction on Count Seventeen

but decline to reverse Marielis's.

IV.

For the foregoing reasons, we vacate in part and reverse

in part.

- 53 -