UNITED STATES v. SAENZ (2022)

REDACTED MEMORANDUM OF DECISION & ORDER

In this prosecution arising from alleged criminal activity by purported members and leaders of La Mara Salvatrucha (the “MS-13”), [Material Redacted] the Court finds that the Government has complied with its discovery obligations in part, but additional information should be produced forthwith and additional material may need to be provided prior to trial. Moreover, because this case has been pending for years, concerns matters of public importance, and presents substantial scheduling challenges, defense counsel are directed to file their application for deauthorization with the Department of Justice by January 31, 2023.

BACKGROUND

On October 16, 2019, a grand jury sitting in this district returned a 75-page, 89-count Seventh Superseding Indictment charging the Saenz defendants, who are brothers, along with 24 other individuals, with criminal acts on behalf of the MS-13. DE 1163. The Saenz brothers were charged together in numerous counts, including capital offenses relating to the deaths of seven individuals.¹ Id. The Seventh Superseding Indictment charges a total of fifteen homicides, including eight homicides in which the Saenz defendants are not charged. See DE 1163, Racketeering Acts Nos. 3, 4, 8, 11, 23, 24, 25 & 26.

Pursuant to the Federal Death Penalty Act, 18 U.S.C. §§ 3591 et seq., the Government filed Notices of Intent to Seek the Death Penalty on July 15 and November 20, 2020, against Alexi and Jairo Saenz, respectively, following authorization by the former Attorney General. DE 1429, 1539.

[Material Redacted] On December 6, 2021, this matter was reassigned from Judge Bianco to the undersigned.

[Material Redacted] [T]he Government has represented that numerous individuals allegedly participating in the seven homicides charged against these defendants will not face the death penalty because either (1) the Attorney General has authorized the U.S. Attorney to not seek death, or (2) other participants are juveniles ineligible for the death penalty:

DE 2165 at 2–3. Beyond this, the Government has revealed that at least 12 defendants in a now-unsealed indictment against individuals allegedly representing top international leadership of the MS-13 are ineligible for the death penalty as a result of representations made during extradition proceedings. United States v. Henriquez, 20 CR 577. Finally, the Government affirmed that two defendants who are purportedly leaders of the relevant clique will not face death, one because of matters incident to extradition proceedings and a second because of “no authorization” determinations. United States v. Diaz, 20 CR 103 (E.D. Va.) & United States v. Salazar, 14 CR 68 (JFB).

Yet the Government has refused to produce certain categories of information based on several distinctions, discussed herein. The bases for the objection include arguments that information sought falls outside the scope of Rule 16 discovery, the fact that individuals identified are not directly implicated in the above-listed seven homicides and that, in at least one instance, the Government's investigation is ongoing.

This opinion follows.

DISCUSSION

1. The Government's Discovery Obligations: Deauthorization and Trial

“[D]eath is a different kind of punishment from any other which may be imposed in this country,” the Supreme Court has held. Gardner v. Florida, 430 U.S. 349, 357, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977). “[T]he action of the sovereign in taking the life of one of its citizens also differs dramatically from any other legitimate state action.” Id. at 357–58, 97 S.Ct. 1197. The Supreme Court has ruled that “individualized consideration of mitigating factors [are] required by the Eighth and Fourteenth Amendments in capital cases.” Lockett v. Ohio, 438 U.S. 586, 606, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) (such consideration is required to “avoid the risk that the death penalty will be imposed in spite of factors which may call for a less severe penalty”). Similarly, the court must require “production of documents that are material to an aggravating factor.” United States v. Karake, 370 F. Supp. 2d 275, 279 (D.D.C. 2005).

As a consequence, in capital prosecutions, broad and timely discovery must be provided as to information that may bear on full and proper consideration of Congressional and Constitutional requisites. One district court rejected “technical arguments regarding Rule 16” in this context noting that “district courts have inherent authority to order discovery outside the rules.” Karake, 370 F. Supp. 2d at 281.

The information [at issue] potentially implicates various mitigating factors. One is found in 18 U.S.C. § 3592(a)(4), which provides that when “[a]nother defendant or defendants, equally culpable in the crime, will not be punished by death,” such facts may mitigate against the imposition of death. Such facts may also satisfy the catchall provision contained in § 3592(a)(8), which permits consideration of “any other circumstance of the offense that mitigate against imposition of the death sentence.” DE 2001 at 2. Courts have incorporated these concerns in various iterations; [including] a panoply of excerpts from capital verdict sheets, reproduced below.²

[Material Redacted] [D]emonstrating that “a defendant played a comparable or lesser role in the crimes or the criminal organization than others who are not subject to execution can be powerful mitigating evidence.” DE 2001 at 2. Based on information gathered from various sources, [Material Redacted] there is “at least ‘some indication’ that the murders at issue were dictated by people above the Saenz brothers in the MS-13 hierarchy.” [Citation Redacted]

Where, as here, the Government alleges wide-ranging aggravating factors in seeking death, such assertion results in a concomitant expansion of the scope of discovery. One court commented upon:

the breadth of the aggravating factor set forth [ ], which can be read to suggest that defendants were active and willing participants in the ALIR for a seven-year period. Obviously, if there is contradictory evidence, including evidence that a defendant's role was minor relative to others, this could be discoverable. In short, if the jury is going to consider an aggravating factor, defendant must be provided with evidence in the government's possession to rebut that factor.

Karake, 370 F. Supp. 2d at 281 . [Material Redacted] [T]he information sought also could serve to controvert a showing of future dangerousness, which the Government identified as a specific aggravating factor with respect to defendants. DE 2194 at 12.

Courts have differed as to a defendant's right to obtain discovery in the pre-authorization phase. United States v. Wilson, 518 F. Supp. 3d 678, 684 (W.D.N.Y. 2021) (“the case law addressing a defendant's right to pre-authorization discovery has not always been consistent”) (collecting cases). “Rule 16 may apply at this stage of the prosecution to mitigating factors with respect to a potential death sentence.” Id. at 687 (holding at the pre-authorization stage that “evidence with respect to mitigating factors that may influence the DOJ not to seek the death penalty” such as criminal histories that “identif[y] any individual who is equally as culpable” falls “within the scope of Rule 16 discovery”); see also United States v. Tsarnaev, No. CRIM.A. 13-10200-GAO, 2013 WL 6196279, at *4 (D. Mass. Nov. 27, 2013) (in the context of a death-eligible case, discovery under Rule 16(a)(1)(E)(i) includes information material to defense preparation for the penalty phase”).

Of course, this case presents a different question: whether the Government has the obligation to provide exculpatory materials in connection with a deauthorization application. To the extent that courts have described preauthorization as an “administrative, discretionary decision-making process of whether to seek the death penalty,” United States v. Crusius, 2020 WL 4340550, at *4 (W.D. Tex. 2020) (quoting United States v. Shakir, 113 F. Supp. 2d 1182, 1188 (M.D. Tenn. 2000)), much the same can be said of deauthorization, a fact that could suggest that no Brady disclosure obligations arise. United States v. Le, 306 F. Supp. 2d 589, 592 (E.D. Va. 2004) (“defendant has no constitutional right to exculpatory material in connection with, or in time for, its effective use during the DOJ's internal death penalty authorization process”).

Yet deauthorization implicates different concerns. The filing of the Notice of Intent to Seek the Death Penalty, standing alone, represents a material change in the interests at stake and the scope of the Government's obligations under Rule 16 and Brady. United States v. Perez, 222 F. Supp. 2d 164, 168 (D. Conn. 2002) (filing of Notice of Intent changes scope of discovery such that “the Government's Brady obligations include disclosure of, inter alia, mitigating evidence”); see also United States v. Jackson, No. 02 CR. 756, 2003 WL 22023972, at *3 (S.D.N.Y. Aug. 27, 2003) (“penalty determination relevant material within the scope of Brady ․ must be produced in time to be used in defense counsels’ argumentation against pursuit of the death penalty”). Because the Notice of Intent specifies the aggravating factors upon which the Government intends to rely, it fundamentally alters the Government's disclosure obligations. When facing an indictment, a defendant is entitled under Brady to exculpatory evidence and, under Rule 16, to certain information that would assist in the defense as to the substantive charges. However, once the Government files the Notice of Intent listing aggravating factors, those obligations broaden to include information that may rebut the aggravators or buttress potential mitigators. In addition, once the Government has formally notified the defendant of its intent to seek the death penalty, Brady obligations arise from the impending capital trial, and thus do not emanate solely from the administrative process. In other words, deauthorization does not create an entirely independent right to Brady disclosure, but rather the Government's obligations are intertwined and, in a sense, inseparable. Cf. United States v. Le, 306 F. Supp. 2d 589, 592 (E.D. Va. 2004)(“Where, as here, the trial and administrative processes are proceeding simultaneously, the government's Brady obligations, triggered by the defendant's trial, will operate to compel the government to disclose to defendant all exculpatory material on a prompt, as discovered, basis”).

Thus, in the case of deauthorization, defendants have some right – perhaps best seen as a qualified or derivative right – to provision of timely discovery of information that either serves to rebut identified aggravating factors or buttress mitigators. While the Government here – and in other cases ³ – emphasizes that the deauthorization decision will ultimately be made by the Attorney General who, in theory, already knows all the subject data, questions of life and death are far too important to entrust to a legal fiction. Additionally, defense counsel should have the opportunity, as far as is practicable, to marshal the evidence on behalf of their clients and investigate other leads. Any other outcome raises serious questions under the Sixth Amendment. United States v. Pena-Gonzalez, 62 F. Supp. 2d 358, 363 (D.P.R. 1999) (“capital punishment certification hearing is a ‘critical’ stage of a criminal proceeding” to which the Sixth Amendment attaches); cf. Missouri v. Frye, 566 U.S. 134, 140, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012) (finding Sixth Amendment right to counsel attaches to negotiation of plea agreement even though “no formal court proceedings are involved”).

Against this backdrop, then, the Court evaluates several requests for information which appear to require a fuller response.

A. Comparable Culpability and Death Penalty Status of Other MS-13 Leaders

The Government [Material Redacted] provides some evidence regarding the status of others potentially culpable in the charged homicides. [Material Redacted] [T]he Government improperly limited its responses to charged individuals and construed the relevant offenses too narrowly. This is particularly problematic with respect to leaders – individuals within the MS-13 who occupied positions within the organization with greater authority than the defendants.

Significantly, in early 2021 (subsequent to filing of the Notices of Intent), the Government unsealed the indictment relating to Ranfla Nacional, alleged to be the “highest level of leadership in MS-13 and provided overall direction for the gang, acting as the equivalent of a ‘board of directors.’ ” Henriquez, 20 CR 577, DE 1 at ¶ 6. In response to discovery demands concerning the relative culpability of the Henriquez defendants, the Government represents that “at this time, the Government is presently aware of no connection between the Henriquez defendants and the murders with which the Saenz brothers are charged.” DE 2165 at 5.

Limiting the response to the “murders with which the Saenz brothers are charged” misconstrues the scope of information that must be produced. First, the indictment charges violations of 18 U.S.C. § 1959, applicable only to homicides and other crimes done in furtherance of a racketeering enterprise. Therefore, the offenses for which the defendants are potentially facing the death penalty are not limited to homicides charged but encompass the criminal activities of the racketeering enterprise. Compare, e.g., 18 U.S.C. § 1111 (statutory provision for stand-alone murder within federal jurisdiction). Indeed, even the charges under 18 U.S.C. § 924(j), involving causing death through use of a firearm, are expressly derivative of the § 1959 charges, and therefore equally dependent upon the racketeering enterprise. See, e.g., DE 1170, Count 64 (incorporating by reference Count 63 which, in turn, incorporates Counts 1, 2 and 62). The Notices of Intent further establish the critical relevance of the underlying racketeering activity to the death penalty request, as identified aggravating factors far exceed the boundaries of the charged homicides. For example, according to the Government, future dangerousness of each defendant will be:

evidenced by, at least, one or more of the following: (a) his participation in a continuing pattern of violence before his arrest; (b) his ongoing membership and leadership in the MS-13, a transnational criminal organization with a significant and growing presence in Bureau of Prisons facilities; and (c) his continued criminal conduct while incarcerated ․

DE 1429 at 7, ¶ 4. More generally, the Government intends to seek imposition of the death penalty via a comprehensive evidentiary showing:

The government further gives notice that, in support of imposition of the death penalty, it intends to rely upon all the evidence admitted by the Court during the guilt phase of the trial and the offenses of conviction, as described in the Seventh Superseding Indictment, as they relate to the background and character of the defendant, his moral culpability and the nature and circumstances of the offenses charged in the Seventh Superseding Indictment.

DE 1429 at 7–8. Having defined this vast cauldron of bad acts that may be offered to support the imposition of death, the Government cannot limit its disclosures solely to the charged homicides.

Furthermore, mitigating factors are also implicated. For example, if other individuals “equally culpable in the crime” are not facing death, 18 U.S.C. § 3592(a)(4) provides that such information can be considered a mitigating factor. Obviously, the scope of disclosure in connection with this mitigator turns on the definition of the word “crime.” Once again, based on the analysis of the charges and alleged aggravating factors, for these purposes “crime” extends beyond the charged homicides.

Having determined that the Government should apply a wider aperture to its disclosures herein, it is difficult to define the parameters of such discovery absent familiarity with the information in the Government's possession. Clearly, additional information should be provided about the comparative culpability of the defendants to others within the MS-13 leadership structure. “Obviously, if there is contradictory evidence, including evidence that a defendant's role was minor relative to others, this could be discoverable.” Karake, 370 F. Supp. 2d at 281; cf. Perez, 222 F. Supp. 2d at 170 (“Given that Gonzalez is presently subject to a possible penalty of death, Brady requires that upon showing of a substantial basis for claiming that a mitigating or aggravating factor will apply during the penalty phase, Gonzalez must be given the opportunity to view evidence in the Government's possession that is material (in the Brady sense) to that factor”).

B. Information Relating to Identified Local Leaders

One specific [issue] arises from the status of Kevin Torres, a/k/a “Inquieto,”⁴ an alleged MS-13 leader against whom charges are pending.⁵ In a July 14, 2020 detention letter, the Government represented that Torres was “the leader of the Sailors clique for all of New York.” Alfaro, 20 CR 251, DE 13 at 2. With respect to the Acosta and Castillo murders, at issue here, the Government represented that:

Torres, in fact, ordered the “greenlight” (i.e., authorization to be killed) for Acosta, and assigned roles as to which MS-13 members would take the lead in planning and carrying out the murder.6 [ ]

As the New York leader of the Sailors clique, Torres authorized the members of the clique operating in Brentwood to bring Castillo to his territory in Freeport to be killed.

Id. at 2, 4. The next day, the Government filed the Notice of Intent to Seek the Death Penalty, which predicated the determination to seek capital punishment as against Alexi Saenz, in part, upon the following allegation:

[Alexi Saenz], as the leader of the Brentwood/Central Islip chapter of the Sailors Locos Salvatruchas Westside (“Sailors”) clique of the MS-13, directed acts of violence, including the murders of ․ Oscar Acosta [and] Javier Castillo.

DE 1429 at 6; cf. DE 1539 at 6 (Notice describing Jairo Saenz as “the second-in-command of the Brentwood/Central Islip chapter of the Sailors” clique and similarly alleging a leadership aggravator). While these statements are not necessarily inconsistent, facial disparities in these representations suggest the existence of developing information potentially relevant to the consideration of aggravating and mitigating factors.

[Material Redacted] [R]egarding the “number of murders committed, authorized, or participated in, by ․ Torres,” among others, the Government [represents]:

Torres is presently charged with three murders; namely, Acosta, Castillo, and the May 21, 2016 murder of victim Kerin Pineda. The Government's investigation of Torres remains ongoing, however.

DE 2165 at 5. Given that Torres has been an indicted defendant in the charged homicides and related charges since 2018, “ongoing investigation” constitutes a threadbare justification and the Government's response seems incomplete. Similar concerns are raised by the status of Miguel Angel Corea Diaz, identified as a “leader” of the Sailors clique who reported directly to MS-13 hierarchy in El Salvador. Id.; DE 2194 at 3–4.

It remains unclear whether the Government is withholding information on the basis of continuing investigation of Torres, or that the investigation reference was a prophylactic placeholder in the event of further developments. In any event, the Government should provide defense counsel with available information concerning the role of Torres, Diaz and other similarly situated leaders in the MS-13 generally and as to specific charged conduct, such that full arguments can be developed concerning aggravating and mitigating factors, including the leadership aggravator.

C. Communications Concerning the Charged Homicides

[Material Redacted] The government has limited discovery to communications in which the Saenz brothers personally participated. DE 2165 at 4 [Material Redacted] With respect to such communications, the Government, [Material Redacted] should produce “any information it has about directives to kill the individuals identified in the indictment, or to kill general classes of individuals, that was discussed among or on behalf of any of the leaders named in the defense motion,” whether or not the Saenz defendants participated in such communications. DE 2194 at 13.

Scheduling Issues Concerning the Deauthorization Process

More than a year ago, and prior to the transfer of this case to the undersigned, correspondence from defense counsel consistently appeared to indicate that the filing of a deauthorization request was forthcoming, and perhaps imminent. [Material Redacted]. The steady drumfire of CJA applications funding such efforts served to reinforce that such application was impending.

On October 4, 2022, the Court entered an order directing defense counsel to provide a report concerning the status of the deauthorization requests. Electronic Order dated Oct. 4, 2022. Two days later, defense counsel filed a report indicating that the long-anticipated application had not yet been filed, and suggesting that “in general terms and absent unforeseen circumstances, the development and presentation of this submission will be finished within six months to a year.” DE 2178 at 4. Counsel indicates that several efforts to further develop mitigating evidence are underway, which were substantially delayed due to COVID, and further represents that:

Because this work is just beginning with the assistance of new counsel, it is difficult to ascertain a specific timeframe when either Mr. Alexi Saenz or Mr. Jairo Saenz may be in a position to make a meaningful submission to the USA, CCS and the Attorney General.

Id.

Defense counsel understandably seek to “make the most compelling submissions possible for deauthorization.” Id. at 4. It is also evident that amount of the time it will take to prepare the “most compelling” case is highly speculative. Id. Given the years that have elapsed since this case commenced, time is not unlimited as this Court must effectively manage this case and its docket, and counsel's position brings to mind the aphorism suggesting that “the perfect is the enemy of the good.”

Also, defense counsel point to the general disfavor regarding successive petitions, reducing this to the imperative that defendants have “only one real opportunity to persuade the CCS and the Attorney General to withdraw the Notice of Intent to Seek the Death Penalty.” Id. at 3. While such caution is laudable, it misstates the matter. First, Section 9-10.160 of the Justice Manual discourages serial applications, but explicitly permits such filings based on “extraordinary circumstances.” Second, this Court is unaware of any authority, and research has produced none, suggesting that a deauthorization request cannot be supplemented with additional information while the process is ongoing.

Moreover, implicit in counsel's submission is the suggestion that defendants currently lack a substantial basis upon which to seek deauthorization. A review of the facts set forth above suggests otherwise. Since the filing of the Notices of Intent, in this case alone, the Government has filed declinations as to at least six other defendants implicated in the homicides charged. DE 1750, 1939, 1967, 2127. Further, the Government has revealed that still others implicated in the charged homicides will not face the death penalty because they are juveniles. The questions concerning the role of other leaders, including Mr. Torres and the Ranfla Nacional have emerged since the filing of the Notices herein.⁷ Taken together, these factors clearly constitute powerful changed circumstances and would appear to provide a good faith basis for filing a reconsideration application immediately. Recognizing that counsel needs a reasoned time to conclude certain efforts, defense counsel is hereby ORDERED to file deauthorization requests on or before January 31, 2023. The Court requests that the Department of Justice expedite review of said requests to the extent practicable.

CONCLUSION

Based on the foregoing, counsel for the Government is directed to supplement its disclosures as appropriate in a manner consistent with the principles set forth herein, and mindful that defense counsel must finalize deauthorization applications shortly. The Court will initially rely upon counsel to work together to resolve these issues, as attorneys on both sides have worked diligently, responsibly and professionally in this matter (as well as others). Of course, further issues can be raised with the Court. As noted, defense counsel is directed to file such applications on or before January 31, 2023, and the Department of Justice is respectfully requested to expedite review of these matters.

FOOTNOTES

1.   In two instances, to wit: the notorious murders of Nisa Mickens and Kayla Cuevas, the Superseding Indictment charges the Saenz defendants as “accessories after the fact” under 18 U.S.C. § 3, punishable by 15 years in prison. DE 1163 at 55, Count 53. At the same time, the indictment charges these defendants substantively in the homicides, giving rise to a potential death sentence for these offenses under 18 U.S.C. § 2. Id. at 53–54, Counts 50 and 52.

2.   “Other defendants with greater authority in the piracy conspiracy will not be punished by death.” (U.S. v. Shani Abrar, E.D. Va. 2013); “Other persons who committed murders in this drug conspiracy will not be punished by death” (U.S. v. James Dinkins, D. Md. 2009); “Cooperating witnesses and/or cooperating defendants who have killed someone will not be sentenced to death” (U.S. v. Juan Briseno, N.D. Ind. 2015); “No other participant in the events surrounding the death of [ ]will be punished with death, and nearly every other participant in the events will serve a prison term of less than ten years” (U.S. v. Robert Ostrander, W.D. Mich. 2003). DE 2001 at 2. Other examples include: “[T]he Defendant is less culpable than those conspirators who planned and facilitated the bombing of the United States Embassy in Nairobi, Kenya and continue to plan and execute similar acts in the future” (U.S. v. Al-Owhali (S.D.N.Y. 2001) (emphasis added)); “There are other members of organized crime that have admitted to an equal or greater number of serious crimes that are not facing the death penalty, much less incarcerated” (U.S. v. Vincent Basciano (E.D.N.Y. 2011) (handwritten notation by jurors on verdict sheet)). DE 2194 at 13.

3.   See, e.g., United States v. Cureton, 2016 WL 755648, at *3 (W.D.N.C. Feb. 25, 2016) (“[I]t must be remembered that such hearing is before the Attorney General, who has access to all the government documents in the case.”).

4.   Torres was charged in the instant case, but then dismissed in November 2022 after being charged in another multi-defendant action pending before Judge Azrack. DE 1893. See U.S. v. Alfaro, 20 CR 251 (JMA). In the instant case, Torres had been charged in the Acosta murder, together with the Saenz defendants and two other named defendants. DE 442 at 38. By contrast, in the Alfaro indictment, Torres is charged in the Acosta murder together with unnamed others. Alfaro, DE 239 at 13–14. Similarly, with respect to the Castillo homicide, five individuals were charged herein, but Torres was not charged in this case with that crime. DE 442 at 52. In the Alfaro indictment, though, Torres is charged in the Castillo homicide together with another named defendant not charged in the instant case. Alfaro, DE 239 at 9. At the Government's request, Judge Bianco approved the dismissal of the instant indictment as to Torres. DE 1893. Now that the cases are assigned to two different judges, these charging decision raise unanticipated questions of judicial economy which must be revisited before trial of either case.

5.   The death penalty determination remains pending as to Torres. See Alfaro, DE 160; DE 2194 at 3.

6.   Further description of the homicides contained in that filing suggest – though the identities of the participants are obscured – that Torres summoned the Saenz defendants for assistance in the Acosta murder only after the victim had been beaten into unconsciousness, facts which could bear on factors such as the question of substantial planning and premeditation as it related to these defendants. Alfaro, DE 13 at 2.

7.   There are, of course, factors that might be considered in the deauthorization process that may be beyond the contours of the Federal Death Penalty Act, including whether political considerations might have affected the decision-making process here. See, e.g., 2018 State of the Union address (discussing homicides charged in this case) available at https://www.cnn.com/2018/01/30/politics/2018-state-of-the-union-transcript; “Remarks by President Trump in Briefing on Keeping American Communities Safe: The Takedown of Key MS-13 Criminal Leaders,” July 15, 2020 (comments of the former President and former Attorney General about the filing of death notices in this case), available at https://trumpwhitehouse.archives.gov/briefings-statements/remarks-president-trump-briefing-keeping-american-communities-safe-takedown-key-ms-13-criminal-leaders/. But see In re U.S., 397 F.3d 274, 286 (5th Cir. 2005) (“the Federal Death Penalty Act affords no mitigation of penalty based on selective prosecution”).

GARY R. BROWN, United States District Judge: