U.S. v. Alonso, Criminal No. 06-394 (DRD).
| Decision Date | 23 December 2008 |
| Docket Number | Criminal No. 06-394 (DRD). |
| Citation | 602 F.Supp.2d 297 |
| Parties | UNITED STATES of America, Plaintiff, v. Oreste ALONSO [1], Teresa Gonzalez Rius [2], Defendants. |
| Court | U.S. District Court — District of Puerto Rico |
Julia Diaz-Rex, Marshal D. Morgan, Maritza Gonzalez, AUSA, San Juan, PR, for Plaintiff.
Gary H. Montilla-Brogan, Esq., Lorenzo J. Palomares-Starbuck, Esq., San Juan, PR, for Defendants.
ORDER APPROVING AND ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
Pending before the Court is defendants Oreste Alonso's and Teresa Gonzalez Rius' ("Alonso" and "González" or collectively "defendants") Joint Motion To Dismiss Indictment On The Basis Of Res Judicata, Collateral Estoppel And Waiver ("Joint Motion") (Docket No. 113); the United States' Opposition To Defendants' Joint Motion To Dismiss Indictment On The Basis Of Res Judicata, Collateral Estoppel, And Waiver (Docket No. 114); and, defendants' Reply To Government's Opposition To The Motion To Dismiss Indictment (Docket No. 117). This matter was referred to the Magistrate Judge Camille Velez-Rive on August 28, 2008 (Docket No. 119). A Report and Recommendation was entered on September 8, 2008 (Docket No. 121). The Magistrate Judge recommended that the defendants' joint motion be denied.
The Magistrate Judge appropriately forewarned the defendants of the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 72(d) of the Federal Rule of Civil Procedure ("Fed.R.Civ.P."), that any written objections to the Report and Recommendation must be filed with the Clerk of Court within the next ten (10) days upon receipt of the Report and Recommendation. Furthermore, the defendants were duly advised that failure to comply with the provisions of Rule 72(d) of the Fed.R.Civ.P. is a See Docket No. 121. Furthermore, it is settled that defendant's failure to timely object to the report and recommendation precluded any further appellate review. See Thomas v. Arn, 474 U.S. 140, 155, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). See also Rule 72(d) of the Local Civil Rules of the United States District Court for the District of Puerto Rico. Hence, according to the Report and Recommendation (Docket No. 121), the parties had ten (10) days to file the objections to the report. In the instant case, the objections to the Report and Recommendation were due on September 22, 2008.
The record shows that the defendants opposed the Report and Recommendation on November 11, 2008 (Docket No. 123), that is, after the ten (10) day period to appeal had elapsed, and without leave of Court. "[A] party `may' file objections within ten days or he may not, as he chooses, but he `shall' do so if he wishes further [appellate] consideration." Henley Drilling Co. v. McGee, 36 F.3d at 150 (quoting Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 605 (1st Cir. 1980)).
Hence, the Court needs only satisfy itself that there is no clear error on the face of the record in order to accept an untimely appeal to a Report and Recommendation. See Douglass v. United Servs. Auto, Ass'n, 79 F.3d 1415 (5th Cir.1996); Nogueras-Cartagena v. United States, 172 F.Supp.2d 296, 305 (D.P.R.2001); Garcia v. I.N.S., 733 F.Supp. 1554 (M.D.Pa.1990). But even if this Court were to consider defendants' late appeal to the Report and Recommendation, the determination would be identical under de novo review, which is the applicable standard to a timely appeal of a report and recommendation. However, the Court must conclude that the filing is not timely since the ten (10) day period to object to a Report and Recommendation has been compared to the ten (10) day period under Fed.R.Civ.P. 59(e) of the Federal Rules of Civil Procedure ("Fed.R.Civ.P."). See Negron v. Celebrity Cruises, Inc., 316 F.3d 60, 62 (1st Cir.2003). But Rule 59(e) motions do not enjoy the three (3) day mailing rule extension provided by Fed.R.Civ.P. 6(e). See Heidelberg Harris, Inc. v. Mitsubishi Heavy Industries, Ltd., 1998 WL 719573 (N.D.Ill. Oct. 8, 1998) ().
The Court has reviewed the Magistrate Judge's Report and Recommendation (Docket No. 121), under the plain error doctrine, as the defendants' grounds for dismissal of the indictment under the res judicata or collateral estoppel doctrines, is unwarranted. The Court briefly explains.
A thirty-eight (38) count Indictment was filed against the defendants herein, on December 15, 2006 (Docket No. 1). A Superseding Indictment followed on July 11, 2007 (Docket No. 36). The defendants were charged with several violations including the filing of false claims to defraud a federal health care benefit program, namely, Medicare, with the "purpose and object of the scheme and artifice for the co-defendants to unlawfully enrich themselves by submitting and causing the submission of false and fraudulent claims to Medicare." See Superseding Indictment (Docket No. 36), Count One.
On August 13, 2008, the defendants filed a Joint Motion To Dismiss Indictment On The Basis Of Res Judicata, Collateral Estoppel And Waiver (Docket No. 113). In a nutshell, the defendants moved for the dismissal of all counts of the Indictment on the grounds that, on July 28, 2008, a settlement agreement was reached with the United States of America ("Government"), in a civil in rem forfeiture case filed against: (a) Citibank, Account No. XXXXX-5471, Branch Doral Boulevard Miami, Florida Account # 3200335471; (b) Centro Medico Angeles de Vida; (c) Teresa Rius; (d) Oreste Alonso; (e) Centro Médico Angeles de Vida (Counter-Claimant): (f) Teresa Rius (Counter-Claimant); (g) Oreste Alonso (Counter-Claimant); (h) Citibank, Account No. XXX-XXX-5471, Branch Doral Boulevard Miami, Florida Account # 3200335471; and (i) United States of America (Counter-Defendant). Defendants allege that the dismissal of the Indictment is warranted based on the language used by the Court in the Final Judgment (Docket No. 53, Civil No. 06-1992(JP)), "This Judgment is a release from all causes of action exercised in the Complaint and Claimants' counter-claim, and all causes of action that could follow or emanate from the facts stated therein."
On August 18, 2008, the Government filed the United States' Opposition To Defendants' Joint Motion To Dismiss Indictment On The Basis Of Res Judicata, Collateral Estoppel, And Waiver (Docket No. 114). The Government argues that "a civil settlement and release of claims does not bar a criminal action because the Government may have both a civil and criminal cause of action as a result of a single factual situation." (Docket No. 114, page 4). "Moreover, the Double Jeopardy Clause does nor bar criminal prosecution even after a civil forfeiture action has been completed and has resulted in the forfeiture of valuable property." (Docket No. 114, page 4). Defendants filed a Reply To Government's Opposition To The Motion To Dismiss Indictment on August 21, 2008 (Docket No. 117). As to defendants' reply, the Magistrate Judge stated in the Report And Recommendation that "[t]he Court did not grant defendants leave for said filing and same is not meritorious." (Docket No. 121, page 2).1 However, even if the Court were to consider the defendants reply, it will not alter the final ruling of this Court.
Defendants' argue that the dismissal of the Indictment is warranted under the res judicata and collateral estoppel doctrines, on the grounds that the charges of the Indictment are the same as the claim set forth in the civil forfeiture action; the same parties, and the above cited language included in the Final Judgment approving the settlement agreement reached by the parties in the civil in rem forfeiture case, Civil No. 06-1992 (JP), releasing the defendants of "all causes of action that could follow or emanate from the facts stated therein." The defendants rely on United States v. Cunan, 156 F.3d 110, 114 (1st Cir.1998). In its opposition, the Government explained why Cunan stands for an opposite proposition. (Docket No. 114, page 4).
In Cunan, 156 F.3d at 114, the Court made a thorough analysis to distinguish a civil claim from a criminal prosecution. The issue in Cunan was whether res judicata was applicable to bar a criminal forfeiture action on properties that have been subject of an in rem civil forfeiture action involving the same properties, and wherein a final judgment had been issued. In Cunan, nan, the Court held:
[A] prosecution and a claim for a civil remedy are distinct causes of action that may be pursued independently. As a general matter, this assertion seems supported by precedent and logic. Ample authority is available for the proposition that "civil and criminal proceedings, although based upon the same facts, do not involve the same cause of action, [and] a judgment in one proceeding is not res judicata ... in the other proceeding. 1B Moore's Federal Practice 110.418[1] (2d ed. 1993); see also Restatement (Second) of Judgments § 85 (comment a) ("A prosecution and a claim for a civil remedy are regarded as separate causes of action that may be independently pursued ...."); 18 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure § 4474, at 748 (1981) ("Wright &...
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