Case 3:21-cr-00017-FAB Document 137 Filed 07/07/22 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

UNITED STATES OF AMERICA CRIM. NO. 21-017 (FAB)

Plaintiff

Vs.

SIXTO JORGE DIAZ-COLON

Defendant

OPPOSITION TO MOTION TO SHOW CAUSE

TO THE HONORABLE COURT:

HEREIN appears defendant Sixto Jorge Diaz Colon through his undersigned attorney

and most respectfully prays and requests:

1- The Government has filed a Motion Requesting Order to Show Cause (Docket

129), and a Supplement to said motion. (Docket 132). The Government alleges Diaz-Colon

violated the Court’s gag order in the case and is requesting the severe sanction that his bail be

revoked.

2- From a mere reading of its Motion, it appears Diaz-Colon did not violate the

gag order. The Government acknowledges that the gag order does not apply in motions or

orders “entered without restriction on the docket or disclosed in open court” (Docket 129, pg.

1-2). This Court’s Opinion and Order was entered without restriction and the press had

access to it. (Docket 127). In addition, although Diaz-Colon filed his Motion to Dismiss

restricted (Docket 103), the press was able to obtain from the Government its publicly filed

Opposition (Docket 107), and published an article discussing the arguments raised by the

Government in its Opposition.i (Exh. 1).

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3- Given that the Government’s Opposition was disclosed to the press and the

Court’ s Opinion and Order was also filed open, Diaz-Colon understood that his comments

to the press did not violate the Court’s gag order since the Opposition and Opinion and

Order were filed without restriction and subject to media coverage. In fact, this Hon.

Court denied the Government’s request for restriction as to the Order to Show Cause

motions (Docket 131), and authorized Diaz-Colon to file the present motion open. Under

these circumstances Diaz-Colon could exercise his constitutional right to freedom of

expression given that his media response was due to unrestricted motions and orders.

Under these circumstances the Court should summarily deny the Government’s Motions to

Show Cause without a hearing.1

4- Given the Government’s Opposition and the Court’s Opinion and Order was

provided to the press, Diaz-Colon and counsel understand he should be allowed to publicly

refute their arguments, particularly since Diaz-Colon was accused of making unwarranted

allegations of Government misconduct and his counsel admonished to refrain from making

unsubstantiated claims of wrongdoing, when the record reveals otherwise. The unrestricted

opinion and order also discuss the case in the process of denying the motion to dismiss. Given

the unrestricted disclosures Diaz-Colon could respond publicly without violating the gag order.

5- As stated in the Motion to Dismiss; Diaz-Colon informed CHS4 of the existence

of the chats and the harm they could cause the administration if publicly revealed.

He eventually informed governor Rossello about them and suggested a damage control

strategy to raise his image with the public after the chats were made public. Gov. Rossello

decided to hire Diaz-Colon around July 13, 2019 to assist his administration in trying to control

1
For the same reasons the present motion does not constitute a violation of the gag order since defendant has the
right to respond to unrestricted orders and motions, given the publicity generated by them and his right to present an
opposing view.
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any damage the chats could cause if made public and instructed him and CHS4 to meet

concerning the communication strategy. This had nothing to do with any extortionate offer.

Unbeknown to Diaz-Colon, CHS4 contacted the FBI concerning Rauli’s threats to the

administration about disclosing the chats. The FBI instructed CHS4 to coordinate a recorded

conversation discussing a $300,000.00 extortion payment to Person 1 in order to prevent the

chats from being publicized.

CHS4 on 07/16/2019 asked Diaz-Colon in a recorded conversation to contact Person 1

concerning the $300,000.00 payment. Diaz-Colon never followed through with the request

nor made any extortionate offer to Person 1. Ten days afterwards, on 07/26/2019, since Diaz-

Colon never contacted person 1 nor CHS4 over the proposal to instigate Person 1 from further

publishing the harmful chats in exchange of a payment of$300,000.00, the FBI showed up at

Diaz-Colon’s residence with a warrant to seize his personal cellular phone. When they arrived,

they did not inform Diaz-Colon of the warrant nor that he was a target and procured from him to

voluntarily authorize them to search his phone and informed him they thought he could be of

assistance in their investigation and wanted to interview him. Under that guise, the FBI

interrogated Diaz-Colon extensively and spent several hours coercing Diaz-Colon to place a call

to Person 1 to find out if he was willing to accept $300,000.00 in exchange for not exposing the

chats. Although Diaz-Colon did not want to call person 1, at the FBI’s insistence, who

accused him he did not want to make the call because he had something to hide, Diaz-Colon

relented and placed an FBI recorded call to Person 1 (Docket 103, Exh. 1) to find out if he

was willing to accept a $300,000.00 payment in exchange of not exposing the chats, while

being coached by the FBI agents what to say. In the recorded call Person 1 informed he

never wanted any money and that he only wanted to destroy the governor and his
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administration for what they had done to his father. Nor did person 1 in that recorded

conversation make allusion to Diaz-Colon ever having made previous extortionate offers to

him.

6- Incredibly, after the Government coerced Diaz-Colon to make the FBI

recorded call to Person 1ii, where they instructed Diaz-Colon to offer him $300,000.00 for

not publishing the already published2 chats, the Government used the conversation to

obtain an indictment against him and is using it as part of their evidence at trial to prove

that Diaz-Colon attempted to make an extortionate offer, when the recorded conversation

establishes that Diaz-Colon never made such an offer to Person 1 and that Person 1 was

never interested in obtaining money. The FBI created the extortionate offer when they

forced Diaz-Colon to make the call and make the offer! If anything, the recorded

conversation should have moved the Government not to indict Diaz-Colon since it was

clear he never had made such an offer to person 1 and by July 26, 2019 the chats had

already been publicized. This sequence of events establishes governmental misconduct.

7- A reading of the published texts and messages reveals they were all in

response to the unrestricted Government’s Opposition and Court Opinion and Order

which clearly took them out of the scope of the gag order. Publicly criticizing the

Government for having made a case against him does not constitute a violation of the gag

order given the unrestricted motions and order that provoked the response, much less does

it justify revoking Diaz-Colon’s bail, when he has complied with all of his conditions of

release.

2
As appears from the Indictment (Docket 1, pg. 3) that chats were made public om July 9,11 and 13, 2019. On July
24, 2019 Gov. Rossello resigned the governorship. (Exh.2). By July 26,2019 there was no reason to make an
extortionate offer since the chats had already been made public and Gov. Rossello had already announced his
resignation on 07/24/2019 that was to take effect on 08/02/2019.
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8- The Government cannot file public motions and then raise a violation of the

gag order when Diaz-Colon responds publicly to their allegations. Nor does a response to

an unrestricted opinion and order by the Court constitute a violation of the gag order.

WHEREFORE it is respectfully requested that the Court deny the Government’s Motion

to Show Cause without a hearing

RESPECTFULLY SUBMITTED.

I hereby certify that on this same date, I electronically filed the foregoing with the Clerk

of the Court using the CM/ECF system which will send notification of such filing to all parties

involved.

In San Juan, Puerto Rico, this 7th day of July 2022.

S/ Rafael F. Castro Lang

RAFAEL F. CASTRO LANG
USDC-PR#128505
Attorney for Defendant
P O Box 9023222
San Juan PR 00902-3222
Tel (787) 723-3672 / (787) 723-1809
Fax (787) 725-4133
Email:rafacastrolang@gmail.com;
rafacastrolanglaw@gmail.com

i
It is requested the Court accept the Spanish newspaper articles pending their translation.
ii
The recorded conversation of the FBI is part of the record. (Docket 103, Exh. 1).
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