Report and Recommendation on Rule 11(c)(1)(B) Change of Plea Hearing — No. 3:23-cr-00195 (Dkt. 370, D.P.R.)

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A report and recommendation on a Rule 11(c)(1)(B) change of plea hearing, filed October 16, 2023 as Document 370 in United States v. Josearyam Gotay-León, Criminal No. 23-195 (ADC), in the U.S. District Court for the District of Puerto Rico, signed by Magistrate Judge Giselle López-Soler. The report states that Josearyam Gotay-León was charged in a fifty-three-count indictment on May 11, 2023 and agrees to plead guilty to Count Twenty-Nine, wire fraud under Title 18, United States Code, §§ 1343 & 2, involving false applications for COVID-19 relief funds under the CARES Act. It recounts a motion to change plea on September 1, 2023 (Docket No. 329), a Plea and Forfeiture Agreement (Docket No. 366) and the hearing on October 16, 2023.

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“Report and Recommendation on Rule 11(c)(1)(B) Change of Plea Hearing — No. 3:23-cr-00195 (Dkt. 370, D.P.R.).” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/report-and-recommendation-on-rule-11-c-1-b-change-of-plea-hearing-no-3-9bd730b48f/, SHA-256 bf3d5d7008972a1b6316e3fa1447861b4441354288f255d86cb9e59432bd74b2.

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Case 3:23-cr-00195-ADC-HRV Document 370 Filed 10/16/23 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

UNITED STATES OF AMERICA,
Plaintiff, Criminal No. 23-195 (ADC)

[24] JOSEARYAM GOTAY-LEON,
Defendant.

REPORT AND RECOMMENDATION
ON RULE 11(c)(1)(B) CHANGE OF PLEA HEARING

I. Procedural Background
On May 11, 2023, Defendant Josearyam Gotay-León was charged by a Grand Jury in a
fifty-three-count indictment. Defendant agrees to plead guilty to Count Twenty-Nine of the
Indictment, wire fraud.
Count Twenty-Nine of the Indictment charges that, from in or about April 2020, through
approximately May 11, 2023, in the District of Puerto Rico, and elsewhere, Josearyam Gotay-
León, co-defendants, aiding and abetting others, knowingly devised, and intended to devise, a
scheme and artifice to defraud the United States Small Business Administration and Bank I, and
to obtain money and property by means of materially false and fraudulent pretenses,
representations, and promises, by submitting and causing to be submitted false and fraudulent
applications for COVID-19 relief funds issued under the authority of the Coronavirus Aid, Relief,
and Economic Security (“CARES”) Act. Specifically, Josearyam Gotay-León, aiding and abetting
one another, for the purpose of executing the scheme and artifice to defraud, and attempting to do
so, transmitted, and caused to be transmitted, writings, signs, signals, pictures, and sounds by
means of wire communications in interstate commerce, in relation to fraudulent applications for
COVID-19 relief funds. All in violation of Title 18, United States Code, §§ 1343 & 2.
Case 3:23-cr-00195-ADC-HRV Document 370 Filed 10/16/23 Page 2 of 7
USA v. Gotay-León
Cr. No. 23-195 (ADC)
Report and Recommendation on Guilty Plea

On September 1, 2023, Defendant moved for a change of plea. Docket No. 329. The United
States of America and Defendant entered into a Plea and Forfeiture Agreement. Docket No. 366.
Pursuant to the plea agreement, Defendant agreed to plead guilty to Count Twenty-Nine of the
Indictment. But stipulated and agreed that Defendant would not be held accountable for wire fraud
that affects a financial institution or a declared emergency. On October 16, 2023, Defendant
appeared before this Court for a change of plea hearing pursuant to Rule 11 of the Federal Rules
of Criminal Procedure. See United States v. Woodward, 387 F. 3d. 1329 (11th Cir. 2004) (holding
that a magistrate judge may, with the defendant’s consent, conduct a Rule 11 change of plea
hearing). Defendant was advised of the purpose of the hearing and placed under oath with
instructions that his answers must be truthful because he could otherwise be charged with perjury.
II. Consent to Proceed Before a Magistrate Judge
Defendant was advised of his right to hold all proceedings, including this change of plea
hearing, before a district court judge. An explanation of the differences between the scope of
jurisdiction and functions of a district judge and a magistrate judge was provided. Defendant was
informed that, if he elects to proceed before a magistrate judge, the magistrate judge would conduct
the hearing and prepare a report and recommendation, subject to the review and approval of the
district judge.
Defendant was provided with a Waiver of Right to Trial by Jury, which he signed prior to
the hearing. Docket No. 365. Defendant validated his signature and informed that his attorney had
translated the document to Spanish and had explained the document before signing the same. The
Court found that Defendant voluntarily consented to proceed before a magistrate judge and
approved Defendant’s consent.
III. Proceedings Under Rule 11 of the Federal Rules of Criminal Procedure
Rule 11 of the Federal Rules of Criminal Procedure governs the acceptance of guilty pleas
to federal crime violations. Pursuant to Rule 11, for a plea of guilty to constitute a valid waiver of
the defendant’s right to trial, the guilty plea must be knowing and voluntary. United States v.
Hernández Wilson, 186 F. 3d 1, 5 (1st Cir. 1999). “Rule 11 was intended to ensure that a defendant
who pleads guilty does so with an ‘understanding of the nature of the charge and consequences of
his plea’”. United States v. Cotal-Crespo, 47 F. 3d 1, 4 (1st Cir. 1995) (quoting McCarthy v. United
States, 394 U. S. 459, 467 (1969)). There are three core concerns in a Rule 11 proceeding: 1)

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USA v. Gotay-León
Cr. No. 23-195 (ADC)
Report and Recommendation on Guilty Plea

absence of coercion; 2) understanding of the charges; and 3) knowledge of the consequences of
the guilty plea.
A. Competence to Enter a Guilty Plea
The Court questioned Defendant about his age, education, employment, history of any
treatment for mental illness or addiction, use of any medication, drugs or alcohol, and his
understanding of the purpose of the hearing, to ascertain his capacity to understand, answer and
comprehend the change of plea colloquy. The Court confirmed that Defendant received the
Indictment and fully discussed the charges with his attorney, and that he was satisfied with the
advice and representation he received. The Court further inquired whether Defendant’s counsel or
counsel for the Government had any reservations as to Defendant’s competency to plead, receiving
answers that Defendant was competent to enter a plea. After considering Defendant’s responses,
and observing his demeanor, the Court found that Defendant was competent to plead and fully
aware of the purpose of the hearing.
B. Plea Agreement
Defendant was shown his plea agreement, including the stipulation of facts, and he
identified his initials and signatures. Defendant confirmed that he had the opportunity to read and
discuss the plea agreement and plea agreement supplement with his attorney, that his attorney
translated both the plea agreement and the plea agreement supplement before he signed the
documents, that the plea agreement represented the entirety of his understanding with the
Government, that he understood the terms of the plea agreement and plea agreement supplement,
and that no one had made any other or different promises or assurances to induce him to plead
guilty. Counsel for the Government described the essential terms of the plea agreement, including
stipulations pertaining to the Sentencing Guidelines and any sentencing recommendations.
Counsel for the defense agreed with the Government’s description of the terms and
recommendations, and so did Defendant.
Defendant was then admonished, pursuant to Federal Rule of Criminal Procedure
11(c)(1)(B), that the terms of the plea agreement are mere recommendations to the Court, and that
the District Judge who will preside over the sentencing hearing can reject the recommendations
without permitting him to withdraw his guilty plea. And that the District Judge could impose a
sentence that is more severe than what Defendant might anticipate. Defendant expressed full

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USA v. Gotay-León
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Report and Recommendation on Guilty Plea

understanding of the foregoing and confirmed that he was fully aware that, if the District Judge
does not follow the recommendations in the plea agreement, he will not be allowed to withdraw
his plea of guilty if he receives a sentence that is higher than expected.
C. Voluntariness
In considering the plea agreement, Defendant acknowledged that the plea agreement
contains all the promises and agreements that he made with the Government and that no one made
any other or different promise or assurance of any kind in exchange for his guilty plea, other than
the recommendations set forth in the plea agreement. Defendant indicated that he was not being
induced to plead guilty, that he was entering such plea freely and voluntarily because in fact he is
guilty, and that no one has threatened him or offered a thing of value in exchange for his plea.
Defendant understood that the offense to which he is pleading guilty is a felony and that, if the
plea is accepted, he will be adjudged guilty of that offense, and that such adjudication may deprive
him of valuable civil rights, such as the right to vote, the right to hold public office, the right to
serve on a jury, and the right to possess a firearm.
Throughout the hearing, Defendant was free to consult with his attorney or to seek
clarification from the Court. He confirmed that his agreement to plead guilty was made knowingly
and voluntarily.
D. Maximum Penalties
Defendant expressed his understanding of the statutory maximum penalties for the offense
to which he was pleading guilty. Count Twenty-Nine of the Indictment carries a term of
imprisonment of not more than thirty (30) years, a fine not to exceed one million dollars
($1,000,000.00), and a term of supervised release of not more than five (5) years. However,
because the Defendant has agreed to be held accountable for wire fraud that does not affect a
declared emergency or financial institution the applicable penalties are a term of imprisonment of
not more than twenty (20), a fine not to exceed two hundred fifty thousand dollars ($250,000.00),
and a term of supervised release of not more than three (3) years. In addition, a Special Monetary
Assessment of one hundred dollars ($100.00) per count of conviction would be imposed, to be
deposited to the Criminal Victims Fund, pursuant to Title 18, United States Code, Section 3013(a).
Defendant indicated that he understood the maximum penalties for Count Twenty-Nine of the

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Report and Recommendation on Guilty Plea

Indictment, that the offense charged is a felony, and the potential consequences of the guilty plea,
such as the deprivation of certain valuable rights.
The Court then explained the nature of supervised release and the consequences of
violating the conditions of supervised release. Specifically, Defendant was informed that, if
supervised release is revoked, he may be required to serve an additional term of imprisonment up
to the full term of supervised release originally imposed by the Court. And that, if he is currently
on supervised release in a different case than the one object of the Indictment here, his plea of
guilty, if accepted, could result in negative consequences, such as the revocation of his supervised
release in that other case.
The Court further advised Defendant that in certain cases the Court may also order, or be
required to order, that he pay restitution to any victim of the offense, and the Court may also require
him to forfeit certain property to the Government, as provided in the forfeiture provision of the
plea agreement. Defendant was also informed that any sentence imposed in this case could be
imposed to run concurrently or consecutively to any sentence he may be currently serving in
another case.
E. Sentencing Procedure
Defendant was informed that, in determining his sentence, the District Judge is required to
consider, but not necessarily follow, the Sentencing Guidelines. Defendant confirmed that he
discussed with his attorney how the Sentencing Guidelines might apply to this case. Defendant
was specifically informed that the Court, after considering the applicable Sentencing Guidelines,
could impose a sentence different from any estimate in the plea agreement or provided by his
attorney, and that the Court had the authority to impose a sentence that is more severe or less severe
than the sentence called for by the Sentencing Guidelines. Defendant was advised, and informed
to have understood, that the Sentencing Guidelines are thus considered advisory, and that during
sentencing the District Court will consider the sentencing criteria found at Title 18, United States
Code, Section 3553(a), which include the seriousness of the offense, the need for deterrence of
criminal conduct, the need to protect the public from further crimes, the need to provide Defendant
with educational or vocational training, or medical care, and the need to provide restitution to any
victims.

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Report and Recommendation on Guilty Plea

Defendant was advised that parole has been abolished and that, if he is sentenced to prison,
he will not be released on parole. Further, Defendant was advised of his right to appeal and that,
under some circumstances, he or the Government may have the right to appeal the sentence
imposed by the Court. But that, pursuant to his plea agreement, he is waiving his right to appeal
both the judgment and sentence imposed by the Court, if the sentence imposed by the Court is two
(2) years of probation or less. Defendant informed that he understood his right to appeal and that
he voluntarily agreed to this waiver.
F. Waiver of Constitutional Rights
Defendant was specifically advised that he has the right to persist in a plea of not guilty
and that, if he does, he has the right to a speedy trial by jury, or trial before a judge sitting without
a jury if the Court and the Government so agree; that at trial he would be presumed innocent and
the Government would have to prove his guilt beyond a reasonable doubt; that he would have the
right to the assistance of counsel for his defense, and that, if he could not afford one, an attorney
would be appointed to represent him through all stages of the proceedings; that at trial he would
have the right to hear and cross examine all witnesses, the right to issue subpoenas or to compel
the attendance of witnesses to testify at trial, and the right to testify or to remain silent. Defendant
was further advised that if he decided not to testify or put on evidence at trial, the failure to do so
could not be used against him, and that at trial the jury would have to return a unanimous verdict
before he could be found guilty or not guilty.
Defendant specifically acknowledged understanding these rights. He reaffirmed his
understanding that by entering a plea of guilty there would be no trial and he would be waiving or
giving up the rights that the Court explained.
G. Offense Charged and Factual Basis for the Guilty Plea
Defendant was read in open court Count Twenty-Nine of the Indictment and was provided
an explanation of technical terms used in the Indictment. The Defendant was also provided an
explanation of the elements of the offense. Defendant expressed that he understood the charge in
Count Twenty-Nine and the elements of the offense, and what the Government would have to
prove beyond a reasonable doubt if he were to go to trial.
The Government explained the factual basis for the offense and the evidence it would
present if this case were to proceed to trial. Upon questioning, Defendant admitted to the facts,

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USA v. Gotay-León
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Report and Recommendation on Guilty Plea

constituting all the elements of the offense charged. Defendant admitted that he was pleading guilty
because he is in fact guilty. Defendant pled guilty as to Count Twenty-Nine of the Indictment.
IV. Conclusion
Defendant appeared before me, by consent, pursuant to Rule 11 of the Federal Rules of
Criminal Procedures and entered a plea of guilty as to Count Twenty-Nine of the Indictment.
After cautioning and examining Defendant under oath and in open court concerning each
of the subject matters in Rule 11, the Court finds that the defendant, Josearyam Gotay-León, is
fully competent and capable of entering this guilty plea, is aware of the nature of the charge and
the maximum statutory penalty it carries, understands that the charge is supported by evidence and
a basis in fact, has admitted to the facts and the elements of the offense, and has done so in an
intelligent and voluntary manner with knowledge of the consequences of his guilty plea.
I recommend that the Court accept the guilty plea and that Defendant be adjudged guilty
as to Count Twenty-Nine of the Indictment.
IT IS SO RECOMMENDED.
This Report and Recommendation is issued pursuant to 28 U.S.C. § 636(b)(1)(B) and Rule
72 (d) of the Local Rules of this Court. Any objections to the same must be specific and must be
filed within fourteen (14) days of its receipt. Failure to file timely and specific objections to the
Report and Recommendation is a waiver of the right to review by the District Judge. United States
v. Valencia-Copete, 792 F. 2d 4 (1st Cir. 1986).
A sentencing hearing will be scheduled by the presiding judge, Hon. Aida M. Delgado-
Colón.
In San Juan, Puerto Rico, this 16th day of October, 2023.

s/Giselle López-Soler
GISELLE LÓPEZ-SOLER
United States Magistrate Judge

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