Case 3:21-cr-00474-ADC Document 136 Filed 03/06/24 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

UNITED STATES OF AMERICA, CRIM. NO.: 21-474(ADC)

Plaintiff,
v.
ANGEL PEREZ-OTERO,
Defendants.

MOTION FOR RELEASE PENDING APPEAL

TO THE HONORABLE COURT:

COMES NOW Defendant Angel Perez-Otero, through the undersigned attorney, and

very respectfully informs, as follows:

Mr. Angel Perez-Otero was arrested on December 9, 2021, and was released on a

$10,000.00 bond secured by certified check, with standard U.S. pretrial release conditions, like

surrendering his U.S. passport and obtaining court’s permission if traveling outside of Puerto Rico

for more than 15 days. On March 23, 2023. After a series of pretrial Motions, hearings, and a six-

day trial, Mr. Perez-Otero was found guilty by jury of one count of Conspiracy to commit Federal

Funds Bribery and Kickbacks (18 U.S.C. §371); one count of Federal Program Bribery/Aiding and

Abetting (18 U.S.C. §666(a)(1)(B); and, one count Extortion Under Color of Official Right (18

U.S.C. §1951). On February 12, 2024, this Honorable Court sentenced Mr. Perez-Otero to a term

of 60 months in each one of the first two counts and 63 months imprisonment on the last count, to

be served concurrently. Mr. Perez-Otero was advised by the Court that if he intended to Appeal

the Sentence, a Notice of Appeal should be presented within 14 days of the Sentence. On February

23, 2024, Mr. Perez-Otero filed a timely Notice of Appeal. On February 27, Mr. Perez-Otero was
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ordered to surrender to serve his sentence on March 26, 2024 (and not to Pensacola as

requested).

With this motion Mr. Perez-Otero respectfully requests that the Honorable Court allow him

to remain on bail on the $10,000 appearance bond pending appeal. Clear and convincing evidence

establishes that, if released, Mr. Perez-Otero is neither likely to flee, nor poses a danger to the

safety of any other person or the community; and that the appeal from the judgement is not for the

purpose of delay and will raise a substantial question of law and fact.

Pursuant to 18 U.S.C. § 3143(b) and Federal Rule of Appellate Procedure 9, defendant

Perez-Otero moves for his continued release pending appeal. In addition to the fact that he does

not represent a risk of flight or a danger to the community, his appeal will raise substantial issues

which, if decided in his favor, will result in his acquittal, or a new trial; or at the least, will result

in a sentence that does not include a term of imprisonment, or a reduced sentence to a term of

imprisonment less than the total of the time already served plus the expected duration of the appeal

process. These issues include, but are not limited to, the sentencing guideline calculation which

should have been based on the $15,000 that the prosecution admitted and stated was the only

specifically charged conduct, because the prosecution expressly recognized that the original

$70,000 were political contributions. This would have resulted in a significantly less period of

time of imprisonment. The appeal will also address the fact that the legal interpretation for the

specific section under which Perez-Otero has been convicted (18 U.S.C. §666(a)(1)(B)) is

currently under consideration of the SCOTUS and will be decided as soon as in the month of June

of this year. Therefore, if Perez-Otero commences to serve the appealed prison sentence, while the

appeal is pending, he will suffer irreparable damage if the Court of Appeals finds that the sentence

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is in fact excessive, or if the SCOTUS interpretation of section 666(a)(1)(B) results in a decision

that would reverse the conviction regarding such matter.

Title 18, of the United States Code, section 3143(b)(1), sets forth the circumstances under

which a defendant may remain free on bail while his appeal is pending. On this particular, the

mentioned section establishes that the judicial officer must find: ”(A) by clear and convincing

evidence that the person is not likely to flee or pose a danger to the safety of any other person or

the community if released under section 3142(b) or (c) of this title; and (B) that the appeal is not

for the purpose 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 of the time already served

plus the expected duration of the appeal process. If the judicial officer makes such findings, such

judicial officer shall order the release of the person in accordance with section 3142(b) or (c) of

this title, except that in the circumstance described in subparagraph (B)(iv) of this paragraph, the

judicial officer shall order the detention terminated at the expiration of the likely reduced

sentence.” 18 U.S.C. § 3143(b)(1). Mr. Perez Otero carries the burden of satisfying both

requirements. United States v. Colón Berríos, 791 F.2d 211, 214 n.4 (1st Cir. 1986) ("In enacting

§ 3143, Congress placed the burden as to all elements bearing on whether to grant bail pending

appeal on defendants.").

A. PEREZ OTERO IS NEITHER LIKELY TO FLEE NOR IS HE A DANGER TO THE

COMMUNITY
18 U.S.C. § 3142(g) sets out the factors this Court should take into account in determining

whether there are conditions that will reasonably assure that the defendant will appear when

required and that the defendant will not pose a danger to the community.: 1) the nature and

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circumstances of the offense charged…; 2) the weight of the evidence against the person; 3) the

history and characteristics of the person, including- (A) the person's character, physical and mental

condition, family ties, employment, financial resources, length of residence in the community,

community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record

concerning appearance at court proceedings; and (B) whether, at the time of the current offense or

arrest, the person was on probation, on parole, or on other release pending trial, sentencing, appeal,

or completion of sentence for an offense under Federal, State, or local law; and 4) the nature and

seriousness of the danger to any person or the community that would be posed by the person's

release. These factors were analyzed by the Court when they granted bail to Mr. Perez Otero at the

moment of his arrest on December 9, 2021.

The Defendant, Angel Perez-Otero, satisfies the first requirement because he does not pose

a risk of flight and does not represent a danger to the community. The nature and circumstances of

the offense charged is not a violent crime, or a crime of terrorism, neither it involves a minor

victim, nor controlled substances, firearms, explosives or destructive devices. The weight of the

evidence against the defendant does not show a violent person or a person who could evade the

system. Mr. Perez-Otero has been on bail since the day of his arrest on December 9, 2021. He

never missed a day at court, and he was always at home when the social penal worker called to

visit. The Defendant never left the Island of Puerto Rico for travel without previous notification

and consent of the government and the United States did not oppose any of Perez's requests to

travel after his arrest. The history and characteristics of Mr. Perez-Otero show a family man, who’s

lived in Guaynabo almost his whole life, and still has great ties to the community. On regards of

being a danger to the safety of any other person or the community, he does not have a problem of

drug or alcohol abuse, nor a criminal history prior to the charges in this case. Defendant has always

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been a pacific, polite and person of good nature who would never endanger himself or others in

the community. Furthermore, the Court expressly stated, at the Sentencing Hearing that Mr. Perez-

Otero is not likely to flee or pose a danger to the safety of the community and specifically asked

the government if they agreed with the Court on that appreciation to what the US expressly agreed.

Consequently, the Court should find by clear and convincing evidence that Perez-Otero is "not

likely to flee or pose a danger to the safety" of any other person or the community if released. Fed.

R. Crim. P. § 3143(b)(1).

B. THE APPEAL IS NOT FOR THE PURPOSE OF DELAY AND RAISES

SUBSTANTIAL QUESTIONS 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 OF THE TIME
ALREADY SERVED PLUS THE EXPECTED DURATION OF THE APPEAL
PROCESS.
To determine whether a defendant has raised a substantial question of law on appeal, courts

engage in a two-pronged analysis. United States v. Zimny, 857 F.3d 97, 99 (1st Cir. 2017). The

“substantially prong” and the “likelihood prong”.

To fulfill the "substantiality prong," the defendants must present "a close question or one

that very well could be decided the other way." Id. at 100 (citing United States v. Bayko, 774 F.2d

516, 523 (1st Cir. 1985)). The Ninth Circuit explained that the term “substantial” in the first phrase,

is defined the level of merit required in the question presented. Bayko, 774 F.2d at 1280. A

question is “substantial” if it is “fairly debatable” or “fairly doubtful”. Moreover, the Ninth Circuit

expressly rejected the notion that an issue must be a “close” one in order to be “substantial.” United

States v. Handy, 761 F.2d 1279 (9th Cir. 1985) at 1282, n.2.

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After identifying the substantial question of law, courts consider the "likelihood prong."

Bayko, 774 F.2d. 523, Courts presume "that the substantial question of law is determined favorably

to defendant on appeal." Id. (citation and quotation omitted). Moreover, the error cited in the

defendants' appeals "must not be harmless or unprejudicial." Bayko, 774 F.2d at 523. This second

part of the requirement, that the question be likely to result in a reversal or new trial, concerns only

the type of question raised. The district court does not actually assess the likelihood that a

reversal will occur in the particular case. Id. at 1280; United States v. Garcia, 340F.3d 1013,

1021 at n. 5 (9th Cir. 2003.) Thus, “[t]he defendant . . . need not, under Handy, present an

appeal that will likely be successful, only a non-frivolous issue that, if decided in the

defendant’s favor would likely result in reversal or could satisfy one of the other conditions.”

United States v. Garcia, 340 F.3d at 1021, n. 5.

Mr. Perez-Otero was convicted by a jury after a six-day trial, including the process of jury

selection. During the whole process, numerous legal and factual issues were vigorously contested

by the defense, including but not limited to the prosecution disseminating evidence to the public

which resulted in a biased jury. It is beyond dispute that the purpose of the Defendant’s appeal is

not to cause delay, but to contest the validity of his conviction. Moreover, all of the issues to be

raised on appeal, as the ones stated at the beginning of this document, involve substantial questions

of law or fact that are likely to result in a reverse o at least, a significantly shorter sentence.

As shown above, Defendant Perez-Otero is not likely to flee, nor poses a danger to any

other person or the community, and timely filed a notice of an appeal that, as summarized above,

raises substantial questions of law and fact that are likely to result in a substantially shorter

sentence. Therefore, Mr. Perez-Otero should be allowed to remain free pending appeal, under the

same circumstances and conditions that he has been since the moment of his arrest, when the

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original bail was established. Indeed, if Mr. Perez-Otero is required to surrender in March 26,

2024, as he has been directed to do, he will have to serve a substantial part of his sentence, before

an appellate court renders the decision whether to affirm, reverse, or vary such sentence.

We hereby certify that on this date we have electronically filed the foregoing with the Clerk

of the Court using the CM/ECF system, which will notify restricted parties of record.

In San Juan, Puerto Rico, this March 6th, 2024.

S/Osvaldo Carlo-Linares
Osvaldo Carlo-Linares
USDC PR 126602
Tel.787.300.6483/ocarlo@carlolaw.com

S/Eduardo Ferrer Rios

Eduardo Ferrer Rios
USDC PR 228101
PO BOX 194985
SJ PR 00919-4985
Tel.787 .810.2710
Eduardo.ferrer.rios@gmail.com

S/José R. Olmo-Rodríguez
José R. Olmo-Rodríguez
261 Ave. Domenech, SJ, PR 00918
Tel.787.758.3570/jrolmo1@gmail.com