Opinion
CRIMINAL ACTION NO. 01-282 SECTION "R"(1)
April 10, 2003
ORDER AND REASONS
Before the Court is the motion of defendant Johnny Davis to strike nonstatutory aggravating factors from the government's Notice of Intent to Seek the Death Penalty and to exclude evidence relating to these factors at trial.
For the following reasons, the Court GRANTS defendant's motion in part and DENIES it in part.
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 against Johnny Davis and others. Among other charges, Davis is charged with using a firearm to further a drug trafficking conspiracy in violation of 18 U.S.C. § 924(c)(1) and, in so doing, 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 included 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 the receipt, or in the expectation of the receipt, of anything of pecuniary value.
On September 18, 2002, pursuant to 18 U.S.C. § 3593, the government filed a Notice of Intent to Seek the Death Penalty in the event that defendant is convicted on any of Counts Four, Six, Eight, or Ten. The Notice alleges twelve nonstatutory aggravating factors pursuant to 18 U.S.C. § 3592(a) and (c), including engaging in a continuing pattern of violent conduct that included three juvenile delinquency adjudications, an earlier conviction for armed robberies, and an earlier conviction for being a felon in possession of a firearm; showing contempt for the criminal justice system and low rehabilitative potential by soliciting a co-defendant to kill a government witness while Davis was incarcerated; victim impact evidence; intentional murder of four individuals with the same firearm; lack of remorse; and several prior unadjudicated bad acts. Defendant moves to strike these factors from the Notice based on Ring v. Arizona, and moves to exclude all evidence relating to these factors from the sentencing phase of the trial.
II. DISCUSSION
A. Sentencing Phase of the Federal Death Penalty Act
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." 18 U.S.C. § 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 that no statutory aggravating factor exists, then it cannot impose the death penalty. Id. § 3593(d). If the jury finds the two "eligibility" requirements of mens rea and a statutory aggravating factor, then the jury proceeds to the "selection" phase of the sentencing hearing. Id. § 3593(e). In that phase, the jury "may consider whether any other aggravating factor for which notice has been given exists." Id. § 3592. The jury then considers whether all of the aggravating factors, both statutory and nonstatutory, outweigh all of the mitigating factors, to justify a sentence of death. Id. § 3593(e). The nonstatutory aggravating factors are not considered by the jury in the death penalty "eligibility" determination, but 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, 3593(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 can find a mitigating factor. Id. The jury's recommendation of a sentence must be unanimous. Id. § 3593(e). During the sentencing phase, any "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). Both the government and the defendant can rebut any information and present argument as to the adequacy of the information and the appropriateness of imposing a sentence of death. Id.
B. Nonstatutory Aggravating Factors Need Not Be Alleged in the Indictment
Defendant argues that under Ring v. Arizona, 153 L.Ed.2d 556, 122 S.Ct. 2428 (2002), 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), nonstatutory aggravating factors must be alleged and found by a grand jury in the indictment because they are facts making defendant eligible for the death penalty. Because the government did not include nonstatutory aggravating factors in the Second Superseding Indictment in this case, defendant moves to strike these factors from the government's Notice of Intent to Seek the Death Penalty.
The Court finds that nothing in Ring, Apprendi, or Jones requires the government to include nonstatutory aggravating factors in the indictment. Nor has defendant cited any authority under the FDPA supporting such a requirement. Further, existing case law reaches the opposite conclusion. See, e.g., United States v. Johnson, 2003 U.S. Dist. LEXIS 151, *54-55 (N.D. Iowa 2003); United States v. Regan, 221 F. Supp.2d 672, 680-81 (E.D. Va. 2002). Although nonstatutory aggravating factors play an essential role in the jury's selection process during the sentencing phase of a capital trial, they do not come into play until after the jury has determined that the defendant is eligible for a death sentence. The question before the jury in assessing nonstatutory aggravating factors is "whether a defendant eligible for the death penalty should in fact receive that sentence." Tuilaepa v. California, 512 U.S. 967, 972, 114 S.Ct. 2630 (1994). Because a finding of nonstatutory aggravating factors does not "increase the penalty for a crime beyond the prescribed statutory maximum," Apprendi, 530 U.S. at 490, they need not be alleged in the indictment.
C. Prior Unadjudicated Acts Are Admissible
The FDPA expressly provides that, once the jury has found the threshold requirements of mens rea and at least one statutory aggravating factor, the jury "may consider whether any other aggravating factor for which notice has been given exists." Id. § 3592. Nowhere in the FDPA has Congress limited the jury's ability to hear nonstatutory aggravating factors consisting of prior unadjudicated acts. The Fifth Circuit has rejected the argument that prior unadjudicated acts are per se inadmissible in capital sentencing proceedings on constitutional grounds. See United States v. Hall, 152 F.3d 381, 404 (5th Cir. 1998), abrogated on other grounds by United States v. Martinez-Salazar, 528 U.S. 304, 310-11 (2000); Williams v. Lynaugh, 814 F.2d 205, 207-8 (5th Cir.), cert. denied, 484 U.S. 935, 98 L.Ed.2d 270, 108 S.Ct. 311 (1987); Milton v. Procunier, 744 F.2d 1091, 1097 (5th Cir. 1984), cert. denied, 471 U.S. 1030, 85 L.Ed.2d 323, 105 S.Ct. 2050 (1985); United States v. Davis, 912 F. Supp. 938, 949 (E.D. La. 1996). As the Fifth Circuit has stated,
the inquiry into a defendant's probable future conduct is responsive to the constitutionally rooted concern that the death penalty not be administered in an arbitrary or capricious way. Certainly all "relevant" information ought to be before a jury facing this task. At the same time there remains a long-held reservation about the use of wrongdoing not then being tried. These concerns express our acceptance that a jury suffers the human weakness of blending wrongs — a result inconsistent with our fundamental commitment to charge specificity, jeopardy and due process. But these concerns are addressed by properly applied standards of relevance and sufficiency of proof. Moreover, the underlying concern that a jury may allow proof that a defendant is a bad person to color its assessment of present guilt is absent when extraneous offenses are received, as here, only at the sentencing phase.Procunier, 744 F.2d at 1097. And, as the district court stated in Davis,
The argument for admission is obvious. Proof of the commission of other acts of violence by a defendant is arguably more relevant and probative than any other type of aggravating evidence supporting imposition of the death penalty. To withhold it from the bury creates a significant gap in the basis for their decision and paints a much rosier picture of the defendant than is true. It's noteworthy that the statute at issue here provides that the lack of a "significant prior history of criminal conduct" is a factor in mitigation. §§ 3592(a)(5). To disallow evidence of significant unadjudicated criminal conduct could create the misleading impression that this mitigating factor applied, when in fact it did not.Davis, 912 F. Supp. at 948.
The Court rejects defendant's argument that Johnson v. Mississippi, 486 U.S. 578, 108 S.Ct. 1981 (1988), controls this issue. In Johnson, the Supreme Court reversed a death sentence in which a prior assault conviction was used as an aggravating factor because the prior conviction had been overturned. See id. at 586. Further, no evidence relating to the assault itself had been introduced as evidence in the case, only the document establishing the conviction. See id. Johnson is simply inapplicable here.
The government seeks to introduce the following prior unadjudicated acts: (1) while incarcerated, defendant showed contempt for the criminal justice system and low rehabilitative potential by "soliciting the assistance of a co-defendant to kill a cooperating Government witness in this case"; (2) defendant "solicit[ed] juveniles to serve under him as his lieutenants, [who] out of fear of Johnny Davis, acquiesced to any of his demands"; (3) defendant continued his participation in the illegal drug trade in the St. Thomas Housing Development "by soliciting the aid of a fellow drug dealer to buy and sell drugs on his behalf" while incarcerated on prior drug charges in 1998; and (4) defendant "solicited the aid of a fellow drug dealer in the smuggling of contraband into the Orleans Parish jail" while incarcerated on prior drug charges in 1998. (Notice of Intent, § III ¶¶ 6-9.) Based on the foregoing authorities, the Court finds the specific unadjudicated criminal conduct relevant to the issue of whether the defendant should be sentenced to death, and finds that its probative value is not outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury. The defendant can rebut the information the government offers to prove these factors, can present argument as to the adequacy of the information, and can present argument as to whether it is appropriate to recommend a sentence of death based upon these factors. 18 U.S.C. § 3593(c). These factors are therefore not improper per se.
D. Juvenile Delinquency Adjudications Are Not Per Se Inadmissible
Although few courts have addressed the issue of whether a sentencing jury should be permitted to hear evidence of crimes the defendant committed as a juvenile, nothing in the FDPA indicates that it should not. As stated earlier, the FDPA provides that the jury "may consider whether any other aggravating factor for which notice has been given exists." Id. § 3592. Further, the Supreme Court has stated that "it [is] desirable for the jury to have as much information before it as possible when it makes the sentencing decision." 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.); see also Woodson v. North Carolina, 428 U.S. 280, 304, 49 L.Ed.2d 944, 96 S.Ct. 2978 (1976) (plurality opinion) ("[I]n capital cases the fundamental respect for humanity underlying the Eighth Amendment . . . requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death."); 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."); Williams v. New York, 337 U.S. 241, 247, 93 L.Ed. 1337, 69 S.Ct. 1079 (1949) ("Highly relevant — if not essential — to [the sentencer's] selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant's life and characteristics.").
The defendant argues that the FDPA categorically prohibits imposition of the death penalty for juvenile conduct because it states, "[N]o person may be sentenced to death who was less than 18 years of age at the time of the offense." 18 U.S.C. § 3591(b). The defendant interprets this provision to mean that the government cannot rely on criminal conduct committed by the defendant as a juvenile as an aggravating factor. The Court finds this argument without merit. The language "at the time of the offense" in section 3591(b) clearly means that the defendant cannot be sentenced to death if he committed the underlying offense(s) for which he is being prosecuted when he was less than eighteen years of age. For the same reason, the Court rejects defendant's interpretation of Thomas v. Oklahoma, 487 U.S. 837 (1988), which held that the Eighth Amendment prohibits the execution of an individual who was under sixteen years of age when he committed the offense making him eligible for the death penalty. Aggravating factors that consist of crimes defendant committed as a juvenile are not the underlying crimes for which the government seeks the death penalty against the defendant. Rather, they are factors to be weighed by the jury at the sentencing phase after the jury has found defendant guilty of the underlying crime(s) beyond a reasonable doubt, found he possessed the necessary mens rea beyond a reasonable doubt, and found at least one statutory aggravating factor beyond a reasonable doubt. Only after these "eligibility" factors have been found can defendant's past crimes committed as a juvenile be presented to the jury.
Specifically, the government seeks to introduce the following juvenile deliquency adjudications: (1) An adjudication as a juvenile delinquent on June 10, 1987, for the illegal carrying of a weapon. At the time of the offense, Davis was eleven years old; (2) an adjudication as a juvenile delinquent on January 10, 1989, for the illegal carrying of a weapon and resisting arrest. At the time of the offense, Davis was thirteen years old; and (3) an adjudication as a juvenile delinquent on October 29, 1991, for the illegal carrying of a weapon, resisting arrest, and battery of a police officer. At the time of the offense, Davis was fifteen years old. (Notice of Intent § III ¶¶ 1-3.) The government also seeks to introduce evidence of an adult conviction for armed robbery during which Davis and several other gunmen robbed a lounge and shot several victims. (Notice of Intent § III ¶ 4.) Davis was a juvenile at the time of the offense, but the government prosecuted and convicted him as an adult.
Defendant argues that prior acts proven by juvenile delinquency adjudications, rather than convictions, are inadmissible because the FDPA calls for convictions in the list of statutory aggravating factors. For the reasons stated in the previous section, the Court rejects this argument. If prior unadjudicated acts are admissible, then prior adjudications are also admissible.
Although the Court finds no impediment to the use of juvenile adjudications per se, it finds that the first juvenile adjudication for carrying a concealed weapon when defendant was eleven years old must be excluded. The first offense did not involve the use of the weapon, defendant was eleven years old, and the offense occurred more than ten years before any of the charged murders. Given defendant's age at the time of the offense, the remoteness in time of the offense, and that defendant did not use violence against anyone in the commission of the offense, the Court finds that its probative value on the issue of who should live and who should die is outweighed by the danger of unfair prejudice.
The second juvenile offense, committed when defendant was thirteen years old, is a closer question because defendant was two years older, and he not only carried a concealed weapon, but he also resisted arrest. The government did not provide any details about what defendant did to resist arrest, but since defendant's next juvenile adjudication included a charge of battering a police officer, it would appear that this earlier adjudication involved something less than that. On the other hand, although the conduct did not appear to involve the use of force, it again involved carrying a concealed weapon, and it shows an escalation in the level of defendant's criminal behavior from the first juvenile adjudication. As a general proposition, defendant's history with guns and of hostile encounters with the police is relevant to the inquiry before the jury. Nevertheless, given the defendant's young age at the time of this offense, the remoteness in time between this offense and the charged murders, and the absence of physically aggressive behavior, the Court will exclude it because its probative value is outweighed by potential prejudice.
The Court finds the third juvenile adjudication of a weapons charge, resisting arrest, and battery of a police officer to be admissible. Defendant was fifteen years old, and the crime involved a gun and physical aggression against a police officer. As noted, defendant's history with guns and hostile encounters with the police is relevant to the issue before the jury. The probative value of this evidence is not outweighed by the danger of unfair prejudice, because given the escalating pattern of defendant's criminal behavior as a juvenile, this evidence is not likely to be misleading.
The last juvenile conduct at issue was committed when defendant was sixteen years old and involved armed robbery with several others of a lounge, during which people were shot. Defendant was prosecuted and convicted as an adult of eleven counts of armed robbery. The Court finds this crime of violence to be highly relevant to the issue before the jury. It shows an escalation in defendant's criminal behavior as he got older. It reflects a continued and more dangerous involvement with guns. Defendant argues for exclusion of this factor, asserting that the jury may be misled into thinking that defendant committed eleven separate armed robberies on separate occasions rather than during one single episode, and asserting that defendant played a minor role in the crime. The suggested prospect of jury confusion is not a problem because the factor itself makes clear that this was a single criminal episode occurring at one location involving several victims. Further, whether defendant played a minor role in the crime is an issue for the defendant to present in rebuttal at the sentencing phase. 18 U.S.C. § 3593(c).
The government's Notice of Intent to Seek the Death Penalty states that defendant was also convicted of attempted murder. In response to defendant's argument that he pleaded guilty only to eleven counts of armed robbery and was never charged with attempted murder, the government noted that although it had a basis for including the attempted murder charge, it would amend its Notice to delete it. The FDPA authorizes amendments to the Notice, stating, "The court may permit the attorney for the government to amend the notice upon a showing of good cause." 18 U.S.C. § 3593(a).
The thrust of defendant's argument against the admission of these juvenile adjudications is that juveniles per se lack the physical, emotional, and cognitive development of adults, so that any evidence of juvenile conduct has little probative value. The Court finds that the weight to be given juvenile conduct based on the physical, emotional, and cognitive development of the juvenile is a matter to be considered by the jury as it weighs these aggravating factors in the sentencing process. Both parties will have the opportunity to inform the jury as to how much or how little importance they believe the jury should attach to defendant's juvenile conduct. 18 U.S.C. § 3593(c). Further, in addition to being able to challenge the seriousness of his juvenile behavior, the defendant will be able to provide information on the social, economic, psychological, or emotional deprivations he suffered as a juvenile to rebut the juvenile delinquency adjudications. Id. In summary, these juvenile adjudications, except for the first two, will not be stricken as nonstatutory aggravating factors.
E. Prior Adult Convictions Are Admissible
The government seeks to introduce defendant's 2001 adult conviction of being a felon in possession of a firearm. (Notice of Intent § III ¶ 5.) Defendant argues that this factor should be excluded because his guilty plea for that crime was obtained while the government was investigating him for the homicides at issue in this trial. Defendant seems to argue that he would not have pleaded guilty to this charge if he had known that it would later be used as a nonstatutory aggravating factor in a capital case against him. The defendant cites no law to support excluding a nonstatutory aggravating factor on such grounds, and the Court finds defendant's argument to be without merit. Moreover, the relevance of this factor is clear since the conduct occurred within the time frame of the firearm and drug conspiracy alleged in the indictment, and it shows continued involvement with dangerous weapons. The Court finds that the probative value of this felon-in-possession conviction is not outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury.
F. Victim Impact Evidence Is Admissible
The government seeks to introduce the following victim impact nonstatutory aggravating factor: "As demonstrated by the four victims' personal characteristics as individual human beings and the impact of their deaths upon their families, friends and co-workers, the defendant, Johnny Davis, caused injury, harm, and loss to the victim, their families, their friends and their co-workers." (Notice of Intent § III ¶ 10.) Defendant argues generally that victim impact evidence should be excluded from the sentencing phase of a capital trial and specifically that this factor, as written, is unconstitutionally vague.
Victim impact evidence is expressly permitted under the FDPA, described as "the effect of the offense on the victim and the victim's family." See 18 U.S.C. § 3593(a)(2). Moreover, the Supreme Court has held that use of victim impact evidence does not violate the Eighth Amendment. See Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597 (1991). In Jones v. United States, 527 U.S. 373, 400-01 (1999), a majority of the Supreme Court declined to decide whether the victim impact evidence proffered under section 3593(a)(2) in that case was unconstitutionally vague. The Notice in Jones provided, "[The victim's] personal characteristics and the effect of the instant offense on [the victim's] family constitute an aggravating factor of the offense." Id. at 378 n. 3. The plurality found that the "loosely drafted" terms have a core meaning that juries should be capable of understanding. Id. at 400-02. See also United States v. Barnette, 211 F.3d 803, 817-18 (4th Cir. 2000) (upholding the government's use of victim impact evidence to prove the nonstatutory aggravating factor which stated, "[T]he defendant caused harm to the [families] of [the victims] as a result of the impact of the killings on the [families]."); United States v. McVeigh, 944 F. Supp. 1478, 1491 (D. Colo. 1996), aff'd, 153 F.3d 1166 (10th Cir. 1998) (upholding a nonstatutory aggravating factor which stated, "Victim impact evidence concerning the effect of the defendant's offense on the victims and the victims' families, as evidenced by oral testimony and victim impact statements, that identify the victims of the offense(s) and the extent and scope of injury and loss suffered by the victims and victims' families."); United States v. Davis, 912 F. Supp. 938, 947 (E.D. La. 1996).
In light of the foregoing cases, the Court denies defendant's motion to strike victim impact evidence as a nonstatutory aggravating factor in this case. If defendant has objections to the specific victim impact evidence to be offered, the Court will consider this issue in connection with the sentencing hearing, if any.
G. Intentional Killing Factor Is Impermissibly Duplicative of Statutory Aggravating Factor Under 18 U.S.C. § 3592(c)(9)
The government's Notice of Intent to Seek the Death Penalty alleges the following statutory threshold finding provided for under 18 U.S.C. § 3591(a)(2)(A): "The defendant, Johnny Davis, intentionally killed Rodney Woods, Samuel Collins, Walter Naylor, and Leonard Morgan." (Notice of Intent § I ¶ 1 (emphasis added).) The government also alleges as a statutory aggravating factor "substantial planning and premeditation," which is listed in 18 U.S.C. § 3592(c)(9). The government alleges, "The defendant, Johnny Davis, committed the offense described in Counts Four, Six, Eight and Ten of the Second Superseding Indictment after substantial planning and premeditation to cause the death of Rodney Woods, Samuel Collins, Walter Naylor and Leonard Morgan." (Notice of Intent § II ¶ 2 (emphasis added).) Lastly, the government alleges a nonstatutory aggravating factor as follows: "The defendant, Johnny Davis, intentionally killed four separate individuals, at four different locations, at four different times, with the same Glock Model 27, .40 caliber semi-automatic pistol, bearing serial number AAD0979 with no justifiable reason." (Notice of Intent § III ¶ 11 (emphasis added).) Defendant appears to argue that this nonstatutory aggravating factor is invalid because it is impermissibly duplicative of both the statutory threshold mens rea factor and the statutory aggravating factor, which would result in double-counting in the jury's weighing process. The Court finds that the nonstatutory aggravating factor is impermissibly duplicative of the statutory aggravating factor and, for this reason, it must be stricken.
The government also alleges the other three statutory threshold findings of mental culpability provided for in section 3591(a)(2) of the FDPA.
Relying on the Supreme Court's ruling in Stringer v. Black, 503 U.S. 222, 230-32, 112 S.Ct. 1130 (1992), the Tenth Circuit has held that when one aggravating factor "necessarily subsumes" another, "such double counting of aggravating factors, especially under a weighing scheme, has a tendency to skew the weighing process and creates the risk that the death sentence will be imposed arbitrarily and thus, unconstitutionally." United States v. McCullah, 76 F.3d 1087, 1111, reh'g denied en banc, 87 F.3d 1136 (10th Cir. 1996), cert. denied, 520 U.S. 1213, 117 S.Ct. 1699. The Fourth and Fifth Circuits have followed the Tenth's Circuit lead. The Fourth Circuit has held that "a submission [of multiple overlapping aggravating factors] . . . that permits and results in cumulative findings of more than one of the . . . circumstances as an aggravating factor is constitutional error." United States v. Tipton, 90 F.3d 861, 899 (4th Cir. 1996) (citing McCullah, 76 F.3d at 1111). Similarly, the Fifth Circuit has held that "double counting of aggravating factors creates the risk of an arbitrary death sentence." United States v. Jones, 132 F.3d 232, 251 (5th Cir. 1998). The Supreme Court, in affirming Jones, declined to state affirmatively whether it approved of the Tenth, Fourth and Fifth Circuits' double counting approach. See Jones v. United States, 527 U.S. 373, 398, 119 S.Ct. 2090 (1999). The Supreme Court merely reiterated its previous holding that "the weighing process may be impermissibly skewed if the sentencing jury considers an invalid factor." Id. (citing Stringer v. Black, 503 U.S. 222, 232, 112 S.Ct. 1130 (1992)).
The Court finds that the nonstatutory aggravating factor of an intentional killing duplicates the statutory aggravating factor of killing with substantial planning and premeditation. These factors are impermissibly duplicative because they substantially overlap with one another and would result in a skewed weighing process if both were considered by the jury. The government essentially concedes as much and seeks to amend its Notice of Intent to exclude this factor. The Court permits the government to amend its Notice pursuant to 18 U.S.C. § 3593(a), and hereby grants defendant's motion to strike this nonstatutory aggravating factor from the Notice.
The government argues as a side note that the evidence of defendant's use of the same firearm during four murders without justification renders this nonstatutory aggravating factor different than the statutory aggravating factor alleging substantial planning and premeditation. As the district court held in United States v. Bin Laden, 126 F. Supp.2d 290, 299 (S.D.N.Y. 2001), "[T]he striking of such a duplicative aggravating factor does nothing to exclude the evidence that would otherwise have been proffered in support of the rejected factor. All such evidence, by definition, is necessarily subsumed under the surviving umbrella aggravator and thus remains relevant and admissible."
H. Lack of Remorse Factor and Low Rehabilitative Potential Factors Are Admissible
The defendant moves to exclude evidence of the nonstatutory aggravating factor alleged by the government that defendant "has demonstrated a lack of remorse for his criminal conduct." (Notice of Intent § III ¶ 12.) Defendant argues that, under the district court's holding in Davis, 912 F. Supp. 938, this aggravator is impermissibly vague. The Davis court stated:
Lack of remorse is a subjective state of mind, difficult to gage objectively since behavior and words don't necessarily correlate with internal feelings. In a criminal context, it is particularly ambiguous since guilty persons have a constitutional right to be silent, to rest on a presumption of innocence and to require the government to prove their guilt beyond a reasonable doubt. To allow the government to highlight an offender's "lack of remorse" undermines those safeguards. Without passing on whether lack of remorse is per se an inappropriate independent factor to consider, the court finds it inappropriate in this case. The only information proposed to sustain the factor is [defendant's] alleged jubilation in learning that [the victim] had been killed. The government does not propose to introduce evidence of continuing glee, or boastfulness, or other affirmative words or conduct that would indicate a pervading and continuing lack of remorse. Furthermore, as already noted, the allegation of lack of remorse encroaches dangerously on an offender's constitutional right to put the government to its proof.Id. at 946. Although the Davis court did not allow "lack of remorse" to be alleged as a separate aggravating factor, it stated that it would allow the government to present evidence of the defendant's alleged exultation to prove "future dangerousness." Id.
There is no per se constitutional problem with a "lack of remorse" factor. See Zant v. Stephens, 462 U.S. 862, 885 n. 22, 103 S.Ct. 2733 (1983) ("Any lawful evidence which tends to show the motive of the defendant, his lack of remorse, his general moral character, and his predisposition to commit other crimes is admissible in aggravation") (quoting Fair v. State, 245 Ga. 868, 268 S.E.2d 316, 321 (Ga.), cert. denied, 449 U.S. 986, 101 S.Ct. 407 (1980)). Nor does the factor appear to duplicate any other aggravating factor alleged by the government. (Notice of Intent § III ¶ 6.) See McCullah, 76 F.3d at 1111-12. It does not duplicate the factor, "low rehabilitative potential," because the government relies on different evidence to show low rehabilitative potential, and because a defendant could have a lack of remorse for the crime in issue without also having a low rehabilitative potential. See United States v. Nguyen, 928 F. Supp. 1525, 1542 (D. Kan. 1996) ("[A] defendant could have a lack of remorse without representing a continuing threat to others, and vice versa."). Further, the government does not intend to rely on mere silence as proof of lack of remorse. Rather, in this case, unlike in Davis, the government says it will "introduce evidence of continuing glee, or boastfulness, or other affirmative words or conduct that would indicate a pervading and continuing lack of remorse." Davis, 912 F. Supp. at 946. The Court, therefore, finds Davis distinguishable, and it will not strike lack, of remorse as an aggravating factor, subject to the government's satisfying the requirements of reliability and relevance as to the specific evidence it proffers.
The defendant also moves to exclude evidence of the nonstatutory aggravating factor that "while incarcerated [he] has demonstrated contempt for the criminal justice system and his low rehabilitative potential, by soliciting the assistance of a co-defendant to kill a cooperating Government witnesses [sic] in this case." (Notice of Intent § III ¶ 6.) Defendant again relies on Davis.
In Davis, unlike this case, the government alleged "future dangerousness" and "low rehabilitative potential," along with other non-statutory aggravating factors. See Davis, 912 F. Supp. at 944, 946. In support of the "low rehabilitative potential" factor, the government intended to offer evidence that defendant, a former police officer, had been reprimanded and suspended, was protecting a drug trafficking ring, and was willing to arrange the murder of a witness against him. Id. at 946. The Davis court found that the future dangerousness factor was proper, but dismissed the low rehabilitative potential factor, stating:
The term "low rehabilitative potential" is too vague. Rehabilitative potential for what? The only relevant issue would be [defendant's] rehabilitative potential for becoming a non-threat to the health and safety of others. With that limitation, it becomes the converse of future dangerousness. It may therefore be combined with the second nonstatutory factor [future dangerousness], but it is not appropriate as a separate freestanding factor. Since this is a statute in which the jury is to "weigh" aggravating factors versus mitigating factors, there is always the danger that one or more jurors will weigh by counting. Breaking out what is essentially one factor into separately itemized factors is unduly prejudicial and confusing.Id. In sum, the Davis court ultimately excluded the low rehabilitative potential factor because it was duplicative of the future dangerousness factor and was more properly subsumed under the latter factor. In other words, the Davis court did not, in the end, reject the factor of low rehabilitative potential, but converted it into a subcategory of future dangerousness. See also Nguyen, 928 F. Supp. at 1543-44 (citing Davis, 912 F. Supp. at 946; McCullah, 76 F.3d at 1111-12) (although "future dangerousness" and "low potential for rehabilitation" are not identical, the two factors "substantially overlap with one another."). This problem of overlap does not exist in this case; the only possible overlap is between low rehabilitative potential and lack of remorse, and the Court has already found these factors to be non-duplicative.
The only issue that remains, therefore, is whether low rehabilitative potential is too vague, as the Davis court may have suggested. The Court does not find that this factor is impermissibly vague because the concept of examining a defendant's rehabilitative potential is firmly rooted in criminal sentencing practices. In United States v. Spivey, 958 F. Supp. 1523, 1535 (D. N.M. 1997), the court pointed out the well-known role that rehabilitative potential plays in the criminal justice system: "The concept of potential for rehabilitation is commonly understood and utilized in criminal law. The criminal justice system regularly assesses a defendant's potential for rehabilitation, as, for example, when a court determines the appropriate sentence and when parole authorities consider a prisoner's application for parole." The Spivey court based its analysis on Jurek v. Texas, 428 U.S. 262, 275-76 (1976), in which the Supreme Court held that "future dangerousness" is not a vague aggravating factor because its definition and evaluation are essential and common functions of the criminal justice system. Further, although defendant relies on Nguyen, that case is distinguishable. Nguyen acknowledged that in McCullah, the Tenth Circuit relied on the jury's finding that "repeated attempts to rehabilitate the defendant . . . or deter him from future criminal behavior have been unsuccessful." Nguyen, 928 F. Supp. at 1544 n. 15 (quoting McCullah, 76 F.3d at 1108). Nguyen drew the obvious conclusion that under McCullah, low rehabilitative potential is a "constitutionally proper" factor for a jury to consider. See id. (citing McCullah, 76 F.3d at 1106). Nguyen distinguished McCullah, however, because the government in McCullah did not also allege a duplicative factor such as "future dangerousness," as it had done in Nguyen. See id. The clear implication of Nguyen and McCullah is that "low rehabilitative potential" may be an aggravating factor if the government does not also assert "future dangerousness."
Based on the foregoing analysis, the Court finds that the "low rehabilitative potential" factor is not too vague to be constitutional.
III. CONCLUSION
Accordingly, the Court grants defendant's motion to exclude evidence relating to nonstatutory aggravating factors in part and denies it in part.