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United States v. Mills

United States District Court, E.D. Michigan, Southern Division

July 11, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
EDWIN MILLS, et al., Defendants.

          OPINION & ORDER DENYING DEFENDANTS EDWIN MILLS AND CARLO WILSON'S JOINT MOTIONS REGARDING THE CONSTITUTIONALITY OF THE FEDERAL DEATH PENALTY (DKT. 789) AND THE FEDERAL DEATH PENALTY ACT (DKTS. 773, 787, 788, 790)

          MARK A. GOLDSMITH, UNITED STATES DISTRICT JUDGE.

         This criminal case involves multiple defendants, all of whom have been charged with violating the Racketeering Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961 et seq. Defendants Edwin Mills and Carlo Wilson have filed several joint motions, arguing that the federal death penalty in general is unconstitutional (Dkt. 789), and that the Federal Death Penalty Act of 1994 (“FDPA”), 18 U.S.C. § 3591 et seq., in particular is unconstitutional (Dkts. 773, 787, 788, 790). The Government filed responses in opposition to these five motions (Dkts. 798, 793, 799, 815, 800, respectively), to which Defendants replied (Dkts. 836, 833, 837, 839, 838, respectively).[1] For the reasons stated below, the Court denies Defendants' motions.

         I. BACKGROUND

         A federal grand jury returned a second superseding indictment on February 28, 2018, charging the eleven defendants in this case with various crimes, including violations of RICO. See generally 2d Superseding Indictment (Dkt. 292).[2] That indictment claims that Defendants were members and associates of a criminal enterprise-the “6 Mile Chedda Grove” street gang in Detroit-one of whose purposes was to “preserv[e] and protect[] the power, territory, reputation, and profits of the enterprise through murder, robberies, intimidation, violence, and threats of violence.” Id. at 2, 6. The enterprise purportedly operated on the east side of Detroit within an area bordered roughly by East McNichols Road to the north, Kelly Road to the east, Houston-Whittier Street to the south, and Chalmers Street to the west. Id. at 2. The “Chedda Grove” part of the enterprise's name is partially derived from one of the main streets in this territory- Cedargrove Street. Id.

         The indictment further alleges that the enterprise's profits derived primarily from the sale and distribution of controlled substances, including crack cocaine, heroin, and morphine. Id. at 5. The sale and distribution alleged were not limited to Michigan; gang members and associates purportedly sold and distributed controlled substances in Ohio, Kentucky, Tennessee, Alabama, and West Virginia. Id.

         Defendants Edwin Mills and Carlo Wilson have each been charged with one count of racketeering conspiracy in violation of 18 U.S.C. § 1962(d) (Count One); two counts of murder in aid of racketeering in violation of 18 U.S.C. § 1959(a)(1) (Count Eight involves victim A.T.; Count Ten involves victim S.H.); two counts of using and carrying a firearm during and in relation to a crime of violence causing death in violation of 18 U.S.C. §§ 924(c) and 924(j) (Count Nine involves victim A.T.; Count Eleven involves victim S.H.); two counts of assault with a dangerous weapon in aid of racketeering in violation of 18 U.S.C. § 1959(a)(3) (Count Twelve involves victim M.A.; Count Thirteen involves victim T.M.); and one count of using, carrying, and discharging a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c) (Count Fourteen, based on Counts Twelve and Thirteen). See generally 2d Superseding Indictment. On March 1, 2018, the Government filed its notice of intent to seek a sentence of death against both Mills and Wilson (Dkt. 293). Defendants' trial is set to begin on April 21, 2020. See 8/31/2018 Order at 3 (Dkt. 475).

         II. DISCUSSION

         Defendants contend that the federal death penalty in general is unconstitutional in violation of the Fifth and Eighth Amendments (Dkt. 789). Defendants further argue that the FDPA is unconstitutional in violation of the Fifth, Eighth, and the Tenth Amendments (Dkt. 773, 787, 788). Defendants also filed a joint motion to strike the statutory and non-statutory aggravating factors from the notice of intent to seek the death penalty based on the unconstitutionality of the FDPA (Dkt. 790).

         Several legal standards guide the Court in addressing the merits of these motions. For example, because “it is settled that capital punishment is constitutional, ” Glossip v. Gross, 135 S.Ct. 2726, 2732 (2015), the Court presumes that the FDPA is constitutional, see United States v. Sampson, 486 F.3d 13, 20 (1st Cir. 2007) (citing I.N.S. v. Chadha, 462 U.S. 919, 944 (1983)), cert. denied, 553 U.S. 1035 (2008); see also Gregg v. Georgia, 428 U.S. 153, 175 (1976) (plurality opinion) (“[I]n assessing a punishment selected by a democratically elected legislature against the constitutional measure, we presume its validity.”). Defendants bear the heavy burden of proving that the FDPA is unconstitutional. Sampson, 486 F.3d at 20 (citing Lujan v. G & G Fire Sprinklers, Inc., 532 U.S. 189, 198 (2001)). On the one hand, for Defendants to succeed on their facial challenges, they must show that “no set of circumstances exists under which the [FDPA] would be valid.United States v. Salerno, 481 U.S. 739, 745 (1987) (“A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully.”). On the other hand, in reviewing Defendants' as-applied challenges, the Court must examine only the particular parties and facts of the case before it, not merely whether the FDPA could be construed as unconstitutional is some hypothetical situation. See United States v. Kernell, 667 F.3d 746, 750 (6th Cir. 2012) (citing United States v. Krumrei, 258 F.3d 535, 537 (6th Cir. 2001)); accord Women's Med. Prof'l Corp. v. Voinovich, 130 F.3d 187, 193 (6th Cir. 1997). Last, when the Supreme Court has directly decided an issue, this Court must “follow the case [that] directly controls, leaving to [the Supreme] Court the prerogative of overruling its own decisions.” Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989).

         The Court will begin by addressing Defendants' motions regarding the constitutionality of the FDPA, and then turn its attention to the constitutionality of the federal death penalty in general.

         A. Constitutionality of the Federal Death Penalty Act

         The FDPA defines the circumstances under which a defendant who commits certain federal crimes may be eligible for the death penalty. See Jones v. United States (“Louis Jones”), 527 U.S. 373, 376-379 (1999); United States v. Lawrence, 555 F.3d 254, 263-264 (6th Cir. 2009). Here, there is no dispute that Defendants' charges under 18 U.S.C. § 1959(a) and 18 U.S.C. § 924(j) are qualifying capital offenses. See 18 U.S.C. § 3591(a)(2). After a defendant is found guilty of a death-penalty eligible crime, a separate sentencing hearing follows “to determine the punishment to be imposed, ” 18 U.S.C. § 3593(b), during which the jury must make three determinations before a defendant can be sentenced to death.

         First, the jury must find, unanimously and beyond a reasonable doubt, that the defendant had one of the four requisite levels of intent to commit the death-eligible offense. 18 U.S.C. § 3591(a). Second, if statutory intent is found, the jury must unanimously find that the Government has proved beyond a reasonable doubt at least one of sixteen statutory aggravating factors, 18 U.S.C. § 3593(c), which are listed at § 3592(c)(1)-(16). Only after the jury makes these two findings is the defendant eligible for the death penalty. Louis Jones, 527 U.S. at 377. Finally, if the jury makes the first two determinations, it must then consider the statutory aggravating factors, along with any non-statutory aggravating factors for which notice has been provided, 18 U.S.C. § 3593(d); Louis Jones, 527 U.S. at 378 n.2 (“The term ‘nonstatutory aggravating factor' is used to refer to any aggravating factor that is not specifically described in 18 U.S.C. § 3592.”), and weigh them against any mitigating factors to determine if the death penalty is appropriate, 18 U.S.C. § 3593(e) (“the jury . . . shall consider whether all the aggravating factor or factors found to exist sufficiently outweigh all the mitigating factor or factors found to exist to justify a sentence of death”). Like statutory aggravating factors, the Government must establish the existence of non-statutory aggravating factors beyond a reasonable doubt, while the defendant need only establish the existence of mitigating factors by a preponderance of the evidence. See 18 U.S.C. § 3593(c). And although only aggravating factors found to exist by a unanimous jury may be considered during the sentencing hearing, “the jury may consider a mitigating factor in its weighing process so long as one juror finds that the defendant established its existence by preponderance of the evidence.” Louis Jones, 527 U.S. at 377.

         After weighing all aggravating and mitigating factors, the jury must unanimously recommend that the defendant should be sentenced to either death, life imprisonment without possibility of release, or some other lesser sentence. See 18 U.S.C. § 3593(e); see also 18 U.S.C. § 3594 (“Upon a recommendation under section 3593(e) that the defendant should be sentenced to death or life imprisonment without possibility of release, the court shall sentence the defendant accordingly. Otherwise, the court shall impose any lesser sentence that is authorized by law.”).

Part of the FDPA authorizes the Government to determine whether to seek the death penalty in a particular case. If the Government elects to seek the death penalty, the FDPA requires it to give the defendant notice of both its election and the statutory aggravating factors that it plans to prove at the sentencing phase. 18 U.S.C. § 3593(a). In its notice of intent to seek the death penalty against Defendants in this case, the Government alleges four statutory aggravating factors under § 3592(c)-a grave risk of death to additional persons, substantial planning and premeditation, vulnerability of a victim, and multiple killings or attempted killings. See Notice of Intent at 7-8; 2d Superseding Indictment at 39-41; see also 18 U.S.C. §§ 3592(c)(5), (9), (11), and (16). In addition to alleging four statutory aggravating factors, the Government's notice of intent also alleges two non-statutory aggravating factors-criminal street gang participation and victim-impact evidence. See Notice of Intent at 8.

         1. Fifth Amendment Challenges

         The Indictment Clause of the Fifth Amendment requires that a defendant be charged with only those charges brought before the grand jury. U.S. Const. amend V (“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury[.]”). And under the Due Process Clause of the Fifth Amendment, each element of an offense must be charged in the indictment, submitted to a jury, and proved by the Government beyond a reasonable doubt. See Hamling v. United States, 418 U.S. 87, 117 (1974); see also In re Winship, 397 U.S. 358, 364 (1970) (holding that the Fifth Amendment “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.”).

         In Jones v. United States, 526 U.S. 227, 243 n.6 (1999), the Supreme Court went further, holding that, under the Fifth and Sixth Amendments, “any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.” Accord Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (applying reasoning in Jones to state statute under the Fourteenth Amendment). In Ring v. Arizona, 536 U.S. 584, 609 (2002), the Supreme Court specifically held that an aggravating factor necessary for the imposition of the death penalty must be found by the jury; it cannot be determined by the sentencing judge. And in Hurst v. Florida, 136 S.Ct. 616, 622 (2016), the Supreme Court reaffirmed that a jury, not a judge, must find each fact that would expose a defendant to a greater punishment than that authorized by the jury's guilty verdict alone.

         Defendants move to strike the notice of intent to seek the death penalty, raising three principal arguments for why the FDPA violates the Fifth Amendment: (i) the FDPA is facially unconstitutional because it does not include express language requiring the prosecutor to present statutory aggravating factors to the grand jury and charge them in the indictment; (ii) the FDPA is facially unconstitutional because it does not require that non-statutory aggravating factors and the weighing of all aggravating factors with mitigating factors be presented to the grand jury and charged in the indictment; and (iii) the grand jury was not informed of the potential punishment arising out of its “Special Findings.” See generally Defs. Mot. (Dkt. 788). The Court addresses and rejects each argument in turn.

         i. Lack of Express Language Requiring the Government to Present Statutory Aggravating Factors to a Grand Jury and Charge Them in the Indictment Does Not Render the FDPA Facially Unconstitutional

          Relying on Hurst, Ring, and Jones, Defendants contend that statutory aggravating factors constitute essential elements of a federal capital offense, and, therefore, they must be presented to a grand jury, charged in the indictment, and proved beyond a reasonable doubt at trial. Defs. Mot. at 6, 8-9, 14. However, Defendants claim that the plain language of the FDPA does not expressly require a prosecutor to present statutory aggravating factors to a grand jury, instead reserving the selection and notice of such factors to the exclusive discretion of the prosecutor. Id. at 7, 14-16. Absent this language, Defendants contend that the FDPA violates the Indictment Clause of the Fifth Amendment. Id. Defendants further argue that any attempt by either the judicial branch or the executive branch to rewrite the FDPA through the adoption of a practice of the prosecutor seeking “special findings” from the grand jury as part of the indictment process would violate both the separation-of-powers doctrine and the non-delegation doctrine; only Congress, say Defendants, can fix the unconstitutionality of the FDPA. Id. at 7, 20-21, 23-25 (citing United States v. Jackson, 390 U.S. 570 (1968); Mistretta v. United States, 488 U.S. 361 (1989)).

         To begin, the Court agrees with Defendants-and every circuit court to have considered this issue-that at least one statutory aggravating factor must be presented to the grand jury, charged in the indictment, and proved beyond a reasonable doubt. See United States v. Lawrence, 735 F.3d 385, 420 (6th Cir. 2013), cert. denied, 135 S.Ct. 753 (2014); Sampson, 486 F.3d at 21; United States v. Brown, 441 F.3d 1330, 1367 (11th Cir. 2006) (citing United States v. LeCroy, 441 F.3d 914, 920 (11th Cir. 2006), cert. denied, 550 U.S. 905 (2007); United States v. Allen, 406 F.3d 940, 942-943 (8th Cir. 2005) (en banc), cert. denied, 549 U.S. 1095 (2006); United States v. Robinson, 367 F.3d 278, 284 (5th Cir.), cert. denied, 543 U.S. 1005 (2004); United States v. Higgs, 353 F.3d 281, 297-298 (4th Cir. 2003), cert. denied, 543 U.S. 999 (2004)), cert. denied, 549 U.S. 1182 (2007); United States v. Barnette, 390 F.3d 775, 788-790 (4th Cir. 2004), vacated on other grounds, 546 U.S. 803 (2005); United States v. Quinones, 313 F.3d 49, 53 n.1 (2d Cir. 2002), cert. denied, 540 U.S. 1051 (2003). Defendants are also correct that the plain language of the FDPA does not expressly permit or require the prosecutor to present statutory aggravating factors to the grand jury and charge them in an indictment. Brown, 441 F.3d at 1367 (agreeing with the defendant that nothing in the FDPA expressly requires a prosecutor to charge aggravating factors in an indictment); United States v. Watson, No. 05-80025, 2007 WL 2421224, at *2 (E.D. Mich. Aug. 23, 2007) (same). So why doesn't Defendants' conclusion that the FDPA is facially unconstitutional logically follow from these two premises?

         First, not every federal criminal statute includes express language requiring the prosecutor to submit elements of an offense-like statutory aggravating factors-to the grand jury and charge them in the indictment. LeCroy, 441 F.3d at 921 (“[A] statute will seldom expressly provide for submitting elements of an offense to the grand jury. It is simply well-established law-the background against which statutes are enacted-which indicates that elements of a crime should be submitted to the grand jury.”). Second, Defendants are incorrect to characterize the FDPA as granting prosecutors “exclusive” authority for determining the existence of statutory aggravating factors. Because the FDPA does not prohibit a grand jury from considering those factors, “the statute simply is silent with respect to the function of the grand jury.” Sampson, 486 F.3d at 21. And finally, there is no language in the FDPA that prohibits a prosecutor from taking the additional step of presenting statutory aggravating factors to the grand jury. Indeed, the Department of Justice “routinely submits the preliminary threshold ‘intent' factors and the statutory aggravating factors to the grand jury as ‘Special Findings.'” Watson, 2007 WL 2421224, at *1.[3]

         The Government followed the same practice in this case, see 2d Superseding Indictment at 37-44, and it appears that every circuit court considering this very issue has uniformly rejected Defendants' argument. See, e.g., Sampson, 486 F.3d at 21; Brown, 441 F.3d at 1367; LeCroy, 441 F.3d at 921; Allen, 406 F.3d at 949; Barnette, 390 F.3d at 788-790; Robinson, 367 F.3d at 289-290. Therefore, by presenting the statutory aggravating factors to the grand jury and charging them in an indictment, despite the lack of express language to do so, the Government has ensured that Defendants' rights under the Fifth Amendment are protected, while, at the same time, avoiding any violation of the plain language of the FDPA.

         Furthermore, Defendants' reliance on Jackson is misplaced and does not alter this Court's conclusion. In Jackson, the Supreme Court considered whether the capital-punishment provision in the Federal Kidnapping Act, which permitted the imposition of a death sentence only “if the verdict of the jury shall so recommend, ” infringed upon a defendant's right to a jury trial. 390 U.S. 571-572. Because there was no procedure for imposing the death penalty for a defendant who either waives his or her right to a jury trial or pleads guilty, the argument was that the statute impermissibly encouraged a defendant to plead guilty or waive that right. To avoid any chilling effect on the exercise of a defendant's rights under Fifth and Sixth Amendments, the Government suggested that the Supreme Court read into the statute the authority of the trial judge-in the event of a guilty plea or bench trial-“to convene a special jury for the limited purpose of deciding whether to recommend the death penalty.” Id. at 572-573, 577. In rejecting this suggestion, the Supreme Court stated that it could not “create from whole cloth a complex and completely novel procedure and . . . thrust it upon unwilling defendants for the sole purpose of rescuing a statute from a charge of unconstitutionality.” Id. at 580.

         Unlike the Supreme Court in Jackson, this case does not require the Court to “create from whole cloth a complex and completely novel procedure.” In fact, there is no new “procedure” that the Court must graft onto the FDPA. Although the FDPA itself may be silent regarding the role of the grand jury, the First Circuit aptly noted in Sampson that “the role of the grand jury in charging the elements of an offense has long been established.” 486 F.3d at 22 (citing Hamling, 418 U.S. at 117-118; Russell v. United States, 369 U.S. 749, 763-764 (1962)); Watson, 2007 WL 2421224, at *3 (“[T]he [FDPA], the Federal Rules of Criminal Procedure, and the common law governing grand jury practice give [the defendant] the guidance that defendants ordinarily find in a body of procedural and evidentiary rules spelled out in advance of trial, that the Supreme Court found lacking in Jackson.”).

         Here, the Government honored the role of the grand jury by presenting it with evidence of possible statutory aggravating factors. And there is no need to rewrite the FDPA. See Sampson, 486 F.3d at 22 (“Adhering to a court-crafted rule of criminal procedure when applying the FDPA does not constitute impermissible statutory redrafting.”); Watson, 2007 WL 2421224, at *2 (“[N]othing in the FDPA must be ‘rewritten' to comply with Ring and Jones. There is simply no language in the FDPA that even mentions grand jury findings, let alone prohibits them with respect to facts constituting aggravating factors.” (citation and brackets omitted)). Thus, neither the non-delegation doctrine nor the separation-of-powers doctrine is implicated here.

         ii. Non-Statutory Aggravating Factors and the Weighing of All Statutory Aggravating Factors with Mitigating Factors Are Not Elements of a Capital Offense and Need Not be Presented to the Grand Jury or Charged in the Indictment

          Defendants contend that the FDPA violates the Fifth Amendment because it does not require non-statutory aggravating factors to be presented to a grand jury and charged in the indictment. See Defs. Mot. at 34-35, 41-43. Defendants similarly argue that the FDPA is unconstitutional because the determination of whether the statutory and non-statutory aggravating factors sufficiently outweigh mitigating factors to justify a sentence of death-i.e., the “weighing” finding-must also be treated as an element of the capital offense and charged in the indictment. Id. The Court disagrees.

         The Sixth Circuit squarely rejected Defendants' argument that non-statutory aggravating factors must be presented to the grand jury and charged in the indictment in United States v. Lawrence, 735 F.3d 385, 420 (6th Cir. 2013). In that case, the court reasoned that “only those factors necessary to make a defendant eligible for the death penalty-intent and a statutory factor-must be included in the indictment.” Id. (emphasis added). But because non-statutory aggravating factors are “relevant considerations in the sentence selection decision, but do not, in themselves, determine whether a defendant is ‘eligible' to be considered for the death sentence, ” they need not be submitted to a grand jury and charged in the indictment. Id. (quoting Tuilaepa v. California, 512 U.S. 967, 971-973 (1994)) (emphasis in original). And because the weighing determination of both statutory and non-statutory aggravating factors with mitigating factors is also part of the sentence selection decision-not the eligibility decision-it logically follows that it, too, does not have to be presented to the grand jury and charged in the indictment. See United States v. Runyon, 707 F.3d 475, 516 (4th Cir. 2013) (noting that the jury's weighing of the aggravating and mitigating circumstances amounts to “a complex moral judgment” about what penalty to impose upon a defendant who is already death-penalty eligible); United States v. Purkey, 428 F.3d 738, 749 (8th Cir. 2005) (“[I]t makes no sense to speak of the weighing process mandated by 18 U.S.C. § 3593(e) as an elemental fact for which a grand jury must find probable cause.”); United States v. Talik, No. 5:06CR51, 2007 WL 4570704, at *3 (N.D. W.Va. Dec. 26, 2007) (“The jury's consideration of whether the aggravating factors outweigh the mitigating factors is not a determination that could increase the maximum sentence for which the defendant is eligible. That is, if the jury has determined beyond a reasonable doubt that the defendant is death-eligible, no greater sentence than death can result from a weighing of the aggravating and mitigating factors.”). Therefore, Defendants' argument that non-statutory aggravating factors must be stricken from the notice of intent to seek the death penalty because those factors have not been previously found by the grand jury lacks merit.

         The Supreme Court's recent decision in Hurst v. Florida, 136 S.Ct. 616 (2016), does not alter this Court's conclusion. In Hurst, the Supreme Court considered whether Florida's capital sentencing scheme violated the Sixth Amendment because it permitted a jury to render an advisory opinion as to whether a defendant should be subject to the death penalty but left the ultimate sentencing determination to the trial court after it held a separate hearing and independently weighed the aggravating and mitigating factors. Id. at 619-620. In concluding that this procedure was unconstitutional under Ring, the Supreme Court emphasized that “[t]he Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death. A jury's mere recommendation is not enough.” Id. at 619. Thus, Hurst simply reaffirmed that a jury, not a judge, must find each fact that would expose a defendant to a greater punishment than that authorized by the jury's guilty verdict. See id. at 622 (recognizing that, absent the judge's own factfinding, the maximum punishment the defendant could have received was life in prison without parole); see also id. (“[T]he Florida sentencing statute does not make a defendant eligible for death until findings by the court that such person shall be punished by death.” (citation and quotation marks omitted; emphasis in original)).

         Unlike the capital sentencing scheme at issue in Hurst, a defendant is exposed to a greater punishment under the FDPA when the jury has unanimously found beyond a reasonable doubt during the eligibility phase that the defendant had one of the four requisite levels of intent under § 3591(a), and at least one statutory aggravating factor under § 3593(c). Only after a defendant is found to be eligible for the death penalty must the jury then consider non-statutory aggravating factors and weigh all aggravating factors against any mitigating factors to determine whether a capital sentence is appropriate. See 18 U.S.C. 3593(e); see also United States v. Con-Ui, No. 3:13-CR-123, 2017 WL 1393485, at *3 (M.D. Pa. Apr. 18, 2017) (“Because the determination of guilt of an [statutory] aggravating circumstance automatically renders the defendant eligible for a capital sentence, it is not possible to make a factual finding later, during the sentence selection phase, that will somehow expose a defendant to greater punishment.”).

         Accordingly, nothing in Hurst undermines the Sixth Circuit's reasoning in Lawrence that non-statutory aggravating factors are relevant for considerations in the sentence-selection decision-not the death-eligibility decision-and need not be submitted to a grand jury and charged in the indictment.[4] Other courts considering this issue have uniformly reached the same conclusion.[5]

         iii. The Government Does Not Have to Inform the Grand Jury About Potential Punishment

          Defendants argue that “[n]o known evidence supports that the government informed the grand jury of the consequences of [the] special findings, i.e., that by returning the indictment, [Defendants] would be held to answer to an offense punishable by death.” Defs. Mot. at 37. They maintain that the grand jury “cannot perform its constitutionally assigned function and make ‘the important decision to charge a capital crime'” unless it “is aware of its capital charging power and the consequences of returning an indictment with ‘special findings' like those in this case.” Id. at 40-41 (quoting Campbell v. Louisiana, 523 U.S. 392, 398 (1998)) (emphasis omitted). Again, the Court disagrees.

         The Fifth Amendment does not require the Government to inform the grand jury of the potential punishment arising out of the grand jury's special findings. “The grand jury's role is not to decide whether probable cause supports the imposition of a particular sentence against a charged individual, ” but instead, to make an “independent factual determination of the existence of probable cause for the essential elements of the charged offense.” United States v. Haynes, 269 F.Supp.2d 970, 981 (W.D. Tenn. 2003) (citing Branzburg v. Hayes, 408 U.S. 665, 686-687 (1972); Stirone v. United States, 361 U.S. 212, 217-219 (1960)) (emphasis added). Put differently, “[t]he role of the grand jury is not to find or recommend a sentence or punishment or even to consider such, but rather to investigate possible crimes against the sovereign so that it can make a judgment whether a trial on specific charges is necessary.” United States v. Con-Ui, No. 3:CR-13-123, 2016 WL 9331115, at *13 (M.D. Pa. Jan. 28, 2016); United States v. Matthews, 246 F.Supp.2d 137, 147 (N.D.N.Y. 2002) (same). Thus, “[i]t is generally sufficient that an indictment set forth the offense in the words of the statute itself, as long as those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offence intended to be punished.” Hamling, 418 U.S. at 117 (citation and quotation marks omitted).

         This Court is not alone in reaching this conclusion. See, e.g., United States v. Troya, No. 06-80171-Cr, 2008 WL 4327004, at *8 (S.D. Fla. Sept. 22, 2008) (“[T]he case law is clear that there is no constitutional requirement that the grand jury be informed of the potential punishment arising out of the special findings.”); United States v. Green, No. 5:06CR-19-R, 2008 WL 4000902, at *6 (W.D. Ky. Aug. 26, 2008) (“Prosecutors are not required to inform a grand jury that the decision to return ‘special findings' as to aggravating factors will make a defendant eligible for capital punishment.”); United States v. Lecco, Nos. 2:05-00107-01, 2:05-00107-02, 2007 WL 1074775, at *3 (S.D. W.Va. Apr. 5, 2007) (“[T]he Supreme Court has made clear that the Indictment Clause of the Fifth Amendment does not require the government to inform the grand jury of the potential penalties that might attach as a result of any special findings.”).

         Here, the indictment set forth the elements that constituted the offenses charged against Defendants. It also provided Defendants with notice of the mental state and statutory aggravating factors that the Government intends to prove during the sentencing phase. The Fifth Amendment does not require more, and Defendant's argument to the contrary is meritless.

         This motion is denied.

         2. Eighth Amendment Challenge

         Defendants move to strike the notice of intent to seek the death penalty, arguing that the FDPA is facially unconstitutional under the Eighth Amendment because it does not require an appellate court to conduct a comparative proportionality review “to determine whether the punishment of death is excessive or disproportionate to the penalty imposed in similar cases, taking into consideration both the crime and the defendant.” Defs. Mot. at 5 (Dkt. 773). Such a provision is necessary, say Defendants, to avoid the arbitrary and capricious imposition of the death penalty. See id. The Court disagrees.

         Comparative proportionality review refers to an appellate court's determination of “whether, considering both the crime and the defendant, the sentence is disproportionate to that imposed in similar cases.” Pulley v. Harris, 465 U.S. 37, 44 (1984). Such review is not constitutionally required, however, provided that a capital-sentencing scheme contains other safeguards against the arbitrary and capricious imposition of the death penalty. Id. at 49-51. Indeed, in Pulley, the Supreme Court explained that the “components of an adequate capital sentencing scheme” do not require “comparative review” but, rather, “‘a carefully drafted statute that ensures that the sentencing authority be given adequate information and guidance.'” Id. at 46 (quoting Gregg, ...


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