APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF PUERTO RICO Hon. Francisco A. Besosa, U.S.
G. Weinberg, with whom Kimberly Homan, were on brief, for
David Lowell, with whom Christopher D. Man and Winston &
Strawn LLP were on brief, for appellant
Shanker, U.S. Department of Justice, Criminal Division,
Appellate Section, with whom Brian A. Benczkowski, Assistant
Attorney General, Matthew S. Miner, Deputy Assistant Attorney
General, Peter M. Koski, Public Integrity Section, and
Gwendolyn Amelia Stamper, Public Integrity Section, were on
brief, for appellee.
Howard, Chief Judge, Torruella and Kayatta, Circuit Judges.
TORRUELLA, CIRCUIT JUDGE.
everything old is new again,  Defendants Juan
Bravo-Fernández ("Bravo") and Héctor
Martínez-Maldonado ("Martínez") come
before us for a third time. See United States v.
Bravo-Fernández, 790 F.3d 41 (1st Cir. 2015);
United States v. Fernández, 722 F.3d
1 (1st Cir. 2013). In this appeal, they seek to overturn
their 2017 convictions for federal program bribery under 18
U.S.C. § 666, arguing primarily that evidence stipulated
to early in the proceedings was insufficient to convict.
the elements of § 666, the government was required to
establish that the entity Martínez represented as an
agent, in this case the Commonwealth of Puerto Rico, received
at least $10, 000 in federal "benefits" within the
meaning of that statute. The government did not meet this
burden. Accordingly, we must reverse defendants'
convictions for federal program bribery.
pertinent facts and procedural background are examined in
detail in Bravo-Fernández, 790 F.3d at 43-45,
and Fernández, 722 F.3d at 6-8, for which we
only sketch a high-level overview of that account here.
case traces its origin to 2010, when Bravo and
Martínez were charged with federal program bribery in
violation of § 666, among other things. The charges
stemmed from payments that Bravo made in 2005 involving a
trip to Las Vegas to which he invited Martínez, then a
Puerto Rico senator. According to the government, Bravo used
the trip to bribe Martínez in exchange for his support
of pending legislation that would have favored Bravo's
business, Ranger American, a local security company.
and Martínez were first tried and found guilty of
federal program bribery in 2011, an outcome which they
successfully challenged before this court. See
Fernández, 722 F.3d at 6, 39. In that initial
appeal, we ruled that § 666 only criminalizes bribery,
not gratuities, and that the evidence presented at trial,
together with the jury instructions, could have led the jury
to improperly convict on either a "bribery" or
"gratuity" theory. Id. 16-17, 23-26.
Because it was insufficiently clear to discern which theory
the jury relied on to reach its verdict, we vacated
defendants' convictions on the § 666 counts and
remanded for potential re-prosecution. Id. at 26-28,
remand, Bravo and Martínez moved for judgment of
acquittal, arguing that double jeopardy barred their renewed
prosecution. Bravo-Fernández, 790 F.3d at 43,
49. The district court rejected this contention, after which
defendants sought refuge before our court once again.
Id. at 43. This time, however, defendants'
appeal was unsuccessful and we affirmed the district
court's decision on the double jeopardy issue.
Id. Defendants' further appellate endeavor
before the Supreme Court reached a similar result. See
Bravo-Fernández v. United States, 137 S.Ct. 352
and Martínez faced their second trial in May 2017, and
once again a jury found them guilty of federal program
bribery under § 666. Those proceedings devolved into the