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United States v. Lopez-Cotto

United States Court of Appeals, First Circuit

February 27, 2018

UNITED STATES OF AMERICA, Appellee,
v.
PEDRO LOPEZ-COTTO, Defendant, Appellant.

         APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS Hon. Mark L. Wolf, U.S. District Judge.

          Michelle Menken, with whom The Law Office of Michelle Menken was on brief, for appellant.

          John Starcher, Attorney, United States Department of Justice, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.

          Before Howard, Chief Judge, Lynch and Lipez, Circuit Judges.

          LIPEZ, CIRCUIT JUDGE.

         Appellant Pedro Jose Lopez-Cotto ("Lopez"), a police officer in the City of Lawrence, Massachusetts, was indicted on charges of participating in a bribery scheme whereby he referred large numbers of vehicle towing requests to M & W Towing in exchange for a stream of benefits that included discounts on the purchase of abandoned cars and equipment. After a jury trial, Lopez was convicted of federal program bribery, lying to a federal agent, and obstructing justice while attempting to cover up the scheme.

         In this appeal, Lopez argues that the district court's jury instructions effected a constructive amendment of the indictment on the bribery count. He also argues that the inclusion of a unanimity instruction in the jury charge on the particular benefits included within the "stream of benefits" alleged by the government on the bribery count prejudiced him by confusing and misleading the jury. Additionally, he claims that the court admitted impermissible evidence of past bad acts and failed to adequately instruct the jury about the testimony of immunized cooperating witnesses.

         After careful review of the record and the law, we affirm.

         I.

         We recount the facts of the case as presented at trial, reserving additional details of the testimony and procedural history for the analysis that follows.

         M & W Towing is a business owned by Wilson Calixto, a friend of Lopez. Lopez also knew Carlos Ortiz, one of M & W's tow truck drivers, and Mayra Colon, the secretary at M & W. In June 2011, FBI agents visited M & W Towing to ask Calixto about a snow plow that Lopez had purchased from a third party earlier that year. Lopez had bought the plow for $4, 000 using a check signed by Calixto and drawn from M & W's account. Calixto told the FBI agents that Lopez had never reimbursed him for the cost of the plow.

         After the FBI left, Lopez and Calixto spoke about the FBI's visit. Lopez told Calixto that it was unethical for him to receive the plow and he could face suspension or jail. Colon, M & W's secretary, convinced Calixto that he should change his story to help Lopez. She suggested that Calixto tell the FBI that Lopez had reimbursed M & W, but he had forgotten because he was drunk at the time of the FBI agents' visit. To support this story, Colon created a fake receipt showing that Lopez had reimbursed M & W for the $4, 000 in February 2011. When the FBI visited M & W again, both Colon and Calixto told the agents that Lopez had paid for the snow plow. Around the same time, Lopez gave the FBI the fake receipt and told FBI agents that he had reimbursed M & W for the plow.

         Eventually, Calixto, Colon, and Ortiz all agreed to cooperate with the government in exchange for immunity. This cooperation led to Lopez's indictment on charges of federal program bribery in violation of 18 U.S.C. § 666(a)(1)(B), making a false statement to a federal agent in violation of 18 U.S.C. § 1001, and obstruction of justice in violation of 18 U.S.C. § 1512(c)(2). Lopez pleaded not guilty. Calixto, Colon, and Ortiz testified at Lopez's trial.

         There, the government presented evidence that Lopez had been illegally using his position as a police officer to receive benefits from M & W. During the relevant time period, the City of Lawrence contracted with four towing companies, one of which was M & W. These four companies towed vehicles for the Lawrence Police Department one week per month during each company's respective "police week." During that assigned week, patrolmen like Lopez would call the company whenever they needed a vehicle to be towed due to a violation, such as illegal parking or unlicensed driving. In return, the towing companies earned money from the tows, either from fees paid by the vehicle's owner when the owner claimed the car or from the sale of abandoned cars. On average, M & W earned $145 each time an owner reclaimed his or her towed car.

         The government presented evidence that Lopez abused this towing system. Ortiz testified that Lopez approached him in December 2010 to inquire about a Suzuki Reno that had been abandoned in M & W's lot. M & W was asking $4, 500 for the vehicle, but Lopez proposed that he pay $1, 000 in cash and then refer for towing at least 35 vehicles during M & W's police week. Ortiz relayed the proposal to Calixto, who calculated that the value of the tows plus the $1, 000 in cash was worth much more than his asking price. Calixto testified that he also became worried that if he did not agree to Lopez's proposal, Lopez would "shut off" M & W and prevent it from towing vehicles during its police week. Lopez had mentioned to Calixto that after another towing company, Valley Towing, refused to give him a discount, he decided that "he wouldn't tow no vehicles for that company unless it was really necessary." Calixto accepted Lopez's offer for the Suzuki.

         The government corroborated Calixto's testimony with evidence that Lopez ordered many more cars towed during M & W's police weeks in December 2010 and January 2011 than he had during the same months of the previous year. Calixto also testified that, after this increase, Lopez began to show interest in additional abandoned vehicles on M & W's lot. As a result, Calixto sold Lopez a Ford Escape for $1, 000, despite an asking price of $1, 500, and he gave Lopez a Nissan Altima without any direct payment. Calixto further testified that he bought Lopez a new engine for the Altima after the car began experiencing mechanical problems. Lastly, in February 2011, Lopez asked Calixto for a snow plow to attach to his truck. In response, Calixto gave Lopez a blank, signed check drawn from M & W's account for the purpose of purchasing a plow -- the transaction about which the FBI agents later questioned Calixto during their June 2011 visit to M & W.

         Calixto admitted at trial that he and Lopez never explicitly discussed trading a specific number of tows for the Escape, the Altima, the car engine, or the plow. However, Lopez continued to refer a high volume of tows to M & W, and Calixto felt that the tows served as adequate compensation for these items. The government bolstered Calixto's testimony with evidence showing that Lopez continued to request more tows during M & W's police weeks through June 2011 -- excluding the month of April -- than he had during the same months the year before. According to Calixto, Lopez explained the April slow-down as a reaction to his fear that he was being investigated.

         During closing arguments, the government stated that Lopez had directed a total of 162 tows to M & W during the period in question. Multiplied by an average of $145 in fees earned for each non-abandoned car, those tows came to approximately $23, 000 in revenue for M & W. The jury found Lopez guilty on all three counts. Lopez was sentenced to 18 months of incarceration followed by 36 months' supervised release, and was ordered to pay a fine of $10, 000. He timely appealed his conviction.

         Lopez makes four arguments on appeal: (1) a combination of problems with the jury instructions on the bribery charge effected a constructive amendment of the indictment; (2) the unanimity instruction, requiring the jury to agree unanimously on the particular benefit or benefits included within the "stream of benefits" alleged by the government on the bribery charge, was, on its own, confusing, misleading, and prejudicial; (3) the court erred in admitting testimony about Lopez's past actions toward Valley Towing; and (4) the jury was inadequately instructed on how to evaluate the credibility of immunized cooperating witnesses. We consider each of these arguments in turn.

         II.

         Lopez contends that several errors in the jury instructions on the bribery charge, taken together, constituted a constructive amendment of the indictment. "[A] constructive amendment occurs where the crime charged has been altered, 'either literally or in effect, ' after the grand jury last passed upon it." United States v. Mubayyid, 658 F.3d 35, 49 (1st Cir. 2011) (quoting United States v. Bunchan, 626 F.3d 29, 32 (1st Cir. 2010)). Lopez asserts that the flawed instructions improperly allowed the jury to find him guilty based on an agreement for a single benefit rather than, as he was charged, an agreement for a "stream of benefits."

         Lopez concedes that he never raised this constructive amendment issue in the district court. Plain error review, therefore, applies. See United States v. McIvery, 806 F.3d 645, 651 (1st Cir. 2015).[1] To meet the plain error standard, Lopez must show: "(1) that an error occurred (2) which was clear or obvious and which not only (3) affected [his] substantial rights, but also (4) seriously impaired the fairness, integrity, or public reputation of judicial proceedings." Id. (quoting United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001)).[2]

         Before examining the asserted instructional errors that Lopez contends resulted in a constructive amendment, we briefly review the bribery statute under which he was convicted, 18 ...


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