United States v. Candelario-SantanaUnited States v. Candelario-Santana
BESOSA, District Judge.
Five motions are before the Court. First, defendant Alexis Candelario-Santana (“Candelario“) moves to dismiss counts 2 through 19 of the third-superseding indictment. (Docket No. 1699.) Second, Candelario moves to preclude the United States from eliciting hearsay statements from putative trial witness Amarylis Fonseca-Matías (“Fonseca“). (Docket No. 1696.) Third, Candelario requests that the Court bar the admission of crime scene photographs. (Docket No. 1693.) Fourth, the United States moves to preclude expert eyewitness testimony. (Docket No. 1718.) Fifth, Candelario moves to compel the United States to provide a specific notice of its case-in-chief. (Docket No. 1705.) For the reasons set forth below, Candelario‘s motion to dismiss, motion to preclude hearsay statements, and motion for a specific notice of evidence are DENIED. (Docket Nos. 1696, 1699 and 1705.) His motion to bar the admission of crime scene photographs is DENIED WITHOUT PREJUDICE. (Docket No. 1693.) Lastly, the United States motion to exclude expert eyewitness testimony is GRANTED. (Docket No. 1718.)
I. Background
On October 19, 2012, the grand jury returned a 52-count third-superseding indictment against Candelario, Carmelo Rondón-Feliciano (“Rondón“), Wilfredo Candelario-Santana, and David Oquendo-Rivas (“Oquendo“). (Docket No. 579.)1 This indictment alleges that Candelario participated in an illicit enterprise in violation of the Racketeer Influenced and Corrupt Organizations (“RICO“) Act,
II. Candelario‘s Motion to Dismiss
Candelario seeks dismissal of counts 2 through 19 because, he argues, “murder in violation of Article 105 of the 2004 Puerto Rico Penal Code is not categorically a crime of violence.” (Docket No. 1699 at p. 1.) An indictment is sufficient “if it contains the elements of the offense charged, fairly informs the defendant of the charges against which he must defend, and enables him [or her] to enter a plea without fear of double jeopardy.” United States v. Ford, 839 F.3d 94, 104 (1st Cir. 2016) (internal quotation marks and citation omitted). “[I]t is generally sufficient that an indictment set forth the offense in the words of the statute itself as long as those words [contain] all the elements of the offense without any uncertainty or ambiguity.” United States v. Brown, 295 F.3d 152, 154 (1st Cir. 2002) (internal quotation marks and citation omitted); see United States v. Rodríguez-Rivera, 918 F.3d 32, 34 (1st Cir. 2019) (“Unlike a civil complaint that need allege facts that plausibly narrate a claim for relief, a criminal indictment need only apprise the defendant of the charged offense.“) (internal quotation marks and citation omitted).
To adjudicate a motion to dismiss, courts “must take the allegations in the indictment as true,” cognizant that “the question is not whether the government has presented enough evidence to support the charge, but solely whether the allegations in the indictment are sufficient to apprise the defendant of the charged offense.” United States v. Ngige, 780 F.3d 497, 502 (1st Cir. 2015) (citation omitted). Notably, the indictment need not provide a preview of the evidence to be adduced at trial. See United States v. Stepanets, 879 F.3d 367, 372 (1st Cir. 2018) (noting that the “government need not recite all of its evidence in the indictment“).
A. The Violent Crime in Aid of Racketeering Activity Act
Congress enacted VICAR in 1984 “as the violent crime corollary to the RICO statute.” United States v. Savage, 970 F.3d 217, 273 (3rd Cir. 2020) (quotation omitted). To secure a VICAR conviction, the United States must prove that:
(1) an enterprise existed; (2) the enterprise affected interstate commerce; (3) the enterprise was engaged in racketeering activity; (4) the defendant was a member of the enterprise, (5) the defendant committed the alleged crime of violence, and (6) the defendant committed the crime [“for a promise or agreement to pay, anything of pecuniary value,” or] in furtherance of his membership in the enterprise.
United States v. Brandao, 448 F. Supp. 2d 311, 327 (D. Mass. 2006); see
B. The Use of a Firearm During and in Relation to a Crime of Violence
Congress enacted
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Candelario attacks the validity of the third-superseding indictment by asserting that Article 105 “does not qualify as a ‘crime of violence.‘” (Docket No. 1699 at p. 5.) Without a viable predicate offense, he argues, the VICAR and section 924(j) counts are doomed.
C. The Singular VICAR Counts
Both VICAR and section 924(j) require that the United States prove that the defendant committed a predicate “crime of violence.” See
1. The Categorical Approach
Commonsense dictates that murder is a crime of violence. Indeed, “[murder] is one of the worst violent crimes. And humanity has considered it so ever since Cain slew Abel.” Battle v. United States, Case No. 21-5457, 2023 U.S. Dist. LEXIS 6157, at *8 (6th Cir. 2023) (Thapar, J., concurring). To determine if an offense qualifies as a crime of violence, courts frequently employ the “categorical approach.” This analysis is convoluted and, in many instances, requires courts to suspend logic. In fact, Justice Samuel Alito pointedly observed that judges must “delve into pointless abstract questions” to apply this approach. Mathis v. United States, 579 U.S. 500, 543-44 (2016) (Alito, J., dissenting); United States v. Rivera-Carrasquillo, 933 F.3d 33, 55-56 (1st Cir. 2019) (“Properly applying force clause precedent is no picnic (an understatement if ever there was one), seeing how the ‘crime of violence’ definition is ‘complex and unclear.‘“) (citation omitted); López-Aguilar v. Barr, 948 F.3d 1143, 1149 (9th Cir. 2020) (“The categorical approach requires us to perform absurd legal gymnastics, and it produces absurd results.“) (Graber, J., concurring).
The Supreme Court first adopted the categorical approach in United States v. Taylor, 495 U.S. 575 (1990). The Taylor court assessed whether a violation of the Missouri burglary statute constituted a “crime of violence” for purposes of the Armed Career Criminal Act,
Pursuant to the categorical approach, courts “[look] only to the statutory definitions of the prior offenses, and not to the particular facts underlying those convictions.”
Courts then compare the elements of the predicate offense (i.e. Article 105) with the elements of the generic federal offense (i.e. “crime of violence” as defined in the force clause). See United States v. Castro-Vázquez, 802 F.3d 28, 35 (1st Cir. 2015) (citation omitted).
Both the categorical and modified categorical approaches conclude with an element-by-element comparison between the predicate and statutory or generic offense. For instance, a predicate offense is a “crime of violence” pursuant to
2. The Categorical Approach is Inapplicable to the Singular VICAR Counts
The VICAR statute provides that, inter alia, murder, kidnaping, assault with a deadly weapon, and “[crimes] of violence against any individual in violation of the laws of any State or the United States” constitute predicate offenses for illicit racketeering activity.
The Fourth Circuit Court of Appeals’ decision in United States v. Keene is illustrative. 955 F.3d 391 (4th Cir. 2020). In Keene, the contested VICAR count rested on the “Virginia prohibition against brandishing a firearm.”
The Keene court reversed this decision, holding that the VICAR statute is “not subject to analysis under the categorical approach.”
The parties do not cite, and the Court is unaware of, binding precedent from the First Circuit Court of Appeals. Every court confronted with this issue has, however, espoused the analysis set forth by the Fourth Circuit Court of Appeals. See United States v. Elmore, Case No. 13-764, 2022 U.S. Dist. LEXIS 154596, at *33 (N.D. Cal. Aug. 27, 2022) (holding that a VICAR offense “must qualify under state or federal law and must qualify as ‘murder’ as the VICAR statute uses that term“) (emphasis in original); United States v. Jones, Case No. 13-205, 2022 U.S. Dist. LEXIS 230229, at *18 (E.D. La. Dec. 22, 2022) (“This Court joins the numerous district courts that have adopted the Fourth Circuit‘s decision in Keene in holding that the categorical approach should not be used to determine whether a defendant‘s state court crime constitutes a predicate crime under the VICAR statute.“); United States v. Ray, Case No. 20-110, 2022 U.S. Dist. LEXIS 212735, at *51-53 (S.D.N.Y. Nov. 23, 2022) (holding that the categorical approach does not apply to singular VICAR counts); cf Johnson v. United States, 64 F.4th 715 (6th Cir. 2023) (adopting the rationale set forth in Keene, holding that “the categorical approach does not apply to a RICO prosecution because it is not consistent with the text of
The dispositive inquiry for the singular VICAR counts is whether the third superseding-indictment sufficiently alleges that: (1) Candelario committed a state offense, and (2) whether Candelario violated Article 105 of the Puerto Rico Penal Code and generic murder. Counts 2 through 10 aver that Candelario “caused the death of [eight persons] intentionally and with premeditation, in violation of Puerto Rico Penal Code Article 105 (2004).” (Docket No. 579 at pp. 12-21.) Accordingly, the third superseding-indictment satisfies the first Keene requirement. See United States v. Mills, 378 F. Supp. 3d 563, 576 (E.D. Mich. 2019) (“Although [the defendant] demands that an indictment alleging a violation of VICAR must also allege the elements required to prove the underlying state-law offense, this is not necessary.“) (citing United States v. Fernández, 388 F.3d 1199, 1219-1220 (9th Cir. 2009)).
The singular VICAR counts also charge Candelario with committing generic murder. This offense is accomplished by “causing the death of another person either intentionally, during the commission of a dangerous felony, or through conduct
Candelario argues that Article 105 prohibits reckless homicide, suggesting that the VICAR statute mandates a more culpable mens rea. Docket No. 1699 at p. 15; citing Borden v. United States, 141 S. Ct. 1817, 1835 (2021) (holding that “the elements clause‘s definition of ‘violent felony’ – an offense requiring the ‘use of physical force against the person of another,‘” does not criminalize reckless conduct). He relies on inapposite precedent, however, citing case law pertaining to the Armed Career Criminal Act.
D. The Section 924(j) Counts
Unlike the singular VICAR counts, the section 924(j) allegations are subject to the categorical approach. See United States v. Cruz-Rivera, 904 F.3d 63, 66 (1st Cir. 2018) (“To assess whether a predicate crime qualifies as a ‘crime of violence,’ under the force clause of § 924(c), we apply a categorical approach.“) (citation omitted). If “the least culpable conduct” prescribed by Article 105 “has an element the use, attempted use, or threatened use of physical force against the person . . . of another,” this statute qualifies as a crime of violence. United States v. Báez-Martínez, 950 F.3d 119, 124 (1st Cir. 2020).
As a preliminary matter, VICAR as a predicate crime of violence for a section 924(j) charge is divisible “on its face” because each of its “statutory alternatives carry a different punishment” (i.e. murder, kidnapping, and assault with a deadly weapon). Mathis, 579 U.S. at 518; see United States v. Morris, 61 F.4th 311, 320 (2d Cir. 2023) (“Morris‘s § 924(c) conviction
on Count Two is sustained because, after applying the modified categorical approach prescribed by the Supreme Court, we conclude that the predicate crime of violence – VICAR assault with a dangerous weapon premised on a violation of N.Y. Penal Law . . . qualifies as a crime of violence that supports a conviction under
Candelario contends that Article 105 is indivisible, urging the Court to apply the categorical approach. (Docket No. 1699 at p. 7.) This statute is, however, divisible. See Ramírez-Rivera v. United States, Case No. 17-1206, 2021 U.S. Dist. LEXIS 258910, at *19 (D.P.R. Sept. 30, 2021) (Arias-Marxuach, J.) (holding that Articles 105 and 106, “as [they pertain] to first degree murder,” are divisible statutes). Candelario‘s analysis is flawed from its inception, citing a Puerto Rico Supreme Court case for the proposition that Article 105 is “only ‘one’ offense.” Docket No. 1699 at p. 7 (citing Pueblo v. Roche, 195 D.P.R. 791 (2016)). The First Circuit Court of Appeals has held, however, that the categorical approach “[begins] with the text of the statute.” King, 965 F.3d at 68 (citing Mathis, 136 S. Ct. at 2256-57)).
Article 105 prohibits the killing of “another human being with intent.”
(a) Any murder committed by means of poison, stalking, or torture, or with premeditation.
(b) Any murder committed as a natural consequence of the attempt or consummation of aggravated arson, sexual assault, robbery, aggravated burglary, kidnapping, child abduction, serious damage or destruction, poisoning of bodies of water for public use, mayhem, escape, intentional abuse or abandonment of a minor.
(c) The murder of a law enforcement officer, school police, municipal guard or police officer, marshal, prosecutor, solicitor for minors’ affairs, special family solicitors for child abuse, judge or custody officer in the performance of his duty, committed while carrying out, attempting or concealing a felony.
First and second degree murders are punishable by a ninety-nine year term of imprisonment, and “penalty of imprisonment between fifteen (15) years and one day and twenty-five (25) years,” respectively. See
The Fourth Circuit Court of Appeals’ decision in United States v. Jackson is informative. 32 F.4th 278 (2022). The Jackson court held that the federal murder statute,
Every murder [1] perpetuated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing; or [2] committed in
the preparation of, or attempt to perpetrate, any arson, escape, murder, kidnaping, treason, espionage, sabotage, aggravated sexual abuse or sexual abuse, child abuse, burglary, or robbery; or [3] as part of a pattern or practice of assault or torture against a child or children; or [4] perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed, is murder in the first degree.
Candelario asserts that Pueblo v. Roche, 195 D.P.R. 791 (2006), is controlling, compelling this Court to conclude that Article 105 is indivisible. (Docket No. 1699 at pp. 6-7.) According to Candelario, the Roche court “held that Article 105 of the 2004 Penal Code of Puerto Rico . . . is only ‘one’ offense but is divided into degrees.” Id. (citing 195 D.P.R. at 796). The United States notes, however, that while Roche held that murder is one offense with no statute of limitation, it emphasized that it is separated by degrees. Docket No. 1714 at p. 11; see Roche, 195 D.P.R. at 809. Consequently, Roche is inapposite.7
Because Article 105 is a divisible statute, this Court must “consult approved Shepard documents in order to” identify which first-degree murder offense is charged in the third-superseding indictment. Faust, 853 F.3d at 59; see Descamps v. United States, 570 U.S. 254, 263 (2013) (noting that the Shepard documents include the indictment). Candelario allegedly violated Article 105 “intentionally” and “with premeditation.” See Docket No. 579 at p. 14. The intentional murder of a human being is categorically a crime of violence, falling within the ambit of the force clause. See Ramírez-Rivera, 2021 U.S. Dist. LEXIS 258910, at *24-25 (“[The] record and commonsense guide the Court‘s interpretation that first degree murder is a crime of violence and that the predicate offense of [the defendant‘s]
Candelario relies heavily on United States v. Borden, a recent Supreme Court decision holding that “[offenses] with a mens rea of recklessness do not qualify as violent felonies under ACCA.” Docket No. 1699 at pp. 10-12; 141 S. Ct. at 1834. Candelario is not, however, charged with committing a reckless crime of violence. Premeditated murder entails a more egregious state of mind. See
Because VICAR premised on Article 105 is categorically a crime of violence, the
III. Candelario‘s Motion to Bar Hearsay Statements
Candelario moves to preclude the United States from eliciting purported hearsay statements from putative trial witness Amarylis Fonseca-Matías. (Docket No. 1696.) Hearsay is an out-of-court statement offered “in evidence to prove the truth of the matter asserted in the statement.”
A. The Voice Identification
Fonseca is the wife of Wilfredo (“Rufo“) Semprit-Santana, the owner of La Tómbola. (Docket No. 896 at p. 4.) Candelario is Semprit-Santana‘s cousin and former employer. Id. at 15. Rufo and Fonseca celebrated the grand opening of La Tómbola on October 17, 2009, hosting approximately 30 people inside the establishment. Id. at p. 8. She heard an eruption of gunfire at 11:30 p.m. Id. Fonseca “hadn‘t even taken a step when” a bullet hit her neck. Id. at p. 9. “[T]he shooting continued for minutes.” Id. at p. 9. A man then yelled, “[nobody‘s] getting out of here alive, puñeta, God dammnit.” Id. at p. 10. At trial, Fonseca identified this person as Candelario based on the sound of his voice. Id.
Despite sustaining a gunshot wound to the neck, Fonseca remained conscious, observed dead bodies on the floor, and noted the scent of blood. Id. at p. 10. A person then “passed between [her] legs, [shooting her] at point blank” seven times in the arm, cheek, and mouth. Id. at p. 11. Subsequently, Rufo and an acquaintance transported Fonseca to a hospital. Id. at p. 13.
The first trial occurred in 2013, nearly four years after the deadly attack. Fonseca did not identify Candelario‘s voice until the evening before her testimony, however, providing fodder for cross-examination. Id. at pp. 23-24. Defense counsel confirmed that Fonseca initially informed the FBI that the voice belonged to a male, but that she “wasn‘t sure who.” Id. at p. 41. Fonseca explained, however, that “[it] was not a matter of not being able to identify the voice, because I did identify the voice. The thing is I didn‘t dare say.” Id.
Candelario presented a theory of mistaken identification. At closing argument, defense counsel claimed that “Alexis was not there that night . . . He did not participate in it. He did not plan it. He did not carry it out. He simply wasn‘t there.” (Docket No. 1207.) He also portrayed Fonseca as an unreliable witness. Id. at p. 61. Indeed, defense counsel argued explicitly that Fonseca “[was] lying when she said she identified Alexis‘s voice at La Tómbola.” Id. at p. 117.
B. Fonseca‘s Pretrial Voice Identification is Admissible
Pursuant to
Candelario will have the opportunity to cross-examine Fonseca at trial. See United States v. López, 271 F.3d 472, 482 (3d Cir. 2001) (“Any concerns regarding conditions or circumstances [of the pretrial identification] that might bear on reliability are matters going to the weight of the evidence, which can be addressed on cross-examination, and should not affect the admissibility of the statement.“). The contested statements pertain to a voice identification. See Cardoso v. Roden, Case No. 09-11058, 2010 Dist. LEXIS 141767, at *6-8 (D. Mass. Aug. 25, 2010) (noting that the witness “told her mother” that she “recognized [the defendant‘s] voice” shortly after the crime, triggering the hearsay exclusion set forth in the state law counterpart to 801(d)(1)(C)). Accordingly, Fonseca‘s statements to her sisters, mother, and husband concerning the identification of Candelario‘s voice are not hearsay.
Candelario sets forth four reasons in support of his motion to bar Fonseca‘s pretrial voice identification. First, Candelario maintains that Fonseca‘s statements are not “identification[s].” (Docket No. 1712 at p. 7.) Second, her “statements to her relatives did not occur after she had an opportunity to ‘perceive’ Mr. Candelario following La Tómbola shooting as required by the rule.” Id. Third, Rule 801(d)(1)(C) “does not permit the prior statements to ‘corroborate’ in-court testimony showing that the defendant ‘did it.“’ Id. Fourth, he claims that “no in-court identification issue exists in this case and there is no inconsistency between Fonseca‘s trial testimony and her out-of-court statement.” Id. at p. 8.
Candelario cites no authority for the proposition that voice identifications fall beyond the purview of Rule 801(d)(1)(C). The Court has no reason to differentiate voice from sight identifications. That the pretrial voice identifications may corroborate Fonseca‘s in-court testimony is immaterial. Candelario conflates the hearsay exclusion in Rule 801(d)(1)(C)
Lastly, Rule 801(d)(1)(C) sets forth no requirement that the witness identify the defendant at trial. Fonseca‘s statements are “admissible nonhearsay even if [she] disavows the earlier identification or fails to identify [Candelario] at trial.” Id. (citing López, 271 F.3d at 282 (affirming the admission of a pretrial identification even though the trial witness “denied making any such statement“)); United States v. Elemy, 656 F.2d 507, 508 (9th Cir. 1981) (“The reasons [for adopting Rule 801(d)(1)(C)] are fully applicable when the person who testifies to the statement of identification is not the person who uttered it, so long as the latter also testifies and is available for cross-examination.“); see United States v. Cardena, 842 F.3d 959, 990 (7th Cir. 2016) (“All that [Rule 801(d)(1)(C)] requires is that the declarant testifies and is subject to cross-examination, which Ávila was, and that the statement is one of identification, which it was.“). Consequently, Candelario‘s motion to preclude Fonseca‘s pretrial identifications to her sister, mother, and husband is DENIED. Because this disposition rests on Rule 801(d)(1)(C), the Court need not address the parties’ Rule 801(d)(1)(B) arguments. See United States v. Bracy, Case No. 20-483, 2022 U.S. LEXIS 22795, at *16 (E.D.N.Y. Dec. 19, 2022) (“Having granted the motion on Rule 801(d)(1)(C) grounds, I do not reach the government‘s argument regarding admissibility under Rule 801(d)(1)(B)“).
IV. Candelario‘s Motion to Bar Gruesome Crime-Scene Photographs
Candelario moves for an order compelling the United States “specify the particular photographs they [it] intends to submit” at trial, and to bar the admission of “gruesome dead bodies photographs.” (Docket No. 1693 at p. 4.) “[This] evidentiary account of what a defendant has thought and done can accomplish what no set of abstract statements ever could, not just to prove a fact but to establish its human significance.” United States v. Sampson, 486 F.3d 13, 43 (1st Cir. 2007) (affirming the use of autopsy photographs in a death penalty case). The United States intends to use the autopsy photographs to “corroborate the testimony of the cooperating witnesses who will describe who participated in the murders, where the murders took place, and how the victims were killed.” (Docket No. 1703 at p. 3.)
While Candelario may be willing to stipulate the cause of the victim‘s death, “[t]he prosecution ordinarily may not be forced to eliminate gruesome details of a killing . . . or the degree of malevolence exhibited by the defendant through a defense-proffered stipulation.” United States v. Tavares, 21 F.3d 1, 3 (1st Cir. 1994) (en banc). The United States may present crime-scene photographs within limits to be determined at trial. Consequently, the Court DENIES without prejudice Candelario‘s request to preclude these photographs.
V. Candelario‘s Request for a Specific Notice of Evidence
Candelario argues that he cannot “navigate the monumental discovery in
The United States has no obligation to specify which photographs it intends to admit into evidence at trial. Pursuant to
VI. The United States’ Motion to Preclude Expert Eyewitness Testimony
The United States seeks to preclude expert testimony from Brian Cutler (“Cutler“), a purported expert on eyewitness identification. (Docket No. 1718.) Candelario maintains that Cutler‘s testimony will “help the jury weigh the identification‘s reliability knowing that some circumstances present in this case contradict their commonsense understandings.” (Docket No. 1724 at p. 12.)
A. Federal Rule of Evidence 702
Pursuant to
The Rule 702 analysis is pragmatic, subject to an abuse of discretion standard of review. See Packgen v. Berry Plastics Corp., 847 F.3d 80, 85-86 (1st Cir. 2017). In Daubert, the Supreme Court outlined four nonexclusive, non-dispositive factors to assist trial courts in determining whether an expert‘s methodology is scientifically valid and whether it can be reliably applied to the facts in issue. 509 U.S. at 593-94. These include: (1) whether the technique can be or has been tested; (2) whether the technique has been subjected to peer review; (3) the known or potential error rate; and (4) a degree of acceptance within the relevant
B. The Eyewitness Identification Expert
The jury has no use for expert testimony pertaining to conventional wisdom and commonsense. See United States v. Montás, 41 F.3d 775, 784 (1st Cir. 1994) (“Expert testimony on a subject that is well within the bounds of a jury‘s ordinary experience generally has little probative value.“); United States v. Zajanckauskas, 441 F.3d 32, 39 (1st Cir. 2006) (“Expert testimony does not assist where the trier of fact has no need for an opinion because it can be derived from commonsense, common experience, the trier of fact‘s own perceptions, or simple logic“) (internal citation and quotation omitted); see e.g., United States v. Sebaggala, 256 F.3d 59, 65 (1st Cir. 2001) (“Here, commonsense supports the district court‘s determination that jurors would understand, without the aid of expert testimony, that an individual whose primary language is other than English might have difficulty comprehending bureaucratic forms.“).
The dispositive question before the Court is whether an eyewitness expert will assist the jury in determining whether the eyewitness identifications are reliable. See Ruiz-Troche v. Pepsi Cola of Puerto Rico Bottling Co., 161 F.3d 77, 81 (1st Cir. 1998) (holding that expert testimony “must be relevant not only in the sense that all evidence must be relevant [. . .] but also in the incremental sense that the expert‘s opinion, if admitted, likely would assist the trier of fact to understand or determine a fact in issue“). Indeed, “trial courts have long hesitated to admit expert evidence purporting to identify flaws in eyewitness identification: for example, courts have said that the jury could decide the credibility issues itself.” United States v. Brien, 59 F.3d 274, 277 (1st Cir. 1995).
The First Circuit Court of Appeals has, however, “declined to lay down a general rule” regarding identification expert witnesses. United States v. Jones, 689 F.3d 12, 18 (1st Cir. 2012); see United States v. Stokes, 388 F.3d 21, 26 (1st Cir. 2004) (noting that district courts “should examine each case one by one, taking into account such concerns as the reliability and helpfulness” of the identification expert witness); Brien, 59 F.3d at 276-77 (“[Quite] possibly an expert such as a psychologist familiar with identification problems could give the jury background information about the mechanism of memory, types of errors, error rates, and other information not commonly possessed by the jury – information that may even be at odds with what a judge or jury might expect.“); United States v. Shay, 57 F.3d 126, 131 (1st Cir. 1995) (noting that “no constitutional provision, law or rule requires the automatic exclusion of expert testimony simply because it concerns a credibility question“).
To determine whether this type of testimony is admissible, courts consider the importance of the identification, the “nature of the proposed expert testimony,” and “alternative means of providing information to the jury” (i.e. jury instructions). Id. at 19 (affirming the exclusion of testimony from an expert stating that “stress can hinder identification . . . [and] that a witness can be highly confident but wrong” in part because the “judge was fully entitled to conclude that this general information could be more readily and efficiently conveyed by instructions rather than through dueling experts“). The effectiveness of cross-examination is also relevant to the Court‘s analysis. See United States v. Rodríguez-Berríos, 573 F.3d 55, 72 (1st Cir. 2009)
Testimony by Cutler regarding the eyewitness identifications will not assist the trier of fact, rendering Cutler‘s expert opinion inadmissible. See Shay, 57 F.3d at 132 (noting that expert opinion testimony is unnecessary if “the untrained layman would be qualified to determine intelligently and to the best degree, the particular issue without enlightenment from those having a specialized understanding of the subject matter involved“). That a victim of a violent massacre might misidentify the assailants does not require expert testimony. See, e.g., United States v. Maryboy, Case No. 14-119, 2022 U.S. Dist. LEXIS 167250, at *14-16 (D. Utah Sept. 14, 2022) (precluding expert testimony “that an individual in a high-stress event could experience physiological and psychological effects” because “an average juror understands that [these circumstances] can affect memory, perception, and recall . . . Expert testimony is unnecessary and would not be helpful.“).
The Court will provide the jury with an instruction regarding eyewitness testimony, addressing the concerns associated with this genre of testimony. The model jury instruction provides that:
Testimony by a witness as to identity must be received with caution and scrutinized with care. The government‘s burden of proof extends to every element of each crime charged, including the burden of proving beyond a reasonable doubt the identity of an alleged perpetrator of an offense. You may consider the following in evaluating the accuracy of an eyewitness identification: [risks of cross-racial identification] [risks of identification under stress] [at best, weak correlation between the witness‘s confidence and accuracy of the identification] [the influence of suggestive identification practices].
First Circuit Pattern Jury Instructions § 2.22 (2022 ed.). Cutler‘s proposed expert testimony is no more helpful than this instruction. Accordingly, the United States motion to preclude expert eyewitness testimony is GRANTED.8
VII. Conclusion
For the reasons set forth above, Candelario‘s motion to dismiss counts 2 through 19 of the third-superseding indictment is DENIED. (Docket No. 1699.) Candelario‘s motion to preclude the United States from eliciting hearsay statements from putative trial witness Amarylis Fonseca-Matías is DENIED. (Docket No. 1696.) Candelario‘s motion to bar the admission of gruesome crime scene photographs is DENIED WITHOUT PREJUDICE. (Docket No. 1693.) Candelario‘s motion for a specific notice of evidence is DENIED. (Docket No. 1705.) Lastly, the United States’ motion to preclude expert eyewitness testimony is GRANTED. (Docket No. 1718.)
Trial is set to commence on June 20, 2023 at 9:00 in Courtroom 5 at the José V. Toledo Federal Building and United States Courthouse.
IT IS SO ORDERED.
San Juan, Puerto Rico, June 5, 2023.
s/ Francisco A. Besosa
FRANCISCO A. BESOSA
SENIOR UNITED STATES DISTRICT JUDGE
Notes
The VICAR counts pertain to allegations that “several shooters attacked” “La Tómbola” market and bar on October 17 2009, “killing nine and injuring more than a dozen people.” United States v. Candelario-Santana, 834 F.3d 8, 16 (1st Cir. 2016); see Docket No. 579 (third-superseding indictment).
Counts 2 through 10 aver that Candelario and Oquendo murdered Joan Manuel Class Guzmán, Pedro Semprit-Santana, José Ángel Hernández-Martínez, John Henry García-Martínez, Elisa Del Carmen Ocasio, Samuel Ruiz-Martínez, Rafael Ángel Ramos-Rivera, Tina Marie Rodríguez-Otero, and an unborn child, respectively. (Docket No. 579 at pp. 12-22.) Counts 29 through 49 allege that Candelario and Oquendo attempted to murder Carmen María García Santiago, a minor referred to as “O.F.M.,” Wilfredo Semprit-Santana, Amarylis Fonseca-Matis, Victim #2, Victim #3, Victim #4, Victim #5, Victim #6, Victim #7, Victim #8, Victim #9, Victim #11, Victim #12, Victim #13, Victim #14, Victim #15, Victim #16, Victim #17, Victim #18, and Victim #19, respectively.