Argued, December 11, 2013
Appeal from the United States District Court for the District of Maryland, at Baltimore. (1:11-cr-00122-CCB-13). Catherine C. Blake, District Judge.
Matthew Scott Owen, KING & SPALDING LLP, Washington, D.C., for Appellant.
Kathleen O'Connell Gavin, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
Daniel S. Epps, KING & SPALDING LLP, Washington, D.C., for Appellant.
Rod J. Rosenstein, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
Before MOTZ, KING, and SHEDD, Circuit Judges. Judge King wrote the opinion, in which Judge Motz and Judge Shedd joined.
KING, Circuit Judge
In 2012, a jury found defendant Samuel Ocasio, a former officer of the Baltimore Police Department (the " BPD" ), guilty of four offenses relating to his involvement in a kickback scheme to funnel wrecked automobiles to a Baltimore auto repair shop in exchange for monetary payments. Ocasio was convicted on three Hobbs Act extortion counts, see 18 U.S.C. § 1951, plus a charge of conspiracy to commit such extortion, see 18 U.S.C. § 371. On appeal, Ocasio primarily maintains that his conspiracy conviction is fatally flawed and must be vacated. He also challenges a portion of the sentencing court's award of restitution. As explained below, we affirm Ocasio's conspiracy and other convictions, vacate the restitution award in part, and remand.
On March 9, 2011, Ocasio and ten codefendants were indicted in the District of Maryland in connection with the kickback scheme involving payments to BPD officers in exchange for referrals to a Baltimore business called Majestic Auto Repair Shop LLC (the " Majestic Repair Shop," or simply " Majestic" ). Nine of the defendants were BPD officers, and the others
were Herman Alexis Moreno and Edwin Javier Mejia, brothers who were co-owners and operators of the Majestic Repair Shop. The single-count indictment alleged, pursuant to 18 U.S.C. § 371, that the defendants, along with others " known and unknown," conspired to violate the Hobbs Act, 18 U.S.C. § 1951, by agreeing to " unlawfully obtain under color of official right, money and other property" from Moreno, Mejia, and Majestic.
See J.A. 18. As such, the initial indictment both charged Moreno and Mejia with the conspiracy offense and identified them -- as well as Majestic -- as victims of the extortion conspiracy.
Seven months later, on October 19, 2011, the grand jury returned a seven-count superseding indictment charging only two defendants, Ocasio and another BPD officer, Kelvin Quade Manrich, who had not been named in the initial indictment. Thereafter, the conspiracy offense in the first indictment was dismissed as to each of the other defendants, in exchange for guilty pleas. Each defendant entered into a plea agreement with the government and pleaded guilty to a separately-filed superseding information, predicated on admitted involvement in the kickback scheme. In connection with their guilty pleas, the brothers Moreno and Mejia agreed that they would testify at Ocasio's trial.
Count One of the superseding indictment -- naming both Ocasio and Manrich -- repeated the charge of conspiring to violate the Hobbs Act, in contravention of 18 U.S.C. § 371. Counts Two through Four charged Manrich with Hobbs Act extortion, that is, extorting Moreno by " unlawfully obtaining under color of official right, money and property," in violation of 18 U.S.C. § 1951(a). See J.A. 55. Finally, counts Five through Seven charged Ocasio with Hobbs Act extortion of Moreno on three specific occasions -- January 17, 2010, January 10, 2011, and January 15, 2011.
In Count One, the superseding indictment alleged the § 371 conspiracy offense against Ocasio and Manrich in the following terms:
From in or about the Spring of 2008, and continuing through at least February 2011, [Ocasio and Manrich], and others both known and unknown to the Grand Jury, did knowingly and unlawfully combine, conspire, confederate, and agree together, with other [BPD officers], and with Moreno and Mejia to obstruct, delay, and affect commerce and the movement of any article and commodity in commerce by extortion, that is, to unlawfully obtain under color of official right, money and other property from Moreno, Mejia, and [the Majestic Repair Shop], with their consent, not due the defendants or their official position, in violation of [the Hobbs Act].
J.A. 50. According to Count One, the purpose of the conspiracy was for " Moreno
and Mejia to enrich over 50 BPD Officers . . . by issuing payments to the BPD Officers in exchange for the BPD Officers' exercise of their official positions and influence to cause vehicles to be towed or otherwise delivered to Majestic for automobile services and repair." Id. at 51. Count One spelled out two overt acts in furtherance of the conspiracy -- a December 14, 2010 phone call between Manrich and Moreno, plus a January 15, 2011 call between Ocasio and Moreno -- and incorporated by reference, as additional overt acts, each of the six substantive Hobbs Act extortion counts.
The prosecutions underlying this appeal were the result of an extensive investigation conducted by the BPD and the FBI. The BPD began its investigation in the summer of 2009. When federal authorities joined the investigation in late 2010, the BPD had identified approximately fifty of its officers as possibly involved in wrongdoing with the Majestic Repair Shop. In the winter of 2010, the FBI placed a wiretap on Moreno's telephone and began surveillance at both Majestic and at Moreno's residence. During the period from November 2010 to February 2011, the FBI recorded thousands of phone calls between Moreno and various BPD officers, including Ocasio and Manrich.
The trial evidence established a wide-ranging kickback scheme involving the Majestic Repair Shop and BPD officers. The scheme was fairly straightforward: BPD officers would refer accident victims to Majestic for body work and, in exchange for such referrals, the officers would receive monetary payments. The payments made to BPD officers by the Majestic Repair Shop for their referrals of wrecked vehicles were made by both cash and check, and ranged from $150 to $300 per vehicle. After the kickback and extortion scheme began, knowledge of it spread by word-of-mouth throughout the BPD.
The referral of accident victims to the Majestic Repair Shop by BPD officers in exchange for money violated the BPD's established procedures. The BPD General Orders specify that BPD officers shall not violate any state or federal laws or city ordinances, or solicit or accept any " compensation, reward, gift, or other consideration" without the permission of the Police Commissioner.
See J.A. 49, 208-09. Pursuant to BPD General Order I-2, which specifies " towing procedures," if an accident victim in a non-emergency situation declines to contact her insurance company or other towing service (such as AAA), the BPD officer at the accident scene should call, through the BPD communications center, an already approved " Medallion towing company" to move the damaged vehicle. In an emergency situation, i.e., when conditions are hazardous or a wrecked vehicle could impede traffic or cause further injuries, BPD officers have the discretion to contact a Medallion towing company to request towing services without first securing the consent of the wrecked vehicle's owner or operator. Regardless of whether a Medallion towing company is called for a wrecked vehicle, the " owner or operator [retains] full discretion to determine the destination to
which the vehicle [is] to be towed." Id. at 213. Majestic was not, at any point during the Count One ...