United States v. Díaz-Colón

651 F.Supp.3d 468

UNITED STATES of America, Plaintiff, v. Sixto Jorge DÍAZ-COLÓN, Defendant.

Criminal No. 21-017 (FAB)

United States District Court, D. Puerto Rico

Signed January 10, 2023

Myriam Y. Fernandez-Gonzalez, AUSA, United States Attorneys Office District of Puerto Rico, San Juan, PR, Michael Nicholas Lang, United States Department of Justice, Criminal Division, Washington, DC, for Plaintiff.

Rafael F. Castro-Lang, Castro & Castro Law Office, San Juan, PR, for Defendant.

OPINION AND ORDER

BESOSA, District Judge.

Four pretrial motions are before the Court. First, defendant Sixto Jorge Díaz-Colón ("Díaz")'s moves to dismiss the indictment. (Docket No. 210.) Second, Díaz moves for leave to file a motion regarding alleged prosecutorial misconduct. (Docket No. 248.) Third, the United States moves to preclude inter alia argument pertaining to alleged prosecutorial misconduct. (Docket No. 224.) Fourth, Díaz moves to continue trial. (Docket No. 253.)

For the reasons set forth below, Díaz's motion to dismiss is DENIED. (Docket No. 210.) His motion for leave to file a motion pertaining to prosecutorial misconduct is DENIED WITHOUT PREJUDICE. (Docket No. 248.) The United States' motion in limine is GRANTED IN PART and HELD IN ABEYANCE IN PART. (Docket No. 224.) Lastly, Díaz's motion to continue trial is DENIED. (Docket No. 253.)

I. Background

The factual allegations forming the basis of this criminal action are set forth in the Opinion and Order issued by this Court on June 16, 2022. See United States v. Díaz- Colón, Case No. 21-017, 607 F.Supp.3d 136, 2022 U.S. Dist. LEXIS 107908 (D.P.R. Jun. 16, 2022) (Besosa, J.). A grand jury returned a three-count indictment on January 26, 2021, charging Díaz with attempted extortion in violation of 18 U.S.C. §§ 1951 and 2 (count one), interstate extortion in violation of 18 U.S.C. §§ 875(d) and 2 (count two), and destruction of records in a federal investigation in violation of 18 U.S.C. § 1519 (count three). (Docket No. 1.)

A. Díaz's Failure to File a Timely Motion to Dismiss

Defense counsel Rafael Castro-Lang ("Castro") concedes that the Court imposed a February 2, 2022 "deadline for filing pretrial motions." (Docket No. 224.) Indeed, Castro filed a notice of appearance on March 18, 2021, eleven months before this deadline and with sufficient time to review the indictment. (Docket No. 31.) Díaz subsequently filed the first motion to dismiss on February 7, 2022, citing the indictment extensively. (Docket No. 103.) The Court denied this motion, however, ordering that the parties submit proposed jury instructions in anticipation of trial. Díaz-Colón, 607 F.Supp.3d 136, 2022 U.S. Dist. LEXIS 107908; Docket No. 206.

Díaz filed a second motion to dismiss on November 22, 2022, two months before trial. (Docket Nos. 204 and 210.) Defense counsel recently "realized that the indictment is defective and must be dismissed/corrected." (Docket No. 210 at p. 1.) According to Castro, "[g]iven that the titles of Count One—Three [sic] appeared to be charging only one offense, it wasn't until [defense] counsel was preparing the jury instructions, which were initially due on 11/21/2022, that he realized the counts were duplicitous." Id. at p. 7.

The Court will not entertain this audacious excuse for a lack of diligence. The first motion to dismiss quoted the indictment verbatim, demonstrating that Castro carefully read and closely evaluated this document. (Docket No. 103.) Castro — a criminal trial lawyer with decades of experience — cannot now claim, after serving as defense counsel in this case for nearly two years, that he relied solely on the "titles" of counts one, two, and three in determining whether to file a motion to dismiss.

Castro assigns blame for the belated motion on his schedule, contending that prior commitments diverted his attention from this case. (Docket No. 101 at pp. 7-8.) He recounts that:

counsel was in trial in Cr. 15-633 (SCC), which lasted 10 days, ending on May 6, 2022. Trial preparation was lengthy. Immediately thereafter counsel had to prepare for trial in Cr. 18-599 (ADC), which was scheduled to begin on 06/06/2022 and was continued the day trial was going to begin due to circumstances that arose in an in [sic] chambers meeting with the judge where new evidence was produced by the Government. The trial was rescheduled for 10/02/2022, and it was only two days prior to it beginning that the defendant entered into a plea agreement. Aside from this, counsel had multiple other cases where he had to prepare lengthy briefs, motions and attend hearings. An example of this is Appeal No. 22-1307 before the First Circuit where counsel filed a 71-page Brief on 11/02/2022, that required a substantial amount of time to prepare. Counsel did not have the opportunity to examine the Jencks at the time they were provided and began concentrating on the jury instructions when the 11/21/2022 deadline was approaching. He then realized the indictment suffered from serious deficiencies . . . that needed to be presented prior to trial.

Id. Castro's 2022 calendar is of no concern to this Court. That an attorney is on trial or submitting an appellate brief does not diminish the need for zealous and attentive representation. See Freiria Trading Co. v. Maizoro, S.A., 187 F.R.D. 47, 49 (D.P.R. 1999) ("[B]eing involved in another case - even a high profile case - will not excuse an attorney from following court orders in a different case.") (Pieras, J.); Piñero Schroeder v. Fed. Nat'l Mortg. Asso., 574 F.2d 1117, 1118 (1st Cir. 1978) ("Most attorneys are busy most of the time and they must organize their work so as to be able to meet the time requirements of the matters they are handling or suffer the consequences."); Batiz-Chamorro v. Puerto Rico Cars, Inc., 304 F.3d 1, 5 (1st Cir. 2002) ("The fact that an attorney has other fish to fry is not an acceptable reason for disregarding a court order.").

Pursuant to Federal Rule of Criminal Procedure 12(b)(3) ("Rule 12(b)(3)"), "[i]f a party does not meet a deadline for [filing a motion to dismiss the indictment], the motion is untimely. But a court may consider the defense, objection, or request if the party shows good cause." Fed. R. Crim. P. 12(b)(3). Díaz has failed to establish good cause for the untimely motion to dismiss. This Court nevertheless "retains ample discretion in setting deadlines for counsel who wish to seek pretrial rulings, and in deciding whether to rule on such motions pretrial, or to rule tentatively and revisit the decision at trial." United States v. Agosto-Vega, 731 F.3d 62, 65 (1st Cir. 2013) (citing Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 58 (1st Cir. 2000)) (holding that district courts have "wide discretion" in managing their cases).

The Court will consider Díaz's second motion to dismiss despite the absence of good cause. Díaz is on notice that failure to comply with Court-imposed deadlines may result in sanctions. See, e.g., Torres v. Puerto Rico, 485 F.3d 5, 11 (1st Cir. 2007) ("District courts have wide discretion to set reasonable deadlines for asserting such defenses, and they may impose condign sanctions on parties who do not comply. The sanction imposed here - effectively, disregard of a belated motion - was not an abuse of discretion.").

II. Díaz's Second Motion to Dismiss

Díaz seeks dismissal of the indictment because "[a]ll counts are duplicitous." (Docket No. 210 at p. 1.) An indictment is sufficient "if it contains the elements of the offense charged, fairly informs the defendant of the charges against which he [or she] must defend, and enables him [or her] to enter a plea without fear of double jeopardy." United States v. Ford, 839 F.3d 94, 104 (1st Cir. 2016) (internal quotation marks and 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); see United States v. Rodríguez-Rivera, 918 F.3d 32, 34 (1st Cir. 2019) ("Unlike a civil complaint that need allege facts that plausibly narrate a claim for relief, a criminal indictment need only apprise the defendant of the charged offense.") (internal quotation marks and citation omitted).

To adjudicate a motion to dismiss, courts "must take the allegations in the indictment as true," cognizant 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). Notably, the indictment need not provide a preview of the evidence to be adduced at trial. See United States v. Stepanets, 879 F.3d 367, 372 (1st Cir. 2018) (noting that the "government need not recite all of its evidence in the indictment").

A. Duplicity

Federal Rule of Criminal Procedure 8 ("Rule 8") states that:

The indictment or information may charge a defendant in separate counts with 2 or more offenses if the offenses charged - whether felonies or misdemeanors or both - are of the same or similar character, or are based on the same act or transaction, or are concerned with or constitute parts of a common scheme or plan.

Fed. R. Crim. P. 8(a). Essentially, "separate offenses [must] be charged in separate counts of an indictment." United States v. Prieto, 812 F.3d 6, 11 (1st Cir. 2016). This mandate serves two objectives: to provide the defendant with sufficient notice of the charges presented against him, and to ensure that the verdict is unanimous. Id. (citations omitted).

An indictment is duplicitous when the charging instrument "[joins] in a single count . . . two or more distinct and separate offenses." United States v. Verrecchia, 196 F.3d 294, 297 (1st Cir. 1999) (quotation...