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United States v. Dubon-Otero

United States Court of Appeals for the First Circuit

May 29, 2002, Decided

No. 00-2029, No. 00-2030

Opinion

 [*3]  JOHN R. GIBSON, Senior Circuit Judge. Luis Dubon-Otero and Jorge L. Garib-Bazain appeal from their convictions, after a joint trial, for conspiring to steal property worth more than $ 5,000 from an organization receiving more than $ 10,000 in federal benefits in any one-year period. See 18 U.S.C. §§ 371, 666(a)(1)(A) and (2) (1994). They argue that [**2]  there was a constructive amendment of the indictment, that there was insufficient evidence to convict them, and that the jury instructions were defective. They also challenge the makeup of their jury and the appointment of the United States Attorney. Garib also appeals his conviction for making false declarations before a grand jury in violation of 18 U.S.C. § 1623 (1994). We affirm.

Advanced Community Health Services (Health Services) was incorporated in the Commonwealth of Puerto Rico in 1987 as a for-profit corporation. 2 Dubon, a lawyer, and Garib, a doctor, were shareholders and directors. Dubon served as legal advisor to Health Services and Garib as the Medical Director of Patient Services. Dr. Yamil Kouri-Perez was a consultant from the Harvard Institute for International Development who, together with Jeanette Sotomayor-Vazquez, the administrative director,  [*4]  and Angel Luis Corcino-Mauras, the comptroller, conducted the day-to-day operations of Health Services.

 [**3]  Dubon and Garib were charged with conspiring to use Health Services funds to pay personal expenses and make political payoffs. The principal witness at trial was Corcino, whose testimony painted a picture of Kouri as the primary conspirator. Kouri and Sotomayor were indicted along with Dubon and Garib, but tried separately. They were convicted, and we affirmed in United States v. Sotomayor-Vazquez, 249 F.3d 1 (1st Cir. 2001).

In January 1988, Health Services contracted with the Municipality of San Juan to provide services for AIDS patients. The initial contract provided that the Municipality would pay Health Services a flat fee of $ 3.2 million per year for these services. Because under the contract Health Services became "the exclusive source of AIDS counseling and professional services in San Juan," United States v. Dubon-Otero, No. 97-091, slip op. at 10 (D. P.R. March 3, 2000), federal monies began to find their way to Health Services.

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292 F.3d 1 *; 2002 U.S. App. LEXIS 10041 **

UNITED STATES, Appellee, v. LUIS E. DUBON-OTERO, Defendant - Appellant. UNITED STATES, Appellee, v. JORGE L. GARIB-BAZAIN, Defendant - Appellant.

Subsequent History:  [**1]  Writ of certiorari denied: Bazain v. United States, 2003 U.S. LEXIS 918 (U.S. Jan. 27, 2003). Writ of certiorari denied: Dubon-Otero v. United States, 2003 U.S. LEXIS 917 (U.S. Jan. 27, 2003).

Prior History: APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. Jose Antonio Fuste, U.S. District Judge.

Disposition: Affirmed.

CORE TERMS

indictment, funds, federal benefit, district court, benefits, Municipality, instructions, conspiracy, argues, federal assistance, grand jury, conspiring, federal program, instruct a jury, overt act, participating, recipient, charging, receives, retainer, minutes, patient, checks, steal, jury instructions, federal funds, expenditure, embezzled, occurring, perjury

Criminal Law & Procedure, Indictments, Amendments & Variances, Constructive Amendments, Accusatory Instruments, General Overview, Jury Instructions, Particular Instructions, Use of Particular Evidence, Appeals, Reversible Error, Elements of Offense, Trials, Jury Instructions, Standards of Review, Harmless & Invited Error, Miranda Rights, Self-Incrimination Privilege, Custodial Interrogation, Fraud Against the Government, False Claims, Theft & Related Offenses, Embezzlement, Elements, Motions for Acquittal, De Novo Review, Bribery, Public Officials, Sufficiency of Evidence, Public Health & Welfare Law, Providers, Reimbursement, Fraud, Social Security, Medicare, Types of Providers, Hospitals, Healthcare, Transportation Law, Carrier Duties & Liabilities, Contraband, Stolen Property, Transporting Stolen Property, Substantial Evidence, Evidence, Weight & Sufficiency, Plain Error, Business & Corporate Compliance, Contracts Law, Types of Contracts, Guaranty Contracts, Constitutional Law, Congressional Duties & Powers, Spending & Taxation, Definition of Plain Error, Reviewability, Preservation for Review, Obstruction of Administration of Justice, Perjury, Challenges to Indictments, Perjured Testimony, Examination of Witnesses, Transmitted & Videotaped Testimony, Fundamental Rights, Criminal Process, Right to Jury Trial, Challenges to Jury Venire, Fair Cross Section Challenges, Juries & Jurors, Disqualification & Removal of Jurors