Case 3:21-cr-00017-FAB Document 401 Filed 04/05/23 Page 1 of 13

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

UNITED STATES OF AMERICA,

Plaintiff,

v. Criminal No. 21-017 (FAB)

SIXTO JORGE DÍAZ-COLÓN,

Defendant.

OPINION AND ORDER

BESOSA, District Judge.

Before the Court is defendant Sixto Jorge Díaz-Colón

(“Díaz”)’s motion to set aside the protective order issued on

January 29, 2021. (Docket No. 373.) For the reasons set forth

below, Díaz’s motion is MOOT.

I. Background

The jury returned a guilty verdict on February 3, 2023,

convicting Díaz of attempted extortion in violation of 18 U.S.C.

§§ 1951 and 2 (count one), interstate extortion in violation of 18

U.S.C. §§ 875(d) and 2 (count two), and destruction of records in

a federal investigation in violation of 18 U.S.C. § 1519 (count

three). (Docket No. 365.) The Court issued two protective orders

at the inception of this litigation “as a cautionary measure to

protect the rights of all parties and to preserve the integrity of

all future proceedings.” (Docket No. 10 at p. 1; Docket No. 20.)

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II. The First Protective Order

On January 29, 2021, the Court enjoined the parties from

“divulging, talking to, or discussing with the press, media and

public, including without limitation, through social networks, any

information other than that entered without restriction on the

docket or disclosed in open court, relating to the facts of [this]

case.” (hereinafter, “first protective order”). (Docket No. 10

at p. 1.) The first protective order remains in force “from the

date of its execution until the conclusion of trial.” Id. at p. 2.

This expiration clause is unambiguous. A perfunctory review is

sufficient for the parties to decipher its meaning. Because the

prohibitions set forth in this order are no longer in effect,

Díaz’s motion to set aside the first protective order is MOOT.

(Docket No. 373.)

Because the first protective order is moot, Díaz’s motions

requesting a judgment of acquittal and new trial, Docket Nos. 341

and 384, need not be restricted to “selected parties.”

Accordingly, the Clerk of the Court SHALL grant the public access

to these docket entries.

III. The Second Protective Order

On February 20, 2021, the Court issued a protective order

pursuant to Federal Rule of Criminal Procedure 16(d)(1) (“Rule

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16(d)(1)”) (hereinafter, “second protective order”). (Docket

No. 20.) This order provides in pertinent part that:

All Discovery Material shall be used solely for the

purpose of conducting pretrial, trial, and appellate
proceedings in this action and for no other purpose
whatsoever. In no event will the Defense Team disclose,
directly or indirectly, Discovery Material or the
substance thereof to anyone, including the media
(excepting any disclosures that may occur during public
proceedings at a hearing, trial, or appeal in connection
with this matter), except as provided herein. The use
of Discovery Material at trial or at any pre- or post-
trial hearing will be resolved at the time of the trial
or hearing in question.

Id. at p. 2. The second protective order does not contain an

expiration clause.

According to the United States, Díaz’s motion to rescind the

first protective order is a mere “subterfuge for the defendant to

begin disclosing to the press discovery materials that were not

presented at trial.” (Docket No. 388 at p. 4.) By his own

admission Díaz has, in fact, disseminated discovery material to

the press in violation of the second protective order. In an

interview conducted on the courthouse steps during jury

deliberations and in the presence of counsel, Díaz stated:

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Criminal No. 21-017 (FAB) 4

When I – when the evidence arrives and we started see

[sic] gossip and gossip and gossip and gossip and gossip,
I called like three journalists – like three
journalists. My people of trust told me, ‘You need to
know this in confidence, in confidentiality. Since you
can’t literally, talk, you have a gag order . . . I
believe this female journalist, this male journalist,
and this female journalist are high-level, serious,
people that you can call to see the evidence,’ so they
see the trashy evidence, so they see – look – so you see
how the FBI accused me of being Russian, that I have
conversations with Putin. And, what is the evidence?
My Puerto Rico driver’s license. It’s disgusting. The
evidence is disgusting. To the three journalists that we
called, the three, cowards. Three cowards that ignored
me. ‘Oh, we could give you an interview.’ Look, lady,
I don’t want an interview. What I want is for you to
see the evidence so you see with your own eyes – because
I think you have a brain, I didn’t know you are a coward,
but I believe you have a brain, for you to say, ‘Wow,
Sixto! Wow, what is this? They are accusing you of – of
– of one thing and, the closest thing is your driver’s
license? That is the evidence?’ Brother, what I’m
facing is not for children, it’s not for children. The
evidence are [sic] imaginary. The evidence is
imaginary. And I hope that the jury not only has seen
that the evidence is a disgusting imagination of the
Prosecutors, but I also hope that the jury has been –
has seen how Judge Besosa hindered the truth from being
shown. I have nothing else to say.

Docket No. 388, Ex. 1 at pp. 2-3 (emphasis added). This

constitutes a blatant violation of the first protective order, and

a contemptuous disregard for this Court’s authority. (Docket

No. 10.) That Díaz provided discovery material to three

journalists “in confidence” demonstrates that the second

protective order is a necessary prophylactic measure. (Docket

No. 388, Ex. 1 at p. 1.)

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Díaz moves to “make public some of the discovery material

used/excluded during trial.” (Docket No. 391 at p. 11.) He sets

forth three arguments in support of this request. First, Díaz

invokes “the First Amendment right of freedom of expression and

the right of the press to keep the public informed about government

misconduct, and any other exception . . . to disclose Grand Jury

transcripts excerpts containing false and perjured testimony.”

Id. at p. 13. Second, Díaz suggests that Federal Rule of Criminal

Procedure 6 is overly broad, affording grand jury transcripts

unnecessary protection. Id. at pp. 9-11. Third, he alleges that

the “United States wants to destroy [the] evidence.” Id. at p. 3.

These arguments are meritless.

A. The Public Has No Right to Access Criminal Discovery

Federal Rule of Criminal Procedure 16(d)(1) (“Rule

16(d)(1)”) provides that “[at] any time the court may, for good

cause, deny, restrict, or defer discovery or inspection, or grant

other appropriate relief.” Fed. Crim. P. 16(d)(1). “[A] finding

of good cause must be based on a particular factual demonstration

of potential harm, not on conclusory statements.” United States

v. Padilla-Galarza, 990 F.3d 60, 77 (1st Cir. 2021) (citation and

quotation omitted); see United States v. Wecht, 484 F.3d 194, 211

(3d Cir. 2007) (holding that “[broad] allegations of harm

unsubstantiated by specific examples or articulated reasoning, do

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not support a good cause showing”). This Court possesses “wide

latitude in the management of discovery,” including the issuance

of protective orders. Danny B. v. Raimondo, 784 F.3d 835, 834

(1st Cir. 2015).

Díaz cites Seattle Times Co. v. Rhinehart, 467 U.S. 30

(1984), for the proposition that trials are public endeavors.

(Docket No. 391 at p. 9.) This argument is a non-sequitur,

disregarding a critical distinction between discovery and trial

evidence.

The Rhinehart court held explicitly that “pretrial

depositions are not public components of a civil trial.” 467 U.S.

at 33. The First Circuit Court of Appeals reaffirmed this

principle in Anderson v. Cryovac, holding that the public has no

right to access “documents submitted to the court in connection

with discovery proceedings.” 805 F.2d 1, 9 (1986). This

distinction is applicable in the criminal context, shielding

material such as grand jury testimony from public view. 1 See

United States v. Kravetz, 706 F.3d 47, 54 (1st Cir. 2013) (holding

that “there is no tradition of [public] access to criminal

discovery”) (citing United States v. Anderson, 799 F.2d 1438, 1441

1 Precedent interpreting Federal Rule of Civil Procure 26 is relevant to the

Rule 16(d)(1) analysis. See, e.g., United States v. Swartz, 945 F. Supp. 2d
216, 219 (D. Mass. 2013) (holding that “it is appropriate to analyze the ‘good
cause’ requirement under the criminal rules in light of precedent analyzing
protective orders entered in civil cases”) (citation omitted).
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(11th Cir. 1986) (“Discovery, whether civil or criminal, is

essentially a private process because the litigants and the courts

assume that the sole purpose of discovery is to assist trial

preparation.”)); United States v. Smith, 776 F.2d 1104, 1111 (3d

Cir. 1985) (noting that Federal Rules of Criminal Procedure

instructs that the United States “furnish [discovery] to the

defendant,” negating the presumption of public access to this

material); United States v. Carriles, 654 F. Supp. 3d 557, 572

(W.D. Tex. 2009) (citing Rhinehart for the proposition that

criminal discovery is private, granting the United States’ motion

for a protective order).

Díaz cites extensively to precedent involving the

public’s right to access material adduced at trial, suppression

hearings, and other proceedings. (Docket No. 391 at p. 9.) These

authorities are irrelevant. Unlike proceedings held in open court,

the exchange of discovery between adverse parties is not a public

occurrence. Because the second protective order concerns

discovery material, public access is an irrelevant consideration.

See Docket No. 20 at p. 1 (defining “Discovery Material” as “all

documents and electronically-stored information disclosed by the

government to the Defense Team as Jencks material or otherwise

during discovery in this case”).

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B. Grand Jury Materials are Secret

Díaz invokes “his right to disclose Grand Jury

transcripts.” (Docket No. 391 at p. 13.) Defense counsel is an

experienced practitioner, fully aware that this statement is

incorrect and inconsistent with well-established law. To support

this claim, Díaz cites United States v. Hogan, an inapplicable

case pertaining to the dismissal of an indictment due to “flagrant

and unconscionable” acts by federal prosecutors. (Docket No. 391

at p. 13) (citing 712 F.2d 757, 762 (2d Cir. 1983)).

“Since the 17th century, grand jury proceedings have

been closed to the public.” Douglas Oil Co. v. Petrol Stops

Northwest, 441 U.S. 211, 218 n.9 (1979); Lepore v. United States,

27 F.4th 84, 87 (1st Cir. 2022) (“Unlike an ordinary judicial

inquiry, where publicity is the rule, grand jury proceedings are

secret.”) (quoting Levine v. United States, 362 U.S. 610, 617

(1960)). Grand jury proceedings are governed by Federal Rule of

Criminal Procedure 6(e). This rule provides that “[r]ecords,

orders, and subpoenas relating to grand-jury proceedings must be

kept under seal to the extent and as long as necessary to prevent

unauthorized disclosure of a matter occurring before a grand jury.”

The Court may authorize disclosure in certain circumstances not

relevant to this litigation. See Fed. R. Crim. P. 6(e); Lepore,

27 F.4th at 86 (holding that “a federal court does not have the

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authority to order the release of grand jury records based on a

finding that historical interest in [these] records outweighs any

countervailing considerations,” but declining to decide whether

Rule 6(e) “exhausts the universe of possible justifications for

disclosing” secret material).

Díaz conflates grand jury material, discovery, and trial

evidence, setting forth an aimless stream of inapposite precedent.

For instance, on page 10 of his reply, Díaz refers to disclosure

of grand jury testimony, followed immediately by case law

concerning disclosure of discovery, ending with an allusion to

disclosure of “material introduced at trial.” (Docket No. 391 at

p. 10.) The standards of disclosure for trial and discovery are

inapplicable in the Rule 6(e) context. Because Díaz provides no

reason to overcome the presumption of secrecy, the grand jury

materials SHALL not be disclosed. See United States v. McMahon,

938 F.2d 1501, 1504 (1st Cir. 1991) (“The Supreme Court has

repeatedly recognized the importance of secrecy in grand jury

proceedings even after . . . the grand jury has concluded its

function.”) (citation and quotation omitted).

C. The Evidence Adduced at Trial Cannot be Destroyed

Díaz repeats the following phrase ad nauseam: “The

United States wants to destroy this evidence.” (Docket No. 391 at

pp. 3-6.) The evidence that Díaz seeks to preserve includes inter
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alia recorded conversations, Telegram chats, documents from the

Puerto Rico government, and “items” produced in discovery. Id.

The United States introduced this evidence at trial. The record

is preserved for appellate review and available to the litigants.

Indeed, Díaz cites trial transcripts containing evidence

susceptible to alleged destruction. Id. at p. 3. Allegations

that the United States is attempting to destroy evidence are

absurd. Accordingly, the Court will disregard these specious

statements.

D. The Second Protective Order Shall Remain Applicable to

All Parties in this Litigation

All parties remain subject to the second protective

order. (Docket No. 20.) Violations of this order “may be

punishable by contempt of court, or by whatever sanction the Court

shall deem just.” Id. at p. 4.

The Court issued a standing order on March 4, 2003,

providing that the “availability and use [of Jencks statements]

shall be limited to the duration of trial.” In re Jencks Act

Discovery Material, Misc. No. 03-021 (D.P.R. Mar. 4, 2003) (J.,

Laffitte). Pursuant to this order, defense counsel SHALL file a

“certification of return to the United States of all copies of

grand jury material produced to [Díaz] under 18 U.S.C. § 3500.”

Id. (emphasis in original); see Poliquin v. Garden Way, 989 F.2d

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527, 535 (1st Cir. 1993) (“Where the district court does protect

material during discovery, it is common to provide, as the

magistrate judge did here, for post-trial protection including the

return or destruction of protected material.”).

IV. Order to Show Cause

Defense counsel is required to provide zealous

representation. Allegations of misconduct without a basis in fact

exceed the bounds of legitimate advocacy and are, themselves,

suspect. See, e.g., United States v. Dubón-Otero, 98 F. Supp. 2d

187, 192 (D.P.R. 2000) (censuring an attorney for repeated

accusations of government misconduct, noting that “zealous

advocacy does not entail personal attacks against opposing

counsel”) (Fusté, J.). Not a scintilla of evidence suggests that

the United States acted improperly before the grand jury or at

trial. Díaz avers, however, that:

In an attempt to coverup a cloud of questionable ethics

and judgment involving F.B.I. Special Agents Juan Carlos
López-Velázquez, Miguel E. Rodríguez and Mariela Lajara
and Assistant United States Attorneys Timothy Henwood,
Myriam Fernández and Michael Lang in government
misconduct involving the solicitation of false testimony
and knowing presentation of perjured testimony before
the Grand and Petit Trial Jury regarding the testimony
of witnesses FBI S/A López, Lydmarie Torres and Anthony
Maceira, the United States is now asking this Court to
authorize the destruction of evidence proving how they
interrupted the truth-seeking process in this case and
avoid the press exposure their misconduct.

(Docket No. 391 at p. 12.)

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In the Opinion and Order issued on January 10, 2023, this

Court placed Díaz on notice. (Docket No. 269.) Any accusation of

prosecutorial misconduct by the United States must enumerate with

specificity: (1) the allegedly wrongful act or omission; (2) the

prosecutors and other government agents involved; and (3) the legal

basis upon which he relies to argue that the act or omission

constitutes misconduct. Id. at p. 15. The recent allegations of

prosecutorial misconduct are not specific. (Docket No. 391.)

That, Mr. Díaz has never done.

V. Conclusion

For the reasons set forth above, Díaz’s motion to set aside

the first protective order issued on January 29, 2021 is MOOT.

(Docket No. 373.) The second protective order issued on

February 12, 2021 remains in force. The parties continue to be

prohibited from disclosing any discovery material not utilized

during trial to third parties, including the press. (Docket

No. 20.)

Defense counsel SHALL file a certification of return to the

United States of all copies of grand jury material produced to

Díaz pursuant to 18 U.S.C. § 3500 no later than April 21, 2023.

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The Clerk of the Court SHALL grant the public access to Díaz’s

motions for judgment of acquittal and new trial. See Docket

Nos. 341 and 384.

IT IS SO ORDERED.

San Juan, Puerto Rico, April 5, 2023.

s/ Francisco A. Besosa
FRANCISCO A. BESOSA
SENIOR UNITED STATES DISTRICT JUDGE