Tuesday, April 7, 2020

Puerto Rico’s Special Prosecutor finds more possible severe crimes by Telegram chat members Sánchez and Miranda

By on February 27, 2020

Elías Sánchez and Edwin Miranda
Photo/Twitter

By Luis J. Valentín Ortiz

While Puerto Rico’s Justice Department recommended investigating lobbyist and lawyer Elías Sánchez Sifonte for only two possible crimes, the Independent Special Prosecutor Panel (PFEI in Spanish) identified the possibility of more serious crimes as part of its preliminary investigation over the Telegram chat of former Gov. Ricardo Rosselló Nevares and eleven of his closest aides.

In its initial probe, the Justice Dept. found that Sánchez Sifonte, who managed Rosselló Nevares’ campaign, may have violated local Criminal Code articles related to misuse of a public position (252) and breach of public trust (262), the latter being a potential misdemeanor. The PFEI lists more severe articles, such as undue intervention in government operations (254) and undue influence (261), both of which carry jail time of up to eight years, depending on the circumstances. Like Justice, the PFEI also found potential misuse of a public position.

Another member of the Telegram chat, publicist Edwin Miranda Reyes, faces a similar scenario, as the Justice Dept. identified fraud (202) and breach of public trust (262) as possible crimes committed by him, but the PFEI added undue influence (261) and undue intervention in government operations (254), both of which entail jail time of up to eight years. Both agencies identified ideological falsehood (212) and misuse of a public position (252) as possible crimes committed by Miranda Reyes.

The information was made public in a PFEI resolution released on Feb. 13, in which the panel formally announced the start of its investigation into several members of the controversial Telegram chat called “WRF,” which sparked massive protests that led to the resignation of Rosselló Nevares.

Besides Sánchez Sifonte and Miranda Reyes, the PFEI will investigate four other chat members: former Chief Financial Officer Christian Sobrino Vega; the governor’s former chief Legal Adviser Alfonso Orona Amilivia; former Public Affairs Secretary Ramón Rosario Cortés; and former Gov. Rosselló Nevares.

The Justice Dept. recommended on Jan. 10 an investigation into every member of the Telegram chat, along with two other officials of the Rosselló Nevares administration, but it did not reveal the possible felonies it had identified. However, in its resolution, the PFEI disclosed potential crimes identified by the Justice Dept. for the six people that will be investigated.

“Some of these crimes are broadly presented in the law, which can cover a range of behavior and in that sense, it depends on the legal criteria used by the Justice Dept. or the PFEI, if it would require a greater burden of evidence or more documentary evidence, or more witnesses. I understand that this can be the basis for the discrepancy,” said José Enrique Colón Santana, one of three lawyers who, at the request of the House of Representatives, analyzed the content of the Telegram chat and recommended to continue with an impeachment process against Rosselló Nevares.

The report identified three potential felonies and two violations of the Government Ethics Law by the former governor.

“The discrepancies [in the crimes identified] have to do with the concept of each investigation, how they are framed. In ours, it was to state in the report those crimes that were identified unanimously. Many were discussed, but there was no consensus and they did not form part of the final report,” added Luis Enrique Rodríguez Rivera, another lawyer who was part of the House special commission.

Different to the Justice Dept., the PFEI said it did not use as part of its evaluation the content of the 889 pages of the Telegram chat published by the Center for Investigative Journalism (CPI in Spanish). The Telegram chat pages revealed “would be of questionable utility in a criminal procedure,” because of “the circumstances related to obtaining it and a lack of certainty that its content is in full and has not been subject to manipulation,” the panel stated. The PFEI only used five sworn statements obtained by the Justice Dept. as part of its initial investigation.

For Colón Santana, the admission by the former governor of his participation in the Telegram chat validates the content of the conversation. “Remember that the governor held a press conference admitting to everything in the chat,” the lawyer told CPI.

The PFEI, nevertheless, found the possibility of more serious crimes by Sánchez Sifonte and Miranda Reyes that were not identified by the Justice Dept., despite the latter considered a greater amount of evidence. In other words, although the agency had the same five sworn statements evaluated by the PFEI, the Justice Department did not find undue intervention and influence from Sánchez Sifonte and Miranda Reyes, as opposed to the PFEI.

It is still uncertain whether the Justice Dept. obtained an original version of the Telegram chat from the participants’ phones. The PFEI resolution implies that it did not receive a validated version of the chat from Justice.

In a statement issued on Feb. 14, Justice Secretary Dennise Longo Quiñones said that as part of the investigation, “the content of the mobile devices that were recovered from multiple WRF Chat members was downloaded and the forensic evidence was analyzed.” In previous comments, the Justice Dept. had stated that its investigators “carefully examined the content of the WRF Chat.”

According to a sworn statement by agent Edna Cruz Estrada included in the search warrant of former Treasury Secretary Raúl Maldonado Gautier’s mobile phone, as of late July, Justice investigators had not been able to obtain the chat directly from the devices.

More favorable scenario for Rosselló Nevares

Rosselló Nevares, Rosario Cortés, Orona Amilivia and Sobrino Vega all face a more favorable scenario, as the Justice Dept. had identified more serious crimes against them than those being evaluated by the PFEI.

In the case of former Gov. Rosselló Nevares, while the Justice Dept. identified the possibility of discrimination, resistance or obstruction of public authority, misuse of a public position, breach of public trust, concealment and destruction of evidence, the PFEI only identifies two potential misdemeanors: breach of public trust and negligence in the performance of his duty.

A report prepared last summer by three attorneys and commissioned by the House of Representatives identified the possibility of misuse of a public position and negligence, all of which were listed by the Justice Dept. The group of lawyers, who submitted the report as part of a potential impeachment process against Rosselló Nevares, has been the only one so far to identify the possibility of embezzlement by the former governor.

Criminal attorney Harry Padilla will represent the former governor and recently commented that the matter is rather one of a political nature and it would be very difficult for a criminal case against the former governor to prosper.

As for the former secretary of Public Affairs, Rosario Cortés, the Justice Dept. identified discrimination, resistance or obstruction of public authority, illicit use, embezzlement, breach of duty, concealment and destruction of evidence as possible crimes. The PFEI limited its preliminary findings to negligence and breach of duty.

For former Chief Financial Officer, Sobrino Vega and former legal adviser Orona Amilivia, Justice found resistance or obstruction to public authority, misuse of a public position, breach of public trust, concealment and destruction of evidence. But the PFEI only identified the possibility of breach of duty and negligence. The special prosecutors panel added the possibility of threat only in the case of Sobrino Vega.

Former Justice Secretary Antonio Sagardía and his son, Carlos Sagardía, represent Sobrino Vega, as confirmed by Sagardía, Jr., in a radio interview with WIAC 740 AM published by Metro.

Both the Justice Dept. and the PFEI identified possible violations to the Government Ethics Law by the six chat members that will be investigated, but these were not revealed. The Office of Government Ethics (OEG in Spanish) is also conducting an investigation related to the Telegram chat, but as of last January, the OEG said it remained active and did not release new details.

“There is no doubt that it can be acknowledged that — as it appears from the sworn statements that are part of the record — some of the chat participants could have incurred in violations to the 2012 Criminal Code and the Government Ethics Law,” stated the PFEI resolution, which includes a list of possible crimes that goes from negligence and breach of public trust, misuse of a public position and threat, to ideological falsehood and undue intervention and influence.

The PFEI dismissed Justice Dept. referrals against former Press Secretary Yennifer Álvarez Jaimes, former Communications Director Rossy Santiago Velázquez and former Public Affairs Secretary Anthony Maceira Zayas, because of insufficient proof against them.

In the case of former CFO Raúl Maldonado Gautier, former State Secretary Luis Rivera Marín, former Chief of Staff Ricardo Llerandi Cruz, public relations adviser Carlos Bermúdez Urbina and adviser Rafael Cerame D’Acosta, the PFEI did not recommend a special independent prosecutor as of yet, although it left the door open for future accusations.

Special prosecutors in charge

Independent special prosecutors Leticia Pabón Ortiz and Miguel Colón Ortiz will conduct the PFEI investigation and will have until May 13 to complete it.

In addition to thoroughly investigating possible crimes of a former governor and part of his team, both will also have to continue working on the case against Héctor O’Neill, the former mayor of Guaynabo who is currently facing trial on charges of abuse and sexual assault against a municipal employee.

Colón Ortiz, who was also a prosecutor in the corruption case against convicted former Sen. Jorge de Castro Font, is a former director of the Special Investigations Bureau (NIE in Spanish) and the Comptroller’s Office Affairs, Public Integrity and Economic Crimes Office, both under the Justice Dept.. In the case of Pabón Ortiz, she worked on the corruption case against former House Speaker Jaime Perelló Borrás.

Clash between PFEI and Justice Dept.

The difference in the possible crimes found by both agencies draws as much attention as the accusations made by the PFEI regarding the probe conducted by the Justice Dept.’. In its resolution, the PFEI alleges that the Justice Dept. failed to fulfill its duty when it recommended a special independent prosecutor for all chat members without having “proof under oath” and resting mostly on the content of the Telegram exchange.

Justice Secretary Longo Quiñones said her agency conducted “a detailed and complex analysis” of all of the evidence, both direct and circumstantial. She explained that the crimes identified don’t result from mere participation in the chat, but that the possible criminal conduct was corroborated with interviews and evidence. Longo Quiñones said the evidence collected in the investigation was more than enough for the referrals made to the PFEI at the beginning of the year.

Gov. Wanda Vázquez Garced — who abstained from participating in the matter when she served as Justice secretary — on Saturday supported the Justice Department’s handling of the matter, insisting that the agency submitted enough evidence to make the referrals.

Although the PFEI warned in its resolution that it will not send the case back to the Justice Dept. so it can address the deficiencies of its investigation “because that would be to divide it or dismember it,” Longo Quiñones said she will ask the panel to return whatever the PFEI decides not to investigate, along with the evidence, so that her agency can resume its investigation and “evaluate the actions that can be prosecuted.”

Another observation by the PFEI has to do with former prosecutor Olga Castellón Miranda, who led the investigation at the Justice Dept. prior to referring it to the PFEI and was responsible for the probe since it began on July 15. According to the PFEI, Castellón Miranda “ended her duties at [the Justice Dept.] several months ago,” and it is unknown who took over the investigation or which additional inquiries were made when the Justice Dept. requested an extension last October to deliver its findings.

The Justice secretary said the agency used the additional time to work “diligently” on the case and the 109-page report handed over to the PFEI with its initial findings.

As for the allegations of partisan political work in the chat, the PFEI refused to consider as evidence “the innumerable references to political party meetings, strategies and matters conducted in La Fortaleza during working hours” that arise from the Telegram conversation to assign a special prosecutor to all chat members, as recommended by the Justice Dept. This would have violated its enabling law, according to the PFEI, since the Justice Dept. had not put the panel in a position to investigate the alleged crimes. The PFEI added that if special prosecutors identify additional evidence admissible in court and prove those crimes, they could do so.

For the Justice secretary, however, the PFEI resolution seems to indicate that the panel does not have “the intent or commitment to pursue this type of case for prosecution.”

PFEI won’t insist on getting Sánchez’s and Miranda’s phones

The Special Independent Prosecutor Panel also confirmed it will not ask the Supreme Court to review the Appeal’s Court decision against the Justice Dept. as part of the legal battle the agency had against Sánchez Sifonte and Miranda Reyes to gain access to their cell phones.

The PFEI alleges that going to the Supreme Court would be an “unjustified delay” that could affect the time the government has to file an indictment in court under some of the possible crimes that have been identified.

The Justice Dept. investigation included a review of most of the chat members’ cell phones. In the case of Sánchez Sifonte and Miranda Reyes, both have refused to hand over their phones invoking their right not to self-incriminate.

After the local Appeals Court ruled against the Justice Dept., on Dec. 30, the agency filed a motion for reconsideration, but it was rejected in late January.

“In addition, the PFEI believes that, if necessary, there are viable legal alternatives for obtaining the evidence,” stated the resolution signed by PFEI Chairwoman Nydia Cotto Vives and panel member Rubén Vélez-Torres.

The Justice secretary said she was surprised by the PFEI’s decision to drop the case because it did not want to prepare and submit the appeals.

“As the saying goes, a good attorney can walk and chew gum at the same time,” Longo Quiñones said.

Details of Justice investigation disclosed

After remaining mostly silent on the issue, Justice Secretary Longo Quiñones revealed in her most recent statement some details of the agency’s initial investigation. For the first time, the Justice chief identified some of the people who were interviewed or provided documents as part of its investigation.

On the more than 46 subpoenas issued to witnesses — either for testimony or to deliver an object or document — Longo Quiñones only revealed the identity of 14 of them, including former Housing Secretary Fernando Gil Enseñat, Treasury Secretary Francisco Parés and San Juan Mayor Carmen Yulín Cruz.

Among the noteworthy names are those of Jorge Bauzá, former creative director and consultant for Miranda Reyes’ advertising companies, iCrossing and KOI Americas, and Maritza Garay Morales, who currently works at the Office of Management & Budget and is a former finance department director of Guaynabo.

The Justice secretary also named the current administrator of La Fortaleza and former deputy administrator under Rosselló Nevares, Luis Augusto Martínez; former Communications Director Rossy Santiago Velázquez; former administrator of La Fortaleza, Juan Carlos Hernández; press officer for several government agencies, Leticia Jover; and interim press secretary for Rosselló Nevares and current head of communications at the Puerto Rico Housing Department, Rafael Josué Vega.

Former federal police monitor, Arnaldo Claudio, the executive director of Espacios Abiertos, Cecille Blondet Passalacqua, the director of Discover Puerto Rico, Brad Dean, and the legal director of the Office of the Commissioner of Financial Institutions, Griselle Morales, complete the list of witnesses.

The Justice Dept. said it launched its preliminary investigation on July 15, 2019, two days after the CPI published 889 pages of the Telegram chat. More than six months after the investigation began, the Justice Dept. referred all the chat members to the PFEI, including former press secretary Álvarez Jaime, who was not listed in the 889 pages revealed by the CPI. The Justice Dept. also referred former Communications Director Santiago Velázquez, although it did not reveal why.

CPI published on July 13 some 889 pages of Telegram chat messages between Rosselló Nevares and 11 of his collaborators. The messages published occurred between the end of November 2018 and January 2019. In the chat, privileged and confidential information was shared with people who were not government officials at the time and who actively participated in the conversations. The chat also revealed partisan political work that took place during working hours and through the use of public resources. The chat members’ moral character was also revealed, as they made misogynist, sexist and homophobic comments on a daily basis, persecuted political adversaries and activists, and coordinated the administration’s political image.

Following more than two weeks of street protests demanding his resignation after the chat went public, Rosselló Nevares resigned on July 24, 2019 and left La Fortaleza on Aug. 2, 2019.

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