Case 3:21-cr-00474-ADC Document 30 Filed 01/09/23 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT

UNITED STATES OF AMERICA, CRIM. NO.: 21-474(ADC)

MOTION TO DISMISS

TO THE HONORABLE COURT:

COMES NOW Defendant Angel Perez-Otero, through the undersigned attorney, and

very respectfully alleges and prays as follows:

For the reasons set forth herein, the appearing defendant request the dismissal of the

indictment in the instant action.

Although the prosecution charged ex-mayor Angel Antonio Perez-Otero (Perez-Otero)

with bribery and extortion alleging that he awarded contracts to company “A “in exchange for

bribes and kickbacks paid by Oscar Santamaria in cash, the evidence provided by the government,

during discovery, clearly suggests that the payments took the form of campaign contributions.

Perez-Otero requests the dismissal of the indictment because it fails to allege an essential

element of the charged violations of law and because it fails to allege a crime since it is missing

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an allegation of an explicit quid pro quo, as required by the Supreme Court 1 in McCormick v.

United States, 500 U.S. 257 (1991).

McCormick was a member of the West Virginia House of Delegates who received

campaign contributions in cash payments from a lobbying group, which he did not report as

campaign contributions. After receiving the payments, he went on to sponsor legislation that

eventually passed, and which benefited the lobbying group. After the favorable bill was enacted,

the group provided McCormick with another cash payment.

McCormick was eventually charged and convicted of, among other things, extorting

payments under color of official right in violation of the Hobbs Act. The Supreme Court vacated

the conviction holding that receipt of a campaign contribution violated the statute only if the

government could prove an explicit quid pro quo — that is, “only if the payments are made in

return for an explicit promise or undertaking by the official to perform or not to perform an official

act. In such situations the official asserts that his official conduct will be controlled by the terms

of the promise or undertaking.” McCormick, 500 U.S. at 273. “This,” the Court concluded,

“defines the forbidden zone of conduct with sufficient clarity.” Id.

In McCormick The Court expressed its concern with criminalizing common political

conduct: [s]erving constituents and supporting legislation that will benefit the district and

individuals and groups therein is the everyday business of a legislator. . . . [C]ampaigns must be

run and financed. Money is constantly being solicited on behalf of candidates, who run on

platforms and who claim support on the basis of their views and what they intend to do or have

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In preparing this motion, Perez-Otero borrowed substantial text from the opinion and order dismissing the
charges in United States v. Benjamin, USDC SDNY, 21-CR-706 (JPO).

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done. . . . [T]o hold that legislators commit the federal crime of extortion when they act for the

benefit of constituents or support legislation furthering the interests of some of their constituents,

shortly before or after campaign contributions are solicited and received from those beneficiaries,

is an unrealistic assessment of what Congress could have meant by making it a crime to obtain

property from another, with his consent, “under color of official right.” To hold otherwise would

open to prosecution not only conduct that has long been thought to be well within the law but also

conduct that in a very real sense is unavoidable so long as election campaigns are financed by

private contributions or expenditures, as they have been from the beginning of the Nation. It would

require statutory language more explicit than the Hobbs Act contains to justify a contrary

conclusion. . . . The receipt of [political] contributions is . . . vulnerable under the Act as having

been taken under color of official right, but only if the payments are made in return for an explicit

promise or undertaking by the official to perform or not to perform an official act.”

Whatever an “explicit” quid pro quo might entail, it must be more explicit than the

exchange in McCormick, in which the Court reversed the conviction for lack of a sufficiently

“explicit” quid pro quo. The basic structure of the exchange in McCormick is analogous to that

alleged in this case. In McCormick, there is a clear quid in the form of cash contributions to the

politician’s campaign; a clear quo, in the politician’s sponsoring of particular legislation favorable

to the lobbyist’s clients); and circumstantial evidence supporting a pro. There is really no question

that the quid and the quo were clear and unambiguous in McCormick’s case. Therefore,

McCormick’s holding was that the pro itself must be clear and unambiguous and characterized by

more than temporal proximity, winks and nods, and vague phrases like “let me see what I can do.”

Therefore, to allege criminal liability for bribery in the context of campaign contributions,

there must be allegations of a quid pro quo that is clear and unambiguous, meaning that (1) the

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link between the official act and the payment or benefit, the pro, must be alleged, or shown, by

something more than mere implication, and (2) there must be a contemporaneous mutual

understanding that a specific quid and a specific quo are conditioned upon each other.

Additionally, this Honorable Court must consider the Indictment in the larger context of

the Supreme Court’s rulings on the First Amendment and campaign finance. The Supreme Court

has made clear on numerous occasions that campaign contributions are political speech implicating

fundamental constitutional guarantees. See McCutcheon v. Fed. Election Comm’n, 572 U.S. 185,

204 (2014) (characterizing campaign contributions as an exercise of one’s “expressive and

associational” rights under the First Amendment); Buckley v. Valeo, 424 U.S. 1, 24–25 (1976)

(observing that campaign contributions implicate “the contributor’s freedom of political

association” under the First Amendment). This is a case where First Amendment principles are not

tangential to the validity of the prosecution, but rather central to it. In drawing the line between

quid pro quo corruption and general influence, “the First Amendment requires [the Court] to err

on the side of protecting political speech rather than suppressing it.” McCutcheon, 572 U.S. at 209

(quoting Federal Election Comm’n v. Wisconsin Right to Life, 551 U.S. 449, 457 (2007)).

The Supreme Court has also made clear that principles of due process require “fair warning

. . . in language that the common world will understand” as to what conduct is prohibited by law.

McBoyle v. United States, 283 U.S. 25, 27 (1931) (Holmes, J.). “Due process bars courts from

applying a novel construction of a criminal statute to conduct that neither the statute nor any prior

judicial decision has fairly disclosed to be within its scope.” United States v. Lanier, 520 U.S. 267,

266 (1997). “[T]he touchstone is whether the statute, either standing alone or as construed, made

it reasonably clear at the relevant time that the defendant’s conduct was criminal.” Id. at 267.

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The Supreme Court has clearly stated, repeatedly and explicitly, that a quid pro quo in this

context must be “explicit” or “express.” It has not further explained what that standard means. At

a minimum, the governing precedents were not clear enough to give Perez-Otero fair notice of

what behavior was illegal at the time he acted. To charge criminal liability where the conduct did

not clearly involve an “explicit” quid pro quo would create a significant fair-warning problem.

These considerations weigh in favor of a stricter interpretation of the “explicit” quid pro quo

requirement.

Applying the principles laid out above, the Indictment fails to charge an explicit quid pro

quo. The prosecution was required not just to track the language of each relevant statute, but also

to explicitly allege any implicit element of each statute. Here, the bribery statute (18 U.S.C. §

666(a)(1)(B)) and extortion statute (18 U.S.C. §§1951) do not, on their face, contain any

requirement to show an explicit quid pro quo agreement. But an explicit quid pro quo is an

“implicit element” of each statutory offense charged here, given that through McCormick the

“courts have added a significant refinement” in how these statutes may be interpreted against

public officials facing prosecution over campaign fundraising. See US v. Pirro, 212 F.3d 86 (CA2

2000); LAFAVE et al., supra, § 19.3(b).

If the government must prove the existence of an explicit or express promise to sustain a

conviction, then it constitutes an essential element of the crime that must be alleged in the

indictment. Otherwise, there is no assurance that the grand jury considered that essential element.

In United States v. Donagher, 520 F. Supp. 3d 1034 (N.D. Ill. 2021), Judge John Z. Lee dismissed

an indictment’s federal bribery charges on precisely this ground. As he explained, ensuring that

the grand jury considered the explicit quid pro quo element in the context of campaign

contributions is anything but a technicality; to the contrary, given the controlling law, doing so is

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necessary to shield ordinary, constitutionally protected campaign financing activities from

criminal prosecution.

Therefore, Counts One, Two, and Three of the Indictment must be dismissed because they

do not allege as an element of any of the three counts that Perez-Otero made an “explicit”

agreement with Santamaria that his conduct as mayor would be controlled in exchange for

campaign contributions. To be sure, the indictment contains phrases that gesture toward an

agreement, most convincingly at:

• Paragraph 8: “The purpose of the conspiracy was for defendant Perez-Otero to benefit
and enrich himself by accepting bribes and kickbacks from Individual A in exchange for
securing municipal contracts for Company A as opportunities arose.”
• Paragraph 11: “In exchange for cash payments from Individual A, defendant Perez-Otero
took steps benefitting Individual A and his business, Company A, including advising
pressuring and directing municipal officers to ensure that Company A was awarded
municipal contracts in Guaynabo and was paid pursuant to those contracts.
• Paragraph 15: “In exchange for these payments, Perez-Otero agreed to award, facilitate,
and protect contracts for Company A. Perez-Otero continually reassured Individual A
that he would obtain and retain contracts for Company A and ensured that Company A’s
invoices were promptly paid.”

“In exchange for” is not synonymous with explicit or express. A person gives something

“in exchange for” something else in any quid pro quo. The existence of an exchange or agreement

does not necessarily imply the existence of an explicit or express agreement. The use of

“exchange” was thus insufficient to fully apprise the grand jury of a necessary element of Counts

Two and Three (and, therefore, Count One, which charges a conspiracy to commit the latter two

counts).

Counts One, Two, and Three of the Indictment must be dismissed for failure to charge an

essential element.

Even if true, the indictment fails to establish criminal liability as to these counts. The

government’s recitation of the timeline of events between Perez-Otero and Santamaria does not

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allege the existence of any agreement between the two at the time that Company A was awarded

a contract by the municipality. The Indictment therefore fails to allege any offense under the

statutes, as interpreted through the lens of McCormick.

“Since federal crimes are solely creatures of statute, a federal indictment can be challenged

on the ground that it fails to allege a crime within the terms of the applicable statute.” Dowling v.

United States, 473 U.S. 207, 213 (1985) (holding indictment insufficient where allegation that

defendant stole digital property did not allege a crime under the relevant statute) (cleaned up))

McCormick holds that an elected official’s acceptance of campaign contributions is

sanctionable “only if the payments are made in return for an explicit promise or undertaking by

the official to perform or not to perform an official act. In such situations the official asserts that

his official conduct will be controlled by the terms of the promise or undertaking.” 500 U.S. 257,

273 (emphasis added). The second sentence is key to understanding the limits of the McCormick

rule: the explicit agreement must precede the official conduct.

The timeline of events set forth in the Indictment does not meet this basic requirement of

McCormick: the Indictment does not allege any offer from Santamaria, nor a response from Perez-

Otero to an offer, and certainly no explicit promise that Santamaria would be awarded contracts

only if he would later pay campaign contributions.

The Court need not look beyond the face of the Indictment or take any inferential steps to

conclude that the facts alleged in the indictment do not allege a violation of the given statutes, as

modified by McCormick. The Indictment recites seven pages of factual allegations, drawing a

clear picture of the government’s theory about the allegedly illegal agreement between Perez-

Otero and Santamaria and fails to provide an “explicit” quid pro quo.

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Because the facts alleged in Counts One, Two, and Three of the Indictment do not

constitute an offense under McCormick, those counts must be dismissed.

WHEREFORE, the Defendant requests that the Honorable Court take notice.

Respectfully Submitted

I hereby certify that on this 9th day of January, 2023 I have electronically filed the foregoing

with the Clerk of the Court using the CM/ECF system, which will notify restricted parties of

record.

In San Juan, Puerto Rico, this 9th day of January, 2023.

S/Osvaldo Carlo-Linares_____
Osvaldo Carlo-Linares
USDC P.R. No. 126602
Tel. (787) 300-6483
Fax (787) 726-6456
Email: [email protected]

S/José R. Olmo-Rodríguez
José R. Olmo-Rodríguez
USDC 213405El Centro I,
suite 215, SJ, PR 00918
Tel.787.758.3570/[email protected]

S/Eduardo Ferrer Rios