United States v. Carmona-Bernacet

• Decision Date: 22 June 2022
• Docket Number: Criminal No. 16-547 (FAB)
• Citation: 608 F.Supp.3d 3
• 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

608 F.Supp.3d 3

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 June 22, 2022

Alberto R. Lopez-Rocafort, Victor O. Acevedo-Hernandez, AUSA, Gregory Bennet Conner, AUSA, Kelly Zenon-Matos, AUSA, United States Attorneys Office District of Puerto Rico, 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, San Juan, PR, 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.

OPINION AND ORDER

BESOSA, District Judge.

Before the Court is defendants Alan Lugo-Montalvo ("Lugo"), Fabiany Alméstica-Monge ("Alméstica"), Rolando Rivera-Solís ("Rivera"), and Yadiel Serrano-Canales ("Serrano")’s motions to sever and to exclude charged and uncharged murder evidence. (Docket Nos. 522, 523, 547, 624, 750, and 782.) Defendant Alex Burgos-Amaro ("Burgos") moves to exclude evidence pursuant to Federal Rule of Evidence 404(b), and requests the Court to hold an evidentiary hearing pursuant to Federal Rule of Evidence 104(a). (Docket No. 819.) For the reasons set forth below, the motions to sever and to exclude charged and uncharged murder evidence are DENIED . Burgos’ motion requesting the exclusion of evidence and an evidentiary hearing is also DENIED .

I. Background

The factual allegations pertaining to this criminal action 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 superseding indictment ("indictment") against defendants Luis Carmona-Bernacet ("Carmona"), Serrano, Lugo, Alméstica, Rivera, and Burgos (collectively, "defendants"). (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 René Cruz-Cuadrado ("Cruz"), respectively, 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 count alleges that Carmona, Serrano, Rivera, and Burgos murdered Maurice Spagnoletti ("Spagnoletti"), also in violation of VICAR. Id. at p. 12.

The United States intends to "present [evidence of several murders] at trial that are intrinsic to the charges in the superseding indictment." (Docket No. 703 at p. 1.) It maintains that this evidence is admissible "as to all the defendants to prove that they were members of the same enterprise and that the enterprise engaged in murder – elements for the offenses charged in Counts Three, Four, and Five." (Docket No. 703 at p. 10) (emphasis added).

Alméstica, Lugo, and Rivera move for severance, requesting that they "be tried separately from [Carmona, Serrano, Rivera, and Burgos]." (Docket Nos. 522, 523 and 547.) They assert that the jury will consider evidence pertaining to charged and uncharged murders in determining whether Alméstica and Lugo are guilty of counts one and two, and whether Rivera is guilty of counts one, two, and five. (Docket Nos. 522 and 523.) Rivera, Serrano, Alméstica, and Lugo move to exclude this evidence pursuant to Federal Rule of Evidence 404(b) (" Rule 404(b)"). (Docket Nos. 624 and 750.)

The Court held the severance and Rule 404(b) motions in abeyance, ordering the United States to disclose "how each murder, whether charged or uncharged, is relevant to the drug-trafficking conspiracy." Carmona-Bernacet, 600 F.Supp.3d at 184, 2022 U.S. Dist. LEXIS 75253, at *53. The United States complied, and the defendants responded. (Docket Nos. 796, 805—808 and 816.) The Court granted the United States leave to file a reply. (Docket No. 818.)

II. The Motion to Sever

"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).¹ Joint trials prevent inconsistent verdicts and conserve judicial resources. Id.; Zafiro v. United States, 506 U.S. 534, 537, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993) (noting that joint trials "promote efficiency and serve the interest of justice by avoiding the scandal and inequality of inconsistent verdicts."). This preference "is especially strong for coconspirators who are indicted together." United States v. Jett, 908 F.3d 252, 276 (7th Cir. 2018) ; see United States v. Colón-Miranda, 985 F. Supp. 36, 39 (D.P.R. 1997) (Fusté, J.).

The Court may, however, sever the trial of a defendant if "joinder [...] appears to prejudice" the United States or the defendant. Fed. R. Crim. P. 14(a). Severance is a preemptive measure, intended to reduce the "serious risk that a joint trial [will] compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence." Zafiro, 506 U.S. at 539, 113 S.Ct. 933.

To prevail, Rivera, Lugo and Alméstica and "must prove prejudice so pervasive that a miscarriage of justice looms." Id. (quoting United States v. Pierro, 32 F.3d 611, 615 (1st Cir. 1994) ); United States v. Tejeda, 481 F.3d 44, 55 (1st Cir. 2007) ("Prejudice means more than just a better chance of acquittal at a separate trial.") (quotation omitted). The Rule 14 standard places a "heavy burden" on Rivera, Lugo and Alméstica. United States v. Maravilla, 907 F.2d 216, 228 (1st Cir. 1990) ; United States v. Gutiérrez-Rodríguez, 480 F. Supp. 3d 380, 383 (D.P.R. 2020) ("A request for severance based on spillover prejudice requires a defendant to overcome a high threshold.") (Besosa, J.).

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). "[L]ess drastic measures, such as limiting instructions, often will suffice to cure any risk of prejudice." Zafiro, 506 U.S. at 539, 113 S.Ct. 933 ; see United States v. Baltas, 236 F.3d 27, 34 (1st Cir. 2001) (holding that a limiting instruction provides an adequate safeguard against evidentiary spillover prejudice).

A. Spillover Evidence

In joint trials, the risk of " ‘spillover’ may arise where evidence that is not admissible or should not be considered against one defendant on his or her own is admitted against a co-defendant." United States v. Cancel-Lorenzana, 28 F. Supp. 3d 138, 140 (D.P.R. 2014) (Besosa, J.); United States v. Gilbert, 92 F. Supp. 2d 1, 10 (D. Mass. 2000) ("Severance is appropriate when the evidence that would be presented at one trial would be inadmissible at a second trial.") (citing United States v. Diallo, 29 F.3d 23, 28 (1st Cir. 1994) ). Pursuant to Federal Rule of Criminal Procedure 14(a), prejudice resulting from spillover evidence may require the commencement of separate trials. See, e.g., United States v. Mardian, 546 F.2d 973 (D.C. Cir. 1976) (overturning the conviction of a defendant who had been tried jointly with three principal members of the Watergate conspiracy, all of whom played much more substantial roles in the crime over longer periods of time); United States v. Kelly, 349 F.2d 720, 759 (2d Cir. 1965) (holding that the district court erred in failing to sever the trial of three co-defendants, only two of whom "must have stamped in the eyes of the jurors as unscrupulous swindlers of the first rank").

Spillover evidence also refers to the "threat" that defendants "charged with only a minor role" will be "assess[ed]" according to the "extensive" evidence against other defendants. United States v. De La Paz-Rentas, 613 F.3d 18, 23 (1st Cir. 2010). "Because of the natural tendency to infer guilt by association, a defendant may suffer by being joined with another allegedly ‘bad man.’ " King v. United States, 355 F.2d 700, 704 (1st Cir. 1966). Severance need not occur, however, "[e]ven where large amounts of testimony are irrelevant to one defendant, or where one defendant's involvement in an overall agreement is far less than the involvement of others." United States v. Boylan, 898 F.2d 230, 246 (1st Cir. 1990). That a codefendant may be "unattractive to the jury" is generally not sufficient to warrant severance. 1A Charles Alan Wright et al. , Fed. Prac. & Proc. Crim. § 225 (5th ed. 2020); United States v. DeCologero, 530 F.3d 36, 53 (1st Cir. 2008) (holding that the "unsavoriness of one's codefendant (including past criminal conduct) is not enough, by itself, to mandate severance").

B. Evidence of Charged and Uncharged Murders Constitutes Direct Proof of a Drug-Trafficking Conspiracy

Referring to evidence of the charged and uncharged murders as "spillover" is a misnomer. This evidence is direct proof that Alméstica, Lugo, and Rivera engaged in a drug-trafficking conspiracy.

1. The Charged Murders

The VICAR counts pertain to the murders of: (1) Castro, (2) De La Cruz, and (3) Spagnoletti. (Docket No. 673.) According to the United States, the evidence will show that Carmona murdered Castro in retaliation for stealing kilograms of cocaine from the DTO. (Docket No. 796 at p. 5.) Carmona allegedly murdered Cruz "because he was suspected of being a snitch." Id. at p. 6. Spagnoletti recommended that Doral Bank terminate a cleaning contract with S.J. Tropical, a company owned by Rivera. Id. at p. 8. This company...