The White Collar Appeal: First Circuit Analyzes the Scope of McCormick and Snyder in Puerto Rico Mayor Bribery Case

• In United States v. Pérez-Otero, the First Circuit affirmed bribery convictions of the former mayor of Guaynabo, Puerto Rico, rejecting challenges based on the Supreme Court decisions in McCormick v. United States and Snyder v. United States.
• The court held that the evidence was sufficient to conclude that the payments were not campaign contributions that could implicate McCormick’s requirement that the government prove an explicit quid pro quo, and that the timing of the payments did not transform them from criminal bribes into permissible gratuities under Section 666.
• Pérez-Otero thus provides useful insight into the limits of the defense-friendly holdings in McCormick and Snyder.

Background

Ángel Pérez-Otero served as the elected mayor of Guaynabo, Puerto Rico.  Oscar Santamaría-Torres owned a construction company called Island Builders.  The trial evidence showed that Santamaría passed cash-stuffed envelopes to Pérez—sometimes in a parking lot and other times (literally) under a table—and Pérez helped steer municipal contracts to Island Builders.  On one occasion, Santamaría gave $5,000 in cash to Pérez, who put the money in his socks and then said that Island Builders could “have one” of three “new contracts” that were coming up.  Santamaría, who testified for the government, stated that he made “illegal payments” to Pérez in order to get contracts and benefits from the Municipality of Guaynabo,” and that the payments fairly could be characterized as “bribes.”  He continued making the payments even after Island Builders had received a road-construction contract, telling the jury he did so to “keep the relation alive” so that Pérez would continue to help him get municipal work.

Pérez faced trial on three counts: conspiracy to accept bribes and kickbacks, federal-program bribery under Section 666(a)(1)(B), and extortion under color of official right.  His defense raised two issues that warrant discussion: (1) the payments were campaign contributions, which meant that the government had to show an explicit promise to perform an official act under McCormick v. United States, 500 U.S. 257 (1991); and (2) because Santamaría made the payments only after Island Builders had received the contracts, they could constitute only gratuities as opposed to bribes under Snyder v. United States, 603 U.S. 1 (2024).  Pérez moved repeatedly for judgments of acquittal, which the district court denied.  And after a six-day trial, the jury convicted him on all counts.

Holdings

McCormick and campaign contributions.  The First Circuit rejected Pérez’s argument that the government failed to satisfy its burden under McCormick.  McCormick held that when a public official receives a political campaign contribution, the government must prove an “explicit promise or undertaking by the official to perform or not to perform an official act” to sustain a conviction for extortion under color of official right.  Pérez argued that Santamaría’s payments were campaign contributions made to pay off his campaign debt, that the government failed to prove an explicit agreement in which Santamaría exchanged the payments for Pérez’s assistance in steering contracts to Island Builders, and thus that the conviction was inconsistent with McCormick.

The First Circuit, however, held that the evidence was sufficient to show that the payments were not campaign contributions at all.  For example, when Santamaría wanted to make campaign contributions, he gave cash to Pérez’s campaign director.  The charged payments, by contrast, came in the form of cash-stuffed envelopes exchanged in clandestine rendezvouses, exceeded the amount of Pérez’s debts, and continued after the debt was fully repaid.  This evidence, the court held, was sufficient to rebut the notion that the payments were campaign contributions that could implicate McCormick.

Snyder and the bribe/gratuity distinction. Pérez also relied on the Supreme Court’s 2024 decision in Snyder, which held that Section 666(a) proscribes bribes to state and local officials but does not make it a crime for those officials to accept gratuities for their past acts.  In Pérez’s view, because the $5,000 payments in May, July, and August 2021 occurred after Island Builders already had won the road construction contract in June 2020, they constituted gratuities outside the reach of Section 666. 

The court rejected this argument too.  As the Supreme Court said in Snyder, “the timing of the agreement is the key, not the timing of the payment,” so the mere fact that Santamaría made the payments to Pérez after he had undertaken the official act did not make the payments gratuities.  Moreover, there was evidence that in August 2021, Pérez told Santamaría that Island Builders could “have one” of the upcoming contracts, as well.  So even if Pérez’s timing argument might have had legs with respect to the June 2020 contract, the record was sufficient for the jury to conclude that the payments related to future official acts.

Key Takeaways

A successful McCormick argument may be limited to traditional campaign contributions.  The facts in Pérez-Otero made his argument under McCormick a long shot:  the distinction between Santamaría’s actual campaign contributions and the cash-stuffed envelopes easily permitted the court to conclude that the latter did not implicate McCormick.  But even without that distinction, it may be difficult to mount a successful defense under McCormick where payments are not disclosed contributions to a campaign or political action committee.  Any other payments may permit the government to dispute that the payments were legitimate campaign contributions.  Any disguised, concealed, or otherwise undisclosed payments may be circumstantial evidence of an underlying corrupt agreement that prosecutors can point to as the explicit quid pro quo.  Pérez-Otero may have been an easy case, but in the current era of super PACs, independent-expenditure campaigns, and other dark-money political spending, future prosecutions no doubt will continue to test the limits of McCormick.

Snyder narrows Section 666’s reach but does not redraw the bribe/gratuity line.  Although Snyder restricted the scope of Section 666, Pérez-Otero shows how prosecutors can work around that limitation.  Here, there was direct evidence in the form of Santamaría’s testimony that the payments related to an agreement that preceded Pérez’s official action.  But even in cases without cooperator testimony, there often will be circumstantial evidence that supports an inference that an after-the-fact payment was not simply a thank-you-very-much for an official act that benefited the payor.  That makes challenging guilty verdicts very difficult, given that judges generally must credit such inferences when reviewing a verdict.  Defense counsel in such cases thus need to provide the jury with a compelling counternarrative that explains why—contrary to many jurors’ natural skepticism—the money or other things of value were innocent gratuities.

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