United States v. Gonzalez

Opinion

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT ____________________

No. 98-40670 ____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

VICTOR GONZALEZ,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court for the Southern District of Texas (M-98-CR-28) _________________________________________________________________

August 18, 1999

Before SMITH, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:1

Victor Gonzalez appeals on three principal bases his 18 U.S.C.

§ 666 bribery conviction for referring prisoners to a bail

bondsman; but, because of his failure to properly preserve the

points in district court, two of those bases are subject to very

limited review. We AFFIRM.

I.

This case concerns prisoner-referral payments by bail bondsman

Homero Longoria to several officials in Starr County, Texas,

1 Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

- 1 - including Gonzalez, a jail administrator. Following monitoring of

Longoria’s office telephone, including several calls with Gonzalez,

Longoria cooperated with the FBI, from mid-1997 to early 1998, by

wearing a recording device and allowing a concealed video camera in

his office. He was told not to alter his bribe-payment behavior,

and to report it to the FBI.

In four incidents recorded by video and audio, Longoria

appeared to pay Gonzalez for prisoner referrals. As discussed

infra, although indicted for payments received for each of the four

incidents, Gonzalez was convicted only on the first two described

below (Garcia and Salinas incidents).

In late November 1997, Longoria paid Gonzalez $300, stating,

with Gonzalez’s evident agreement, that it was for prisoner Daniel

Garcia, whom Longoria and Gonzalez had discussed earlier that day.

And, late that December, Gonzalez explained to Longoria that a

prisoner known as “El Gallo” was Eugenio Salinas and indicated he

(Gonzalez) could approve his bond. (In fact, the approval was

beyond his authority.) In early January 1998, Longoria paid

Gonzalez $300 and told him, again with Gonzalez’s evident

agreement, that it was for approving (with the sheriff) Salinas’

bond. In addition, Gonzalez met with a prisoner in early November

1997 prior to receiving a payment from Longoria, and spoke to

Longoria in early December 1997 about three other prisoners prior

to another payment.

- 2 - Gonzalez was indicted in January 1998 on one count of

conspiracy to commit bribery and four substantive bribery counts,

in violation of 18 U.S.C. § 666. He testified that Longoria’s

payments simply repaid money he had loaned Longoria. A jury

convicted Gonzalez on the Garcia and Salinas bribery counts, but

acquitted him on the conspiracy count and the other two bribery

counts.

Gonzalez’s new trial motion, premised on the court’s refusal

to give an entrapment instruction, was denied. Gonzalez was

sentenced, inter alia, to one year and one day in prison.

II.

A.

Among other things, 18 U.S.C. § 666(a)(1)(B) prohibits agents

of certain organizations (per § 666(b), those receiving over

$10,000 of federal funds within a year) from corruptly accepting

anything of value intending to be influenced or rewarded in

connection with a transaction involving over $5,000 in value.

Gonzalez makes several challenges to his indictment and the

sufficiency of the evidence.

Because he did not properly contest the indictment in district

court and did not move for acquittal at the appropriate time

(Gonzalez so moved at the close of the Government’s case-in-chief,

but not at the close of all the evidence or post-verdict), our

review is very narrow. Concerning the indictment, because Gonzalez

- 3 - claims no prejudice, we will reverse only if, read with “maximum

liberality”, the indictment is “so defective that under any

reasonable construction, it fails to charge the offense for which

the defendant is convicted”. United States v. Fitzgerald, 89 F.3d

218, 221 (5th Cir. 1996). Likewise, for evidentiary sufficiency,

we determine only whether the conviction resulted in a manifest

miscarriage of justice. E.g., United States v. Resio-Trejo, 45

F.3d 907, 910 n.6 (5th Cir. 1995).

1.

Gonzalez contends that referring prisoners to bail bondsmen

for money is not illegal in his county; and that, as a result, he

did not act “corruptly” under § 666. He reasons that his conduct

is legal because TEX. CIV. STAT. art. 2372p-3(15), which criminalizes

referral of bond business in counties where bondsmen must be

licensed, does not include low-population counties without bail

bond boards, such as his.

Gonzalez offers no basis why his conduct, even assuming it was

permitted under art. 2372p-3(15), does not nevertheless violate the

general Texas bribery statute, TEX. PENAL CODE § 36.02(a)(1)

(criminalizing, inter alia, acceptance of benefit in exchange for

decision as public servant). In any event, for purposes of our

limited review, Gonzalez acted “corruptly”; the indictment and

evidence were sufficient in this regard.

2.

- 4 - Because the Starr County Sheriff’s Department, Gonzalez’s

employer, receives money (far more than the statutory $10,000

annual requirement) to house federal prisoners, it meets, certainly

for purposes of our limited review, § 666(b)’s requirement of a

connection between federal funds and bribery. As the Department’s

agent, Gonzalez therefore fell within § 666(a)(1)(B).

Gonzalez, however, urges requiring a closer relationship

between funding and bribery than that on the face of the statute.

He maintains that corrupt referral of state prisoners, even when

housed in a facility built with, and otherwise receiving, federal

funds, lies outside § 666, claiming that the statute extends only

to activities receiving federal funds, and not to all federally-

funded organizations.

Where bribery involves the requisite sort of employee of an

organization receiving sufficient federal funds, “the direct

involvement of federal funds in a transaction is not an essential

element of bribery under section 666(b)”, United States v.

Westmoreland, 841 F.2d 572, 578 (5th Cir. 1988) (emphasis added);

the statute’s language is “plain and unambiguous” and “eliminate[s]

the need to trace the flow of federal monies”, id. at 576, 577.

Gonzalez acknowledges Westmoreland, but seeks a requirement

somewhere between that on the face of the statute (that bribery

involve an agent of an organization receiving requisite federal

funds) and the “direct connection” rejected in Westmoreland.

- 5 - However, to require a connection between bribery and federally-

funded activities beyond a connection to federal-fund-receiving

organizations would require the very fund-tracing Westmoreland

disavows. And, certainly for purposes of our very narrow review,

Westmoreland also sufficiently answers any question left open by

United States v. Salinas, 118 S.Ct 469, 474 (1998) (“whether the

statute requires some other kind of connection between a bribe and

the expenditure of federal funds” less stringent than that

satisfied when bribery involves federal prisoners for whom funding

is made).2

3.

Gonzalez highlights an evident typographical error in his

indictment, which describes his substantive bribery counts under a

general “Counts Two Through Five” heading, but then refers to “the

[prisoners] listed in counts two through three”. The indictment

then lists four individual prisoners and dates, numbered 2 through

5, followed by the description “All in violation of [18 U.S.C. §]

666(a)(1)(B)”.

In context, it is obvious that counts 4 and 5 name prisoners

whom Gonzalez referred for money at particular times, and that “two

2 Gonzalez asserts in passing, without adequately briefing the issue, that local bribery unrelated to federally-funded activities lies outside constitutionally proper federal power. Because inadequate briefing constitutes a waiver, e.g., Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir. 1994), we do not address this issue.

- 6 - through three” should have instead been “two through five”.

Needless to say, the claim does not pass muster.

4.

Gonzalez does not challenge evidentiary sufficiency for one of

the two counts on which he was convicted (count 3, the Garcia

referral); but, for count 5, the Salinas referral, he claims that

explaining the identity of “El Gallo” only gave Longoria publicly-

available information.

Gonzalez omits, however, his recorded statement that he would

get Salinas’ bond approved and his recorded agreement with Longoria

that the $300 payment concerned Salinas. In short, there is no

manifest miscarriage of justice.

B.

Gonzalez claims plain error in the district court’s not

declaring a mistrial — Gonzalez did not request one — after it

sustained his objections to questioning and the Government’s

closing argument. The limited standard advanced by Gonzalez is

correct; because he received all the relief he requested, we review

only for plain error. United States v. Carter, 953 F.2d 1449, 1466

(5th Cir. 1992).

After Gonzalez testified that Longoria merely repaid a loan,

rather than rewarding prisoner referrals, the Government asked

these questions:

- 7 - Q. When you got arrested by these agents, FBI agents, did you tell them, “Hey, this is a mistake. This is just a big loan. I was getting loan payment back from him.” You never told them that, did you?

A. Why would I tell them?

Q. Well, they walked in and accused you of accepting four bribe payments, they took you to jail, you went to court. You never told the agents one time in January that that money you received was a loan payment, did you?

A. Why would I have to tell them? I’m explaining it right now, sir.

Q. My question is, did you ever tell the agents before today that the money you received on that tape was a loan payment?

A. They didn’t ask me and I didn’t tell them that.

Q. You were given the opportunity to talk to the agents, were you not?

A. There was no need for me to talk.

Q. Did you ever tell –

A. No, sir.

Q. – before you went to court in McAllen, “Judge, this is a loan payment. I don’t know what’s going on here.” You never said that before, did you?”

A. I’m explaining it right now.

Q. So for the first time –

Gonzalez’s lawyer finally objected (but without stating a basis);

the Court immediately responded, “Sustained. Sustained”.

- 8 - Notwithstanding the foregoing ruling, the Government’s closing

argument included these comments:

How does he have the unmitigated gall to come in here, take the witness stand and tell you all, “Oh, I was discussing my loan payments.” If it was loan payments, when the FBI went out and picked him up in January, what should have been the first thing out of his mouth? “Wait a minute, why are you arresting me? I didn’t take any bribes. This is a loan payment.” He never said that —

Gonzalez objected: “He’s making an improper comment on his

Constitutional right not to say anything, and that is improper”.

The Court instructed the jury: “Remember my instructions. If the

attorneys make reference to the law and it’s not consistent with

that which I gave you, you are to disregard what the attorneys say

to you”. Accordingly, the Government quickly reversed course,

stating:

And he has a Constitutional right not to say anything. And we don’t have a problem with that. But what’s so curious, this so-called loan, did you see any promissory notes, anything in writing, any other witnesses? No. There were none because there are none, the loan never occurred.

(Emphasis added.)

In general, under Doyle v. Ohio, 426 U.S. 610, 611 (1976), and

its progeny, the Government may not use post-Miranda-warning

silence to impeach an exculpatory story. However, a mistrial is

required only where a prosecutor’s comment has a “clear effect” on

the jury. E.g., United States v. Robles-Vertiz, 155 F.3d 725, 731

- 9 - (5th Cir. 1998). In any event, as noted, Gonzalez did not request

a mistrial.

We find no plain error. The Government’s closing explicitly

disavows any inference from Gonzalez’s silence; moreover, its

language implicitly agrees with Gonzalez’s earlier statements under

cross-examination that he had no need to tell his story upon

arrest. Considering the denial of any inference from the silence,

the prior evocation of testimony on the subject was harmless. It

is not obvious that the comments, so diluted, had a clear effect on

the jury.

Those cases in which this court has found plain error in the

Government’s invitation to a jury to infer recent fabrication from

post-arrest silence, such as United States v. Harp, 536 F.2d 601

(5th Cir. 1976) (cited by Chapman v. United States, 547 F.2d 1240,

1248 (5th Cir. 1977)); United States v. Johnson, 558 F.2d 1225 (5th

Cir. 1977); and United States v. Meneses-Davila, 580 F.2d 888 (5th

Cir. 1978); all involve far more pointed commentary on post-arrest

silence.

In Harp, the Government’s closing compared the defendant’s

story to “Santa Claus and Easter Bunny and the Good Fairy and all

of that”, asked five rhetorical questions wondering why no

statement was given, and restated three versions of what the

defendant should have said post-arrest were his story at trial

true. Harp, 536 F.2d at 602-03 n.2. Johnson involved four

- 10 - separate non-cooperating actions by the defendant upon arrest,

elicited from two witnesses. Johnson, 558 F.2d at 1226-28. As

well, it applies a later-repudiated standard on the prejudice of

Doyle error. See Carter, 953 F.2d at 1466 n.7. Meneses-Davila

also involved four separate Doyle violations (three witnesses and

in closing) during a one-day trial; the compressed nature of the

trial was critical to the court’s conclusion. Meneses-Davila, 580

F.2d at 895 & n.12.

By contrast, Gonzalez’s trial lasted three days; both sets of

references to post-arrest silence were interrupted by objections,

which were sustained; and the second set led to the Government’s

disavowal of the forbidden inference of recent fabrication.

C.

The district court refused Gonzalez’s entrapment instruction,

and, as noted, denied his new trial motion premised on that

refusal. Gonzalez’s appellate challenge to that refusal is

reviewed for abuse of discretion. E.g., United States v.

Pankhurst, 118 F.3d 345, 350 (5th Cir. 1997). The instruction is

required upon a defendant’s prima facie showing that he was (1)

induced to commit a criminal act by a government agent, and (2) not

disposed to commit the act without the inducement. E.g., United

States v. Thompson, 130 F.3d 676, 689 (5th Cir. 1997).

No evidence of government inducement was presented. Longoria

testified that, upon cooperating with the FBI, he behaved just as

- 11 - he had earlier; that he was never told to pursue Gonzalez, and did

not at that point attempt to involve him. Because government

inducement is the “creative activity of law enforcement officials

in spurring an individual to crime”, United States v. Bradfield,

113 F.3d 515, 522 (5th Cir. 1997), only if Longoria’s actions

differed following his cooperation may they arguably constitute

such inducement; otherwise they are simply not “creative activity”.

Gonzalez introduced no evidence to rebut Longoria’s testimony

in a way making inducement more plausible. Rather than suggesting

that Longoria’s behavior affected him in late 1997 in a manner

distinct from how it had previously, Gonzalez’s version of events

— that Longoria simply repaid a loan made several months before any

of the bribes in question — contradicts entrapment. According to

Gonzalez, the claimed prior loan to Longoria, not Longoria’s

behavior, spurred his actions in receiving the money; and, Gonzalez

denied having anything to do with the relevant prisoners.

Moreover, Longoria’s payments on each of the four recorded

occasions followed Gonzalez’s critical role (as inferred from the

evidence) in referring the prisoners.

III.

Accordingly, the judgment is

AFFIRMED.

- 12 -