United States v. Velilla-Reyes
| Decision Date | 17 July 2017 |
| Docket Number | Crim. No. 15-410/14-556(DRD) |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. LEMUEL VELILLA-REYES, Defendant. |
| Court | U.S. District Court — District of Puerto Rico |
On October 12, 2016, a jury found Defendant Lemuel Velilla-Reyes guilty of two counts of mail fraud, in violation of 18 U.S.C. § 1341. See 14-cr-556 at Docket No. 358. The Court denied Defendant's Motions for a Judgment of Acquittal (Docket Nos. 34, 388, and 401) in an Opinion and Order (Docket No. 412) entered on June 12, 2017. Defendant now urges the Court to reconsider its ruling and dismiss the mail fraud counts (Docket No. 418). For the reasons set forth below, and recognizing both parties made persuasive arguments in what became a fascinating legal enigma, the Court GRANTS Defendant's motion, RECONSIDERS its prior ruling denying Defendant's motion, and ORDERS the entry of judgment of acquittal on Counts One and Two of 15-cr-410 (DRD).
Defendant's motion seeks reconsideration of the Court's denial of his Rule 29 motion. As such, the Court again recites the facts "in the light most favorable to the jury's verdict." United States v. Santos-Soto, 799 F.3d 49, 57 (1st Cir. 2015). Defendant Lemuel Velilla-Reyes ("Defendant") was an attorney licensed to practice in Puerto Rico. Co-defendant Wilfredo Rodriguez-Rodriguez ("Rodriguez-Rodriguez") was one of the leaders of a powerful drug trafficking organization that operated in the Bayamon area of Puerto Rico. Theorganization operated primarily in the Virgilio Davila, Falin Torrech, and Brisas de Bayamon public housing projects. Rodriguez-Rodriguez was the leader of the organization's drug points at the Brisas de Bayamon complex. The two codefendants met when Defendant represented Rodriguez-Rodriguez in a state case for possession of a firearm. Defendant appeared in state court several times on Rodriguez-Rodriguez's behalf between 2006 and 2007.
On July 14, 2011, at approximately 3:30 a.m., Puerto Rico Police Department ("PRPD") officers arrested Rodriguez-Rodriguez (hereinafter, "Fugitive") for unlawful possession of a firearm in Toa Baja, Puerto Rico. Rodriguez-Rodriguez was a fugitive who had evaded arrest for case 10-cr-251 (JAF) and, thus, informed the officers that he was "Felix Otero-Torres". Sometime later, Defendant appeared at the precinct and expressed to officers that he was there to represent the fugitive. The two men spoke briefly while the fugitive laid vomiting on a precinct bench. The fugitive was then taken to a hospital for treatment.
After the fugitive was discharged from the hospital, at around 9:30 PM, Pretrial Services Officer Kalynell Villanueva ("Villanueva") interviewed the fugitive. Defendant briefly appeared to state that he was representing the fugitive but left the room during Villanueva's interview with the fugitive. The fugitive provided November 5, 1980 as his birth date but did not provide any identification. Similarly, he did not provide a social security number, did not provide an address, did not provide any telephone contact information for himself or his family members, did not provide any work information, and did not provide any information regarding ownership of any vehicles or property. To questions from Villanueva, the fugitive answered he had lived in Puerto Rico for zero months prior to his arrest. Villanueva recommended the judge impose bail and, if the fugitive is able to post bail, impose electronic monitoring.
Later that day, Defendant represented the fugitive before a state court judge in the Bayamon courthouse for a determination of probable cause, known as a Rule 6 proceeding. Defendant stated for the record that he was representing "Felix Otero-Torres." The judge questioned the information in the pretrialreport, and Defendant stated that his client could not recall a specific address because he was new to the area. When the judge asked for the fugitive's social security number, Defendant interrupted and explained his client was not good with numbers and could not recall his social security number.
Defendant stipulated the presence of probable cause and the judge set bail in the amount of $24,000, and ordered the fugitive be fitted with an electronic monitoring bracelet. Defendant objected to electronic monitoring. At this point, the judge called Pretrial Officer Villanueva to the courtroom for a consult. Villanueva recounted the fugitive's vague answers to his questions, suggested the fugitive was a flight risk, and recommended electronic monitoring. However, Defendant stated that he had previously represented "Felix Otero-Torres" and there would be no problem with the fugitive appearing in court. He also stated that he could arrange for the fugitive to remain under the custody of his sister.
The judge ultimately decided against the imposition of electronic monitoring. The judge's determination on bail remained at $24,000. Defendant then called Milton Garcell ("Garcell"), a bail bondsman for Allegheny Casualty Company ("Allegheny") from whom Defendant had previously sought bonding services for his clients. Defendant directed Garcell to come outside the courthouse where an individual provided Garcell with $2,400 in cash. The individual also provided Defendant with cash.
Once the fugitive posted the requisite bail amount, Defendant negotiated the fugitive's booking time with PRPD officers present at the courthouse. Defendant intimated that his client was tired and hungry as it had been approximately twenty-four hours since the fugitive's arrest. Defendant asked Officer Nancy Mendez to allow him to bring his client to the precinct the following day so he could take the fugitive to eat. The officers agreed. Neither Defendant nor the fugitive appeared for booking the following day nor did either of them make any further appearances related to that case.
On November 28, 2011, the Bayamon Superior Court issued a judgment forfeiting the bond issued in favor of the fugitive. The judgment was mailed to the Allegheny Casualty Company's agent in Puerto Rico.On July 13, 2013, Allegheny Casualty Company mailed a check payable to the Puerto Rico Treasury Department to the offices of Allegeny's agent in Puerto Rico for the bond amount, $24,000.00. Authorities apprehended the fugitive in 2015.
It is well recognized that "[a] motion for reconsideration . . . certainly does not allow a party to introduce new evidence or advance new arguments that could or should have been presented to the district court prior to judgment." Marks 3-Zet-Ernst Marks GMBH & Co. KG v. Presstek, Inc., 455 F.3d 7, 15-16 (1st Cir. 2006). Thus, a motion for reconsideration cannot be used as a vehicle to re-litigate matters previously adjudicated. See Standard Quimica De Venezuela v. Cent. Hispano Int'l, Inc., 189 F.R.D. 202, n. 4 (D.P.R. 1999).
Motions for reconsideration are entertained by courts if they seek to correct manifest errors of law, present newly discovered evidence, or when there is an intervening change in law. See Prescott v. Higgins, 538 F.3d 32, 45 (1st Cir. 2008); see also Rivera Surillo & Co. v. Falconer Glass Indus., Inc., 37 F.3d 25, 29 (1st Cir. 1994)(citing F.D.I.C. Ins. Co. v. World University, Inc., 978 F.3d 10, 16 (1st Cir. 1992)). A motion for reconsideration is unavailable if said request simply brings forth a point of disagreement between the court and the litigant, or rehashes matters already properly analyzed and disposed of by the Court. See e.g., Waye v. First Citizen's Nat'l Bank, 846 F. Supp. 310 (M.D. Pa. 1994).
Defendant's motion does not present newly discovered evidence, nor does it argue there has been an intervening change in the law. See Prescott, 537 F.3d at 45. Defendants' motion, therefore, can only be entertained by the Court if it seeks to correct a manifest error of law. See id.
The jury found Defendant guilty of two counts of violating 18 U.S.C. §1341. A conviction for mail fraud requires proof of three elements: "(1) a scheme to defraud based on false pretenses; (2) the defendant's knowing and willing participation in the scheme with the intent to defraud; and (3) the use of interstate mail... communications in furtherance of that scheme." United States v. Hebshie, 549 F.3d 30, 35-36 (1st Cir. 2008)(quoting United States v. Cheal, 389 F.3d 35, 41 (1st Cir.2004)). After trial, Defendant moved the Court to enter a judgment of acquittal on the email fraud counts.
In adjudicating Defendant's prior Rule 29 motion, the Court considered all facts in the light most favorable to the prosecution and made all reasonable inferences in the government's favor. United States v. Garcia-Carrasquillo, 483 F.3d 124, 129-30 (1st Cir. 2007); United States v. Boulerice, 325 F.3d 75, 79 (1st Cir. 2003); United States v. Walters, 904, F.2d 765, 770 (1st Cir. 1990); United States v. Serrano, 870 F.2d 1, 5 (1st Cir. 1989). During its inquiry, the Court "neither weigh[ed] the credibility of the witnesses nor attempt[ed] to assess whether the prosecution succeeded in eliminating every possible theory consistent with the defendant's innocence." United States v. Muñoz-Franco, 487 F.3d 25, 41 (1st Cir. 2007) (internal citations and quotations omitted). With the aforementioned principles in mind, Court held that, "a rational factfinder could [have concluded] that the prosecution proved all elements of the crime beyond a reasonable doubt." See Garcia-Carrasquillo, 483 F.3d at 129-30. Defendant now moves for reconsideration of the Court's holding.
Defendant posits the Court erred in finding the United States proved the statute's "mailing element," which requires that "the defendant both (1) cause the use of the mails, which includes reasonably foreseeable mailings, and (2) use the mails for the purpose, or in furtherance, of executing the scheme to defraud." Hebshie, id. (citing United...
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