United States v. Agosto-Pacheco

• Decision Date: 21 September 2021
• Docket Number: Criminal No. 18-082 (FAB)
• Citation: 561 F.Supp.3d 216
• Parties: UNITED STATES, Plaintiff, v. Miguel AGOSTO-PACHECO, et al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

561 F.Supp.3d 216

UNITED STATES, Plaintiff,

v.Miguel AGOSTO-PACHECO, et al., Defendants.

Criminal No. 18-082 (FAB)

United States District Court, D. Puerto Rico.

Signed September 21, 2021

Sean R. Gajewski, AUSA, Jonathan Edward Jacobson, Max J. Perez-Bouret, United States Attorney's Office, San Juan, PR, for Plaintiff.

Francisco Rebollo-Casalduc, Francisco Rebollo Casalduc Law Office, San Juan, PR, Javier Micheo-Marcial, Maria Dominguez-Victoriano, DMRA Law LLC, Guaynabo, PR, for Defendant Miguel Angel Agosto-Pacheco.

Alvin Manuel Ramos-Miranda, Caguas, PR, for Defendant Jerry Omar Hernandez-Pena.

Ernesto Hernandez-Milan, EHM Law Office, San Juan, PR, for Defendant Luis A. Vazquez-Rodriguez.

Luis R. Rivera-Rodriguez, Luis Rafael Rivera Law Office, San Juan, PR, for Defendant Anthony Jahel Abreu-Matos.

Ramon L. Garay-Medina, Garay Medina Law Office, San Juan, PR, for Defendant Luis Angel Ramos-Cordero.

Mariangela Tirado-Vales, Mariangela Tirado Vales Law Office, San Juan, PR, for Defendant Juan Tapia-Soto.

OPINION AND ORDER

BESOSA, District Judge.

Before the Court are three motions in limine. (Docket Nos. 391, 392 & 393.) First, the United States moves to admit defendant Juan Tapia-Soto ("Tapia")’s confession at trial. (Docket No. 391.) Second, the United States moves to exclude self-serving statements made by defendants Anthony Abreu-Matos ("Abreu"), Luis Ramos-Cordero ("Ramos"), Jerry Hernández-Peña ("Hernández"), and Luis Vázquez-Rodríguez ("Vázquez"). (Docket No. 392.) Third, the United States requests that the Court, inter alia , recognize, before trial, the authenticity of intercepted communications. (Docket No. 393.) Also, Luis Ramos-Cordero ("Ramos") moves for severance. (Docket No. 395.)

For the reasons set forth below, the United States’ motions to admit Tapia's confession and to exclude the defendants’ self-serving statements are GRANTED . (Docket Nos. 391 & 392.) The motion to recognize the authenticity of the intercepted communications is GRANTED IN PART and DENIED IN PART . (Docket No. 393.) Lastly, Ramos’ motion for severance is DENIED . (Docket No. 395.)

I. Background

From 2017 through 2018, defendant Miguel Agosto-Pacheco ("Agosto") purportedly led "the Puerto Rican arm of a large-scale international drug conspiracy." (Docket No. 351 at p. 2.) He allegedly supervised the importation of cocaine into the United States from Colombia, a lucrative venture until his arrest on February 27, 2018. (Docket No. 351 at p. 2; Docket No. 13.) Id. Hernández, Vázquez, Abreu, Ramos, and Tapia served as "lancheros ," boatmen responsible for collecting cocaine off the coast of Puerto Rico. (Docket No. 351 at p. 2.)

The Puerto Rico Police Rapid Action Strike Force ("FURA") apprehended Abreu, Ramos, and Tapia on November 26, 2017 "on board a go-fast fishing vessel with large amounts of U.S. Currency." (Docket No. 391, Ex. 1 at p. 1.) Subsequently, Drug Enforcement Administration ("DEA") special agents and FURA officers interviewed Tapia. Id. According to Tapia, he intended to retrieve 400 kilograms of cocaine from a Venezuelan vessel at a predetermined location. Id. Moreover, he received instructions to transfer $100,000 in United States currency "for a previous cocaine load that successfully made it to Puerto Rico by the same organization." Id. The engine of the go-fast vessel malfunctioned, however, preventing Tapia, Abreu, and Ramos from completing the money and cocaine transfers. Id. at p. 2. After observing "a [FURA] helicopter fly over them, they threw a GPS device, satellite phones and the U.S. currency overboard." Id. The United States avers, however, that Tapia, Abreu, and Ramos distributed $25,000 of this amount among themselves. (Docket No. 351 at p. 2.) Ultimately, FURA officers intercepted the vessel. Id. Ramos and Abreu claimed that "they were coming to the main island from Vieques to purchase goods." (Docket No. 392 at p. 2.)

Agosto and his Colombian counterpart exchanged contemporaneous BlackBerry messages, providing a "play-by-play ... discussion regarding the [November 26, 2017] smuggling event that aligns perfectly with the timing of the interdiction of these three defendants." (Docket No. 351 at p. 3.) The Court denied Agosto's motion to suppress the Blackberry interceptions. United States v. Agosto-Pacheco, Case No. 18-082, 2020 WL 4937791, 2020 U.S. Dist. LEXIS 154235 (D.P.R. Aug. 24, 2020) (Besosa, J.).

A second attempt to import cocaine occurred on December 16, 2017. (Docket No. 3 at p. 3.) Hernández and Vázquez "led two state police helicopters on a high-speed chase in a go-fast boat." (Docket No. 392 at p. 2.) Law enforcement officers then arrested them near the southern coast of Puerto Rico. (Docket No. 351 at p. 3.) No cocaine was recovered from the vessel. Id.

According to Hernández and Vázquez, they "became lost while traveling from Vieques to the main island." (Docket No. 392 at p. 3.) Blackberry communications between Agosto and a Colombian drug-trafficker indicate, however, that Hernández and Vázquez attempted to import 258 kilograms of cocaine into Puerto Rico. (Docket No. 393 at p. 3.) Indeed, Agosto referred to Hernández and Vázquez by name. Id.

On February 8, 2018, a grand jury returned a four-count indictment. (Docket No. 3.) The defendants purportedly conspired to possess with the intent to distribute at least five kilograms of cocaine in violation of 21 U.S.C. sections 846 and 841(a)(1) (count one), and to import at least five kilograms of cocaine from Venezuela to the United States in violation of 21 U.S.C. sections 963, 952, and 960(a)(1) (count two). Id. The indictment also alleges that on November 30, 2017, Abreu, Ramos and Tapia attempted to import at least five kilograms of cocaine in violation of 21 U.S.C. sections 963, 952 and 960(a)(1) (count three). (Docket No. 2.) Lastly, Hernández and Vázquez are charged with importing at least five kilograms of cocaine on December 16, 2017 (count four). Id.

The United States moves to admit Tapia's confession at trial, to exclude the defendants’ self-serving statements, and, inter alia , to authenticate Agosto's intercepted communications. (Docket Nos. 391, 392 & 393.) Ramos moves for severance, asserting that the Confrontation Clause of the Sixth Amendment proscribes the admission of Tapia's confession. (Docket No. 395.) The motion in limine pertaining to Tapia's confession and Ramos’ motion for severance present duplicative arguments. Accordingly, adjudication of the former obviates the need to address the latter.

II. Tapia's Confession is Admissible with the Appropriate Redactions

The United States contends that Tapia's self-incriminating statements are admissible pursuant to Federal Rules of Evidence 801(d)(2)(A) and 804(b)(3). (Docket No. 391 at p. 3.) Agosto, Ramos, Tapia, and Vázquez argue, however, that the United States’ motion in limine is premature. (Docket No. 406.)¹ Ramos also requests a separate trial because the admission of Tapia's confession would purportedly violate his Sixth Amendment right to confrontation. (Docket No. 395 at p. 6.)²

A. Severance

"As a rule, persons who are indicted together should be tried together." United States v. O'Bryant, 998 F.2d 21, 25 (1st Cir. 1993). Federal Rule of Criminal Procedure 14 provides, however, that courts may sever joint trials "[i]f the joinder of offenses or defendants in an indictment [...] appears to prejudice a defendant or the government." Fed. R. Crim. P. 14(a). Severance is appropriate only when "there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence." Zafiro v. United States, 506 U.S. 534, 113 S.Ct. 933, 938, 122 L.Ed.2d 317 (1993) ; see United States v. Peña-Lora, 225 F.3d 17, 33 (1st Cir. 2000) ("[S]everance is especially disfavored in conspiracy cases") (citation omitted). District courts possess "considerable latitude" regarding severance motions, and "will be overturned only if that wide discretion is plainly abused." O'Bryant, 998 F.2d at 25 (citation omitted).

1. Self-Incriminating Statements in Joint Criminal Trials

Ramos predicates his motion to sever on the Confrontation Clause of the Sixth Amendment. Docket No. 395; citing U.S. CONST. amend. VI. This provision protects the 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 defendant's confession in a joint criminal trial presents a distinct quandary. 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."). Consequently, Tapia's confession is admissible, substantive evidence against Tapia only. References to his codefendants in the confession, however, present the risk of compromising the Sixth Amendment rights of Hernández, Vázquez, Abreu, should Tapia decline to testify at trial.

In Bruton v. United States, the Supreme Court addressed this discrepancy. 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...