Opinion
Crim. No. 14-410/14-556(DRD)
06-12-2017
UNITED STATES OF AMERICA, Plaintiff, v. LEMUEL VELILLA-REYES, Defendant.
OPINION AND ORDER
On October 12, 2016, a jury found Defendant Lemuel Velilla-Reyes guilty of two counts of mail fraud, in violation of 18 U.S.C. § 1341; one count of endeavoring to obstruct, influence, and impede the due administration of justice, in violation of 18 U.S.C. § 1503; one count of tampering with official proceedings, in violation of 18 U.S.C. § 1512(c)(2); and one count of harboring and concealing a fugitive, in violation of 18 U.S.C. § 1071. See 14-cr-556 at Docket No. 358. Pending before the Court are Defendant's Motions for a Judgment of Acquittal (Docket Nos. 34, 388, and 401). For the reasons stated below, the Court DENIES Defendant's motions.
I. RELEVANT FACTUAL BACKGROUND
The Court recites the facts "in the light most favorable to the jury's verdict." United States v. Santos-Soto, 799 F.3d 49, 57 (1st Cir. 2015).
Defendant Lemuel Velilla-Reyes ("Defendant") was an attorney licensed to practice in Puerto Rico. Co-defendant Wilfredo Rodriguez-Rodriguez ("Rodriguez-Rodriguez") was one of the leaders of a powerful drug trafficking organization ("DTO") that operated in the Bayamon area of Puerto Rico. The organization operated primarily in the Virgilio Davila, Falin Torrech, and Brisas de Bayamon public housing projects. Rodriguez-Rodriguez was the leader of the organization's drug points at the Brisas de Bayamon complex. The two codefendants met when Defendant represented Rodriguez-Rodriguez in a state case for possession of a firearm. Defendant appeared in state court several times on Rodriguez-Rodriguez's behalf between 2006 and 2007.
Defendant's Relationship with the DTO
Aside from Rodriguez-Rodriguez, Defendant maintained a relationship with other members of Rodriguez-Rodriguez's DTO—most notably Jose Colon-De Jesus ("Marcian"), the leader of the DTO. In 2007, Defendant attended a meeting with Rodriguez-Rodriguez, Marcian, and several other members of the DTO—Jorge Reyes-Santiago ("Peca"), Adalberto Rivera-Bermudez ("Junito Tali"), and Jose Jimenez-Echevarria ("Lechon").
On March 8, 2007, state police and housing development officers arrived at the Virgilio Davila Public Housing Project. The officers had orders to remove iron slabs installed on building doors that allowed members of the DTO to sell drugs through a small opening in the slab, thus concealing the identity of the sellers. Defendant went to the housing project on that date and was photographed meeting with several members of the DTO, including Armando Diaz ("Mandy"), Anibal Alejandro Boria ("Indio"), Luis Marrero-Baez ("Peluca"), and Joran Torres-Rosario ("Cohete").
On February 4, 2008, a riot erupted at the Virgilio Davila Public Housing Project. Several individuals were arrested and charged in the Bayamon Superior Court, including cooperating witness Ricardo Rivas. After the riot, a meeting was held at the housing project. Defendant was present, as were Rodriguez-Rodriguez, Marcian, Peca, and other leaders of the gang. During the meeting, Defendant explained the charges pending against the arrestees. Rivas was instructed to say he paid his own bail and attorney's fees when, in reality, Marcian paid Defendant's riot-related fees.
All persons charged in the riot appeared as Defendant's clients during the year 2008 in a client logbook recovered from Defendant's office and submitted into evidence. See Exhibit P.
Witnesses testified about several additional instances where Defendant was seen meeting or speaking to members of the DTO. Particularly, sometime between 2008 and 2009, Defendant was filmed while walking and talking with several low-level members of the organization at the Virgilio Davila Public Housing Project. Moreover, in 2009, Defendant was seen speaking with Marcian at a restaurant in Bayamon. Finally, in 2010, Defendant was seen at Marcian's residence with Marcian's wife and mother.
Defendant's Visits to the Metropolitan Detention Center
On July 14, 2010, Rodriguez-Rodriguez, Marcian, Peca, Junito Tali, Lechon, and over one-hundred codefendants were indicted for several drug trafficking offenses in criminal case 10-cr-251 (JAF). See 10-cr-251, Docket No. 3. At the time of his indictment in case 10-251, Marcian was detained at the Metropolitan Detention Center ("MDC") as he had been detained without bail while facing charges in criminal case 10-159 (DRD). See 10-cr-159 at Docket No. 3.
Defendant visited Marcian on July 16, 2010, two days after the indictment was filed and the day when most of Marcian's codefendants were arrested in a major federal "takedown." Rodriguez-Rodriguez was not arrested on that date. On July 17, 2010, Defendant again visited Marcian at MDC. On July 19, 2010, Marcian was arraigned in case 10-251 and Magistrate Judge Justo Arenas ordered he be detained without bail pending trial.
Defendant is an attorney licensed to practice in Puerto Rico state courts. Defendant was not licensed to practice in the United States District Court for the District of Puerto Rico.
On March 22, 2011, Defendant made his last documented visit to MDC. He signed in as a visitor for Marcian, Lechon, Peca, and Christopher Colon-de-Jesus ("Pupu"), another codefendant in criminal case 10-251.
Defendant's Representation of "Felix Otero-Torres"
On July 14, 2011, at approximately 3:30 a.m., Puerto Rico Police Department ("PRPD") officers arrested Rodriguez-Rodriguez (hereinafter, "Fugitive") for unlawful possession of a firearm in Toa Baja, Puerto Rico. Rodriguez-Rodriguez had not been arrested under case 10-cr-251 (JAF) and, thus, informed the officers that he was "Felix Otero-Torres". Sometime later, Defendant appeared at the precinct and expressed to officers that he was there to represent the fugitive. The two men spoke briefly while the fugitive laid vomiting on a precinct bench. The fugitive was then taken to a hospital for treatment.
After being treated, Pretrial Services Officer Kalynell Villanueva ("Villanueva") interviewed the fugitive. Defendant appeared with the fugitive during this interview. The fugitive provided November 5, 1980 as his birth date but did not provide any identification. Similarly, he did not provide a social security number, did not provide an address, did not provide any telephone contact information for himself or his family members, did not provide any work information, and did not provide any information regarding ownership of any vehicles or property. To questions from Villanueva, the fugitive answered he had lived in Puerto Rico for zero months prior to his arrest.
Later that day, the fugitive was taken before the Hon. Joel Cruz-Hidalgo for a determination of probable cause, known as a Rule 6 proceeding. Defendant appeared on the fugitive's behalf, stating that he was representing "Felix Otero-Torres." To questions from the judge, the fugitive stated that his name was Felix Otero-Torres and that he lived in the area of Las Granjas in Vega Baja but could not recall a specific street address because he was new to the area. When the judge asked for the fugitive's social security number, Defendant interrupted and explained his client was not good with numbers and could not recall his social security number.
Judge Cruz-Hidalgo found probable cause to arrest the fugitive and ordered the fugitive be fitted with an electronic monitoring bracelet. Defendant objected to electronic monitoring and the judge consulted Pretrial Officer Villanueva. She recounted the fugitive's vague answers to her questions, suggested the fugitive was a flight risk, and recommended electronic monitoring. However, Defendant stated that he had previously represented "Felix Otero-Torres" and there would be no problem with the fugitive appearing in court. He also stated that steps could be taken to arrange for the fugitive to be released to the custody of his sister, who Defendant alleged was a nurse.
The judge ultimately decided to impose bond for the amount of $24,000, with no electronic monitoring. Defendant then called Milton Garcell ("Garcell"), a bail bondsman for Allegheny Casualty Company with whom Defendant had previously sought bonding services for his clients. Defendant directed Garcell to come outside the courthouse where an individual provided Garcell with $2,400 in cash. The individual also provided Defendant with cash.
Once the fugitive posted the requisite bail amount, Defendant negotiated the fugitive's booking time with PRPD officers present at the courthouse. Defendant intimated that his client was tired and hungry as it had been approximately twenty-four hours since the fugitive's arrest. Defendant asked Officer Nancy Mendez to allow him to bring his client to the precinct the following day so he could take the fugitive to eat. The officers agreed. Neither Defendant nor the fugitive appeared for booking the following day nor did either of them make any further appearances related to that case.
The Mailings
On November 28, 2011, the Bayamon Superior Court issued a judgment forfeiting the bond issued in favor of the fugitive. The judgment was mailed to the Allegheny Casualty Company's agent in Puerto Rico. On July 13, 2013, Allegheny Casualty Company mailed a check payable to the Puerto Rico Treasury Department to the offices of Allegeny's agent in Puerto Rico for the bond amount, $24,000.00. Authorities apprehended the fugitive in 2015.
II. RELEVANT PROCEDURAL BACKGROUND
On September 15, 2016, at the close of the United States' case in chief, Defendant orally moved for a judgment of acquittal on all counts pending against him. See, e.g., Docket No. 344. As to the mail fraud counts, Defendant alleged that the mailings subject of the counts were not executed "in furtherance of the scheme to defraud," as the law requires. As to the obstruction of justice counts, Defendant argued the government had not provided sufficient proof upon which a juror could find beyond a reasonable doubt that Defendant was aware of Rodriguez-Rodriguez's status as a federal fugitive at on July 14, 2011. Finally, as to the harboring a fugitive count, Defendant posited that he had not committed an affirmative, physical act intending to shield Rodriguez-Rodriguez from capture.
On February 21, 2017, after being found guilty of all counts charged, Defendant supplemented his oral motion in writing. See Docket No. 388. Defendant used trial transcripts to buttress his position that the evidence did not support the government's argument that Defendant had committed an affirmative, physical act directed towards assisting Rodriguez-Rodriguez in his flight. Finally, Defendant averred that the timeline of his visits with Marcian at MDC did not support the inference that Defendant knew Rodriguez-Rodriguez was a federal fugitive when he appeared on his behalf in 2011.
On March 14, 2017, the United States filed its response to Defendant's motion for acquittal. The Government argued the mailings subject of the indictment were, indeed, in furtherance of Defendant's scheme to defraud the bonding company. See Docket No. 393. Moreover, the government pointed to an additional visit by Defendant to MDC which supports the jury's inference that Defendant had knowledge of Rodriguez-Rodriguez's federal warrant.
On May 16, 2017, Defendant filed a supplement to his original motions to further argue that the mailings were not in furtherance of his alleged scheme to defraud. See Docket No. 401. Defendant asseverated the mailings hampered his scheme.
On May 19, 2017, the United States filed a reply to Defendant's recent supplement. The United States dismissed Defendant's arguments and provided case law in support of their position that the mailings were essential to Defendant's fraudulent scheme. See Docket No. 404.
On May 24, 2017, Defendant filed a reply to the United States' response. See Docket No. 406. Defendant argued that the second charged objective of the scheme, to deprive the Allegheny Casualty Company of the $24,000.00 bond amount, was not an objective, but a consequence, of the charged scheme.
III. STANDARD OF REVIEW FOR MOTION FOR ACQUITTAL UNDER FED. R. CRIM. P. 29
Federal R. Crim. P. 29 provides that the Court, upon defendant's request and after the close of the government's case, must enter a judgment of acquittal on any offense for which the evidence is insufficient to sustain a conviction. "The [trial] tribunal must discern whether, after assaying all the evidence in the light most flattering to the government, and taking all reasonable inferences in its favor, a rational fact finder could find, beyond a reasonable doubt, that the prosecution successfully proved the essential elements of the crime." United States v. Hernandez, 146 F.3d 30, 32 (1st Cir. 1998)(citing United States v. O'Brien, 14 F.3d 703, 706 (1st Cir. 1994)).
In analyzing a Rule 29 motion, "[v]iewing the evidence in the light most flattering to the jury's guilty verdict, [the Court must] assess whether a reasonable factfinder could have concluded that the defendant was guilty beyond a reasonable doubt." United States v. Lipscomb, 539 F.3d 32, 40 (1st Cir. 2008). Thus, "Rule 29 requires that a deciding court defer credibility determinations to the jury." Hernández, 146 F.3d at 32 (citing O'Brien, 14 F.3d at 706); United States v. Walker, 665 F.3d 212, 224 (1st Cir. 2011) ("we take the facts and all reasonable inferences therefrom in the light most agreeable to the jury's verdict."). Additionally, the Court "must be satisfied that 'the guilty verdict finds support in a plausible rendition of the record.'" United States v. Pelletier, 666 F.3d 1, 12 (1st Cir. 2011)(quoting United States v. Hatch, 434 F.3d 1, 4 (1st Cir. 2006)).
This standard is a "formidable" one, especially as "[t]he government need not present evidence that precludes every reasonable hypothesis inconsistent with guilt in order to sustain a conviction." United States v. Loder, 23 F.3d 586, 589-90 (1st Cir. 1994)(internal quotation marks omitted). Moreover, there is no "special premium on direct evidence." O'Brien, 14 F.3d at 706. "[T]he prosecution may satisfy its burden of proof by direct evidence, circumstantial evidence or any combination of the two." Id. (citing United States v. Echevarri, 982 F.2d 675, 677 (1st Cir. 1993)). Expressed in alternate fashion, "no premium is placed on direct as opposed to circumstantial evidence; both types of proof can adequately ground a conviction." United States v. Ortiz, 966 F.2d 707, 711 (1st Cir. 1992). As to evidentiary conflicts, "the trial judge must resolve all evidentiary conflicts and credibility questions in the prosecution's favor; and moreover, as among competing inferences, two or more of which are plausible, the judge must choose the inference that best fits the prosecution's theory of guilt." United States v. Olbres, 61 F.3d 967, 970 (1st Cir. 1995); see Hernández, 146 F.3d at 32 (the trial court is required to "consider all the evidence, direct and circumstantial, and resolve all evidentiary conflicts in favor of the verdict.")(citing United States v. Carroll, 105 F.3d 740, 742 (1st Cir. 1997)). On the other hand, "[t]he court must reject only those evidentiary interpretations that are unreasonable, unsupportable, or only speculative and must uphold any verdict that is supported by a plausible rendition of the record." United States v. Ofray Campos, 534 F.3d 1, 31-32 (1st Cir. 2008); see also United States v. Cruz Laureano, 404 F.3d 470, 480 (1st Cir. 2005) (urging the trial court "not to believe that no verdict other than a guilty verdict could sensibly be reached, but must only satisfy itself that the guilty verdict finds support in a plausible rendition of the record.")(citing United States v. Gómez, 255 F.3d 31, 35 (1st Cir. 2001)). Nevertheless, "despite the prosecution-friendly overtones of the standard of review, appellate oversight of sufficiency challenges is not an empty ritual." United States v. De La Cruz Paulino, 61 F.3d 986, 999 n.11 (1st Cir. 1995).
III. ANALYSIS
Defendant takes issue with the sufficiency of the evidence presented by the government as to all counts charged in the indictments. The Court must consider all facts in the light most favorable to the prosecution and make all reasonable inferences in the government's favor. United States v. Garcia-Carrasquillo, 483 F.3d 124, 129-30 (1st Cir. 2007); United States v. Boulerice, 325 F.3d 75, 79 (1st Cir. 2003); United States v. Walters, 904, F.2d 765, 770 (1st Cir. 1990); United States v. Serrano, 870 F.2d 1, 5 (1st Cir. 1989). The Court will uphold a guilty verdict if "a rational factfinder could conclude that the prosecution proved all elements of the crime beyond a reasonable doubt." See Garcia-Carrasquillo, 483 F.3d at 129-30. During its inquiry, the Court shall "neither weigh the credibility of the witnesses nor attempt to assess whether the prosecution succeeded in eliminating every possible theory consistent with the defendant's innocence." United States v. Munoz-Franco, 487 F.3d 25, 41 (1st Cir. 2007) (internal citations and quotations omitted).
For clarity purposes, the Court breaks down its analysis in the same three categories as Defendant in his oral motion. At the Court's urging, Defendant first addressed the mail fraud counts, 18 U.S.C. §1341; proceeded to the harboring counts, 18 U.S.C. §1071; and concluded by simultaneously discussing the two counts charging him with obstructing, influencing, or impeding the due administration of justice and obstructing, influencing, or impeding and official proceeding, 18 U.S.C. §1503 and §1512.
The jury found Defendant guilty of two counts of violating 18 U.S.C. §1341. A conviction for mail fraud requires proof of three elements: "(1) a scheme to defraud based on false pretenses; (2) the defendant's knowing and willing participation in the scheme with the intent to defraud; and (3) the use of interstate mail ... communications in furtherance of that scheme." United States v. Hebshie, 549 F.3d 30, 35-36 (1st Cir. 2008)(quoting United States v. Cheal, 389 F.3d 35, 41 (1st Cir.2004)). Defendant posits the government has failed to provide evidence upon which a reasonable juror could find beyond a reasonable doubt that Defendant used interstate mails in furtherance of his scheme. Nevertheless, Defendant's argument for acquittal of his mail fraud conviction "is less one of [insufficient] evidence than of legal characterization." United States v. Cacho-Bonilla, 404 F.3d 84, 90 (1st Cir. 2005).
Defendant seeks acquittal of his mail fraud convictions under the premise that the government failed to prove the "mailing element," which requires that "the defendant both (1) cause the use of the mails, which includes reasonably foreseeable mailings, and (2) use the mails for the purpose, or in furtherance, of executing the scheme to defraud." Id. (citing United States v. Moss, 591 F.2d 428, 436 (8th Cir.1979)). The mailing element is a worthy adversary, however, as "[t]hat language from the mail fraud statute has been given a 'liberal construction' by [the First Circuit Court of Appeals] and others." United States v. Pacheco-Ortiz, 889 F.2d 301, 305 (1st Cir. 1989)(quoting United States v. Serino, 835 F.2d 924, 928 (1st Cir.1987)).
To find the defendant guilty, the Court instructed the jury that it must find the scheme in evidence was "substantially as [the scheme] charged in the indictment." Docket No. 357 at page 24. After brief deliberations, the jury found the government proved beyond a reasonable doubt that the November 18, 2011 mailing of the judgment of the Bayamon Superior Court to the Allegheny Casualty Company's agent in Puerto Rico and the July 13, 2013, mailing of a $24,000.000 check for the fugitive's bond from the Allegheny Casualty Company in the United States to the offices of Allegeny's agent in Puerto Rico were "in furtherance" of Defendant's scheme to "defraud and obtain property and deprive of property" the Allegheny Casualty Company. See Docket No. 358 (Jury Verdict); see also 15-cr-410 at Docket No. 18 (Superseding Indictment).
Defendant made a cursory argument for dismissal of Count One because there was a discrepancy between the mailing address in the indictment and the mailing address where the mailing was received. This argument is of no consequence. Any reasonable juror could find that the mailing in evidence, which was received in Hato Rey, Puerto Rico, was substantially as the mailing charged in the indictment as going to Ponce, Puerto Rico as the substance of the mailing itself, the Judgment of the Bayamon Superior Court, was the same.
Defendant argues that mailings that further a scheme are "designed to lull the victims into a false sense of security, postpone their ultimate complaint to the authorities, and therefore make the apprehension of the defendants less likely than if no mailings had taken place." United States v. Tavares, 844 F.3d 46, 58-59 (1st Cir. 2016)(quoting United States v. Maze, 414 U.S. 395, 403 (1974)). Defendant avers the two mailings in question alerted the authorities that Rodriguez-Rodriguez had flown the coop and were counterproductive to the scheme. The only scheme in evidence, one to defraud the authorities and evade Rodriguez-Rodriguez's detection, had come to fruition on July 14, 2011 at the moment the fugitive left the courthouse. Defendant posits the posterior mailings of the judgment and the forfeited bond amount were of no consequence to his scheme.
Defendant's position is grounded upon his interpretation of the Supreme Court's decision in United States v. Maze, 414 U.S. 395 (1974). Thomas Maze stole his roommate's credit card and used it to obtain food and lodging in several motels across the United States while signing his roommate's name on each sales receipt. Id. at 396. These motels then mailed their invoices to the bank that issued Maze's roommate's credit card. Id. The indictment alleged, "respondent had devised a scheme to defraud the Louisville bank, Charles L. Meredith, and several merchants in different States by unlawfully obtaining possession of the BankAmericard issued by the Louisville bank to Meredith, and using the card to obtain goods and services." Id. Justice Rehnquist, writing for the court, held the mailings of invoices between the motels and the bank were not in furtherance of Maze's scheme as "[Maze's] scheme reached fruition when [he] checked out of the motel, and there is no indication that the success of his scheme depended in any way on which of his victims ultimately bore the loss." Id. at 402. Defendant draws a parallel between Maze and the facts in evidence. Defendant concludes his scheme was complete when the fugitive left the Bayamon courthouse. Similar to Maze, the mailings merely "increased the probability that respondent would be detected and apprehended." Id. at 403.
As stated above, courts are to interpret the mailing requirement broadly and apply it liberally. See Tavares, 844 F.3d at 58 (citing Schmuck v. United States, 489 U.S. 705, 710 (1989)). "A mailing can serve as the basis for a mail fraud conviction even if the fraud would have been successful had the mailing never occurred." Id. at 59. The mailing, however, "must at least have some tendency to facilitate execution of the fraud . . . [but] need not be an essential element of the scheme." Id. Although "the scheme's completion or the prevention of its detection must have depended in some way on the mailings, [the First Circuit has] not required a 'but-for' link between a mailing and the fraudulent scheme." Hebshie, 549 F.3d at 35 (quoting Pacheco-Ortiz, 889 F.2d at 305 and United States v. Pimental, 380 F.3d 575, 587 (1st Cir.2004))(internal marks omitted). A mailing need only be "incident to an essential element of the fraud." United States v. Pimental, 380 F.3d 575, 587 (1st Cir. 2004)(quoting Schmuck at 710-11).
What was Defendant's scheme?
The jury found Defendant guilty of misrepresenting the fugitive's identity in order to defraud, obtain property from, and deprive Allegheny Casualty Company of the $24,000.000 bond posted on the fugitive's behalf. Defendant avers the indictment charged him with a scheme that is not supported by the evidence provided at trial. He argues the loss of property borne by Allegheny Casualty Company was the result of Defendant's actual scheme to defraud the justice system and allow the fugitive to evade capture and not the result of a scheme to defraud Allegheny Casualty Company. To resolve this dispute, the Court must decide "whether the mailing is part of the execution of the scheme as conceived by [Defendant and the fugitive] at the time, regardless of whether the mailing later, through hindsight, may prove to have been counterproductive and return to haunt the perpetrator of the fraud." Hebshie, 549 F.3d at 46 (quoting Schmuck, 489U.S. at 715); see also Pacheco-Ortiz, 889 F.2d 301, 306.
The two components of the scheme, evading justice and defrauding Allegheny Casualty, are very closely tied together and the former may not have been possible without the latter. Therefore, both the bond company and the justice system are equal parts victims of the scheme and essential to the scheme's success. To wit, Defendant would have never been in a position to defraud the Allegheny Casualty Company without the judge first setting a reasonable bail amount. On the other hand, Defendant's scheme to defraud the authorities would have been unsuccessful without Allegheny Casualty Company's assistance in posting bail.
Defendant's true intention in setting the charged scheme against Allegheny Casualty Company in motion may well have been to defraud the local court system and avoid the fugitive's capture. However, Defendant's intended victims do not guide the Court's analysis. Instead, the Court need only be satisfied that a reasonable juror could find beyond a reasonable doubt that the scheme supported by the evidence is substantially as the scheme charged in the indictment. Here, the two schemes are virtually indistinguishable particularly because obtaining bail was an essential "part of the execution of the scheme as conceived by [Defendant] at the time." Hebshie, 549 F.3d at 38. The Court, therefore, finds the scheme in evidence is substantially as the one charged in the indictment.
Were the mailings in furtherance of the scheme?
Defendant is an attorney with over forty years of experience litigating in the Bayamon area. Defendant has ample criminal defense experience and, at the time of the events giving rise to the instant case, had worked with Allegheny Casualty Company on several occasions in order to secure bail for prior clients. It follows then that Defendant should have been aware that Allegheny Casualty Company is not a local bail bond outfit and, thus, any relevant documentation would have to be mailed between its offices in California and its offices in Puerto Rico.
Defendant also concedes that the government submitted sufficient evidence to support the inference that Defendant recognized Rodriguez-Rodriguez as a past client. Defendant's behavior on the night of the events supports the inference that he knew the fugitive's identity and worked towards concealing that fact from the authorities. Defendant, therefore, should have known Rodriguez-Rodriguez would not appear for any further proceedings in the case subject of his arrest and bail would then be forfeited. This inference is strengthened by the fact that Defendant also did not appear for booking the following day. It follows then that the mailings of the judgment and the check were both "reasonably foreseeable," Hebshie at 584, and "incident to an essential element of the fraud," Pimental, 380 F.3d at 587, although neither "contributed directly to the duping" of the victims. Hebshie at 38.
Conclusion
Although the "connection between the scheme and the mailing is unusually thin and the count[s] would better have been omitted . . . charging decisions belong to the prosecutor.". Cacho-Bonilla, 404 F.3d at 90. Once the charges are filed and a defendant is found guilty, all that is left for the Court to decide is whether a reasonable juror that a reasonable jury could find that these mailings in question were in furtherance of the charged scheme because they were incident to the most essential step in the scheme, obtaining and paying bail. It matters not whether the defendant's arguments fell short by an inch or by a mile. The Court finds the two mailings subject of the indictment satisfy the analytical framework proscribed by the First Circuit. Defendant's Motion for Judgment of Acquittal on the two mail fraud counts is DENIED.
ii. " Harboring Count"
Defendant was convicted of one count of violating 18 U.S.C. § 1071 for "harboring and concealing" Wilfredo Rordiguez-Rodriguez, a federal fugitive. To sustain a conviction under this statute, the government must prove beyond a reasonable doubt that "(1) a federal warrant has been issued for the fugitive's arrest, (2) the harborer had knowledge that a warrant had been issued for the fugitive's arrest, (3) the defendant actually harbored or concealed the fugitive, and (4) the defendant intended to prevent the fugitive's discovery or arrest." United States v. Zabriskie, 415 F.3d 1139, 1144-45 (10th Cir. 2005)(citing United States v. Mitchell, 177 F.3d 236, 238 (4th Cir.1999); see also United States v. Zerba, 21 F.3d 250, 252 (8th Cir.1994); United States v. Yarbrough, 852 F.2d 1522, 1543 (9th Cir.1988); United States v. Lockhart, 956 F.2d 1418, 1423 (7th Cir.1992)). The issue before the Court is whether the government provided sufficient evidence, direct or circumstantial, whereupon a reasonable juror could find that Defendant took "affirmative, physical action" directed towards harboring and concealing Rodriguez-Rodriguez. See United States v. Lockhart, 956 F.2d 1418, 1423 (7th Cir. 1992)("Some affirmative, physical action is required to "harbor or conceal" within the meaning of § 1071.").
Defendant has also attacked the sufficiency of the evidence regarding the second prong of the analysis, knowledge of the federal warrant pending against Rodriguez-Rodriguez. The Court will discuss this issue together with the tampering and obstruction counts, as all three require knowledge of a federal warrant. --------
"A person does not actually harbor or conceal in violation of that statute merely by lying to the police about the whereabouts of a fugitive." United States v. Mitchell, 177 F.3d 236, 239 (4th Cir. 1999) (citing United States v. Lockhart, 956 F.2d 1418, 1423 (7th Cir.1992); United States v. Magness, 456 F.2d 976 (9th Cir.1972); and United States v. Foy, 416 F.2d 940, 941 (7th Cir.1969)). Assisting a fugitive financially is similarly insufficient to satisfy the statutory requirement. See id. In United States v. Foy, the Seventh Circuit Court of Appeals found a defendant's statement that he had not seen a fugitive since the day before, despite the fugitive being in the defendant's apartment, was insufficient to sustain a conviction under § 1071. See Foy, 416 F.2d 941. In so holding, the court cautioned that the statute "must be construed narrowly, not to include all terms of assistance . . . [as t]hese are active verbs, which have the fugitive as their object.'" Id. Defendant clings on to the aforementioned line of case law and draws a parallel to his own acts that night. He argues his singular statement that he would take the fugitive to eat is passive and insufficient to constitute an affirmative physical act. However, in his dissent of the Foy decision, "Circuit Judge Knoch stated that it was his belief that some distinction should be drawn between a mere mute refusal to assist law enforcement officers and deliberate misstatements of fact designed to mislead the police so as to prevent a fugitive's discovery and arrest." 16 A.L.R. Fed. 253.
"[E]vidence that a defendant arranged for hotels and vehicles, rented apartments and shopped for a fugitive, or provided a fugitive with false identification, has been held sufficient to support a conviction under the statute." Mitchell, 177 F.3d at 239 (internal citations and marks omitted). Moreover, evidence that defendant knew his guests were fugitives, and evidence that the defendant actively worked to help them avoid arrest, was sufficient to support his conviction of harboring fugitives. See U.S. v. Leaming, 596 Fed. Appx. 535 (9th Cir. 2015); see also U.S. v. Robinson, 908 F. Supp. 2d 753 (W.D. Va. 2012)(". . . generally, the Government must prove a physical act of providing assistance, including food, shelter, and other assistance to aid the fugitive in avoiding detection and apprehension."). With those principles in mind, the Court discusses Defendant's actions on the night of the fugitive's arrest.
Despite arguments to the contrary, Defendant's acts toward concealing Rodriguez-Rodriguez on July 14, 2011 may not be reduced singular statement made to the judge. Instead, Defendant's affirmative physical actions began the moment he walked into the police station to represent the fugitive. Neither the government nor the defense introduced evidence to shed light on how Defendant knew when and where to appear in to represent the fugitive. A reasonable juror could then infer that someone with knowledge of the fugitive's situation sent Defendant to the station.
After appearing at the police station, Defendant appeared by the fugitive's side at the Pretrial Services Office and echoed his client's statements regarding his lack of identification and lack of personal information. After meeting with the pretrial services officers, Defendant appeared before the judge and attempted to shield the fugitive from identification by fending off questions about his social security number. Moreover, Defendant objected when the judge ordered electronic monitoring and assured the judge there would be no problem with the fugitive's appearance for further proceedings because he had previously represented the fugitive.
Defendant then took one more step when he arranged for the fugitive to sign a bonding contract with Allegheny Casualty Company. Defendant then facilitated the exchange of cash between an unknown individual and the company's bondsman. Only after Defendant took all those steps did he finally make his assurance that he would take the fugitive to eat, rest, and produce him for booking the following day. Altogether, a reasonable juror could have found beyond a reasonable doubt that all these steps taken by Defendant constitute an affirmative, physical act aimed at concealing the fugitive. Defendant's Motion for Judgment of Acquittal of his conviction under 18 U.S.C. § 1071 is DENIED.
iii. "Tampering and Obstruction Count"
Defendant's final argument encompasses his convictions under 18 U.S.C. §1071, §1503, and §1512(c). All three statutes require evidence whereupon a juror may find beyond a reasonable doubt that the defendant had knowledge that a federal arrest warrant was issued for Wilfredo Rodriguez-Rodriguez's arrest. As discussed above, a conviction under 18 U.S.C. §1071 requires proof of knowledge of the issuance of a federal warrant against the fugitive. See 18 U.S.C. §1071. Similarly, §1503 makes it a crime to "endeavor to influence, obstruct, or impede, the due administration of justice." 18 U.S.C. §1503. On this count, the Court instructed the jury they had to find beyond a reasonable doubt that "the defendant . . . knew that an arrest warrant had been issued for the arrest of Wilfredo Rodriguez-Rodriguez in a Federal criminal case in the United States District Court for the District of Puerto Rico." Docket No. 357 at 27. As to §1512(c), the jury was instructed that they were to find beyond a reasonable doubt that Defendant corruptly "obstructed, influenced, or impeded, or attempted to obstruct, influence, or impede" a pending official proceeding, to wit 10-cr-251(JAF), of which Defendant had knowledge. Id. at 28. "Knowledge of the warrant [or proceeding]. . . may be proven by either direct evidence or inference." Lockhart, 956 F.2d at 1423 (7th Cir. 1992)(citing United States v. Gros, 824 F.2d 1487, 1496 (6th Cir.1987)).
Defendant alleges the facts in evidence do not support the inference that he was aware of Rodriguez-Rodriguez's fugitive status when he undertook his representation on July 14, 2011. Defendant accepts sufficient evidence was introduced to support a finding that he recognized the fugitive as Wilfredo Rodriguez-Rodriguez. However, Defendant avers the timeline of the visits to MDC does not support the jury's inference of knowledge about Rodriguez-Rodriguez's status as a fugitive. Defendant posits the factfinder would have to speculate that Marcian had somehow obtained a copy of the indictment before arraignment, brought it down when he met with Defendant, discussed it with Defendant, and scrutinized the names of the codefendants. See United States v. Ofray Campos, 534 F.3d 1, 31-32 (1st Cir. 2008)("[t]he court must reject only those evidentiary interpretations that are unreasonable, unsupportable, or only speculative . . .").
However, on March 22, 2011, five months before Rodriguez-Rodriguez's arrest in Bayamon, Defendant again visited MDC. He signed in as a visitor for Marcian, Lechon, Peca, and Pupu, four members of the DTO and codefendants of Rodriguez-Rodriguez. At this time, it was evident that Rodriguez-Rodriguez had not been apprehended and it is reasonable to assume that at least one of these men was aware of Rodriguez-Rodriguez's status as a fugitive.
Aside from that visit, the government presented ample evidence about Defendant's relationship with Marcian and other members of the DTO, including Rodriguez-Rodriguez. Photographs, videos, and testimony were introduced to establish that Defendant maintained had a continuing relationship with Marcian and his associates, assisting them with several situations in the Virgilio Davila Housing Project, including the riot. Combined with instances where Defendant was seen meeting with Marcian in private and the instance where Defendant was seen at Marcian's residence, a reasonable juror could infer that Defendant was a trusted advisor of Marcian and his associates, including Rodriguez-Rodriguez, a high-ranking leader of the gang and owner of the drug points at the Brisas de Bayamon complex.
The jury, thus, inferred that Defendant went to MDC as part of his continuous relationship with members of the DTO of which Rodriguez-Rodriguez was a high-ranking member. Based on the evidence of Defendant's relationship with the DTO, his visit to MDC months after Marcian's arraignment, and the steps taken by Defendant to conceal Rodriguez-Rodriguez's identity on July 14, 2011, the Court holds reasonable juror could have found beyond a reasonable doubt that Defendant knew of Rodriguez-Rodriguez's status as a federal fugitive when appeared on his behalf in the Bayamon Superior Court. Defendant's Motion for Judgment of Acquittal of his convictions under 18 U.S.C. §1071, §1503, and §1512(c) is DENIED.
IV. CONCLUSION
For the reasons stated above, the Court finds that the government presented sufficient evidence whereupon a reasonable juror could find Defendant Lemuel Velilla-Reyes guilty on all counts charged. Accordingly, Defendant's Motions for Judgment of Acquittal (Docket Nos. 344, 388, and 401) are hereby DENIED. Sentencing will proceed as scheduled.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 12th day of June, 2017.
/s/ Daniel R. Dominguez
DANIEL R. DOMINGUEZ
U.S. DISTRICT JUDGE