USA v. CANDELARIO, et al

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
UNITED STATES OF AMERICA 	)
)
)
v. 	) 2:21-cr-00015-JDL-1
) 2:21-cr-00015-JDL-4
JASON CANDELARIO, et al., 	)
)
Defendants. 	)
ORDER ON DEFENDANT DAPRATO’S MOTION TO SEVER AND
DEFENDANT CANDELARIO’S MOTION TO SEVER OR EXCLUDE
EVIDENCE
The indictment in this case (ECF No. 115) alleges that Defendants Jason
Candelario, Luis Carpio, Andrew Soboleski, and Derek Daprato engaged in a Hobbs
Act robbery conspiracy to violently steal marijuana and the proceeds of marijuana
sales, among other crimes.1 During the investigation of the crime and immediately
following the execution of a search warrant for Soboleski’s DNA, Soboleski allegedly
told FBI agents that he dropped off Candelario and Carpio at the location of the crime,
that a person he thought was named Derek drove ahead of them, and that Soboleski
returned later to pick up Candelario and Carpio. 	Daprato moves (ECF No. 189) to
sever his case from that of his codefendants. Candelario also moves (ECF No. 191) to
1 Count One charges all four defendants with conspiring to commit Hobbs Act robbery. 	See
18 U.S.C.A. § 1951(a) (West 2022). 	Count Two charges Candelario, Carpio, and Daprato with
interfering with commerce by violence and aiding and abetting the same. See id. Count Three charges
Candelario, Carpio, and Daprato with discharging a firearm during a crime of violence and aiding and
abetting the same. 	See 18 U.S.C.A. § 924(c)(1)(A) (West 2022). 	Count Four charges Candelario,
Carpio, and Daprato with brandishing a firearm during a crime of violence and aiding and abetting
the same. See id. Count Five charges Candelario with being a felon in possession of firearms and
ammunition. See 18 U.S.C.A. § 922(g)(1) (West 2022). Count Six charges Carpio with being a felon in
possession of firearms and ammunition. See id.
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sever his case or, alternatively, to exclude from evidence any statements made by any
codefendant.
An indictment “may charge 2 or more defendants if they are alleged to have
participated in the same act or transaction, or in the same series of acts or
transactions, constituting an offense or offenses.” Fed. R. Crim. P. 8(b). But “[i]f the
joinder of . . . defendants in an indictment . . . appears to prejudice a defendant . . . ,
the court may . . . sever the defendants’ trials, or provide any other relief that justice
requires.” Fed. R. Crim. P. 14(a).
Daprato 	argues 	that 	severance 	is 	required 	because 	Soboleski’s 	alleged
statement to the FBI incriminates Daprato and is admissible as to Soboleski (as his
own admission) but not against Daprato. As such, introducing the statement would
create a conflict between Daprato’s right to confront Soboleski and Soboleski’s right
to remain silent. Daprato also contends that the Government’s proposed redactions
of Soboleski’s statement are insufficient to avoid prejudice. 	Candelario makes the
same arguments, adding that, if severance is not granted, Soboleski’s statement and
all other statements made by Candelario’s codefendants should be excluded. Daprato
also argues that severance is necessary because he would be prejudiced by “spillover”
from the evidence admissible against his codefendants but not admissible against
him.
I first address Daprato’s and Candelario’s Confrontation Clause arguments
and then turn to Daprato’s spillover argument.
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I. CONFRONTATION CLAUSE
“The general rule is that defendants who are properly joined in an indictment
should be tried together.” 	United States v. Floyd, 740 F.3d 22, 36 (1st Cir. 2014).
“This 	rule 	has 	special 	force 	in 	conspiracy 	cases, 	in 	which 	the 	severance 	of
coconspirators’ trials ‘will rarely, if ever, be required.’” Id. (quoting United States v.
Flores-Rivera, 56 F.3d 319, 325 (1st Cir. 1995)). Joint trials “promote efficiency and
‘serve the interests of justice by avoiding the scandal and inequity of inconsistent
verdicts.’” 	Zafiro v. United States, 506 U.S. 534, 537 (1993) (quoting Richardson v.
Marsh, 481 U.S. 200, 210 (1987)). However, “a district court should grant a severance
under Rule 14 . . . if there is a serious risk that a joint trial would compromise a
specific trial right of one of the defendants.” Id. at 539.
The Confrontation Clause of the Sixth Amendment guarantees a criminal
defendant the right “to be confronted with the witnesses against him.” 	U.S. Const.
amend. VI. “The Supreme Court of the United States held in Bruton that a defendant
is deprived of that right ‘where the powerfully incriminating extrajudicial statements
of a codefendant . . . are deliberately spread before the jury in a joint trial’ and the
‘alleged accomplice does not testify and cannot be tested by cross-examination.’”
United States v. de Leon-De La Rosa, 17 F.4th 175, 190 (1st Cir. 2021) (alteration
omitted) (quoting Bruton v. United States, 391 U.S. 123, 135-36 (1968)). 	But “the
Confrontation Clause is not violated by the admission of a nontestifying codefendant’s
confession with a proper limiting instruction when . . . the confession is redacted to
eliminate not only the defendant’s name, but any reference to his or her existence.”
Richardson, 481 U.S. at 211. That is true even when the redacted confession becomes
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incriminating “when linked with evidence introduced later at trial.” Id. at 208. Yet
a redacted confession violates the Confrontation Clause if it “‘obviously’ and ‘directly’
implicates the defendant in the crime” and would do so “even were the confession the
very first item introduced at trial.” 	de Leon-De La Rosa, 17 F.4th at 191 (quoting
Gray v. Maryland, 523 U.S. 185, 196 (1998)). Accordingly, “redactions that replace a
proper name with an obvious blank, the word ‘delete,’ a symbol, or similarly notify
the jury that a name has been deleted are similar enough to Bruton’s unredacted
confessions as to warrant the same legal results,” “for the jury will often realize that
the confession refers specifically to the defendant.” Gray, 523 U.S. at 193, 195.
In sum, even a redacted pretrial confession cannot be introduced if it is
“powerfully incriminating,” meaning “inculpatory on its face,” either expressly or
because of its immediately obvious implication. 	United States v. Vega Molina,
407 F.3d 511, 520-21 (1st Cir. 2005). 	As the First Circuit has acknowledged, “[t]his
criterion is easier to state than to apply.” 	Id. at 520. 	Whether proposed redactions
are sufficient “requires careful attention to both text and context, that is, to the text
of the statement itself and to the context in which it is proffered.” Id. However, the
context that a court may consider is limited: “Statements that are incriminating only
when linked to other evidence in the case do not trigger application of Bruton’s
preclusionary rule.” Id.
In Vega Molina, the First Circuit approved a redacted confession that replaced
codefendants’ names with neutral phrases such as “other individuals” and “another
person.” Id. The court reasoned, however, that this method of redaction is not always
adequate. Id. “A particular case may involve numerous events and actors, such that
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no direct inference plausibly can be made that a neutral phrase like ‘another person’
refers to a specific codefendant.” 	Id. 	But “[a] different case may involve so few
defendants that the statement leaves little doubt in the listener’s mind about the
identity of ‘another person.’” 	Id. 	In Vega Molina, the redaction sufficed in part
because it referenced a deceased coconspirator. 	Id. at 521. 	That reference created
ambiguity about whether the codefendants were the individuals referenced in the
confession because it indicated that more people may have been involved in the crime
than those who were on trial. Id.
Here, the Government proposes to redact Soboleski’s alleged statement by
referring to the codefendants as “individuals,” as shown in the following table
submitted by the Government:
Soboleski’s Unredacted Statement 	Government’s Proposal
1. On August 2, 2019, Soboleski was
contacted by either Luis Carpio or
Jason Candelario, Soboleski was unable
to recall which one.
1. On August 2, 2019, Soboleski was
contacted by one of two individuals,
Soboleski was unable to recall which
one.
2. Soboleski was asked to give
Candelario and Carpio a ride, for an
unstated purpose.
2. Soboleski was asked to give two
individuals a ride, for an unstated
purpose.
3. Soboleski did not ask the purpose of
the trip, nor was he to receive any cash
or drugs for providing the ride.
3. The Government submits that
redacting this statement is
unnecessary.
4. Soboleski used Carpio’s “girl” Suly’s
vehicle and drove Candelario and
Carpio to a rural wooded location that
he thought was in Maine.
4. Soboleski used one of the individual’s
significant other’s vehicle to drive the
individuals to a rural wooded location
that he thought was in Maine.
5. No other individuals were present in
the vehicle.
5. The Government submits that
redacting this statement is
unnecessary.
6. During the drive, Soboleski observed
either Candelario or Carpio enter an
address into GPS maps on their cellular
6. During the drive, Soboleski observed
one of the individuals enter an address
into GPS maps on their cellular phone,
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phone, which provided them on [sic]
directions to the destination.
which provided directions to the
destination.
7. Soboleski was also following another
individual he believed was involved,
who was operating a white pickup
truck.
7. The Government submits that
redacting this statement is
unnecessary.
8. Soboleski believed the operator’s
name was Derek, who possibly went by
“D rock.”
8. The Government does not intend to
introduce this statement in its case-in-
chief.
9. Soboleski did not know Derek’s role
in the robbery.
9. The Government does not intend to
introduce this statement in its case-in-
chief.
10. After dropping off Candelario and
Carpio, Soboleski did not see Derek’s
truck again.
10. After dropping off the other
individuals, Soboleski did not see the
truck again.
11. When they arrived at the
destination, Soboleski dropped
Candelario and Carpio off and they
went into the woods.
11. When they arrived at the
destination, Soboleski dropped off the
other individuals, and they went into
the woods.
12. Soboleski was to drive around and
wait to be contacted to pick up
Candelario and Carpio.
12. Soboleski drove around and waited
to be contacted to pick up the other
individuals.
13. Soboleski stated that he drove
around and also slept inside the vehicle
while waiting.
13. The Government submits that
redacting this statement is
unnecessary.
14. Soboleski stated that he went to an
Irving store parking lot.
14. The Government submits that
redacting this statement is
unnecessary.
15. Soboleski stated he was eventually
contacted and went to pick up
Candelario and Carpio.
15. Soboleski was eventually contacted,
and he went to pick up the other
individuals.
16. Soboleski stated that they smelled
like a “swamp” but it was dark and he
didn’t see anything.
16. The Government submits that
redacting this statement is
unnecessary.
17. Soboleski stated that neither
Candelario or Carpio said anything
upon their return into the car.
17. The other individuals did not say
anything upon their return to the
vehicle.
18. Soboleski did not see any firearms
or anything else, and that Candelario
and Carpio were keeping things to
themselves.
18. Soboleski did not see any firearms
or anything else.
19. Soboleski provided Candelario and
Carpio a ride back to the Manchester
area.
19. Soboleski drove the other
individuals back to the Manchester
area.
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The Government argues that its responses and proposed redactions are
sufficient because of the redactions that the First Circuit endorsed in Vega Molina.
The Government also contends that it does not need to redact the reference to the
white pickup truck from statement seven because that detail does not facially
incriminate Daprato.
Daprato counters that this case is different from Vega Molina because the
absence of references to additional parties will lead the jury to conclude that the
redacted statement must refer to Daprato, Candelario, and Carpio. 	Additionally,
Daprato asserts that mentioning the white pickup truck is akin to identifying
Daprato by a nickname, which would be prohibited. 	Finally, Daprato insists that,
because the Government intends to introduce the alleged statement through the
testimony of an FBI agent, redacting it would create artificial constraints on the
defendants’ cross-examinations and potentially cause a mistrial.
Candelario likewise stresses the differences between this case and Vega
Molina, particularly the number of actors involved and the existence of other evidence
that would plainly link Candelario to the redacted statement. 	He argues that the
proposed redactions obviously imply that Soboleski named his codefendants because
the redacted statement contains unnatural phrases like “Soboleski was contacted by
one of two individuals, Soboleski was unable to recall which one.” 	Candelario also
asserts that the proposed redactions are unworkable because the defendants would
be unfairly prevented from fully cross-examining the testifying officer about topics
such as Soboleski’s exact words.
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The reference to the white pickup truck could be incriminating when linked to
other evidence, but, if the alleged statement were the first piece of evidence at trial,
no juror would connect the truck to Daprato. “The Supreme Court has held that an
out-of-court 	confession 	of 	a 	non-testifying 	defendant 	that 	only 	‘inferentially
incriminates’ a codefendant who is on trial through deductive links to other evidence
does not animate that codefendant’s Sixth Amendment concerns in the same manner
as a head-on accusation.” United States v. Padilla-Galarza, 990 F.3d 60, 76 (1st Cir.
2021) 	(alterations 	omitted) 	(quoting 	Richardson, 	481 	U.S. 	at 	208); 	see 	also
Richardson, 481 U.S. at 209 (“If extended to confessions incriminating by connection,
. . . it is not even possible to predict the admissibility of a confession in advance of
trial.”). Only when a confession itself is powerfully incriminating, either directly or
through 	its 	immediately 	obvious 	implication, 	do 	we 	depart 	from 	“the 	almost
invariable assumption of the law that jurors follow their instructions.” Richardson,
481 U.S. at 206. 	“Where the necessity of . . . linkage is involved, it is a less valid
generalization that the jury will not likely obey the instruction to disregard the
evidence.” 	Id. at 208; accord United States v. Figueroa-Cartagena, 612 F.3d 69, 85
(1st Cir. 2010). There is no need to redact the reference to the white pickup truck if
the jury is instructed to consider the alleged statement only as to Soboleski.
Additionally, the Government’s proposal to refer to the codefendants as
“individuals” is not a prohibited “obvious indication of deletion.” 	Gray, 523 U.S. at
192. 	It is true that a redacted confession must resemble something that “might
actually have been said by a person admitting his own culpability in the charged
conspiracy while shielding the specific identit[ies] of his confederate[s].” 	United
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States v. Jass, 569 F.3d 47, 62 (2d Cir. 2009). 	The Government might violate that
rule if it were to introduce the proposed redactions as if they were Soboleski’s exact
words because the references to “individuals” could sound “suspiciously closer to the
speech of a prosecutor than that of a perpetrator.” United States v. Taylor, 745 F.3d
15, 29 (2d Cir. 2014). 	But the Government’s plan is instead to have an FBI agent
testify about what Soboleski allegedly said. A phrase like “Soboleski was contacted
by one of two individuals, Soboleski was unable to recall which one” does not obviously
betray the fact that Soboleski’s original alleged statement contained actual names if
it is clear that the testifying officer is paraphrasing.
Nor is this a case “involv[ing] few actors and events, such that a . . . neutral
pronoun becomes transparent and leaves little doubt in the listener’s mind about the
identity of the person whose name has been removed.” 	Foxworth v. St. Amand,
570 F.3d 414, 433 (1st Cir. 2009). 	The indictment states that the four defendants
“conspired with each other and other persons.” ECF No. 115 at 1 (emphasis added).
Based on this information, the named defendants do not represent the full extent of
the alleged conspiracy. The alleged redacted statement indicates that Soboleski and
at least three others participated. 	With the proposed redactions, it is ambiguous
whether the person who originally contacted Soboleski in statement one was a
potential fifth participant. The scheme is not described so exhaustively that a listener
could confidently conclude that only those four or five people were involved. 	The
alleged statement does not even describe the interference with commerce by violence
or the discharge and brandishing of a firearm during a crime of violence that are
charged in the indictment, leaving open the prospect of additional actors during those
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events. 	To the contrary, the gist of Soboleski’s alleged statement is that he did not
grasp what was going on and saw very little. 	Given “the distinct possibility that
people besides those who were on trial may have been involved in the commission of
the crimes,” there would be no obvious and immediate inference that the unidentified
persons are Soboleski’s codefendants. Vega Molina, 407 F.3d at 521.
Finally, although courts must remain sensitive to the potential pitfalls of
allowing an officer to testify about a redacted statement, see Bruton, 391 U.S. at 134
n.10; United States v. Jedi, 339 F. Supp. 3d 19, 24 (D.P.R. 2018), such an arrangement
is not unusual. 	In Vega-Molina, an FBI agent testified as to a redacted pretrial
confession. 407 F.3d at 518-19. The Confrontation Clause provides defendants with
“the right to conduct such cross-examination as is reasonably necessary to delineate
and present the defendant’s theory of defense.” Id. at 522. “So long as the trial court
affords the defendant a fair opportunity for effective cross-examination, it may
impose reasonable restrictions . . . .” 	Id. at 523. 	Daprato and Candelario have not
shown 	that 	they 	would 	be 	deprived 	of 	a 	fair 	opportunity 	for 	effective 	cross-
examination if they are not permitted to ask the FBI agent questions that would
negate the redactions and thus create a Bruton problem.
Finally, Candelario’s request to exclude all statements by his codefendants is
significantly overbroad, as certain statements by his codefendants may be admissible
against him or would be admissible against his codefendants without violating
Bruton. 	See Fed. R. Evid. 801(d)(2)(E) (providing that a statement “made by the
party’s coconspirator during and in furtherance of the conspiracy” is not hearsay);
Figueroa-Cartagena, 612 F.3d at 85 (“Because it is premised on the Confrontation
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Clause, the Bruton rule, like the Confrontation Clause itself, does not apply to
nontestimonial statements.” (quoting United States v. Johnson, 581 F.3d 320, 326
(6th Cir.2009))).
II. SPILLOVER
“Evidentiary spillover occurs ‘where evidence establishing the guilt of one
defendant, but not admissable [sic] against the other, may create an atmosphere
clouding the jury’s ability to evaluate fairly the guilt or innocence of the latter.’”
United States v. Weadick, 15 F.4th 1, 15 (1st Cir. 2021) (alteration in original)
(quoting United States v. Perkins, 926 F.2d 1271, 1281 (1st Cir. 1991)). 	An
impermissible spillover may occur “where the crimes of some defendants are more
horrific or better documented than the crimes of others.” United States v. Martínez,
994 F.3d 1, 15-16 (1st Cir. 2021) (quoting United States v. Innamorati, 996 F.2d 456,
469 (1st Cir. 1993)). “To prevail on an evidentiary spillover claim, the defendant must
prove ‘prejudice so pervasive that a miscarriage of justice looms.’” Weadick, 15 F.4th
at 16 (quoting United States v. Paz-Alvarez, 799 F.3d 12, 30 (1st Cir. 2015)).
Daprato argues that severance is appropriate because evidence against his
codefendants—namely, 	Soboleski’s 	alleged 	statement 	and 	evidence 	of 	his
codefendants’ alleged violent acts—will cloud the jury’s capacity to judge him fairly.
The first issue is properly addressed through the Bruton framework. 	Soboleski’s
alleged statement does not call for severance if it is properly redacted and a limiting
instruction is given to the jury.
In addition, evidence of Daprato’s codefendants’ alleged violent conduct—e.g.,
the shooting, zip ties, and duct tape—would not prejudice Daprato such that a
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miscarriage of justice looms. 	Daprato is charged in every count of the indictment
except for the counts against Candelario and Carpio for being felons in possession of
firearms and ammunition. Supra note 1. Accordingly, much, if not all of the evidence
that Daprato identifies is admissible against him. 	“Where evidence featuring one
defendant is independently admissible against a codefendant, the latter cannot
convincingly complain of an improper spillover effect.” United States v. O’Bryant, 998
F.2d 21, 26 (1st Cir. 1993). 	Further, the alleged conduct of his codefendants, while
grievous, is not so horrific that a jury could not be trusted to fairly evaluate Daprato
as an individual.
Daprato also argues that the jury would be confused by the fact that Soboleski
is charged only in Count One (conspiracy to commit Hobbs Act robbery), see note 1,
while Soboleski’s alleged level of participation exceeds Daprato’s. It is not clear why
this concern qualifies as a question of evidentiary spillover. It is also not apparent,
at this pretrial stage, whether Daprato is correct about his alleged level of culpability
as compared to Soboleski. 	Regardless, I am not persuaded that such a discrepancy
in the Government’s charging decisions would confuse the jury and thus significantly
prejudice Daprato.
III. CONCLUSION
Derek Daprato’s Motion to Sever (ECF No. 189) and Jason Candelario’s Motion
to Sever or Exclude Evidence (ECF No. 191) are DENIED.
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SO ORDERED.
Dated: April 11, 2022
/s/ JON D. LEVY
CHIEF U.S. DISTRICT JUDGE
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