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refusing to strike the future dangerousness factor because it contained the term "is likely" on the basis that "[i]t is not illogical to say that the jury must find that Defendant is likely to commit future criminal acts beyond a reasonable doubt"
Summary of this case from United States v. WilliamsOpinion
No. CR-05-920-RSWL.
October 15, 2008
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTIONS
On October 8, 2008, various Motions filed by Defendant Michael Dennis Williams and Defendant Antoine Lamont Johnson came on for regular calendar before this Court. Plaintiff, United States of America, appeared through its counsel of record, Assistant United States Attorneys Elizabeth Yang and Karen Meyer. Defendant Johnson appeared with his counsel of record, Amy Jacks and Richard Lasting. Defendant Williams appeared with his counsel of record, Marcia Morrissey and Lynne Coffin. The matters were submitted, and the Court having considered all papers and arguments, NOW FINDS AND RULES AS FOLLOWS:
1. Defendant Williams' Motion to Strike Notice of Intent to Seek the Death Penalty Due to Constitutionally Insufficient Notice [513]
Defendant's motion is DENIED IN PART AND GRANTED IN PART. Neither the statutory requirements of 18 U.S.C. § 3593 nor the United States Constitution require the Government to provide in its Notice of Intent to Seek the Death Penalty ("Notice") specific evidence or facts that it seeks to use in order to prove the mens rea factors and statutory and non-statutory aggravating factors. See United States v. Battle, 173 F.3d 1343, 1347 (11th Cir. 1999) (government not required to provide specific evidence in its Notice); Llera Plaza, 179 F. Supp. 2d at 472 (§ 3593 does not require government to provide specific evidence in its Notice); United States v. Lecroy, 441 F.3d 914, 929 (11th Cir. 2006); United States v. Higgs, 353 F.3d 281, 325 (4th Cir. 2003). The Government's Notice fulfills the statutory requirements of § 3593 because it states that the Government intends to seek the death penalty and sets forth the § 3591(a) intent factors, the § 3592(c) statutory aggravating factors, and the § 3593 non-statutory aggravating factors.
However, the Sixth Amendment still requires that a defendant receive sufficient notice to enable him to prepare a defense. Upon reviewing the Notice and the First Superseding Indictment ("FSI"), the Court finds that Defendant has received constitutionally sufficient notice of the factual basis for all the mens rea factors and the statutory and non-statutory aggravating factors, except as specifically set forth below.
A. There is Sufficient Notice for the Alleged Mens Rea Factors
Although not required, the FSI properly alleges the factual basis for the mens rea factors. The Notice states the three mens rea factors and alleges that each mens rea factor resulted in the death of Evelio Suarez, Jr. More importantly, the FSI alleges, among other things, that:
— Defendant met with others to plan the robbery of the Armored Transport Systems ("ATS") truck. — Defendant and others approached the truck and ATS guards with multiple firearms, including two assault rifles and a handgun. — Defendant and others fired fifty-two rounds at the guards, and shot and killed Evelio Suarez. — Defendant and others stole $436,000 and fled to a waiting van. This is sufficient to give Defendant notice of what the Government intends to prove with respect to the mens rea factors.Moreover, it is not improper for the Government to allege more than one mens rea factor. Multiple mens rea factors will not skew the sentencing process in favor of death because the mens rea factors are not aggravating factors, but merely gateway intent factors which play no role in the weighing process during the penalty phase. United States v. Jackson, 327 F.3d 273, 300-01 (4th Cir. 2003).
B. There is Sufficient Notice for Each Statutory Aggravating Factor, Except the Prior Firearm Related Conviction
For the same reasons given for the mens rea factors, the FSI gives proper notice of each statutory aggravating factor, except the prior firearm-related conviction statutory aggravating factor under 18 U.S.C. § 3592(c)(2). The Government shall provide Defendant with specific information regarding the conviction that it intends to use.
C. The Non-Statutory Aggravating Factors
The Court finds that Defendant has sufficient notice of the non-statutory aggravating factors, except as specified below, based on the Government's contention that the information has been provided during discovery. The factual basis for the non-statutory aggravating factors need not be stated in the Notice or FSI.
The Court finds that there is insufficient notice for the two non-statutory aggravating factors of future dangerousness and victim impact evidence. However, the Court has considered the Government's contention that it has agreed to disclose, on a previously agreed timetable for disclosure, evidence the Government intends to introduce relating to these non-statutory aggravating factors. The Court orders the Government to specify, when it becomes available and within reasonable time of trial, the other acts, not described in the FSI or Notice, that support the allegation of future dangerousness, and provide an outline describing the injury, harm, and loss suffered by Evelio Suarez' family and friends.
2. Defendant Johnson's Motion for Joinder as to Defendant Williams' Motion to Dismiss the Special Findings and Strike Notice of Intent to Seek the Death Penalty due to Constitutionally Insufficient Notice; to Dismiss Special Findings and Strike Notice of Intent to Seek the Death Penalty; and to Preclude a Capital Prosecution [521]
3. Defendant Williams' Motion to Strike Notice of Intent to Seek the Death Penalty and to Dismiss "Special Findings" [514]
GRANTED. DENIED IN PART AND GRANTED IN PART. A. The Statutory Aggravating Factors Should Not be Dismissed i. The Substantial Planning and Premeditation Statutory Aggravating Factor Should Not be Dismissed
Defendant's request to strike the statutory aggravating factor of substantial planning and premeditation is DENIED. The statutory aggravating factor of substantial planning and premeditation properly narrows the class of murders subject to the death penalty. Not every murder involves "substantial planning and premeditation." United States v. Bourgeois, 423 F.3d 501, 511 (5th Cir. 2005).
Furthermore, "substantial planning and premeditation" is not unconstitutionally vague. An aggravating factor is not unconstitutional if it has some "common-sense core of meaning . . . that criminal juries should be capable of understanding." Tuilaepa v. California, 512 U.S. 967, 973 (1994) (quoting Jurek v. Texas, 428 U.S. 262, 279 (1976) (White, J., concurring in judgment)). "Substantial planning and premeditation" has a "common-sense core of meaning . . . that criminal juries should be capable of understanding." See United States v. Mitchell, 502 F.3d 931, 978 (9th Cir. 2007) (holding "substantial" not overbroad or vague); United States v. Tipton, 90 F.3d 861, 896 (4th Cir. 1996) (noting that context and clarifying jury instruction may supply the "common sense core of meaning"); United States v. McCullah, 76 F.3d 1087, 1110 (10th Cir. 1996). To the extent of any confusion, the Court can supply the jury with a definition.
ii. The Government Has Not Improperly Alleged Duplicative Statutory Aggravating Factors a. Grave Risk of Death to Others and Multiple Killings or Attempted Killings in a Single Episode are Not Duplicative
Defendant's motion to strike the grave risk of death and multiple attempted killings factors is DENIED. The grave risk of death and multiple attempted killings factors are not duplicative. The applicable standard for whether two aggravating factors overlap "is not whether certain evidence is relevant to both aggravators, but rather, whether one aggravating circumstance `necessarily subsumes' the other." Cooks v. Ward, 165 F.3d 1283, 1289 (10th Cir. 1998). The Government has stated that it intends to limit application of the grave risk factor to bystanders such as bank customers and employees in the zone of Defendants' indiscriminate firing, and to limit application of the multiple attempted killings to the armored truck guards, who were the intended targets of the shooting. Because different facts underlie each factor, they cannot be duplicative or subsume one another. b. The Pecuniary Consideration Factor and the Charged Offense are Not Duplicative
Defendant's request to strike the pecuniary consideration statutory aggravating factor is DENIED IN PART AND GRANTED IN PART. The pecuniary consideration statutory aggravating factor, § 3592(c)(8), is not duplicative of the charged offense of armed robbery. § 3592(c)(8) differs from the charged offense because it relates to the pecuniary consideration flowing from the murder, not the actual robbery. United States v. Mitchell, 502 F.3d 931, 975 (9th Cir. 2007). The Ninth Circuit has found that the pecuniary gain aggravating factor is satisfied "in the robbery scenario if the defendant committed a concomitant murder in the expectation of the receipt of anything of pecuniary value."Mitchell, 502 F.3d at 975 (quoting United States v. Brown, 441 F.3d 1330, 1370 (11th Cir. 2006)). It is alleged that Defendant shot and killed Evelio Suarez for pecuniary gain. The Government asserts that Suarez stood between Defendant and the money, so Defendant killed Suarez in order to steal it. See Mitchell, 502 F.3d at 975 (pecuniary gain factor satisfied where defendants killed victims in carjacking to use car for a get-away vehicle in a planned robbery); LaGrand v. Stewart, 133 F.3d 1253, 1260 (9th Cir. 1998) (stabbing victim who would not open safe was in furtherance of pecuniary gain and satisfied the pecuniary gain aggravating factor); Brown, 441 F.3d at 1370 (pecuniary gain factor satisfied where jury could have found that defendant stabbed and killed victim in order to obtain money in a robbery).
In this case, the pecuniary aggravating factor is not duplicative of the charged offense so long as the Government makes clear that the pecuniary gain "flowed from the death" of Suarez. United States v. Chanthadara, 230 F.3d at 1263 (10th Cir. 2000). Therefore, the Government must amend its Notice to specify that the aggravating factor applies to the murder of Suarez because the pecuniary gain "flowed from the death" of Suarez.
B. The Alleged Non-Statutory Factors Need Not be Stricken
Defendant's motion to strike the non-statutory aggravating factors is DENIED. i. The Non-Statutory Aggravating Factors Constitutionally Limit and Guide the Discretion of the Jury
Defendant's Motion to Strike the Non-Statutory Aggravating Factors, based on the argument that they do not limit and guide the discretion of the jury, is DENIED. Non-statutory aggravating factors need not narrow the class of defendants eligible for the death penalty. United States v. Higgs, 353 F.3d 281, 320 (4th Cir. 2003). The narrowing of the class occurs when the jury determines that the defendant is eligible for the death penalty because it has found one of the necessary intent factors and one of the statutory aggravating factors beyond a reasonable doubt in the eligibility phase of sentencing. Id. The purpose of non-statutory aggravating factors is for an individualized determination of all relevant evidence once the jury has determined that the defendant is eligible for the death penalty.Zant v. Stephens, 462 U.S. 862, 878-79 (1983).
ii. Congress' Delegation to the Government to Define Aggravating Factors Does Not Violate the Separation of Powers Principle or the Non-Delegation Doctrine
Defendant's request to strike all non-statutory aggravating factors based on the separation of powers principle and the non-delegation doctrine is DENIED. Congress' delegation to the Government to define aggravating factors does not violate the separation of powers principle or the non-delegation doctrine because there is an intelligible principle to which the Government is directed to conform. United States v. Mitchell, 502 F.3d 931, 979 (9th Cir. 2007).
iii. Permitting the Department of Justice to Define Non-Statutory Aggravating Circumstances After the Crime But Before Trial Does Not Violate the Ban on Ex Post Facto Laws
Defendant's Motion to Strike the Non-Statutory Aggravating Factors based on the ban on ex post facto laws is DENIED. Permitting the Department of Justice to define non-statutory aggravating circumstances after the crime but before the trial does not violate the constitutional ban on ex post facto laws. Non-statutory aggravating circumstances are not elements of the crime, but rather sentencing considerations that do not retroactively increase the punishment for the crime.United States v. Allen, 247 F.3d 741, 759 (8th Cir. 2001). By the time the jury considers the non-statutory aggravating factors, the defendant is already eligible for the death penalty.
iv. The Federal Death Penalty Act Does Not Contain Any Statutory Inconsistencies That Would Preclude the Use of Non-Statutory Aggravating Factors
The Federal Death Penalty Act ("FDPA") does not contain any statutory inconsistencies that would preclude the use of non-statutory aggravating factors. The plain language of the statute clearly allows for the Government to present non-statutory aggravating factors in addition to the listed statutory aggravating factors. Therefore, Defendant's Motion to Strike the Non-Statutory Factors based on FDPA "inconsistencies" is DENIED. v. The Court Should Not Grant a Hearing to Consider Whether the Government has, Throughout the Nation, Alleged Non-Statutory Factors Consistently and Whether the Factors Alleged in this Case Are Consistent with the Government's General Practice
Defendant's request for a hearing to show that the federal government has inconsistently alleged non-statutory aggravating factors thereby rendering the statutory scheme unconstitutionally arbitrary is DENIED. Such a hearing would be irrelevant because the purpose of the non-statutory factors is to tailor them to the specific crime. Therefore, the factors the Government presented in other cases are irrelevant because each case is unique. Any arbitrary use of the non-statutory factors can be addressed by Defendant's right to challenge the non-statutory aggravating factors with this Court.
vi. The Future Dangerousness Factor Should Not be Dismissed a. Congress Did Not Intend to Prohibit the Separate Consideration of "Future Dangerousness"
Defendant's request to strike the future dangerousness factor is DENIED. § 3592 specifically allows for the government to present non-statutory aggravating factors. Therefore, the fact that Congress omitted "future dangerousness" from the list of statutory aggravating factors is irrelevant. Furthermore, the Supreme Court in Simmons v. South Carolina, 512 U.S. 154, 163 (1994), approved the use of future dangerousness under a capital sentencing statute even when it was unenumerated in the statute.
b. Limiting Future Dangerousness Should Be Limited to Danger While Incarcerated
Defendant argues that if this Court allows the future dangerousness non-statutory factor then it should be limited to evidence that Defendant poses a danger to the life of others while serving a life sentence without release.
It is not relevant for the Government to argue that Defendant poses a risk to society if Defendant will never be released into society. If this Court determines, after the guilt phase, that it is highly improbable that Defendant will receive a sentence of less than life in prison, then the Government shall not be allowed to "hammer away on the theme that defendant could some day get out of prison." Instead, in such a case the Government will only be allowed to mention the remote possibility of Defendant being released, and instead be limited to primarily arguing Defendant's risk of dangerousness to the prison population. United States v. Flores, 63 F.3d 1342 (5th Cir. 1995).
However, the Government has argued that Defendant could receive a sentence of less than death. Therefore, Defendant's Motion is DENIED WITHOUT PREJUDICE at this time.
c. The Future Dangerousness Factor is Not Meaningless
The non-statutory aggravating factor of future dangerousness is not meaningless merely because it is frequently asserted in capital cases. It narrows the class of death penalty eligible defendants because it is not always asserted. Furthermore, the non-statutory aggravating factors do not play the same role in narrowing the class of death penalty eligible defendants as the statutory factors. Instead, they are used to further individualize the sentence. Therefore, Defendant's motion to strike the future dangerousness factor on these grounds is DENIED. d. The Future Dangerousness Factor Does Not Lessen the Government's Burden of Proof
Defendant's motion to strike the future dangerousness factor on the basis that it lessens the Government's burden of proof is DENIED. The use of the word "likely" does not lessen the Government's burden to prove the future dangerousness factor beyond a reasonable doubt. It is not illogical to say that the jury must find that Defendant is likely to commit future criminal acts beyond a reasonable doubt. The Supreme Court has even stated that "future dangerousness" is an appropriate aggravating factor and that it is used to determine "likely" future behavior. See Franklin v. Lynaugh, 487 U.S. 164, 177-78 (1988). Furthermore, the Court can instruct the jury that they must find this factor beyond a reasonable doubt.
e. The Jury is Capable of Making a Finding on the Likelihood of Future Dangerousness
Defendant's motion to strike the future dangerousness factor on the basis that a jury is incapable of making an accurate finding on Defendant's future dangerousness is DENIED. The Supreme Court specifically stated in United States v. Jurek, 428 U.S. 262, 274-76 (1976), that prediction of future criminal conduct is possible and is an essential element to the criminal justice system.
f. The Future Dangerousness Factor Does Not Duplicate the Charged Offense
Defendant's motion to strike the future dangerousness factor to the extent that this factor is based on the crimes charged in this case because it is duplicative is DENIED.
The applicable test for whether two aggravating factors overlap "is not whether certain evidence is relevant to both aggravators, but rather, whether one aggravating circumstance `necessarily subsumes' the other."Cooks v. Ward, 165 F.3d 1283, 1289 (10th Cir. 1998). This aggravating factor may have overlapping facts with the charged crimes, but it is not subsumed by them. The future dangerousness factor asks the jury to look at the potential for future violence, not just the existence of the charged crime as an aggravating factor.
g. Lack of Remorse is Properly Alleged as Evidence of Defendant's Future Dangerousness
Defendant's motion to strike the future dangerousness factor on the basis that it violates his Fifth Amendment right to remain silent and his Sixth Amendment right to trial because it punishes him more severely for exercising his rights is DENIED. Furthermore, Defendant's motion that this factor violates his Eighth Amendment rights because it is inherently unreliable is DENIED. The Supreme Court has upheld the use of lack of remorse as an aggravating factor. Zant v. Stephens, 462 U.S. 862, 885 (1983). It is unquestionably proper for a judge or jury to take confessions, guilty pleas, and vows to improve one's life into account when deciding whether to impose death. United States v. Mikos, ___ F.3d ___, 2008 WL 3892144, at *11-12 (7th Cir. Aug. 25, 2008). However, in order to safeguard Defendant's right to remain silent, this Court will not allow the Government to present evidence of Defendant's silence as its only evidence to show lack of remorse. The Government must show some affirmative acts to prove this factor.
vii. Victim Impact Evidence from Friends and Co-Workers is Admissible
Defendant's motion to exclude all victim impact evidence from non-family members is DENIED. The Supreme Court has specifically held that victim impact evidence is admissible. Payne v. Tennessee, 501 U.S. 808, 825 (1991). The Supreme Court has not limited victim impact evidence to family members. Payne stresses the importance of allowing the Government to present evidence so that the victim is not a faceless stranger. Therefore it is irrelevant whether this evidence comes from friends or family members. Furthermore, the plain language of 18 U.S.C. § 3593 does not restrict victim impact evidence to family members because it allows presentation of "any other relevant information."
C. Evidence of Defendant's Unadjudicated Criminal Acts is Admissible i. Congress Has Not Precluded the Government From Presenting Evidence of a Defendant's Prior Criminal Activity
Defendant's motion to exclude evidence of unadjudicated criminal conduct is DENIED. 18 U.S.C. § 3592(c) lists specific criminal convictions that can be used as aggravating factors. However, it also specifically authorizes the jury to consider "whether any other aggravating factor for which notice has been given exists." Therefore, under the plain reading of the statute, Congress has not limited the use of aggravating factors to the enumerated convictions. See United States v. Higgs, 353 F.3d 281, 323 (4th Cir. 2003); United States v. Mills, 446 F. Supp. 2d 1115, 1139-40 (C.D. Cal. 2006).
ii. Introduction of Evidence of Unadjudicated Criminal Activity in a Capital Sentencing Proceeding Does Not Violate the Fifth, Sixth, and Eighth Amendments
Evidence of unadjudicated criminal conduct in a capital proceeding does not violate the Fifth, Sixth, or Eighth Amendments. Accordingly, Defendant's motion to exclude such conduct is DENIED.
The Ninth Circuit has found that unadjudicated criminal conduct is proper for consideration in a capital sentencing phase.Coleman v. Risley, 839 F.2d 434, 459 (9th Cir. 1988), rev'd on other grounds sub nom. Coleman v. McCormick, 874 F.2d 1280 (9th Cir. 1989) (en banc). See also Hatch v. State, 58 F.3d 1447, 1465 (10th Cir. 1995) (upholding use of prior unadjudicated conduct against due process challenge); Devier v. Zant, 3 F.3d 1445, 1464-65 (11th Cir. 1993) (finding it "acceptable to consider evidence" of uncharged criminal conduct); Williams v. Lynaugh, 814 F.2d 205, 208 (5th Cir. 1987) ("The admission of unadjudicated offenses in the sentencing phase of a capital trial does not violate the eighth and fourteenth amendments.").
Furthermore, the purpose of the "selection phase" of the sentencing hearing is for an individualized determination of all relevant evidence once the jury has determined that the defendant is eligible for the death penalty. See Tuilaepa, 512 U.S. 967, 972 (1994). This includes determining a defendant's likelihood of future dangerousness. See Jurek v. Texas, 428 U.S. 262, 275 (1976).
iii. The Probative Value of Evidence of Defendant's Unadjudicated Criminal Conduct is Not Outweighed by the Danger of Unfair Prejudice or Confusing the Jury
Defendant requests that this Court exclude evidence of unadjudicated crimes because "its probative value is outweighed by the danger of unfair prejudice, confusing the issues or misleading the jury." Defendant's request is DENIED WITHOUT PREJUDICE. The purpose of sentencing is to make an individualized determination of whether Defendant should be sentenced to death. Relevant to this determination is Defendant's future dangerousness. Thus, Defendant's prior criminal acts are highly probative of this factor.
It is possible that evidence of unadjudicated criminal conduct may indeed still be prejudicial, but the Court does not find prejudice per se. Instead, if necessary, the Court can entertain a motion or objection to specific evidence at a later time.
iv. Whether Evidence of Other Unadjudicated Criminal Acts Should be Excluded from the Guilt Phase is Not Ripe for Review
Defendant argues that evidence of unadjudicated criminal acts should be excluded from the guilt phase under Federal Rule of Evidence 403. However, the Government has stated that at this time they do not intend to present such evidence during the guilt phase. Therefore, this Motion is DENIED because it is not ripe for determination. If the Government decides to present such evidence during the guilt phase, it shall provide sufficient time and notice to Defendant such that the Court can consider whether it should be admitted.
D. The Government Does Not Need to Give a Detailed Proffer of Aggravating Factors and the Facts and Evidence Supporting Them
Defendant argues that the Notice should be dismissed, but if it is not, the Court should require the Government to give a detailed proffer of the aggravating factors and the facts and evidence supporting them. For the same reasons articulated above under Defendant Williams' Motion to Strike the Notice of Intent to Seek the Death Penalty, Defendant's motion is DENIED.
4. Defendant Johnson's Motion to Strike the Non Statutory Aggravating Factors from the Notice of Intent to Seek the Death Penalty [520]
Defendant's Motion is DENIED IN PART AND GRANTED IN PART, for the same reasons explained under Defendant Williams' Motion to Strike Notice of Intent to Seek the Death Penalty and to Dismiss "Special Findings" [514].
5. Defendant Williams' Motion to Preclude a Capital Prosecution Under 18 U.S.C. §§ 924(c) and (j) [517]
Defendant's Motion is DENIED. The Second Amendment right to bear arms, as decided by the recent Supreme Court case Heller v. United States, does not make 18 U.S.C. §§ 924(c), (j), unconstitutional because §§ 924(c) and (j) constitute reasonable limitations on Defendant's Second Amendment rights.
Furthermore, Cuff v. United States, cited by the Defendant, is inapplicable to the instant case because Defendant is charged with using a firearm in connection with a crime of violence, and not use of a firearm in connection to homicide. In addition, the use of a firearm in the instant case is alleged to charge the substantive non-capital offense under § 924(c), which is then made capital by the FDPA intent and statutory aggravating factors, which do not include the use of a firearm.
6. Defendant Williams' Motion to Strike the Notice of Intent to Seek the Death Penalty and Motion to Declare the Federal Death Penalty Act Unconstitutional, and to Dismiss "Special Findings" from the Indictment [524]
This Court DENIES Defendant's Motion.
A. The Federal Death Penalty Act ("FDPA") is Not Unconstitutional
The determination that aggravating circumstances outweigh mitigating circumstances is not a "fact" and, thus, need not be found beyond a reasonable doubt pursuant to the decisions inArizona v. Ring, 536 U.S. 584 (2002), Apprendi v. New Jersey, 530 U.S. 466, 482-84 (2000); Jones v. U.S., 526 U.S. 227 (1999);Booker v. United States, 543 U.S. 220 (2005); and Blakely v. Washington, 542 U.S. 296 (2004), all cited by Defendants.
The Courts in Ring, Apprendi, and Jones determined that, when a certain finding of fact has the impact of increasing the defendant's sentence, that fact must be found by a jury beyond a reasonable doubt. Arizona v. Ring, 536 U.S. 584, 609 (2002). See Apprendi v. New Jersey, 530 U.S. 466, 482-84 (2000); Jones v. U.S., 526 U.S. 227, 251-52 (1999). Similarly, the Courts inBooker and Blakely found that a jury must find the existence of any fact that is "essential" to a defendant's punishment. Booker v. United States, 543 U.S. 220, 232 (2005) (citing Blakely v. Washington, 542 U.S. 296, 301 (2004)).
However, the "weighing" stage in the FDPA does not require a finding of fact that increases the defendant's sentence above that for which the defendant is already eligible. See e.g.,United States v. Purkey, 428 F.3d 738, 750 (8th Cir. 2006) ("[I]t makes no sense to speak of the weighing process mandated by [the FDPA] as an elemental fact for which a grand jury must find probable cause" because "[i]n the words of the statute, it is a `consideration[.]'"); United States v. Diaz, 2007 U.S. Dist. LEXIS 18442, at *13 (N.D.Cal 2007); United States v. Henderson, 461 F. Supp. 2d 133, 134-35 (S.D.N.Y. 2006).
Defendants also cite to Cunningham v. California, 127 S.Ct. 856 (2007), for the proposition that the Supreme Court mandates that a "weighing phase" to determine a defendant's sentence must be found by a jury beyond a reasonable doubt. However, Cunningham does not stand for this proposition. Rather, in Cunningham, the Court held that aggravating factors could not be found by a judge by a preponderance of the evidence, but instead must be found by a jury beyond a reasonable doubt. Id. at 871. The FDPA clearly mandates that a jury find aggravating factors beyond a reasonable doubt. Thus, there is no conflict with Cunningham in this case.
B. The "Special Findings" Are Not Dismissed i. A Grand Jury Need Not Be Informed of the Consequences of its "Special Findings"
A grand jury need not have notice that its findings may result in a death sentence. See e.g. United States v. Williams, 2007 U.S. Dist. LEXIS 73775, at *11 (D. Haw. 2007); United States v. Haynes, 269 F. Supp. 2d 970, 981 (W.D. Tenn. 2003) ("The grand jury's role is not to decide whether probable cause supports the imposition of a particular sentence against a charged individual; rather, the grand jury check on prosecutorial power stems from its independent factual determination of the existence of probable cause for the essential elements of the charged offense."); Purkey, 428 F.3d at 748-49.
Further, the Ninth Circuit has upheld the constitutionality of the grand jury instruction providing that the jury "should not be concerned about punishment in the event of a conviction."Williams, 2007 U.S. Dist. LEXIS 73775, at *12 (citing United States v. Cortez-Rivera, 454 F.3d 1038, 1041 (9th Cir. 2006)). ii. Non-Statutory Aggravating Factors Need Not Be Included in the Indictment
Non-statutory aggravating factors do not serve to increase the penalty for which a defendant may be sentenced and, thus, are not required in the indictment. In contrast to statutory aggravating factors, non-statutory aggravating factors cannot, by themselves, increase the punishment to a death sentence. Further, non-statutory aggravating factors are only considered after the defendant is already death eligible. See e.g. United States v. Mitchell, 502 F.3d 931, 979 (9th Cir. 2007); United States v. Bourgeois, 423 F.3d 501 (5th Cir. 2005).
Defendants make the argument that, because the Central District in United States v. Mills, 446 F. Supp. 2d 1115, 1120 (C.D. Cal. 2006), determined that the jury's determination of the existence of non-statutory aggravating factors rises to the level of "fact finding" for purposes of the Confrontation Clause, non-statutory aggravating factors must be included in the indictment. However, the court in Mills did not make that logical leap and, more importantly, the Ninth Circuit has rejected the contention that non-statutory factors must be charged in an indictment. United States v. Mitchell, 502 F.3d 931, 979 (9th Cir. 2007).
B. The Notice of Intent to Seek the Death Penalty Is Not Stricken i. The Federal Rules of Evidence Do Not and Need Not Apply in the Penalty Phase
The "relaxed" evidentiary standard in the FDPA does not render the statute unconstitutional because (1) the Fifth and Sixth Amendments do not require compliance with the Federal Rules of Evidence in the penalty phase and (2) "the FDPA's evidentiary standard is broad enough, and gives trial courts sufficient flexibility, to ensure that unconstitutional evidence of the mens rea and aggravating factors is not admitted." United States v. Haynes, 269 F. Supp. 2d 970, 981 (W.D. Tenn. 2003).
a. The Constitution does not Require Compliance with the Federal Rules of Evidence
The Federal Rules of Evidence are not mandated by the Constitution and "Congress has power to prescribe what evidence is to be received in the courts of the United States." United States v. Lentz, 225 F.Supp. 2d 672, 682 (E.D. Va. 2002) (quotingTot v. United States, 319 U.S. 463, 467 (1943)) (internal citations omitted). The purpose of the Fifth Amendment is to protect a defendant's right to a fair trial. See United States v. Matthews, 246 F. Supp. 2d 137, 143 (N.D.N.Y. 2002). To that end, more rather than less evidence at the penalty phase ensures fairness. See Mitchell, 502 F.3d at 979-80; United States v. Lee, 374 F.3d 637, 648 (8th Cir. 2004) ("[T]he admission of more rather than less evidence during the penalty phase increases reliability by providing full and complete information about the defendant and allowing for an individualized inquiry into the appropriate sentence for the offense."). b. The FDPA Provides Safeguards to Ensure Unconstitutional Evidence is not Introduced
Under the FDPA, a court has broader discretion to rule evidence inadmissible than under the Federal Rules of Evidence. Lentz, 225 F. Supp. 2d at 683 (quoting United States v. Jones, 132 F.3d 232, 241 n. 7 (5th Cir. 1998), aff'd sub nom. Jones v. United States, 527 U.S. 373 (1999)) ("The relevancy standard enunciated in [the FDPA] 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.'"). "[B]ecause the Federal Rules of Evidence offer broader protection than that which is required by the Constitution[,]" the "relaxed evidentiary standard" does not violate Defendants' Fifth Amendment rights. Haynes, 269 F. Supp. 2d at 986.
Defendant's reliance on Crawford v. Washington, 541 U.S. 36 (2004), is misplaced. The holding in Crawford applies only to testimonial statements and their reliability. See United States v. Smith, 2008 U.S. Dist. LEXIS 60628 *14-15 (E.D. Va. 2008) (holding that, at most, Crawford may necessitate deeming "testimonial out-of-court statements" inadmissible at the penalty stages);United States v. Green, 2008 U.S. Dist. LEXIS 65387 *27-29 (W.D. Ky. 2008) (noting that "Defendant's specific argument [regarding the "relaxed evidentiary standard"] has been rejected by the Second, Fourth, Fifth, Eighth, Ninth, and Tenth Circuit Courts of Appeals."). Courts since Crawford have held that the evidentiary standard in the FDPA does not violate a defendant's constitutional rights. See e.g. Mitchell, 502 F.3d at 979-80.
The Court in Crawford held that the reliability of an out-of-court statement must be tested in court, on the witness stand, unless the witness is unavailable and the defense had a prior opportunity to cross-examine. Crawford, 541 U.S. at 68.
ii. Defendant is Not Entitled to a Presumption of Innocence at the Penalty Phase
Once a jury finds a defendant guilty of an underlying murder charge, that defendant is no longer entitled to a presumption of innocence in the penalty phase. United States v. Cheever, 423 F. Supp. 2d 1181, 1195-96 (D. Kan. 2006). "[T]he absence of an explicit provision regarding the presumption of innocence [in the sentencing phase] does not render the FDPA unconstitutional."Williams, 2007 U.S. Dist. LEXIS 73775, at *15-16.
7. Defendant Johnson's Motion to Strike Notice of Intent to Seek the Death Penalty, to Dismiss "Special Findings" from the Indictment and to Declare the Federal Death Penalty Act Unconstitutional [519]
Defendant's Motion is DENIED, for the same reasons explained under Defendant Williams' Motion to Strike the Notice of Intent to Seek the Death Penalty and Motion to Declare the Federal Death Penalty Act Unconstitutional, and to Dismiss "Special Findings" from the Indictment [524].
8. Defendant Williams' Motion for Four Phase Trial [525]
Defendant's Motion is DENIED WITHOUT PREJUDICE. Defendant's trial will only have a single guilt phase and a single penalty phase.
18 U.S.C. § 3593 bifurcates the guilt and penalty phases. Additionally, under this statute, the jury determines all the aggravating and mitigating factors during a single penalty phase. 18 U.S.C. § 3593(c) (2002).
No court has ever held that bifurcation of the penalty phase is mandatory. In fact numerous cases illustrate that courts continue to follow the procedure set forth under the statute, and only bifurcate the guilt and penalty phases. See also United States v. Waldon, 363 F.3d 1103, 1110-11 (11th Cir. 2004) (bifurcating guilt and penalty phases according to the FDPA); United States v. Purkey, 428 F.3d 738, 749 (8th Cir. 2005) (noting that after the guilt phase the jury must make all three determinations in the penalty phase); United States v. Webster, 162 F.3d 308, 320 (5th Cir. 1998). Cf. Booth-El v. Nuth, 288 F.3d 571, 582 (4th Cir. 2002) (for state murder charge, Court found that there was no error in refusing to bifurcate penalty phase and allowing jury to consider the gateway factor making the defendant death eligible along with aggravating and mitigating factors).
Based on the above, the decision whether to bifurcate or trifurcate the penalty phase is within the discretion of the Court. Defendant has not presented a compelling reason to require such action at this time. Any potential for the non-statutory factors to improperly influence the jury in determining whether Defendant is death eligible can be cured with a limiting instruction to the jury.
Lastly, contrary to Defendant's assertion, the Constitution and the Supreme Court's rulings in the Apprendi line of cases do not require that the gateway mens rea and statutory aggravating factors be established in a trial before the death penalty can be imposed. United States v. Johnson, 362 F. Supp. 2d 1043, 1103 (N.D. Iowa 2005). Instead, these cases stand for the proposition that "any aggravating factor, without which the death penalty cannot be imposed, must be charged in an indictment and proved to a jury beyond a reasonable doubt." Id. These aggravating factors can be proved in a trial, sentencing hearing, or penalty phase. Id.
The Apprendi line of cases are: Apprendi v. New Jersey, 530 U.S. 466, 482-84 (2000); Arizona v. Ring, 536 U.S. 584 (2002);Jones v. U.S., 526 U.S. 227 (1999); Booker v. United States, 543 U.S. 220 (2005); and Blakely v. Washington, 542 U.S. 296 (2004)).
9. Defendant Williams' Motion to Dismiss Case for Prosecutorial Misconduct [526]
Defendant's Motion is DENIED WITHOUT PREJUDICE. Neither the charges against Defendant nor the prosecution team should be dismissed.
A. Legal Standard
"When the government deliberately interferes with the confidential relationship between a criminal defendant and defense counsel, that interference violates the Sixth Amendment right to counsel if it substantially prejudices the criminal defendant." Williams v. Woodford, 384 F.3d 567, 584-585 (9th Cir. 2002). Intrusion alone is not sufficient to find substantial prejudice. Rather, there is only substantial prejudice "when evidence gained through the interference is used against the defendant at trial," when the "prosecution use[s] confidential information pertaining to the defense plans and strategy", and when the prosecution takes "other actions designed to give the prosecution an unfair advantage at trial." United States v. Irwin, 612 F.2d 1182, 1187 (9th Cir. 1980). Where the government has obtained evidence through interference with the right to counsel, the defendant has the burden to show substantial prejudice. United States v. Danielson, 325 F.3d 1054, 1070 (9th Cir. 2003).
If there is substantial prejudice, then the Court must "neutralize the taint by tailoring relief appropriate in the circumstances to assure the defendant the effective assistance of counsel and a fair trial." United States v. Morrison, 449 U.S. 361, 365 (1981). Unless there is no other way to remedy the substantial prejudice, "dismissal of the indictment is plainly inappropriate, even though the violation may have been deliberate." Id. In most cases, any prejudice or potential prejudice can be avoided by suppressing any improperly obtained evidence.
B. Analysis
Defendant has not given any facts to carry his burden in showing he was substantially prejudiced by the Government's alleged intrusion into his confidential attorney-client relationship. The Government has submitted affidavits from the prosecution team stating that none of the Assistant United States Attorneys ("AUSA's") on the case have listened to any of the recordings. Although two of the prosecution's investigators have listened to several calls, the investigators have submitted affidavits attesting to the fact that, for all but two of the conversations, they only listened until they heard Defendant's attorney identify herself. Furthermore, for the two conversations that Special Agent Cota listened to beyond defense counsel's identification, he stated that he did not listen to any substance of the call. Rather, he only continued listening because, in one call, Defendant asked his attorney to place a three way call (to a non-attorney), and, in the other, began making threats to harm co-Defendant Johnson's counsel. In both calls, Cota ceased listening upon Defendant's counsel's refusal to place the three-way call, and counsel's mollifying Defendant in regards to the threats. Both investigators have sworn they have not heard anything of substance.
More importantly, Defendant has not presented any evidence, or made any argument, that the prosecution obtained specific evidence to use against Defendant at trial or gained any defense plans or strategy. Instead, Defendant assumes that the mere fact that the Government monitored his calls while he was speaking with his attorney is sufficient to show prejudice. This is simply not the case. Additionally, the Government has already stated that none of the prosecutors have reviewed the tapes, transcripts, or summaries of the tapes. If Defendant believes that the Government has obtained an unfair advantage from listening to these conversations, then he must make more specific claims.
Lastly, Defendant argues that his relocation to San Bernardino County Jail against the Court's order was outrageous conduct that warrants sanctions against the prosecution and dismissal of this case. While it is true that the Court ordered that Defendant remain at MDC-LA, it appears that he was moved after initiating a fight. There is no evidence or argument that Defendant's relocation or monitoring of his attorney phone calls was at the request of the prosecution. Therefore, sanctioning the prosecutors or dismissal of this case is not warranted.
10. Defendant Johnson's Motion for Discovery
Defendant Johnson's Motion is DENIED IN PART AND GRANTED IN PART.
As to Defendant's itemized request #1, the still photographs, this Court finds that based on the Government's offer to produce the still photographs and continue to produce should the Government prepare any other still photographs from the videos, Defendant's motion is DENIED as MOOT.
As to Defendant's itemized request #2, tape recording #357726 dated 07/22/05, to the extent the Government has agreed to produce the recording at least 45 days before trial, Defendant's motion is DENIED.
As to Defendant's itemized request #3, all phone and direct connect records, to the extent the Government is in possession of such records and has not yet produced them to Defendant, Defendant's motion is GRANTED.
As to Defendant's itemized request #4, the large map with evidence plotted on it, based on the Government's claim that it has already produced the item and assurance that it will provide a copy of the map if it produces a different or larger map for trial purposes, Defendant's motion is DENIED as MOOT.
As to Defendant's itemized request #5, to the extent that the Government is in possession of the DNA data relating to the two previous crimes involving Defendant on April 23, 2004 and May 14, 2004, Defendant's motion is GRANTED.
As to Defendant's itemized request #6, fibers and other DNA material obtained from the rastafarian hat, to the extent that the Government is in possession of relevant documents related to the examination of hair and fiber removed from the rastafarian hat, Defendant's motion is GRANTED.
11. Defendant Williams' Motion for Joinder as to Defendant Johnson's Motion for Discovery [527]
To the extent applicable, the Court GRANTS Defendant Williams' Motion to join in Defendant Johnson's Motion for Discovery.
12. Defendant Williams' Motion for a Separate Trial from Co-Defendant Johnson [516]
"There is a preference in the federal system for joint trials of defendants who are indicted together. Joint trials `play a vital role in the criminal justice system.' They promote efficiency and `serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts.'" Zafiro v. United States, 506 U.S. 534, 537 (1993) (quoting Richardson v. Marsh, 481 U.S. 200, 209-10 (1987).
Nevertheless, even when defendants are properly joined in an indictment, the Federal Rules of Criminal Procedure authorize severance in appropriate cases. Rule 14 provides, in pertinent part:
If the joinder of . . . defendants in an indictment . . . appears to prejudice a defendant or the government, the court may . . . sever the defendants' trials, or provide any other relief that justice requires.
Fed.R.Crim.P. 14. However, a limiting instruction will usually cure any prejudice. Zafiro, 506 U.S. at 539. The Defendant has the burden to show prejudice. Id.
Defendant has not met his burden to show prejudice, and accordingly, his Motion is DENIED. A. Confrontation Clause Claims i. Witness 1's Statements a. Johnson's Objections to Witness 1's Statements
Witness 1's testimony that Williams told him that Johnson took a money bag and disappeared, and that he was going to kill Johnson if Johnson did not come forward with the missing money bag, does not warrant severance of the trial. Witness 1's testimony is not under Federal Rule of Evidence 801(d) because it is a statement of a party opponent, and is an exception to the hearsay rule under Federal Rule of Evidence 804(b)(3) as a statement against interest. However, the testimony must still satisfy Crawford v. Washington, 541 U.S. 36 (2004).
Introduction of co-conspirator statements made in furtherance of a conspiracy does not violate the Confrontation Clause. United States v. Allen, 425 F.3d 1231 (9th Cir. 2005). Moreover, underUnited States v. Atkins, 307 F.2d 937, 940 (9th Cir. 1962), the conspiracy was still continuing when these statements were made because the fruits of the crime had not been distributed. However, the statements were not made in furtherance of the conspiracy. "The Ninth Circuit has strictly construed the `in furtherance of the conspiracy requirement.'" United States v. Nazemian, 948 F.2d 522, 529 (9th Cir. 1991). "To be `in furtherance,' the statements must further the common objectives of the conspiracy." Id. In United States v. Foster, 711 F.2d 871, 880 (9th Cir. 1983), the Court found that statements made by a co-conspirator to a third person not involved in the conspiracy were not in furtherance of the conspiracy because they did not intend to elicit cooperation or assist in achieving the objective of the conspiracy.
Here, the Government has not alleged that Witness 1 was involved in the conspiracy. The statement at issue does not appear to be in furtherance of the conspiracy because it does not intend to induce Witness 1 to help further the conspiracy. Instead, the first portion of the statement about Johnson stealing the money is a narrative statement about past events. As for the portion of the statement about intending to kill Johnson, it too was not in furtherance of the conspiracy. Therefore, Defendant Williams' statement to Witness 1 is not a statement of a co-conspirator in furtherance of a conspiracy. As such, admitting it in un-redacted form would violate Defendant Johnson's confrontation rights under the Sixth Amendment and Bruton v. United States, 391 U.S. 123, 134 (1968) (when the prosecution introduces a statement of a co-defendant that inculpates a defendant, and that co-defendant does not take the stand, the inculpated defendant's right to confrontation is violated).
However, the protective rule of Bruton was limited byRichardson v. Marsh, 481 U.S. 200 (1987). In Richardson, the Court held that the "Confrontation Clause is not violated by the admission of a nontestifying codefendant's confession with a proper limiting instruction when, as here, the confession is redacted to eliminate not only the defendant's name, but any reference to his or her existence." Id. at 211.
Here, while the totality of the statements are unknown to the Court, based on Johnson's arguments, Williams specifically identified him when he said Johnson had taken the money bag and he would kill him if the bag was not returned. Witness 1's initial statement appears to fall under the Richardson exception. Therefore, the statement is admissible, but where Johnson is directly implicated, the Government must redact the statement to eliminate all references to Johnson in accordance with Bruton,Marsh, Gray v. Maryland, 523 U.S. 185 (1998), and United States v. Peterson, 140 F.3d 819 (9th Cir. 1998).
b. Williams' Objections to Witness 1's Statements
Witness 1's testimony that Johnson told him that he shot himself in the foot on the day of the robbery is admissible without redaction because it is a statement of a party opponent, and does not violate the Confrontation Clause. As such, it does not violate Defendant Williams' right to confrontation because he can impeach Witness 1 about the truth of the statement.
ii. Witness 2's Statements
Witness 2's testimony about William's statements is admissible as a statement against interest under Federal Rule of Evidence 804(b)(3). Furthermore, Rule 804(b)(3) "is not limited to confessions of criminal responsibility," but can include statements showing detailed knowledge of the crime. United States v. Layton, 720 F.2d 548, 559-60 (9th Cir. 1983). The fact that the statement was made to a friend or cellmate does not effect whether the statement was against the declarant's penal interest.United States v. Lang, 589 F.2d 92, 97 (2nd Cir. 1978).
The statement that one of the robbers panicked and shot himself in the foot tends to subject Defendant Williams to criminal liability because it tends to prove that he has inside knowledge of the crime that very few people would know, other than those involved. Furthermore, Defendant made the statements to Witness 2 as a friend in a private, casual conversation with no reason to believe they would be relayed to law enforcement. Therefore, because the statements are statements against interest, they are non-testimonial and there is no Confrontation Clause violation. See Davis v. Washington, 547 U.S. 813, 821 (2006) (Confrontation Clause does not apply to "non-testimonial" out-of-court statements). See also Davis, 547 U.S. at 825 (citing Bourjaily v. United States, 438 U.S. 171, 181-84 (1987) for proposition that statements made unwittingly to a Government informant are nontestimonial); Horton v. Allen, 370 F.3d 75, 84 (1st Cir. 2004) (statements made in private conversation between private persons are not testimonial because a reasonable person would not believe they would be used at a later trial); United States v. Nguyen, 267 Fed. Appx. 699, 705 (9th Cir. 2008) (explaining that statements made in casual conversation ". . . are plainly non-testimonial: They did not approach a solemn declaration or affirmation made for the purpose of establishing or proving some fact."). Therefore, the Confrontation Clause is not violated because the statements are non-testimonial, and admissible as statements against interest. B. Impeachment Claims
The Supreme Court has not specifically defined what statements qualify as testimonial; however, it has offered several examples of statements that qualify as testimonial. As a general rule, statements are considered testimonial if they are made in "response to structured questioning in an investigative environment or a courtroom setting where the declarant would reasonably expect that his or her response might be used in future judicial proceedings." United States v. Saget, 377 F.3d 223, 228 (2nd Cir. 2004).
The Government argues that Defendant Williams' statements were against his penal interest because he should have known that making the statements to Witness 1 would subject him to criminal liability. Defendant argues that this undercuts the Government's argument that the statement was non-testimonial under Crawford because Defendant had no reason to believe his statements would be used against him at trial. However, these two standards are not mutually exclusive. The statement against interest is only "A statement which was at the time of its making . . . so far tended to subject the declarant to civil or criminal liability . . . that a reasonable person in the declarant's position would not have made the statement unless believing it to be true." This standard concerns itself with the reliability of the statement. It assumes that a person would not make a statement that has potential to subject him to criminal prosecution if it were not true. On the other hand, Crawford is concerned with testimonial statements gathered in an administrative setting. See also United States v. Saget, 377 F.3d 223, 228 (2nd Cir. 2004) (finding that statement was against defendant's penal interest and did not violate Crawford).
Evidence that Witness 1 was involved in a murder is relevant for impeachment because it goes to bias and credibility. However, the fact that Witness 1 may testify that he did not commit the murder, but rather Defendant Williams did, is not relevant. Specifically identifying Williams as the alleged murderer is irrelevant to Witness 1's credibility or bias. It is only relevant that Witness 1 did or did not commit the murder. Additionally, Witness 1's testimony of Defendant Williams as the actual murderer is highly prejudicial and should be excluded under Federal Rule of Evidence 403. Therefore, Defendant Williams' motion to sever on these grounds is DENIED. C. Penalty Phase Claims i. The Eighth Amendment Right to Individualized Sentencing a. Blending Moral Culpability
The right to an individualized sentence is not jeopardized in a joint penalty phase. As the facts are now alleged, differences in criminal history are not likely to negate either Defendant's right to individualized consideration. Any potential prejudice from disparate criminal records and activity can be cured with an instruction from the Court reminding the jury to consider each defendant individually. Zafiro v. United States, 506 U.S. 534, 539 (1993).
b. Mutually Antagonistic Defenses/§ 3592(a)(4)
If co-defendants present mutually antagonistic defenses, a trial or penalty phase should be severed if defendants will be prejudiced. United States v. Tootick, 952 F.2d 1078 (9th Cir. 1991). There is no bright-line rule requiring that a trial be severed whenever defendants have mutually antagonistic defenses. Zafiro, 506 U.S. at 539. Even if prejudice is shown, a court need not sever a trial when a jury instruction will cure any resulting prejudice. Id. at 538-39. Severance is only mandated when "there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence." Id.
Defendants' defenses are not mutually antagonistic and they have not shown any prejudice that cannot be cured by a jury instruction. A defense is not mutually antagonistic merely because defendants blame each other for the crime. United States v. Sherlock, 962 F.2d 1349, 1363 (9th Cir. 1992). "To be entitled to severance on the basis of mutually antagonistic defenses a defendant must show . . . that the acceptance of the codefendant's theory by the jury precludes acquittal of the defendant." United States v. Throckmorton, 87 F.3d 1069, 1072 (9th Cir. 1996).
Additionally, under 18 U.S.C. § 3592, Congress intended that neither the sentence nor the equal culpability of a co-defendant should be treated as an aggravating factor; but rather, as a mitigating factor, it is only to incur to the benefit of the capital defendant. This means that finding one defendant less blameworthy than the other does not give the jury the discretion to hold that finding as an aggravating factor against the more culpable defendant. Therefore, it is incorrect to consider this as a mutually antagonistic defense because finding one defendant less blameworthy should not have an effect on the more culpable defendant. The Court will instruct the jury about the purpose of § 3592(a)(4) as a mitigation factor only, not to give one defendant life and one defendant death.
c. Dilution of Mitigation Evidence and Use of One Defendant's Mitigation Evidence as Aggravating Evidence Against the Other
A joint penalty phase will not dilute Defendants' mitigation evidence and violate their right to individualized sentencing. Neither Defendant has presented evidence that the other's mitigation evidence is so overwhelming that it would cause incurable prejudice to him. Additionally, any problem that this may cause to individualized consideration can be cured with a proper jury instruction. See Zafiro v. United States, 506 U.S. 534, 539 (1993); see also United States v. Bernard, 299 F.3d 467, 476 (5th Cir. 2002) (Fifth Circuit upheld lower court's decision not to sever capital defendants' trial, even though one defendant offered mitigating evidence of his Christian conversion and other defendant lacked comparable mitigating evidence). d. Alleged Negative Racial Stereotyping
Defendants' rights to individualized sentencing free from racial prejudice will be protected through a proper juror voir dire that screens jurors for any racial prejudice, and the FDPA admonition in 18 U.S.C. § 3593(f). ii. Conflict Between the Fifth Amendment Right Against Self-Incrimination and Eighth Amendment Mitigation Rights of Co-Defendants at a Joint Capital Trial
Defendant's reliance on Turner v. Murray, 476 U.S. 28, 36 (1986), to support his argument that racial prejudice could influence a juror to favor the death penalty is misplaced. Turner held that potential racial prejudice in a trial where the victim was a different race from the defendant should be addressed in voir dire to guard the defendant's rights. The Court never held that potential prejudice was a reason to sever a capital trial or sentencing phase.
The Fifth Amendment right to remain silent applies during the penalty phase of a trial. However, the Eighth Amendment allows for a defendant's waiver of his Fifth Amendment rights to be considered in mitigation of his punishment. Estelle v. Smith, 451 U.S. 454, 462-63 (1981).
A joint capital trial does not create an impermissible conflict between these rights. It is presumed that juries follow instructions, and the jury will be instructed that expressing remorse is a mitigating factor, but silence is not an aggravating factor. It is not unreasonable to instruct the jury that expressing remorse (which involves foregoing the right to silence) is a mitigating factor, but silence is not an aggravating factor. Instead, the jury is asked to find the middle ground — to draw neither a negative or positive inference from the silence. Furthermore, the jury will be instructed that each individual defendant should receive individualized consideration, and is not to be compared to the other.
iii. Due Process Right of Notice of Evidence to be Offered at Penalty Phase
Defendant Williams' right to due process and fair notice of the evidence to be offered against him during the penalty phase does not warrant severance for lack of notice of evidence that co-defendant Johnson may offer against him.
As previously explained, Defendant is not entitled to pre-trial notice of all the evidence to be used against him. Additionally, Defendant Williams has not provided any evidence that Defendant Johnson actually intends to present evidence against him during the penalty phase. Furthermore, Williams' rights will not be violated if he is given the opportunity to respond to any evidence, and if necessary, to investigate it. See Creech v. Arave, 947 F.2d 873, 880-81 (9th Cir. 1991) (rejecting the argument that defendant's rights were violated under Gardner v. Florida, 430 U.S. 349, 362 (1977), because pre-sentence report was disclosed to defendant and he had the opportunity to challenge the information).
13. Defendant Johnson's Supplemental Motion to Sever Defendant Williams [529] and [408]
Defendant Johnson's Motion is DENIED, for the same reasons explained under Defendant Williams' Motion for a Separate Trial from Co-Defendant Johnson.