FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS [Hon. Denise J. Casper, U.S. District Judge]
William J. Cintolo, with whom Thomas R. Kiley and Cosgrove
Eisenberg & Kiley, PC were on brief, for appellant.
M. DiSantis, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief, for
Howard, Chief Judge, Selya and Kayatta, Circuit Judges.
familiar lore that in Lord Acton's words, "[p]ower
tends to corrupt, and absolute power corrupts
absolutely." John Emerich Edward Dalberg-Acton,
Historical Essays and Studies (1907). The
circumstances of this case remind us of that venerable
the government charges that the defendant - an entrenched
political satrap - used his political clout to divert federal
funds granted to a state agency and, in the bargain,
transgressed federal criminal law. A jury agreed and found
the defendant guilty on charges of conspiracy and
embezzlement from a federally funded organization.
See 18 U.S.C. §§ 371,
666(a)(1)(A). The district court sentenced the defendant
to a 60-month term of immurement on the conspiracy count and
a 70-month term of immurement on the substantive offense
count (to run concurrently). As part of the sentence, the
court directed the defendant to make restitution in the
amount of $688, 772. Later, the court ordered the defendant
to forfeit an additional $1, 382, 214 in ill-gotten gains.
appeal, the defendant strives to challenge his conviction,
his sentence, and the forfeiture order. After careful
consideration of his asseverational array, we conclude that
his variegated challenges to his conviction are without
merit. We also reject his four claims of sentencing error,
including one - a challenge to a position-of-trust
enhancement - that requires us to address a question of first
impression in this circuit. Finally, we do not reach his
challenge to the substance of the forfeiture order because we
conclude that the district court lacked jurisdiction to enter
that order. Accordingly, we affirm his conviction and
sentence, vacate the forfeiture order, and remand so that,
once jurisdiction has reattached, the district court may
address the question of forfeiture anew.
rehearse the facts in the light most hospitable to the
verdict, consistent with record support." United
States v. Maldonado-Garcia, 446 F.3d 227, 229 (1st Cir.
2006). In the process, we draw all reasonable inferences from
the evidence in favor of the verdict. See id.
John George, Jr., operated a bus system on behalf of a
regional transit authority funded by the Commonwealth of
Massachusetts and the federal government. This authority,
known as the Southeast Regional Transit Authority (SRTA), is
the governmental body responsible for providing
transportation to certain cities and towns in southeastern
Massachusetts. SRTA is strictly administrative: although it
owns the buses, facilities, and equipment used to run the
system, it does not itself operate any buses. Instead, SRTA
contracts with a private entity that uses SRTA's
resources to operate and maintain the bus system. SRTA's
advisory board, composed of representatives of the
municipalities that it serves, selects this entity.
1980 to 1988, the defendant, a former Dartmouth selectman,
served on SRTA's advisory board. In 1988 - after being
elected to the Massachusetts House of Representatives - he
resigned from that advisory board. Simultaneously, he
arranged for his friend and political ally, Joseph Cosentino,
to replace him.
defendant resigned from the legislature three years later and
purchased Union Street Bus Company (USBC). The defendant
effected this purchase through a corporation known as
Trans-Ag Management, Inc. (Trans-Ag). The defendant was the
sole owner and sole employee of Trans-Ag, and - aside from
paying the defendant's salary and contributing to his
pension - Trans-Ag's only function was to serve as the
nominal owner of USBC.
time of the purchase, USBC had a contract to operate the SRTA
bus system through 1995. After the defendant assumed control
of USBC, the contract was thrice renewed, the last renewal
(for a five-year term) occurring in 2006 (the Agreement). The
evidence of record supports an inference that the defendant
maneuvered his way into the Agreement through collusion with
Cosentino (by then, the defendant had lost the crucial
support of the City of Fall River, purportedly over his
refusal to hire one of the mayor's cronies, and felt
threatened by competition for the contract from a national
company). Among other things, the defendant brought in a high
bidder to make his own bid appear more attractive and
furnished Cosentino with questions meant to discredit his
main competitor's bid.
the Agreement, USBC's expenses were, in effect, paid by
SRTA with public funds: the Agreement bound SRTA to pay USBC
the difference between USBC's operating expenses and
USBC's operating income. Revenue from bus fares was
USBC's exclusive source of operating income; its
operating expenses included payroll, exclusive of the
salaries of its corporate officers. In practice, this
exclusion applied only to the defendant, as USBC had no other
corporate officers. Withal, the Agreement specifically named
the defendant as USBC's general manager, and SRTA
separately paid USBC a management fee that gradually rose
from $199, 714 for 2006 to $266, 711 for 2010. SRTA required
preapproval of any capital expenditures proposed by USBC and
funded approved expenditures as a distinct line item.
proof adduced at trial indicated that the defendant misused
USBC's funds (reimbursed by SRTA) in several respects.
Three instances involved paying individuals for full-time
USBC jobs while they worked instead for the defendant's
(unrelated) personal business, a farm. Some details follow.
2010, USBC paid Sandra Santos, the defendant's
girlfriend, approximately $100, 000 in total compensation
(reimbursed by SRTA). At that time, Santos was employed by
USBC as either an "administrative assistant" or
"assistant administrator" (the record is
inconclusive as to which title obtained). In any event, she
was only sporadically at her office between 2005 and 2011:
though USBC's office hours were 8:00 a.m. to 4:30 p.m.,
she typically appeared only "once or twice a week, if at
all" in the summertime. A USBC employee testified that
he could not recall Santos ever having worked her allotted
forty-hour week. By like token, workers at the
defendant's farm testified to her daily (though not
continuous) presence at the farm stand, where she worked as a
supervisor, frequently during USBC's regular business
hours. The evidence at trial permitted a finding that, from
May to September of 2010, Santos was absent from her job at
USBC for 370.25 hours, costing USBC (and, thus, SRTA) $17,
Rocha, a night supervisor at USBC and a long-time friend of
the defendant, would routinely abandon his shift shortly
after arriving and take a company car to work at the
defendant's farm or do personal chores for the defendant.
Rocha's sole compensation for this work was his USBC
salary (reimbursed by SRTA). In 2010, the cost of that salary
(including benefits) was approximately $90, 000.
record tells a similar tale with respect to Ronald Pacheco, a
USBC mechanic. The defendant would peremptorily summon
Pacheco from his USBC duties to do repairs at the farm.
Additionally, Pacheco sanded and painted tractor parts
belonging to the farm at the SRTA-owned garage using
SRTA-owned equipment during his USBC shift. At USBC, the farm
came first: when Pacheco's immediate superior (Al
Fidalgo) asked to postpone Pacheco's assistance on a farm
job to focus on urgent bus repairs, the defendant called
Fidalgo's supervisor and insisted that Pacheco be sent to
the farm forthwith.
was more. In early 2006, USBC paid $10, 000 in
SRTA-reimbursable funds to Sousa Construction, ostensibly for
terminal repairs. However, USBC's maintenance supervisor
testified that he knew of no work done by Sousa Construction
for USBC during that period. In addition, there was evidence
that Santos and the defendant were then discussing remodeling
the kitchen at the defendant's home, and that a Sousa
Construction truck was seen there.
examples of the defendant's misuse of SRTA resources
populate the record. For instance, the defendant used SRTA
trucks to plow snow at both his home and his farm. So, too,
SRTA equipment for repairing air conditioning systems on
buses was used by Pacheco at the defendant's farm. What
is more, the defendant had Pacheco (during his USBC shift)
install a SRTA-owned video surveillance system at the farm.
the defendant's standpoint, matters began to unravel when
Cosentino, having assumed the SRTA administrator post, got
religion. He began pushing back (albeit gently, at first)
against inappropriate uses of SRTA resources. When Cosentino
went further and advertised the upcoming contract renewal in
a national magazine, the defendant threatened to have him
fired - a threat that materialized in September of 2010.
Despite Cosentino's firing, SRTA awarded a new contract
to a rival firm, thus ending the defendant's reign.
investigation ensued. As a result, a federal grand jury
indicted the defendant on August 5, 2014. The indictment
charged the defendant with embezzling from an organization
that receives federal funds, see 18 U.S.C. §
666(a)(1)(A), and conspiracy to commit an offense against the
United States, see id. § 371. After a nine-day
trial, the jury convicted the defendant on both counts.
29, 2015, the district court sentenced the defendant to a
70-month term of immurement on the embezzlement count and a
60-month term of immurement on the conspiracy count (to run
concurrently). The court ordered the defendant to pay
restitution in the amount of $688, 772. With the consent of
both parties, the court reserved the question of forfeiture.
court entered its written judgment on July 30, 2015,
immediately after denying the defendant's post-trial
motion for judgment of acquittal. See Fed. R. Crim.
P. 29(c). The defendant filed his notice of appeal the
August 13, 2015 - while this appeal was pending - the
district court held a hearing. On September 21, 2015, the
court amended its judgment to direct that the defendant
forfeit $1, 382, 214. The defendant did not file a second
notice of appeal.
defendant raises a gallimaufry of issues implicating his
conviction, his sentence, and the forfeiture order. We deal
sequentially with the more substantial of these issues. The
defendant's other arguments are insufficiently developed,
patently meritless, or both. As to those arguments, we simply
reject them out of hand, without further elaboration.
Sufficiency of the Evidence.
defendant's flagship claim challenges the sufficiency of
the evidence. With respect to this challenge, we review the
denial of his motion for judgment of acquittal de novo.
See United States v. Chiaradio, 684 F.3d 265, 281
(1st Cir. 2012). Our basic inquiry is "whether, after
assaying all the evidence in the light most amiable to the
government, and taking all reasonable inferences in its
favor, a rational factfinder could find, beyond a reasonable
doubt, that the prosecution successfully proved the essential
elements of the crime." Id. (quoting United
States v. O'Brien, 14 F.3d 703, 706 (1st Cir.
case, the government had to prove beyond a reasonable doubt
that the defendant was acting as an agent on behalf of a
state agency or organization; that he embezzled, stole,
obtained by fraud, knowingly converted, or intentionally
misapplied $5, 000 or more of property belonging to or under
the care, custody, or control of that agency or organization;
and that the agency or organization received, in any one-year
period, more than $10, 000 in federal assistance.
See 18 U.S.C. § 666. The defendant concedes
that he worked on behalf of SRTA; that SRTA was (and is) a
state agency or organization within the purview of the
statute; and that it received more than $10, 000 in federal
assistance during each of the years in question. The question
reduces, then, to the sufficiency of the government's
proof of the second element.
respect to this element, the defendant asserts that the
government did not prove that the salaries of his helpmeets
were embezzled, stolen, obtained by fraud, knowingly
converted, or intentionally misapplied. He makes this
assertion in the face of abundant evidence that these
individuals were routinely absent from USBC's premises
during their normal working hours and were instead toiling at
the defendant's farm. In the defendant's view,
evidence of absence from the workplace is meaningless without