United States v. Lopez-Martinez

994 F.3d 1

• Court: Court of Appeals for the First Circuit
• Decided: April 7, 2021
• Docket: 17-1924P
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 17-1924 UNITED STATES OF AMERICA,

Appellee,

v.

SALLY LÓPEZ MARTÍNEZ,

Defendant, Appellant.

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

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

Before

Barron and Selya, Circuit Judges, and Katzmann, Judge.*

Linda Backiel for appellant. Thomas F. Klumper, Assistant United States Attorney, Senior Appellate Counsel, with whom W. Stephen Muldrow, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.

* Of the United States Court of International Trade, sitting by designation. April 7, 2021 BARRON, Circuit Judge. Sally López Martínez ("López")

and nine others were indicted in 2015 in the District of Puerto

Rico on various charges relating to public corruption in the

Commonwealth. The twenty-five-count indictment included six

counts that charged López with various federal offenses pertaining

to her actions as an official in the executive branch of the

government of Puerto Rico. López ultimately was tried jointly on

those six counts with three other individuals who also were charged

in the indictment, one of whom was charged in some of the same

counts as López as well as in separate counts and two of whom were

charged only in separate counts. López was convicted of all six

counts that she faced. She now argues that her convictions were

not supported by sufficient evidence. She also challenges them on

a variety of other grounds, including several relating to the fact

that she was tried jointly. We conclude that the evidence in the

record does suffice to support her convictions, but we agree with

her contention that the District Court's refusal to sever her trial

from that of one of her codefendants was an abuse of discretion.

In consequence, we hold that each of her convictions must be

vacated.

I.

The following facts are not in dispute. In January of

2013, López was nominated by the then-Governor of Puerto Rico,

Alejandro García Padilla ("García"), to the position of

- 3 - administrator of the Puerto Rico Workforce Development

Administration ("ADL"). She held the position of interim

administrator at ADL until she was confirmed for the permanent

post in June 2013.

During López's tenure as the interim administrator and

then as the administrator, ADL held job fairs to bring together

unemployed or soon-to-be-unemployed workers and prospective

employers. López's responsibilities at the helm of ADL included

coordinating the job fairs.

Government contractors carried out much of the work

involved in holding the fairs. During López's time running the

agency, ADL awarded contracts relating to the fairs to entities

affiliated with Anaudi Hernández Pérez ("Hernández"). Hernández

had been a fundraiser for García's gubernatorial campaign and had

helped bring about López's nomination to be the administrator of

ADL. He also provided various gifts to López while she was running

ADL and while that agency was awarding contracts to entities that

were affiliated with him. During roughly the same time period,

both the Puerto Rico Aqueduct and Sewer Authority ("AAA")1 and the

Puerto Rico House of Representatives awarded contracts to entities

affiliated with Hernández.

AAA is the Spanish-language acronym for the Aqueduct and 1

Sewer Authority, which is occasionally referred to by its English- language acronym, PRASA, in the record.

- 4 - In November 2014, the Federal Bureau of Investigation

raided the offices of 3 Comm Global, which was an entity affiliated

with Hernández. Thereafter, on December 2, 2015, López, Hernández,

and a number of others were charged in a twenty-five-count

indictment in the District of Puerto Rico.

The indictment included charges on various federal

offenses relating to public corruption involving the awarding of

contracts to entities affiliated with Hernández by ADL, AAA, and

the Puerto Rico House of Representatives. López was charged in

six of the indictment's counts. Hernández was charged in sixteen

of them. The six counts that charged López were for:

(1) conspiracy in violation of 18 U.S.C. § 371 to commit honest

services wire fraud in violation of 18 U.S.C. §§ 1343 and 1346 or

federal programs bribery in violation of 18 U.S.C. § 666 (Count

One); (2) conspiracy to commit honest services wire fraud in

violation of 18 U.S.C. § 1349 (Count Two); (3) honest services

wire fraud in violation of 18 U.S.C. §§ 1343 and 1346 (Counts

Three, Four, and Five); and (4) receipt of a bribe by an agent of

an organization receiving federal funds in violation of 18 U.S.C.

§ 666(a)(1)(B) (Count Eleven).

The indictment charged eight individuals in addition to

López and Hernández. Two were business partners of Hernández --

Javier Muñiz Alvarez ("Muñiz"), a de facto part-owner of JM

Professional & Training Group, Inc. ("JMP"); and Carlos Luna Cruz,

- 5 - who was the face of JMP and signed all of the firm's contracts.

Three were employees of the Puerto Rico House of Representatives

-- Xavier González Calderón ("González"), the Administrator for

the House; Víctor Burgos Cotto ("Burgos"), the Director of

Technology; and Glenn Rivera Pizarro ("Rivera"), Special Assistant

for Administration. Two more worked for AAA -- Ivonne Falcón

Nieves ("Ivonne Falcón") was AAA's Vice President and Sonia Barreto

Colón ("Barreto") was the agency's Purchasing Director. The last

of the eight others named in the indictment was Marielis Falcón

Nieves ("Marielis Falcón"), Ivonne Falcón's sister, who was not a

public official.

In February of 2016, Muñiz filed a motion under Rule 142

and Rule 8(b)3 of the Federal Rules of Criminal Procedure. He

contended under Rule 8(b) that the counts that he faced had been

improperly joined with those of others charged in the indictment,

though he did not contend that the counts that charged López were

improperly joined with his counts. He also contended under Rule

2Rule 14(a) provides: "If the joinder of offenses or defendants in an indictment . . . appears to prejudice a defendant or the government, the court may order separate trials of counts, sever the defendants' trials, or provide any other relief that justice requires." 3Rule 8(b) provides: "The indictment . . . may charge 2 or more defendants if they are alleged to have participated in the same act or transaction, or in the same series of acts or transactions, constituting an offense or offenses. The defendants may be charged in one or more counts together or separately. All defendants need not be charged in each count."

- 6 - 14 that his trial should be severed from that of his codefendants,

including López.

López moved to join Muñiz's motion, though seemingly

only with respect to his claim of error concerning improper joinder

pursuant to Rule 8(b). The District Court ultimately permitted

her to do so. It also permitted Barreto, Marielis Falcón, and

Rivera to join Muñiz's motion.

While Muñiz's motion was pending, Hernández pleaded

guilty on February 18, 2016, to all the charges against him except

for those set forth in Counts Sixteen (which alleged extortion in

violation of 18 U.S.C. § 1951) and Eighteen (which alleged money

laundering in violation of 18 U.S.C. § 1956(h)). Hernández was

not tried, however, on either of those counts.

Then, on April 21, 2016, the District Court denied the

pending motion by Muñiz across the board. The District Court

concluded that there was no improper joinder under Rule 8(b),

because, taking the allegations in the indictment to be true, "the

acts charged [were] part of an over-arching conspiracy" common to

all the counts, the purpose of which "was for the defendants to

utilize the public officials in positions within the government of

Puerto Rico to benefit and enrich themselves through bribery."

The District Court also rejected the request for severance under

Rule 14 because it "d[id] not clear the high hurdle set in the

- 7 - caselaw," and noted that any risk of spillover prejudice from

conducting a single trial could be cured by jury instructions.

Over the next few months, five of the remaining

codefendants pleaded guilty. That left only López, the Falcón

sisters, and Rivera to be tried together.

Following the denial of the severance motion that Muñiz

had first filed, López and the three other remaining defendants

repeatedly moved for separate trials, including even after their

joint trial had begun. These motions, too, were denied. After

twenty-nine days of trial, each of these four codefendants --

including López -- was found guilty on all the charges that he or

she faced.

Judgment entered against López on August 31, 2017. She

filed a timely notice of appeal on September 13, 2017. See Fed.

R. App. P. 4(b)(1)(A).

II.

One of the grounds on which López challenges her

convictions is that they were based on insufficient evidence.4 We

begin our analysis of her challenges to her convictions on that

4 In addition to these sufficiency challenges and the severance and misjoinder challenges we address below, López also brings challenges to the jury instructions, to various evidentiary rulings by the District Court, and to her sentence. Because we ultimately conclude that she prevails on her severance claim with respect to Rivera, and that we consequently must remand for a new trial on all of her convictions, we do not reach these other arguments.

- 8 - ground, because, insofar as the sufficiency challenges that she

brings have merit, they would preclude her from being retried for

the underlying charges. See United States v. Godin, 534 F.3d 51,

61 (1st Cir. 2008).

In considering a challenge to a conviction based on the

sufficiency of the evidence to support it, "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)). We look to "the

totality of the evidence, both direct and circumstantial." Id.

(quoting United States v. Czubinski, 106 F.3d 1069, 1073 (1st Cir.

1997)). We will reverse the conviction only if no reasonable juror

could find the defendant guilty beyond a reasonable doubt of all

the elements of the offense of conviction. See United States v.

Alejandro-Montañez, 778 F.3d 352, 357 (1st Cir. 2015). Our review

is de novo. United States v. Negrón-Sostre, 790 F.3d 295, 307

(1st Cir. 2015).

We begin by considering López's challenges to the

sufficiency of the evidence as to five of her six convictions --

namely, her convictions on Counts Three through Five and Count

Eleven, each of which was for a substantive offense, and on Count

Two, which was for a conspiracy offense. After explaining why we

- 9 - conclude that the evidence suffices to support each of those five

convictions, we then take up her challenge to the sufficiency of

the evidence as to her one remaining conviction, which was on Count

One and which like Count Two also concerned a conspiracy offense.

There, too, we reject her contention that the evidence does not

suffice to support the conviction.

A.

To convict López on Count Eleven, which was for federal

programs bribery in violation of 18 U.S.C. § 666, the government

was required to prove, among other things, that López accepted a

thing of value while "intending to be influenced" by it to perform

an official act. 18 U.S.C. § 666(a)(1)(B). To convict her on

Counts Three, Four, and Five, which were for honest services wire

fraud in violation of 18 U.S.C. §§ 1343 and 1346, the government

was required to prove, among other things, that she acted "with

the specific intent to defraud." Woodward, 149 F.3d at 54 (quoting

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

mental state may be established by proving the defendant had a

"bribery-like, corrupt intent" to deprive the public of honest

services. Sawyer, 85 F.3d at 730.

There remains López's conviction on Count Two, in which

she was charged with conspiring to commit honest services wire

fraud in violation of 18 U.S.C. § 1349. The government does not

argue, however, that this conviction, which is for a conspiracy

- 10 - offense, could stand even if the evidence at trial is insufficient

to establish that López had the intent required to prove she

committed the predicate offense, which is honest services wire

fraud.

Thus, for López's convictions on each of these five

counts, including the one that charged her with committing a

conspiracy offense, the government accepts that it was required to

prove beyond a reasonable doubt the following: (1) that López

accepted various benefits from Hernández with the intent to be

influenced by them in the performance of her official duties

running ADL; and (2) that in performing those duties she steered

contracts from ADL to companies affiliated with Hernández in return

for the benefits that he provided to her.

López, for her part, concedes that her sufficiency

challenges to these five convictions fail if the evidence suffices

to prove that she received the things of value that Hernández

provided to her with the intention to be influenced by them to use

her authority at ADL to steer the contracts at issue to the

entities affiliated with him. Moreover, we do not understand López

to be disputing that the government could prove that she had such

an intent based on what is known as a "stream of benefits" theory,

by which the government may "prove an agreement for the ongoing

stream of benefits rather than . . . for stand-alone bribes" and

so is not required to "link the value of the government business

- 11 - conferred to any particular benefit received by the official."

United States v. Lopez-Cotto, 884 F.3d 1, 8 (1st Cir. 2018); see

id. at 8 n.5 (noting the applicability of the "stream of benefits"

theory to honest services fraud). Nor, for that matter, do we

understand López to be disputing that the government could prove

the charges set forth in these counts by showing that she received

the stream of benefits in return for taking a series of official

acts rather than any official act in particular. See United

States v. McDonough, 727 F.3d 143, 154 (1st Cir. 2013) ("Bribery

can be accomplished through an ongoing course of conduct, so long

as the 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." (alterations and quotation marks omitted)

(quoting United States v. Ganim, 510 F.3d 134, 149 (2d Cir.

2007))); id. at 152-53 ("It 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." (quoting United

States v. Terry, 707 F.3d 607, 612 (6th Cir. 2013))); Ganim, 510

F.3d at 147 (Sotomayor, J.) ("Once the quid pro quo has been

established . . . the specific transactions comprising the illegal

scheme need not match up this for that. While it frequently will

be true that particular bribes or extorted payments are linked at

the time of the corrupt agreement to particular official acts,

that will not always be the case -- for example, because the

- 12 - opportunity to undertake the requested act has not arisen, or

because the payment is one of a series to ensure an ongoing

commitment to perform acts to further the payor's interests.");

United States v. Jennings, 160 F.3d 1006, 1014 (4th Cir. 1998)

("[T]he intended exchange in bribery can be 'this for these' or

'these for these,' not just 'this for that.'"); see also

Skilling v. United States, 561 U.S. 358, 367, 412 (2010)

(interpreting §§ 1343 and 1346 as a "prohibition on fraudulently

depriving another of one's honest services by accepting bribes or

kickbacks").

Thus, López's sufficiency challenges to her convictions

on these five counts turn on what the record shows about her intent

to be influenced in the performance of her duties running ADL by

the stream of benefits that she received from Hernández. We

therefore now turn to a review of what the record shows on that

score.

López is right that there was no direct evidence

introduced at trial that demonstrates that she had the requisite

intent in the relevant respect. But, it is clear that a rational

juror could supportably find on this record that López, while

running ADL, signed agency contracts and amendments to agency

contracts with entities affiliated with Hernández and his business

partners that collectively were worth more than $1,000,000. It is

equally clear that a rational juror could supportably find on this

- 13 - record that, during the period of time in which ADL awarded the

contracts at issue to those entities, Hernández, who had helped

bring about López's nomination to be administrator, bought her

meals, champagne, shoes, three designer purses, a Mont Blanc book,

and an iPhone and met and corresponded with her regularly.

Moreover, López does not dispute that, as to each of these

convictions, the evidence suffices to support a finding that

Hernández possessed the requisite corrupt intent in providing this

stream of benefits to her in order to obtain the contracts from

ADL.

López nevertheless contends that the evidence did not

suffice to support the necessary finding regarding her intent with

respect to any of these five convictions, because she argues that

the record reveals that there are innocent explanations for the

date of receipt of some or all of the things of value that Hernández

provided to her. For example, she argues that the iPhone she

received from Hernández on February 19, 2014, was a Valentine's

Day gift, and thus does not provide a basis for drawing an

inference about her intent in approving a contract amendment worth

$659,500 on February 26, 2014. She makes similar arguments as to

the timing of the other gifts that she received from Hernández.

But, López's focus on whether the temporal proximity of

the receipt of the gifts to the awarding of the contracts supports

the necessary inference regarding her intent is misplaced. Even

- 14 - if she were right that the evidence of timing in and of itself

could not suffice to support such an inference about her intent (a

position about which we take no view), the record contains evidence

from which a rational juror could supportably find that López used

her position as the head of ADL to afford preferential treatment

to Hernández-affiliated entities during the time period in which

he provided her with the stream of benefits. For example, Heidi

Rosado Nieves ("Rosado"), an ADL employee who worked directly for

López in 2013 and 2014, testified that invoices for entities

affiliated with Hernández were processed more quickly than those

for other vendors and that the directive to provide "preferential

treatment was coming from . . . López." Rosado further testified

that another employee of ADL informed her that "you don't give

[Hernández] instructions" and that she discovered over time that

Hernández was "untouchable" within the agency.

Nor was Rosado's testimony about this favoritism merely

of a general character. Rosado testified more specifically about

an incident in which she refused to approve the funds for a JMP

contract because it was overpriced and López informed her that she

had to sign the invoice because López had reached an off-book,

unspecified agreement with JMP to provide "additional things." In

addition, Rosado testified that another one of JMP's contracts was

amended on multiple occasions, without going through the proper

- 15 - legal channels at ADL, even though the firm had failed to submit

the follow-up data it was contractually obligated to provide.

This evidence of preferential treatment, when combined

with the evidence of the timing of the receipt of the benefits and

the awarding of the contracts, suffices to permit a rational juror

to reject the more benign account of López's state of mind in

receiving those benefits that she contends is the only one that a

rational juror could credit. The evidence as a whole instead

permits the reasonable inference that there was an agreement

between López and Hernández to provide him and the entities

affiliated with him the favorable treatment just described with

respect to the ADL contracts at issue in return for the benefits

that she received from him while running that agency. As a result,

a rational juror could supportably reject López's contention that

the benefits Hernández provided were "merely a reward for some

future act that [she would] take . . . or for a past act that [s]he

ha[d] already taken." United States v. Sun-Diamond Growers of

Cal., 526 U.S. 398, 405 (1999).

The inference that there was an agreement between López

and Hernández regarding the steering of ADL contracts in return

for the stream of benefits would, to be sure, be based on

circumstantial rather than direct evidence. But, that feature of

the evidence does not make it insufficient. "[E]vidence of a

corrupt agreement . . . is usually circumstantial, because bribes

- 16 - are seldom accompanied by written contracts, receipts or public

declarations of intentions." McDonough, 727 F.3d at 153 (quoting

United States v. Friedman, 854 F.2d 535, 554 (2d Cir. 1988)); see

also United States v. Wright, 665 F.3d 560, 569 (3d Cir. 2012)

("Parties to a bribery scheme rarely reduce their intent to words,

but the law does not require that."). We thus reject López's

sufficiency challenges to these five convictions.

B.

That brings us, then, to López's sufficiency challenge

to her sole remaining conviction, which is for Count One. That

count charged her with conspiracy under 18 U.S.C. § 371 to commit

honest services wire fraud in violation of 18 U.S.C. §§ 1343 and

1346 or federal programs bribery in violation of 18 U.S.C. § 666.

The count alleged that López was a participant in a conspiracy

with Hernández, Muñiz, Barreto, and Ivonne Falcón to "utilize the

public officials' positions within the government of the

Commonwealth of Puerto Rico to benefit and enrich themselves

through bribery."

López does not dispute that if the evidence suffices to

show that, as the count alleges, she conspired with the individuals

named above to steer an AAA contract funded by ADL to an entity

affiliated with Hernández in return for his providing a stream of

benefits to López, Ivonne Falcón, and Barreto, then the evidence

- 17 - would suffice to sustain this conviction. Accordingly, we will

now consider what the record shows in that regard.

López does not dispute that the evidence in the record

suffices to establish that Hernández was providing a stream of

benefits to each of Ivonne Falcón and Barreto, who were both

officials at AAA, in exchange for their providing entities

affiliated with him preferential treatment in the bidding process

for contracts awarded by that agency. She also does not dispute

that the evidence in the record suffices to prove that those

benefits were in fact conferred and that Ivonne Falcón and Barreto

accepted them with the requisite intent to be influenced in taking

official acts. Furthermore, López does not dispute either that,

during this same time span, she also received from Hernández a

stream of benefits, which we described above in connection with

her convictions on the five other counts at issue, or that the

evidence suffices to show he provided those benefits to her to

influence her in his favor in her performance of her official

duties at ADL.

Nonetheless, López contends that the evidence does not

suffice to show that she participated in the alleged scheme to

steer the ADL-funded AAA contract to an entity affiliated with

Hernández because her conduct in relation to AAA's award of that

contract was not "illegal, or even irregular" in any respect. We

are not persuaded.

- 18 - To start, Hernández testified at trial about a meeting

that he had with Ivonne Falcón, Barreto, and Eder Ortiz ("Ortiz"),

an electoral commissioner and former senator, in which Ortiz came

up with a scheme to have ADL provide funding to AAA that AAA then

could use to award a contract to train new employees of AAA to a

company affiliated with Hernández, Links Group. In addition, the

evidence at trial supportably shows that this meeting occurred

while Hernández was providing a stream of benefits not only to

Ivonne Falcón and Barreto but also to López herself. And,

Hernández testified at trial that he and Ortiz presented López

with the scheme that had been discussed at the earlier meeting and

"she said yes, she was interested, since for the agency it would

be a creation for new jobs."

What is more, there also was testimony at trial that

López subsequently met with all the alleged coconspirators to

discuss a transfer of funds from ADL to AAA so that AAA could fund

the contract with Hernández's company. In particular, Hernández

testified that he met with López, Ivonne Falcón, Barreto, Ortiz,

and Muñiz to "talk[] about the possibility of seeing how . . .

[they] could make this project work."

Indeed, López acknowledges that the evidence supportably

shows that, following that meeting, she provided a sample letter

that had been used in the past to obtain approval for inter-agency

use of funds to help facilitate this plan to have AAA retain Links

- 19 - Group. And, further, the government introduced evidence at trial

that supportably shows that López intervened to ensure that ADL

would continue to fund AAA's contract with Links Group as planned,

even in the face of concerns having been raised by her staff.

Specifically, López's aide at ADL, Rosado, testified that even

though the contract between AAA and Links Group at issue was

"really difficult" to audit and put the agency at "risk" of losing

money, López insisted that the contract would remain in effect,

that Links Group would continue to provide the services in

question, and that the subject was not up for debate.

Thus, we see no merit to López's contention that there

was "no proof that she was even aware of . . . Hernández'[s] other

schemes" involving AAA and no proof that she acted corruptly in

connection with the ADL-funded AAA contract at issue. Rosado's

testimony provides support for a reasonable juror to find that

López took unusual steps to intervene to ensure that the ADL

funding would be provided to AAA and that she did so after she had

met with Hernández, Ortiz, Muñiz, Ivonne Falcón, and Barreto in

regard to the plan to guarantee that those funds would be available

to pay for a contract with an entity affiliated with Hernández.

And, the record supportably shows that López took those unusual

steps at a time when she, Ivonne Falcón, and Barreto were all

receiving benefits from Hernández that he gave to them to influence

- 20 - their performance of their duties in his favor at their respective

agencies.

From this collection of evidence, considered as a whole,

a reasonable juror supportably could infer that López, contrary to

her contention, was not only aware of the scheme involving ADL and

AAA as a result of her meeting with the other alleged

coconspirators about it but also that, in the wake of that meeting,

she willingly took steps to assist them in carrying it out both by

providing the sample letter and by overriding internal concerns

within her own agency about the transfer of funds to AAA that would

make the Links Group contract possible. See United States v.

Santos-Soto, 799 F.3d 49, 59 (1st Cir. 2015) (explaining that "a

defendant must know that a conspiracy exists and that his

participation, even if limited to a peripheral service, is designed

to foster that conspiracy").5

III.

We now turn to López's other contentions, through which

she seeks to vacate rather than reverse her convictions. We begin

5López also points out that Links Group ultimately "did not benefit at all from the contract." However, it is well established that "a conviction for conspiracy does not require that the defendant was successful in the underlying offense, but only that an agreement to commit the underlying offense existed, and that at least one co-conspirator committed an overt act in furtherance of the conspiracy." United States v. Martin, 228 F.3d 1, 13 (1st Cir. 2000) (citations omitted). The evidence was sufficient for the jury to conclude that as much occurred here, regardless of the ultimate impact of the agreement on Links Group's finances.

- 21 - -- and, as it happens, end -- our consideration of these challenges

with the ones that she brings under Rules 8 and 14 of the Federal

Rules of Criminal Procedure. As we will explain, we conclude that

her Rule 14 challenge to the District Court's refusal to grant her

a separate trial from one of her codefendants -- Rivera, who was

an official in the Puerto Rico House of Representatives -- requires

that each of her convictions must be vacated due to the prejudicial

evidence to which the jury in her case was exposed in consequence

of her being tried jointly with that codefendant. As a result of

our holding on that score, we do not consider any of her other

challenges, including the additional ones that she brings under

Rule 14 with respect to her joint trial with her other codefendants

or under Rule 8, whether concerning the joinder of her counts with

those naming Rivera or with those counts naming any of her other

codefendants. Nonetheless, to set the stage for assessing her

challenges under Rule 14 to her convictions based on her joint

trial with Rivera, it is useful briefly to set forth the relevant

legal principles relating to both that rule and Rule 8(b).

Rule 8(b) authorizes the joinder of two or more

defendants in an indictment if "they are alleged to have

participated in the same act or transaction, or in the same series

of acts or transactions, constituting an offense or offenses."

Fed. R. Crim. P. 8(b). The rule does not require that every count

- 22 - charge every defendant -- the "defendants may be charged in one or

more counts together or separately." Id. What Rule 8(b) does

require is "some common activity" that binds the indictees and

that "encompasses all the charged offenses." United States v.

Azor, 881 F.3d 1, 10 (1st Cir. 2017) (quoting United States v.

Natanel, 938 F.2d 302, 307 (1st Cir. 1991)).

We have explained that "[a] conspiracy count can be a

sufficient connecting link between co-defendants and separate

substantive offenses to permit their joinder in a single

indictment." United States v. Luna, 585 F.2d 1, 4 (1st Cir. 1978).

Moreover, multiple conspiracy counts may themselves be part of

"the same series of acts or transactions," Fed. R. Crim. P. 8(b);

see, e.g., United States v. Grassi, 616 F.2d 1295, 1303 (5th Cir.

1980); Bost v. United States, 178 A.3d 1156, 1184-85 (D.C. 2018),

even if only because they are part of a larger uncharged scheme or

plan, see, e.g., United States v. Wadena, 152 F.3d 831, 848-49

(8th Cir. 1998).

We evaluate misjoinder from the face of the indictment

rather than from the evidence introduced at trial. See Natanel,

938 F.2d at 306. A Rule 8(b) violation can be "harmless" if it

"did not result in 'actual prejudice.'" United States v. Edgar,

82 F.3d 499, 503-04 (1st Cir. 1996) (quoting United States v. Lane,

474 U.S. 438, 449 (1986)). "Actual prejudice in this context means

'the substantial and injurious effect or influence in determining

- 23 - the jury's verdict.'" United States v. Zimny, 873 F.3d 38, 59

(1st Cir. 2017) (quoting United States v. Ponzo, 853 F.3d 558, 568

(1st Cir. 2017)). We review a claim of misjoinder under Rule 8(b)

de novo. Id.

As a general matter, if joinder is proper under Rule

8(b), then "those indicted together are tried together to prevent

inconsistent verdicts and to conserve judicial and prosecutorial

resources." United States v. DeCologero, 530 F.3d 36, 52 (1st

Cir. 2008) (quoting United States v. Soto-Beníquez, 356 F.3d 1, 29

(1st Cir. 2003)). But, even still, Rule 14 of the Federal Rules

of Criminal Procedure does provide that, in some cases in which

Rule 8(b) is satisfied, a joint trial may be improper in

consequence of the prejudice it may cause. See Fed. R. Crim. P.

14.

To be sure, Rule 14 does not necessarily require

severance "even if prejudice is shown; rather, it leaves the

tailoring of the relief to be granted, if any, to the district

court's sound discretion." Zafiro v. United States, 506 U.S. 534,

538-39 (1993). Severance is required under Rule 14, in other

words, only if a defendant can establish that "there is a serious

risk that a joint trial would compromise a specific trial right of

one of the defendants, or prevent the jury from making a reliable

judgment about guilt or innocence." Id. at 539.

- 24 - Thus, to prevail on appeal in a challenge to a denial of

a Rule 14 motion, the burden is on the defendant not only to

establish prejudice but "to make a strong showing" of the same.

United States v. Boylan, 898 F.2d 230, 246 (1st Cir. 1990)

(emphasis added) (quoting United States v. Porter, 764 F.2d 1, 12

(1st Cir. 1985)). "This is a difficult battle for a defendant to

win," id., because a district court is entitled to "considerable

latitude" in evaluating such a claim, Natanel, 938 F.2d at 308.

Consistent with those principles, we have noted that there is

always a risk of some degree of "garden variety" prejudice in any

joint trial and that prejudice of that sort cannot "in and of

itself . . . suffice" to carry a defendant's burden to establish

that failure to sever was an abuse of discretion. Boylan, 898

F.2d at 246. Indeed, we have explained that "[w]here evidence

featuring one defendant is independently admissible against a

codefendant, the latter cannot convincingly complain of an

improper spillover effect." United States v. Floyd, 740 F.3d 22,

37 (1st Cir. 2014) (quoting United States v. O'Bryant, 998 F.2d

21, 26 (1st Cir. 1993)). We review the denial of a severance

motion under Rule 14 for abuse of discretion. Zimny, 873 F.3d at

59.

Finally, we note that our inquiry into whether evidence

would be independently admissible against the defendant seeking

severance is guided by the indictment, which sets the outer limits

- 25 - of the permissible basis for conviction, see United States v.

McBride, 962 F.3d 25, 32 (1st Cir. 2020), and of what the

government may endeavor to prove at trial, see United States v.

Dunn, 758 F.2d 30, 35 (1st Cir. 1985). In evaluating the

indictment's reach, we read it "in a plain and commonsense manner,"

United States v. Mubayyid, 658 F.3d 35, 70 (1st Cir. 2011),

focusing on the text and what it reveals about the scope of the

crimes the grand jury intended to charge, see United States v.

Miller, 471 U.S. 130, 142-43 (1985); United States v. Pierre, 484

F.3d 75, 82 (1st Cir. 2007); see also United States v. Hitt, 249

F.3d 1010, 1016 (D.C. Cir. 2001) ("Adherence to the language of

the indictment is essential . . . ."); United States v. Roshko,

969 F.2d 1, 6 (2d Cir. 1992) ("[W]e are unpersuaded by the

government's contention that when the grand jury wrote 'an alien'

it really meant 'aliens' . . . .").

Against this background, we now take up López's Rule 14

challenge concerning the denial of her request that her trial be

severed from Rivera's. In doing so, we recognize that the District

Court stated in rejecting López's original motion under Rule 8(b),

which concerned the improper joinder of her counts with

codefendants including Rivera, that "the acts charged [were] part

of an over-arching conspiracy" linking the various counts. But,

- 26 - as we have just explained, whether Rule 14 was violated does not

depend on whether Rule 8(b) was.

Here, the District Court did conclude that the various

offenses charged in the sprawling indictment each related to a

"master scheme" that had a pyramid structure with Hernández at the

top. But, we do not understand the District Court to have ruled

that López and Rivera were in fact charged with being

coconspirators in any count contained in the indictment. And,

consistent with that understanding, the government expressly

represents to us on appeal that the two were charged only with

distinct offenses, even though López was charged in one of the

counts with conspiring with another of her codefendants.

Thus, in accord with a "plain and commonsense" reading

of the indictment, Mubayyid, 658 F.3d at 70, we proceed in

reviewing López's Rule 14 challenge on the understanding that she

does not need to overcome the particularly formidable hurdle that

faces a defendant seeking severance from a codefendant with whom

she has been charged with conspiring, see United States v. DeLuca,

137 F.3d 24, 36 (1st Cir. 1998) ("[I]n the context of conspiracy,

severance will rarely, if ever, be required." (quoting United

States v. Flores-Rivera, 56 F.3d 319, 325 (1st Cir. 1995))).

Nonetheless, the government argues here that López's challenge to

the District Court's refusal to grant her a separate trial from

Rivera must be rejected because any prejudice that López suffered

- 27 - from the joint trial was either of the sort to be expected in any

joint trial or of the sort that, in light of the evidence

independently introduced against her and the instructions given to

the jurors, was too slight to permit a contrary conclusion. We

disagree.

The jury before which López was tried was exposed to

days of detailed evidence regarding Hernández's role in corrupting

the contract bidding process at the Puerto Rico House of

Representatives, where Rivera worked, to benefit entities

affiliated with him. The government's showing in that regard

included the presentation of direct evidence of the corrupt

intentions of those alleged to have been involved in rigging that

bidding process. For example, the evidence included testimony

from Víctor Burgos Cotto, who was the Director of Technology at

the House during the time in question and a witness for the

government, recounting that Rivera had told Burgos that Burgos

"had to find a way to help friends" like Hernández in the

contracting process and that failure to do so would result in

termination.6

Burgos's testimony ran across three days of trial, during 6

which Burgos told the jury about how Rivera, González, and the Speaker of the House had overtly pressured him to select Hernández's company as a contract vendor despite the inferiority of the company's proposals and its employees' lack of expertise with the subject matter.

- 28 - But, López was not herself employed by the Puerto Rico

House of Representatives, let alone charged with any offense

pertaining to the corruption of that bidding process. We thus

cannot see how evidence of such depth and quality about the nature

of the allegedly corrupt scheme at the Puerto Rico House of

Representatives in which Rivera was charged with having a role

could have been admitted at a trial against López alone on the

counts that she faced. For, even if such evidence might have been

relevant to the counts that she faced independently of Rivera to

prove Hernández's intent in supplying benefits to her as the head

of ADL, the admission of that evidence in a trial of López alone

still would have been limited by Federal Rule of Evidence 404(b)7

and limited, too, by Federal Rule of Evidence 403.8 And that is

especially so given that Hernández's intent was not in dispute as

to any of the counts involving López. After all, he had pleaded

guilty to the ADL- and AAA-related counts that he faced prior to

López's trial, and he testified at the trial that the reason that

7 Federal Rule of Evidence 404(b)(1) provides: "Evidence of any other crime, wrong, or act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character." 8 Federal Rule of Evidence 403 provides: "The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence."

- 29 - he provided benefits to public officials was to induce their

assistance in his business dealings.

Nor does the government contend otherwise. It notably

makes no argument in response to López's Rule 14 challenge on

appeal that the evidence concerning Rivera and the Puerto Rico

House of Representatives scheme was itself relevant to any of the

charges that López herself faced. To the contrary, it premises

its contention about the lack of spillover prejudice from that

evidence on what it contends was the distinct nature of the

offenses that each of these two defendants faced and the

correspondingly distinct nature of the evidence that was relevant

to those offenses. According to the government, in consequence,

a jury could easily compartmentalize the evidence put forward

regarding Rivera from that relevant to the case against López.

And, in further support of that contention, it characterizes the

case against López on her charges as strong.

We have already explained, however, that the case

against López in the six counts that she faced regarding whether

she had the intent to be influenced by the benefits that Hernández

supplied to her -- which the government concedes it was required

to show -- was circumstantial. Indeed, López's primary defense to

the charges against her was that Hernández acted corruptly and

intended to influence her but that she merely accepted gifts from

him without any sort of quid pro quo. For that reason, the evidence

- 30 - about how Hernández corruptly schemed with others in connection

with the Puerto Rico House of Representatives that could not have

been introduced at a trial against her alone but to which her jury

nonetheless was exposed did create a grave risk of spillover

prejudice. Specifically, that evidence risked leading the jury in

considering her charges to impute the states of mind of the

employees of the Puerto Rico House of Representatives -- based on

the direct evidence of their intent that was introduced -- to López

and thereby "prevent[ing] the jury from making a reliable judgment

about [her] guilt or innocence." Zafiro, 506 U.S. at 539.

The District Court did give limiting instructions, as

the government emphasizes, but they did not suffice to mitigate

this risk of spillover prejudice here. Cf. DeCologero, 530 F.3d

at 56 (citing Zafiro, 506 U.S. at 540-41).9 The joint trial enabled

the government to put forth direct evidence of the corrupt intent

of Hernández's collaborators in a distinct scheme, even though the

government had only circumstantial evidence as to López's state of

mind and the trial both implicated a number of players and involved

9 The District Court instructed the jurors that they "must give separate consideration to each individual defendant as to each separate charge against him or her," and that "[e]ach defendant is entitled to have his or her case determined from his or her conduct and from the evidence that may be applicable to him or her." López does not take issue with the wording of that instruction but instead contends that no such "separate consideration" instruction, regardless of formulation, would have been adequate to defray the risk of prejudice.

- 31 - a number of complicated charges. Cf. O'Bryant, 998 F.2d at 26 n.5

(upholding a denial of severance where "the charges were fairly

simple" and "the case involved only two defendants and four

counts"). Adding to our concern is the fact that the prosecution's

presentation of its case repeatedly blurred the lines between the

schemes. For example, the prosecution asked Hernández during his

testimony whether he was "working those proposals" -- namely, one

of the ADL contracts and the telecommunications contract with the

House -- "at more or less the same time frame," and it introduced

evidence about those schemes back-to-back. Thus, the risk that

spillover prejudice occurred because the jury was unable to

distinguish between the two schemes was heightened. Cf. United

States v. Drougas, 748 F.2d 8, 18-19 (1st Cir. 1984) (considering

the trial court's careful differentiation between allegations and

evidence against the coconspirators when evaluating the risk of

jury confusion).

Of course, we have been "reluctant" to overturn

severance denials. Azor, 881 F.3d at 12 (quoting Boylan, 898 F.2d

at 246). But, as López rightly notes, prejudice from being tried

jointly "can come in various forms, including jury confusion, the

impact of evidence that is admissible against only some defendants,

and 'spillover' effects where the crimes of some defendants are

more horrific or better documented than the crimes of others."

United States v. Innamorati, 996 F.2d 456, 469 (1st Cir. 1993).

- 32 - And, we are persuaded that this is the rare case in which "[t]he

dangers for transference of guilt from one to another across the

line separating conspiracies, subconsciously or otherwise, [were]

so great" as to require severance. Kotteakos v. United States,

328 U.S. 750, 774 (1946).

Our conclusion is bolstered by the fact that this is not

a case in which the results of the trial might be thought to

undermine any claim of prejudice. Every codefendant who went to

trial was convicted on every charged count, underscoring the

possibility that the effects of the joint trial were damaging.

Cf. Zimny, 873 F.3d at 60 (noting that an acquittal on a subset of

the charged counts "helps undercut an actual-prejudice claim"

(quoting Ponzo, 853 F.3d at 569)); DeCologero, 530 F.3d at 56

(explaining that the "highly individualized verdicts" returned by

the jury, where "there were some charges for which the jury

acquitted all defendants, and others for which the jury convicted

some defendants while acquitting others . . . were not the

verdicts of a jury confused about the identity and culpability of

the individual defendants").

The government does invoke a number of precedents in

support of its argument that "there was no risk that the jury would

have held López guilty for the . . . acts of a different

conspiracy." But, the government exposed López's jury to days of

evidence of how other public officials in a complex alleged public

- 33 - corruption scheme in which López herself was not charged acted

corruptly on behalf of the very figure (Hernández) who was alleged

to have corruptly influenced López during roughly the same time

period in the alleged corruption scheme for which she was charged.

And, the concerning exposure to that evidence occurred even though

the central evidence in the case against López regarding whether

she had been corruptly influenced by that figure was entirely

circumstantial in nature. None of the cases to which the

government points in contending that the risk of prejudice from

the exposure of López's jury to days of Rivera-related evidence

was minimal presents the kind of concerns that trouble us here.

See United States v. De La Cruz, 514 F.3d 121, 139-40 (1st Cir.

2008) (rejecting a claim brought "with little attempt at developed

argument" that the jury may have attributed guilt to the defendant

based on allegations involving a separate conspiracy where that

evidence was limited, easy to separate out, and the court carefully

instructed the jury on the evidence it could consider); United

States v. Warner, 690 F.2d 545, 553 (6th Cir. 1982) (rejecting a

severance claim where the prosecution charged a single conspiracy,

the evidence "was fairly straightforward and was unlikely to

confuse the jury," and "[t]he jury's verdict show[ed] that it

followed the[] [jury] instructions, making an individualized

determination" and acquitting the defendant of one substantive

count); United States v. Losing, 560 F.2d 906, 911-12 (8th Cir.

- 34 - 1977) (rejecting a severance claim where the codefendants were

charged in a single conspiracy); United States v. Kenny, 462 F.2d

1205, 1218 (3d Cir. 1972) (rejecting a severance claim where "the

granting of separate trials would not have significantly benefited

the defendants who now complain"). Thus, we conclude that the

District Court abused its discretion in declining to sever López's

trial from that of Rivera and that the resulting prejudice was

such that her convictions may not stand.

IV.

We conclude that López's Rule 14 challenge to her joint

trial with respect to Rivera has merit. We thus need not reach

her other arguments as to why a new trial or a resentencing

proceeding is warranted, as we conclude that, based on the merit

of that challenge alone, we must vacate the judgment of conviction

as to each of the six counts on which she was convicted and remand

the case for a new trial.

- 35 -