United States v. Vasquez

1

United States of America, Plaintiff-Appellee, v. Timothy Ray Vasquez, Defendant-Appellant.

No. 22-10766

United States Court of Appeals, Fifth Circuit

November 7, 2023

Appeal from the United States District Court for the Northern District of Texas USDC No. 6:20-CR-1-1

Before Wiener, Willett, and Douglas, Circuit Judges.

PER CURIAM:^[*]

Defendant-Appellant Timothy Ray Vasquez, former Police Chief for the City of San Angelo, Texas, accepted money from a city vendor in exchange for Vasquez's support of the vendor's future contracts with the city. A jury convicted Vasquez of bribery and honest-services mail fraud. On appeal, Vasquez challenges the district court's jury instructions and the sufficiency of the government's evidence against him. We AFFIRM.

In 2007, Vasquez was the elected Police Chief of San Angelo. He was part of a twelve-member committee tasked with overseeing a competitive bidding process for a new radio system for the city's public safety agencies. The committee awarded the contract, worth approximately $6 million, to Dailey &Wells Communications, Inc. ("D&W").

Vasquez was not merely a police officer: He also had a side gig in rock and roll. His band, Funky Munky, played at events and weddings across the San Antonio area. In April 2007-after the committee had recommended D&W for the radio contract but before the contract had been officially awarded-D&W began hiring Funky Munky to play at corporate events. D&W would pay Funky Munky at least three times more than the band usually charged. Between 2007 and 2014, D&W paid Vasquez a total of $84,000 for ten performances. As leader of the band, Vasquez deposited D&W's payments into his personal bank account. D&W also gifted Vasquez tickets to various professional sporting events.

In 2014, after two successful reelection campaigns by Vasquez it was again time for the city to update its radio systems. Although the city usually used a competitive bidding model to award such contracts (as it had in 2007), Vasquez invoked a "public safety exception" to avoid the lengthy process for requesting proposals. At a June 2015 City Council meeting, Vasquez advocated for D&W to receive the new contract. Although some councilmembers had concerns about D&W, they ultimately voted to approve the contract, again worth almost $6 million. Several councilmembers noted that Vasquez's support of D&W was crucial to their decision to vote in favor of the contract. Many of the councilmembers who testified at Vasquez's trial stated that, had they known about his financial relationship with D&W, they would have voted differently.

From 2016 to 2019, Vasquez received another $86,000 from D&W. That total included a $50,000 lump sum given in December 2016, considered a "retainer" for ten future performances, which were played over the next three years. That payment was made soon after Vasquez discovered that he was being investigated by law enforcement.

Vasquez was indicted in January 2020, charged with one count of federal-programs bribery, in violation of 18 U.S.C. § 666(a)(1)(B), and three counts of honest-services mail fraud in violation of 18 U.S.C. §§ 1341 and 1346. At trial, Vasquez testified that he made a mistake by failing to disclose his relationship with D&W to the City Council but that he saw his band's performances and his work on the radio contracts as "two totally different things." The jury found Vasquez guilty of all charges and he was sentenced to 186 months of imprisonment. On appeal, Vasquez contends that the district court gave an incorrect instruction on the honest-services fraud count and challenges the sufficiency of the evidence to convict him of bribery.

II.

Section 1346 of Title 18 of the U.S. Code proscribes using mail or wire fraud to "deprive another of the intangible right of honest services." This statute was intended to reach fraud that did not result in the traditional symmetry between benefit to the perpetrator and harm to the victim. Skilling v. United States, 561 U.S. 358, 400 (2010) ("Skilling I"). For example, if a city official accepts a bribe from a third party in exchange for awarding a contract to that party, that official defrauds the public, even if the contract resulted in savings for the city. See id. The acceptance of the bribe deprives the public of its right to the official's honest services. See id.

The Supreme Court has construed § 1346 to encompass only bribery and kickback schemes. Id. at 408-09. Thus in proving honest-services fraud, the government must also prove that the defendant engaged in either bribery or kickbacks, as defined by those federal statutes. Id. at 412-13 (citing 18 U.S.C. §§ 201(b) (bribery of public officials), 666(a)(2) (bribery concerning federal programs); 41 U.S.C. § 52(2) (definition of kickback)^[1]); see also United States v. Nagin, 810 F.3d 348, 351 (5th Cir. 2016).

At Vasquez's trial, the district court gave the government's requested jury instruction on honest-services mail fraud based on bribery or kickbacks, which was taken from the Department of Justice's Criminal Appellate Division's suggested charge:

Bribery and kickbacks involve the exchange of a thing or things of value for official action by a public official, in other words, a quid pro quo (a Latin phrase meaning "this for that" or "these for those"). Bribery and kickbacks also include offers and solicitations of things of value for official action .... [A]ll that must be shown is that payments were made with the intent of securing a specific type of official action in return. Payments may be made with the intent to retain the official's services on an as needed basis so that whenever the opportunity presents itself, the public official will take specific official actions on the giver's behalf.

The court further instructed that a kickback is "any money, fee, commission, credit, gift, gratuity, thing of value, or compensation of any kind." That definition comes from the statute, 41 U.S.C. § 52(2), which has also been incorporated into this court's pattern instructions. See Fifth Circuit Pattern Jury Instructions (Criminal) § 2.56 (2019).

On appeal, Vasquez challenges two components of the instruction: (1) the inclusion of the word "gratuity" in the definition of kickback, and (2) the "whenever the opportunity presents itself" language.

A.

First, the parties dispute the appropriate standard of review for a challenge to jury instructions. Vasquez asserts that the court should apply a harmless error standard, given the district court's "alternative-theory error," which allowed the jury to convict him on an improper theory of guilt. The government counters that plain error analysis is appropriate because Vasquez failed to object properly to the instruction at the charge conference. Because Vasquez's arguments fail even the less stringent standard of harmless error, we decline to engage in the issues of waiver and forfeiture raised by the government.

An alternative-theory error occurs when "a jury rendering a general verdict was instructed on alternative theories of guilt and may have relied on an invalid theory." United States v. Skilling, 638 F.3d 480, 481 (5th Cir. 2011) ("Skilling II"). Vasquez alleges that the district court wrongfully instructed the jury that it could convict on either a bribery or a gratuity theory of honest-services fraud. He claims the gratuity basis is an "invalid theory" of guilt of this crime, making the district court's instruction an alternative-theory error. Under the harmless error standard, we will affirm the jury's findings if we "conclude beyond a reasonable doubt that the jury verdict would have been the same absent the error," or "if the jury, in convicting on an invalid theory of guilt, necessarily found facts establishing guilt on a valid theory." Id. (first quoting Neder v. United States, 527 U.S. 1, 19 (1999), then citing United States v. Howard, 517 F.3d 731, 738 (5th Cir. 2008)).

Bribery requires that an impermissible gift be given with the intent to influence an official act, whereas a gratuity is given "for or because of" an official act. United States v. Sun-Diamond Growers of Cal., 526 U.S. 398, 404 (1999). While bribery thus requires a quid pro quo, a gratuity may be a "reward for some future act that the public official will take . . . or for a past act that he has already taken." Id. at 405. Vasquez contends that the district court's instruction allowed the jury to convict him of honest-services fraud under an impermissible definition of bribery and kickback, which allowed for a gratuity (as opposed to a quid pro quo) theory of fraud.

The instruction did no such thing. Section 1346 itself does not require a quid pro quo such that a gratuity can never satisfy its "predicate" offense. Federal-programs bribery under 18 U.S.C. § 666(a)(2) and bribery of public officials under § 201(b) both require a quid pro quo, but the kickback statute, 41 U.S.C. § 52(2), does not. See Sun-Diamond, 526 U.S. at 405-06; United States v. Hamilton, 46 F.4th 389, 398 (5th Cir. 2022). And the only mention of the word "gratuity" by the district court came in its instructions' definition of "kickback," which came directly from the federal statute. See Whitfield v. United States, 590 F.3d 325, 354 (5th Cir. 2009) ("It is well-settled that a district court does not err by giving a charge that tracks this Circuit's pattern jury instructions and that is a correct statement of the law."). Since honest-services fraud may be based on either bribery or kickbacks, and since we have been tasked with assessing honest services through the lens of federal statutes "proscribing" and "defining" those crimes, this instruction was not given in error. Skilling I, 561 U.S. at 412-13.

Furthermore even if the instruction...