Givens v. Housewright,
786 F.2d 1378
(9th Cir.
1986)
Godfrey v. Georgia,
446 U.S. 420 (1980)
Goss v. Lopez, 419 U.S.
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Grannis v. Ordean, 234 U.S.
385, 394 (1914)
Gray v. Mississippi,
481 U.S. 648, 662-663 (1987)
Griffith v. Kentucky,
479 U.S. 314 (1987) 1Guidroz v. Polizzi, 852 F.2d 832, 836
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Harich v. Wainwright,
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1987)
Henry v. State, 586 So.2d
1335 (Fla.App. 1991)
Herman v. United States, 289 F.2d 362 (5th Cir.
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Herring v. New York,
422 U.S. 853, 858 (1975)
Hunter v. United States, 62 F.2d 217, 220 (5th Cir.
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In re Gault, 387 U.S.
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In Re Hitchings, 6 Cal.
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In re Oliver, 333 U.S.
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Irvin v. Dowd, 366 U.S.
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Kirby v. Illinois, 406 U.S. 682, 689, 32 L.Ed. 2d 411,
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Knox v. Collins, 928 F.2d
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Lakeside v. Oregon,
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Lankford v. Idaho, 500 U.S.
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Lewis v. State, 286
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Lockhart v. McCree,
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Lowenfield v. Phelps,
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Maine v. Moulton, 474 U.S.
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Maynard v. Cartwright ,
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Milton v. Wainwright,
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Morgan v. Illinois,
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People v. Odle, 45 Cal.3d
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Potts v. Kemp, 734 F.2d
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Powell v. Nevada, 114 St.
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Presnell v. Georgia,
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Stringer, 112 S.Ct.
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202 (1965)
Tague v. Louisiana,
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Tavarez v. U.S. Atty. General, 668 F.2d 805, 807 (5th Cir.
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Tuilaepa v. California, 114 S. Ct. 2630, 2636
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Ungar v. Sarafite, 378 U.S.
575 (1964)
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459 U.S.
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United States v. Ash,
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United States v. Bagley, 473 U.S. 667, 682,
87 L.Ed. 2d 481, 105 S.Ct.
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United States v. Barton, 731 F.2d 669 (10th Cir.
1984)
United States v. Bear Runner, 502 F.2d 908, 911
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United States v. Bell,
936 F.2d 337 (7th Cir. 1991)
United States v. Bernal-Obeso, 989 F.2d 331(9th Cir.
1993)
United States v. Berry,
670 F.2d 583 (5th Cir.
Unit B 1982) (en banc)
United States v. Black,
685 F.2d 132, 134 (5th Cir.), cert. denied, 459 U.S.
1021 (1982)
United States v. Blount, 479 F.2d 650, 651 (6th Cir.
1973)
United States v. Bryant, 439 F.2d 642, 648 (D.C. Cir. 1971)
United States v. Campbell, 685 F.2d 131, 132 (5th Cir.
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United States v. Chagra, 638 F.Supp. 1389 (W.D. Tex.
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United States v. Chandler, 996 F.2d 1073 (11th Cir. 1993), cert.
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United States v. Clarke, 468 F.2d 890 (5th Cir. 1972)
United States v. Colombo, 869 F.2d 149(2nd Cir.
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United States v. Cooper, 754 F. Supp. 617, 621-22 (N.D. Ill.
1990)
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United States v. Cruz,
581 F.2d 535 (5th Cir. 1978) (en banc)
United States v. Cueto,
611 F.2d 1056, 1065, (5th Cir.
1980)
United States v. Dicker, 853 F.2d 1103 (3d cir.
1988)
United States v. Dunn,
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United States v. Eiland, 741 F.2d 7389 (5th Cir. 1984)
United States v. Enright, 579 F.2d 980, 986 (6th Cir.
1978)
United States v. Evans,
950 F.2d 187
(5th Cir.
1991)
United States v. Fessel, 531 F.2d 1275(5th Cir.
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United States v. Gaston, 608 F.2d 607, 614 (5th Cir.
1979)
United States v. Geittmann, 733 F.2d 1419, 1425 (10th Cir.
1984)
United States v. Gregory, 369 F.2d 185, (D.C. Cir. 1966), cert.
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United States v. Gullickson, 982 F.2d 1231 (8th Cir.
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United States v. Harris, 542 F.2d 1283, 1294(7th Cir.), cert. denied,
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United States v. Hawkins, 658 F.2d 279, 285 (5th Cir. 1981)
United States v. Henry,
447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed. 2d
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United States v. Howard, 752 F.2d 220, 226 (6th Cir.
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United States v. Ibarra, 965 F.2d 1354 (5th Cir. 1992) (en banc)
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United States v. Kasouris, 474 F.2d 689 (5th Cir.
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United States v. Kelley, ___ F.2d ___, ___ WL ___
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United States v. Long,
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United States v. Lopez, 543 F.2d 1156 (5th Cir. 1976), cert. denied,
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United States v. Marable, 578 F.2d 151 (5th Cir. 1978)
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United States v. McInnis, 601 F.2d 1319, 1327(5th Cir.
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United States v. McRay,
665 F.2d 674, 677
(5th Cir.
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United States v. Medel,
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United States v. Miller, 821 F.2d 546 (11th Cir.
1987)
United States v. Miranne, 688 F.2d 980, 988 (5th Cir.
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United States v. Mouton, 657 F.2d 736, 739 (5th Cir.
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United States v. Muniz-Melchor, 894 F.2d 1430, 1433-34 (5th Cir.), cert. denied,
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United States v. Nafzger, 965 F.2d 213 (7th Cir.
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United States v. Narciso, 446 F. Supp. 262, 318, 327(E.D. Mich.
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United States v. Opager, 598 F.2d 799, 804 (5th Cir.
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United States v. Perez,
648 F.2d 219 (5th Cir.), cert. denied, 454 U.S.
970, 1055 (1981)
United States v. Pierce, 893 F.2d 669, 675 (5th Cir.
1990)
United States v. Pitera, 795 F. Supp. 546, 556-57 (E.D.N.Y. 1992)
United States v. Pretlow, 779 F. Supp. 758, 772 (D.N.J. 1991)
United States v. Rockwell Internat'l Corp., 924 F.2d 928, 933 (9th Cir. 1991)
United States v. Salazar, 720 F.2d 1482, 1486 (10th Cir. 1983), cert.
denied, 469 U.S.
1110, 105 S. Ct. 789 (1985)
United States v. Scott,
854 F.2d 697(5th Cir.
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United States v. Shaw,
920 F.2d 1225 (5th Cir.), cert. denied, 111 S. Ct.
2038 (1991)
United States v. Smith,
799 F.2d 704 (11th Cir.
1986)
United States v. Steele, 685 F.2d 793 (3d Cir.
1982)
United States v. Thomas, 12 F.3d 1350
United States v. Tipton, appeals pending, Nos.
93-4005, 93-4006, 93-4007, 93-4009, 93-4010
United States v. Uni Oil, Inc., 646 F.2d 946, 953 (5th Cir. 1981), cert.
denied, 455 U.S.
908, 102 S. Ct. 1254 (1982)
United States v. Villarreal, 963 F.2d 730 (5th Cir. 1992)
United States v. Wade,
388 U.S. 218, 18 L.Ed. 2d 1149, 87 S.Ct.
1926 (1967)
United States v. Washington, 819 F.2d 221 (9th Cir.
1987)
United States v. Watson, 496 F.2d 1125, 1129-30 (4th Cir.
1973)
United States v. Welch,
810 F.2d 485, 491 (5th Cir.
1987)
United States v. Williams, 998 f.2d 258, 269 (5th Cir. 1993), cert.
denied, 127 L.Ed.
2d 230, 114 S.Ct. 940 (1994)
United States v. Young,
470 U.S. 1 (1985)
Victor v. Nebraska,
114 S.Ct. 1239 (1994)
Vitek v. Jones, 445 U.S.
480, 496 (1980)
Wainwright v. Witt,
469 U.S. 423, 425 (1985)
Walton v. Arizona, 497 U.S.
639, 654 (1990)
Ward v. Commonwealth,
Ky., 695 S.W.2d 404, 407 (1985)
Wardius v. Oregon, 412 U.S.
470, 475-76 (1973)
Wilson v. Kemp, 777 F.2d
621 (11th Cir. 1985), cert.
denied, 106 S. Ct.
2258 (1986)
Witherspoon v. Illinois, 391 U.S. 510, 520-21 n.20
Wolff v. McDonnel, 418
U.S. 539, 563-64 (1974)
Wong Sun v. United States, 371 U.S. 471, 490, 83 S. Ct. 407,
9 L. Ed. 2d
441 (1963)
Woolston v. State, 453
N.E.2d 965 (Ind. 1983)
Zant v. Stephens, 462 U.S.
862, 877 (1983)
I. STATEMENT OF JURISDICTION
Jurisdiction of this Court is invoked under 28
U.S.C. § 3742(a), as an appeal from a final judgment of conviction and sentence in the United States District Court for the southern District of Texas, Brownsville Division, after timely notice of appeal in accordance with Fed. R. App. P. Rule 4(b).
II. STATEMENT OF THE ISSUES
CONSTITUTIONALITY OF STATUTE
ISSUE NUMBER ONE - WHETHER THE GOVERNMENT VIOLATED GARZA'S CONSTITUTIONAL AND STATUTORY RIGHT TO HAVE THE SENTENCING JURY INFORMED THAT THE ONLY ALTERNATIVE TO DEATH WAS LIFE WITHOUT PAROLE.
ISSUE NUMBER TWO - WHETHER THE SECTION 848(n)(1) AGGRAVATING FACTOR IS UNCONSTITUTIONAL ON ITS FACE AND AS APPLIED.
ISSUE NUMBER THREE - WHETHER THE "SUBSTANTIAL PLANNING" STATUTORY AGGRAVATING FACTOR IS UNCONSTITUTIONALLY VAGUE.
ISSUE NUMBER FOUR - WHETHER THE PENALTY PHASE INSTRUCTIONS MISSTATE THE LAW AND DENIED GARZA DUE PROCESS.
JURY SELECTION ERRORS
ISSUE NUMBER FIVE - WHETHER THE COURT ERRED BY REJECTING JOINT RECOMMENDED PROCEDURES, REJECTING INDIVIDUAL VOIR DIRE, UNDULY RESTRICTING VOIR DIRE BY TOPIC AND TIME, AND THUS DENY GARZA A FAIR TRIAL.
ISSUE NUMBER SIX - WHETHER THE DISTRICT COURT ERRED IN EXCLUDING FOUR VENIREMEMBERS
("VM") WHO COULD VOTE FOR THE DEATH PENALTY IN SOME CASES, BUT NOT UNDER CERTAIN FACTUAL SCENARIOS, SUCH AS VM FLORES WHO SAID HE WOULD NOT VOTE FOR THE DEATH PENALTY WHEN A HOMICIDE VICTIM WAS DEMONSTRABLY INVOLVED IN THE CRIMINAL DRUG ACTIVITY.
ISSUE NUMBER SEVEN - WHETHER APPELLANT WAS DENIED DUE PROCESS OF LAW WHEN THE TRIAL COURT REJECTED EIGHT CHALLENGES FOR CAUSE TO JUROR
SCHEINER, #3, JUROR CASAS, #52, AND SIX OTHER PROSPECTIVE JURORS DUE TO CONNECTIONS TO A HOMICIDE VICTIM, TO LAW ENFORCEMENT/PROSECUTION WITNESSES AND DUE TO PREJUDICIAL PUBLICITY EXPOSURE.
PROSECUTORIAL MISCONDUCT
ISSUE NUMBER. EIGHT - WHETHER THE TRIAL COURT DENIED ADEQUATE PREPARATION TIME, PERMITTED BELATED NOTICE OF INFORMATION IN AGGRAVATION, PERMITTED THE GOVERNMENT TO FILE A BOGUS WITNESS LIST AND INTERFERE WITH GARZA'S ACCESS TO WITNESSES, TOLERATED THE GOVERNMENT WITHHOLDING CRITICAL, DISCOVERABLE INFORMATION AND OTHERWISE DEPRIVED GARZA OF A FAIR OPPORTUNITY TO DEFEND HIMSELF AT BOTH THE GUILT AND PUNISHMENT TRIALS.
ISSUE NUMBER NINE - WHETHER THE COURT ABUSED ITS DISCRETION BY DENYING GARZA'S REQUEST FOR WITNESS STATEMENTS GIVEN TO PROSECUTORS AND AGENTS DURING DEBRIEFING.
ISSUE NUMBER TEN - WHETHER THE COURT ERRED IN ALLOWING THE GOVERNMENT TO INTRODUCE STATEMENTS MADE BY GARZA WHICH THE GOVERNMENT FAILED TO DISCLOSE IN DISCOVERY.
ISSUE NUMBER ELEVEN - WHETHER THE COURT ERRED BY PERMITTING THE GOVERNMENT TO CONTINUOUSLY OBJECT THROUGHOUT DEFENSE COUNSEL'S CLOSING ARGUMENTS.
ERRORS ASSOCIATED WITH TAPE RECORDED EVIDENCE
ISSUE NUMBER TWELVE - WHETHER THE COURT ERRED IN DENYING GARZA'S MOTION TO EXCLUDE TAPE RECORDINGS RELATING TO MATTERS NOT PART OF THE ALLEGED CONSPIRACY.
ISSUE NUMBER THIRTEEN - WHETHER THE COURT ERRED IN PERMITTING NON-EXPERT WITNESSES, WHO WERE NOT PARTIES TO THE CONVERSATION, TO TESTIFY AS TO THE CONTENTS OF RECORDED CONVERSATIONS.
JUDICIAL MISCONDUCT
ISSUE NUMBER FOURTEEN - WHETHER THE COURT ERRED BY PARTICIPATING IN THE TRIAL AS AN ADVOCATE, THUS DENYING GARZA HIS RIGHT TO A FAIR TRIAL.
ERRORS ASSOCIATED WITH COUNT 10 OF THE INDICTMENT
ISSUE NUMBER FIFTEEN - WHETHER THE COURT ERRED IN FAILING TO DISMISS COUNT TEN (10).
ISSUE NUMBER SIXTEEN - WHETHER THE TRIAL COURT ERRED IN ITS FAILURE TO SUPPRESS EVIDENCE AND STATEMENTS WHICH RESULTED FROM AN ILLEGAL AND UNREASONABLE STOP, SEARCH, SEIZURE, AND INTERROGATION.
EVIDENTIARY ISSUES
ISSUE NUMBER SEVENTEEN - WHETHER THE COURT ERRED IN ITS DENIAL OF DEFENDANTS MOTION IN LIMINE REGARDING PHOTOGRAPHS OF LOST EVIDENCE.
ISSUE NUMBER EIGHTEEN - WHETHER THE COURT ERRED IN PERMITTING THE WITNESS TO TESTIFY AS TO HEARSAY STATEMENTS IN IDENTIFYING THE BODY.
III. STATEMENT OF THE CASE
On February 3, 1992 a Federal Grand Jury at Brownsville, Texas returned a two-count indictment in B-92-034 against Juan Raul Garza ("Appellant" or "Garza") alleging violations of the Controlled Substances
Act.1
On January 7, 1993, United States District Judge Filemon B. Vela upon government motion, dismissed indictment B-92-034 against Garza. A new ten (10) count indictment was returned with alleged amount other charges three (3) counts of murder to further a continuing criminal
enterprise.2
On July 29, 1993, Garza was found guilty of Counts 1 through 10 by a jury verdict. The punishment phase of the trial commenced on July 29, 1993. On August 2, 1993, a jury verdict returned the death penalty in Count seven (7), eight (8) and nine (9). The Court then sentenced Garza to death in each of Counts seven (7), eight (8), and nine (9). On October 8, 1993, the district court sentenced Garza to life in Count one (1), life in Count two (2), forty (40) years in Count three (3), twenty (20) years in Count four (4), forty (40) years in Count five (5), life in Count six (6), and twenty (20) years in Count ten (10). It was further ordered that the sentence in each of Counts one (1), two (2), three (3), four (4), five (5), six (6) and ten (10) run concurrently to each other for a total imprisonment sentence of life.
IV. STATEMENT OF THE FACTS
This appeal represents only the third time a defendant has been sentenced to death under the federal death penalty statute Title 21
U.S.C. §§ 848(e). The first such case has already been appealed through the Supreme Court, which denied Certiorari. United States v. Chandler, 996 F.2d 1073 (11th Cir. 1993), cert. denied, 114 S. Ct. 2724 (1994). The second case, at the time of this writing, is pending before the Fourth Circuit with all briefs filed. United States v. Tipton, appeals pending, Nos. 93-4005, 93-4006, 93-4007, 93-4009, 93-4010.
The case represents the first time the Fifth Circuit has been asked to review the federal death penalty and its application. This brief concerns many significant issues of first impression.
A. THE STATUTORY SCHEME
The Anti-Drug Abuse Act of 1988, 21
U.S.C. §§ 848 et. seq., (also known as the Drug Kingpin statute), allows a jury to consider the death penalty when it finds that a defendant intentionally killed another person while engaged in or working in furtherance of a continuing criminal enterprise. Statutory procedures must be followed before the death sentence can be imposed.
First, the government must serve notice on the defendant "a reasonable time before trial," stating that it intends to seek the death penalty and informing the defendant of all aggravating factors which it intends to prove. Id. §§ 848(h)(1). After notice is given, the trial is broken into two phases. Id. §§ 848(i). In the first phase, the jury determines whether the defendant has committed each of the crimes alleged. If the jury fiends that the defendant was engaged in a continuing criminal enterprise
("CCE") and committed a murder while working in furtherance of that
CCE, then a separate sentencing hearing (the second phase) is conducted to present evidence regarding the appropriateness of the death sentence. Id. § 848(i). At this hearing, the government is permitted to prove any statutory or non-statutory aggravating factors of which it gave notice prior to trial. Each of these aggravating factors must be established beyond a reasonable doubt. Id. §§ 848(j).
It is mandatory that the government prove beyond a reasonable doubt at least one of the aggravating factors from the list in §§ 848(n)(1)
and at least one of the aggravating factors listed from § 848(n)(2)-(12). Id. §§ 848(k). The jury must then consider any mitigating factors which the defendant has established by a preponderance of the evidence. Id. §§ 848(j), (k), (m). Only if the jury concludes that the aggravating factors "sufficiently outweigh" the mitigating factors may the death penalty be imposed. Id. §§ 848(k). A jury is never required to impose the death penalty,
Id.
If the jury "recommends" the death penalty, the judge must impose the sentence, provided that each juror attests that he was not influenced by the "race, color, religious beliefs, national origin, or sex" of the defendant or the
victim(s). Id. §§ 848(1), (o). On appeal, the appellate court must consider "the record, the evidence submitted during the trial, the information submitted during the sentencing hearing, the procedures employed in the sentencing hearing, and the special findings returned" by the jury. Id. §§ 848(q)(2). The court may affirm the sentence only if it determines that: (1) the death sentence was not "imposed under the influence of passion, prejudice, or any other arbitrary factor"
and (2) the information supports the existence of every aggravating factor upon which the sentence was based. Id. §§ 848(1)(3).
B. THE INDICTMENT
On February 3, 1992, a Federal Grand Jury returned a two-count indictment, B-92-034, against Garza and fifteen co-defendants alleging conspiracy to import marijuana and conspiracy to possess, with intent to distribute, marijuana. Garza was arrested on November 6, 1992. During 1992, the majority of the co-defendants, entered into plea agreements. On January 5, 1993, Garza was reindicted with four co-defendants in a ten-count indictment, B-93-009, alleging the original two counts as well as three substantive drug counts, continuing criminal enterprise
(CCE), three murders in furtherance of the CCE, and money laundering. The government sought the death penalty against Garza based on the three murders. Prior to Garza's trial, two of the co-defendants entered into a plea agreement involving the drug counts. The third codefendant, Manuel Flores, was severed for trial over Garza's objection. Garza was given no advanced notice of the court's ruling. In March, 1993, Flores was tried and convicted for conspiracy to import and distribute marijuana, and the murders of Gilberto Matos and Erasmo de la
Fuente. Flores was sentenced to life imprisonment. The government did not seek the death penalty for Flores though he was the triggerman. Garza maintains that it was highly prejudicious to sever out the triggerman.
C. PRETRIAL PROCEEDINGS AND JURY SELECTION
Most of the coconspirators were permitted to negotiate plea agreements with the government. The B-92-034 Indictment results were:
1. Raul Amaro was still at-large when Garza went to trial.
2. Jose S. Avila (Jose S. Davila) was convicted under a subsequent indictment alleging the same conspiracies and sentenced to 12 years and 7 months.
3. Angel Berndt-Garcia pled guilty and was sentenced to 10 years. He was offered a Rule 35 reduction to 2 years in exchange for his testimony.
4. Guadalupe Casares pled guilty and was sentenced to 10 years. He was offered a rule 35 reduction to 2 years in exchange for his testimony.
5. David Davila pled guilty and was sentenced to 10 years. He was offered a rule 35 reduction to 2 years in exchange for his testimony.
6. Ruben Escobedo was still at-large when Garza went to trial.
7. Israel Flores pled guilty and was sentenced to 24 years and 4 months. He was offered a rule 35 reduction to 10 years in exchange for his testimony.
8. Jesus Flores pled guilty and was sentenced to 24 years and 5 months. He was offered a Rule 35 reduction to 10 years in exchange for his testimony.
9. Maria Elizabeth Garza pled guilty and was sentenced to a 5 year probationary term.
10. Emilio Garza, III, pled guilty and was sentenced to 10 years. He was offered a Rule 35 reduction to 2 years in exchange for his testimony.
11. Emilio gonzales pled guilty and was sentenced to life imprisonment. He was offered a Rule 35 reduction to 10 years in exchange for his testimony.
12. Santos Hernandez pled guilty and was sentenced to 10 years. He was offered a Rule 35 reduction to 1 year in exchange for his testimony.
13. Rigoberto Pena pled guilty and was sentenced to 10 years.
14. Greg Srader pled guilty and was sentenced to 10 years. He was offered a Rule 35 reduction to 1 year in exchange for his testimony.
15. David Vasquez pled guilty and was sentenced to 20 years. He was offered a Rule 35 reduction to 4 years in exchange for his testimony.
Garza's negotiations toward a plea agreement were stalled by the government. With no notice or warning, Garza's defense counsel was notified that the government had been authorized to seek the death penalty against Garza. A couple of days later, a new indictment was issued, B-93-009. After this new indictment was issued, the government refused to continue to negotiate a plea agreement with Garza.
The B-93-009 Indictment had the following results:
1. Jorge Vela pled guilty to conspiracy to distribute marijuana and was sentenced to 20 years. He was offered a Rule 35 reduction to 8 years in exchange for his testimony.
2. Jose Luis Garza Valdez was still at-large when Garza went to trial.
3. Antonio Alvarado pled guilty to conspiracy to distribute marijuana and was sentenced to 10 years. He was offered a rule 35 reduction to 3 years in exchange for his testimony.
4. Manuel Flores was convicted for conspiracy to import marijuana, conspiracy to distribute marijuana, and the murders of Gilberto Matos and Erasmo de la
Fuente. He was sentenced to life imprisonment for the aggregate of these convictions.
Though the new indictment charged both Garza and Manuel Flores with the murders, the government only sought the death penalty against Garza. The government wrongfully isolated Garza as their "test case" for the death penalty for violation of a federal statute. Despite the fact that many of the co-defendants whose testimony the government would sponsor were the actual triggermen in the murders, or that these individuals had lied on numerous occasions, the government targeted only Garza for the death penalty.
During discovery, the government evaded Garza's requests for
information.3 For example, the government provided a witness list of 467 persons, which included the names of the confidential informants
(CIs), but failed to identify which of the 467 persons were the
CIs. The government continually circumvented the court's order to cooperate with Garza during discovery.
The government continuously amended its Notice of Intent to Seek the Death Penalty to include new aggravating factors and allege new murders until two months before trial. The government's repeated amendments were not
justifiable.4
Prior to jury selection, both Garza and the government submitted proposals regarding their role during voir dire. The district court rejected these proposals and implemented extremely restrictive procedures. Crucial issues went unaddressed and veniremembers were retained and excused based on conclusory statements, such as whether the juror felt he could be fair or whether the juror did not feel the death penalty would be appropriate in all cases.
D. THE TRIAL
The testimony adduced at trial suggested that the "Juan Raul Garza organization" was comprised of persons who grew up in a neighborhood in Brownsville known as the
"Cuartro Viente-Uno" (421). The members of this neighborhood were either related by blood or knew each other from childhood.
The evidence failed to establish an oral or written agreement among the members that they would work together to distribute drugs. In fact, several members testified that they were gainfully employed in their own legal businesses. However, when faced with lengthy jail sentences after arrest, the group members implicated Garza as a group leader who operated a drug-distribution network. In this manner, the government turned a group of friends into an elaborately-conceived conspiracy.
The testimony revealed that from 1982 to 1988, the group did purchase marijuana and transported it to Corpus Christi. The marijuana was also transported to Michigan and New Orleans where it was sold. The proceeds of the sale were returned to Brownsville.,
From 1988 to 1991, the group began purchasing large amounts of marijuana from Baldomero Medina. Medina would import the marijuana from Mexico and sell it to the group in Brownsville. The group would then store the marijuana in stash houses in Brownsville, where it was packaged and weighed. The drugs would be transported in trucks to Houston and eventually to Michigan. In Michigan, the drugs were sold to a distribution network originally headed by Daniel Bordayo and later by his brother Richard
Bordayo. The proceeds of the sale would be returned to Brownsville.
During this time, a shipment of marijuana was seized by the government. The evidence showed that Erasmo de la
Fuente, a member of Medina's organization, was suspected to be a government informant and therefore responsible for the seizure. Israel Flores testified that Medina wanted de la Fuente killed and that he and Manuel Flores were hired to kill de la
Fuente. Around April 3, 1990, they were hiding-in-wait at a garage owned by de la Fuente and Gilberto Matos when someone walked in. Manuel Flores killed the individual, who turned out to be Gilberto
Matos. Then around September 8, 1990, Israel and Jesus Flores went to Tequila's Nightclub to wait for de la Fuente to show up. Israel got drunk and was taken home. Jesus picked up Manuel Flores and they went back to Tequila's. After waiting in the parking lot, de la Fuente came out and got in his car. Manuel ran up to the car and fired two shots. De la Fuente was killed.
On January 13, 1991, Garza, Emilio Garza, III, Raul
Amamro, and Thomas Rumbo arrived at Jesus Flores' house. Garza wanted Jesus to drive them to Harlingen to drop off
Rumbo. During the drive, Jesus asked Rumbo about some marijuana that had been seized from
Rumbo. Jesus told Rumbo that the marijuana belonged to him. rumbo explained that he did not know what happened to the marijuana. Juan Garza asked Jesus to pull onto a dirt road and stop. The five of them got out. Five shots were fired. It was too dark to see who had fired the shots. Rumbo was killed.
From 1991 to 1992, the group began to import marijuana from
mexico. The drugs were purchased in Oaxaca, Mexico, and transported to
Matamoros, Mexico. From there, the drugs were smuggled into the United States.
On February 6, 1992, the U. S. Customs Service initiated a large-scale drug raid on the homes of the "421" group. Hundreds of armed agents, a S.W.A.T. team, and an assault helicopter were utilized in the search of the 21 homes. 17 pounds of marijuana and some weapons were recovered. No drugs, weapons, or money were found at Garza's residence.
A simultaneous raid was conducted in Michigan at the homes of Daniel and Richard Bordayo in which $62,000 was seized.
In April 1992, arrest warrants were issued for the persons indicted in the B-92-034 Indictment. At the same time, warrants were issued in Michigan for the arrests of the Bordayo group. Most of these individuals were found and arrested. As a result, plea agreements were made and sentences were rendered in mid-July 1992. However, Garza was never found.
In late October 1992, Daniel Bordayo learned that someone claiming to be Juan Garza had attempted to contact him. Pursuant to his plea agreement, Bordayo agreed to cooperate with the government. The government suggested that Bordayo call Garza and try to set up a drug deal. The government would record the phone conversations with Bordayo's consent. As a result of these conversations, Garza was found in Mexico, arrested by the Mexican Judicial Police, and handed over to the U.S. Customs Service on November 6, 1992. The proposed drug transaction was never fulfilled. No evidence was presented to show that Garza had any ability to fulfill this transaction, either himself or with anyone else's assistance.
E. THE SENTENCING HEARING
At the sentencing hearing, the government proffered evidence that Garza had intentionally killed, engaged in substantial planning prior to the murders, and had procured the murders through payment. Further, the government alleged that Garza had killed or paid for the killing of five additional people, four of which occurred in Mexico. Testimony included the likelihood that Garza would continue to be a threat to society in the future. Garza rebutted this evidence by proving various mitigating factors through witnesses. However, the jury recommended that Garza be sentenced to death, and the trial court handed down that sentence for Counts Seven (7), Eight (8) and Nine (9).
On October 8, 1993 the district court sentenced Garza on the other counts. Garza received life in Count One (1), life in Count Two (2), forty (40) years in Count Three (3), twenty (20) years in Count Four (4), forty (40) years in Count Five (5), life in Count (6) and twenty (20) years in Count Ten (10). It was further ordered that the sentence in each of Counts 1, 2, 3, 4, 5, 6 and 10 run concurrently to each other for a total imprisonment sentence of life.
V. SUMMARY OF THE ARGUMENTS
Mr. Garza is the first person sentenced to death in the Fifth Circuit under a relatively new federal death penalty statute, Title 21
U.S.C. §§ 848(3). The constitutionality of the sentencing procedures as applied failed to provide the necessary assurance of reliability for death sentences to limit the ultimate sentence for those persons who truly deserve the punishment, considering all the relevant circumstances of the crime and the defendant. See Spaziano v. Florida, 468 U.S. 447, 460 (1984); Zant v. Stephens, 462 U.S. 862, 877 (1983). No person has been executed under federal court authority since 1963.
Mr. Garza's death sentence is the result of a combination of errors in connection with the jury selection process, the constitutionality of sentencing procedures as applied, errors relating to the guilt/innocent phase of trial and the sentencing phase of trial.
During the jury selection process, the district court erred in three respects, each of which mandates a new trial for Garza. First, the Court rejected a joint government/defense recommended procedure for individual voir dire. By doing so, the Court restricted voir dire by topic and time, thus denying Garza a fair trial. Second, the Court improperly excluded four veniremembers were excluded even though they did not state unequivocally that they were against the death penalty or could not follow the Court's instructions to honor their oaths. Third, the district court denied Garza due process when certain veniremembers were not stricken for cause.
Regarding the guilt/innocent phase at trial, several errors require reversal. First, Garza was denied the opportunity to properly defend himself and receive a fair trial. Not only was there inadequate preparation time, the district court allowed belated notice of information regarding aggravation of the murders. Further, the government withheld critical discoverable information and evidence. The government exhibited bad faith when they filed a witness list containing some 467 persons, including Garza in order to frustrate trial efforts. Throughout the trial, the Court erred in allowing admittance of photographs of lost evidence, hearsay statements in identifying the homicide victims and failure to exclude tape recordings relating to matters that were not part of the alleged conspiracy in which Garza had been indicted. Moreover, the Court erred by participating in the trial as an advocate, thus denying Garza his right to a fair trial.
Alternatively, there are several reasons why Garza is entitled to a new sentencing trial. Errors by the district court, misconduct and constitutional deficiencies in the death penalty statute itself allows for a new sentencing trial.
First, the government violated Garza's constitutional statutory right to have the sentencing jury informed that the only alternative to death was life without parole.
Second, the (n)(1) aggravating factor is unconstitutional on its face as applied in this case. The statute is unconstitutional because it improperly designates as an "aggravating" factor weighing in favor of death, which is a threshold finding necessary under the Eighth Amendment to sentence any defendant to death. Finally, the penalty phase instructions by the Court misstate the law and denied Garza due process.
Appellate scrutiny requires the reversal of Garza's conviction and sentence.
VI. ARGUMENTS AND AUTHORITIES
ISSUE NUMBER ONE
WHETHER THE GOVERNMENT VIOLATED GARZA'S CONSTITUTIONAL AND STATUTORY RIGHT TO HAVE THE SENTENCING JURY INFORMED THAT THE ONLY ALTERNATIVE TO DEATH WAS LIFE WITHOUT PAROLE .
A. Summary of the Facts
Garza's defense included the federally recognized concept that the death penalty is not necessary to protect society because federal law requires that Garza be imprisoned for life without possibility of parole if convicted by the jury in the alternative to the death penalty. See e.g. Tr. 3027-3028, 3030; 3494. In written voir dire questions submitted to the court prior to the start of jury selection, Garza proposed to inform prospective jurors that the jury could consider "life without parole" along with the death penalty in assessing punishment. R. 495. Garza intended to question the juror's feelings "about life imprisonment without the possibility of parole as a punishment for intentional murder." R. 498.
The government objected to any questions about noncapital sentencing options. 7/6/93 Tr. 269. In response, the trial court recognized that in Section 848 the court may tell the jury that the defendant "can be sentenced to life without parole." Tr. 271 (emphasis added). When the government renewed its argument the following day, the court sustained the government's position and limited defense counsel to vague references to life imprisonment, such as whether prospective jurors "will consider, for example . . . other sentencing, other alternatives, that are exclusively within the province of the Court which will include life without parole." 7/7/93 Tr. 65.
The government immediately sought and obtained reaffirmation of this ruling. Counsel for the government insisted that any questions pertaining to life imprisonment without parole were improper because the jurors would "have no role with respect to any other possible punishments." Tr. 68-69. Summarizing his ruling, the trial court stated:
THE COURT: As put before on the record, they cannot consider [life without parole] as a jury, but [defense counsel] can ask them whether they will consider -- whether they can consider, for example, not giving him death, which they are bound to, and from thereon out it is exclusively within the Court's province, which includes by statute life without parole. You understand that.
But you have to ask it in that fashion. Not whether they will but whether they will consider it, and it being a matter exclusively within the Court's province. They don't do the punishment. If they don't find death, it is exclusively within the Court's confinement which is life without parole, which is in the statute.
(Tr. 69).
Immediately after this colloquy, the government stated to the entire jury venire:
The last thing I want to point out . . . is that what the jury will decide is whether you should impose the death penalty or whether you should recommend that to the jury [sic] as a punishment in this case. That will be your only function in that phase of the trial.
Do we sentence the defendant to death. Yes or no.
If the jury recommends no, than that is the end of your participation in the jury system. It will be up to the Court. It is the Court's sole discretion what the sentence is if it is not death. He has the discretion to sentence him to anything less than death. It will not be the function of the jury to decide.
Your role is only to decide whether he gets sentenced to death or not. (Tr. 80) (emphasis added)). A few minutes later, a second prosecuting attorney reiterated to the prospective jurors that a decision not to impose the death penalty could result in Garza's being sentenced to as little as 20 years:
Now, as my co-counsel explained to you, the only decision at [the sentencing hearing] is the death penalty. In other words, you don't decide, well, we are not going to give him the death penalty. We are going to give him life without parole. You don't get to make that decision. That is one of the things the Judge can do.
If the jury says we are not going to give him the death penalty, then the Judge decides how many years he gets. Does everybody understand that? You don't say, okay, we are going to give him 60 years or 80 years or whatever. Your only decision is the death penalty: yes or no. If you say "no," then it goes back to the Judge and the Judge can give him anywhere from 20 years up to life without parole.
(Tr. 86-87). Later on, still in the presence of the entire jury venire, the government implied that a vote against the death penalty would require the judge to sentence to the defendant to "some years." (Tr. 115).
The jury convicted Garza of all three homicide counts, and a sentencing hearing was convened pursuant to
21 U.S.C. § 848(i)(1)(A). The trial judge commenced the hearing by explaining the procedures, enumerating the statutory aggravating and mitigating factors, and explained the alternative to the death penalty as follows:
If any of you, for example, do not recommend death, then the sentence is entirely left to the Court, t the Judge, as we customarily do sentencings in Federal Court except in this type of case . . . I can tell you this and nor [sic] more than this. All right. I can tell you that he is subject to life without parole or another sentence. I can tell you that.
(Tr. 3017-18 (emphasis added)).
The prosecutor's opening statement focused on the jury's powerlessness to affect the defendant's sentence if it did not choose
death.5
For its part, the defense was limited in its ability to frame the issue before the jury by the trial court. Defense could only ask that Garza be permitted "to live out his natural life in confinement," (Tr. 3027). Due to the trial judge's repeated rulings on the issue, defense counsel was only permitted to state that
"[t]here is a possibility of life without parole." (Tr. 3028 (emphasis added)).
The government submitted as a nonstatutory aggravating factor that Garza constituted "a continuing threat to the lives of others," and argued to the jury that capital punishment should be regarded as "a form of self-defense for our society" because it was "the only thing we can do to stop someone, like Juan Raul Garza in this
case."6 (Tr. 3596). The government's rebuttal argument was calculated to mislead the jury and indicate that Garza would be prematurely released from prison if not executed:
The defense says, well, he is going to die in prison, but the law is twenty years to life. We don't know that he is going to die in prison. The Judge can give him any term. The only people who can give him the death penalty is you. You are the only ones.
(Tr. 3625). The rebuttal closed with an overtly prejudicial image of the murder victims, the community and Garza's "future victims" all urging the jury to sentence Garza to death.
After hearing this argument and deliberating over the course of two days, the jury returned a binding recommendation sentence of death. Garza subsequently moved for a new sentencing trial on the grounds, inter
alia, that the trial judge's refusal to inform the jury that Garza's actual alternative sentence was life without parole violated both
21 U.S.C. §§ 848(k) and his constitutional right to a reliable sentencing proceeding at which he is permitted to rebut the government's case for death.7 The correctness of the trial court's denial of the motions is the issue now before the Court.
The appropriate standard of review for the trial court's failure to properly submit issues to the jury is independent review for legal error. The harmless error rule also applied. United States v. Clarke, 468 F.2d 890 (5th Cir. 1972); United States v.
Lemlich, 418 F.2d 212 (5th Cir.), cert. denied, 397 U.S. 913 (1969).
B. Argument
1. Introduction
The jury found that Garza "represents a continuing danger to the lives of others based on this pattern of violent and brutal acts." R. In assessing his future dangerousness, however, the jury was not told that under the applicable Sentencing Guideline,
U.S.S.G. § 2A1.1, the trial judge was required to sentence Garza to life without possibility of parole if the jury did not recommend
death.8 Moreover, the government was permitted to mislead the jury by stating that the trial judge could sentence Garza to as little as 20 years. As in Simmons v. South Carolina, 114
S.Ct. 2187 (1994), this "had the effect of creating a false choice between sentencing [the defendant] to death and sentencing him to a limited period of incarceration." 114
S.Ct. at 2193 (plurality o