United States v. Keleher, Criminal No. 20-019 (FAB)

CourtUnited States District Courts. 1st Circuit. District of Puerto Rico
Writing for the CourtFRANCISCO A. BESOSA, UNITED STATES DISTRICT JUDGE
Citation505 F.Supp.3d 41
Parties UNITED STATES of America, Plaintiff, v. Julia Beatrice KELEHER [1]; Ariel Gutiérrez-Rodríguez [2], Defendant.
Docket NumberCriminal No. 20-019 (FAB)
Decision Date01 December 2020

505 F.Supp.3d 41

UNITED STATES of America, Plaintiff,
v.
Julia Beatrice KELEHER [1]; Ariel Gutiérrez-Rodríguez [2], Defendant.

Criminal No. 20-019 (FAB)

United States District Court, D. Puerto Rico.

Signed December 1, 2020


505 F.Supp.3d 44

Alexander L. Alum, Jose Capo-Iriarte, Scott H. Anderson, United States Attorneys Office, San Juan, PR, for Plaintiff.

Carlos J. Andreu-Collazo, Dominguez, Micheo, Ramos & Andreu Law LLC, Maria Dominguez-Victoriano, Javier Micheo-Marcial, Dmra Law LLC, Guaynabo, PR, Lanny Jesse Davis, Pro Hac Vice, Washington, DC, for Defendant Julia Beatrice Keleher.

Francisco Rebollo-Casalduc, Francisco Rebollo Casalduc Law Office, Jose Antonio Fuste, Jose Antonio Fuste, Attorney at Law, San Juan, PR, for Defendant Ariel Gutiérrez-Rodríguez.

OPINION AND ORDER

FRANCISCO A. BESOSA, UNITED STATES DISTRICT JUDGE

Defendants Julia Beatrice Keleher ("Keleher") and Ariel Gutiérrez-Rodríguez ("Gutiérrez," and together with Keleher, the "defendants") each filed several motions to dismiss the indictment or certain counts in the indictment. (Docket Nos. 57–59, 67–69, 85.) One of Keleher's motions alternatively seeks dismissal of an allegation in one count, striking of the allegation, or a bill of particulars. (Docket No. 67.) As discussed below, the defendants’ motions are all DENIED .

I. Background

The following factual recitation is taken from the indictment. (Docket No. 3.) "When a defendant seeks dismissal of an indictment, courts take the facts alleged in the indictment as true ...." United States v. Ngige, 780 F.3d 497, 502 (1st Cir. 2015).

Keleher was the Secretary of the Puerto Rico Department of Education ("DOE") from approximately January 2017 to April 2019. Id. at p. 1. Gutiérrez was a consultant who provided services to Company A and Company B. Id. at p. 4.

Company A bought, sold, leased, and managed real estate. Id. at p. 3. Company B was a consulting business. Id. The same individual was president of both companies. Id. The two companies also shared office space. Id.

Company C owned Ciudadela, a luxury housing complex in Santurce, Puerto Rico. Id.

Individual A was the chief executive officer of Company C. Id. at p. 4. Individual A also served as the president of Company D. Id.

Company D was a non-profit organization set up to promote education-related initiatives in Puerto Rico. Id. at p. 3. Company D disbursed money to the entity which paid Keleher's salary. Id. Company D received more than $750,000 from Company E, another non-profit entity. Id. at p. 4.

On June 7, 2018, Keleher signed a lease for a two-bedroom apartment in Ciudadela. Id. The agreement valued the monthly rental price at $1,500.00, but allowed her to occupy the apartment until no later than August 15, 2018, for the nominal amount of $1.00. Id. Pursuant to the agreement, Keleher was to purchase the apartment for $297,500.00, and receive an incentive bonus of $12,000.00 in connection with the purchase. Id. Prior to signing the agreement, Keleher sent an e-mail to an employee of

505 F.Supp.3d 45

Company A confirming that she would receive the incentive bonus. Id. at p. 8.

The lease agreement expired on August 15, 2018. Id. at p. 4. Keleher remained living in the apartment until purchasing it on or about December 4, 2018. Id. So Keleher occupied the apartment from June 7, 2018, to December 4, 2018, for $1.00. Id.

Ciudadela is adjacent to Escuela Especializada Bilingüe Padre Rufo ("Padre Rufo School"). Id. at p. 3. The Padre Rufo School operated under the auspices of the DOE. Id.

Beginning in May 2018, Gutiérrez communicated with one or more DOE employees working at the Padre Rufo School to obtain assent for Company C to acquire 1,034 square feet of the Padre Rufo School. Id. at p. 7. Gutiérrez sent a letter to a DOE employee at the Padre Rufo School seeking authorization for Company C to acquire the land. Id. Another letter he sent to a DOE employee at the school was a draft of a letter addressed to Keleher in which the DOE employee assented to Company C's acquisition of the land. Id. The DOE employee signed the letter. Id. And, on June 22, 2018, Gutiérrez e-mailed Keleher about Company C's request to acquire the Padre Rufo School land. Id. at p. 8. Keleher forwarded the e-mail to herself the following day. Id.

Then, on July 17, Gutiérrez sent to Keleher via e-mail a draft of a letter to Individual A. Id. at p. 7. The letter purported to authorize Company C to acquire 1,034 square feet of the Padre Rufo School. Id. at pp. 6–7. Keleher had the letter placed on DOE letterhead and signed it. Id. at p. 7. Also on July 17, Keleher e-mailed a DOE employee attaching documents relating to Company C's acquisition of the Padre Rufo School land. Id. at p. 8.

Gutiérrez and Keleher exchanged at least one other e-mail. On August 20, Gutiérrez offered assistance to Keleher to obtain a bank loan. Id.

Another e-mail, dated August 21, was sent from Individual A to Keleher and to a representative of Company E. Id. In this e-mail, Individual A confirmed that money should be disbursed to Company D. Id. This e-mail was not charged as an instance of wire fraud. See id. at pp. 9–10.

In January 2020, Keleher and Gutiérrez were indicted in this case. Id. passim. The charges include conspiracy to commit honest services fraud (count one), wire fraud (counts two through seven), and federal program bribery (counts eight and nine). Id.

II. Legal Standard for Motions to Dismiss

The Constitution guarantees, with exceptions not relevant here, that "[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury", and that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be informed of the nature and cause of the accusation." U.S. Const. amends. V, VI. The Federal Rules of Criminal Procedure effect these guarantees in part through the requirement that "[t]he indictment or information must be a plain, concise, and definite written statement of the essential facts constituting the offense charged." Fed. R. Crim. P. 7(c)(1).

A defendant in a criminal case may move to dismiss an indictment before trial "if the basis for the motion is then reasonably available and the motion can be determined without a trial on the merits." Id. R. 12(b)(3). The defendant may assert that there is a defect in the indictment, including "lack of specificity" and "failure to state an offense." Id. R. 12(b)(3)(B).

505 F.Supp.3d 46

The test for a sufficient indictment is defined by an indictment's functions. "[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) ; see United States v. Resendiz-Ponce, 549 U.S. 102, 108, 127 S.Ct. 782, 166 L.Ed.2d 591 (2007).

Those principles are clear in the first circuit. The indictment "need only outline the elements of the crime and the nature of the charge so that the defendant can prepare a defense and plead double jeopardy in any future prosecution for the same offense." United States v. Stepanets, 879 F.3d 367, 372 (1st Cir. 2018) (internal quotation marks omitted); see United States v. Sepúlveda, 15 F.3d 1161, 1192 (1st Cir. 1993). "Unlike a civil complaint that need allege facts that plausibly narrate a claim for relief, a criminal indictment need only apprise the defendant of the charged offense, so that the defendant can prepare a defense and plead double jeopardy in any future prosecution for the same offense." United States v. Rodríguez-Rivera, 918 F.3d 32, 34 (1st Cir. 2019) (citations and internal quotation marks omitted).

There is a narrow exception to that test. "[A] district court may consider a pretrial motion to dismiss an indictment where the government does not dispute the ability of the court to reach the motion and proffers, stipulates, or otherwise does not dispute the pertinent facts." United States v. Musso, 914 F.3d 26, 29–30 (1st Cir. 2019) (internal quotation marks omitted); see United States v. Del Valle-Fuentes, 143 F. Supp. 3d 24, 26–28 (D.P.R. 2015) (Besosa, J.) (collecting cases and explaining the exception).

"An indictment must set forth each element of the crime that it charges." Almendárez-Torres v. United States, 523 U.S. 224, 228, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). And, "[w]here guilt depends so crucially upon such a specific identification of fact, ... an indictment must do more than simply repeat the language of the criminal statute." Russell v. United States, 369 U.S. 749, 764, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962).

A Rule 12(b) motion, however, does not "provide[ ] an occasion to force the government to defend the sufficiency of its evidence to be marshalled in support of proving the charged offense." Rodríguez-Rivera, 918 F.3d at 35. "[T]he government need not recite all of its evidence in the indictment." Stepanets, 879 F.3d at...

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4 practice notes
  • United States v. Keleher, Criminal No. 20-019 (FAB)
    • United States
    • United States District Courts. 1st Circuit. District of Puerto Rico
    • January 28, 2021
    ...is necessary. A more detailed discussion of the indictment's allegations can be found at United States v. Keleher, Crim. No. 20-019, 505 F.Supp.3d 41, 44–45 (D.P.R. Dec. 1, 2020) (Besosa, J.).2 The taint team provision was located in the government's probable cause affidavits. See Docket No......
  • United States v. Rodríguez-Canchani, Criminal No. 19-710 (FAB)
    • United States
    • United States District Courts. 1st Circuit. District of Puerto Rico
    • October 12, 2021
    ...to the Rule 14 analysis. Indeed, the United States "need not recite all of its evidence in the indictment." United States v. Keleher, 505 F. Supp. 3d 41, 46 (D.P.R. 2020) (quoting United States v. Stepanets, 879 F.3d 367, 372 (1st Cir. 2018) ) (Besosa, J.). Severance is appropriate when the......
  • United States v. Rodriguez-Canchani, Criminal 19-710 (FAB)
    • United States
    • United States District Courts. 1st Circuit. District of Puerto Rico
    • October 12, 2021
    ...to the Rule 14 analysis. Indeed, the United States 6 “need not recite all of its evidence in the indictment.” United States v. Keleher, 505 F.Supp.3d 41, 46 (D.P.R. 2020) (quoting United States v. Stephanets, 879 F.3d 367, 372 (1st Cir 2018)) (Besosa, J.). Severance is appropriate when ther......
  • United States v. Alonso-Vega, Criminal 20-371 (RAM)
    • United States
    • United States District Courts. 1st Circuit. District of Puerto Rico
    • February 3, 2022
    ...to defend the sufficiency of its evidence to be marshalled in support of proving the charged offense.'” United States v. Keleher, 505 F.Supp.3d 41, 46 (D.P.R. 2020) (citing Rodríguez-Rivera, 918 F.3d at 35). “At the indictment stage, the government need not ‘show,' but merely allege, the re......
4 cases
  • United States v. Keleher, Criminal No. 20-019 (FAB)
    • United States
    • United States District Courts. 1st Circuit. District of Puerto Rico
    • January 28, 2021
    ...is necessary. A more detailed discussion of the indictment's allegations can be found at United States v. Keleher, Crim. No. 20-019, 505 F.Supp.3d 41, 44–45 (D.P.R. Dec. 1, 2020) (Besosa, J.).2 The taint team provision was located in the government's probable cause affidavits. See Docket No......
  • United States v. Rodríguez-Canchani, Criminal No. 19-710 (FAB)
    • United States
    • United States District Courts. 1st Circuit. District of Puerto Rico
    • October 12, 2021
    ...to the Rule 14 analysis. Indeed, the United States "need not recite all of its evidence in the indictment." United States v. Keleher, 505 F. Supp. 3d 41, 46 (D.P.R. 2020) (quoting United States v. Stepanets, 879 F.3d 367, 372 (1st Cir. 2018) ) (Besosa, J.). Severance is appropriate when the......
  • United States v. Rodriguez-Canchani, Criminal 19-710 (FAB)
    • United States
    • United States District Courts. 1st Circuit. District of Puerto Rico
    • October 12, 2021
    ...to the Rule 14 analysis. Indeed, the United States 6 “need not recite all of its evidence in the indictment.” United States v. Keleher, 505 F.Supp.3d 41, 46 (D.P.R. 2020) (quoting United States v. Stephanets, 879 F.3d 367, 372 (1st Cir 2018)) (Besosa, J.). Severance is appropriate when ther......
  • United States v. Alonso-Vega, Criminal 20-371 (RAM)
    • United States
    • United States District Courts. 1st Circuit. District of Puerto Rico
    • February 3, 2022
    ...to defend the sufficiency of its evidence to be marshalled in support of proving the charged offense.'” United States v. Keleher, 505 F.Supp.3d 41, 46 (D.P.R. 2020) (citing Rodríguez-Rivera, 918 F.3d at 35). “At the indictment stage, the government need not ‘show,' but merely allege, the re......

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