U.S. v. Illera Plaza, Nos. CR.A. 98-362-10, CR.A. 98-362-11, CR.A. 98-362-12.

CourtUnited States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
Writing for the CourtPollak
Citation179 F.Supp.2d 464
PartiesUNITED STATES of America v. CARLOS IVAN LLERA PLAZA, Wilfredo Martinez Acosta, and Victor RODRIGUEZ
Decision Date21 December 2001
Docket NumberNos. CR.A. 98-362-10, CR.A. 98-362-11, CR.A. 98-362-12.
179 F.Supp.2d 464
UNITED STATES of America
v.
CARLOS IVAN LLERA PLAZA, Wilfredo Martinez Acosta, and
Victor RODRIGUEZ
Nos. CR.A. 98-362-10, CR.A. 98-362-11, CR.A. 98-362-12.
United States District Court, E.D. Pennsylvania.
December 21, 2001.

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COPYRIGHT MATERIAL OMITTED

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Thomas R. Perricone, U.S. Attorney's Office, Philadelphia, PA, David H. Resnicoff, Philadelphia, PA, for U.S.

Jules Epstein, Kairys & Rudovsky, Philadelphia, PA, Jose A. Muniz, New York City, Timothy J. Sullivan, Sullivan & Sullivan, College Park, MD, for Carlos Ivan Llera-Plaza.

Michael Giampietro, Krasner & Restrepo, Philadelphia, PA, L. Felipe Restrepo, Krasner & Restrepo, Philadelphia, PA, for Wilfredo Martinez Acosta.

Gerald A. Stein, Philadelphia, PA, Philip J. Degnan, Law Offices of Philip J. Degnan, Philadelphia, PA, Bernard L. Siegel, Philadelphia, PA, for Victor Rodriguez.

OPINION

POLLAK, District Judge.


This is the second of two companion opinions filed by the court today in this matter. In this opinion, the court addresses two motions filed by the defendants. The first motion is entitled "Motion for Pretrial Ruling on Sufficiency and/or Reliability of Information Supporting Aggravating Factors Contained in the Notice to Seek the Death Penalty" (hereinafter "Motion for Pretrial Ruling").1 The second is entitled "Motion to Strike and/or Dismiss the Notices and Amended Notices of Intent to Seek the Death Penalty" (hereinafter "Omnibus Motion"). The government has addressed both of these motions in a single document, and the court does so as well.

The Motion for Pretrial Ruling and the Omnibus Motion seek a number of rulings from the court relating to the procedures specified in the Federal Death Penalty Act of 1994 ("FDPA"), 18 U.S.C. §§ 3591-3598. In the first opinion issued today, which addresses the defendants' "Motion to Preclude a Penalty Phase Hearing and/or Imposition

Page 467

of the Death Penalty because the 1994 Federal Death Penalty Act is Unconstitutional," the court concludes that, to the extent that the defendants' facial challenges to the procedures are ripe, the challenged procedures are not facially unconstitutional. This second opinion addresses a series of more specific arguments directed at the Notices of Intent ("NOIs") filed by the government to satisfy its obligations under 18 U.S.C. § 3593(a), which states:

(a) Notice by the government. — If, in a case involving an offense described in section 3591, the attorney for the government believes that the circumstances of the offense are such that a sentence of death is justified under this chapter, the attorney shall, a reasonable time before the trial or before acceptance by the court of a plea of guilty, sign and file with the court, and serve on the defendant, a notice —

(1) stating that the government believes that the circumstances of the offense are such that, if the defendant is convicted, a sentence of death is justified under this chapter and that the government will seek the sentence of death; and

(2) setting forth the aggravating factor or factors that the government, if the defendant is convicted, proposes to prove as justifying a sentence of death. The factors for which notice is provided under this subsection may include factors concerning the effect of the offense on the victim and the victim's family, and may include oral testimony, a victim impact statement that identifies the victim of the offense and the extent and scope of the injury and loss suffered by the victim and the victim's family, and any other relevant information. The court may permit the attorney for the government to amend the notice upon a showing of good cause.

The government has filed notices of intent to seek the death penalty ("NOIs") for all three defendants: Carlos Ivan Llera Plaza ("Llera Plaza"), Wilfredo Martinez Acosta ("Martinez Acosta") and Victor Rodriguez ("Rodriguez"). Each NOI states that, for each of the capital counts against the defendants, the government proposes to prove all four of the statutory mental state factors listed in 18 U.S.C. § 3592(a)(1)(A-D). The NOIs then go on to list the aggravating factors (both statutory and non-statutory) that the government proposes to establish for each count against each defendant. In all, the government lists five different statutory aggravating factors in its NOIs:

• Grave risk of death to additional persons, § 3592(c)(5);

• Procurement of offense by payment, § 3592(c)(7)

• Pecuniary gain, § 3592(c)(8);

• Substantial planning and premeditation, § 3592(c)(9); and

• Multiple killings, § 3592(c)(16).

The government also lists five non-statutory aggravating factors in its NOIs:

• Future dangerousness of the defendant;

• Contemporaneous conviction for another killing;

• Victim impact;

• Contemporaneous conviction for a serious drug offense; and

• Defendant's participation in another killing, not charged in this case.2

Page 468

The motions considered by this opinion challenge various FDPA procedures and the individual mental state and aggravating factors listed by the government in its NOIs. The court considers each challenge in turn.

I. Motion for pretrial hearing on the sufficiency and/or reliability of the evidence the government intends to use to support its aggravating factors

In the Motion for Pretrial Hearing and the Omnibus Motion, the defendants raise two arguments that are somewhat related. The first argument concerns the sufficiency of the evidence3 the government will use to prove the aggravating factors it lists in its NOIs. The second argument concerns the sufficiency of the notice provided by the NOIs — that is, the claim by the defendants that they cannot adequately prepare for the sentencing phase of the trial without something more than a bare list of the aggravating factors the government intends to establish. The first of these arguments is primarily raised in the Motion for Pretrial Hearing. There, the defendants request a pre-trial (or, alternatively, pre-sentencing) hearing to determine what evidence the government intends to use to prove each of its aggravating factors, and whether that evidence will be sufficient to prove the relevant factors. The defendants contend that this will prevent the government from seeking to prove aggravating factors for which it lacks evidentiary support, and that it will limit the universe of information that defendants may be called upon to contest at the sentencing phase. For reasons outlined below, the request for a pretrial hearing will be denied.

The statutory provision governing the admission of evidence during the sentencing phase appears at 18 U.S.C. § 3593(c), which provides:

At the sentencing hearing, information may be presented as to any matter relevant to the sentence, including any mitigating or aggravating factor permitted or required to be considered under section 3592.... The defendant may present any information relevant to a mitigating factor. The government may present any information relevant to an aggravating factor for which notice has been provided under subsection (a). Information is admissible regardless of its admissibility under the rules governing

Page 469

admission of evidence at criminal trials except that information may be excluded if its probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury.

Thus, while § 3593(c) exempts the presentation of information during the sentencing phase from the requirements of the Federal Rules of Evidence, it requires 1) that any such evidence be relevant to a mitigating or aggravating factor and 2) that its probative value outweigh its potential negative effects. In order to ensure that the evidence to be presented by the government comports with these requirements, several courts have, prior to the sentencing phase, considered the relevance and reliability of evidence intended to be introduced by the government at the sentencing phase.

For example, the district court that heard the matter of United States v. Davis, 912 F.Supp. 938 (E.D.La.1996), conducted a pretrial review of the relevance of evidence the government proposed to introduce at the sentencing phase. It went on to state that to satisfy the "heightened" reliability requirements for a capital sentencing hearing, it would conduct a pretrial hearing to evaluate "the admissibility of the information the government intends to introduce in support of the nonstatutory aggravating factors" in order to "offset the risk of undue prejudice, confusion of the issues and/or misleading of the jury." Id. at 949. In a footnote, the court clarified that although its primary concern was "with unadjudicated criminal conduct, the remainder of the government's proposed presentation, such as victim impact, needs to be assessed and will be included in the hearing." Id. at 949 n. 27.

Similar concerns over the reliability of unadjudicated criminal conduct led the district court in United States v. Beckford, 964 F.Supp. 993 (E.D.Va.1997), to require the government to "submit a detailed proffer of the evidence of unadjudicated conduct at the end of the guilt phase of the trial" in order to allow the court to ensure that it was sufficient to meet threshold reliability standards. See id. at 1004 n. 11 (proceeding under death penalty provisions of Anti Drug Abuse Act ("ADAA"), 18 U.S.C. § 848). The court in United States v. Friend, 92 F.Supp.2d 534 (E.D.Va.2000), did the same, requiring the government to "file a proffer of the evidentiary basis" for a non-statutory factor that the court later struck from an NOI before the sentencing phase. See id. at 535. And the district court in United States v. Gilbert, 120 F.Supp.2d 147 (D.Mass.2000), struck from an NOI allegations of unadjudicated criminal conduct that were introduced to support the government's "other offenses" and "future dangerousness" nonstatutory aggravating factors. The court made this pretrial...

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33 practice notes
  • United States v. Johnson, No. CR 01–3046–MWB.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • March 5, 2013
    ...McVerry explained, While the Court recognizes that it has the authority to conduct such a hearing, see United States v. Llera Plaza, 179 F.Supp.2d 464, 469–70 (E.D.Pa.2001), the Court finds that such a hearing is “unnecessary.” United States v. Frank, 8 F.Supp.2d 253, 278–79 (S.D.N.Y.1998).......
  • U.S. v. Wilson, No. 04-CR-1016 (NGG).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • July 14, 2006
    ...of "injury, harm, and loss" that will be proffered through victim impact evidence at sentencing); but see United States v. Llera Plaza, 179 F.Supp.2d 464, 472 (E.D.Pa. 2001) ("[T]he court concludes that . Rule 7 is not applicable to NOIs submitted to satisfy FDPA requirements."); United Sta......
  • U.S. v. Regan, No. CR.A. 01-405-A.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • October 25, 2002
    ...United States v. Jones, 132 F.3d 232, 242 (5th Cir.1998) aff'd, 527 U.S. 373, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999); Llera Plaza, 179 F.Supp.2d at 464. B. The Statutory Aggravating Factors of "Grave Risk to National Security" and "Grave Risk of Death" Are Not Overbroad or Defendant's motio......
  • U.S.A v. Basciano, No. 05-CR-060 (NGG)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • January 12, 2011
    ...the future dangerousness inquiry to be considered in thePage 74context of a prison setting. See, e.g., United States v. Llera Plaza, 179 F. Supp. 2d 464, 48788 (E.D. Pa. 2001) ("[I]n the FDPA context, government arguments regarding 'future dangerousness' should be limited to the dangers pos......
  • Request a trial to view additional results
33 cases
  • United States v. Johnson, No. CR 01–3046–MWB.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • March 5, 2013
    ...McVerry explained, While the Court recognizes that it has the authority to conduct such a hearing, see United States v. Llera Plaza, 179 F.Supp.2d 464, 469–70 (E.D.Pa.2001), the Court finds that such a hearing is “unnecessary.” United States v. Frank, 8 F.Supp.2d 253, 278–79 (S.D.N.Y.1998).......
  • U.S. v. Wilson, No. 04-CR-1016 (NGG).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • July 14, 2006
    ...of "injury, harm, and loss" that will be proffered through victim impact evidence at sentencing); but see United States v. Llera Plaza, 179 F.Supp.2d 464, 472 (E.D.Pa. 2001) ("[T]he court concludes that . Rule 7 is not applicable to NOIs submitted to satisfy FDPA requirements."); United Sta......
  • U.S. v. Regan, No. CR.A. 01-405-A.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • October 25, 2002
    ...United States v. Jones, 132 F.3d 232, 242 (5th Cir.1998) aff'd, 527 U.S. 373, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999); Llera Plaza, 179 F.Supp.2d at 464. B. The Statutory Aggravating Factors of "Grave Risk to National Security" and "Grave Risk of Death" Are Not Overbroad or Defendant's motio......
  • U.S.A v. Basciano, No. 05-CR-060 (NGG)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • January 12, 2011
    ...the future dangerousness inquiry to be considered in thePage 74context of a prison setting. See, e.g., United States v. Llera Plaza, 179 F. Supp. 2d 464, 48788 (E.D. Pa. 2001) ("[I]n the FDPA context, government arguments regarding 'future dangerousness' should be limited to the dangers pos......
  • Request a trial to view additional results

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