APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF PUERTO RICO [Hon. Aida M. Delgado-Colón,
U.S. District Judge]
L. Sánchez-Mercado and ESM Law Office on brief for
appellant Carlos Meléndez-González.
A. Rivera-Fernández, with whom Luis Rafael
Rivera-Rodríguez and Luis Rafael Rivera
Rodríguez Law Offices were on brief, for appellant
L. Lane, Appellate Counsel, National Security Division, U.S.
Department of Justice, with whom Rosa E.
Rodríguez-Vélez, United States Attorney, was on
brief, for appellee.
Torruella, Selya, and Lynch, Circuit Judges.
case involves convictions in December 2016 for fraudulent
recruitment practices from March 2006 through June 2008 by
members of the U.S. Army National Guard in Puerto Rico.
Defendant National Guard officers Carlos
Meléndez-González and Enrique Costas-Torres
carried out a scheme to procure recruitment bonuses to which
they were not entitled. They were convicted after a jury
trial of wire fraud, embezzlement of public money, and
conspiracy. Their appeals from their convictions raise
multiple issues, including tolling under the Wartime
Suspension of Limitations Act, 18 U.S.C. § 3287; rulings
by the district court as to dress in the courtroom, meant to
protect the jury from prejudicial influence; sufficiency of
the evidence of a conspiracy to defraud the United States;
and what constitutes impermissible "overview"
testimony. Finding no merit in any of defendants' many
claims of error, we affirm.
review the evidence "in the light most favorable to the
verdict." United States v. Van Horn, 277 F.3d
48, 50 (1st Cir. 2002) (citing United States v.
Escobar-de Jesus, 187 F.3d 148, 157 (1st Cir. 1999)).
2005, the Department of Defense instituted the National Guard
Recruiting Assistance Program ("G-RAP") to help
recruit soldiers during the ongoing conflicts in Iraq and
Afghanistan. G-RAP was intended to supplement the National
Guard's traditional reliance on full-time recruiters. It
enabled Guard members who are not full-time recruiters to
register as "Recruiting Assistants, " use their
personal networks to identify and nominate potential recruits
and refer them to full-time recruiters, and receive bonuses
if their nominees ultimately enlist. Docupak, a marketing
company and contractor, administered G-RAP by hiring and
managing Recruiting Assistants and processing bonus payments.
become a Recruiting Assistant, an applicant completed an
online application, verified his eligibility, created an
online profile, and completed a mandatory training.
Importantly, Recruiting Assistants were prohibited from
sharing G-RAP bonuses with full-time recruiters, and this
limit was emphasized in the original training module. The
rules also specified, as set forth in a revised training
module, that Recruiting Assistants were prohibited from
receiving information about a nominee from a recruiter
without the nominee's consent, and from nominating an
individual they did not know.
upon successfully completing training (which entailed
reviewing the information in the training modules and then
passing a quiz) could a Recruiting Assistant begin
identifying potential recruits. After making a nomination,
the Recruiting Assistant would facilitate a meeting between
the nominee and a full-time recruiter. The full-time
recruiter would assess the nominee's qualifications,
perform aptitude tests, and run a background check. The
Recruiting Assistant was expected to provide support and
mentorship to the nominee throughout this process. As
compensation, the Recruiting Assistant would receive a $1,
000 payment if the nominee enlisted and an additional $1, 000
payment if the nominee progressed to basic training. Each
Recruiting Assistant recorded his or her participation in the
online system administered by Docupak: first by creating a
profile for each nominee with the nominee's personal
identifying information, then by adding entries detailing
each nominee's progress.
("Meléndez"), a part-time member of the Army
National Guard, became a Recruiting Assistant in 2006.
Between 2006 and 2008, Meléndez received $21, 000 in
recruitment bonuses for twelve new National Guard enlistees
recorded as his nominees on his G-RAP account.
an Army Audit Agency review found "signs of possible
fraud" in G-RAP, the Army Criminal Investigations
Division ("CID") launched a nationwide
interview with investigators in 2013, Meléndez
admitted that he did not know most of his nominees. Nor did
he act as a Recruiting Assistant for any of them; the
nominees were all recruited by Enrique Costas-Torres
("Costas"), a full-time recruiter who was not
eligible for recruitment bonuses. Meléndez knew Costas
from a previous posting. The investigation also revealed that
Meléndez's G-RAP account contained various false
statements, including claims that he had had meetings with
nominees that in fact never occurred. Meléndez also
informed investigators that he had provided his G-RAP account
password to Costas.
investigators concluded that Meléndez and Costas had
carried out a fraudulent scheme to obtain recruitment
bonuses: Costas enlisted new recruits and provided
Meléndez with their personal identifying information,
and Meléndez pretended that the recruits were his own
leads in order to collect bonuses and then to split the
proceeds with Costas. On October 21, 2015, a grand jury
returned an indictment charging Costas and Meléndez
with conspiracy to defraud the United States, in violation of
18 U.S.C. § 371; conspiracy to commit wire fraud, in
violation of 18 U.S.C. § 1349; wire fraud, in violation
of 18 U.S.C. § 1343; and aggravated identity theft, in
violation of 18 U.S.C. § 1028A(a)(1). All charges
pertained to conduct that occurred between March 2006 and
June 2008. On April 13, 2016, the grand jury returned a
superseding indictment charging the same offenses plus one
count of embezzling public money, in violation of 18 U.S.C.
§§ 641-642, pertaining to the same conduct.
were tried jointly. Neither testified. At the close of an
eight-day trial by jury, Meléndez was convicted of one
count of conspiracy to defraud the United States, one count
of embezzling public money, one count of conspiracy to commit
wire fraud, and thirteen counts of wire fraud. Costas was
convicted of three counts of wire fraud. The district court
granted the defendants' motion for acquittal on one count
of wire fraud and one count of aggravated identity theft. The
jury found the defendants not guilty on the remaining counts.
was sentenced to one year in prison, three years of
supervised release, a $5, 000 fine, and $3, 000 in
restitution. Meléndez was sentenced to time served
(approximately two months), two years of supervised release,
and $20, 000 in restitution. The court found that Costas had
the "main role" in the scheme because he was
"a higher ranking officer and was the one with access to
the personal and identifying information for all the
recruited . . . persons for which payments were
processed." The court determined that Costas had not
only provided his recruits' personal information to
Meléndez but had also himself accessed
Meléndez's G-RAP account and directly input
information for certain recruits.
appealed his conviction and sentence. Meléndez
appealed only his conviction. ...