Grand Jury Returns Superseding Indictment with Special Findings Against McCluskey Defendants

United States Attorney Kenneth J. Gonzales announced that, on December 29, 2010, a federal grand jury in Albuquerque returned a superseding indictment in the case charging Arizona fugitives John Charles McCluskey, 45, and Tracy Allen Province, 42, and their accomplice, Casslyn Mae Welch, 44, with the August 2, 2010 carjacking and murder of Gary and Linda Haas of Oklahoma and other crimes. The superseding indictment incorporates the 13 counts charged in the original indictment and adds a "Notice of Special Findings" as to all three defendants under 18 U.S.C. § 3591. This statute provides for the imposition of the death penalty for a defendant who has been found guilty of a death-eligible offense after consideration of mitigating and aggravating factors identified in 18 U.S.C. § 3592.

The original indictment against McCluskey, Province, and Welch, which was filed on September 29, 2010, included seven counts that carry a maximum sentence of death or life in prison on conviction: carjacking resulting in death (Count 2); tampering with a witness (Count 3); and using and carrying firearms during and in relation to crimes of violence (Counts 6-10). The Notice of Special Findings in the superseding indictment alleges, among other things, that the defendants intentionally killed Gary and Linda Haas; intentionally inflicted serious bodily injury that resulted in the death of Gary and Linda Haas; and committed multiple killings in a single criminal episode. The notice also alleges that McCluskey previously had been convicted of a violent felony involving a firearm (attempted second degree murder) and of robbery, and that Province previously had been convicted of an offense for which a sentence of death or life imprisonment was authorized (murder).

The Notice of Special Findings preserves the United States' ability to seek the death penalty. The decision whether or not to seek the death penalty will be made by the Attorney General of the United States based on the recommendation of the United States Attorney and after carefully considering each defendant's background and the circumstances of the crime.

As previously reported, McCluskey, Province, and Welch currently are in state custody in Arizona where they are scheduled for trial on state charges, including prison escape and aiding and abetting the escape, on February 15, 2011. Thereafter, the three defendants will be transferred to the District of New Mexico to face the federal charges in the superseding indictment.

The federal case was investigated by the New Mexico State Police and the Federal Bureau of Investigation and is being prosecuted by Assistant United States Attorneys Linda Mott and Gregory J. Fouratt.

Charges in indictments are only accusations. All criminal defendants are presumed innocent unless proven guilty beyond a reasonable doubt.