United States v. Carmona-Bernacet
| Citation | 600 F.Supp.3d 155 |
| Decision Date | 25 April 2022 |
| 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 |
Alberto R. Lopez-Rocafort, Victor O. Acevedo-Hernandez, AUSA, Gregory Bennet Conner, AUSA, Kelly Zenon-Matos, AUSA, United States Attorney's Office, 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 Almestica-Monge.
Leonardo M. Aldridge, ECIJA-SBGB Law Offices, San Juan, PR, for Defendant Rolando Rivera-Solis.
Anita Hill-Adames, Anita Hill Law Office, San Juan, PR, for Defendant Alex Burgos-Amaro.
Ten pretrial motions are before the Court. First, defendant Luis Carmona-Bernacet ("Carmona")’s moves to dismiss the fourth-superseding indictment. (Docket No. 743.) He also requests a Bill of Particulars and disclosure of the grand jury instructions. Id. Second, defendants Alan Lugo-Montalvo ("Lugo"), Fabiany Alméstica-Monge ("Alméstica"), and Rolando Rivera-Solís ("Rivera") request that the Court compel the United States to disclose the identity of an alleged government informant. (Docket Nos. 519 and 539.) Third, Alméstica, Lugo, and Rivera move for severance pursuant to Federal Rule of Criminal Procedure 14. (Docket Nos. 522, 523 and 547.) Fourth, Alméstica, Lugo, Rivera, and defendant Yadier Serrano-Canales ("Serrano") move to exclude uncharged murder evidence. (Docket Nos. 624 and 750.) Fifth, Lugo moves to exclude cellular phone evidence. (Docket No. 623.) Sixth, Lugo moves to exclude evidence of lawful employment. (Docket No. 621.) Seventh, Alméstica, Lugo, Rivera, and defendant Alex Burgos-Amaro ("Burgos") move to exclude evidence of religious affiliation. (Docket Nos. 548, 620 and 622.) Eighth, Alméstica and Rivera move to exclude evidence of a 2009 intervention pursuant to Federal Rule of Evidence 404(b) (" Rule 404(b)"). (Docket No. 553.) Ninth, Alméstica and Burgos move to exclude evidence of a 2007 intervention pursuant to Rule 404(b). (Docket No. 619.) Tenth, Alméstica moves to exclude evidence of a prior conviction. (Docket No. 618.)
For the reasons set forth below, Carmona's motion to dismiss is DENIED . (Docket No. 743.) Alméstica, Lugo, and Rivera's motions to disclose the identity of an alleged government informant are DENIED . (Docket Nos. 519 and 539.) Alméstica, Lugo, Rivera, and Serrano's motions to sever and exclude uncharged murder evidence are HELD IN ABEYANCE . (Docket Nos. 522, 523, 547, 624 and 750.) Lugo's motion to exclude cellular phone evidence is also HELD IN ABEYANCE. (Docket No. 623.) Lugo's motion to exclude evidence of lawful employment is DENIED WITHOUT PREJUDICE . (Docket No. 621.) Alméstica, Lugo, Rivera, and Burgos’ motion to exclude evidence of religious affiliation are DENIED . (Docket Nos. 548, 620 and 622.) Alméstica and Rivera's motion to exclude evidence of the 2009 intervention is DENIED . (Docket No. 553.) Alméstica and Burgos’ motion to exclude evidence of the 2007 intervention is DENIED . (Docket No. 619.) Lastly, Alméstica's motion to exclude evidence of a prior conviction is DENIED . (Docket No. 618.)
The allegations underlying this criminal action occurred between 2000 and 2014. (Docket No. 673.) During this timeframe, the defendants purportedly possessed and used firearms in furtherance of a drug-trafficking conspiracy. Id. Carmona, Serrano, Rivera, and Burgos are also charged with murder. Id. The drug-trafficking conspiracy count is foundational, serving as an anchor for the subsequent firearm and murder allegations.
Carmona, Serrano, Lugo, Alméstica, Rivera, and Burgos allegedly entered into a drug-trafficking conspiracy. (Docket No. 673 at p. 2.) The drug-trafficking organization ("DTO") sold crack, cocaine, and marihuana at drug distribution points in San Juan, Trujillo Alto, Guaynabo, and Bayamón. Id. at p. 3.
Members of this conspiracy assumed distinct roles and responsibilities. For instance, leaders "[had] final authority regarding all issues concerning the operation." Id. at p. 4. Violence, force, and intimidation ensured that enforcers, managers, and runners respected the DTO hierarchy. Id.
Two allegations differentiate this DTO from the norm. First, co-conspirators "employ[ed] other members of the conspiracy in their maintenance and service-related companies." Id. at p. 4. Essentially, the defendants operated a cleaning-company as "part ... of the conspiracy." Id. Second, DTO leaders practiced "the ‘Santeria’ religion to protect drug-trafficking activities." Id. at pp. 4-5. These leaders provided advice and "religious guidance" to co-conspirators. Id. at p. 5. They also supplied their religious followers with firearms, ammunition, and vehicles. Id.
On June 29, 2021, a grand jury returned a fourth-superseding indictment, charging Carmona, Serrano, Lugo, Alméstica, and Burgos with conspiracy to possess with intent to distribute controlled substances, in violation of 21 U.S.C. sections 846, 860 (count one), and possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. section 924(c)(1)(A) (count two). (Docket No. 673.)
The defendants allegedly formed an enterprise2 that engaged in racketeering activity, "consisting of" a drug-trafficking offense. Id. at p. 7.3 Despite specific reference to Serrano, Lugo, Alémstica, Rivera, and Burgos as members of the enterprise, only Carmona is charged with aiding and abetting the murder of William Castro-Vidot. Id. at p. 6. Carmona allegedly committed this murder "during and in relation to a crime of violence for which he may be prosecuted in a Court of the United States, that is, a violent crime in aid of racketeering activity in violation of Title 18, United States Code, Section 1959(a)(1)." Id. at p. 8.4
Counts three and four are nearly identical. Both allege that the defendants formed an enterprise. (Docket No. 673 at pp. 6-9.) Count four avers, however, that the racketeering activity consisted of:
murder, chargeable under Articles 26 (attempt), 82 (general murder statute), 83 (first degree and second degree murder), and 262 (conspiracy) of the 1974 Puerto Rico Penal Code, and Article 35 (attempt), 105 (general murder statute), 106 (first degree and second degree murder), and 249 (conspiracy) of the 2004 Puerto Rico Penal Code, and offenses involving trafficking in controlled substances in violation of Title 21, United States Code, Sections 841 and 846.
(Docket No. 673 at p. 9.) Only Carmona is charged with aiding and abetting the murder of René Cruz-Cuadrado. Id. at p. 10.
The substantive allegations in counts four and five are the same. Count five charges Carmona, Serrano, Rivera, and Burgos with the murder of Maurice Spagnoletti. Id. at p. 12. The following chart sets forth the offenses charged in the fourth-superseding indictment.
| Count | Offense | Defendant(s) |
| 1 | Conspiracy to Possess with Intent to Distribute Controlled Substances, 21 U.S.C. §§ 846, 869 | Carmona, Serrano, Lugo, Alméstica, Rivera, and Burgos |
| 2 | Possessing a Firearm in Furtherance of a Drug-Trafficking Crime, 18 U.S.C. § 924(c)(1)(A) | Carmona, Serrano, Lugo, Alméstica, Rivera, and Burgos |
| 3 | Use of a Firearm During and in Relation to a Crime of Violence Resulting in the Murder of William Castro-Vidot, 18 U.S.C. § 924(j)(1) | Carmona |
| 4 | Use of a Firearm During and in Relation to a Crime of Violence Resulting in the Murder of René Cruz-Cuadrado, 18 U.S.C. § 924(j)(1) | Carmona |
| 5 | Use of a Firearm During and in Relation to a Crime of Violence Resulting in the Murder of Maurice Spagnoletti, 18 U.S.C. § 924(j)(1) | Carmona, Serrano, Rivera and Burgos |
Carmona moves to dismiss every count of the fourth-superseding indictment. (Docket No. 643.) This motion is nothing more than a fishing expedition, fraught with disregard for well-established precedent.
The right to an indictment is rooted in the Bill of Rights and appurtenant legislation. Pursuant to the Fifth Amendment, "[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury." U.S. Cont. amend. V. The Sixth Amendment also prescribes that the accused shall have the right "to be informed of the nature and cause of the accusation." U.S. Cont. amend. VI. Congress subsequently clarified that the indictment "must be a plain, concise, and definite written statement of the essential facts constituting the offense charged." Fed. R. Crim. P. 7(c)(1). A defendant may request dismissal for inter alia a "lack of specificity" or "failure to state an offense." Fed. R. Crim. P. 12(b)(3).
The authority to indict rests exclusively with the grand jury, a "constitutional fixture in its own right." United States v. Williams, 504 U.S. 36, 47, 112 S.Ct. 1735, 118 L.Ed.2d 352 (1992). This body conducts an independent, secret investigation to determine whether there is probable cause to indict. In re United States, 441 F.3d 44, 57 (1st Cir. 2006) ( ) (internal citation and quotation marks omitted). By serving as an intermediary between the public and government officials, the grand jury prevents the commencement of "wrongful prosecution[s] by an overbearing state." United States v. Mills...
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United States v. Carmona-Bernacet
...are set forth in the Opinion and Order issued on April 25, 2022. See United States v. Carmona-Bernacet, Case No. 16-547, 600 F.Supp.3d 155, 2022 WL 1210933, 2022 U.S. Dist. LEXIS 75253 (D.P.R. Apr. 25, 2022) (Besosa, J.).On June 29, 2021, a grand jury returned a five-count, fourth supersedi......