U.S. v. Rivera
| Decision Date | 24 March 2005 |
| Docket Number | No. CRIM.A. 04-283.,CRIM.A. 04-283. |
| Citation | 363 F.Supp.2d 814 |
| Parties | UNITED STATES of America v. Denis RIVERA, Oscar Antonio Grande, Ismael Juarez Cisneros, Oscar Alexander Garcia-Orellana, Defendants. |
| Court | U.S. District Court — Eastern District of Virginia |
Ronald Walutes, Esquire, Assistant United States Attorney, United States Attorney's Office, Patricia T. Giles, Esquire, Assistant United States Attorney, United States Attorney Office, Alexandria, VA, for Plaintiff.
Robert L. Jenkins, Jr. Esquire, Alexandria, VA, David P. Baugh, Esquire, Richmond, VA, Nina J. Ginsberg, Esquire, Alexandria, VA, Alexander N. Levay, Jr., Esquire, Leesburg, VA, Jerome P. Aquino, Esquire, Alexandria, VA, L. Felipe Restrepo, Esquire, Philadelphia, PA, James C. Clark, Esquire, Frank Salvato, Esquire, Alexandria, VA, for Defendant.
THIS MATTER is before the Court on Motions of (1) Defendant Oscar Antonio Grande's Motion for a Trial Severance; (2) Defendant Oscar Antonio Grande's Motion for Severance from any "Death Eligible" Co-Defendants for Purposes of a Special Hearing to Determine whether a Sentence of Death is Justified Pursuant 18 U.S.C. Section 3593 and that the Government be Required to Elect Which Capital Defendant it Wishes to Have Sentenced First, and that the Remaining Capital Defendant or Defendants be Severed and Sentenced by New Juries Specially Empaneled for Such Sentencing Hearings Pursuant 18 U.S.C. § 3593(b) [hereinafter "Grande's Motion for Severance in Penalty Phase"]; (3) Oscar Alexander Garcia-Orellana's Motion to Sever the Defendant Garcia-Orellana from the Co-Defendants in the Penalty Phase of Trial, Should Such a Proceeding Become Necessary [hereinafter "Garcia-Orellana's Motion to Sever in Penalty Phase"]; (4) Ismael Juarez Cisnero's Motion to Require the Government to Elect Which Defendant it Wishes to Have Sentenced First, and that the remaining Defendants be Severed and Sentenced by New Juries Specially Empaneled for Such Sentencing Hearings Pursuant to 18 U.S.C. Section 3593(b) [].1 For the reasons stated below, the Court denies Defendant's Motions for Severance and holds that the defendants trial and penalty phase, if it becomes necessary, will proceed jointly.
The government alleges that Defendants Denis Rivera, Oscar Antonio Grande, Ismael Juarez Cisneros, and Oscar Alexander Garcia-Orellana conspired together to murder Brenda Paz, who was preparing to testify against Denis Rivera in this Court for the murder of Joaquin Diaz. All four defendants and the victim were members of the Mara Salvatrucha, also known as "MS-13," a gang with roots in El Salvador whose presence has spread throughout the country. MS-13 is alleged to be involved in many criminal enterprises including car theft, narcotics and illegal firearms sales, assaults, threats, and witness intimidation.
All of the defendants in this case have filed individual motions to sever both the trial phase and the penalty phase and the motions have subsequently been adopted by all of the defendants.2 All four defendants 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.
(1) Oscar Antonio Grande's Motion for Trial Severance
Mr. Grande argues that severance in the trial phase is required by Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), because admission of the statements made by co-defendants Ismael Cisneros and Oscar Garcia-Orellana would violate Mr. Grande's constitutional right to confrontation and the statements can not be redacted to eliminate the Bruton problem.
Grande also asserts that severance is warranted under Federal Rule of Criminal Procedure 14 because he has reason to believe his co-defendants intend to offer the statements of Cisneros and Garcia-Orellana in their entirety in both the trial and penalty phases.
(2) Oscar Antonio Grande's Motion for Severance in Penalty Phase
Mr. Grande argues that conducting a joint penalty phase hearing would violate the Fifth and Eighth Amendments to the United States Constitution, as well as 18 U.S.C. §§ 3591-93. Specifically, Mr. Grande argues that severance of the penalty phase is required to protect his Eighth Amendment right to an individualized determination of his sentence because the co-defendants will assert mutually antagonistic defenses. Mr. Grande also argues that there is a conflict between the Fifth Amendment (self-incrimination) and Eighth Amendment (mitigation) rights of the co-defendants, because there is a substantial likelihood that in according mitigating weight to one defendant's voluntary self-incrimination, the jury will at the same time treat as aggravating the failure of his co-defendants to produce similar evidence in mitigation. Furthermore, Grande asserts that the constitutional rights to fair notice and full rebuttal, mandated by 18 U.S.C. § 3593(a) will be violated because his co-defendants will offer evidence designed to aggravate the punishment of his co-defendants and they are not required to notify him prior to trial, as the government is so required.
(3) Oscar Alexander Garcia-Orellana's Motion to Sever in Penalty Phase
Mr. Garcia-Orellana argues that a joint penalty phase would violate his rights as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments. Specifically, he asserts that he will not be afforded a genuine opportunity to be heard during the sentencing phase because his individual voice and specific mitigating factors in mitigation will be lost among the voices of other defendants, in violation of his Fifth and Fourteenth Amendment right to due process and his Eighth Amendment right to fundamental respect for humanity. Furthermore, he argues that the divergent interests of the co-defendants will enlist all of the defendants as co-prosecutors of each other. Since the defendants would be allowed to proceed without giving notice to the other defendants of their evidence in mitigation, he asserts that the result would violate his Sixth Amendment right to confrontation of witnesses.
(4) Ismael Juarez Cisneros' Motion for Severance in the Penalty Phase and Supplemental Support
Mr. Cisneros argues that a severance at the penalty phase is required to protect his Eighth Amendment right to an individualized determination of his Sentence. Mr. Cisneros also asserts that a joint penalty phase would create a conflict between the right not to disclose penalty phase evidence until trial and the due process right of rebuttal. Mr. Cisneros requests that the Court require the government to elect which defendant it wishes to have sentenced first, and that the remaining defendants be severed and sentenced by new juries specially empaneled for such sentencing hearings. In his supplemental motion, Mr. Cisneros requests that the Court sever the penalty phase so that he can introduce his unredacted confession as mitigating evidence to rebut the government's non-statutory aggravators and its predictions of future dangerousness. In his second supplemental motion, Mr. Cisneros asserts that there is a conflict between the Fifth Amendment rights against self-incrimination and the Eighth Amendment mitigation rights of the co-defendants. He also asserts that there is a conflict between the Sixth Amendment rights under Bruton and Eighth Amendment mitigation rights of the co-defendants.
"The grant or denial of a motion for severance ... is within the trial court's discretion and will not be overturned absent a clear abuse of that discretion." United States v. West, 877 F.2d 281, 287-88 (4th Cir.), cert. denied, 493 U.S. 959, 110 S.Ct. 377, 107 L.Ed.2d 362 (1989). The party moving for severance must establish that actual prejudice would result from a joint trial, United States v. Brooks, 957 F.2d 1138, 1145 (4th Cir.), cert. denied, 505 U.S. 1228, 112 S.Ct. 3051, 120 L.Ed.2d 917 (1992), and not merely that "a separate trial would offer[ ] a better chance of acquittal." United States v. Spitler, 800 F.2d 1267, 1271 (4th Cir.1986). Severance is only required where a joint trial "deprives the defendant of a fair trial and results in a miscarriage of justice." United States v. Rusher, 966 F.2d 868, 878 (4th Cir.1992) (quoting United States v. Becker, 585 F.2d 703, 706 (4th Cir.1978)).
It is a well-established principle that defendants that are charged in the same criminal conspiracy and indicted together should be tried together. See, e.g., United States v. Reavis, 48 F.3d 763, 767 (4th Cir.1995); Spitler, 800 F.2d at 1271. Federal Rule of Criminal Procedure 8(b) provides that "[t]wo or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction."
In Zafiro v. United States, the Supreme Court stated that there is a preference in the federal system for joint trials of defendants indicted together, as joint trials "promote efficiency and `serve the interest of justice avoiding the scandal and inequity of inconsistent verdicts.'" 506 U.S. 534, 537, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993) (citation omitted). The Supreme Court has endorsed the notion that a joint trial typically allows "the jury [to] obtain[ ] a more complete view of all the acts underlying the charges than would be possible in separate trials" and thus "to arrive more reliably at its...
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