Opinion
CRIMINAL ACTION NO. 01-282
April 9, 2003
ORDER AND REASONS
Before the Court is the motion of defendant Johnny Davis to declare the Federal Death Penalty Act ("FDPA") unconstitutional on various grounds and to strike special findings from the second superseding indictment based on Ring v. Arizona.
For the following reasons, the Court DENIES defendant's motions.
I. BACKGROUND
On Sept 5, 2002, the government filed a Second Superseding Indictment for Violations of the Federal Gun Control Act and the Federal Controlled Substances Act, charging Johnny Davis and others with conspiracy to distribute heroin in violation of 21 U.S.C. § 841 (a)(1) and 841(b)(1)(A), all in violation of 21 U.S.C. § 846 (Count One); conspiracy to distribute heroin using juveniles in violation of 21 U.S.C. § 841 (a)(1) and 861(a)(1) (Count Two); and conspiracy to carry firearms in furtherance of the conspiracy in violation of 18 U.S.C. § 924 (o) (Count Three). Davis is also charged with being a felon in possession of a firearm in violation of 18 U.S.C. § 922 (g)(1) and 18 U.S.C. § 924 (a)(2) (Counts Five, Seven, Nine, and Eleven). Lastly, Davis is charged with using a firearm to further the alleged drug trafficking conspiracy in violation of 18 U.S.C. § 924 (c)(1) and, in doing so, causing the deaths of four people in violation of 18 U.S.C. § 924 (j) (Counts Four, Six, Eight, and Ten). The Second Superseding Indictment contains a "Notice of Special Findings" as to Counts Four, Six, Eight, and Ten, alleging that Davis committed the four homicides when he was eighteen years of age or older and that he committed the homicides recklessly, intentionally, and with substantial planning and premeditation. The special findings also allege that Davis committed the murder under Count Ten as consideration for receipt, or in the expectation of the receipt, of anything of pecuniary value.
On September 18, 2002, the government filed a Notice of Intent to Seek the Death Penalty in the event that defendant is convicted of Counts Four, Six, Eight, or Ten. The Notice alleges statutory threshold findings pursuant to 18 U.S.C. § 3591 (a)(2)(A)-(D), statutory aggravating factors pursuant to 18 U.S.C. § 3592 (c)(1)-(16), and nonstatutory aggravating factors pursuant to 18 U.S.C. § 3593 (a) and (c). The government sets forth two statutory aggravating factors:
1. The defendant, Johnny Davis, committed the offense described in Count Ten . . . in consideration for the receipt, or in the expectation of the receipt, of anything of pecuniary value. Section 3592(c)(8)
2. The defendant, Johnny Davis, committed the offenses described in Counts Four, Six, Eight and Ten . . . after substantial planning and premeditation to cause the death of . . . [four persons]. Section 3592(c)(9)
(Notice § II, ¶¶ 1-2.) The government also sets forth twelve nonstatutory aggravating factors.
Defendant relies on three recent Supreme Court decisions to challenge the constitutionality of the FDPA and to seek to strike the special findings from the second superseding indictment. See Ring v. Arizona, 153 L.Ed.2d 556, 122 S.Ct. 2428 (2002); see also Apprendi v. New Jersey, 530 U.S. 466, 147 L.Ed.2d 435, 120 S.Ct. 2348 (2000), and Jones v. United States, 526 U.S. 227, 143 L.Ed.2d 311, 119 S.Ct. 1215 (1999). Defendant also urges a number of other arguments against the federal death penalty that have been addressed and rejected repeatedly by the federal courts. The Court will address the Ring, Apprendi, and Jones arguments first, and then it will deal summarily with the remainder of defendant's arguments.
II. DISCUSSION
A. The FDPA
The FDPA's procedures apply to "any [federal] offense for which a sentence of death is provided." 18 U.S.C. § 3591 (a)(2) (West 2000). Under the FDPA, the government must notify a defendant of its intent to seek the death penalty "a reasonable time before trial or before acceptance by the court of a plea of guilty." Id. § 3593(a)(1). The notice must set forth all aggravating factors that the government intends to prove as justifying a sentence of death. Id. § 3593(a)(2)
The FDPA provides that a jury, in determining whether a defendant should receive a sentence of death, must make three determinations at a "separate sentencing hearing." Id. § 3593(b). If a defendant has been found guilty of an offense involving homicide, the jury first must find beyond a reasonable doubt that the defendant acted with one of four mental culpability factors, ranging from an intentional killing to intentionally engaging in violence "knowing that the act created a grave risk of death" with the victim's death as a direct result. Id. § 3591(a)(2)(A)-(D). If it finds one of these mental states, the jury must next consider whether the government has proven at least one of sixteen statutory aggravating factors beyond a reasonable doubt. Id. §§ 3592(c)(1)-(16); 3593(c), (d). If the jury finds no statutory aggravating factor exists, then it cannot impose the death penalty. Id. § 3593(d)
If the two "eligibility" requirements of mens rea and a statutory aggravating factor are met, then the jury proceeds to the "selection" phase of the sentencing hearing, in which it considers whether all the aggravating factors, both statutory and nonstatutory, outweigh all mitigating factors, to justify a sentence of death. Id. § 3593(e). Nonstatutory aggravating factors are not considered by the jury in the death penalty "eligibility" determination, but they can now be considered in the context of the jury's weighing of all of the circumstances pertaining to the offense, the victim, and the offender. Id. § 3592(d), (e). The government must prove the existence of any aggravating factor beyond a reasonable doubt, and the jury's finding must be unanimous. Id. § 3593(c), (d). The defendant must prove the existence of any mitigating factors by a preponderance of the information," and just one or more members of the jury may find a mitigating factor. Id. The jury's sentence recommendation must be unanimous. Id. § 3593(e).
During the sentencing phase, information relevant to the sentence, including any mitigating or aggravating factor, "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." Id. § 3593(c). Further, "[t]he government and the defendant shall be permitted to rebut any information received at the hearing, and shall be given fair opportunity to present argument as to the adequacy of the information to establish the existence of any aggravating or mitigating factor, and as to the appropriateness in the case of imposing a sentence of death." Id.
B. Jones, Apprendi, and Ring
In Jones, the Supreme Court considered whether the federal car jacking statute, 18 U.S.C. § 2119, defined three separate offenses or a single crime with a choice of three possible maximum penalties, two of them dependent on sentencing factors that did not require a grand jury indictment and jury verdict. Jones, 526 U.S. 227. The Court held that the statute created three separate offenses and that "under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt." Id. at 243 n. 6. The Jones Court stated that its focus was on the procedures required for factfinding:
The constitutional safeguards that figure in our analysis concern not the identity of the elements defining criminal liability but only the required procedures for finding facts that determine the maximum permissible punishment; these are the safeguards going to the formality of notice, the identity of the factfinder, and the burden of proof.Id. The Court elaborated:
If the constitutional concern we have expressed should lead to a rule requiring jury determination of facts that raise a sentencing ceiling, that rule would in no way constrain legislative authority to identify the facts relevant to punishment or to establish fixed penalties. The constitutional guarantees that prompt our interpretation bear solely on the procedures by which the facts that raise the possible penalty are to be found, that is, what notice must be given, who must find the facts, and what burden must be satisfied to demonstrate them.Id. at 251 n. 11.
Then in Apprendi, the Supreme Court struck down a New Jersey "hate crime" law that provided for a longer term of imprisonment if a judge found that a defendant committed the crime with the purpose of intimidating anyone because of racial, ethnic, religious or other specified traits. Apprendi, 530 U.S. 466. The Court again stated the procedural nature of its concern: "The substantive basis for New Jersey's enhancement is thus not at issue; the adequacy of New Jersey's procedure is." Id. at 475. Following Jones, the Apprendi Court held that if a "sentencing factor" increases a sentence beyond the statutory maximum, "it is the functional equivalent of an element of a greater offense than the one covered by the jury's guilty verdict." Id. at 494 n. 19. The Court went on, "Indeed, it fits squarely within the usual definition of an "element' of the offense." Id. Thus, the Apprendi Court held that, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed :statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. at 490.
Most recently, in Ring, the Supreme Court addressed the constitutionality of an Arizona statute that mandated that the trial judge make factual determinations regarding the existence of aggravating factors necessary to impose the death penalty. Ring, 122 S.Ct. 2428. The Ring Court held that, "because Arizona's enumerated aggravating factors operate as the functional equivalent of an element of a greater offense, the Sixth Amendment requires that they be found by a jury." Id. at 2443 (internal citation omitted). Concurring, Justice Scalia wrote that the impact of Ring is that the jury must find the existence of an aggravating factor, either at a separate sentencing hearing or in the guilt phase:
What today's decision says is that the jury must find the existence of the fact that an aggravating factor existed. Those States that leave the ultimate life-or-death decision to the judge may continue to do so — by requiring a prior jury finding of aggravating factor in the sentencing phase or, more simply, by placing the aggravating-factor determination (where it logically belongs anyway) in the guilt phase.Id. at 2445 (Scalia, J., concurring.) Lastly, in Harris v. United States, 153 L.Ed.2d 524, 122 S.Ct. 2406 (2002), a case decided concurrently with Ring, only a plurality of the Court joined in Justice Kennedy's statement that, "read together, McMillan and Apprendi mean that those facts setting the outer limits of a sentence, and of the judicial power to impose it, are the elements of the crime for the purposes of the constitutional analysis." Id. at 2419 (reaffirming McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411 (1986), in which the Supreme Court held that a factual finding that increases a defendant's mandatory minimum penalty is not to be treated as an element of a separate offense and need not be alleged in the indictment nor proven beyond a reasonable doubt).
C. FDPA and the Ring Trilogy
1. Statutory Aggravating Factors
Defendant argues that, under Jones, Apprendi, and Ring, statutory aggravating factors constitute elements of a new substantive offense because the jury must find them to exist before the death penalty may be imposed. Defendant contends that the FDPA is unconstitutional because it fails to require a grand jury indictment of aggravating factors. Further, defendant argues that the FDPA's requirement that the government specify the aggravating factors in the death notice prevents the government from charging aggravating factors in the indictment. If the government nevertheless lists the aggravating factors in the indictment, defendant argues, it violates the constitutional separation of powers doctrine. Defendant also asserts that the form of "special findings" used by the government provides insufficient notice that the defendant is being charged with capital crimes. Lastly, defendant argues that in light of his interpretation of the Ring trilogy, the FDPA's relaxed evidentiary standard in the sentencing phase violates the Fifth and Sixth Amendments.
Every legislative act is presumed to be a constitutional exercise of legislative power until the contrary is clearly established. Reno v. Condon, 528 U.S. 141, 148, 145 L.Ed.2d 587, 120 S.Ct. 666 (2000) (citing Close v. Glenwood Cemetery, 107 U.S. 466, 475, 27 L.Ed. 408, 2 S.Ct. 267 (1883)). Nothing in the Ring trilogy or elsewhere suggests that the United States Supreme Court has overturned the FDPA or even questioned its constitutionality. Further, these cases have not held that the aggravating factors that must be found to exist before the death penalty can be imposed constitute elements of a new substantive offense. Rather, Ring held that Arizona's enumerated aggravating factors operate as "the functional equivalent of an element of a greater offense," but it did not hold that such factors actually become elements of a new substantive offense. Ring, 122 S.Ct. at 2443 (quoting Apprendi, 530 U.S. at 494 n. 19) (emphasis added). See also Apprendi, 530 U.S. at 475 ("substantive basis for . . . [the] enhancement is thus not at issue; the adequacy of . . . [the] procedure is"); Jones, 526 U.S. at 243 n. 6 ("constitutional safeguards that figure in our analysis concern not the identity of the elements defining criminal liability but only the required procedures for finding the facts that determine the maximum permissible punishment . . .
Following Ring, the conclusion is inescapable that although statutory aggravating factors in the FDPA are not elements of a new capital offense, they are indeed functional equivalents of elements because they increase the maximum penalty for the offense. As the court stated in United States v. Johnson, 2003 U.S. Dist. LEXIS 151, *39 (N.D. Iowa 2003), "Under Ring and Apprendi, "aggravating factors' [under 21 U.S.C. § 848] are not `elements' of a distinct `capital' offense, but `the functional equivalents of elements' in the specific sense that they increase the maximum penalty for the offense, with the constitutional consequence that such factors must be found by a jury beyond a reasonable doubt." Unlike the Arizona death penalty scheme, the FDPA requires the jury to find aggravating factors beyond a reasonable doubt, as required by Ring. 18 U.S.C. § 3593 (c).
Ring, however, did not address the issue presented here — whether a defendant is entitled to a grand jury indictment on the aggravating factors that, if proven, would make the defendant eligible for a sentence of death. Apparently, the defendant in Ring did not challenge the constitutionality of his indictment. See Ring, 122 S.Ct. at 2437 n. 4. Nevertheless, under the Ring trilogy, any fact that increases the defendant's maximum penalty, such as statutory aggravating factors, must be charged in the indictment. See, e.g., United States v. Quinones, 313 F.3d 49, 53 n. 1 (2d Cir. 2002) Inoting with approval that the grand jury returned a superseding indictment that added no new charges but set forth the statutory aggravating factors that, under Ring, must now be alleged in the indictment and found by a jury in capital cases"); United States v. Promise, 255 F.3d 150, 152 (4th Cir. 2001) (such factors must be charged in the indictment and proved to the jury beyond a reasonable doubt). Here, the government filed a second superseding indictment alleging a requisite mental state and two statutory aggravating factors that would make the defendant eligible for the death penalty. Nevertheless, defendant argues that the government's action does not rescue the FDPA from constitutional infirmity because the FDPA does not provide for the indictment of aggravating factors, and because the government violates the separation of powers doctrine by creating its own procedure for indicting aggravating factors.
Arguments similar to the ones that defendant raises here have been rejected by federal circuit courts in construing the federal drug trafficking penalty statute, 21 U.S.C. § 841 (b). Section 841(a) prohibits possession with intent to distribute controlled substances; section 841(b) sets forth various penalties correlated with the quantity of drugs involved. Like the FDPA, the statute provides no procedure or requirement for alleging drug quantities in a grand jury indictment. After Apprendi, however, it is clear that the government must allege in the indictment drug quantities that would increase a defendant's maximum sentence. See, e.g., United States v. Baptiste, 309 F.3d 274, 276 (5th Cir. 2002). The Fourth, Fifth, Sixth, Seventh, and Tenth Circuits have determined that section 841(b)'s silence on the indictment process is not problematic. See United States v. McAllister, 272 F.3d 228, 232-33 (4th Cir. 2001) (holding that silence on the question of whether the elements of the section 841 offense must be alleged in the indictment "does not mean that the statute is inconsistent with the constitutional requirement [of Apprendi]"); United States v. Cernobyl, 255 F.3d 1215, 1219 (10th Cir. 2001) ("Section 841(b) itself is silent on the question of what procedures courts are to use in implementing its provisions, and therefore the rule in Apprendi in no way conflicts with the explicit terms of the statute."); United States v. Martinez, 253 F.3d 251, 256 n. 6 (6th Cir. 2001); United States v. Brough, 243 F.3d 1078, 1079 (7th Cir. 2001) (" Apprendi . . . do[es] not establish that anything in § 841 is unconstitutional. . . . [T]he statute does not say who makes the findings or which party bears what burden of persuasion. Instead the law attaches effects to facts, leaving it to the judiciary to sort out who determines the facts, under what burden."); United States v. Slaughter, 238 F.3d 580, 582 (5th Cir. 2000) (per curiam), cert. denied, 532 U.S. 1045, 149 L.Ed.2d 1015, 121 S.Ct. 2015 (2001) ("We see nothing in. Apprendi which would permit us to conclude that 21 U.S.C. § 841 (a) and (b), 846, and 860(a) are unconstitutional on their face.")
This Court joins a number of other federal district courts in likewise rejecting these arguments under the FDPA. First, although it is evident now that the Constitution requires the government to present threshold mens rea factors and statutory aggravating factors to the grand jury, the FDPA does not by its terms restrict the government from doing so. Further, that the FDPA requires the inclusion of statutory and nonstatutory aggravating factors in the government's death notice does not mean that Congress intended to prevent the government from alleging statutory aggravating factors in the indictment. The court in United States v. Sampson, 2003 U.S. Dist. LEXIS 2257 (D. Mass. 2003), confronted precisely this issue. A grand jury returned a second superseding indictment in response to Ring that included a notice of special findings alleging a mental culpability factor and certain statutory aggravating factors. See id. at *3 The defendant argued that the FDPA is unconstitutional because it improperly requires the Department of Justice rather than the grand jury to decide if it is permissible to subject a defendant to a prosecution involving a potential death sentence. See id. at *5. The Sampson court found that the FDPA
does not manifest an intent to prohibit the grand jury from performing its historic, constitutional function if . . . the facts making a defendant eligible for the death penalty were deemed, for procedural purposes, to be elements of an offense rather than sentencing factors. . . . The Federal Death Penalty Act does not conflict with or contradict the grand jury process that is now prescribed by [ Jones, Apprendi, and Ring]. Recognizing a role for the grand jury . . . does not require a rewriting of the Federal Death Penalty Act. The statutory roles of the Department of Justice, the judge, and the jury are not altered.Id. at *17-18, *24-26.
Similarly, in United States v. Lentz, 2002 U.S. Dist. LEXIS 16336 (E.D. Va. 2002), the court addressed the FDPA's silence on grand jury indictment and the import of the FDPA's death notice requirement. The district court stated, "[T]he mere fact that the [FDPA] is silent regarding whether sentencing factors must be treated as elements in order for those factors to increase the defendant's statutory maximum sentence does not make the statute inconsistent with the constitutional requirement that those factors receive that treatment." Id. at *21 (quoting McAllister, 272 F.3d at 233). The Lentz court also held that the FDPA's provision requiring the government to list aggravating factors in the death notice under 18 U.S.C. § 3593 (a) "does not preclude the possibility of an indictment on the mens rea requirements and aggravating factors." Id. Accord United States v. Fell, 217 F. Supp.2d 469, 483-84 (D. Vt. 2002) (FDPA's silence concerning the grand jury's role in charging death-eligibility factors does not suggest that Congress intended to forbid grand jury participation or to exclude these factors from an indictment, and grand jury is not precluded from deliberating and voting to indict on these factors simply because FDPA requires the government to give notice of these factors); United States v. O'Driscoll, 2002 U.S. Dist. LEXIS 25864, *7 (M.D. Pa. 2002) ("[W]e do not see that allowing such a procedure would be creating a new crime of capital murder by judicial fiat as O'Driscoll argued."). See also Johnson, 2003 U.S. Dist. LEXIS 151 at *49-56 (government's use of special findings to "fix" lack of procedure for indicting aggravating factors in Drug Abuse Prevention and Control Act, 21 U.S.C. § 848, a statute substantially similar to the FDPA, fulfilled requirements of Ring and Indictment Clause); United States v. Church, 218 F. Supp.2d 813, 815 (W.D. Va. 2002) (citing McAllister, 272 F.3d at 232-33) (same)
Furthermore, the Court notes, as other courts have, that Congress has already provided for the role of the grand jury in charging the essential facts of a capital offense in Rule 7 of the Federal Rules of Criminal Procedure. This belies the defendant's argument that by adopting the statutory scheme of the FDPA, Congress intended to foreclose the grand jury from charging aggravating factors. See Fell, 217 F. Supp.2d at 484 (" Congress has provided for the grand jury's involvement in charging federal capital offenses in Rule 7. . . ."); Lentz, 2002 U.S. Dist. LEXIS 16336 at *21 ("The sufficiency of an indictment is not articulated in the statute identifying the substantive crime, but is provided for in Fed.R.Crim.P. 7(c).")
Rule 7 provides, in pertinent part: "An offense which may be punished by death shall be prosecuted by indictment . . . The indictment . . . shall be a plain, concise and definite written statement of the essential facts constituting the offense charged. . . ." FED. R. CRIM. P. 7(a), (c).
The Court also rejects defendant's argument that the form of special findings used by the government provides insufficient notice to the defendant and the grand jury that the defendant is charged with capital crimes. The Court finds that the form of special findings comports with Rule 7 and the Ring line of cases, because the findings allege essential facts that must be found to make the defendant death-eligible. See Lentz, 2002 U.S. Dist. LEXIS 16336 at *21-22 ("Neither the Fifth Amendment nor Fed.R.Crim.P. 7 prohibit the presentation of such information in this manner."). Further, the Court finds that special findings provide adequate notice that capital crimes are at issue. The special findings specifically cite to applicable provisions of the FDPA. Further, Counts Four, Six, Eight, and Ten of the indictment allege facts supporting the elements of the capital offenses charged, are cross-referenced in the special findings, and cite to 18 U.S.C. § 924 (j), the underlying statute authorizing death as a punishment. In United States v. Matthews, 2002 U.S. Dist. LEXIS 25644, *25 (N.D.N.Y. 2002), the court rejected an argument similar to the one advanced here, because the special findings expressly referenced the death penalty statute at issue, 21 U.S.C. § 848, and the indictment alleged facts supporting the elements of the capital offenses charged. In Johnson, which also rejected this notice argument, the court found significant that the special findings explicitly cross-referenced each of the counts to which they applied, thus establishing that the aggravating factors must also be proved for each of the charges to carry the death penalty. See Johnson, 2003 U.S. Dist. LEXIS 151 at *52. The court made a useful comparison, stating,
It is no more necessary for the superseding indictment to state, explicitly, that the maximum possible punishment, in light of proof of these aggravating factors, could be death, than it is for a post-Apprendi indictment of a drug-trafficking offense under 21 U.S.C. § 841 (a) to specify that the quantity of drugs alleged would warrant the imposition of a life sentence, instead of some lesser sentence, under 21 U.S.C. § 841 (b).Id. at *53 Further, the Court finds that the statutorily mandated government notice of intent to seek the death penalty, containing all aggravating factors, provides additional notice protections. See id. at *55
Lastly, the court rejects defendant's argument that the special findings muddle the issue of whether a defendant who wishes to plead guilty must plead to the special findings, as well as to the statutory counts of the indictment, or only to the statutory offenses charged. The FDPA makes clear that a defendant must plead only to the statutory offense charged (e.g., in this case, 18 U.S.C. § 924 (j)), and not to the special findings. This follows because the FDPA requires a separate sentencing hearing to determine whether death is the appropriate punishment, even when the defendant pleads guilty to an offense for which a death sentence is provided. See 18 U.S.C. § 3593 (b). If a defendant pleads guilty to an offense referred to in section 3591, there must be a separate sentencing hearing before a jury to consider the mens rea and aggravating factors charged by the government. See 18 U.S.C. § 3591 (a), 3593(b), 3593(c). See also Johnson, 2003 U.S. Dist. LEXIS 151 at *55-56 (holding that bifurcated structure of trial makes clear that aggravating factors will be adjudged at separate sentencing hearing); United States v. Regan, 221 F. Supp.2d 672, 681 (E.D. Va. 2002) ("Defendant raises a concern regarding whether he is to be called upon to plead to aggravating factors appearing in the indictment. As such factors are the functional equivalent of elements rather than actual elements of the offense, the factors are irrelevant to the plea of guilty or not guilty.")
Section 3591 refers to "(1) an offense described in section 794 or section 2381; or (2) any other offense for which a sentence of death is provided. . . ." 18 U.S.C. § 3591 (a).
Finally, the Court does not accept defendant's argument that the holdings of United States v. Jackson, 390 U.S. 570 (1968), and Blount v. Rizzi, 400 U.S. 410 (1971), mean that the government could not allege aggravating factors in the indictment in light of the language in the FDPA requiring the government to file a death notice. In Jackson, the federal government argued that the court could read the Federal Kidnapping Act, which required a death sentence if a jury recommended such a sentence, to permit the trial judge the discretion to set aside a jury's recommendation of death. See id. at 572-73. The Court rejected this argument, because the government's proposed interpretation contradicted an express statutory requirement:
[i]t is unnecessary to decide here whether this conclusion would follow from the statutory scheme the Government envisions, for it is not in fact the scheme that Congress enacted. . . . The statute unequivocally states that, "if the verdict of the jury shall so recommend,' the defendant "shall be punished . . . by death. . . ." The word is "shall,' not "may.' . . . To accept the Government's suggestion that the jury's sentencing role be treated as merely advisory would return to the judge the ultimate duty that Congress deliberately placed in other hands.Id. at 573-76. The Court also dismissed the government's contention that the statute authorized a special sentencing proceeding by a jury if the defendant pleaded guilty, because at the time such a procedure was not authorized in the statute and was unknown under federal law. See id. The FDPA is distinguishable from the statute in Jackson because the FDPA is silent as to the role of the grand jury in charging aggravating factors, and the government's interpretation is not contrary to an express statutory requirement. Moreover, other federal law is not silent on the role of the grand jury, as Rule 7 demonstrates Congress's general intent that the indictment contain the essential facts constituting the offense charged, an intent that the government's special findings promote. Hence, the defendant's reliance on Jackson is misplaced. See Sampson, 2003 U.S. Dist. LEXIS 2257 at *26-29
Similarly, defendant mistakenly relies on Blount, in which the Court struck down an administrative censorship scheme that authorized the Postmaster General, instead of a court, to make a determination that material was obscene. See Blount, 400 U.S. 410. The government proposed that the statute be remedied by construing it to deny any effect to the Postmaster's determination if the defendant sought judicial review. See id. at 419. Although it is true that the Court said, "it is for Congress, not this Court, to rewrite the statute," id., the Court also found that the government's proposed interpretation would not fix the problem. Here, the government's interpretation would "fix" the Ring problem and its interpretation is entirely consistent with the language of the FDPA and Rule 7. See Sampson, 2003 U.S. Dist. LEXIS 2257 at *29-31.
3. Relaxed Evidentiary Standard
The FDPA establishes a relaxed evidentiary standard for the sentencing phase of a capital trial:
The government may present any information relevant to an aggravating factor for which notice has been provided 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 and the defendant shall be permitted to rebut any information received at the hearing, and shall be given fair opportunity to present argument as to the adequacy of the information to establish the existence of any aggravating or mitigating factor, and as to the appropriateness in the case of imposing a sentence of death.18 U.S.C. § 3593 (c). Defendant asserts that this relaxed evidentiary standard renders the FDPA unconstitutional because it violates due process and provides for an evidentiary free-for-all. Further, relying on United States v. Fell, the defendant argues that, because statutory aggravating factors are elements of a new substantive offense under the Ring trilogy, they must be subject to the Federal Rules of Evidence. See Fell, 217 F. Supp.2d at 485-90 (holding after Ring that the FDPA's relaxed evidentiary standard violates the Confrontation Clause and the Due Process Clause of the Constitution)
The Court rejects this argument for a number of reasons. First, Jones, Apprendi, and Ring did not say anything about the relaxed evidentiary standard applicable to capital sentencing, much less mandate that the FDPA's evidentiary standard be altered or that the Federal Rules of Evidence be used. Second, the Fifth Circuit has held that this provision satisfies the heightened reliability standard required in capital sentencing and rejected the argument that it invited an evidentiary free-for-all. See United States v. Jones, 132 F.3d 232, 241-42 (5th Cir. 1998), aff'd sub nom. Jones v. United States, 527 U.S. 373, 144 L.Ed.2d 370, 119 S.Ct. 2090 (1999). Relying on Gregg v. Georgia, in which the Supreme Court rejected the defendant's challenge to Georgia's relaxed evidentiary standard in capital sentencing hearings, the Fifth Circuit pointed out that the defendant must be given the opportunity to introduce information on mitigating factors without traditional evidentiary constraints to provide the jury with the fullest information possible about the defendant. Id. at 242 (citing Gregg v. Georgia, 428 U.S. 153, 204, 49 L.Ed.2d 859, 96 S.Ct. 2909 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.); Jurek v. Texas, 428 U.S. 262, 276, 49 L.Ed.2d 929, 96 S.Ct. 2950 (1976) (White, J., concurring in judgment) ("What is essential is that the jury have before it all possible relevant information about the individual defendant whose fate it must determine.")). Further, the Fifth Circuit noted that the "standard enunciated in § 3593(c) actually excludes a greater amount of prejudicial information than the Federal Rules of Evidence because it permits the judge to exclude information where the `probative value is outweighed by the danger of creating unfair prejudice' rather than "substantially outweighed.'" Id. at 241 n. 7 (citing FED. R. EVID. 403). Explaining the benefit of this standard, the Eastern District of Louisiana has held,
Unlike under the Federal Rules, admission of information is not presumed and inadmissibility is more readily determined. Furthermore, reliability is obviously a linchpin in determining whether the proffered information has probative value at all, . . . and whether its probative value is or is not outweighed by the danger of unfair prejudice.United States v. Davis, 904 F. Supp. 554, 561 (E.D. La. 1995). In Jones, the Fifth Circuit therefore concluded that the provision passed constitutional muster:
The district court will prevent the evidentiary free-for-all prophesied by [defendant] by excluding unfairly prejudicial information under the standard enunciated in § 3593(c). Consequently, the relaxed evidentiary standard does not impair the reliability or relevance of information at capital sentencing hearings, but helps to accomplish the individualized sentencing required by the constitution.Jones, 132 F.3d at 242.
The Court also notes that the Federal Rules of Evidence are not constitutionally mandated and that, subject to due process considerations, Congress has the right to provide for the evidence to be received in federal trials. See United States v. Scallion, 533 F.2d 903, 915 (5th Cir. 1976) (citing Tot v. United States, 319 U.S. 463, 467, 87 L.Ed. 1519, 63 S.Ct. 1241 (1943)). The Supreme Court has stated that "[t]he due-process clause should not be treated as a device for freezing the evidential procedure of sentencing in the mold of trial procedure." Williams v. New York, 337 U.S. 241, 251, 93 L.Ed. 1337, 69 S.Ct. 1079 (1949)
The relaxed evidentiary standard of the FDPA also does not require invalidation under the Sixth Amendment's Confrontation Clause. The Confrontation Clause has "ancient" roots that predate the hearsay rule, the Rules of Evidence, and the Constitution. Lilly v. Virginia, 527 U.S. 116, 140, 119 S.Ct. 1887 (1999) (Breyer, J., concurring); see also Salinger v. United States, 272 U.S. 542, 548, 47 S.Ct. 173 (1926). The basic purpose of the Confrontation Clause is "the promotion of the integrity of the factfinding process." White v. Illinois, 502 U.S. 346, 356-57, 116 L.Ed.2d 848, 112 S.Ct. 736 (1992) (internal quotation omitted); see also Maryland v. Craig, 497 U.S. 836, 845, 111 L.Ed.2d 666, 110 S.Ct. 3157 (1990) ("The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact."). The FDPA's requirements that evidence at the sentencing phase be relevant and reliable, and that its probative value outweigh the danger of unfair prejudice, permit the Court to protect Confrontation Clause concerns. See United States v. McVeigh, 944 F. Supp. 1478, 1487 (D. Colo. 1996) ("Read literally, the substitution of information for evidence in § 3593(c) raises the specter of violations of the Confrontation Clause and other fundamental protections contained in the Fifth and Sixth Amendments. What saves the statute is the fact that the hearing is governed by the trial judge who has considerable discretion in controlling the presentation of the information" to the jury in both content and form.").
For reasons similar to the foregoing ones, many federal district courts post- Ring have found the FDPA's relaxed evidentiary standard to be constitutional and have rejected the Fell court's reasoning. See Sampson, 2003 U.S. Dist. LEXIS 2257 at *3236; Johnson, 2003 U.S. Dist. LEXIS 151 at *56-63; United States v. Denis, 2002 U.S. Dist. LEXIS 23392, *11 n. 5 (S.D. Fla. 2002); Regan, 221 F. Supp.2d at 681-83; Lentz, 2002 U.S. Dist. LEXIS 16336 at *26-31. Thus, in accordance with Fifth Circuit law and the vast majority of federal decisions on point, the Court declines defendant's invitation to follow Fell and finds, instead, that the evidentiary standard established by Congress for the federal capital sentencing phase is constitutional.
D. The Death Penalty Does Not Result in Death Sentences for the Factually and Legally Innocent in Violation of the Fifth and Eighth Amendments
Defendant argues that the death penalty violates the Fifth and Eighth Amendments because it results in death sentences for the factually and legally innocent. Neither the Supreme Court nor the Fifth Circuit has so held. In addition, the federal district court decision that supported defendant's argument has since been reversed. See United States v. Quinones et al., 313 F.3d 49 (2d Cir. 2002), rev'g United States v. Quinones et al., 205 F. Supp.2d 256, 257 (S.D.N.Y. 2002). In Quinones, the Second Circuit held that the defendant's reliance on the Eighth Amendment was foreclosed by Gregg, 428 U.S. at 186-87, which held that modern standards still permit the death penalty for certain heinous crimes such as murder. See id. at 61-61 n. 10. Second, the Second Circuit stated that the Due Process Clause of the Fifth Amendment itself recognizes the possibility of capital punishment. See id. at 61. Further, the Second Circuit indicated that the Supreme Court has time and again considered and rejected the argument that the death penalty is impermissible because the innocent may be executed. See id. at 61-66. The Second Circuit also held that the district court's decision must be reversed as contrary to Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853 (1993), in which the Supreme Court established that there is no fundamental constitutional right to a continued opportunity for exoneration even before one's execution date, "much less during the course of one's natural lifetime." Id. at 70; see id. at 67-69. Lastly, the Second Circuit held that even if Herrera did not exist, federal courts would be precluded from finding that the FDPA violates due process under the Supreme Court's holding in Chapman v. United States, 500 U.S. 453, 111 S.Ct. 1919 (1991). Chapman held that under the Due Process Clause, "a person who has been convicted is eligible for, and the court may impose, whatever punishment is authorized by statute for his offense, so long as that penalty is not cruel and unusual, and . . . not based on an arbitrary distinction . . . See Chapman, 500 U.S. at 465.
Absent any authority for defendant's argument and in the face of controlling authority, the Court must reject defendant's argument that the death penalty violates the Fifth and Eighth Amendments because it results in death sentences for the factually and legally innocent.
E. The FDPA's Sentencing Scheme Is Comprehensible to a Jury
Defendant argues that the FDPA violates the Fifth, Sixth, and Eighth Amendments because empirical studies show that some jurors are unable to comprehend the FDPA's sentencing scheme, specifically the concepts of aggravating and mitigating factors, even though instructed by a judge. Therefore, defendant argues, jurors are unable to make a reasoned and informed choice between a life sentence and the death penalty.
Consideration of aggravating and mitigating factors is the means by which the jury takes into account both the circumstances of the crime and of the criminal before it recommends a sentence. See Gregg, 428 U.S. at 153. In Gregg, the Supreme Court upheld a Georgia statute with a sentencing scheme much like that of the FDPA. See id. at 197-98. Further, it is a central tenet of the American jury system that juries will understand and follow courts' instructions on applicable law. See Marshall v. Lonberger, 459 U.S. 422, 438 n. 6, 103 S.Ct. 843 (1983) (quoting Parker v. Randolph, 442 U.S. 62, 73 (1979)). Those federal courts that have considered the studies proffered here have found that they do not establish that the concepts of aggravating and mitigating factors are so intrinsically incomprehensible as to render them incapable of clarification through proper jury instructions. See United States v. Regan, 228 F. Supp.2d 742, 746-47 (E.D. Va. 2002); United States v. Llera Plaza, 179 F. Supp.2d 444, 449-50 n. 5 (E.D. Pa. 2001), vacated on other grounds by United States v. Llera Plaza, 188 F. Supp.2d 549 (E.D. Pa. 2002); see also United States v. Kee, 2000 WL 863119, *2.3 (S.D.N.Y. 2000). Further, the only case defendant cites for the proposition that district courts should rely on empirical studies showing juror confusion was overruled by the Seventh Circuit. See United States ex. rel. Free v. Peters, 806 F. Supp. 705 (N.D. Ill. 1992), overruled by Free v. Peters, 12 F.3d 700 (7th Cir. 1993), reh'g. and reh'g. en banc denied, 19 F.3d 389 (1994)
Based on the foregoing cases and its own evaluation, this Court finds that the studies cited by defendant are not sufficient to call into question the constitutionality of the FDPA's sentencing scheme. The Court further finds that a jury can be instructed so that it will understand and appropriately apply the FDPA's provisions. Moreover, the defendant and the government will have the opportunity to propose and object to the Court's jury instructions. For these reasons, defendant's motion is denied.
F. The FDPA Constitutionally Narrows the Class of Persons Eligible for the Death Penalty
Defendant argues that the FDPA's requirements that the jury find the defendant acted with a particular mental state and that at least one statutory aggravating factor exists fail to narrow the class of persons eligible for the death penalty in violation of the Eighth Amendment. The Fifth Circuit rejected this argument in Jones, 132 F.3d at 248-49. The Jones court recognized that a capital sentencing scheme must genuinely narrow the class of persons eligible for the death penalty. See id. at 248 (citing Zant v. Stephens, 462 U.S. 862, 877, 103 S.Ct. 2733 (1983)). The Jones court also recognized that "the use of aggravating factors helps to narrow the class of death-eligible persons and thereby channels the jury's discretion." Id. (citing Lowenfield v. Phelps, 484 U.S. 231, 244, 108 S.Ct. 546 (1987)). The Jones court stated as a general rule that "an aggravating factor which merely repeats an element of the crime passes constitutional muster as long as it narrows the jury's discretion." Id. (citing Lowenfield, 484 U.S. at 246). The Fifth Circuit concluded that "the FDPA narrows the jury's discretion through the findings of intent and aggravating factors." Id. at 249. Thus, defendant's argument fails under Jones.
G. Nonstatutory Aggravating Factors
1. Grant of Authority to prosecutor to Define Nonstatutory Aggravating Factors Is Constitutional and Does Not Result in Arbitrary Nonstatutory Aggravating Factors
Defendant asserts that the government's authority to define nonstatutory aggravating factors is the result of an unconstitutional delegation of legislative power in violation of separation of powers and the nondelegation doctrine. The Fifth Circuit expressly rejected this argument in Jones, 132 F.3d at 239. The Jones court held that Congress may seek assistance from coordinate branches of government, as long as Congress formulates an intelligible principle to which the person or body authorized to exercise the delegated authority is directed to conform . . ." Id. (quoting United States v. Mistretta, 488 U.S. 361, 372, 109 S.Ct. 647 (1989)). The Fifth Circuit concluded that the delegated authority in the FDPA is "sufficiently circumscribed by intelligible principles' to avoid violating the nondelegation doctrine." Id. (citing United States v. Tipton, 90 F.3d 861, 895 (4th Cir. 1996)). The Fifth Circuit found that "the prosecution does not have carte blanche in devising nonstatutory aggravating factors." Id. Rather, the Jones court listed four limitations that properly guide the prosecution in exercising its authority: (1) the FDPA limits the scope of aggravating factors to those for which prior notice has been given by the prosecution; (2) Supreme Court death penalty jurisprudence guides the prosecution; (3) the district court functions as a gatekeeper to limit useless and impermissibly prejudicial information; and (4) the jury must find at least one statutory aggravating factor beyond a reasonable doubt before it may consider nonstatutory aggravating factors. See id. at 240.
In light of the Jones holding, the Court rejects defendant's argument.
2. prosecutor's Ability to Define Nonstatutory Aggravating Factors Does Not Violate the Ban on Ex Post Facto Laws
Defendant argues that the FDPA is unconstitutional because it violates the ban on ex post facto laws. Article I, section 9 of the United States Constitution prohibits laws that alter the definition of crimes, increase the punishment for criminal acts, or deprive a defendant of a defense after the underlying offense has been committed. California Dep't of Corrections v. Morales, 514 U.S. 499, 504 — 05, 115 S.Ct. 1597 (1995); Beazell v. Ohio, 269 U.S. 167, 169 — 70, 46 S.Ct. 68 (1925). Defendant argues that the FDPA violates the Constitution's ex post facto provision because it allows the government to define nonstatutory aggravating factors making defendant death-eligible after the crime but before trial. This argument is without merit.
Here, there has been no change to the FDPA or the substantive crimes under which defendant is charged between the time of the offense and the present. Defendant is charged, among other things, with committing murder in the course of a drug trafficking crime under 18 U.S.C. § 924 (j). That statute unambiguously includes the death penalty as a possible punishment. Therefore, the conduct was prohibited and the possible range of punishment established before defendant allegedly committed four murders. Further, the FDPA, which lists the statutory aggravating factors and mental states that must be found to render a defendant death-eligible, has not changed since the charged offenses were allegedly committed. Thus, the defendant will be "judged guilty or not, and eligible for the punishment of death or not, on the basis of criteria set by Congress well before the commission of the offense." United States v. Frank, 8 F. Supp.2d 253, 267 (S.D.N.Y. 1998).
Nonstatutory aggravating factors do not introduce a new crime or punishment under the statutes. Moreover, the Supreme Court has held that procedural changes in a capital sentencing scheme that simply alter the method of determining whether the death penalty is to be imposed do not raise ex post facto concerns. See Dobbert v. Florida, 432 U.S. 282, 293-94, 975. Ct. 2290, 2298-99, 53 L.Ed.2d 344 (1977). Indeed, nonstatutory aggravating factors simply aid the jury in determining the proper punishment. They are not separate substantive offenses or penalties themselves.
Lastly, courts have consistently rejected defendant's argument. See, e.g., United States v. Minerd, 176 F. Supp.2d 424, 433 — 34 (W.D. Pa. 2001); Frank, 8 F. Supp.2d at 267; United States v. Nguyen, 928 F. Supp. 1525, 1537 — 38 (D. Kan. 1996); United States v. DesAnges, 921 F. Supp. 349, 354-55 (W.D. Va. 1996). Accordingly, the Court finds that the FDPA does not violate the ban on ex post facto laws.
3. There Is No Internal Statutory Inconsistency in the FDPA That Precludes the Use of Nonstatutory Aggravating Factors
Defendant argues that use of nonstatutory aggravating factors is precluded because of statutory inconsistencies within the FDPA. Specifically, defendant argues that the language authorizing nonstatutory aggravating factors in 18 U.S.C. § 3592 (c) contradicts the language in section 3591(a). Section 3591(a) provides that a defendant "shall be sentenced to death if, after consideration of the factors set forth in section 3592 . . . , it is determined that imposition of a sentence is justified." 18 U.S.C. § 3591 (a). After listing sixteen statutory aggravating factors, section 3592(c) provides that the jury "may consider whether any other aggravating factor for which notice has been given exists." Id. § 3592(c). Defendant asserts that section 3591(a) allows consideration of only those factors "set forth" in section 3592, and because nonstatutory factors are not specifically set forth in section 3592, but only authorized in general terms, they may not be considered.
The Court finds that there is nothing inconsistent in the FDPA's reference to factors "set forth" in another provision when that other provision sets forth "any other aggravating factor for which notice has been given." In context, "set forth" simply means "contained in" or "stated in," and it does not require a particular level of specificity. Defendant's overly restrictive reading of section 3591(a) would render a significant portion of section 3592(c) inoperative. A statute should be construed, if possible, so that all of its provisions are given effect, and no part of the statute is rendered inoperative or superfluous. See Forsyth v. Barr, 19 F.3d 1527, 1543 (5th Cir. 1994). The Court finds no obstacle to giving effect to both sections 3591(a) and 3592(c), and it rejects defendant's proposed construction as unreasonable. See, e.g., Nguyen, 928 F. Supp. at 1536 ("There is nothing internally contradictory or inconsistent about a statute referring to something "set forth' in a `catch-all provision.' It is a frequently employed tool of the law.").
4. Use of Nonstatutory Aggravating Factors Without Proportionality Review Is Not Unconstitutional
Defendant argues that the lack of proportionality review combined with the government's unlimited authority to use nonstatutory aggravating factors renders the FDPA unconstitutional. The Fifth Circuit expressly rejected this argument in Jones, 132 F.3d at 240-41, and the Court is bound by its decision. Therefore, the Court must reject defendant's argument.
H. The Death Penalty Is Not Cruel and Unusual Punishment in All Circumstances
Defendant argues that the death penalty is unconstitutional in all circumstances. The Fifth Circuit expressly rejected this argument in Jones, stating, "We are bound by Supreme Court precedent which forecloses any argument that the death penalty violates the Constitution under all circumstances." 132 F.3d at 242 (citing McKleskey v. Kemp, 481 U.S. 279, 300-03, 107 S.Ct. 1756 (1987); Gregg, 428 U.S. 153). See also United States v. Davis, 904 F. Supp. 554, 563-64 (E.D. La. 1995) . Therefore, the Court rejects defendant's argument.
I. The Death Penalty Does Not Violate International Law
In his last point, defendant argues that the death penalty violates international law, specifically, the International Covenant on Civil and Political Rights and the International Convention on the Elimination of All Forms of Racial Discrimination. The cases defendant cites are unhelpful because they do not address whether the death penalty is illegal under international law. Further, federal courts have rejected defendant's argument. For example, in Buell v. Mitchell, 274 F.3d 337, 370-372 (6th Cir. 2001), the Sixth Circuit held that the Ohio death penalty does not violate the International Covenant or any other international agreements entered into by the United States, because these agreements do not specifically outlaw the death penalty, and to the extent that they ban cruel and unusual punishment, the United States has included reservations preserving the right to impose the death penalty within the limits of the U.S. Constitution. See also United States v. Bin Laden et al., 126 F. Supp.2d 290, 294 (S.D.N.Y. 2001)
The defendant does not cite, and this Court has not found, any cases holding otherwise. For the reasons articulated by the Sixth Circuit in Buell, the Court finds that the death penalty does not violate international law.
III. CONCLUSION
For the foregoing reasons, the defendant's motion to declare the Federal Death Penalty Act unconstitutional and to strike special findings from the second superseding indictment is DENIED.