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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO ) ) ) Plaintiff, ) ) v. ) ) JUAN BRAVO FERNANDEZ ) ) and ) ) HECTOR MARTINEZ MALDONADO, ) ) Defendants. ) ____________________________________) UNITED STATES OF AMERICA,

Criminal No. 10-232 (FAB)

UNITED STATES SENTENCING MEMORANDUM On March 7, 2011, almost exactly one year ago, a jury in the District of Puerto Rico found defendants Juan Bravo Fernandez and Hector Martinez Maldonado guilty of participating in a bribery scheme. Specifically, a jury found both defendants guilty of violating 18 U.S.C. 666, and found defendant Bravo guilty of violating 18 U.S.C. 371, for using an all-expenses paid, first-class trip to Las Vegas to corruptly influence the passage of legislation financially benefitting defendant Bravo. For the reasons set forth below, we respectfully request that the Court find a Total Offense Level of 34 for defendant Bravo and a Total Offense Level of 36 for defendant Martinez. We further respectfully request that the Court impose a fine on defendant Bravo at the high end of the Guidelines range, and on defendant Martinez at the low end of the Guidelines range. Finally, we respectfully urge the Court to deny any motion for bond pending

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appeal and order the immediate surrender of the defendants to begin serving their prison sentences. I. Relevant Factual Background The evidence presented at trial established that on March 2, 2005, defendant Bravo purchased four tickets to the May 14, 2005, professional boxing match between Felix Tito Trinidad and Winky Wright, at a cost of approximately $1,000 each. On that same day, defendant Martinez submitted Senate Project 410, defendant Bravos Code of Conduct legislation, for consideration by the Puerto Rico Senate. Just a few days later, on March 8, 2005, defendant Bravo met with defendant Martinez and Victor Rivera, an aide to defendant Martinez, to discuss the status of Senate Project 471, defendant Bravos private detective legislation. Rivera testified that after a subsequent conversation about the trip to Las Vegas among the three of them, Rivera admonished defendant Martinez that it would be improper to accept the trip. On March 18, 2005, defendant Martinez submitted Senate Project 471, defendant Bravos private detective legislation, for consideration by the Puerto Rico Senate. On April 12, 2005, defendant Martinez presided over a Public Safety Committee hearing regarding Senate Project 410, at which defendant Bravo was the only representative of the private security industry to testify. Shortly after the April 12, 2005, Public Safety Committee hearing, defendant Martinez authorized the preparation of a Public Safety Committee report in support of Senate Project 410. On April 20, 2005, defendant Martinez presided over a Public Safety Committee hearing regarding Senate Project 471, at which defendant Bravo was the only representative of the 2

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security industry to testify. Shortly after the April 20, 2005, Public Safety Committee hearing, defendant Martinez authorized the preparation of a Public Safety Committee report in support of Senate Project 471. The very next day, defendant Bravo used his personal credit card to reserve a hotel room at the Mandalay Bay Resort and Casino in Las Vegas, Nevada. The deposit for this hotel room was credited to defendant Martinez. On May 5, 2005, defendant Bravo used his personal credit card to reserve two additional hotel rooms at the Mandalay Bay Resort and Casino in Las Vegas, Nevada. The deposits for these hotel rooms were credited to defendant Bravos hotel room and the hotel room of Jorge de Castro Font, who at the time was a powerful Senator for the Commonwealth of Puerto Rico. In the spring of 2005, defendant Bravo arranged first-class round trip airline tickets for himself, defendant Martinez, and de Castro Font, from Puerto Rico to Las Vegas. On May 11, 2005, defendant Martinez, as Chair of the Public Safety Committee, issued a report in support of Senate Project 471. Two days later, defendant Bravo, defendant Martinez, and de Castro Font traveled from San Juan, Puerto Rico, to Las Vegas, Nevada. Defendant Bravo, defendant Martinez, and de Castro Font were seated in the first-class cabin during the flights. When they arrived, defendant Bravo, defendant Martinez, and de Castro Font checked into the Mandalay Bay Resort and Casino in Las Vegas, Nevada, where they stayed for two nights, at a cost of $935.22 for defendant Martinez and $1,066.01 for de Castro Font. Defendant Bravo paid for the first night for both defendant Martinez and de Castro Font by using his personal credit card. De Castro Font paid for himself and defendant Martinez for the second night, but the evidence at trial established that defendant Bravo provided de Castro Font with 3

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regular cash payments during this time. On May 14, 2005, defendant Bravo, defendant Martinez, and de Castro Font attended the Felix Tito Trinidad vs. Winky Wright professional boxing match at the MGM Grand Hotel and Casino in Las Vegas, Nevada. The three men sat in seats approximately seven rows up from the floor, using the tickets previously purchased by defendant Bravo for approximately $1,000 each. On May 15, 2005, defendant Bravo, defendant Martinez, and de Castro Font traveled from Las Vegas, Nevada, to Miami, Florida. All three men were seated in the first-class cabin. Defendant Bravo, defendant Martinez, and de Castro Font checked into the Marriott South Beach in Miami Beach, Florida, where they stayed in individual hotel rooms reserved and paid for by defendant Bravo using his personal credit card at a total cost of $954.75, approximately $318.25 per person. On May 16, 2005, defendant Bravo, defendant Martinez, and de Castro Font traveled from Miami, Florida, to San Juan, Puerto Rico. All three men sat together in the first-class cabin of the plane. The very next day, de Castro Font, as Chair of the Committee on Rules and Calendars, scheduled an immediate vote on the floor of the Puerto Rico Senate for Senate Project 471. That same day, with the support of defendant Martinez and de Castro Font, the full Puerto Rico Senate approved Senate Project 471. A day later, May 18, 2005, defendant Martinez, as Chair of the Public Safety Committee, issued a report in support of Senate Project 410. On May 23, 2005, de Castro Font, as Chair of the Committee on Rules and Calendars, scheduled an immediate vote on the floor of the Puerto Rico Senate for Senate Project 410. That same day, with the support of defendant Martinez and de Castro Font, the full Puerto Rico Senate approved Senate Project 410

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The evidence at trial established that the legislation at issue, particularly 471, was worth millions of dollars to defendant Bravo. Nestor Medina testified that Loomis made $12 million annually in gross revenue from the armored car business, and $1.5 million in net revenue. Mr. Medina and Miguel Portilla both testified that 471 would have adversely affected Loomis and Brinks, the only two other private security firms providing armored car services, other than Ranger American, leaving defendant Bravos company with a monopoly in the armored car business and the ability to capture Loomis and Brinks lost business. II. The Relevant Sentencing Factors Warrant the Imposition of Sentences Consistent with the Applicable Guidelines Range As emphasized by the Supreme Court in Gall v. United States, a district court should begin all sentencing proceedings by correctly calculating the applicable Guidelines range. 128 S. Ct. 586, 596 (2007). In this case, as calculated below, the Total Offense Level for defendant Bravo is 34; the Total Offense Level for defendant Martinez is 36 months of incarceration. A. Calculation of Applicable Guidelines Range

The Court should use the 2011 Sentencing Guidelines for the purpose of calculating the defendants Total Offense Level. U.S.S.G. 1B1.11 (Use of Guidelines Manual in Effect on Date of Sentencing). Defendant Martinez has complained that 1B1.11(b)(1)the ex post facto clause of the Sentencing Guidelinesmilitates using the 2005 Guidelines, since that is when the criminal conduct occurred. Def. Martinez Obj. to PSR at 15. Defendant Martinez, however, fails to identify any adverse disparity between the 2011 Guidelines and the 2005 Guidelines that would implicate the ex post facto clause. Section 1B1.11(b)(1), therefore, does 5

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not disfavor use of the 2011 Guidelines here, since an ex post facto violation must be more than merely speculative, particularly where the Guidelines themselves are so predictable. More fundamentally, however, because the Guidelines are no longer mandatory, the ex post facto clause does not apply to new versions of the books. See United States v. Demaree, 459 F.3d 791, 792-95 (7th Cir. 2006). Consequently, with no ex post facto clause violation, the 2011 version of the Guidelines applies because the Guidelines require the application of the current version of the book. U.S.S.G. 1B1.11. 1. Base Offense Level

The Sentencing Guideline applicable to defendants Bravos and Martinez convictions on the 666 federal program bribery charges is 2C1.1 (Offering, Giving, Soliciting, or Receiving a Bribe; Extortion Under Color of Official Right). United States v. Griffin, 324 F.3d 330, 365 (5th Cir. 2003); United States v. Griffin, 154 F.3d 762, 763 (8th Cir. 1998); United States v. Santopietro, 996 F.2d 17, 21 (2d Cir. 1993). The Base Offense Level for defendant Bravo is twelve, 2C1.1(a)(2); the Base Offense Level for defendant Martinez is fourteen, 2C1.1(a). The two-level disparity reflects defendant Martinez position as a public official. Defendants Bravo and Martinez have challenged the use of 2C1.1 as the applicable offense Guideline section, asserting that 2C1.2 (Offering, Giving, Soliciting, or Receiving a Gratuity) is the proper offense Guideline section to calculate the base offense level. Def. Bravo Obj. to PSR at 12-14; Def. Martinez Obj. to PSR at 13-18. The First Circuit, however, has rejected this argument when made in an analogous context. In United States v. Mariano, 983 F.2d 1150 (1st Cir. 1993), the court ruled that where a thing of value precedes an official act and 6

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is given with the intent to influence that act, 2C1.1 is the proper offense Guideline section. Id. at 1159. There, two defendants pled guilty to violating 666(a)(2) for providing money to city officials for the purpose of retain[ing] valuable contracts which [the city] might otherwise have redirected to a competitor. Id. The defendants, however, appealed being sentenced under 2C1.1 instead of 2C1.2. Specifically, the defendants argued that their conduct was more analogous to an illegal gratuity than a bribe. The court rejected the defendants argument and held 2C1.1 to be the applicable Guideline section, explaining: [The] essential difference between a bribe and an illegal gratuity is the intention of the bribe-giver to effect a quid pro quo. Hence, a bribery guideline, section 2C1.1, applies when a transfer of money has a corrupt purpose, such as inducing a public official to participate in a fraud or to influence his official actions. The gratuity provision, on the other hand, does not include a corrupt purpose as an element of the offense. . . . . The common thread that runs through both statutes (201 and 666) is the intent of the payer, by the greasing of palms, to affect the future actions of a public official. Mariano, 983 F.2d at 1159 (internal citations and quotation marks omitted). Here, the all-expenses paid, first-class trip to Las Vegas was clearly a bribe rather than an illegal gratuity. While the evidence of intent is circumstantial, it is compellingly so. It is undisputed that defendant Bravo provided de Castro Font and defendant Martinez with things of value at the same time that he was asking them to perform official acts that would benefit him financially. The trip, the purchase of the boxing tickets, the reservation of the hotel, and the reservation of the flight preceded, by mere days, defendant Martinez and de Castro Fonts official acts benefitting defendant Bravo. The evidence established that defendants Bravo and Martinez did not have a relationship predating Martinez election to the Senate, and the only

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thing they had in common in May 2005 was Senate Projects 410 and 471. The jury instructions also clarify that the defendants were convicted of bribery rather than an illegal gratuity: I have used the word bribery in these instructions. Bribery requires that the government prove beyond a reasonable doubt the existence of a quid pro quo or, in plain English, an agreement that the thing of value that is given to the public official is in exchange for that public official promising to perform official acts for the giver. It is not sufficient that the thing of value is made to curry favor because of the officials position or that there is some connection in time or place with an official act that is promised to the giver; rather there must be an agreement that the thing of value was offered by defendant Bravo and accepted by Senator Martinez in exchange for a promise to perform an official act. Dkt. No. 433 (Jury Instructions) at 37. Even defendant Martinez has conceded that the defendants were properly charged with bribery. See Dkt. No. 450 (Def. Martinez Rule 29) at 13 ([T]he Indictment charged bribery, not gratuities as the offense.). Therefore, 2C1.1 is the applicable offense Guideline section. See Mariano, 983 F.2d at 1160 ([W]hen there are two plausible views of the record, the sentencing courts adoption of one such view cannot be clearly erroneous.). 2. Specific Offense Characteristics

In this case, several specific offense characteristics enhance the offense level for defendants Bravo and Martinez. The Guidelines state that all relevant conduct should be considered to determine the Guideline range. U.S.S.G. 1B1.3. This can include [c]onduct that is not formally charged or is not an element of the offense of conviction. U.S.S.G. 1B1.3 background cmt. Relevant conduct must be established merely by a preponderance of the

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evidence. United States v. Day, 524 F.3d 1361, 1373 (D.C. Cir. 2008). Additionally, the Supreme Court has long held that a jurys acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge so long as that conduct has been proven by a preponderance of the evidence. United States v. Watts, 519 U.S. 148, 157 (1997). In the course of this trial, ample evidence was presented from which the Court may find by a preponderance of the evidence the application of certain offense characteristics. a. High-Level Public Official

Section 2C1.1(b)(3) requires a four-level increase if the offense involved an elected public official or any public official in a high-level decision-making or sensitive position . . . . U.S.S.G. 2C1.1(b)(3). It is undisputed that at the time of the offense defendant Martinez was an elected Senator for the Commonwealth of Puerto Rico. Therefore, a four-level enhancement pursuant to 2C1.1(b)(3) applies to both defendants. Indeed, the application of this enhancement does not appear to be contested by the defendants, and for good reason. b. More Than One Bribe

Section 2C1.1(b)(1) requires a two-level enhancement [i]f the offense involved more than one bribe . . . . U.S.S.G. 2C1.1(b)(1). Although defendants Bravo and Martinez were each convicted of only one count of federal program bribery (Counts Four and Five, respectively), the evidence presented at trial established that the corrupt scheme involved two bribes: a bribe to defendant Martinez and a bribe to Jorge de Castro Font, who at the time of the offense was a Senator for the Commonwealth of Puerto Rico. Courts have held that different payments intended to corruptly influence different actions constitute separate bribes. See United 9

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States v. Arshad, 239 F.3d 276, 281 (2d Cir. 2001) ([T]he fact that different payments are intended to elicit different actions may . . . warrant treating the payments as multiple bribes and therefore imposing a two-level enhancement under 2C1.1(b)(1).); see also United States v. Kahlon, 38 F.3d 467, 470 (9th Cir. 1994) (holding that eight separate payments to promote different applications for work paopers, although part of a larger conspiracy, were not installment payments for a single action). Here, the evidence established that defendant Bravo provided defendant Martinez and de Castro Font with the free trip to Las Vegas for the purpose of influencing each individual in his support of Senate Projects 410 and 471. Specifically, in exchange for the free, first-class trip each would take separate official acts in support of defendant Bravos legislation (e.g., voting for the legislation in committee, scheduling a vote for the legislation, voting on the legislation, etc.). Therefore, the offer of the bribe to defendant Martinez and to de Castro Font constituted two separate bribes. Defendant Bravo is responsible under the Guidelines for both bribes, since he provided both. Defendant Martinez is also responsible for both bribes because defendant Bravos bribe to de Castro Font was a foreseeable act[] . . . in furtherance of the jointly undertaken criminal activity . . . that occurred during the commission of the offense of conviction . . . . U.S.S.G. 1B1.3(a)(1)(B). Indeed, defendant Bravos bribe to de Castro Font involved the same thing of value given to defendant Bravo; namely, a free trip to Las Vegas to watch a Felix Tito Trinidad championship boxing match. The evidence at trial established that defendant Bravo, defendant Martinez, and de Castro Font traveled together to and from San Juan, stayed in the same hotel, spent their meals together, and watched the fight from adjacent ringside seats.

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Under 1B1.3(a)(1)(B), each defendant is held responsible for the bribes of his codefendants and co-conspirators. United States v. Bynum, 327 F.3d 986, 993 (9th Cir. 2003) (holding that the reasonably foreseeable acts enhancement under 1B1.3(a)(1)(B) could be used for the enhancement as the defendant was jointly involved in a kickback scheme and the knowledge the defendant had of the co-conspirators payment to a second person was enough for the more than one bribe enhancement). Thus, because the scheme involved a bribe to two separate individuals, the scheme involved at least two bribes. c. Value of Intended Benefit

Section 2C1.1(b)(2) commands an increase in the offense level [i]f the value of . . . the benefit received or to be received in return for the payment, the value of anything obtained or to be obtained by a public official or others acting with a public official . . . exceeded $5,000 . . . . U.S.S.G. 2C1.1(b)(2). Specifically, 2C1.1(b)(2) provides a cross reference to the enhancement table in 2B1.1. The commentary to 2C1.1 states that for deterrence purposes, the punishment should be commensurate with the gain to the payer or recipient of the bribe, whichever is higher. U.S.S.G. 2C1.1 background cmt. Courts have held that in determining the amount of benefit to be received, courts may consider the expected benefits, not only the actual benefits received. United States v. Griffin, 324 F.3d 330, 366 (5th Cir. 2003) (citing cases). Of course, loss calculations need not be precise, [as] the Sentencing Guidelines require only a reasonable estimate based on the information available. United States v. Antico, 275 F.3d 245, 270 (3d Cir. 2001).

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Relying on this commentary, appellate courts have repeatedly held that courts should use the expected benefit of the official act to the bribe-giver, and not the amount of the bribe received, in calculating the amount of loss under 2C1.1(b)(2). See United States v. DeVegter, 439 F.3d 1299, 1303-04 (11th Cir. 2006) (reversing district court that based enhancement on value of bribes instead of estimated profit to company receiving contract); United States v. Muhammad, 120 F.3d 688, 700 (7th Cir. 1997) (assessing loss from defendant-juror who sought bribe to sway jury verdict as the $933,000 damage award at stake in trial and not the $2,500 bribe juror sought); United States v. Ziglin, 964 F.2d 756, 758 (8th Cir. 1992) (holding that district court properly based loss on amount of tax liability defendant sought to eliminate for third parties, not on defendants personal kickbacks from role in bribery scheme); United States v. Kant, 946 F.2d 267, 269 (4th Cir. 1991) (reversing district court that based enhancement on value of bribes instead of estimated profit to company receiving contract). Here, the evidence at trial established that the intended benefit of the official actsenactment of Senate Projects 410 and 471was millions of dollars to defendant Bravo. Specifically, Victor Rivera, defendant Martinez aide, testified that the purpose of [Senate Project 471] would be to get rid of some companies and be able to achieve Monopoly or control of the industrysecurity industry. Feb. 17, 2011, Tr. at 136. When asked about defendant Bravos position on Senate Project 471, Mr. Rivera testified that [a]s a matter of fact, he was the one who brought the bill in. Feb. 17, 2011, Tr. at 136. Miguel Portilla, a friend of defendant Bravos and a business competitor of Ranger American, testified that his and defendant Bravos intent in passing Senate Project 471 was to

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eliminate competition. Specifically, when asked how Loomis Fargo and Brinks would have been affected by Senate Project 471, he responded, They would have to close down. Feb. 22, 2011, Tr. at 46. After confirming that this would benefit defendant Bravo, Mr. Portilla explained that with Loomis and Brinks out of Puerto Rico, defendant Bravo and Ranger American would be the only company offering armored vehicle services. Feb. 22, 2011, Tr. at 46. Mr. Portilla testified that this was a lucrative businessmore beneficial than security guards. Feb. 22, 2011, Tr. at 46. Mr. Portilla also testified that although his company was in compliance with the law, defendant Bravo used litigation and regulation to prevent him from entering the armored car business. Feb. 22, 2011, Tr. at 123. Nestor Medina, of Loomis, confirmed during his testimony that if Senate Project 471 had been enacted, Loomis would have gone out of business. Feb. 22, 2011, Tr. at 228. He also testified that neither Loomis nor Brinks were invited to testify at the Public Safety Committee hearings chaired by defendant Martinezthe same hearings at which defendant Bravo was invited to testify. Feb. 22, 2011, Tr. at 153. Finally, Mr. Medina testified that in 2005 the company grossed $12 million and netted $1.5 million. Feb. 22, 2011, Tr. at 150-51. The commentary to 2C1.1 states that the intended benefit is measured by the net benefit, or profits, rather than the gross value. U.S.S.G 2C1.1 cmt. n.3. Although Mr. Medina testified that Loomis net profit in 2005 was $1.5 million, the Probation Office has recommended an increase of fourteen levels, based on an intended benefit of more than $400,000 but no more than $1,000,000. That seems reasonable.

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In post-trial arguments, defendants Bravo and Martinez have complained that any benefit to defendant Bravo from the enactment of Senate Projects 410 and 471 is too speculative, since there is no guarantee that Loomis or Brinks would have been eliminated in Puerto Rico, or that Ranger American would have absorbed their business if they did. But the driving force behind the value enhancement is not the actual benefit, but the intended benefit. Griffin, 324 F.3d at 366 ([I]n determining the amount of benefit to be received, courts may consider the expected benefits, not only the actual benefits received. (citing cases)); see also United States v. Benner, 442 Fed. Appx. 417, 423 (11th Cir. 2011) (upholding a 14-level enhancement under 2B1.1(b)(1)(H) where the defendant gave a $2,000 bribe to an undercover agent posing as a bank employee for the purpose of unfreezing assets worth $681,502, based on the value of the intended benefit to be received in exchange for the bribe); Kant, 946 F.2d at 269 (vacating a sentence where the district court calculated the 2B1.1 enhancement based on a $400,000 bribe, rather than the expected $3-5 million benefit). Here, the evidence at trial established that defendant Bravos intent was to eliminate Loomis and Brinks through Senate Project 471 and absorb their contracts. Pursuant to 2C1.1(b)(2) and the table cross-referenced at 2B1.1, the expected net benefit net benefit in this case mandates a fourteen-level increase to the Base Offense Level for defendants Bravo and Martinez. d. Obstructing or Impeding the Administration of Justice

Section 3C1.1 provides for an additional two-level increase where: [T]he defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the 14

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investigation, prosecution, or sentencing of the instant offense of conviction, and (2) the obstructive conduct related to (A) the defendants offense of conviction and any relevant conduct; or (B) a closely related offense . . . . U.S.S.G. 3C1.1; see also id. 3C1.1 cmt. n.4 (This adjustment also applies to any other obstructive conduct in respect to the official investigation, prosecution, or sentencing of the instant offense where there is a separate count of conviction for such conduct.). The evidence at trial established by a preponderance of the evidence that defendant Martinez, by himself and through Jennisca Rodriguez, attempted to obstruct justice by improperly influencing the statements of Jose Velazquez to the FBI. The evidence at trial also established that defendant Bravo attempted to obstruct the FBIs investigation of de Castro Font by warning de Castro Font and Carlos Diaz, de Castro Fonts assistant, of the FBIs investigation months before the investigation became public. Although the jury acquitted defendant Martinez of the obstruction of justice charged in Count Six, the applicable standard to establish the facts necessary to support a sentencing enhancement is preponderance of the evidence. United States v. Matthews, 431 F.3d 1296, 1310 n.12 (11th Cir. 2005). That the grand jury never charged defendant Bravo with obstruction for his interference with the Governments investigation of de Castro Font is of no moment. United States v. Cutler, 520 F.3d 136, 168 (2d Cir. 2008) (The fact that the government elected not to have the obstruction count submitted to the jury at trial, where the governments burden would have been to prove the relevant facts beyond a reasonable doubt, did not provide a basis for the court to refuse to consider the adjustment at sentencing, where those facts need be proven only by a preponderance of the evidence. The courts decision that it need not consider the proposed 15

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obstruction adjustment was erroneous as a matter of law.); United States v. Edwards, 303 F.3d 606, 646 n.29 (5th Cir. 2002) (We note that 3C1.1 is clearly applicable to cases where the defendant does not actually obstruct justice. (citation omitted)); see also United States v. Cutler, 520 F.3d 136, 168 (2d Cir. 2008) (The fact that the government elected not to have the obstruction count submitted to the jury at trial, where the governments burden would have been to prove the relevant facts beyond a reasonable doubt, did not provide a basis for the court to refuse to consider the adjustment at sentencing, where those facts need be proven only by a preponderance of the evidence. The courts decision that it need not consider the proposed obstruction adjustment was erroneous as a matter of law.). Moreover, it makes no difference whether the defendants were successful in obstructing justice; the relevant inquiry is their intent. United States v. Edwards, 303 F.3d 606, 646 n.29 (5th Cir. 2002) (We note that 3C1.1 is clearly applicable to cases where the defendant does not actually obstruct justice. (citation omitted)). Count Six charged defendant Martinez with violating 18 U.S.C. 1512(b)(3), and 1512 is clearly covered by this enhancement. U.S.S.G. 3C1.1 cmt. n.4 (This adjustment also applies to any other obstructive conduct in respect to the official investigation, prosecution, or sentencing of the instant offense where there is a separate count of conviction for such conduct.); United States v. Cole, 359 F.3d 420, 431 n.17 (6th Cir. 2004) (This Court has previously recognized that conduct prohibited by 18 U.S.C. 1512 is an appropriate ground for a two-level increase for obstruction of justice under U.S.S.G. 3C1.1.). Defendant Bravos attempt to obstruct the FBIs investigation of de Castro Font is also 16

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covered by 3C1.1. The most analogous case is United States v. Cassiliano, 137 F.3d 742 (2d Cir. 1998). There, the district court at sentencing included an enhancement for obstruction of justice on the grounds that after FBI agents confronted the defendant with evidence of unlawful conduct, she proceeded to inform a target of the investigation, with whom she had collaborated, of the existence of the investigation. Id. at 743. The court concluded that by alerting [the target], Cassiliano prevent[ed] the collection of any further evidence during the FBI investigation in the instant offense, including evidence of facts that Cassiliano may have chosen not to reveal as to her own culpability. Id. Accordingly, even without consideration of the obstructive effect of Cassilianos telephone calls on the investigation and prosecution of [the target], her conduct was properly viewed as an effort to impede the investigation of the offense of which she herself was eventually convicted. Id. at 747. Here, defendant Bravo learned of the FBIs investigation into de Castro Font for his solicitation and acceptance of bribes from numerous businessmen in Puerto Rico. Defendant Bravo was one of these businessmen who for years had bribed de Castro Font. The recorded telephone call played at trial between defendant Bravo and Carlos Diaz established that defendant Bravo, like the defendant in Cassiliano, attempted to inform a target of the [FBIs] investigation, with whom []he had collaborated, of the existence of the investigation. Thus, a two-level enhancement pursuant to 3C1.1 applies to defendants Bravo and Martinez.

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B.

Summary Chart: Sentencing Guideline Calculation 1. Defendant Bravo

The foregoing application of the Sentencing Guidelines results in the following Total Offense Level for defendant Bravo: Base Offense Level. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 U.S.S.G. 2C1.1(a)(2) Specific Offense Characteristics: Offense Involved More than One Bribe.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . +2 U.S.S.G. 2C1.1(b)(1) Value of Benefit Received (more than $400,000). . . . . . . . . . . . . . . . . . . . . . . +14 U.S.S.G. 2C1.1(b)(2) and 2B1.1(b)(1)(H) Elected public official. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . +4 U.S.S.G. 2C1.1(b)(3) Obstructing or Impeding the Administration of Justice.. . . . . . . . . . . . . . . . . . . +2 U.S.S.G. 3C1.1 Total Offense Level. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 Assuming the Court finds that defendant Bravo has a Criminal History Category of I, the applicable Guideline range is 151 to 188 months of incarceration. 2. Defendant Martinez

The foregoing application of the Sentencing Guidelines results in the following Total Offense Level for defendant Martinez: Base Offense Level. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 U.S.S.G. 2C1.1(a)(1) Specific Offense Characteristics: 18

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Offense Involved More than One Bribe.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . +2 U.S.S.G. 2C1.1(b)(1) Value of Benefit Received (more than $400,000). . . . . . . . . . . . . . . . . . . . . . . +14 U.S.S.G. 2C1.1(b)(2) and 2B1.1(b)(1)(H) Elected public official. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . +4 U.S.S.G. 2C1.1(b)(3) Obstructing or Impeding the Administration of Justice.. . . . . . . . . . . . . . . . . . . +2 U.S.S.G. 3C1.1 Total Offense Level. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 Assuming the Court finds that defendant Martinez has a Criminal History Category of I, the applicable Guideline range is 188 to 235 months of incarceration. 3. Implementing the Total Sentence of Imprisonment

The federal program bribery statute imposes a statutorily authorized maximum sentence of ten years. 18 U.S.C. 666(a). Because defendants Bravos and Martinez sentence is based on a single count of conviction under this statute,1 in accordance with U.S.S.G. 5G1.1(a), the Guidelines sentence for both defendants is 120 months of incarceration. C. Analysis of Other Relevant Sentencing Factors

Title 18, United States Code, Section 3553(a), identifies the factors that must be considered when imposing a sentence. Of relevance to this case are:

The United States submits that Count One (Conspiracy) is grouped with Count Four with respect to defendant Bravo. See U.S.S.G. 3D1.2(c) (All counts involving substantially the same harm shall be grouped together into a single Group. Counts involving substantially the same harm within the meaning of this rule: . . . [w]hen one of the counts embodies conduct that is treated as a specific offense characteristic in, or other adjustment to, the guideline applicable to another of the counts.). 19

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(1)

the nature and circumstances of the offense and the history and characteristics of the defendant; the need for the sentence imposed (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; to afford adequate deterrence to criminal conduct; . . .

(2)

(B) (3) (4)

the kinds of sentences available; the kinds of sentence and the sentencing range established for (A) the applicable category of offense committed by the applicable category of defendant as set forth in the [U.S. Sentencing G]uidelines . . .

... (6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct . . . .

18 U.S.C. 3553(a). The relevant sentencing factors warrant the imposition of a sentence consistent with the applicable Guidelines range. 1. The Nature and Circumstances of the Offense

Defendants Bravo and Martinez participated in a scheme of corrupt conduct that betrayed the trust of the people of Puerto Rico, using public office as a vehicle for personal gain. Defendant Martinez, as a powerful Senator, corruptly agreed to serve defendant Bravo rather than the people of Puerto Rico in exchange for a free trip to watch Tito Trinidad fight in Las Vegas. At all times relevant to his corrupt activities, defendant Martinez was a Senator for Puerto Rico. He chaired the Public Safety Committee, while at the same time compromising the publics interests. Rather than honor the oath he took to serve the citizens of the Commonwealth of 20

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Puerto Rico, defendant Martinez sold his office and defrauded the citizens he was entrusted to represent. Defendant Martinez violated the publics trust in its public servants, and made a mockery of the political process. This conduct seriously undermines the publics trust and confidence in its public officials, and undermines the integrity of our representative form of government. The seriousness of his conduct warrants the imposition of a term of imprisonment. Although defendant Bravo was not a public official himself, for decades he championed himself as a public servant. For many years defendant Bravo served as the President of Ranger American, the largest private security firm in Puerto Rico. In that position he profited from protection, amassing great wealth by ensuring the publics safety while likening himself to a chief law enforcement officer. During that time, defendant Bravo proved willing to corrupt the very ideal he was protecting. Indeed, defendant Bravo spent many years bribing Senator de Castro Font before he agreed to bribe defendant Martinez. Beginning in 2004 defendant Bravo put Senator de Castro Font on his payroll, making regular cash bribes in a concealed manner. The gravity and scope of the defendants criminal activity threatens the integrity of our government institutions and compromises the vitality of our democracy. 2. The History and Characteristics of the Defendants

Defendants Bravo and Martinez will no doubt argue that their family lives, certain philanthropic and volunteer services, and their years of public service warrant the imposition of prison sentences significantly below the applicable Guidelines range. While the defendants have performed charitable acts throughout the course of their lives, such claims cannot outweigh the great public disservice, violations of the public trust, and utter disregard to the rule of law

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committed and displayed by the defendants. Moreover, rather than a mitigating factor, defendants Bravos and Martinez public service should be viewed as an aggravating factor because they abused the public trust and used public office for personal gain. 3. The Need for the Sentence Imposed

A prison sentence for defendants Bravo and Martinez consistent with the calculated Guidelines range is essential to accomplish the relevant purposes of 3553(a)(2); that is: (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; [and] (B) to afford adequate deterrence to criminal conduct . . . . 18 U.S.C. 3553(a)(2). Defendants Bravo and Martinez engaged in an egregious act of corruption that betrayed the publics trust for personal gain. A term of incarceration fits their crimes. The proposed sentences of incarceration would send a strong message to all current and future government officials and employees that corruption and violations of the public trust will not be tolerated. See, e.g., United States v. Anderson, 517 F.3d 953, 996-97 (7th Cir. 2008) (highlighting need for general deterrence in public corruption prosecutions). It will also send a strong message to members of the business community that the legislative process cannot be corrupted with illegal payments to promote legislative measures which may benefit its financial interests. Stiff sentences in such cases are an essential component of deterrence. 4. The Kinds of Sentences Available and the Applicable Advisory Sentencing Guidelines Range

As detailed in Section II(3) above, the federal program bribery statute imposes a

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maximum sentence of ten years in prison and a $250,000 fine.2 The applicable Guidelines range for defendants Bravo and Martinez, as limited by the statutory cap, is 120 months of incarceration. In sum, pursuant to the factors enumerated in 18 U.S.C. 3553(a), this Court should decline to depart downward and should impose a term of incarceration. 5. The Need to Avoid Unwarranted Sentence Disparities Among Defendants with Similar Records Who Have Been Found Guilty of Similar Conduct

The purpose of the Sentencing Guidelines is to ensure reasonable uniformity in sentencing by narrowing the wide disparity in sentences imposed for similar criminal offenses committed by similar offenders. U.S.S.G. Ch. 1.3. Moreover, proportionality in sentencing through a system that imposes appropriately different sentences for criminal conduct of differing severity. U.S.S.G. Ch. 1.3. Therefore, the Guidelines are the most accurate barometer for preserving uniformity among sentences.. III. Imposition of a Fine Under 5E1.2(c)(3), the applicable fine range for a Total Offense Level of 34 is $17,500 to $175,000 and the applicable fine range for a Total Offense Level of 36 is $20,000 to $200,000. Defendant Bravo, whose Total Offense Level is 34, is clearly able to pay a fine at the high end of the Guidelines range, and a fine at this end of the range would be appropriate given the intended financial benefit of his corrupt acts. Defendant Martinez, whose Total Offense Level is 36, does not appear to be able to pay a fine higher than the low end of the Guidelines range. Therefore,

We address the issue of the fines to be imposed in Section III, below. 23

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the Government respectfully requests that the Court impose a fine upon each defendant within the applicable Guidelines range, with defendant Bravo at the high end of his corresponding range and defendant Martinez at the low end of his corresponding range. IV. No Bail Pending Appeal A defendant has no constitutional right to bail after his conviction and sentencing. See United States v. Bright, 541 F.2d 471, 477 (5th Cir. 1976). Indeed, the Bail Reform Act of 1984, 18 U.S.C. 3143(b), establishes a presumption against the grant of bail. Under 3143(b)(1), a person who has been sentenced to a term of imprisonment shall be detained unless the judicial officer find that the defendant has shown: (A) by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety or any other person or the community if released . . . ; and (B) that the appeal is not taken for the purposes of delay and raises a substantial question of law or fact likely to result in: (i) reversal, (ii) an order for a new trial, (iii) a sentence that does not include a term of imprisonment, or (iv) a reduced sentence to a term of imprisonment less than the total time already served plus the expected duration of the appeal process. Id. The Government submits that we have no information that either defendant poses a risk of flight or immediate danger to the community. Nevertheless, neither defendant can satisfy his burden with regard to the remaining factors. Courts have interpreted the phrase substantial question to require that the issue on appeal be significant in addition to being novel, not 24

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governed by controlling precedent or fairly doubtful. United States v. Smith, 793 F.2d 85, 88 (3d Cir. 1986) (emphasis omitted); United States v. Giancola, 754 F.2d 898, 901 (11th Cir. 1985) ([A] substantial question is one of more substance than would be necessary to a finding that it was not frivolous. It is a close question or one that very well could be decided the other way.); see also United States v. Valera-Elizondo, 761 F.2d 1020, 1025 (5th Cir. 1985) (holding that a question is substantial if it raises a substantial doubt (not merely a fair doubt) as to the outcome of its determination (emphasis added)). In the absence of a substantial question, the defendants cannot validly assert that the successful appeal of such a question would result in either a reversal or a new trial on all counts of conviction for which a term of incarceration has been imposed. Here, the defendants legal challenges have been targeted at the Governments charging theory under 18 U.S.C. 666. Specifically, the defendants have argued throughout and after trial that the jury was permitted to convict the defendants of an illegal gratuity, when 666 does not criminalize illegal gratuities. See Dkt. No. 449 (Def. Bravo Rule 29) at 19-21; Dkt. No. 450 (Def. Martinez Rule 29) at 12-13. But the Third Circuit has recently held that because there is an earnest circuit split on whether 666 requires proof of a quid pro quo, there can never be plain errorthe standard of review on appealwhere a court does not expressly require as much when there is no controlling circuit precedent requiring proof of a quid pro quo to sustain a violation of 666. United States v. Beldini, 443 Fed. Appx. 709, 717 (3d Cir. 2011). Here, it is undisputed that the First Circuit, like the Third Circuit, has not taken a position on whether 666 criminalizes illegal gratuities. Therefore, even if the jury was permitted to convict the defendants

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on an illegal gratuity theory, which the Government maintains it was not, the existence of an earnest circuit split on this issue precludes this as a substantial question for the purposes of 3143(b). Thus, the Court should deny any motion for bond pending appeal. V. Notice of Request for Immediate Surrender and Detention On June 1, 2011, defendant Bravo filed a motion to continue the sentencing date, which at that time was scheduled for June 7, 2011. Dkt. No. 501. Specifically, defendant Bravo requested a continuance of the sentencing date until the week of January 23th [sic] to January 27th 2012, or at the convenience of this [C]ourt after February 13th 2011 [sic] . . . . Dkt. No. 501 at 4. The Court granted the continuance, but denied the request for such a long delay, instead rescheduling the sentencing for September 13, 2011. Dkt. No. 501. It is now after February 13th, and sentencing is still two weeks away. The United States respectfully requests that, at the conclusion of the sentencing hearing, the Court order that defendants Bravo and Martinez immediately be taken into custody by the U.S. Marshal Service to begin serving their prison sentences. The defendants were indicted more than 18 months ago, and were convicted almost one year ago. They have been out on bond that entire time and, as demonstrated in Section IV above, they have no legal entitlement to continued release on bond. VI. Conclusion Public corruption is a scourge of civilized society. Defendants Bravo and Martinez have done particular damage to the public trust and rule of law in Puerto Rico through their corrupt acts. Indeed, the crimes that defendants Bravo and Martinez have been convicted of committing 26

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enervate the efficacy of government, compromise the integrity of our institutions, and threaten the vitality of our democracy. For the reasons set forth above, we respectfully request that the Court (1) find a Total Offense Level of 34 for defendant Bravo; (2) find a Total Offense Level of 36 for defendant Martinez; (3) impose a term of incarceration for both defendants; (4) impose fines within the Guidelines range; (5) deny any motion for bond pending appeal; and (6) order the immediate surrender of the defendants to begin serving their prison sentences.

Respectfully submitted, JACK SMITH Chief Dated: February 15, 2012 By: /s/ Peter Koski PETER M. KOSKI Deputy Chief Criminal Division, Public Integrity Section United States Department of Justice 1400 New York Avenue, NW Washington, DC 20005 (202) 514-1412

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this date, I electronically filed the foregoing Sentencing Memorandum with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the attorneys of record for the defendants.

/s/ Peter Koski PETER M. KOSKI Deputy Chief Criminal Division, Public Integrity Section United States Department of Justice

Dated: February 15, 2012

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