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.
Starcher, Attorney, United States Department of Justice, with
whom Carmen M. Ortiz, United States Attorney, was on brief,
Howard, Chief Judge, Lynch and Lipez, Circuit Judges.
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.
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
careful review of the record and the law, we affirm.
recount the facts of the case as presented at trial,
reserving additional details of the testimony and procedural
history for the analysis that follows.
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.
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.
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.
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.
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
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.
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.
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.
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.
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."
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). 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)).
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