Page:United States v. Delgado (19-20697) (2021) Opinion.pdf/23

 In Counts Five through Seven, the Government alleged that Delgado used a phone in connection with the charged federal program bribery offenses in violation of 18 U.S.C. § 1952(a)(3). In relevant part, § 1952(a)(3) prohibits “us[ing] … any facility in interstate or foreign commerce, with intent to … promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on, of any unlawful activity.” 18 U.S.C. § 1952(a)(3). “Unlawful activity” includes “bribery … in violation of the laws of the State in which committed or of the United States.” Id. § 1952(b). Phones are considered facilities in interstate commerce. United States v. Marek, 238 F.3d 310, 318 (5th Cir. 2001).

There is no real dispute that the § 1952(a)(3) convictions on Counts Five through Seven rise and fall with their corresponding federal program bribery convictions on Counts Two through Four. During both the December 2016 sting (Count Two/Count Five) and the November 2017 sting (Count Three/Count Six), Perez called Delgado on his phone to set up the meetings at Delgado’s house where Delgado accepted bribes. Delgado argues only that neither Delgado nor Perez used the word “bribe” during either of these phone calls, and therefore the evidence shows that the phone calls were only used to schedule a meeting of an unknown purpose. But for the same reasons that there was sufficient evidence for the jury to conclude that the December 2016 and November 2017 incidents were instances of bribery, there is sufficient evidence for the jury to conclude that Delgado used his phone to facilitate that unlawful activity.

So too with the January 2018 sting (Count Four/Count Seven). When Perez arrives at the restaurant, Delgado texts him to come inside. Perez replies, asking Delgado to come outside because he had something for him that he did not want to give to him in the restaurant. The same evidence that