United States v. Martinez

• Decision Date: 05 May 2021
• Docket Number: Criminal Action No. 1:18-cr-123-2 (RDA)
• Parties: UNITED STATES OF AMERICA v. ELMER ZELAYA MARTINEZ, Defendant.
• Court: U.S. District Court — Eastern District of Virginia

UNITED STATES OF AMERICA v. ELMER ZELAYA MARTINEZ, Defendant.

Criminal Action No. 1:18-cr-123-2 (RDA)

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division

May 5, 2021

MEMORANDUM OPINION AND ORDER

This matter comes before the Court on certain pretrial motions brought by Defendant Elmer Zelaya Martinez's ("Defendant"): Motion to Strike the Death Penalty (Dkt. 724); Challenge and Additional Challenges to Notice of Intent to Seek the Death Penalty (Dkt. Nos. 726; 758); Motion to Strike the Death Penalty as a Sentence Option (Dkt. 727); Motion for Informative Outline of Aggravating Factors (Dkt. 728); Motion for Rule 5(f) Order (Dkt. 759); and Motion to Compel Production of Discovery Under Federal Rule of Criminal Procedure 16 and Brady Line of Cases (Dkt. 760). Having considered the parties' briefs and oral argument, these matters are now ripe for resolution.

I. BACKGROUND

On February 21, 2019, a federal grand jury returned a Second Superseding Indictment ("Indictment"), charging Defendant and his co-defendants with various crimes, including racketeering activity that allegedly involved extortion and murder. See Dkt. 162. That Indictment sets forth that Defendant belonged to a criminal racketeering enterprise—La Mara Salvatrucha, or MS-13—one of whose purposes was "preserving, expanding, and protecting the power, territory, and reputation of MS-13 through the use of violence, threats of violence, and intimidation." Id. ¶¶ 1, 12(a). According to the Indictment, the MS-13 "clique" to which Defendant belonged, Park View Locos Salvatrucha, operated in Fairfax County, Virginia, among other places. Id. ¶ 8.

The Indictment further alleges that the "purpose of the conspiracy was to adhere to MS-13's rule of attacking and killing individuals who are identified as being rival gang members." Id. at 10, 15. Relevant here, Defendant Elmer Zelaya Martinez has been charged with murdering two victims he and his co-defendants believed to be members of rival gangs: S.A.A.T. and E.E.E.M. See id. at 20-21 (Counts Five and Six charging Defendant with murder in aid of racketeering activity in violation of 18 U.S.C. §§ 1959(a)(1) and (2)). The eight-count Indictment includes several intent factors drawn from 18 U.S.C. § 3591 and sets forth several statutory aggravating factors outlined in 18 U.S.C. § 3592(c).

On January 6, 2020, the Government filed its Notice of Intent to Seek a Sentence of Death ("Notice of Intent" or "NOI") as to Defendant Elmer Zelaya Martinez alone. Dkt. 425. This notice closely resembles the Indictment's special findings and adds other non-statutory aggravating from 18 U.S.C. § 3593(a) and (c). Following that Notice of Intent authorized by then-Attorney General William Barr, the Court—citing the risk of prejudice—severed the trial of Defendant from the trial of his co-defendants, none of whom face a potential death sentence. Dkt. 447. Defendant's separate capital trial is set to begin on April 4, 2022. Dkt. 832.

Defendant brought a number of motions related to the Government's decision to seek the death penalty in his case. The Court held a hearing on these motions on March 10, 2021. Dkt. 830. At that hearing, the Court indicated that it would grant Defendant's Motion for Continuance of the Trial Date (Dkt. 717) and the Government's Unopposed Motion for Entry of An Amended Order Pertaining to Rule 12.2(b)(2) Procedures (Dkt. 825). Orders granting these motions issued the following day. Dkt. Nos. 832; 834. At the motions hearing, Defendant withdrew withoutprejudice his Motion for Disclosure of Jury Records (Dkt. 729). The Court took the remaining motions submitted by Defendant under advisement. On April 15, 2021, the Court granted Defendant's Motion for Rule 5(f) Order. See Dkt. 853.

II. STANDARD OF REVIEW

The Court is guided by several legal standards as it evaluates the merits of Defendant's motions. First, the Court presumes—as it must—that the Federal Death Penalty Act ("FDPA") is constitutional on its face. See Glossip v. Gross, 576 U.S. 863, 869 (2015); Gregg v. Georgia, 428 U.S. 153, 175 (1976) (plurality opinion) ("[I]n assessing a punishment selected by a democratically elected legislature against the constitutional measure, we presume its validity."). A defendant challenging the FDPA, then, bears the burden of proving that the law is unconstitutional. See Lujan v. G & G Fire Sprinklers, Inc., 532 U.S. 189, 198 (2001) ("As the party challenging the statutory [] scheme, respondent bears the burden of demonstrating its unconstitutionality."); see also INS v. Chadha, 462 U.S. 919, 944 (1983) ("We begin, of course, with the presumption that the challenged statute is valid.").

For a capital defendant to prevail on his facial challenge to the death penalty, he must show that "no set of circumstances exists under which the [FDPA] would be valid." United States v. Salerno, 481 U.S. 739, 745 (1987) ("A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully."). Accordingly, when a court reviews an "as-applied" challenge, it must examine only the application of the law to the particular parties and the facts of the case before it, without considering whether the FDPA could be construed as unconstitutional in another hypothetical case. See United States v. Le, 327 F. Supp. 2d 601, 610 (E.D. Va. 2004); accord United States v. Stevens, 559 U.S. 460, 473 n.3 (2010) (observing that case-specific "factual assumptions . . . can be evaluated only in the context of an as-applied challenge."). Andfinally, when the Supreme Court has spoken on an issue with "direct application in a case," this Court must "follow the case which directly controls, leaving to [the Supreme] Court the prerogative of overruling its own decisions." Rodriguez de Quijas v. Shearson/Am. Exp., Inc., 490 U.S. 477, 484 (1989).

III. ANALYSIS

A. Motion to Strike the Death Penalty

Defendant moves to strike the Government's notice of intent to seek the death penalty, advancing three main arguments for why the Court should find the FDPA unconstitutional. Dkt. 724. First, he contends that the law is facially unconstitutional, arguing that it must fall under Ring v. Arizona, 536 U.S. 584 (2002), and the Fifth, Sixth, and Eighth Amendments because the law does not specifically require the prosecutor to present statutory aggravating factors to the grand jury and charge them in the indictment. Second, Defendant claims the Special Findings in the Indictment run afoul of the Fifth Amendment's Indictment Clause. Third, he argues that the non-statutory aggravating factors alleged in the death notice are not supported by the Indictment and must be dismissed. The Court addresses each argument in turn.

1. Constitutionality under Ring v. Arizona

At the outset, the Court does not agree that Ring decrees the FDPA facially unconstitutional. In that opinion, the Supreme Court overruled its prior precedent in Walton v. Arizona "to the extent that it allows a sentencing judge, sitting without a jury, to find an aggravating circumstance necessary for imposition of the death penalty." Ring, 536 U.S. at 609. Reasoning that the "enumerated aggravating factors" in Arizona's capital sentencing scheme operated as "'the functional equivalent of an element of a greater offense'" as defined by the Court's subsequent decision in Apprendi v. New Jersey, 530 U.S. 466, 494 n.19 (2000), Ringreconciled the Court's conflicting precedents by deciding that the Sixth Amendment guarantee means these aggravating factors must be found by a jury—not a judge. 536 U.S. at 609.

Defendant argues that this core holding from Ring applies with equal force to the FDPA because the statute does not expressly require statutory aggravating factors to be alleged in an indictment. Dkt. 724, 8-10. Yet his argument overreads Ring and discounts Fourth Circuit authority approving of the capital charging procedure the Government followed in this case. The Supreme Court in Ring held that aggravating factors must be found by a jury at the penalty phase, but it never held an aggravating factor must be presented to and charged by a grand jury at the indictment stage. See 536 U.S. at 609.

The fact that the text of the FDPA does not expressly require a grand jury to charge an aggravating factor does not necessarily mean that a prosecutor is barred from presenting an aggravating factor to the grand jury when she seeks an indictment. See United States v. Barnette, 390 F.3d 775, 789 (4th Cir. 2004) ("A review of the statute itself reveals no language that restricts the government from submitting aggravating factors to the grand jury . . . the fact that the government is not so restricted is no indication that such is required"), judgment vacated on other grounds, 546 U.S. 803 (2005). Under the FDPA, the government may include an aggravating factor in a death notice notwithstanding the fact that the aggravator did not appear on the face of the indictment. That is the law of this circuit, and the Court is duty-bound to follow it unless and until the appellate court follows a new course.

Defendants' non-delegation and separation of powers arguments are also unsuccessful. Contrary to Defendant's suggestion, the Court need not engage in "judicial amendment" to uphold the statute as constitutional. Dkt. 724, 5 (citing United States v. Jackson, 390 U.S. 570 (1968)). Moreover, Jackson does not control the outcome of this case. The Supreme Court in Jacksondeclared the Federal Kidnapping Act's death-penalty provision unconstitutional, turning back a rather bold argument to formulate a saving construction of the law. See 390 U.S. at 585. The government argued that the statute at issue in Jackson, which penalized defendants who exercised their jury trial rights by subjecting them to the death penalty—while at the same time exempting from capital punishment any defendant who entered a guilty plea or waived his jury trial right—could be cured if the Supreme Court...