United States v. Carmona-Bernacet

• Decision Date: 14 May 2021
• Docket Number: Criminal No. 16-547 (FAB)
• Parties: UNITED STATES of America, Plaintiff, v. Luis CARMONA-BERNACET, a/k/a "Canito Cumbre" [1], et al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

539 F.Supp.3d 253

UNITED STATES of America, Plaintiff,

v.Luis CARMONA-BERNACET, a/k/a "Canito Cumbre" [1], et al., Defendants.

Criminal No. 16-547 (FAB)

United States District Court, D. Puerto Rico.

Signed May 14, 2021

Kelly Zenon-Matos, AUSA Designation, United States Attorney's Office District of Puerto Rico, San Juan, PR, for Plaintiff.

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

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

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

Giovanni Jose Canino-Sanchez, Jason Gonzalez-Delgado, Gabriela Jose Cintron-Colon, San Juan, PR, for Defendant Fabiany Almestica-Monge.

Leonardo M. Aldridge, San Juan, PR, for Defendant Rolando Rivera-Solis.

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

OPINION AND ORDER

BESOSA, District Judge.

Before the Court are three pretrial motions filed by defendants. First, defendants Luis Carmona-Bernacet ("Carmona"), Yadier Serrano-Canales ("Serrano"), Alan Lugo-Montalvo ("Lugo"), Fabiany Alméstica-Monge ("Alméstica"), Rolando Rivera-Solís ("Rivera"), and Alex Burgos-Amaro ("Burgos") (collectively, "defendants") request disclosure of Jencks Act material in advance of trial. (Docket Nos. 461, 471 & 503.) Second, Burgos moves for an order compelling the United States to produce a Report of Investigation. (Docket No. 516.) Third, Alméstica and Lugo move to dismiss count one of the third superseding indictment. (Docket No. 504.) For the reasons set forth below, all three motions are DENIED .

I. Background

Carmona, Serrano, Lugo, Alméstica, Rivera, and Burgos purportedly participated in an extensive and violent drug trafficking organization ("DTO"). (Docket No. 113.) The DTO operated in San Juan, Trujillo Alto, Guaynabo, and Bayamón from approximately 2000 through 2014. Id. The defendants allegedly distributed crack cocaine, cocaine and marihuana in public housing projects by assigning discrete responsibilities to participants within the DTO hierarchy. Id. For instance, "leaders" possessed "final authority" regarding drug-trafficking operations. Id. at p. 3. Managers, enforcers, and runners packaged and sold controlled substances. Id.

On December 6, 2018, a grand jury returned a third superseding indictment charging the defendants with conspiracy to possess with intent to distribute controlled substances, in violation of 21 U.S.C. sections 846 and 860, and with possession of firearms in furtherance of a drug trafficking crime, in violation of 18 U.S.C. section 924(c) (counts one and two). Id. at pp. 1-5. Carmona is charged with using a firearm during and in relation to a drug trafficking crime resulting in the murders of William Castro and René Cruz, in violation of 18 U.S.C. section 924(j)(1) (counts three and four). Id. at pp. 6-7. Additionally, Carmona, Serrano, Rivera, and Burgos allegedly used a firearm to murder Maurice Spagnoletti on June 15, 2011, during and in relation to a drug trafficking crime, in violation of 18 U.S.C. section 924(j)(1) (count five). Id. at p. 7. The defendants have pled not guilty. (Docket Nos. 98, 138, 141, 142, 154 & 155.)

II. Pretrial Disclosure of Witness Statements

The defendants move for an order compelling the United States to disclose Jencks material before the commencement of trial, including redacted statements from government witnesses and informants. (Docket Nos. 461, 471 & 503.) The United States maintains, however, that the defendants have no right to this information at this juncture. (Docket No. 463.) The Court agrees.

Federal Rule of Criminal Procedure 16 (" Rule 16") governs discovery and inspection in criminal actions. Fed. R. Crim. P. 16 ; see James Cissell, Federal Criminal Trials § 7-7 (2021 ed.) ("Rule 16 of the Federal Rules of Criminal Procedure is the basic, and in most cases, the exclusive discovery tool that can be utilized by a defendant"). "[T]here is no general constitutional right to discovery in a criminal case." Weatherford v. Bursey, 429 U.S. 545, 559, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977) ; see Kaley v. United States, 571 U.S. 320, 335, 134 S.Ct. 1090, 188 L.Ed.2d 46 (2014). In addition to Rule 16, the Supreme Court has held that due process of law demands the disclosure of exculpatory and impeachment evidence. See Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (holding that the United States must disclose exculpatory evidence that "is either material to guilt or to punishment"); Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) (holding that the United States must disclose impeachment material when "the reliability of a given witness may well be determinative of guilt or innocence.")

Pursuant to Jencks v. United States, criminal defendants are entitled to inspect "relevant" and "competent" statements by witnesses who testify on behalf of the United States. 353 U.S. 657, 667, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957). The Jencks court did not, however, identify when the United States is required to furnish this material. Id.; see Ellen S. Podgor, Criminal Discovery of Jencks Witness Statements: Timing Makes a Difference, 15 GA. ST. U.L. REV. 651 (1999) (noting that Jencks "was met with significant criticism" for this ambiguity) (citing Edward B. Williams, One Man's Freedom, p. 172 (Simon & Schuster, 1962) ("The Jencks decision raised a storm of conflict. It was widely predicted that every file would be opened to the forces of subversion and that law enforcement would become impossible.")).

In response to this omission, Congress passed the Jencks Act in 1965, "hoping to strike a balance between issues of fairness to the defense and law enforcement needs." United States v. Snell, 899 F. Supp. 17, 24 (D. Mass. 1995) ; see 18 U.S.C. § 3500. The Jencks Act provides that:

After a witness called by the United States has testified on direct examination , the court shall, on motion of the defendant, order the United States to produce any statement ... of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified.

18 U.S.C. § 3500(b) (emphasis added).¹ It is beyond peradventure that this statute "authorizes the government to withhold the recorded statements of a prospective government witness until the witness completes his direct testimony." United States v. Tejeda, 974 F.2d 210, 217 (1st Cir. 1992) ; see United States v. Kouri-Pérez, 47 F. Supp. 2d 166, 173 (D.P.R. 1999) (holding that "it is abundantly clear that district judges may not compel pretrial disclosure of non-exculpatory Jencks materials prior to the conclusion of a witness’ direct testimony") (Fusté, J.).²

Because the defendants have requested Jencks material, "precedent requires [this Court] to conduct an independent investigation of any such materials and determine whether these materials are discoverable under the Jencks Act." United States v. González-Meléndez, 570 F.3d 1, 3 (1st Cir. 2009). The Court ordered the United States to provide "samples of sanitized and not sanitized documents considered [to be] Jencks for its review." Docket No. 471 at p. 3; see United States v. Landrón-Class, 696 F.3d 62, 73 (1st Cir. 2012) (noting that the "independent [Jencks] review can take the form of an in camera review of the documents"). The United States produced prospective Jencks material on November 20, 2020. (Docket No. 479.) A thorough review of the material indicates that pretrial disclosure of Jencks material is not warranted for two reasons.

First, the defendants misconstrue the Jencks Act. They argue that the statements are necessary to "assess the weight of the evidence." (Docket No. 461 at p. 2.) The Jencks Act is not, however, a "pretrial discovery tool." United States v. Padilla-García, 990 F.3d 60 (1st Cir. 2021) (quotation omitted). The United States has filed four designations of evidence, the defendants have retained private investigators, and the Court approved the commission of a Coordinating Discovery Attorney. (Docket Nos. 27, 103, 239, 326, 328, 445, 447, 487 & 497.) Nothing prevents Carmona, Serrano, Lugo, Alméstica, Rivera, and Burgos from investigating the charges set forth in the third superseding indictment. They may gather evidence and request to interview witnesses on their own accord. Cf Kaley, 571 U.S. at 335, 134 S.Ct. 1090 (holding that the United States has no obligation to "give the defendant knowledge of the Government's case and strategy well before the rules of criminal procedure — or principles of due process ... would otherwise require"). The defendants may not use the Jencks Act to conduct discovery. See In re United States, 834 F.2d 283, 286 n.2 (2d Cir. 1987) ("Disclosures are required by the Jencks Act only for impeachment purposes.") (citing Palermo v. United States, 360 U.S. 343, 345, 79 S.Ct. 1217, 3 L.Ed.2d 1287 (1959) (emphasizing that defendants are "entitled, under certain circumstances, to obtain, for impeachment purposes , statements which had been made to government agents by government witnesses")) (emphasis added).

Second, the defendants request that the Court commandeer an authority that Congress has explicitly reserved for the executive branch. The statutory language is clear: The United States need not provide the defendants with Jencks material until the conclusion of the witness’ direct examination at trial. 18 U.S.C. § 3500 ; see United States v. Astacio-Espino, 783 F. Supp. 2d. 287, 292 (D.P.R. 2011) (holding that Congress "expressly [limited] the Court's authority to compel the government to disclose any material within the scope of the Jencks Act") (Besosa, J.); United States v. Ortiz-García, 553 F. Supp. 2d 119, 121 n.2 (D.P.R. 2008) ("Clearly, under the Jencks Act, the government cannot be compelled to disclose the information defendants now seek at [the pretrial] stage of the proceedings.") (Besosa, J.)...