United States v. Quintanilla
Citation114 F.4th 453
Date Filed2024-08-30
Docket23-40033
Cited15 times
StatusPublished
Full Opinion (html_with_citations)
Case: 23-40033 Document: 172-1 Page: 1 Date Filed: 08/30/2024
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
No. 23-40033
FILED
August 30, 2024
____________
Lyle W. Cayce
United States of America, Clerk
PlaintiffâAppellee,
versus
Ricardo Quintanilla,
DefendantâAppellant,
consolidated with
_____________
No. 23-40068
_____________
United States of America,
PlaintiffâAppellee,
versus
Arturo C. Cuellar, Jr.,
DefendantâAppellant.
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______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC Nos. 7:19-CR-522-1,
7:19-CR-522-3
______________________________
Before Smith, Engelhardt, and Ramirez, Circuit Judges.
Jerry E. Smith, Circuit Judge:
Arturo Cuellar (âACâ) and Ricardo Quintanilla appeal their convic-
tions of various federal offenses related to a conspiracy to bribe officials of
Weslaco, Texas, to pick certain contractors for an infrastructure project.
They raise nine issues in name and many more in fact. Each issue is either
forfeited, not meritorious, or both. We affirm the convictions and sentences.
I.
The City of Weslacoâs water infrastructure had a 50-year lifespan that
had run by the 1980s. As early as 1995, the city was âhaving to deal . . . with
water and wastewater plants and the infrastructure.â The first projects to
repair the system began around 2007 or 2008.
ACâs and Quintanillaâs convictions arise from their involvement in a
scheme to bribe city commissioners in Weslaco to award city contracts for
the design and construction of water and wastewater treatment plants to
Camp Dresser & McKee (âCDMâ), an engineering and construction firm,
and Engineer Rolando Briones of Briones Consulting and Engineering, Ltd.
The jury found that, as part of the scheme, Quintanilla bribed Commissioner
Gerardo Tafolla, and AC bribed Commissioner John Cuellar (âJCâ), for offi-
cial actions taken by the two commissioners in favor of the projects and the
retention of CDM and Briones. Leo Lopez, a consultant for CDM and Bri-
ones, paid AC and Quintanilla for the bribes given to Tafollo and JC.
JC, a lawyer and ACâs first cousin, was a commissioner from 1995
2
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until 2014âwhen he lost his seat. Tafolla, after an unsuccessful bid for the
city commission, was elected in 2009. Quintanilla served as Tafalloâs cam-
paign manager in both elections. Though Tafolla knew AC during both elec-
tion cycles, he did not have ACâs support.
After Tafolla was sworn into office, in May 2009, Quintanilla intro-
duced Tafolla to Lopez and Briones. Several months later, Lopez, Quintan-
illa, and Tafolla met and discussed Tafollaâs âmending fencesâ with AC,
who was a county commissioner at that time.
The next month, Lopez, Tafolla, Quintanilla, and AC met together at
Cimarron Country Club. AC was a county commissioner at that time. That
meeting was to mend fences, but the water plant was not discussed. 1
After the cityâs approval of CDMâs preparation of a preliminary
engineering report in January 2011, there was a third meetingâthis time
among Tafolla, Quintanilla, and Lopez. At that meeting, Quintanilla and
Lopez discussed the water plant and how to acquire votes. Although they did
not speak to Tafolla directly, âthey were saying it loud enough so that
[Tafolla] could overhear it, and then [Tafolla] just understood that to mean
that they wanted [him] to vote in a particular way.â â[Lopez] would look at
[Quintanilla] and, you know, just say this is going to be our project, yours and
mine, and [Tafolla] was sitting right there, right next to them.â â[Lopez]
would look at [Tafolla] once in a while, but tr[ied] to focus his intentions on
. . . [Quintanilla].â Lopez said he needed votes for the plant. He mentioned
_____________________
1
There is some discrepancy among parts of the record, and the governmentâs brief
that presents it as cohesive is misleading. The relevant parts of the record describing the
early series of meetings are just one example of a discrepancy the government papers over.
The government says that Meeting #3 is at Cimarron Country Club to talk votes. As we
read the record, that meeting was to mend fences but not to discuss votes.
3
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both Briones and CDM.
After the meeting, Tafolla told Quintanilla he was voting for the plan
anyway. Quintanilla said that if Tafolla voted for the plan, Quintanilla would
split whatever he received from Lopez with Tafolla. Though Tafolla sug-
gested heâd vote for the plan regardless, he agreed to accept the bribes.
Tafolla received envelopes with seriatim payments of $1,000. He had seen
Lopez give the envelopes to Quintanilla, who would then split them between
Tafolla and himself.
In total, Quintanilla paid Tafolla between $10,000 and $15,000.
Tafolla continued to have discussions with Lopez and Quintanilla on this
subject every couple of months. When it came time, Tafolla voted for Bri-
ones and CDM to receive their respective contracts.
Meanwhile, from 2011 to 2014, AC paid JC $405,000 in bribes
through ACâs company Quality Ready Mix (âQRMâ). 2 JC understood that
AC expected him to vote for âBriones to serve as the engineer for the design
of the water plant and for CDM to be selected as the construction company
to build the water plant.â Lopez was involved in conversations with JC and
AC about the bribery arrangement. Lopez told JC he would be splitting
consultant fees with AC. Lopez, AC, and JC concocted a story to pretend
the bribes were for JC to do legal work for QRM. But JC did no legal work
for QRM.
From July 2012 to February 2016, there were multiple written com-
munications among Briones, LeFevre, Quintanilla, and Lopez about the
water treatment plant. Of particular note, in November 2012, LeFevre
emailed Lopez about the need to execute a backdated consulting-services
_____________________
2
JC stopped receiving payments in November 2014 when he lost his bid for
reelection.
4
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agreement to protect themselvesâpresumably from legal liability.
From April 2014 to December 2015, there were numerous written
communications between Briones and the city regarding the water treatment
plant, at least one of which was sent to Lopez. In a series of city commission
meetings between 2011 and 2014, Tafolla and JC took actions in support of
CDMâs and Brionesâs involvement in the construction of the plant.
From March 2008 to December 2016, the city paid CDM, Briones and
LeFevre roughly $42.5 millionâabout $34 million to CDM, $8.5 million to
Briones, and $150 thousand to LeFevre. Then the funds moved around
among CDM, Briones, Lopez, and the defendants. Ultimately, Lopez paid
AC roughly $1.4 million ending in November 2014 and Quintanilla $93,930
ending in October 2014.
A few years later, AC and Quintanilla were indicted, and Judge
Alvarez was assigned to the case. AC and Quintanilla were charged with vari-
ous federal offenses related to the bribery scheme. That included a notice of
criminal forfeiture and an advisory that the government might seek a money
judgment. Shortly before trial, the government narrowed the indictment,
removing portions and shortening time frames.
At some point during the pendency of the trial, Quintanilla came to
the office of John Gonzalez, the city attorney. Quintanilla asked Gonzalez to
testify that Gonzalez had hired Quintanilla as a consultant. When Gonzalez
refused, Quintanilla left unhappy. He returned minutes later to say, âyou
better not f*** this up for me.â Gonzalez got the impression he was being
asked to commit perjury.
In October 2022, the jury convicted Quintanilla of one count of con-
spiracy to commit honest-services wire fraud (count 1, 18 U.S.C. §§ 1343, 1346, and 1349); four counts of honest-services wire fraud (counts 2, 5, 6, and 7,18 U.S.C. §§ 1343
, 1346); one count of federal program bribery
5
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(count 8, 18 U.S.C. § 666(a)(2); one count of conspiracy to launder monetary instruments (count 11,18 U.S.C. § 1956
(a)(1)(B)(i), (h)); and eight counts of money laundering (counts 12â19,18 U.S.C. § 1956
(a)). The jury convicted AC of one count of conspiracy to commit honest-services wire fraud (count 1); four counts of honest-services wire fraud (counts 2, 5, 6, and 7); one count of federal program bribery (count 9); one count of conspiracy to launder monetary instruments (count 11); 27 counts of money laundering (counts 20â460); and 27 counts of Travel Act offenses (counts 48â74,18 U.S.C. § 1956
(a)).
In January 2023, the court sentenced Quintanilla to 200 months in
custody along with a term of supervised release, a $15,000 fine, $1,500
assessment, $4.1 million restitution jointly with AC and JC, and forfeiture of
$75,080. The court sentenced AC to 240 months in custody along with
supervised release, a $915,000 fine, $6,100 special assessment, $4.1 million
restitution jointly with Quintanilla and JC, and forfeiture of $947,454. Both
received downward variances, but AC less so because of his greater profit.
The instant appeals followed.
II.
Before proceeding to the substantive issues on appeal, we clarify two
questions that concern how to interact with defendantsâ briefing.
A.
First, we resolve a dispute on how to interpret defendantsâ consoli-
dated briefing. Both by its plain text and per our caselaw, Federal Rule of
Appellate Procedure Rule 28(i) governs consolidated briefing. 3
_____________________
3 Cf., e.g., Jones v. Johnson, 180 F.3d 265(table),1999 WL 301895
, at *2 (5th Cir.
May 6, 1999) (per curiam) (unpublished).
6
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The government correctly notes that the general rule for adoption
across briefs is that a defendant cannot adopt a fact-specific challenge âby
merely referring to similar challenges in another appellantâs brief.â 4 Defen-
dants object that the governmentâs caselaw involves adoption by reference
rather than consolidated briefing. In their view, âconcomitant consolidated
briefs inherently represent the arguments of all participating partiesâ (citing
United States v. Montemayor, 55 F.4th 1003, 1008(5th Cir. 2022)). But Mon- temayor did not involve âconcomitant consolidated briefs.âId.
Moreover, Montemayor contemplates the proposition opposite to what defendants assert. Seeid.
The government has the better position. There is no reason why com-
ponents of a consolidated brief that are fact-specific to one defendant should
be more liberally imputed to another merely by virtue of the fact that we have
one PDF and not two. Moreover, that the same ruleâindeed, the same sen-
tence of the same subpoint of the same ruleâgoverns consolidated briefing
and argument-adoption should assuage any concern about our referring to
Rule 28(i) jurisprudence even if it was written in the context of adoption
rather than consolidation.
B.
Defendantsâ briefing also leads us to consider the outer limits of the
doctrine of forfeiture. 5 âThe appellantâs brief must contain . . . a statement
_____________________
4
United States v. Alix, 86 F.3d 429, 434 n.2 (5th Cir. 1996) (citations omitted); see also United States v. Morgan,117 F.3d 849, 853
(5th Cir. 1997).
5
The deficiencies are better described as âforfeitureâ rather than âwaiver.â
Although the parties use âwaiver,â and our caselaw often fails to note the difference, we
employ the more correct term, âforfeiture,â except when quoting the partiesâ writings or
other sources. A recent panel handled a similar situation in this way:
The parties use the terminology of waiver rather than forfeiture in their
7
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of the issues presented for review.â Fed. R. App. P. 28(a)(5). â[L]itigants
must . . . reasonably comply with the standards of Rule 28 in order to pre-
serve them.â 6
Many of defendantsâ nine expressly appealed issues contain passages
that would ordinarily be issues appealed in their own right. For example,
Issue #3, labeled a challenge to the âsufficiency of the indictment,â includes
both unconstitutional-vagueness and sufficiency-of-the-evidence challenges.
Even the governmentâs thorough, 93-page brief relies largely on requesting
us to consider defendantsâ âmultifarious, vague, [and] conclusoryâ briefing
to be forfeited.
When a party âlists [an] argument as one of the âissues presented for
reviewâ but does not make any argument specifically tailored to [the] claim,â
_____________________
briefing. âThe terms waiver and forfeitureâalthough often used inter-
changeably by jurists and litigantsâare not synonymous.â Hamer v. Neigh-
borhood Hous. Servs. of Chi., 583 U.S. 17, 20 n.1 . . . (2017). âWhereas for-
feiture is the failure to make the timely assertion of a right, waiver is the
intentional relinquishment or abandonment of a known right.â United
States v. Olano, 507 U.S. 725, 733 . . . (1993) (citation and internal quotation
marks omitted) . . . .
Shambaugh & Son, L.P. v. Steadfast Ins. Co., 91 F.4th 364, 369 n.3 (5th Cir. 2024).
6
Davison v. Huntington Ingalls, Inc., 712 F.3d 884, 885 (5th Cir. 2013). We recog-
nize that Davison involves a different sort of deficiency and allows for a more hefty remedy:
Failure to comply with the rules of this court regarding the contents of
briefs can be grounds for dismissing a partyâs claims. Dismissal is war-
ranted where the noncompliance is not merely technical or stylistic, but
rather is so fundamental that it prevents the court from engaging in mean-
ingful review.
See id. (cleaned up). We do not explore the applicability of Davisonâs precise errors or the
remedy the court imposed there. Rather, we lean on Davison only to point out that parties
have an obligation to follow the rules of appellate procedure and that failure to do so can
yield significant outcome-determinative consequences.
8
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the argument is forfeited. Kretchmer v. Eveden, Inc., 374 F. Appâx 493, 497
(5th Cir. 2010) (per curiam). We now clarify that the inverse proposition is
also true: Where a party fails to list an issue presented in his or her statement
of the issues, the issue is forfeited even if he or she raises the issue in the body
of the brief.
That rule is not pedantic. Indeed, a pedantic version is foreclosed by
our precedent. âErrant headings in briefs . . . do not waive arguments.â Bal-
entine v. Thaler, 626 F.3d 842, 849(5th Cir. 2010). In Balentine, the heading in question read, âGround Eight (IAC â Lockett Doctrine & Risk Assess- ment): Balentine was denied his federal Eighth and Fourteenth [A]mend- ment rights to individualized sentencing. Trial counsel failed to present any evidence at all in the punishment phase.âId. at 848
. That heading did not
forfeit an ineffective-assistance-of-counsel claim because it had a relatively
clear relationship to the argument made in the body:
Balentineâs claim was for ineffective assistance of counsel.
The title of the section in the brief contained the acronym for
ineffective assistance of counsel and stated that âcounsel failed
to present any evidence at all in the punishment phase.â Addi-
tionally, Balentine presented his argument in terms of Strick-
land v. Washington and Wiggins v. Smith, both Sixth Amend-
ment ineffective assistance of counsel cases. Further, the sec-
tionâs subheadings tracked the two-prong test for ineffective
assistance of counsel. Subheading two was titled âTrial coun-
selâs performance was deficientâ and subheading three was
titled âThe deficient performance raises a reasonable proba-
bility that the outcome would have been different.â The magis-
trate judge properly recognized the claim as an ineffective as-
sistance of counsel claim and ruled on it, and on appeal this
court considered the claim to be one for ineffective assistance.
Id. (cleaned up).
That sort of technical mislabeling is not what concerns us. Issue #3
9
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has none of the characteristics of the argument in Balentine. There are no
headings in defendantsâ opening brief that cleanly separate the sections and
track the law. 7 Nor is there a meaningful substantive relationship to the issue
presented. Insufficiency of the indictment has nothing to do with either the
sufficiency of the evidence presented at trial or the constitutionality of the
statute. Those are quite different substantive issues.
Such a rule is at least nascent in our jurisprudence already. Where
parties failed to âinclude[] the issue in the statement of issues or explain[]
that they intend[] to appeal this point, they waive[] the issue.â 8 âWe gener-
ally confine our analysis to the issues presented and argued in the brief.â 9
Those statements may be unclear. But at least one other formulation
considers failure to include an issue in a statement of issues as a non-exclusive
factor in finding that that issue was forfeited. â[A]n issue is waived when a
plaintiff fails to include the issue in its statement of issues, fails to supply the
relevant standard of review, and fails to mention the argument in its reply.â 10
_____________________
7
This is somewhat better in the reply brief. (âA. No Evidence of Quid Pro Quoâ);
(âB. Statute is Unconstitutionally Vagueâ). Oddly, though, the two enumerated subsec-
tions have nothing to do with âinsufficiency of the indictment,â which is the claim the issue
presented purports to raise. Even so, as with other sorts of forfeiture, the reply brief is too
late to salvage an argument. Cf. DePree v. Saunders, 588 F.3d 282, 290 (5th Cir. 2009).
8
De Beck v. United States IRS, 622 F. Appâx 411, 414(5th Cir. 2015) (emphasis added) (citing X Techs., Inc. v. Marvin Test Sys., Inc.,719 F.3d 406
, 411 n.3 (5th Cir. 2013)).
9
United States v. Bates, 2023 WL 4542313, at *5,2023 U.S. App. LEXIS 17999
,
at *12â13 (5th Cir. July 14, 2023) (unpublished) (emphasis added).
10
Norwood v. City of Mendenhall, 630 F. Appâx 245, 248 n.5 (5th Cir. 2015) (citing X Techs., Inc.,719 F.3d at 411
n.3). Another area of the law provides an even more on-point example. In bankruptcy, an analogous failure when appealing to the district court unam- biguously constitutes forfeiture. âIt is clear under the law of this circuit that an issue that is not designated in the statement of issues in the district court is waived on appeal.â Galaz v. Katona (In re Galaz),841 F.3d 316, 324
(5th Cir. 2016) (citation omitted).
10
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In short, what has been done in this case constitutes forfeiture. If a
defendant appeals the sufficiency of the indictment, then we will consider the
sufficiency of the indictment. We will not use a scalpel to extract whatever
latent independent arguments parties inconspicuously smuggle in.
III.
AC and Quintanilla contend that the government constructively
amended the indictment. It did not.
A.
Defendants suggest that a claim of constructive amendment is re-
viewed de novo and that it is a per se reversible error if the court finds that the
indictment has been constructively amended. The government correctly
points out that our contemporary caselaw differs (where a defendant has not
objected in the district court to a purported constructive amendment):
Prior to the Supreme Courtâs decision in United States v.
Olano, this court had held that constructive amendments are
reversible per se. Our post-Olano decisions, however, have con-
cluded that plain error review applies even if there has been a
constructive amendment.
United States v. Bohuchot, 625 F.3d 892, 897 (5th Cir. 2010) (cleaned up).
It is undisputed that the defendants did not raise that objection in the
district court. Therefore, we will vacate the convictions on that ground only
if
(1) there was an error or defect, a deviation from a legal ruleâ
that has not been intentionally relinquished or abandoned;
(2) the legal error must be clear or obvious, rather than subject
to reasonable dispute; (3) the error affected the defendantâs
substantial rights, which in the ordinary case means he must
demonstrate that it affected the outcome of the district court
proceedings; and (4) when these three elements are present, a
11
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court may exercise its discretion to correct the error, although
this discretion ought to be exercised only if the error seriously
affects the fairness, integrity, or public reputation of judicial
proceedings.
Id. (cleaned up).
B.
On plain-error review, these defendants lose for two independent rea-
sons. First, a defendant has not demonstrated plain error when he âfail[s] to
meaningfully address all four prongs of plain-error review either in his open-
ing brief or in reply.â United States v. Green, 47 F.4th 279, 289 (5th Cir.
2022). 11 Even with a minimalist reading of âmeaningfully,â it is hard to find
meaningful analysis of prong (3) or prong (4) in the briefing. That should end
our inquiry.
C.
Second, even if defendants had addressed all the prongs of plain-error
review, they have failed to demonstrate error.
A constructive amendment occurs when the government
changes its theory during trial so as to urge the jury to convict
on a basis broader than that charged in the indictment, or when
the government is allowed to prove an essential element of the
crime on an alternative basis permitted by the statute but not
charged in the indictment.
United States v. Robles-Vertiz, 155 F.3d 725, 728 (5th Cir. 1998) (internal
quotation marks and citations omitted).
But if the crime and the elements of the offense that sustain
the conviction are fully and clearly set out in the indictment,
_____________________
11
See also, e.g., United States v. Gentile, 93 F.4th 855, 859 (5th Cir. 2024).
12
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the right to a grand jury is not normally violated by the fact that
the indictment alleges more crimes or other means of commit-
ting the same crime.
In other words, the key inquiry is whether the jury charge
broadened the indictment; if it only narrowed the indictment,
no constructive amendment occurred.
United States v. Griffin, 800 F.3d 198, 202 (5th Cir. 2015) (internal quotation
marks and citation omitted).
Defendantsâ briefing does not reflect a correct understanding of what
a âconstructive amendmentâ is. Rather, their challenge to âconstructive
amendmentâ lumps together several issues that range from sufficiency of the
evidence to material variance. We address, in turn, each of those that has
been concretely presented. 12
1.
Defendants argue that while the indictment charged a single conspir-
acy, âthe government failed to prove that there was a conspiracy or [sic]
between the co-defendants.â In their view, â[i]f a conspiracy could be found
at all, there were two separate conspiracies.â That sounds like two chal-
lenges: one to the existence of a conspiracy at all, and one to the number of
conspiracies. But the defendants only meaningfully contend the number of
conspiracies.
That is not properly a constructive-amendment challenge, but, in-
stead, a challenge alleging a fatal variance. 13 Therefore, the argument is for-
_____________________
12
Anything else is forfeited for inadequate briefing. Cf. Young v. Repine (In re
Repine), 536 F.3d 512, 518 n.5 (5th Cir. 2008) (finding an argument âwaivedâ (forfeited)
where the court could not âdiscern the basis or substance of [the partyâs] argument, if
indeed she [wa]s making one.â).
13
See United States v. Urquidi, 71 F.4th 357, 381 (5th Cir.) (â[A] material variance
13
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feited according to the standard we expounded above in Part II.
It is also meritless. The standard we apply to a fatal-variance challenge
is very deferential:
The question of whether the evidence establishes the exis-
tence of a single conspiracy or multiple conspiracies is a ques-
tion of fact for the jury. We will affirm the juryâs finding that
the government proved a single conspiracy unless the evidence
and all reasonable inferences, examined in the light most favor-
able to the government, would preclude reasonable jurors from
finding a single conspiracy beyond a reasonable doubt.
Urquidi, 71 F.4th at 381(internal quotation marks and citations omitted). To count conspiracies, âwe look to (1) the existence of a common goal; (2) the nature of the scheme; and (3) the overlapping of the participants in the vari- ous dealings.â United States v. Shah,84 F.4th 190, 223
(5th Cir. 2023)
(cleaned up).
Factor (1) is construed broadly such that â[a] common pursuit of per-
sonal gain is sufficient.â Id. And thatâs precisely what we have here: a com-
mon goal of personal gain by diverting Weslacoâs business to CDM and
Briones.
As for factor (2), âif the activities of one aspect of the scheme are nec-
essary or advantageous to the success of another aspect then that supports a
finding of a single conspiracy.â Id. (cleaned up). The two commissioners
bribed by the two defendants took actions to further the awarding of contracts
to CDM and Briones over the objection of others. Even if AC and JC were
completely unaware of the relationship between Quintanilla and Taffolla,
_____________________
occurs when evidence presented at trial proved multiple conspiracies, while the indictment
alleged only a single conspiracy.â (citation omitted)), cert. denied, 144 S. Ct. 268 (2023)).
14
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their mutual coordination through CDM-consultant Lopez to achieve the
success of the overall scheme warrants a finding of one conspiracy.
Though factor (3) is the closest, the government points out that
â[t]here is no requirement that every member must participate in every
transaction to find a single conspiracy. Parties who knowingly participate
with core conspirators to achieve a common goal may be members of an over-
all conspiracy.â United States v. Richerson, 833 F.2d 1147, 1154 (5th Cir. 1987)
(cleaned up). Both defendants interacted with Lopez, who put the whole
scheme together. Moreover, there is at least one meeting that included both
AC and Quintanilla.
Given the deferential standard of review, the government has ade-
quately proved one conspiracy.
2.
AC maintains that â[i]n another instance of constructive amendment,
the government failed to show that AC owed a fiduciary duty to the City of
Weslaco that would make him liable for honest-services fraud. AC was at no
point a public official for the City of Weslaco.â
That is really a sufficiency-of-the-evidence challenge that includes
both whether the âconvictions . . . are . . . supported by sufficient evidenceâ
and âwhat conduct constitutes an offense[.]â United States v. Cooper,
38 F.4th 428, 432 (5th Cir. 2022) (citations omitted). Like the fatal-variance
challenge, this is waived for the reasons set forth in Part II, and like the fatal
variance challenge, it is also not meritorious. 14
_____________________
14
The decision in Percoco v. United States, 598 U.S. 319(2023), is of no import because the theory of liability in that case was different. There, the lower courts held a private individual liable based on his own âduty to provide honest services to the public during the time when he was not serving as a public official.âId. at 324
. But here, the
15
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3.
There are a few other miscellaneous claimsânone of which is
meritorious.
Defendants complain of the striking of allegations that JC had called
special meetings. That, they aver, was because the description of the indict-
ment of those meetings did not match the governmentâs evidence. They
seem to suggest that that âbroadened the criminal charges in the indictment
by pursuing convictions for AC and Quintanilla making legitimate constitu-
ent inquiries rather than directing any particular vote.â
That does not follow. Defendantsâ contention is not sufficiently
fleshed out to avoid forfeiture. See United States v. Maez, 961 F.3d 366, 377(5th Cir. 2020). Even if it was not forfeited, their contention demonstrates constructive amendmentâs inverse: The government narrowed rather than broadened the indictment. See Griffin,800 F.3d at 202
. 15
Similarly, defendants assert that âthe Superseding Indictment alleged
that the [defendants] caused Weslaco to engage in improper no-bid contracts,
but constructively amended the indictment to abandon proving this factual
allegation.â That paragraph cites no law, so it is forfeited. United States v.
Trevino, 989 F.3d 402, 404 n.3 (5th Cir. 2021). But it also seems to be an example where the government shrunkârather than expandedâthe scope of the indictment. See Griffin,800 F.3d at 202
. If a legal theory can be parsed
from this paragraph, it is that the government is bound to prove every fact
_____________________
liability is not based on ACâs duties. Instead, the liability is grounded in JCâs and Tafollaâs
duties to the public.
15
The defendants throw out another single-sentence example: âThe Superseding
Indictment also red-lined the allegation that bribes were funneled through a lawyerâs
IOLTA Account, but this too was not what the [g]overnment proved.â No citation to the
record or law follows.
16
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No. 23-40068
alleged in the indictment, or else it has improperly engaged in constructive
amendment. Thatâs not our law, and defendants proffer no authority to sug-
gest otherwise. 16
IV.
We turn to ACâs argument that Judge Alvarez should have recused.
The relevant facts are that in January 2015, a driver for ACâs company, J-III
Trucking, got into a traffic accident with Judge Alvarez, the district judge
Ă quo. AC is the sole owner and registered agent of his company J-III. In
March 2015, Judge Alvarez sought the greater of $500,000 and the policy
maximum (which was $1,000,000) from J-IIIâs insurer. In January 2016,
Judge Alvarez was deposed for the lawsuit. In March 2016, the case settled
for $60,000.
We review the denial of a motion to recuse for abuse of discretion.
United States v. Merkt, 794 F.2d 950, 960(5th Cir. 1986) (citation omitted). But any arguments raised for the first time on appeal are reviewed only for plain error. United States v. Allen,587 F.3d 246, 251
(5th Cir. 2009) (per
curiam) (footnote omitted).
âAny justice, judge, or magistrate judge of the United States shall dis-
qualify himself in any proceeding in which his impartiality might reasonably
be questioned.â 28 U.S.C. § 455(a). âThe relevant inquiry is whether a rea- sonable man, were he to know all the circumstances, would harbor doubts about the judgeâs impartiality.â Johnson v. Lumpkin,74 F.4th 334, 341
(5th
Cir. 2023) (internal quotation marks and citation omitted). â[T]he reasona-
ble person standard in the recusal context contemplates a well-informed,
thoughtful and objective observer, rather than the hypersensitive, cynical,
_____________________
16
The same applies to the shrinking of the timeframe of the indictment and the
removal of Daniel Garcia.
17
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and suspicious person.â Trevino v. Johnson, 168 F.3d 173, 179(5th Cir. 1999) (internal quotation marks and citation omitted). âEach § 455(a) case is ex- tremely fact intensive and fact bound, and must be judged on its unique facts and circumstances more than by comparison to situations considered in prior jurisprudence.â United States v. Jordan,49 F.3d 152, 157
(5th Cir. 1995)
(citation omitted).
Other circuits have indicated that involvement in litigation with a
party is not enough to warrant recusal. See In re Taylor, 417 F.3d 649, 652(7th Cir. 2005); United States v. Grismore,564 F.2d 929, 933
(10th Cir. 1977). 17 But this case differs from each of those in multiple ways. In Taylor, the earlier litigation (1) named the judge as a defendant, (2) was âone small part of a frivolous litigation pattern,â and (3) occurred eight years before the criminal case. See417 F.3d at 653
. This case differs on all three fronts:
(1) The judge was the plaintiff in the earlier litigation, (2) the earlier litigation
was meritorious, and (3) only three years passed between the cases.
While it might not appear that the first distinction matters, and though
it was not dispositive, Taylor plainly held that when the judge is the defendant
in the earlier case, recusal is frequently unwarranted. That makes sense.
Indeed, â[o]ne reason forâ the lack of a âper se rule of disqualificationâ based
on earlier litigation is that it âwould allow litigants to judge shop by filing a
suit against the presiding judge.â Id. at 652(citations omitted). Grismore seems to be a clean implementation of that rationale: âA judge is not disqual- ified merely because a litigant sues or threatens to sue him.â564 F.2d at 933
.
_____________________
17
This is also consistent with Fifth Circuit precedent. See, e.g., In re Hipp, Inc.,
5 F.3d 109, 116â17 (5th Cir. 1993) (â[A] judge is not disqualified merely because a litigant sues or threatens suit.â); Ocean-Oil Expert Witness, Inc. v. OâDwyer,451 F. Appâx 324, 329
(5th Cir. 2011) (âJudges are not required to recuse just because they have been or are
involved in litigation with a party.â).
18
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No. 23-40068
Even so, âa reasonable man, were he to know all the circumstances,
would [not] harbor doubts about the judgeâs impartialityâ in this case. John-
son, 74 F.4th 334, 341. As the government put it at oral argument, âThe
recusal motion was based on an unremarkable insurance settlement from an
auto accident that was between an employee of JIII trucking . . . and the judge
in her personal capacity. The lawsuit and settlement did not involve [AC]
except that he accepted the service of process because he was the registered
agent of [J-III] . . . .â
The government is correct. Judge Alvarez did not sue AC, but rather,
J-III. ACâs only personal involvement with that litigation was as a registered
agent who was personally served with the suit. 18 The cost of the litigation
appears to have been born by J-IIIâs insurance company. And the whole inci-
dent occurred a few years before this criminal case commenced.
AC lists several instances that, he thinks, are indicia of actual bias. We
disagree. Likewise, that Judge Alvarez transferred a case involving AC in
2015 seems to be of little probative value. The cause of that transfer is dis-
puted, and it seems to be that the transfer was merely a matter of judicial
economy.
With all this context, a reasonable observer would not harbor doubts
about Judge Alvarezâs impartiality. She need not have recused.
V.
Defendants challenge the sufficiency of the indictment to convict on
Counts 1, 2, 5, 6, and 7. That effort fails.
Since the standard of review is unclear here, we will pretermit the
_____________________
18
Even if AC were deposed in his capacity as owner, as the reply brief suggests,
that would not change our analysis.
19
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No. 23-40068
standard of review and assume it is de novo. Even under that more lenient
standard, defendants fail to present a meritorious claim.
â[A]n indictment is sufficient if it, first, contains the elements of the
offense charged and fairly informs a defendant of the charge against which he
must defend, and, second, enables him to plead an acquittal or conviction in
bar of future prosecutions for the same offense.â Hamling v. United States,
418 U.S. 87, 117 (1974) (citations omitted).
The indictment alleges that defendants conspired to âdeprive the City
of Weslaco, the Weslaco City Commission, and the citizens of Weslaco of
their intangible right to the honest services of [JC] and [Tafolla], both elected
officials, through bribery.â On its face that seems sufficient because, pre-
McNally v. United States, 483 U.S. 350(1987), âthe Courts of Appeals, one after the other, interpreted the term âscheme or artifice to defraudâ to include deprivations not only of money or property, but also of intangible rights.â Skilling v. United States,561 U.S. 358, 400
(2010). But defendants contend
that âthose counts involving honest services wire fraud and bribery require
bribery appurtenant to a property interest.â 19
Defendants first point to McNally, which held that property-law
statutes do not âproscribe[ ] schemes to defraud citizens of their intangible
rights to honest and impartial government.â 483 U.S. at 355. But that does
_____________________
19
In relevant part, 18 U.S.C. § 1343 reads,
Whoever, having devised or intending to devise any scheme or artifice
to defraud, or for obtaining money or property by means of false or fraud-
ulent pretenses, representations, or promises, transmits . . . for the purpose
of executing such scheme or artifice, shall be fined . . . or imprisoned . . . .
And 18 U.S.C. § 1346 states that â[f]or purposes of this chapter, the term âscheme or
artifice to defraudâ includes a scheme or artifice to deprive another of the tangible right of
honest services.â
20
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No. 23-40068
not control because, in 1988, Congress responded to McNally by enacting
§ 1346 to extend liability to honest-services fraud. Skilling, 561 U.S. at 404.
So, defendants turn to a more recent string of cases. Skilling held that
⧠1346 criminalizes only the bribe-and-kickback core of the pre-McNally
case law.â Id. at 409. But defendants never actually explain how their case
falls outside the âbribe-and-kickback core of the pre-McNally case law.â A
charitable reading of their position is that they think Skilling means that
§ 1346 extends only to bribes for kickbacks. But thatâs not a tenable reading.
See 561 U.S. at 409â10 (comparing the âbribe-and-kickbackâ core to a situa-
tion in which there was no explicit bribe).
Nor does United States v. Kelly, 140 S. Ct. 1565(2020), do defendants any favors,id. at 1574
. There, the Court noted that âthe scheme . . . did not aim to obtain money or property.âId.
But Kelly involved a different factual
and statutory basis. Though both Kelly and this case reference § 1343, two
crucial differences remain. First, part of § 1343âthe part at issue in Kellyâ
involves âobtaining money or property.â Id. at 1568. But § 1343 also con-
tains broader language about fraud presumably relevant here. Second, Kelly
is not an honest-services-fraud case and makes no reference to § 1346.
Finally, defendants turn to Ciminelli v. United States, 598 U.S. 306(2023). That undermines their case. Ciminelli concerned the right to con- trol, not the intangible right to honest services, which it contrasts with the right to control.Id. at 314
. 20
Defendants make two additional contentions in this section. Each is
forfeited for the reasons set out in Part II.B. Each contention also fails for
other independent reasons.
_____________________
20
Above we deal with the inapplicability of Percoco.
21
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First, in their opening brief, defendants suggest that these statutes
charge based on an intangible right of honest services that is unconstitution-
ally vague. But defendants provide no standard for when a statute is uncon-
stitutionally vague nor any real substantive explanation of why this statute
meets that standard. So it is forfeited for inadequate briefing. Cf. United
States v. Soto, 566 F. Appâx 363, 366 n.1 (5th Cir. 2014) (per curiam).
Second, defendants gesture at a sufficiency challenge. But that gets
only one sentence in the opening brief, despite more substantial coverage in
the reply brief. â[T]he [g]overnment provided no evidence of anything more
than âmere consentâ to provide money in the case of Quintanillaâs payments
to Tafolla; and absolutely zero evidence of any consent by AC to provide
money to [JC].â We never get any law about what the legal standard is for us
to find insufficient evidence. That is forfeited. See Trevino, 989 F.3d
at 404 n.3.
VI.
AC contends that the district court improperly chilled a witnessâs
testimony.
A.
That, AC contends, is a due process issue that is reviewed de novo
(citing United States v. Williams, 343 F.3d 423, 439(5th Cir. 2003), and Webb v. Texas,409 U.S. 95
(1972) (per curiam)). The government proposes that we review only for abuse of discretion (citing Geders v. United States,425 U.S. 80
, 86â87 (1976)).
AC is right. Insofar as he raises a challenge under Webb, that is a due
process challenge to be reviewed de novo under Williams. Geders involved a
more quotidian challenge to âthe order in which parties will adduce proof.â
425 U.S. at 86 (citations omitted). We review de novo.
22
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B.
AC takes issue with the district courtâs admonition of a witnessâ
partially before a jury, partially before the media, and partially at a sidebarâ
after which the witness elected to seek advice of counsel. AC compares this
situation to the one in Webb. In that case, outside the presence of the jury,
the judge delivered the following admonition to the defenseâs only witness:
Now you have been called down as a witness in this case
by the Defendant. It is the Courtâs duty to admonish you that
you donât have to testify, that anything you say can and will be
used against you. If you take the witness stand and lie under
oath, the Court will personally see that your case goes to the
grand jury and you will be indicted for perjury and the lik[e]li-
hood is that you would get convicted of perjury and that it
would be stacked onto what you have already got, so that is the
matter you have got to make up your mind on. If you get on the
witness stand and lie, it is probably going to mean several years
and at least more time that you are going to have to serve. It
will also be held against you in the penitentiary when youâre up
for parole and the Court wants you to thoroughly understand
the chances youâre taking by getting on that witness stand un-
der oath. You may tell the truth and if you do, that is all right,
but if you lie you can get into real trouble. The court wants you
to know that. You donât owe anybody anything to testify and it
must be done freely and voluntarily and with the thorough
understanding that you know the hazard you are taking.
409 U.S. at 95â96. âThe witness then refused to testify for any purpose and
was excused by the court.â Id. at 96. The Court ruled for the defendant,
noting,
The trial judge gratuitously singled out this one witness for
a lengthy admonition on the dangers of perjury. But the judge
did not stop at warning the witness of his right to refuse to tes-
tify and of the necessity to tell the truth. Instead, the judge im-
plied that he expected [the witness] to lie, and went on to as-
23
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No. 23-40068
sure him that if he lied, he would be prosecuted and probably
convicted for perjury, that the sentence for that conviction
would be added on to his present sentence, and that the result
would be to impair his chances for parole.
Id. at 97(footnote omitted). The Court implied that while some of these actions alone might have been okay, taken together and placed in the larger context they were not. Seeid.
at 97â98.
The admonition in this case is far afield from the one in Webb. The
court and the prosecutor hearing the testimony of ACâs son were concerned
that he was self-incriminating for federal offenses still within the statute of
limitations. They quickly moved for a sidebar to discuss the issue. They dis-
missed the jury. The judge made plain to ACâs son that he had the right to
consult an attorney and that the trial could be paused for him to do so. ACâs
son exercised that right. And he returned to testify the next day.
Plainly, that is not the quasi-bullying of the defendantâs only witness
off the stand that was at issue in Webb. Here, the judge went out of her way
to keep things away from the jury (and even the media at points) and not to
pressure the witness one way or the other, and the witness did ultimately
testify. This is not a problem under Webb.
VII.
Quintanilla also questions the way evidence was handled. He avers
that the court erred in admitting certain statements in violation of the Con-
frontation Clause and others in violation of the Federal Rules of Evidence.
A.
Though Quintanilla suggests his contentions receive only plain-error
review, it appears that he did object in the district court, so we review de novo.
See United States v. Olguin, 643 F.3d 384, 391 (5th Cir. 2011) (citations
omitted). âOnce a court determines that a defendantâs rights under the Con-
24
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No. 23-40033
No. 23-40068
frontation Clause were violated, then it must determine whether the error
was harmless beyond a reasonable doubt.â United States v. Jimenez, 464 F.3d
555, 562(5th Cir. 2006). If the court finds that Confrontation Clause rights were not violated, then, â[t]o demonstrate an abuse of discretion, [a defen- dant] must show that the limitations imposed upon his counselâs cross- examination were clearly prejudicial.â United States v. Restivo,8 F.3d 274, 278
(5th Cir. 1993) (footnote omitted).
B.
First, Quintanilla challenges the admission of statements made by
Lopez as a violation of his rights under the Confrontation Clause. But any
challenge to statements by Lopez is forfeited. âA defendant who challenges
the improper admission of testimony that potentially includes hearsay âmust
specifically identify the particular statement[s] he is challenging.ââ 21 Para-
phrasing the trial record is not enough. 22
Though this challenge does involve âtestimony that potentially
includes hearsay,â id.,one might say that it is ultimately a Confrontation Clause challenge, and the Trevino line of cases is about hearsay rather than the Confrontation Clause. In this instance, that is a distinction without a dif- ference, largely because â[t]he Confrontation Clause applies to testimonial hearsay and does not bar the admission of nonhearsay statements.â United States v. Ballesteros,751 F. Appâx 579
, 579â80 (5th Cir. 2019) (per curiam)
(citation omitted).
That means the hearsay inquiry is a necessary precursor to the Con-
_____________________
21
United States v. Trevino Chavez, 830 F. Appâx 425, 428 (5th Cir. 2020) (per cur- iam) (quoting United States v. Martinez-Perez,941 F.2d 295, 300
(5th Cir. 1991)); see also United States v. Robinson,87 F.4th 658
, 671â72 (5th Cir. 2023).
22
See Trevino Chavez, 830 F. Appâx at 428.
25
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No. 23-40068
frontation Clause inquiry. All the reasons that failing to identify a specific
statement forfeits a hearsay challenge apply with equal force to the Confron-
tation Clause.
This case is an exemplary illustration. Because Quintanillaâs chal-
lenge isâas the government charitably describes itââunclear,â the govern-
ment is left parsing out various reasons why different parts of the challenged
parts of the record do not raise Confrontation Clause issues. A defendant
cannot make broad-strokes objections on appeal to a lengthy audio recording
and force the government to provide line-by-line responses. Yet, that is not
all too far from what happened here.
The statements that Quintanilla mentions with the most specificity
come belatedly in his reply brief. First, he objects to the admission of Lopezâs
question asking Tafolla when his involvement with the project began. But
since that question was a non-rhetorical question, itâs hard to say it was being
offered for its truth value rather than to show Tafollaâs response. The second
objection is also a question from Lopez asking Quintanilla and Tafolla what
their cover story should be. Again, itâs hard to say that that is being offered
for its own truth rather than to show the response. 23
The judicial effort to resolve this question regarding any other state-
ments illustrates why forfeiture applies here. First, we would need to exam-
ine how Lopezâs statements were used in the context of the trial to see
whether they were introduced for the truth of the matter asserted. Then, we
would have the discretion to analyze harmlessness. We will not do that on
_____________________
23
Even were it not, in analogous situations, we admit otherwise inadmissible state-
ments merely to provide helpful context to admissible ones. See United States v. King,
93 F.4th 845, 851â52 (5th Cir. 2024). Cf. Robinson,87 F.4th at 673
(â[A]n interlocutorâs
statements, even if considered hearsay, are admissible to put the defendantâs statements
into context.â) (cleaned up).
26
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No. 23-40068
Quintanillaâs behalf.
C.
Quintanilla objects to an admission of a statement via Elizabeth Wal-
ker from LeFevre about the projectâs being a âbeached whale.â 24 We agree
with the district court that this was not offered for its truth. Quintanilla does
not point to a flaw in that reasoning as he is so obliged. That ends our inquiry.
See Ramey v. Davis, 942 F.3d 241, 248 (5th Cir. 2019).
D.
Quintanilla challenges the admission of certain of Lopezâs statements
under the Federal Rules of Evidence. As above, this is forfeited because
Quintanilla does not identify a single statement by Lopez with requisite
specificity.
VIII.
Defendants challenge the exclusion of expert testimony about con-
tracts and privileged emails.
A.
Insofar as defendants challenge the evidentiary rules or their applica-
tion as an abridgment of their Sixth Amendment right to a complete defense,
their claims are reviewed de novo but subject to harmless error. United States
v. Skelton, 514 F.3d 433, 438(5th Cir. 2008). Otherwise, evidentiary rulings are reviewed for abuse of discretion. United States v. Shah,95 F.4th 328, 374
(5th Cir. 2023).
Not every challenge to an evidentiary ruling implicates constitutional
_____________________
24
A metaphor for something that is stuck or stranded.
27
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No. 23-40068
rights. Rather,
Defendants are deprived of this right when evidence rules
infringe upon a weighty interest of the accused and are arbitrary
or disproportionate to the purposes they are designed to serve.
Even if an evidentiary rule itself is not arbitrary or dispropor-
tionate to its purposes, a specific application of the rule can
nevertheless violate the right to present a complete defense if
it does not rationally serve the end that the rule was designed
to promote.
Lucio v. Davis, 751 F. Appâx 484, 493 (5th Cir. 2018).
B.
Defendants make no attempt to show why the exclusion of this expert
testimony is a constitutional violation, so we review for abuse of discretion.
They fault the judge for denying this evidence as untimely. They contend
that the expert testimony would have made clear that the decisions that were
made were necessary.
As the government points out, that is not relevant. âIt is not a defense
to bribery that, had there been no bribe, the official might have made the very
recommendation the briber wanted him to make.â United States v. Reeves,
892 F.2d 1223, 1226 (5th Cir. 1990). Though the bar for relevance is low, the
need for repairs was not relevant to the criminality of the conduct. There-
fore, the judge did not abuse her discretion by excluding the expert
testimony.
C.
Defendants concede that the emailsâthe exclusion of which they
challengeâwere properly barred under the rules of evidence; instead, they
suggest a constitutional due process challenge. But they do not explain why
excluding the emails makes the trial unconstitutionally unfair. A cite to War-
28
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No. 23-40068
dius v. Oregon, 412 U.S. 470 (1973)âwithout so much as a pin citeâdoesnât
cut it. This is forfeited for inadequate briefing, but even if not, it seems likely
that these documents were privileged and that the district court did not abuse
its discretion. 25
IX.
AC challenges the calculation of his sentencing base level.
A.
âWe review purely legal conclusions or interpretations of the meaning
of a sentencing guideline de novo, and review the trial courtâs findings of fact
for clear error.â United States v. Roussel, 705 F.3d 184, 195(5th Cir. 2013) (citation omitted). âThere is no clear error if a factual finding is plausible in light of the record as a whole.â United States v. Mendoza-Gomez,69 F.4th 273, 276
(5th Cir. 2023) (citation omitted).
B.
First, AC objects that he was not a public official for purposes of
sentencing because he was not a Weslaco public official or at least ânot in a
position of public trust for carrying out any Weslaco governmental affairs or
functions related to the alleged offense.â AC does not challenge that he was
a public official somewhere, and he quite clearly is such, based on the Guide-
lines, which counsel us to read the term broadly. U.S. Sentâg Guide-
lines Manual § 2C1.1, cmt. n.1. The government correctly notes that
_____________________
25
In the reply brief, defendants raise for the first time the argument that âThe Sixth
Amendment forbids the exclusion of otherwise admissible evidence solely as a sanction to
enforce the discovery rules or orders.â Because it is raised for the first time in the reply
brief, we need not consider the argument. See Louisiana v. Biden, 45 F. 4th 841, 844â45 (5th Cir. 2022). Even so, it is without merit. The relevant part of United States v. Davis,639 F.3d 239, 243
(5th Cir. Unit B Mar. 1981), has since been expressly abrogated. See United States v. Wills,40 F.4th 330, 338
(5th Cir. 2022).
29
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No. 23-40068
âsubsections B and E of the guideline definition of public official plainly do
not require that the status as a public official have any nexus to the crime.â
This part of ACâs challenge is without merit.
Second, AC objects that the monetary value that went into the calcu-
lation was wrong. He asserts that the judge used her personal experience to
find that Weslaco âdid not get the benefit of its contracting.â He also avers
that âthe total amounts received by other from Lopez totaled $1.6 millionâ
and that he should be liable for a fraction or none of that. The full text of the
Guidelines provision reads,
(2) If the value of the payment, the benefit received or to
be received in return for the payment, the value of anything
obtained or to be obtained by a public official or others acting
with a public official, or the loss to the government from the
offense, whichever is greatest, exceeded $6,500, increase by the
number of levels from the table in § 2B1.1 (Theft, Property
Destruction, and Fraud) corresponding to that amount.
Id. § 2C1.1(b)(2) (emphasis added).
AC does not contest that $4.1 million was paid to Lopez. Any amount
that âforms part of the basis of the conspiracy convictionâ is part of the
âoffenseâ for § 2C1.1 purposes. United States v. Richard, 775 F.3d 287, 297
(5th Cir. 2014). Therefore, using the $4.1 million amount is appropriate.
In the reply brief, AC briefly adds two novel arguments. First, he
claims that the amount of money was not foreseeable to him. The averment
is raised for the first time in reply and without legal support, so we do not
consider it. Second, he asseverates that âthe [g]overnment could not deter-
mine any loss amount.â Thatâs also new to the reply brief and subject only
to clear-error review. The few lines of the record hastily tossed out in support
of this novel contention are not enough to support a finding of clear error.
Finally, AC notes that the incorrect base levels led to improper fines
30
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No. 23-40068
down the line. But since the base level is right, this contention is meritless.
X.
AC challenges the imposition of a forfeiture and restitution.
A.
ACâs sentencing challenge to forfeiture is meritless. He suggests that
since forfeiture is an aspect of sentencing, and an illegal sentence is plain
error, the forfeiture order is reviewed de novo. Thatâs not right. The opinion
in United States v. Del Barrio, 427 F.3d 280, 282(5th Cir. 2005)âon which AC reliesâapplies only to challenges to sentences in excess of statutory maxima. Challenges to forfeiture raised for the first time on appeal are re- viewed only for plain error. See United States v. Sanjar,876 F.3d 725, 749
(5th Cir. 2017). The district courtâs findings of fact are reviewed for clear error. See United States v. Juluke,426 F.3d 323, 326
(5th Cir. 2005) (citation
omitted).
But AC did not order the transcript of the sentencing hearing regard-
ing forfeiture. Failure âto include a transcript of all relevant evidenceâ per
Federal Rule of Appellate Procedure 10(b)(2) constitutes forfeiture of the
issue. See Coats v. Penrod Drilling Corp., 5 F.3d 877, 890 (5th Cir. 1993).
Because the evidence taken at the forfeiture hearing was likely relevant, 26 that
ends our inquiry.
In the alternative, there is no clear error. ACâs only non-conclusory
challenge to the sentencing forfeiture is based on Honeycutt v. United States,
581 U.S. 443, 447 (2017), which bars joint and several liability with respect to
forfeiture related to drug crimes. But (1) AC was not held jointly and sev-
_____________________
26
As the government points out, it âanticipated that evidence at a forfeiture hear-
ing would show that because of the sham legal expenses attributed to QRM.â
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erally liable with respect to his forfeiture order, and (2) the government cor-
rectly points out that Honeycutt interpreted a different statute.
B.
ACâs challenge to the restitution order is also meritless.
We review the quantum of an award of restitution for abuse of
discretion. We review the district court's factual findings for
clear error. A factual finding is clearly erroneous only if based
on the record as a whole, we are left with the definite and firm
conviction that a mistake has been committed. We may affirm
in the absence of express findings if the record provides an
adequate basis to support the restitution order.
United States v. Sharma, 703 F.3d 318, 322 (5th Cir. 2012) (cleaned up).
ACâs challenge to restitution assumes that the government did not
prove a single conspiracy. But the government did so. See supra.
XI.
Quintanilla challenges the application of the obstruction-of-justice
enhancement.
A.
âA finding of obstruction of justice under § 3C1.1 is a factual finding
reviewed for clear error. However, we review the district courtâs interpreta-
tion or application of the sentencing guidelines de novo.â United States v.
Edwards, 303 F.3d 606, 645-46(5th Cir. 2002) (citation omitted). âIn order to satisfy this clear error test all that is necessary is that the finding be plausi- ble in light of the record as a whole.âId. at 645
(citation omitted). We give particular deference to the finder of fact when the finding is based on the credibility of witnesses. Cf. Anderson v. City of Bessemer City,470 U.S. 564
,
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573â74 (1985). 27 Moreover, âWhere there are two permissible views of the
evidence, the factfinderâs choice between them cannot be clearly errone-
ous.â Id. at 574.
B.
The obstruction-of-justice increase applies to âthreatening, intimidat-
ing, or otherwise unlawfully influencing a . . . witness . . . directly or indir-
ectly, or attempting to do so.â U.S. Sentâg Guidelines Manual
§ 3C1.1, cmt. n.4(a).
The district court found that âthere is no question but that [Gonzalez]
was being asked to mislead at the very, very least the FBI if not to outright lie
to the FBI.â The court based that finding at least in part on Gonzalezâs credi-
bility. Quintanillaâs objection is that Gonzalezâs definition of consultant dif-
fers from Quintanillaâs supposedly correct view of what constitutes being a
consultant at trial and that Quintanilla âwas merely trying to determine if
Gonzalez was going to provide truthful testimony.â
Particularly given the deferential standard by which we evaluate the
district courtâs finding, we do not agree that Quintanilla âwas merely trying
to determine if Gonzalez was going to provide truthful testimony.â Quintan-
illa showed up at Gonzalezâs office at the morning, asked him to testify that
Quintanilla was a consultant, left visually upset, came back shortly later, and
swore at Gonzalez. That gave Gonzalez the impression that he was being
asked to commit perjury. In these circumstances, the record plausibly sup-
ports that Quintanilla did not actually believe he had been a consultant and
_____________________
27
Though Anderson is a ruling about the clear-error standard in the context of
Federal Rule of Civil Procedure 52(a), our court has applied it in evaluating findings under
§ 3C.1.1 of the Sentencing Guidelines. See United States v. Flournoy, 1992 WL 386808,
at *2 (5th Cir. Dec. 23, 1992) (per curiam) (unpublished). Unpublished opinions before
1996 are precedential. 5th Cir. R. 47.5.3.
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was trying to get Gonzalez to testify falsely that Gonzalez considered Quin-
tanilla a consultant.28
XII.
Finally, appropriately for the first time in a Federal Rule of Appellate
Procedure 28(j) letter, 29 defendants suggest that Snyder v. United States,
144 S. Ct. 1947(2024), impacts this case. Snyder held that18 U.S.C. § 666
does not make âit a crime for state and local officials to accept gratuitiesâ for example, gift cards, lunches, plaques, books, framed photos, or the likeâ . . . given as a token of appreciation after the official act.âId. at 1951
. It also noted that state and local officials are âallowed to hold outside employ- ment.âId. at 1952
.
Defendants connect Snyder to this case only by suggesting that JC was
allowed to hold outside employment. But the governmentâs case is in no way
dependent on JCâs ability to hold outside employment. Recall that though
Lopez, AC, and JC concocted a story to pretend the bribes were for JC to do
legal work for QRM, JC did not do legal work for QRM.
Snyder does not call into question the validity of defendantsâ convic-
_____________________
28
There is a separate question, perhapsâthough it is not cleanly raised hereâ
about whether Gonzalez was actually a consultant and therefore what Quintanilla was ask-
ing him to testify to was not actually false. Even were this properly raised, it would fail for
two reasons. First, we would have to overcome the clear-error standard in determining that
Quintanilla was actually a consultant; it is not likely we could meet that bar. Second, it might
not matter whether Quintanilla was actually a consultant. For example, one could interpret
the record as Quintanillaâs asking Gonzalez to testify that Gonzalez considered him to be a
consultant. If thatâs the case, then this is plainly obstruction. Gonzalez obviously did not
consider Quintanilla to be a consultant.
29
See Vine St. LLC v. Borg Warner Corp., 776 F.3d 312, 317 n.5 (5th Cir. 2015) (âAn intervening change in the law, however, normally does not permit a party to raise an entirely new argument that could have been articulated below or in the partyâs opening brief.â (cleaned up)). Cf. United States v. Sanjar,876 F.3d 725, 749
(5th Cir. 2017).
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tions. Unlike Snyder, this is a case about bribes rather than gratuities, and the
jury was instructed to that effect. This case is wholly dissimilar to Snyderâ
which involved a single payment well after the official act without any evi-
dence of an agreement beforehand, see 144 S. Ct. at 1951, 1954âand defen-
dants do little to show otherwise.
*****
This was a well-tried case by the district court. The judgments of con-
viction and sentence are AFFIRMED.
35