Contextual Extortion: United States v. Díaz-Colón and the Scope of Threats under 18 U.S.C. § 875(d) and the Hobbs Act

Contextual Extortion: United States v. Díaz-Colón and the Scope of Threats under 18 U.S.C. § 875(d) and the Hobbs Act

I. Introduction

The First Circuit’s decision in United States v. Díaz-Colón, No. 23‑1692 (1st Cir. Dec. 2, 2025), affirms the conviction of a Puerto Rican media personality for:

  • Attempted extortion under the Hobbs Act, 18 U.S.C. § 1951;
  • Transmitting a threatening communication with intent to extort under 18 U.S.C. § 875(d); and
  • Destruction of records in a federal investigation under 18 U.S.C. § 1519.

The case arises out of the political crisis surrounding then‑Governor Ricardo Rosselló and the infamous Telegram chat leaks in 2019. The government’s theory was that Sixto Jorge Díaz‑Colón (“Díaz‑Colón”), a producer and commentator, tried to monetize access to damaging chat messages by threatening a senior official, Anthony Maceira, with reputational and political ruin unless he secured a $300,000 payment and other benefits.

The opinion is doctrinally significant in several respects:

  • It clarifies that an extortionate “threat” under § 875(d) need not itself contain an explicit demand for money or value; intent to extort can be inferred from surrounding context and later conduct.
  • It reinforces that Hobbs Act extortion and § 875(d) extortion incorporate a “wrongfulness” component, but finds a defective instruction on that element harmless where a Hobbs Act conviction is simultaneously returned.
  • It applies Sekhar v. United States to a mixed-benefit scheme (cash plus government contract renewals) and treats Sekhar concerns about “property” as, at most, harmless in the face of a clear cash-demand.
  • It affirms that deleting cloud‑based messages held by both sender and recipient can constitute “destruction” of records under § 1519, even when done from only one side of a messaging app.
  • It underscores the high bar for claims of prosecutorial misconduct under Brady and Napue, particularly in the context of partially inaudible recordings and inconsistent recollections.
  • It takes a restrictive view of hearsay exceptions in relation to controlled calls and rebuffs efforts to use agents as conduits for out‑of‑court statements by non‑testifying declarants.

What follows is an in‑depth commentary organized around the case’s factual background, the structure of the First Circuit’s reasoning, the precedents it deploys, and the broader implications for extortion, obstruction, and trial practice.

II. Factual and Procedural Background

A. Political Context and the Telegram Chats

Díaz‑Colón was a producer and host of the political program “Nación Z,” which gave him frequent access to senior officials in then‑Governor Rosselló’s administration, including Anthony Maceira, the Secretary of Public Affairs and former head of the Ports Authority. High‑ranking officials used the messaging platform Telegram (including its “secret chat” feature) to communicate; those chats later became the epicenter of a massive scandal.

On June 20, 2019, amid public reports of alleged corruption and controversy surrounding Treasury Secretary Raúl Maldonado, Díaz‑Colón sent a “secret” Telegram message to Maceira. In it, he warned that Maldonado’s son, Raúl “Raulie” Maldonado‑Nieves, had “STRONG EVIDENCE TO FUCK THIS ADMINISTRATION STARTING WITH RICARDO ROSSELLO” and that “RAUL’S SON IS GOING TO DESTROY YOU ALL.” He tied this to perceived attacks by “Fortaleza” (the Governor’s office) on Raúl Maldonado and suggested that the administration would politically implode if it did not “STOP THIS.”

Alarmed and believing the message was a threat, not a mere political prediction, Maceira reported it to the Governor and arranged a meeting with Díaz‑Colón at the restaurant Musa the next day. Unbeknownst to Díaz‑Colón, he surreptitiously tried to record the conversation. That recording was later at the center of the Brady/Napue claims.

B. The Musa and Il Postino Meetings

At Musa (June 21), according to trial testimony:

  • Díaz‑Colón apologized for the June 20 message but framed it in “gangster style” terms: he was warning of catastrophic damage but also signaling what could be done to avoid it.
  • He reported that Maldonado‑Nieves had a binder of printed Telegram chats involving the Governor and others containing disparaging, profane, and potentially scandalous content.
  • He suggested that these materials could “destroy” the administration and specifically harm Maceira’s professional and personal reputation.

A few weeks later, after the initial leak of some chats and then the public release of 889 pages of chats on July 13 that caused “total chaos,” the stakes rose dramatically. On July 16, under FBI direction and wearing recording equipment, Maceira met Díaz‑Colón again, this time at Il Postino, a restaurant owned by Díaz‑Colón.

At Il Postino:

  • Díaz‑Colón reiterated that he had warned the administration and that the crisis could have been averted.
  • He told Maceira that additional chats would be released unless three demands were met:
    1. A $300,000 payment, ostensibly for Maldonado‑Nieves, to prevent further leaks.
    2. Renewal of two government consulting contracts (Collective Impact and Social Consulting) from which Díaz‑Colón personally received retainers.
    3. Payments ranging from $6,000 to $50,000 to media personalities “he controlled,” in exchange for changing the narrative on air and ceasing calls for the Governor’s resignation.
  • He stated that the $300,000 could be paid in cash or by check, possibly funneled through a corporate intermediary “where [Raulie] does not appear,” and repeatedly suggested he could “guarantee” that the chats would not be released if these demands were met.
  • At the same time, he claimed he had told Raulie that demanding $300,000 was “extortion” and that he “was not going to do it”—a disclaimer the First Circuit treats as something the jury could reasonably disbelieve, given his conduct.

A key portion of the Il Postino transcript shows the quid pro quo in stark relief: when pressed whether payment of $300,000 would “guarantee that the chats will not come out,” Díaz‑Colón told Maceira that, if he “accept[ed] to be a part of this fucking crap,” he “can guarantee that he will stop being a pain in the ass” and later reiterated, “With that, I can guarantee that he will stop it.”

C. FBI Involvement and the Deleted Telegram Messages

On July 14, the day after the 889‑page leak, Díaz‑Colón messaged Maceira about their “pending” conversation. That same day, the FBI recruited Maceira as a confidential source. After the Il Postino meeting, the FBI proposed a controlled $20,000 payment, which Maceira declined, saying it was too low and likely ineffective. Meanwhile, the online and street protests escalated.

On July 19, while with the FBI, Maceira messaged Díaz‑Colón: “I haven't forgotten. I am trying to do my homework. Next week we will meet to discuss everything, including how we are going to do it now.” At trial he explained that “homework” referred to figuring out how to meet the three conditions laid out by Díaz‑Colón.

On July 26, FBI agents went to interview Díaz‑Colón at his home with a search warrant for his phone. They first obtained his consent to view messages and had him place a recorded call to Maldonado‑Nieves. Later that night, Telegram messages between Díaz‑Colón and Maceira disappeared from Maceira’s phone. A screenshot showed a blank chat history and indicated that Díaz‑Colón had been “last seen 4 hours ago” on Telegram—during the FBI’s visit. Agent López testified that Díaz‑Colón had been “manipulat[ing]” his phone during the interview. The FBI later recovered some deleted messages from the device.

D. Indictment, Trial, and Conviction

In January 2021, a federal grand jury indicted Díaz‑Colón on three counts:

  1. Count One: Attempted extortion under the Hobbs Act, 18 U.S.C. § 1951, and aiding and abetting, 18 U.S.C. § 2.
  2. Count Two: Transmitting a threatening communication with intent to extort under 18 U.S.C. § 875(d), and aiding and abetting under § 2.
  3. Count Three: Destruction of records in a federal investigation under 18 U.S.C. § 1519.

After a two‑week jury trial in early 2023, he was convicted on all counts and sentenced to 51 months’ imprisonment and three years of supervised release. He moved for acquittal and, alternatively, for a new trial, arguing insufficiency of the evidence, Brady and Napue violations, prejudicial variance, Sixth Amendment violations regarding cross‑examination, and instructional error. The district court (Judge Besosa) denied both motions in a thorough opinion. The First Circuit now affirms.

III. Summary of the First Circuit’s Opinion

The panel (Chief Judge Barron, Judges Lipez and Thompson; opinion by Judge Lipez) holds:

  • Sufficiency of the evidence: Viewed in the light most favorable to the verdicts, the evidence was more than sufficient to support:
    • An attempt to extort under the Hobbs Act based on fear of economic and reputational harm;
    • A § 875(d) violation where the June 20 Telegram message, though lacking an explicit demand, was sent with extortionate intent evidenced by subsequent conduct; and
    • A § 1519 conviction for deleting Telegram messages with intent to impede the FBI’s investigation.
  • No prejudicial variance: There was no material divergence between the indictment and the proof. The fact that evidence supported both extortion on behalf of Maldonado‑Nieves and for Díaz‑Colón’s own benefit does not create a variance.
  • No prosecutorial misconduct: The government did not violate Brady or Napue. Providing the raw Musa recording sufficed; prosecutors were not obliged to create a transcript or enhance the audio. Inconsistencies in testimony did not amount to knowing use of perjury.
  • No Sixth Amendment violation: Limits on cross‑examination of FBI Agent López and of Maceira were within the district court’s discretion and did not deny a reasonable opportunity to impeach.
  • Jury instructions adequate: The district court properly instructed the jury on attempt and aiding and abetting; any omission of the term “wrongful” in describing threats under § 875(d) was harmless beyond a reasonable doubt given the Hobbs Act conviction and the instructions as a whole.

The opinion is notable less as a break with First Circuit precedent than as a careful application of existing law to contemporary extortion scenarios involving encrypted messaging, political influence, and media leverage.

IV. Detailed Analysis

A. Sufficiency of the Evidence and Standards of Review

The court opens by emphasizing the high bar for sufficiency challenges. Citing United States v. Facteau, 89 F.4th 1 (1st Cir. 2023), United States v. Guerrero‑Narváez, 29 F.4th 1 (1st Cir. 2022), and United States v. Soler‑Montalvo, 44 F.4th 1 (1st Cir. 2022), the panel restates the familiar principles:

  • Evidence is viewed “in the light most favorable to the verdict” and in its totality, not piecemeal.
  • The question is whether a “rational factfinder” could find each element proven beyond a reasonable doubt, not whether the reviewing court might have reached a different conclusion.
  • The verdict must be upheld unless it is literally “irrational.”
  • The jury’s credibility determinations are sacrosanct; appellate courts do not re‑weigh testimony (Serunjogi, Hernández).

This framing pervades the court’s treatment of all three counts and also influences how it handles the claimed prosecutorial misconduct and evidentiary issues: where facts are disputed or credibility is contested, the panel consistently defers to the jury’s implied resolutions.

B. Count One – Attempted Extortion under the Hobbs Act

1. Elements and Fear of Economic Harm

The Hobbs Act, 18 U.S.C. § 1951(b)(2), defines extortion as:

“the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.”

Because the case involves attempt, the government had to show:

  1. Intent to commit extortion (i.e., to obtain property through wrongful use of fear of economic harm); and
  2. A “substantial step” toward commission of that offense.

The First Circuit relies on prior extortion cases such as:

  • United States v. Didonna, 866 F.3d 40 (1st Cir. 2017) – confirming that “fear” under the Hobbs Act includes fear of economic loss, including loss of business opportunities.
  • United States v. Bucci, 839 F.2d 825 (1st Cir. 1998) – articulating that the victim’s fear must be both actual and reasonable, and that implied threats are sufficient.
  • United States v. Cruz‑Arroyo, 461 F.3d 69 (1st Cir. 2006) – recognizing economic fear as a qualifying fear.
  • United States v. Rivera Rangel, 396 F.3d 476 (1st Cir. 2005) – endorsing implied rather than explicit threats.

Applying those precedents, the court finds ample evidence of both fear and wrongfulness:

  • Fear:
    • From the first message, which said “RAUL’S SON IS GOING TO DESTROY YOU ALL,” Maceira testified he was “scared” and “concerned” about his job, career prospects, and reputation.
    • He immediately informed the Governor and Chief of Staff, and ultimately flew to Florida to seek advice from a former federal law enforcement officer—behavior consistent with serious fear.
    • The subsequent Musa and Il Postino conversations, in which Díaz‑Colón detailed the nature of the threatening material and how it could harm the administration and specifically target Maceira, reinforced the reasonableness of that fear.
  • Wrongfulness and intent:
    • Díaz‑Colón demanded $300,000, contract renewals generating retainers for himself, and payments to friendly media figures to “change the narrative.” He had no claim of right to any of those items.
    • His own characterization of the request as “extortion” (even while saying he objected to it) underscored that he understood its wrongful nature.
    • The repeated statements that he could “guarantee” that the chats would not come out if the demands were met, and that he could have media personalities stop calling for the Governor’s resignation, permitted the jury to see this as a classic quid pro quo extortion attempt.

The panel correctly invokes United States v. Burhoe, 871 F.3d 1 (1st Cir. 2017), and United States v. Sturm, 870 F.2d 769 (1st Cir. 1989), for the proposition that the “wrongful” use of economic threats generally turns on whether the extortionist has a legitimate claim of right to the property sought. Here, Díaz‑Colón did not even argue such a claim on appeal. That silence effectively concedes wrongfulness.

2. Attempt and the “Substantial Step” Requirement

The attempt doctrine, as synthesized from United States v. Berk, 652 F.3d 132 (1st Cir. 2011), United States v. Pérez‑Rodríguez, 13 F.4th 1 (1st Cir. 2021), and United States v. Rivera‑Sola, 713 F.2d 866 (1st Cir. 1983), requires conduct that:

  • Goes beyond “mere preparation,” but
  • Falls short of completing the underlying substantive offense; and
  • Would, viewed in context, lead a reasonable observer to conclude it was undertaken in accordance with a criminal design.

The court finds numerous substantial steps:

  • Sending the June 20 threat to trigger a meeting;
  • Meeting at Musa and explicitly framing the looming release of chats as avoidable harm, while explaining his “binder” information source;
  • Following up post‑leak to remind of their “pending” conversations;
  • Meeting at Il Postino, where he:
    • Spelled out the exact monetary demand ($300,000);
    • Offered specific payment mechanisms (cash, check, or funneling through a trusted corporation);
    • Named the companies whose contract renewals he wanted and texted their names to Maceira;
    • Price‑tagged media personalities and explained how their messaging would shift after payment.

Although Díaz‑Colón argued that “mere conversation” cannot be a substantial step, the court rightly notes that in a threats‑based crime, communication is itself the vehicle of extortion. When those conversations include detailed terms of the illicit deal, proposed payment channels, and assurances of protection, they cross well beyond “mere preparation.”

3. Aiding and Abetting vs. Principal Liability

The indictment and jury instructions allowed conviction on Count One under either:

  • Principal liability: that Díaz‑Colón himself attempted to extort; or
  • Aiding and abetting: that he intentionally facilitated an attempted extortion by Maldonado‑Nieves.

Relying on United States v. Vázquez‑Castro, 640 F.3d 19 (1st Cir. 2011), and Rojas‑Tapia v. United States, 130 F.4th 241 (1st Cir. 2025), the court reiterates two key points:

  • Aiding and abetting, under 18 U.S.C. § 2, is not a separate offense but a theory of liability for every federal offense; it can be charged explicitly but is implicit even if not alleged.
  • There is no requirement that the jury unanimously identify whether the defendant was a principal or an aider and abettor, so long as all jurors agree the defendant engaged in conduct that satisfies one or the other theory for the same crime (citing Schad v. Arizona, 501 U.S. 624 (1991) (plurality), and United States v. Ackell, 907 F.3d 67 (1st Cir. 2018)).

The defense tried to leverage a recorded July 26 phone call (not admitted at trial) in which Maldonado‑Nieves allegedly said he sought revenge, not money, to argue that he could not be the extortionist and therefore Díaz‑Colón could not have aided him. The panel resolves this on both evidentiary and sufficiency grounds:

  • The call was not evidence at trial, so it cannot be considered in reviewing sufficiency.
  • Even if considered hypothetically, it would support the alternative theory that Díaz‑Colón had appropriated Raulie’s anger for his own financial gain.

Doctrinally, the opinion reinforces that courts will treat principal and aider‑and‑abettor theories as interchangeable avenues to judgment and will not disturb verdicts simply because the factfinder might not have agreed on the precise role, so long as all elements of the offense are met under one theory or the other.

4. The Sekhar Issue: Is a Government Contract “Property”?

In Sekhar v. United States, 570 U.S. 729 (2013), the Supreme Court held that extortion under the Hobbs Act requires “transferable” property—something the defendant can “obtain,” not merely influence. In that case, a general counsel’s internal investment “recommendation” was not property in the required sense.

Díaz‑Colón argued that the requested contract renewals were not transferable property under Sekhar, and thus could not ground a Hobbs Act conviction. The First Circuit:

  • Distinguishes Sekhar by focusing on the money promised by the contracts—i.e., the money payable to the consulting firms—as the relevant property, not the “decision” to renew.
  • Invokes United States v. Brissette, 919 F.3d 670 (1st Cir. 2019), which held that directing a transfer of property to a third party (rather than oneself) is still “obtaining” property under § 1951(b)(2).
  • In any event, finds that any error on this front would be harmless because:
    • The primary object of the extortion was the $300,000 payment, clearly “transferable” property; and
    • The jury was inundated with evidence of that component, making it “virtually impossible” that their verdict rested solely on the contracts.

The practical takeaway is that while Sekhar continues to cabin extortion based on non‑property regulatory or advisory acts, efforts to secure lucrative contracts or monetary flows—whether for oneself or a third party—remain within the Hobbs Act’s reach.

C. Count Two – Transmission of a Threat with Intent to Extort under 18 U.S.C. § 875(d)

1. The Key Doctrinal Move: Demand Need Not Be in the Same Message

Section 875(d) criminalizes:

“any communication in interstate or foreign commerce containing any threat to injure the property or reputation of the addressee or of another … with intent to extort from any person … any money or other thing of value.”

The June 20 Telegram message contained explicit threats to reputation and political standing (“RAUL’S SON IS GOING TO DESTROY YOU ALL”), but no explicit demand for money or other value. The defense argued that without an explicit quid pro quo in the message, there can be no § 875(d) violation and, alternatively, that the message was protected political speech.

The First Circuit squarely rejects the notion that the demand must appear in the same communication as the threat. It reasons:

  • The statute requires that the communication contain a threat and that it be transmitted with the “intent to extort.” It does not say that the communication must also set out the terms of the extortion.
  • Intent can be inferred from “situational context,” including subsequent acts and statements—a proposition bolstered by Evans v. United States, 504 U.S. 255 (1992) (Kennedy, J., concurring), and McCormick v. United States, 500 U.S. 257 (1991), which recognize that juries routinely infer intent from words and conduct.
  • The Musa and Il Postino meetings, arranged specifically to “clarify” the June 20 message, showed that the message was the opening salvo in a course of conduct whose purpose was to extract a $300,000 payment and other benefits.

This is a significant clarification: in the First Circuit, a § 875(d) prosecution may rest on a threat‑only message, so long as there is adequate proof that the sender’s contemporaneous intent was to extort “money or other thing of value,” even if that intent is evidenced principally by later behavior.

2. Wrongfulness and the First Amendment

Following the Second Circuit’s influential decision in United States v. Jackson, 180 F.3d 55 (2d Cir. 1999), the government conceded—and the First Circuit accepted for purposes of this appeal—that § 875(d)’s “intent to extort” clause incorporates a “wrongfulness” requirement similar to the Hobbs Act’s. That is:

  • Using economic or reputational threats to collect a debt that is legitimately owed may not be “wrongful”; but
  • Seeking money or property to which one has no colorable claim, or pursuing an extortionate scheme bearing no nexus to a plausible claim of right, is inherently wrongful.

In this case:

  • Díaz‑Colón had no legitimate entitlement to $300,000, to renewed contracts, or to payments to third‑party media figures.
  • He never argued otherwise, effectively conceding the wrongfulness element.

On the First Amendment issue:

  • The court characterizes the communications as “speech integral to criminal conduct,” a recognized category of unprotected expression per United States v. Stevens, 559 U.S. 460 (2010), and United States v. Sayer, 748 F.3d 425 (1st Cir. 2014).
  • It notes that extortionate threats are “true threats” and therefore outside constitutional protection, citing cases like United States v. Coss, 677 F.3d 278 (6th Cir. 2012), and United States v. Hutson, 843 F.2d 1232 (9th Cir. 1988).
  • It rejects the defense’s effort to reframe the June 20 message as “legitimate political speech” on the simple ground that the jury could—and did—find it was sent as part of an extortionate scheme.

The doctrinal message to practitioners is clear: where a communication is part of a pattern of conduct aimed at securing unentitled value through fear of reputational harm, First Amendment defenses will have little traction.

D. Count Three – Destruction of Records in a Federal Investigation under 18 U.S.C. § 1519

Section 1519 punishes anyone who:

“knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States.”

The theory here was that:

  • Telegram messages between Díaz‑Colón and Maceira were “records;”
  • They disappeared from the chat while the FBI was interviewing Díaz‑Colón and had his phone; and
  • He deleted them with intent to impede the ongoing federal investigation into his extortionate conduct.

The evidence included:

  • A screenshot of the Telegram chat from Maceira’s phone showing blank history and noting Díaz‑Colón’s recent online activity; and
  • Agent López’s testimony that Díaz‑Colón was manipulating his phone during the interview and had admitted he had been trying to avoid contact that morning due to financial issues (tax and mortgage arrears), showing consciousness of vulnerability.

The First Circuit:

  • Emphasizes the timing nexus: the deletion occurred while agents were present and while they were exploring the relationship between Díaz‑Colón, Maceira, and Maldonado‑Nieves.
  • Notes that only two people had the ability to delete the chats; since Maceira testified that he did not do so, the jury could reasonably infer that Díaz‑Colón did.
  • Rejects the argument that his cooperative provision of password and phone access proves innocent intent; that is just another factual inference for the jury.

From a legal‑development standpoint, the case confirms that:

  • Ephemeral or cloud‑based digital communications are “records” for § 1519 purposes; and
  • Deleting those communications from a messaging app—even if copies remain elsewhere or can later be forensically recovered—can qualify as “destruction” with obstructive intent.

E. Alleged Variance between Indictment and Proof

A “variance” occurs when the proof at trial materially differs from the facts alleged in the indictment, risking prejudice to the defendant’s notice rights or protection against double jeopardy. The First Circuit, citing United States v. Rodríguez‑Milián, 820 F.3d 26 (1st Cir. 2016), and United States v. Katana, 93 F.4th 521 (1st Cir. 2024), reiterates that even where a variance exists, reversal requires showing that it affected “substantial rights.”

Díaz‑Colón’s variance arguments fell into two categories:

  1. That the indictment alleged he was obtaining $300,000 for Maldonado‑Nieves, whereas the proof at trial suggested he might have been trying to benefit himself; and
  2. That evidence of his debts and consulting retainers amounted to proof of uncharged “kickbacks” and financial crimes, creating a risk of conviction for unindicted conduct.

The First Circuit dismisses these contentions:

  • No divergence in beneficiary theory: The indictment stated that Maldonado‑Nieves demanded approximately $300,000 and that “DIAZ COLON would receive the payment on behalf of” him through a corporation. That language is broad enough to encompass both:
    • An aiding‑and‑abetting theory (collecting on behalf of Raulie), and
    • A principal‑liability theory (using Raulie’s anger as pretext to keep some or all funds).
    The government argued both, and the law permits that flexibility.
  • Debt and “kickback” evidence was relevant, not variance:
    • Evidence that Díaz‑Colón received retainers from the consulting contracts and had serious financial pressures (mortgage and car lease arrears) was relevant to show motive and to contradict his portrayal of himself as a neutral messenger simply warning a friend.
    • The government was not required to charge every plausible offense that might be inferred from his conduct (Bordenkircher v. Hayes, 434 U.S. 357 (1978)).
    • The jury was deciding whether he attempted to extort, not whether separate tax or corruption charges would be appropriate.

Because the indictment fairly apprised him of the core conduct (the $300,000 demand and contract‑related asks) and the defense was able to respond, there was no prejudicial variance.

F. Alleged Prosecutorial Misconduct: Brady and Napue

1. Brady Claim Regarding the Musa Recording

Under Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972), the prosecution must disclose material exculpatory or impeachment evidence in its possession. The heart of the Brady dispute was the Musa recording:

  • The government turned over the raw audio in June 2021.
  • Shortly before trial, defense counsel asked for a transcript and translation. The government replied that it had none “due to the inaudibility of the recording.”
  • Defense then retained its own expert, enhanced the recording, and prepared a partial transcript.
  • Post‑trial, Díaz‑Colón argued that the lack of a government transcript, and characterization of the recording as “inaudible,” constituted misconduct and a Brady violation, because the transcript (he claimed) showed there was no mention of a $300,000 demand at Musa.

The First Circuit’s analysis is straightforward and important for practice:

  • Brady covers material “unknown to the defense” but known to the prosecution (United States v. Bender, 304 F.3d 161 (1st Cir. 2002)). It does not require the government to create evidence (like a transcript) that does not exist.
  • Here, the defense had the underlying audio well in advance and could (and did) generate its own transcript and enhancement.
  • Characterizing the tape as “inaudible” in correspondence was not inconsistent with an agent’s trial testimony that he could hear portions of the conversation. The defense’s own transcript logs multiple “unintelligible” segments and a three‑minute gap, confirming that large portions were indeed inaudible.
  • Even assuming the government had no interest in exploiting the tape, its disclosure satisfied Brady; there is no duty to transcribe or enhance disclosed audio.

2. Napue Claim: Alleged Subornation of Perjury by Maceira

Under Napue v. Illinois, 360 U.S. 264 (1959), and its progeny (culminating in Glossip v. Oklahoma, 604 U.S. 226 (2025)), a due process violation occurs if:

  1. The prosecution knowingly elicits false testimony or fails to correct it; and
  2. There is a reasonable likelihood the falsehood affected the jury’s verdict.

Díaz‑Colón argued that:

  • Because the enhanced Musa recording (as he interpreted it) did not contain any reference to a $300,000 demand, yet
  • Maceira testified that at Musa, Díaz‑Colón told him Raulie wanted $300,000,
  • The government must have knowingly sponsored perjured testimony and compounded it by repeating this narrative in opening and closing statements.

The First Circuit finds no Napue violation:

  • The Musa recording is incomplete and partially unintelligible; the absence of audible reference to the $300,000 doesn’t prove the discussion never occurred.
  • The transcript itself shows that the recording stops before any obvious “goodbye” or closure, leaving open the possibility that key statements occurred off‑tape.
  • Discrepancies between:
    • The grand jury (where, as defense highlighted, Maceira did not say a demand was made at Musa) and
    • Trial testimony,
      • are the staple of witness recollection and impeachment, not per se proof of perjury.
    • The government had stronger, independent evidence of the same $300,000 demand from the Il Postino recording, where it is repeatedly referenced. Even if there was some confusion by the witness about which meeting it first surfaced in, that confusion is not tantamount to knowingly false testimony.
    • Most importantly, any misstatement about the exact moment when the $300,000 was first mentioned had little capacity to affect the verdict given the clear Il Postino recording and other corroborating evidence.

    In short, this is an instructive reaffirmation that Napue is not a tool for relitigating credibility disputes. It is reserved for genuine, knowing use of falsehoods that materially shape the jury’s view.

    G. Sixth Amendment and Hearsay: The July 26 Controlled Call

    1. The Excluded Evidence

    At the FBI’s request, during the July 26 interview, Díaz‑Colón placed a recorded call to Maldonado‑Nieves. In that call (as shown by a transcript introduced only at a pretrial stage), Díaz‑Colón allegedly told Raulie that Maceira was willing to pay $300,000, and Raulie replied that he was not interested in the money and only wanted the attacks on his father to stop.

    At trial, the defense sought to:

    • Introduce the recording itself during cross‑examination of Agent López; or
    • Have López testify to the contents of the call.

    The district court ruled that:

    • The conversation was hearsay as to what Maldonado‑Nieves said; and
    • Could only come in through a participant (Díaz‑Colón or Maldonado‑Nieves) if offered for its truth.

    The defense argued the call was:

    • Non‑hearsay because not offered for truth; and/or
    • Admissible under various exceptions, including:
      • Present sense impression (Rule 803(1));
      • The rule of completeness (Rule 106); and
      • As an opposing party statement attributable to the government under Rule 801(d)(2).

    2. The First Circuit’s Resolution

    The panel upholds the exclusion, holding:

    • Hearsay character: The defense plainly sought to have the jury accept as true that:
      • Raulie did not want the money and thus
      • Could not have been the extortionist Diaz‑Colón was allegedly aiding and abetting.
      That is classic hearsay.
    • No applicable exception:
      • Rule 803(1) (present sense impression) does not fit; Agent López was not narrating an event but observing a conversation for which he had no personal sensory counterpart.
      • Rule 106 (completeness) requires that part of the same statement or recording has already been introduced; here, no part of the call was in evidence.
      • Rule 801(d)(2) concerning admissions of a party opponent does not transform Raulie’s statements into government admissions; he was not an agent or authorized spokesperson of the United States.
    • Confrontation Clause: The Sixth Amendment guarantees a reasonable opportunity to cross‑examine, not a right to introduce otherwise inadmissible hearsay via cross. The defense could have called Maldonado‑Nieves (or Díaz‑Colón himself) to testify to the conversation.
    • Limited practical value: Even had the call been admitted, it would not undermine the theory that by that time (or from the beginning) Díaz‑Colón was pursuing the money for himself.
    • Strategic advantage already exploited: Defense counsel argued in closing that the government’s failure to present the recording—despite its existence—should weigh against the prosecution. The jury could infer that the tape was unfavorable to the government.

    The opinion thus confirms the limited role of investigative agents as conduits for out‑of‑court statements and the deference appellate courts give to trial judges’ evidentiary gatekeeping in this area.

    H. Limits on Cross‑Examination of Maceira

    The appellant also challenged limits on cross‑examining Maceira regarding:

    • His public statements about his inclusion in the chats;
    • Whether he resigned or was fired;
    • The legality of secretly recording the Musa meeting; and
    • His concerns about being arrested after other officials were charged.

    The First Circuit treats these complaints as waived or inadequately developed, invoking the familiar Zannino standard that perfunctory assertions are insufficient. Nonetheless, it briefly notes that:

    • These topics are collateral to the core issues of extortion and obstruction.
    • The defense had broad latitude to impeach Maceira on bias, motive, and inconsistencies directly related to the extortion scheme.
    • Given the totality of cross‑examination, any additional limits were well within the trial judge’s discretion and did not deny a “reasonable opportunity” to test credibility under United States v. Casey, 825 F.3d 1 (1st Cir. 2016), and United States v. Maldonado‑Peña, 4 F.4th 1 (1st Cir. 2021).

    I. Jury Instructions

    1. Attempt: “Substantial Step” and the Refusal to Add “Mere Conversation” Language

    For Count One, the district court gave the First Circuit pattern instruction on attempt: a substantial step is:

    “an act in furtherance of the criminal scheme … something more than mere preparation, but less than the last act necessary before the substantive crime is completed.”

    The defense requested an additional sentence: “Mere conversations or contemplation to commit the offense, without more, cannot form the basis for a conviction for attempt.” The court refused, and the First Circuit approves that refusal:

    • The extra language was not “integral” to an important part of the case and risked confusing the jury by suggesting that even detailed extortionate conversations could never be a substantial step.
    • The “mere preparation” language already adequately conveyed that thought; contemplating crime alone is not enough.
    • In the context of threat‑based offenses, the “conversation” is often the conduct itself; categorically minimizing its significance would be legally inaccurate (Marsh and Pérez‑Rodríguez illustrate that communications can be substantial steps).

    2. Aiding and Abetting and Alleged Duplicity

    The defense also argued that Counts One and Two were “duplicitous” because they combined principal and aiding‑and‑abetting theories in a single count, and that a specific unanimity instruction was required. The First Circuit rejects this as a misunderstanding of duplicity doctrine:

    • “Duplicitous” counts improperly join two distinct offenses; principal and aiding‑and‑abetting liability for the same offense are not distinct crimes but alternative theories.
    • The court’s instruction that “It makes no difference which label you attach. The person who aids and abets to commit a crime is as guilty … as if he had personally committed [it]” correctly stated the law.
    • A general unanimity instruction (all 12 must agree to guilt on each count) suffices; there is no requirement that they agree on the precise theory of liability.

    3. “Wrongful” Threat and the § 875(d) Instruction

    As discussed above, the defense wanted the court to explicitly describe the threats as “wrongful” and distinguish “legitimate” from “illegitimate” threats. The court’s instructions:

    • For Count One, defined extortion as obtaining property by “wrongful use of actual or threatened fear” and further required jurors to find that “Defendant must know that he was not legally entitled to the property.”
    • For Count Two, required proof that the defendant:
      • Knowingly sent a communication containing a “true threat” to damage reputation; and
      • Did so “with the intent to extort money or something else of value.”
      But the Count Two instruction did not explicitly restate the “wrongfulness” clause or claim‑of‑right concept.

    The First Circuit:

    • Holds that as to Count One, the instructions were fully adequate and correctly captured the wrongful‑use and claim‑of‑right standard from Sturm and Burhoe.
    • As to Count Two, accepts that the omission of an explicit “wrongfulness” explanation was, technically, an error under the Jackson approach. But:
      • It was harmless beyond a reasonable doubt under Neder v. United States, 527 U.S. 1 (1999), and Chapman v. California, 386 U.S. 18 (1967), because:
        • The jury had just been instructed on the same “extortion” concept—including the lack‑of‑entitlement element—for Count One;
        • The Count Two instruction required finding “intent to extort,” which jurors would naturally interpret in light of that prior definition;
        • The evidence of wrongfulness was overwhelming and uncontested; and
        • The jury simultaneously found that Díaz‑Colón wrongfully used fear to obtain property under the Hobbs Act, making it implausible they would see the same conduct as anything but wrongful under § 875(d).

    Thus, while the opinion does not formally adopt an explicit rule that § 875(d) always requires a “wrongfulness” instruction, it strongly suggests that, when requested, trial courts should either:

    • Import the Hobbs Act / Jackson definition of “extort” into the § 875(d) instruction; or
    • At least tie “intent to extort” to the defendant’s knowledge that he has no claim of right to the property demanded.

    4. Clarification that Counts Two and Three Did Not Charge Attempt

    Finally, Díaz‑Colón argued that language in the “Facts” section of the indictment, with a sub‑heading “Diaz‑Colon attempts to extort,” might mislead jurors into thinking that Counts Two and Three also charged attempt crimes. He sought an instruction emphasizing that only Count One alleged attempt.

    The First Circuit notes:

    • The sub‑heading fell outside the paragraphs numerically incorporated into Counts Two and Three.
    • Each Count itself clearly labeled the offense:
      • Count Two: “Interstate Extortion” under § 875(d);
      • Count Three: “Destruction, Alteration, or Falsification of Records in a Federal Investigation” under § 1519.
    • The district court’s element instructions for Counts Two and Three described completed offenses only.

    Given this clarity, the court finds no risk that the jury misapplied attempt concepts to the other counts, and no error in declining to offer a special clarification instruction.

    V. Simplifying the Key Legal Concepts

    1. Hobbs Act Extortion

    • What is it? A federal crime involving using threats (including threats to economic interests) or the use of official power (“color of official right”) to obtain property from someone.
    • Key elements:
      • Obtaining (or attempting to obtain) property from another;
      • With their “consent” (meaning they hand it over) but only because they are scared;
      • The fear can be fear of violence or economic harm (e.g., getting fired, losing business, reputational ruin); and
      • The actor has no legitimate right to that property.

    2. Attempt

    • It is not a crime just to think about committing a crime. At some point, the person must “cross the line” from planning to action.
    • A “substantial step” is action that strongly shows the person is going to commit the crime, not just setting up the conditions.
    • In communication‑based crimes (like extortion), sending threats and negotiating the terms can themselves be the substantial step.

    3. 18 U.S.C. § 875(d) – Threats in Interstate Commerce

    • Targets threatening communications (email, messaging apps, texts, etc.) that travel across state or national boundaries.
    • The threat must be to hurt someone’s reputation or property unless they pay or do something of value.
    • The present decision clarifies that:
      • The threat message and the explicit demand need not be in the same communication.
      • Intent to extort can be shown by what the sender does before and after the message.

    4. 18 U.S.C. § 1519 – Destruction of Records

    • Prohibits destroying or altering any record or document to interfere with a federal investigation.
    • “Record” includes digital messages; deleting them from an application so that they no longer appear in normal use can count.
    • The defendant must know that a federal investigation is likely or underway and intend to hinder it.

    5. Brady and Napue

    • Brady: The prosecution must share evidence that could help the defense (exculpatory) or damage the credibility of government witnesses (impeachment), if it is “material” to guilt or punishment.
    • But Brady does not require the government to create documents (like transcripts) or to perform forensic enhancements; it must disclose what it has.
    • Napue: The government cannot knowingly use false testimony. Mere inconsistency or fuzzy memory does not equal perjury; there must be conscious falsity, known to prosecutors.

    6. Confrontation and Hearsay

    • The Sixth Amendment allows the defense to cross‑examine live witnesses but does not override normal rules of evidence.
    • “Hearsay” is second‑hand testimony about what someone else said, offered to prove the truth of that statement. It is generally inadmissible unless an exception applies.
    • Investigative agents cannot be used as back‑door channels for introducing hearsay from non‑testifying individuals.

    VI. Broader Impact and Significance

    A. Extortion in the Age of Encrypted Messaging and Media Influence

    The facts of Díaz‑Colón represent a contemporary extortion pattern:

    • Use of encrypted or “secret” messaging to relay threats;
    • Leverage of politically explosive digital content (private chats) to create fear of reputational destruction;
    • Involvement of media figures who can shape public narratives as part of the extortion package (here, payments to radio hosts and influencers to “change the narrative”).

    The decision shows that existing extortion statutes are flexible enough to handle these modern dynamics:

    • The Hobbs Act can reach threats to professional reputation and career prospects, not only physical harm or straightforward financial assets.
    • Section 875(d) is broad enough to capture threat‑only communications where later interactions reveal illicit demands.

    B. Guidance for Prosecutors and Defense Counsel

    • For prosecutors:
      • They can charge § 875(d) based on a communication that contains no explicit demand, provided they can demonstrate extortionate intent through context.
      • They should, however, consider including explicit “wrongful” or claim‑of‑right language in jury instructions to avoid harmless‑error debates like the one here.
      • When disclosing audio or video evidence, turning over the raw file is generally sufficient for Brady; there is no automatic duty to create transcripts.
    • For defense:
      • They should not assume that the absence of a demand in the threat communication immunizes it under § 875(d).
      • Early independent review and enhancement of audio evidence is critical; waiting until trial to contest characterization of recordings is risky.
      • Napue accusations must be grounded in strong proof of knowing falsity; simple mismatches between testimony and a partially inaudible recording will not suffice.

    C. Digital Obstruction and § 1519

    The case reinforces the reach of § 1519 into digital communications, especially ephemeral or user‑deletable platforms like Telegram:

    • Deleting messages during or in anticipation of questioning is powerful evidence of obstructive intent.
    • Investigators can rely on timing, app metadata (e.g., “last seen” status), and testimony from participants to prove deletion even without direct logs from platform providers.

    This will likely encourage investigators and prosecutors to use § 1519 more frequently in cases involving encrypted or self‑destructing messaging apps.

    D. Jury Instruction Practice

    The opinion will likely influence trial judges’ handling of:

    • Attempt instructions: Courts may rely more heavily on pattern instructions and resist defense requests to add categorical carve‑outs like “mere conversations” that could misstate the law for communication‑based crimes.
    • Extortion “wrongfulness”: While the omission in Count Two was harmless here, the court’s analysis implicitly encourages clearer instructions on the claim‑of‑right limitation in future § 875(d) and Hobbs Act cases, consistent with Jackson and Burhoe.
    • Aiding and abetting: This decision underscores that including § 2 theories in the same count is permissible and does not require special unanimity instructions, reinforcing established First Circuit practice.

    E. High Threshold for Dismissing Indictments or Granting New Trials

    Finally, Díaz‑Colón reaffirms that dismissal of indictments and grants of new trials are “sparingly” used remedies (United States v. Tucker, 61 F.4th 194 (1st Cir. 2023); United States v. Jackson, 58 F.4th 541 (1st Cir. 2023)):

    • Prosecutorial misconduct before the grand jury usually becomes moot after a fair trial with sufficient evidence (Reyes‑Echevarría), unless it directly undercuts the reliability of the charging decision.
    • Post‑trial challenges framed as “prosecutorial misconduct” are carefully scrutinized to separate genuine constitutional violations from disagreements about strategy or evidence presentation.

    VII. Conclusion

    United States v. Díaz‑Colón is an instructive application of long‑standing extortion and obstruction doctrine to a very modern set of facts: encrypted political chats weaponized for financial gain, attempts to buy favorable media spin, and the deletion of digital messages in real time during an FBI interview.

    Its most important legal contribution is the confirmation that:

    • A threatening communication under § 875(d) need not contain its own explicit demand; extortionate intent can be gleaned from surrounding conduct and later conversations.
    • Both Hobbs Act extortion and § 875(d) require “wrongfulness” in the sense of lacking a legitimate claim of right to the property, but failures to perfectly articulate that concept in jury instructions may be harmless if the rest of the charge and the evidence make the point clear.
    • Cloud‑based, deletable messaging content can constitute “records” under § 1519, and deleting them while under active investigation can be punished as obstruction.

    Beyond doctrine, the case is a forceful reminder of the jury’s central role. Faced with conflicting recollections, partially inaudible recordings, and a political maelstrom, the jurors credited the narrative that Díaz‑Colón did not merely “warn” a friend but exploited political crisis for personal and third‑party gain. The First Circuit, in turn, declines to disturb that judgment, grounding its affirmance in both careful legal analysis and an insistence on the deference owed to factfinders in our adversarial system.

Case Details

Year: 2025
Court: Court of Appeals for the First Circuit

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