throbber
United States Court of Appeals
`For the First Circuit
`
`
`
`
`No. 21-1823
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`UNITED STATES OF AMERICA,
`
`Appellee,
`
`v.
`
`JASIEL F. CORREIA, II,
`
`Defendant, Appellant.
`
`
`
`
`
`
`
`
`
`APPEAL FROM THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MASSACHUSETTS
`
`[Hon. Douglas P. Woodlock, U.S. District Judge]
`
`
`
`Before
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`Lynch, Selya, and Howard,
`Circuit Judges.
`
`
`Daniel N. Marx, with whom William W. Fick and Fick & Marx LLP
`were on brief, for appellant.
`Mark T. Quinlivan, Assistant United States Attorney, with
`whom Rachael S. Rollins, United States Attorney, was on brief, for
`appellee.
`
`
`
`
`
`November 28, 2022
`
`
`
`
`
`
`
`
`

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`SELYA, Circuit Judge. At a youthful age, defendant-
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`appellant Jasiel F. Correia, II, successfully persuaded investors
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`to back his SnoOwl app. He then parlayed his work as an innovator
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`and entrepreneur into a stunning electoral victory, winning office
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`(at the age of twenty-three) as mayor of the city of Fall River,
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`Massachusetts (the City). But the swiftness of the defendant's
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`rise was matched by the swiftness of his fall: a federal grand
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`jury indicted him on charges relating to his SnoOwl promotion, and
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`a superseding indictment added charges relating to public
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`corruption. The defendant did not seek a severance and, following
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`an eighteen-day trial, he was convicted on most of the charges.
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`The district court set aside some convictions, but let others stand
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`and sentenced the defendant to serve seventy-two months in prison.
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`The defendant now appeals. After careful consideration of a
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`chiaroscuro record, we affirm.
`
`I
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`
`
`
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`We start with the relevant facts, recounting them "in
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`the light most hospitable to the verdict, consistent with record
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`support." United States v. Tkhilaishvili, 926 F.3d 1, 8 (1st Cir.
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`2019). We divide this discussion into three parts. First, we set
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`out the facts supporting the defendant's convictions for wire
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`fraud. Second, we set out the facts supporting his convictions
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`under the Hobbs Act. Third, we trace the travel of the case.
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`A
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`
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`In late 2012, while a college student, the defendant
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`began putting together a plan to develop an app called SnoOwl.
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`For help, he enlisted three people: his then-roommate, a friend
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`from high school, and a software engineer. The defendant hoped
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`that SnoOwl, when perfected, would enable consumers to find events,
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`specials, and services being offered by businesses near them.
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`To realize this vision, though, seed money had to be
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`obtained. The defendant assumed responsibility for courting
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`potential investors. Over time, he persuaded at least five people
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`to invest in the endeavor. All five testified at trial, but we
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`focus the lens of our inquiry on two of them: Mark Eisenberg and
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`Victor Martinez. Eisenberg was a business coach who had previously
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`owned or operated firms in various industries. Martinez — a friend
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`of Eisenberg's — ran a chain of pizza restaurants.
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`Eisenberg and Martinez first met the defendant on
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`November 4, 2014. During that meeting, the defendant lauded the
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`prospects of SnoOwl and asked them to invest $50,000 toward its
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`development. As part of his pitch, the defendant told them about
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`his background. Most relevant here, he described his previous
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`experience "develop[ing] an app." That app — which the defendant
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`had developed with a fellow student, Alec Mendes, while at
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`Providence College — was called FindIt. Like SnoOwl, FindIt's
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`purpose was to help consumers identify local businesses that were
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`advertising specials and accepting coupons. FindIt earned money
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`by charging businesses for advertisements — and over the entire
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`span of its existence, FindIt generated only a few thousand dollars
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`in revenue.
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`At their initial meeting, the defendant informed
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`Eisenberg and Martinez that FindIt was "eventually sold to a group
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`out of Cambridge." This unidentified group — as the defendant
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`told it — then "turned around and sold [the app] to Facebook."
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`Eisenberg recalled being "impress[ed]" by this feat, and he
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`remembered that the defendant had indicated that he received money
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`from FindIt's sale.
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`
`
`
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`The defendant's account of FindIt's success was at odds
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`with the tale told by the record. In point of fact, there was no
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`evidence that FindIt was ever purchased by an outside group from
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`Cambridge or elsewhere. To the contrary, Mendes testified that
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`FindIt was abandoned and went offline. Around the same time,
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`Mendes and the defendant agreed to divide FindIt's assets amongst
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`themselves. The defendant received a payout of approximately
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`$2,000 — but nothing in the record suggests that those funds
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`derived from any sale of the app or its underlying source code.
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`Unaware of FindIt's ignominious ending, Eisenberg and
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`Martinez
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`"believe[d]
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`[the
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`defendant's]
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`representations."
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`Eisenberg testified unequivocally that he would not have invested
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`in SnoOwl had he "known that there was no college app that was
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`sold to people in Cambridge, who then sold it to Facebook."
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`
`
`
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`The day after meeting with the two investors, the
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`defendant sent them an email attaching, among other things, "an
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`updated business plan." The business plan included information on
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`SnoOwl's expenses — specifically, $6,750 per month for software,
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`$179 per month for server space, and $8,000 for a legal-fee
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`obligation. The business plan also represented that "[o]ther costs
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`associated with running the day-to-day operation of SnoOwl are
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`negligible," adding a caveat that "[f]uture expenses will include
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`hiring new talent and contractors, providing livable salaries to
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`employees, and cloud server space."
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`
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`
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`Eisenberg and Martinez each agreed to invest $25,000 in
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`SnoOwl in exchange for a 3.5% equity stake. These details were
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`confirmed by email and — to aid in formalizing the investments —
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`the defendant emailed each of them an "investor agreement."
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`Through the investor agreements, the defendant committed to (among
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`other things) "not sell[ing], assign[ing], transfer[ring] or
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`otherwise convey[ing] business assets . . . owned, held by or owed
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`to the Company . . . except in the ordinary course of business,
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`without the Investor's consent." The agreement further required
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`SnoOwl to act responsibly "to protect the integrity of the company
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`and the investment." Eisenberg signed the agreement, but the
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`record is tenebrous as to whether Martinez actually signed. What
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`is luminously clear, though, is that each man cut a check for
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`$25,000 and delivered it to the defendant.
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`The defendant did not hesitate to spend the investors'
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`money on personal expenses. He spent thousands of dollars on
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`(among other things) car payments, casinos, hotel stays,
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`transportation expenses, clothing, women's shoes, cologne, and
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`student loans. He also used company funds in service of his
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`political ambitions.
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`Although these expenditures were made outside the
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`ordinary course of the company's business, the defendant never
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`sought the investors' consent. Eisenberg testified that had he
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`"known that investment money . . . was going to" things like
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`"cologne," "$700 shoes for [the defendant's] girlfriend," and
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`"strip clubs, casinos, and other places of recreation that were
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`not involved with the company," he would not have invested.
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`Martinez, too, testified that he would "[a]bsolutely not" have
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`invested had he been told that the defendant "was going to use
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`investment money . . . on expensive shoes, cologne, and many other
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`personal items."
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`
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`
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`The defendant also convinced other individuals to invest
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`in SnoOwl. Three such investors testified at trial, sounding many
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`of the same themes as Eisenberg and Martinez. This testimony was
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`reinforced by a substantial amount of documentary evidence. Taken
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`as a whole, the documents showed that, from 2013 through 2015, the
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`defendant solicited investments totaling $358,190. Of this sum,
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`the defendant spent approximately $18,600 on "[c]lothing, health
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`care products, jewelry, personal grooming and personal trainers";
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`$27,023 on "hotel expenses"; $25,121 on "dining expenses"; $31,780
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`on "transportation related expenses"; and $37,282 on "personal
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`credit cards, student loans and a vehicle." He also spent
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`thousands of company dollars on "entertainment expenses" such as
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`movies, sightseeing, amusement parks, and golf. Few, if any, of
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`these expenses were generated in the ordinary course of SnoOwl's
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`business. An Internal Revenue Service (IRS) agent estimated that
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`the defendant spent $228,654 from SnoOwl's accounts on "personal
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`expenditures."
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`B
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`
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`The second cache of facts relates to the defendant's
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`tenure as the City's mayor. After winning election in 2015, the
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`defendant assumed office in January of 2016. As mayor, the
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`defendant enjoyed many powers — our concern here is primarily with
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`his role in allowing marijuana vendors to open marijuana shops in
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`the City.
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`Some background helps to lend perspective. When
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`Massachusetts legalized medical marijuana in 2012 and recreational
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`marijuana in 2016, it gave localities a place in the application
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`process for prospective entrants into the market. As relevant
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`here, between July of 2016 and August of 2018, the Commonwealth's
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`laws and regulations required that an applicant obtain a letter of
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`support or non-opposition (a non-opposition letter) from the
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`municipality in which the applicant proposed to operate. See,
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`e.g., 105 Mass. Code Regs. 725.100(B)(3)(f) (2016). In addition,
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`an applicant needed to enter into a host community agreement with
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`the municipality, see Mass. Gen. Laws Ann. ch. 94G, § 3 (West
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`2018); 935 Mass. Code Regs. 500.101(1)(a) (2018), which typically
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`committed the business to paying up to three percent of its gross
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`sales to the municipality. The Massachusetts Cannabis Control
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`Commission required both a non-opposition letter and a host
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`community agreement as preconditions to the issuance of a license
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`to sell marijuana at retail. See 935 Mass. Code Regs.
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`500.101(1)(a) (2018).
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`As mayor, the defendant held sole responsibility and
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`executive authority to issue non-opposition letters and approve
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`host community agreements. See Fall River, Mass., Charter § C-3-
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`2. Soon after he assumed office, a number of prospective vendors
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`approached the City about opening marijuana businesses. We
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`encapsulate below the experiences of four of those prospective
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`vendors.
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`1
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`In 2016, David Brayton began trying to open a marijuana
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`business in the City. His initial attempts failed, so he turned
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`to his friend, Antonio Costa, for help. Costa had a close
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`relationship with the defendant, and he was able to arrange for
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`Brayton to meet with the defendant. The meeting proved to be
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`unproductive, as the location that Brayton proposed for his shop
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`encountered a zoning problem.
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`After Brayton identified another potential location, he
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`again reached out to Costa. When the two men met, Costa told
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`Brayton that the defendant was "looking to get a donation or a
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`bribe . . . in order to make this work." Brayton inquired as to
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`the price tag, and Costa replied that it would cost $250,000.
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`Brayton could not afford to pay that much in a lump sum, so he
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`proposed an "alternative arrangement" under which he would pay
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`$100,000 up front and an additional $150,000 when his new
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`business's "cash flow [turned] positive." Costa said that he would
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`need "to get back to" Brayton.
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`Costa then spoke with the defendant, who asked only
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`whether Brayton was "good for it?" Subsequently, Costa told
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`Brayton that he had spoken with "Jasiel" and that the arrangement
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`Brayton had described — $250,000, divided into two installments,
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`in exchange for a non-opposition letter and host community
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`agreement — was acceptable.
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`Acting on this struck bargain, Brayton delivered a
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`$100,000 check to Costa on July 14, 2016. Brayton's project then
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`began to pick up speed: he received a non-opposition letter dated
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`July 14. A host community agreement was signed by the defendant
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`less than two months thereafter.
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`Trying does not always pay, and Brayton's marijuana
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`dispensary never turned a profit. Consequently, he never forked
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`over the remaining $150,000. Even so, the arrangement proved
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`profitable for both the defendant and Costa: they divvied up the
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`proceeds of Brayton's check, with the defendant pocketing $80,000
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`and Costa pocketing $20,000.
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`2
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`The next aspiring marijuana vendor was Brian Bairos. In
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`the 2017-2018 time frame, Bairos decided to expand his Rhode Island
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`marijuana business into the City. To this end, Bairos met with
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`the defendant and the defendant's chief of staff, Genoveva Andrade.
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`After that meeting produced no immediate results, Bairos made the
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`acquaintance of Craig Willard who, in turn, introduced him to
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`Costa.
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`When Bairos met with Costa, the latter boasted that "he
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`had a good relationship with the mayor, and that he could get
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`[Bairos] the letters that [he] need[ed] to move forward with [his]
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`license." Costa also told Bairos that there would be a "cost" of
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`$250,000, which Bairos regarded as "[b]asically a bribe." Bairos
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`objected to the amount, and the two men ultimately agreed to a
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`total of $150,000, to be split into two installments — the first
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`due "up front" and the second due when Bairos "got the license."
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`Bairos testified that he came to realize that the defendant "would
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`be getting th[e] money."
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`In the weeks following the meeting, Bairos and Costa
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`exchanged a number of text messages. On May 25, 2018, Costa sent
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`a text saying that the defendant "gave [him] a call and told [him]
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`it's a done deal so no worries." Bairos took this to mean that
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`the defendant had "accepted" the terms he had negotiated with
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`Costa. Costa testified to a similar interpretation of this text.
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`On June 19, 2018, the defendant had dinner with Bairos
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`and asked him "[i]s everything good?" Bairos took this to be a
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`reference to the arrangement he had reached with Costa, and he
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`assured the defendant that "we were [good]" — meaning that he was
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`"prepared and had pledged to pay the bribe." The two men met again
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`ten days later. During this meeting, the defendant asked Bairos
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`to "donate" $25,000 "to his legal fund." Bairos understood this
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`to be a request for money "in addition to the bribe [he] had
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`[already] agreed to pay." Bairos never made the requested
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`donation.
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`In due season, Bairos received a non-opposition letter
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`dated July 2, 2018, signed by the defendant.1 On July 7, Bairos
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`says that he gave Costa $25,000 in cash as "part of the first
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`portion of the agreement." Bairos believed that this payment would
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`1 The record does not disclose when, if ever, Bairos received
`a host community agreement.
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`be split in some way between Costa and the defendant. Although he
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`already had the letter, Bairos testified that he made the payment
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`because he feared that the letter "could be redacted or taken away
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`at any time."
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`Although Costa's testimony reflected a slightly
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`different recollection of the facts — Costa testified that Bairos
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`forked over between $30,000 and $50,000 — it also lent further
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`color to the events surrounding the July 7 payment. Costa
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`recounted that he gave Bairos's cash to another co-conspirator
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`(Camara) who, in turn, was to pass it along to the defendant.
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`According to Costa, the defendant refused to "touch it" for fear
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`that it was "fed money."
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`On July 16, Costa texted Bairos, saying that "[he has]
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`been calling [Costa's] phone looking for paper," which Bairos
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`interpreted to mean that "Mayor Correia" had been calling Costa
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`looking for "money." And on July 18, Costa texted Bairos,
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`reiterating that the defendant "wants his end." Two days later,
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`Bairos gave Costa a combination of cash and marijuana, which Costa
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`credited as a $42,550 payment toward the bribe.
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`In September of 2018, Bairos and the defendant met in
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`Providence. The defendant wanted to confirm that "everything was
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`still going forward and everything was moving, that everything was
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`good." He asked Bairos "[i]s the money good? Are we all set?"
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`Bairos understood the defendant to be referring to "[f]inish[ing]
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`paying off the first portion of the bribe," and he told the
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`defendant that "there was [sic] a few hiccups here and there.
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`There was some additional costs that came through, and that it was
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`just taking a little bit more time, but it would be done." On
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`March 28, 2019, Bairos made another cash payment to Costa:
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`$10,000.
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`As matters turned out, Costa testified that he never
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`gave any of Bairos's bribe money to the defendant. Nor is there
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`any evidence that Costa gave the defendant any of the marijuana
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`that Costa received from Bairos.
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`3
`
`The third aspiring marijuana vendor was Charles Saliby,
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`who called city hall at several points during the first half of
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`2018 in search of a non-opposition letter and host community
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`agreement. Around the beginning of June, Saliby spoke with
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`Andrade, who expressed skepticism that the defendant would issue
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`additional letters. She nonetheless arranged a meeting between
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`Saliby and the defendant.
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`The two men met (with Andrade in attendance) on or about
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`June 21, 2018 at the mayor's office. During this meeting, the
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`defendant reiterated that he did not have the capacity to issue
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`additional letters. He raised the possibility, though, of
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`rescinding a license that was presently inactive.
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`A few days later, the defendant and Andrade visited
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`Saliby at Saliby's store. In a backroom office, the defendant and
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`Andrade told Saliby that the defendant was prepared to issue the
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`coveted letters. When Saliby asked whether there was "anything
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`[he] can do," the defendant replied that he was "looking for
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`$250,000." Saliby understood this to be a request for "a bribe."2
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`After Andrade left, Saliby asked the defendant "why
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`$250,000?" The defendant responded that the value of the license
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`would be "a lot more" and that "he was only going to issue six of
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`them." The defendant then added that he wanted the money to be
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`paid to his legal defense fund. Saliby balked at the price, and
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`the two men haggled, settling upon a figure of $125,000 — a figure
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`agreed to after the defendant said that he could not "go any
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`lower." When asked at trial what he thought would have happened
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`had he refused to pay the bribe, Saliby testified that he believed
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`the defendant would not have issued the letter and — in the bargain
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`— would have retaliated against his existing business.
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`Once the men had agreed on the amount of the bribe,
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`Saliby escorted the defendant out of his office. On the way out,
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`they encountered Andrade, who inquired whether "everything" was
`
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`2 As context for this understanding, it is important to note
`that Saliby had learned from Bairos — days earlier — that the
`defendant was seeking a $250,000 bribe from him.
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`"okay." Saliby replied in the affirmative. Andrade assured him
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`that "[y]ou're family now."
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`Saliby later learned of another "annual legal fee" — a
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`$50,000 "community impact fee" — that he would need to pay to
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`operate his proposed marijuana business. Upon learning of this
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`fee, Saliby again met with the defendant and Andrade (this time in
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`Andrade's city hall office). Saliby voiced his objection to the
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`$50,000 community impact fee. The defendant replied that he "would
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`be able to drop [that fee] down to $25,000 a year" on the condition
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`that Saliby "add another $25,000 on top of" the previously agreed
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`$125,000. Saliby consented to this arrangement, and the defendant
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`agreed that Saliby could pay the $150,000 bribe in two equal
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`installments. The first installment was to be paid when Saliby
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`received the non-opposition letter and host community agreement
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`and the second when the Commonwealth issued a provisional license.
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`Several days after the city hall meeting, the defendant
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`called Saliby about coming to collect the first installment. As
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`arranged, the defendant drove to Saliby's store; Saliby got into
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`the defendant's car; and Saliby gave the defendant $75,000 in cash.
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`In exchange, the defendant handed Saliby a signed non-opposition
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`letter and host community agreement.
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`4
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`
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`The fourth aspiring marijuana vendor was Matthew
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`Pichette. In 2018, Pichette and his partners decided that they
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`wanted to open a marijuana business in the City. On July 11, 2018,
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`Pichette contacted David Hebert, a man who had a close relationship
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`with the defendant. Hebert explained the process for obtaining
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`the necessary documents from the City. He added that he had spoken
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`with the defendant and that — although the City was "maxed out" —
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`the defendant might still be able to get Pichette what he needed.
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`Hebert told Pichette that he should put together a proposal and
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`that — when the proposal was ready — Hebert would set up a meeting
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`between Pichette and the defendant.
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`
`
`
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`Two weeks later, Pichette notified Hebert that the
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`proposal was ready. Hebert arranged for Pichette to meet with the
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`defendant the following day. Hebert conferred with Pichette in
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`advance of that meeting and told him that completing the process
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`was "going to come with a cost" — a $25,000 payment to the
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`defendant's legal defense fund. Although Pichette "[didn't] like
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`this idea," he agreed to make the payment, believing that "there
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`was no other way to get" the non-opposition letter and host
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`community agreement.
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`
`
`
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`Later that day, Pichette and his partners met with the
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`defendant at city hall and presented their proposal. Afterwards,
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`Pichette had a private conversation with the defendant during which
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`the defendant confirmed that Pichette had "talked with [Hebert]
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`and we're good." Pichette rejoined that he had spoken to Hebert
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`and "we're good." Pichette took this exchange to be a confirmation
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`that the defendant knew that Pichette had dealt with Hebert and
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`had agreed to pay the $25,000 bribe. Pichette came away believing
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`"[t]hat [the defendant] was dirty."
`
`
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`
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`The next day, Pichette met with Hebert and discussed how
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`the $25,000 payment was to be made. Hebert suggested funneling
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`the money through a $25,000 campaign contribution. To skirt
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`campaign finance limits, Hebert further suggested that Pichette
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`collect $1,000 checks from twenty-five friends and family members.
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`Before the discussion ended, Hebert agreed that the $25,000 amount
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`did not have to be paid all at once but, rather, could be split
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`into two installments.
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`On August 20, 2018, Hebert advised Pichette that he was
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`"getting [Pichette's] letters" that day. The two men then agreed
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`that the bribe would be paid through Pichette's purchase of $25,000
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`in tickets to the defendant's fundraising events — $12,500 worth
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`of tickets for a summer event and the rest for a Christmas party.
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`Pichette collected $11,500 in checks from family members and
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`colleagues (most of whom Pichette reimbursed) and used those funds
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`to purchase tickets for the first event. The checks were dated
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`either August 29 or September 5; they were made out to "Friends of
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`Mayor Jasiel Correia, II" or some variation thereof. On August
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`21, Hebert delivered the non-opposition letter and host community
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`agreement (both of which were dated August 17).
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`C
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`
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`In the midst of these maneuverings, the government
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`convened a grand jury to investigate the defendant. On October 4,
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`2018, the grand jury returned an indictment charging the defendant
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`with wire fraud and tax fraud in connection with the SnoOwl app.
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`Almost a year later, the grand jury returned a first superseding
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`indictment that enlarged the charges against the defendant to
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`include Hobbs Act extortion, conspiracy to commit Hobbs Act
`
`extortion, and bribery. Most of the new charges related to his
`
`dealings, as mayor, with would-be marijuana vendors. The remainder
`
`alleged variously that the defendant, as mayor, hired and retained
`
`his chief of staff on the condition that she kick back half of her
`
`salary to him and that he extorted and conspired to extort a
`
`businessman in exchange for issuing certain permits. In a second
`
`superseding indictment, the grand jury added charges against
`
`Andrade. All told, the grand jury — as evidenced by the second
`
`superseding indictment — charged the defendant with nine counts of
`
`wire fraud, see 18 U.S.C. § 1343; four counts of tax fraud, see 26
`
`U.S.C. § 7206(1); five counts of conspiracy to commit extortion,
`
`see 18 U.S.C. § 1951(a); five counts of extortion, see id.; and
`
`one count of bribery, see 18 U.S.C. § 666(a)(1)(B).
`
`
`
`
`
`Andrade entered a guilty plea, and the defendant
`
`proceeded to trial alone. The government and the defendant agreed
`
`that all the charges should be tried together. Following an
`
`- 18 -
`
`

`

`eighteen-day trial, the jury convicted the defendant of all nine
`
`counts of wire fraud, all four counts of tax fraud, four counts of
`
`extortion conspiracy, and four counts of extortion. The jury
`
`acquitted the defendant on one count of extortion conspiracy, one
`
`count of extortion, and the bribery count.
`
`
`
`
`
`The defendant moved for judgment of acquittal and/or a
`
`new trial on all of the counts of conviction. The district court
`
`consolidated the hearing on these motions with the sentencing
`
`hearing. The court acquitted the defendant on six of the nine
`
`wire-fraud counts after determining that a stipulation the parties
`
`had reached did not provide sufficient evidence from which the
`
`jury could find beyond a reasonable doubt that the "interstate
`
`wire" element of the offense had been satisfied. The court
`
`likewise acquitted the defendant on all four of the tax-fraud
`
`counts. In all other respects, the court denied the defendant's
`
`post-trial motions. It then proceeded to sentence the defendant
`
`to a seventy-two-month concurrent term of immurement on each count
`
`of conviction. This timely appeal followed.
`
`II
`
`
`
`
`
`The defendant challenges his convictions on multiple
`
`fronts. First, he argues that the evidence was insufficient to
`
`sustain several of the counts of conviction. Second, he argues
`
`that the impact of spillover prejudice necessitates a new trial.
`
`Third, he argues that we should order a new trial due to
`
`- 19 -
`
`

`

`instructional error. Finally, he argues that we should order a
`
`new trial due to prosecutorial misconduct, that is, improper
`
`closing argument. We address these arguments sequentially.
`
`III
`
`
`
`
`
`We start with the defendant's claim that the evidence
`
`was insufficient to permit the jury to convict on the wire-fraud
`
`counts and some of the Hobbs Act counts. We subdivide our
`
`analysis, separating the wire-fraud convictions from the Hobbs Act
`
`convictions.
`
`
`
`
`
`As to both classes of claims, our standard of review is
`
`familiar. We review an order denying a motion for judgment of
`
`acquittal de novo. See United States v. Simon, 12 F.4th 1, 23-24
`
`(1st Cir. 2021), cert. denied sub nom. Kapoor v. United States,
`
`142 S. Ct. 2811 (2022), and cert. denied sub nom. Lee v. United
`
`States, 142 S. Ct. 2812 (2022); United States v. George, 841 F.3d
`
`55, 61 (1st Cir. 2016). Where, as here, the defendant challenges
`
`"the sufficiency of the evidence, all of the proof 'must be perused
`
`from the government's perspective.'" United States v. Kilmartin,
`
`944 F.3d 315, 325 (1st Cir. 2019) (quoting United States v. Gomez,
`
`255 F.3d 31, 35 (1st Cir. 2001)). "This lens demands that 'we
`
`scrutinize the evidence in the light most compatible with the
`
`verdict, resolve all credibility disputes in the verdict's favor,
`
`and then reach a judgment about whether a rational jury could find
`
`guilt beyond a reasonable doubt.'" Simon, 12 F.4th at 24 (quoting
`
`- 20 -
`
`

`

`United States v. Olbres, 61 F.3d 967, 970 (1st Cir. 1995)); see
`
`George, 841 F.3d at 61.
`
`
`
`
`
`In conducting this tamisage, "we must honor the jury's
`
`evaluative choice among plausible, albeit competing, inferences."
`
`United States v. Rodríguez-Vélez, 597 F.3d 32, 40 (1st Cir. 2010).
`
`We "need not be convinced that the verdict is correct" but, rather,
`
`"need only be satisfied that the verdict is supported by the
`
`record." Kilmartin, 944 F.3d at 325. Thus, "[t]he verdict must
`
`stand unless the evidence is so scant that a rational factfinder
`
`could not conclude that the government proved all the essential
`
`elements of the charged crime beyond a reasonable doubt."
`
`Rodríguez-Vélez, 597 F.3d at 39 (emphasis in original).
`
`A
`
`
`
`
`
`We turn first to the defendant's claim that there was
`
`insufficient evidence to support the three wire-fraud convictions
`
`that the district court allowed to stand. The elements of wire
`
`fraud are "(1) a scheme or artifice to defraud using false or
`
`fraudulent pretenses; (2) the defendant's knowing and willing
`
`participation in the scheme or artifice with the intent to defraud;
`
`and (3) the use of the interstate wires in furtherance of the
`
`scheme." United States v. Arif, 897 F.3d 1, 9 (1st Cir. 2018)
`
`(quoting United States v. Appolon, 715 F.3d 362, 367 (1st Cir.
`
`2013)). The term "false or fraudulent pretenses" encompasses any
`
`false statements or assertions that were either known to be untrue
`
`- 21 -
`
`

`

`when made or that were made with reckless indifference to their
`
`truth so long as those statements were made with an intent to
`
`defraud. See United States v. Blastos, 258 F.3d 25, 28 (1st Cir.
`
`2001). The term extends to "actual, direct false statements as
`
`well as half-truths and the knowing concealment of facts." Id. at
`
`29. But in all events, "[t]he false or fraudulent
`
`representation[s] [at issue] must be material." Appolon, 715 F.3d
`
`at 367-68.
`
`
`
`
`
`Here, the government offered evidence to show that the
`
`defendant — using two different types of materially false
`
`representations — constructed a scheme to defraud and induced
`
`Eisenberg and Martinez to invest $25,000 apiece in SnoOwl. The
`
`first type of fraudulent misrepresentation related to the
`
`defendant's track record in developing FindIt. Specifically, a
`
`reasonable jury could have found from the proffered evidence that
`
`the defendant falsely represented his success in developing and/or
`
`selling FindIt. The second type of fraudulent misrepresentation
`
`related to the defendant's plans for the use of investor money.
`
`Specifically, a reasonable jury could have found from the proffered
`
`evidence that the defendant falsely represented that investor
`
`money would be used only to develop the SnoOwl app. Relatedly, a
`
`reasonable jury could have found that the defendant concealed the
`
`important fact that investor money for SnoOwl would be used for
`
`his personal benefit.
`
`- 22 -
`
`

`

`
`
`
`
`The defendant attempts to sidestep the force of this
`
`evidence. Although he does not gainsay his interstate use of wire
`
`transmissions in the course of soliciting investments from
`
`Eisenberg and Martinez, he digs in his heels as to the other
`
`elements of the wire-fraud convictions. He argues that he did not
`
`use false or fraudulent pretenses because his representations
`
`were, variously, puffery, true, or never uttered. And even if the
`
`statements were made and were false, the defendant says, they were
`
`not material.
`
`
`
`
`
`This rebuttal is all foam and no beer. To begin, the
`
`defendant's claim that his statements to Eisenberg and Martinez
`
`regarding FindIt's sale to a group in Cambridge were mere puffery
`
`is baseless. While the line between puffery and fraud is sometimes
`
`blurred, the law distinguishes "between misrepresentations that go
`
`to the essence of a bargain and those [misrepresentations] that
`
`are merely collateral." Arif, 897 F.3d at 10. It is clear beyond
`
`hope of contradiction that the defendant's misrepresentations
`
`about FindIt were not merely collateral. After all, particularized
`
`factual representations that can definitely be refuted — as opposed
`
`to statements of mere opinions — can constitute fraud. See United
`
`States v. Martinelli, 454 F.3d 1300, 1317 (11th Cir. 2006); United
`
`States v. Ranney, 298 F.3d 74, 78 (1st Cir. 2002). The defendant's
`
`statements regarding FindIt's sale fal

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