United States District Court, Northern District of Indiana, Hammond Division
OPINION AND ORDER
PHILIP P. SIMON, CHIEF JUDGE.
The government seeks the death penalty against defendant Juan Briseño having filed a notice of intent to seek it pursuant to 28 U.S.C. § 3593(a) (the “NOI”), which was later supplemented. (Docket Entries 503, 968, 995). Presently before me is the defendant’s Motion to Strike the Notice. (DE 1027.) I held a hearing on Briseño’s motion, and after carefully considering the briefing and arguments presented to me, I will grant in part and deny in part the motion.
The Fourth Superseding Indictment alleges that Briseño was a member of the Almighty Imperial Gangsters (the “IGs”), an organized street gang. The gang is alleged to have been a racketeering enterprise consisting of many members who conspired to commit (and did in fact commit) various criminal acts in furtherance of the enterprise including murders, attempted murders, robberies, batteries, and widespread drug dealing. The IGs were active in Northwest Indiana from at least February 2002 through the date of the Superseding Indictment (DE 652) in September 2013. They had various gang identifiers, including hand gestures, gang words, symbols and colors. The government alleges that the IGs were strongly hierarchical, and had various gang rules the violation of which could be met with harsh disciplinary measures. One of the alleged gang rules was obeying “shoot-on-sight” or “kill-on-sight” orders issued against rival gang members and IGs suspected of cooperating with law enforcement.
The Indictment details the alleged manner and means of the conspiracy. It also lists many overt acts that the government alleges were committed in furtherance of the conspiracy. The government has also filed a series of documents explaining the enterprise allegations against Briseño. (DE 732, 1066, 1198.) These filings list additional, uncharged overt acts of which the government intends to offer evidence in support of the criminal enterprise conspiracy charge.
In addition to the racketeering conspiracy charge, Briseño is charged with six murders, seven attempted murders (see DE 1062 at 26), and trafficking cocaine and marijuana. Each of the murders is charged under 18 U.S.C. § 1959(a)(1) - the federal criminal code section that outlaws murder in aid of racketeering. (See DE 652).
Briseño was charged along with more than 20 co-conspirators, all but one of whom have pleaded guilty; Richard Reyes went to trial early in 2014 and was convicted of murder, among other charges. Briseño was the only defendant against whom the government sought the death penalty. No other defendant came close to Briseño’s alleged six murders and seven attempts.
The Grand Jury also made the special findings required for the government to seek the death penalty for each of the murders charged against Briseño under the Federal Death Penalty Act of 1994 (“FDPA”). Before the government can lawfully seek the death penalty in a given case, the grand jury must find that the defendant had at least one of four possible gateway, or threshold, intents in committing the acts that led to death, 18 U.S.C. § 3591(a)(2)(A)-(D), and that at least one statutory aggravating factor was present, 18 U.S.C. § 3592(c)(5), (9), (16). A finding of at least one gateway intent and one statutory aggravator is said to render a defendant “death eligible.” The phrase “death eligible” is, in my opinion, a rather unfortunate one, and by using it I don’t mean to be flippant. That’s the nomenclature that has arisen in this area of law and, for that reason alone, I will use it as well. See, e.g., Tuilaepa v. Cal., 512 U.S. 967, 971-72 (1994).
For each of the six murders charged against Briseño, the Indictment finds all four forms of intent and at least one statutory aggravating factor. The statutory aggravating factor common to all six murder charges is that the offense was committed after substantial planning and premeditation to cause the death of a person. 18 U.S.C. § 3592(c)(9). Briseño’s motion challenges this aggravating factor, and seeks particulars about its application to each of the murder counts. Some of the murder charges list additional aggravating factors: in the commission of the offense, or in escaping apprehension for it, the defendant knowingly created a grave risk of death to one or more people apart from the murder victim, 18 U.S.C. § 3592(c)(5); and the defendant intentionally killed or attempted to kill more than one person in a single criminal episode, 18 U.S.C. § 3592(c)(16). These other two statutory aggravators aren’t challenged in the current motion, so I won’t address them in this Order.
Apart from the Indictment, before it can lawfully seek the death penalty, the government must give notice to the defendant of all of the aggravating factors of which the government intends to present evidence. 18 U.S.C. § 3593(a). The government does this by filing an NOI. The NOI in this case lists all four possible gateway intents for each of the six charged murders. The NOI also lists both the statutory aggravating factors for each murder listed in the Indictment, and additional non-statutory aggravating factors. The alleged non-statutory aggravating factors are the same for each of the six murders.
Here they are:
1. Briseño is a continuing danger to the lives and safety of other and is likely to commit criminal acts of violence in the future as evidenced by:
a. A low potential for rehabilitation as demonstrated by repeated violent criminal acts;
b. A willingness to take human life and a lack of remorse for his acts of violence as demonstrated by statements he made following these acts;
c. His stated desire to impose a rule requiring fellow members of the IGs to shoot at rivals on sight;
2. Briseño faces contemporaneous convictions for other criminal activity, including other murders and attempted murders;
3. Briseño demonstrated an allegiance to and active membership in the IG street gang;
4. Briseño caused injury, harm and loss to the victim and the victim’s family and friends, as evidenced by the victim’s personal characteristics and by the impact of the victim’s death upon his family and friends.
Briseño challenges the non-statutory aggravators of victim impact and future dangerousness, as well as the lack of remorse sub-factor.
If, at trial, the jury finds Briseño guilty of a death-eligible charge then there must be a separate sentencing hearing, or penalty phase of trial. During the sentencing the jury hears evidence of mitigating factors and aggravating factors (both statutory and non-statutory) and determines whether the aggravating factors sufficiently outweigh the mitigating factors to justify a sentence of death. 18 U.S.C. § 3593. The FDPA offers some possible mitigating factors, but the list begins by saying that “the finder of fact shall consider any mitigating factor” and the last listed factor is called “other factors, ” so the defense has broad latitude with mitigators. 18 U.S.C. § 3592(a). The FDPA also lists 16 statutory aggravating factors, and says that the jury “may consider whether any other aggravating factor for which notice has been given exists.” 18 U.S.C. § 3592(c). The FDPA doesn’t list non-statutory factors (hence the name “non-statutory”), but it references them, naming victim impact in particular: “The factors for which notice is provided under this subsection may include factors concerning the effect of the offense on the ...