Page:United States v. Delgado (19-20697) (2021) Opinion.pdf/21

 “To be a conspiracy, an express, explicit agreement is not required; a tacit agreement is enough.” United States v. Shoemaker, 746 F.3d 614, 623 (5th Cir. 2014) (quoting United States v. Westbrook, 119 F.3d 1176, 1189 (5th Cir. 1997)). “A conspiracy may be proven with only circumstantial evidence or ‘inferred from a concert of action.’” Id. (quoting United States v. Virgen-Moreno, 265 F.3d 276, 284–85 (5th Cir. 2001)). And a conspiracy “conviction may be based even on uncorroborated testimony of an accomplice or of someone making a plea bargain with the government, provided that the testimony is not incredible or otherwise insubstantial on its face.” Id. (quoting United States v. Osum, 943 F.2d 1394, 1405 (5th Cir. 1991)).

Beginning with the 2008 pickup truck incident, Delgado argues that the evidence put forth by the Government is insufficient to show an agreement between Delgado and Perez to commit bribery. We agree that the truck incident does not support the conspiracy conviction.

To be sure, there is more than sufficient evidence to conclude that Delgado was up to no good when it comes to the truck incident. But, unlike the “buying wood” incidents, the Government has identified no evidence in the record showing that Delgado and Perez discussed any actions to be taken with respect to any of Perez’s clients (or any other official action that would benefit Perez) when Delgado acquired the truck. The Government asked Perez if he and Delgado discussed any clients when they met at the bar to discuss the truck. Perez responded: “Well, it wasn’t very much on the—on the client, it was more about the truck … .” Perez also testified that whenever he later tried to bring up the truck with Delgado, Delgado would quickly change topics. And while Montano (the client who supplied Perez with the truck) had a pending motion to revoke before Delgado at the time, that motion was not resolved until four years later when the prosecution moved to withdraw it. Notably, before sending the third superseding indictment back to the jury for use during its deliberations, the district court redacted the