Opinion
Criminal No. 21-017 (FAB)
2023-01-10
UNITED STATES of America, Plaintiff, v. Sixto Jorge DÍAZ-COLÓN, Defendant.
Myriam Y. Fernandez-Gonzalez, AUSA, United States Attorneys Office District of Puerto Rico, San Juan, PR, Michael Nicholas Lang, United States Department of Justice, Criminal Division, Washington, DC, for Plaintiff. Rafael F. Castro-Lang, Castro & Castro Law Office, San Juan, PR, for Defendant.
Myriam Y. Fernandez-Gonzalez, AUSA, United States Attorneys Office District of Puerto Rico, San Juan, PR, Michael Nicholas Lang, United States Department of Justice, Criminal Division, Washington, DC, for Plaintiff. Rafael F. Castro-Lang, Castro & Castro Law Office, San Juan, PR, for Defendant.
OPINION AND ORDER
BESOSA, District Judge.
Four pretrial motions are before the Court. First, defendant Sixto Jorge Díaz-Colón ("Díaz")'s moves to dismiss the indictment. (Docket No. 210.) Second, Díaz moves for leave to file a motion regarding alleged prosecutorial misconduct. (Docket No. 248.) Third, the United States moves to preclude inter alia argument pertaining to alleged prosecutorial misconduct. (Docket No. 224.) Fourth, Díaz moves to continue trial. (Docket No. 253.)
For the reasons set forth below, Díaz's motion to dismiss is DENIED. (Docket No. 210.) His motion for leave to file a motion pertaining to prosecutorial misconduct is DENIED WITHOUT PREJUDICE. (Docket No. 248.) The United States' motion in limine is GRANTED IN PART and HELD IN ABEYANCE IN PART. (Docket No. 224.) Lastly, Díaz's motion to continue trial is DENIED. (Docket No. 253.)
I. Background
The factual allegations forming the basis of this criminal action are set forth in the Opinion and Order issued by this Court on June 16, 2022. See United States v. Díaz- Colón, Case No. 21-017, 607 F.Supp.3d 136, 2022 U.S. Dist. LEXIS 107908 (D.P.R. Jun. 16, 2022) (Besosa, J.). A grand jury returned a three-count indictment on January 26, 2021, charging Díaz with attempted extortion in violation of 18 U.S.C. §§ 1951 and 2 (count one), interstate extortion in violation of 18 U.S.C. §§ 875(d) and 2 (count two), and destruction of records in a federal investigation in violation of 18 U.S.C. § 1519 (count three). (Docket No. 1.)
A. Díaz's Failure to File a Timely Motion to Dismiss
Defense counsel Rafael Castro-Lang ("Castro") concedes that the Court imposed a February 2, 2022 "deadline for filing pretrial motions." (Docket No. 224.) Indeed, Castro filed a notice of appearance on March 18, 2021, eleven months before this deadline and with sufficient time to review the indictment. (Docket No. 31.) Díaz subsequently filed the first motion to dismiss on February 7, 2022, citing the indictment extensively. (Docket No. 103.) The Court denied this motion, however, ordering that the parties submit proposed jury instructions in anticipation of trial. Díaz-Colón, 607 F.Supp.3d 136, 2022 U.S. Dist. LEXIS 107908; Docket No. 206.
Díaz filed a second motion to dismiss on November 22, 2022, two months before trial. (Docket Nos. 204 and 210.) Defense counsel recently "realized that the indictment is defective and must be dismissed/corrected." (Docket No. 210 at p. 1.) According to Castro, "[g]iven that the titles of Count One—Three [sic] appeared to be charging only one offense, it wasn't until [defense] counsel was preparing the jury instructions, which were initially due on 11/21/2022, that he realized the counts were duplicitous." Id. at p. 7.
The Court will not entertain this audacious excuse for a lack of diligence. The first motion to dismiss quoted the indictment verbatim, demonstrating that Castro carefully read and closely evaluated this document. (Docket No. 103.) Castro — a criminal trial lawyer with decades of experience — cannot now claim, after serving as defense counsel in this case for nearly two years, that he relied solely on the "titles" of counts one, two, and three in determining whether to file a motion to dismiss.
Castro assigns blame for the belated motion on his schedule, contending that prior commitments diverted his attention from this case. (Docket No. 101 at pp. 7-8.) He recounts that:
counsel was in trial in Cr. 15-633 (SCC), which lasted 10 days, ending on May 6, 2022. Trial preparation was lengthy. Immediately thereafter counsel had to prepare for trial in Cr. 18-599 (ADC), which was scheduled to begin on 06/06/2022 and was continued the day trial was going to begin due to circumstances that arose in an in [sic] chambers meeting with the judge where new evidence was produced by the Government. The trial was rescheduled for 10/02/2022, and it was only two days prior to it beginning that the defendant entered into a plea agreement. Aside from this, counsel had multiple other cases where he had to prepare lengthy briefs, motions and attend hearings. An example of this is Appeal No. 22-1307 before the First Circuit where counsel filed a 71-page Brief on 11/02/2022, that required a substantial amount of time to prepare. Counsel did not have the opportunity to examine the Jencks at the time they were provided and began concentrating on the jury instructions when the 11/21/2022 deadline was approaching. He then realized the indictment suffered from serious deficiencies
. . . that needed to be presented prior to trial.Id. Castro's 2022 calendar is of no concern to this Court. That an attorney is on trial or submitting an appellate brief does not diminish the need for zealous and attentive representation. See Freiria Trading Co. v. Maizoro, S.A., 187 F.R.D. 47, 49 (D.P.R. 1999) ("[B]eing involved in another case - even a high profile case - will not excuse an attorney from following court orders in a different case.") (Pieras, J.); Piñero Schroeder v. Fed. Nat'l Mortg. Asso., 574 F.2d 1117, 1118 (1st Cir. 1978) ("Most attorneys are busy most of the time and they must organize their work so as to be able to meet the time requirements of the matters they are handling or suffer the consequences."); Batiz-Chamorro v. Puerto Rico Cars, Inc., 304 F.3d 1, 5 (1st Cir. 2002) ("The fact that an attorney has other fish to fry is not an acceptable reason for disregarding a court order.").
Pursuant to Federal Rule of Criminal Procedure 12(b)(3) ("Rule 12(b)(3)"), "[i]f a party does not meet a deadline for [filing a motion to dismiss the indictment], the motion is untimely. But a court may consider the defense, objection, or request if the party shows good cause." Fed. R. Crim. P. 12(b)(3). Díaz has failed to establish good cause for the untimely motion to dismiss. This Court nevertheless "retains ample discretion in setting deadlines for counsel who wish to seek pretrial rulings, and in deciding whether to rule on such motions pretrial, or to rule tentatively and revisit the decision at trial." United States v. Agosto-Vega, 731 F.3d 62, 65 (1st Cir. 2013) (citing Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 58 (1st Cir. 2000)) (holding that district courts have "wide discretion" in managing their cases).
The Court will consider Díaz's second motion to dismiss despite the absence of good cause. Díaz is on notice that failure to comply with Court-imposed deadlines may result in sanctions. See, e.g., Torres v. Puerto Rico, 485 F.3d 5, 11 (1st Cir. 2007) ("District courts have wide discretion to set reasonable deadlines for asserting such defenses, and they may impose condign sanctions on parties who do not comply. The sanction imposed here - effectively, disregard of a belated motion - was not an abuse of discretion.").
II. Díaz's Second Motion to Dismiss
Díaz seeks dismissal of the indictment because "[a]ll counts are duplicitous." (Docket No. 210 at p. 1.) An indictment is sufficient "if it contains the elements of the offense charged, fairly informs the defendant of the charges against which he [or she] must defend, and enables him [or her] to enter a plea without fear of double jeopardy." United States v. Ford, 839 F.3d 94, 104 (1st Cir. 2016) (internal quotation marks and citation omitted). "[I]t is generally sufficient that an indictment set forth the offense in the words of the statute itself as long as those words set forth all the elements of the offense without any uncertainty or ambiguity." United States v. Brown, 295 F.3d 152, 154 (1st Cir. 2002) (internal quotation marks and citation omitted); see United States v. Rodríguez-Rivera, 918 F.3d 32, 34 (1st Cir. 2019) ("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.") (internal quotation marks and citation omitted).
To adjudicate a motion to dismiss, courts "must take the allegations in the indictment as true," cognizant that "the question is not whether the government has presented enough evidence to support the charge, but solely whether the allegations in the indictment are sufficient to apprise the defendant of the charged offense." United States v. Ngige, 780 F.3d 497, 502 (1st Cir. 2015) (citation omitted). Notably, the indictment need not provide a preview of the evidence to be adduced at trial. See United States v. Stepanets, 879 F.3d 367, 372 (1st Cir. 2018) (noting that the "government need not recite all of its evidence in the indictment").
A. Duplicity
Federal Rule of Criminal Procedure 8 ("Rule 8") states that:
The indictment or information may charge a defendant in separate counts with 2 or more offenses 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 are concerned with or constitute parts of a common scheme or plan.Fed. R. Crim. P. 8(a). Essentially, "separate offenses [must] be charged in separate counts of an indictment." United States v. Prieto, 812 F.3d 6, 11 (1st Cir. 2016). This mandate serves two objectives: to provide the defendant with sufficient notice of the charges presented against him, and to ensure that the verdict is unanimous. Id. (citations omitted).
An indictment is duplicitous when the charging instrument "[joins] in a single count . . . two or more distinct and separate offenses." United States v. Verrecchia, 196 F.3d 294, 297 (1st Cir. 1999) (quotation omitted). A duplicity challenge, however, "ordinarily presents a question of fact for the jury to resolve." United States v. Balthazard, 360 F.3d 309, 315 (1st Cir. 2004) (citation omitted). "Dismissing an indictment is an extraordinary step." United States v. Stokes, 124 F.3d 39, 44 (1st Cir. 1997). Moreover, duplicity is rarely, if ever, a reason to dismiss an indictment. See United States v. Sidoo, 471 F. Supp. 3d 369, 377 (D. Mass. 2020) (noting that "district courts consistently (and properly) rebuff defendants' efforts to dismiss conspiracy allegations based on claims of duplicity") (citation omitted).
B. Count One: Hobbs Act Extortion
Count one alleges that Díaz violated the Hobbs Act. (Docket No. 1.) Congress enacted this statute in 1946 to amend and expand the Anti-Racketeering Act of 1934. United States v. Brissette, 919 F.3d 670, 683 (1st Cir. 2019). This legislation is expansive, extending "as far as Congress's power to regulate conduct under the Commerce Clause." United States v. Rodríguez-Casiano, 425 F.3d 12, 14 (1st Cir. 2005); United States v. Jiménez-Torres, 435 F.3d 3, 7 (1st Cir. 2006) ("Congress's intent in enacting the Hobbs Act was to use all of its constitutional power to punish interference with interstate commerce by extortion, robbery, or physical force.") (internal citation and quotation omitted). The Hobbs Act provides that:
Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires to do so, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined under this title or imprisoned not more than twenty years, or both.18 U.S.C. § 1951(a). Extortion is "the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right." 18 U.S.C. § 1951(b)(2).
Díaz posits that attempt, aiding and abetting, and substantive Hobbs Act extortion are mutually exclusive, incompatible theories of liability that are duplicitous. (Docket No. 101 at p. 2.) He is wrong. Count one states in pertinent part that:
[Díaz] did knowingly and unlawfully obstruct, delay and affect and attempt to obstruct, delay and affect in any way and degree, commerce and the movement of any article of commodity in commerce, by extortion, as that term is defined in Title 18, United States Code, Section 1951, and aided and abetted such offense that is, DÍAZ COLÓN attempted to obtain property from Person 4 and others, with consent, induced by wrongful use of fear.(Docket No. 1 at p. 5.) As further discussed below, Díaz misconstrues the law and cites inapposite precedent.
1. Aiding and Abetting
Pursuant to 18 U.S.C. section 2 ("section 2"), "[w]however commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal." 18 U.S.C. § 2(a). The First Circuit Court of Appeals has held that "aiding and abetting is an alternative charge in every count, whether explicit or implicit." United States v. Díaz-Rodríguez, 853 F.3d 540, 546-47 (1st Cir. 2017) (quotation omitted); United States v. Marino, 277 F.3d 11, 29 (1st Cir. 2002) ("Aiding and abetting liability is inherent in every federal substantive crime.") (citation omitted).
In fact, convictions based on sections 2 and 1951 have routinely been affirmed by the First Circuit Court of Appeals. See, e.g., United States v. Valentini, 944 F.3d 343, 350 (1st Cir. 2019) ("A rational jury could have found that [the defendant] conspired in, and aided and abetted, a scheme that brought about the transfer of property [in violation of the Hobbs Act].") (emphasis added); United States v. Vázquez-Botet, 532 F.3d 37, 44 (1st Cir. 2008) (affirming the defendant's conviction for "several counts of extortion under color of official right and by economic fear, in violation of the Hobbs Act, 18 U.S.C. 1951, and aiding and abetting this offense under 18 U.S.C. § 2") (emphasis added); United States v. Cornier-Ortiz, 361 F.3d 29, 37 (1st Cir. 2004) (affirming a Hobbs Act conviction, noting that "aiding and abetting extortion" requires that the United States prove: "(1) [the defendant] aided the inducement of a victim to part with property; (2) that he did so knowingly and willingly with extortionate means; and (3) that interstate commerce was affected") (emphasis added); United States v. Casiano, Case No. 93-1783, 1994 U.S. App. LEXIS 16151, at *1 (1st Cir. June 24, 1994) (affirming the defendant's conviction for "aiding and abetting an attempted extortion under color or official right, 18 U.S.C. §§ 2 and 1951") (emphasis added); United States v. Rivera-Medina, 845 F.2d 12, 13 (1st Cir. 1988) (affirming a Hobbs Act conviction for "aiding and abetting, and conspiring with, [a third party] in obstructing commerce by extortion") (emphasis added). Indeed, Castro served as defense counsel in Vázquez-Botet, representing his client in a Hobbs Act prosecution in which the United States presented an "aiding and abetting" theory of extortion. 532 F.3d at 44.
Criminal liability for aiding and abetting a Hobbs Act extortion is not a controversial concept, nor is it a reason to dismiss count one.
2. Attempted Extortion
Díaz argues that "attempted extortion" is "different" from "the substantive count of committing a Hobbs Act violation." (Docket No. 210 at p. 2.) This statement is incorrect.
Pursuant to Federal Rule of Criminal Procedure 31(c), "[a] defendant may be found guilty . . . [of] an attempt to commit the offense charged; or . . . an attempt to commit an offense necessarily included in the offense charged, if the attempt is an offense in its own right." Fed. R. Crim. P. 31(c). In United States v. D'Amico, the First Circuit Court of Appeals held unequivocally that "attempts are lesser-included offenses of completed Hobbs Act violations." 496 F.3d 95, 99 (1st Cir. 2007) (vacated on other grounds, D'Amico v. United States, 552 U.S. 1173, 128 S.Ct. 1239, 170 L.Ed.2d 52 (2008)). The D'Amico court "agree[d] with the district court that the indictment [was] not duplicitous on its face," affirming the defendant's conviction for "only one Hobbs Act violation - extortion or the lesser included offense of attempted extortion." Id. at 99 (emphasis added); United States v. Gianelli, 585 F. Supp. 2d 186, 192 (D. Mass. 2008) ("[T]his Court finds that D'Amico controls and that the counts charging attempted extortion along with the completed crime are not duplicitous."); see United States v. Bernard, Case No. 92-558, 1983 WL 144644, at *2, 1993 U.S. Dist. LEXIS 3697, at *5 (E.D. La. Mar. 24, 1993) ("Attempt to extort and extortion . . . are not distinct offenses; attempt to extort is a lesser included offense) (citation omitted); United States v. Parsons, Case No. 13-104, 2015 WL 898259, at *2, 2015 U.S. Dist. LEXIS 25036, at *4 (E.D. Pa. Feb. 27, 2015) ("[It] is permissible for a single count of an indictment to allege . . . that a defendant committed a Hobbs Act offense and aided and abetted the commission of the offense.") (citing United States v. Troutman, 572 F. Supp. 2d 955, 963 (N.D. Ill. 2008) ("Count Twelve could properly be read as alleging that [the defendant] committed the attempted [Hobbs Act] extortion, or, in the alternative, that he aided and abetted it. Thus, Count Twelve is neither duplicitous nor insufficient and will not be dismissed on this ground.")); cf United States v. Serrano-Delgado, 375 F. Supp. 3d 157, 163 n.2 (D.P.R. 2019) ("The jury in this case was . . . entitled to convict Serrano of an attempted Hobbs Act robbery") (Besosa, J.).
Díaz cites United States v. Starks, 515 F.2d 112 (3d Cir. 1975), for the proposition that "it will be impossible to determine which of the offenses he committed" should the jury return a guilty verdict. (Docket No. 210 at p. 2.) Starks is distinguishable, however, because that indictment charged conspiracy to extort (which requires an agreement among two or more persons) and attempt to extort (which requires no proof of an agreement) in a single count. 515 F.2d at 116. Because this count was duplicitous, the district court should have requested that the United States "elect between the conspiracy charge and the attempt charge." Id. at 117. The indictment in this case does not charge Díaz with conspiracy. (Docket No. 1.) Accordingly, Díaz's duplicity argument regarding count one is unavailing.
C. Counts Two and Three
Díaz argues that counts two and three cannot charge "substantive offenses for violations of 18 U.S.C. 875(d) . . . and 18 U.S.C. 1519" in conjunction with attempt to commit these crimes. (Docket No. 210 at p. 2.) The only precedent cited by Díaz in support of this proposition is United States v. Rivera-Solá, 713 F.2d 866 (1st Cir. 1983). The First Circuit Court of Appeals held that "attempt is actionable only where a specific criminal statute outlaws both its actual as well its attempted violation." Rivera-Solá, 713 F.2d at 869. This argument is a non sequitur, however, because counts two and three do not charge Díaz with attempt to violate 18 U.S.C. § 875(d) or § 1519. (Docket No. 1 at pp. 6-7.) Because Díaz sets forth no reason to dismiss the indictment, his Rule 12(b)(3) motion is DENIED.
D. Alleged Government Misconduct
Díaz purports that "grand jury testimonies with other discovery [reflect] Government misconduct." (Docket No. 210 at p. 3.) The Court will not consider this threadbare allegation, a transparent attempt to delay trial and to embark on a fishing expedition. Díaz previously set forth "specious and unfounded allegations of prosecutorial misconduct" without success. Díaz-Colón, 607 F.Supp.3d at 147, 2022 U.S. Dist. LEXIS 107908, at *22-23. Indeed, this Court "admonish[ed] counsel to refrain from making unsubstantiated claims of wrongdoing." Id. He now seeks leave of the Court to file a "dispositive motion and exercise his Fifth and Sixth Amendment rights." (Docket No. 248 at p. 5.) This motion is DENIED WITHOUT PREJUDICE.
Should Díaz argue that the United States engaged in prosecutorial misconduct, he SHALL enumerate with specificity: (1) the allegedly wrongful act or omission; (2) the prosecutors and other government agents involved; (3) the legal basis upon which Díaz relies to argue that the act or omission constitutes misconduct. Having found Castro's prior allegations of misconduct frivolous, the Court must take this prophylactic step to balance Díaz's rights with the conservation of judicial resources. Upon review of Diaz' submission, the Court will determine whether to grant leave to file a supplemental submission. Castro is warned that any allegation of prosecutorial misconduct not made in good faith may result in sanctions. III. The United States' Motion in Limine
The United States presents five requests to preclude evidence. (Docket No. 224.) First, the motion in limine seeks to preclude Díaz from "offering evidence or argument about the identity of the source of the public disclosure of the 889-page Telegram chat conversation." Id. at p. 1. Second, the United States moves to exclude "evidence or arguments that other individuals could have been charged with a crime but were not." Id. Third, evidence that "government prosecutors or agents acted improperly or engaged in [unfair] conduct" is purportedly inadmissible. Id. Fourth, the United States contends that Díaz is prohibited from promoting jury nullification. Id. Fifth, the United States anticipates that Díaz will attempt to conduct improper impeachment of government witnesses. Id.
A. Release of the 889-Page Telegram Conversation
On July 13, 2019, media outlets released a Telegram conversation between Puerto Rico Governor Ricardo A. Rosselló ("Rosselló") and his associates. (Docket No. 1 at p. 3.) This 889-page document contained lewd remarks, profane language, and disparaging comments from the upper echelon of the Puerto Rico government.
Three days later, Díaz met with the Secretary of Public Affairs (hereinafter, "Person 4"). Id. at p. 4. Díaz revealed that: (1) Raúl Maldonado-Nieves ("Maldonado-Nieves") possessed Telegram messages that had not yet been released publicly," (2) Maldonado-Nieves obtained the messages from his father's cellphone, (3) the unreleased messages "contained damaging information" about Governor Rosselló and Person 4, (4) Maldonado-Nieves "intended to 'burn down Puerto Rico,' by releasing these Telegram messages unless [he] received approximately $300,000," and (5) Díaz offered to accept this payment "through a corporation that [he] owned and did not have any contracts with the government." Id. (emphasis added). In addition to the demand for $300,000, Díaz attempted to extort a "talent" fee, payment for favorable commentary by "other well-known individuals" in the media. Id. at p. 4. Lastly, Díaz requested the reinstatement of government contracts with the Puerto Rico Department of Treasury and the Puerto Rico Office of Management of Budget. Id. These contracts inured to Díaz's financial benefit. Id. In fact, Díaz later sent Person 4 a Telegram message to identify the relevant companies with expired government contracts. Id. Ultimately, Díaz attempted to obtain on behalf of Maldonado-Nieves and himself: (1) $300,000 in hush money, (2) a talent fee, and (3) the reinstatement of certain government contracts. Maldonado-Nieves declined Díaz's offer. Id.
The indictment does not allege that Díaz possessed or disclosed the 889-page Telegram conversation on July 13, 2019. He purportedly possessed additional conversations that the media had not yet published. (Docket No. 1 at p. 4.) Federal Rule of Evidence 402 provides that all relevant evidence is admissible unless excluded by the United States Constitution, federal statute, or other rule. Fed. R. Evid. 402. Evidence is relevant if "it has any tendency to make a fact more or less probable than it would be without the evidence [and] the fact is of consequence in determining the action." Fed. R. Evid. 401. The source of the 889-page Telegram conversation is irrelevant to this action. Consequently, this evidence is inadmissible.
Díaz asserts that the source of disclosure is relevant within the context of cross-examination. (Docket No. 240 at pp. 2-3.) Maldonado-Nieves allegedly "bragged about having the chats and told the defendant that the defendant could have had exclusive rights to them long before." (Docket No. 224 at p. 8.) According to Díaz, "this is a false statement of a cooperating witness." (Docket No. 240 at pp. 2-3.) Should Maldonado-Nieves testify at trial, Díaz may question whether this statement is false. He may not, however, impeach Maldonado-Nieves on collateral matters with extrinsic evidence. See United States v. Catalán-Román, 585 F.3d 453, 468-69 (1st Cir. 2009) ("Under the common law of evidence and the law of this circuit, impeachment by extrinsic evidence is normally restricted to impeachment on matters that are not collateral.") (citing United States v. Cruz-Rodríguez, 541 F.3d 19, 30 (1st Cir. 2008) ("It is well established that a party may not present extrinsic evidence to impeach a witness by contradiction on a collateral matter.")). A collateral matter is "not relevant in the litigation to establish a fact of consequence, i.e. not relevant for a purpose other than mere contradiction of the in-court testimony of the witness." United States v. Beauchamp, 986 F.2d 1, 3 (1st Cir. 1993).
The person responsible for the 889-page disclosure is a collateral matter, probative only to impeach putative testimony but immaterial to the question of guilt. Accordingly, extrinsic evidence regarding the source of disclosure is inadmissible. See, e.g., United States v. Torres-Correa, 23 4th 129, 135 (1st Cir. 2022) (The problem with introducing the FBI video is not that it would have been irrelevant to [the witness'] credibility. Rather, the problem is that the video's limited relevance to [the witness'] credibility was insufficient to outweigh the danger it posed of confusing the jury and causing delay.") (citing United States v. Mulinelli-Navas, 111 F.3d 983 - 989 (1st Cir. 1997) (holding that "the district court did not abuse its discretion in excluding Murray's testimony, which was relevant only to López's credibility on a matter immaterial to Mulinelli's guilt.")).
B. Evidence that Other Individuals Were Not Charged with an Offense
The Supreme Court has held that a "selective prosecution claim is not a defense on the merits to the criminal charge itself, but an independent assertion that the prosecutor has brought a charge for reasons forbidden by the Constitution." United States v. Armstrong, 517 U.S. 456, 463, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996); see United States v. Regan, 103 F.3d 1072, 1082 (2d Cir. 1997) ("Because it involves a defect in the institution of the prosecution, the selective prosecution defense is an issue for the court rather than the jury.") (internal quotation and citation omitted); United States v. Abboud, 438 F.3d 554, 579 (6th Cir. 2006) ("[T]he district court's motion in limine was correct because the defense of selective prosecution is a matter that is independent of a defendant's guilt or innocence, so it is not a matter for the jury."); Fed. R. Crim. P. 12(b)(3) ("[A] defect in instituting the prosecution, including [selective or vindictive prosecution] must be made before trial). Accordingly, Díaz is prohibited from asserting a selective prosecution defense before the jury.
C. Alleged Prosecutorial Misconduct
Allegations that the United States or its agents engaged in misconduct are irrelevant. Whether the United States participated in unethical behavior is a question of law for the Court, falling beyond the scope of trial. See United States v. Bouchard, 886 F. Supp. 111, 117 (D. Me. 1995) ("Whether Defendant has successfully presented a claim of outrageous government conduct amounting to a violation of his due process rights is a question of law for the Court.") (citing United States v. Bradley, 820 F.2d 3, 7 (1st Cir. 1987)); United States v. McQuin, 612 F.2d 1193, 1196 (9th Cir. 1980) ("It was entirely proper for the district court to deny appellant's request that the question of outrageous misconduct be referred to the jury as that question was one of law."); United States v. Gilmore, Case No. 01-104, 2004 WL 285941, at *3, 2004 U.S. Dist. LEXIS 2026, at *10 (W.D. Va. Feb. 13, 2004) ("The government is correct that the question of prosecutorial misconduct is one for the court to determine and not the jury.") (citing United States v. Berrigan, 482 F.2d 171, 174-75 (3d Cir. 1973)). Consequently, Díaz is prohibited from adducing evidence of prosecutorial misconduct.
D. Jury Nullification
This Court possesses the discretion to "block defense attorney's attempts to serenade a jury with the siren song of nullification," and "may instruct the jury on the dimensions of their duty to the exclusion of jury nullification." United States v. Sepúlveda, 15 F.3d 1161, 1190 (1st Cir. 1993) (noting that "neither the court nor counsel should encourage jurors to exercise [the] power [to nullify a prosecution]"); see United States v. Díaz, 820 F. Supp. 2d 301, 306 (D.P.R. 2011) (prohibiting the defendant from setting forth a jury nullification argument at trial) (Besosa, J.); United States v. Apicelli, Case No. 14-012, 2015 WL 3398139, at *1, 2015 U.S. Dist. LEXIS 67667, at *2 (D.N.H. May 26, 2015) (holding that "defense counsel is precluded from raising issues related to jury nullification at trial, and the court will not instruct the jury on the nullification power.") (citation omitted). Accordingly, Díaz is precluded from presenting a jury nullification argument.
E. Impeachment
The United States expects that Díaz will "seek to impeach government witnesses regarding issues that are inadmissible for impeachment purposes, including past illegal drug use." (Docket No. 224 at pp. 20-21.) Federal Rule of Evidence 608 ("Rule 608") provides that:
Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible
to prove specific instances of a witness's conduct in order to attack or support the witness's character for truthfulness. But the court may, on cross-examination, allow them to the inquired into if they are probative of the character for truthfulness or untruthfulness.Fed. R. Evid. 608(b). In large part, a history of drug use "lack[s] probative value of showing a propensity to lie on the stand." Wierstak v. Heffernan, 789 F.2d 968, 972 (1st Cir. 1986); United States v. Corrales, Case No. 93-1663, 1994 WL 102397, at *4, 1994 U.S. App. LEXIS 5870, at *10-11 (1st Cir. Mar. 29, 1994) (holding that "evidence of a witness's drug involvement generally is not admissible for character impeachment purposes"); United States v. Soto, 338 F. Supp. 3d 73, 77 (D.P.R. 2018) (holding that "the alleged prior criminal behavior, drug trafficking, is not relevant to defendant's character for truthfulness") (citing 4 Jack B. Weinstein & Margaret A. Berger, Weinstein's Fed. Evid., § 608.22) (Cerezo, J.). A conviction for drug use or distribution may, however, "bear on character for truthfulness" pursuant to Federal Rule of Evidence 609. United States v. Melvin, 628 F. App'x 774, 778 n.7 (1st Cir. 2015) (citing United States v. Barrow, 448 F.3d 37, 44 (1st Cir. 2006)). At this juncture, the substance of the trial testimony and the scope of cross-examination is speculative. Accordingly, The Court will decide this motion in limine in the context of trial.
IV. Díaz's Motion to Continue Trial
Trial is set to commence on January 23, 2023. (Docket No. 204.) Díaz moves to continue trial, however, "for the end of February or later." (Docket No. 253 at p. 4.) This Court wields broad discretion when evaluating a motion for continuance. Morris v. Slappy, 461 U.S. 1, 11, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983); Macaulay v. P. Anas, M.D., 321 F.3d 45, 49 (1st Cir. 2003). The basis for this discretion rests on "an important public interest in the efficient operation of the judicial system and in the orderly management of crowded dockets[,]" and on the unique position of a district judge, "the person best equipped to balance the competing considerations [involved in a motion for continuance]." United States v. Devin, 918 F.2d 280, 291 (1st Cir. 1990). To overturn a district court's denial of a motion for continuance, a movant must establish that he or she suffered substantial prejudice resulting from a serious error of law or meaningful lapse of judgment. Correia v. Fitzgerald, 354 F.3d 47, 52 (1st Cir. 2003) (citing United States v. Saccoccia, 58 F.3d 754, 770 (1st Cir. 1995)).
In ruling on a motion for a continuance, courts first consider the reasons contemporaneously expressed by the moving party. Saccoccia, 58 F.3d at 770 (citation omitted). Relevant factors include the amount of time needed for effective preparation, the amount of time actually available for preparation, the amount of time previously available for preparation and how assiduously the movant used that time, the extent to which the movant contributed to his perceived predicament, the complexity of the case, the availability of assistance from other sources, the probable utility of a continuance, the extent of inconvenience to others if the continuance were granted, and the likelihood of injustice or unfair prejudice attributable to the denial of a continuance. Saccoccia, 58 F.3d at 770 (citations omitted); see also United States v. Rodríguez-Durán, 507 F.3d 749, 763 (1st Cir. 2007) (citing four of the Saccoccia factors). The list of these factors is "neither exclusive nor universally applicable." United States v. Ottens, 74 F.3d 357, 360 (1st Cir. 1996) (affirming the denial of a continuance where defense counsel requested more time for preparation). Every action involving a motion for continuance is sui generis and requires a case specific approach. Id.
Castro's five-page request to continue trial is riddled with one excuse after another. (Docket No. 253.) He traveled outside the jurisdiction from December 23, 2022 to January 9, 2023. Id. at p. 1. The electronic docket is accessible anywhere with an internet connection. Work obligations do not end at the airport. Castro has a "backlog of hearings and appellate briefs." Id. at p. 1. A lack of time management is no reason to continue trial. "Counsel is a 70-year-old solo practitioner that does not have the resources of the Government." Id. at p. 3. Castro's age is immaterial. The docket is devoid of any indication that Díaz experienced a lack of resources to mount an effective defense.
On June 23, 2022, the Court set trial for December 5, 2022, allotting the parties six months to prepare for this litigation. (Docket No. 134.) Castro subsequently filed a motion to continue trial to attend annual training for Criminal Justice Act panel members. (Docket No. 148 and 149.) The Court granted this motion, resetting trial for December 9, 2022. Id. On November 16, 2022, the Court continued trial for January 23, 2023 with the consent of both parties. (Docket No. 204.) Castro did not express the concerns set forth in the December 23, 2022 motion to continue, filed the same day he left Puerto Rico for 16 days, knowing that the trial had been scheduled for January 23, 2023. (Docket No. 253.) The parties have had more than six months to prepare for this trial. Díaz is the sole defendant. Moreover, the facts are not complex. Government witnesses "who do not reside in Puerto Rico" are prepared to testify for the January 23, 2023 trial date. (Docket No. 259 at p. 5.) Accordingly, the motion to continue is DENIED.
V. Conclusion
For the reasons set forth above, Díaz's motion to dismiss is DENIED. (Docket No. 210.) His motion for leave to file a motion pertaining to prosecutorial misconduct is DENIED WITHOUT PREJUDICE. (Docket No. 248.) The United States motion in limine is GRANTED IN PART and HELD IN ABEYANCE IN PART. (Docket No. 224.) Lastly, Díaz's motion to continue trial is DENIED. (Docket No. 253.)
IT IS SO ORDERED.