Crim Procedure Exam

Juan Primo, a national of Panamá with temporary legal residence in the United States, is indicted in the District of Puerto Rico for conspiracy to possess with intent to distribute heroin, cocaine, crack and marihuana. The indictment charges that Primo operated a large drug distribution ring in Cataño, and that from 2017-2019, the members of the conspiracy distributed in excess of two hundred (200) kilos of heroin, as well as in excess of five hundred

The above indictment is sealed by the court. On the morning of September 28 2020, a task force composed of DEA and Puerto Rico Police Department agents performs an early morning raid and arrests Primo and other indicted individuals.

The DEA Special Agent in charge, Javier Rodríguez, processes Primo, who refuses to talk and requests the presence of his attorney. He then takes Primo to the U.S. Pretrial Services Office and thereafter to his initial appearance before United States Magistrate Judge Darío Sánchez.

PART A

Oscar Acosta, Primo’s retained counsel is present at the initial appearance. He requests the immediate holding of the bail/detention hearing. In addition, Attorney Acosta submits that his client is willing to immediately surrender his Panamanian passport, wear an electronic monitoring bracelet, undergo twenty-four-hour house arrest, as well as post a $100,000.00 bond secured by real estate and cash holdings. Assistant U.S. Attorney Anya Corazón objects, and requests Judge Sánchez to temporarily detain Primo for a period of ten (10) days. Magistrate Judge Sánchez grants the prosecution’s request and sets the hearing for March 16, 2020.

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2) Did Judge Sánchez err by not considering counsel Acosta’s proffered release conditions at Primo’s initial appearance?

PART B

Magistrate Judge Sánchez holds the bail/detention hearing as scheduled by him. AUSA Corazón argues that the indictment triggers a presumption in favor of detention. Counsel Acosta, in turn, again proffers his conditions of release. He adds that his client is presumed innocent, and, more so, has no criminal record. Also, he has resided in Cataño for the past two years with his fiancée and her family, who are all U.S. citizens and lifelong residents of Puerto Rico. Finally, Primo has been employed all of this time at his fiancée’s father’s business, a chain of area bakeries.

AUSA Corazón, in turn, presents various wiretap and undercover agent recordings of telephone calls and meetings between Primo and other indicted and unindicted individuals. These evidence Primo negotiating and exchanging drugs for cash. Several videos also show Primo armed with a pistol during these transactions. Finally, she posits that the brother of Primo’s fiancée also stands indicted in the case, and that the videos and audio show that the bakeries, and its delivery trucks, were used to further the conspiracy. Magistrate Judge Sánchez, based on the above, proceeds to detain Primo pending trial.

1) Was AUSA Corazón correct in arguing that the indictment triggered a rebuttable presumption? (i.e. danger to the community and risk of flight, if available.)

2) Did counsel Acosta, on behalf of Primo, properly rebut the presumption?

3) Did AUSA Corazón properly meet the burden of proof to detain Primo?

4) On what ground(s) can Magistrate Judge Sánchez base his detention decision?

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PART C

Following Primo’s pretrial detention, Attorney Acosta files a motion to dismiss the indictment. In the same he argues the following. First, that his client was never given any notice of the grand jury proceedings against him. Second, that during grand jury proceedings, attorney Acosta was not afforded any opportunity to cross-examine the prosecution’s witnesses, nor to present any evidence in favor of his client. Third, that following the conclusion of grand jury proceedings, the reporter who transcribed the same was killed in an automobile accident in which his recording equipment and transcripts of this case were burned beyond crisp.

You are the United States District Judge presiding over the case, rule upon this motion.

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A grand jury in the District of Puerto Rico charges Doctor Francisco Rupto in a twenty-seven

count indictment for Medicare fraud. The indictment alleges that during the early part of 2019

he prescribed to patient’s medical equipment which was not needed by them. For example,

motorized chairs to patients that were fully ambulatory. Dr. Rupto in turn, purportedly would

charge Medicare for seeing these patients for said purpose, when in reality he never met them.

He also received kickbacks from the sellers of the medical equipment.

You have been court-appointed under the Criminal Justice Act to represent Dr. Rupto.

Draft a letter to the federal prosecutor requesting specific discovery and the legal foundation

for the same (i.e. Local Rules, Rules of Criminal Procedure, statutes and Constitution, as well

as jurisprudence). For purposes of this letter, your own investigation and research has revealed

the following:

1) Government agents seized, pursuant to a search warrant, Dr. Rupto’s patient files pertaining to the twenty-seven (27) counts.

2) Government agents also seized Dr. Rupto’s computers which contain patients’ medical data.

3) Federal agents interviewed several of Dr. Rupto’s patients. At least four

(4) of these acknowledged that they indeed have used the medical equipment ordered by the Doctor.

4) Several cooperating witnesses testified before the Grand Jury. These individuals were participants in the fraudulent scheme. They all entered guilty pleas pursuant to plea and cooperation agreements.

5) Two additional witnesses were given full immunity. These appear to have extensive prior criminal records, including convictions for fraud at the state level.

6) Dr. Rupto’s cell phone was wiretapped pursuant to a court order. It

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7) The government intends to present an expert to testify that the signatures and handwritten orders are indeed Dr. Rupto’s.

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