Petition for Writ of Certiorari — Sixto Jorge Diaz-Colon, Petitioner v. United States
Supreme Court briefDec 5, 2024
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No. ___________
IN THE
SUPREME COURT OF THE UNITED STATES
_______________
SIXTO JORGE DIAZ-COLON
Petitioner
Vs.
UNITED STATES OF AMERICA
Respondent
___________________
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
___________________
APPENDIX
RAFAEL F. CASTRO LANG
Federal Circuit Bar #26074
Attorney for Petitioner
P.O. Box 9023222
San Juan, P. R. 00902-3222
787-644-1448 / 787-723-3672
rafacastrolang@gmail.com;
rafacastrolanglaw@gmail.com
INDEX TO APPENDIX
PAGE
1- Motion for Bail on Appeal……………………………………………………..…...001–029
2- Government’s Opposition to Defendant’s Motion for Release Pending Appeal. 030–046
3- Opinion and Order……………………………………………………………...….047–066
4- Notice of Appeal………………………………………………….…………………067–068
5- Motion for Consolidation of Appeals………………………….…………..………069–071
6- Appellant’s Bail on Appeal Brief………………………….…………...…………..072–164
7- Brief for the United States (Bail Appeal)………………………………………….165–221
8- Appellant’s Bail on Appeal Reply Brief…………………………………..……….222–251
9- Motion to Expedite Request for Bail on Appeal and Final Disposition of Appeal on Its
Merits…………………………………………………………………………….….252–271
10- Court of Appeals Judgment……………………………………….…………….…272–273
11- Motion to Reconsider and Vacate Order/Judgment……………………………..274–296
12- Government’s Opposition to Defendant-Appellant’s Motion to Reconsider Bail
Decision…………………………………………………………………….….…….297–307
13- Motion in Reply to Government’s Response to Appellant’s Motion to Reconsider and
Vacate Order……………………………………………………….……….………308–316
14- Final Ruling………………………………………………………………………………317
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
UNITED STATES OF AMERICA,
Crim. No. 21-017 (FAB)
Plaintiff,
V.
SIXTO JORGE DIAZ-COLON,
Defendant.
MOTION FOR BAIL ON APPEAL
HEREIN appears defendant Sixto Jorge Diaz Colon (" Diaz-Colon "), through his Court
appointed counsel and most respectfully prays and requests:
INTRODUCTION
This is a motion requesting bail on appeal filed pursuant to Title 18 U.S.C. § 3143(B) Release
or detention of Diaz-Colon pending Appeal; and 18 U.S.C. § 3145(c) Review and appeal of release
or detention order.
FACTUAL AND PROCEDURAL BACKGROUND
A.
PROCEDURAL BACKGROUND.
1.
THE OFFENSE.
Appellant Diaz-Colon was the subject of a Three Count Indictment rendered by a District of
Puerto Rico Grand Jury on January 26, 2021. He was charged under Count One with violations of
Title 18 U.S.C. §§1951, 2 (Attempted Extortion, Aiding and Abetting); Count Two with violations
of 18 U.S.C. §§ 875(d), 2 (Interstate Extortion and Aiding and Abetting)); and Count Three with
violations of 18 U.S.C. § 1519 (Destruction, Alteration, or Falsification of Records in a Federal
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Investigation). (DKT # 1).
2.
BAIL PROCESS.
Diaz-Colon was arrested on January 27, 2021, and was brought before U.S. Magistrate
Judge McGiverin, Bruce J. for Initial Appearance. On January 27, 2021, a Bail/Detention Hearing
was held, and the Court granted that the defendant be released on a $10,000.00 secured (10 days
to post) and $5,000.00 unsecured bond. The Appearance Bond was entered on February 5, 2021.
(Docket # 16).
On July 8, 2022, the Court entered order to Show Cause Hearing on why Diaz-Colon should
not be held in contempt and bail be revoked due to his violation of the court’s gag order that
prohibited him from making comments about the case to the press. (Docket # 42).
Diaz-Colon was found in Contempt of Court. The Court ordered the Conditions of Release
to be modified: the defendant was placed under Location Monitoring – Home Detention modality;
was ordered to obtain a flip-phone; and was not allowed the use of any social media or network or
community via text, email or “WhatsApp” or similar application unless authorized by the Court.
(Docket # 145).
On August 19, 2022, the Court modified the conditions of release as follows: Defendant shall
secure employment and must provide the Probation Officer with the following: All evidence
regarding the two projects including phone contacts of those involved in the same; Invoices for
payment of power, water, mortgage and children's schooling, if any; Information as to the federal
deposits he mentioned during the hearing; Full tax returns for years 2019, 2020, and 2021. After
receipt of the documents, the probation officer was ordered to notify the Court, and another hearing
would be set. (Docket # 166). The probation officer complied with the Court’s order on August
31, 2022. That same date, the Court ordered the probation officer to submit all the documents the
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defendant had provided. (Docket # 168)
On September 8, 2022, the Probation Officer filed a Motion in Compliance with Court’s
Order at Docket 168 (Docket # 170). On September 9, 2022, the Court ordered Defense and
Government to review documents submitted in Docket #170 (Docket # 172). On September 22,
2022, the Government filed a Response (Docket # 173). On October 6, 2022, the defense filed
Motion in Compliance and provided documents (Docket # 182). On October 20, 2022, the
Government filed a Motion in Compliance, stating its opposition to modification of bail conditions
(Docket # 185). On October 25, 2022, the Court denied Diaz-Colon’s motion to modify his
conditions of bail (Docket #195).
On February 3, 2023, upon the guilty verdict, the Court ordered Diaz-Colon remanded to the
custody of the US Marshals (Docket # 364).
3.
THE PRETRIAL PROCESS.
The case was initially assigned to P.R. District Court judge Gustavo A. Gelpi and later
reassigned to judge Francisco Besosa. (DKT 71, App. 9). Diaz-Colon was granted bail pending
trial. (DKT 16, App. 4). The Government filed a Motion for Protective Order (DKT 18, App. 5),
that was granted by the Court on 02/12/2021. (DKT 20, App. 5). On 11/17/2021, the Court held
a status conference where Attorney Castro-Lang informed the Court that there were pending
discovery issues with the transcripts of recordings because some words that appeared in the
transcript were not heard in the recordings. (DKT 76, App. 9). On 02/07/2022, Diaz-Colon filed a
Motion to Dismiss Indictment. (DKT 103, App. 12). The Government filed its Opposition (DKT
107, App. 12); and a Reply was filed (DKT 111, App. 13) as was a Sur Reply (DKT 116, App.
13). The Court denied the Motion to Dismiss and to Correct transcript. (DKT 127, App. 14). On
06/22/2022, the Government filed a second motion to show cause and a supplemental motion
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claiming Diaz-Colon had made further public expressions about the case in violation of the
protective order. (DKT 129, 132, App. 14), which he opposed. (DKT 137, App. 15). The
Government filed a Reply. (DKT 141, App. 16). A Show Cause Hearing was held on 07/11/2022.
(DKT 145, App. 16). Diaz-Colon was found in contempt of the protective order and his conditions
of release were amended. (DKT 145, App. 16). Trial was scheduled to begin on 12/09/2022.
(DKT 149, App. 17). Diaz-Colon filed a Motion to Amend Conditions of Bail requesting
authorization to utilize social media, network, communications by text, e-mail, or WhatsApp for
legitimate business purposes. (DKT 151, App. 17). The Government and probation filed their
responses (Dockets 155,158, App. 17) to which Diaz-Colon Replied. (DKT 162, App. 18). A
hearing on the motion was held on 08/19/2022, and the Court ordered Diaz-Colon to provide
Probation documents pertaining to his two work projects, phone contacts of those involved,
invoices for payment of power, water, mortgage, children’s schooling, federal deposits, tax returns
for the years 2019-2021. (DKT 166, App. 18). After providing the documents, (DKT 170, App.
19), the Government filed a Response. (DKT 173, App. 19). Diaz-Colon filed a Motion in
Compliance. (DKT 182, App. 20), as did the Government. (DKT 185, App.20). The Court denied
the motion to amend conditions of bail. (DKT 195, App. 21). Diaz-Colon filed a Motion to Admit
Extrinsic Evidence at trial. (DKT 190, App. 20). Diaz-Colon Replied to the United States
Opposition. (DKT 201, App. 21). The Court entered an Order Denying and Granting in Part
Motion to Admit Extrinsic Evidence. (DKT 202, App. 21). On 11/16/2022, the Court scheduled
trial for 01/23/2023. (DKT 204-App. 21). Diaz-Colon filed a Motion for Leave to File Motion to
Dismiss Under Rule 12(B)/ Duplicitous Indictment. (DKT 210, App. 22). Diaz-Colon Proposed
Jury Instructions. (DKT 217, App. 22). He filed Supplemental Jury Instructions (DKT 219, App.
22) and the Government filed theirs. (DKT 220, App. 22). The United States filed a Motion in
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Limine. (DKT 224, App. 23). United States filed an Opposition to the Motion to Dismiss (DKT
236, App. 23). Diaz-Colon filed an Opposition to the United States Motion in Limine (DKT 240,
App. 24), and a Motion to Strike the United States Opposition. (DKT 244, App. 24). Diaz-Colon
requested Leave to File Dispositive Motions. (DKT 248, App. 24). He filed a Motion for Trial
Continuance given that counsel was going to be out of the jurisdiction from 12/23/2022 until
01/08/2023. (DKT 253, App. 24). The United States Replied to the Diaz-Colon’s Opposition to
Motion in Limine (DKT 256, App. 25) and opposed Diaz-Colon’s Motion for Trial Continuance.
(DKT 259, App. 25). The Court entered an Order Denying All Pre-Trial Motions (DKT 269, App.
26). The United States filed its Designation of Evidence. (DKT 278, App. 27). A motion was
filed by Diaz-Colon concerning discovery recently provided by the Government again requesting
a continuance (DKT 275, App. 26) which the Government opposed at the pretrial conference.
(DKT 299, App. 26). During the pre-trial conference Diaz-Colon’s counsel again requested a
continuance due to the recent voluminous discovery provided as reflected in Docket 275. The
District Court denied the continuance and trial remained set for 01/23/2023. (DKT 299-App. 26).
The Government filed a Motion in Limine on 01/21/2023, requesting the Court prohibit certain
evidence at trial (DKT 302- App. 28), which the Court granted on 01/23/2023. (DKT 305-App.
29). The United States filed a Motion to Compel Reciprocal Discovery. (DKT 297, App. 28),
which Diaz-Colon filed. (DKT 310, App. 29).
The United States filed an Opposition to
defendant’s Reciprocal Discovery Notice (DKT 321, App. 30). Diaz-Colon filed his Response to
the United States Opposition to his discovery notice. (DKT 330, App. 31). The Court denied and
granted in part the motion without prejudice. (DKT 338, App. 32).
4.
THE TRIAL PROCESS
The trial began on 01/23/2023, Diaz-Colon’s counsel informed the side bar that he was not
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prepared for trial, renewing his request for a continuance, which was denied, the jury was selected,
and opening statements were made by the parties. (DKT 311, App. 29). On the Second day of
trial (01/24/2023), the Government presented the testimony of William Hinton, Max Rodriguez,
and Anthony Maceira. (DKT 317, App. 29). On the Third day of trial (01/25/2023), the parties
continued the direct and cross examination of witness Anthony Maceira. On the Fourth day of trial
(01/26/2023), the parties continued the direct, cross, and re-direct examination of witness Anthony
Maceira. The Government also presented witnesses Michael French and Francisco Pares. (DKT
319, App. 30). On the Fifth day of trial (01/27/2023), the parties continued the direct and cross
examination of witness Anthony Maceira. (DKT 327, App. 31 and 706). The Government also
presented witnesses Lydmarie Torres, Madeline Lopez Pagan, and FBI S/A Juan Carlos Lopez
Velazquez. Diaz-Colon requested a mistrial which was denied by the Court. (DKT 328, App.
862). On the Sixth day of trial (01/30/2023), the parties continued the direct and cross examination
of FBI S/A Juan Carlos Lopez Velazquez, and the Government rested its case. (DKT 342, App.
32). On the Seventh day of trial (01/31/2023), Diaz-Colon submitted his motion for judgment of
acquittal in accordance with Rule 29 of the Federal Rules of Criminal Procedure. Both parties
presented their arguments, and the Court denied the Rule 29 motion. (DKT 344, App. 32). On
the Eighth day of trial (02/01/2023 at 1:30 p.m.), the Court delivered jury instructions, and told
them to select a foreperson. (DKT 355, App. 33). At 2:20 p.m., the Court excused the jury to hear
Diaz-Colon’s objections to jury instructions, and after considering arguments from both parties,
denied them. (DKT 354 and 382, App. 32 and 35, and Day 8 TT, App. 1029-1063). On the Ninth
day of trial (02/02/2023), the parties submitted their closing arguments. (DKT 360, App. 34). The
Government filed an Informative motion complaining that Diaz-Colon had made public
expressions to the press on 02/02/2023 (DKT 356, App. 33), to which he responded on 02/03/2023,
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informing that CHS Maceira, while the trial was ongoing, had gone to the press making selfserving comments supporting his trial testimony, and accompanied excerpts of his televised
expressions. (DKT 363, App. 34). On the Tenth day of trial (02/03/2023), the jury rendered a
verdict finding Diaz-Colon guilty on all counts, 1, 2, and 3. (DKT 364-365, App. 34) The United
States requested defendant be remanded to the custody of the U.S. Marshal, which Diaz-Colon
Opposed. The Court, after hearing arguments, ordered that Diaz-Colon be incarcerated. (DKT
364, App. 34).
5.
THE POST CONVICTION PROCESS
On 02/09/2023 Diaz-Colon filed a motion to rescind the gag order. (DKT 373, App. 35).
The United States filed a response. (DKT 388, App. 36). Diaz-Colon filed his reply and exhibits
1 through 3. (DKT 391, App. 36). The United States filed a Sur-reply. (DKT 395, App. 36).
The Court denied Diaz-Colon relief and instructed him to eliminate all Jencks material from
electronic storage and return all hard copies back to the United States. (DKT 401, App. 37). On
02/14/2023, Diaz-Colon renewed his motion for Judgment of Acquittal and New Trial pursuant to
Fed.R.Crim.P. Rule 29 and 33 and corresponding exhibits 1 through 14 (DKT 384, App. 36). The
United States filed its opposition. (DKT 393, App. 36). Diaz-Colon filed a Reply. (DKT 402,
App. 37).
The Court denied Diaz-Colon’s renewed Motion for Judgment of Acquittal and New
Trial. (DKT 418, App. 38). On 04/24/2023, Diaz-Colon filed a motion and order to show cause
for disciplinary proceedings with corresponding exhibits 1 and 2. (DKT 418, App. 38).
The
United States filed its opposition. (DKT 419, App. 38) to which Diaz-Colon replied. (DKT 433,
App. 39). The Court denied Diaz-Colon’s motion. (DKT 441, App. 40).
6.
SENTENCING PROCESS.
On 05/16/2023, the Presentence Investigation Report was prepared and filed. (DKT 423,
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Sealed App. 39). Diaz-Colon filed his objections to the same. (DKT 447, App. 40). On 07/21/2023
the United States filed its Sentencing Memorandum. (DKT 452, App. 41) as did Diaz-Colon.
(DKT 456, App. 41). His Sentence Hearing was held on 08/04/2023, where Diaz-Colon’s counsel
gave an extensive allocution on his behalf claiming Diaz-Colon’s innocence and requested a
sentence of 18 months. Diaz-Colon elected not to address the Court. (DKT 458 App. 41, Sen. Tr.
App. 1261- 1264). The Government requested a sentence of 51 months. (DKT 458 App. 41, Sen.
T. App. 1267). The Court sentenced Diaz-Colon to Fifty-one (51) months as to Counts One and
Three, and twenty-four (24) months as to Count Two to be served concurrently with each other;
SRT: Three (3) years of supervised release as to Count One and Three and One (1) year as to Count
Two, to be served concurrently with each other; SMA: $300.00. (DKT 458, App. 41; Add. 1-8).
See also Judgment and Commitment Order (DKT 459, and Seal Add. 1-8; App. Pg 2). A timely
Notice of Appeal was filed on 08/08/2023. (DKT 463- App. 517).
THE CRIMINAL PROSECUTION AND TRIAL RECORD.
a.
In January 2019, Raulie, whose father was a friend of Diaz-Colon, contacted and invited him
to meet privately because he wanted to counterattack through Diaz-Colon’s program Nacion
Z. the negative press his father was receiving from several cabinet members of Governor
Rossello’s administration. After the meeting, Diaz-Colon did not follow through in assisting
Raulie in wrestling with the government. See Raulie’s 302 Report of Investigation Interview
(“ROI”). Exhibit 1. (DKT 103-4 S-Supp-App. 152-165)
b.
On June 20, 2019, Raulie contacted Diaz-Colon again and requested a meeting to show him
some scandalous printed chats he possessed that were going to destroy the administration of
Governor Ricardo Rossello. Raulie showed Diaz-Colon a binder containing hundreds of
pages which he alleged were printed chats containing damaging conversations between
several cabinet members of the Rossello administration, including the Governor, that he was
going to use to destroy CHS Maceira and Governor Rossello for abusively treating his father,
Raul Maldonado Gautier. Raulie never asked Diaz-Colon for any extortionate payment, only
his intention to get revenge. The chats were never provided to Diaz-Colon. During the
meeting, Diaz-Colon sent CHS Maceira a message informing him about Raulie’s intention
and blaming him and others for the trouble he (HCS Maceira) and Governor Rossello were
causing to the New Progressive Party (“PNP”), if they did not stop messing around with
Raul Maldonado, Sr. (See Raulie’s Report of Investigation Interview (“ROI”) 302. Exhibit
1-DKT 103-4 S-Supp-App. 152-165)
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The text message Diaz-Colon sent to CHS Maceira on 06/20/2019 stated:
Man, if Fortaleza doesn’t stop fucking with Raul Maldonado, Raul
Maldonado’s son has strong evidence to fuck this administration starting with
Ricardo Rossello. According to Rauli “son of RM,” you and Fortaleza are
the ones who are behind this firepower against Raul Maldonado. I tell you
brother; Raul’s Son is going to destroy you all at other levels. I don’t know
what you are going to do. But if they don’t stop the Populares are going to be
in power for 30 years. Stop This. This is crazy. I have a friend who is a close
friend of RM’s son, and they want to see me deliver hard evidence to me and
other media. This administration is fucked. I need to stop this.
(See
Government Exhibit 7 and 7T, Gov_7_413.pdf Gov_7T_838.pdf 1/24/2023,
presented at First Day of trial, Supp-Exh-App. 128-130)
d.
On June 21, 2019, at CHS Maceira’s request, Diaz-Colon met with him at Musa Restaurant
concerning the conversation he had with Raulie and was surprised that CHS Maceira
expressed to him that he felt threatened by the message Diaz-Colon sent to him regarding
the Raulie’s message. Diaz-Colon immediately apologized and cleared the matter with CHS
Maceira who accepted his apologies and coordinated efforts to help Rossello’s
administration before the matter escalated into a government scandal. (See Exhibit 3T for a
True and Exact Enhanced Copy of the Certified Translation of Recorded Conversation
between Diaz- Colon and CHS Maceira at Musa Rest. (DKT 316, TT Day 2 page 114, App.
305 and DKT 384-1 S-Supp-App. 737).
e.
Unbeknownst to Diaz-Colon, CHS Maceira was illegally recording their conversation at
the Musa Restaurant. On 07/15/2019, CHS Maceira contacted the Federal Bureau of
Investigation (“FBI”) regarding Diaz-Colon’s message and represented to FBI Special
Agent Juan Carlos Lopez (“FBI S/A Lopez”), that Diaz-Colon was threatening him to pay
a $300,000.00 extortion to Raulie and requesting Government contract favors, or Raulie
would publicly release Chats to harm CHS Maceira and the Rossello administration. CHS
Maceira provided the FBI and the U.S. Attorney’s Office for the District of Puerto Rico
the recorded conversation of 06/21/2019, which did not contain any of the information
CHS Maceira related to them. (See copy of the recording translation in Spanish and
English. Exhibit 3 and 3T- DKT 384-1 S-Supp-App. 730-790) See also CHS Maceira’s
perjured testimony. (DKT 316, TT Day 2 pages 125-126- App. 316-317).
f.
From June 21, 2019, through July 15, 2019, CHS Maceira nor the FBI acted on Raulie’s
alleged $300,000.00 extortionate request. On July 8 and 13, 2019, Raulie, through another
press outlet, released over 1,200 Chats which resulted in the resignation of all of Governor
Rossello’s cabinet members, except HCS Maceira. (See DKT 316, TT Day 2 pages 149150, App. 340-341). Acting on instructions of the FBI, CHS Maceira requested Diaz-Colon
to meet again on July 16, 2019. The meeting took place at Il Postino restaurant. (See DKT
323, TT Day 4 page 46- App. 567).
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g.
On June 24, 2019, former Governor Rossello fired Secretary of Treasury Raul Maldonado
Gautier, at the request and insistence of CHS Maceira. (See CHS Maceira’s testimony at
DKT 316, TT Day 2, page 133- App. 324)
h.
On July 1, 2019, Rauli went viral on the social media, the TV, and radio, attacking Governor
Rossello and his administration. (DKT 316 TT Day 2, page 136- App. 327). Thereafter, the
governor requested CHS Maceira to meet with Diaz-Colon and see if he could help the
administration with the scandal. (DKT 323 TT Day 4, pages 74, 75 and 76- App. 595, 596
and 597).
i.
On July 8, 2019, Rauli released to the media the first set of Chats that compromised the
Rossello administration. (DKT 316 TT Day 2, page 139-App. 330)
j.
Diaz-Colon spoke to Governor Rossello about the chats and the harm it was causing his
administration. Governor Rossello decided to hire Diaz-Colon through D.R. Consulting
Corp. to take care of the situation, assist his administration in trying to control the damage
the chats were causing, instructing him to meet with CHS Maceira. (See D.R. Consulting
Invoice, and Report of Work Ped, Exhibit 2-DKT 384-1- S-Supp-App. 660-668)
k.
On July 13, 2019, Raulie published the entire remaining set of 889 pages of Chats, that
caused the entire Rossello cabinet to resign, except for Raul Llerandi, Governor Rossello
and CHS Maceira. (DKT 316 TT Day 2 page 149 and 150- App. 340-341]
l.
On July 15, 2019, CHS Maceira met with FBI S/A Lopez to discuss Diaz-Colon’s alleged
extortionate scheme. CHS Maceira provided the FBI all the information that he had, which
included messages, communications, and the illegal recorded conversation of June 21, 2019,
at Musa Restaurant. (DKT 316 TT Day 2, pages 157-158- App. 348-349)
m.
By 07/16/2019, all the chats were made public, there were massive protests, and a lot of
media personalities and influencers were asking for the governor’s resignation. (See CHS
Maceira’s testimony at DKT 316- TT Day 2, pages 179-180- App. 370-371)
n.
FBI S/A Juan C. Lopez (hereinafter ‘agent Lopez’), prior to being authorized, instructed
CHS Maceira to meet with Diaz-Colon on 7/16/19, to record him concerning the alleged
$300,000.00 extortion in exchange for Raulie not releasing damaging chats. During the
conversation, CHS Maceira madly questioned Diaz-Colon why he never called him. (DKT
103-2 page 18- App. 95). As the conversation progressed, Diaz-Colon related to CHS
Maceira, that Raulie had told him that he (Rauli) would accept $300,000.00 in exchange for
not releasing the chats. He told CHS Maceira that Raulie was crazy, and that he (DiazColon), was not going to do that because this was called extorsion. However, CHA Maceira
insisted on the idea and continued talking about the $300,000 payment to Raulie in exchange
for the chats not being released. (DKT 319 -TT Day 3, pages 32-35- App. 410-413; and
certified translation the recorded conversation between Diaz-Colon and Maceira. (Gov.
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Exhibit 4- Sealed S-Supp-App.- 39-120). CHS Maceira testified that after July 16, 2019,
he never met again with Diaz-Colon. (DKT 323 -TT Day 4, page 88-App. 609]
o.
On July 17, 2019, FBI S/A Lopez received verbal approval from his SSA, ASAC, CDC, and
SAC via an email to open a case regarding “Public Corruption”. (See Exhibit 4-DKT 3841, page 138- S-Supp-App. 791) The criminal investigation was opened under Case File
#194A-SE3. Three (3) recordings were filed for approval under FD-759 form request. (See
Exhibit 5-DKT 384-1, pg. 139, S-Supp-App. 792) The three (3) recordings consisted of
conversations recorded by CHS Maceira of Sixto. The first two (2) recordings were made
at Musa Restaurant on June 21, 2019 (Exhibit 3T-DKT 384-1, pages 77 -137- S-Supp-App.
730-790) The third conversation was the consensual recording of CHS Maceira and DiazColon at Il Postino restaurant on 07/16/2019. The FBI needed to corroborate the $300,000.00
extortion in exchange for not releasing alleged additional Chats under the control of Raulie
concerning Governor Rossello’s administration. (See Govt. Exhibit 4- Supp-Exh-App. 39127] It should be noted that the Government never presented any additional chats that
Raulie allegedly possessed after the July 8 and 13/19 public releases nor provided any
to appellant in discovery.
p.
All the Chats had been publicly disclosed by July 16, 2019. They were made public on July
8th and 13th through another media outlet that did not involve Diaz-Colon, leaving no
additional chats to be released. At this point in time, only Raul Llerandi and CHS Maceira
remained as cabinet members of the Rossello administration. The damage to the Rossello
administration had already occurred prior to July16, so there was no quid pro quo to attempt
to extort as the indictment alleges. It was established that Diaz-Colon did not contact Raulie
regarding the $300k extortion until agent Lopez compelled him to do so on July 26th, 2019,
when three FBI agents went to Diaz-Colon’s residence to see if he could help them and to
seize his cell phone with a warrant. (See FBI S/A Lopez testimony-DKT 339- TT Day 6,
pages 20-23- App. 889-891)
q.
It is imperative to emphasize that the criminal investigation authorization pertained not to
the purported extortion plot, but rather to cases of Government corruption involving the
participation of public officials Raul Maldonado Gautier, Diaz-Colon, as well as two
corporations, namely Social Consulting and Collective Impact. Diaz-Colon provided aid
during the procurement of Government contracts of those corporations who were authorized
by Raul Maldonado Gautier during the year 2018. (See copy of FBI S/A Lopez Scheme
Report produced by the Government in Discovery. Exhibit 6-DKT 384-1 pages 140 through
148- S-Supp-App. 793-802) See also copy of FBI S/A Lopez criminal organigram. (Exhibit
7-DKT 384-1 pages 149-151- S-Supp-App. 802-804)
r.
On July 21, 2019,1agent Lopez, requested CHS Maceira to contact Diaz-Colon and deliver
to him $20,000.00 as part of Raulie’s extortion. CHS Maceira refused to do so; abandoned
the FBI operation after he had instigated it and left the FBI with no extortionate case. (DKT
1
During trial the United States submitted that this incident occurred on July 19, 2019. See CHS Maceira [DKT 323
1-TT Day 4 pages 42-43, App. 563-564] and FBI S/A Lopez testimony [DKT 339 TT Day 6 pages 66-67, App. 935936]
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323, TT Day 4, pages 42-43- App. 563-564) and FBI S/A Lopez testimony (DKT 339-TT
Day 6, pages 66-67- App. 935-936) At that time the criminal investigation should have been
closed against Diaz-Colon and no indictment filed.
s.
On July 23, 2019, FBI S/A Agent Lopez, withdrew $20,000.00 from an account to have HCS
Maceira deliver it to Diaz-Colon as a partial bribe payment to Raulie so that he would not
release more Chats. (See ROI 302 Receipts for bribe payment withdrawal; Exhibit 8-DKT
384-1, pages 152-153, S-Supp-App. 805-806) The $20,000.00 cash was never offered to
Diaz-Colon due to CHS Maceira’s refusal.
t.
On July 24, 2019, Governor Rossello officially resigned. By then there were no more chats,
CHS Maceira had already abandoned the FBI criminal operation, and there was no Rossello
administration to extort. (DKT 319- TT Day 3, pages 124-125- App. 502-503) CHS
Maceira resigned on July 28, 2019. (DKT 323- TT Day 4, page 32- App. 553)
u.
The record shows that from July 13 through July 25, 2019, Diaz-Colon did not initiate or
had any communication with Raulie regarding the $300,000.00 extortion. Agent Lopez
testified that on July26/19, during a visit to Diaz-Colon’s residence that he and 2 other agents
made, Diaz-Colon consented to call telephonically Raulie under the direction of the FBI
Agents. (See FBI S/A Lopez’ testimony- DKT 339- TT Day 6, pages 20-23- App. 889-891)
v.
The FBI went to Diaz-Colon’s residence with a search warrant on 7/26/19, that was not
disclosed to Diaz-Colon until they had ended their visit 3-4 hours later. Although they had a
warrant establishing probable cause, they never informed Diaz-Colon he was a target nor
read him his Miranda rights. During the visit the FBI requested and examined Diaz-Colons’
cell phone, asking him questions about its contents. At the onset, the FBI ordered DiazColon’s wife (Wanda Hernandez) and both of his children to lock themselves up in the
residence main room until the interview of Diaz-Colon was over. The FBI kept Diaz-Colon’s
family in the room with no access to the bathroom, water, or meals for almost three (3) hours.
The FBI began interrogating Diaz-Colon extensively for several hours and ultimately
coerced Diaz-Colon to place a call to Raulie to find out if he was willing to accept
$300,000.00 in exchange for not exposing chats. Although Diaz-Colon did not want to call
Raulie, the FBI agents intimidated him by insisting that he was hiding something if he did
not place the call. Diaz-Colon relented, signed a consent form, called Raulie while the FBI
heard the conversation, coached Diaz-Colon what to say and recorded it as part of their
investigation. Upon Diaz-Colon offering Raulie the $300,000.00 bribe/extortion CHS
Maceira was offering him, Raulie answered he never wanted any money and that he only
wanted to destroy the governor and his administration for what they had done to his father.
The call made on behalf of the FBI reflected Diaz-Colon had misled CHS Maceira about
Raulie requesting a $300,000.00 extortionate payment in exchange for not releasing the
chats. (See Copy of Recorded Conversation between Diaz-Colon and Raulie. (Exh. 1, Pg.
4-5-DKT 103-1- S-Supp-App. 65-77; See also S/A Juan Carlos Lopez Testimony-DKT
328- TT Day 5, pages 146-147- App. 849-850)
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w.
The FBI knew by July 26, 2019, that the extortion investigation had no foundation. Agent
Lopez opted to turn the investigation into a new “Public Corruption” case, involving DiazColon and public officials of former Governor Ricardo Rossello’s administration regarding
two Corporations (Social Consulting and Collective Impact), for possible violations of 18
U.S.C. § 371(Conspiracy); 18 U.S.C. § 641 (Theft Government Property), and §2 (Aiding
and Abetting); 18 U.S.C. § 666 (a)(1)(A) (Theft concerning Programs receiving, Federal
Funds). (Exhibit 6-DKT 384-1 pages 140 through 148- App. 793-802) See also copy of FBI
S/A Lopez’ criminal organigram. (Exhibit 7-DKT 384-1, pages 149-151, S-Supp-App. 802804)
x.
During the investigation the United States interviewed several witnesses and subpoenaed
dozens of documents from the Government of Puerto Rico regarding the alleged Public
Corruption criminal scheme. However, at the end of the investigation, the Government
concluded that the evidence obtained did not reveal any criminal conduct on the part of any
of the targets of the criminal investigation and closed the Public Corruption case. Although
Diaz-Colon was not charged with the above investigated corruption offenses, the
Government at trial introduced the contracts of Social Consulting and Collective Impact and
some of its invoices as part of the evidence of the alleged attempted extortion charged in the
indictment. (See Government Exhibits 11 through 16 presented at trial (Gov-11-70), (Gov12-920-and-12T-987), (Gov-13-576-and-13T-377), (Gov-14-820), (Gov-15-601-and-15T848), (Gov-16-259-and-16T-256), and Gov-21-462-and-21T-427) Supp-Exh-App.164-386
and 599-639) Said documents reveal that Raulie received no monetary benefits from
those corporations nor was he involved with them.
y.
On February 24, 2020, former governor Rossello and Diaz-Colon executed a Client
Management Agreement through Bee Global Media, LLC. (See Copy of Contract -Exhibit 9DKT 384-1, pages 154-163, S-Supp-App. 807-816) One must wonder, if former Gov.
Rossello was made aware of Diaz-Colon’s extortionate request as testified by CHS Maceira,
who allegedly told CHS Maceira in June 2019, to go to the authorities, why would Rosello
hire Diaz-Colon seven months later?
z.
On September 10, 2020, CHS Maceira informed agent Lopez that he was concerned that
Diaz-Colon’s negotiations with Netflix regarding a movie of the events concerning the
resignation of former governor Rossello during the summer of 2019, that could have a
negative impact on jurors. At that time Diaz-Colon had not been indicted. (See copy of CHS
Reporting Document. (Exhibit 12-DKT 384-1, page 176, S-Supp-App. 829)
aa.
On December 4, 2020, agent Lopez interviewed former governor Rossello regarding his
relationship with Diaz-Colon. Rossello expressed to agent Lopez his gratitude to DiazColon, his knowledge regarding HCS Maceira’s professional relationship with Diaz-Colon,
spoke about how and why he hired Diaz-Colon during the Chats crisis of the summer of
2019, denied ever being extorted by Diaz-Colon, nor having any knowledge regarding any
leaks of the alleged chats, nor was aware of any scheme to extort his group by Diaz-Colon.
Moreover, former governor Rossello was surprised that HCS Maceira was not indicted since
it was him that insisted on firing Raul Maldonado Gautier and knew the possible
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repercussions. (See copy of CHS Reporting Document prepared by FBI S/A RodriguezExhibit 11 and 12.-DKT 384-1, page 175- S-Supp-App. 828)
bb.
This criminal investigation concluded on July 26, 2019, and two years later on January 26,
2021, Diaz-Colon was indicted of attempting to extort CHS Maceira in violation of the
Hobbs Act (Count 1); aiding and abetting in the transmission in interstate commerce on
06/20/2019, a communication containing ‘certain threats’ to CHS Maceira (person 4),
consisting of Diaz-Colon facilitating the publishing of telegram messages that contained
damaging information about person 4 and others unless Diaz-Colon received $300,000.00
for Raulie and other things of value, in violation of interstate extortion laws. Count 2
included the 06/20/2019 text message of Diaz-Colon to CHS Maceira that allegedly
substantiated said offense (Count 2); and for destroying messages during a criminal
investigation. (Count 3) (DKT 1, App. 44).
cc.
On June 3, 2021, the United States produced 32 items of discovery material; on May 4,
2022, they produced 7 items of discovery material; on November 18, 2022, they produced
18 items of discovery material, December 31, 2022, they produced 101 items of discovery
material, and January 6, 2023, the United States produced 21 items of discovery material,
for a total of 169 items of discovery. (See United States Motion- DKT 259, page 1, S-SuppApp. 367)
dd.
On January 23, 2023, Diaz-Colon informed the United States of his intention of using 84
items of the 169 items of discovery material produced by the United States. (DKT 310 SSupp-App. 416). On January 26, 2023, the United States filed a motion opposing DiazColon’s trial strategy of utilizing evidence provided by the United States throughout pre-trial
proceedings. (DKT 321- S-Supp-App. 423-425) On January 30, 2023, Diaz-Colon filed his
response to the United States opposition. (DKT 330, S-Supp-App. 427-431)
ee.
On January 27, 2023, the Fifth Day of trial, Diaz-Colon requested a mistrial. The basis for
this request was that the testimony and evidence presented during the initial five days of
trial deviated from the charges specified in the indictment creating a variance between the
evidence and indictment. The request was denied by the Court. (DKT 327, App. 862, DKT
328-Fifth Day TT- App. 862).
ff.
On January 30, 2023, the Court granted the United States’ motion and entered an order
denying Diaz-Colon’s right to use most of the discovery produced by the United States for
his defense, except for the admissibility of impeachment statements under Fed. R. Evid. 613,
which were also denied during the trial. The United States was allowed to introduce during
the trial 42 exhibits of discovery items. (See Copy of Exhibits log list, dated 01/23/2023.
Exhibit 1-Sealed Supp-Exh-App.1-2]. Diaz-Colon was only authorized to introduce three
pieces of discovery material (Exhibit A, Supp-Exh-App. 11-16, B, Supp-Exh-App. 9-10, and
C, Supp-Exh-App. 17-31) out of the 84 items he requested as discovery evidence to be
introduced at trial. (DKT 310, S-Supp-App. 418-420)
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gg.
On January 31, 2023, the Seventh Day of trial, Diaz-Colon moved for judgment of acquittal
on all counts based on insufficiency of the evidence as to all counts at the close of the
Government's case in chief. (DKT 341 S-Supp-App. 434-522]. The Court heard Rule 29
arguments and denied the oral motion. (DKT 348 S-Supp-App. 952-1001)
hh.
On February 8, 2023, the Seventh Day of trial, Diaz-Colon presented his objections to the
court’s jury instructions. (DKT 382 S-Supp-App. 1002-1063) He objected to; Jury
Instruction No. 11- Elements of Count One: Attempted Extortion (18 U.S.C. § 1951,
2)requesting that the instruction include language that; “Attempt requires something more
than mere preparation”; Jury Instruction No. 12-Elements of Count Two: Interstate
Extortion Communication in violation of 18 U.S.C § 875(d), to include that the jury must
disregard the inclusion of “attempt language” made in adopted paragraphs 1-18 of count One
that made reference to the “attempt charge” as Duplicitous and confusing the jury in Count
Two as to its elements, since 18 U.S.C. 875(d) did not include an ‘attempt’ as an indictable
violation of said statutory offense; Jury Instruction No. 13 Elements to Count Three:
Destruction, Mutilation, Concealment, Alteration, Covering Up or Falsification of Records,
or Making a False Entry in Any Record in a Federal Investigation (18 U.S.C. § 1519) ),to
include language that the jury must disregard the “attempt charge” when it incorporated
paragraphs 1-18 of the indictment as Duplicitous in Count Three); and Jury Instruction No.
14 Elements of Aiding and Abetting (to include that Diaz-Colon could not have aided and
abetted a Government informant- CHS Maceira). Judge Besosa denied all the objections.
[DKT 382, TT Day Eight, App. 1002-1063].
ii.
On February 17, 2023, Diaz-Colon renewed his motion for judgment of acquittal and
requested a new trial pursuant to Rules 29 and 33 of Fed.R.Crim.P. Diaz-Colon contended
that CHS Maceira perjured himself when he falsely testified at trial that Diaz-Colon
attempted to extort CHS Maceira during the June 21, 2019, Musa restaurant meeting, by
threatening CHS Maceira that if he did not pay Raulie the sum of $300,000.00 and help him
with the Government contracts, Raulie was going to publish the Chats, and destroy the
governor’s and CHS Maceira’s reputation. [DKT 384 S-Supp-App. 584-838].
jj.
In support of the motion for new trial Diaz-Colon submitted evidence proving that the United
States knew that the June 21, 2019, Musa restaurant recorded conversation between CHS
Maceira and Diaz-Colon did not contain the above-mentioned threats. (See copy of the
enhanced recording transcript and translation in Spanish and English-DKT 384 S-Supp-App.
584-838; CHS Maceira’s testimony. (DKT 319-TT Day 3, pages 32-35- App. 410-413;.and
Copy of Certified Translation of Recorded Conversation between Diaz-Colon and CHS
Maceira. (Exhibit 4, S-Supp-App. 39-127]
kk.
In his motion for new trial Diaz-Colon submitted that on January 26, 2021, agent Lopez
committed perjury before the Grand Jury when he falsely testified that Diaz-Colon had asked
person 4 (CHS Maceira) during the 06/21/2019 Musa meeting, to help him with several
Government contracts through which he received compensation and that if Diaz-Colon did
not receive $300,000.00 he was going to facilitate the publishing of telegrams messages
containing damaging information about CHS Maceira and others. These statements were
never given nor recorded against Diaz-Colon during the Musa conversation; the United
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States knew they were false, yet promoted its falsehood before the grand jury and included
the same in the indictment. (See Indictment-DKT 1, ¶¶ 10, 13 (e), 19, 20 and 21, App. 46,
47 and 48]. See also FBI S/A Lopez’ grand jury testimony that remains sealed. (S-SuppApp. 830-831)
I.
THE STANDARD FOR BAIL ON APPEAL
There is no federal constitutional right to be free pending an appeal. Under the Federal Rules
of Criminal Procedure, eligibility for release pending appeal must be in accordance with the
applicable federal statute. See Fed.R.Crim.P. 46(c) (referring to 18 U.S.C. § 3143). 18 U.S.C. §
3143 (b)(1) provides that a judicial officer shall order that a person who has been found guilty of
a crime and sentence to a term of imprisonment, and who has filed an appeal or a petition for a
writ of certiorary, be detained, unless the judicial officer finds:
(A)
by clear and convincing evidence that the person is not likely to flee or pose
a danger to the safety of any other person or the community if release under
section 3142 (b) or (c) of this title [18 U.S.C. § 3142 (b) or (c); and
(B)
that the appeal is not for the purpose of delay and raises a substantial
question of law or fact likely to result in in reversal, an order for a new trial,
a sentence that does not include a term of imprisonment, or a reduced
sentence to a term of imprisonment less than the total of the time already
served plus the expected duration of the appeal process. Alfonso-Reyes, 427
F.Supp.2d 44 (D.P.R. 2006)
Pursuant to U.S. v. Provenzano, 605 F.2d 85, 87 (3rd Cir. 1979); “It is this nation’s
policy that one convicted of a crime shall be entitled to bail while appealing his
conviction, unless no set of conditions upon release will reasonably assure that he will
not flee or pose a danger to the community.”. An application for bail of appeal must be
presented in the first instance to the District Court, notwithstanding that the jurisdiction
of the court of appeals has already attached by virtue of the appeal from the judgment of
conviction. Id. at 91.
The Bail Reform Act, as amended, sets forth the procedure by which judicial officers
determine whether a recently convicted person is eligible for release pending appeal. See 18
U.S.C.§ 3143(b), 3145(c). The statute distinguishes between two categories of crimes to determine
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eligibility for release. The first category applies to defendants convicted of crimes not listed
in section 3142(f)(l)(A), (B), and (C) and allows for release when the trial judge finds certain
conditions satisfied. Diaz-Colon was not convicted of any of those listed categories. See 18
U.S.C. § 3143(b)(l). The second category mandates detention for persons found guilty of crimes
encompassed in section 3142(f)(l)(A), (B), and (C), NONE OF WHICH APPLY TO DiazColon. See 18 U.S.C. § 3143(b)(2). An exception permits release of mandatory detainees who
met the requirements for release under section§ 3145(b)(l), and "if it is clearly shown that there
are exceptional reasons why such person's detention would not be appropriate." 18 U.S.C. §
3145(c). Thus, section 3143(b)(l) supplies the threshold requirements that a person convicted of
a violent crime must meet. To satisfy those requirements, the trial judge must find that the person
poses no risk of flight and no danger to the community during release and that the appeal "raises a
substantial question of law or fact likely to result in "reversal, a new trial or a reduced sentence,
and is not interpose for purposes of delay." 18 U.S.C. § 3143(b)(l).
Only then does the trial court consider the presence of exceptional circumstances making
detention inappropriate. United States v. Carr, No. 91-3877, 947 F.2d 1239 (5th Cir. Nov. 14,
199l)(per curiam)(exceptional reasons provision to be applied on original application despite
inclusion of provision "in section generally covering appeals"). The "likely to result" standard
is applied flexibly--a question that can be regarded as "close" will often suffice, United States
v. Bayko, 774 F.2d 516, 523 (1st Cir. 1985).
As stated by the Third Circuit, and adopted with approval in Bayko; "the provision cannot
be read to mean that bail is not to be granted unless the District Court is willing to say that it will
probably be reversed:
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‘We are unwilling to attribute to Congress the cynicism that would underlie the provision were it
to be read as requiring the district court to determine the likelihood of its own error. A District
Court who, on reflection, concludes that she/he erred may rectify that error when ruling upon posttrial motions. Judges do not knowingly leave substantial errors uncorrected, or deliberately
misconstrue applicable precedent. Thus, it would have been capricious of Congress to have
conditioned bail only on the willingness of a trial judge to certify his or her own error.’ Miller,
753 F.2d at 23.
In addition, all agree that the provision breaks down into two distinct requirements:
(1) that the appeal rise a substantial question of law or fact and
(2) that if that substantial question is determined favorably to defendant on appeal,
that decision is likely to result in reversal or order for a new trial of all counts
on which imprisonment has been imposed. Id.
The second requirement has provoked very little controversy. It has generally
been read to mean that if error is found, it must not be harmless or unprejudicial
error. Both the Fifth and Eighth Circuits have added the additional gloss that
"likely to result in reversal" should be read to mean that "it is more probable
than not that" a favorable decision will result in a reversal of the conviction or
a new trial.
From the above, it is clear that Defendant is not subject to mandatory detention under 18
U.S.C. § 3143(b)(2).
Any person convicted of a "crime of violence", should be detained pending appeal. A crime
of violence is defined as follows:
(A) an offense that has as an element of the offense the use, attempted use, or
threatened use of physical force against the person or property of another, or
(C)
any other offense that is a felony and that, by its nature, involves a substantial
risk that physical force against the person or property of another may be used
is the course of committing the offense. 18 U.S.C. § 3156(a)(4).
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See for example, Mecan v. United States, 434 U.S. 1340 (1977)(offense involving largescale smuggling enterprise of marijuana); Carbo v. United States, 82 s.ct. 662 (1962)(Danger to
witness); United States v. Oliver, 683 F.2d 224 (7th Cir. 1982)(Receipt and possession of
ammunition and firearms, danger to human life, record of employment); United States v. Hawkins,
617 F.2d 59 (5th Cir. 1980)(would continue to trafficking drugs, is part of a large and well financed
drug operation); United States v. Alvarez, 584 F.Supp. 791 (S.D. Fla. 1982)(threat to the
community, potential to do physical harm, financially to to flight); United States v. Rabena, 339
F.Supp. 1140 (D.C. Pa 1972)(Network engaging in the illegal traffic of dangerous drugs,
likelihood that illegal activities continue or resumed if release endangering the community);
United States v. Ursini, 276 F.Supp 983 (D.C. Conn. l967)(uncontrollable temper, at worst a depth
of hostility and the venom to which other persons and the community should not be subjected);
United States v. Bond, 329 F.Supp. 538 (D.C. Tenn. 1971)(explosive antiauthority behavior);
United States v. Blyther, 407 F.2d 1279 (D.C. Cir. 1969), cert.denied 394 U.S. 953
(1970)(Carrying a dangerous weapon after conviction of a felony).
Diaz-Colon was not convicted of a crime of ‘violence’.
Nevertheless, there is an exception under 18 U.S.C. § 3145(c), which provides courts the
authority to release a defendant on appeal. Section 3145(c) reads in pertinent part:
A person subject to detention pursuant to section 3143(a)(2) or (b)(2), and
who meets the conditions of release set forth in section 3143(a)(l) or (b)(l),
may be ordered released, under appropriate conditions, by the judicial
officer, if it is clearly shown that there are exceptional reasons why such
person's detention on would not be appropriate. 18 U.S.C. § 3145(c).
The First Circuit addressed this issue in an unpublished opinion. United States v. Weiner,
No. 92-1708, 1992 U.S.App. LEXIS 28794, at *l (1st Cir. Jul 31, 1992).
Although the Circuit
Court in Weiner concluded that the defendant had not demonstrated exceptional circumstances had
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been proven, it recognized that § 3145(c) could authorize release pending appeal. Id. at *3. Every
other circuit that has considered the question has concluded that§ 3145(c) authorizes a District
Court to order release, even in an otherwise mandatory detention case, so long as the defendant
meets the statutory requirements. See United States v. Goforth, 546 F.3d 712, 714-15 (4th Cir.
2008); United States v. Lea, 360 F.3d 401, 403 (2nd Cir. 2004)(stating that a defendant convicted
of a crime of violence and awaiting sentencing who cannot satisfy the criteria set forth in 18
U.S.C.§ 3143(a)(2) may nevertheless be released if (1) the District Court finds that the conditions
of release set forth in§ 3143(a)(1) have been met, and (2) "it is clearly shown that there are
exceptional reasons why [the defendant's] detention would not be appropriate")(quoting 18 U.S.C.
§ 3145(c)); United States v. Garcia, 340 F.3d 1013, 1014 n.l (9th Cir. 2003); United States v. Cook,
42 Fed.Appx. 803, 804 (6th Cir. 2002); United States v. Mostrom, 11 F.3d 93, 94 (8th Cir. 1993)
(per curiam); United States v. Jones, 979 F.2d 804, 805 (10th Cir. 1992) (per curiam ); United
States v. Herrera-Soto , 961 F.2d 645 , 6 4 7 ( 7th Cir. 1992)(per cuiriam); United States v. Carr,
947 F.2d 1239, 1240 (5th Cir. 1991)( per curiam). "Exceptional is defined as 'being out of the
ordinary; uncommon, rare." United States v. Wages, 271 F. App'x 726 (10th Cir. 2008) (quoting
Webster's Third New Int'l Dictionary (Unabridged) 791 (G. & C. Merriam Co. 1976)); Lea, 360
F.3d 403 (stating that exceptional circumstances exist where there is "a unique combination of
circumstances giving rise to situations that are out of the ordinary”) (quoting United States v.
DiSomma, 951 F.2d 494, 497 (2nd Cir. 1991)). The test under§ 3145(c) is "necessary a flexible
one, and district courts have wide latitude to determine whether a particular set of circumstances
qualifies as 'exceptional." Lea, 360 F.3d at 403.
In United States v. Tornos-Vega, 907 F.2d 215 (1st Cir. 1990), the First Circuit allowed the
defendant's release pending appeal in light of its granting rehearing en banc in United States v.
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Martinez-Torres, a case in which, as in Tornos- Vega, the jury that rendered the guilty verdicts
was empaneled by a magistrate. The issue in both cases was whether Gomez v. United States, 490
U.S. 858 (1989), in which the Supreme Court held that magistrate empanelment was imporper in
a felony trial, could be used as grounds for vacating a defendant's conviction that was entered
before Gomez was decided, and where an objection to the magistrate empanelment was not raised
in the District Court. Since the issue was not only unsettled but also material (an affirmative
answer would likely require remand for new trial), the Tornos-Vega Court deemed "close" for bail
purposes.
II.
ARGUMENT.
WHETHER DIAZ-COLON’S APPEAL RAISES A SUBSTANTIAL QUESTION OF
LAW AND FACTS LIKELY TO RESULT IN REVERSAL, NEW TRIAL, AND/OR
ACQUITTAL ON APPEAL.
A.
STATEMENT OF ISSUES ON APPEAL.
1.
WHETHER THE COURT ERRED IN DENYING THE RULE 29
JUDGMENT OF ACQUITTAL AT THE CONCLUSION OF THE
GOVERNMENT'S CASE AND POST-CONVICTION RENEWAL
MOTION WHEN THERE WAS INSUFFICIENT EVIDENCE UPON
WHICH A REASONABLE JUROR MIGHT HAVE FAIRLY
CONCLUDED DIAZ-COLON'S GUILT BEYOND REASONABLE
DOUBT ON EVERY ELEMENT OF THE OFFENSES CHARGED IN
THE INDICTMENT.
3.
WHETHER
THE
GOVERNMENT’S
MISCONDUCT
IN
MANIPULATING EVIDENCE, SUBORNING AND PRESENTING
PERJURED TESTIMONY DURING THE GRAND JURY,
INDICTMENT, AND DURING THE TRIAL PROCESS REQUIRES
DISMISSAL OF DIAZ-COLON’S CRIMINAL CONVICTION UNDER
THE PRINCIPLES ENUNCIATED IN BRADY V. MARYLAND, AND
NAPUE V. ILLINOIS, AS GUARANTEED UNDER HIS
FIFTH
AMENDMENT RIGHT TO A FAIR TRIAL AND DUE PROCESS.
4.
WHETHER THE COURT ERRED IN DENYING DIAZ-COLON’S
POST-CONVICTION RENEWAL MOTION FOR JUDGMENT OF
ACQUITTAL, NEW TRIAL, AND DISMISSAL OF THE
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INDICTMENT UNDER THE INTERESTS OF JUSTICE PURSUANT
TO RULE 29 AND 33 OF THE FEDERAL RULES OF CRIMINAL
PROCEDURE.
5.
WHETHER
DIAZ-COLON'S
SIXTH
AMENDMENT
CONSTITUTIONAL RIGHTS WERE VIOLATED WHEN THE
COURT INFRINGED UPON HIS RIGHT TO FULLY CONFRONT
HIS ACCUSERS AND PREVENTED HIM FROM PRESENTING
FAVORABLE EVIDENCE IN SUPPORT OF HIS DEFENSE DURING
TRIAL.
6.
WHETHER THE DISTRICT COURT COMMITTED REVERSIBLE
ERROR BY REFUSING TO DECLARE A MISTRIAL WHEN IT
ALLOWED A PREJUDICIAL VARIANCE BETWEEN THE
EVIDENCE PRESENTED AT TRIAL AND THE CHARGES OF THE
INDICTMENT.
7.
WHETHER THE DISTRICT COURT ABUSED ITS DISCRETION IN
IMPARTING ERRONEOUS JURY INSTRUCTIONS DESPITE DIAZCOLON OBJECTIONS, REQUIRES REVERSAL AND REMAND
FOR A NEW TRIAL IN ALL COUNTS OF THE INDICTMENT.
Diaz-Colon presents seven (7) issues that are expected to result in reversal, a new trial,
or acquittal on appeal. (The filed Appellate Brief is attached hereto as Exh.1). The factual
and legal arguments for each of these issues raised in his Appellate Brief are incorporated
into this motion for this Court's consideration that bail pending appeal be granted to DiazColon.
The first issue is presented in Diaz-Colon's Appellate Brief from page 20 through 29. The
second issue is presented from page 30 through 39. The third issue is presented from page 40
through 49. The fourth issue is presented from page 50 through 59. The fifth issue is presented
from page 60 through 69. The sixth issue is presented from page 70 through 79. And the seventh
issue is presented from page 80 through 89.
If Diaz-Colon prevails on appeal, the remedy could be as drastic as it comes—this court
would have to throw out his conviction, and because of the Double Jeopardy Clause of the Fifth
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Amendment, the Government would not get another shot at re-trying him on these charges. See
United States v. Negrón–Sostre, 790 F.3d 295, 306–07 (1st Cir.2015). Of course, a successful
sufficiency challenge would render all of Diaz-Colon’s other meritorious claims of reversible trial
error moot.
B.
THE EXCEPTIONAL REASONS WHY DIAZ-COLON’S CONTINUED
DETENTION IS NOT APPROPRIATE.
Diaz-Colon argues that there are exceptional reasons justifying bail on appeal in this case.
Upon guilty the verdict on February 3, 2023, Diaz-Colon was remanded to the custody of
the U.S. Marshals. The Court revoked bail due to Diaz-Colon’s alleged non-compliance with the
conditions of release regarding addressing the press while a gag order was in effect. The gag order
is no longer in effect given that the trial/sentencing process has concluded. So, the reasons the
Court revoked his bail are not present at this time and cannot serve as grounds to deny him bail on
appeal.
Nevertheless, after considering Diaz-Colon’s appellate issues, and the likelihood that
he may prevail, this Court is bound to grant Diaz-Colon’s request for bail on appeal since
his compliance with § 3143(b) has been established.
Section 3143(b) provides in part:
(b) Release or Detention Pending Appeal by the Defendant. The judicial officer shall
order that a person who has been found guilty of an offense and sentenced to a term
of imprisonment, and who has filed an appeal or a petition for a writ of certiorari, be
detained, unless the judicial officer finds . . . . . . . .
(1) by clear and convincing evidence that the person is not likely to flee or pose
a danger to the safety of any other person or the community if released; and
(2) that the appeal is not for the purpose of delay and raises a substantial question
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of law or fact likely to result in reversal or an order for a new trial.
The record shows that Mr. Diaz-Colon (1) has complied with § 3143(b); and (2) is entitled
to bail pending the resolution of his appeal.
First, the record shows that Diaz-Colon does not pose a danger to the safety of any other
person or the community. The presentence report indicates that he has no crime of violence2
history. He grew up in a stable, problem-free environment. Positive accounts of Diaz-Colon were
received from his wife, family members and neighbors. No incidents of violence by Diaz-Colon
occurred while on bail, during trial or after conviction, nor prior to sentencing. Moreover, the
record is devoid of any evidence of threats or witness intimidation by him. This is particularly
significant as the legislative history of the 1984 Bail Act repeatedly emphasizes that defendants
who have threatened witnesses pose a significant danger to the community. See S.Rep. No. 225,
98th Cong., 1st Sess. at 7, 12, 15, 21, reprinted in 1984 U.S.Code Cong. & Adm.News at 10, 15,
18, 24, 25 (Supp. 9A). Accord, United States v. Delker, 757 F.2d 1390, 1400 (3rd Cir.1985) (bail
denied in part because of evidence of intimidation of witnesses by defendant). Thus, both the
probation report and trial history show appellant's compliance with § 3143(b)(1).
Second, Diaz-Colon does not present a risk of flight justifying denial of bail. Among the
factors relevant to the issue of possible flight are: (1) the defendant's family ties, character and
mental condition; (2) the length of his residence in the community; (3) his record of appearance at
2
This Court is confronted here with a most unusual factual and legal situation, one that fully justifies the exercise of
discretion by the district court. The statute of conviction in this case does not establish a crime of violence. See 18
U.S.C. §§1951 (Attempted Extortion); 18 U.S.C. §§ 875(d) (Interstate Extortion); and 18 U.S.C. § 1519 (Destruction,
Alteration, or Falsification of Records in a Federal Investigation) The crimes of conviction do not carry penalties
involving maximum terms beyond 10 years with no minimum sentence requirement.
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court proceedings or of flight to avoid prosecution; (4) the nature and circumstances of the offense;
and (5) his prior criminal record. See 18 U.S.C. § 3142(g); see also United States v. Stanley, 469
F.2d 576, 583 (D.C.Cir.1972). Accord, United States v. Bishop, 537 F.2d 1184, 1185 (4th
Cir.1976), United States v. Miranda, 442 F.Supp. 789 (S.D.Fla.1977).1 Application of these
factors justifies granting bail.
1.
The record shows that Mr. Diaz-Colon has family ties to Puerto Rico.3
Before incarceration, Diaz-Colon was residing with his wife and two children. It is important
to note that Mr. Diaz-Colon has been a lifelong resident of Puerto Rico.
The strong family ties and significant length of residence in the community and P.R.
establish that Diaz-Colon will willingly surrender himself to serve the remaining of his sentence
if he does not succeed on appeal. United States v. Birges, 523 F.Supp. 472, 475-76 (D.Nev.1981),
Those factors allow the conclusion that appellant will stay in Puerto Rico if released.
2.
A defendant's mental condition is a valid indicator of whether he will flee. Id.; see
also 18 U.S.C. § 3142(g). Thus, it has been noted that a defendant's mental
stability allows an inference that he will stay. Birges, 523 F.Supp. at 476.
As noted above, the presentence report shows that appellant grew up in a stable environment.
3
His PSR also reveals that Mr. Diaz-Colon has resided at the residence of record in the PSR, for 18 years, in Urb Los
Prados Serenna Bldg. U Apt 202 Caguas, Puerto Rico 00727, It is a three-bedroom apartment in a gated community,
where Mr. Diaz-Colon resided with his wife and two children.
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Good accounts4 were received from his wife,5 family members,6 and his neighbors. The report also
notes the absence of history of mental and/or emotional disorders. It describes Diaz-Colon as
emotionally stable. The record reflects mental stability supporting the inference that he will not
flee. Cf. DeVeau v. United States, 454 A.2d 1308, 1317-18 (D.C.App.1982) (bail denied in part
because defendant had been diagnosed as a paranoid schizophrenic, and unstable mental condition
created risk of flight).
3.
The nature and circumstances of the offense shed light on, inter alia, the possible
term of imprisonment faced by a defendant. United States v. Birges, supra at 475.
If Diaz-Colon were facing a substantial term of imprisonment, only then the court could find
that he is a risk of flight. Diaz-Colon, who is executing a 51-month term of imprisonment, and
has already served in excess of 12 months, without calculating his good time credits, does not
warrant a finding that he poses a risk of flight due to his remaining term of incarceration. In
addition, while incarcerated he has not been disciplined and has observed appropriate behavior.
He has a shorter term of imprisonment than that faced by defendant in Truong Dinh Hung v.
4
As noted in his PSR (Docket 445, pg.12, par.67) Family Ties, Family Responsibilities, and Community Ties:
As verified through his Presentence Report Investigation while at the community Mr. Diaz-Colon conveyed that
during his free time, the defendant was either always working, playing golf or playing basketball. During his
childhood, the defendant participated in local community basketball teams and for a short time also participated in
baseball youth teams. He disclosed no community service/volunteer work but did indicate that he would help other
community leaders and programs. The defendant’s wife confirmed this information.
5
As to marital history, MR. Diaz-Colon has been in a relationship since 1999 with Wanda Ivette Hernandez Perez,
age 47, a customer service employee at a solar panel company, who resides at the address of record. He explained that
they began a relationship 1999, got married in 2004, his wife is physically healthy, has no mental health history, no
substance abuse history, no alcohol abuse history, and no criminal history. They have two (2) children: Xadiel, age
16, and Gabriela, age 14; both of whom reside with their mother.
6
Mr. Diaz-Colon indicated that his family has provided financial support to the defendant and his immediate family.
As to his peers, the defendant reported no gang affiliations present or past. Moreover, he disclosed that his closest
friend is his wife and that his biggest support is God. The defendant’s wife confirmed this information and stated that
their daughter was present at the moment of his arrest, which impacted her greatly. His wife reiterated that the
defendant has 100% their support.
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United States, 439 U.S. 1326, 99 S.Ct. 16, 58 L.Ed.2d 33 (1978), a case in which Justice Brennan,
granted bail pending appeal. Diaz-Colon’s remaining term of imprisonment does not constitute an
obstacle to granting bail on appeal, given the totality of circumstances in this case, all of which
support this motion.
In addition, His financial reports show that he does not have the economic means to flee the
jurisdiction.
Diaz-Colon has clearly and convincingly demonstrated he complied with 18 U.S.C. §
3143(b)(1).
Diaz-Colon has identified substantial questions of law “likely to reduce his sentence to
a term of imprisonment less than the total of the time already served plus the expected
duration of the appeal process.”
As noted in United States v. Bayko, 774 F.2d 516 (1st
Cir.1985), the court need not conclude that a defendant's conviction or sentence is in fact
going to be reversed before concluding compliance with § 3143(b)(2) or 3143(b)(1)(B).
Bayko does not even require a finding that the District Court “is likely to be reversed.” Id.
A substantial question of law is a “close” question or “one that very well could be decided
the other way,” As appears from his appellate Brief (Exh1), Diaz-Colon has met his burden under
§ 3143(b)(1)(B). Without prejudging the outcome of his appeal, this Court should find that DiazColon has raised and briefed several issues on appeal which meet the requirements of §
3143(b)(1)(B).
A.
PROPOSED CONDITIONS TO REASONABLY ENSURE THE SAFETY OF THE
COMMUNITY AND NON-EXISTENCE OF FLIGHT RISK.
1.
Mr. Diaz-Colon will reside with his wife, who is the owner of the Caguas
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residence where he has resided for the past 18 years with his children.
2.
Diaz-Colon’s wife, Wanda Hernandez, is willing to assume third-party
custodianship over him.
3.
Diaz-Colon will remain in home detention, subject to electronic monitoring,
only leaving the residence for work, medical appointments, medical
emergencies, and appointments with his attorney.
4.
Diaz-Colon will meet and/or communicate directly or indirectly only with
his attorney and individuals approved by the Court.
5.
Diaz-Colon 's wife, the owner of the Caguas residence, is willing to post
it as bond for his bail. The property has an equity exceeding $100,000.00.
Diaz-Colon would not expose his wife to lose her residence where she
lives with their children. Given the quality of bail proposed any risk of
flight should be found nonexistent.
6.
Diaz-Colon will report daily by telephone and/or in person to Pretrial
Services.
7.
Diaz-Colon will agree to unannounced visits to the residence and any other
condition the Court or U.S. Pretrial Service deems necessary to reasonable
assure compliance with his conditions of bail.
III. CONCLUSION
WHEREFORE, based on all the aforementioned reasons, Diaz-Colon submits he has met
all the legal standards and criteria set forth under the Bail Reform Act and should be granted bail
on appeal, subject to all of the conditions required by this Court.
RESPECTFULLY SUBMITTED.
I hereby certify that on this same date, I electronically filed the foregoing with the Clerk of
the Court using the CM/ECF system which will send notification of such filing to all parties
involved.
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In San Juan, Puerto Rico, this 18th day of March 2024.
S/ Rafael F. Castro Lang
RAFAEL F. CASTRO LANG
USDC-PR#128505
Attorney for Defendant
P O Box 9023222
San Juan PR 00902-3222
Tel (787) 723-3672 / (787) 723-1809
Fax (787) 725-4133
Email:rafacastrolang@gmail.com;
rafacastrolanglaw@gmail.com
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UNITED STATES DISTRICT COURT
DISTRICT OF PUERTO RICO
UNITED STATES OF AMERICA,
Plaintiff,
v.
SIXTO JORGE DIAZ-COLON,
Defendant.
§
§
§
§
§
§
§
§
CRIMINAL NO. 21-CR-17-FAB
GOVERNMENT’S OPPOSITION TO DEFENDANT’S
MOTION FOR RELEASE PENDING APPEAL
The United States of America, by and through the undersigned attorneys, hereby submits
this opposition to Defendant Sixto Jorge Diaz-Colon’s Motion for Release Pending Appeal
(hereinafter, the “Motion”). Because the defendant cannot establish that his appeal raises a
substantial question of law or fact that is likely to result in reversal or a new trial, the United States
opposes the defendant’s motion.
I.
Factual Background 1
On February 3, 2023, the defendant was convicted at trial of all three counts in the
Indictment stemming from his involvement in orchestrating a scheme to extort a senior official of
the Government of Puerto Rico in exchange for hundreds of thousands of dollars, as well as his
efforts to delete and destroy evidence to conceal his involvement in the scheme. The defendant’s
efforts were recounted by the victim, a senior public official who testified at trial, and captured in
a recording by that official which was played for the jury at trial. This recording, in concert with
witness testimony, and direct evidence of the defendant’s threat, accompanied by witness
testimony and documentary evidence of the defendant’s obstruction was presented by the
The relevant factual record speaks for itself and was thoroughly discussed in the Government’s response
to the defendant’s post-trial Rule 29 Motion for Judgment of Acquittal. (See ECF No. 393.) The
government has limited its inclusion of facts to those that are germane to issues raised by defendant’s
motion for bail pending appeal.
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government’s case-in-chief over the 10-day trial. The jury’s verdict in this case, returned after a
handful of hours of deliberation, was based on the overwhelming evidence of the defendant’s
extortionate conduct and obstruction of justice to conceal his involvement in the extortionate
criminal scheme during a time of significant public upheaval.
II.
Procedural Background
On January 26, 2021, a federal grand jury issued a three-count indictment charging the
defendant with attempted extortion, in violation of 18 U.S.C. §§ 1951(a) and 2, one count of
interstate extortion in violation of 18 U.S.C. § 875(d) and 2, and one count of deleting or destroying
a record or document, in violation of 18 U.S.C. §§ 1519. (Indictment, Jan. 26, 2021, ECF No. 1).
The defendant proceeded to trial beginning on January 23, 2023. ECF No. 311. The jury
trial lasted 10 days. On the morning of February 1, the jury was instructed on the law. ECF 354.
On February 2, 2023, the parties presented their closing arguments, and early the next afternoon,
February 3, 2023, the jury returned a verdict finding the defendant guilty on all counts. ECF Nos.
360, 365. The defendant was remanded to custody that day. ECF. No. 364.
The Probation Office prepared the Presentence Report, which set forth the basic facts. The
PSR calculated the defendant’s total offense level as 22. The resulting guidelines sentencing range
was 41-51 months. See PSR.
At sentencing on August 4, 2023, the Court adopted the PSR and heard extensive argument
from both parties as to the defendant’s appropriate sentence. ECF No. 458. The Court thereafter
imposed a 51-month term of imprisonment as to counts one through three to be served
concurrently, followed by three years of supervised release. ECF No. 458. In its judgement of
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conviction, the Court indicated in the Statement of Reasons that it had “adopted the presentence
investigation report without change.” ECF No. 460.
The defendant filed a notice of appeal on August 8, 2023. ECF No. 463. On January 31,
2024, the defendant filed an appeal before the First Circuit Court of Appeals. Diaz-Colon, Case
No. 23-1692 (1st. Cir. Jan. 31, 2024), in which he purports to raise (1) whether sufficient evidence
supported his convictions for attempted extortion, transmitting a threat in interstate commerce with
the intent to extort, and destroying records in a federal investigation; (2) whether the trial evidence
was at fatal variance with the allegations in the Indictment; (3) whether the government committed
misconduct before the grand jury, in pretrial discovery, or during trial; (4) whether the district
court’s limitations on cross examination of government witnesses curtailed his confrontation
rights; and (5) whether the district court reversibly erred in instructing the jury on the charged
offenses. 2
On March 18, 2024, the defendant filed the instant Motion requesting that he be released
from prison pending the appeal. See ECF No. 478. In his Motion, the defendant attached his
opening brief filed with the First Circuit, which contains the issues he contests, while also positing
that he is not a flight risk were the Court to order his release pending appeal (Appellant’s Brief,
Mot. Ex. 1). According to records from the Bureau of Prisons, the defendant is scheduled to be
released from imprisonment on July 29, 2026.
2
The defendant’s opening brief tendered to the First Circuit Court of Appeals in late January 2024,
which he attached to the Motion as an exhibit, has not been accepted for filing due to overlength
(Order, Jan. 20, 2024, 23-1692). Further, the First Circuit ordered the defendant to file a
confirming brief by February 6, 2024, and rejected, without prejudice, as moot his requests to file
an overlength brief. The defendant did not comply with that order, and, to date, he has failed to
file a conforming brief while his requests for leave to file a non-conforming brief have not been
granted.
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III.
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Legal Argument
“The provisions of 18 U.S.C. § 3143 govern release pending sentencing or appeal.” Fed.
R. Crim. P. 46(c). Congress enacted this provision to “reverse the presumption in favor of bail
that had been established under the prior statute.” United States v. Miller, 753 F.2d 19, 22 (3d
Cir. 1985). Pursuant to section 3143, however, “it is presumed that an individual convicted of an
offense and sentenced to a term of imprisonment ... will be detained pending appeal.” United
States v. Vázquez-Botet, Case No. 04-160, 2007 U.S. Dist. LEXIS 7084, at *4, 2007 WL 316438
(D.P.R. Jan. 30, 2007) (Fusté, J.) (citing United States v. Colón-Muñoz, 292 F.3d 18, 20 (1st Cir.
2002)).
To warrant bail pending appeal, the defendant must demonstrate (among other things) that
the appeal “raises a substantial question of law or fact likely to result in . . . reversal, . . . an order
for a new trial, . . . a sentence that does not include a term of imprisonment, or . . . a reduced
sentence to a term of imprisonment less than the total of the time already served plus the expected
duration of the appeal process.” 18 U.S.C. § 3143(b)(1)(B) (emphasis added). A “substantial
question” is one that is “close” in the sense that it “very well could be decided the other way.”
United States v. Bayko, 774 F.2d 516, 523 (1st Cir. 1985); United States v. Zimny, 857 F.3d 97,
100 (1st Cir. 2017). Questions are not “substantial” simply because they are “novel,” not the
subject of “controlling precedent,” “undecided,” or “fairly debatable.” Bayko, 774 F.2d at 522-23.
So too, the mere “possibility of reversal” does not warrant bail pending appeal. Id. at 523.
Failure to satisfy the third prong of the 18 U.S.C. § 3143(b) analysis negates the need to
address risk of flight or alleged attempts to delay. Judicial restraint requires that this Court resolve
only those issues that are dispositive to a dispute. See United States v. Ortiz-Carrasco, 863 F.3d
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1, 4 (1st Cir. 2017) (“[J]udges – unlike academicians – are not at liberty to scratch every intellectual
itch.”); Valley Forge Ins. Co. v. Health Care Mgmt. Ptnrs, LTD., 616 F.3d 1086, 1094 (10th Cir.
2010) (“Judicial restraint, after all, usually means answering only the questions we must, not those
we can.”) (citing PDK Labs., Inc. v. DEA, 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J.,
concurring in part and concurring in the judgment) (“If it is not necessary to decide more, it is
necessary not to decide more.”)); see e.g., Magee v. Harshbarger, 16 F.3d 469, 472 (1st Cir.
1994) (“Because the cause and prejudice requirement is conjunctive, we need not consider the
latter element where the former has not been satisfied.”).
Indeed, courts in this jurisdiction frequently adjudicate motions for bail pending appeal
without addressing the first requirement of section 3143(b). See United States v. McDonough,
2011 U.S. App. LEXIS 26656, at *2 (1st Cir. Nov. 14, 2011) (denying a motion for bail pending
appeal solely because the appellant failed to satisfy the second requirement of section
3143); United States v. Stone, Case No. 10-167, 2012 U.S. Dist. LEXIS 63158, 2012 WL 1580764
(D. Me. May 4, 2012) (denying a motion for bail pending appeal, noting that “the Government
does not contend that Mr. Stone is likely to flee or that he poses a danger to the safety of others ...
and this Court therefore addresses only whether the appeal poses a substantial question of law or
fact under § 3142(b)(1)(B)”).
Moreover, when, as in this case, a defendant is convicted of multiple counts, he must
show that any “substantial question” that he might raise on appeal “is likely to result in reversal
or an order for a new trial of all counts on which imprisonment has been imposed.” Bayko, 774
F.2d at 722 (emphasis added). This is so because “[a]n argument that would produce a reversal
of fewer than all such counts would be insufficient in this context, because if one count imposing
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imprisonment survives, the reason for allowing bail pending appeal, that a defendant should not
be imprisoned under a legally erroneous sentence, disappears.” United States v. Powell, 761
F.2d 1227, 1233 (8th Cir. 1985) (en banc). Courts therefore have denied motions for a stay of
sentence pending appeal where a defendant has failed to raise a “substantial question” or
questions that would call into question all counts of conviction. See, e.g., Morison v. United
States, 486 U.S. 1306, 1306-07 (1988) (Rehnquist, C.J., sitting as Circuit Justice) (denying
application to remain free on bond pending appeal to the Supreme Court because the defendant
could not raise a substantial question as to all the counts of conviction, and citing Bayko,
774 F.2d at 522); United States v. Perholtz, 836 F.2d 554, 555 (D.C. Cir. 1987) (per curiam)
(denying release pending appeal under § 3143(b) where the movants failed to “‘raise a
substantial question’ likely to result in reversal of all counts for which appellants received prison
terms”).
IV.
Discussion
In the present case, none of the appellate issues presented by the defendant present the
Court with a “substantial question of law or fact that if determined favorably to defendant on appeal
would result in a reversal or new trial on all counts on which imprisonment has been imposed.”
See Bayko, 774 F.2d at 522, 3 and nearly all the issues raised involve recycled arguments that the
defendant has unsuccessfully endeavored to raise time and time again. None of the five issues
raised by the defendant pose a substantial question of law or fact. Moreover, even in the extremely
unlikely event that even were the defendant to prevail on one or other issues, it would not likely
T
The government notes that the defendant was remanded at verdict because of his failure to
abide by the Court’s orders. ECF No. 364.
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result in a re-trial or sentencing reduction for each count of conviction. Accordingly, the Court
should deny his motion.
A. Overwhelming evidence of the defendant’s guilt supported his convictions for
attempted extortion, transmitting a threat in interstate commerce with the intent to
extort, and destroying records in a federal investigation.
First, the defendant broadly argues that the government presented insufficient evidence to
support the defendant’s convictions for the three criminal counts contained in the Indictment. The
Court has considered and rejected the defendant’s identical argument in its Opinion and Order
denying the defendant’s post-trial Motion for a Judgment of Acquittal and Motion for a New Trial
on May 9, 2023. (See Op. and Order, May 9, 2023, ECF No. 418).
For Count One, the government provided overwhelming evidence through the testimony
of former government official Anthony Maceira of the defendant’s attempts to extort him through
the transmission of a secret Telegram message threatening to destroy him and members of the
gubernatorial administration that employed him. Maceira testified about his fear and fright,
concern for his reputation and the effects of the defendant’s actions, which encompassed a request
for a $300,000 payment in exchange for keeping other communications that Maceira viewed as
reputationally ruinous from public disclosure. (Trial Tr. at 106, Jan. 24, 2023, ECF No. 316) The
jury heard further evidence about the defendant’s month-long conduct to secure funds and action
of Maceira, including testimony about subsequent meetings at the Musa and Il Postino restaurants,
the recording and transcript of their meeting at Il Postino, and the defendant’s text messages to
Maceira over this period, all addressing the defendant’s requests for money and Maceira’s
assistance with government contracts that would financially benefit the defendant that evidenced
his extortionate intent.
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For Count Two, the government provided overwhelming evidence of the defendant’s
transmission of an interstate communication that contained a threat of reputational harm with the
intent to extort Maceira. In addition to much of the same evidence described infra for Count One,
the jury was presented with clear evidence of the June 20, 2019, Telegram message that the
defendant sent to Maceira, a message in which the defendant’s actual language contained a threat
that would “destroy” the lives of Maceira and his colleagues. Moreover, the jury was presented
with the defendant’s characterization that he was transmitting a threat to Maceira, as well as
multiple subsequent instances where the defendant demanded money and government contract
assistance as part of his extortionate conduct.
For Count Three, the government provided overwhelming evidence that the defendant
deleted Telegram messages exchanged with Maceira with the intent to obstruct or impede the
Federal Bureau of Investigation’s probe. The jury heard testimony from Maceira, who described
how the defendant had deleted his messages around the time that the defendant was being
interviewed by the FBI at his home on July 26, 2019, testimony from one of the agents at the
interview who described the defendant’s manipulation of his phone during the interview, and
observed the screenshot of the empty folder that previously contained the defendant’s prior
Telegram messages with Maceira.
The government provided overwhelming evidence supporting the three convictions for the
offenses charged in the Indictment that a rational jury could decide the defendant’s guilt. The
evidence adduced against the defendant was clear, unequivocal, and was compelling in its weight
and the totality of the evidence permitted the jury to find the defendant guilty beyond a reasonable
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doubt on each count. United States v. Miller, 589 F.2d 1117, 1137 (1st Cir. 1978). The defendant’s
sufficiency argument should be rejected.
B. There was no fatal variance with the allegations in the Indictment.
Next, the defendant argues that a fatal variance between the trial evidence and the
Indictment requires reversal. This argument recycles the same argument that he initially raised
during trial, which the Court rejected (Trial Tr. at 156:20, Jan. 27, 2023, ECF No. 371; Trial Tr. at
50:6, Jan. 31, 2023, ECF No. 372.)
The evidence presented at trial did not fatally vary the conduct alleged in the Indictment,
but rather tracked the Indictment’s allegations of the defendant’s involvement in the extortionate
scheme charged.
The defendant appears to argue that the government’s evidence of the
defendant’s indebtedness and interest in government contracts could have led the jury to be
considered as part of an extortionate request (Mot. Ex. at 51.) The defendant misstates or
misapprehends the facts. Evidence of his indebtedness and requests for assistance in securing the
renewal of government contracts that would ultimately serve as a financial windful for him did
not, in any credible form, vary from the Indictment’s allegations, let alone serve to create a material
variance that would prejudice the defendant. The trial evidence established that the defendant used
the existence of damaging Telegram correspondence, his ability to affect their public dissemination
– whether directly or through an intermediary – and the specter of reputational and financial harm
to Maceira and others in an attempt to secure hundreds of thousands of dollars. The evidence at
trial tracked these allegations closely and, accordingly, was not at a fatal variance with the
Indictment.
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C. The government did not engage in misconduct before the grand jury, in pretrial
discovery, or during trial.
Next, the defendant repeats his oft-raised allegations that the government engaged in
misconduct at various instances before the grand jury, discovery, or during trial. The defendant
allegations in this regard offer little more than the same arguments that the Court has characterized
as “frivolous”, “specious”, and “unfounded” (Order Den. Mot. to Dismiss at 22, June 16, 2022
(ECF No. 127); Op. and Order Den. Rule 29 and 33 Mot. at 22, May 9, 2023, (ECF. No. 418.))
Nothing in the defendant’s litany of allegations of misconduct, including allegations of perjury
and discovery violations, raise substantive questions of law or fact that are likely to result in
reversal or a new trial. Accordingly, the Court must reject the defendant’s repeated attempt to
thrust these baseless arguments before it on issues that have been exhaustively addressed and
previously rejected.
D. The defendant’s claim or prejudicial error in limiting his cross-examination of
government witnesses will not present a substantial question on appeal.
Next, the defendant continues to challenge with the Court’s rulings regarding his
examinations of the government witnesses. The defendant’s arguments must fail because he has
failed to raise a substantial question of law or fact concerning any limitations on his rights
warranting a reversal on appeal. The defendant asserts that the Court’s curtailment of his crossexamination of Special Agent Juan Carlos Lopez of the Federal Bureau of Investigation’s San Juan
Field Office about a call the FBI requested the defendant make on July 26, 2023, to Raul
Maldonado Nieves both deprived him from impeaching SA Lopez’s testimony and prevented him
from presenting affirmative, exculpatory evidence of the defendant’s innocence before the jury
(Mot. Ex. 1 at 117-18.) Central to his arguments, the defendant challenges the Court’s rulings
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sustaining hearsay and improper impeachment objections to his attempts on cross-examination to
introduce his own out-of-court statements but fails to identify anything in the trial record that
would have permitted the line of inquiry to which he believes he was improperly limited. Further,
the defendant posits that the government’s failure to call a specific witness to testify in its case-inchief deprived him of opportunity to examine that witness and to present the same evidence before
the jury, which the defendant badly asserts contained evidence “favorable to his defense” (Id. at
116.) That is, of course, not the standard. The Court’s ruling was correct and appropriate and, as
such, despite the defendant’s specious and illusory arguments about prejudicial error, will not
present any, let alone a substantial question of law or fact on appeal warranting reversal or retrial.
E. The Court did not reversibly err in instructing the jury on the charged offenses.
Finally, the defendant raises a host of challenges to the jury instructions presented to the
jury in this case. Among them, the defendant posits that the Court erred in its instructions for
Count One by failing to instruct the jury that ““[m]ere conversations, preparation or contemplation
to commit the offense, without more, cannot form the basis for a conviction for attempt” (Mot. Ex.
at 40-42.) The defendant also initially objected that the instructions for Count One permitted the
jury to impermissibly consider government contracts as being part of the extortionate scheme
based on a non-transferability theory, to which the Court noted it did not know how the government
would address the contracts in its closing but directed the defendant to object if the government’s
treatment in closing warranted further objection (Trial Tr. at 57, Feb. 1, 2023, ECF No. 382.) The
defendant did not object to the government’s characterization that the defendant stood to profit
from the contracts, nor did he renew any objection to the jury instruction (Trial Tr. at 98, Feb. 2,
2023, ECF No. 374.) The defendant also objected to the aiding-and-abetting instruction issued for
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Count One citing that attempted extortion required the completion of the substantive offense of
extortion (Trial Tr. at 33, 57, Feb. 1, 2023, ECF No. 382.) The defendant also requested that the
Court provide separate entries in the instruction for “attempted extortion” and “aiding-andabetting” for Count One, which the Court denied (Id. at 33.) For Counts One and Two, the
defendant argues the Court erred in failing to inform the jury that it needed to find the threat that
the defendant sent was “wrongful” (Id. at 33, 57.)
1. No reversible error exists regarding the jury instructions related to Count One
In Count One, the Court properly instructed the jury on the meaning of a “substantial step,”
providing it to be an “act in furtherance” and that it “must be something more than mere
preparation, but less than the last act necessary before the substantive crime is completed” (Trial
Tr. at 15, Feb. 1, 2023, ECF No. 382.) The defendant claims that the Court should have instructed
the jury that “mere conversation, preparation, or contemplation to commit the offense, without
more, cannot form the basis for a conviction of attempt,” (Def. Mot. Ex. 1 at 124) but the
defendant’s preference is legally incorrect. The defendant was charged with attempted extortion
and, as such, his communications to the putative victim of his demand for things of value—in this
case, $300,000—and the harm awaiting Maceira for non-compliance is the very focus of an
extortion scheme. Those communications, in this case, the threat and the subsequent meetings
and conversations between the defendant and Maceira, the victim, constitute substantial steps in
the commission of the crime. Accordingly, the district court was correct in denying the defendant’s
request.
The Court also properly permitted the jury to consider the government contracts as
property. As a threshold matter, the defendant forfeited his objection to the instruction because he
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did not comply with the Court’s direction to renew his objection following the closing arguments.
When he did not, the Court had every justification to believe that the defendant no longer objected
to the instruction. Regardless, the Court’s instruction was properly given. While the defendant
endeavors to focus on the Court’s attention on the transferability of the government contracts rather
than focus on the money the defendant was hoping to obtain through the renewal those contracts,
the defendant cites no case law requiring a court to instruct the jury on the “transferability” of
property under the Hobbs Act.
The Court also properly instructed the jury on Count One’s aiding-and-abetting instruction
and the defendant’s arguments about duplicity and the Court’s failing by refusing to provide
unanimity instruction are meritless. The Court correctly instructed the jury that it could find the
defendant guilty of attempted extortion or that he aided-and-abetted that offense. The defendant
has attempted to reframe this legally inaccurate argument on numerous occasions previously and
his attempts are equally unavailing here. The First Circuit has held aiding and abetting to be “an
alternative charge in every count, whether explicit or implicit.” United States v. Diaz-Rodriguez,
853 F.3d 110, 116 (1st Cir. 2000) (outlining the requirements for proving aiding-and-abetting an
attempt to import marijuana charge). Further, the defendant cites no authority requiring a district
court to issue a specific unanimity instruction in the instance, as here, where a jury is instructed on
alternative theories of liability.
2. No reversible error exists with respect to the jury instructions related to Count
Two
Although unclear, the defendant appears to briefly argue that the Court erred by failing to
instruct the jury on “wrongfulness” when defining the “intent to extort” regarding the interstate
extortion allegation in Count Two (Def. Mot. Ex. 1 at 16-17.) The defendant’s argument should
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be rejected. Other courts have held that the interstate extortion statute incorporates the basic
concept of extortion, which includes an element of wrongfulness, and that the reputational harm
threatened in an extortionate interstate communication is wrongful when the threatener seeks
money or property to which he “does not have, and cannot reasonably believe [he] has, a claim of
right, or where the threat has no nexus to a plausible claim of right.” United States v. Jackson, 180
F.3d 55, 71 (2d Cir. 1999); accord United States v. Coss, 677 F.3d 278, 287-88 (6th Cir. 2012).
At trial, the defendant did not raise or contest that he had any claim of right to the $300,000 and
other aspects he was seeking from Maceira or that the release of the Telegram chat messages whose
release he was using was related to a reasonable claim of right. The trial record established through
the introduction of overwhelming evidence that the defendant knew that he nor Maldonado Nieves,
who by his own admission, did not have a legitimate claim to the property. In their first meeting
at Musa, the defendant apologized for passing along what he personally characterized as
Maldonado Nieves’s threat. Later at Il Postino, the defendant acknowledged the $300,000
payment sought under the specter of releasing the chats was extortionate (Trial Tr. at 31-33, 85,
Jan. 25, 2023, ECF No. 319.) Moreover, the defendant’s communications about the scheme, secret
Telegram messages, furtively conducted meetings, and then the deletion of his own
communications with Maceira when discovered, all overwhelmingly demonstrated that the
defendant knew he had no legitimate interest in the property.
Moreover, the jury’s conviction on Count One confirms that the omission of the
wrongfulness instruction on Count Two did not affect the verdict. The jury was instructed on the
defendant’s “wrongful use of actual or threatened fear” in Count One and it would have made the
same finding as to Count Two if so instructed (Jury Instruction No.11, at 17, ECF No. 355.)
14
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Finally, the defendant argues that the Court erred in refusing to instruct the jury to disregard
language in the Indictment that incorporates prior factual allegations by reference with respect to
Count Three. The defendant’s argument is meritless and, further, was considered and rejected by
the Court before trial (Opinion and Or. at 14, Jan. 10, 2023, ECF No. 269.) It should similarly be
rejected here. The Indictment’s second and third counts did not charge him with attempt to violate
the interstate extortion statute or the destruction of documents statute, and the incorporation of
prior factual allegations related to Count One’s attempted extortion violation do not serve to
convert the latter two counts into criminal attempts. The Court properly instructed the jury on the
elements of the completed crimes in Counts Two and Three and did not permit or instruct the jury
to find the defendant guilty of either on an attempt theory.
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CONCLUSION
The defendant’s appeal does not present a substantial question of law, or that his appeal is
likely to result in reversal. Because the defendant has not satisfied the second prong of 18 U.S.C.
§3143(b), there is no need to consider the other factors he cites justifying his release pending
appeal, but regardless, he has failed to establish that substantive questions of law or fact would
impact all counts of conviction. Based on the foregoing, the United States respectfully requests
that the Court deny the defendant’s request for bail pending appeal.
DATE: This 1st day of April 2024
Respectfully submitted,
W. STEPHEN MULDROW
United States Attorney
COREY R. AMUNDSON
Chief, Public Integrity Section
s/Myriam Y. Fernandez-Gonzalez
Myriam Y. Fernandez-Gonzalez - 218011
Assistant U.S. Attorney
Torre Chardón, Suite 1201
350 Carlos Chardón Street
San Juan, Puerto Rico 00918
Telephone (787) 766-5656
Myriam.Y.Fernandez@usdoj.gov
s/Michael N. Lang
Michael N. Lang
Trial Attorney
Public Integrity Section, Criminal Division
1301 New York Ave. NW, 10th Floor
Washington, D.C. 20530
Telephone (202) 514-1412
Michael.Lang@usdoj.gov
16
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CERTIFICATE OF SERVICE
I hereby certify that on this date, I electronically filed the foregoing pleading with the Clerk
of the Court using the CM/ECF system, which will send notification of such filing to the attorney
of record for the defendant.
Dated: April 1, 2024
/s/ Michael N. Lang
Michael N. Lang
Trial Attorney
046
Case 3:21-cr-00017-FAB Document 482 Filed 04/09/24 Page 1 of 20
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
UNITED STATES OF AMERICA,
Plaintiff,
v.
Criminal No. 21-017 (FAB)
SIXTO JORGE DÍAZ-COLÓN,
Defendant.
OPINION AND ORDER
BESOSA, District Judge.
Before
the
Court
is
defendant
Sixto
(“Díaz”)’s motion for bail pending appeal.
Jorge
Díaz-Colón
(Docket No. 478.)
For
the reasons set forth below, Díaz’s motion is DENIED.
I.
Introduction
A grand jury returned a three-count indictment on January 26,
2021, charging Díaz with attempted extortion in violation of 18
U.S.C. sections 1951 and 2 (count one), interstate extortion in
violation of 18 U.S.C. sections 875(d) and 2 (count two), and
destruction of records in a federal investigation in violation of
18
U.S.C.
section 1519
(count
three).
(Docket
No.
1.)
On
February 3, 2023, the jury found Díaz guilty of every count of the
indictment.
(Docket No. 365.)
Immediately after return of the
verdict, the Court remanded Díaz to the custody of the Bureau of
Prisons.
(Docket No. 364.)
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Criminal No. 21-017 (FAB)
2
Díaz subsequently received a 51-month term of imprisonment as
to counts one and three, and a 24-month term of imprisonment as to
count two, to be served concurrently with each other.
No. 459.)
(Docket
On August 8, 2023, Díaz filed a notice of appeal.
(Docket No. 463.)
Seven months later, he then moved for bail
pending appeal on March 18, 2024, citing six “issues that are
expected to result in a reversal, a new trial, or acquittal on
appeal.”
(Docket No. 478 at p. 22.)
The United States responded,
contending that Díaz “recycled” arguments repeatedly rejected by
this Court.
II.
(Docket No. 480 at p. 6.)
Section 3143 of the Bail Reform Act
“The provisions of 18 U.S.C. § 3143 govern release pending
sentencing or appeal.”
Fed. R. Crim. P. 46(c).
Congress enacted
this provision to “reverse the presumption in favor of bail that
had been established under the prior statute.”
Miller, 753 F.2d 19, 22 (3d Cir. 1985).
United States v.
Pursuant to section 3143,
“it is presumed that an individual convicted of an offense and
sentenced to a term of imprisonment . . . will be detained pending
appeal.”
United States v. Vázquez-Botet, No. 04-160, 2007 U.S.
Dist. LEXIS 7084, at *4 (D.P.R. Jan. 30, 2007) (Fusté, J.) (citing
United States v. Colón-Muñoz, 292 F.3d 18, 20 (1st Cir. 2002)).
To prevail, Díaz must establish by clear and convincing evidence
that:
(1) he is “not likely to flee or pose a danger to the safety
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Criminal No. 21-017 (FAB)
3
of any other person or the community if released,” (2) that his
“appeal is not for the purpose of delay,” and (3) that the appeal
“raises
a
substantial
question
of
law
or
fact.”
18
U.S.C.
§ 3143(b)(1); see United States v. Colón-Berríos, 791 F.2d 211,
214 n.4 (1st Cir. 1986) (“In enacting § 3143, Congress placed the
burden as to all elements bearing on whether to grant bail pending
appeal on defendants.”).
The Court will focus only on whether
Díaz’s motion raises a substantial question of law or fact. That
issue is dispositive here to decide whether or not to grant bail
on appeal.
United States v. Ortiz-Carrasco, 863 F.3d 1, 4 (1st
Cir. 2017)
Courts engage in a two-pronged analysis to determine whether
an appeal presents a substantial question of law.
v. Zimny, 857 F.3d 97, 99 (1st Cir. 2017).
United States
First, the appeal must
present “a close question or one that very well could be decided
the other way.”
Id. at 100 (citing United States v. Bayko, 774
F.2d 516, 523 (1st Cir. 1985)); see Colón-Muñoz, 292 F.3d at 20
(“The ‘likely to result’ standard is applied flexibly – a question
that can be regarded as ‘close’ will suffice.”).
Second, courts
consider the “likelihood prong,” inquiring whether a favorable
disposition will “result in reversal or an order for a new trial
of all counts on which imprisonment has been imposed.”
Id.
Moreover,
or
the
purported
error
“must
not
be
harmless
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Criminal No. 21-017 (FAB)
unprejudicial.”
4
Bayko, 774 F.2d at 523; see, e.g., United States
v. Gurry, Case No. 16-10343, 2020 U.S. Dist. LEXIS 38273, at *31
(D. Mass. Mar, 5, 2020) (“Even if the appellate court were to find
that some witness testimony was admitted in error or were to agree
with the Court that the Government’s statements in its closing
rebuttal were improper, it is unlikely that those decisions would
result in an acquittal, new trial, or a reduced sentence given the
weight of the evidence involved in this case.”).
III. Discussion
As a preliminary matter, Díaz misconstrues the law.
He cites
United States v. Provenzano, 605 F.2d 85, 87 (3rd Cir. 1979) for
the proposition that “one convicted of a crime shall be entitled
to bail while appealing his conviction, unless no set of conditions
upon release will reasonably assure that he will not flee or pose
a danger to the community.”
(Docket No. 478 at p. 16.)
This
citation quotes the Bail Reform Act of 1966 verbatim, a vestige
from
a
displaced
legal
regime.
Pursuant
to
this
statute,
“convicted defendants were presumptively entitled to the same
opportunity for release on bail as defendants who had not already
been convicted.”
Colón-Berríos, 791 F.2d at 214 n.4.
That is no
longer good law.
Congress subsequently enacted the Bail Reform Act of 1984,
however, reversing the presumption in favor of bail pending appeal.
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Criminal No. 21-017 (FAB)
5
Id. at 214 (“Congress intended § 1342(b) [of the current statute]
to result in a presumption against release of convicted defendants
pending appeal.”); Colón-Muñoz, 292 F.3d at 20 (“Under the Bail
Reform Act of 1984, there is no presumption in favor of release
pending appeal; on the contrary, even when the conviction does not
involve a crime of violence or drug offense, detention (following
conviction
and
sentencing)
is
mandatory
unless
the
judicial
officer finds inter alia [that the appeal] raises a substantial
question of law”); see United States v. Santos, 65 F. Supp. 2d
802, 807-08 (N.D. Ill. 1999) (“The Bail Reform Act of 1984, 18
U.S.C. § 3143(b), governs the issue of release pending appeal [and
was] [e]nacted largely to reverse the presumption in favor of bail
under the Bail Reform Act of 1966.”).
United States v. Ortiz-
Carrasco, 863 F.3d 1, 4 (1st Cir. 2017) Díaz’s reliance on an
obsolete opinion issued in 1979 by the Third Circuit Court of
Appeals
only
accentuates
the
deficiencies
in
his
motion,
particularly when authoritative precedent from the First Circuit
itself sets forth the applicable legal standard.
Díaz argues that six substantial questions of law will likely
result in a reversal, new trial, or acquittal on appeal.
No. 478 at p. 21.)
(Docket
First, Díaz alleges that the Court erred in
denying his Rule 29 motion because the United States failed to
prove “every element of the offenses charged in the indictment.”
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Criminal No. 21-017 (FAB)
Id.
Second,
Díaz
6
claims
that
the
United
States
misconduct before the grand jury and at trial.
Id.
engaged
in
Third, Díaz
alleges that the Court erred in refusing to dismiss the indictment
in the interests of justice.
Id. at pp. 21-22.
Fourth, Díaz
argues that the Court prevented him from confronting his accusers
in violation of the Sixth Amendment.
Id. at p. 22.
Fifth, the
Court allegedly erred in denying Díaz’s motion for a mistrial,
allowing “a prejudicial variance between the evidence presented at
trial and the charges of the indictment.”
asserts
that
the
Court
“abused
erroneous jury instructions.”
its
Id.
Id.
discretion
Finally, Díaz
in
imparting
As discussed below, Díaz’s
arguments do not constitute substantial questions of law, and do
not merit granting bail on appeal.
A.
The Rule 29 Argument
The Court denied Díaz’s motion for judgment of acquittal
in a comprehensive Opinion and Order.
See United States v. Díaz-
Colón, Case No. 21-017, 2023 U.S. Dist. LEXIS 82031 (D.P.R. May 9,
2023) (Besosa, J.).
This disposition addressed the same arguments
presented by Díaz on appeal.
For example, Díaz contended that the
record
that
“lacks
conversation
any
with
Rule 29 motion.
evidence
CHS
[Anthony
[he]
Maceira
went
beyond
one
(“Maceira”)]”
(Docket No. 384 at p. 42.)
in
mere
his
His appellate brief
posits that “mere conversations, without more, do not suffice to
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Criminal No. 21-017 (FAB)
establish said offense.”
7
Brief for Appellant at 44, United States
v. Díaz-Colón (No. 23-1692).
This Court held, however, that Díaz
proffers an “incomplete rendition of the evidence presented at
trial.”
Díaz-Colón, 2023 U.S. Dist. LEXIS 82031, at *16.
Courts
and jurors “consider the evidence as a whole,” not in isolated
incidents without context or the benefit of commonsense.
United
States v. Pina-Nieves, 59 F.4th 9, 15 (1st Cir. 2023).
Anthony Maceira served as the Executive Director of the
Puerto Rico Ports Authority and the Secretary of Public Affairs
during the administration of former Puerto Rico Governor Ricardo
A. Rosselló (“Rosselló”).
(Docket No. 316 at pp. 66-67.)
He
testified during the United States’ case-in-chief, informing the
jury that Díaz demanded, inter alia, $300,000.00 to prevent the
publication of certain “chats” contained in Telegram messages
between members of the
Rosselló
administration.
Id.
These
messages included disparaging and profanity-laced conversations
involving former Governor Rosselló and his associates.
(Docket
No. 1 at p. 3.)
On July 8, 2019, the first excerpt of the Telegram chats
appeared in the public domain.
(Docket No. 319 at p. 138.)
On
the following day, the press released a second set of chats.
Id.
at pp. 144-45.
On July 13, 2019, the entire “889 pages of the
Telegram chats [was] released.”
Id. at p. 149.
This publication
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Criminal No. 21-017 (FAB)
8
resulted in “total chaos” on the island, Id. at p. 150, but did
not deter Díaz from demanding the $300,000.
The next day, July 14, 2019, Díaz sent Maceira “another secret
message . . . to see if he had a way to help.”
Id. at p. 155.
On
July 16, 2019, Díaz and Maceira met at Il Postino, a restaurant in
Miramar, Puerto Rico.
Id. at p. 165.
leaked and was already public.
The 889-page chat had been
But Díaz informed Maceira that
Maldonado-Nieves possessed [and which Díaz himself had in his
possession] “[a]dditional chats that could be scandals.”
No. 319 at p. 44.)
(Docket
These chats were “not in the 889 pages”
previously released to the public.
Id. at p. 49.
Maldonado-
Nieves withheld the additional chats to “make everyone shit their
pants,”
implementing
a
administration] scared.”
“strategy
to
keep
Id. at p. 50.
the
[Rosselló
Maceira asked Díaz
directly, “[how] the hell can we guarantee that [the additional
chats don’t] come out?”
(Docket No. 319 at p. 54.) Díaz continued
to demand “300,000 cash or check,” payable to a corporation owned
by “someone of trust.”
and
additional
Id. at pp. 58 and 86-87.
testimony
elicited
at
trial
This evidence
proved
that
Díaz
committed extortion, a conclusion drawn by the jury after a tenday trial.
Moreover, Díaz’s Rule 29 motion and appellate brief argue
that certain Collective Impact and Social Consulting “contracts
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Criminal No. 21-017 (FAB)
9
could not be transferred, thus negating any Hobbs Act criminal
violation.”
44.)
(Brief for Appellant at 106; Docket No. 382 at p.
Maceira testified at trial that “[Díaz] needed assistance
with getting [two contracts] renewed.”
(Docket No. 319 at p. 68.)
The “Collective Impact” and “Social Consulting” corporations had
hired Díaz as a consultant for a “monthly retainer of $4,000.”
Id. at pp. 70, 107, and 121.
These corporations entered into
service agreements with the Puerto Rico government.
328 at p. 62.)
(Docket No.
Secretary of Treasury Francisco Parés suspended
these contracts, however, requiring Díaz and his associates to
“present a report explaining why the hell that . . . shit was
needed.”
(Docket No. 319 at p. 69.)
Díaz also demanded that
Maceira “use [his] position as Secretary of Public Affairs to
intervene with the Secretary of Treasury to ensure that [Parés]
would
pay
[pending]
invoices”
(Docket No. 316 at p. 170.)
related
to
the
two
contracts.
In exchange for Maceira’s assistance,
Díaz pledged to “raise [his] public image.”
(Docket No. 319 at p.
107.)
According to Díaz, count one of the indictment “should be set
aside” because Maceira testified that the “Social Consulting and
Collective Impact contracts were not transferable.”
(Docket No.
382 at p. 44.)
In Skehar v. United States, the Supreme Court held
that
subject
property
to
a
Hobbs
Act
prosecution
must
“be
055
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Criminal No. 21-017 (FAB)
10
transferable – that is, capable of passing from one person to
another.”
570 U.S. 729, 734 (2013).
The Court need not, however,
determine whether the Social Consulting and Collective Impact
contracts are properties for purposes of the Hobbs Act because
Díaz repeatedly demanded that Maceira pay $300,000 to prevent the
release of Telegram messages in addition to the 889 pages that had
already been leaked and were public.
120.
See Docket No. 316 at p.
It is beyond peradventure that United States currency is
transferable.
See United States v. Buffis, 867 F.3d 230, 234 (1st
Cir. 2017) (affirming a Hobbs Act extortion conviction in part
because the defendant “received a payment that he was not entitled
to collect; the four-thousand dollar check, which he deposited
into his own personal slush-fund.”).
Because Díaz’s Rule 29
arguments
questions
fail
to
raise
substantial
of
law,
the
presumption of detention pending appeal remains intact.
B. Allegations of Government Misconduct
On appeal, Díaz maintains that the United States failed
to disclose an audible recording of the June 21, 2019 meeting
between himself and Maceira at Musa, a restaurant in Santurce,
Puerto Rico. Brief for Appellant at 103.
This allegation is
premised on the existence of an enhanced recording, an audio file
with better sound quality than the evidence disclosed to Díaz in
discovery, and adduced at trial.
According to Díaz, the United
056
Case 3:21-cr-00017-FAB Document 482 Filed 04/09/24 Page 11 of 20
Criminal No. 21-017 (FAB)
11
States sent an “e-mail stating that the Recording [of the meeting
at Musa] is inaudible.”
(Docket No. 384 at p. 56.)
Díaz again
mischaracterizes this email. The e-mail merely states that “no
enhancement [of this recording] was made,” not that the recording
is inaudible.1
(Docket No. 384, Ex. 1 at p. 181.)
Accordingly,
this allegation of prosecutorial misconduct is frivolous and has
no basis in fact.
In any event, Díaz concedes in his appellate brief that the
misconduct
allegations
are
based
on
pure
speculation.
He
acknowledges that he is “not aware if [the government technician]”
did, indeed, “[make] an enhancement of the Musa recording.”
Id.
As the Court has stated on multiple occasions, there is not a
scintilla of evidence to suggest that the United States engaged in
misconduct.
Díaz continues, however, to pursue this claim without
compunction.
C. The Alleged Sixth Amendment Violations
Díaz argues that the Court improperly restricted his right
to cross-examine Federal Bureau of Investigation Special Agent
Juan
Carlos
López-Velázquez
Appellant at pp. 112-122.
and
Anthony
Maceira.
Brief
for
Defense counsel attempted to elicit
statements from a recorded conversation between Díaz and Rául
1
The jury was able to listen to the recording.
057
Case 3:21-cr-00017-FAB Document 482 Filed 04/09/24 Page 12 of 20
Criminal No. 21-017 (FAB)
Maldonado-Nieves.
12
Id. at 114.
States’ hearsay objection.
The Court sustained the United
Id. Defense counsel also attempted to
elicit testimony regarding irrelevant matters (e.g., Puerto Rico
law regarding recorded conversations).
Id.
Court
rulings
of
Appeals
reviews
“evidentiary
The First Circuit
for
abuse
of
discretion, affording the court considerable deference.”
Núñez-
Colón
2011)
v.
Toledo-Dávila,
648
F.3d
15,
21-22
(1st
Cir.
(citation omitted).
The Court did not abuse its discretion in
restricting
counsel
evidence.
defense
from
eliciting
this
inadmissible
Because Díaz’s evidentiary challenges fail to present
a substantial question of law, his motion for bail pending appeal
cannot rest on an alleged Sixth Amendment violation.
D. The Purported Variance
A
variance
occurs
when
“the
charging
terms
remain
unchanged, [but] the facts proved at trial are different from those
alleged in the indictment.”
36, 43 (1st Cir. 1993).
United States v. DeCicco, 439 F.3d
This error requires reversal only if “it
affects the defendant’s substantial rights, i.e., the right to
have knowledge of the charge sufficient to prepare an effective
defense and avoid surprise at trial, and the right to prevent a
second prosecution for the same offense.” United States v. Katana,
058
Case 3:21-cr-00017-FAB Document 482 Filed 04/09/24 Page 13 of 20
Criminal No. 21-017 (FAB)
13
93 F.4th 521 (1st Cir. 2024).2
Díaz asserts
that “[it] is
impossible to ascertain what evidence the jury relied on to convict
[him], but they received variant evidence of crimes/facts that
were not part of the indictment, that reasonably could have led to
it.”
Brief for Appellant at 131.
The
evidence
ascertainable.
Maceira
and
relied
on
by
the
jury
is
readily
The United States elicited testimony from Anthony
other
witnesses
demonstrating
that
Díaz
demanded
$300,000 to suppress the publication of Telegram chats, including
those additional to those already leaked, which were damaging to
the administration of then-Governor Ricardo Rosselló.
No evidence
proved more damaging than the following Telegram message from Díaz
himself:
Díaz conflates variance with the corollary concept of constructive amendment.
Brief for Appellant at 123. He cites United States v. Dubón-Otero, 292 F.3d 1,
4 (1st Cir. 2002), for the proposition that a variance is “[an] amendment of
the indictment [that] occurs when the charging terms of the indictment are
altered, either literally or in effect, by the prosecutor or the Court after
the grand jury has returned the indictment.” Id. This quotation sets forth
the definition a “constructive amendment.” Dubón-Otero, 292 F.3d at 4 (“A
constructive amendment occurs when the charging terms of the indictment are
altered, either literally or in effect, by prosecution or court after the grand
jury has passed upon them.”). The First Circuit Court of Appeals has noted
that litigants are often “uncertain[]” in “identifying the dividing line between
a constructive amendment and a prejudicial variance.” Katana, 93 F.4th 521.
2
059
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Criminal No. 21-017 (FAB)
14
Man, if Fortaleza doesn’t stop fucking with Raúl
Maldonado, RAÚL MALDONADO’S SON HAS STRONG EVIDENCE TO
FUCK THIS ADMINISTRATION STARTING WITH RICARDO ROSSELLÓ.
According to Raulie ‘son of RM,’ you and Fortaleza are
the ones who are behind this firepower against Raúl
Maldonado. I tell you brother, RAÚL’S SON IS GOING TO
DESTROY YOU ALL AT OTHER LEVELS. I don’t know what you
are going to do. But if they don’t stop THE POPULARES
ARE GOING TO BE IN POWER FOR 30 YEARS. STOP THIS. This
is crazy. I have a friend who is a close friend of RM’s
son, and they want to see me to deliver hard evidence to
me and other media. This administration is fucked. I
need to stop this.
(Docket No. 316 at pp. 66-67; see Trial Ex. 7-T.)
Maceira informed
the jury that these extortionate demands transpired in June and
July 2019, at meetings where Díaz presented the problem (i.e. the
son
of
a
disgruntled
government
official
in
possession
of
incendiary messages), and its solution (i.e. hush money, renewal
of
Díaz’s
government
contracts,
and
funds
to
purchase
media
coverage favorable to the Rosselló administration, all payable to
Díaz).
Díaz also argues that the Court erred by “[allowing] the
Government to present evidence regarding [his] multiple debts,
which would entail fraud and kickbacks, which supported other
criminal
offenses
not
Appellant at 131-32.
and
the
allegations
charged
in
the
indictment.”
Brief
for
This argument disregards the trial evidence
in
the
indictment,
which
demonstrates
extortion, as charged in the indictment.
060
Case 3:21-cr-00017-FAB Document 482 Filed 04/09/24 Page 15 of 20
Criminal No. 21-017 (FAB)
15
1. The Indictment
This criminal action concerned an alleged attempt to extort
an official within the Rosselló administration.
The Spanish
Broadcasting System, Inc. employed Díaz in an unspecified capacity
“until on or about July 18, 2019.”
(Docket No. 1 at p. 1.)
He
purportedly served as a conduit between Raúl Maldonado-Nieves
(“Maldonado-Nieves,” or “Raúlie”) and Anthony Maceira.
1-3.
Id. at pp.
Maldonado-Nieves is a former government subcontractor and
the son of Raúl Maldonado-Gautier (“Maldonado-Gautier”), a former
Secretary of Treasury during the Rosselló administration.
Id. at
p. 1.
On February 3, 2019, Maldonado-Nieves and Díaz met at the
latter’s
apartment
to
discuss
Telegram
messages
“incriminating information about” the governor.
p. 2.)
containing
(Docket No. 1 at
At this meeting, Maldonado-Nieves showed Díaz a binder
containing copies of the Telegram messages. Id. Four months after
this meeting, Díaz texted Maceira the following message:
Dude, if Fortaleza doesn’t stop messing with [MaldonadoGautier], [Maldonado-Nieves] has overwhelming evidence
to fuck this Administration starting with [Governor
Rosselló]. According to [Maldonado-Nieves], it is you
and Fortaleza behind the attack against [MaldonadoGautier].
Id. at pp. 2—3.
061
Case 3:21-cr-00017-FAB Document 482 Filed 04/09/24 Page 16 of 20
Criminal No. 21-017 (FAB)
16
Díaz met with Maceira on June 21, 2019, at a restaurant in
San Juan.
“had
a
Id. at p. 3.
binder
full
He informed Maceira that Maldonado-Nieves
of
Telegram
messages
[Rosselló]” and his political party.
that
would
Id. at p. 3.
destroy
Díaz also
“asked [Maceira] to help him with several government contracts
through which he received compensation.”
Id.
Media outlets published the Telegram messages on July 8,
2019.
Id. at p. 3.
The indictment avers that Díaz then attempted
to “extort additional money from [Maceira] to prevent the release
of additional Telegram messages.”
Id.
On July 16, 2019, Díaz met with Maceira.
Díaz
revealed
“possessed
during
Telegram
this
meeting
messages
that
that:
had
(1)
not
Id. at p. 4.
Maldonado-Nieves
yet
been
released
publicly,” (2) Maldonado-Nieves obtained the messages from his
father’s
cellphone,
(3)
the
unreleased
messages
“contained
damaging information” about Governor Rosselló and Maceira, (4)
Maldonado-Nieves
releasing
these
“intended
Telegram
to
‘burn
messages
approximately $300,000,” and (5)
down
Puerto
unless
[he]
Rico,’
by
received
Díaz offered to accept this
payment “through a corporation that [he] owned and did not have
any contracts with the government.”
Id.
In addition to the demand
for $300,000, Díaz attempted to extort a “talent” fee, payment for
favorable commentary about the administration and the governor by
062
Case 3:21-cr-00017-FAB Document 482 Filed 04/09/24 Page 17 of 20
Criminal No. 21-017 (FAB)
17
“other well-known individuals” in the media.
Id. at p. 4.
Lastly,
Díaz requested the reinstatement of his government contracts with
the Puerto Rico Department of Treasury and the Puerto Rico Office
of Management and Budget.
Id.
financial benefit.
In fact, Díaz later sent Maceira a
Id.
These contracts inured to Díaz’s
Telegram message to identify the relevant companies with expired
government contracts.
Id.
Ultimately, Díaz attempted to obtain
on behalf of Maldonado-Nieves and himself: (1) $300,000 in hush
money, (2) a talent fee, and (3) the reinstatement of certain
government
contracts
administration.
that
Díaz
previously
had
Maceira declined Díaz’s offer.
with
Id.
FBI agents contacted Díaz on July 26, 2019.
107.)
After
this
meeting,
he
purportedly
Rosselló
(Docket No.
“deleted
Telegram
messages [between Maceira and him] containing information about
his involvement in the scheme, before surrendering his cellular
phone to the authorities.”
(Docket No. 107 at p. 2.)
2. The Trial Evidence
The evidence presented at trial tracked the allegations
set forth in the indictment. Maceira testified that Díaz demanded
$300,000
to
prevent
the
publication
of
the
damaging
chats,
substantiating the extortion allegations in counts one and two.
Evidence of Díaz’s financial hardship and association with the
Collective Impact and Social Consulting contracts is relevant to
063
Case 3:21-cr-00017-FAB Document 482 Filed 04/09/24 Page 18 of 20
Criminal No. 21-017 (FAB)
18
prove the offenses set forth in the indictment. The grand jury
alleged that
Díaz
“asked
[Maceira]
to help him with several
government contracts through which he received compensation.”
Id.
The admission of evidence regarding these “government contracts”
cannot sustain a reversal on grounds of a prejudicial variance
because this conduct was specifically alleged in the indictment.
Díaz
contends
that
the
United
States
“amended
the
indictment and presented evidence to support a different crime;
that [he] was to be the beneficiary of the $300.000, not Raulie.”
Brief for Appellant at 133.
The indictment and evidence presented
at trial are consistent, however, conveying identical theories of
criminal liability. The indictment explicitly identifies Díaz as
the intended beneficiary of the $300,000.
(Docket No. 1.)
Count
one alleges that “Díaz-Colón attempted to obtain property from
[Maceira], and others, with consent, induced by wrongful use of
fear.”
Id. at p. 5.
Similarly, count two avers that “Díaz-Colón
would facilitate the publishing of Telegram messages containing
damaging information about [Maceira] and others unless Díaz-Colón
received $300,000 and other things of value.”
Id. at p. 6.
The
trial evidence aligns with these allegations, establishing that
Díaz attempted to extort the $300,000 on his own behalf.
064
Case 3:21-cr-00017-FAB Document 482 Filed 04/09/24 Page 19 of 20
Criminal No. 21-017 (FAB)
19
E. The Jury Instructions
According to Díaz, the Court “erred by failing to instruct
the jury that mere conversations, or contemplation to commit the
offense, without more, cannot form the basis for a conviction for
attempt, in addition to the fact that the contracts in question
were non-transferable.” Brief for Appellant at 143. He sets forth
no analysis regarding this argument.
“A party may not merely
mention a possible argument in the most skeletal way, leaving the
Court to do counsel’s work, create the ossature for the argument,
and put flesh on its bones.”
1, 17 (1st Cir. 1990).
United States v. Zannino, 895 F.2d
Accordingly, Díaz’s argument regarding the
jury instructions is waived and unavailing.
Failure to satisfy the third prong of the section 3143(b)
analysis negates the need to address risk of flight or alleged
attempts to delay.
Judicial restraint compels this Court to
resolve only those issues that are dispositive to a dispute.
See
Ortiz-Carrasco, 863 F.3d at 4 (“[J]udges – unlike academicians –
are not at liberty to scratch every intellectual itch.”); Valley
Forge Ins. Co. v. Health Care Mgmt. Ptnrs, LTD., 616 F.3d 1086,
1094 (10th Cir. 2010) (“Judicial restraint, after all, usually
means answering only the questions we must, not those we can.”)
(citing PDK Labs., Inc. v. DEA, 362 F.3d 786, 799 (D.C. Cir. 2004)
(Roberts, J., concurring in part and concurring in the judgment)
065
Case 3:21-cr-00017-FAB Document 482 Filed 04/09/24 Page 20 of 20
Criminal No. 21-017 (FAB)
20
(“If it is not necessary to decide more, it is necessary not to
decide more.”)); see e.g., Magee v. Harshbarger, 16 F.3d 469, 472
(1st Cir. 1994) (“Because the cause and prejudice requirement is
conjunctive, we need not consider the latter element where the
former has not been satisfied.”).
Accordingly, the Court need
not determine whether Díaz poses a danger to the safety of others
or is likely to flee.
IV.
Conclusion
For the reasons set forth above, Díaz’s motion for bail
pending appeal is DENIED.
(Docket No. 478.)
IT IS SO ORDERED.
San Juan, Puerto Rico, April 9, 2024.
s/ Francisco A. Besosa
FRANCISCO A. BESOSA
SENIOR UNITED STATES DISTRICT JUDGE
066
Case 3:21-cr-00017-FAB Document 483 Filed 04/10/24 Page 1 of 2
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
UNITED STATES OF AMERICA
CRIM. NO. 21-017 (FAB)
Plaintiff
Vs.
SIXTO JORGE DIAZ-COLON
Defendant
NOTICE OF APPEAL
TO THE HONORABLE COURT:
Notice is given that the above-named defendant Sixto Jorge Diaz Colon hereby appeals
to the United States Court of Appeals for the First Circuit from the Opinion and Order entered
on 04/09/2024 (Docket 482), denying him bail on appeal.
WHEREFORE, it is respectfully requested from this Honorable Court that the appeal
herein BE NOTED.
RESPECTFULLY SUBMITTED.
I hereby certify that on this same date, I electronically filed the foregoing with the Clerk
of the Court using the CM/ECF system which will send notification of such filing to all parties
involved.
067
Case 3:21-cr-00017-FAB Document 483 Filed 04/10/24 Page 2 of 2
2
In San Juan, Puerto Rico, this 10th day of April 2024.
S/ Rafael F. Castro Lang
RAFAEL F. CASTRO LANG
USDC-PR#128505
Attorney for Defendant
P O Box 9023222
San Juan PR 00902-3222
Tel (787) 723-3672 / (787) 723-1809
Fax (787) 725-4133
Email:rafacastrolang@gmail.com;
rafacastrolanglaw@gmail.com
068
Case: 24-1409
Document: 00118136312
Page: 1
Date Filed: 04/24/2024
Entry ID: 6637907
No. 24-1409
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
UNITED STATES,
Appellee
vs.
SIXTO JORGE DIAZ-COLON
Defendant- Appellant
___________________
MOTION FOR CONSOLIDATION OF APPEALS
HEREIN appears appellant Sixto Jorge Diaz Colon through his Court
appointed counsel and most respectfully prays and requests:
1-
Appeals no. 23-1692 and 24-1409 should be consolidated because the
grounds that justify granting Diaz-Colon bail pending appeal can be found in the
Brief filed in appeal no. 23-1692, that is the conviction for which bail pending
resolution of the appeal is being sought herein.
2-
The consolidation will conserve judicial resources since it will make it
unnecessary to file duplicate filings of the merits of the request for bail pending
appeal and simplify the Court’s analysis of the same.
069
Case: 24-1409
Document: 00118136312
Page: 2
Date Filed: 04/24/2024
Entry ID: 6637907
2
3-
There is nothing that prevents this Court granting bail on appeal
pending the final resolution of the same.
WHEREFORE it is respectfully requested that the Court consolidate
appeals no. 23-1692 and 24-1409 since the resolution of the same are intimately
intertwined and will conserve judicial time and resources.
RESPECTFULLY SUBMITTED.
I hereby certify that on this same date, I electronically filed the foregoing
with the Clerk of the Court using the CM/ECF system and that a copy of the above
has been notified to all parties in the attached Service List through their
correspondent method.
In San Juan, Puerto Rico, this 24th day of April 2024.
S/ Rafael F. Castro Lang
RAFAEL F. CASTRO LANG
Federal Circuit Bar #26074
Attorney for Appellant
P.O. Box 9023222
San Juan, P.R. 00902-3222
Tel:(787)723-3672 / (787)723-1809
Fax (787) 725-4133
Email: rafacastrolang@gmail.com;
rafacastrolanglaw@gmail.com
070
Case: 24-1409
Document: 00118136312
Page: 3
Date Filed: 04/24/2024
Entry ID: 6637907
3
Service List for Case: 24-1409 US v. Diaz-Colon
Contact Info
Case Number/s
Service Preference
ECF Filing Status
Mariana E. Bauza Almonte
US Attorney's Office
350 Carlos Chardon Ave
Torre Chardon, Ste 1201
San Juan, PR 00918-0000
Email: mariana.e.bauza@usdoj.gov
24-1409
Active
Rafael F. Castro Lang
Rafael F.Castro Lang Law Office
PO Box 9023222
San Juan, PR 00902-3222
Email: rafacastrolang@gmail.com
24-1409
Active
Sixto Jorge Diaz-Colon
FPC Pensacola
PO Box 3949
Pensacola, FL 32516
24-1409
US Mail
Myriam Yvette Fernandez-Gonzalez
US Attorney's Office
350 Carlos Chardon Ave
Torre Chardon, Ste 1201
San Juan, PR 00918-0000
Email: myriam.y.fernandez@usdoj.gov
24-1409
Active
Timothy R. Henwood
US Attorney's Office
350 Carlos Chardon Ave
Torre Chardon, Ste 1201
San Juan, PR 00918-0000
Email: timothy.henwood@usdoj.gov
24-1409
Active
Michael Nicholas Lang
US Dept of Justice
Criminal Division
Public Integrity Sec
1301 New York Ave, NW
Washington, DC 20530
Email: michael.lang@usdoj.gov
24-1409
US Mail
Oscar Jose Serrano Negron
Ste 1401
53 Palmeras St
San Juan, PR 00901-0000
Email: ojserrano@hotmail.com
24-1409
US Mail
071
Case: 24-1409
Document: 00118141916
Page: 1
Date Filed: 05/08/2024
Entry ID: 6641000
No. 24-1409
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
UNITED STATES,
Appellee
Vs.
SIXTO JORGE DIAZ-COLON
Defendant- Appellant
ON APPEAL FROM A JUDGMENT OF THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
APPELLANT’S BAIL ON APPEAL BRIEF
RAFAEL F. CASTRO LANG
Federal Circuit Bar #26074
Attorney for Appellant
P.O. Box 9023222
San Juan, P.R. 00902-3222
Tel:(787)723-3672 / (787)723-1809
Email: rafacastrolang@gmail.com;
rafacastrolanglaw@gmail.com;
072
Case: 24-1409
Document: 00118141916
Page: 2
Date Filed: 05/08/2024
Entry ID: 6641000
TABLE OF CONTENTS
INTRODUCTION .................................................................................................. 1-3
JURISDICTION ......................................................................................................... 4
STATEMENT OF ISSUES........................................................................................ 4
STATEMENT OF THE CASE .............................................................................4-12
STATEMENT OF FACTS.................................................................................. 12-22
SUMMARY OF ARGUMENT ......................................................................... 22-24
ARGUMENT ...................................................................................................... 25-50
A.
WHETHER THE DISTRICT COURT ERRED IN FINDING THAT
DIAZ-COLON DID NOT RAISE A SUBSTANTIAL QUESTION OF
LAW OR FACT LIKELY TO RESULT IN REVERSAL, AN
ORDER FOR NEW TRIAL, OR ACQUITTAL ON APPEAL?
CONCLUSION ...................................................................................................... 50
CERTIFICATE OF COMPLIANCE PURSUANT TO F.RA.P. 32(a)(7)............. 51
CERTIFICATE OF SERVICE .............................................................................. 52
ii
073
Case: 24-1409
Document: 00118141916
Page: 3
Date Filed: 05/08/2024
Entry ID: 6641000
TABLE OF AUTHORITIES
Alfonso-Reyes, 427 F.Supp.2d 44 (D.P.R. 2006)…………………………….……26
Brady v. Maryland………………………………………………………….……..36
Carbo v. United States, 82 s.ct. 662 (1962)………………………………….……28
Gomez v. United States, 490 U.S. 858 (1989)…………………………………....31
Lea, 360 F.3d 403………………………………………………………………….31
Mecan v. United States, 434 U.S. 1340 (1977)………………………………..….28
Miller, 753 F.2d at 23………………………………………………………….….27
Napue v. Illinois, 79 S.Ct. 1173 (1959)………………………………….………..36
Sekhar v. United States, 570 U.S. 729, 734 (2013)……………………….………34
United States v. Alvarez, 584 F.Supp. 791 (S.D. Fla. 1982)…………….………..29
United States v. Bayko, 774 F.2d 516, 523 (1st Cir. 1985)…………….……...25,27
United States v. Blyther, 407 F.2d 1279 (D.C. Cir. 1969)……………….….…….29
United States v. Bond, 329 F.Supp. 538 (D.C. Tenn. 1971)………………........…29
United States v. Carr, 947 F.2d 1239, 1240 (5th Cir. 1991)…………………..27,30
United States v. Colon-Muñoz, 292 F.3d 18-20 (1st Cir. 2002)……………….…25
United States v. Cook, 42 Fed.Appx. 803, 804 (6th Cir. 2002)………………..…30
United States v. DiSomma, 951 F.2d 494, 497 (2nd Cir. 1991)…………….….…31
United States v. Garcia, 340 F.3d 1013, 1014 n.l (9th Cir. 2003)………………..30
United States v. Goforth, 546 F.3d 712, 714-15 (4th Cir. 2008)…………………30
iii
074
Case: 24-1409
Document: 00118141916
Page: 4
Date Filed: 05/08/2024
Entry ID: 6641000
United States v. Hawkins, 617 F.2d 59 (5th Cir. 1980)…………………….…..…29
United States v. Herrera-Soto, 961 F.2d 645, 6 4 7 (7th Cir. 1992)……….…..….30
United States v. Jones, 979 F.2d 804, 805 (10th Cir. 1992)………………………30
United States v. Lea, 360 F.3d 401, 403 (2nd Cir. 2004)……………………..…..30
United States v. Martinez-Torres,…………………………………………...…….31
United States v. Mostrom, 11 F.3d 93, 94 (8th Cir. 1993)………………….…….30
United States v. Negrón–Sostre, 790 F.3d 295, 306–07 (1st Cir. 2015)………..….3
United States v. Oliver, 683 F.2d 224 (7th Cir. 1982)………………….............…28
United States v. Rabena, 339 F.Supp. 1140 (D.C. Pa 1972)………………………29
United States v. Tornos-Vega, 907 F.2d 215 (1st Cir. 1990)………………….….31
United States v. Tropiano, 296 F.Supp. 280 (D.C. Conn. 1968)…………….……29
United States v. Ursini, 276 F.Supp 983 (D.C. Conn. l967)………..…….……….29
United States v. Wages, 271 F. App'x 726 (10th Cir. 2008)…………….………...30
United States v. Weiner, No. 92-1708, 1992 U.S.App. LEXIS 28794, at *l (1st Cir.
1992)………………………………………………………………………...…….30
Statutes
18 U.S.C. § 1519…………………………………………………....…5,21,23,33,46
18 U.S.C. § 1951………………………………………………………4,21,23,46,49
18 U.S.C. § 3142…………………………………………………...………..4,25,26
18 U.S.C. § 3143………………………………………2,4,25,26,27,28,29,30,48,50
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18 U.S.C. § 3145…………………………………………………...…4,26,29,30,48
18 U.S.C. § 3156………………………………………………..………….….28,49
18 U.S.C. § 641 and §2……………………………………….………………...…18
18 U.S.C. § 666 (a)(1)(A)…………………………………….……………..…….18
18 U.S.C. § 875(d)…………………………………………….….…...4,21,23,33,46
28 U.S.C. § 1291………………………………………….………….……..………4
Federal Rules
Federal Rules of Criminal Procedure Rule 29(c)………………….……….…..21,39
Federal Rule of Criminal Procedure Rule 33………………….……….……….21,39
Federal Rules of Evidence 106…………………………………………………....41
Federal Rules of Evidence 801………………………………………………….....41
Federal Rules of Evidence 803……………………………………………...….....41
Dockets
DKT 1-Indictment- 01/26/21 ...........................................................................5,20,22
DKT 16- Order Setting Conditions of Release- 01/27/21 .........................................5
DKT 18-Motion for Protective Order- 02/12/21 .......................................................5
DKT 20-Order granting Docket 18- 02/12/21 ...........................................................5
DKT 71-Memorandum of the Clerk- 11/02/21..........................................................5
DKT 76- Status Conference held on – 11/17/21........................................................5
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DKT 103-Motion to Dismiss by USA- 02/07/22………………………...5,12,13,18
DKT 107-USA Response Motion to Dismiss Indictment- 03/06/22.......................5
DKT 111-Reply to USA Response Motion to Dismiss- 03/23/22……….………..5
DKT 116-Motion for Leave to File Sur Reply- 04/06/22…………………………5
DKT 127-Opinion and Order – 06/16/22…………………………….……………5
DKT 129- Motion for Order to Show Cause by USA- 06/22/22…………….……5
DKT 132- Supplemental Motion re: 129- 06/24/22…………………...…………..5
DKT 137-Response to Motion- 07/07/22………………………………….……....5
DKT 141-Reply to 137 and Response to 132 - 07/08/22……………………….…5
DKT 145-Show Cause Hearing- 07/11/22………………………………….……..6
DKT 149-Order re: 148 granted- 07/15/22………………………………………..6
DKT 151-Motion Requesting Order- 07/21/22…………………………………...6
DKT 155-Motion in Compliance with Order- 08/02/22………………..…………6
DKT 158-Response to Motion re 155- 08/02/22………………………………….6
DKT 162-Response to Motion re 158- 08/15/22………………………………….6
DKT 166-Motion Hearing- 08/19/22……………………………………….……..6
DKT 170-Motion in Compliance with Court Order- 09/08/22……………………6
DKT 173-Response to Motion- 09/22/22…………………………………..……..6
DKT 182- Motion in Compliance with Court Order - 10/06/22…………..………6
DKT 185- Motion in Compliance as to 184 Order - 10/20/22…………….…....…6
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DKT 190-Motion Requesting Order- 10/21/22 ……………………………………6
DKT 195-Motion Requesting Order re 151- 10/25/22……………………………..6
DKT 201-Reply to 190 Motion- 11/08/22………………………………...………..6
DKT 202-Opinion and Order- 11/09/22……………………………………………6
DKT 204- Order to Reset Pretrial- 11/16/22……………………………...………..6
DKT 210- Motion Requesting Order- 11/22/22………………………………...….7
DKT 217-Proposed Jury Instructions-11/25/22 ……………………………..….…7
DKT 219-Supplemental Jury Instructions- 11/25/22 …………………...…………7
DKT 220- USA Proposed Jury Instructions- 11/25/22…………………..………...7
DKT 224-USA Motion in Limine- 11/25/22……………………………...………..7
DKT 236-USA Response to Motion re 210- 12/06/22…………………...………...7
DKT 240- USA Response to Motion re 224- 12/08/22…………………..…….…..7
DKT 244-Motion to Strike USA Opposition- 12/16/22………………..…….…….7
DKT 248-Motion for Leave to File Motions- 12/21/22………………...………….7
DKT 253-Motion to Continue Trial- 12/23/22……………………………...……...7
DKT 256-Response to Motion re: 224, 240- 12/29/22……………………..………7
DKT 259-USA Response to Motion re: 253- 12/29/22…………………..……..7,20
DKT 269-Opinion and Order re: 210, 224, 248, and 253)- 01/10/23……..…….....7
DKT 275- Notice by Sixto Jorge Diaz-Colon- 01/13/23…………………………..7
DKT 278-USA Motion under Rule 12- 01/17/23………………………...………..7
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DKT 297-USA Motion to Compel Reciprocal Discovery- 01/19/23………………8
DKT 299- Pretrial Conference- 01/13/23………………………………………..…7
DKT 302- Motion in Limine by USA- 01/21/23………………………………...…8
DKT 305- Order re: 302 Motion in Limine- 01/23/23…………………….……….8
DKT 310-Reciprocal Discovery Notice- 01/24/23……………….………….8,20,21
DKT 311-Jury Selection- 01/23/23……………………………..………………….8
DKT 316-TT Jury Trial- DAY 2- 01/25/23………………………….……..13,14,15
DKT 317- Second day of Jury Trial- 01/24/23………...…………………………...8
DKT 319 TT Jury Trial- DAY 3- 01/26/23…………………….………...8,15,17,22
DKT 321-USA Response to Motion re 310- 01/26/23………….……………...8,20
DKT 323-TT Jury Trial- DAY 4- 01/27/23………………………….....14,15,16,17
DKT 327- Fifth Day of Jury Trial- 01/27/23…………………………..……….9,20
DKT 328-TT Jury Trial- DAY 5- 01/29/23………….………………….…..9,18,20
DKT 330-Reply to 310 Notice- 01/30/23……………………….….……….….8,20
DKT 338-Order re 321 Response to Motion- 01/30/23………………..……...…..8
DKT 339-TT Jury Trial- DAY 6- 01/30/23…..……………………………….16,17
DKT 341-Motion for Judgment of Acquittal- 01/31/23…………………..……....21
DKT 342- Sixth Day of Jury Trial- 01/30/2023……………………………………9
DKT 344- Rule 29 Motion Hearing- 01/31/23………………………………...…...9
DKT 348-TT Jury Trial- DAY 7- 01/31/23…………………….…………...…….21
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DKT 354- Eight Day of Trial- 02/01/23…………………………………………....9
DKT 355-Final Jury Instructions- 02/01/23…………………….………………….9
DKT 356-USA Informative Motion- 02/02/23……………………….……………9
DKT 360- Ninth day of Jury – 02/02/2023………………………………...………9
DKT 363- Response to Motion re 356- 02/03/23………………………….……...10
DKT 364- Tenth Day of Jury Trial- 02/03/23…………………………….………10
DKT 365- Jury’s Verdict- 02/03/23………………………………………………10
DKT 373- Motion to Rescind Gag Order- 02/09/23………………………..…….10
DKT 382- TT Jury Trial- DAY 8- 02/14/23………………………..………….….21
DKT 384-Motion for Acquittal and New Trial- 02/17/23……...………10,13-19,22
DKT 388-USA Response to Motion re 373- 02/23/23………….……….………..10
DKT 391-Reply to USA Response re 388, 373- 03/08/23………….…….………10
DKT 393-USA Response to Motion for Acquittal- 03/15/23……………..….…..10
DKT 395-Surreply to Motion filed by USA- 03/15/23…………………….…..…10
DKT 401- Opinion and Order re 373- 04/05/23……………………………….…10
DKT 402- Reply to USA Motion re 399- 04/10/23……………………………....10
DKT 418- Opinion and Order re 384- 05/09/23……………………………...…..10
DKT 419-USA Response to Motion re 410- 05/12/23………………….……......10
DKT 423- Notice of Disclosure PSR- 05/16/23…………………………..………11
DKT 433- Response to Motion filed by USA re 419- 05/25/23……….….…..….11
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DKT 441- Opinion and Order re 410- 06/08/23…………………………….….…11
DKT 447- Objection to Presentence Investigation Report- 06/28/23…………….11
DKT 452- USA Sentencing Memorandum- 07/21/23……………………….……11
DKT 456- Sentencing Memorandum- 08/01/23……………………….……….…11
DKT 458-Sentencing Hearing Transcript- 08/04/23……………………...………11
DKT 459-Judgment- 08/04/23…………………………………….….……….…..11
DKT 463-Notice of Appeal- 08/08/23…………………………….….……….…..11
DKT 478- Motion for Bail on Appeal – 03/18/24……………….……………..…12
DKT 480- Response to Motion re: 478- 04/01/24…………….…………..………12
DKT 482- Opinion and Order re: 478- 04/09/24………………………………12,44
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STATEMENT REGARDING RECORD CITATION
References to the Addendum, transcript, and other parts of the record below
will be as follows:
“DKT” refers to Docket followed by DKT number (e.g., DKT 103)
“TT” refers to portions of the trial transcript. If they are not followed by an DKT or
App. They have not been included in the Appendix (e.g., DKT 328, TT Day 6, page
76, App. 765)
Add” refers to the Addendum, followed by the page number (e.g., Add. 20)
“S-Add.” refers to Seal Addendum followed by the page numbers. (e.g., S-Add. 2030) or (e.g., DKT 405, page 1, S-Add. 20)
“App” refers to Appendix followed by the page numbers. (e.g., App. 20-30) or (e.g.,
DKT 328, TT Day 2, page 1, App. 20)
“S-Supp-App.” refers to Seal Supplemental Appendix followed by the page
numbers. (e.g., S-Supp-App. 20-30) or (e.g., DKT 405, page 1, S-Supp-App. 20)
“Supp-Exh-App.” refers to Supplemental Exhibits Appendix followed by the page
numbers. (e.g., DKT 405, page 1, S-Supp-Exh-App. 20)
“STATS” refer to Statement of Facts followed by paragraph (e.g. STATS ¶ a.
page 12)
Note: The Appendix, Supplemental Exhibit Appendix, and Sealed
Supplemental Appendix referenced in this Brief are the same filed and sent to
the Clerk’s office for the Appeal # 23-1692.
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No. 24-1409
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
UNITED STATES,
Appellee
vs.
SIXTO JORGE DIAZ-COLON,
Defendant- Appellant
APPELLANT’S BAIL ON APPEAL BRIEF
COMES NOW appellant Sixto Jorge Diaz-Colon, (hereinafter “DiazColon”), through his Court appointed counsel and most respectfully submits his
Bail on Appeal Brief:
I.
INTRODUCTION
The District Court denied Sixto Jorge Díaz-Colón's motion for bail pending
appeal. Díaz was convicted of attempted extortion, interstate extortion, and
destruction of records in a federal investigation. He received a 51-month term for
the first and third counts and a 24-month term for the second count, to be served
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concurrently.
Díaz-Colon filed a notice of appeal and later requested bail pending the
appeal's outcome. He argued the appeal would likely lead to a reversal or a new trial
on six substantial questions of law including insufficient evidence, prosecutorial
misconduct, denial of his Sixth Amendment rights, prejudicial variance between
evidence presented at trial and charges, and erroneous jury instructions.
The Court applied Section 3143(b) of the Bail Reform Act, which presumes
that an individual convicted and sentenced will be detained pending appeal unless
specific criteria are met. These criteria include proving the appeal is not for delay, it
raises substantial questions of law or fact, and the defendant is not a flight risk or
danger to the community. The Court focused on whether the appeal raised
substantial questions of law or fact and found Díaz-Colon’s arguments insufficient,
stating they did not present substantial questions that would likely lead to a reversal
or a new trial. Thus, the finding that the failure to meet the third criterion of the
section 3143(b) analysis rendered further deliberations regarding risk of flight or
potential delays unnecessary. Consequently, District Court judge Besosa decided it
was unnecessary to assess whether Díaz constituted a danger to others or had a
likelihood of fleeing, and the motion for bail pending appeal was denied.
Diaz-Colon submits that the district judge erred in dismissing the substantiality
of the questions raised in his appellate Brief. The appeal could emphasize that the
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issues raised, such as insufficient evidence, prosecutorial misconduct, denial of his
Sixth Amendment rights, prejudicial variance between evidence presented at trial
and charges, and erroneous jury instructions, closely call into legal question the
fairness and integrity of the trial process, meeting the threshold of a "substantial
question". Thus, misinterpreting the likelihood prong by not fully considering the
potential for a new trial or reversal, given the alleged judicial errors raised as part of
the substantial questions of law or fact that justified granting the motion.
The appeal requests reconsideration of the denial of bail pending appeal or
alternatively, a judicial review that reassesses the factual and legal bases provided
by Díaz-Colon under less stringent detention presumptions possibly overlooked
during the initial decision-making. This could involve seeking to prove that the legal
errors alleged are not only substantial but also likely to result in a different outcome
on appeal or retrial.
If Diaz-Colon prevails on appeal, the remedy could be as drastic as it comes—
this Court could throw out his conviction, and because of the Double Jeopardy
Clause of the Fifth Amendment, the Government would not get another shot at retrying him on these charges. See United States v. Negrón–Sostre, 790 F.3d 295, 306–
07 (1st Cir. 2015). Of course, a successful sufficiency challenge would render all of
Diaz-Colon’s other meritorious claims of reversible trial error moot.
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II. JURISDICTION
This is an appeal from a final Order denying Motion for Bail on Appeal entered
on April 9, 2024, by District Court judge Besosa. Jurisdiction over this bail on appeal
is conferred pursuant Title 18 U.S.C. §§ 3142, 3143, 3145, and 3231 of the Federal
Rules of Criminal Procedure.
This Court’s appellate jurisdiction is invoked
pursuant 28 U.S.C. 1291 and Judgment was entered on April 9, 2024. [21-cr-00017FAB ECF 482]. A timely Notice of Appeal was filed on April 10, 2024. [21-cr00017-FAB ECF 483].
III. STATEMENT OF ISSUES
A.
WHETHER THE DISTRICT COURT ERRED IN FINDING THAT
DIAZ-COLON DID NOT RAISE A SUBSTANTIAL QUESTION OF
LAW OR FACT LIKELY TO RESULT IN REVERSAL, AN
ORDER FOR NEW TRIAL, OR ACQUITTAL ON APPEAL?
IV.
A.
STATEMENT OF THE CASE
PROCEDURAL BACKGROUND.
1.
THE OFFENSE.
Diaz-Colon was the subject of a Three Count Indictment rendered by a District
of Puerto Rico Grand Jury on January 26, 2021. He was charged under Count One
with violations of Title 18 U.S.C. §§1951, 2 (Attempted Extortion, Aiding and
Abetting); Count Two with violations of 18 U.S.C. §§ 875(d), 2 (Interstate Extortion
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and Aiding and Abetting)); and Count Three with violations of 18 U.S.C. § 1519
(Destruction, Alteration, or Falsification of Records in a Federal Investigation).
(DKT 1, App. 44).
2.
THE PRETRIAL PROCESS.
The case was initially assigned to P.R. District Court judge Gustavo A. Gelpi
and later reassigned to judge Francisco Besosa. (DKT 71, App. 9). Diaz-Colon was
granted bail pending trial. (DKT 16, App. 4). The Government filed a Motion for
Protective Order (DKT 18, App. 5), that was granted by the Court on 02/12/2021.
(DKT 20, App. 5). On 11/17/2021, the Court held a status conference where
Attorney Castro-Lang informed the Court that there were pending discovery issues
with the transcripts of recordings because some words that appeared in the transcript
were not heard in the recordings. (DKT 76, App. 9). On 02/07/2022 Diaz-Colon
filed a Motion to Dismiss Indictment. (DKT 103, App. 12). The Government filed
its Opposition (DKT 107, App. 12); and a Reply was filed (DKT 111, App. 13) as
was a Sur Reply (DKT 116, App. 13). The Court denied the Motion to Dismiss and
to Correct the transcript. (DKT 127, App. 14). On 06/22/2022, the Government filed
a second motion to show cause and a supplemental motion claiming Diaz-Colon had
made further public expressions about the case in violation of the protective order.
(DKT 129, 132, App. 14), which he opposed. (DKT 137, App. 15). The Government
filed a Reply. (DKT 141, App. 16). A show cause hearing was held on 07/11/2022.
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(DKT 145, App. 16). Diaz-Colon was found in contempt of the protective order and
his conditions of release were amended. (DKT 145, App. 16). Trial was scheduled
to begin on 12/09/2022. (DKT 149, App. 17). Diaz-Colon filed a Motion to Amend
Conditions of Bail requesting authorization to utilize social media, network,
communications by text, email, or WhatsApp for legitimate business purposes.
(DKT 151, App. 17). The Government and probation filed their responses (Dockets
155,158, App. 17), to which Diaz-Colon Replied. (DKT 162, App. 18). A hearing
on the motion was held on 08/19/2022, and the Court ordered Diaz-Colon to provide
Probation documents pertaining to his two work projects, phone contacts of those
involved, invoices for payment of power, water, mortgage, children’s schooling,
federal deposits, tax returns for the years 2019-2021. (DKT 166, App. 18). After
providing the documents (DKT 170, App. 19), the Government filed a Response.
(DKT 173, App. 19). Diaz-Colon filed a Motion in Compliance. (DKT 182, App.
20), as did the Government. (DKT 185, App. 20). The Court denied the motion to
amend conditions of bail. (DKT 195, App. 21). Diaz-Colon filed a Motion to Admit
Extrinsic Evidence at trial. (DKT 190, App. 20). Diaz-Colon Replied to The United
States Opposition. (DKT 201, App. 21). The Court entered an order Denying and
Granting in Part Motion to Admit Extrinsic Evidence. (DKT 202, App. 21). On
11/16/2022, the Court scheduled trial for 01/23/2023. (DKT 204-App. 21). DiazColon filed a Motion for Leave to File Motion to Dismiss Under Rule 12(B)/
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Duplicitous Indictment.
Page: 18
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(DKT 210, App. 22).
Entry ID: 6641000
Diaz-Colon Proposed Jury
Instructions. (DKT 217, App. 22). He filed Supplemental Jury Instructions (DKT
219, App. 22) and the Government filed theirs. (DKT 220, App. 22). The United
States filed a Motion in Limine. (DKT 224, App. 23). The United States filed an
Opposition to the Motion Dismiss (DKT 236, App. 23). Diaz-Colon filed an
Opposition to the United States Motion in Limine (DKT 240, App. 24), and a Motion
to Strike the United States Opposition. (DKT 244, App. 24). Diaz-Colon requested
Leave to File Dispositive Motions. (DKT 248, App. 24). He filed a Motion for Trial
Continuance given that his counsel was going to be out of the jurisdiction from
12/23/2022 until 01/08/2023. (DKT 253, App. 24). The United States Replied to
the Diaz-Colon’s Opposition to Motion in Limine (DKT 256, App. 25), and opposed
Diaz-Colon’s Motion for Trial Continuance. (DKT 259, App. 25). The Court entered
an Order Denying All Pre-Trial Motions (DKT 269, App. 26). The United States
filed its Designation of Evidence. (DKT 278, App. 27). A motion was filed by DiazColon concerning discovery recently provided by the Government again requesting
a continuance (DKT 275, App. 26), which the Government opposed at the pretrial
conference. (DKT 299, App. 26). During the pre-trial conference Diaz-Colon’s
counsel again requested a continuance due to the recent voluminous discovery
provided as reflected in Docket 275. Judge Besosa denied the continuance and trial
remained set for 01/23/2023. (DKT 299-App. 26). The Government filed a Motion
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in Limine on 01/21/2023, requesting the Court prohibit certain evidence at trial
(DKT 302- App. 28), which the Court granted on 01/23/2023. (DKT 305- App. 29).
The United States filed a Motion to Compel Reciprocal Discovery. (DKT 297, App.
28), which Diaz-Colon replied. (DKT 310, App. 29). The United States filed an
Opposition to defendant’s Reciprocal Discovery Notice (DKT 321, App. 30). DiazColon filed his Response to the United States Opposition to his discovery notice.
(DKT 330, App. 31). The Court denied and granted in part the motion without
prejudice. (DKT 338, App. 32).
3.
THE TRIAL PROCESS
The trial began on 01/23/2023, Diaz-Colon’s counsel informed side bar that
he was not prepared for trial, renewing his request for a continuance, which was
denied, the jury was selected, and opening statements were made by the parties.
(DKT 311, App. 29).
On the Second day of trial (01/24/2023), the Government
presented the testimony of William Hinton, Max Rodriguez, and Anthony Maceira.
(DKT 317, App. 29). On the Third day of trial (01/25/2023), the parties continued
the direct and cross examination of witness Anthony Maceira. On the Fourth day of
trial (01/26/2023), the parties continued the direct, cross, and re-direct examination
of witness Anthony Maceira. The Government also presented witnesses Michael
French and Francisco Pares. (DKT 319, App. 30).
On the Fifth day of trial
(01/27/2023), the parties continued the direct and cross examination of witness CHS
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Maceira. (DKT 327, App. 31 and 706). The Government also presented witnesses
Lydmarie Torres, Madeline Lopez Pagan, and FBI S/A Juan Carlos Lopez
Velazquez. Diaz-Colon requested a mistrial which was denied by the Court. (DKT
328, App. 862). On the Sixth day of trial (01/30/2023), the parties continued the
direct and cross examination of FBI S/A Juan Carlos Lopez Velazquez, and the
Government rested its case. (DKT 342, App. 32).
On the Seventh day of trial
(01/31/2023), Diaz-Colon submitted his motion for judgment of acquittal in
accordance with Rule 29 of the Federal Rules of Criminal Procedure. Both parties
presented their arguments, and the Court denied the Rule 29 motion. DKT 344,
App. 32). On the Eighth day of trial (02/01/2023 at 1:30 p.m.), the Court delivered
jury instructions, and told them to select a foreperson. (DKT 355, App. 33). At 2:20
p.m., the Court excused the jury to hear Diaz-Colon’s objections to jury instructions,
and after considering arguments from both parties, denied them. (DKT 354 and 382,
App. 32 and 35, and Day 8 TT, App. 1029-1063).
On the Ninth day of trial
(02/02/2023), the parties submitted their closing arguments. (DKT 360, App. 34).
The Government filed an Informative motion complaining that Diaz-Colon had
made public expressions to the press on 02/02/2023 (DKT 356, App. 33), to which
he responded
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.