U.S. v. De Castro-Font
| Decision Date | 22 December 2008 |
| Docket Number | Criminal No. 08-337 (FAB). |
| Citation | 587 F.Supp.2d 372 |
| Parties | UNITED STATES of America, Plaintiff, v. Jorge DE CASTRO-FONT [1], Defendant. |
| Court | U.S. District Court — District of Puerto Rico |
Daniel A. Schwager, Public Integrity, United States Department of Justice, Washington, DC, Ernesto G. Lopez-Soltero, Timothy R. Henwood, United States Attorneys Office, District of Puerto Rico, San Juan, PR, Jacqueline D. Novas-Debien, U.S. Attoreney's Office, District of Puerto Rico, Hato Rey, PR, for Plaintiff.
Lydia Lizarribar-Buxo, Lizarribar Masini Law Office, Joseph A. Boucher-Martinez, San Juan, PR, for Defendant.
On December 3, 2008, defendant Jorge De Castro-Font ("De Castro") moved to dismiss counts 1 through 20, asserting that the counts omitted an essential element of the charged offense. (Docket No. 119) The government opposed De Castro's motion on December 12, 2008. (Docket No. 133) For the reasons provided below, the Court DENIES De Castro's motion to dismiss the first twenty counts of the indictment.
The Federal Rules of Criminal Procedure require an indictment to "contain `a plain concise and definite written statement of the essential facts constituting the offense charged.'" United States v. Barbato, 471 F.2d 918, 921 (1st Cir.1973) (quoting FED.R.CRIM.P. 7(c)(1)). The Constitution requires that the indictment plead all of "the essential elements of an offense and `appraise[ ] a defendant of the crime with which he is charged so as to enable him to prepare his defense and to plead judgment of acquittal or conviction as a plea to a subsequent prosecution for the same offense.'" United States v. McLennan, 672 F.2d 239, 242 (1st Cir.1982) (quoting Portnoy v. United States, 316 F.2d 486, 488 (1st Cir.), cert. denied, 375 U.S. 815, 84 S.Ct. 48, 11 L.Ed.2d 50 (1963)); accord Hamling v. United States, 418 U.S. 87, 117-18, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974). These constitutional protections are grounded in the Fifth and Sixth Amendments to the Constitution. Russell v. United States, 369 U.S. 749, 760-61, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962). Specifically, they are found in the Sixth Amendment's guaranty that the accused be informed of the nature and cause of the accusation, and the Fifth Amendment's Due Process Clause and the Fifth Amendment's provision requiring that a grand jury indict any person held to answer for a capital or otherwise infamous crime. Id. When evaluating the sufficiency of an indictment, the federal rules direct that a court shall not dismiss an indictment unless a defendant was misled and thereby prejudiced; they also direct that errors or irregularities in an indictment must be disregarded unless they affect the defendant's substantial rights. FED.R.CRIM.P. 7(c)(3) & 52(a); accord Russell, 369 U.S. at 762, 82 S.Ct. 1038.
De Castro argues that his right to be indicted by a grand jury was violated because counts 1 through 20 of his indictment failed to utilize the words "knowingly" or "willfully" when describing the honest services wire fraud counts. Knowingly1 and willfully2 describe the requisite mental state that the jury must attribute to De Castro for it to find him guilty of honest services wire fraud. United States v. Sawyer, 85 F.3d 713, 723 (1st Cir.1996) (). The government does not dispute that the indictment omits those exact words, but it asserts that the language used in the indictment required the grand jury to consider whether De Castro acted with the requisite criminal intent, and therefore the counts in question should not be dismissed.
As a general matter, an indictment is sufficient as long as it sets forth "the offense in the words of the statute itself, as long as `those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offence intended to be punished.'" Hamling, 418 U.S. at 117, 94 S.Ct. 2887 (quoting United States v. Carll, 105 U.S. 611, 612, 26 L.Ed. 1135 (1882)). The indictment in this case has faithfully followed the language of the statute. The second paragraph in counts 1 through 20 contains the following language: "[1] Jorge A. De Castro Font ... devised and intended to devise a scheme and artifice to defraud and deprive the Commonwealth of Puerto Rico and its citizens of their intangible right to the honest services of defendant De Castro Font as a Legislator of the Commonwealth[.]" (Docket No. 3, p. 9) The relevant part of the statutory provisions, read together, attach liability to "[w]hoever, having devised or intending to devise any scheme or artifice to defraud [including] a scheme or artifice to deprive another of the intangible right of honest services ... transmits or causes to be transmitted by means of wire radio or television communication ... for the purpose of executing such scheme or artifice[.]" 18 U.S.C. §§ 1343, 1346. As the government notes, the statute does not utilize the words knowingly or willfully, rather it utilizes "having devised or intending to devise a scheme to defraud," to connote the necessary mental state. The Court finds nothing uncertain or ambiguous about this language. One cannot unknowingly or accidentally devise a scheme to defraud. To "devise" one must think, must plan, and these concepts involve voluntarily entering into a course of action. The Court does not believe it is at all likely that in reading the language borrowed from the statute that the grand jury understood that honest services wire fraud involved a mental state less than that of knowingly or willfully.
The indictment's reliance on the language of the statute and the clarity of that language is not the only reason that the indictment passes constitutional muster. The First Circuit Court of Appeals has held that indictments "need not always plead required scienter elements in precise statutory terms such as `wilfully' or `knowingly' as long as other words or facts contained in the indictment `necessarily or fairly import guilty knowledge.'" McLennan, 672 F.2d at 242 (quoting Madsen v. United States, 165 F.2d 507, 509-10 (10th Cir.1947)); see also Portnoy, 316 F.2d at 488; Griffith v. United States, 230 F.2d 607 (6th Cir.1956); cf., United States v. Cincotta, 689 F.2d 238, 242 (1st Cir.1982) () (citations omitted); Barbato, 471 F.2d at 921 (same). As discussed in the preceding paragraph, the Court finds that the language borrowed from the statute connotes that De Castro must have acted knowingly and willfully.
This is not the only language in the indictment, however, that necessarily implies that De Castro acted intentionally and deliberately. Paragraph 53 of the indictment alleges that in each of the acts underlying the 20 counts of honest services wire fraud De Castro "transmitted and caused to be transmitted ... certain writings and signals" "for the purpose of executing and attempting to execute the above described scheme and artifice to defraud and deprive the Commonwealth of Puerto Rico and its citizens of their intangible right to the honest and faithful services of defendant De Castro." (Docket No. 3, p. 30) Again, as with the language utilized earlier in the indictment, acting with the "purpose" of executing the scheme and artifice to defraud necessarily implies that defendant De Castro acted intentionally and with an awareness that his actions involved fraud. Fraud, a purposeful misrepresentation made to obtain something to which the actor is not otherwise entitled, is the epitome of an intentional act done with an awareness of the wrongfulness of the act.
Although the general language relating to the honest services wire fraud scheme is sufficient to sustain the indictment, the indictment also includes specific allegations raising the inference that De Castro's actions were knowing and willful. The twenty counts of honest services wire fraud relate to twelve unnamed individuals identified by number. The indictment alleges that De Castro took specific actions in regards to each of the twelve. De Castro's alleged actions involving all twelve individuals raise the inference that he acted knowingly and willfully. For example, in May 2008, De Castro allegedly "stated in substance" that he required $10,000 to meet with person 3 and members of Association B to discuss a list of legislative projects of interest to Association B. (Docket No. 3, p. 16) Person 3 then allegedly paid De Castro approximately $10,000 in exchange for the meeting and official acts discussed at the meeting. (Id.) In June 2008, De Castro allegedly met with person 3 and members of a different association, Association A. (Id.) At that meeting De Castro allegedly asked person 3 if the payment he would receive the following day was for matters involving Association A or Association B. (Id. at pp. 16-17) The following day, when payment was allegedly made, De Castro allegedly told his assistant, who picked up the payment, to deliver it to him in the bathroom because there were people in his office. (Id. at 17) All of these actions raise the inference that De Castro acted knowingly and willfully.
To begin with, the indictment reads that De Castro allegedly stated that he required payment in exchange for meeting with different associations and promoting their agenda. This is simply not an act that can be done involuntarily or by accident; any request for payment in exchange for services rendered, like any market-related transaction, is done intentionally and with an objective of obtaining something. One...
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