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Top federal prosecutor makes decision on death penalty in MS-13 case

A poster displayed at a Suffolk County police

A poster displayed at a Suffolk County police precinct in Bay Shore on Oct. 24, 2016 showing two teenage girls who, prosecutors said, were murdered by members of the gang MS-13. Credit: AP / Michael Balsamo

A top federal prosecutor has made a recommendation to the U.S. Justice Department in Washington on whether to seek the death penalty against the alleged leader of the MS-13 clique charged in the killings of two Brentwood High School teenage girls and five others, authorities said Thursday.

The move by Eastern District U.S. Attorney Richard Donoghue marks the first time local federal prosecutors have weighed in on a number of upcoming gang prosecutions dealing with a spate of killings attributed to MS-13 on Long Island. U.S. Attorney General William Barr will make the final decision.   

Donoghue's recommendation in the case of MS-13 leader Alexi Saenz, known as “Blasty” or "Big Homie," is not public, which is standard procedure in federal death penalty cases. Saenz, leader of the Brentwood MS-13 clique, is charged in the killings of Brentwood High School students Kayla Cuevas and Nisa Mickens in September 2016.

Saenz’s case is the first of 16 eligible for the death penalty —  and involving alleged MS-13 members —  in which a recommendation has been made, according to John Marzulli, a spokesman for the Eastern District. Recommendations for the other MS-13 members facing murder charges have not been completed.

The Eastern District recommendation is just part of a lengthy, complicated process in which defense lawyers also present to prosecutors mitigating factors as to why their clients should not face the death penalty. 

Recommendations are pending on whether to seek the death penalty against two others charged in the killing of the girls, federal prosecutors said. Those two are Jairo Saenz, of Central Islip, known as “Funny,” the No. 2 in the Brentwood clique and Alexi’s brother; and Enrique Portillo, of Brentwood, known as “Oso” or “Turkey," Eastern District Prosecutors Paul Scotti and Justina Geraci said in federal court in Central Islip.

One of Alexi Saenz's attorneys, David Runke, declined to comment afterward, as did Gary Villanueva, an attorney for Jairo Saenz, and Deborah Colson, an attorney for Enrique Portillo.

Several of the relatives of those killed were in court Thursday during the status conference on the case before Second Circuit Judge Joseph Bianco.

Elizabeth Alvarado, Nisa Mickens' mother, said afterward that the defendants “need to get the death penalty.” Her sentiment was echoed by Robert Cuevas, the father of Kayla Cuevas,  who said: “I hope that God lets me live long enough to see all" of them get the death penalty. The teenage girls were killed in September 2016. 

Also in the courtroom was George Johnson, whose son Michael Johnson was the first of seven victims to be killed. Alexi Saenz is accused of a killing spree stretching from February 2016 to the beginning of 2017.

“I want to see them pay the price for what they did,” Johnson said of the defendants.

Donoghue’s recommendation was made as the federal government recently ended a moratorium on executions after more than 15 years. The only federal death penalty sentence imposed in New York in the past 50 years was overturned.

President Donald Trump has long supported the death penalty and has vowed to crush MS-13.

In July, Barr said the federal Bureau of Prisons  would begin executing convicted killers in December of 2019. But that decision has been temporarily put on hold by a U.S. Supreme Court decision.

Barr said at the time that "The Justice Department upholds the rule of law -- and we owe it to the victims and their families to carry forward the sentence imposed by our court system."

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