Decisión Del Caso de Sixto George

Case 3:21-cr-00017-FAB Document 127 Filed 06/16/22 Page 1 of 28
IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO
UNITED STATES OF AMERICA,
Plaintiff,
v. Criminal No. 21-017 (FAB)
SIXTO JORGE DÍAZ-COLÓN,
Defendant.
OPINION AND ORDER
BESOSA, District Judge.
Before the Court is defendant Sixto Jorge Díaz-Colón
(“Díaz”)’s motion to dismiss the indictment. (Docket No. 103.)
Díaz also moves the Court to “correct” an inaccurate transcript.
(Docket No. 87.) For the reasons set forth below, both motions
are DENIED.
I. Background
On July 4, 2019, media outlets released a trove of disparaging
and profanity-laced Telegram messages by Puerto Rico Governor
Ricardo A. Rosselló (“Rosselló”) and his associates. (Docket No.
1 at p. 3.) 1 The content of these messages galvanized mass protests
and a political maelstrom. Rosselló announced his resignation on
July 24, 2019, calling for “citizen reconciliation.” Patricia
1 Telegram is a “cloud-based instant messaging and voice-over-Internet Protocol
(VoIP) service that allows its users to send messages, exchange photographs,
videos, documents, and other files through the Internet.” (Docket No. 1 at p.
2.)
Criminal No. 21-017 (FAB) 2
Mazzei, et al., “Ricardo Rosselló, Puerto Rico’s Governor, Resigns
After Protests,” New York Times (Jan. 24, 2019) (available at
https://www.nytimes.com/2019/07/24/us/rossello-puerto-rico-goven
or-resigns.html) (last visited June 16, 2022). This criminal
action pertains to an alleged attempt to extort an official within
the Rosselló administration.
The Spanish Broadcasting System, Inc. employed Díaz in an
unspecified capacity “until or about July 18, 2019.” (Docket No.
1 at p. 1.) He purportedly served as a conduit between Person 1
and Person 4, a former government subcontractor and the Executive
Director of the Ports Authority, respectively. Id. at pp. 1-3.2
Person 1 is also the son of “Person 2,” a former official in the
Rosselló administration. Id. at p. 1. The following allegations
are set forth in the indictment.
On February 3, 2019, Person 1 and Díaz met at the latter’s
apartment to discuss Telegram messages containing “incriminating
information about” the governor. (Docket No. 1 at p. 2.) At
this meeting, Person 1 showed Díaz a binder containing copies of
the Telegram messages. Id. Subsequently, Díaz sent a text to
Person 1 with the following message: “Brother, don’t get lost.
Let’s grab coffee and we can catch up. Let’s be strategic in the
2 Person 4 also served as the Secretary of Public Affairs for the Governor’s
mansion. (Docket No. 1 at p. 1.)
next step. #Letsgoforward.” Id. at p. 2. Four months after this
meeting, Díaz texted Person 4 the following message:
Dude, if Fortaleza doesn’t stop messing with Person 2,

Person 1 has overwhelming evidence to fuck this
Administration starting with [Governor Rosselló].
According to Person 1, it is you and Fortaleza behind
the attack against Person 2.
Id. at pp. 2—3.
Díaz met with Person 4 on June 21, 2019, at a restaurant in
San Juan. Id. at p. 3. He informed Person 4 that Person 1 “had
a binder full of Telegram messages that would destroy [Rosselló]”
and his political party. Id. at p. 3. Díaz also “asked Person 4
to help him with several government contracts through which he
received compensation.” Id.
Media outlets published the Telegram messages on July 8, 2019.
Id. at p. 3. The indictment avers that Díaz then attempted to
“extort additional money from Person 4 to prevent the release of
additional Telegram messages.” Id.
On July 16, 2019, Díaz met with Person 4. Id. at p. 4. Díaz
revealed that: (1) Person 1 “possessed Telegram messages that had
not yet been released publicly,” (2) Person 1 obtained the messages
from his father’s cellphone, (3) the unreleased messages
“contained damaging information” about Governor Rosselló and
Person 4, (4) Person 1 “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. 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 Person 1 and himself: (1)
$300,000 in hush money, (2) a talent fee, and (3) the reinstatement
of certain government contracts. Person 1 declined Díaz’s offer.
Id. 3
FBI agents contacted Díaz on July 26, 2019. (Docket No. 107.)
After this meeting, he purportedly “deleted Telegram messages
containing information about his involvement in the scheme, before
3Díaz may be found guilty if the jury finds that he attempted to extort property
on behalf of a third-party (i.e. Person 1). See United States v. Valentini,
944 F.3d 343, 350 (1st Cit. 2019) (holding that the Hobbs Act does not require
the defendant to have “received any personal benefit or take personal possession
of the property: directing the transfer of property to a third party is enough”)
(citing United States v. Tkhilaishvili, 926 F.3d 1, 10 (1st Cir. 2019) (holding
that a defendant may ‘obtain’ property within the meaning of the Hobbs Act by
bringing about its transfer to a third party, regardless of whether the
defendant received a personal benefit from the transfer”)).
surrendering his cellular phone to the authorities.” (Docket No.
107 at p. 2.)
A grand jury returned a three-count indictment on January 26,
2021, charging Díaz with attempted extortion in violation of 18
U.S.C. sections 1951 and 2 (count one), interstate extortion in
violation of 18 U.S.C. sections 875(d) and 2 (count two), and
destruction of records in a federal investigation in violation of
18 U.S.C. section 1519 (count three). (Docket No. 1.) Díaz moved
to dismiss the indictment. (Docket No. 103.). The United States
responded, and Díaz replied. (Docket Nos. 107 & 111.) The Court
granted leave for the United States to file a surreply. (Docket
No. 116.)
II. The Motion to Dismiss
Díaz moves to dismiss the indictment for seven reasons.
(Docket No. 103.) First, he maintains that the grand jury failed
to charge Díaz with conspiracy. Id. Second, he argues that count
one fails to allege Hobbs Act extortion. Id. Third, Díaz argues
that the facts undermine the United States’ theory of criminal
liability. Id. Fourth, the First Amendment allegedly protects
Díaz from criminal prosecution. Id. Fifth, count two lacks a
“wrongfulness” allegation. Id. Sixth, Diaz contends that
dismissal is warranted for a patchwork of reasons that have support
in neither the record nor relevant case law. Id. Finally, Diaz
claims that the United States engaged in prosecutorial misconduct.
Id.
A. Legal Standard
The right to an indictment is rooted in the Bill of Rights
and appurtenant legislation. Pursuant to the Fifth Amendment,
“[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.” U.S. Cont. amend. V. The Sixth Amendment also prescribes
that the accused shall have the right “to be informed of the nature
and cause of the accusation.” U.S. Cont. amend. VI. Congress
subsequently clarified that the indictment “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 may request dismissal for inter alia a “lack of
specificity” or “failure to state an offense.” Fed. R. Crim. P.
12(b)(3).
The authority to indict rests exclusively with the grand
jury, a “constitutional fixture in its own right.” United States
v. Williams, 504 U.S. 36, 47 (1992). This body conducts an
independent, secret investigation to determine whether there is
probable cause to indict. In re United States, 441 F.3d 44, 57
(1st Cir. 2006) (“[The] whole theory of its function is that [the
grand jury] belongs to no branch of the institutional Government.

Thus, it remains functionally and conditionally at arms-length
from the judicial branch.”) (internal citation and quotation marks
omitted). By serving as an intermediary between the public and
government officials, the grand jury prevents the commencement of
“wrongful prosecution[s] by an overbearing state.” United States
v. Mills, 995 F.2d 480, 486 (4th Cir. 1993); see Rodger A. Fairfax,
Jr., Grand Jury Discretion and Constitutional Design, 93 CORNELL L.
REV. 703, 731 (2008) (“For those of the founding generation
concerned about the potential aggrandizement of central
governmental authority, the grand jury, much like the petit jury,
represented a significant check on the federal criminal
prosecution power.”).
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 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”).
1. Failure to Charge Conspiracy
According to Díaz, “the indictment should be dismissed
because the government failed to charge the defendant with
conspiracy or attempted extortion.” (Docket No. 103 at p. 4.) He
faults the grand jury with failing “to charge the most important
element of the crime they are imputing to [him], the conspiracy
agreement to violate the law.” Id. at p. 34. This argument is
nonsensical. The United States has no obligation to charge

conspiracy or any other offense. See United States v. Lawrence,
179 F.3d 343, 348 (5th Cir. 1999) (“We allow the government
discretion to decide which individuals to prosecute, which
offenses to charge, and what measure of punishment to seek.”)
(citing United States v. Batchelder, 442 U.S. 114, 124 (1979)
(“Whether to prosecute and what charge to file or bring before a
grand jury are decisions that generally rest in the prosecutor’s
discretion.”)). It belies logic for a criminal defendant to
request an additional charge. Accordingly, the conspiracy
argument is a strawman and immaterial to this criminal action.
2. Hobbs Act Extortion
Díaz asserts that the “allegations [in count one] do not
plausibly state a claim of extortion.” (Docket No. 103 at p. 36.)
This argument is unpersuasive.
Congress enacted the Hobbs Act in 1946 to amend and
expand the Anti-Racketeering Act of 1934. United States v.
Brissette, 919 F.3d 670, 683 (1st Cir. 2019); see Sara E. Kropf,
The Reach of Federal Extortion and Blackmail Statutes, 34 Crim.
Just. 31, 33 (2019) (“Although the Hobbs Act has most famously
been used in the union context, federal prosecutors have also made
use of it aggressively in cases involving both public officials
and private citizens.”). Pursuant to this statute:

Whoever in any way or degree obstructs, delays, or

affects commerce of 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). Congress defined extortion as “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). The Hobbs Act 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. 2006); 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 United States “need only show a realistic probability
of a de minimis effect on interstate commerce, in order to bring
extortion within the reach of the Hobbs Act.” United States v.
Santana-Jiménez, 71 F. Supp. 2d 23, 26 (D.P.R. 1999) (Casellas, J.)
(citation omitted).
During the house debate in 1945, Representative Sam
Hobbs (“Hobbs”) stated that extortion and robbery “have been

construed a thousand times by the Courts. Everybody knows what
they mean.” United States v. Coss, 677 F.3d 278, 289 (2d Cir.
2012) (quoting 91 CONG. REC. 11,912 (1945)). Indeed, extortion is
“one of the oldest crimes in our legal tradition.” Sekhar v. United
States, 570 U.S. 729, 733 (2013). Hobbs erred, however, by
underestimating the legal profession’s ingenuity and penchant for
statutory interpretation. For instance, the First Circuit Court
of Appeals once adopted a broad definition of “property,” holding
that this term refers to “any valuable right considered as a source
or element of wealth.” United States v. Hathaway, 534 F.2d 386,
396 (1st Cir. 1976) (“The right to pursue a lawful business
including the solicitation of customers necessary to the conduct
of such business . . . [is] property within the Hobbs Act
definition.”). Subsequent precedent from the Supreme Court set
forth a more narrow definition of this term.
In Schneidler v. NOW, Inc., a jury found that anti-
abortion activists violated the Hobbs Act by obstructing access to
health care centers. 537 U.S. 393, 397-98 (2003). The activists
argued, however, that the “right to seek medical services from
clinics, the clinic doctors’ rights to perform their jobs, and the
clinics’ rights to provide medical services . . . were not
‘property’ for purposes of the Hobbs Act.” Id. at 399. The Supreme
Court agreed, citing “two sources of law [used] as models for the
Hobbs Act: the Penal Code of New York and the Field Code, a 19th-
century model penal code.” Id. at 403. These authorities defined
“extortion” as “the obtaining of property from another with his
consent, induced by a wrongful use of force or fear or under color
of official right.” Id. Extortion encompassed both a “deprivation
and acquisition of property.” Id. at 403. In contrast, the crime
of coercion entailed “the use of force or threat of force to
restrict another’s freedom to act.” Id. at 405. The Hobbs Act
incorporates the New York and Field Code definition of extortion,
but not coercion. By omitting coercion from the statute, Congress
recognized “the difference between these two distinct crimes.” Id.
at 406. The anti-abortion activists deprived the health care
centers of the “right of exclusive control of their business assets,
but they did not acquire such property.” Id. at 405. At most,
they committed the crime of coercion. Id.
Ten years after Scheidler, the Court revisited the
“obtaining of property” requirement in Skehar v. United States, 570
U.S. 729. The general counsel for the New York State Comptroller
recommended that an employee pension fund refrain from investing
in a private firm. 570 U.S. at 731. A partner at this firm sent
the general counsel “a series of anonymous e-mails demanding that
he recommend moving forward with the investment and threatening,
if he did not, to disclose information about his alleged affair to

his wife, government officials, and the media.” Id. A jury
convicted the partner for extorting the “General Counsel’s
recommendation to approve the [investment].” Id. The Seventh
Circuit Court of Appeals affirmed the conviction, holding that the
general counsel “had a property right in rendering sound legal
advice to the Comptroller and, specifically, to recommend – free
from threats – whether the Comptroller should [invest]” in the
private firm. Id. at 732.
The Skehar court reiterated that coercion and extortion
are distinct. Id. at 734. The property in a Hobbs Act prosecution
must “be transferable – that is, capable of passing from one person
to another.” Id. at 734. Coercion is a lesser offense, prohibiting
the use of threats “to compel another person to do or to abstain
from doing an act which such other person has a right to do or to
abstain from doing.” Id. at 735. In fact, the Supreme Court cited
People v. Scotti, 266 N.Y. 480 (1943), to illustrate which acts do
not constitute extortion. In Scotti, the defendants violated the
coercion statute by compelling a manufacturer to contract with a
labor union. Id. In a similar vein, providing legal advice free
from duress is not a property right that is transferable. Id.
(citing Cleveland v. United States, 531 (2000) (holding that “a
‘license’ is not ‘property’ in the State’s hands and so cannot be
‘obtained’ from the State”). Accordingly, the Supreme Court

vacated the partner’s conviction for Hobbs Act extortion. Id. at
738.
The United States posits that Díaz “sought to obtain
$300,000 from Person 4 and his associates, and also demanded that
Person 4 work to restore government contracts benefitting the
defendant, or risk financial and reputational harm through the
release of certain damaging communications.” (Docket No. 116 at
p. 4.) Díaz maintains, however, that the contracts Person 4 “was
going to assist [him] in being renewed by the Government cannot
form the basis of a Hobbs Act violation because in this scenario
the property had to be transferable.” Docket No. 103 at p. 36; see
United States v. Burhoe, 871 F.3d 1, 27 (1st Cir. 2017) (reversing
a Hobbs Act conviction because the property obtained by the
defendant (i.e. contractual protections for employees with
seniority) “cannot themselves be transferred”).
The Court need not determine whether a government
contract is “property” within the meaning of the Hobbs Act for
purposes of ruling on the pending motion. The relevant inquiry is
whether the indictment provides Díaz with adequate notice of the
crimes charged and preserves his right to claim double jeopardy in
a subsequent criminal prosecution. See United States v. Reséndiz-
Ponce, 549 U.S. 102, 108 (2007) (holding that an indictment is
sufficient if it “first, contains the elements of the offenses

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”))
(citation omitted). Count one states 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 or
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]
attempted to obtain property from Person 4 and others,
with consent, induced by wrongful use of fear.
(Docket No. 1 at p. 5) (emphasis added). Díaz speculates that the
term “property” in count one encompasses the expired government
contracts. (Docket No. 1 at p. 6.) 4 Dismissal of the indictment
cannot rest, however, on potential theories of the case; trial is
the appropriate venue to raise any legally legitimate theories of
defense that may undermine the United States’ proof.
The United States possesses broad discretion to
prosecute this criminal action within the confines of the
Constitution, the Federal Rules of Evidence, and the Federal Rules
of Criminal Procedure. Whether the United States presents a
particular theory of the case at trial is irrelevant to the Court’s
4 The $300,000 certainly constitutes “property” for purposes of the Hobbs Act.
See, e.g., United States v. DiDonna, 866 F.3d 40, 47 (1st Cir. 2017) (affirming
a conviction pursuant to the Hobbs Act where the defendant demanded “hush money
in exchange for silence about information that could have damaged [the victim’s]
business”).
analysis. See United States v. Platter, 514 F.3d 782, 787 (8th
Cir. 2008) (“Generally, the government is free to prove a
defendant’s liability for one criminal offense by using multiple
theories of guilt.”). Indeed, courts have “long recognized that
an indictment may charge numerous offenses or the commission of
any one offense in several ways.” United States v. Miller, 470
U.S. 130, 136 (1985); see, e.g., United States v. Celestin, 612
F.3d 14, 24 (1st Cir. 2010) (holding that “the district court
properly instructed the jury as to all the ways in which Celestin
could be convicted of the substantive bank fraud charges, which
were clearly set forth in the indictment”); United States v. Vilar,
729 F.3d 62, 81 (2d Cir. 2013) (“Even if it were true that Count
Four of the indictment originally contemplated both the GFRDA and
SBIC schemes, rather than the latter scheme alone, where a
generally framed indictment encompasses a specific legal theory or
evidence used at trial, there is no constructive amendment.”).
Should the United States fail to present sufficient evidence to
sustain a jury finding that Diaz attempted to extort property,
Díaz may move for a judgment of acquittal at trial.
3. Factual Argument
Díaz sets forth a litany of factual arguments in his
quest to invalidate the indictment. (Docket No. 103.) For
example, he claims that the threat to “fuck this administration”

was merely an attempt to protect Person 1’s father from additional
attacks from “Fortaleza.” Id. at p. 44. It was not, Díaz argues,
extortion. Id. Governor Rosselló purportedly instructed Díaz to
meet with Person 1 simply to “evaluate what media control damage
he could do with respect to the first chats released by [Person 1]
that were already damaging to the reputation of the governor’s
cabinet.” Id. at p. 40.
A motion to dismiss the indictment is not a trial.
United States v. Guerrier, 669 F.3d 1, 4 (1st Cir. 2011) (“[C]ourts
routinely rebuff efforts to use a motion to dismiss as a way to
test the sufficient of the evidence behind an indictment’s
allegations.”); United States v. Rodríguez-Colón, 979 F. Supp.
203, 204 (D.P.R. 2013) (Because a sufficiency of the evidence
argument raises factual questions embraced in the “general issue,”
it is improper for a defendant to base his pretrial motion to
dismiss the indictment on that argument.”) (citation omitted)
(Besosa, J.). The jury will weigh the evidence, determine the
credibility of witnesses, and resolve factual disputes.
Consequently, Díaz’s interpretations of the evidence are not
legally sufficient reasons to dismiss the indictment.

4. The First Amendment Argument
Díaz asserts that he “enjoys robust First Amendment
protection.” (Docket No. 103 at p. 40.) The freedom of speech is
not, however, carte blanche to commit extortion. Giboney v. Empire
Storage & Ice Co., 336 U.S. 490, 433 (2014) (“[I]t has never been
an abridgement of freedom of speech or press to make a course of
conduct illegal merely because the conduct was in part initiated,
evidenced, or carried out by means of language, either spoken,
written, or printed.”); see United States v Sayer, 748 F.3d 425,
434 (1st Cir. 2014) (“To the extent his course of conduct targeting
Jane Doe involved speech at all, his speech is not protected.”);
United States v. Bly, 510 F.3d 453, 458 (4th Cir. 2007) (“Threats
– including threats of extortion – are not constitutionally
protected simply because they are verbalized or written”)
(citation omitted); United States v. Boyd, 231 Fed. Appx. 314, 316
(5th Cir. May 4, 2007) (“The First Amendment does not protect
extortion”). Accordingly, the protections enshrined by the First
Amendment are no reason to dismiss the indictment.
5. The Wrongfulness Argument
Count two of the indictment avers that Díaz committed
interstate extortion pursuant to 18 U.S.C. section 875(d)
(“section 875(d)”). (Docket No. 1 at p. 6.) This statute provides
that:
Whoever, with intent to extort from any person, firm,

association, or corporation, any money or other thing of
value, transmits in interstate or foreign commerce any
communication containing any threat to accuse the
addressee or any other person of a crime, shall be fined
under this title or imprisoned not more than two years,
or both.
18 U.S.C. § 875(d). To secure a conviction for interstate
extortion, the United States must prove that Díaz “intended to
transmit the interstate communication and that the communication
contained a true threat.” United States v. Nishnianidze, 342 F.3d
6, 14-15 (1st Cir. 2003) (citation omitted). A true threat is
“one that a reasonable recipient familiar with the context of the
communication would find threatening.” Id.
According to Díaz, “the indictment in this case is
insufficient because . . . it does not satisfy section 875(d)’s
‘wrongfulness’ element.” (Docket No. 103 at p. 42.) He relies
extensively on United States v. Jackson, 180 F.3d 55 (2d Cir.
1999), a case in which the Second Circuit Court of Appeals
distinguished lawful acts to disseminate information from
“wrongful” threats to extort. 180 F.3d at 67. For example, a
“private club may threaten to post a list of club members who have
not yet paid their dues” without running afoul of section 875(d).
Id. The Jackson court held that “the phrase ‘intent to extort’
[in section 875(d)] was meant to reach only demands that are
wrongful.” Id. at 68. A threat is “wrongful” when the “threatener

does not have, and cannot reasonably believe she has, a claim or
right, or where the threat has no nexus to a plausible claim of
right.” Id. at 71.
The parties do not cite, and the Court is not aware of,
a relevant decision from the First Circuit Court of Appeals. See
United States v. Ghalashahi, 92 F. App’x 6, 13 (1st Cir. Mar. 16,
2004) (acknowledging that “a claim of right defense [in a section
875(d) prosecution] is an issue of first impression in this court,”
but declining to resolve the issue). Whether section 875(d)
contains a “wrongfulness” component is immaterial to the motion to
dismiss. Count two of the indictment tracks the language of
section 875(d), alleging that Díaz:
with the intent to extort money and a thing of value,

did knowingly transmit in interstate and foreign
commerce, any communication containing a threat to
injure the property or reputation of the addressee and
others, and aided and abetted such offense, that is, in
or about the date mentioned above, [Díaz] did transmit
certain threats to Person 4; to wit, that [Díaz] would
facilitate the publishing of Telegram messages
containing damaging information about Person 4 and
others unless [Díaz] received $300,000 and other things
of value.
(Docket No. 1 at p. 5.) This allegation is sufficient and complies
with the pleading standard set forth in Federal Rule of Criminal
Procedure 7. See United States v. Savarese, 868 F.3d 1, 6 (1st
Cir. 2012) (“An indictment that tracks the language of the
underlying state is usually sufficient to meet this standard,

provided that the excerpted statutory language sets out all
elements of the offense without material uncertainty.”).
Díaz misconstrues the applicable standard of review. He
would have the indictment include statutory interpretations from
sister jurisdictions. This proposition is patently wrong. See
United States v. Troy, 618 F.3d 27, 35 (1st Cir. 2010) (“A judicial
gloss, though helpful in interpreting a criminal statute, need not
be included verbatim in the charging instrument.”). The United
States District Court for the District of Maine rejected an
identical argument from a defendant charged with violating section
875(d). See United States v. Curley, Case No. 13-058, 2014 U.S.
Dist. LEXIS 5686, at *13 (D. Me. Jan. 16. 2014) (“Even assuming –
as the Court does – that the First Circuit would concur with [the
Jackson court], it stretches the point to conclude that a grand
jury must expressly include the Second Circuit’s judicial
interpretation of criminal statutes in First Circuit indictments
on pain of dismissal.”). Accordingly, the purported
“wrongfulness” deficiency cannot sustain Díaz motion to dismiss.
6. Argument Without Citation to Precedent or Other

Authority
The motion to dismiss contains a myriad of arguments
that fail to cite precedent. For instance, “[n]either [Díaz] nor
Person 4] had possession of the $300,000.00.” (Docket No. 1-3 at

p. 37.) According to Díaz, lack of possession negates the
extortion counts because “[mere] conversations contemplating a
crime cannot form the basis to convict for aiding and abetting nor
[sic] an attempt.” Id. Which jurisdiction has held that an
element of attempted extortion is physical possession of the
property? The Court will not dismiss the indictment based on
conclusory legal propositions. See United States v. Zannino, 895
F.2d 1, 17 (1st Cir. 1990) (“It is not enough merely to mention a
possible argument in the most skeletal way, leaving to the court
to do counsel’s work, create the ossature for the argument, and
put flesh on its bones.”).
7. Prosecutorial Misconduct
Díaz sets forth specious and unfounded allegations of
prosecutorial misconduct. (Docket No. 103 at pp. 59-61.) The
United States allegedly engaged in misconduct:
Because after corroborating through Díaz-Colón [sic]

recorded call with [Person 1], where he clearly
indicated in the call that he never requested or wanted
money from [Person 4] and he only wanted to revenge [sic]
his dad for what they did to him, the Government should
have refrained from filing this case against him.
Id. at p. 59. Allegations of prosecutorial misconduct are serious.
A lack of integrity erodes the public’s trust in the criminal
justice system. See United States v. Pirovolos, 844 F.2d 415, 425
(7th Cir. 1988) (noting that prosecutorial misconduct has the

potential to “[poison] the entire atmosphere of the trial.”).
Grave instances of prosecutorial misconduct require dismissal
after conviction. Indeed, the United States is held to a high
standard: “At its core, the job of a prosecutor is to do justice.”
United States v. Foster, 945 F.3d 470, 472 (6th Cir. 2016)
(citation and quotation omitted). Not a scintilla of evidence
suggests that the United States has deviated from this standard.
Díaz accuses the prosecutors of misconduct simply because he
disagrees with the evidence. Without citing the record, he alleges
that the “purposeful distortion of material facts warrants
dismissal of the indictment.” (Docket No. 103 at p. 60.)
Essentially, he is charging the United States with lying to the
grand jury to obtain a true bill. The consequences of committing
or suborning perjury are grave, including the loss of employment
and even criminal prosecution. The Court will not tolerate
unfounded accusations of misconduct, and admonishes counsel to
refrain from making unsubstantiated claims of wrongdoing.
III. Díaz’s Motion to “Correct” an Inaccurate Transcript
On July 16, 2019, Díaz and a confidential human source (“CHS”)
met to discuss, inter alia, a $300,000 payment. (Docket No. 78,
Ex. 1.) The CHS surreptitiously recorded this conversation,
conducted exclusively in Spanish. Id. The United States produced

a transcript of this conversation with an English translation.
Id. The transcript contains the following exert:
Spanish Recording English Translation
Díaz: [OV] Sí, sí, sí. Si é; Díaz: Yes, yes, yes. If he

accepta los $300,000 como accepts those $300,000
me dijo. Yo te aseguro a like he said to me. I
ti que él va a decir . . can assure you that he
. la va a parar porque él will say . . . He will
me lo dijo. stop it because he said
that to me.
CHS: [Suspiro] Entonces si CHS: [Sigh] So if I can get the

consigo lo ultimo tú last part to you, you can
garantizas que añadimos a ensure that we will
Kobbo a las voces. Esto, include Kobbo as part of
porque a lo major Kobbo the voices. Um, because
puede ser otra línea, maybe Kobbo can do another
verdad, pa’ que no . . . line, right, so that it
pa’ que se vea – won’t . . . So that it will
look
Díaz: [OV] Tamién puede ser a Díaz: [OV] It could also be 250
él, 250 pa’ coger 50 pa’ for him, in order to take
Kobbo y no tienes que 50 for Kobbo and you
consequir 350. don’t have to get 350.
CHS: Mmm y ahí tú garantizas las CHS: Mmm and that way you can
dos cosas. guarantee both things
Díaz: Exactamente. Díaz: Exactly.
CHS: Y lo otro yo te ayudo con CHS: And the other thing, I will
eso de OGP y Hacienda, help you with the OGP
esto, okay. Y si yo te [Puerto Rico Office of
qyudo con eso pues en la Management and Budget] and
medida que tú puedas pues the Hacienda [Puerto Rico
no ayudas también en – Treasury] thing, um, okay.
And if I help you with
that, then you can help us
too whichever way you can
—
Díaz: [OV] Sí, papi, porque yo Díaz:[OV] Yes, bro, because I am

boy a . . . es que me going to . . . The thing
tengo que meter en eso, is that I have to get
papi. No hay break. De involved in this, bro. No
verdad, te lo juro. No break. Honestly, I swear.
hay break. No hay No break. There is just no
manera, vuelvo y te way, like I said before.
repito.
Id. at p. 2. According to Díaz, the word “exactamente” is
inaudible. (Docket No. 78 at p. 1.) The United States argues,
however, that this word is audible with the aid of “audio enhancing
software.” (Docket No. 90 at p. 2.) It produced the recorded
conversation for an in camera review. (Docket No. 80.) The Court
determined that “something was said, but could not decipher the
specific word or sound.” (Docket No. 83.) Consequently, the Court
held that “it will be for the jury to decide if what was said is
the word ‘exactamente,’ translated as exactly.” Id. (internal
quotation marks omitted).
Díaz requests that the Court strike “exactamente” from the
transcript, citing United States v. Carbone, 798 F.2d 21 (1st Cir.
1986). This precedent merely held that “where a tape recording is
challenged on the grounds of audibility [, ] the question is
whether the inaudible parts are so substantial as to make the rest
more misleading than helpful.” 789 F.2d at 24. The Carbone court
“played all the tapes and [found] that none of them were so
inaudible or unintelligible as to make them more misleading than

helpful.” Id. at 25; see United States v. Panzardi-Lespier, 918
F.2d 313, 318 (1st Cir. 1990) (“The fact that portions of the tapes
are unintelligible is not necessarily an impediment to the
admission of the tapes.”). Díaz seeks the removal of a single
word. He does not, however, contend that the recorded conversation
is tainted by the inability to decipher an isolated phrase or
sound.
This Court possesses “broad discretion in ruling on the
admissibility of tape recordings.” Panzardi-Lespier, 918 F.2d at
318. In the event of a contested word, each party is “allowed to
introduce its own transcript of the recording provided that it is
properly authenticated.” United States v. Rengifo, 789 F.2d 975,
983 (1st Cir. 1986); see United States v. Pion, 25 F.3d 18, 21
(1st Cir. 1994) (“After Pion objected to the alleged inaccuracies
in the authenticated government transcript, he consented to its
admission subject to the right to introduce his own transcript.”);
United States v. Figueroa, 976 F.2d 1446, 1457 (1st Cir. 1992)
(“The court ordered that the defendants . . . either stipulate to
the accuracy of the government’s Spanish and English language
translations or the tape recordings made during the DEA
investigation, or provide their own translations.”); United States
v. Carson, 464 F.2d 424, 436 (2d Cir. 1972) (“The parties agreed
that the transcripts accurately reflected the words on the tapes,

with certain exceptions as to which it was agreed that the
transcripts would contain the version believed accurate by each
party.”). Accordingly, the Court will instruct the jury that
“there is a difference of opinion as to the accuracy of the
transcripts and that it is up to them to decide which, if any,
version to accept.” Rengifo, 789 F.2d at 983. This is precisely
what the Court held in the order issued on December 14, 2021.
(Docket No. 83.)
Essentially, Díaz requests that the Court usurp the fact-
finding function of the jury. The jury, not the Court, will
determine if Díaz said “exactamente.” At trial, the United States
intends to “present FBI witness testimony as to the process and
procedures undertaken to enhance the audio quality of the
recordings.” (Docket No. 81 at pp. 1—2.) It purports that Díaz
can be heard saying “exactamente” with the assistance of Acacia,
a “playback system created and used by the United States to do
audio verbatim translations.” Id. at p. 3. Díaz may, in turn,
proffer evidence contradicting this assertion and/or cross-exam
the prospective FBI witness. Accordingly, Díaz’s motion to
“correct” an inaccurate transcript is DENIED.

IV. Conclusion
For the reasons set forth above, Díaz’s motion to dismiss the
indictment is DENIED. (Docket No. 103.) His motion to “correct”
an inaccurate transcript is also DENIED. (Docket No. 87.)
IT IS SO ORDERED.
San Juan, Puerto Rico, June 16, 2022.
s/ Francisco A. Besosa
FRANCISCO A. BESOSA
SENIOR UNITED STATES DISTRICT JUDGE

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Case 3:21-cr-00017-FAB Document 127 Filed 06/16/22 Page 1 of 28

IN THE UNITED STATES DISTRICT COURT

UNITED STATES OF AMERICA,

v. Criminal No. 21-017 (FAB)

SIXTO JORGE DÍAZ-COLÓN,

OPINION AND ORDER

BESOSA, District Judge.

Before the Court is defendant Sixto Jorge Díaz-Colón

(“Díaz”)’s motion to dismiss the indictment. (Docket No. 103.)

Díaz also moves the Court to “correct” an inaccurate transcript.

On July 4, 2019, media outlets released a trove of disparaging

and profanity-laced Telegram messages by Puerto Rico Governor

Ricardo A. Rosselló (“Rosselló”) and his associates. (Docket No.

1 at p. 3.) 1 The content of these messages galvanized mass protests

and a political maelstrom. Rosselló announced his resignation on

July 24, 2019, calling for “citizen reconciliation.” Patricia

1 Telegram is a “cloud-based instant messaging and voice-over-Internet Protocol

Criminal No. 21-017 (FAB) 2

Mazzei, et al., “Ricardo Rosselló, Puerto Rico’s Governor, Resigns

After Protests,” New York Times (Jan. 24, 2019) (available at

or-resigns.html) (last visited June 16, 2022). This criminal

action pertains to an alleged attempt to extort an official within

the Rosselló administration.

The Spanish Broadcasting System, Inc. employed Díaz in an

unspecified capacity “until or about July 18, 2019.” (Docket No.

1 at p. 1.) He purportedly served as a conduit between Person 1

and Person 4, a former government subcontractor and the Executive

Director of the Ports Authority, respectively. Id. at pp. 1-3.2

Person 1 is also the son of “Person 2,” a former official in the

Rosselló administration. Id. at p. 1. The following allegations

are set forth in the indictment.

On February 3, 2019, Person 1 and Díaz met at the latter’s

apartment to discuss Telegram messages containing “incriminating

information about” the governor. (Docket No. 1 at p. 2.) At

this meeting, Person 1 showed Díaz a binder containing copies of

the Telegram messages. Id. Subsequently, Díaz sent a text to

Person 1 with the following message: “Brother, don’t get lost.

Criminal No. 21-017 (FAB) 3

next step. #Letsgoforward.” Id. at p. 2. Four months after this

meeting, Díaz texted Person 4 the following message:

Dude, if Fortaleza doesn’t stop messing with Person 2,

Id. at pp. 2—3.

Díaz met with Person 4 on June 21, 2019, at a restaurant in

San Juan. Id. at p. 3. He informed Person 4 that Person 1 “had

a binder full of Telegram messages that would destroy [Rosselló]”

and his political party. Id. at p. 3. Díaz also “asked Person 4

to help him with several government contracts through which he

received compensation.” Id.

Media outlets published the Telegram messages on July 8, 2019.

Id. at p. 3. The indictment avers that Díaz then attempted to

“extort additional money from Person 4 to prevent the release of

additional Telegram messages.” Id.

On July 16, 2019, Díaz met with Person 4. Id. at p. 4. Díaz

revealed that: (1) Person 1 “possessed Telegram messages that had

from his father’s cellphone, (3) the unreleased messages

“contained damaging information” about Governor Rosselló and

Person 4, (4) Person 1 “intended to ‘burn down Puerto Rico,’ by

releasing these Telegram messages unless [he] received