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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

UNITED STATES OF AMERICA *

v. * CRIMINAL NO. JKB-16-0259

ELMIN IVAN PORTILLO-GUITERREZ, *


et al.
*
Defendants
* * * * * * * * * * * *

MEMORANDUM AND ORDER

An indictment was returned in this case on May 25, 2016, charging a single defendant in

two non-capital counts (ECF No. 1). On August 17, 2016, a superseding indictment was

returned (ECF No. 15), adding defendants but still no capital counts. On June 29, 2017, a second

superseding indictment was returned (ECF No. 100) adding a capital count as to at least two of

the defendants.

On December 22, 2016, six months prior to the return of the capital count, the Court

scheduled trial in this matter to begin on August 21, 2017 (ECF No. 52). After a scheduling

conference call on June 14, 2017, the Court entered an Order vacating the trial date (ECF No. 76)

and an amended scheduling order was entered on August 23, 2017 (ECF No. 89). A new trial

date of March 26, 2018 was set. Significantly, in that amended scheduling order, the Court set a

deadline of October 6, 2017, by which the Government was required to advise whether and

against whom they would seek the death penalty. This deadline was set pursuant to the

authority set out in 18 U.S.C. 3593(a) wherein the Government is required to give notice a

reasonable time before the trial as to whether they will seek the death penalty. Implicit in that

provision is the authority of the Court to determine what amounts to a reasonable time, and
implicit in the Courts scheduling order of August 23, 2017, is its determination that a

reasonable time would expire on October 6, 2017.

On October 5, 2017, the Government filed its motion (ECF No. 96) seeking an additional

30 days within which to give its answer on whether it would seek the death penalty. In granting

the Governments request, the Court noted that the Court would absolutely enforce a death notice

deadline in this case, but it also granted the requested extension until November 6, 2017. The

Court made the finding that any time less than [the 140 days between the new deadline and the

trial date would be] insufficient for the defendants to prepare for trial of a case in which the death

penalty is at issue. The Court went on to state: Consequently, the Court has no intention to

further extend this important deadline. (ECF No. 98.) On November 2, 2017, the Government

sought yet another extension of the notice deadline (ECF No. 101), but that request was

summarily denied (ECF No. 102).

The Court also notes its authority and discretion to enter the orders necessary to

reasonably manage its calendar. The Governments pursuit of the death penalty would

substantially lengthen this trialby weeks, likely. This circumstance, also, compels reasonable

notice to the Court as to the Governments intentionsthe Court deems notice no less than 140

days prior to when the trial is scheduled to begin to be the outer limit of reasonable for these

purposes as well.

The Government did not file its notice pursuant to 18 U.S.C. 3593 on or before

November 6, 2017. Accordingly, it has WAIVED its authority to do so, and it shall not be heard

to seek imposition of the death penalty in this case.1

1
The Court notes the submission of a letter from Government counsel on November 10, 2017 (ECF No. 107),
purporting to notify the Court that the Government would not seek the death penalty in this case. This tardy
notification is a nullity, and of no moment, in that the Government had already waived any prospect of seeking the
death penalty by failing to file notice under 18 U.S.C. 3593(a) prior to midnight on November 6, 2017.
Given that this is no longer a capital case, counsel shall file, on or before November 22,

2017, a joint status report projecting the likely length of the trial scheduled to begin on March

26, 2018, in light of the fact that the trial will not include a capital penalty phase.

SO ORDERED.

DATED this 15th day of November, 2017.

BY THE COURT:

______________/s/____________________
James K. Bredar
Chief Judge