U.S.A v. Umana

• Decision Date: 19 April 2010
• Docket Number: No. 3:08CR134-RJC.,3:08CR134-RJC.
• Citation: 707 F.Supp.2d 621
• Parties: UNITED STATES of Americav.Alejandro Enrique Ramirez UMANA, a/k/a “Wizard”, “Lobo”, Defendant.
• Court: U.S. District Court — Western District of North Carolina

707 F.Supp.2d 621

UNITED STATES of Americav.Alejandro Enrique Ramirez UMANA, a/k/a “Wizard”, “Lobo”, Defendant.

No. 3:08CR134-RJC.

United States District Court,

W.D. North Carolina,

Charlotte Division.

April 19, 2010.

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John David Bryson, Wyatt Early Harris & Wheeler, LLP, High Point, NC, Mark Patrick Foster, Jr., Law Offices of Mark Foster, PC, Charlotte, NC, for Defendant.

ORDER

ROBERT J. CONRAD, JR., Chief Judge.

THIS MATTER is before the Court on the “Defendant's Motion to Strike Non-statutory Aggravating Factor and to Exclude Evidence of Unadjudicated Criminal Acts During Penalty Phase of Trial” (Doc. No. 483) filed April 24, 2009; the “Defendant's Motion to Strike Non-Statutory Aggravating Factors from Notice of Intent to Seek the Death Penalty” (Doc. No. 488) filed April 24, 2009; the government's Consolidated Response (Doc. No. 503) filed May 8, 2009; the defendant's “Motion to Strike the Non-Statutory Aggravating Factor of Future Dangerousness from the Notice of Intent to Seek the Death Penalty” (Doc. No. 968) filed April 6, 2010; and the government's Response (Doc. No. 991) filed April 13, 2010. For the reasons stated below, the Court GRANTS IN PART and DENIES IN PART the defendant's motion to strike non-statutory aggravating factors (Doc. No. 488) and DENIES the defendant's remaining motions (Doc. Nos. 483 & 968).

I. BACKGROUND

The defendant is charged in a Superseding Indictment with multiple federal offenses arising out of his alleged affiliation with La Mara Salvatrucha, also known as the MS-13 gang (hereafter “MS-13”). Count 1 of the Indictment charges the defendant with a RICO conspiracy, in violation of 18 U.S.C. § 1962(d). As an overt act in furtherance of this conspiracy, the Indictment alleges that on December 8, 2007, the defendant murdered two individuals, Ruben Garcia Salinas and Manuel Garcia Salinas, in a restaurant in Greensboro, North Carolina. These murders are also charged separately in Counts 22 and 24 of the Indictment as murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(1), and in Counts 23 and 25 as use of a firearm during and in relation to a crime of violence resulting in death, in violation of 18 U.S.C. § 924(j). In the event the defendant is found guilty of Counts 22, 23, 24, or 25, the government has filed a Notice of Intention to Seek the Death Penalty (Doc. No. 275), as required by the Federal Death Penalty Act (“FDPA”), 18 U.S.C. § 3591 et seq. In its Notice, the government lists several aggravating factors it contends justify a sentence of death. Several of these are enumerated aggravating factors listed in § 3592(c) (the “statutory aggravating factors”). The government has also given notice of its intent to prove additional aggravating factors which are not enumerated in § 3592(c) (the “non-statutory aggravating factors”), including the following:

1. Gang Motivated Killing.

The defendant killed Ruben Garcia Salinas to protect and maintain the name and reputation of the criminal enterprise MS-13, and to advance his position and reputation within the criminal enterprise.

* * *

3. Callous Disregard for the Severity of the Offense.

Defendant has demonstrated a callous disregard for the severity of the offense, as evidenced by his words and actions following the murder of Ruben Garcia Salinas.

4. Participation in Additional Uncharged Murders and Other Acts of Violence.

Apart from the offenses charged in the First Superseding Bill of Indictment, defendant has been involved in other serious acts of violence, which are not reflected in his criminal record. Including but not limited to:

a. On or about July 27, 2005, in Los Angeles, California, defendant knowingly, intentionally, and unlawfully killed Jose Herrera and Gustavo Porras.

b. On or about September 28, 2005, in Los Angeles, California, defendant knowingly, intentionally, and unlawfully participated and aided and abetted the killing of Andy Abarca.

5. Future Dangerousness.

Defendant is likely to commit criminal acts of violence in the future which would constitute a continuing and serious threat to the lives and safety of others, as evidenced by at least one or more of the following:

a. Continuing Pattern of Violence.

Defendant has engaged in a continuing pattern of violence, attempted violence, and threatened violence, including but not limited to the crimes alleged against defendant in the First Superseding Bill of Indictment.

b. Low Rehabilitative Potential.

Defendant poses a future danger to the lives and safety of other persons as demonstrated by his lack of rehabilitation after prior incarceration, his pattern of criminal conduct, and, his allegiance to and membership in MS-13.

c. Lack of Remorse.

Defendant has never expressed any remorse for killing Rubin Garcia Salinas as indicated by defendant's statements to fellow gang-members during the course of and following the offenses alleged in the First Superseding Bill of Indictment.

d. Gang Membership.

Defendant has demonstrated an allegiance to and active membership in MS-13, a violent criminal enterprise.

(Doc. No. 275 at 4-5).¹ On April 24, 2009, the defendant filed two motions to strike non-statutory aggravating factors from the government's Notice. (Doc. Nos. 483 & 488). Therein the defendant moves to strike all his non-statutory aggravating factors as unauthorized by the FDPA. The defendant also moves to strike on various other grounds the aggravating factors Uncharged Murders and Other Violent Conduct, Gang Motivated Killing, and Callous Disregard for the Severity of the Offense. Later, on April 6, 2010, the defendant filed a third motion to strike the non-statutory aggravating factor Future Dangerousness. (Doc. No. 968).

II. LEGAL FRAMEWORKA. Capital Sentencing

The FDPA directs that sentencing in a federal capital case be performed in two discrete phases. The first phase, “eligibility,” requires the jury to determine whether the defendant qualifies for the death penalty, while the second phase, “selection,” requires a decision as to whether a particular defendant “should in fact receive that sentence.” Tuilaepa v. California, 512 U.S. 967, 972, 114 S.Ct. 2630, 129 L.Ed.2d 750 (1994). Both the eligibility and selection phases are conducted in a special sentencing hearing mandated by the FDPA. 18 U.S.C. § 3593(b). At this hearing, “information may be presented as to any matter relevant to the sentence, ... regardless of its admissibility under the rules governing 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.” 18 U.S.C. § 3593(c). However, the process must be “neutral and principled so as to guard against bias or caprice in the sentencing decision.” Tuilaepa, 512 U.S. at 973, 114 S.Ct. 2630 (citing Gregg v. Georgia, 428 U.S. 153, 189, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976)).

To be eligible for the death penalty in a homicide case, the jury first must find that the defendant acted intentionally in killing another person. 18 U.S.C. § 3591(a)(2). Next, it must find beyond a reasonable doubt the presence of at least one statutory aggravating factor alleged in the government's Notice. 18 U.S.C. 3593(e)(2). If these findings are made, the defendant is eligible for the death penalty, and the jury proceeds to the selection phase. During this phase, the jury may consider the presence of any statutory or non-statutory aggravating factor for which the government has given notice. 18 U.S.C. § 3592(c). Each juror then weighs aggravating factors, found unanimously beyond a reasonable doubt, against mitigating factors, found by that juror by a preponderance of evidence. 18 U.S.C. § 3593(d). The jury may recommend the death penalty if it unanimously concludes that “all the aggravating factor or factors found to exist sufficiently outweigh all the mitigating factor or factors found to exist ..., or, in the absence of a mitigating factor, ... the aggravating factor or factors alone are sufficient to justify a sentence of death.” 18 U.S.C. § 3593(e).

B. Constitutional Protections

The Fifth, Sixth, and Eighth Amendments of the Constitution require that a capital sentencing scheme “ ‘suitably direct[ ] and limit [ ]’ ” a sentencing jury's discretion “ ‘so as to minimize the risk of wholly arbitrary and capricious action.’ ” Lewis v. Jeffers, 497 U.S. 764, 774, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990) (quoting Gregg v. Georgia, 428 U.S. 153, 189, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976)). Pursuant to these protections, the Court will not permit the jury to consider aggravating factors that are impermissibly vague, overbroad, or otherwise fail to “ ‘genuinely narrow the class of persons eligible for the death penalty.’ ” Arave v. Creech, 507 U.S. 463, 474, 113 S.Ct. 1534, 123 L.Ed.2d 188 (1993) (quoting Zant v. Stephens, 462 U.S. 862, 877, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983)); accord Maynard v. Cartwright, 486 U.S. 356, 364, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988) (invalidating an aggravating factor that “an ordinary person could honestly believe” applied to every eligible defendant). In sum, the Court must ensure that aggravating factors put before a sentencing jury permit it “to make a principled distinction between those who deserve the death penalty and those who do not.” Jeffers, 497 U.S. at 776, 110 S.Ct. 3092.

III. DISCUSSIONA. FDPA Authorization of Non-Statutory Aggravating Factors

At the outset, the defendant challenges the government's right to present evidence ² of any non-statutory aggravating factor during the selection phase of his sentencing. Section 3591(a) of the FDPA directs the jury to “consider[ ] ... the factors set forth in section 3592” when deciding whether to impose the death penalty. The defendant argues that because § 3591(a) references only the factors “set forth” in...