Opinion
Case No. 04-60216-CR-COHN/SNOW.
April 27, 2005
THIS CAUSE is before the Court on Defendant Wilk's Motion to Dismiss or Strike the Government's Death Notice Because the Government Has Not Obtained an Indictment Consistent With the Requirements of the Fifth Amendment [DE #380]. The Court has considered the motion, the government's response [DE #416], and is otherwise duly advised in the premises.
Defendant asserts that the government's Death Notice should be stricken because the government has not obtained an indictment from the Grand Jury consistent with the requirements of the Fifth Amendment. More specifically, Defendant alleges that the government presented to the grand jury those elements purportedly necessary to make Mr. Wilk "death-eligible" for Eighth Amendment purposes. However, the government did not inform the grand jury that by returning the indictment, Defendant Wilk would be held to answer to an offense punishable by death.
The Court finds that the Superceding Indictment satisfies the requirements of the Indictment Clause and the Fifth Amendment in that it provides the defendant with clear notice of the mens rea and statutory aggravating factors which the government intends to prove during the sentencing hearing. The Supreme Court has stated that it is "sufficient for an indictment to set forth the offense in the words of the statute itself, as long as these words . . . set forth the elements necessary to constitute the offense intended to be punished." See Hamling, 418 U.S. 87, 117 (1974). Here, the special findings are based on language from 18 U.S.C. §§ 3591 3592. In addition, the Court finds that the grand jury's role is not to decide whether probable cause supports the imposition of a particular sentence against a charged individual, but rather to check the existence of probable cause for the essential elements of the charged offense. See United States v. Haynes, 269 F. Supp. 2d 970, 981 (W.D. Tenn. 2003). Therefore, the Court concludes that the Superceding Indictment does not violate the Fifth Amendment. Accordingly, it is
ORDERED AND ADJUDGED that Defendant Wilk's Motion to Dismiss or Strike the Government's Death Notice Because the Government Has Not Obtained an Indictment Consistent With the Requirements of the Fifth Amendment [DE #380] is hereby DENIED.