United States Court of Appeals for the Fifth Circuit

“ The FBI gave Perez $260 to bribe Delgado, and told Perez that his client, Raul Sanchez, was in jail and had a motion to revoke probation pending in Delgado’s court. Perez called Delgado to set up a meeting with him at Delgado’s house.
On December 13, 2016, Perez went to Delgado’s house wearing a wire. Perez told Delgado that he had a client “sitting in jail” on a motion to revoke. He then asks Delgado: “You think we could do a little wood?” Delgado responds: “Oh yeah ... A lot of wood once we get to some fact finding.” ”

“ A On Counts Two through Four, the jury convicted Delgado of federal program bribery in violation of 18 U.S.C. § 666 (a) (1) (B) . Under that section, it is unlawful when any agent of a state government that receives more than $10,000 from any federal program: [3]
corruptly solicits or demands for the benefit of any person, or accepts or agrees to accept, anything of value from any person, intending to be influenced or rewarded in connection with any business, transaction, or series of transactions of such organization, government, or agency involving any thing of value of $5,000 or more. ”

“ We agree that these alternative approaches “are not in conflict” with one another and, generally, that “in evaluating the sufficiency of the evidence to support the jury’s verdict, a court should affirm if there is sufficient evidence to support the verdict under any of these methods.” Hardin, 874 F.3d at 676.
Here, rather than looking to the bribe amount, the trial evidence focused on the value of the PR bonds to Perez’s clients, who certainly qualify as interested third parties to the transactions between Delgado and Perez. ”

“ Because of the shortcomings inherent in examining a cold appellate record without the benefit of the dramatic insights gained from watching the trial, we review the evidence and all reasonable inferences in the light most favorable to the prosecution and to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. ”

“ As described above, Perez testified on direct that during the timeframe of the alleged conspiracy, Perez would meet at Delgado’s home to buy firewood at inflated prices and request favorable outcomes on behalf of his clients. He also provided a list of clients who he claimed received favorable outcomes as a result of the bribes, including PR bonds with face values of $5,000 and $10,000. Given that a conspiracy conviction can be based on the uncorroborated testimony of an accomplice, Shoemaker, 746 F.3d at 623, this evidence is sufficient to support a conviction for conspiracy. ”

“ Delgado tells Perez that he is “going to help [Perez] out” but that they need “to do it right” because he “do [esn’t] want people wondering.” Perez then pays him $260 for “wood” and two days later Sanchez is released on a PR bond. A rational juror could conclude that this was bribery.
Delgado’s nearly identical challenge to his conviction under Count Three similarly fails. The November 2017 sting involving Perez’s client Lucio Leija and his pending motion to revoke played out in similar fashion to the December 2016 sting. ”

“ Beginning with the 2008 pickup truck incident, Delgado argues that the evidence put forth by the Government is insufficient to show an agreement between Delgado and Perez to commit bribery. We agree that the truck incident does not support the conspiracy conviction. ”

“ After confirming that the case is being prosecuted by the state, rather than the federal government, Delgado implies that the federal government is trying to set up someone. Delgado then explains to Perez why he thinks the federal government would decline to prosecute a case like Maldonado’s: “’Cause they want that skunk to go up the state system which is, in their view, fucking corrupt. ”

“ The district court sentenced Delgado to 48 months’ imprisonment on Counts One, Five, Six, and Seven, and 60 months’ imprisonment on Counts Two, Three, Four, and Eight—with both sentences to be served concurrently—followed by two years of supervised release.
On appeal, Delgado challenges the sufficiency of the evidence supporting each conviction. He also appeals his sentence on the ground that the district court improperly applied a six-level enhancement under U.S.S.G. § 2C1.1 (b) (2) due to an incorrect calculation of the total “benefit received” in exchange for the bribes. We affirm. ”

“ The two initially met at a restaurant, but then went to Carlos Guerra’s house (no known relation to Roberto Guerra) . There, Hinojosa informed Delgado of his conversation with Roberto Guerra: that he had heard that Delgado “was being investigated by the FBI for selling overpriced firewood ... [or] the mesh case.” Hinojosa also told Delgado (according to the testimony of Carlos Guerra) that Hinojosa knew “an investigator on the inside” who had told him that “there [was] an investigation.” Delgado, upon receiving this news, “was very defiant” and “angry.” ”

“ Count Four was premised on the January 2018 sting where Perez paid Delgado $5,500 in cash after discussing Perez’s client Joe Garza. Delgado repeats his same argument about Perez’s testimony and the lack of an explicit agreement, but also argues that the evidence shows that Delgado met Perez with the expectation that he would be receiving a legitimate campaign contribution rather than a bribe. ”

“ Id. § 1952 (b) . Phones are considered facilities in interstate commerce. United States v. Marek, 238 F.3d 310, 318 (5th Cir. 2001) .
There is no real dispute that the § 1952 (a) (3) convictions on Counts Five through Seven rise and fall with their corresponding federal program bribery convictions on Counts Two through Four. During both the December 2016 sting (Count Two/Count Five) and the November 2017 sting (Count Three/Count Six) , Perez called Delgado on his phone to set up the meetings at Delgado’s house where Delgado accepted bribes. ”

“ In such cases, while the bribe amount may accurately set a valuation “floor,” there may be reasons to believe that the bribe amount significantly underappreciates the actual value of the transaction. ↑ Delgado makes no argument on appeal that the jury was misinstructed as to the term “value” or that he was limited in any way on this point in making his closing argument. ”