U.S. v. Cisneros

Page 827

363 F.Supp.2d 827

UNITED STATES of America, v. Ismael Juarez CISNEROS, Defendant.

No. CRIM.A. 04-328.

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

March 24, 2005.

COPYRIGHT MATERIAL OMITTED

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.

Nina J. Ginsberg, Esquire, James C. Clark, Esquire, Alexandria, VA, for Defendant.

MEMORANDUM OPINION

LEE, District Judge.

THIS MATTER is before the Court on Defendant Ismael Juarez Cisneros's Supplemental Motion to Strike Non-Statutory Aggravators from the Government's Notice of Intent to Seek the Death Penalty.¹ Defendant Ismael Juarez Cisneros 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. In light of the Court's intervening decision in United States v. Grande, 353 F.Supp.2d 623 (E.D.Va.2005), addressing a similar motion by co-defendant Oscar Antonio Grande ("Mr. Grande," "Defendant Grande"), and on other grounds, Defendant Ismael Juarez Cisneros challenges various non-statutory aggravating factors asserted by the government pursuant to 18 U.S.C. §§ 3593(a) and(c), and the government's proposed supporting evidence. For the reasons stated below, the Court GRANTS Defendant Ismael Juarez Cisneros's motion to strike:

(1) references to Mr. Cisneros's illegal immigration status in evidence supporting non-statutory aggravator (2) and in non-statutory aggravator (4), but not those found in non-statutory aggravator (1);

(2) non-statutory aggravator (1), but the Court makes it a subheading of non-statutory aggravator (2);

(3) statements of bravado and puffery allegedly made by Mr. Cisneros in support of non-statutory aggravator (2); and

(4) non-statutory aggravator (3), and supporting information (5)(a).

The Court DENIES Mr. Cisneros's motion to strike

(1) the "but not limited to" language in non-statutory aggravating factor (2);

(2) supporting information (2)(a);

(3) unadjudicated conduct from non-statutory aggravator (2), but the Court will instruct the jury it must find Mr. Cisneros committed those offenses beyond a reasonable doubt; and

(4) non-statutory aggravators (7) and (8).

I. BACKGROUND

In its Notice of Intent to Seek a Sentence of Death ("Notice"), the government states that it will seek to prove nine non-statutory aggravating factors pursuant to 18 U.S.C. §§ 3593(a) and (c) in its effort to seek a death sentence against Mr. Ismael Juarez Cisneros ("Mr. Cisneros," "Defendant"). Mr. Cisneros challenges several non-statutory aggravating factors as a consequence of the Court's decision in Grande, as well as other grounds. The following non-statutory aggravators and evidence in support of them are either objected to in Mr. Cisneros's motion or were addressed in some manner during oral hearing:

1. Defendant ISMAEL JUAREZ CISNEROS, also known as "Arana," a citizen of Mexico, has repeatedly entered the United States illegally. On or about February 13, 2004, defendant CISNEROS pled guilty to illegal re-entry after deportation.

2. While illegally in the United States, defendant ISMAEL JUAREZ CISNEROS, also known as "Arana," has engaged in a pattern of criminal activity including, but not limited to, the following:

(a) On or about August 3, 1999, defendant ISMAEL JUAREZ CISNEROS, also known as "Arana," was convicted of carrying a concealed weapon in Fairfax, Virginia.

(b) On or about April 17, 1999, defendant ISMAEL JUAREZ CISNEROS, also known as "Arana," stabbed a fifteen-year-old victim four times in the back and once in the wrist at the Fairfax Town Center shopping center in retaliation for the victim preventing co-defendant Oscar Antonio Grande from further assaulting a fellow student at school. On or about August 10, 1999, defendant CISNEROS pled guilty for this conduct, resulting in his deportation by the U.S. Immigration and Naturalization Service on or about May 30, 2000.

(c) On or about August 28, 2001, defendant ISMAEL JUAREZ CISNEROS, also known as "Arana," along with four others, stole merchandise valued at more than $200 from Hecht's department store in Manassas, Virginia.

(d) On or about July 2, 2003, defendant ISMAEL JUAREZ CISNEROS, also known as "Arana," sold a 12-gauge, pistol-grip shotgun loaded with four rounds of ammunition to a confidential informant.

(e) On or about July 25, 2003, ISMAEL JUAREZ CISNEROS, also known as "Arana," sold a .45 caliber pistol, ammunition, and cocaine to a confidential informant. At this time, defendant CISNEROS also stated that he could acquire hand grenades and would be willing to sell those to the confidential informant.

(f) On or about October 15, 2003, defendant ISMAEL JUAREZ CISNEROS, also known as "Arana," sold a .45 caliber pistol and cocaine to an undercover agent with the Bureau of Alcohol, Tobacco, Firearms and Explosives.

(g) On or about October 29, 2003, defendant ISMAEL JUAREZ CISNEROS, also known as "Arana," sold a .380 caliber pistol and cocaine to a confidential informant.

(h) On or about November 4, 2003, defendant ISMAEL JUAREZ CISNEROS, also known as "Arana," sold a .38 caliber revolver, which was loaded, and cocaine to an undercover agent with the Bureau of Alcohol, Tobacco, Firearms and Explosives. At that time, defendant CISNEROS stated his willingness to commit a home invasion/armed robbery and stated that the occupants of the location may need to be murdered during the course of the home invasion/armed robbery. Defendant CISNEROS also stated his desire to be in the prostitution business.

(i) On or about November 18, 2003, officers conducted a search of the residence occupied by defendant ISMAEL JUAREZ CISNEROS, also known as "Arana," and recovered cocaine, tools of the drug trade, and ammunition.

(j) In [sic] or about November 2003, defendant ISMAEL JUAREZ CISNEROS, also known as "Arana," made statements to a confidential informant that defendant CISNEROS wanted to shoot a police officer due to the amount of friends that defendant CISNEROS had that were currently incarcerated.

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

4. Defendant ISMAEL JUAREZ CISNEROS, also known as "Arana," a citizen of Mexico, participated in the murder of Brenda Paz, also known as "Smiley," after he illegally re-entered the United States in or about mid-2001.

5. Defendant ISMAEL JUAREZ CISNEROS, also known as "Arana," 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 in custody at the Arlington County Detention Facility, defendant ISMAEL JUAREZ CISNEROS, also known as "Arana," continued to conduct and influence MS-13 gang business occurring outside the correctional institution.

* * * * * *

7. Defendant ISMAEL JUAREZ CISNEROS, also known as "Arana," 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.

8. Defendant ISMAEL JUAREZ CISNEROS, also known as "Arana," 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 Oscar Antonio Grande and Oscar Alexander Garcia-Orellana's departure from the Holiday Inn Fair Oaks with Brenda Paz, also known as "Smiley," on July 13, 2003.

II. DISCUSSION

A. Legal Framework

Basic Sentencing Process and General Principles

In Lewis v. Jeffers, 497 U.S. 764, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990), the Supreme Court affirmed that "`[t]he Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be ... wantonly and ... freakishly imposed.'" Id. at 774, 110 S.Ct. 3092 (citing Gregg v. Georgia, 428 U.S. 153, 188, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.) (quoting Furman v. Georgia, 408 U.S. 238, 310, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (Stewart, J., concurring))). Consequently, it is essential that a capital sentencing body's discretion "be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action." Id. (quoting Gregg, 428 U.S. at 189, 96 S.Ct. 2909). Capital sentencing schemes must "`channel the sentencer's discretion' by `clear and objective standards' that provide `specific and detailed guidance,' and that `make rationally reviewable the process for imposing a sentence of death.'" Id. (quoting Godfrey v. Georgia, 446 U.S. 420, 428, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980)).

Sentencing in a federal capital case is composed of two discrete phases. See 18 U.S.C. § 3591 et seq. The first phase "eligibility," requires the factfinder to determine...