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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division UNITED STATES OF AMERICA v. JORGE AVILA TORREZ ) ) ) No. 1:11cr115 (LO) ) ) Hearing: June 1, 2012

CONSOLIDATED RESPONSE OF THE UNITED STATES TO DEFENDANT’S MOTIONS The United States, through the undersigned counsel, hereby responds to the following motions: (1) Motion to Trifurcate Jury Deliberations (Docket 68); (2) Defendant’s Motion for Individual Sequestered Voir Dire by Counsel (Docket 69); Defendant’s Motion to Dismiss the “Special Findings” from the Indictment, and to Strike the Notice of Intent to Seek the Death Penalty because of the Arbitrary, Capricious, and Random Application of the Federal Death Penalty Act (Docket 70); (3) Defendant’s Motion to Strike Statutory Aggravating Factors Relating to “Previous Convictions” (Docket 71); and (4) Motion to Strike Nonstatutory Aggravators from Government’s Notice of Intent to Seek a Sentence of Death (Docket 72).1

The United States requests leave to file this consolidated response of greater than thirty pages, the page-limit imposed on responses to motions by Local Criminal Rule 47(F)(3). No individual response in this consolidated pleading exceeds thirty pages.

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I.

BACKGROUND A. Procedural History

The defendant, Jorge Avila Torrez, was charged with the first degree murder of Amanda Jean Snell, in violation of title 18, United States Code, Sections 7 and 1111, in a single-count indictment returned on May 26, 2011 (Docket 1). The indictment also contains a Notice of Special Findings alleging that Torrez was 18 years or older at the time of the offense; all four of the “intent” or “gateway factors” set forth in 18 U.S.C. § 3591(a)(2); and two statutory aggravating factors for homicide as set forth in 18 U.S.C. § 3592(c), namely, one state felony conviction involving the use or threatened use of a firearm (18 U.S.C. § 3592(c)(2)), and two or more state felony convictions involving the infliction of, or attempted infliction of, serious bodily injury or death (18 U.S.C. §§ 3592(c)(4)). Torrez was arraigned on June 17, 2011 (Docket 8). On February 29, 2012, the government filed a Notice of Intent to Seek a Sentence of Death (Docket 41). In addition to alleging the four intent factors and the two statutory aggravating factors contained in the indictment, the notice also alleges a number of nonstatutory aggravating factors under 18 U.S.C. § 3592(c)(2). Jury selection is scheduled to begin on January 28, 2013, and the presentation of evidence is scheduled to begin on or about February 13, 2013 (Docket 56, 58). B. Facts 1. The 2009 Murder of Amanda Jean Snell

The indictment arises from the killing of Amanda Jean Snell on or about July 11, 2009. Ms. Snell was a 20 year old Navy petty officer 2nd class assigned to the staff of the Chief of Naval Operations at the Pentagon. She resided in the enlisted barracks at Joint Base Myer -2-

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Henderson Hall, in Arlington, Virginia. Last seen alive in the barracks around 1:00 a.m. on Saturday morning, July 11, 2009, her body was discovered at 6:30 a.m., Monday morning, July 13, 2009, after she failed to show up for duty, wedged inside a closed wall locker in her room with a pillow case wrapped loosely around her head. At the time Ms. Snell was murdered, Torrez was a Marine Corps corporal, assigned to Headquarters Marine Corps and living in the barracks on the same tier as Ms. Snell’s, seven doors from her room. Torrez killed Ms. Snell by strangling her. The government will prove that Torrez murdered Ms. Snell through his own admissions, which are recorded, physical evidence (including DNA from the defendant’s semen found in the victim’s room), and other evidence. 2. The 2010 Abductions, Sexual Assaults and Attempted Murder

The two statutory aggravating factors and a number of the non-statutory aggravating factors stem from a series of criminal acts committed by Torrez in February of 2010. Torrez was convicted of some of this conduct in Arlington County, Virginia. In one incident, Torrez, armed with a handgun and knife, attempted to force a woman into his vehicle. She broke free and escaped. In a second incident, Torrez abducted two women at gunpoint, forcing them into a house, where he bound both of them. He then forced one of these women into his vehicle. Torrez thereafter raped, sodomized and strangled her. Thinking she was dead, he left her body in the woods in Prince William County. Miraculously, she survived. On October 15, 2010, Torrez was convicted at trial in the Circuit Court for Arlington, Virginia, of one count each of armed burglary and rape, two counts of robbery, three counts of abduction with intent to defile, three counts of forcible sodomy, and four counts of using a firearm in the commission of those felonies. On December 14, 2010, he was sentenced to five life terms and 168 years in prison. -3-

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Torrez has appealed his convictions and sentence; that appeal remains pending. In light of this sentence, Torrez was not charged with the sexual assault, attempted murder and the other offenses he committed in Prince William County. 3. The 2005 Murder of Krystal Tobias and Laura Hobbs

Included among the non-statutory aggravating factors is the allegation that Torrez is responsible for the murder of Krystal Tobias, age 9, and Laura Hobbs, age 8, in Zion, Illinois, On May 8, 2005. Torrez, 16 years old at that time, lived in Zion, Illinois, and knew both victims. Torrez stabbed Krystal Tobias 11 times and Laura Hobbs approximately 20 times, including in both eyes. He also sexually assaulted Laura Hobbs.

II.

RESPONSE TO MOTION TO TRIFURCATE The parties appear to be in agreement that the trial should proceed in three phases: a guilt

phase followed by a bifurcated sentencing proceeding if the defendant is convicted of first degree murder. See Motion of the United States Regarding Trifurcation of the Trial (Docket 64). Although the government does not believe that this procedure is constitutionally mandated, it makes sense in this case. The different evidentiary standards applicable to the eligibility and selection phases, the differences in the burden of proof for these phases, the need for separate and unique jury instructions for these phases, and other evidentiary factors certainly suggest that the fairest and most efficient way of conducting a sentencing hearing in this case is to proceed first with an eligibility phase and then, if Torrez is found eligible for the death penalty, a selection phase.

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III.

RESPONSE TO MOTION REGARDING VOIR DIRE The Court’s scheduling Order indicated that “motions relating to the jury selection

process, proposed voir dire, proposed jury instructions (all phases), and any remaining motions shall be filed on or before November 23, 2012.” (Docket 58). As such, the government has not filed any motions regarding this process. We anticipate that jury selection will proceed in phases (and we will submit a more detailed proposal regarding each phase in November), with some initial instructions and questions by the Court to the entire panel, followed by preliminary instructions to much smaller groups, followed, ultimately, by individual voir dire. The defendant argues that individual voir dire “by counsel” is necessary. The United States agrees that individual voir dire is necessary, but defers to the Court on the manner in which voir dire should be conducted. For example, as alluded to above, there may be a number of general questions that the Court may wish to ask of the entire panel or of small groups of prospective jurors. As to the Witherspoon questions, discussed below, the United States does believe those questions should be addressed with each prospective juror individually. Whether follow-up questions on the Witherspoon issues are submitted by counsel and then asked by the Court, or asked directly by counsel, the government defers to the Court on which procedure to use. The object of jury selection in a capital case is the same as for any other case: ensuring “a fair trial by a panel of impartial, ‘indifferent’ jurors.” Irvin v. Dowd, 366 U.S. 717, 722 (1961). “[T]he quest is for jurors who will conscientiously apply the law and find the facts.” Wainwright v. Witt, 469 U.S. 412, 423 (1985). See also Smith v. Phillips, 455 U.S. 209, 217 (1982) (“Due process means a jury capable and willing to decide the case solely on the evidence before it”); -5-

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United States v. Tipton, 90 F.3d 861, 878 (4th Cir. 1996) (The voir dire right is “the right, grounded in the Sixth Amendment, to a voir dire adequate to assure a defendant a jury, all of whose members are ‘able impartially to follow the court’s instructions and evaluate the evidence.’”) (quoting Rosales-Lopez v. United States, 424 U.S. 589, 188 (1976)). To attain this objective in a capital case, however, it is necessary to go beyond the standard series of questions and inquire about the thoughts and beliefs of the veniremen on the death penalty. Capital punishment touches deeply held beliefs of many citizens. A juror’s personal, moral or religious beliefs for or against the death penalty may be so strong that the juror would not be able impartially to follow the law at either the guilt or the penalty phase of a trial. Thus, the Supreme Court has held that voir dire must explore these beliefs in capital cases. In Witherspoon v. Illinois, 391 U.S. 510, 522 (1968), the Supreme Court held that potential jurors may not be excused for cause “simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.” The Supreme Court clarified its decision in Witherspoon with its subsequent decision in Wainwright v. Witt, 469 U.S. 412 (1985), explaining that the “standard for evaluating a potential juror’s views is ‘whether the juror’s views would ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.’” United States v. Barnette, 390 F.3d 775, 790 (4th Cir. 2004) (quoting Witt, 469 U.S. at 424), vacated and remanded on other grounds, 126 S. Ct. 92 (2005). In Morgan v. Illinois, 504 U.S. 719, 729 (1992), the Supreme Court considered the “reverse-Witherspoon” situation, that is, when a juror would automatically vote for death, regardless of the facts of the case. The Court held that “[a]ny juror who states that he or she will -6-

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automatically vote for the death penalty without regard to the mitigating evidence is announcing an intention not to follow the instructions to consider the mitigating evidence and to decide if it is sufficient to preclude imposition of the death penalty.” Id. at 738 (emphasis in original); see also United States v. Roane, 378 F.3d 382, 405 (4th Cir. 2004). The Court, therefore, must also question each venireman to determine whether a strong belief in favor of the death penalty would prevent or substantially impair that person’s ability to render a fair verdict at the penalty phase. A venireman who cannot satisfy this standard would also be disqualified to serve in a capital case. The Supreme Court has recognized, however, that there are not likely to be as many successful challenges on reverse-Witherspoon grounds as there are under Witherspoon. “Despite the hypothetical existence of the juror who believes literally in the Biblical admonition ‘an eye for an eye’ . . . it is undeniable . . . that such jurors will be few indeed as compared with those excluded because of scruples against capital punishment.” Adams v. Texas, 448 U.S. 38, 49 (1980). Accordingly, this Court must question each venireman to determine his or her views on the death penalty and excuse for cause those whose views would prevent or substantially impair his or her ability to render a fair verdict at the penalty phase of this case. In determining whether a venireman is “death qualified,” the Court need not find that the potential juror’s bias is certain. The Supreme Court has explained that the “standard . . . does not require that a juror’s bias be proved with ‘unmistakable clarity.’ This is because determinations of juror bias cannot be reduced to question-and-answer sessions which obtain results in the manner of a catechism.” Witt, 469 U.S. at 424. It is sufficient if “the trial judge is left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law.” Id. at 426. -7-

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Courts have held that jurors may properly be excused for cause where they provide equivocal responses to questions about whether they could apply the death penalty. Id. at 415-16 (Potential juror properly disqualified after stating, “I am afraid it would” in response to question “would [personal belief against death penalty] interfere with you sitting as a juror in this case?”); see Pickens v. Lockhart, 4 F.3d 1446, 1452 (8th Cir. 1993) (“[C]ontinuous response of ‘if I had to’ indicated a person that might not be able to consider the death penalty even if the evidence justified it,” and person properly struck for cause) (internal quotations omitted); United States v. Flores, 63 F.3d 1342 (5th Cir. 1995) (juror who stated he would “probably always have a reasonable doubt” when considering application of the death penalty properly excluded); O’Bryan v. Estelle, 714 F.2d 365, 379 (5th Cir. 1983) (juror properly excluded where he could not make judgment on whether could impose death penalty). Similarly, jurors are properly excluded where they indicate that they could impose the death penalty only in an extremely limited set of circumstances. Flores, 63 F.3d at 1355 (venireman who would impose death penalty only if defendant had abused and murdered a very small child properly excluded). In Barnette, the Fourth Circuit reviewed a district court’s handling of two veniremen. The first stated that she leaned against the death penalty, “maybe more than 50 percent,” and ultimately indicated that she would view the punishment options unequally. The Court upheld the dismissal of the prospective juror because her statements indicated that she “leaned against imposing the death penalty before even considering the evidence introduced at the sentencing proceeding.” Barnette, 390 F.3d at 791-92. On the other hand, the district court refused to dismiss a second venireman who indicated general support of the death penalty in his questionnaire. The Court upheld the district court’s decision because voir dire revealed that the -8-

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juror had the ability to consider both sentencing options without reservation. Id. at 794. The United States believes that the inquiry to determine the beliefs of the veniremen about the death penalty and the effect such beliefs are likely to have should go well beyond simply asking the ultimate question – “would your beliefs about the death penalty prevent or substantially impair your ability to render a fair verdict.” It is likely that many, if not most, in the venire will not come to court with well-defined ideas about the death penalty. As one court has explained it, “[f]ew have been called upon to formulate and express their thoughts with any degree of clarity or precision. In reality, then, voir dire becomes an exercise in the shaping of opinions, more so than their expression.” Spivey v. State, 319 S.E. 2d 420, 431 (Ga. 1984). The Supreme Court also has recognized the problems that arise in attempting to determine the views veniremen have of the death penalty: What common sense should have realized experience has proved: many venireman simply cannot be asked enough questions to reach the point where their bias has been made “unmistakably clear”; these veniremen may not know how they will react when faced with imposing the death sentence, or may be unable to articulate, or may wish to hide their true feelings. Witt, 469 U.S. at 424-425. While voir dire should be searching, it need not and should not seek a sneak preview of the juror’s thoughts regarding the appropriateness of the death penalty in this particular case. Witherspoon required that disqualification be based on the juror’s general death penalty views and not on his views regarding the particular facts and circumstances of a specific case: [A] prospective juror cannot be expected to say in advance of trial whether he would in fact vote for the extreme penalty in the case before him. The most that can be demanded of a venireman in this regard is that he not be irrevocably committed, before the trial has begun, to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the -9-

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proceedings. 391 U.S. at 522 n. 21 (emphasis added). Thus, disqualification turns, not on how the juror will weigh particular evidence, but on whether that juror can impartially weigh the evidence in a capital case. Likewise, reverse-Witherspoon challenges do not turn on the specific facts of a given case, but rather on whether a pro-death penalty juror would automatically vote to execute a convicted capital defendant “regardless of the facts and circumstances of conviction.” Morgan, 504 U.S. at 735 (emphasis added). The Supreme Court defined the legal issue presented in Morgan as “whether [a] defendant is entitled to challenge for cause and have removed on the ground of bias a prospective juror who will automatically vote for the death penalty irrespective of the facts or the trial court’s instructions of law.” Id. at 726. The Court phrased its holding as disqualifying a “juror who will automatically vote for the death penalty in every case [and thus] fail in good faith to consider the evidence of aggravating and mitigating circumstances as the instructions require him to do.” Id. at 729 (emphasis added). Consistent with this general approach, the courts have held that defendants were properly precluded from attempting to voir dire jurors about the weight they would accord specific aggravating or mitigating facts. For example, in United States v. Tipton, 90 F.3d 861, 879 (4th Cir. 1996), the Fourth Circuit specifically upheld the district court’s refusal to permit questioning about specific mitigating factors. See also United States v. McCullah, 76 F.3d 1087, 1114 (10th Cir. 1996) (“The district court was not required, as Mr. McCullah suggests, to allow inquiry into each juror’s views as to specific mitigating factors as long as the voir dire was adequate to detect those in the venire who would automatically vote for the death penalty”). In People v. Brown, - 10 -

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665 N.E.2d 1290, 1303 (Ill. 1996), the Illinois Supreme Court held that the trial court properly rejected defense counsel’s proposed question tied to the multiple victims of his case: “If you sign a guilty verdict convicting Anton Brown of first-degree murder of a two-year old child, a threeyear-old child and their mother, would you be able to consider reasons not to impose the death penalty, or would you automatically impose the death penalty?” (internal quotations omitted). The court held that this question, “inquiring how the venire members would act given the particular aggravating circumstances of the victims’ murders in the present case, is clearly not required by Morgan.” Id. Similarly, in State v. Lynch, 459 S.E.2d 679, 685-686 (N.C. 1995), the court held that Morgan does not require voir dire on whether a juror would automatically impose the death penalty if a child were the victim because it is “not proper to ask potential jurors if they would impose the death penalty under the particular facts and circumstances of the case.” And, in Ex Parte Taylor, 666 So.2d 73, 82 (Ala. 1995), the court wrote: “[R]ather than simply attempting to identify those jurors who were not impartial and who would vote for the death penalty in every case regardless of the facts, Taylor’s counsel sought to identify any prospective juror who would vote for death under the facts of this particular case and then to eliminate that juror by using strikes for cause. The due process protections recognized in Morgan do not extend that far.” See also Witter v. State, 921 P.2d 886, 891-892 (Nev. 1996) (Morgan does not “allow for one side to gain such an unfair advantage” and to “read how a potential juror would vote during the penalty phase” by “inquir[ing] into the verdict a juror would return based on hypothetical facts”); Clagett v. Commonwealth, 472 S.E.2d 263, 269 (Va. 1996) ( “the proper inquiry” of jurors is “whether they would automatically impose the death penalty ‘no matter what the facts were’”) (quoting - 11 -

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Morgan). The prohibition on eliciting prospective jurors’ views on particular aggravating or mitigating circumstances must, of course, apply equally to our Witt-Witherspoon voir dire as it does to defendant’s reverse-Witherspoon voir dire. For these reasons, we agree with the defendant that the Court should make probing inquiry into the beliefs of the veniremen regarding capital punishment. This inquiry should go beyond merely asking whether the potential jurors harbor any beliefs about the death penalty that would prevent or substantially impair their ability to render impartial service. Such inquiry, however, should not explore the manner in which prospective jurors would weigh various mitigating and aggravating factors in this case.

IV.

RESPONSE TO MOTION TO DISMISS SPECIAL FINDINGS AND DISMISS DEATH NOTICE The short answer to the defendant’s motion to strike the death penalty because of the

alleged arbitrary, capricious and random application of the Federal Death Penalty Act (FDPA) (Docket 70) was succinctly put by the district court in United States v. Runyon, 2009 WL 87506 (E.D. Va.), in which it considered a constitutional attack on the FDPA: “At the outset, however, the court notes that to date the 1994 Federal Death Penalty Act . . . has not been found unconstitutional on any ground.” Nevertheless, and without citing a single case supporting his position, nor any of the number of cases rejected it, Torrez invites this Court to be the first to declare the FDPA unconstitutional because it operates in a fundamentally arbitrary and capricious manner and is inconsistently imposed.2 The Court should decline his invitation.

One federal district judge has held in an FDPA case that the death penalty is unconstitutional. He was reversed on appeal. United States v. Quinones, 205 F. Supp. 2d 256 (S.D. N.Y.), rev’d, 313 F.3d 49 (2d Cir. 2002).

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In his motion to dismiss, Torrez argues that the FDPA has operated in an arbitrary, capricious, and random manner since its enactment. He casts the purported constitutional infirmity in two ways: first, because the federal death sentence is sought infrequently and imposed even more infrequently; and second, because the federal death sentence is meted out indiscriminately to some death-eligible defendants but not to others. The defendant relies heavily – almost exclusively – on concurring opinions in Furman v. Georgia, 408 U.S. 238 (1972), ignoring the elephant in the room, namely, that in the forty years since that holding, no federal court has declared the FDPA unconstitutional for any reason. Torrez sidesteps any analysis of the Supreme Court’s death penalty jurisprudence since Furman, which clarified and colored the meaning and application of that case and forecloses their interpretation. He similarly avoids the holdings of the various United States Courts of Appeals, which have squarely and unanimously rejected the argument. As these cases demonstrate, the constitutionality of the FDPA hinges not on outcomes, i.e., who and how many are prosecuted for capital crimes, and who and how many are in fact executed, as the defendant argues, but rather on the process: whether the prosecution decision and the discretion of the sentencing body are appropriately guided so as to limit the potential for arbitrariness and promote a “heightened reliability” in death sentencing. See, e.g., Murray v. Giarratano, 492 U.S. 1, 8-9 (1989). In direct contravention to the defendant’s assertions, the Second Circuit has held that, “[t]he FDPA does not undermine ‘heightened reliability,’ it promotes it.” His argument, therefore, in both respects, should be rejected.

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A.

The FDPA Does Not Operate in an Unconstitutionally Arbitrary and Capricious Manner because the Death Penalty Is Rarely Sought or Imposed.

Torrez asserts that, because the death penalty is sought and imposed in so few cases, the FDPA operates arbitrarily and capriciously, in violation of the Eighth Amendment. He relies almost exclusively on statistics and excerpts from the concurring opinions in Furman, supra. This argument is entirely misguided. 1. Death Penalty Litigation

In Furman, the Supreme Court issued a per curiam opinion striking down state death penalty statutes. In the decades since, the Supreme Court repeatedly has explained the import of Furman and the fundamental principle of its capital punishment jurisprudence: “[W]here discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.” Gregg v. Georgia, 428 U.S. 153, 189 (1976); see also e.g., McCleskey v. Kemp, 481 U.S. 279, 302, 307 (1987) (citing Gregg). The Furman Court was not, therefore, concerned with the exercise of prosecutorial discretion to seek the death penalty or the ultimate number of cases in which the death penalty was imposed, as the defendant contends, McCleskey, 481 U.S. at 207 n.28 (“[t]he Constitution is not offended by inconsistency in results based on the objective circumstances of the crime”), but rather, with the need to channel and limit the discretion of the sentencing body. The lack of any such guidance in the statutory schemes at issue in Furman rendered them unconstitutional. To comply with principles articulated in Furman and Gregg, a death penalty statute must “(1) rationally narrow the class of death-eligible defendants; and (2) permit a jury to render a

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reasoned, individualized sentencing determination based on a death-eligible defendant’s record, personal characteristics, and the circumstances of his crime.” Kansas v. Marsh, 548 U.S. 163 (2006); see also, Zant v. Stephens, 462 U.S. 862, 877 (1983) (capital sentencing scheme must “genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder”); Jones v. United States, 527 U.S. 373, 381 (1999); Maynard v. Cartwright, 486 U.S. 356, 361-62 (1988). These requirements serve to inject capital punishment proceedings with the “heightened reliability” that must accompany the death penalty decision. United States v. Fell, 360 F.3d 135, 143 (2d Cir. 2004)(collecting Supreme Court decisions holding that “[t]he finality of the death penalty requires a ‘greater degree of reliability’ when it is imposed.”); United States v. Hammer, 2011 WL 6020577 (M.D. Pa.)(rejecting precisely the same arguments advanced by the defendant in the instant case); United States v. Jacques, 2011 WL 1675417 at *4 (D. Vt. 2011)(same). Congress devised the FDPA to codify Supreme Court decisions, starting with Furman, requiring the narrowing and individualizing functions. Unlike the first generation statutes treated in Furman, the FDPA establishes a procedure under which a capital jury must consider the appropriate punishment. The requirement that the jury find beyond a reasonable doubt the existence of a gateway mental state factor and at least one statutory aggravating factor (“eligibility factors”) narrows the class of death eligible defendants. See § 3593(e)(2); Hammer, 2011 WL 6020577 (M.D. Pa.); United States v. Duncan, 2008 WL 711603, *2 (D. Idaho); United States v. Talik, 2007 WL 4570704, *2 (N.D. W.Va.)(“Both the mental states and the aggravating circumstances provided for in the FDPA do genuinely narrow the class of persons - 15 -

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eligible for the death penalty”); United States v. Diaz, 2007 WL 656831, *9 (N.D. Cal.) (“The FDPA thus narrows the class of death eligible defendants twice. First, the jury must find one of the mental states as a preliminary threshold qualifier. Second, the jury must find at least one statutory aggravating factor”). Consideration of the existence of the statutory aggravating factors channels the jury’s discretion by allowing it to consider the circumstances of the crime and to make an “individualized determination on the basis of the character of the individual and circumstances of the crime,” before weighing aggravating factors against mitigating factors to arrive at a final decision. See United States v. Taylor, 2008 WL 217115 (E.D. Tenn.), citing United States v. Cooper, 91 F. Supp. 2d 90, 97 (D. D.C. 2000) (referencing Zant, 462 U.S. at 878); see also United States v. Sampson, 486 F.3d 13, 24 (1st Cir. 2007). In short, the FDPA complies with Supreme Court mandates concerning the death penalty decision-making process. The Second Circuit has recognized this, holding in Fell that the FDPA “standard permits the jury to have before it all possible relevant information about he individual defendant whose fate it must determine . . . as a result, the FDPA does undermine ‘heightened reliability,’ it promotes it.” 360 F.3d at 144 (citing Jurek v. Texas, 428 U.S. 262, 276 (1976)). A multitude of other federal courts have agreed, specifically rejecting challenges similar or identical to those at bar. See United States v. Caro, 597 F.3d 608, 622-23 (4th Cir. 2010) (outlining the various “safeguards” established by the FDPA to meet the Supreme Court’s capital punishment standard); United States v. Fields, 516 F.3d 923, 945 (10th Cir. 2008) (“In reality, statutory factors narrow the class of defendants eligible for the death penalty. . . .”); Sampson, 486 F.3d at 23-24 (holding “the FDPA fully meets the requirements of guided discretion” and federal death - 16 -

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penalty protocol “is not arbitrary”); Hammer, 2011 WL 6020577; Duncan, 2008 WL 711603 at *2; Taylor, 2008 WL 217115 at *8; United States v. O’Reilly, 2008 WL 284003, at *2 (E.D. Mich. 2008); Talik, 2007 WL 4570704 at *2; Diaz, 2007 WL 656831 at *9; United States v. Sablan, 2006 WL 1028780, at *3 (D. Colo.); United States v. Le, 327 F. Supp. 2d 601, 609 (E.D. Va. 2004); United States v. Llera Plaza, 179 F. Supp. 2d 444, 451-52 (E.D. Pa. 2001). 2. Statistics

Torrez fares no better in citing statistics purporting to establish that the death penalty is rarely sought and obtained in federal court. This angle of attack, like selective reliance on Furman, has been rejected time and again, from the highest to the lowest levels of the federal court system. Gregg, 428 U.S. at 199 (“The existence of these discretionary stages (of prosecution of capital case) is not determinative of the issues before us”); McCleskey, 481 U.S. at 307 n. 28. (“[t]he Constitution is not offended by inconsistency in results based on the objective circumstances of the crime”); Sampson, 486 F.3d at 23-24 (“Nor does the frequency with which the federal death penalty is sought render the FDPA unconstitutional”); United States v. Mitchell, 502 F.3d 931, 983 (9th Cir. 2007) (“That federal executions are rare, however, does not render the FDPA unconstitutional”); United States v. Barnes, 532 F. Supp. 2d 625, 633 (S.D.N.Y. 2008) (holding that bifurcated eligibility and selection decisions comply with Gregg and that it is not for a district court to overturn a constitutional act of Congress even if the court believes the federal death penalty is arbitrary); United States v. Hammer, 25 F. Supp. 2d 518, 547 (M.D. Pa. 1998) (“The mere fact that the government has only sought the death penalty in a de minimus number of murder cases involving federal inmates is not sufficient to demonstrate that the prosecution of [the defendant] is arbitrary and capricious. More is required”); United - 17 -

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States v. O’Driscoll, 203 F. Supp. 2d 334, 341 (M.D. Pa. 2002) (rejecting defendant’s argument that because of the low number of capital prosecutions, the government’s pursuit of the death penalty is arbitrary and capricious); Sablan, 2006 WL 1028780, at *11(“I find that the FDPA, by requiring the weighing of aggravating and mitigating factors, provides clear and objective standards sufficient to guide the discretion of the jury in capital cases and meets the constitutional requirements set forth in Furman, and the fact that the federal death penalty is infrequently sought and imposed does not render it unconstitutional.”); Taylor, 2008 WL 217115, at *4 (holding that the defendant did not overcome burden against reasonable inference advanced by the Government that the low number of federal defendants exposed to the death penalty is because the Government chooses carefully which defendant to seek a death sentence against). Accordingly, the defendant’s claim that the paucity of FDPA prosecutions and executions makes the statute unconstitutionally arbitrary and capricious should be rejected. B. The FDPA Does Not Lack a Principled Basis for Distinguishing Cases in Which the Death Penalty Is Sought From Those in Which It Is Not.

The defendant next claims that the FDPA is unconstitutional because he cannot discern a principled basis for distinguishing between cases where death is imposed and cases where it is not. This argument suffers from the same flaw as the challenge to the rarity of the federal death penalty: discrepancies in outcome do not establish a constitutional defect in a death penalty statute, provided the law appropriately channels and guides the discretion of the sentencing body. In support of his claim, Torrez relies on a selective quotation from Eddings v. Oklahoma, 455 U.S. 104, 112 (1982) (“that capital punishment be imposed fairly, and with reasonable

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consistency or not at all”); more than five pages of summaries of federal cases in which the death penalty could have been, and in some cases was, imposed; and what, he claims, is the “inherently (and fatally) contradictory nature of two lines of Supreme Court cases.” The Eddings quotation is taken out of context. In Eddings, the Supreme Court reversed a state death sentence of a 16 year-old defendant because the trial court refused to consider as a mitigating circumstance the defendant’s difficult upbringing and emotional disturbance, including evidence of a turbulent family history and beatings by a harsh father. See Eddings, 455 U.S. at 112. In Sampson, the First Circuit ruled on a claim identical to the one made by the defendant in this case, and specifically explained why the quoted language of Eddings should not be used to support the his argument. The First Circuit stated that such reliance on Eddings: [I]gnores the remainder of the Eddings Court’s discussion of consistency, in which the Court recognized that “a consistency produced by ignoring individual differences is a false consistency.” Indeed, the thrust of Eddings is that those who make sentencing decisions must be permitted to focus on the individual characteristics of the defendant and the circumstances of the crime. And, finally, the argument cannot survive McCleskey, in which the Court stated that “the Constitution is not offended by inconsistency in results based on the objective circumstances of the crime. Numerous legitimate factors may influence . . . a defendant’s ultimate sentence, even though they may be irrelevant to his actual guilt. 486 F.3d at 24-25 (internal citations omitted). See also Taylor, 2008 WL 217115 at *4 (analogizing the defendant’s reliance on Eddings to his misguided reliance on Furman in support of an arbitrariness challenge to the FDPA, holding the defendant did not establish that the FDPA had unfair or inconsistent procedures and his “emphas[is] on the effect of the FDPA” was an “unavailing argument”). Accordingly, the defendant’s reliance on Eddings is unpersuasive and should be disregarded by the Court. Torrez also cites no case that specifically adopts or endorses his viewpoint that case - 19 -

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summaries are relevant to the issue at hand. This is undoubtedly because the Supreme Court and other federal courts have, over and over, have rejected identical arguments made by other capital defendants. See, e.g., McCleskey, 481 U.S. at 306-307 (defendant cannot prove a constitutional violation by demonstrating that other similarly situated defendants did or did not receive the death penalty); Sampson, 486 F.3d at 24-25 (holding that case summaries are “wholly inadequate to prove that the death penalty has been imposed in an arbitrary manner” because they are “devoid of details and fail to account for the objective circumstances of the underlying crimes”); Hammer, 2011 WL 6020577 (M.D. Pa. Dec. 1, 2011) (“the mere fact that the death penalty is rarely sought or imposed does not itself render the FDPA unconstitutional”); Barnes, 532, F. Supp. 2d at 633-34 (holding that arguments premised upon case summaries are “not supported by the case law”); Taylor, 2008 WL 217115 at *4-5 (holding defendant has not shown that the FDPA violates the constitutional requirement of fair and consistent sentencing proceedings); United States v. Solomon, 2007 WL 1468794, *2 (W.D. Pa.) (refusing to find Eighth Amendment violation absent case law adopting defendants’ view); United States v. James, 2007 WL 914249, *5 (E.D.N.Y.) (finding FDPA provides a principled basis for seeking the death penalty). More importantly, the conclusion the defendant draws from FDPA case summaries is wrong. The FDPA does provide a principled process for determining when the death penalty should be imposed—one that affords exactly the discretionary sentencing endorsed by McCleskey. See 408 U.S. at 306-07. There are opportunities at each junction of the eligibility and selection procedure for the sentencing body to exercise discretion favoring the defendant. Thus, unlike the process in Eddings, the FDPA mandates consideration of any mitigating factor found by any single juror by a preponderance of the evidence. 18 U.S.C. § 3593 (c)-(e). In sum, - 20 -

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the statute prescribes a reasoned framework to guide the sentencing body in making eligibility and selection decisions. The defendant’s attempt to show arbitrariness or capriciousness by presenting varying outcomes of other federal death penalty prosecutions should fail. The supposed “contradiction” noted by Torrez is that between “guided discretion” as posited by Gregg, 428 U.S. at 189, and the unlimited discretion a jury must have to impose a life sentence as exemplified by Eddings and Locket v. Ohio, 438 U.S. 586 (1978). He argues that this contradiction is irreconcilable, and that, as a result, the “death penalty . . . must be overruled.” He illustrates the contradiction by citing to contending opinions of Justices Scalia and Blackman. Torrez, understandably, then sides with the latter. In effect, Torrez invites this Court to referee the debate between Justices Scalia and Blackman, and to declare Justice Blackman the winner. That is simply not the law. The FDPA is constitutional unless and until the Supreme Court says otherwise.

V.

RESPONSE TO MOTION TO STRIKE STATUTORY AGGRAVATING FACTORS Torrez has moved to strike the two statutory aggravating factors identified in the

indictment and death penalty notice relating to the defendant’s convictions in Arlington County. These are alleged to be “previous convictions” pursuant to 18 U.S.C. § 3592(c)(2) and (4). The defendant contends they do not qualify as “previous convictions” because his conduct in that case (February 2010) post-dated his conduct in this case (July 2009). Binding Fourth Circuit precedent, however, establishes that Torrez’s Arlington convictions are “previous convictions” within the meaning of the FDPA and properly alleged. Even if this were a matter of first

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impression, the text and structure of the FDPA would compel the same conclusion. Torrez’s alternative argument that these relevant provisions of the FDPA are unconstitutional is similarly meritless. Pursuant to the FDPA, a defendant who is convicted of an offense for which a sentence of death of provided, such as 18 U.S.C. § 1111, may be sentenced to death if the finder of fact concludes following a hearing that the offense involved an “intent factor” described in 18 U.S.C. § 3591(a)(2), and at least one statutory aggravating factor listed in 18 U.S.C. § 3592(c). See 18 U.S.C. § 3593(e); United States v. Higgs, 353 F.3d 281, 294 (4th Cir. 2003). Once these factors are found to exist, “the crime is death-eligible,” Higgs, 353 F.3d at 294, and the fact finder must then weigh any existing aggravating factors against any existing mitigating factors to determine whether a sentence of death is justified. 18 U.S.C. § 3593(e). In the indictment and death penalty notice, the United States indicated that it would seek to prove the existence of two statutory aggravating factors listed in 18 U.S.C. § 3592(c) in order to establish Torrez’s eligibility for a sentence of death. (Dockets 1 and 41). First, the United States intends to prove that Torrez “has previously been convicted of a Federal or State offense punishable by a term of imprisonment of more than 1 year, involving the use or attempted or threatened use of a firearm . . . against another person,” pursuant to § 3592(c)(2). The United States identified five convictions that satisfied the requirements of that provision, all of which were entered on December 14, 2010. Second, the United States intends to prove that Torrez “has previously been convicted of 2 or more Federal or State offenses, punishable by a term of imprisonment of more than 1 year, committed on different occasions, involving the infliction of, or attempted infliction of, serious bodily injury or death upon another person,” pursuant to - 22 -

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§ 3592(c)(4). The United States identified nine convictions that satisfied the requirements of that provision, all of which were also entered on December 14, 2010. A. Torrez Qualifies for the Statutory Aggravating Factors Identified by the United States because He “Has Previously Been Convicted” of the Relevant Offenses.

Torrez contends that the prior convictions discussed above do not provide a sufficient basis for a finding that the statutory aggravating factors set forth in § 3592(c)(2) and (4) exist. In Torrez’s view, § 3592(c)(2) and (4) encompass only convictions that are entered prior to the commission of the underlying offense and are not satisfied by convictions entered after the offense but prior to sentencing. Because the convictions listed in the notice of intent to seek a penalty of death were all entered after the death of Amanda Jean Snell on July 11, 2009, Torrez asserts that he has not been “previously convicted” of those offenses within the meaning of § 3592(c)(2) and (4). 1. Torrez’s Argument is Foreclosed by Fourth Circuit Precedent.

The Fourth Circuit rejected a virtually identical argument in United States v. Higgs, holding that post-offense but pre-sentencing convictions are sufficient to establish a similar statutory aggravating factor codified at 18 U.S.C. § 3592(c)(12). Higgs, 353 F.3d at 318-19. In order to conclude that the statutory aggravating factor listed in § 3592(c)(12) is present, the finder of fact must determine that the defendant “had previously been convicted of violating” certain drug-related statutes or “had previously been convicted of engaging in a continuing criminal enterprise.” 18 U.S.C. § 3592(c)(12). In Higgs, the defendant moved to strike § 3592(c)(12) as an aggravating factor because he sustained the relevant federal drug conviction in December 1997 – almost two years after the murders that formed the basis of the underlying - 23 -

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charges against him. Id. at 289, 317. The district court denied the motion, and Higgs was ultimately sentenced to death after the jury found that four statutory aggravating factors existed, including § 3592(c)(12). Id. at 295, 317. The Fourth Circuit rejected Higgs’s argument on appeal, “hold[ing] that the § 3592(c)(12) statutory aggravating factor encompasses all predicate convictions occurring prior to sentencing, even those occurring after the conduct giving rise the capital charges.” Id. at 318. The court noted that the text and structure of the FDPA supported its conclusion: Unlike others contained within § 3592(c), the aggravator does not concern matters directly related to the death penalty offense. Rather, it is concerned with the characteristics of the offender as of the time that he is sentenced. Although it easily could have done so, Congress did not specify that either the prior offense or conviction had to occur before the death penalty offense. On the contrary, the entire section speaks in terms of those things that must be considered when the death sentencing hearing is conducted and the petit jury begins its weighing process. Id. The court also noted that, “where Congress has intended a different practice in other circumstances, it has made that intent clear,” citing 21 U.S.C. § 841(b)(1)(C), which provides for an enhanced penalty “[i]f any person commits such a violation after a prior conviction for a felony drug offense has become final,” and 18 U.S.C. § 922(g)(1), which makes it “unlawful for any person . . . who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year . . . to” possess, ship, transport, or receive a firearm. Id. The conclusion that § 3592(c)(2) and (4) encompass predicate convictions that are entered after the conduct giving rise to the underlying capital charges follows necessarily from the Fourth Circuit’s reasoning in Higgs. Like § 3592(c)(12), § 3592(c)(2) and (4) are concerned with the characteristics of the offender at the time of sentencing, rather than matters directly

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related to the capital offense. Cf. 18 U.S.C. § 3592(c)(6) (requiring that the defendant have “committed the offense in an especially heinous, cruel, or depraved manner”); id. § 3592(c)(11) (requiring a finding that the “victim was particularly vulnerable” due to one of several factors). The text of § 3592(c)(2) and (4) is extraordinarily similar in all material respects to the text of § 3592(c)(12). To the extent that there are material differences between the two, moreover, the language of § 3592(c)(2) and (4) supports inclusion of post-offense convictions even more strongly than the text of § 3592(c)(12). While § 3592(c)(12) requires a finding that “[t]he defendant had previously been convicted” of certain drug offenses, id. § 3592(c)(12) (emphasis added), § 3592(c)(2) and (4) necessitate a finding only that the “defendant has previously been convicted of” specified offenses. Id. § 3592(c)(2), (4) (emphasis added). The defendant in Higgs relied on this difference in language, contending that § 3592(c)(12), unlike other FDPA statutory aggravating factors, requires that a defendant’s previous convictions have been sustained prior to some earlier point in time, such as the date of the underlying capital offense. Higgs, 353 F.3d at 318-19. The Fourth Circuit rejected this argument, concluding that the distinction between “had” and “has” was “far too tenuous a basis upon which to conclude that Congress intended that the prior serious drug offense aggravating factor for homicide was to be treated differently than every other prior conviction aggravating factor” under the FDPA. Id. at 319. Torrez attempts to circumvent the holding of Higgs by characterizing its analysis of the text of § 3592(c)(12) as nonbinding dicta. He notes that the Fourth Circuit observed at the end of its discussion of § 3592(c)(12) that “even if the aggravator was improperly submitted for consideration, the error was harmless,” see id., and asserts that this alternative holding converted - 25 -

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the court’s preceding analysis into nonbinding and irrelevant dicta. The Fourth Circuit’s brief observation that “even if” § 3592(c)(12) were improperly submitted to the jury, any error was harmless, was a classic alternative holding. See, e.g., Parker v. Sec’y for Dep’t of Corr., 331 F.3d 764, 775 (11th Cir. 2003) (“An alternative holding is suggested by the hypothetical ‘even if’ that introduces the harmless error analysis.”); see also Galdamez v. Keane, 394 F.3d 68, 78 (2d Cir. 2005); Williams v. Woodford, 384 F.3d 567, 596 n.8 (9th Cir. 2004); United States v. Willie, 941 F.2d 1384, 1398 (10th Cir. 1991); Khan v. Jenkins, No. 89-1750, 1990 WL 85353, at *6 n.9 (4th Cir. June 13, 1990) (“[A]s an alternative basis for our holding, we find any error . . . to be harmless.”). As the Supreme Court has long recognized, however, when a court decides a case on the basis of two alternative holdings, those holdings are not dicta, but are rather binding precedent to which deference is owed under the principle of stare decisis. See MacDonald, Sommer & Frates v. Yolo Cnty., 477 U.S. 340, 346 n.4 (1986); Woods v. Interstate Realty Co., 337 U.S. 535, 537 (1949) (“But where a decision rests on two or more grounds, none can be relegated to the category of obiter dictum.”); Massachusetts v. United States, 333 U.S. 611, 623 (1948); United States v. Title Ins. & Trust Co., 265 U.S. 472, 486 (1924); Union Pac. R.R. Co. v. Mason City & Fort Dodge R.R. Co., 199 U.S. 160, 166 (1905). The federal courts of appeals, including the Fourth Circuit, have likewise recognized this longstanding doctrine. See, e.g., United States v. Fulks, 454 F.3d 410, 434 (4th Cir. 2006) (“That conclusion [in a previous Fourth Circuit opinion] bears directly on the question before us now and, because it disposed of Goins’s Brady claim (albeit in the alternative), it cannot be properly characterized as dicta.”); United States v. Cook, Nos. 99-6700 & 99-6873, 1999 WL 1267362, at *2 (4th Cir. Dec. 29, 1999) (per curiam) - 26 -

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(“Rulings on alternative bases are precedent rather than dicta.”); Al-Bihani v. Obama, 619 F.3d 1, 2 (D.C. Cir. 2010) (Brown, J., concurring in denial of rehearing en banc) (“It is a longstanding principle that alternative holdings each possess precedential effect.”); United States v. Sorich, 523 F.3d 702, 710 n.2 (7th Cir. 2008) (“[A]n alternate ground for a holding is not a dictum.”); Phila. Marine Trade Ass’n-Int’l Longshoremen’s Ass’n Pension Fund v. Commissioner, 523 F.3d 140, 147 n.5 (3d Cir. 2008); Medeiros v. Vincent, 431 F.3d 25, 34 (1st Cir. 2005). The Fourth Circuit’s brief harmless-error aside in Higgs therefore did not deprive its far more extensive analysis of the text of § 3592(c)(12) of binding precedential force. Torrez also raises four additional arguments against applying Higgs in this case. He contends first that the Fourth Circuit failed to “address the plain meaning of the statute” by analyzing whether its construction of § 3592(c)(12) would render superfluous the provision’s use of the term “previously” in the phrase “had previously been convicted.” (Docket 71 at 11). To the contrary, Higgs’s detailed analysis of § 3592(c)(12) demonstrated that the Fourth Circuit carefully and thoroughly considered the text of that provision and concluded that it could “discern no basis upon which to conclude that Congress intended that the prior serious drug offense aggravator encompass only drug offenses or convictions that occurred prior to the conduct giving rise to the murder or kidnapping charges.” See Higgs, 353 F.3d at 318. The court noted that Congress was capable of specifically providing for consideration only of convictions sustained prior to the underlying capital offense, and that Congress had used such specific language in other analogous situations. See id. The Higgs court further stated that “Congress did not specify that either the prior offense or conviction had to occur before the death penalty offense,” id. (emphasis added), strongly suggesting that the statutory reference to “previously” - 27 -

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sustained convictions could refer either to convictions entered prior to the underlying capital offense or convictions entered prior to sentencing for that offense. Given the remainder of the provision’s text and the structure of § 3592(c) as a whole, the Fourth Circuit properly drew a distinction between those statutory aggravating factors that concerned the nature of the underlying capital offense, and those factors that concerned “the characteristics of the offender as of the time that he is sentenced.” See id. The court’s conclusion that § 3592(c)(12) falls into the latter category is entitled to deference, both because it is binding precedent, and because it is the product of careful and thorough analysis of § 3592(c). And even if the Higgs court had somehow failed to take into account any possible superfluity of the term “previously” under its reading of § 3592(c)(12), “[p]recedents do not cease to be authoritative merely because counsel in a later case advance a new argument.” Harris v. The Epoch Group LLC, 357 F.3d 822, 826 (8th Cir. 2004) (internal quotation marks omitted); see also Heath v. Varity Corp., 71 F.3d 256, 257 (7th Cir. 1995) (“Although we willingly take account of new arguments, reassessment rarely leads to overruling.”) (internal citation omitted); United States v. Hill, 48 F.3d 228, 232 (7th Cir. 1995); cf. Hilton v. S.C. Pub. Rys. Comm’n, 502 U.S. 197, 205 (1991) (noting that “the doctrine of stare decisis is most compelling” where “a pure question of statutory construction” is involved). Torrez’s remaining arguments against the precedential value of Higgs may be quickly addressed. His second and third points are essentially arguments that the Higgs court failed to consider nonbinding precedents in other circuits addressing “very similar statutory text” in 18 U.S.C. § 924(e). (Docket 71 at 11). As this brief addresses in detail below, § 3592(c) and § 924(e) are hardly similar in material respects, and Torrez’s assertion that the text of § 924(e) - 28 -

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compels a different outcome than in Higgs is at bottom an argument that the Higgs court decided the issue before it incorrectly. Torrez cannot escape the effect of binding precedent simply because he disagrees with that precedent, however. Lastly, Torrez claims that “the Higgs court failed to recognize that the prior convictions do not simply relate to the characteristics of the offender at the time he is sentenced,” but rather constitute “an element of the crime of capital homicide.” ®. Doc. 71, at 12). This assertion is untenable in light of Higgs’s detailed discussion of the FDPA’s statutory scheme and its plain recognition that the finder of fact must determine the existence of at least one statutory aggravating factor under § 3592(c) before sentencing a defendant to death. See Higgs, 353 F.3d at 294, 320. The Higgs decision, indeed, analyzed at length whether the FDPA’s statutory aggravating factors concerning prior convictions must be alleged in the indictment as elements of the offense, under the exception to the indictment requirement established in Almendarez-Torres v. United States, 523 U.S. 224 (1998). See id. at 301-04. This discussion conclusively demonstrates that the Higgs court did not somehow overlook the role of the statutory aggravating factors in § 3592(c) as a prerequisite for a sentence of death. B. Even as a Matter of First Impression, Torrez’s Argument Is Meritless.

Even if Higgs did not compel a decision in the government’s favor, the plain text and structure of § 3592(c) would require the same result. “Statutory construction must begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose.” Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 175 (2009) (internal quotation marks omitted). If the statutory language is unambiguous and the statutory scheme is coherent and consistent, “[t]he inquiry ceases.” Barnhart v. Sigmon Coal - 29 -

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Co., 534 U.S. 438, 450 (2002). “The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” Healthkeepers, Inc. v. Richmond Ambulance Auth., 642 F.3d 466, 471 (4th Cir. 2011) (internal quotation marks omitted). The relevant statutory language is as follows: (c) Aggravating factors for homicide. — In determining whether a sentence of death is justified for an offense described in section 3591(a)(2) [concerning homicide], the jury, or if there is no jury, the court, shall consider each of the following aggravating factors for which notice has been given and determine which, if any, exist: (2) Previous conviction of violent felony involving firearm. — For any offense, other than an offense for which a sentence of death is sought on the basis of section 924(c), the defendant has previously been convicted of a Federal or State offense punishable by a term of imprisonment of more than 1 year, involving the use or attempted or threatened use of a firearm (as defined in section 921) against another person. (4) Previous conviction of other serious offenses. — The defendant has previously been convicted of 2 or more Federal or State offenses, punishable by a term of imprisonment of more than 1 year, committed on different occasions, involving the infliction of, or attempted infliction of, serious bodily injury or death upon another person. 18 U.S.C. § 3592(c)(2), (4) (emphasis added). Section 3592 begins with a description of the fact finder’s role at sentencing. “In determining whether a sentence of death is justified,” the finder of fact must consider each of the sixteen listed factors for which notice has been given. Id. § 3592(c). Each of the sixteen statutory aggravating factors must be read in light of this overall command, which describes how, when, and why the fact finder should utilize the listed factors. The directive at the beginning of § 3592(c), importantly, establishes that each of the statutory aggravating factors should be considered by the finder of fact at the time of sentencing. In

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looking to whether the “defendant has previously been convicted” of the offenses described in § 3592(c)(2) and (4), therefore, the jury is examining the question as of the date of sentencing — not as of some previous time, such as the date of the underlying capital offense, or as of some subsequent time, such as following entry of the judgment of conviction of the underlying capital offense. A more focused analysis of the statutory text confirms this reading of § 3592(c). The material portions of § 3592(c)(2) and (4), when stripped of all extraneous language, provide that: “In determining whether a sentence of death is justified . . . [the fact finder] shall consider each of the following aggravating factors . . . and determine which, if any, exist: the defendant has previously been convicted . . . .” Id. § 3592(c)(2), (4). By establishing sentencing as the relevant time frame for consideration of whether a defendant “has previously been convicted,” Congress plainly signaled that all convictions entered prior to sentencing could be considered under § 3592(c)(2) and (4). The use of the present perfect verb tense in the phrase “has previously been convicted,” id. (emphasis added), is also a strong indication that the fact finder is to consider all convictions sustained by the defendant prior to sentencing. Cf. United States v. Wilson, 503 U.S. 329, 333 (1992) (“Congress’ use of a verb tense is significant in construing statutes.”). “The present-perfect tense refers to an action that ‘is now completed, or continues up to the present.’” Santos-Reyes v. Attorney General, 660 F.3d 196, 199 (3d Cir. 2011) (quoting Chicago Manual of Style (16th ed. 2010), at 236). In considering whether the statutory aggravating factors listed in § 3592(c)(2) and (4) are present, the fact finder may thus consider any conviction entered up to the present time — that is, the time of sentencing.

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As the Fourth Circuit noted in Higgs, moreover, Congress is fully capable of specifying that a judge or jury consider only those previous convictions that were sustained prior to the underlying offense. See Higgs, 353 F.3d at 318; 21 U.S.C. § 841(b)(1)(C); 18 U.S.C. § 922(g)(1). The fact that Congress did not expressly state in § 3592(c)(2) and (4) that the predicate convictions required by those provisions must be entered prior to the underlying capital offense indicates that Congress did not intend to impose such a requirement. Such a reading also comports with the purposes of sentencing in the capital context. As the Fourth Circuit noted in United States v. Caro, 597 F.3d 608 (4th Cir. 2010), in rejecting a constitutional challenge to two similar FDPA statutory aggravating factors for prior convictions, such aggravating factors serve an important purpose in allowing a sentencing body to consider the defendant’s personal history and characteristics. “Prior convictions are . . . properly and routinely considered in federal sentencing,” the court noted in upholding § 3592(c)(10) and (12), because “[d]efendants with significant criminal histories demonstrate unwillingness or inability to follow the law,” and “[t]his justifies imposing harsher sentences to provide increased retribution and deterrence.” Id. at 623-24. The government’s reading of the statute permits the fact finder at sentencing to consider all relevant information regarding the defendant’s prior criminal convictions, thus furthering the goals of sentencing by providing the individuals responsible for sentencing with more accurate and thorough information regarding the defendant’s history and characteristics. Against the weighty evidence of the FDPA’s plain text and structure, Torrez primarily relies upon a single proposition: that the United States’ reading of § 3592(c)(2) and (4) would render superfluous the word “previously” in the text of those provisions. See Scott v. United States, 328 F.3d 132, 139 (4th Cir. 2003) (noting that under the canon of statutory construction - 32 -

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against superfluity, “[w]here possible, we must give effect to every provision and word in a statute and avoid any interpretation that may render statutory terms meaningless or superfluous”). This argument is mistaken, for two reasons. First, the word “previously” is not superfluous and, in fact, resolves an important ambiguity in § 3592(c)(2) and (4). Second, even if the word “previously” were superfluous under the government’s reading of the statute, such superfluity is not unheard of and would not be sufficient to justify Torrez’s reading of the statute, which would directly contradict its plain text and structure. Had Congress not included the word “previously” in § 3592(c)(2) and (4) — that is, if § 3592(c)(2) and (4) merely required a finding that a defendant “has been convicted” of specified offenses — those provisions would be ambiguous. The phrase “has been convicted” is subject to an inherent ambiguity present in any statutory use of the present perfect tense, since the present perfect tense can refer either to “an action that began in the past but continues into the present” or to “past actions that have been completed.” Emerald Mines Co. v. Fed. Mine Safety & Health Review Comm’n, 863 F.2d 51, 56 n.5 (D.C. Cir. 1988); see also Padilla-Romero v. Holder, 611 F.3d 1011, 1013 (9th Cir. 2010) (per curiam) (noting that “the use of the present perfect tense . . . can connote either an event occurring at an indefinite past time . . . or continuing to the present”); Wells, Waters & Gases, Inc. v. Air Prods. & Chems., Inc., 19 F.3d 157, 163 (4th Cir. 1994) (recognizing, in interpreting a provision of the Uniform Commercial Code, that “the use of the present perfect tense cannot be said to be unambiguous”). By including the word “previously” in § 3592(c)(2) and (4), Congress made clear that the phrase “has . . . been convicted” refers to convictions entered and entirely resolved in the past, rather than convictions that began in the past and have some continuing relevance to the current proceedings. Congress thus eliminated - 33 -

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any ambiguity regarding whether the phrase “has . . . been convicted” includes convictions other than convictions that are part of or otherwise have some connection to the underlying capital case. The Second Circuit addressed a almost identical issue of statutory construction regarding a similarly worded provision in Dobrova v. Holder, 607 F.3d 297 (2d Cir. 2010). In that case, the court addressed the meaning of 8 U.S.C. § 1182(h), which provided that: “[n]o waiver shall be granted under this subsection in the case of an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence if either since the date of such admission the alien has been convicted of an aggravated felony or the alien has not lawfully resided continuously in the United States for a period of not less than 7 years immediately preceding the date of initiation of proceedings to remove the alien from the United States.” Id. at 300 (quoting 8 U.S.C. § 1182(h)) (alteration in original). Dobrova contended that the relevant language of § 1182(h) should be construed to apply only when an alien’s most recent entry into the United States was as an alien lawfully admitted for permanent residence; under this view, if the alien had at some point in the past entered the United States as a lawful permanent resident (“LPR”), but had then left and subsequently re-entered the United States unlawfully, § 1182(h) would not apply to that individual. See id. at 301. In essence, Dobrova argued that § 1182(h)’s reference to an alien who “has previously been admitted” should be construed to denote only the most recent entry, while the government contended that the statute applied to an alien who had entered as a LPR at any time in the past. See id. Dobrova argued that under the government’s reading of § 1182(h), the word “previously” would be superfluous, and that this interpretation would therefore violate the canon of statutory construction disfavoring interpretations that render statutory provisions superfluous. Id. at 301-02. - 34 -

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The Dobrova court rejected this contention, concluding that § 1182(h) barred relief for an alien who was admitted as a LPR at any time in the past. The court first noted that the phrase “has . . . been admitted” has two possible meanings, because “[t]he present perfect tense ‘refers to (1) a time in the indefinite past . . . , or (2) a past action that comes up to and touches the present.’” See id. at 301 (quoting Chicago Manual of Style ¶ 5.119 (15th ed. 2003)) (omission in original). The court then determined that its reading of the statute did not render the term “previously” superfluous: As explained, the present perfect tense can refer either to a time in the indefinite past or a past action that has continuing relevance — that “comes up to and touches the present.” Use of “previously” in [§ 1182(h)] therefore clarifies that the statute does not apply only to aliens who were and still are admitted as LPRs, but also to those who were at some earlier time admitted as LPRs but, as in the instant case, have had their LPR status terminated and are inadmissible but seeking a waiver. Id. at 302. The term “previously” serves the same purpose in 18 U.S.C. § 3592(c)(2) and (4), by indicating that all past convictions are included in its language, not just convictions that “come[] up to and touch the present” in some way. Torrez relies heavily on the Fourth Circuit’s decision in United States v. Pressley, 359 F.3d 347 (4th Cir. 2004), but that ruling concerned a different statute that bears very little similarity to § 3592(c)(2) and (4). In Pressley, the court considered the text of 18 U.S.C. § 924(e), which provides for an enhanced penalty “[i]n the case of a person who violates section 922(g) of this title and has three previous convictions” for specified offenses. Id. at 349 (emphasis added) (internal quotation marks omitted). Unlike § 3592(c)(2) and (4), which requires a determination as to whether a defendant “has previously been convicted” as of the time of sentencing, § 924(e) expressly links the phrase “has three previous convictions” to the time of - 35 -

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the underlying § 922(g) offense. The Fourth Circuit recognized this fact as a basis for its holding in Pressley that § 924(e)(1) encompassed only convictions that predated the offense conduct. See id. at 349-50 (“While the statute explicitly refers to previous convictions when discussing the predicate offenses, it looks to ‘a person who violates section 922(g)’ when discussing the instant offense. . . . Since the only reference in the statute to the § 922(g) offense speaks of a § 922(g) violation, the plain text dictates that this violation serves as the event which the ‘previous convictions’ must precede.”). The purpose of the statute at issue in Pressley, moreover, was unlike the purpose of the FDPA, which was designed as a comprehensive sentencing scheme meant to facilitate a holistic analysis of the defendant’s behavior, history, and character. See Caro, 597 F.3d at 623-24; see also United States v. Rodriguez, 581 F.3d 775, 807 (8th Cir. 2009) (concluding that a categorical approach is improper with respect to the predicate convictions described in § 3592(c)(4), because unlike sentencing in the § 924(e) context, “[f]actual inquiry is required in death penalty sentencing”); Higgs, 353 F.3d at 317 (noting that while the categorical approach was proper with respect to § 924(e), “the Court has made it clear that an individualized determination is required in the death penalty context”). The Pressley court’s discussion of surplusage must be read in the context of the opinion, which concerned a statute that expressly linked the previous convictions to the § 922(g) violation itself. See Higgs v. United States, 711 F. Supp. 2d 479, 532-34 (D. Md. 2010) (declining to apply Pressley to the FDPA on collateral review, on the basis that Pressley is “[a]rguably . . . limited to the unique circumstances surrounding [§ 924(e)], and cannot be extended to the death penalty context,” and concluding that the Fourth Circuit’s decision in Higgs, “not Pressley remains the controlling authority on this issue”). The statutory language at - 36 -

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issue in Pressley, moreover, did not use the present perfect tense, and therefore did not suffer from the ambiguity inherent in that grammatical form. It is hardly surprising that the Fourth Circuit thus concluded that the word “previous” would serve no real purpose under a contrary reading of § 924(e). Even if this Court were to determine that the government’s reading of § 3592(c)(2) and (4) renders the word “previously” superfluous, however, that fact would be insufficient to overcome the plain text and structure of those provisions, which strongly support the government’s reading. The Supreme Court has recognized that the best reading of a statute may include superfluous language, if the plain text and structure of the statute are not amenable to an alternative construction. See Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 299 n.1 (2006) (“While it is generally presumed that statutes do not contain surplusage, instances of surplusage are not unknown.”); Lamie v. U.S. Trustee, 540 U.S. 526, 536 (2004) (concluding that the canon against surplusage was “not controlling,” because “[s]urplusage does not always produce ambiguity and our preference for avoiding surplusage constructions is not absolute,” particularly when a construction that includes surplusage produces a “plain meaning” that “respects the words of Congress”); Chickasaw Nation v. United States, 534 U.S. 84, 93-94 (2001) (noting that “canons are not mandatory rules” but rather “guides that need not be conclusive,” and refusing to adopt an interpretation that “would conflict with the intent embodied in the statute Congress wrote,” even if that interpretation would avoid surplusage) (internal quotation marks omitted). Here, too, a construction of § 3592(c)(2) and (4) that includes all convictions prior to sentencing accords with Congress’s intent, as expressed in the plain text and structure of the - 37 -

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FDPA. Section 3592(c) contemplates that the fact finder will consider the statutory aggravating factors concerning prior convictions as of the time of sentencing, as part of an analysis of the defendant’s behavior, history, and characteristics. In using the present perfect tense to direct the fact finder at sentencing to consider whether the defendant “has previously been convicted,” moreover, the statute indicates that all of the defendant’s prior convictions should be considered, not just those before some unnamed, previous point in time. Torrez’s brief recitations of the rule of lenity and canon of constitutional avoidance are unavailing. Because the statute contains no “grievous ambiguity” after consideration of its text, structure, history, and purpose, the rule of lenity does not apply. See Barber v. Thomas, 130 S. Ct. 2499, 2508 (2010) (internal quotation marks omitted). And because there is no constitutional infirmity in construing such statutory aggravating factors to include post-offense convictions, the canon of constitutional avoidance is inapposite. See Clark v. Martinez, 543 U.S. 371, 381 (2005). C. The Relevant FDPA Statutory Aggravating Factors Are Constitutional.

Torrez contends, in the alternative, that the statutory aggravating factors listed in § 3592(c)(2) and (4) are unconstitutional. His first argument is that if those aggravating factors encompass any convictions entered prior to the sentencing date, they are unconstitutionally arbitrary and do not adequately channel the discretion of the judge or jury in deciding whether to impose a sentence of death. ®. Doc. 71, at 15). Torrez argues, in effect, that the statutory aggravating factors in question do not adequately narrow the sentencer’s discretion, and therefore fail to comply with the rule first articulated in Furman v. Georgia, 408 U.S. 238 (1972). “A fair statement of the consensus expressed by the Court in Furman is that ‘where discretion is afforded a sentencing body on a matter so grave as the determination of whether a - 38 -

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human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.’” Zant v. Stephens, 462 U.S. 862, 874 (1983) (quoting Gregg v. Georgia, 428 U.S. 153, 189 (1976) (plurality opinion). As the Fourth Circuit recently recognized, the Supreme Court has “articulated two requirements” that a statutory aggravating factor must satisfy in order to avoid the constitutional flaw identified in Furman: “‘an aggravating circumstance [1] must genuinely narrow the class of persons eligible for the death penalty and [2] must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.’” Caro, 597 F.3d at 623 (quoting Zant, 462 U.S. at 877) (alterations in original). The Supreme Court has long recognized that statutory aggravating circumstances concerning a defendant’s previous convictions are sufficient to satisfy this standard. See, e.g., Spaziano v. Florida, 468 U.S. 447, 466 (1984) (concluding that a state capital sentencing procedure was not arbitrary or discriminatory due, in part, to the fact that the trial judge “properly” relied on a statutory aggravating factor requiring “that the defendant had previously been convicted of another capital felony or of a felony involving the use or threat of violence to the person”); Zant, 462 U.S. at 879 (“[T]he narrowing function has been properly achieved in this case by . . . two valid aggravating circumstances . . . [including] that [the defendant] had a prior record of conviction for a capital felony. These two findings adequately differentiate this case in an objective, evenhanded, and substantively rational way . . . .”). Torrez contends that any statutory aggravating factor that can be triggered by postoffense, pre-sentencing convictions is necessarily arbitrary, because the date of the capital sentencing proceeding is “a purely arbitrary and random event.” (Docket 71 at 15). This argument would appear to foreclose, on constitutional grounds, any consideration of the - 39 -

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defendant’s post-offense conduct, and thus deprive the sentencer of valuable information about the defendant’s history and characteristics. Such a rule would also contravene clearly established Fourth Circuit case law. In United States v. Caro, the Fourth Circuit held that the statutory aggravating factors codified at § 3592(c)(10) and (12) satisfy the two-part Furman inquiry. Caro, 597 F.3d at 623. Both of the aggravating factors at issue in Caro address previous convictions: § 3592(c)(10) requires a finding that the defendant “has previously been convicted” of two or more felony drug offenses, while § 3592(c)(12) requires a finding that the defendant “had previously been convicted” of certain drug offenses, including post-offense convictions. See Higgs, 353 F.3d at 318-19. The Caro court held that both factors genuinely narrow the class of persons eligible for the death penalty and reasonably justify the imposition of a more severe sentence. See id. at 623-24 (“Defendants with significant criminal histories demonstrate unwillingness or inability to follow the law. This justifies imposing harsher sentences to provide increased retribution and deterrence. Prior convictions are thus properly and routinely considered in federal sentencing.”). A defendant who is convicted of certain crimes following the underlying capital offense, like a defendant who is convicted of those crimes prior to the underlying capital offense, may thereby demonstrate an unwillingness to comply with the law or a continuing danger to those around him. The fact that certain offenses resulted in convictions after the charged conduct should not prohibit the jury from considering those convictions, if they are relevant to a holistic analysis of the defendant’s history and characteristics. Cf. Prieto v. Commonwealth, 682 S.E.2d 910, 916 (Va. 2009) (noting introduction of evidence at sentencing phase of death penalty case regarding a defendant’s commission of a series of crimes two years

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after the charged capital offense). The same is true of § 3592(c)(2) and (4), which use similar language and also include post-offense convictions for serious criminal offenses.

VI.

RESPONSE TO MOTION TO STRIKE NON-STATUTORY AGGRAVATING FACTORS A. Legal Principles Applicable to Non-Statutory Aggravating Factors

As discussed earlier, the FDPA, including its provisions concerning non-statutory aggravating factors, comports fully with the dictates of the Supreme Court regarding death penalty schemes. Indeed, the FDPA essentially codifies the two step process prescribed by the Supreme Court for death penalty sentencing by (1) narrowing the sentencer’s discretion through eligibility factors (i.e., gateway intent factors under § 3591(a) and the statutory aggravating factors under § 3592(c)), and (2) individualizing the sentencing determination. E.g., Kansas v. Marsh, 548 U.S. 163 (2006). The FDPA’s non-statutory aggravating factors, in combination with mitigating factors, facilitate this second step – the individualizing of the sentencing determination – by offering “the fullest information possible concerning the defendant’s life and characteristics.” See Williams v. New York, 337 U.S. 241, 247 (stating that this is “highly relevant - if not essential” for “modern concepts of individualizing punishment”); Gregg, 428 U.S. at 203-04 (“We think it highly desirable for the jury to have as much information before it as possible when it makes the sentencing decision.”); Jacques, 2011 WL 1675417 at *14. In short, non-statutory aggravating factors ensure that the FDPA conforms to the Constitution’s individualized sentencing mandate. Higgs, 353 F.3d at 320 (rejecting defendant’s claim that “submission of non-statutory aggravating factors at the penalty phase allows for the random and

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unguided imposition of the death penalty by jurors”). The government’s notice lists a number of non-statutory aggravating factors which weigh in favor of the death penalty in this case. These non-statutory aggravating factors will play a role in the selection phase of the capital punishment decision-making process, in which the jury will determine whether the defendant, if eligible, should in fact receive the death penalty. See Zant, supra, 462 U.S. at 878. “What is important at the selection stage is an individualized determination on the basis of the character of the individual and the circumstances of the crime.” Id. at 879. See also Woodson v. North Carolina, 428 U.S. 280, 303-304 (1976) (plurality opinion); United States v. Regan, 228 F. Supp. 2d 742, 749-50 (E.D. Va. 2002) (the intent of non-statutory factors is to individualize sentencing based upon the character of the individual and the circumstances of the case); United States v. Karake, 370 F. Supp. 2d 275, 279 (D.D.C. 2005). At this second stage of the capital punishment decision-making process, the Supreme Court has instructed that the jury can also consider relevant mitigating evidence of the character and record of the defendant as well as the circumstances of the crime. Blystone v. Pennsylvania, 494 U.S. 299, 307 (1990) ("requirement of individualized sentencing in capital cases is satisfied by allowing the jury to consider all relevant mitigating evidence"). See also Johnson v. Texas, 509 U.S. 350, 361 (1993). Although non-statutory aggravating factors serve a different function from statutory aggravating factors, they must nevertheless satisfy a number of similar requirements in order to pass constitutional muster. See, e.g., United States v. Cheever, 423 F. Supp. 2d 1181, 1206-07 (D. Kan. 2006) (summarizing constitutional requirements of aggravating factors); Fell, 372 F. Supp. 2d at 763-64 (same). - 42 -

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First, the information must be “relevant,” meaning that it must be “sufficiently relevant to the consideration of who should live and who should die.” United States v. Davis, 912 F. Supp. 938, 943 (E.D. La.1996). Aggravating factors in death penalty cases must be “particularly relevant to the sentencing decision,” not “merely relevant, in some generalized sense, to whether the defendant might be considered a bad person.” Gregg, 428 U.S. at 192. “[A]ggravating circumstances must be construed to permit the sentencer to make a principled distinction between those who deserve the death penalty and those who do not.” Lewis v. Jeffers, 497 U.S. 764, 776 (1990). Second, an aggravating factor must meet the “heightened standard of reliability” the Supreme Court has required in death penalty cases. Ford v. Wainwright, 477 U.S. 399, 411 (1986). Thus, an aggravating factor is invalid if it cannot be established by reliable evidence. See United States v. Gilbert, 120 F. Supp. 2d 147, 153 (D. Mass. 2000) (striking two aggravating factors that were based on stale and questionable evidence). Similarly, any aggravating factor should be excluded if it is based on evidence the probative value of which is outweighed by the danger of unfair prejudice to the defendant, confusion of the issues, or a likelihood that the jury will be misled. See § 3593(c). Thus, district courts must scrutinize non-statutory aggravating factors to ensure that they meet a “strikingly high level of relevance and reliability.” United States v. Bin Laden, 126 F. Supp. 2d 290, 302 (S.D.N.Y. 2001). The court in United States v. Friend, 92 F. Supp. 2d 534 (E.D. Va. 2000), summarized the requirement of “relevance” and “heightened reliability” as follows: Relevance and heightened reliability, in the context of assessing a non-statutory aggravating factor in a death penalty scheme, are two sides of the same coin. Together, they assure the twin constitutional prerequisites of affording a rational - 43 -

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basis for deciding that in a particular case death is the appropriate punishment and of providing measured guidance for making that determination. Those objectives can only be accomplished if the proposed aggravating factor raises an issue which (a) is of sufficient seriousness in the scale of societal values to be weighed in selecting who is to live or die; and (b) is imbued with a sufficient degree of logical and legal probity to permit the weighing process to produce a reliable outcome. 92 F. Supp. 2d at 543. Third, the Constitution requires that aggravating factors not be overly broad. This means that a factor “may not apply to every defendant convicted of a murder; it must apply only to a subclass of defendants convicted of murder.” Tuilaepa v. California, 512 U.S. 967, 972 (1994) (citing Arave v. Creech, 507 U.S. 463, 474 (1993)). If the non-statutory aggravating factors are used to direct the jury to the individual circumstances of the case, then those non-statutory aggravating factors are not overly broad. Fourth, the Eighth Amendment also requires that aggravating factors may not be too vague. Id. at 973. The vagueness review is quite deferential and a factor is not unconstitutional if it has some common-sense core of meaning that criminal juries should be able to understand. Id. (quotation marks and citation omitted). Last, districts courts should favor the admission of as much information as possible to allow the jury to make an individualized determination of whether the defendant merits the death penalty. Indeed, the Supreme Court has held that “in all capital cases the sentencer must be allowed to weigh the facts and circumstances that arguably justify a death sentence against the defendant's mitigating evidence.” Brown v. Sanders, 546 U.S. 212, 216-17 (2006). Similarly, in Gregg, supra, the Supreme Court expressed its preference for allowing more, rather than less, information in capital sentencing hearings:

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We think that the Georgia court wisely has chosen not to impose unnecessary restrictions on the evidence that can be offered at such a hearing and to approve open and far-ranging argument. See, e. g., Brown v. State, 235 Ga. 644, 220 S.E.2d 922 (1975). So long as the evidence introduced and the arguments made at the presentence hearing do not prejudice a defendant, it is preferable not to impose restrictions. We think it desirable for the jury to have as much information before it as possible when it makes the sentencing decision. 428 U.S. at 203-04 (citation omitted). This court, therefore, should examine the government’s non-statutory aggravating factors and the evidence offered to prove them in this light, i.e., favoring the inclusion of evidence rather than its exclusion. B. The Non-Statutory Aggravating Factors Alleged in This Case

The government’s death penalty notice identifies twenty-two non-statutory aggravating factors. Nineteen of these relate to specific instances of past conduct by the defendant; the other three concern lack of remorse, future dangerousness, and victim impact. In his motion, the defendant characterizes these as “a kitchen-sink assortment” of factors, which is somewhat accurate. The government’s notice purposely includes very specific factual details such that the notice gives the defendant a meaningful opportunity to prepare for a possible penalty phase hearing and provides the Court with an adequate “frame of reference” for ruling on objections to the death penalty notice and on evidence and information offered during the penalty phase. United States v. McVeigh, 944 F. Supp. 1478, 1488 (D. Colo.1996). Had the government failed to provide this type of detailed notice, the defendant most likely would have moved to strike “vague” factors, have the Court order the government to respond to a bill of particulars, or in some other way provide the defendant with greater information about the government’s penalty phase evidence. Here, however, the combination of this very fact-specific and detailed notice and the voluminous discovery already provided as to each of these non-statutory factors means the - 45 -

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defendant knows precisely the evidence he must confront should there be a penalty phase and the legal theories and facts the government will use to establish each non-statutory aggravating factor in the selection phase. See, e.g., United States v. Llera Plaza, 179 F. Supp. 2d 464, 470-72 (E.D. Pa. 2001) (reviewing cases); United States v. Bin Laden, 126 F. Supp. 2d 290, 304-05 (S.D.N.Y. 2001). The government is also mindful of the legal principles governing the use of non-statutory aggravating factors and certainly does not wish to run afoul of those dictates. Yet, at this stage of the proceedings, the government knows very little about what evidence or information will be offered by the defense in mitigation and must proceed under the assumption that the defendant plans to contest all of the alleged statutory and non-statutory factors, including his guilt in the two Arlington County cases as well as any culpability for the murders of Krystal Tobias and Laura Hobbs. As a result, the government necessarily included within the notice allegations of fact which, standing alone, most likely would not be submitted to the jury as non-statutory aggravating factors. For example, the factor described at A.3 of the death notice, in which Torrez is said to have tied up a friend in Zion, Illinois, may be offered in the nature of Rule 404(b) evidence relating to the murder of Tobias and Hobbs, depending on what, if any, evidence is offered by the defendant in response to those allegations. Similarly, the factor described at A.4 may be probative of Torrez’s Arlington conduct should he decide to contest his convictions in that case. Moreover, that the defendant made threats while in jail, possessed a shank, and took steps to escape are certainly probative of whether he poses a future danger to others and should be received in evidence during the selection phase. It may not be necessary, however, to have the jury consider each as a specific separate non-statutory factor, as the more general allegations of future - 46 -

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dangerous and even lack of remorse may suffice. The point is this – the non-statutory aggravating factors are properly noticed, they are sufficiently detailed, they apply only to the defendant, and are supported by reliable and credible proof. It would be premature to strike any now. After evidence is received (subject, of course, to evidentiary motions and rulings), the Court will be in a much better position to determine whether some of these factors should or should not be submitted to the jury as part of its selection phase function. C. The Defendant’s Specific Challenges to the Non-Statutory Aggravating Factors 1. The Introductory Language to Subparagraph A

The defendant takes issue with the introductory language in Section III, Subsection A, claiming that the government impermissibly groups together juvenile and adult conduct and that the conduct alleged in paragraphs A.1 and A.2 does not constitute a “pattern” of activity. Subsection A of the notice reads as follows: The defendant, JORGE AVILA TORREZ, engaged in a pattern of criminal activity, including a pattern of violence, threats of violence and related acts, dating from at least age sixteen, as demonstrated by the following aggravating factors: This paragraph was simply meant as a brief explanation of what follows, i.e., nineteen separate acts connected by a “pattern of violence, threats of violence and related acts.” Whether this brief description would be submitted to the jury or simply the individual non-statutory aggravating factors that follow is an issue to be decided by the Court after it hears all the selection phase evidence. Nevertheless, we believe that this language describing these individual factors is fair characterization of what follows. Each of the allegations in factors 1 through 14 are acts committed by the defendant, and each involved female victims, acts of violence or threats of

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violence, sexual assault, abduction, and/or strangulation. The allegations in factors 15 through 19 are “related acts” in that they are acts committed by the defendant as a result of his arrest, detention and incarceration for his prior crimes.3 2. Non-Statutory Aggravating Factors A.1 and A.2: The 2005 Murders of Krystal Tobias and Laura Hobbs

The defendant asks the Court to strike the non-statutory aggravating factors relating to the murders of Krystal Tobias and Laura Hobbs (A.1) and the sexual assault of Laura Hobbs (A.2). The defendant argues that these two non-statutory aggravating factors should be stricken because the defendant was a juvenile at the time; because they involve unadjudicated conduct, and because the allegations are substantially prejudicial. a. Juvenile Conduct

Citing Roper v. Simmons, 543 U.S. 551 (2005), the defendant argues that juvenile conduct cannot be the basis for a non-statutory aggravating factor. In Roper, the Supreme Court held that the Eighth Amendment prohibited the execution of a person for an offense committed prior to age 18.4 Here, of course, the offense that renders Torrez death eligible, the murder of Ms. Snell, was committed by Torrez as a adult. Prior to Roper, federal courts had uniformly allowed juvenile conduct to be considered by jury at capital sentencing, subject, of course, to objections as to relevance, reliability, vagueness, and over breadth. For example, in United States v. Grande, 353 F. Supp. 2d at 634-35 (E.D. Va.

Citing United States v. Grande, 353 F. Supp. 2d 623 (E.D. Va. 2005), the defendant takes issue with our use of the word “pattern.” In Grande, Judge Lee determined that a dispute that spread out over several days was, in fact, one incident, and not two separate incidents as alleged in the government’s notice and, hence, did not constitute a “pattern” of juvenile criminal activity. Id. at 633. Roper did not affect federal death penalty practice, as the FDPA specifically excluded juveniles: “no person may be sentenced to death who was less than 18 years of age at the time of the offense.” 18 U.S.C. §3591(a)(2).
4

3

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2005), Judge Lee allowed the jury to consider as a non-statutory aggravating factor evidence that the defendant was convicted as a juvenile of a stabbing. Similarly, in United States v. Davis, 2003 WL 1873088 (E.D. La. 2003), the district court ruled that juvenile conduct alleged as nonstatutory aggravating factors may be considered by the jury at sentencing. In Davis, the defendant asked the district court to bar the use of certain juvenile conduct because the FDPA prohibited the death penalty for juveniles and because the Supreme Court, in Thomas v. Oklahoma, 487 U.S. 837 (1988) held that a person under the age of sixteen at the time of the offense was ineligible for the death penalty.5 The district court rejected those arguments, finding “no impediment to the use of juvenile adjudications per se . . . .” Davis at *5. In allowing the jury to hear evidence of the defendant’s juvenile crimes, the court stated that the “escalating pattern” of the defendant’s violent criminal behavior as a juvenile was “highly relevant.” Id. Moreover, the court indicated that the defendant would certainly be able to offer mitigating evidence bearing on the defendant’s juvenile history, and, ultimately, it would be up to the jury to decide how much weight should be given to these factors. The court stated: The thrust of defendant’s argument against the admission of these juvenile adjudications is that juveniles per se lack the physical, emotional, and cognitive development of adults, so that any evidence of juvenile conduct has little probative value. The Court finds that the weight to be given juvenile conduct based on the physical, emotional, and cognitive development of the juvenile is a matter to be considered by the jury as it weighs these aggravating factors in the sentencing process. Both parties will have the opportunity to inform the jury as to how much or how little importance they believe the jury should attach to defendant's juvenile conduct. 18 U.S.C. § 3593(c). Further, in addition to being able to challenge the seriousness of his juvenile behavior, the defendant will be able to provide information on the social, economic, psychological, or emotional deprivations he suffered as a juvenile to rebut the juvenile

5 In Davis, the government sought to use juvenile delinquency adjudications dating back to when the defendant was eleven years old. The court excluded conduct occurring when the defendant was eleven and thirteen years old but allowed the jury to consider as a non-statutory aggravating factor an adjudication for a juvenile offense committed when the defendant was fifteen.

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delinquency adjudications. Id. In summary, these juvenile adjudications, except for the first two, will not be stricken as nonstatutory aggravating factors. Id. at *6. The same is true here. The defendant will be able to present mitigating evidence as to his juvenile conduct, and the jury will be called on to decide whether and how to weigh that evidence. In United States v. Stitt, 760 F. Supp. 2d 570, 585-86 (E.D. Va. 2010), the defendant sought to exclude juvenile conduct as a non-statutory factor, citing Roper. Judge Jackson rejected this argument, finding: Defendant argues that the Supreme Court's decision in Roper v. Simmons, 543 U.S. 551, 578, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) excludes the use of his conduct as a juvenile to support a death sentence for murders that Defendant ordered while he was an adult. In Roper, the Supreme Court held that a defendant may not be executed for a capital crime he committed as a juvenile. Id. However, this Court finds Defendant's argument that his juvenile adjudications or conduct are per se excluded without merit. The Supreme Court has also stated that “it is desirable for the jury to have as much information before it as possible when it makes the sentencing decision.” Gregg, 428 U.S. at 204, 96 S.Ct. 2909; Jurek, 428 U.S. at 276, 96 S.Ct. 2950. As such, relevant and reliable aggravating factors that consist of conduct Defendant committed as a juvenile are factors that can and should be weighed by the jury. Id. Again, the same reasoning applies here. The defendant’s brutal murder of two children is certainly relevant to the jury’s determination of whether he should be sentenced to death. That he committed these crimes as a juvenile is a factor that can be weighed by the jury. b. Unadjudicated Conduct

The defendant also argues that the Court should exclude the non-statutory aggravating factors regarding the murder of Krystal Tobias and Laura Hobbs because these factors are “substantially prejudicial.” The defendant basis his argument on the fact that this conduct has yet to be adjudicated and these crimes are too heinous. The defendant fails on both contentions. - 50 -

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First, the use of unadjudicated conduct is entirely permissible, as it is in any non-capital sentencing. The FDPA does not limit non-statutory aggravating factors to prior adjudicated acts. Indeed, there is no per se ban on the admission of unadjudicated criminal conduct in the selection phase. See, e.g., Tuilaepa, 512 U.S. at 976 (approving as an aggravating factor the defendant’s participation in prior unadjudicated acts of violence); Williams v. New York, 337 U.S. 241, 244 (1949) (holding in pre-Furman case that a judge’s consideration of unadjudicated crimes in sentencing a defendant to death did not violate due process); see also United States v. Hall, 152 F.3d 381, 404 (5th Cir. 1998), abrogated on other grounds by United States v. Martinez-Salazar, 528 U.S. 304, 310-11 (2000); Milton v. Procunier, 744 F.2d 1090, 1097 (5th Cir. 1984). The Fourth Circuit and every other federal circuit to have addressed this issue have held that there are no constitutional barriers to the use of unadjudicated criminal conduct committed by a defendant in capital sentencing. See, e.g., Eaton v. Angelone, 139 F.3d 990, 998 (4th Cir. 1998); Cummings v. Polk, 475 F.3d 230, 238 (4th Cir.2007) (noting that there is authority in the 4th Circuit and the Supreme Court that evidence of unadjudicated crimes may be utilized in a capital sentencing trial); Sampson, 486 F.3d at 45-46 (finding that defendant’s previous four robberies admissible as non-statutory aggravating factor, even though defendant was not convicted, because factor demonstrates escalating criminality); Brown v. Dretke, 419 F.3d 365, 376-77 (5th Cir. 2005) (“admission of unadjudicated offenses in the sentencing phase of a capital trial does not violate the eighth and fourteenth amendments,” nor does the Constitution require “that unadjudicated extraneous offenses be proved beyond a reasonable doubt”); United States v. Lee, 274 F.3d 485, 494 (8th Cir.2001) (“the admission of evidence of unadjudicated prior offenses at a capital sentencing hearing is constitutionally permissible and not inherently prejudicial”); United - 51 -

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States v. Cooper, 91 F. Supp. 2d 90, 106-108 (D.D.C.2000) (noting that numerous federal courts and the majority of states have held that the use of unadjudicated criminal activity is constitutionally permissible in a capital sentencing hearing, and listing cases); United States v. Corley, 519 F.3d 716, 723-24 (7th Cir. 2008) (holding evidence that defendant was responsible for prior murder , though not convicted, does not undermine sentence because FDPA does not preclude use of unadjudicated prior conduct as aggravating factor); United States v. Gilbert, 120 F. Supp. 2d 147, 151-52 (D. Mass. 2000) (numerous cases cited); Nicholls v. United States, 511 U.S. 738, 747 (1994); United States v. Matthews, 246 F. Supp. 2d 137, 149 (S.D.N.Y. 2002) (numerous cases cited). Unadjudicated criminal acts, particularly violent ones, are arguably more relevant and probative than any other type of aggravating evidence supporting a death penalty verdict. United States v. Taylor, 316 F. Supp. 2d 730, 741 (N.D. Ind. 2004); United States v. Beckford, 964 F. Supp. 993, 999-1000 (E.D. Va. 1997). If the courts were to ban such evidence, it would give juries an unfairly sanitized portrayal of many capital defendants and thereby detract from the reliability of capital sentencing. The defendant also contends that the evidence of these crimes would be too prejudicial to the defendant. Section 3593(c) provides, in part, that “[information is admissible regardless of its admissibility under the rules governing admission of evidence at criminal trials except that information may be excluded if its probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury.” The government fails to see how evidence that the defendant brutally murdered two young girls, ages eight and nine, is not probative as to whether the defendant should “live or die.” Davis, 912 F. Supp. at 943. Indeed, it is difficult to imagine evidence that would be more probative for a capital jury. The only issue, - 52 -

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therefore, is whether this evidence would be “unfairly” prejudicial. The evidence that the defendant murdered Laura Hobbs and Krystal Tobias is reliable and substantial. This evidence includes the defendant’s DNA on one of the victims and a recorded statement in which the defendant repeatedly bragged about committing these murders. In admitting to these crimes, the defendant provided a graphic and detailed account of the wounds he inflicted and the manner in which he inflicted them. In fact, the defendant recently has publicly acknowledged one of the most compelling pieces of evidence against him – his DNA on one of the victims – to a newspaper reporter in August of 2011. In this article, the reporter wrote that Torrez told him, in a telephone interview from jail, that “he [Torrez] has an alibi and three witnesses to prove his innocence in the double murder. He said he will eventually explain why his semen was found in the girl.” Hinkle, Dan, I Know Someone Set Me Up, Chicago Tribune, August 19, 2011, web (accessed May 22, 2012, at http://articles.chicagotribune.com/ 2011-08-19/ news/ct-met-torrez-20110819_1_alberto-segura-laura-hobbs-zion-park). Even though it is difficult to imagine an innocent explanation for the defendant’s semen being found on the body of a dead eight-year-old girl, it is even harder to imagine why this evidence, supported by the defendant’s detailed, recorded admissions, should not be presented to the sentencing jury. 3. Non-Statutory Aggravating Factor A.3

The defendant contends that this factor, his tying up of a female friend, alleged to have been committed when the defendant was 16, should be stricken. As with the first two factors, the defendant contends that this was conduct committed as a juvenile for which he was not convicted. The defendant further argues that this factor is not relevant, presumably because it is not “bad” enough for the jury’s consideration. - 53 -

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The government concedes that, standing alone, this factor is not sufficiently relevant to the sentencing process to be submitted to the jury during the selection phase. The evidence of this conduct may be relevant, however, to the two factors A.1 and A.2, discussed above. This incident occurred in Zion, Illinois, roughly around the time-frame of the two murders and very close to the park where the girls’ bodies were found. The incident involved a female victim, physical restraint, and sexual assault. Torrez bound a young woman by tying her feet and hands (above her head) and then tying her to a trampoline. While restrained, Torrez groped her under her shirt and felt her breasts. She broke free, ran away and called the police. She had visible bruises on her wrists. Again, without knowing what evidence may be offered in mitigation or by way of a defense to the Zion murders, it is difficult to determine the probative value of this incident, but it certainly falls within the pattern of activity alleged in the death notice. 4. Non-Statutory Aggravating Factor A.4

As with factor A.3, above, the government concedes that, standing alone, this factor is not sufficiently relevant to the sentencing process to be submitted to the jury during the selection phase. The evidence of this conduct may be relevant, however, to other factors. This incident occurred in close proximity to Ms. Snell’s murder. It is evidence of the defendant’s continuing and disturbing pattern of assaulting female victims by restraining them. At this point in the process, and without knowing what evidence or arguments, if any, will be made by the defendant, it is not possible to gauge the probative value of this evidence. 5. Non-Statutory Aggravating Factors A.5, A.6, A.7, and A.8

The factors identified as A.5 through A.8 occurred subsequent to Ms. Snell’s murder and immediately before the Arlington County abductions and related offenses. Factor A.5 concerns - 54 -

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evidence – taken from the defendant’s computer – that he used the internet to access a number of websites depicting violent sexual activity and to research the use of chloroform, a chemical that can be used to incapacitate a female victim. Factors A.6 and A.8 describe how the defendant stalked potential rape victims in Arlington County. This evidence is based on observations by Arlington County police officers. Factor A.7 concerns the defendant’s purchase of a semiautomatic pistol, which he subsequently used to abduct and assault several women. This evidence consists of documents proving Torrez made this purchase and the seizure of this gun from the defendant at his Ft. Myer barracks. There can be little doubt that the evidence of these four factors is highly reliable. The acts alleged are neither speculative nor vague. They are also highly relevant. This evidence shows that the defendant’s violent, sexually charged behavior toward female victims was evolving following the murder of Ms. Snell and becoming even more aggressive. His prior behavior involved females he knew or was familiar with in some capacity. This behavior shows that by early 2010 Torrez was planning and preparing for violent, armed sexual assaults against strangers – a fact we know is true because a short time later this is what he actually did on two separate occasions. Torrez contends that these three factors should be stricken because they are vague, relate to lawful rather than unlawful conduct, and speculative. He also claims that they are duplicative of the Arlington County offenses.6 Whether these acts, by themselves, may be lawful is irrelevant. As indicated in the death notice, the government alleges a pattern of criminal activity including “related acts.” These are certainly acts related to the subsequent abductions, sexual assaults and

6

The duplicative argument is addressed in the following section relating to the Arlington County cases.

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rapes in Arlington County. They are a continuation of the acts that began with the murders in Illinois, and continued with the murder of Ms. Snell. And they are hardly speculative. Juries are asked to make inferences from circumstantial evidence of this type all the time. For example, Torrez purchased a gun. Within days of that purchase, he used that gun to abduct a woman. It is not speculative or conjecture for a jury to infer that Torrez purchased this gun for the purpose of abducting his female victims as alleged in factor A.7. Similarly, Torrez abducted women on two different occasions in February 2010 in the Ballston area of Arlington during the late night/early morning hours. He was driving his Durango on both occasions. Again, the jury could easily infer that when he was seen by police officers a few days earlier – in his Durango, in the Ballston area of Arlington, late at night – he was trying to locate and stalk potential female victims as alleged in factors A.6 and A.8. The same can be said of the defendant’s internet viewing, i.e., that searching for and viewing violent sexual behavior is just one part of the pattern of behavior described in the death notice.7 6. Non-Statutory Aggravating Factors A.9 through A.14

Non-Statutory Aggravating Factors A.9 through A12 (in part) and A14 relate specifically to the two Arlington County prosecutions in 2010. Factors A.12 and A13 concern conduct for which the defendant was not charged or convicted. The defendant claims that these non-statutory factors must be stricken because they are

The defendant claims, without citing any authority, that his internet choices are entitled to “First Amendment protection.” In Dawson v. Delaware, 503 U.S. 159, 166 (1992), the Supreme Court rejected a similar argument. In that case, the defendant appealed his death sentence, claiming that the government’s submission of evidence to the jury establishing his membership in the Aryan Brotherhood violated his First Amendment right to freedom of association. W hile the Court ultimately held that the prosecution failed to connect the relevant evidence to the defendant’s case, it affirmatively stated that this holding was not based on any First Amendment right: “. . . associational evidence might serve a legitimate purpose in showing that a defendant represents a future danger to society.” Id. at 166 (1992).

7

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duplicative of the two statutory aggravating factors relating to the defendant’s convictions in Arlington County, citing United States v. McCullah, 76 F.3d 1087, 1111-12 (10th Cir. 1996) and United States v. Tipton, 90 F.3d at 899. As an initial matter, part of factor A.12 and all of factor A.13 are not duplicative of the statutory aggravating factors, as the defendant was not convicted of this conduct. Those factors allege that Torrez sodomized (again) his female victim inside his Durango. He then strangled her. When she lost consciousness, Torrez – thinking she was dead – discarded her body in the snowcovered woods. Miraculously, she survived. This is clearly relevant and highly reliable conduct for the selection phase, supported by eyewitness testimony and physical evidence. The defendant claims that this “exact” issue – duplicative aggravating factors – was addressed in McCullah and Tipton. Although these cases addressed the issue of certain duplicative factors and the jury’s weighing function, they did not address the “exact” factual or legal context presented here. In McCullah, a Title 21 death penalty case, the district court submitted to the jury an intent factor under 21 U.S.C. § 848(n)(1)(C) that the defendant intentionally killed the victim. The judge also submitted to the jury a non-statutory factor that the defendant committed the offense charged in the indictment, which, by definition, involved the intentional killing of the victim. The district court also submitted to the jury two intent factors, (i.e., (n)(1)(C) and (n)(1)(D). The court of appeals found that submitting these substantially identical factors to the jury resulted in “double counting,” which skewed the weighing process. Id. at 1111. Similarly, in Tipton, another Title 21 death penalty case, the Fourth Circuit determined that allowing the jury to find more than one intent factor under 21 U.S.C. § 848(n) risked skewing the weighing process, as each of the these factors involve criminal intent. Id. at - 57 -

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899. Although the Tipton court found that submitting all four intent factors to the jury was error, it held that this error was harmless beyond a reasonable doubt. Id. In Jones v. United States, 527 U.S. 373 (1999), the Supreme Court was critical of the underlying rationale of McCullah. The defendant in Jones had argued that two non-statutory factors considered by the jury – both involving facts about the victim – were duplicative and improperly skewed the weighing function. The Fifth Circuit, relying on McCullah, agreed. The Supreme Court reversed. Justice Scalia, writing for the majority, stated: We have never before held that aggravating factors could be duplicative so as to render them constitutionally invalid, nor have we passed on the “double counting” theory that the Tenth Circuit advanced in McCullah and the Fifth Circuit appears to have followed here. What we have said is that the weighing process may be impermissibly skewed if the sentencing jury considers an invalid factor. See Stringer v. Black, 503 U.S. 222, 232, 112 S.Ct. 1130, 117 L.Ed.2d 367 (1992). Petitioner's argument (and the reasoning of the Fifth and Tenth Circuits) would have us reach a quite different proposition – that if two aggravating factors are “duplicative,” then the weighing process necessarily is skewed, and the factors are therefore invalid. Id. at 398 (footnote omitted). The Court went on to say that any fear that the weighing process was improperly skewed by submission of these two very similar factors was easily cured by the trial court’s instructions. Id. at 399-400 (“any risk that the weighing process would be skewed was eliminated by the District Court’s instruction” to the jury that it should weigh the value of each factor rather than counting the number of factors on each side); see also United States v. Fell, 531 F.3d 197, 236 (2d Cir. 2008) (same); United States v. Robinson, 367 F.3d 278, 292-93 (5th Cir.2004) (“Although our case law once [the McCullah theory], the Supreme Court recently admonished that it does not support that theory of review.”). A more accurate statement of the law as it pertains to duplicative factors is that the

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duplication of aggravating circumstances is unconstitutional when one aggravating circumstance necessarily subsumes the other. This general proposition was recognized by the Supreme Court in Jones, 527 U.S. at 398 n. 13, and followed since. See, e.g., Allen v. Woodford, 395 F.3d 979, 1012 (9th Cir. 2005); Fields v. Gibson, 277 F.3d 1203, 1219 (10th Cir. 2002); United States v. Bin Laden,126 F. Supp. 2d 290, 299 (S.D. N.Y. 2001) (“an aggravating factor that is necessarily and wholly subsumed by a different aggravator ... is invalid per se”). Factors are impermissibly duplicative, in other words, when a jury would “necessarily have to find one in order to find the other.” Johnson v. Gibson, 169 F.3d 1239, 1252 (10th Cir.1999). Two factors are not duplicative, however, merely because they are supported by the same evidence. See Jones, 527 U.S. at 399; see also United States v. Bolden, 545 F.3d 609, 624-25 (8th Cir. 2008) (aggravating factors of prior criminal conduct, pecuniary gain, and obstruction of justice not duplicative because same facts can support different aggravators); United States v. Purkey, 428 F.3d 738, 761 (8th Cir. 2005) (holding that there is no constitutional infirmity if “the same facts can support different inferences that form different aggravators.”). The government has no intention of inviting error in this case by having the court submit duplicative factors to the jury, even if any confusion in this regard could be cured by appropriate instructions. At the same time, however, the jury is entitled to know all of the facts that lead to the defendant’s convictions in Arlington County. If those facts are admitted during the eligibility phase, there would be no reason to repeat this evidence during the selection phase. If however, the defendant seeks to limit the eligibility phase evidence to the simple fact that he was convicted in Arlington County of certain offenses, then the government should be permitted to put on additional evidence of the defendant’s conduct, i.e., the underlying facts, in the selection phase. If - 59 -

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the former course is adopted, the government would be satisfied with the submission of the statutory aggravating factors relating to his previous convictions without the need for additional non-statutory aggravating factors relating to this same conduct. Any conduct not subsumed by the previous convictions, however, could be submitted as a non-statutory aggravating factor. For example, as noted above, most of the conduct described in factors A.12 and A.13 occurred in Prince William County and is not subsumed in the Arlington County convictions. 7. Non-Statutory Aggravating Factors A.15, A.16, A.17, A.18 and A.19

These factors concern conduct occurring while in custody. Factors A.15, A.16, A.17, and A.18 occurred while the defendant was in the Arlington County jail and awaiting trial on the Arlington County charges. The last factor, A.19, occurred while incarcerated at the Red Onion State Prison. These factors are appropriately alleged as an ongoing part of the defendant’s criminal activity and related acts. More significantly, the underlying facts supporting these allegations may be considered by the jury during the selection phase with regard to both the allegation of future dangerousness and lack of remorse. As noted above, aggravating factors are not duplicative merely because they allow the jury to determine two or more separate factors from identical facts. Again, the government concedes that this conduct, considered in isolation, most likely does not support the submission to the jury of separate non-statutory factors for each incident. If the Court determines to admit these facts in evidence as described in the death notice during the selection phase, this conduct could be considered by the jury with regard to non-statutory factors B and C, discussed below. 8. Non-Statutory Aggravating Factor B: - 60 -

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Lack of Remorse Citing one case, United States v. Walker, 910 F. Supp. 837, 855 (S.D.N.Y.), the defendant argues that the non-statutory aggravating factor, lack of remorse, is not valid. He claims it is vague and prejudicial. Lack of remorse has been alleged here as a separate factor; and evidence of the defendant’s lack of remorse is alleged to contribute to his future dangerousness. Lack of remorse has long been widely accepted as relevant in capital sentencing. The Supreme Court specifically recognized lack of remorse as relevant in a capital sentencing hearing in Zant v Stepehens, 462 U.S. 862, 885n.22 (1983) (“Any lawful evidence which tends to show the motive of the defendant, his lack of remorse, his general moral character, and his predisposition to commit other crimes is admissible in aggravation”); see, e.g., United States v. Roman, 371 F. Supp. 2d 36, 50 (D. P.R. 2005) (non-statutory aggravating factor of lack of remorse established by post-murder shopping spree); United States v Ortiz, 315 F.3d 873, 902 (8th Cir. 2002)(government allowed to rely on future dangerousness with lack of remorse as an element thereof; disposal of body, the defendant’s drinking after getting paid for murder, defendant’s demeanor during statements to police all supported finding of lack of remorse); United States v. Davis, 2003 WL 1873088 (E.D. La. 2003) (distinguishing United States v. Davis, 912 F. Supp. 938 (E.D. La. 1996)); United States v. Nguyen, 928 F. Supp. 1525, 1541-42 (D. Kan. 1996). In United States v. Walker, the court prohibited the government from alleging lack of remorse as a stand-alone factor. The reason was simple. The only evidence of lack of remorse was a single statement of profanity by the defendant (that he “killed the ‘mother f —er’”). Id. at 855. Indeed, the Walker court stated that it was excluding evidence of lack of remorse “[i]n light - 61 -

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of the obvious prejudice entailed by singling out and presenting this epithet to the jury as a statutory non-aggravating factor, and in light of the numerous competing inferences which can be drawn from the use of such vulgarisms, and overall, in light of the sheer triviality. . . .” Id. From this language, one can see that in addition to the notion of “triviality,” the court was concerned that the jury was going to be presented with a single statement that was, at best, ambiguous. Here, by contrast, in support of the lack of remorse factor, the government intends to present evidence of multiple statements made by the defendant, some of which are recorded, clearly displaying his lack of remorse for killing Ms. Snell. And, unlike the vulgarity in Walker, the meaning of the statements are unambiguous. Accordingly, because such evidence is highly relevant to the jury’s sentencing decision, the lack of remorse allegation should not be struck. 9. Non-Statutory Aggravating Factor C: Future Dangerousness

The defendant objects to the non-statutory aggravator of future dangerousness, although he apparently concedes it may have some relevance to the defendant’s life in prison. Future dangerousness as an aggravating factor has been upheld in literally dozens of cases involving the FDPA. United States v. LeCroy, 441 F.3d 914, 930 (11th Cir. 2006); United States v. Basham, 561 F.3d 302, 331 (4th Cir. 2009); United States v. Basciano, 763 F. Supp. 2d 303, 352 (E.D.N.Y. 2011)(“‘lower courts have uniformly upheld future dangerousness as a nonstatutory aggravating factor in capital cases under the FDPA’”)(citing Bin Laden, 126 F. Supp. 2d at 303-04); United States v. Hammer, 2011 WL 6027771 at *4-5 (M.D. Pa. 2011); United States v. Llera Plaza, 179 F. Supp. 2d 464, 473-474 (E.D. Pa. 2001). The Supreme Court has expressly approved of consideration at sentencing of the non-

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statutory aggravator future dangerousness. See Jurek v. Texas, 428 U.S. 262, 275-76 (1976) (“what is essential is that the jury have before it all possible information about the individual whose fate it must determine”; noting task of evaluating future dangerousness is performed countless times each day in the American justice system). As the Eighth Circuit noted in United States v. Allen, 247 F.3d 741 (8th Cir. 2001), this aggravating factor is certainly relevant because “[a] defendant in prison for life is still a risk to prison officials and to other inmates, and even though a life sentence without the possibility of parole greatly reduces the future danger to society from that particular defendant, there is still a chance that the defendant might escape from prison or receive a pardon or commutation.” Id. at 788. With respect to future dangerousness, the factor as alleged provides sufficient notice of what evidence will be presented at sentencing – the defendant’s history of violence, including the murders of Tobias, Hobbs, and Snell; the abductions, rapes, sexual assaults and attempted murder in Arlington and Prince William Counties; his lack of remorse; the threats against witnesses and other prison misconduct – all of which are set forth in detail in the death notice. 10. Non-Statutory Aggravating Factor D: Victim Impact

In the death notice, the final non-statutory aggravating factor reads as follows: The defendant, JORGE AVILA TORREZ, 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 her death upon the victim’s family and friends. This type of evidence, often called “victim impact” evidence, is not prohibited by the Eighth Amendment. Evidence and argument relating to the victim’s personal characteristics and the impact of the victim’s death on her family and friends are legitimate means of informing the - 63 -

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sentencing jury about the specific harm caused by the defendant’s acts. The defendant seeks to preclude this evidence, arguing that it is vague. He also argues that the evidence must be limited to victim’s family. As with his other challenges, this one too must fail. Defendant’s argument that the victim impact factor is impermissible is foreclosed by Payne v. Tennessee, 501 U.S. 808 (1991), in which the Supreme Court overruled its prior decisions in South Carolina v. Gathers, 490 U.S. 805 (1989), and Booth v. Maryland, 482 U.S. 496 (1987), and held that both the victim's personal characteristics and the impact of the murder on the victim’s family may be considered in capital sentencing. Consistent with Payne, Congress has expressly determined that victim impact is a relevant sentencing factor in federal capital proceedings. Section 3593(a)(2) states that: The factors for which notice is provided under this subsection may include factors concerning the effect of the offense on the victim and the victim's family, and may include oral testimony, a victim impact statement that identifies the victim of the offense and the extent and scope of the injury and loss suffered by the victim and the victim's family, and any other relevant information. 18 U.S.C. §3592(a)(2). Payne corrected the “affront to the civilized members of the human race” caused by the Booth bar to victim impact evidence, which resulted in capital sentencing hearings in which “a parade of witnesses may praise the background, character and good deeds of defendant . . . without limitation as to relevancy, but nothing may be said which bears upon the character of, or the harm imposed, upon the victim[].” 501 U.S. at 826, quoting Tennessee v. Payne, 791 S.W. 2d 10, 19 (Tenn. 1990). The Payne court found nothing unfair in allowing a jury to bear in mind the harm a defendant’s killing caused while it considers defendant’s mitigating evidence. 501 U.S. at - 64 -

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826. Payne recognized that victim impact evidence “is designed to show . . . each victim’s ‘uniqueness as an individual human being,’ whatever the jury might think the loss to the community resulting from his death might be.” Id., at 823. The victim impact evidence noticed by the government will perform the two-fold function discussed in Payne. First, the evidence will reveal to the jury the victim’s “personal characteristics.” Very simply, the jury is entitled to learn about Amanda Snell – her characteristics, talents, personality, who she was and what she did in life. Second, the evidence will explain how her death impacted those closest to her. Again, the jury is entitled to know the extent and scope of the injury and loss suffered by her family and loved ones. It is understandable that defendant would seek to preclude the jury from learning this information. But, in order for the jury to properly address defendant’s moral culpability and blameworthiness, it “should have before it the sentencing phase evidence of the specific harm” defendant caused. Id. at 825. That specific harm is contained in the government’s victim impact evidence. Moreover, the defendant’s overbreadth argument is without merit. Defendant’s argument suggests that “victim impact” could apply to every murder defendant. However, the Supreme Court itself has held as follows: Of course, every murder will have an impact on the victim’s family and friends and victims are often chosen because of their vulnerability. It might seem, then, that the factors [] apply to every eligible defendant and thus fall within the Eight Amendment’s proscription against overbroad factors. But that cannot be correct. . . . Even though the concepts of victim impact and victim vulnerability may well be relevant in every case, evidence of victim vulnerability and victim impact in a particular case is inherently individualized. And such evidence is surely relevant to the selection phase decision, given that the sentencer should consider all of the circumstances of the crime in deciding whether to impose the death penalty. Jones v. United States, 527 U.S. 373, 401-402 (1999) (emphasis in original). In light of this - 65 -

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holding, the defendant’s argument that this factor is “overbroad” must fail. Indeed, courts have routinely rejected the very challenge to victim impact evidence that the defendant raises here. United States v. Chanthadara, 230 F.3d 1237, 1273-74 (10th Cir. 2000); United States v. Minerd, 176 F. Supp. 2d 424, 448 (W.D. Pa. 2001); United States v. Edelin, 134 F. Supp. 2d 59, 78-79 (D. D.C. 2001); United States v. Frank, 8 F. Supp. 2d 253, 280 (S.D.N.Y. 1998). Finally, the argument that victim impact evidence is limited to testimony by family members must also fail. The introduction of non-family victim-impact evidence is hardly controversial in the federal system. See, e.g., United States v. Barrett, 496 F.3d 1079,1099 (10th Cir. 2007); United States v. Johnson, 495 F.3d 951, 976-77 (8th Cir. 2007); United States v. Nelson, 347 F.3d 701, 713 (8th Cir. 2003); United States v. Bernard, 299 F.3d 467, 478-79 (5th Cir. 2002); United States v. Allen, 247 F.3d 741, 779 (8th Cir. 2001); United States v. Paul, 217 F.3d 989, 995 (8th Cir. 2000); United States v. Battle, 173 F.3d 1343, 1348 (11th Cir. 1999); United Staets v. McVeigh, 153 F.3d at 1216; United States v. Williams, 2008 WL 4644830, *7 (C.D. Cal. 2008) (denying motion to limit victim impact testimony to family members); United States v. Henderson, 485 F. Supp. 2d 831, 871 (S.D. Oh. 2007); United States v. Cheever, 423 F. Supp. 2d 1181, 1209-10 (D. Kan. 2006).

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Case 1:11-cr-00115-LO Document 76

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CONCLUSION For these reasons, the motions of the defendant should be denied.

Respectfully submitted, Neil H. MacBride United States Attorney Michael E. Rich James L. Trump Jonathan L. Fahey Assistant United States Attorneys Robert Heberle Dylan Fallik Special Assistant United States Attorneys Attorneys for the United States

By:

/s/ Michael E. Rich Assistant United States Attorney VSB: 33808 Attorney for the United States United States Attorney’s Office 2100 Jamieson Avenue Alexandria, Virginia 22314 Tel: (703) 299-3758 Fax: (703) 299-3982 mike.rich@usdoj.gov

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CERTIFICATE OF SERVICE I hereby certify that on the 22nd day of May, 2012, I electronically filed the foregoing Consolidated Response of the United States to Defendant’s Motions with the Clerk of Court using the CM/ECF system, which will send a notification of such filing (NEF) to the following: Geremy C. Kamens, Esq. Federal Public Defender’s Office 1650 King Street, Suite 500 Alexandria, Virginia 22314 Christopher M. Davis 1350 Connecticut Avenue, N.W., Suite 202 Washington, D.C. 20036

By:

/s/ James L. Trump Assistant United States Attorney Attorney for the United States United States Attorney’s Office 2100 Jamieson Avenue Alexandria, Virginia 22314 (703) 299-3726 jim.trump@usdoj.gov

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