United States v. Giraldo-Serna

• Decision Date: 06 August 2015
• Docket Number: Criminal Action No. 04–114–1 (RBW)
• Citation: 118 F.Supp.3d 377
• Parties: United States of America, v. Hernan Giraldo–Serna, Defendant.
• Court: U.S. District Court — District of Columbia

118 F.Supp.3d 377

United States of America,

v.Hernan Giraldo–Serna, Defendant.

Criminal Action No. 04–114–1 (RBW)

United States District Court, District of Columbia.

Signed August 6, 2015

Filed August 7, 2015

MEMORANDUM OPINION

Reggie B. Walton, United States District Judge

In this criminal matter, the defendant, Hernan Giraldo–Serna, was indicted on, and pleaded guilty to, one count of conspiring to manufacture and distribute five or more kilograms of cocaine, with the intent or knowledge that the cocaine would be unlawfully imported into the United States from Colombia. Zulma Natazha Chacín de Henríquez, Nadiezhda Natazha Henríquez Chacín, and Bela Henríquez Chacín (collectively, the "movants"), have filed a motion, contending that the defendant killed their father, Julio Henríquez, in furtherance of the defendant's charged offense, and thus, their father is a "victim" of the charged offense, and they are entitled to statutory rights provided by the Crime Victims' Rights Act ("CVRA"), 18 U.S.C. § 3771 (2006).¹ Motion to Enforce Rights Under the Crime Victims' Rights Act by Zulma Natazha Chacín de Henríquez, Nadiezhda Natazha Henríquez Chacín and Bela Henríquez Chacín ("Movants' Mot.") at 1–8. After careful consideration of the submissions on this issue,² as well as the parties' oral arguments at the April 21, 2015 hearing, the Court concludes that it must deny the motion.³

I. BACKGROUND

A. Statutory Background

The CVRA guarantees to the victims of federal crimes an array of substantive and participatory rights, namely:

(1) The right to be reasonably protected from the accused[;]

(2) The right to reasonable, accurate, and timely notice of any public court proceeding, or any parole proceeding, involving the crime or of any release or escape of the accused[;]

(3) The right not to be excluded from any such public court proceeding, unless the court, after receiving clear and convincing evidence, determines that testimony by the victim would be materially altered if the victim heard other testimony at that proceeding[;]

(4) The right to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing, or any parole proceeding[;]

(5) The reasonable right to confer with the attorney for the Government in the case[;]

(6) The right to full and timely restitution as provided in law[;]

(7) The right to proceedings free from unreasonable delay[;] and

(8) The right to be treated with fairness and with respect for the victim's dignity and privacy.

18 U.S.C. § 3771(a)(1)-(8). "In any court proceeding involving an offense against a crime victim, the court shall ensure that the crime victim is afforded" these rights. Id. § 3771(b)(1). A "crime victim" is defined in the CVRA as "a person directly and proximately harmed as a result of the commission of a [f]ederal offense...." Id. § 3771(e).

B. The Defendant⁴

During the relevant timeframe, the United Self–Defense Forces of Colombia (the "AUC") "was a federation of right-wing, paramilitary groups" that undertook "responsibility for protecting Colombian citizens from left-wing, guerilla paramilitary organizations dedicated to the overthrow of the Colombian government." Statement of Facts ¶ 1. One such group within the AUC, the Self–Defense Forces of the Campesinos of Magdalena and Guajira ("ACMG"), was led by the defendant. Id. The ACMG would later merge with another paramilitary group and would come to be known as the "Bloque Tayrona" or the "Tayrona Resistance Front." Id. The Bloque Tayrona "operated along the northern Caribbean coast of Colombia," id., and "controlled areas ... used by individuals involved in the growing, processing, manufacturing, and transportation of cocaine," id. ¶ 2. "This cocaine would eventually be transported to beaches on the northern coast of Colombia." Id. Once the cocaine reached the northern coast of Colombia, it "would be placed into so-called ‘go-fast’ boats," and "[t]he go-fast boats would leave ... for destinations in the [Caribbean], Central America[,] and Mexico." Id. ¶ 3. "The cocaine was then received by other drug trafficking organizations in those regions, and later shipped to the United States...." Id.

The Bloque Tayrona, "[i]n large part, ... funded its anti-guerilla operations through ‘taxes' imposed by the defendant on cocaine manufacturers and traffickers operating" in the areas that it controlled. Id. ¶ 2. These "war taxes," id. (internal quotation marks omitted), would be paid "[a]t the time the loads [of cocaine] were launched" from the coast, id. ¶ 5. In exchange for these taxes, the Bloque Tayrona "ensured that traffickers were not molested by left-wing[,] paramilitary groups or other criminal elements, and would keep a lookout for law enforcement presence in the area." Id. ¶ 6. "As part of this security, the defendant ... would coordinate and make arrangements ... to ensure that ... troops would be present in the area to provide additional perimeter security during the actual loading of cocaine into the go-fast boats; to perform surveillance on Colombian law enforcement authorities and rival drug trafficking groups; and to monitor and relay communications within various units of the ... Bloque Tayrona." Id.

In March 2005, the grand jury charged the defendant in a superseding indictment with one count of conspiracy to manufacture and distribute five kilograms or more of cocaine, intending and knowing that the cocaine would be imported into the United States, in violation of 21 U.S.C. §§ 959(a), 960(a)(3), 960(b)(1)(B)(ii), 963. March 2, 2005 Second Superseding Indictment ("Indictment") at 1–3; see also Def.'s Opp'n at 2; Gov't Resp. II at 1. Colombia extradited the defendant to the United States in 2008, and he eventually pleaded guilty to the conspiracy charge in January 2009. Gov't Resp. II at 1.

C. The Decedent

On February 4, 2001, Julio Eustacio Henríquez Santamaria ("Henríquez") attended "a meeting" in Santa Marta, a city along the northern coast of Colombia, with other members of "Madre Tierra," an "association [Henríquez] had founded." Gov't Resp. I, Exhibit ("Ex.") 7 (English Translation of January 2009 Republic of Colombia Criminal Court Opinion ("Columbian Opinion")) at 4; see also id. at 1; Gov't Resp. I, Ex. 6 (English Translation of March 2007 Colombian Prosecutor Statement ("Colombia Prosecutor Statement")) at 1. Through this organization, Henríquez sought to organize local farmers and encourage them to use their "properties for cacao crops, in an attempt to eradicate the coca crops." See Gov't Resp. I, Ex. 6 (Colombia Prosecutor Statement) at 1–2; see also id. at 19 ("project had two goals, first reforesting a part of the mountains with cacao crops in order to help the farmers financially because [Henríquez] had a lot of experience producing cacao and wanted to help many people in the area with it[,] [and second], he wanted the area to be a definite tourist destination for visits to indigenous farming areas and an ecological project because he had always loved the land and wanted to preserve it"); id. at 21–22, 23. On the same day as the meeting, Henríquez was kidnapped by paramilitary forces under the direction of the defendant. Id. at 2, 4, 5, 12, 14, 15. Henríquez was never seen again. Id. at 14.

The circumstances surrounding Henríquez's disappearance were investigated by a Santa Marta Prosecutor. See id. at 1–2, 36. The prosecutor concluded that the defendant abducted and killed Henríquez for several reasons. First, the defendant "disagreed" with the objectives of Henríquez's "Madre Tierra" association. See, e.g., id. at 10, 22, 24, 26, 31; Gov't Resp. I, Ex. 8 (English Translation of Declaration of Carmelo Sierra–Urbina ("Sierra–Urbina Decl.")) at 5. Second, the defendant had previously told Henríquez to leave the Santa Marta area, but "he never obeyed the order to leave...." Gov't Resp. I, Ex. 6 (Colombia Prosecutor Statement) at 2; see also id. at 17, 28, 30–31, 34, 35, 45; Ex. 8 (Sierra–Urbina Decl.) at 1, 6. Third, Henríquez was a former member of "M–19," a guerilla group, who had been reincorporated into civil society. See Gov't Resp. I, Ex. 6 (Colombia Prosecutor Statement) at 13, 20, 21, 22, 31, 32, 33; see also id. at 24 (Henríquez received "threats" from the defendant as a result of "his work as a peace messenger" in the Santa Marta area); id. at 26 (Henríquez "had been executed because apparently he had been reincorporated into civil society from a subversive group"); Ex. 8 (Sierra–Urbina Decl.) at 9. Many years later, a Colombian criminal court held the defendant accountable for the disappearance and death of Henríquez, Gov't Resp. I, Ex. 7 (Columbian Opinion) at 14, and confirmed the Santa Marta prosecutor's findings as to why the defendant killed him, see id. at 1, 3, 5, 6, 7, 12, 14. In light of Henríquez's death, the movants seek to enforce what they believe are their statutory rights afforded to victims under the CVRA. Movants' Mot. at 1–8. They sought intervention in this matter in April 2010, after the defendant entered his guilty plea. Movants' Opp'n at 10. The United States and the defendant oppose the motion.

II. ANALYSIS

The heart of the dispute underlying the pending motion is the scope of the defendant's charged criminal conduct in this case that must be considered in determining whether Henríquez was directly and proximately harmed by that conduct. See, e.g., Movants' Opp'n at 12–13; Movants' Submission I at 3–4, Movants' Submission II at 8. The defendant and the government insist that the Court need look no further than the elements of the offense for which the defendant accepted a guilty plea to determine the relevant criminal conduct under the CVRA. Def.'s Opp'n at 3–9; Gov't Resp. II at 4. The movants, on the other hand, urge the Court to dig deeper and scrutinize "how the conspiracy was actually committed," in assessing whether they qualify as victims under the CVRA. Movants' Submission I at 5. The Court need not resolve that dispute, as either approach yields...