USA v. Tsethlikai

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
UNITED STATES OF AMERICA,
Plaintiff,
v. 	1:24-cr-00539-DHU
LABAR TSETHLIKAI,
Defendant.
MEMORANDUM OPINION AND ORDER
Before this Court is Labar Tsethlikai’s motion for an informational outline of the
aggravating factors that the Government intends to present at a penalty phase of trial. Doc. 87.
Tsethlikai also requests a pretrial hearing on this matter. Id. at 16. For the reasons that follow,
Tsethlikai’s request for a hearing is DENIED and his motion for an informational outline is
GRANTED IN PART and DENIED IN PART.
I. 	BACKGROUND
On April 25, 2024, Tsethlikai was charged by indictment with a single charge of second
degree murder in violation of 18 U.S.C. §§ 1153 and 1111. Doc. 1. Over three months later, the
Government filed an eleven-count first superseding indictment charging Tsethlikai with the
following: kidnapping resulting in death in violation of 18 U.S.C. § 1201(a)(1) (Count 1), first
degree murder in violation of §§ 1153 and 1111 (Count 2), first degree felony murder in violation
of §§ 1153 and 1111 (Count 3), kidnapping resulting in death in violation of §§ 1153 and 1201(a)
(Count 4), kidnapping in violation of §§ 1153 and 1201(a) (Count 5), assault with intent to commit
murder in violation of § 1153 and 18 U.S.C. § 113(a)(1) (Count 6), assault resulting in serious
bodily injury in violation of §§ 1153 and 113(a)(6) (Count 7), kidnapping in violation of §§ 1153
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and 1201(a) (Count 8), aggravated sexual abuse in violation of § 1153 and 18 U.S.C. § 2241 (Count
9), and kidnapping in violation of § 1201(a)(1) (Counts 10 and 11). Doc 23. These charges covered
incidents involving six alleged victims. Id. at 2-5.
On December 18, 2024, the Government filed a seventeen-count second superseding
indictment (hereinafter the “Indictment”). Doc. 51. Counts 1 through 5 in the Indictment mirrored
Counts 1 through 5 in the first superseding indictment. Id. at 1. The remaining counts are as
follows: kidnapping in violation of §§ 1153 and 1201(a) (Count 6); assault with intent to commit
murder in violation of §§ 1153 and 113(a)(1) (Count 7); assault resulting in serious bodily injury
in violation of §§ 1153 and 113(a)(6) (Count 8); kidnapping in violation of §§ 1153 and 1201(a)
(Count 9); aggravated sexual abuse in violation of §§ 1153, 2241, and 18 U.S.C. § 2246(2)(B)
(Count 10); kidnapping in violation of §§ 1153 and 1201(a) (Count 11), assault with a dangerous
weapon in violation of §§ 1153 and 113(a)(3) (Count 12), kidnapping in violation of §§ 1153 and
1201(a) (Counts 13 and 14), and kidnapping in violation of § 1201(a)(1) (Counts 15 through 17).
Id. The Indictment covers incidents involving eleven alleged victims. Id. at 2-6.
With respect to Count 1, the grand jury alleged additional special findings in conformity
with the Federal Death Penalty Act (FDPA), see 18 U.S.C. §§ 3591–3598, charging that Tsethlikai
was at least 18 years old at the time of the offense under § 3591(a) and possessed the guilty states
of mind under § 3591(a)(2)A) through (D). Doc. 51 at 7. The grand jury also charged six statutory
aggravating factors under § 3592(c): death during commission of another crime; previous
conviction of other serious offenses; heinous, cruel, or depraved manner of committing offense;
pecuniary gain; substantial planning and premeditation; and vulnerability of victim. Id. at 7-8.
On June 27, 2025, the Government filed a Notice of Intent to Seek the Death Penalty
(hereinafter “Notice of Intent”) that included the aforementioned statutory intent factors and
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statutory aggravating factors, in addition to a non-statutory aggravating factor: pattern of predatory
and sexual violence. Doc. 75 at 1-3.
II. 	DISCUSSION
To render a criminal defendant eligible for the death penalty under the FDPA, the
government must prove beyond a reasonable doubt any one of the statutory intent factors provided
in § 3591(a)(2) and any one of the statutory aggravating factors provided in § 3592(c). United
States v. Bourgeois, 423 F.3d 501, 506–07 (5th Cir. 2005). If the government proves that the
defendant is death-eligible, it may then present non-statutory aggravating factors to demonstrate
that a sentence of death is justified. Id. at 507.
With respect to proof of aggravating factors, the FDPA provides that “[i]nformation 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.” 18 U.S.C. §
3593(c). “This means that the universe of information that the government might attempt to use is
vast and the facts that the government might attempt to prove are many.” United States v. Gendron,
Crim. A. No. 22-109, 2024 WL 3647779, at *1 (W.D.N.Y. Aug. 2, 2024).
a. 	General Right to an Informational Outline
Tsethlikai requests “an informational outline of the statutory and non-statutory aggravating
factors that [the Government] intends to prove at a capital-sentencing phase of his trial to support
a death sentence.” Doc. 87 at 1. He argues that he is entitled to an outline so that he has meaningful
notice of what the Government is attempting to prove. Id. at 6. He also argues that an outline will
enable him to challenge the Government’s aggravating factors in pretrial motions, and will enable
the Court to make reasoned rulings on those motions and thereby carry out its “essential
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gatekeeping function.” Id. at 6, 8. The Government responds that “[t[he law requires nothing more”
than for the Government to inform Tsethlikai through its Notice of Intent which aggravating factors
it intends to prove at trial. Doc. 90 at 8.
There is a split of authority as to whether courts can or should require production of an
informational outline. Indeed, Tsethlikai cites several cases in which courts within and outside the
Tenth Circuit have ordered the government to produce these outlines. Doc. 87 at 10-11 (citing,
inter alia, United States v. Llera Plaza, 179 F. Supp. 2d 464, 472 (E.D. Pa. 2001); United States v.
Rodriguez, 380 F. Supp. 2d 1041, 1057-58 (D.N.D. 2005); United States v. Lujan, 530 F. Supp. 2d
1224, 1269-70 (D.N.M. 2008); United States v. Karake, 370 F. Supp. 2d 275, 279-81 (D.D.C.
2005); United States v. O’Reilly, 2007 WL 4591856, at *5 (E.D. Mich. Dec. 28, 2007)).
Meanwhile, the Government notes that many courts have declined to grant defendants' requests.
Doc. 90 at 5 (citing, inter alia, United States v. Higgs, 353 F.3d 281, 325 (4th Cir. 2003); United
States v. Lee, 274 F.3d 485, 495 (8th Cir. 2001); United States v. LeCroy, 441 F.3d 914, 929-30
(11th Cir. 2006)).
A review of these cases reveals that whether or not an informational outline is required
under the FDPA or the Constitution, courts may use their “inherent authority” to order the
government to provide additional information about aggravating factors in capital cases. See
Rodriguez, 380 F. Supp. 2d at 1058; Lujan, 530 F. Supp. 2d at 1269-70. Thus, this Court has
inherent authority to, if it so wishes, order the Government to provide an informational outline
both to protect Tsethlikai’s due process right to notice and to facilitate this Court’s gatekeeping
function.
In any capital case, the government must give the defendant notice of all aggravating
factors sufficient to enable the defendant to respond and prepare his case for sentencing. See United
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States v. Kaczynski, 1997 WL 34626785, at *18 (E.D. Cal. Nov. 7, 1997); Llera Plaza, 179 F. Supp.
2d at 472. This right to notice necessarily flows from a defendant’s due process right to defend
against the government’s case. See Kaczynski, 1997 WL 34626785, at *18; Llera Plaza, 179 F.
Supp. 2d at 472. As noted above, a case seeking the death penalty can include broadly worded
aggravating factors and myriad facts that might not be admissible in most trials. See 18 U.S.C. §
3593(c). What is more, “[t]he severity of the penalty sought . . . warrants special efforts to ensure
the fairness of the proceedings.” Lujan, 530 F. Supp. 2d at 1269. Thus, to provide sufficient notice,
the government must inform the defendant of the “theories and facts” that it will use to establish
each aggravating factor. Llera Plaza, 179 F. Supp. 2d at 472.
An informational outline also assists the court in fulfilling its role as an evidentiary
gatekeeper. See United States v. Fell, 360 F. 3d 135, 145 (2d Cir. 2004) (explaining that under the
FDPA, judges are gatekeepers of constitutionally permissible evidence). The “screening of
aggravating factors is essential in channeling, directing[,] and limiting the sentencer’s discretion
to prevent arbitrary and capricious imposition of the death penalty.” United States v. Cisneros, 363
F. Supp. 2d 827, 833 (E.D. Va. 2005); see United States v. Hammer, 2011 WL 6020157, at *3
(M.D. Pa. Dec. 1, 2011) (ordering an informational outline in part to ensure that “the Court can
properly screen the information” that the government sought to present at sentencing); Karake,
370 F. Supp. 2d at 279-80 (explaining that requiring the government to provide more specifics
would “provide the court with some frame of reference for ruling on objections to the death penalty
notice”).
b. 	Specific Aggravating Factors
Tsethlikai argues that the Government should provide an outline of the aforementioned
seven aggravating factors because the Indictment and Notice of Intent “contain only vague
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allegations, lacking any information about the facts the [G]overnment intends to rely upon.” Doc.
87 at 1. The Government responds that through the Indictment, Notice of Intent, and “voluminous
discovery,” it has provided adequate notice of all aggravating factors it will present at trial. Doc.
90 at 1.
To determine whether a defendant has sufficient notice about an aggravating factor, courts
may consider the indictment, the notice of intent, and discovery. See United States v. Wilson, 493
F. Supp. 2d 364, 377 (E.D.N.Y. 2006). This being said, even extensive discovery may not be
sufficient if the acts and events that are the basis of the aggravating factors are unclear and the
government has not said which acts or events it intends to use at sentencing. Kaczynski, 1997 WL
34626785, at *19; Rodriguez, 380 F. Supp. 2d at 1057-58.
The Court reviews Defendant's outline request of the seven factors in turn.
i. 	Death during commission of another crime - § 3592(c)(1)
The Notice of Intent states that John Doe 1’s “death, and injury resulting in death, occurred
during the commission, or attempted commission, or during immediate flight from the commission
of an offense under 18 U.S.C. § 1201 [kidnapping].” Doc. 75 at 2.
In Lujan, the government listed “death during commission of another crime, 18 U.S.C. §
3592(c)(1)” as one of four statutory aggravating factors in its notice of intent to seek the death
penalty. 530 F. Supp. 2d at 1270. Judge Brack held that because defense counsel conceded that the
factor was “relatively straightforward” given that the death occurred during a kidnapping, no
informational outline was necessary as to this factor. Id. Similarly here, it is straightforward that
John Doe 1’s death occurred during Tsethlikai’s commission of another crime: kidnapping. In the
Indictment, Count 1 states that Tsethlikai kidnapped John Doe 1 and “death resulted.” Doc. 51 at
2. In the Notice of Special Findings section, the Indictment states that Tsethlikai “[c]aused death,
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and injury resulting in death, during the commission, attempted commission, and immediate flight
from the commission of an offense under 18 U.S.C. § 1201.” Id. at 7.
Given that the Indictment together with the Notice of Intent specifically describe both the
death that occurred (John Doe 1’s) and the crime that was committed to precipitate that death
(kidnapping), the Court finds that no informational outline is necessary.
ii. 	Previous conviction of other serious offenses - § 3592(c)(4)
The Notice of Intent states that Tsethlikai “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.” Doc. 75 at 2. The Court finds that this aggravating factor is
“relatively straightforward” due to Tsethlikai presumably being “well aware of his own criminal
history.” United States v. McCluskey, Crim. A. No. 10-2734, 2013 WL 12330139, at *2 (D.N.M.
May 28, 2013). Accordingly, “it appears unnecessary for the Government to provide him with
further information regarding these convictions.” Id.
iii. 	Heinous, cruel, or depraved manner of committing offense - §
3592(c)(6)
The Notice of Intent states that Tsethlikai committed Count 1—kidnapping resulting in
death—"in an especially heinous, cruel, or depraved manner in that it involved torture or serious
physical abuse to John Doe 1.” Doc. 75 at 2. The Court finds that this aggravating factor “is broad
enough that [Tsethlikai] is entitled to additional information in order to allow him to prepare his
defense.” McCluskey, Crim. A. No. 10-2734, Doc. 645 at 16. Thus, the Government must outline
the factual basis on which it intends to establish this factor.
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iv. 	Pecuniary gain - § 3592(c)(8)
The Notice of Intent states that Tsethlikai committed Count 1 “as consideration for the
receipt, or in the expectation of the receipt, of anything of pecuniary value.” Doc. 75 at 3. The
Court finds that this aggravating factor is “broad enough that [Tsethlikai] is entitled to additional
information in order to allow him to adequately prepare a defense.” United States v. Taylor, Crim.
A. No. 07-1244 (D.N.M.), Doc. 236 at 9. Thus, the Government must outline the factual basis on
which it intends to establish this factor.
v. 	Substantial planning and premeditation - § 3592(c)(9)
The Notice of Intent states that Tsethlikai committed Count 1 “after substantial planning
and premeditation to cause the death of” John Doe 1. Doc. 75 at 3. The Court finds that this
aggravating factor is “broad enough that [Tsethlikai] is entitled to additional information in order
to allow him to adequately prepare a defense.” Taylor, Crim. A. No. 07-1244, Doc. 236 at 9. Thus,
the Government must outline the factual basis on which it intends to establish this factor, including
which acts constituted planning and when and where those acts took place.
vi. 	Vulnerability of victim - § 3592(c)(11)
The Notice of Intent states that John Doe 1 “was particularly vulnerable due to infirmity.”
Doc. 75 at 3. The Government does not specify what infirmity John Doe I had. Thus, the
Government must outline the factual basis on which it intends to establish this factor.
vii. 	Pattern of predatory and sexual violence
The Notice of Intent states that Tsethlikai “engaged in a pattern of predatory and sexual
violence against other individuals, including John Does 2 through 11, as alleged in Counts 2
through 17 of the Second Superseding Indictment, as well as other uncharged John Does.” Doc.
75 at 3.
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As to John Does 2 through 11, the Court notes that the Indictment only alleges that
Tsethlikai engaged in sexual behavior as it pertains to John Does 2 and 5. Doc. 51 at 2, 4.
Notwithstanding, given the potential breadth of actions that might apply to the alleged victims and
the lack of specificity as to the acts and timing, the Government must identify what predatory and
sexual violence Tsethlikai engaged in regarding John Does 2 through 11.
As to “other uncharged John Does,” the allegation that Tsethlikai committed violence
against unidentified victims “creates ambiguity as to whether the Government will present
evidence of additional acts of violence outside the crimes charged in the indictment.” Lujan, 530
F. Supp. 2d at 1271. Accordingly, the Government must provide a comprehensive list of each
unadjudicated act of violence that it intends to introduce into evidence.
c. 	Request for a Pretrial Hearing
Tsethlikai requests a pretrial hearing “to address any other questions the Court may have
regarding this motion, or the relief [he] seeks from the Court.” Doc. 87 at 16. However, the parties’
submissions did not create any questions. Further, as determined above, the written submissions
support a finding that Tsethlikai should receive an informational outline regarding certain factors
but not regarding others. Therefore, the request for a hearing is denied.
III. 	CONCLUSION
For the foregoing reasons, the Court DENIES Tsethlikai’s request for a pretrial hearing,
and GRANTS IN PART and DENIES IN PART his motion for an informational outline.
The Court GRANTS Tsethlikai’s motion as to the aggravating factors of (1) heinous, cruel,
or depraved manner of committing offense; (2) pecuniary gain; (3) substantial planning and
premeditation; (4) vulnerability of victim; and (5) pattern of predatory and sexual violence. The
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Court DENIES Tsethlikai’s motion as to the aggravating factors of (1) death during commission
of another crime and (2) previous conviction of other serious offenses.
The Government shall produce an outline of the aforementioned five factors by April 20,
2026. By May 4, 2026, Tsethlikai shall file any motions related to the outline. The Government
may supplement the outline if it shows good cause and gives Tsethlikai adequate notice. See United
States v. Con-Ui, 2016 WL 9331115, at *19 (M.D. Pa. Jan. 28, 2016).
IT IS SO ORDERED.
HONORABLE DAVID HERRERA URIAS
UNITED STATES DISTRICT JUDGE
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