Opinion
Case No. 04-60216-CR-COHN/SNOW.
April 15, 2005
ORDER
THIS CAUSE is before the Court on defendant Kenneth Paul Wilk's Motion to Strike Aggravating Factors (DE 352) and Motion to Dismiss or Strike the Four Mental State Gateway Factors Because the Government Does Not Identify the Mental State on Which it Seeks to Authorize a Death Sentence, But Rather Asserts Every Mental State Applicable to Any Homicide Thus Failing to Give Defendant Notice of the Aggravating Circumstance He Must Defend Against in Violation of Due Process, Promoting a Skewed Weighting of the Class of Defendants Subject to Capital Punishment in Violation of the Eighth Amendment (DE 336), which were referred to United States Magistrate Judge, Lurana S. Snow, for report and recommendation. Both motions are directed toward the Government's Notice of Intent to Seek the Death Penalty.
Subsequent to the filing of these motions, the Government has filed, with leave of court, an Amended Notice of Motion to Seek the Death Penalty (DE 357). The Amended Notice adds a reference to a new count charged in the Second Superseding Indictment, but otherwise is identical to the original Notice.
DISCUSSION
1. Motion to Strike Aggravating FactorsThe defendant argues that the aggravating factors set forth in the Government's Notice fail to apprise him of the nature of the aggravating factors with sufficient particularity to enable him to prepare his defense. The defendant argues that the allegations are too general, with virtually no specification of their factual basis.
The Notice lists the following statutory aggravating factors, pursuant to 18 U.S.C. § 3592(c):
1. Substantial Planning and Premeditation. The defendant, Kenneth Paul Wilk, committed the offense after substantial planning and premeditation to cause the death of a person which resulted in the death of Todd M. Fatta. Title 18, United States Code, Section 3592(c)(9).
2. Multiple Killings. The defendant, Kenneth Paul Wilk, killed or attempted to kill more than one person, that is, Todd M. Fatta and Angel Cedeno, in the same criminal episode. Title 18, United States Code, Section 3592(c)(5).
3. Grave risk of death to additional persons. The defendant, Kenneth Paul Wilk, in the commission of the offenses knowingly created a grave risk of death to one or more person in addition to the victim of the offense. Title 18, United States Code, Section 3592(c)(5).
Additionally, the Notice sets forth the following non-statutory aggravating factors, pursuant to 18 U.S.C. § 3593(a)(2):
1. Obstruction of justice. The victim was killed in an effort by the defendant, Kenneth Paul Wilk, to obstruct justice, tamper with a witness, or in retaliation for cooperating with authorities.
2. Contemporaneous convictions. The defendant, Kenneth Paul Wilk, may be convicted of, in addition to the capital offenses, attempted premeditated murder in Count Two of the Indictment, and threats of force to obstruct justice in Count Four of the Indictment.
3. Future dangerousness. The defendant, Kenneth Paul Wilk, is a danger to the lives and safety of other persons, as evidenced by specific threats of violence, a continuing pattern of violence, specific admissions of violence, low rehabilitative potential and a lack of remorse. Simmons v. South Carolina, 512 U.S. 154, 162 (1994). In addition to the offenses charged in the Indictment and the statutory and non-statutory aggravating factors alleged in this Notice, the circumstances which demonstrate his future dangerousness include: the defendant's pattern of criminal conduct; incidents of threats to law enforcement officers; his demonstrated low rehabilitative potential; and his lack of remorse for his criminal activities which have caused significant damage to the community and the victims and their families.
4. Victim Impact. The defendant, Kenneth Paul Wilk, caused injury, harm, and loss to the friends and family of Todd M. Fatta because of Todd M. Fatta's personal characteristics as an individual human being and the impact of his death upon those persons. See Payne v. Tennessee, 501 U.S. 808, 825-27 (1991).
The defendant objects to the statutory and non-statutory aggravating factors on the grounds that they are alleged as part of an unconstitutional statutory scheme and in violation of the Fifth Amendment, overbroad, vague, not particularly relevant, unconstitutionally duplicitous, unfairly prejudicial, confusing and misleading and insufficient under the "heightened reliability" standard. The defendant also challenges the non-statutory aggravating factors on the basis that they are unconstitutional for reasons discussed in his motion to Declare The Federal Death Penalty Act Unconstitutional Because of its Unconstitutional Treatment, Use and Authorization of Aggravating Factors, and for its Failure to Provide a Standard for Jurors to Employ in Balancing Aggravating and Mitigating Factors (DE 347); and specifically objects to each individual factor.
The defendant's constitutional arguments should be rejected for the reasons set forth the report and recommendation issued by the undersigned in connection with the Motion to Dismiss, and his remaining objections are meritless. The pleading requirements of Fed.R.Crim.P. Rule 7(c) do not apply to aggravating factors under the FDPA. United States v. Nguyen, 928 F.Supp. 1525, 1545 (D.Kan. 1996). The listed factors provide the defendant with sufficient information to prepare his defense, especially when these factors are read in connection with the allegations of the Second Superseding Indictment, and no bill of particulars is required. Clark v. Dugger, 834 F.2d 1561, 1566 (11th Cir. 1987).
Most of the specific aggravating factors to which the defendant objects have been upheld in prior federal cases. United States v. Allen, 247 F.3d 741, 786-87 (8th Cir. 2001) (grave risk of death to persons other than the victims of the offense); United States v. McVeigh, 944 F.Supp. 1478, 1490 (substantial planning and preparation); United States v. Spivey, 958 F.Supp. 1523, 1534 (D.N.Mex. 1997) (future dangerousness); Payne v. Tennessee, 501 U.S. 808 (1991) (victim impact); United States v. Minerd, 176 F.Supp.2d 424, 447 (W.D.Pa. 2001) (multiple killings not duplicative of intent factors); United States v. Cooper, 91 F.Supp.2d 90, 112-13 (D.D.C. 2000) (lack of remorse). To the extent that the defendant objects to the factual basis for the alleged aggravating factors, his challenge is premature.
2. Motion to Dismiss or Strike Mental State Gateway Factors
The Government's Notice alleges the following statutory proportionality factors under 18 U.S.C. § 3591(a)(2)(A)-(D):
1. Intentional Killing. The defendant, Kenneth Paul Wilk, intentionally killed Todd M. Fatta. Section 3591 (a) (2)(A).
2. Intentional Infliction of Serious Bodily Injury. The defendant, Kenneth Paul Wilk, intentionally inflicted serious bodily injury that resulted in the death of Todd M. Fatta. Section 3591 (a) (2)(B).
3. Intentional Participation in an Act Contemplating Lethal Force. The defendant, Kenneth Paul Wilk, intentionally participated in an act, contemplating that a life of a person would be taken and intending that lethal force would be used in connection with a person, other than one of the participants in the offense, and Todd M. Fatta died as a direct result of the act. Section 3591(a) (2) (C).
4. Intentional Acts in Reckless Disregard for Life. The defendant, Kenneth Paul Wilk, intentionally and specifically engaged in an act of violence, knowing that the act created a grave risk of death to a person, other than one of the participants in the offense, such that participation in the act constituted a reckless disregard for human life, and Todd M. Fatta died as a direct result of the act. Section 3591(a)(2)(D).
The defendant objects to the inclusion of each of the four mental states, only of which is required to support the imposition of the death penalty in a homicide case. He argues that three of these alleged mental states should be stricken.
The defendant's argument was rejected in United States v. Webster, 162 F.3d 308, 355 (5th Cir. 1998):
§ 3591(a) does not set forth aggravating factors, but rather serves as a preliminary qualification threshold. The fact that a defendant could satisfy more than one of these via the same course of action does not, therefore, constitute impermissible double counting.
There is no legal basis to strike the mental state factors set forth in the Government's Notice, and this motion likewise should be denied.
CONCLUSION
For the foregoing reasons, it is herebyORDERED and ADJUDGED that the defendant's Motion to Strike Aggravating Factors (DE 352) and motion to Dismiss or Strike the Four Mental State Gateway Factors Because the Government Does Not Identify the Mental State on Which it Seeks to Authorize a Death Sentence, But Rather Asserts Every Mental State Applicable to Any Homicide Thus Failing to Give Defendant Notice of the Aggravating Circumstance He Must Defend Against in Violation of Due Process, Promoting a Skewed Weighting of the Class of Defendants Subject to Capital Punishment in Violation of the Eighth Amendment (DE 336) are DENIED.
DONE AND ORDERED.