United States v. Quintanilla

In United States v. Quintanilla, —- F.4th —-, No. 23-40033 (Aug. 30, 2024), the Fifth Circuit affirmed the two defendants’ convictions for “various federal offenses related to a conspiracy to bribe officials of Weslaco, Texas, to pick certain contractors for an infrastructure project.” This 35-page opinion is a cautionary tale for how attorneys should not litigate a criminal appeal.

Background: Around 2007, Weslaco began projects to repair its water and wastewater systems. The defendants, Ricardo Quintanilla and Arturo Cuellar, Jr., were convicted for their involvement in a scheme to bribe city commissioners to award city contracts to a specific engineering and construction firm. One commissioner received between $10,000 and $15,000 from one of the defendants, and another commissioner received $405,000 from the other defendant through the defendant’s company. For the latter payments, the conspirators “concocted a story” claiming those were payments for legal fees, even though no legal work was done.

Issue 1: How should defendants’ consolidated briefs be handled? Under Fed. R. App. P. 28(i), appellants cannot adopt a fact-specific challenge by merely referring to similar challenges their co-defendant raises on appeal. Here, the defendants filed a consolidated brief, but the Fifth Circuit found no reason why fact-specific portions of that brief “should be more liberally imputed to another merely by virtue of the fact that we have one PDF and not two.”

Issue 2: “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.” Here, the defendants identified nine issues, but each of those issues contained sections “that would ordinarily be issues appealed in their own right.” But because the defendants had not identified those additional issues in their “statement of the issues,” they were forfeited. The Fifth Circuit “will not use a scalpel to extract whatever latent independent arguments parties inconspicuously smuggle in.”

Issue 3: The indictment was not constructively amended. The defendants did not make that argument in the district court, so the Fifth Circuit reviewed it under the plain-error standard. Unfortunately for the defendants, their appellate counsel failed to meaningfully address the plain-error requirements, which doomed their argument. But even if they had briefed plain error properly, the defendants still would have lost, in part because their “briefing [did] not reflect a correct understanding of what a ‘constructive amendment’ is.”

Although the defendants called this a “constructive-amendment challenge,” they actually alleged a fatal variance. (They had argued that the trial evidence proved multiple conspiracies while the indictment alleged only one, which is a fatal-variance argument. United States v. Urquidi, 71 F.4th 357, 381 (5th Cir. 2023).) Failure to brief a fatal variance argument meant they forfeited that argument. But even if they had briefed it, their argument was meritless.

Issue 4: One defendant argued for another constructive amendment, saying that “the government failed to show that [he] owed a fiduciary duty to the City of Weslaco that would make him liable for honest-services fraud.” But that was “really a sufficiency-of-the-evidence challenge,” so that argument was also forfeited. Regardless, it was also meritless.

Issues 5 & 6: On one of the “other miscellaneous claims,” the Fifth Circuit wrote that “Defendants’ contention is not sufficiently fleshed out to avoid forfeiture,” and on another , it wrote: “[t]hat’s not our law, and defendants proffer no authority to suggest otherwise.” Later in the opinion, the court also wrote lines including: “defendants never actually explain,” “that’s not a tenable reading” of Supreme Court precedent, another argument was “forfeited for inadequate briefing,” and another “challenge is—as the government charitably describes it—’unclear.’”

Issue 7: Should the judge have recused? The judge had previously sued and settled a lawsuit involving a driver from one of the defendants’ companies. “(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.” Nevertheless, the judge need not have recused, because she did not sue the defendant himself. The defendant’s “only personal involvement with that litigation was as a registered agent who was personally served with the suit.”

Issue 8: The district court did not improperly chill a witness’s testimony by making plain that the witness had the right to consult an attorney, which he did before testifying the next day. But almost all of that interaction occurred at sidebar, away from the jury, and the judge “went out of her way … not to pressure the witness one way or the other.”

Issue 9: One defendant forfeited his argument that admission of certain statements at trial had violated the Confrontation Clause because on appeal, “[p]araphrasing the trial record is not enough.”

Issue 10: The defendants challenged the exclusion of certain emails even though they conceded that the emails were “properly barred under the rules of evidence.” The defendants “suggest[ed] a constitutional due process challenge,” but a “cite to Wardius v. Oregon, 412 U.S. 470 (1973)—without so much as a pin cite—doesn’t cut it. This is forfeited for inadequate briefing.”

Issue 11: Various sentencing challenges were “without merit,” “without legal support,” “hastily tossed out,” and “meritless.”

Issue 12: A challenge to the forfeiture order was “meritless,” not least because the defendant did not order the transcript for the forfeiture hearing, and failure to include a transcript “of all relevant evidence” constitutes forfeiture. Fed. R. App. P. 10(b)(2).