United States v. Candelario-Santana

• Docket Number: Criminal 09-427 (FAB)
• Decision Date: 05 June 2023
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. ALEXIS CANDELARIO-SANTANA [1], Defendant.
• Court: U.S. District Court — District of Puerto Rico

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UNITED STATES OF AMERICA, Plaintiff,
v.
ALEXIS CANDELARIO-SANTANA [1], Defendant.

Criminal No. 09-427 (FAB)

United States District Court, D. Puerto Rico

June 5, 2023

OPINION AND ORDER

FRANCISCO A. BESOSA, SENIOR UNITED STATES DISTRICT JUDGE.

Five motions are before the Court. First, defendant Alexis Candelario-Santana (“Candelario”) moves to dismiss counts 2 through 19 of the third-superseding indictment. (Docket No. 1699.) Second, Candelario moves to preclude the United States from eliciting hearsay statements from putative trial witness Amarylis Fonseca-Matías (“Fonseca”). (Docket No. 1696.) Third, Candelario requests that the Court bar the admission of crime scene photographs. (Docket No. 1693.) Fourth, the United States moves to preclude expert eyewitness testimony. (Docket No. 1718.) Fifth, Candelario moves to compel the United States to provide a specific notice of its case-in-chief. (Docket No. 1705.) For the reasons set forth below, Candelario's motion to dismiss, motion to preclude hearsay statements, and motion for a specific notice of evidence are DENIED.

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(Docket Nos. 1696, 1699 and 1705.) His motion to bar the admission of crime scene photographs is DENIED WITHOUT PREJUDICE. (Docket No. 1693.) Lastly, the United States motion to exclude expert eyewitness testimony is GRANTED. (Docket No. 1718.)

I. Background

On October 19, 2012, the grand jury returned a 52-count third-superseding indictment against Candelario, Carmelo Rondón-Feliciano (“Rondón”), Wilfredo Candelario-Santana, and David Oquendo-Rivas (“Oquendo”). (Docket No. 579.)^[1] This indictment alleges that Candelario participated in an illicit enterprise in violation of the Racketeer Influenced and Corrupt Organizations (“RICO”) Act, 18 U.S.C. § 1962(d) (count one); participated in an illicit enterprise in violation of the Violent Crime in Aid of Racketeering Activity (“VICAR”) Act, 18 U.S.C. § 1959(a)(1) (counts 2 through 10, and counts 29 through 49); knowingly carried and used a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(j)(1) (counts 11 through 19); committed a drug-related murder in violation of 21 U.S.C. § 848(e)(1)(A) (counts 20 through 28); conspired to

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possess with intent to distribute a controlled substance in violation of 21 U.S.C. § 846 (count 50); and possessed a firearm after having been convicted of a felony in violation of 18 U.S.C. § 922(g)(1) (counts 51 and 52). Id.

Candelario and Oquendo pled not guilty. (Docket Nos. 615 and 617.) After an eleven-day trial, the jury found the defendants guilty on all counts of the third-superseding indictment. (Docket No. 985.) On August 30, 2013, Candelario received two life sentences, to be served consecutively to each other. (Docket No. 1145.) The First Circuit Court of Appeals subsequently vacated Candelario's conviction, however, holding that the district court committed structural error by violating his Sixth Amendment right to a public trial. United States v. Candelario-Santana, 834 F.3d 8, 24 (1st Cir. 2016).^[2]Candelario's second trial is set to commence on June 20, 2023. (Docket No. 1686.)

II. Candelario's Motion to Dismiss

Candelario seeks dismissal of counts 2 through 19 because, he argues, “murder in violation of Article 105 of the 2004 Puerto Rico Penal Code is not categorically a crime of violence.” (Docket No. 1699 at p. 1.) An indictment is sufficient “if it contains the elements of the offense charged,

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fairly informs the defendant of the charges against which he must defend, and enables him [or her] to enter a plea without fear of double jeopardy.” United States v. Ford, 839 F.3d 94, 104 (1st Cir. 2016) (internal quotation marks and citation omitted). “[I]t is generally sufficient that an indictment set forth the offense in the words of the statute itself as long as those words [contain] all the elements of the offense without any uncertainty or ambiguity.” United States v. Brown, 295 F.3d 152, 154 (1st Cir. 2002) (internal quotation marks and citation omitted); see United States v. Rodríguez-Rivera, 918 F.3d 32, 34 (1st Cir. 2019) (“Unlike a civil complaint that need allege facts that plausibly narrate a claim for relief, a criminal indictment need only apprise the defendant of the charged offense.”) (internal quotation marks and citation omitted).

To adjudicate a motion to dismiss, courts “must take the allegations in the indictment as true,” cognizant that “the question is not whether the government has presented enough evidence to support the charge, but solely whether the allegations in the indictment are sufficient to apprise the defendant of the charged offense.” United States v. Ngige, 780 F.3d 497, 502 (1st Cir. 2015) (citation omitted). Notably, the indictment need not provide a preview of the evidence to be adduced at trial. See United States v. Stepanets, 879 F.3d 367, 372 (1st Cir. 2018)

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(noting that the “government need not recite all of its evidence in the indictment”).

A. The Violent Crime in Aid of Racketeering Activity Act

Congress enacted VICAR in 1984 “as the violent crime corollary to the RICO statute.” United States v. Savage, 970 F.3d 217, 273 (3rd Cir. 2020) (quotation omitted). To secure a VICAR conviction, the United States must prove that:

(1) an enterprise existed; (2) the enterprise affected interstate commerce; (3) the enterprise was engaged in racketeering activity; (4) the defendant was a member of the enterprise, (5) the defendant committed the alleged crime of violence, and (6) the defendant committed the crime [“for a promise or agreement to pay, anything of pecuniary value,” or] in furtherance of his membership in the enterprise.

United States v. Brandao, 448 F.Supp.2d 311, 327 (D. Mass. 2006); see 18 U.S.C. § 1959(a).^[3] The VICAR counts cite Article 105 of the Puerto Rico Penal Code (“Article 105”), Laws P.R. Ann. tit. 33 § 4733, as the predicate “crime of violence.” Docket No. 579 at pp. 12-22, 44-63;

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see United States v. Millán-Machuca, 991 F.3d. 7, 21 (1st Cir. 2021) (noting that Article 105 “serve[d] as a predicate offense for a murder in aid of racketeering conviction”); United States v. Ramos, Case No. 12-200, 2017 U.S. Dist. LEXIS 229475, at *10 (D.P.R. May 19, 2019) (Smith, J.) (“The predicate offense for the VICAR charge was aiding and abetting the murder of Christian Toledo Sánchez (“Pekeke”) under Puerto Rico law”).^[4] Pursuant to Article 105, “murder is to kill another human being with intent.” Laws P.R. Ann. tit. 33 § 4733.

B. The Use of a Firearm During and in Relation to a Crime of Violence

Congress enacted 18 U.S.C. § 924 to ensure “long prison sentences for anyone who uses a firearm in connection with certain other federal crimes.” United States v. Davis, 139 S.Ct. 2319, 2323 (2019). In relevant part, this statute prohibits any person from using or carrying a firearm “during and in relation to any crime of violence or drug trafficking crime.” 18 U.S.C. § 924(c). A section 924(c) violation “causing the death of a person through the use of a firearm” shall, “if the killing is a murder . . . be punished by death or by imprisonment for any term of years or for life.” 18 U.S.C. § 924(j); see United States v. García-Ortiz, 657 F.3d 25, 28

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(1st Cir. 2011) (“The only meaningful difference” between sections 924(c) and 924(j) is that the latter “requires proof of one additional fact: the death”); United States v. Cruz-Ramos, 987 F.3d 27, 45 (1st Cir. 2021) (“[Roughly] speaking, § 924(j) makes it a crime to kill anyone when doing acts that infract § 924(c) . . .”). A “crime of violence” is any felony offense that “has an element the use, attempted use, or threatened use of physical force against the person or property of another.” United Stats v. Farmer, 988 F.3d 55, 62 (1st Cir. 2021) (quoting 924(c)(3)(A)). This definition is referred to as the “force clause.”^[5]

Counts 11 through 18 charge Candelario with using a firearm during and in relation to a crime of violence, causing the death of Joan Manuel Class-Guzmán, Pedro Semprit-Santana, José Ángel Hernández-Martínez, John Henry García-Martínez, Elisa Del Carmen Ocasio, Samuel Ruiz-Martínez, Rafael Ángel Ramos-Rivera, and Tina Marie Rodríguez-Otero, respectively

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(hereinafter, “section 924(j) counts”). Docket No. 579 at pp. 23-30; see 18 U.S.C. § 924(j). The predicate crimes of violence for the section 924(j) counts are the VICAR allegations set forth in counts 2 through 9. Id.^[6] Essentially, the VICAR statute serves a dual purpose in the third-superseding indictment. First, the VICAR allegations in counts 2 through 10 and counts 29 through 49 subject Candelario to criminal liability irrespective of the section 924(j) counts (hereinafter “singular VICAR counts”). Second, VICAR counts 2 through 9 are the predicate crimes of violence for the section 924(j) allegations in counts 11 through 18 (hereinafter “predicate VICAR counts”). The following table illustrates this duality.

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VICAR: Counts 2 through 10, Counts 29 through 49 Singular VICAR Counts Candelario allegedly committed crimes of violence for the “purpose of gaining entrance to or maintaining or increasing position in an enterprise engaged in racketeering activity.” 18 U.S.C. § 1959(a).	Section 924(j): Counts 11 through 18 [Section 924(j) Candelario allegedly carried and used a firearm during and in relation to a crime of violence, causing the death of eight people. 18 U.S.C. § 924(j)
Counts 2 through 9
Article 105 Murder in violation of Article 105 of the Puerto Rico Penal Code is the VICAR “crime of violence.” Laws P.R. Ann. tit. 33 § 4733	Predicate VICAR Counts The predicate “crime of violence” for the section 924(j) counts are the VICAR allegations in counts 2 through 9. See 18 U.S.C. § 1959(a).
Article 105 Murder in violation of Article 105 of the Puerto Rico Penal Code is...