U.S. v. Bravo–fernandez

• Citation: 756 F.Supp.2d 184
• Decision Date: 23 December 2010
• Docket Number: Criminal No. 10–232 (FAB).
• Parties: UNITED STATES of America, Plaintiff,v.Juan BRAVO–FERNANDEZ and Hector Martinez–Maldonado, Defendants.
• Court: U.S. District Court — District of Puerto Rico

756 F.Supp.2d 184

UNITED STATES of America, Plaintiff,

v.Juan BRAVO–FERNANDEZ and Hector Martinez–Maldonado, Defendants.

Criminal No. 10–232 (FAB).

United States District Court, D. Puerto Rico.

Dec. 23, 2010.

Peter M. Koski, U.S. Department of Justice, Washington, DC, for Plaintiff.David Z. Chesnoff, Chesnoff & Schonfeld, Las Vegas, NV, Jose A. Pagan–Nieves, Joseph C. Laws, San Juan, PR, Defendants.

OPINION AND ORDER

BESOSA, District Judge.

On June 22, 2010, a grand jury returned an indictment against defendants Hector Javier Martinez–Maldonado (“Martinez”) and Juan Bravo–Fernandez (“Bravo”) (collectively “defendants”). The indictment charges both defendant Martinez and defendant Bravo with conspiracy, interstate travel in aid of racketeering, and bribery concerning programs receiving federal funds. The indictment also charges defendant Martinez with obstruction of justice.

PROCEDURAL HISTORY

On September 17, 2010, the defendants filed eleven motions to dismiss before this Court. Both defendants moved to dismiss Counts 1–5 of the indictment based on the statute of limitations. (Docket No. 55, “Motion to Dismiss No. 1”). Both defendants moved to dismiss the indictment alleging that the grand jury was improperly charged, rushed to judgment and denied the opportunity to investigate thoroughly in violation of defendants' Fifth Amendment rights. (Docket No. 68, “Motion to Dismiss No. 2”). Defendant Martinez moved to request a Kastigar-like hearing ¹ to dismiss the indictment or suppress evidence due to the Government's alleged intrusion into the attorney-client relationship between Martinez and the attorneys who work in his Senate office. (Docket No. 70, “Martinez's Motion for a Kastigar Hearing”). Defendant Bravo moved for a Kastigar-like hearing to dismiss the indictment or suppress evidence due to the alleged improper use of his immunized statements by Federal agents. (Docket No. 56, “Bravo's Motion for a Kastigar Hearing”). Both defendants moved to dismiss Count 1 of the indictment for failure to allege a conspiracy. (Docket No. 57, “Motion to Dismiss No. 5”). Both defendants moved to dismiss all 18 U.S.C. § 666–related counts (“ section 666”) for failure to allege a crime. (Docket No. 58, “Motion to Dismiss No. 6”). Both defendants moved to dismiss Counts 4 and 5 for improper venue. (Docket No. 59, “Motion to Dismiss No. 7”). Both defendants moved to dismiss Puerto Rico Bribery Law predicates from the Travel Act charges in Counts 1–3 for failure to allege a crime. (Docket No. 60, “Motion to Dismiss No. 8”). Both defendants moved for the government to dismiss counts pursuant to the Double Jeopardy Clause of the Fifth Amendment. (Docket No. 61, “Motion to Dismiss No. 9”). Both defendants moved to dismiss the aiding and abetting charges in Counts 2 through 5 based on the statute of limitations and for failure to allege an offense. (Docket No. 62, “Motion to Dismiss No. 10”). Defendant Martinez moved to dismiss Count 6 of the indictment for being internally inconsistent and for failing to provide defendant Martinez with sufficient notice of charges, in violation of his Fifth and Sixth Amendment rights. (Docket No. 63, “Motion to Dismiss No. 11”).

The United States filed consolidated oppositions to all of defendants' motions to dismiss. (Docket Nos. 72, 73). The Court addresses each of the motions in turn. For the reasons described below, the Court GRANTS defendant Bravo's motion for a Kastigar-like hearing (Docket No. 56) and DENIES defendants' other motions to dismiss.

DISCUSSION

I. Standard Governing Motion to Dismiss an Indictment

When considering whether to dismiss a count of an indictment, a court “must accept the allegations in the indictment as true.” See United States v. Young, 694 F.Supp.2d 25, 27 (D.Me.2010) (citing Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 343 n. 16, 72 S.Ct. 329, 96 L.Ed. 367 (1952)). The Court must consider whether the allegations in the indictment are sufficient to inform a defendant as to the charged offense. See United States v. Sampson, 371 U.S. 75, 76, 83 S.Ct. 173, 9 L.Ed.2d 136 (1962); United States v. Barker Steel Co., Inc., 985 F.2d 1123, 1125 (1st Cir.1993). “[A]n indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense.” Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974) (internal citations omitted). A court “read[s] an information as a whole” and “construe[s] the allegations in a practical sense, with all necessary implications.” Barker, 985 F.2d at 1125 (internal citations omitted).

II. Motion to Dismiss Counts 1 through 5 Based on the Statute of Limitations

Defendants allege that Counts 1 through 5 of the indictment are barred by the five-year statute of limitations established by 18 U.S.C. § 3282(a) because a tolling agreement was not properly executed, and because even if the Court were to find the existence of a valid tolling agreement, many of the offenses charged in the indictment are beyond the scope of the tolling agreement.

A. Existence of a Valid Tolling Agreement

The indictment was returned on June 22, 2010, which means that any criminal conduct occurring prior to June 22, 2005 would be barred by the statute of limitations unless a valid tolling agreement has been executed.² The government contends that defendants explicitly waived their rights to allege an affirmative defense based on the statute of limitations because defendants knowingly and willingly signed a tolling agreement. (Docket No. 72 at 2.) Defendants do not contest that they and their attorneys signed the tolling agreements, but allege that the agreements never became effective because they were not signed by the government. (Docket No. 55 at 5.)

Both parties rely on United States v. Spector, 55 F.3d 22 (1st Cir.1995) in support of their propositions. Although the Spector Court held that the agreement to waive the statute of limitations was invalid because it was not signed by the government, the defendants' reliance on Spector in the circumstances of the present case is misplaced. Spector held that the government's failure to sign the agreement resulted in an invalid agreement because the agreement “expressly called for acceptance of the offer in the form of a signature by the government attorney.” Id. at 25. Spector emphasized the limited reach of its holding, however, by stating that “we are not saying that, to be enforced, an agreement to extend the statute of limitations must be made in writing, or must be signed by the government ... [w]e say only that, where the parties themselves have chosen to set forth the terms in writing, it makes sense to hold them to those terms....” Id. at 26. The language of the Spector court affirms the proposition that the plain language of the agreements should control whether they are enforceable. Id. at 25–26.

In order to address the validity of the tolling agreements in this case, this Court must examine the language contained in those agreements. Each defendant signed two tolling agreements. Both defendant Bravo and defendant Martinez signed the first tolling agreement on May 3, 2010, which stipulated that the statute of limitations would be tolled from May 3, 2010, to June 4, 2010. (Docket Nos. 72–1, 72–2). The government requested both defendants to sign and return a second tolling agreement to extend the statute of limitations period for the same charges through June 25, 2010, and both defendants did so on May 28, 2010. (Docket Nos. 72–3, 72–4).³ There is no language in any of the tolling agreements that conditions the validity of the agreement on the signature of all parties. In fact, all of the agreements explicitly state that the defendants waive their rights under the statute of limitations by signing the agreements: “[b]y signing this document, I knowingly and voluntarily waive any rights I may have under the statute of limitations regarding charges which may result from the grand jury investigation described in this document ...”. (Docket Nos. 72–1, 72–2, 72–3, 72–4). Thus, the agreements signed by the defendants became effective, by their own plain terms, once the defendants signed them.⁴

B. Offenses Beyond the Scope of the Tolling Agreements

Both defendants also argue that if this Court is to find the tolling agreements to be valid, which it does, the Court should limit the scope of the tolling agreements and dismiss certain charges brought by the government. Specifically, both defendants argue that the following charges are beyond the scope of the tolling agreement and should be dismissed from the indictment: (1) 18 U.S.C. § 2 (aiding and abetting); (2) the gratuity theory of section 666; (3) the inchoate bribery theory; and (4) the Puerto Rico bribery predicate for the 18 U.S.C. § 1952 counts.

1. Aiding and Abetting Charges

Both defendants claim that because the tolling agreement makes no reference to tolling the statute of limitations for aiding and abetting charges pursuant to 18 U.S.C. § 2, these charges should be dismissed. The defendants point to e-mail communications between counsel for the parties which indicate that the defendants intended to limit the tolling agreement to the charges explicitly listed in the agreement. (Docket No. 55–3.) There is no case law directly on point that addresses whether aiding and abetting charges not explicitly enumerated in a tolling agreement can nonetheless be brought in an indictment. The Court concludes, nevertheless, that the aiding and abetting charges are not time-barred and should not be dismissed.

The crime of aiding and abetting is not a substantive offense. See United States v. Griffin, 814 F.2d 806, 809 (1st Cir.1987) (“Section 2(a) does not, by itself, criminalize any conduct; it simply makes one who aids and abets in...