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Federal Prosecutor Leniency Backfires in Puerto Rico Sex Crime Case

Will a sexual predator escape conviction for federal sex crimes because the U.S. Department of Justice bungled interpretation of ambiguous federal laws defining Puerto Rico’s political status?

Unless a federal judge’s recent ruling is appealed by federal prosecutors and reversed by an appellate court, 3.5 million U.S. citizens in the territory of Puerto Rico no longer will be protected by a federal criminal law making prostitution, sex slavery and other predatory sex crimes illegal in U.S. territories. On June 4 the U.S. Federal District Court in Puerto Rico rejected a plea bargain between defendant Jorge Mercado Flores and federal prosecutors, who had agreed to reduce original charges for sexual crimes against children to a lesser offense.

The victim in the case was a 14-year old minor Congress clearly intended to protect from adult sexual predators under a section of the federal criminal code indisputably applicable in Puerto Rico. Yet, the U.S. Department of Justice determined the mandatory ten year sentence for conviction of sex crimes against children was too harsh. So prosecutors recommended the court accept the defendant’s plea admitting to a less aggravated sex crime in which the victim’s age is not an element of the offense.

The reduced charge allowed U.S. prosecutors to recommend a more lenient sentence in exchange for a guilty plea. Federal District Court Judge Gustavo A. Gelpi initially accepted the admission of guilt and imposed a five-year sentence. But the judge also ordered prosecutors to submit written legal briefs on whether the federal criminal code section defining the lesser offense charged in the plea agreement applied to Puerto Rico.

In doing so the court noted that the original charges were brought under a federal criminal code section on sex crimes against children in U.S. “commonwealths, territories and possessions.” In contrast, the criminal code section that the defendant admitted violating applied only in “territories and possessions.”

The silence of the crime code section charged in the plea agreement on its applicability in a “commonwealth” drew the court’s attention because Puerto Rico is one of just two U.S. island territories to adopt the term “commonwealth” under local constitutions approved by Congress. The court decided use of different terminology in federal statutes created an ambiguity warranting statutory interpretation.

To their credit, prosecutors submitted persuasive briefs arguing that federal criminal code sections cited in both the original charges and the plea agreement applied to Puerto Rico. Indeed, in its final order responding to the prosecutor’s arguments the court acknowledged a series of relevant federal court rulings, as well as a large body of federal statutory law, confirming that the terms “commonwealth,” “territory,” and “possession” are used synonymously and interchangeably in federal law. All three of these terms typically refer to jurisdictions governed under the constitutional power of Congress over federal territory not within a state.

However, the court also noted federal court decisions in the federal judicial district that includes Puerto Rico stating that Congressional approval in 1952 of a local constitution adopting the term “commonwealth” meant the island territory of Puerto Rico acquired a new political status. Some of these federal court rulings even used language to the effect “commonwealth” conferred greater “autonomy” and “independence” that ended Puerto Rico’s status as a “mere territory.”

Thus, in the case before it the court felt compelled to follow relevant precedent, ruling Congress should be presumed to have a purpose in either using or not using the term “commonwealth” in any provision of law enacted after the 1952 local constitution was adopted. On that basis the court ruled that federal prosecutors had agreed to a plea deal for a lesser charge and sentence under a federal criminal code section on sex crimes that did not apply to Puerto Rico.

In this respect the judge’s opinion stated, “The court cannot sustain a conviction wherein a defendant pleads guilty to a crime that does not apply to his admitted actions.” Thereupon the judgment of guilt in the case was vacated by order of the court. This leaves in limbo both the Mercado Flores criminal case and the question of whether federal laws that refer to the Commonwealth of Puerto Rico as well as the Commonwealth of the Northern Mariana Islands as “territories” have the force and effect of law in those jurisdictions.

This case epitomizes the vexatious legal ambiguity and political confusion Congress has created by abdicating its constitutional authority and responsibility under the Territorial Clause in Article IV of the U.S. Constitution for orderly and timely disposition of the status of federal territory not within a state of the union. Indeed, the perverse result in this case is one unintended but foreseeable result of federal statutory and judicial experimentation with political status gimmicks and schemes that also impede informed democratic self-determination on constitutionally defined status options for each territory.

The doctrine that “commonwealth” is a non-territorial status invariably has gone awry, but lingers in federal statutory history and jurisprudence that now could free a sex predator and deny justice to the child who was his victim. Thus, this case underscores in a stark way the need for the courts and Congress to define clearly and unequivocally the current constitutional status of Puerto Rico, as well as the four smaller U.S. territories also subject to federal law applied in these federal jurisdictions pursuant to the Territorial Clause power of Congress.


5 thoughts on “Federal Prosecutor Leniency Backfires in Puerto Rico Sex Crime Case”

  1. As a former Legislative Counsel to the State of Kosrae, this case reminds once again of the importance of good legislative drafting. As one of four States of the FSM, part of original Trust Territories of the Pacific Islands, Kosrae provided me with the opportunity to learn about territorial affairs and good drafting techniques. Someone was asleep at the switch on this one!

  2. The malfeasance goes back even further when the United States occupied Puerto Rico, a former province of Spain already granted independence and having a national legislature of its own. Shortly before entering World War I, the U.S. Again without the consent of Puerto Ricans declared them to be U.S. citizens and drafted thousands of them into the army to garrison our outposts in Central America. Now Puerto Rico’s future status is a political football between competing domestic American interests in disregard of the opinions of Puerto Ricans.

  3. The Charter of Autonomy in 1897 was NOT independence … I wish people would stop getting facts wrong. The charter basically made Puerto Rico a province of Spain without actually making it a province … in other words it was the present day “ELA mejorado” (aka statehood without becoming a state) super-colony.

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