United States Court of Appeals

United States Court of Appeals

For the First Circuit

Nos. 12-1289, 12-1290 UNITED STATES OF AMERICA, Appellee, v.

JUAN BRAVO FERNANDEZ; HECTOR MART?NEZ MALDONADO, Defendants, Appellants.

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

[Hon. Francisco A. Besosa, U.S. District Judge]

Before Howard, Lipez, and Thompson,

Circuit Judges.

Martin G. Weinberg, with whom David Z. Chesnoff, Chesnoff & Schonfeld, Kimberly Homan, Jose A. Pagan, and Pagan Law Offices were on brief, for appellant Bravo Fernandez.

Abbe David Lowell, with whom Christopher D. Man and Chadbourne & Parke LLP were on brief, for appellant Mart?nez Maldonado.

Peter M. Koski, Deputy Chief, Criminal Division, Public Integrity Section, United States Department of Justice, with whom Lanny A. Breuer, Assistant Attorney General, and Mary Patrice Brown, Deputy Assistant Attorney General, were on brief, for appellee.

June 26, 2013

LIPEZ, Circuit Judge. This case presents multiple issues of substantial importance, including a question of first impression in this circuit on the interpretation of the federal program bribery statute, 18 U.S.C. ? 666. Defendants are a Puerto Rico legislator and a Commonwealth businessman who were charged, inter alia, with unlawfully exchanging a trip to Las Vegas to attend a prize fight for favorable action on legislation. A jury returned guilty verdicts against both men, Juan Bravo Fernandez ("Bravo") and Hector Mart?nez Maldonado ("Mart?nez"), and they now challenge their convictions on numerous grounds. Foremost is their contention that the jury was allowed to convict on a gratuity theory which is beyond the scope of ? 666.

Unlike most circuits to have addressed this issue, we conclude that ? 666 does not criminalize gratuities. Because the district court's instructions permitted the jury to find guilt on the ? 666 counts based on a gratuity theory, Defendants' convictions on that count must be vacated. In addition, we conclude that the Double Jeopardy Clause, though for reasons that differ for each Defendant, entitles both men to acquittal on their respective conspiracy charges.

I. A. Factual Background

We briefly summarize the relevant facts, reserving for our analysis a more detailed discussion of the facts relevant to

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each issue presented on appeal. We view the facts in the light most favorable to the jury's verdicts. See United States v. Ciresi, 697 F.3d 19, 23 (1st Cir. 2012).

From January 2005 until early 2011, Mart?nez served in the Senate of the Commonwealth of Puerto Rico.1 When Mart?nez became a senator he was assigned to the Public Safety Committee, where he served as chairman. Bravo was the president of Ranger American, a private firm that provides security services, including armored car transportation and security guard staffing.

In early 2005, Bravo advocated for the passage of legislation related to the security industry in Puerto Rico. One of these bills, Senate Project 410, addressed issues pertaining to security at shopping malls, while the other, Senate Project 471, involved licensing requirements for armored car companies. The government produced testimony at trial that the passage of these bills would have provided substantial financial benefits to Ranger American. As chairman of the Public Safety Committee, Mart?nez was in a position to exercise a measure of control over the introduction and progression of the bills through the Committee and the Senate.

1 The record does not specify the duration of Mart?nez's tenure in the Puerto Rico Senate. We take judicial notice of the fact that he resigned his seat in early 2011. See Fed. R. Evid. 201(b) (allowing a court to take judicial notice of a fact "not subject to reasonable dispute because it . . . can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned").

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On May 14, 2005, prominent Puerto Rican boxer F?lix "Tito" Trinidad was scheduled to fight Ronald Lamont "Winky" Wright at the MGM Grand Hotel & Casino in Las Vegas, Nevada. On March 2, Bravo purchased four tickets to the fight at a cost of $1,000 per ticket. The same day, Mart?nez submitted Senate Project 410 for consideration by the Puerto Rico Senate. On April 20, Mart?nez presided over a Public Safety Committee hearing on Senate Project 471 at which Bravo testified. The next day, Bravo booked one room at the Mandalay Bay Hotel in Las Vegas. On May 11, Mart?nez issued a Committee report in support of Senate Project 471.

Bravo arranged for first-class airline tickets to Las Vegas for himself, Mart?nez, and another senator, Jorge de Castro Font.2 In Las Vegas, the three men stayed in separate rooms at the Mandalay Bay for two nights. Bravo paid for Mart?nez's room the first night, and de Castro Font paid for Mart?nez's room the second night. The men, along with de Castro Font's assistant, went out to dinner the day before the fight, with Bravo footing the $495 bill. The men attended the Tito Trinidad fight the next night, using the $1,000 tickets Bravo had purchased.

2 In 2008, Jorge de Castro Font was indicted on numerous counts relating to corruption by an elected official. See United States v. De Castro-Font, 587 F. Supp. 2d 353, 355 (D.P.R. 2008). On January 29, 2009, de Castro Font pled guilty to 21 counts of the indictment filed against him. He received a sentence of sixty months' imprisonment. See United States v. De Castro-Font, 08-CR337-01(FAB), Doc. 353 (D.P.R. May 17, 2011).

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