Opinion
CASE NO. CR 99-838 NM
June 7, 2000
ORDER TO DENYING DEFENDANTS MOTION TO PRECLUDE IMPOSITION OF THE DEATH PENALTY.
At the June 5, 2000 hearing on Defendant's Motion to Preclude Imposition of the Death Penalty, the court stated its belief that, based on the arguments contained in the parties' briefs, as well as the rulings of numerous other courts that have addressed similar or identical claims, the Federal Death Penalty Act is not constitutionally infirm on its face or as applied to the instant case. While indicating its intention to deny Defendant's motion, the court reserved final ruling pending its review of the Supreme Court's decision in United States v. Castillo, No. 99-658, 2000 Daily Journal D.A.R. 5821 (June 5, 2000), brought to the court's attention by defense counsel. Having reviewed theCastillo decision, the court finds that the government's failure to include the "gateway" intent factors of 18 U.S.C. § 3591 (a)(2) in the indictment does not render the indictment constitutionally deficient. See United States v. Cooper, 91 F. Supp.2d 90, 104 (2000). Either by its terms or by reference, each of the charged offenses in the instant case carries a potential sentence of death, of which defendant was on notice at the time the indictment was returned. Furthermore, there is no risk that any of the capital sentencing factors will not be determined by a jury. Compare Castillo, 2000 Daily Journal D.A.R. at 5823; Jones v. United States, 526 U.S. 227, 243-45 (1999). The fact that a subset of defendants charged with those offenses might not receive the death penalty does not deprive this defendant of any constitutional right; nor does it "rais[e] the ceiling of the sentencing range available." Jones, 526 U.S. at 251. Accordingly, defendant's motion isdenied.
IT IS SO ORDERED.