U.S. v. MuÑOz-Franco, 95-0386CCC.

• Decision Date: 06 November 1997
• Docket Number: No. 95-0386CCC.,95-0386CCC.
• Citation: 986 F.Supp. 70
• Court: U.S. District Court — District of Puerto Rico
• Parties: UNITED STATES of America, Plaintiff, v. Lorenzo MUÑOZ-FRANCO, Francisco Sanchez-Aran, Ariel Gutierrez-Rodriguez, Wilfredo Umpierre-Hernandez, Enrique Gutierrez-Rodriguez, Rafael Dominguez-Wolff, Defendants.

986 F.Supp. 70

UNITED STATES of America, Plaintiff, v. Lorenzo MUÑOZ-FRANCO, Francisco Sanchez-Aran, Ariel Gutierrez-Rodriguez, Wilfredo Umpierre-Hernandez, Enrique Gutierrez-Rodriguez, Rafael Dominguez-Wolff, Defendants.

No. 95-0386CCC.

United States District Court, D. Puerto Rico.

November 6, 1997.

Guillermo Gil, U.S. Atty., María A. Domínguez, Asst. U.S. Atty., for Plaintiff.

María H. Sandoval, Hato Rey, PR, for Defendants.

ORDER

CEREZO, Chief Judge.

The Court has before it the motions to dismiss contained in the Omnibus Motion flied by Ariel and Enrique Gutierrez-Rodríguez (docket entry 184), to which the government responded (docket entry 200). We shall first address the motion to dismiss counts 1 and 2 of the second superseding indictment on grounds of duplicity.

Rule 8(a) of the Federal Rules of Criminal Procedure provides that:

(a) Joinder of Offenses. Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.

Duplicity is the charging of multiple, separate offenses in the same count; a pleading deficiency which is addressed by Rule 8(a). The prohibition against duplicitous indictments addresses different concerns, including interference with a unanimous juror agreement since the presence of multiple offenses in the same count may give rise to a situation in which a defendant may be convicted without unanimous juror agreement as to any of the offenses charged in the count in question and produce confusion as to the basis of the verdict which may subject a defendant to double jeopardy. These concerns have been repeatedly recognized by the courts which have referred to the issue of duplicity as allowing a jury to find a defendant guilty on the count without having reached a unanimous verdict on the commission of any particular offense. U.S. v. Saleh, 875 F.2d 535, 537 (6th Cir.1989); 24 Moore's Federal Practice 3rd. ed. § 608.04[1], p. 608-17.

The determination whether an indictment is duplicitous must be based on the allegations of the indictment itself. Count 1 of the second superseding indictment, the conspiracy count, charges defendants Muñoz-Franco (Muñoz), Sánchez-Arán (Sánchez), the Gutiérrez' brothers (the Gutiérrez), Umpierre-Hernández (Umpierre) and Dominguez-Wolff (Dominguez) with conspiracy to commit certain offenses against the United States, namely (1) to knowingly execute a scheme to defraud Caguas Central Federal Savings Bank (Caguas), (2) to willfully misapply funds of Caguas with the intent to injure and defraud said bank and (3) to knowingly and willfully make false entries in reports and statements of Caguas with intent to defraud the bank and to deceive its directors and agents as well as regulatory banking entities. In the introductory allegations, at paragraph 20, a Frank Mirandes-Roque (Mirandes) is identified as a "client of Caguas who obtained numerous commercial and construction loans in the name of his related corporate entities." The allegations of the indictment cast Mirandes as a central figure and an unindicted co-conspirator.

If this first count is read without reference to the overt acts set forth at pages 20 thru 42 inclusive, one would understand that Mirandes, as well as movants, Umpierre and Dominguez, were involved in one same conspiracy with the two bank officers charged, Muñoz and Sánchez. It is argued in the motion to dismiss, however, that the second superseding indictment does not describe one unitary conspiracy but at least two conspiracies. Movants argue that one alleged scheme relates to actions involving Muñoz, Sánchez and Mirandes, and a wholly separate alleged scheme relates to Muñoz, Sánchez, the Gutiérrez, Umpierre and Dominguez.

It is interesting to note that despite the government's representation that count 1 involves a single conspiracy, the description of the overt acts is neatly divided between two distinct sets of co-conspirators. Thus, the overt acts of a conspiracy between Muñoz, Sánchez and Mirandes, appearing at pages 21 thru 32 under the subtitle "Mirandes Construction Loans", correspond to each one of the Mirandes real estate construction projects listed at pages 7 and 8 of the second superseding indictment. Those overt acts cover the period from December 1981 thru November 27, 1989, and never once mention the Gutiérrez, Umpierre or Dominguez. The factual scenario involves only the two bank officers, the unindicted co-conspirator Mirandes and his related corporate entities listed at pages 9 and 10, to wit: Deproco Corporation, Rogue Enterprises, Inc., Pronos...