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Caso de Ángel Pérez
Caso de Ángel Pérez
MOTION TO DISMISS
COMES NOW Defendant Angel Perez-Otero, through the undersigned attorney, and
For the reasons set forth herein, the appearing defendant request the dismissal of the
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.
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,
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,
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
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,
associational” rights under the First Amendment); Buckley v. Valeo, 424 U.S. 1, 24–25 (1976)
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
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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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
• 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
“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))
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
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
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
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.
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]