United States v. Carmona-Bernacet

663 F.Supp.3d 188

UNITED STATES of America, Plaintiff, v. Luis CARMONA-BERNACET, et al., Defendants.

Criminal No. 16-547 (FAB)

United States District Court, D. Puerto Rico

Signed March 22, 2023

Alberto R. Lopez-Rocafort, AUSA, Victor O. Acevedo-Hernandez, AUSA, Dennise N. Longo-Quinones, AUSA, Gregory Bennet Conner, AUSA, Kelly Zenon-Matos, AUSA, United States Attorney's Office District of Puerto Rico, San Juan, PR, for Plaintiff.

Jose B. Velez-Goveo, Velez & Velez Law Office, Bayamon, PR, for Defendant Luis Carmona-Bernacet.

Peter Diaz-Santiago, San Juan, PR, for Defendant Yadiel Serrano-Canales.

Edgar L. Sanchez-Mercado, ESM Law Office, San Juan, PR, for Defendant Alan Lugo-Montalvo.

Jason Gonzalez-Delgado, Gabriela Jose Cintron-Colon, San Juan, PR, for Defendant Fabiany Alméstica-Monge.

Leonardo M. Aldridge, ECIJA-SBGB Law Offices, San Juan, PR, for Defendant Rolando Rivera-Solís.

Anita Hill-Adames, Anita Hill Law Office, San Juan, PR, for Defendant Alex Burgos-Amaro.

OPINION AND ORDER

BESOSA, District Judge.

Thirteen pretrial motions are before the Court. First, defendant Yadiel Serrano-Canales ("Serrano") moves for severance. (Docket No. 1101.) Second, Serrano moves in limine to exclude testimony pertaining to the Yoruba religion. (Docket No. 1103.) Third, the United States moves in limine to admit cellular phone records. (Docket No. 1110.) Fourth, defendant Rolando Rivera-Solís ("Rivera") moves to strike surplusage and to sanitize the fourth-superseding indictment. (Docket No. 1146.) Fifth, defendants Fabiany Alméstica-Monge ("Alméstica") and Alan Lugo-Montalvo ("Lugo") move in limine to exclude discovery produced in an untimely manner. (Docket No. 1164.) Sixth, the United States moves for an order pursuant to the Crime Victims' Rights Act of 2004. (Docket No. 1177.) Seventh, Alméstica moves to compel the United States to identify government informants. (Docket No. 1183.) Eighth, Alméstica moves for reconsideration of the Court's disposition regarding the 2009 intervention. (Docket No. 1184.) Ninth, defendants Luis Carmona-Bernacet ("Carmona"), Alméstica, Lugo and Rivera move to unseal an ex parte motion. (Docket No. 1216.) Tenth, Lugo and Carmona move in limine to limit testimony adduced by Miguel Aponte-Díaz. (Docket No. 1221.) Eleventh, Lugo and Carmona move in limine to limit testimony adduced by Milagros Pérez-Feliz. (Docket No. 1224.) Twelfth, Lugo moves in limine to exclude Parole Board evidence and evidence of his prior conviction. (Docket No. 1231.) Lastly, Lugo moves in limine to exclude certain Parole Board records. (Docket No. 1237.)

For the reasons set forth below, Serrano's motion for severance is DENIED. (Docket No. 1101.) Serrano's motion in limine to exclude testimony pertaining to the Yoruba religion is DENIED. (Docket No. 1103.) The United States' motion in limine to admit cellular phone records is GRANTED. (Docket No. 1110.) Rivera's motion to strike surplusage and to sanitize the fourth-superseding indictment is DENIED. (Docket No. 1146.) Alméstica and Lugo's motion in limine to exclude discovery produced in an untimely manner is DENIED. (Docket No. 1164.) The United States' motion for an order pursuant to the Crime Victims' Rights Act of 2004 is GRANTED. (Docket No. 1177.) Alméstica's motion to compel the United States to identify government informants is DENIED. (Docket No. 1183.) Alméstica's motion for reconsideration is DENIED. (Docket No. 1184.) Carmona, Alméstica, Lugo, and Rivera's motion to unseal an ex parte motion is DENIED. (Docket No. 1216.) Lugo's and Carmona's motion in limine to limit testimony adduced by Miguel Aponte-Díaz is DENIED WITHOUT PREJUDICE. (Docket No. 1221.) Lugo's and Carmona's motion in limine to limit testimony adduced by Milagros Pérez-Feliz is DENIED WITHOUT PREJUDICE. (Docket No. 1224.) Lugo's motion in limine to exclude Parole Board evidence and evidence of his prior conviction is DENIED IN PART and MOOT IN PART. (Docket No. 1231.) Lugo's motion in limine to exclude certain Parole Board records is DENIED. (Docket No. 1237.)

I. Background

On June 29, 2021, a grand jury returned a five-count, fourth superseding indictment ("indictment") against Carmona, Serrano, Lugo, Alméstica, Rivera, and Alex Burgos-Amaro ("Burgos") (collectively, "defendants"). (Docket No. 673.) The first two counts charge the defendants with (1) conspiracy to possess with intent to distribute controlled substances, in violation of 21 U.S.C. §§ 846, 860 (count one), and (2) possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A) (count two). (Docket No. 673.) Counts three and four aver that Carmona murdered William Castro-Vidot ("Castro") and René Cruz-Cuadrado ("Cruz"), respectively, in violation of the Violent Crimes in Aid of Racketeering Activity statute, 18 U.S.C. § 1959 ("VICAR"). Id. at pp. 6-10. The final count alleges that Carmona, Serrano, Rivera, and Burgos murdered Maurice Spagnoletti ("Spagnoletti"), also in violation of VICAR. Id. at p. 12. Trial is set to commence on March 27, 2023. (Docket No. 1187.)

II. Serrano's Motion for Severance

Serrano moves for severance pursuant to the Confrontation Clause of the Sixth Amendment. (Docket No. 1101 at p. 3) (citing U.S. CONST. amend. VI). This provision protects a defendant's right to "be confronted with the witnesses against him." U.S. CONST. amend. VI. Confrontation includes the "opportunity [to conduct] effective cross-examination." United States v. Berrio-Londono, 946 F.2d 158, 160 (1st Cir. 1991); Oken v. Warden, 233 F.3d 86, 91 (1st Cir. 2000) (noting that a "primary interest secured by the Confrontation Clause is the right of cross-examination") (citation and internal quotation marks omitted).

A. Burgos' Statement to M.P.S. Implicating Serrano in the Murder of Spagnoletti

A witness referred to as "M.P.S." testified before the grand jury. (Docket No. 1101.) Burgos purportedly informed this witness that Serrano is "the one that [sic] killed Maurice Spagnoletti." Id. at p. 2. According to Serrano, this statement "raises a Bruton issue." Id. at p. 3.

The Fifth Amendment proscribes compelled self-incrimination. U.S. CONST. amend. V; United States v. Castro, 129 F.3d 226, 230 (1st Cir. 1997) ("The Fifth Amendment privilege against self-incrimination is an essential constitutional protection that is widely regarded as a cornerstone of our adversarial system of criminal justice."). A self-incriminating statement by a defendant, offered at trial by the United States, is generally admissible pursuant to Federal Rule of Evidence 801(d)(2)(A). See 5 Weinstein's Fed. Evid. § 8-1.30 (2021) ("A party's own out-of-court statements and statements that are attributable to a party are not hearsay when they are offered against that party."). A defendant's confession in a joint criminal trial, however, presents a distinct quandary. This confession may have implicated a codefendant, placing the declarant's right against self-incrimination in conflict with the codefendant's right to confront an adversarial witness.

The Supreme Court addressed this conflict in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). The petitioner's codefendant named him as an accomplice in an armed robbery. Id. The United States entered the confession into evidence, culminating in the petitioner's conviction. Id. at 123, 88 S.Ct. 1620. The Supreme Court overturned the conviction, holding that certain "powerfully incriminating extrajudicial statements of a codefendant" created the intolerable threat that the jury would convict the petitioner based on his non-testifying codefendant's confession. Id. Pursuant to Bruton, a non-testifying defendant's confession incriminating another defendant is inadmissible at a joint trial. Id.

Bruton is, however, inapplicable here. In Davis v. Washington, the Supreme Court held that the Confrontation Clause "applies only to testimonial hearsay." 547 U.S. 813, 823, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006); see United States v. Estes, 985 F.3d 99, 105 (1st Cir. 2021) ("It is well-settled that when a statement is non-testimonial, there is no right to confrontation.") (citation omitted); United States v. Veloz, 948 F.3d 418, 430-31 (1st Cir. 2020) ("In considering Confrontation Clause challenges, the threshold question in every case is whether the challenged statement is testimonial. If it is not, the Confrontation Clause has no application.") (internal citation and quotation omitted). The Supreme Court defines "nontestimonial" in the negative by providing examples of testimonial evidence. See Crawford, 541 U.S. at 51-52, 124 S.Ct. 1354. Testimonial statements include, but are not limited to, "ex parte in-court testimony, affidavits, custodial examinations, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially." Id. (internal quotation marks and citations omitted); Bullcoming v. New Mexico, 564 U.S. 647, 659 n.6, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011) (holding that testimonial statements include assertions made with "a primary purpose of establishing or proving past events potentially relevant to later criminal prosecution") (quotation omitted).

Burgos discussed Spagnoletti's murder with M.P.S. during a private conversation, not during an interrogation, an ex parte proceeding, or in a "context in which the declarant should know that [their statements] will be preserved for prosecutorial use." United States v. Malpica-Garcia, 489 F.3d 393, 397 (1st Cir. 2007) (citation omitted). Because these statements are not testimonial, Serrano's Confrontation Clause argument is unavailing. See United States v. Pelletier, 666 F.3d 1, 9-10 (1st Cir. 2011) (holding that informal "statements made by one inmate to another . . . are not testimonial"); United States v. Castro-Davis, 612 F.3d 53, 65 (1st Cir. 2010) (holding that statements made during a "conversation with a close family member without any intention of assisting in [the...