United States v. Carmona-Bernacet

• Decision Date: 13 December 2022
• Docket Number: CRIMINAL 16-547 (FAB)
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. LUIS CARMONA-BERNACET [1], YADIEL SERRANO-CANALES [2], ALAN LUGO-MONTALVO [3], ROLANDO RIVERA-SOLIS [5], and ALEX BURGOS-AMARO [6], Defendants. Alleged Brady Material 2013 Civil Complaint Spagnoletti Received Threats from Firm Executives Spagnoletti Discovers Fraudulent Activity at the Firm Firm Executives Request or Imply that Spagnoletti Should Disregard Fraudulent Activity
• Court: U.S. District Court — District of Puerto Rico

UNITED STATES OF AMERICA, Plaintiff,
v.
LUIS CARMONA-BERNACET [1], YADIEL SERRANO-CANALES [2], ALAN LUGO-MONTALVO [3], ROLANDO RIVERA-SOLIS [5], and ALEX BURGOS-AMARO [6], Defendants.

CRIMINAL No. 16-547 (FAB)

United States District Court, D. Puerto Rico

December 13, 2022

OPINION AND ORDER

FRANCISCO A. BESOSA SENIOR UNITED STATES DISTRICT JUDGE

Before the Court are several pretrial motions. First, defendants Luis Carmona-Bernacet [1] (“Carmona”), Yadiel Serrano-Canales [2] (“Serrano”), Alan Lugo-Montalvo [3] (“Lugo”), Rolando Rivera-Solis [5] (“Rivera”), and Alex Burgos-Amaro [6] (“Burgos”) (collectively, “defendants”) all move the Court to dismiss count five of the fourth superseding indictment pursuant to Brady v. Maryland, 373 U.S. 83 (1963). (Docket Nos. 921, 922, 970 and 974.) Second, the United States moves to preclude the defendants from inquiring about the “absence of investigative tools like DNA testing, fingerprints, and other forensic technique[s] . . . unless it is tied to the weight afforded to specific physical evidence introduced at trial.” (Docket No. 931 at p. 2.) For the reasons

1

set forth below, the defendants' motions to dismiss count five are DENIED. (Docket Nos. 921, 922, 970 and 974.) The United States' motion in limine is DENIED WITHOUT PREJUDICE. (Docket No. 931.)

I. Background

On June 29, 2021, a grand jury returned a five-count, fourth superseding indictment against defendants Carmona, Serrano, Lugo, Fabiany Almestica-Monge, Rivera, and Burgos. (Docket No. 673.) The first two counts charge the defendants with conspiracy to possess with intent to distribute controlled substances, in violation of 21 U.S.C. §§ 846, 860 (count one), and 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 Rene Cruz-Cuadrado (“Cruz”) 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 fifth count alleges that Carmona, Serrano, Rivera, and Burgos murdered Maurice Spagnoletti (“Spagnoletti”), also in violation of VICAR. Id. at p. 12.

A. The 2013 Civil Litigation

The defendants charged in the fifth count allegedly murdered Spagnoletti on June 15, 2011. Id. at p. 12. Two years after his death, Marisa Spagnoletti (“Marisa”), L.S. (“L.S.”), and

2

Spagnoletti's estate commenced a civil action against Doral Financial Corporation (the “firm”), Doral Bank Puerto Rico, Glen Wakeman (“Wakeman”), Enrique Ubarri-Baragano (“Ubarri”), Jose Robles (“Robles”), and Annelise Figueroa (“Figueroa”) . See Spagnoletti v. Doral Fin. Corp., Case No. 13-1470 (JAF), Docket No. 1. Marisa and L.S. are Spagnoletti's widow and daughter, respectively. Id. at pp. 1-2. Wakeman, Ubarri, Robles, and Figueroa are, respectively, the former chief executive officer, executive vice president, head of security, and executive vice president of facilities at Doral Financial Corporation (hereinafter, “civil defendants”). Id. at p. 2.

According to the complaint, Spagnoletti moved from New Jersey to San Juan, Puerto Rico in 2010 to serve as an executive at Doral Bank. Id. at p. 4. During this timeframe, the United States investigated the firm's lending practices and regulatory compliance. Id. at p. 5. Spagnoletti purportedly learned of “fraudulent or improper transactions involving Doral Financial and various third parties,” including Ubarri and Figueroa. Id. For instance, Ubarri requested that Spagnoletti approve a loan for a friend to purchase a $1,000,0000 condominium in Isla Verde, Puerto Rico. Id. Spagnoletti personally inspected this property, however, observing that the current owner had destroyed the condominium and had even removed the kitchen appliances. Id. The

3

value of the condominium was approximately half the price listed on the loan application. Id. Moreover, Doral Financial Corporation dispersed $1,000,000 to another individual, accepting a hotel as collateral for the loan. Id. This hotel did not, however, even exist. Id.

Spagnoletti learned that “someone was wiring $30,000 per week from Doral Financial or Doral Bank to either Figueroa or an outside corporate entity for services that were not being rendered.” Id. at p. 7. Figueroa authorized payment for new light fixtures and furniture that never arrived. Id. She approved the disbursement of several hundred thousand dollars to an architect for a “bank branch that was never built.” Id. Wakeman's assistant and Robles had knowledge of these payments. Id. Ubarri opposed Spagnoletti's attempts to “involve outside counsel” and “disclose the problem.” Id. at p. 5.

Undeterred, Spagnoletti “continually questioned the accounting practices of the firm, because he did not believe the reporting to be accurate.” Id. Certain branches of Doral Bank offered “different rates to different customers.” Id. Spagnoletti notified Wakeman, but the CEO could not explain these discrepancies. Id. In 2011, Wakeman informed Spagnoletti that the firm intended to “undergo restructuring,” relocate to Florida, terminate Figueroa, and retain Spagnoletti as president. Id. Six

4

months after arriving in Puerto Rico, Spagnoletti earned a $250,000 raise, culminating in a base salary of $650, 000. Id. at p. 7. This raise did not, however, undermine Spagnoletti's attempts to address ongoing fraud and conflict within the firm. Ubarri and Spagnoletti argued regarding Figueroa's termination. Id. When Spagnoletti returned to his office after this argument, he observed a photo of Figueroa with an “X” over it posted on his office door. Id. at p. 8. Subsequently, “an explicit threat was made against Spagnoletti's life.” Id. Ubarri informed Spagnoletti that if Figueroa were terminated, he would “regret it.” Id.

The firm dismissed these threats, taking no precautions to protect Spagnoletti from physical harm. Id. Indeed, the firm assured Spagnoletti that “his life was not in danger.” Id. at p. 9. Wakeman perceived threats to his own safety, however, retaining private chauffeurs and bodyguards. Id. Shortly before his murder, “unidentified individuals” followed Spagnoletti, Marisa, and L.S. Id. Spagnoletti was repeatedly shot and killed shortly after these incidents. Id. Two days after the murder, federal agents escorted Marisa to the Luis Munoz Marin airport. Id. While at the airport, a person who identified himself as purporting to be a Doral Bank employee approached Marisa. Id. at p. 10. This employee “worked in security, and knew of a plan to kill Spagnoletti, with which Robles was involved.” Id.

5

Marisa, L.S., and Spagnoletti's estate set forth eleven causes of action against the civil defendants pursuant to Puerto Rico and federal law. Id. at pp. 10-27 (Laws P.R. Ann. tit 31, § 5141 (wrongful death, count one), 18 U.S.C. § 1962 (federal RICO, count nine)). Because of the “ongoing criminal investigation related to the murder of [Spagnoletti],” Marisa and L.S. moved for voluntary dismissal of the civil action on...