United States v. Perez-Otero

• Court: Court of Appeals for the First Circuit
• Decided: May 15, 2026
• Docket: 24-1223
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 24-1223

UNITED STATES,

Appellee,

v.

ÁNGEL PÉREZ-OTERO,

Defendant, Appellant.

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

[Hon. Aida M. Delgado-Colón, U.S. District Judge]

Before

Barron, Chief Judge, Thompson and Gelpí, Circuit Judges.

José R. Olmo-Rodríguez for appellant. David M. Lieberman, Attorney, U.S. Department of Justice, with whom W. Stephen Muldrow, United States Attorney for the District of Puerto Rico, Myriam Y. Fernández-González, Assistant United States Attorney, Antoinette T. Bacon, Supervisory Official, Criminal Division, and Nicholas W. Cannon, Attorney, Public Integrity Section, were on brief, for appellee.

May 15, 2026 BARRON, Chief Judge. Following a six-day trial in the

United States District Court for the District of Puerto Rico, a

jury found Ángel Pérez-Otero ("Pérez"), the former mayor of

Guaynabo, Puerto Rico, guilty of conspiracy to commit

federal-program bribery, federal-program bribery and/or aiding and

abetting the same, and extortion under color of official right.

The District Court sentenced Pérez to sixty months of imprisonment

for the first of his three convictions and sixty-three months of

imprisonment for each of his other convictions. The sentences

were to be served concurrently. Pérez challenges his convictions

on the grounds that there was insufficient evidence presented at

trial, a defect in the indictment, a prejudicial variance, improper

instructions given to the jury, and a failure by the District Court

to protect against jury bias. He also challenges the procedural

and substantive reasonableness of his sentences. We affirm.

I.

On December 8, 2021, a grand jury in the District of

Puerto Rico indicted Pérez on three counts. The first count was

for conspiracy to accept bribes and kickbacks, in violation of

18 U.S.C. § 371. The second count was for federal program bribery

and/or aiding and abetting the same, in violation of 18 U.S.C.

§ 666(a)(1)(B) and 18 U.S.C. § 2. The third count was for

extortion under color of official right, in violation of 18 U.S.C.

- 2 - § 1951.1 The indictment alleged that while Pérez was the elected

mayor of Guaynabo, Puerto Rico, he used his power over that

municipality's contracting process to steer and maintain public

contracts in favor of Oscar Santamaría-Torres ("Santamaría"), the

owner of a construction company, in exchange for payments from

Santamaría.

On January 9, 2023, Pérez filed a motion to dismiss the

indictment for reasons that we will address in the course of our

analysis of the merits of his challenges on appeal. The District

Court denied the motion on February 28, 2023. Trial began on

March 13, 2023, and, nine days later, the jury found Pérez guilty

of each of the three counts for which he was charged.

On April 5, 2023, Pérez moved for a judgment of

acquittal pursuant to Federal Rule of Criminal Procedure 29(c).

The District Court denied the motion on February 7, 2024, and

proceeded to sentence Pérez to sixty months of imprisonment for

his conviction on count one and sixty-three months of imprisonment

for his convictions on counts two and three, respectively, with

the sentences to be served concurrently. The District Court also

sentenced Pérez to three years of supervised release for his

1 The indictment also included a forfeiture allegation under 28 U.S.C. § 2461(c) and 18 U.S.C. § 981(a)(1)(C) conditioned on Pérez being convicted under the preceding counts.

- 3 - conviction on each count, with each term of supervised release to

be served concurrently.

This timely appeal followed.

II.

We start with Pérez's challenge to the denial of his

motion for judgment of acquittal. Reviewing de novo, we consider

"the evidence . . . 'in the light most favorable to the

prosecution'" and assess whether, on this record, a rational juror

could find Pérez guilty of each of the underlying offenses beyond

a reasonable doubt. United States v. Tanco-Baez, 942 F.3d 7, 15

(1st Cir. 2019) (quoting United States v. Lara, 181 F.3d 183, 200

(1st Cir. 1999)). There is no merit to this challenge.

A.

Pérez first contends that, under McCormick v. United

States, 500 U.S. 257, 273 (1991), there was insufficient evidence

presented at trial. That case, he claims, imposes a requirement

on what the government must prove in cases like his. Nevertheless,

despite McCormick, he protests, the government did not proffer

sufficient evidence to meet this requirement as to any of his

convictions. Thus, he reasons, all three of his convictions must

be vacated. We do not agree.

McCormick concerned 18 U.S.C. § 1951, which makes it a

crime for any person to, among other things, receive "property

- 4 - from another . . . under color of official right." Id. at 261 n.2

(quoting 18 U.S.C. § 1951). The Court held there that when the

"property" takes the form of a political campaign contribution,

the government, to secure a conviction for a violation of § 1951,

must prove that the contribution was "made in return for an

explicit promise or undertaking by the official to perform or not

to perform an official act." Id. at 273 (emphasis added). The

Court reasoned that "[t]o hold otherwise would open to prosecution

not only conduct that has long been thought to be well within the

law but also conduct that in a very real sense is unavoidable so

long as election campaigns are financed by private contributions

or expenditures." Id. at 272.

Pérez contends that the trial evidence did not suffice

to permit a rational juror to find beyond a reasonable doubt that

Santamaría's payments to Pérez -- and thus the payments that

undergird his conviction for violating § 1951 -- were anything

other than campaign contributions. Therefore, he argues, it

follows from McCormick that the government could convict him of

violating § 1951 only if it could prove beyond a reasonable doubt

that there was an "explicit quid pro quo" between himself and

Santamaría as to those payments. Pérez then continues by arguing

that the trial evidence did not suffice to permit a rational juror

to find that Santamaría made those "campaign contributions" to

Pérez in return for an "explicit quid pro quo." Thus, he closes,

- 5 - there was insufficient evidence to support that conviction. He

maintains that the same holds true with respect to his convictions

under 18 U.S.C. § 371 (count one) and 18 U.S.C. §§ 666(a)(1)(B)

and 2 (count two), for which, he asserts, McCormick's logic

equally applies.

We conclude, however, that a rational juror on this

record could have found beyond a reasonable doubt that Santamaría's

payments were not campaign contributions. Accordingly, on that

basis alone, we reject this ground for reversing the convictions.

Pérez is right that Santamaría testified that he made at

least some of the payments on which the indictment's charges rest

to help pay off Pérez's campaign "debt." But, even if payments

made to relieve campaign "debt" constitute "campaign

contributions" for purposes of McCormick, a rational jury on this

record could have found beyond a reasonable doubt that, despite

this testimony, the payments were not made to pay off such a debt.

See United States v. Olbres, 61 F.3d 967, 970 (1st Cir. 1995)

("[A]mong competing inferences, two or more of which are plausible,

the judge must choose the inference that best fits the

prosecution's theory of guilt.").

For example, the evidence supportably shows that when

Santamaría wanted to make contributions to Pérez's campaign, he

gave Pérez's campaign director cash in other people's names. By

contrast, the record supportably shows that when Santamaría made

- 6 - the payments for which Pérez was charged, Santamaría made them in

secret, passing cash-stuffed envelopes directly to Pérez either

under a table or in a parking lot.

The evidence also supportably shows that, even though

Pérez understood that he was required to "inform" the Office of

the Electoral Comptroller of any cash campaign contributions "in

[his] income and expense report[s]," the reports he submitted to

the Office from January 2019 through December 2021 -- when the

allegedly illicit payments were made -- did not mention any

donation in Santamaría's name. This feature of the record comports

with the testimony of a senior auditor at the Office of the

Electoral Comptroller that Pérez's campaign reports recorded only

$6,223 in debt in 2019, even though Santamaría testified that the

ostensible campaign-debt repayments, totaling some $70,000, began

"at the end of 2018, beginning of 2019."

Finally, Santamaría testified that he continued to make

surreptitious payments to Pérez even after the campaign's supposed

debt was fully paid off. He stated that he did so to "keep the

relation alive" and so that Pérez would continue to "help [him]

get municipal contracts."

Pérez fails to meaningfully grapple with any of the

evidence we have just recounted. Instead, he merely recasts that

evidence by offering non-incriminating explanations for the

conduct it supportably shows and emphasizes the portion of

- 7 - Santamaría's testimony that he contends supports a contrary

inference about whether the payments in question were campaign

contributions. This is not enough. Because a rational jury could

reject Pérez's characterizations of the evidence and find that the

payments were not campaign contributions, we must reject this

McCormick-based challenge to the sufficiency of the evidence. See

United States v. Cruz-Ramos, 987 F.3d 27, 36 (1st Cir. 2021).

B.

Pérez next argues that the District Court erred in

denying his motion for judgment of acquittal because, McCormick's

"explicit promise" requirement aside, the evidence did not suffice

to show that any of Santamaría's payments were made in return for

a promise by Pérez to perform official acts -- i.e., as part of a

quid pro quo -- explicit or otherwise. On this basis, he argues

that his convictions must be reversed because both of his

non-conspiracy-related convictions require proof of a quid pro

quo. We must reject this challenge because we do not agree that

the evidence was insufficient to permit a rational juror to find

beyond a reasonable doubt that the payments were made in return

for such a promise.

Pérez contends that the evidence concerning Santamaría's

payments suffices merely to show that Santamaría sought to "gain

access to [Pérez] with the silent, and unexpressed, intention of

- 8 - obtaining municipal contracts." He further argues that

"Santamaría did not testify about any . . . quid pro quo, either

explicit, implicit, or express." He therefore contends that "no

evidence" of a quid pro quo was presented, not "even a wink, or a

nod."

Santamaría expressly testified, however, that he "made

illegal payments to . . . Pérez . . . . in order to get contracts

and . . . benefits from the Municipality of Guaynabo." In fact,

Santamaría agreed that the payments could fairly be categorized as

"bribes." In addition, there was ample circumstantial evidence to

support a finding that -- consistent with the testimony just

described -- both Santamaría and Pérez understood that the payments

in question were made as part of a quid pro quo. See United States

v. McDonough, 727 F.3d 143, 153 (1st Cir. 2013) ("[E]vidence of a

corrupt agreement in bribery cases is usually

circumstantial . . . . " (quoting United States v. Friedman, 854

F.2d 535, 554 (2d Cir. 1988))); United States v. DeQuattro, 118

F.4th 424, 444-45 (1st Cir. 2024).

The record supportably shows that Pérez began discussing

municipal contracts that Santamaría's construction company, Island

Builders, could work on "less than six months" after Santamaría

began making cash payments to Pérez. These payments, moreover,

were made "in secret" -- oftentimes, literally "[u]nder the table."

See DeQuattro, 118 F.4th at 446 ("[T]he extent to which the parties

- 9 - went to conceal their bribes is powerful evidence of their corrupt

intent." (quoting United States v. McNair, 605 F.3d 1152, 1197

(11th Cir. 2010))); United States v. Turner, 684 F.3d 244, 258

(1st Cir. 2012).

The record also contains evidence that suffices to show

that Pérez assisted Island Builders in receiving a municipal

contract for a road-construction project in Guaynabo. And there

is evidence that suffices to show that when Santamaría was

concerned that a lucrative asphalt-paving portion of that project

was going to be excised, Pérez told Santamaría "he would manage

the thing" and that, thereafter, the asphalt-paving portion of the

contract remained the same.

Finally, separate from the road-construction project

just discussed, there is evidence in the record that on

August 19, 2021 -- the same day that Santamaría clandestinely

passed $5,000 to Pérez, who then "put [the money] [in] his

socks" -- Pérez told Santamaría that Island Builders could "have

one" of three "new contracts" that were coming up. (Emphasis

added.) This statement, given its timing, accords with Santamaría

having made the payments to Pérez as part of a quid pro quo.

Pérez argues that the evidence recounted above suffices

to show only that he "was working in the best interests of the

municipality [in] seeking companies to compete for municipal

contracts." To substantiate this argument, he asserts that there

- 10 - is evidence that "Island Builders participated in additional bid

processes, in Guaynabo, unsuccessfully"; that he "did not

influence the decisions of the [municipal] bid board" (the group

that reviews bids on public contracts); and that he provided

benefits to Santamaría for reasons other than the receipt of

illicit payments. By way of example, he argues that the

"profitable asphalt" portion of the contract remained the same not

because he was being bribed, but because "Santamaría threatened to

sue."

These arguments are asserted in conclusory fashion

without record citation. See Rivera-Corraliza v. Morales, 794

F.3d 208, 226-27 (1st Cir. 2015). But even if we were to overlook

that problem, Pérez's contentions do not come to grips with the

competing evidence recounted above that supportably shows that

Santamaría made the payments as part of a quid pro quo. See

Olbres, 61 F.3d at 970; United States v. O'Donovan, 126 F.4th 17,

31 (1st Cir. 2025) ("While the defendant casts those facts as

consonant with a lawful lobbying effort, a reasonable jury could

have inferred that the defendant had proposed a bribery scheme.").

Pérez separately appears to rely on his favorable

characterizations of the evidence to argue that the record does

not suffice to show that he "committed (or agreed to commit) an

'official act,'" McDonnell v. United States. 579 U.S. 550, 555

(2016), which, he argues, the government was required to establish

- 11 - for him to be convicted of any of the charged offenses. But, even

assuming that Pérez is correct that the government was required to

meet this official-act requirement to convict him of each count,

we conclude that the evidence sufficed.

Specifically, there was sufficient evidence for the jury

to find beyond a reasonable doubt that Pérez influenced the bid

board so that Island Builders would receive the road-construction

project in Guaynabo. See id. at 574 ("That decision or action may

include using his official position to exert pressure on another

official to perform an 'official act,' . . . ."); United States v.

Carrasco, 79 F.4th 153, 161-62 (1st Cir. 2023). Therefore, on

this record, we conclude that a rational jury could have found

beyond a reasonable doubt that, as Santamaría testified, all of

Santamaría's payments were made to Pérez in exchange for "contracts

and . . . benefits from the Municipality of Guaynabo."2

2 In a final effort to bolster this argument, Pérez also finds fault with the government's introduction of "improper testimony" that, he argues, "misled the jury" and "unduly prejudiced" him. This contention, however, does not support his challenge to the sufficiency of the evidence. When we review whether evidence was sufficient to support a conviction, we do so "by reference to all the evidence offered by the government that was admitted by the court, even if the court erroneously admitted some of that evidence." United States v. O'Donovan, 126 F.4th 17, 38 (1st Cir. 2025) (citation modified).

- 12 - C.

Pérez's remaining ground for challenging the District

Court's denial of his motion for judgment of acquittal is also

without merit. Here, he contends that the cash payments that

Santamaría made to him in May, July, and August 2021 "came after

the [road-construction] contract was awarded to Island Builders"

in June 2020. He therefore contends that those payments constitute

gratuities rather than bribes. (Citing United States v. Fernandez,

722 F.3d 1 (1st Cir. 2013).) In consequence, he argues, a rational

jury could not find beyond a reasonable doubt that he was guilty

of count two because that count is predicated solely on these three

payments and the government had to establish, with respect to the

offense charged in count two, that Pérez "solicit[ed], demand[ed],

accept[ed], [or] agree[d] to accept" bribes rather than

gratuities. We are not convinced.

As an initial matter, we note that, contrary to Pérez's

seeming assumption, if there is an "agreement to exchange a thing

of value for an act" before that act is undertaken, United States

v. Fernandez, 722 F.3d 1, 19 (1st Cir. 2013), then it does not

matter that the "thing of value" was exchanged after that act had

been undertaken. See United States v. Gracie, 731 F.3d 1, 3 (1st

Cir. 2013) ("The essential distinction between a bribe and a

gratuity is that a bribe requires a quid pro quo, the exchange of

something of value for influence over some official conduct of the

- 13 - recipient."); Snyder v. United States, 603 U.S. 1, 19 (2024)

("Congress made clear that the timing of the agreement is the key,

not the timing of the payment . . . ."). Thus, the mere fact that

the payments at issue were given to Pérez after the official act

was alleged to have been undertaken does not suffice to show that

the payments were gratuities.

Moreover, we do not accept Pérez's implicit assertion

that the May, July, and August payments were necessarily made in

relation to Island Builder's acquisition of the road-construction

contract in June 2020. A rational jury could find that the

payments instead were made as part of an agreement in which Pérez

would act at a later date regarding matters unrelated to the

acquisition of that particular contract. See United States v.

Cortés-Caban, 691 F.3d 1, 24 (1st Cir. 2012) (looking at the

"evidence[] taken as a whole and in the light most favorable to

the prosecution" (citation modified)). For instance, as recounted

above, the record supportably shows that on August 19, 2021, after

two of the three relevant payments were made, Pérez confirmed with

Santamaría that Island Builders could "have one" of three "new

contracts" that were coming up. (Emphasis added.) We therefore

reject Pérez's timing-based contention for deeming the evidence

insufficient as to his conviction for count two.

- 14 - III.

Pérez separately challenges the denial of his motion to

dismiss the indictment. To support this challenge, he contends

that "because [the indictment] was grounded on allegations of

payments of political campaign contributions," McCormick required

the indictment to allege "an explicit quid pro quo." 500 U.S. at

273. Thus, he argues that, because the indictment did not contain

any such allegation, the District Court erred in denying his motion

to dismiss the indictment. Reviewing de novo, see United States

v. Savarese, 686 F.3d 1, 6 (1st Cir. 2012) (citing United States

v. Lopez-Matias, 522 F.3d 150, 153 (1st Cir. 2008)), we disagree.

Pérez is right that, under McCormick, an individual can

be found guilty of violating 18 U.S.C. § 1951 by agreeing to

perform an official act in exchange for campaign contributions

only if there is evidence that the contributions were made "in

return for an explicit promise or undertaking by the official."

500 U.S. at 273 (emphasis added). He acknowledges, though, that

this "explicit promise" requirement "applies only in the context

of campaign contributions." McDonough, 727 F.3d at 155 n.4; see

McCormick, 500 U.S. at 268-69 (declining to consider how the

statute should be applied as to "payments made to elected officials

that are properly determined not to be campaign contributions").

None of the counts, however, charged Pérez with

receiving a bribe in the form of a campaign contribution.

- 15 - Count one stated that Pérez "took steps benefitting [Santamaría]

and his business" "[i]n exchange for cash payments"; count two

detailed that Pérez "corruptly solicit[ed]" or "accept[ed]" "three

individual $5,000 cash payments"; and count three alleged that

Pérez "obtained property not due to him." See United States v.

Cruzado-Laureano, 404 F.3d 470, 482 (1st Cir. 2005) ("[A] specific

quid pro quo is necessary for conviction under [18 U.S.C. § 1951]

when an official receives a political contribution." (emphasis

added)).

Pérez does argue that the indictment was required to

describe the aforementioned "cash payments" as "political campaign

contributions" because "an objective reading of the grand jury

transcript reveals that" the cash payments that the government

based the indictment on were made in the course of offsetting

"campaign expenses." But "[i]t is well settled that an indictment

returned by a legally constituted and unbiased grand jury, if valid

on its face, is enough to call for trial of the charge[s] on the

merits." United States v. Capozzi, 486 F.3d 711, 726 (1st Cir.

2007) (citation modified) (quoting United States v. Maceo, 873

F.2d 1, 2-3 (1st Cir. 1989)). And "courts take the facts alleged

in the indictment as true, mindful that 'the question is not

whether the government has presented enough evidence to support

the charge.'" United States v. Ngige, 780 F.3d 497, 502 (1st Cir.

2015) (quoting Savarese, 686 F.3d at 7); see United States v.

- 16 - Guerrier, 669 F.3d 1, 3-4 (1st Cir. 2011). Therefore, because the

indictment on its face alleged simply that Pérez received

bribes -- not bribes in the form of campaign

contributions -- Pérez's challenge to the indictment fails.3 See

Ngige, 780 F.3d at 502 ("The problem with [the defendant's]

argument is that it fails to attack the facial validity of the

indictment and instead challenges the government's substantive

case.").

IV.

Pérez next contends that, even if the indictment was not

defective, there was a variance at trial. A variance "occurs when

the government relies at trial on different facts than those

alleged in the indictment to prove the same offense." United

States v. Condron, 98 F.4th 1, 24 (1st Cir. 2024) (quoting United

States v. Katana, 93 F.4th 521, 530 (1st Cir. 2024)). To warrant

disturbing a conviction, a variance must be prejudicial. United

States v. Chan, 981 F.3d 39, 52 (1st Cir. 2020) (quoting United

States v. Dellosantos, 649 F.3d 109, 116 (1st Cir. 2011)).

3 At one point, Pérez seems to make the argument that the indictment is defective because one of the witnesses at the grand jury proceeding provided "erroneous information" that "influenced the grand jury." Insofar as this argument -- which lacks citation -- is cognizable, it is waived for lack of development. See 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.").

- 17 - Pérez argues that there was a variance in his case

because "the indictment . . . did not" allege that the payments

were "political campaign contributions," but the "trial testimony"

concerned "precisely that." He contends that the asserted variance

was prejudicial "because the indictment did not place [him] on

notice that he was facing charges in relation to political campaign

contributions." See id. (quoting Dellosantos, 649 F.3d at 125).4

In further describing the claimed prejudice, he asserts that "if

the indictment had provided adequate notice that he was being

charged with [the receipt of] political campaign contributions,"

his trial "strategy would have been different."

There is some basis for concern that the jury convicted

Pérez based on his having received bribes from Santamaría in the

form of campaign contributions, notwithstanding that the

indictment did not allege an "explicit promise or undertaking by

the official to perform or not to perform an official act."

McCormick, 500 U.S. at 273. The District Court instructed the

jurors that if they found that Santamaría's payments were campaign

contributions, then the government needed to "prove that the

contributions were offered, made, or accepted in return for an

There are at least two other ways "in which a variance may 4

cause unfair prejudice." Chan, 981 F.3d at 52. Pérez's only non-perfunctory argument, however, concerns notice. To the extent that his briefs can be read to advance an alternative basis for why he was prejudiced, the argument has been waived for lack of development. See Zannino, 895 F.2d at 17.

- 18 - explicit promise" for Pérez's receipt of those payments to

"constitute a federal crime."

Pérez did not preserve his variance argument below,

however. Nor did he develop on appeal any argument under the plain

error standard of review in support of it. See United States v.

Tang, 160 F.4th 237, 247 n.7 (1st Cir. 2025). For that reason

alone, his variance-based challenge fails.

In any event, his sole developed ground for claiming

prejudice on appeal sounds in notice, as he contends that he

"receive[d] inadequate notice of the charge[s] against him and

[was] thus taken by surprise at trial." (Quoting Chan, 981 F.3d

at 52.) Yet, more than two months before trial began, in his

motion to dismiss the indictment, Pérez argued that the payments

he was being charged with accepting "took the form of campaign

contributions." Additionally, during opening arguments at trial,

Pérez's counsel asserted that the evidence would show that the

payments in question were "political contributions." "[T]he

record" therefore shows that Pérez "had sufficient notice of, and

was able to defend himself against" the alleged theory that he

received bribes in the form of campaign contributions. Katana, 93

F.4th at 538; see id. at 537 (finding that the record did not

"suggest that [the defendant] was so in the dark about the

government's prosecution theory at trial that he could not prepare"

- 19 - a proper defense (citation modified)). Accordingly, we reject

this challenge on this ground as well.

Pérez next takes aim, as he did below, at the following

statement that the District Court made to the jury: "There has

been testimony that certain, but not all, of the moneys that

Santamaría gave to [Pérez] constituted campaign contributions or

were intended to pay a political campaign debt." Pérez contends

that, in making this statement, the District Court "impermissibly

commented its opinion on the evidence" and "invaded the province

of the jury who had to find . . . whether the payments were

political campaign contributions." On that basis, he contends

that his convictions must be vacated.

Pérez rests this challenge on his reading of the phrase

"certain, but not all." He takes it to mean that that the District

Court "told the jury that some payments were political campaign

contributions, and some were not."

The government disputes that way of understanding the

statement. It interprets the District Court merely to have been

stating a fact -- namely, that Santamaría testified that some of

the payments were not campaign contributions. It therefore argues

that the District Court simply "recited the record" and so did not

impermissibly invade the province of the jury.

- 20 - As support for its understanding of the statement, the

government points to Santamaría's testimony, which the government

describes as making out "three types of payments: (1) cash to Pérez

for the purpose of paying a $70,000 debt, (2) cash to Pérez with

the goal of obtaining municipal contracts and benefits, and

(3) campaign contributions to an official with Pérez's campaign."

(Citations omitted.) Additionally, the government notes that the

District Court recited a set of instructions that "made clear that

the jury had province over the proper characterization of

Santamaría's payments."

We cannot agree with the government that, in making the

statement in question, the District Court did not comment on the

evidence. On its face, the statement draws an inference from the

evidence by effectively asserting that none of the testimony

demonstrated that Santamaría made campaign contributions. We need

not decide, however, whether this comment constituted "improper

judicial intervention." United States v. Rivera-Rodríguez, 761

F.3d 105, 112 (1st Cir. 2014).

Pérez acknowledges that, to warrant vacating his

convictions, he must have been prejudiced by the error. See id.

at 111-12 (stating that "the defendant retains the burden of

demonstrating" that the District Court's statement resulted in

"serious prejudice" (citing United States v. Ofray-Campos, 534

F.3d 1, 33 (1st Cir. 2008))). But he fails to show that "there is

- 21 - a reasonable probability that, but for the error claimed, the

result of the proceeding would have been different." Id. at 112

(citation modified).

Pérez relies chiefly on United States v.

Raymundí-Hernández, 984 F.3d 127 (1st Cir. 2020) (per curiam), to

support his attempt to show prejudice. There, we found that the

district court's statements "created an appearance of anti-defense

witness bias," id. at 157, because the district court, among other

things, "tr[ied] to get [one of the defendant's witnesses] to

concede that he had no first-hand knowledge" regarding pieces of

his testimony, id. at 154, and "toy[ed] with" another one of the

defendant's witnesses in a manner "aimed at discrediting" him, id.

at 156.

Pérez contends that the District Court here similarly

"bolstered the testimony of the only critical prosecution

witness," Santamaría, and thus "tipped the scales in favor of the

[government]." He, however, fails to cite to the specific

testimony that the District Court supposedly bolstered, and we do

not understand the District Court's statement to the jury to be

"aimed at discrediting" a witness, as we concluded that the

statements at issue in Raymundí-Hernández were. Id. at 156.

Furthermore, to the extent Pérez is arguing that he was prejudiced

by the District Court's intrusion on the "jurors' ability to

evaluate competing testimony on their own," he does not cite to

- 22 - any "competing" evidence that would support a contrary finding

that all of Santamaría's payments to Pérez were made as campaign

contributions. Pérez, therefore, has not shown that, "but for"

the instruction, "the result of the proceeding would have been

different." Rivera-Rodríguez, 761 F.3d at 112 (quoting United

States v. Hebshie, 549 F.3d 30, 44 (1st Cir. 2008)).

VI.

The next challenge that Pérez makes to his convictions

concerns the District Court's failure to give an entrapment

instruction to the jury. He acknowledges that he did not request

such an instruction, but he contends that the District Court

committed "plain error" in failing to do so. We are not persuaded.

To succeed under the plain error standard, "the party

advancing the claim of error must establish '(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.'" Lestage v. Coloplast Corp.,

982 F.3d 37, 45 (1st Cir. 2020) (quoting Teixeira v. Town of

Coventry ex rel. Przybyla, 882 F.3d 13, 18 (1st Cir. 2018)).

Furthermore, "[w]here a defendant does not offer a particular

instruction[] and does not rely on the theory of defense embodied

in that instruction at trial, the district court's failure to offer

- 23 - an instruction on that theory sua sponte is not plain error."

United States v. Vasco, 564 F.3d 12, 20 (1st Cir. 2009) (first

alteration in original) (quoting United States v. George, 448 F.3d

96, 100 (1st Cir. 2006)).

Despite Vasco, Pérez does not identify in his briefing

to us where at trial he relied on an entrapment theory of defense.

Thus, given his failure to request an entrapment instruction, we

do not see how he has met his burden to show that the District

Court committed "plain error" in not offering such an instruction

sua sponte. See id.; see also United States v. Medina, 155 F.4th

11, 22 (1st Cir. 2025) (refusing to consider an entrapment defense

first presented on appeal), cert. denied, No. 25-6203, 2026 WL

79673 (U.S. Jan. 12, 2026).

In any event, an entrapment defense has two

prongs: "(1) improper government inducement and (2) the

defendant's lack of predisposition to commit the offense charged."

United States v. Pérez-Rodríguez, 13 F.4th 1, 17 (1st Cir. 2021)

(citing United States v. Teleguz, 492 F.3d 80, 84 (1st Cir. 2007)).

Improper inducement "occurs when law enforcement agents engage in

conduct 'of the type that would cause a person not otherwise

predisposed to commit a crime to do so.'" Id. (quoting United

States v. Hinkel, 837 F.3d 111, 117 (1st Cir. 2016)). Lack of

predisposition focuses "on whether the 'defendant was disposed to

commit the criminal act prior to first being approached by

- 24 - [g]overnment agents.'" Id. at 17-18 (quoting Jacobson v. United

States, 503 U.S. 540, 549 (1992)).

To be entitled to a jury instruction of entrapment, Pérez

must "meet[] a modest burden of production on the two prongs of

the defense." Id. at 18 (citing United States v. Rodriguez, 858

F.2d 809, 814 (1st Cir. 1988)). We review whether the defendant

met this burden by construing the evidence in the light most

favorable to the defendant. Id. at 19 (citing Rodriguez, 858 F.2d

at 813).

To show that he established the first prong of the

entrapment defense, Pérez asserts that (a) the FBI "induced [him]

into accepting a payment that he thought was a political campaign

contribution" and (b) "Santamaría[] repeated[ly] insiste[d] on

asking . . . Pérez about [a] waste transfer station contract" and

"the status of payments" for other contracts. He does not explain,

however, how Santamaría asking questions induced Pérez to take the

bribes. Nor does he direct our attention to evidence that shows

that the FBI "mixed bribes with . . . political campaign

contributions" in order to induce him to accept the payments. In

fact, in denying Pérez's motion for judgment of acquittal, the

District Court noted that, for each of the payments in question,

"Santamaría hand[ed] [Pérez] [a] white envelope with . . . $5,000"

without "ever acknowledg[ing] that the hand-off [was] happening."

- 25 - Pérez thus has not demonstrated that he met his burden

as to the inducement prong. See id. at 17 ("An inducement consists

of an opportunity plus something else -- typically, excessive

pressure by the government upon the defendant or the government's

taking advantage of an alternative, non-criminal type of motive."

(citation modified)). He therefore has not shown that the District

Court erred in not giving an entrapment instruction. See id. at 19

("[A] court may deny an entrapment instruction based on a failure

to show evidence on one prong or the other, without discussing

both.").

VII.

In his final challenge to his convictions, Pérez argues

that his "right to an impartial jury was infringed" upon by the

District Court when it (1) refused to continue the trial despite

alleged pretrial publicity and (2) failed to adequately inquire

into whether the jury had been exposed to prejudicial information

after two members were recused. These arguments are difficult to

untangle on appeal because Pérez does not provide record citations

to support them. See Rodríguez v. Municipality of San Juan, 659

F.3d 168, 175 (1st Cir. 2011) ("Judges are not mind-readers, so

parties must spell out their issues clearly, highlighting the

relevant facts and analyzing on-point authority."). Nevertheless,

- 26 - reading his brief to make two distinct challenges, we find neither

persuasive.

By way of background, on February 6, 2023, Pérez filed

a motion "regarding adverse pretrial publicity." He claimed in

that motion that "the government caused the dissemination of

photographs that served" to "prejudice" Pérez.

The photographs in question were submitted by the

government on December 9, 2021, in a filing requesting that

Pérez's bond be set to $50,000.5 According to Pérez's

February 2023 filing, those pictures were picked up by the press

and "extensively disseminated" by newspaper, television, radio,

and the internet. As a result, Pérez asked the District Court to

"continue the case until" the prejudice dissipated. He also

requested in a subsequent motion that the government be precluded

from showing the photographs to the jury.

The District Court denied both requests. It determined

that Pérez "fail[ed] to provide any context in which the[]

photographs [were] used by the media" and thus failed to show why

the photographs would be considered "sensational" rather than

"merely factual." In so concluding, the District Court determined

The photos, per the District Court, "depict two individuals 5

exchanging a package[,] purportedly[] the monies provided to [Pérez] as related to the bribery charges."

- 27 - that Pérez did not establish that the "photographs [were]

inflammatory and prejudicial to an extent that his right to a fair

trial would be in peril."

Jury selection took place on March 13, 2023. The

District Court asked the prospective jurors whether they had

"personal knowledge about the facts of [the] case." Two people

responded that they did and that they had formed an opinion about

the case. The District Court excused those jurors.

The District Court then asked whether any of the

remaining prospective jurors had "read newspaper articles, seen

news programs, podcasts or listened to radio programs where the

guilt or innocence of [Pérez] [had] been discussed." Three

individuals responded affirmatively. When questioned further at

sidebar, all three stated that they understood there was a

presumption of innocence and that they recognized that Pérez had

to be judged based on the evidence presented at trial rather than

that which was publicized. The District Court did not excuse any

of them.

Two days after jury selection -- and so the day before

the government was set to begin presenting its case -- Pérez

provided documentation that two of the selected jury members had

previously commented on social media about Pérez's arrest but had

failed to disclose that fact during voir dire. Based on this

information, Pérez requested that the District Court declare a

- 28 - mistrial. In the alternative, he sought disqualification of the

two offending jury members and "strict voir dire" of the remaining

jurors.

The next day, the District Court interviewed the two

allegedly biased jurors and dismissed them. The District Court

then denied Pérez's request that an entirely new jury be empaneled

and his alternative request that the remaining jury members be

subject to "strict" questioning.

At the beginning of trial, the District Court asked the

seated jury members whether there was any reason they felt they

could not be "impartial, fair, and unbiased." No one responded.

We start with Pérez's contention that the District Court

erred in denying his motion to "continue the trial . . . and to

suppress the sensational images" because they and the news coverage

surrounding them were prejudicial. "[W]e review the District

Court's denial of [Pérez's] continuance motion," United States v.

Carbone, 110 F.4th 361, 372 (1st Cir. 2024), and decision "to admit

or exclude evidence," United States v. Papantoniadis, 165 F.4th

65, 85 (1st Cir. 2026), for an abuse of discretion. To succeed on

this challenge, "[i]t is not enough" for Pérez to

"simply . . . claim that the jurors were exposed to news accounts

of the crime." United States v. Orlando-Figueroa, 229 F.3d 33, 43

- 29 - (1st Cir. 2000). He "must show that the setting of the trial was

inherently prejudicial." Id. (quoting United States v. Medina,

761 F.2d 12, 19 (1st Cir. 1985)). He has not done so.

Pérez appears to rest his challenge on the fact that the

photographs "only present part of the evidence," but he does not

explain why this necessarily means that the photographs were

impermissibly prejudicial. See United States v. Symonevich, 688

F.3d 12, 23 (1st Cir. 2012) ("Evidence . . . is not unfairly

prejudicial merely because it is harmful to the defendant."). We

therefore do not see how the District Court could be said to have

abused its discretion by declining his requests to continue the

trial and exclude the images from the evidence. See Skilling v.

United States, 561 U.S. 358, 386 (2010) ("When pretrial publicity

is at issue, primary reliance on the judgment of the trial court

makes especially good sense . . . ." (citation modified)).

C.

That leaves Pérez's argument that the District Court

abused its discretion during voir dire, see United States v. Zimny,

846 F.3d 458, 464 (1st Cir. 2017), when it failed to "adequately"

"investigate" the remaining jurors for bias after two jurors were

dismissed for their comments on social media concerning Pérez's

case. This challenge, too, is meritless.

- 30 - In United States v. Tsarnaev, the United States Supreme

Court stated that, "[b]ecause conducting voir dire is committed to

the district court's sound discretion, there is no blanket

constitutional requirement that it must ask each prospective juror

what he heard, read, or saw about a case in the media." 595 U.S.

302, 313 (2022). Rather, the Court noted, a "district court's

duty is to conduct a thorough jury-selection process that allows

the judge to evaluate whether each prospective juror is 'to be

believed when he says he has not formed an opinion about the

case.'" Id. (quoting Mu'Min v. Virginia, 500 U.S. 415, 425

(1991)).

The District Court did just that. It asked the jurors

whether there was any reason they felt they could not be

"impartial, fair, and unbiased" and whether they had "read

newspaper articles, seen news programs, [listened to] podcasts or

listened to radio programs where the guilt or innocence of [Pérez]

[had] been discussed." Pérez does not provide any case law

explaining why the questions asked were inadequate.

In addition, although two individuals were found to have

failed to disclose a fact during voir dire, they were ultimately

dismissed before trial "out of an abundance of caution."

Therefore, we do not see how their presence alone, at least in

light of the questions the District Court did ask, demonstrates

that the District Court's jury-selection process was flawed. Cf.

- 31 - Skilling, 561 U.S. at 395 n.31 (holding that there was no

deprivation of a constitutional right even though "voir dire did

not weed out every [biased] juror" because the juror in question

"did not sit on [the defendant's] jury").

VIII.

Pérez's final set of challenges concerns his sentences.

He argues that his sentences were procedurally unreasonable

because the District Court erroneously calculated his sentencing

range under the United States Sentencing Guidelines ("U.S.S.G.")

by "appl[ying] . . . two enhancements that were not applicable."

He also argues that his sentences were "substantively unreasonable

because the [D]istrict [C]ourt did not consider the need to avoid

unwarranted disparities among defendants with similar criminal

histories convicted of similar criminal conduct." (Citing

18 U.S.C. § 3553(a)(6).)

We review the District Court's factual findings for

clear error and its interpretation of the U.S.S.G. de novo. United

States v. Berroa, 856 F.3d 141, 162 (1st Cir. 2017). We review

the substantive reasonableness of the sentences for abuse of

discretion. United States v. Bruno-Campos, 978 F.3d 801, 808 (1st

Cir. 2020).

- 32 - A.

Before sentencing, the U.S. Probation Office prepared a

Presentence Investigation Report ("PSR") that, based on the

Guidelines, recommended a sentencing range of sixty-three to

seventy-eight months of imprisonment. In calculating his offense

level under the Guidelines, the PSR included a two-level

enhancement under U.S.S.G. § 2C1.1(b)(1) because it determined

that "the offense involved more than one bribe or extortion." It

also included a six-level enhancement under U.S.S.G. § 2B1.1(b)(1)

because it determined that Pérez received between $40,000 and

$95,000 in bribes.

Pérez objected to the PSR. He argued that the two-level

enhancement under U.S.S.G. § 2C1.1(b)(1) should not apply because

the evidence established only a single $70,000 bribe, which was

paid out over a series of $5,000 "installments." Additionally, he

argued that his enhancement under U.S.S.G. § 2B1.1(b)(1) should

account for only "the three $5,000 FBI payments" because he "was

not charged for [the] payments totaling $70,000 that corresponded

to the political campaign" debt. Thus, he calculated, his

enhancement under U.S.S.G. § 2B1.1(b)(1) should be two levels

instead of six. In sum, he contended that his sentencing range

under the U.S.S.G. should be thirty-three to forty-one months of

imprisonment.

- 33 - The District Court found neither objection convincing.

First, it determined that the two-level enhancement under U.S.S.G

§ 2C1.1(b)(1) applied because "the payments [from Santamaría] were

not made to influence a single action but rather multiple actions."

In support of that finding, the District Court pointed to the fact

that Santamaría was awarded not only the "original

[road-construction] contract" but also benefited from subsequent

amendments to that contract, was offered other contracts, and

developed "a relationship [with Pérez] that matured as payments

were being made."

The District Court then determined that a six-level

enhancement under U.S.S.G. § 2B1.1(b)(1) was appropriate because,

even if the $70,000 at issue were not considered, the evidence

showed that Pérez received bribes totaling $65,000. See U.S.

Sent'g Guidelines Manual § 2B1.1(b)(1)(D)-(E) (directing a

six-level enhancement when the "loss" amount is between $40,000

and $95,000). To come to this figure, the District Court first

"assumed," based on the evidence presented at trial, that

Santamaría's payments to Pérez began on January 1, 2019. Then,

relying on Santamaría's testimony that he made a $5,000 payment to

Pérez "every four to five weeks," it calculated that Santamaría

"paid in full" the $70,000 to Pérez by May 3, 2020, and that

Santamaría subsequently made "approximately" thirteen $5,000

payments to Pérez between then and August 19, 2021 (the day

- 34 - Santamaría gave his last payment to Pérez). The total sum, it

therefore found, amounted to $65,000.

The District Court ultimately concluded that the

appropriate sentencing range under the U.S.S.G. was fifty-one to

sixty-three months of imprisonment.

Finally, the District Court turned to the 18 U.S.C.

§ 3553(a) sentencing factors. It referenced, among other things,

Pérez's argument concerning "the need to avoid unwarranted

sentence disparities" and his corresponding evidence that "bribery

offenders were sentenced to 23 months" of imprisonment on average

nationwide and that district courts "varie[d] downwardly at

sentencing in almost 46 percent of the cases."

The District Court observed, however, that the proffered

evidence did not differentiate sentences that "were imposed after

a plea agreement" from those imposed after trial and that the

evidence did not account for the fact that "47.1 percent of those

sentenced" had "substantial[ly] cooperat[ed]." Instead, the

District Court found that when "defendants who receive[d] a

downward departure because of substantial assistance" were

excluded, the "Sentencing Commission's statistics" indicated that

they received an average sentence of fifty-six months of

In the end, and "regardless of the Sentencing

Commission's statistics," the District Court determined that the

- 35 - appropriate sentences based on "the facts of the case" were sixty

months of imprisonment for count one and sixty-three months of

imprisonment for each of counts two and three.

Pérez maintains that the District Court should not have

applied a two-level enhancement under U.S.S.G. § 2C1.1(b)(1)

because he only received one payment -- even if it was in several

installments. In support, he relies on a comment in U.S.S.G.

§ 2C1.1(b)(1) that states: "Related payments that, in essence,

constitute a single incident of bribery or extortion (e.g., a

number of installment payments for a single action) are to be

treated as a single bribe or extortion." U.S. Sent'g Guidelines

Manual § 2C1.1(b)(1) cmt. n.2.

The argument, however, is advanced in conclusory

fashion, with solely the comment discussed above offered as

support. Moreover, Pérez makes no effort to engage with the

comment's text that describes "installment payments" as "a single

incident of bribery" when they are made "for a single action."

Id. (emphasis added); see United States v. Arshad, 239 F.3d 276,

280-81 (2d Cir. 2001). He also does not confront the District

Court's conclusion that "the payments were not made to influence

a single action but rather multiple actions." We thus find this

- 36 - argument waived for lack of development. See United States v.

Zannino, 895 F.2d 1, 17 (1st Cir. 1990).

Pérez's challenge to the District Court's application of

§ 2B1.1(b)(1) is similarly brief. The entirety of his argument on

this front reads as follows: "[T]he [D]istrict [C]ourt applied a

higher level for the amount by including the political campaign

contribution payments that came before the FBI payments." However,

as recounted above, the District Court excluded the payments that

Pérez contends constitute "political campaign contributions" when

it made its calculations. Therefore, we do not see how the

District Court clearly erred in finding that the payments made to

Pérez were between $40,000 and $95,000. See U.S. Sent'g Guidelines

Manual § 2B1.1(b)(1)(D)-(E).

Finally, Pérez argues that the disparity between his

sentences and other similarly situated defendants' sentences

renders his sentences "substantively unreasonable." To support

this claim, he reiterates the statistical data he presented to the

District Court and cites to three cases in which he alleges similar

defendants were sentenced to terms of imprisonment "between

twenty-four and thirty months."

The District Court did not abuse its discretion in

rejecting the proffered statistics given that the data does not

differentiate between defendants who pleaded guilty and those who,

like Pérez, did not. See United States v. Rodríguez-Lozada, 558

- 37 - F.3d 29, 45 (1st Cir. 2009) ("Given the material difference between

the defendants who pled guilty pursuant to plea agreements and

[the defendant] who did not, no disparity in sentencing occurred

in this case that would amount to an abuse of discretion."). And

similarly, the three cited cases also do not help Pérez because

the defendants in them were sentenced after they had pleaded guilty

to the charged offenses. See McDonough, 727 F.3d at 165-66.

Therefore, because Pérez has not put forth "appropriate

comparators, [his] disparity challenge cannot proceed." United

States v. González-Barbosa, 920 F.3d 125, 131 (1st Cir. 2019).

IX.

For the foregoing reasons, Pérez's convictions and

sentences are affirmed.

- 38 -