U.S. v. Grande

• Decision Date: 11 January 2005
• Docket Number: No. CRIM.A. 04-283.,CRIM.A. 04-283.
• Citation: 353 F.Supp.2d 623
• Court: U.S. District Court — Eastern District of Virginia
• Parties: UNITED STATES of America, v. Oscar Antonio GRANDE, also known as "Pantera," Defendant.

353 F.Supp.2d 623

UNITED STATES of America, v. Oscar Antonio GRANDE, also known as "Pantera," Defendant.

No. CRIM.A. 04-283.

United States District Court, E.D. Virginia. Alexandria Division.

January 11, 2005.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Ronald L. Walutes, Jr., Esquire, Assistant United States Attorney, United States Attorney's Office, Patricia Giles, Esquire, Assistant United States Attorney, United States Attorney's Office, Alexandria, VA, for Plaintiff.

David Preston Baugh, Esquire, Richmond, Luis Felipe Restrepo, Esquire, Krasner & Restepo, Philadelphia, PA., for Defense Attorneys.

MEMORANDUM OPINION

LEE, District Judge.

THIS MATTER is before the Court on Defendant Oscar Antonio Grande's Motion to Strike Non-Statutory Aggravating Factors from the Government's Notice of Intent to seek the Death Penalty. Defendant Oscar Antonio Grande and three others are charged with (1) Conspiracy to Tamper with a Witness or an Informant, 18 U.S.C. § 1512(k), (2) Conspiracy to Retaliate Against a Witness or an Informant, 18 U.S.C. § 1513(e), (3) Killing a Person Aiding a Federal Investigation, 18 U.S.C. §§ 2 & 1121(a)(2), (4) Tampering with a Witness or an Informant, 18 U.S.C. §§ 2 & 1512(a)(1), and (5) Retaliating Against a Witness or an Informant, 18 U.S.C. §§ 2 & 1513(a)(1). The government filed a Notice of Intent to Seek a Sentence of Death against all four defendants on October 1, 2004. Defendant Oscar Antonio Grande moves the Court to strike various non-statutory aggravating factors asserted by the government pursuant to 18 U.S.C. § 3593(a)(2) and one statutory aggravating factor cited by the government pursuant to 18 U.S.C. § 3592(c). The issues before the Court are whether to strike (1) a statutory aggravating factor stating that a murder was committed in "an especially heinous, cruel, and depraved manner in that it involved torture and serious physical abuse" to the victim, because it is impermissibly vague, (2) various non-statutory aggravating factors because they are unconstitutionally irrelevant, vague, overbroad or double-counted, and (3) information in support of these statutory aggravating factors for irrelevance, impermissible prejudicial effect, or unreliability.

For the reasons stated below, the Court grants Defendant Oscar Antonio Grande's Motion to Strike as to non-statutory aggravating factors (1), (2) and (4), and as to supporting information (1)(a), (3)(c), (3)(d), (5)(c), (5)(d), and (5)(b) except for assaults and threats on correctional officers and fellow inmates not covered in any other aggravating factors. The Court denies Defendant Oscar Antonio Grande's Motion to Strike as to (1)(b), (3)(a), (3)(b), (3)(e), (3)(f), and (5)(a), (8) and (9).

I. BACKGROUND

Statutory Aggravating Factor No. 1

Defendant Oscar Antonio Grande ("Defendant," "Mr. Grande") is charged with five counts relating to the murder of Ms. Brenda Paz (also known as "Smiley," "Ms. Paz"). In its Notice of Intent to Seek a Sentence of Death ("Notice") filed on October 1, 2004, the government expressed its intention to seek the death penalty for Mr. Grande, should he be convicted of any of the five counts alleged in the indictment. Apart from seeking to prove the necessary threshold findings as a basis for the imposition of the death penalty in relation to the various counts of the indictment as required by 18 U.S.C. § 3591(a)(2)(A) — (D), the government indicated it will seek to prove two statutory aggravating factors enumerated under 18 U.S.C. § 3592(c). Mr. Grande challenges the first of these two statutory aggravating factors: "1. Defendant OSCAR ANTONIO GRANDE, also known as `Pantera,' committed the offense in an especially heinous, cruel, and depraved manner in that it involved torture and serious physical abuse to Brenda Paz, also known as `Smiley.' 18 U.S.C. § 3592(c)(6)."

In support of his position, Mr. Grande asserts that since the drafting of the Federal Death Penalty Act, statutory aggravating factors are treated as elements of the offense, rather than mere sentencing findings. In other words, Mr. Grande argues that the defendant "must be given notice of the conduct it is alleged he engaged [in] to permit him the opportunity to explain or deny the allegation of engaging in such conduct." Mem. Law & Auth. Supp. Oscar Antonio Grande's Mot. Strike Non-Stat. Agg. Factors at 14 (hereinafter "Def.'s Mot. Strike"). According to Mr. Grande, because the aggravating factor solely tracks the statutory language, rather than delineating the specific method of torture or serious physical abuse, the Notice is legally insufficient and this statutory aggravating factor should be dismissed as vague and struck from the Notice. Id. at 15.

Non-Statutory Aggravating Factors

In its Notice, the government states that it will seek to prove ten additional non-statutory aggravating factors pursuant to 18 U.S.C. §§ 3593(a) and (c). Under the factors concerning Mr. Grande's alleged pattern of juvenile criminal activity, pattern of adult criminal activity, and continuing threat to society, the government lists various facts to be proven. Notice at 3-6. Mr. Grande challenges the following non-statutory aggravating factors on the grounds of constitutional irrelevance, vagueness, overbreadth and for double-counting, and the information supporting them as irrelevant, more prejudicial than probative or unreliable:

1. Defendant OSCAR ANTONIO GRANDE, also known as "Pantera," engaged in a pattern of juvenile criminal activity as demonstrated by, but not limited to, the following:

(a) On or about April 14, 1999, defendant OSCAR ANTONIO GRANDE, also known as "Pantera," assaulted a student at Fairfax High School.

(b) On or about April 17, 1999, defendant OSCAR ANTONIO GRANDE, also known as "Pantera," solicited co-defendant Ismael Juarez Cisneros to stab a fifteen-year-old victim at the Fairfax Towne Center shopping center in retaliation for the victim preventing defendant GRANDE from further assaulting a fellow student at school. Defendant GRANDE was also armed with a knife during the attack on this student at the Fairfax Towne Center.

2. Defendant OSCAR ANTONIO GRANDE, also known as "Pantera," while a student in the Fairfax County school system, repeatedly engaged in misconduct that resulted in multiple suspensions, and his expulsion.

3. Defendant OSCAR ANTONIO GRANDE, also known as "Pantera," has engaged in a pattern of criminal activity as an adult as demonstrated by, but not limited to, the following:

(a) On or about April 25, 2002, defendant OSCAR ANTONIO GRANDE, also known as "Pantera," pled guilty to Assault and Battery.

(b) On or about June 18, 2003, defendant OSCAR ANTONIO GRANDE, also known as "Pantera," along with other members of the Mara Salvatrucha, also known as "MS-13," knocked an individual to the ground, struck him in the head with a large rock, and then kicked and stomped him. On or about May 19, 2004, defendant GRANDE pled guilty to Malicious Wounding and Street Gang Participation in Arlington, Virginia.

(c) On or about December 19, 2003, defendant OSCAR ANTONIO GRANDE, also known as "Pantera," pled guilty to obstructing justice.

(d) Defendant OSCAR ANTONIO GRANDE, also known as "Pantera," repeatedly carried a concealed weapon, namely a knife.

(e) Defendant OSCAR ANTONIO GRANDE, also known as "Pantera," repeatedly hit Brenda Paz, also known as "Smiley," and threatened to kill her.

(f) Defendant OSCAR ANTONIO GRANDE, also known as "Pantera," repeatedly abused females with whom he associated, including hitting, kicking, and threatening them with knives.

* * * * * *

4. Defendant OSCAR ANTONIO GRANDE, also known as "Pantera," was a member of a criminal street gang as defined by 18 U.S.C. § 521(a), namely Mara Salvatrucha, also known as MS-13." As a member of MS-13, defendant GRANDE agreed to engage in acts of violence, including murder and aggravating assaults. Defendant GRANDE was a senior member of Centrales Locos Salvatrucha or "CLS," clique of MS-13, and as such was an enforcer of the rules of MS-13.

5. Defendant OSCAR ANTONIO GRANDE, also known as "Pantera," poses a future danger based upon the probability that he would commit criminal acts of violence that would constitute a continuing threat to society as demonstrated by, but not limited to, the following:

(a) While detained at the Arlington County Detention Facility and facing pending charges, defendant OSCAR ANTONIO GRANDE, also known as "Pantera," threatened to kill an individual whom he believed had cooperated with law enforcement.

(b) While detained at the Arlington County Detention Facility, defendant OSCAR ANTONIO GRANDE, also known as "Pantera," has shown poor institutional adjustment in that he has committed numerous disciplinary violations.

(c) While detained at the Arlington County Detention Facility, defendant OSCAR ANTONIO GRANDE, also known as "Pantera," continued to conduct and influence MS-13 gang business occurring inside and outside of the correction institution.

(d) While detained at the Loudoun County Detention Center, defendant OSCAR ANTONIO GRANDE, also known as "Pantera," along with other members of MS-13, caused a disturbance in the facility.

* * * * * *

8. Defendant OSCAR ANTONIO GRANDE, also known as "Pantera," committed Counts One, Two, Three, Four and Five of the Indictment to prevent Brenda Paz, also known as "Smiley," from and to retaliate against her for assisting in the investigation and prosecution of co-defendant Denis Rivera for the murder of Joaquin Diaz, and in the investigation of other MS-13 members for their criminal activity.

9. Defendant OSCAR ANTONIO GRANDE, also known as "Pantera," attempted to obstruct justice after murdering Brenda Paz, also known as "Smiley," by threatening to kill anyone who revealed to law enforcement details of his and co-defendants Ismael Juarez Cisneros and Oscar Alexander Garcia-Orellana's departure from the Holiday Inn Fair Oaks with Brenda Paz, also known...