U.S. v. Foster

Full title: UNITED STATES OF AMERICA v. AARON DEMARCO FOSTER, et al

Court: United States District Court, D. Maryland

Date published: Jan 27, 2004

Criminal No. CCB-02-0410 (D. Md. Jan. 27, 2004)

Opinion

Criminal No. CCB-02-0410

January 27, 2004

ORDER

CATHERINE BLAKE, District Judge

Now pending before the court are several motions filed by the defendants related to the validity of the Federal Death Penalty Act ("FDPA"), 18 U.S.C. § 3591-98. The issues raised are serious and have been carefully considered. Oral argument was heard on December 10, 2003.

Time does not permit me to add to the list of lengthy and thoughtful opinions written by judges in this Circuit and elsewhere. I will simply cite to the cases I find controlling and/or persuasive as necessary in stating my rulings.

1. Defendant Michael Taylor's Motion to Adopt Previously Filed Death Penalty Motions (docket no. 188), and defendant Keon Moses's similar motion (docket no. 119), are GRANTED;

2. Defendant Keon Moses's Motion for Pretrial Ruling on Sufficiency and/or Reliability of Evidence Supporting Aggravating Factors (docket no. 115) is DENIED. See United States v. Regan, 228 F. Supp.2d 742, 749, 754 (E.D. Va. 2002);

3. Defendant Michael Taylor's Motion to Dismiss Death Notice Because of Discrimination Based on Race and Geographical Location (docket no. 123), and defendant Keon Moses's similar motion to dismiss and for discovery (docket no. 116), are DENIED. The "demanding" standard set forth inUnited States v. Armstrong, 517 U.S. 456, 463, 465, 468-69 (1996) has not been met. See also United States v. Olvis, 97 F.3d 739, 743-44 (4th Cir. 1996); United States v. Edelin, 134 F. Supp.2d 59, 87-89 (D.D.C. 2001); United States v. Johnson, 136 F. Supp.2d 553, 565-66 (W.D. Va. 2001);

4. Defendant Michael Taylor's Motion to Strike Death Penalty Aspects Based on the Risk That An Innocent Person Will Be Executed (docket no. 120) is DENIED. See United States v. Ouinones, 313 F.3d 49 (2d Cir. 2002); United States v. Ouinones, 317 F.3d 86 (2d Cir. 2002); United States v. Sampson, 275 F. Supp.2d 49, 54-60 (D. Mass. 2003); United States v. Denis, 246 F. Supp.2d 1250, 1252-54 (S.D. Fla. 2002); United States v. Church, 217 F. Supp.2d 700 (W.D. Va. 2002);

5. Defendant Michael Taylor's Motion to Declare FDPA Unconstitutional and Strike Notice of Special Findings (Ring Motion) (docket no. 121) is DENIED. In this case, the mens rea elements and aggravating factors required under the FDPA were alleged in the indictment. That is sufficient to satisfy Ring v. Arizona, 536 U.S. 584 (2002). See United States v. Higgs, ___ F.3d ___, 2003 WL 22992273, at *16-17 (4th Cir. 2003); United States v. Jackson, 327 F.3d 273, 289 (4th Cir. 2003); United States v. Haynes, 269 F. Supp.2d 970, 979-83 (W.D. Tenn. 2003). The FDPA's failure to require inclusion of the mens rea elements and aggravating factors in the indictment does not render the Act unconstitutional.See Sampson, 275 F. Supp.2d at 95; Haynes, 269 F. Supp.2d at 982-83; United States v. Sampson, 245 F. Supp.2d 327, 330-38 (D. Mass. 2003); United States v. Lentz, 225 F. Supp.2d 672, 679-81 (E.D. Va. 2002);

6. Defendant Michael Taylor's Motion to Preclude a Penalty Phase Hearing and Imposition of the Death Penalty Because the FDPA Is Unconstitutional (docket no. 122) is DENIED. The sentencing scheme established under the FDPA is comprehensible, and sufficiently narrows the class of persons eligible for the death penalty. See Regan, 228 F. Supp.2d at 746-47; United States v. Llera Plaza, 179 F. Supp.2d 444, 449-52 (E.D. Pa. 2001); United States v. Cooper, 91 F. Supp.2d 90, 96-97 (D.D.C. 2000). The relaxed evidentiary standard under 18 U.S.C. § 3593(c) does not render the Act unconstitutional, and is flexible enough to allow the court to exclude any evidence that would violate the defendants' constitutional rights. See United States v. Jones, 132 F.3d 232, 241-42 (5th Cir. 1998); Lentz, 225 F. Supp.2d at 682-84; United States v. Frank, 8 F. Supp.2d 253, 268-70 (S.D.N.Y. 1998). The standard also may exclude a greater amount of prejudicial evidence than under the Federal Rules of Evidence, and allow the defendant to introduce a broader scope of mitigating evidence.See Jones, 132 F.3d at 241-42; Lentz, 225 F. Supp.2d at 683; Frank, 8 F. Supp.2d at 268-69. The court defers a ruling at this time on whether and to what extent the government nonetheless may be required to comply with the Federal Rules of Evidence during the sentencing phase.

The use of nonstatutory aggravators does not render the sentencing procedure arbitrary, violate the non-delegation doctrine or the ex post facto clause, or require proportionality review. See Higgs, ___ F.3d at ___ 2003 WL 22992273, at *50-53; Llera Plaza, 179 F. Supp.2d at 453-57; Frank, 8 F. Supp.2d at 264-67, 272-73. The preclusion of mitigating evidence regarding the race, color, religious beliefs, national origin, or sex of the defendant or of any victim under 18 U.S.C. § 3593(f) is constitutional. See United States v. Webster, 162 F.3d 308, 355-57 (5th Cir. 1998); Llera Plaza, 179 F. Supp.2d at 459-60; United States v. Minerd, 176 F. Supp.2d 424, 434-35 (W.D. Pa. 2001). The requirement of approval from the government in order for the defendant to be sentenced by the judge under 18 U.S.C. § 3593(b)(3) is constitutional. See Llera Plaza, 179 F. Supp.2d at 461; Cooper, 91 F. Supp.2d at 102-03. The remand provision of 18 U.S.C. § 3595(c)(2) does not violate the Double Jeopardy Clause. See Llera Plaza, 179 F. Supp.2d at 462;Cooper, 91 F. Supp.2d at 99-100.

7. Defendant Michael Taylor's Motion to Strike the Notice of Intent to Seek the Death Penalty (docket no. 124) is DENIED. The notice of intent to seek the death penalty may allege more than one of the requisite mens rea elements under 18 U.S.C. § 3591(a)(2). See United States v. Illera Plaza, 179 F. Supp.2d 464, 479-80 (E.D. Pa. 2001); Cooper, 91 F. Supp.2d at 109-10. The statutory aggravating factors of grave risk of death to additional persons and substantial planning and premeditation, and the nonstatutory factor of victim impact, sufficiently narrow the class of persons eligible for the death penalty and are not so vague, arbitrary, or subjective as to be per se unconstitutional. See United States v. Barnette, 211 F.3d 803, 817-20 (4th Cir. 2000); Jackson, 327 F.3d at 301;Illera Plaza, 179 F. Supp.2d at 490-91; Llera Plaza, 179 F. Supp.2d at 451-52; Minerd, 176 F. Supp.2d at 438-39, 448. The nonstatutory aggravating factor of other murders and acts of violence is not precluded by the FDPA's provisions, does not amount to impermissible double-counting, and is not so vague, arbitrary, or subjective as to be per se unconstitutional. See Higgs, ___ F.3d ___, 2003 WL 22992273, at *42-43, 53-54; Cooper, 91 F. Supp.2d at 106-07, 109; Frank, 8 F. Supp.2d at 279-80.

The court defers a ruling at this time on ordering the government to provide additional information regarding the factual basis for the alleged mens rea elements and aggravating factors and/or ordering a pre-sentencing hearing on the admissibility of the government's evidence.Cf. Illera Plaza, 179 F. Supp.2d at 469-70; Frank, 8 F. Supp.2d at 278-79. The court also defers a ruling on whether and to what extent the government may introduce evidence of the impact of a victim's death on the victim's friends under the victim impact aggravating factor. Cf. United States v. Nelson, 347 F.3d 701, 713-14 (8th Cir. 2003) (affirming the admission of victim impact testimony, pursuant to the FDPA, from both family members and friends of the victim).

SO ORDERED.