U.S. v. Delatorre

• Court: U.S. District Court — Northern District of Illinois
• Writing for the Court: Castillo
• Citation: U.S. v. Delatorre, 438 F.Supp.2d 892 (N.D. Ill. 2006)
• Decision Date: 07 June 2006
• Docket Number: No. 03 CR 90.,03 CR 90.
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. Fernando DELATORRE, also known as "Fern," "Fern-dog," and "Fernwood," Bolivar Benabe, also known as "Jap," Juan Juarez, also known as "Ghost," Julian Salazar, also known as "Mando," "Comrade," "Conrad," "Cuz," and "Cuzzo," Miguel Martinez, also known as "Big Mike" and "Mizzy," Mariano Morales, also known as "Mar," Arturo Barbosa, also known as "Chipmunk," Harold Crowder, also known as "H-Man," Miguel Rodriguez, also known as "Mental" and "Mento," Steven Perez, also known as "Frantic" and "Big Frantic," Brian Hernandez, Lionel Lechuga, Romel Handley, also known as "Romellie," Christian Guzman, also known as "Mousey," Akeem Horton, and Steven Susinka, Defendants.

438 F.Supp.2d 892

UNITED STATES OF AMERICA, Plaintiff, v. Fernando DELATORRE, also known as "Fern," "Fern-dog," and "Fernwood," Bolivar Benabe, also known as "Jap," Juan Juarez, also known as "Ghost," Julian Salazar, also known as "Mando," "Comrade," "Conrad," "Cuz," and "Cuzzo," Miguel Martinez, also known as "Big Mike" and "Mizzy," Mariano Morales, also known as "Mar," Arturo Barbosa, also known as "Chipmunk," Harold Crowder, also known as "H-Man," Miguel Rodriguez, also known as "Mental" and "Mento," Steven Perez, also known as "Frantic" and "Big Frantic," Brian Hernandez, Lionel Lechuga, Romel Handley, also known as "Romellie," Christian Guzman, also known as "Mousey," Akeem Horton, and Steven Susinka, Defendants.

No. 03 CR 90.

United States District Court, N.D. Illinois, Eastern Division.

June 7, 2006.

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Susan A. Shatz, Robert G. Clarke, John Thomas Theis, Steven Shobat, Attorney at Law, Thomas C. Brandstrader, Law Office of Thomas C. Brandstrader, John M. Beal, Paul Camarena, Steven Perez, Chicago, IL, Mark Herbert Kusatzky, Attorney at Law, Robert Lee Gevirtz, Gevirtz & Born, Northfield, IL, Herbert Hill, Attorney at Law, Aurora, IL, William O. Walters, Attorney at Law, Mt. Prospect, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

CASTILLO, District Judge.

This is the first opinion that this Court has issued in this challenging criminal case which is representative of the Department of Justice's efforts to move serious street crimes into federal court. In a Second Superseding Indictment ("Indictment"), the Government charged sixteen defendants—all allegedly members of the Insane Deuce Nation Street Gang ("Insane Deuces")—with a number of crimes. Count One alleges that each defendant conducted and participated in the conduct of the affairs of the Insane Deuces through a racketeering conspiracy in violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962(d).¹ In the Government's "notice of special findings & enhanced sentencing as to the racketeering conspiracy" in Count One, the Government alleges that the following defendants "committed and caused to be committed" the following violent crimes: (1) the attempted murder of Victim A by Juan Juarez, Julian Salazar, Miguel Martinez, Steven Perez, Brian Hernandez, and others; (2) the attempted murder of Victim B by Juarez, Salazar, Martinez, Perez, Hernandez, and others; (3) the murder of Robert Perez by Fernando Delatorre, Juarez, Salazar, Martinez, Harold Crowder, Steve Susinka, and others; (4) the murder of David Lazcano by Delatorre, Bolivar Benabe, Juarez, Salazar, Martinez, Mariano Morales, Arturo Barbosa, Christian Guzman, and others; (5) the attempted murder of Victim C by Delatorre, Benabe, Juarez, Salazar, Martinez, Morales, Barbosa, Guzman, Akeem Horton, and others; (6) the attempted murder of Victim D by Delatorre, Benabe, Juarez, Martinez, Morales, Barbosa, and others; (7) the murder of David Morales by Delatorre, Benabe, Juarez, Salazar Martinez, Morales, Barbosa, Horton, Co-conspirator B, and others; (8) the murder of Urbel Valdez by Delatorre, Benabe, Juarez, Salazar, Martinez, Morales, Barbosa, Co-conspirator B, and others; (9) the attempted murder of Victim E by Benabe, Juarez, Salazar, Martinez, Morales, Barbosa, Perez, and others; and (10) drug trafficking by Delatorre, Benabe, Juarez, Salazar, Martinez, Morales, Barbosa, Miguel Rodriguez, Susinka, Brian Hernandez, Lionel Lechuga, Horton, and others.

Counts Two through Eight of the Indictment allege that various defendants committed the following violent crimes in aid of the racketeering activity under 18 U.S.C. § 1959(a):² (1) Count Two accuses Delatorre and Guzman of the murder of David Lazcano; (2) Count Three accuses Salazar of conspiracy to murder Victim F; (3) Count Four accuses Juarez, Salazar, Morales, and Barbosa of conspiracy to murder Victim G; (4) Count Five accuses Delatorre, Guzman and Horton of assault with a dangerous weapon upon Victim C; (5) Count Six accuses Delatorre and Horton of the murder of David Morales; (6) Count Seven accuses Delatorre of the murder of Urbel Valdez; and (7) Count Eight accuses Perez with assault with a dangerous weapon upon Victim E.

The indictment further charges the defendants with drug trafficking as follows: (1) Count Nine accuses Delatorre, Benabe, Juarez, Salazar, Martinez, Morales, Barbosa, Rodriguez, Hernandez, Lechuga, Horton, and Susinka of conspiracy to distribute and possess with intent to distribute certain controlled substances, including crack cocaine, cocaine, and marijuana; (2) Counts Ten and Eleven accuse Martinez of knowingly and intentionally distributing cocaine; (3) Count Twelve accuses Delatorre of knowingly and intentionally distributing crack cocaine; (4) Count Thirteen accuses Delatorre of possession of a firearm; and (5) Counts Fourteen and Fifteen accuse Benabe of possession of firearms in and affecting interstate commerce.

The following, discovery motions and motions for a bill of particulars are pending: Salazar's motion for a bill of particulars, Fifth and Sixth Amendment Notice, and Disclosure of Brady Material, (R. 213); Benabe's motions for discovery and for a bill of particulars, (R. 202, 204); Delatorre's motions for disclosure of favorable evidence and for discovery regarding expert witnesses, (R. 154, 155); Crowder's motion for a bill of particulars and application for pre-authorization discovery of information relevant to the decision by the Department of Justice whether or not to authorize the U.S. Attorney to seek death, (R. 193, 194); and Perez's motions for disclosure of favorable evidence, to produce a witness list, for disclosure of promises of immunity, and to produce Santiago memorandum discovery, (R. 162-166). The Government filed a consolidated response to these motions, (R. 215),³ and Benabe filed a reply, (R. 225). On November 30, 2005, this Court ordered that any motion filed shall apply to all defendants. (R. 125.) As the decision to seek the death penalty remains within the discretion of the Government, this Court's rulings on the pending discovery motions will apply to all of the defendants.

I. Bill of Particulars

The trial court has the discretion to grant or deny a motion for a bill of particulars under Federal Rule of Criminal Procedure 7(f). United States v. Fassnacht, 332 F.3d 440, 446 (7th Cir.2003). The trial court can deny a bill of particulars where the indictment sets forth the elements of the offense charged and sufficiently apprises the defendant of the charges to enable him to prepare for trial. Id. An indictment which includes each of the elements of the offense charged, the time and place of the accused's conduct which constituted a violation, and a citation to the statute or statutes violated sufficiently apprises the defendant of the charges. Id.

"[A]ny fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt." Apprendi v. New Jersey, 530 U.S. 466, 475-76, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (citing Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999)); see also Ring v. Arizona, 536 U.S. 584, 602, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) (extending rule to cases where penalty may be increased to that of death). In a case where the Government may seek the death penalty, the indictment thus must charge at least one statutory aggravating factor—in essence, an element of the offense—necessary to elevate the maximum sentence from life imprisonment to death. See United States v. Brown, 441 F.3d 1330, 1367 (11th Cir.2006); United States v. Allen, 406 F.3d 940, 942-43 (8th Cir.2005); United States v. Higgs, 353 F.3d 281, 297-98 (4th Cir.2003). Some circuits indicate that the indictment must allege all statutory aggravating factors the Government intends to prove to render a defendant eligible for the death penalty. United States v. Frye, 372 F.3d 729, 733-34 (5th Cir.2004); United States v. Quinones, 313 F.3d 49, 53 (2d Cir.2002).

The Government lists the following statutes allegedly violated by the defendants: 18 U.S.C. §§ 1959, 1962(d) (RICO); 21 U.S.C. §§ 841, 846 (drug offenses and penalties); and 18 U.S.C. §§ 922(g)(1), (k) (illegal transport of firearms). The Government brings all of its charges of violent crimes and conspiracy under RICO, which provides for the possibility of a death sentence where a member of an enterprise engaged in racketeering activity commits murder as consideration for something of value or to gain entrance to or maintain or increase his position in the enterprise. 18 U.S.C.A. § 1959(a)(1). The possession of firearms charges against Delatorre and Benabe may be punishable by death if death results from the use of such munitions by a person in furtherance of any crime of violence or drug trafficking crime. 18 U.S.C.A. § 924(c)(1)(A). The Controlled Substances Act, 21 U.S.C. § 848, provides for the death penalty if any person working in furtherance of a continuing criminal enterprise, or engaged in manufacturing, distributing, or dispensing, or possessing with intent to manufacture, distribute, or dispense, "intentionally kills or counsels, commands, induces, procures, or causes the intentional killing of an individual and such killing results." 21 U.S.C. §§ 841(b), 848(e).

In the Government's RICO counts—Counts One through Eight—the Government only charges three defendants —Delatorre, Guzman, and Horton— of murder, the only RICO crime punishable by death. However, in the RICO conspiracy count—Count One—the Government summarily alleges that ten of the remaining defendants—Benabe, Martinez, Crowder, Hernandez, Susinka, Salazar, Juarez, Morales, Barbosa, and Perez— "committed or caused to be committed" certain murders or attempted murders. Defendants Rodriguez and Lechuga are only implicated in drug trafficking...