United States v. Bravo-Fernández, Criminal No. 10–232 (FAB)

246 F.Supp.3d 531

UNITED STATES of America, Plaintiff,

v.Juan BRAVO–FERNÁNDEZ [1], Hector Martínez–Maldonado [2], Defendants.

Criminal No. 10–232 (FAB)

United States District Court, D. Puerto Rico.

March 31, 2017

Daniel A. Petalas, Peter M. Koski, United States Department of Justice Public Integrity Section, Washington, DC, for Plaintiff.

Christian E. Pagan-Cordoliani, Baerga & Quintana Law Offices, Maria L. Montanez–Concepcion, United States Attorneys Office District of Puerto Rico, Juan A. Marques–Diaz, Jeffrey M. Williams–English, David C. Indiano–Vicic, Seth Erbe, Indiano & Williams, PSC, Luis Berrios–Amadeo, Cancio, Nadal, Rivera & Diaz, San Juan, PR, for Interested Party.

OPINION AND ORDER

BESOSA, District Judge.

Before the Court is defendant Juan Bravo–Fernandez's ("defendant Bravo") and defendant Hector Martinez–Maldonado's ("defendant Martinez") motion pursuant to Rule 12 of the Federal Rules of Criminal Procedure ("Rule 12") to dismiss counts four and five for failure to allege an offense. (Docket No. 734.) For the reasons set forth below, the Court DENIES defendants' motion to dismiss.

I. BACKGROUND

On June 22, 2010, a federal grand jury returned an indictment charging defendants Bravo and Martinez with, among other criminal offenses, federal program bribery in violation of 18 U.S.C. § 666(a)(2) and 18 U.S.C. § 666(a)(1)(B) (" Section 666")¹ . (Docket No. 1 at ¶¶ 81, 85.) Following a trial that lasted approximately two weeks, the jury convicted defendant Bravo of violating 18 U.S.C. § 666(a)(2) as charged in count four of the indictment, and convicted defendant Martinez of violating 18 U.S.C. § 666(a)(1)(B) as charged in count five of the indictment.² See Docket No. 438.

The First Circuit Court of Appeals ultimately vacated the convictions of both defendants for violating section 666, and remanded the case for further proceedings. United States v. Fernandez , 722 F.3d 1, 39 (1st Cir. 2013). The First Circuit Court of Appeals held that the Court's jury instructions were erroneous because they permitted the jury to convict pursuant to a gratuity theory, stating that "[t]he government may not pursue a conviction on that ground [i.e., a gratuity theory] if Defendants are retried." Id. at p. 28. In sum, defendants cannot be convicted of federal program bribery pursuant to a gratuity theory because "the true target of § 666 are bribes, not gratuities." Id. at 26.

The government now intends to retry defendants on the standalone section 666 federal program bribery allegations set forth in counts four and five.³ Defendants seek dismissal of counts four and five on the grounds that: (1) the indictment fails to satisfy the $10,000 federal benefits threshold, (2) newly published precedent requires a narrow interpretation of the term "agent" within the meaning of section 666, (3) the government failed to allege bribery in connection with "business transactions of the agency," and (4) the indictment "does not involve anything of value exceeding $5,000 to the relevant state agency." (Docket No. 734 at p. 2.) The Court rejects defendants' arguments for the reasons set forth below.

II. Motion to Dismiss Standard

Defendants move to dismiss the indictment for failure to state an offense pursuant to Rule 12 of the Federal Rule of Criminal Procedure. An indictment "must be a plain, concise, and definite written statement of the essential facts constituting the offense charged." F. R. Crim. P. 7. When considering a motion to dismiss an indictment, courts "must take the allegations in the indictment as true" and must be mindful that "the question is not whether the government has presented enough evidence to support the charge, but solely whether the allegations in the indictment are sufficient to apprise the defendant of the charged offense." United States v. Ngige , 780 F.3d 497, 502 (1st Cir. 2015) (citation omitted). "[I]t is generally sufficient that an indictment set forth the offense in the words of the statute itself as long as those words set forth all the elements of the offense without any uncertainty or ambiguity." United States v. Brown , 295 F.3d 152, 154 (1st Cir. 2002) (internal quotation marks and citation omitted).

III. Discussion

Defendants first claim that the indictment fails to satisfy the $10,000 jurisdictional threshold required by section 666.⁴ Section 666 applies to agents of an "organization, government, or agency [that] receives, in any one year period, benefits in excess of $10,000 under a Federal program." 18 U.S.C. § 666(b). Defendants suggest that the indictment is defective because it alleges that the Commonwealth of Puerto Rico received $10,000 in federal benefits, without distinguishing between "federal funds" and "federal benefits." (Docket No. 734 at p. 6.). According to defendants, the government lacks evidence to establish the $10,000 federal benefits jurisdictional threshold.⁵ (Docket No. 734 at p. 7.)⁶ Yet, defendants fail to explain why this distinction is significant for purposes of ruling on the sufficiency of the indictment whose allegations the Court must accept as true at this stage. Instead, defendants argue that to sustain a conviction, the government must prove that the Commonwealth of Puerto Rico received more than $10,000 in federal benefits, not just more than $10,000 in federal funds.⁷

Defendants cite Fischer v. United States to expound upon the term "federal benefits." See Docket No. 734 at p. 7 (citing Fischer, 529 U.S. 667, 120 S.Ct. 1780, 146 L.Ed.2d 707 (U.S. 2000) ). In Fischer , the Supreme Court held that a "benefit" must generally be something that "promotes wellbeing." Id. at 677, 120 S.Ct. 1780. Defendant's reliance on Fischer is misplaced. In Fischer , the Supreme Court rejected the argument that Medicare assistance provided for the elderly and the disabled were not "federal benefits." 529 U.S. 667, 678, 120 S.Ct. 1780 ("These advantages constitute benefits within the meaning of the federal bribery statute, a statute we have described as ‘expansive,’ both as to the [conduct] forbidden and the entities covered") (citation omitted). The Supreme Court's decision in Fischer did not address what the government must allege to state a viable offense pursuant to section 666.

For purposes of defendants' Rule 12 motion, the dispositive question is whether the $10,000 federal benefits element is alleged in the indictment. Counts four and five of the indictment allege that the "Commonwealth of Puerto Rico was a State Government which received federal assistance in excess of $10,000 during the twelve months preceding May 15, 2005, and during the twelve months following May 15, 2005. (Docket No. 1 at ¶¶ 79, 83.) The Court is, therefore, satisfied that the indictment adequately alleges the $10,000 federal benefits element pursuant to section 666. The absence of language distinguishing "federal benefits" from "federal funds" is not an appropriate basis to dismiss the indictment for failure to allege an offense.⁸

Defendants' second argument in support of dismissal implores the Court to adopt a narrow interpretation of the term "agent" and section 666 generally. (Docket No. 734 at p. 9.) In fact, defendants argue that the First Circuit Court of Appeals' determination that defendant Martinez acted as an "agent," see United States v. Fernandez , 722 F.3d 1 (1st Cir. 2013), cannot be reconciled with subsequent Supreme Court decisions supporting a more narrow interpretation of federal anti-corruption statutes.

Id. at pp. 9–20.⁹ Not one of the Supreme Court decisions upon which defendants rely is dispositive, and not one concerns section 666. In McDonnell v. United States , the Supreme Court reversed an honest-services wire fraud conviction because the district court adopted an overly broad interpretation of "official action." ––– U.S. ––––, 136 S.Ct. 2355, 195 L.Ed.2d 639 (2016). In Bond v. United States , the Supreme Court rejected an overly broad interpretation of the Chemical Weapons Convention Implementation Act. ––– U.S. ––––, 134 S.Ct. 2077, 189 L.Ed.2d 1 (2014). Lastly, the Supreme Court in Yates v. United States ruled that the Eleventh Circuit Court of Appeals adopted an erroneous interpretation of "fish" within the meaning of "tangible object" pursuant to the Sarbanes–Oxley Act of 2002. ––– U.S. ––––, 135 S.Ct. 1074, 191 L.Ed.2d 64 (2015).

Indeed, defendants' reliance on McDonnell , Bond , and Yates , is misplaced because none of these decisions has anything to do with interpreting the meaning of an "agent" within the context of section 666. In Fernandez , the First Circuit Court of Appeals specifically "reject[ed] any notion that state legislators are categorically exempt from prosecution under § 666." 722 F.3d at 1, 8. Defendants have failed to persuade the Court that the First Circuit Court of Appeals would rethink this notion in light of more recent Supreme Court precedent, much less that this precedent compels dismissal of the indictment prior to a trial on the merits. The Court is not persuaded that Supreme Court decisions following Fernandez , which have nothing to do with section 666, compel the conclusion that the First Circuit Court of Appeals concluded erroneously that members of the Puerto Rico Senate are agents of the Commonwealth of Puerto Rico. These Supreme Court decisions do not persuade the Court to conclude that dismissal of the indictment for failure to allege an offense is appropriate.

As stated above, the wording of the indictment informs the Court's decision regarding the Rule 12 motion. Counts four and five allege that:

At all times relevant to this Indictment, defendant MARTINEZ and de Castro Font were agents of the Commonwealth of Puerto Rico whose duties included those of an elected Senator of the Commonwealth of Puerto Rico.

(Docket No. 1. at ¶¶ 80, 84.) The indictment identifies explicitly that the agent allegedly committing federal program bribery is defendant Martinez. The Court is satisfied that the indictment's "agent" reference ...