USA v . Acevedo Vila et a l . CR-08-36-PJB 12/1/08 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

United States of America

v. Criminal N o . 3:08-cr-36-PJB Opinion N o .

Anibal Acevedo Vila, et a l .

MEMORANDUM AND ORDER

Anibal Acevedo Vila, Candido Negron Mella, Salvatore

Avanzato, Jorge Velasco Mella, Robert M . Feldman, Marvin I .

Block, Ramon Velasco Escardille, Edwin Colon Rodriguez, Eneidy

Coreano Salgado, Luisa Inclan Bird, Miguel Nazario Franco,

Ricardo Colon Padilla, and Jose Gonzales Freyre have been named

as defendants in a twenty-seven count indictment. All of the

charged crimes concern either Acevedo Vila’s 2000 and 2002

campaigns for Resident Commissioner or his 2004 gubernatorial

campaign.

The charges fall into three categories. Counts 1-9 stem

from an alleged conspiracy to make, receive, and conceal illegal

contributions to Acevedo Vila’s Resident Commissioner campaigns.

Counts 10-24 result from an alleged scheme to illegally obtain

approximately $7 million in public financing for Acevedo Vila’s 2004 gubernatorial campaign. Counts 25-27 are based on an

alleged conspiracy to prevent the Internal Revenue Service

(“IRS”) from ascertaining and collecting taxes that Acevedo Vila

owed in 2003 and 2004 on certain taxable benefits that he

allegedly received from his campaign committee and political

supporters.

Acevedo Vila has moved to dismiss many of the counts against

him and other defendants have either joined in his motion or have

filed their own motions raising similar arguments. I address

defendants’ motions collectively and analyze the challenges they

present to each category of charges in turn.

I. COUNTS 1-9

A. BACKGROUND

Acevedo Vila and nine other defendants are charged in Count

1 with participating in a conspiracy to make, receive, and

conceal illegal campaign contributions to Acevedo Vila’s 2000 and

2002 campaigns for Resident Commissioner. Counts 2-9 charge

several of the defendants named in Count 1 with making false

statements to the Federal Election Commission (“FEC”) and the

Federal Bureau of Investigation (“FBI”) in an effort to further

the conspiracy and conceal its existence.

-2- The conspiracy was allegedly carried out in three phases.

The first phase (the “Collaborator Contribution Scheme”) took

place between September 1999 and May 2000. During this period,

Acevedo Vila, Velasco Escardille, Colon Rodriguez, and other

unnamed conspirators allegedly recruited contributors to pay off

Acevedo Vila’s campaign debt to an unnamed corporation. The

defendants implemented this scheme by causing Acevedo Vila’s

supporters to make contributions directly to the corporation

without recording the contributions in the books and records of

Acevedo Vila’s campaign committee. The campaign committee also

failed to report the contributions to the FEC as the law

required. To further conceal the contributions, false invoices

were prepared to make it appear as if the contributions were

payments for services rendered by the corporation to the

contributors. More than $180,000 in illegal campaign

contributions allegedly were received by Acevedo Vila’s campaign

committee in connection with the Collaborator Contribution

Scheme. (See Indictment, Doc. N o . 9, at 8-9, 13-16.)

The second phase of the conspiracy (the “Family and Staff

Conduit Contribution Scheme”) occurred between September 2001 and

December 2002. Acevedo Vila and Inclan Bird allegedly solicited

members of Acevedo Vila’s family, as well as staff members at the

-3- Resident Commissioner’s office, to serve as conduits for illegal

campaign contributions. The conduits made contributions to

Acevedo Vila’s campaign committee, and Acevedo Vila and Inclan

Bird reimbursed the conduits for their contributions with cash or

checks. The campaign committee concealed the true nature of the

conduit contributions by filing false contribution reports with

the FEC. More than $10,000 in conduit contributions allegedly

were received by Acevedo Vila’s campaign committee in connection

with the Family and Staff Conduit Contribution Scheme. (Id. at

9, 16-18.)

The third phase of the conspiracy (the “Philadelphia Conduit

Contribution Scheme”) took place between February 2002 and June

2003. Acevedo Vila, Feldman, Negron Mella, Avanzato, Velasco

Mella, and Coreano Salgado allegedly worked together to obtain

and conceal the true nature of conduit contributions ostensibly

made by a group of contributors in the Philadelphia, Pennsylvania

area. More than $130,000 in conduit contributions allegedly were

received by Acevedo Vila’s campaign committee during this phase

of the conspiracy. (Id. at 10-13, 18-26.)

B. DUPLICITY

Defendants first contend that the conspiracy count must be

dismissed because it is duplicitous. As the U.S. Court of

-4- Appeals for the First Circuit has explained, “[d]uplicity is the

joining in a single count of two or more distinct and separate

offenses.” United States v . Verrecchia,

9 4 , 297 (1st

Cir. 1999) (quoting United States v . Canas,

3 , 78 (1st

Cir. 1979)). Defendants argue that Count 1 is duplicitous

because it improperly sweeps three distinct criminal schemes into

a single conspiracy charge.1

Defendants develop their argument by carefully de-

constructing the conspiracy count. They note that each of the

three phases of the conspiracy began and ended at different

times. They point to the fact that Acevedo Vila is the only

defendant who allegedly participated in all three phases of the

conspiracy. They complain that the Collaborator Contribution

Scheme differs from the other two schemes in the way in which the

1 A charge ordinarily should not be dismissed simply because it is duplicitous. 1A Charles Allen Wright et a l . , Federal Practice and Procedure § 145 (3d ed. 2008). Instead, the government generally will be permitted to choose the single charge on which it intends to proceed. Id. In this case, however, both the Collaborator Contribution Scheme and the Family and Staff Conduit Contribution Scheme would be barred by the statute of limitations if I were to treat each phase of the charged conspiracy as a separate conspiracy. Thus, if I were to determine that Count 1 is duplicitous, I would dismiss the Collaborator Contribution Scheme and the Family and Staff Conduit Contribution Scheme and instruct the government to proceed only on the Philadelphia Conduit Contribution Scheme.

-5- illegal fundraising was concealed. They argue that the

Philadelphia Conduit Contribution Scheme is distinct because it

was carried out on the mainland rather than in Puerto Rico.

Finally, they assert that each scheme had a different specific

objective and that the alleged conspirators lacked common

motivations. For all of these reasons, defendants argue that

each phase of the conspiracy must be charged in a separate

conspiracy count. (See Def. Acevedo Vila’s Mot. to Dismiss, Doc.

N o . 1 8 2 , at 5-16.)

I am unpersuaded by defendants’ argument. A single

conspiracy does not necessarily fracture into multiple

conspiracies simply because the conspiracy was carried out in

different phases. United States v . Eppolito,

5 , 47-48

(2d Cir. 2008); United States v . Small,

(10th

Cir. 2005); United States v . Calderon,

(11th

Cir. 1997). Nor are changes in membership dispositive.

Eppolito, 543 F.3d at 4 8 ; United States v . Segines,

4 7 ,

856 (6th Cir. 1994). A single conspiracy can also encompass

multiple criminal methods, United States v . Brandon,

(1st Cir. 1994), and it can be carried out at different

locations, United States v . Walker,

(2d Cir.

-6- 1998). Finally, the individual motivations that lead

participants to join a conspiracy may differ without precluding

the existence of a single conspiracy. Eppolito, 543 F.3d at 4 8 .

Although all of these factors may be considered at trial in

determining whether a charged conspiracy is in fact a series of

separate conspiracies, United States v . Trainor,

4 , 33

(1st Cir. 2007), none are necessarily decisive in determining

whether a conspiracy count is duplicitous. Instead, duplicity is

assessed by identifying the “unit of prosecution” for the charged

offense. Verrecchia, 196 F.3d at 297; United States v . Haddy,

4 2 , 548 (3d Cir. 1998).

Identifying the appropriate unit of prosecution is a matter

of statutory interpretation. Sanabria v . United States,

4 , 69 (1978). Because the U.S. Supreme Court has repeatedly

recognized that “the essence of a conspiracy is an ‘agreement to

commit an unlawful act,’” United States v . Jimenez Recio,

7 0 , 274 (2003) (citations omitted), the unit of prosecution

for the offense of conspiracy is the criminal agreement on which

the conspiracy charge is based. Braverman v . United States,

9 , 54 (1942). Accordingly, defendants’ duplicity challenge

turns on whether the Indictment properly alleges that all of the

-7- conspirators joined in a common agreement to achieve the

conspiracy’s unlawful objectives.

The conspiracy count charges that the conspirators joined in

a common agreement to solicit, receive, and conceal illegal

contributions for Acevedo Villa’s campaigns for Resident

Commissioner. The alleged agreement spanned all three phases of

the alleged conspiracy and encompassed all of the alleged

conspirators. No more than this is required for the conspiracy

count to survive defendants’ duplicity challenge. Whether the

evidence at trial will support the government’s contention is a

matter that will have to be resolved at a later stage of the

proceedings.2

C. VAGUENESS

Inclan Bird argues that Count 1 is too vague and “falls far

short of describing in any coherent way how Defendant Inclan

Bird’s conduct violates the law.” (Def. Inclan Bird’s Mot. to

Dismiss, Doc. N o . 169, at 4.) Inclan Bird is mentioned only

2 Feldman has moved to dismiss Count 1 for lack of venue. As he acknowledges, however, his motion is based on the assumption that Count 1 is duplicitous. (Def. Feldman’s Mot. to Dismiss, Doc. N o . 1 7 7 , at 2.) Because I reject defendants’ duplicity challenge, I also deny Feldman’s motion to dismiss for lack of venue.

-8- twice in the overt acts comprising Count 1 , namely, the

allegation that in 2001 she solicited, and then later reimbursed,

conduit contributions.

An indictment must present a “plain, concise, and definite

written statement of the essential facts constituting the offense

charged.” Fed. R. Crim. P. 7(c)(1). The goal is to provide

enough information to make the defendant aware of the charges

against which she must defend and allow her to “plead an

acquittal or conviction in bar of future prosecutions for the

same offense.” Hamling v . United States,

7 , 117

(1974); see United States v . Resendiz-Ponce,

0 2 , 108

(2007). “The allegations of an indictment are presumed to be

true for the purposes of assessing whether an indictment is

sufficient to withstand a motion to dismiss, and inquiry into

whether the government can prove its case at trial is

inappropriate at this stage.” United States v . Dunbar,

9 , 60 (D. Mass. 2005).

Count 1 tracks the language of

. As

required, it alerts the defendants to the charge against them,

the time period of the unlawful alleged activity, those claimed

to be involved, and the specific conduct at issue. See United

-9- States v . Olderbak,

(8th Cir. 1992)

(requirements of 7(c)(1) met because indictment “sufficiently

apprised the defendants of the time frame of the alleged drug

activity, the members of the alleged conspiracy, and the type of

drugs involved”); United States v . Ramos,

(11th

Cir. 1982) (an indictment that tracks the statute’s language,

“supplemented by precise allegations of the time and place of the

criminal activity” and “the names of the participants and the

controlled substance involved,” is sufficient). It also alleges

that the defendants agreed to illegally raise money to support

Acevedo Vila’s political ambitions and to take steps to conceal

the true nature of their plot. Specific overt acts are alleged,

and while only a few of them name Inclan Bird in particular, she

nonetheless is identified as a central player in the alleged

conspiracy. In short, the allegations are sufficiently detailed

to withstand defendants’ vagueness challenge.

II. COUNTS 10-24

A. BACKGROUND

Counts 10-24 stem from an alleged scheme to obtain

approximately $7 million in public financing for Acevedo Vila’s

-10- 2004 gubernatorial campaign without complying with the spending

cap that Puerto Rico’s electoral law imposes on recipients of

public financing. Counts 10-21 charge Acevedo Vila, Velasco

Escardille, Inclan Bird, Nazario Franco, Colon Padilla, and

Gonzalez Freyre with wire fraud. Count 22 charges all of the

wire fraud defendants except Velasco Escardille and Gonzalez

Freyre with program fraud. Counts 23 and 24 charge Gonzalez

Freyre and Colon Padilla with making false statements to agents

of the FBI and the IRS in an effort to conceal illegal campaign

contributions to Acevedo Vila’s gubernatorial campaign. (See

Indictment, Doc. N o . 9, at 34-48.)

Defendants attack the legal theory that underlies the wire

fraud and program fraud counts. Because their argument is based

on Puerto Rico’s electoral law, I first provide an overview of

that law and then turn to the merits of defendants’ argument.

B. THE ELECTORAL LAW

Puerto Rico’s electoral law establishes two sources of

public funding that candidates for governor may draw on to

subsidize their election campaigns.

The “Electoral Fund” is available to all qualifying

political parties and their gubernatorial candidates. P.R. Laws

-11- Ann. tit. 1 6 , § 3116 (2007). In non-election years, each party

and its candidate may draw up to $300,000 from the Electoral

Fund. Id. The amount increases to $600,000 in election years.

Id. Monies obtained from the Electoral Fund must be used

exclusively to defray “administrative campaign expenses and

political propaganda in Puerto Rico.” § 3118. Candidates and

political parties that draw on the Electoral Fund must report all

expenses chargeable to the Fund every three months. § 3109. The

Secretary of the Treasury is barred from making disbursements

from the Electoral Fund to a participating candidate until the

candidate complies with the law’s reporting requirements. Id.

Gubernatorial candidates and their political parties may

also participate in the “Voluntary Fund.” To enroll, a candidate

must agree to abide by the terms of the program and file a

certification to that effect with the Secretary of the Treasury.

§ 3117. If the required certification is filed, participation in

the Voluntary Fund is “final and binding and may not be revoked

for that specific general election.” Id. The Voluntary Fund is

maintained by the Treasury Department, which is responsible for

the custody, management, and disbursement of the resources

therein. The Voluntary Fund is “nurtured by private and public

-12- resources,” meaning that it is financed both with public funds

and private contributions raised by the political parties and

gubernatorial candidates. Id. Interest that accrues on money

deposited in the Voluntary Fund, money recovered through civil

penalties resulting from violations of the Voluntary Fund’s

terms, and money left unused by former candidates who previously

partipated in the public financing system are some of the other

sources of revenue for the Voluntary Fund. § 3117(b).

Once a candidate agrees to participate in the Voluntary

Fund by filing the required certification, the Secretary of the

Treasury deposits $3 million into a Voluntary Fund account for

that candidate. § 3117(c)(1). The candidate (and the political

party with which he is affiliated) can then raise up to an

additional $4 million in private contributions, which must also

be deposited into the candidate’s account. § 3117(c)(2). The

Treasury Department will match any private contributions up to $4

million. § 3117(c)(3). Money deposited into the Voluntary Fund

must be used “exclusively to defray the campaign expenses of the

political party and its campaign for governor.” § 3117(e).

Section 3117a of the electoral law imposes a spending cap of

$11 million on gubernatorial candidates who participate in the

-13- Voluntary Fund. It also provides that “[a]ny political party,

candidate for governor and any candidate for mayor that exceeds

the limits provided in this section shall be subject to a civil

penalty and the procedures provided in § 3109 of this title.”

Section 3109 states in pertinent part that “[a]ny party

entitled to the Electoral Fund, which exceeds the limits

established in this subtitle or its Regulations for its campaign

expenses, shall be subject to the payment of a penalty equal to

two (2) times the sum in excess of the limits provided in this

subtitle.” It also authorizes the Electoral Commission to go to

court to recover the penalty and to stop continued violations of

the electoral law.

Section 3354 makes it a crime for a person to “knowingly

and fraudulently” violate the electoral law. Section 3366

specifically addresses spending violations by making it unlawful

for any person to “pay or incur in campaign information media

expenses . . . in excess of the limits established in this

subtitle.”

C. ANALYSIS

The wire fraud and program fraud counts allege that

defendants enabled Acevedo Vila to draw on his Voluntary Fund

-14- account by fraudulently concealing the fact that his campaign had

exceeded Puerto Rico’s public financing spending cap.3 As the

government acknowledges, the charges thus depend upon the premise

that Puerto Rico’s electoral law bars a candidate from drawing on

his Voluntary Fund account if his campaign has exceeded the

spending cap. See Transcript of Oral Argument at 94-97, United

States v . Acevedo Vila, N o . 08-cr-036 (Sept. 2 3 , 2008).

Defendants attack the premise on which the wire fraud and

program fraud charges are based by contending that the electoral

law subjects a candidate who exceeds the spending cap to a civil

penalty and the possibility of criminal prosecution but does not

bar the candidate from drawing on his Voluntary Fund account.

Thus, they argue that the charges at worst allege a scheme to

violate local law rather than a scheme to deprive Puerto Rico of

3 The wire fraud counts allege that “[t]he object of the scheme and artifice to defraud, was for defendant ACEVEDO VILA and Comité Anibal to obtain public campaign financing from the Puerto Rico Treasury Department in the approximate amount of $7,000,000 by circumventing certain legal requirements required by the Commonwealth of Puerto Rico’s public campaign financing laws.” (Indictment, Doc. N o . 9, at 38-39.) The counts then go on to identify the spending cap as the legal requirement that defendants schemed to circumvent. Although the program fraud count does not specify the fraud scheme that defendants allegedly used to obtain access to public financing, the government concedes that it too is based on the fraudulent concealment of excessive campaign spending.

-15- “property.” Such schemes cannot be the basis of either wire

fraud or program fraud charges, they argue, because both crimes

require proof that the object of the alleged fraud was “property”

in the hands of the victim.4

The government responds to the defendants’ argument solely

by challenging their interpretation of the electoral law. In the

government’s view, that law plainly bars a candidate from drawing

on the Voluntary Fund after his campaign has exceeded the

spending cap. Thus, the charged scheme to conceal excessive

campaign spending is prosecutable as wire fraud and program

fraud, the government argues, because it is a scheme to obtain

access to the Voluntary Fund rather than a scheme merely to

conceal violations of Puerto Rican law. The government presents

three arguments in support of its position and I examine each

argument in turn.

4 The U.S. Supreme Court has construed the mail and wire fraud statutes to require that the object of the charged fraud scheme must be property in the hands of the victim. See Pasquantino v . United States,

, 355 & n.2 (2005) (wire fraud); Cleveland v . United States,

2 , 26-27 (2000) (mail fraud). The type of program fraud at issue here explicitly requires proof that “property” was “obtain[ed] by fraud.”

(a)(1)(A). Thus, neither statute can be used to prosecute a scheme to conceal violations of local law unless the scheme is also designed to deprive a victim of property.

-16- The government first argues that a candidate is barred from

drawing additional money from the Voluntary Fund after he has

exceeded the spending cap because the electoral law prohibits the

Secretary of the Treasury from making further disbursements to

such candidates. The government bases its argument on sections

3117a and 3109 of the electoral law. Section 3117a establishes

the spending cap and provides that candidates who exceed the cap

“shall be subject to a civil penalty and the procedures provided

in § 3109 of this title.” Section 3109 does four things: it

requires candidates who participate in the Electoral Fund to

report expenditures chargeable to the Fund; it states that “[t]he

Secretary of the Treasury shall not authorize any disbursement

whatsoever chargeable to the Electoral Fund, for any party or

candidate until the provisions of this section are complied

with”; it establishes the penalty for excessive campaign

spending; and it empowers the Electoral Commission to go to court

to recover the penalty and to “stop the continued violation of

this subtitle.” The government focuses on the second of these

four provisions in arguing that the Secretary’s duty to withhold

disbursements in section 3109 is one of the “procedures” that

candidates who exceed the spending cap are subject to pursuant to

-17- section 3117a.

The central difficulty with the government’s argument is

that it is inconsistent with the statutory text on which it

depends. For the government’s argument to succeed, the Secretary

of the Treasury’s duty in section 3109 to withhold disbursements

would apply to disbursements from the Voluntary Fund even though

that duty expressly encompasses only disbursements from the

Electoral Fund, it would be triggered by excessive campaign

spending even though section 3109 specifies that the Secretary

may only withhold disbursements from candidates who fail to

comply with the section’s reporting requirements, and it would

result in a permanent ban on disbursements from the Voluntary

Fund after the spending cap has been exceeded even though section

3109 specifies that disbursements are to be withheld only until

the candidate complies with the section’s requirements. Such a

strained reading of section 3109 cannot be justified simply

because section 3117a subjects candidates who exceed the spending

cap to the “procedures” set forth in section 3109. Instead, as

defendants more sensibly contend, the reference to “procedures”

in section 3117a includes only the power that section 3109 gives

to the Electoral Commission to go to court to recover the penalty

-18- for excessive spending and to halt further violations of the

electoral law.

The administrative regulations that implement sections 3109

and 3117a support this reading of the electoral law. Part XVI of

the Treasury Department Rules and Regulations N o . 48 provides at

paragraph 8 :

Each political party . . . will maintain a complete and detailed accounting of any expense incurred by them and charged to the Electoral Fund or the Voluntary Fund. Every three (3) months within the first ten (10) days following the end of the report period, they must also submit to the Commission and the Secretary a report, duly sworn, certifying these expenses, including the date of the expense, the name of the person in whose favor payment was ordered and their complete address, as well as the reason for incurring in this expense. The Secretary will not authorize any disbursement from the Electoral Fund or the Voluntary Fund to any party or independent candidate, until the obligation of submitting the reports is complied with.

(Treasury Rules and Regulations N o . 4 8 , Doc. N o . 352-17, at 57.)

Paragraph 9 of the regulations provides in pertinent part that:

[A]ny political party that avails itself of the Electoral Fund and/or the Voluntary Fund and whose campaign expenses are in excess of the limits established in the Law or its rules and regulations, will be subject to a penalty payment equal to twice (2 times) the amount of the excess expenditures . . . [and the] Commission will go to the appropriate Court of Justice with the suitable resource to impede the continued violation . . . .

(Id. at 52.) When these two paragraphs are construed together,

-19- they support the view that the Secretary of the Treasury’s power

to withhold disbursements is limited to situations in which a

candidate or party has failed to comply with its reporting

obligations, whereas the power to enforce the spending cap is

given exclusively to the Electoral Commission. Accordingly, I am

unpersuaded by the government’s contention that section 3109

gives the Secretary of the Treasury the power to withhold

disbursements from candidates who have exceeded the spending cap.

The government next argues that candidates lose the right to

draw on the Voluntary Fund after they exceed the spending cap

because the Electoral Commission’s power in section 3109 to go to

court to stop continued violations of the electoral law

necessarily includes the power to stop a candidate who has

exceeded the spending cap from drawing on the Voluntary Fund.

This argument is plainly without merit.

A candidate who elects to participate in the Voluntary Fund

violates the spending cap by spending more than $11 million on

his campaign. See § 3117a. A request for reimbursement from the

Voluntary Fund is not an expenditure, and thus, it does not

violate the spending cap. Nor does any other provision of the

electoral law make it unlawful for a candidate who has exceeded

-20- the spending cap to seek reimbursement from the Voluntary Fund.

Accordingly, the Electoral Commission’s power to go to court to

stop continued violations of the electoral law does not include

the power to stop a candidate who has exceeded the spending cap

from drawing on the Voluntary Fund.

The government’s third argument is that its interpretation

of the electoral law must be adopted because it would be absurd

to construe the law to permit a candidate to continue to benefit

from the Voluntary Fund after he has exceeded the spending cap.

I am also unpersuaded by this argument.

The Puerto Rican legislature has chosen to enforce the

spending cap by subjecting violators to a civil penalty and the

possibility of criminal prosecution. Under the government’s

interpretation of the electoral law, a candidate who exceeds the

spending cap by even a small amount would also be completely

barred from drawing on the Voluntary Fund even to obtain

reimbursement for expenses that were incurred before the spending

cap was exceeded. This could result in the complete loss of up

to $7 million in public funding as well as the forfeiture of up

to $4 million in contributions raised from private sources.

Clearly, the legislature reasonably could have concluded that it

-21- did not need to subject candidates to such potentially harsh

consequences in order to deter spending cap violations given the

alternative enforcement mechanisms that are expressly included in

the electoral law. Thus, I do not agree that the electoral law

would be absurd unless I adopted the government’s proposed

interpretation of the law.

In summary, I am unpersuaded by the government’s argument

that a candidate who exceeds the spending cap is thereafter

barred from drawing on the Voluntary Fund. Instead, I agree with

the defendants that the electoral law allows a candidate to draw

on the Voluntary Fund even if he has exceeded the spending cap.

Accordingly, a scheme to conceal campaign spending in violation

of the spending cap is a scheme to violate Puerto Rican law

rather than a scheme to defraud Puerto Rico of its contributions

to the Voluntary Fund. Because such a scheme cannot serve as the

basis for wire fraud or program fraud prosecution, the charges

are defective and must be dismissed.5

5 Gonzales Freyre is charged in Count 23 with making a false statement to agents of the FBI and the IRS concerning a disguised political contribution to Acevedo Vila’s gubernatorial campaign. He argues that the alleged false statement cannot be material as a matter of law because it concerned only a potential violation of local election law that neither the FBI nor the IRS have jurisdiction to investigate. I disagree. Materiality presents a mixed question of law and fact that ordinarily must be

-22- III. COUNTS 25-27

A. BACKGROUND

Acevedo Vila and Inclan Bird are charged in Count 25 with

conspiracy to prevent the IRS from correctly ascertaining and

collecting income taxes that Acevedo Vila owed to the federal

government on certain taxable benefits that he allegedly received

from his campaign committee and political supporters. Counts 26

and 27 charge Acevedo Vila with filing false federal income tax

returns. (See Indictment, Doc. N o . 9, at 49-55.)

Acevedo Vila and Inclan Bird have moved to dismiss the

conspiracy count because they claim that it fails to properly

allege a conspiracy to defraud. Acevedo Vila also challenges the

false tax return counts because he claims that the charges are

based on a legal theory that the government concedes it has no

evidence to support. I address each argument in turn.

B. CONSPIRACY COUNT

A conspiracy to defraud the United States by frustrating the

resolved by a jury. United States v . Gaudin,

, 522- 23 (1995). I cannot conclude as a matter of law that both the FBI and the IRS lacked jurisdiction to question Gonzales Freyre concerning disguised political contributions to Acevedo Vila’s gubernatorial campaign. Accordingly, defendant’s motion to dismiss Count 23 (Doc. N o . 190) is denied.

-23- functions of the IRS is known as a Klein conspiracy. See

generally United States v . Klein,

(2d Cir. 1957). A

Klein conspiracy consists of three elements that must be alleged

in an indictment: (1) an agreement between two or more people to

accomplish an unlawful objective against the United States; (2)

the commission of an overt act in furtherance of the conspiracy;

and (3) the knowing and voluntary participation of the defendants

in the conspiracy. See Brandon,

. “Such

conspiracies to defraud are not limited to those aiming to

deprive the government of money or property, but include

conspiracy to interfere with government functions.” United

States v . Goldberg,

7 0 , 773 (1st Cir. 1997). In

addition, the means used to achieve the unlawful goal of the

conspiracy need not be unlawful and the government need not

demonstrate that taxes have not been paid. See United States v .

Tarvers,

(1st Cir. 1987).

Acevedo Vila and Inclan Bird have filed overlapping motions

to dismiss Count 25 on the grounds that a Klein conspiracy has

not been sufficiently alleged. Defendants argue that the

conspiracy count fails to properly allege the following: (1) an

agreement; (2) an unlawful purpose to defraud; and (3) defrauding

-24- or interfering with the IRS. I will consider each of these

arguments in turn. (Def. Acevedo Vila’s Mot. to Dismiss, Doc.

N o . 182-2, at 45-50.)

1. Agreement

Acevedo Vila and Inclan Bird argue that Count 25 fails to

properly allege that they agreed to obstruct the IRS’s functions.

They argue that Count 25 makes boilerplate allegations tracking

the language of section 3 7 1 , but does not provide any factual

allegation that they agreed to engage in unlawful activity for

the purpose of concealing income. The defendants assert that

Count 25 merely alleges a failure to disclose income and does not

allege an agreement to interfere with government functions, as is

required to establish a Klein conspiracy. See United States v .

Adkinson,

(11th Cir. 1998). However, Count

25 explicitly alleges that Acevedo Vila and Inclan Bird “did

knowingly, willfully, and unlawfully, combine, conspire,

confederate, and agree to defraud the United States.”

(Indictment, Doc. N o . 9, at 50.) Such allegations ordinarily are

sufficient to support this element of a conspiracy charge.

Hamling, 418 U.S. at 117.

-25- Acevedo Vila also argues that the only factual allegation of

an agreement is that in 2006 Inclan Bird and “others” agreed to

falsely claim clothing purchases for him as business expenses of

the Popular Democratic Party and post-date those expenses to

include them in reports to the State Electoral Commission in

2005. (Indictment, Doc. N o . 9, at 53.) He asserts that this

alleged agreement occurred after the relevant time period, does

not suggest his participation, and does not pertain to his taxes.

Although Acevedo Vila is correct that the overt acts alleged in

Count 25 include an agreement between Inclan Bird and others, and

that proof of this agreement alone would likely be insufficient

to meet the requirements of a Klein conspiracy, the existence of

that agreement does not suggest that an agreement between Acevedo

Vila and Inclan Bird did not exist. The count does not

specifically allege when or how a meeting of the minds occurred

between Acevedo Vila and Inclan Bird, but it does allege

sufficient facts to allow the inference of an agreement by a

jury. The conspiracy count thus sufficiently alleges the first

element of a Klein conspiracy.

2. Unlawful Purpose to Defraud

The defendants also argue that Count 25 fails to allege a

-26- Klein conspiracy because even if an agreement is alleged, there

is no allegation that the agreement’s objective was to interfere

with the lawful functions of the IRS. The objective of an

agreement is unlawful if it is “for the purpose of impairing,

obstructing, or defeating the lawful function of any department

of government.” Dennis v . United States,

(1966) (citations omitted). Interference with government

functions cannot be a mere foreseeable consequence or collateral

effect of another agreement if a Klein conspiracy is to be

charged. Goldberg, 105 F.3d at 774; United States v .

Pappathanasi,

(D. Mass. 2005). In

such a conspiracy, “the fraud has to be a purpose or object of

the conspiracy, and not merely a foreseeable consequence of the

conspiratorial scheme.” Goldberg, 105 F.3d at 773. The

government must prove co-conspirators agreed to defraud the IRS,

and not merely that “a defendant agreed to pay someone under the

table knowing that he had no intention of reporting the money to

the IRS.” Pappathanasi,

-92 (quoting

Goldberg, 105 F.3d at 7 7 4 ) .

Acevedo Vila argues that Count 25 merely makes a boilerplate

allegation that tracks the language of the statute and fails to

-27- provide any factual allegation that he did anything other than

fail to disclose income. However, Count 25 specifically alleges

that Inclan Bird and Acevedo Vila “did knowingly, willfully, and

unlawfully, combine, conspire, confederate, and agree to defraud

the United States Treasury Department and the Internal Revenue

Service . . . .” (Indictment, Doc. N o . 9, at 50.) This language

is sufficient to allege intent by the defendants to agree to the

conspiracy and to defraud the United States. See United States

v . Ervasti,

(8th Cir. 2000) (upholding as

sufficient Klein conspiracy indictment with similar language).

Inclan Bird argues that Count 25 does not demonstrate that

she intended to agree to defraud the IRS, because it describes

the object of the conspiracy as concealment and there is no nexus

between her alleged overt acts and the filing of the tax returns

in issue. (Def. Inclan Bird’s Mot. to Dismiss, Doc. N o . 1 7 1 , at

1-2.) However, “a conspiracy may have multiple objectives, and

‘if one of its objectives, even a minor one, be the evasion of

federal taxes, the offense is made out, though the primary

objective may be concealment of another crime.’” Adkinson,

(quoting Ingram v . United States,

7 2 , 679-

80 (1959)). Although Count 25 states that an object of the

-28- conspiracy was “to conceal the fact that ACEVEDO VILA’s personal

income was being supplemented with funds derived from political

activity,” (Indictment, Doc. N o . 9, at 5 0 ) , this does not

preclude the possibility that Acevedo Vila and Inclan Bird also

intended to impede the IRS, see Adkinson,

;

Goldberg, 105 F.3d at 773-74. No case law prohibits the

government from proving multiple objectives in the conspiracy.

And, as noted in the preceding paragraph, Count 25 explicitly

states that the agreement between Acevedo Vila and Inclan Bird

was to defraud the IRS.

3. Defrauding the IRS

Acevedo Vila argues that Count 25 “does not adequately

allege a scheme that could even theoretically have had the

purpose to defraud the IRS, because . . . no federally reportable

income was missing from M r . Acevedo Vila’s tax returns.” (Def.

Acevedo Vila Mot. to Dismiss, Doc. N o . 182-2, at 50.) I

disagree.

Count 25 alleges that Acevedo Vila “signed and filed false

individual income tax returns” for 2003 and 2004. (Indictment,

Doc. N o . 9, at 53.) The government contends that it will prove

at trial that federally reportable income was missing from

-29- Acevedo Vila’s returns. Whether the government will be able to

produce sufficient evidence to support this contention is a

matter that will have to be resolved at trial.

C. FALSE TAX RETURN COUNTS

Counts 26 and 27 allege that Acevedo Vila’s tax returns were

false because he understated his total gross income on line 22 of

his federal income tax returns.6 Acevedo Vila attacks both

counts because he claims that the government admits that his

entries on line 22 correctly reported his total gross income.

The government concedes that it will not argue at trial that

Acevedo Vila understated his income on line 22 of his federal

returns. See Transcript of Telephone Conference, United States

v . Acevedo Vila, N o . 08-cr-036 (Oct. 2 2 , 2008). This is because

the income that it claims Acevedo Vila failed to report was

Puerto Rican-sourced income, which he was not required to include

on line 2 2 . See generally,

. Instead, the

government has informed the court that it intends to prove that

6 Although both counts also assert that Acevedo Vila understated his income on the Puerto Rican tax returns that he filed with his federal returns, the only reason that is apparent from the charges themselves as to why a false statement of income on the Puerto Rican returns could be material to the federal return is that it helps to conceal the understatement of total gross income on line 22 of his federal returns.

-30- Acevedo Vila’s federal returns are false because he failed to

properly account for his Puerto Rican-sourced income when

claiming his foreign tax credit, determining the allowance amount

of his deductions, and calculating his alternative minimum tax

liability. Because this theory of culpability varies materially

from the theory on which Counts 26 and 27 are based, Acevedo Vila

could not be convicted of the charges based on the evidence that

the government intends to offer at trial. United States v . Cruz-

Arroyo,

9 , 77 (1st Cir. 2006) (conviction barred when

trial evidence varies materially and prejudicially from the

charge returned by the grand jury).

Although a court ordinarily cannot dismiss a facially valid

charge before trial based on a claim that the trial evidence will

not support the charged offense, no point would be served in

waiting until the government has presented its evidence to

dismiss the false tax return charges because the government

concedes that it will not even attempt to prove at trial that

Acevedo Vila’s entries on line 22 were false. Accordingly,

Counts 26 and 27 are dismissed without prejudice to the

government’s right to seek alternative charges that more closely

conform to its anticipated evidence.

-31- IV. CONCLUSION

For the reasons set forth in this Memorandum and Order,

Counts 10-22 are dismissed with prejudice and Counts 26 and 27

are dismissed without prejudice. Defendants’ motions to dismiss

(Doc. Nos. 169, 1 7 1 , 1 7 2 , 176, 1 7 7 , 1 8 2 , 1 8 8 , 1 9 0 , and 222) are

otherwise denied.

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge District of New Hampshire Sitting by Designation

December 1 , 2008

cc: Counsel of Record

-32-