MARK W. BENNETT, District Judge.
I. INTRODUCTION ...........................................................966II. CONTEXTUAL MATTERS .....................................................967A. Scope Of The Penalty Retrial ........................................968B. Aggravating Factors .................................................9711. The role of aggravating factors ..................................9712. Statutory aggravating factors ....................................972a. Factors that can be considered ................................972i. Factors alleged and noticed ............................972ii. Factors that can properly be considered ................973b. Factors that can be challenged ................................975C. Penalties ...........................................................9761. Penalties vacated ................................................9762. Possibility of a death sentence on Count 6 .......................976a. Arguments of the parties ......................................976b. Controlling authority .........................................976c. Analysis ......................................................978d. Summary .......................................................9793. Possibility of a sentence less than life without parole on all Counts ........................................................979a. Arguments of the parties ......................................979b. The statutory sentencing scheme ...............................980c. Analysis ......................................................981i. Johnsons authority .....................................981ii. The jury's ability to consider lesser penalties ........981iii. The jury's ability to recommend a lesser penalty .......983iv. The jury's ability to impose a lesser penalty ..........983d. Summary .......................................................985D. Necessity Of A Preliminary Evidentiary Showing ......................9851. Arguments of the parties .........................................9852. Analysis .........................................................986III. CHALLENGES TO STATUTORY AGGRAVATING FACTORS ............................989IV. CHALLENGES TO THE NON-STATUTORY AGGRAVATING FACTORS ....................990A. Multiple Killings And Passage Of Time ...............................9901. Allegations of the factors .......................................9902. Arguments of the parties .........................................9903. Standards for duplicativeness ....................................9914. Analysis .........................................................993B. Lack of remorse .....................................................9951. Allegation of the factor .........................................9952. Arguments of the parties .........................................9953. Authority regarding lack of remorse as a separate factor .........9964. Analysis .........................................................999C. Uncharged Criminal Conduct .........................................10001. Allegations of the factors ......................................10002. Duplicativeness .................................................10003. Inadmissibility in general ......................................1001a. Statutory and other limitations ..............................1001i. Arguments of the parties ..............................1001ii. The purported statutory bar ...........................1002iii. Admissibility of unadjudicated conduct in capital cases ................................................1003iv. Admissibility of unadjudicated criminal conduct as an independent aggravating factor ....................1004v. Summary ...............................................1005
b. Biased sentencing ............................................1006c. More prejudicial than probative ..............................1007d. Relevance and heightened reliability .........................10074. Challenges to specific uncharged criminal conduct factors .......1008a. Standards for sufficiency of non-statutory aggravating factors ....................................................1008b. The assault on Officer Tyler .................................1012c. The perjury factor ...........................................1013d. The threats and bravado incidents ............................1014i. Arguments of the parties ..............................1014ii. Analysis ..............................................1015e. Assisting in the release of Putzier ..........................1016i. Arguments of the parties ..............................1016ii. Analysis ..............................................1016f. Conspiring to help Honken escape .............................1017g. Uncharged distribution of methamphetamine after 1997 .........1017i. Arguments of the parties ..............................1017ii. Analysis ..............................................1018h. Soliciting a crime of violence ...............................1019i. Arguments of the parties ..............................1019ii. Analysis ..............................................1020D. Future Dangerousness ...............................................10201. Allegation of the factor ........................................10202. Collateral estoppel/double jeopardy .............................10213. Limitation to future dangerousness in prison ....................10224. Insufficient notice .............................................10235. Sufficiency of the inmate assaults alleged ......................1025E. Victim Impact ......................................................10251. Allegations of the factors ......................................10252. Arguments of the parties ........................................10253. Analysis ........................................................1026V. VINDICTIVENESS ........................................................1027VI. CONCLUSION ............................................................1029
In this capital case, the defendant was convicted of aiding and abetting five murders in furtherance of a continuing criminal enterprise (CCE murder), in violation of 21 U.S.C. § 848(e), and sentenced to death for four of the murders and to life imprisonment without parole for the fifth. However, I ordered a resentencing hearing before a new jury, i.e., a "penalty retrial," as relief on the defendant's § 2255 Motion.
On May 24, 2005, a jury convicted defendant Angela Johnson of five counts of aiding and abetting murder in furtherance of a continuing criminal enterprise (CCE murder) in violation of 21 U.S.C. § 848(e), which are capital offenses under the Anti-Drug Abuse Act (ADAA). See Verdict Form (docket no. 527). These charges arose from the murders, by Johnson and her separately-indicted co-defendant Dustin Honken, who had been charged as the "principal," of two adults, Greg Nicholson and Lori Duncan, and Lori Duncan's two children, Kandi Duncan (age 10) and Amber Duncan (age 6), in one episode in July 1993, and the subsequent murder of another adult, Terry DeGeus, in a separate episode in November 1993. On May 31, 2005, the same jury found Johnson "eligible" for the death penalty on all five CCE murder convictions. See "Eligibility Phase" Verdict Form (docket no. 545). On June 21, 2005, the same jury also entered a "penalty phase" verdict, imposing a life sentence without possibility of parole for the CCE murder of Gregory Nicholson, but sentences of death for the CCE murders of Lori Duncan, Kandi Duncan, Amber Duncan, and Terry DeGeus. "Penalty Phase" Verdict Form (docket no. 593).
The prosecution then opted for a resentencing hearing before a new jury, i.e., a "penalty retrial," pursuant to former 21 U.S.C. § 848(i)(1)(B) (2005) and the requirements of former 21 U.S.C. § 848(g)-(o) (2005), to determine the penalty for Johnson's convictions, rather than withdraw its notice of intent to seek the death penalty, filed pursuant to former 21 U.S.C. § 848(h) (2005), which would have allowed the court to set a hearing to impose sentences of life imprisonment without parole, pursuant to former 21 U.S.C. § 848(p) (2005).
Among her numerous motions filed on the September 14, 2012, deadline, Johnson included a Motion To Dismiss Particular Aggravating Factors From The Second Superseding Indictment, And To Strike Particular Aggravating Factors From The Second Notice Of Intent To Seek The Death Penalty, And For Other Relief (Motion To Dismiss Or Strike Certain Aggravating Factors) (docket no. 865). In my October 25, 2012, Memorandum Opinion And Order Regarding Defendant's Challenges To Capital Resentencing Hearing And The Second Superseding Indictment And Requests For Discovery (docket no. 903), published at United States v. Johnson, 900 F.Supp.2d 949 (N.D.Iowa 2012), among a great many other things, I ruled that the prosecution may and had properly asserted non-statutory aggravating factors in its Second Notice Of Intent To Seek The Death Penalty (Second Notice Of Intent) (docket no. 141), and that the jurors not only may but must consider those non-statutory aggravating factors for which notice has been given in the course of the individualized determination of the appropriate penalties for Johnson's CCE murder convictions. On the other hand, I found that the prosecution's filing of a Third Amended Notice Of Intent To Seek The Death Penalty (Third Notice Of Intent) (docket no. 879) on October 1, 2012, mooted the part of Johnson's Motion To Dismiss Or Strike Certain Aggravating Factors in which she contended that certain statutory and non-statutory aggravating factors set forth in the Second Superseding Indictment and/or the Second Notice Of Intent must be stricken or clarified, albeit without prejudice to timely reassertion as to the Third Notice Of Intent.
On November 1, 2012, Johnson filed her Motion To Dismiss Certain Statutory And Non-Statutory Aggravating Factors From The Government's Third Amended Notice Of Intent To Seek The Death Penalty (Challenge To Third Notice Of Intent) (docket no. 906), which is now before me. In her Challenge To Third Notice Of Intent, Johnson reasserts her original challenges to the prosecution's aggravating factors and adds new challenges specific to the aggravating factors as reformulated or added in the Third Notice Of Intent. The prosecution filed its Resistance (docket no. 919), on November 19, 2012, and Johnson filed her Reply (docket no. 929), on December 7, 2012. In light of some of Johnson's arguments in her Reply about the scope of the "penalty retrial," the prosecution filed a Surreply To Defendant's Motion To Dismiss Certain Statutory And Non-Statutory Aggravating Factors From Government's Third Amended Notice Of Intent To Seek The Death Penalty (Surreply) (docket no. 937), on December 17, 2012.
I conclude that Johnson's Challenge To Third Notice Of Intent is fully submitted on the written submissions.
As noted above, Johnson's Challenge To Third Notice Of Intent is wide-ranging,
In the course of their arguments on these challenges, however, the parties have raised a number of issues that I conclude must be resolved to put in context my subsequent analysis of Johnson's specific challenges to various aggravating factors and, just as importantly, to establish the context for the "penalty retrial," because those issues have an impact on such things as what evidence will be admissible and what questions the new jury will be required to answer in the "penalty retrial." Those "contextual" issues include the scope of the "penalty retrial," what aggravating factors are subject to challenge, what penalties are at issue, and whether or not a preliminary evidentiary showing is necessary before the prosecution can assert certain aggravating factors in the "penalty retrial." I will begin my analysis by resolving those "contextual" issues, but I will reserve for later the question of whether the Third Notice Of Intent is "vindictive," until after I have considered whether the challenged aggravating factors are otherwise properly asserted.
In her Reply, Johnson acknowledges that she belatedly realized that, not only do the original jury's "merits phase" verdicts stand — that is, her convictions on the five CCE murder charges — but that the original jury's "eligibility phase" verdicts also stand — that is, the original jury's findings that she is "eligible" for the death penalty on all five CCE murder convictions. Johnson states that this realization has fundamentally changed her position as to the statutory aggravating factors alleged in the Third Notice Of Intent. In its Surreply, however, the prosecution argues that, while I "trifurcated" Johnson's trial into separate "merits," "eligibility," and "penalty" phases, subsections (i) and (j) of former § 848 only provide for a single sentencing hearing. Thus, the prosecution argues that, by vacating Johnson's sentences and ordering a "penalty retrial," I necessarily vacated both the "eligibility phase" and "penalty phase" verdicts. The prosecution also argues that it would be unreasonable — and prejudicial to it — to expect a new jury to weigh "empty labels" for "statutory aggravating factors," which had been found in the original "eligibility phase," without any evidence to support them, if the "eligibility phase" is not retried. The prosecution argues that Johnson cannot pick and choose the portions of the sentencing hearing that will be retried.
As I recounted in my ruling on Johnson's post-trial motions, I "trifurcated" Johnson's trial on the § 848(e) charges against her:
United States v. Johnson, 403 F.Supp.2d 721, 747 (N.D.Iowa 2005).
Johnson is correct that, in my ruling on her § 2255 Motion, I did not grant any relief from the original jury's verdicts convicting her on all counts against her, although she alleged errors in or affecting the "merits phase" of her trial in her § 2255 Motion. Johnson, 860 F.Supp.2d at 915-20. She is also correct that she did not seek, and I did not grant, any relief from the original jury's determination that she is "eligible" for the death penalty on all five CCE murder charges in the "eligibility phase." Id. Thus, the relief that I granted her is only a "penalty retrial," id., that is, a retrial of the third phase to determine whether "non-statutory aggravating factors" and "mitigating factors" are present and "whether the aggravating factors found to exist sufficiently outweigh any mitigating factor or factors found to exist, or in the absence of mitigating factors, whether the aggravating factors are themselves sufficient to justify a sentence of death." See former 21 U.S.C. § 848(k).
The prosecution argues, however, that the "do over" granted in this case requires a retrial of both the "eligibility phase" and the "penalty phase," because former § 848(i) and (j) provide for only a single sentencing hearing. The prosecution is correct that former § 848(i) provides that, if a defendant is found guilty of a capital offense defined in § 848(e), the court "shall conduct a separate sentencing hearing to determine the punishment to be imposed," and that it authorizes that "separate sentencing hearing" to be before a new jury empaneled for that purpose, if, inter alia, the original jury that determined guilt has been discharged or the sentence originally imposed must be redetermined. Former 21 U.S.C. § 848(i)(B)(1)(iii) & (iv). The prosecution is also correct that former § 848(j) provides for proof of all aggravating and mitigating factors in "the sentencing hearing." Former 21 U.S.C. § 848(j). Nevertheless, these and other sentencing provisions of former § 848 do not preclude sequential presentation of "information" about "statutory aggravating factors," then "non-statutory aggravating factors" and "mitigating factors," and specifically require sequential determination of whether or not "statutory aggravating factors" exist, then whether or not "non-statutory aggravating factors" and "mitigating factors" exist.
Specifically, former § 848(j) provides, in part, "Where information is presented relating to any of the aggravating factors set forth in subsection (n) of this section [i.e., `statutory aggravating factors'], information may be presented relating to any other aggravating factor [i.e., `non-statutory aggravating factor'] for which notice has been provided under subsection (h)(1)(B) of this section." Former 21 U.S.C. § 848(j) (also providing that "[t]he Government shall open the argument"; then "[t]he defendant shall be permitted to reply"; then "[t]he Government shall then be permitted to reply in rebuttal."). In other words, no information about "non-statutory aggravating factors" (or "mitigating factors") may be presented until information
Moreover, former § 848(k) expressly requires that the jury make sequential findings about the existence of "statutory aggravating factors," then about the existence of "non-statutory aggravating factors" and "mitigating factors" and the balancing of all "aggravating factors" and "mitigating factors," as follows:
Former 21 U.S.C. § 848(k). Thus, a determination of the existence of "statutory aggravating factors" is required before the jury makes any determination of the existence of "non-statutory aggravating factors" and "mitigating factors."
It follows that it is permissible to require the presentation of any information or argument about "statutory aggravating factors" and the jury's determination of the existence of "statutory aggravating factors" in an "eligibility phase" of the trial that is separate from both a preceding "merits phase," involving evidence and a determination of guilt, and a subsequent "penalty phase," involving information about "non-statutory aggravating factors" and "mitigating factors" and the weighing of those factors with the "statutory aggravating factors." Cf. United States v. Bolden, 545 F.3d 609, 618 (8th Cir.2008) (noting that, in light of the plain language of 18 U.S.C. §§ 3593(b)-(e), "the FDPA contemplates a single penalty phase hearing at which all relevant evidence is admitted and, if the defendant is found eligible for the death penalty, ultimately weighed by the jury"; that a number of district courts, including this one, had nevertheless concluded that the sentencing hearing could be "bifurcated" into "eligibility" and "selection" phases; that "[t]he only circuit to address this issue under the FDPA concluded that the statute contemplates but does not require a single penalty phase proceeding and encouraged district courts ruling on motions to trifurcate `to consider carefully the ramifications of presenting... evidence that would otherwise be inadmissible in the guilt phase ... to a jury that has not yet made findings concerning death eligibility,'" (quoting United States v. Fell, 531 F.3d 197, 240 n. 28 (2d Cir. 2008)); explaining that "[w]e agree that is a sound reading of the statute"; but holding that the district court did not abuse its discretion in declining to bifurcate the sentencing hearing). Indeed, that is what happened in Johnson's original trial.
Moreover, because sequential presentation and determination is required, and may occur in separate "phases," in a case where the defendant did not seek and the court did not grant relief from the original jury's findings as to the existence of "statutory aggravating factors" in the "eligibility phase," nothing requires that the original jury's findings about the existence of "statutory aggravating factors" in the "eligibility phase" be reopened in a resentencing hearing before a new jury
The limitation of the "penalty retrial" to the third phase of the original trial gives rise to other issues. One such issue is the role of "statutory aggravating factors" and "non-statutory aggravating factors" in the phase of the trial to be retried. This is so, because "statutory aggravating factors" play a unique role in the "eligibility phase" of a capital trial after conviction for a capital offense pursuant to § 848(e), but "statutory aggravating factors" and "non-statutory aggravating factors" perform overlapping roles in the determination of the appropriate penalty for a conviction for a capital offense pursuant to § 848 in the "penalty phase" of such a capital trial.
In the "eligibility phase," the jurors determine whether or not certain "statutory aggravating factors" exist. See former 21 U.S.C. § 848(k). Such "statutory aggravating factors" are defined in this case in former § 848(n). "Statutory aggravating factors," if found to exist, "elevate the available statutory maximum sentence from life imprisonment to death." Johnson, 900 F.Supp.2d at 958 (internal quotation marks and citations omitted). This is so, because "statutory aggravating factors" are "the circumstances which make a defendant eligible for the death penalty." Id. at 966 (quotation marks and citations omitted); see also former 21 U.S.C. § 848(k). To put it another way, "statutory aggravating factors" "channel the sentencer's discretion" in deciding whether or not a defendant is "eligible" for the death penalty. Id.
In the "penalty phase," the jurors first determine whether or not "non-statutory aggravating factors" exist. See former 21 U.S.C. § 848(k). "Non-statutory aggravating factors" do not increase the maximum punishment to which the defendant is subject, because they are neither sufficient nor necessary under the ADAA (or the FDPA) for a sentence of death. Johnson, 900 F.Supp.2d at 958-59; see also former 21 U.S.C. § 848(k). Instead, even after Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), the purpose of "non-statutory aggravating factors" is to allow for an individualized determination of whether a death sentence is justified for a particular defendant-in other words, they help to inform the selection decision. Id. at 958-59, 965-67.
Also in the "penalty phase," the jurors must weigh aggravating factors against mitigating factors. Although "non-statutory aggravating factors" have no role in the "eligibility phase" in determining a defendant's "eligibility" for a death sentence (only "statutory aggravating factors" have that role), "non-statutory aggravating factors" and "statutory aggravating factors" play the same role in the "penalty phase," because all aggravating factors found to exist must be weighed against any "mitigating factors" found to exist to determine the appropriate penalty for a particular defendant. See former 21 U.S.C. § 848(h)(1)(B) (requiring the prosecution to give notice of "the aggravating factors enumerated in subsection (n) of this section [i.e., the `statutory aggravating factors'] and any other aggravating factors
In this case, in the "eligibility phase," Johnson's original jury made the determination that she was "eligible" for the death penalty on all five CCE murder charges, based on its finding that certain "statutory aggravating factors" existed. As explained above, that determination will not be revisited in the "penalty retrial" before a new jury. However, the "statutory aggravating factors" found by the original jury in the "eligibility phase" are still relevant in the retrial of the final "penalty phase" before a new jury, because, in the "penalty phase," both "statutory aggravating factors" and "non-statutory aggravating factors" are considered for the purpose of an individualized determination of whether a death sentence is justified for a particular defendant, i.e., they help inform the selection decision. Johnson, 900 F.Supp.2d at 958-59, 965-67 (quotation marks and internal citations omitted).
Further questions follow from the conclusion that "statutory aggravating factors" are still relevant in, and perform the same role as "non-statutory aggravating factors" in, the retrial of the "penalty phase," notwithstanding that the "eligibility phase" will not be retried. The first question is, what "statutory aggravating factors" can be considered by the new jury? The second question is, what "statutory aggravating factors" can now be challenged by the defendant?
The question of what "statutory aggravating factors" can be considered in the "penalty retrial" arises, because the Third Notice Of Intent does not conform to the original jury's "eligibility phase" findings of "statutory aggravating factors." See "Eligibility Phase" Verdict Form (docket no. 545). Instead, it reiterates some additional "statutory aggravating factors" alleged in the Second Superseding Indictment (docket no. 233).
More specifically, the Second Superseding Indictment (docket no. 233), like the Superseding Indictment (docket no. 99), alleged the following "statutory aggravating factors": all three "intent" factors (former § 848(n)(1)(A), (B), and (C)) as to all five CCE murders; "substantial planning and premeditation" (former § 848(n)(8)) as to all five CCE murders; "heinous, cruel, or depraved manner" (former § 848(n)(12)) as to all five CCE murders; and "vulnerable victims" (former § 848(n)(9)) as to the CCE murders of the two children (
In the "Eligibility Phase" Verdict Form (docket no. 545), the original jury unanimously found the single "intent" factor identified in former § 848(n)(1)(C) (called a "gateway aggravating factor" in the "Eligibility Phase" Instructions and Verdict Form) as to all five CCE murders. The original jury also unanimously found "vulnerable victims" (former § 848(n)(9)) as to the CCE murders of the two children (
The Third Notice Of Intent (docket no. 879), filed in anticipation of the "penalty retrial," matches the original jury's "eligibility phase" findings to the extent that it asserts only a single "intent" factor (former § 848(n)(1)(C)) as to all five CCE murders; "vulnerable victims" (former § 848(n)(9)) as to the CCE murders of the two children (
Because the original jury's "eligibility phase" verdict still stands for the "penalty retrial," the new jury may consider, in its weighing of aggravating and mitigating factors, only those "statutory aggravating factors" found by the original jury. See former 21 U.S.C. § 848(h)(1)(B), (j), and (k). More specifically, the new jury may consider the § 848(n)(1)(C) "intent" aggravating factor as to all five CCE murders; "vulnerable victims" as to the CCE murders of the two children (
Moreover, notwithstanding that "statutory aggravating factors" and "non-statutory aggravating factors" perform the same role in the "penalty phase," the prosecution will not be allowed to reassert "substantial planning and premeditation" as a "non-statutory aggravating factor" as to the CCE murders of Nicholson or the three Duncans (
The prosecution argues that it would be unreasonable — and prejudicial to it — to expect a new jury to weigh "empty labels" for "statutory aggravating factors" found by the original jury without any evidence to support them in the "penalty retrial." The answer to this argument is that former § 848(j) expressly contemplates the possibility of a different jury making a sentencing redetermination, as follows:
Former 21 U.S.C. § 848(j) (emphasis added). Here, information about the "statutory aggravating factors," all of which came from the "merits phase" of the trial in this case,
In this case, the obvious exception to use of evidence from the original trial or live testimony is that any evidence of "substantial planning and premeditation" relating to any of the CCE murders other than the murder of Terry DeGeus in
Even after her epiphany concerning the scope of the "penalty retrial," Johnson continues to challenge the assertion in the Third Notice Of Intent of "statutory aggravating factors" based on "substantial planning and premeditation" and "heinous, cruel, or depraved manner" as to any Counts, even though they were found by the original jury as to some Counts, on the grounds that the victims were killed by a co-conspirator, not by her, and that those factors are duplicative, vague, and supported by insufficient evidence. Whether Johnson can now assert these challenges is an unsettled preliminary question, where the original jury's "eligibility phase" verdicts were not challenged in Johnson's § 2255 Motion; were not a basis for any § 2255 relief; and are not subject to reconsideration on a "penalty retrial" only because I have concluded that the original jury's "eligibility phase" verdicts still stand, but not because there is any preclusive effect to the original jury's rejection of any "statutory aggravating factors" as to any Counts.
I believe that Johnson is now attempting to amend an oversight by asserting arguments of error — particularly legal error — in the "eligibility phase" that she should have asserted in her § 2255 Motion, but did not. See Rule 2(b)(1) of the Rules Governing Section 2255 Proceedings for the United States District Courts (stating that a § 2255 motion must "specify all the grounds for relief available to the moving party"). Indeed, her belated challenges to the "statutory aggravating factors" amount to an impermissible "second or successive" § 2255 Motion for which Johnson has not received authorization from the Circuit Court of Appeals. See 28 U.S.C. § 2255(h) (declaring that a successive § 2255 motion is not permitted unless the motion is certified by a panel of the appellate court to contain "newly discovered evidence" or "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable"); see also United States v. Hamilton, 604 F.3d 572, 574 (8th Cir.2010) (at resentencing as § 2255 relief, the defendant forfeited a
Johnson also admits in her Reply that she has belatedly recognized that, as the prosecution argued, my ruling granting her relief on her § 2255 Motion vacated not only her death sentences on
Because I vacated the penalties for all five of Johnson's CCE murder convictions, I must address the parties' dispute about what penalties are now available on each Count in the "penalty retrial." That analysis begins with the possibility of a death sentence on
Johnson argues, in her opening brief, that even if I vacated her life sentence for the CCE murder of Greg Nicholson in
Johnson cites two Supreme Court cases in support of her contention that she cannot now be sentenced to death on
Sattazahn, 537 U.S. at 106-07, 123 S.Ct. 732 (emphasis added). In Sattazahn, the Court ultimately concluded that there was no double-jeopardy bar to renewed consideration of a death sentence, when the defendant's first jury deadlocked at his sentencing proceeding, and the trial court prescribed a sentence of life imprisonment pursuant to Pennsylvania law. Id. at 109-10, 123 S.Ct. 732. The Court concluded that the defendant could not establish that either the jury or the court "acquitted" him of the death sentence during his first capital-sentencing proceeding, because the deadlock was not a determination based on findings sufficient to establish legal entitlement to a life sentence. Id.
Neither Sattazahn nor Bullington ultimately supports Johnson's argument. This is so, notwithstanding that this case is like Bullington in one sense: There was a trial — like sentencing proceeding — indeed, sentencing phases of the trial — at which the prosecution was required to prove beyond a reasonable doubt additional facts — the "statutory aggravating factors" to make Johnson "eligible" for the death penalty and the existence of any other "non-statutory aggravating factors" — in order to justify a death sentence. Id. at 106-07, 123 S.Ct. 732. Nevertheless, in the "eligibility phase," the verdict on
Furthermore, contrary to Johnson's contentions, in the "penalty phase," the original jury did not "unanimously reject[] the death penalty" for
To put it another way, the original jury did not unanimously "acquit" Johnson of the death penalty on
Because there is no double-jeopardy bar to a death sentence on
Because I vacated the penalties for all five of Johnson's CCE murder convictions, I must also address the parties' dispute about the possibility of sentences less than life without parole on any of the CCE murder convictions. The parties raised this issue in the context of arguments about the scope of the "non-statutory aggravating factor" of "future dangerousness," but the issue has more general ramifications for how the new jury will be instructed on sentencing options.
Johnson argues that the jury should only be offered a choice between death and life without parole, because the sentencing scheme in § 848 only gives the court, not the jury, the discretion to impose a sentence less than life without parole.
On the other hand, the prosecution — the party that might be expected to argue that only the two harshest sentencing options should be considered — argues that a sentence less than life without parole is possible, and that Johnson makes a hopelessly "convoluted" argument that the roles of the court and the jury in capital sentencing preclude a lesser sentence. The prosecution argues that the jury in this case will have two options: sentencing Johnson to death, or not doing so. The prosecution argues that, if the jury chooses not to sentence Johnson to death, the court will be responsible for sentencing her. The prosecution also points out that the applicable statute does not mandate a life sentence, so that Johnson may be sentenced to less than life without parole.
In reply, Johnson reiterates her argument that no sentencing option less than life without parole should be offered to the new jury. She points out that the prosecution did not ask that the original jury's options be limited to death or not death, but agreed that the jury's choices were between death and life without parole. She argues that the prosecution's present argument is simply an attempt to widen the scope of "bad conduct" evidence that will be admissible in the "penalty retrial," particularly as to "future dangerousness."
I note that former § 848(k) provides, as follows, in the part pertinent here:
Former 21 U.S.C. § 848(k) (emphasis added). Former § 848(l) provides, in pertinent part,
Former 21 U.S.C. § 848(l) (emphasis added). As to what sentences are "authorized by law" for a conviction of a § 848(e) offense, I note that former § 848(e)(1)(A) provides as follows:
Former 21 U.S.C. § 848(e)(1)(A) (emphasis added). Finally, for present purposes, former § 848(p) provides as follows:
Former 21 U.S.C. § 848(p) (emphasis added).
In support of her contention that the jury should only be allowed to consider death or life without parole, Johnson relies on United States v. Chandler, 996 F.2d 1073 (11th Cir.1993). In that decision, the Eleventh Circuit Court of Appeals reached the following conclusion about the jury's power under § 848 to impose a sentence other than death, based on the portions of § 848(k), (l), and (p) quoted above:
Chandler, 996 F.2d at 1084.
I do not read Chandler to stand for the proposition, for which Johnson cites it, that the jury may not consider or recommend a sentence less than life without parole. The court in Chandler concluded only that the court, not the jury, ultimately has the discretion to impose a sentence less than death, including a sentence less than life without parole. Id. Specifically, the court in Chandler read former § 848(l) to provide for the imposition of sentence only by the district court. Id. The court read § 848(l) to state that the jury's recommendation only binds the district court if the jury recommends a death sentence, because that provision states, "`Otherwise the court shall impose a sentence, other than death, authorized by law.'" Id. (quoting § 848(l)). Thus, in Chandler, the Eleventh Circuit Court of Appeals read these provisions to leave the court — and only the court — with the authority to impose a sentence less than death, that is, life without parole or some other lesser sentence. The court did not hold that the jury cannot consider or recommend any sentence less than death or less than life without parole.
Unlike Johnson, I do not read either Chandler or the sentencing provisions of § 848 to preclude a jury from considering some other sentence less than death or life without parole. To the contrary, I read § 848(k) as plainly and expressly authorizing the jury to consider other lesser sentences, because the statute states that the jury must "consider" whether aggravating factors outweigh any mitigating factors sufficiently to "justify" a death sentence, then, if they unanimously so find, "recommend" a death sentence "rather than a sentence of life imprisonment without possibility of release or some other lesser sentence." Former 21 U.S.C. § 848(k) (emphasis added); see also United States v. Ron Pair Enters., 489 U.S. 235, 242, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989) ("The plain meaning of legislation should be conclusive, except in the `rare cases [in which] the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters.'") (quoting Griffin v. Oceanic Contractors,
Yet, even though the statute, on its face, permits the jury to consider lesser penalties than death, including a penalty less than life without parole, there is some doubt as to whether or not the jury should be permitted to do so in a particular case. For example, the Fifth Circuit Court of Appeals opined, some time ago, that district courts should not "allow the government to freely hammer away on the theme that the defendant could some day get out of prison if that eventuality is legally possible but actually improbable." United States v. Flores, 63 F.3d 1342, 1368 (5th Cir.1995). This remark was made in the context of whether or not evidence of "future dangerousness" should include evidence that the defendant might pose a danger outside of prison. Id. Nevertheless, it is also instructive, more generally, in the context of possible penalties upon conviction of a capital offense.
In this case, in my ruling on Johnson's § 2255 Motion, I rejected one of her many claims of error in the "penalty phase," for the following reason:
Johnson, 860 F.Supp.2d at 908-09 (emphasis added); see also Johnson, 403 F.Supp.2d at 886 (noting that Johnson had waived before trial her post-trial argument that the jury should simply have been required to reject the death sentence and leave to the court the question of the sentence less than death to be imposed if the jury's verdict for death was non-unanimous, because she specifically requested that the alternatives submitted to the jury be either a "death sentence," upon an unanimous verdict, or "life imprisonment without possibility of parole," if any one or more jurors so found). Thus, in this case, a sentence less than life without parole is "improbable."
Also, as Johnson asserts, there is some authority for the proposition that, in a capital case, it may be inappropriate to allow the jury to consider any sentences other than death or life without parole. She cites a comment to 1-9A Modern Federal Jury Instructions — Criminal P 9A.03, which states, "A juror presented with the possibility of a lesser authorized sentence could be `persuaded to switch from life to death to ward off ... any
Because there is a potential for prejudice to Johnson if the jury is allowed to consider sentences less than death or life without parole, and any lesser sentence is improbable in this case, the only possible sentences that I will allow the new jury to consider are death and life without parole in making their determination of whether or not a death sentence is justified and whether or not to recommend the death penalty in the "penalty retrial."
Even if I were persuaded that the jury could consider a lesser penalty than death or life without parole in this case, I do not believe that the jury has the authority to recommend any sentence less than death. My conclusion, informed by my recent reexamination of the statute, is that the plain language of the sentencing provisions of § 848 limits what penalty the jury can recommend. Former § 848(k) provides that, if the aggravating factors found to exist outweigh any mitigating factors found to exist, the jury shall "by unanimous vote ... recommend that a sentence of death shall be imposed rather than a sentence of life imprisonment without possibility of release or some other lesser sentence." Former 21 U.S.C. § 848(k) (emphasis added). Thus, former § 848(k) specifically authorizes the jury to "recommend," unanimously and specifically, only one penalty, a death penalty. To put it another way, even though a jury may consider a sentence less than death, or even less than life without parole, in deciding whether or not to recommend the death penalty, the sentencing provisions of § 848 do not permit the jury to make a unanimous recommendation of any penalty other than death. Cf. Johnson, 495 F.3d at 977-78 (concluding that the jury instructions in Johnson's original trial correctly stated that unanimity was required for a death sentence, but that the court would impose a life sentence if even one juror found that death was not justified). Moreover, § 848(k) and (l) do not require the jury to recommend a sentence other than death, based upon a non-unanimous verdict for death. Johnson, 403 F.Supp.2d at 886.
Of course, it follows from my conclusion that the jury cannot recommend any penalty less than death that the jury also cannot impose a lesser sentence. More specifically, my view, informed by my recent reexamination of the statute, is
Former § 848(l) expressly and plainly makes the jury's recommendation binding only if the jury recommends a death sentence, but states, "`Otherwise the court shall impose a sentence, other than death, authorized by law.'" Id. (quoting § 848(l)) (emphasis added). Again, the penalties "authorized by law" for CCE murder in violation of § 848(e) include "any term of imprisonment, which shall not be less than 20 years, and which may be up to life imprisonment, or may be sentenced to death." Former 21 U.S.C. § 848(e)(1)(A) (emphasis added). Former § 848(p) reiterates, "If a person is convicted for an offense under subsection (e) of this section and the court does not impose the penalty of death, the court may impose a sentence of life imprisonment without the possibility of parole." Former 21 U.S.C. § 848(p) (emphasis added). This last provision unambiguously makes a jury's penalty recommendation binding only if that recommendation is for a death penalty, but even supposing that the jury had the power to recommend a sentence less than life without parole, the court would still have the discretion to impose a sentence of life without parole. See also Flores, 63 F.3d at 1367 ("Under § 848(e), if the jury had not recommended a death sentence, the district court could have sentenced Garza to `any term of imprisonment, which shall not be less than 20 years, and which may be up to life imprisonment.'").
Thus, the court must impose a death sentence, if the jury recommends that penalty, but if the jury does not recommend a death sentence, the court may impose any other sentence authorized by law, including a penalty less than life without parole. To put it another way, the jury does not impose any penalty less than death, but only imposes a death sentence, if it makes a unanimous recommendation, binding on the court, for that penalty.
I believe that this reading is correct, notwithstanding passing references, in the appellate decisions in Honken's and Johnson's cases, to their juries "imposing" sentences of life without parole. See, e.g., United States v. Honken, 541 F.3d 1146, 1149 (8th Cir.2008) ("The jury voted to impose the death penalty for the children's murders and life imprisonment for the adults' murders."); Johnson, 495 F.3d at 958 ("The jury voted to impose the death penalty for four of these murders and voted to impose a sentence of life in prison for the fifth murder, resulting in a total of eight death sentences and two life sentences."). Indeed, in the "Penalty Phase" Instructions and Verdict Forms in both Johnson's and Honken's cases, I had framed the jury's options to be to "impose" a death sentence or a sentence of life without parole, although I had instructed the jury that the verdict to impose a death sentence had to be unanimous, but if even one juror found that death was not justified,
It follows from this conclusion that, on the "penalty retrial" in this case, the only verdict to be obtained from the new jury, on each Count, is whether the jurors unanimously agree that the sentence should be death — a "yes or no" question. That question must be accompanied by instructions (1) that, in this case, the court will impose a sentence of life without parole if even one juror finds that death is not justified, and (2) that, regardless of the jury's findings with respect to aggravating and mitigating factors, the jury is never required to impose a death sentence. This framing of the possible verdicts admittedly differs from the way that I framed the possible verdicts in Johnson's original "penalty phase." However, this "redo" of Johnson's "penalty phase" has afforded me, as well as the parties, an opportunity to learn from hindsight and a reexamination of applicable statutory language and other authorities. On this "redo," I conclude that the jury does not impose any penalty less than death, but only imposes a death sentence, if it makes a unanimous recommendation, binding on the court, for that penalty.
On the "contextual" question of what sentences are possible on each of the CCE murder Counts in the "penalty retrial," I hold that the possible sentences are death, life without parole, and imprisonment for not less than twenty years. Nevertheless, in this case, the only penalties that the new jury will be allowed to consider on each Count are death and life without parole. Furthermore, the appropriate verdict to be obtained from the new jury, on each Count, is whether the jurors unanimously agree that the sentence should be death — a "yes or no" question.
In what is actually the last argument in her Opening Brief in support of her Challenges To Third Notice Of Intent, Johnson argues that no aggravating factor should be allowed to go to the jury in the absence of judicial screening of the evidence supporting the factor. Thus, she requests that I order a pretrial proffer from the prosecution or a preliminary hearing to test the evidence, to ensure the reliability required by the Eighth Amendment to the United States Constitution. The prosecution disagrees.
Johnson argues that I should require a fairly detailed proffer of evidence in aggravation from the prosecution prior to the "penalty retrial," so that I can discharge my "gatekeeper" role with regard to sentencing evidence under the applicable statute and the Constitution. In her original Motion To Dismiss Or Strike Certain Aggravating Factors (docket no. 865), which she reiterates by reference in her Challenges To Third Notice Of Intent, Johnson argues that I should direct the prosecution to provide further information regarding the factual basis, and/or require a hearing, to test the relevance, reliability, and admissibility of the evidence of aggravating factors.
In her Reply, Johnson simply reiterates that, in light of her challenges to various aggravating factors, I should require the prosecution to come forward with an offer of proof as to the factual basis for certain of its aggravating factors and, in certain instances, conduct a hearing to determine the admissibility of evidence of aggravating factors.
Johnson cites authority for the propositions that the court performs a "gatekeeper" role in controlling the information presented in a capital sentencing proceeding; that the prosecution must identify aggravating factors with sufficient specificity to put the defendant on notice of the nature of the aggravating factors to allow her to prepare for the "penalty retrial"; and that the court can compel the prosecution to reveal the specific evidence on which its aggravating factors are based or hold a pretrial hearing to review the prosecution's evidence in support of aggravating factors. Nevertheless, I am persuaded by well-reasoned authority to decline to hold a pretrial hearing on or to require any pretrial proffer regarding the evidence supporting aggravating factors, at least in the absence of a showing that Johnson has not received constitutionally sufficient notice of what the prosecution intends to prove at the "penalty retrial."
For example, United States District Court Judge Terrence F. McVerry of the Western District of Pennsylvania rejected arguments much like Johnson's for a "preview" of the evidence supporting the prosecution's aggravating factors in United States v. Solomon, 513 F.Supp.2d 520 (W.D.Pa.2007). He began by noting,
Solomon, 513 F.Supp.2d at 538.
In Solomon, after rejecting the defendant's arguments that the notice of intent to seek the death penalty was insufficient to provide notice of aggravating factors and that the defendant was entitled to a bill of particulars concerning aggravating factors, Judge McVerry also rejected the defendant's request for a pretrial evidentiary hearing to rule on the sufficiency of the evidence to support all of the non-statutory aggravating factors. Id. at 539. Judge McVerry explained,
Solomon, 513 F.Supp.2d at 539-40; see also, e.g., United States v. Regan, 228 F.Supp.2d 742, 754 (E.D.Va.2002) (also rejecting the defendant's argument that he was entitled to a pretrial evidentiary hearing on the sufficiency of the aggravating factors or the admissibility of evidence supporting those factors, because the defendant's right to notice does not extend to the evidence on which the prosecution intends to rely).
Senior United States District Court Judge Louis H. Pollak of the Eastern District of Pennsylvania reached a similar conclusion in United States v. Llera Plaza, 179 F.Supp.2d 464 (E.D.Pa.2001). He acknowledged that 18 U.S.C. § 3593(c) imposes a gatekeeping role on the court to assure the relevance of penalty phase evidence and that the probative value of such evidence outweighed its potential negative effects. Llera Plaza, 179 F.Supp.2d at 468-69. He also recognized that some district courts had conducted pretrial reviews of the relevance of sentencing phase evidence or had otherwise required the prosecution to proffer the evidentiary basis for aggravating factors. Id. at 469 (citing
Llera Plaza, 179 F.Supp.2d at 469-70.
Here, it is clear that, like provisions of the FDPA, former § 848(j) also imposes a "gatekeeping" role on the district court concerning the information that will be presented in the "penalty phase." It states, in pertinent part,
Former 21 U.S.C. § 848(j); cf. Solomon, 513 F.Supp.2d at 539-40 (finding a "gatekeeper" role for the court in a comparable provision of the FDPA); Llera Plaza, 179 F.Supp.2d at 469 (same). I also believe that I have the authority under this provision to conduct a pretrial review of evidence (or information) that the prosecution intends to offer in support of its aggravating factors. See Llera Plaza, 179 F.Supp.2d at 469.
Nevertheless, the notice to which Johnson is entitled, at least at this point in the proceedings, is notice of the aggravating factors on which the prosecution intends to rely, not notice of the evidence on which the prosecution intends to rely to prove those aggravating factors. Solomon, 513 F.Supp.2d at 538. It is also clear that the evidence supporting the "statutory aggravating factors" on which the prosecution will be permitted to rely is drawn from the "merits phase" of the trial, as that was the only source for such evidence in Johnson's original "eligibility phase." Cf. Solomon, 513 F.Supp.2d at 540 ("[I]t appears that much of the evidence the government intends to introduce during the penalty phase will be introduced during the merits phase as well."); Llera Plaza, 179 F.Supp.2d at 470 ("[I]t appears that much of the evidence the government intends to introduce during the sentencing phase will be introduced during the guilt phase as well."). Although the "eligibility phase" will not be revisited in the "penalty retrial," I have already indicated, above at page 22, that original "merits phase" transcripts and exhibits or "live" testimony supporting "statutory aggravating factors" will be admissible in the "penalty retrial." Johnson's "new" defense team not only has access to the original trial transcripts and exhibits, but also to the discovery file amassed before and after Johnson's original trial. Under these circumstances, Johnson must make a much more pointed and specific showing of insufficient notice to warrant any review of any evidence supporting any aggravating factor on which the prosecution intends to rely, in order to obtain some form of pretrial review by the court of information supporting such aggravating factors or any additional disclosure by the prosecution before the "penalty retrial."
Moreover, as is the case under the FDPA, the "penalty phase" under § 848 is an adversarial proceeding, wherein the defendant is "permitted to rebut any information received at the hearing and shall be given fair opportunity to present argument as to the adequacy of the information to establish the existence of any of the aggravating... factors and as to appropriateness in [her] case of imposing a sentence of death." See former 21 U.S.C. § 848(j); cf. Solomon, 513 F.Supp.2d at 540 (noting that the "penalty phase" under the FDPA is an "adversarial proceeding"). There is no reason that, where the parties can offer evidence and objections, I cannot perform my "gatekeeper" role of determining the admissibility of information during the "penalty retrial," just as I have done in a great many criminal trials, including the original trials in Honken's and Johnson's capital cases. As a general matter, pretrial preview of the evidence supporting aggravating factors is ordinarily unnecessary, Solomon, 513 F.Supp.2d at 539; United States v. Frank, 8 F.Supp.2d 253, 278-79 (S.D.N.Y.1998), and it is unnecessary in this case.
Johnson's request for further disclosure of or a hearing on evidence supporting aggravating factors, prior to the "penalty retrial," is denied, at least for now.
With "contextual" matters resolved, I turn to Johnson's specific challenges to
Johnson offers no challenge to the prosecution's continued reliance on the former § 848(n)(1)(C) "intent" or "gateway" "statutory aggravating factor" as to all five CCE murder Counts, or to the prosecution's reliance on the "vulnerable victim" "statutory aggravating factor" (former § 848(n)(9)) as to the CCE murders of the two children (
However, as I explained above, on page 23, Johnson's challenges to those "statutory aggravating factors" are foreclosed for two reasons. First, I believe that Johnson is now attempting to amend an oversight by asserting arguments of error — particularly legal error — in the "eligibility phase" that she should have asserted in her § 2255 Motion, but did not. Second, I believe that Johnson's belated challenges to these "statutory aggravating factors" amount to an impermissible "second or successive" § 2255 Motion for which Johnson has not received authorization from the Circuit Court of Appeals, so that I need not consider those arguments. I now add that, having reviewed her belated challenges to these "statutory aggravating factors," I find them to be without merit, because they are contrary to controlling or persuasive authorities, are based on misreadings or misrepresentations of cited authorities, or assert factual contentions that are untenable in light of the evidence presented in her original trial.
Therefore, Johnson's challenges to the "statutory aggravating factors" are denied.
Johnson also asserts challenges to various "non-statutory aggravating factors" identified by the prosecution in its Third Notice Of Intent. The prosecution asserts that all such "non-statutory aggravating factors" are properly asserted and adequately supported. I will consider these challenges in turn.
The first two "non-statutory aggravating factors" identified in the Third Notice Of Intent are the following:
Third Notice Of Intent, § C.1-2.
Johnson argues that each of these factors is duplicative of the crimes charged
The prosecution argues that Johnson has not articulated in what way these factors duplicate either the charged offenses or each other. It points out that the heart of these factors is not murder or murder with the prescribed intent, but multiple murders in a single episode, as one aggravating factor, and a murder separated in time from prior murders, as another aggravating factor. The prosecution also argues that killing multiple people in a single episode makes one more deserving of death, because of the bloodthirsty nature of someone who can participate in gunning down multiple people at one time, and that killing again, after having killed once and having had the time to contemplate prior murders, also makes one more deserving of death, but for the different reason that it focuses on the serial nature of the defendant's conduct.
In reply, Johnson argues that, in essence, both of these "non-statutory aggravating factors" were weighed in the "eligibility phase" and, consequently, there is an unconstitutional opportunity for aggravators that duplicate the crimes charged to skew the result. However, she does not explain how or why these factors were weighed in the "eligibility phase."
As I read Eighth Circuit precedent, whether or not aggravating factors are duplicative of either the underlying offenses or each other depends upon the extent to which the factors or offenses have overlapping or discrete elements and the nature of the overlapping elements. Thus, the same evidence may support both the underlying offense and a specific aggravating factor or two separate aggravating factors, without unconstitutional or otherwise impermissible "duplicativeness."
As the Eighth Circuit Court of Appeals explained in United States v. Bolden, 545 F.3d 609 (8th Cir.2008),
Bolden, 545 F.3d at 625. Thus, in Bolden, the court not only noted that the various aggravating factors that the defendant challenged as duplicative each had at least one distinct element, but also recognized that the same evidence may support inferences supporting different aggravating factors without those factors necessarily being duplicative.
In Bolden, the court also distinguished United States v. McCullah, 76 F.3d 1087, 1111-12 (10th Cir.1996), cert. denied, 520 U.S. 1213, 117 S.Ct. 1699, 137 L.Ed.2d 825 (1997), on which Johnson also relies, as follows:
Bolden, 545 F.3d at 630 n. 14. While Johnson's case is under the ADAA, § 848, McCullah is also distinguishable here, because, to the extent that there is any overlap between the "intent" element of aiding and abetting CCE murder and any "intent" element of the "non-statutory aggravating factors" at issue here, that duplication is not of constitutional proportions, where the factors also involve differing conduct elements. Id.
Similarly, in United States v. Paul, 217 F.3d 989 (8th Cir.2000), the Eighth Circuit Court of Appeals also rejected a defendant's contention that the "heinous, cruel, and depraved" factor
Paul, 217 F.3d at 1001-02. Thus, aggravating factors are not duplicative, even if they arise from the same factual circumstances, as long as each factor "is directed to entirely distinct aspects or components of the offense." Id. Furthermore, they are not duplicative, if they involve inferences about the defendant, on the one hand, and about the victim, on the other. Id.
As to duplication of the underlying capital offense, in Williams v. Norris, 576 F.3d 850 (8th Cir.2009), the Eighth Circuit Court of Appeals rejected a defendant's contention that a "pecuniary gain" "statutory aggravating factor" "merely duplicate[d] an element of the underlying crime of felony murder during the course of a robbery." 576 F.3d at 870. The court pointed out that the felony underlying the charge of capital murder was "kidnapping, not robbery," that the jury was instructed consistent with the statutory definition of "kidnapping," and only after convicting the defendant of capital murder did the jury find that he committed the murder for pecuniary gain, consistent with the statutory definition of that aggravator. Id. Based on these differences in the factual elements or components of the factors and the offense, the court concluded that "[t]here was no duplication, of constitutional dimension or otherwise." Id.; see also Cox v. Norris, 133 F.3d 565, 571 (8th Cir. 1997) (observing, "Duplication of an element of a capital offense by one or more aggravating circumstances does not render the Arkansas death penalty scheme unconstitutional," as long as the aggravating factors serve their proper purpose, in the case of "statutory aggravating factors," sufficiently narrowing the death eligible class).
Here, Johnson has not specifically identified, and I have not found, any respect in which the "non-statutory aggravating factors" of "multiple killings in a single episode" and "killing of [a] person after a passage of time since killing others" would unconstitutionally duplicate the elements of the underlying CCE murder offenses. Specifically, no charge of CCE murder requires proof that there were other CCE murders, either in the same episode or in a subsequent episode, as required by the "multiple killings" and "killing another after a passage of time" "non-statutory aggravating factors," respectively. Thus, each of these "non-statutory aggravating factors" involves a factual component not required to prove the underlying offenses, considered only after a determination of guilt has been made on the underlying offenses. Williams, 576 F.3d at 870 (determining that differences in the factual elements or components of the factors and the offense meant that there was no duplication of constitutional dimensions or otherwise). It is also reasonable to conclude that-at the very least-the fact that the defendant aided and abetted multiple killings in a single episode and aided and abetted another killing separated in time from an earlier killing or killings would perform the appropriate function of "non-statutory aggravating factors" by allowing for the individualized determination of whether a death sentence is justified, that is, helping to inform the selection decision. See Cox, 133 F.3d at 571 (considering whether the aggravating factor performed its required function in
Similarly, these "non-statutory aggravating factors" do not unconstitutionally duplicate each other. First, it apparently escaped Johnson's notice that the "multiple killings" and "killing another after a passage of time" factors do not go to the same underlying CCE murder offenses. The first factor goes only to the killings of Nicholson and the Duncans in
Even supposing that the circumstances had actually been such that these "non-statutory aggravating factors" could be and had been asserted as to the same killing or killings — for example, because the killings of Nicholson and the Duncans in one episode had followed the killing of DeGeus in a separate episode, so that the prosecution could have alleged both "multiple killings in a single episode" and "killing another after a passage of time" as to each count involving the killings of Nicholson and the Duncans — there would be no unconstitutional duplication. The "multiple
Finally, because there are factual components of each of these "non-statutory aggravating factors" that distinguish them from each other and from the underlying killings, there is no "skewing" of the weighing of the aggravating and mitigating factors in deciding whether to impose the death penalty. Id. Even supposing that the jury might otherwise give too much weight to multiple "non-statutory aggravating factors," the new jury for Johnson's "penalty retrial" will be properly instructed that, in weighing the aggravating and mitigating factors, they must not simply count each factor and reach a decision based on which number is greater, but should individually consider the weight and value of each factor before deciding whether a sentence of death is justified on a particular count. Id.
These "non-statutory aggravating factors" are not "duplicative" in an unconstitutional sense or in any other sense that would make them impermissible.
The next "non-statutory aggravating factor" that Johnson challenges is alleged in the Third Notice Of Intent as follows:
Third Notice Of Intent, § C.4.
Johnson contends, in her assertion that the Third Notice Of Intent is vindictive, that the prosecution has improperly alleged "lack of remorse" as a free-standing "non-statutory aggravating factor," not as a subpart of the "future dangerousness" factor, as was done in Honken's case. She contends that caselaw prohibits consideration of "lack of remorse" as a free-standing aggravator.
In her specific challenge to this "non-statutory aggravating factor," Johnson also contends that this factor violates her Fifth and Sixth Amendment rights and permits unreliable jury findings. She argues that such a factor presents great danger to the fairness of the proceedings, because it is predicated upon one person's interpretation of a statement, demeanor, facial expression, and tone of voice, which does not meet the "heightened reliability" required for aggravating factors. She argues that such evidence has little probative value and any probative value that it has is outweighed by its potential for prejudice — indeed, she asserts that a finding of "lack of remorse" would be a profoundly prejudicial finding, resting on a very slender reed. She also argues that such a "non-statutory aggravating factor" violates her Fifth Amendment right to remain silent
The prosecution responds that, while Johnson has identified some non-binding district court decisions holding that "lack of remorse" cannot be asserted as a free-standing aggravator, there is copious authority that it can be. The prosecution also argues that, as a matter of fact and logic, the factor is properly considered separately, because a defendant could lack remorse, while posing no future danger, and vice versa. The prosecution also rebuts Johnson's Fifth, Sixth, and Eighth Amendment arguments by pointing out that the Supreme Court and other courts have endorsed "lack of remorse" as an appropriate factor for the jury to consider during the "penalty phase" of sentencing. The prosecution also argues that it is not premising this factor solely on Johnson's "silence," but on her conduct and statements indicating "lack of remorse."
In reply, Johnson attempts to distinguish the authority on which the prosecution relies for asserting "lack of remorse" as a free-standing aggravator.
Although I decline to be drawn into an expansive discussion of the issue, there are undoubtedly constitutional concerns, including concerns with the reliability of evidence, surrounding consideration of evidence of "lack of remorse" as an aggravating circumstance in a capital case. See, e.g., United States v. Caro, 597 F.3d 608, 627-31 (4th Cir.2010). Courts have also recognized that "lack of remorse" evidence may properly support a "future dangerousness" aggravating factor. See, e.g., United States v. Ortiz, 315 F.3d 873, 901-02 (8th Cir.2002) (finding that "lack of remorse" evidence properly supported a "non-statutory aggravating factor" of "future dangerousness"). Nevertheless, contrary to Johnson's contentions, I do not find any controlling or persuasive authority that "lack of remorse" can never be asserted as a separate aggravating factor, and I do find persuasive authority suggesting that it is or can be a separate aggravating factor. See, e.g., Zant v. Stephens, 462 U.S. 862, 885-86 & n. 22, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983) (observing that Georgia had not attached the "aggravating" label to factors that are constitutionally impermissible or totally irrelevant to the capital sentencing process, noting that Georgia law provided, "`Any lawful evidence which tends to show the motive of the defendant, his lack of remorse, his general moral character, and his predisposition to commit other crimes is admissible in aggravation, subject to the notice provisions of the statute.'" (quoting Fair v. State, 245 Ga. 868, 873, 268 S.E.2d 316 (1980))); United States v. Mikos, 539 F.3d 706, 718-19 (7th Cir. 2008) (noting, "It is common, and acceptable, to give lower sentences to persons who confess and show remorse than to persons who do not; the Sentencing Guidelines institutionalize this with a two-level or three-level reduction for acceptance of responsibility," and that, although such a reduction was not "automatic" in a capital case, it was equally appropriate to consider remorse or lack of remorse as a separate "non-statutory aggravating factor" in a capital case; also holding that, even if "lack of remorse" was not a valid "non-statutory aggravating factor," the defendant's death sentence in that case could be upheld on the basis of other
The primary authority on which Johnson relies in support of her contention that "lack of remorse" cannot be asserted as a free-standing or stand-alone "non-statutory aggravating factor," but only in support of a "future dangerousness" aggravating factor, is United States v. Davis, 912 F.Supp. 938 (E.D.La.1996). That decision does not go that far, however. Rather, the court's consideration of "lack of remorse" as an aggravating factor consisted of the following:
Davis, 912 F.Supp. at 946 (emphasis added). As the highlighted language plainly shows, the court in Davis expressly did not hold that "lack of remorse" is never a permissible free-standing "non-statutory aggravating factor," but only that it was not a proper free-standing "non-statutory aggravating factor" in that case.
Nevertheless, subsequent district court decisions have read or have appeared to read Davis as standing for such a per se prohibition. See, e.g., United States v. Diaz, 2007 WL 656831, *25-*26 (N.D.Cal. Feb. 28, 2007) (unpubl. op.) ("The court in Davis did not allow `lack of remorse' to be alleged as a stand-alone aggravating factor. It nevertheless permitted the government to present evidence of the defendant's alleged exultation as probative of `future dangerousness.'"); United States v. O'Driscoll, 203 F.Supp.2d 334, 345 (M.D.Pa.2002) (stating, "In Davis, although the government attempted to use `lack of remorse' as a separate aggravating factor, the district court did not permit the government to do so. However, the court did not foreclose the use of `lack of remorse' as probative of `future dangerousness,'" and, in the case before it, refusing to strike the "non-statutory aggravating factor" of "future dangerousness" and the supporting allegations of "low rehabilitative potential" and "lack of remorse" from the government's notice of intent to pursue the death penalty). As explained above, in
In United States v. Walker, 910 F.Supp. 837 (N.D.N.Y.1995), a decision handed down just prior to Davis, the district court also gave explicit reasons, in keeping with the pertinent constitutional and evidentiary concerns, for not allowing "lack of remorse" to be asserted or considered as a separate "non-statutory aggravating factor" in that case:
Walker, 910 F.Supp. at 855 (emphasis added).
In United States v. Cooper, 91 F.Supp.2d 90 (D.D.C.2000), the court considered Davis in light of other authorities. In Cooper, the court read Davis as not allowing certain evidence of "lack of remorse" — the defendant's alleged jubilation when he learned that his victim had been killed — as an independent "non-statutory aggravating factor," but as permitting the lack of remorse evidence to be used as probative of "future dangerousness." 91 F.Supp.2d at 112. The court recognized, however, that "[t]here does not appear to be a constitutional ban on the use of lack of remorse evidence as an aggravating factor." Id. at 112-13 (citing Zant v. Stephens, 462 U.S. 862, 885-86 n. 22, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983), and United States v. Nguyen, 928 F.Supp. 1525, 1541 (D.Kan.1996)). The court noted that such evidence is "subject to scrutiny to ensure that it is relevant, reliable, and its probative value outweighs any danger of unfair prejudice, confusion, or misle[ading the] jury," and does not "encroach[] on the defendant's constitutional right to remain silent," such as the defendant's alleged unwillingness to acknowledge in his post-arrest statements that he is blameworthy for the crimes to which he admitted." Id. Ultimately, the court concluded, "As to other lack of remorse evidence that does not encroach on the defendant's right to remain silent, such evidence, as it pertains to Cooper's future dangerousness while in
More recently, in United States v. Caro, 597 F.3d 608 (4th Cir.2010), the Fourth Circuit Court of Appeals identified important questions going to the admissibility of "lack of remorse" as an aggravating factor, in light of constitutional and evidentiary concerns, as the following: (1) whether "lack of remorse" is supported by evidence merely of the defendant's silence or by evidence of "affirmative conduct displaying lack of remorse [that] was significant and telling," and (2) whether the jury was adequately instructed that silence can never be considered regarding the "non-statutory aggravating factor" of "lack of remorse," because courts presume a jury acts in a manner consistent with proper instructions. 597 F.3d at 630-31.
Again, I have found no controlling or persuasive authority that "lack of remorse" can never be a free-standing "non-statutory aggravating factor," and, to the contrary, I have found authority that it can be a free-standing "non-statutory aggravating factor." See, e.g., Zant, 462 U.S. at 885-86 & n. 22, 103 S.Ct. 2733; Mikos, 539 F.3d at 718-19; Cooper, 91 F.Supp.2d at 112-13. The question is whether constitutional and evidentiary requirements for such a free-standing "non-statutory aggravating factor" can be met in a particular case. See, e.g., Caro, 597 F.3d at 627-31; Walker, 910 F.Supp. at 855.
I conclude that the prosecution in this case has identified evidence of "affirmative conduct displaying lack of remorse [that] [i]s significant and telling," not merely evidence of Johnson's silence. Caro, 597 F.3d at 630-31. The Third Notice Of Intent identifies such evidence as "repeated affirmative denial of her role in the murders"; "her demeanor, facial expressions, and tone of voice when discussing the murders"; and "statements she has made about victims, in particular oral statements about Lori Duncan not being fit to be a mother anyway, and written statements about how Terry DeGeus was buried on his knees." Third Notice Of Intent, § C.4. The prosecution has also identified, in its briefing of this "non-statutory aggravating factor," evidence that Johnson intended to profit from her crime with Bobby McNeese, by suing the government for false arrest, and evidence that Johnson put on a puppet show with another inmate and laughed during the part of the play dealing with slaying a "do-gooder."
I acknowledge that "lack of remorse" is a "subjective state of mind" that may be "difficult to gage objectively." Davis, 912 F.Supp. at 946. Nevertheless, the evidence cited by the prosecution here is akin to the evidence of "continuing glee," "boastfulness," and other affirmative conduct indicative of "a pervading and continuing lack of remorse," that even the court in Davis seemed to acknowledge might justify consideration of "lack of remorse" as a separate "non-statutory aggravating factor." Id. While I cannot say that the only inference that can be drawn from evidence of any one of the cited incidents is that Johnson lacked remorse for her involvement in the five murders, I can say that it is reasonably likely that the inference from each of them, and from the entirety of them, that a trier of fact might draw is a lack of remorse. Cf. Walker, 910 F.Supp. at 855 (noting "the numerous competing inferences which can be drawn from the use of ... vulgarisms," among other factors, made the evidence the defendant's use of single epithet more prejudicial than probative). Nor can I conclude that any of the incidents are so "trivial" in comparison
Johnson's challenge to the "lack of remorse" "non-statutory aggravating factor" is denied.
In the Third Notice Of Intent, the prosecution identifies ten uncharged incidents of criminal conduct as separate "non-statutory aggravating factors."
Johnson's "duplicativeness" argument hinges on her reading of the language of the "future dangerousness" "non-statutory aggravating factor" as including the ten "uncharged criminal conduct" factors. See, infra, p. 1022 (quoting the "future dangerousness" factor). Johnson argues that the "out of prison" aspect of "future dangerousness" is premised on all violent conduct that she has allegedly committed in and out of prison, i.e., including any "uncharged criminal conduct" factors.
The prosecution responds that neither the Supreme Court nor the Eighth Circuit Court of Appeals has adopted a rule barring the use of evidence to support more than one aggravating factor. The prosecution also argues that the "uncharged criminal conduct" and "future dangerousness" factors are not "logically duplicative." The prosecution explains that a jury might find that Johnson's commission of other criminal conduct was aggravating, but not find that it shows her "future dangerousness." The prosecution explains that, similarly, a jury could find that Johnson committed other criminal conduct, but not find that such conduct was aggravating, yet still find that her involvement in the murders and/or the prison assaults alleged in support of the "future dangerousness" factor show her "future dangerousness."
I set out the standards for determining "duplicativeness" of aggravating factors above, in Section IV.A.3., beginning on page 52. I find no "duplicativeness" problem as to the "uncharged criminal conduct" factors and "future dangerousness" factor. For reasons stated below, in Section IV.D.3., beginning on page 109, the "future dangerousness" factor in this case will be limited to "future dangerousness in prison." The prosecution has alleged five assaults by Johnson on other inmates while she was incarcerated, either in a county jail or in a federal prison, as the basis for the "future dangerousness in prison" factor. Contrary to Johnson's contentions, the incidents on which the "future dangerousness in prison" factor could rely do not include any of the ten "uncharged criminal conduct" factors, even though the "future dangerousness in prison" factor uses "including, but not limited to" language. This is so, because the full statement is, "Evidence that defendant will pose a danger to others in a prison setting includes assault[s] of other inmates, including but not limited to [five specified assaults]." Third Notice Of Intent, § C.15 (emphasis added). Thus, other incidents not specifically identified would have to be assaults of other inmates, and none of the "uncharged criminal conduct" factors involve such assaults. Therefore, in the circumstances of this case, the "uncharged criminal conduct" factors and the "future dangerousness" factor are based on factually distinct incidents. Cf. Bolden, 545 F.3d at 625 (considering whether allegedly duplicative aggravating factors had distinct factual components).
Johnson's "duplicativeness" argument as to the "uncharged criminal conduct" factors and the "future dangerousness" factor fails.
Johnson's argument that "uncharged criminal conduct" is generally inadmissible in capital sentencing proceedings has several prongs. I will consider each prong of that attack in turn.
Johnson argues that evidence of most types of "uncharged criminal conduct" is barred by the controlling statute. Johnson contends that former § 848(n) states five "statutory aggravating factors" that
The prosecution argues that Johnson has mixed the roles of "statutory aggravating factors," which make a defendant "eligible" for the death penalty, with the role of "non-statutory aggravating factors," which focus on the defendant's character, conduct, and circumstances for the purpose of individualized determination of whether a death sentence is justified. The prosecution points out that the decision on which Johnson relies for her statutory prohibition argument has been rejected by other courts and that the Eighth Circuit Court of Appeals has recognized that "uncharged criminal conduct" is routinely permitted as a "non-statutory aggravating factor."
In reply, Johnson does not reiterate her statutory prohibition argument, but asserts that courts have not allowed unfettered or "routine" use of uncharged criminal conduct as an independent aggravator in capital cases.
Johnson's argument that the plain language of § 848(n) limits criminal conduct that can be considered as an aggravating factor to the specific convictions listed in § 848(n)(2), (3), (4), (10), and (11), is unconvincing. As the prosecution suggests, this argument fails to recognize the difference between "statutory aggravating factors," which make a defendant "eligible" for the death penalty, and "non-statutory aggravating factors," which focus on the defendant's character, conduct, and circumstances for the purpose of an individualized determination of whether a death sentence is justified. See, supra, Section II.B.1, beginning on page 15. Once the threshold of "eligibility" has been crossed, former § 848(j) expressly allows the prosecution to assert, and the jurors to consider, "any other aggravating factor for which notice has been provided under subsection (h)(1)(B) of this section." Former 21 U.S.C. § 848(j); see also United States v. Chong, 98 F.Supp.2d 1110, 1128 n. 10 (D.Hawai'i 1999) (rejecting United States v. Peoples, 74 F.Supp.2d 930 (W.D.Mo. 1999), on which Johnson relies for her statutory limitation argument, as "resting on the erroneous factual premise that jurors cannot discern that statutory aggravating factors are more important than nonstatutory aggravating factors"). This language permitting consideration of "any other aggravating factor" as including uncharged criminal conduct does not "nullify" the limitations on criminal convictions relevant to the "eligibility" determination in § 848(n); rather, reading § 848(n) to preclude "non-statutory aggravating factors" based on prior criminal conduct, whether charged or uncharged, adjudicated or unadjudicated, would "nullify" § 848(j), at least to the extent that § 848(j) otherwise places no limitation on "non-statutory aggravating factors."
Indeed, the Eighth Circuit Court of Appeals rejected a similar statutory construction argument under the FDPA by defendant Holder in United States v. Allen, 247 F.3d 741 (8th Cir.2001), cert. granted and judgment vacated on other grounds, 536 U.S. 953, 122 S.Ct. 2653, 153 L.Ed.2d 830 (2002):
Allen, 247 F.3d at 789; see also United States v. Corley, 519 F.3d 716, 723 (7th Cir.2008) ("It is a stretch, however, and one not supported in law, to contend that the FDPA's recognition that prior convictions are relevant factors in aggravation should be read as precluding the consideration of other actions by the defendant that did not result in a trial or conviction. In fact, the FDPA specifically provides that the jury `may consider whether any other aggravating factor' supports a death sentence, 18 U.S.C. § 3592(c), and states that at the sentencing hearing `information may be presented as to any matter relevant to the sentence....' 18 U.S.C. § 3593(c)."); United States v. Higgs, 353 F.3d 281, 322-23 (4th Cir.2003) (rejecting a similar statutory limitation argument).
It also appears that every federal appellate court to consider the question, including the Eighth Circuit Court of Appeals, has concluded that introduction of evidence of unadjudicated criminal acts in a capital penalty phase is not barred by the Constitution. See United States v. Lujan, 603 F.3d 850 (10th Cir.2010) (allowing introduction of unadjudicated homicides during the penalty phase); United States v. Basham, 561 F.3d 302, 331-32 (4th Cir.2009) (unadjudicated sexual misconduct); United States v. Corley, 519 F.3d 716, 723-25 (7th Cir.2008) (unadjudicated homicide); Cummings v. Polk, 475 F.3d 230, 238 (4th Cir.2007) (noting that there is authority in the Fourth Circuit and the Supreme Court that evidence of unadjudicated crimes may be utilized in a capital sentencing trial); Brown v. Dretke, 419 F.3d 365, 376-77 (5th Cir.2005) (noting that "admission of unadjudicated offenses in the sentencing phase of a capital trial does not violate the eighth and fourteenth amendments," nor does the Constitution require "that unadjudicated extraneous offenses be proved beyond a reasonable doubt"); United States v. Lee, 274 F.3d 485, 494 (8th Cir.2001) (unadjudicated assaults, burglary, and arson).
In Lee, the Eighth Circuit Court of Appeals noted that the FDPA "erects very low barriers to the admission of evidence at capital sentencing hearings," and specifically authorizes evidence "as to any matter relevant to the sentence," and that the limitation of evidence at sentencing under the FDPA is the balance of probative value against the danger of prejudice, confusing the issues, or misleading the jury. 274 F.3d at 494. The court then concluded,
There seems to be little doubt that unadjudicated criminal conduct can be considered in support of another aggravating factor, such as "continuing threat" or "future dangerousness." See, e.g., id. (unadjudicated conduct was probative of "future dangerousness"); see also, e.g., Welch v. Workman, 639 F.3d 980, 1007 (10th Cir. 2011) (unadjudicated criminal conduct was probative of whether the defendant was a "continuing threat"); Lujan, 603 F.3d at 859-60 (an unadjudicated homicide was admissible to prove "future dangerousness," although the trial court had doubted that it could be admitted as an independent aggravating factor). Indeed, in that context, courts have held that the Constitution does not even require proof of the unadjudicated criminal conduct beyond a reasonable doubt. See, e.g., Corley, 519 F.3d at 726; Brown, 419 F.3d at 376-77.
The question here, however, is whether unadjudicated criminal conduct can be considered as an independent aggravating factor. Courts, including the Eighth Circuit Court of Appeals, have also allowed this. For example, in Allen, the court rejected defendant Holder's challenge to an "other criminal acts" "non-statutory aggravating factor," in part, as follows:
Allen, 247 F.3d at 789. More recently, in United States v. Bolden, 545 F.3d 609 (8th Cir.2008), the Eighth Circuit Court of Appeals also rejected challenges to independent "non-statutory aggravating factors" of "obstruction of justice" and "other criminal
Similarly, in United States v. Higgs, 353 F.3d 281 (4th Cir.2003), the Fourth Circuit Court of Appeals upheld submission of an unadjudicated "obstruction of justice" offense as an independent "non-statutory aggravating factor," over the defendant's Fifth, Sixth, and Eighth Amendment objections that the evidence lacked the requisite indicia of reliability necessary to impose a sentence of death and because the jury would be unable to evaluate the evidence fairly. 353 F.3d at 322-23. The court upheld the independent aggravating factor, because "[t]he jury was carefully instructed that the government was required to `prove beyond a reasonable doubt that the defendant tampered and attempted to tamper with evidence and witnesses for the purpose of obstructing the investigation of the kidnappings and murders' of the three women." Id. at 323.
In Devier v. Zant, 3 F.3d 1445 (11th Cir.1993) cert. denied, 513 U.S. 1161, 115 S.Ct. 1125, 130 L.Ed.2d 1087 (1995), the Eleventh Circuit Court of Appeals upheld consideration of an unadjudicated criminal offense of rape six months prior to the charged murder as an independent "non-statutory aggravating factor." 3 F.3d at 1464. The court rejected the defendant's argument that evidence of an unadjudicated crime was inherently unreliable, and thus violated the Eighth Amendment, because the relevant inquiry in the penalty phase is the defendant's previous criminal activity, even uncharged crimes, and the rape victim's testimony provided sufficiently reliable evidence of the crime. Id. at 1464-65. The court also rejected the defendant's argument that the jury had not been instructed as to the burden of proof for the offense, because the defendant had not raised it until his state post-conviction relief proceedings, and even in the absence of an instruction requiring proof beyond a reasonable doubt, the rape victim's testimony was sufficiently reliable. Id. at 1465-66; see also Pitsonbarger v. Gramley, 141 F.3d 728, 735-36 (7th Cir.1998) (the due process clause did not require proof beyond a reasonable doubt of uncharged offenses of "window peeping" and "public indecency" before they could be considered as aggravating factors for capital sentencing).
Here, whether or not due process would require that an unadjudicated criminal offense must be proved beyond a reasonable doubt before it can be asserted as an independent "non-statutory aggravating factor," see id.; Pitsonbarger, 141 F.3d at 735-36, the applicable statute, former § 848 expressly does require proof of any aggravating factor — statutory or non-statutory — unanimously and beyond a reasonable doubt. See former 21 U.S.C. § 848(j) ("The burden of establishing the existence of any aggravating factor is on the Government, and is not satisfied unless established beyond a reasonable doubt."); former 21 U.S.C. § 848(k) ("A finding with respect to any aggravating factor must be unanimous."); see also Corley, 519 F.3d at 724 (requiring consideration of the burden of proof for determining reliability and for a jury to determine whether the conduct may be considered); Higgs, 353 F.3d at 322-23 (the reliability requirement for an unadjudicated criminal offense to serve as an independent aggravating factor was met where the jury was required to find such a factor beyond a reasonable doubt).
Thus, as a general matter, a jury may consider an uncharged or unadjudicated criminal offense as an independent non-statutory aggravating factor, if it finds that offense has been proved beyond a reasonable doubt. However, questions regarding the prejudicial and probative impact of the evidence of "uncharged criminal conduct"
Johnson's next "general" attack on incidents of "uncharged criminal conduct" as independent "non-statutory aggravating factors" is that consideration of such factors will result in a biased and unreliable sentencing decision in violation of the Fifth, Sixth, and Eighth Amendments. She contends that a criminal conviction meets the exacting standards for reliability, because it has been proved beyond a reasonable doubt to an unbiased jury, but uncharged and unadjudicated criminal conduct has not. She argues that, even where a sentencing jury in a capital case is required to find unadjudicated criminal conduct beyond a reasonable doubt, as is required by the applicable statute,
I agree with the prosecution that Bolden, 545 F.3d at 624, and Allen, 247 F.3d at 789-90, foreclose an argument that "uncharged criminal conduct" is necessarily too unreliable to be used as an independent "non-statutory aggravating factor." As I explained above, I believe that Johnson's "reliability" objection fails, where the jury will be required to find the "uncharged criminal conduct" beyond a reasonable doubt.
On the other hand, it is not clear to me that Bolden and Allen foreclose an argument that allowing "uncharged criminal conduct" as independent "non-statutory aggravating factors" in the penalty phase of a capital sentencing proceeding presents a bias problem, based on the contention that jurors in that situation may not be able to make a fair and impartial determination or weighing of such conduct by a defendant who has been convicted of a capital offense. Certainly, those decisions do not specifically or expressly address bias or impartiality arguments.
Nevertheless, courts that have specifically considered such arguments have concluded that this concern — like the "unreliability" concern — does not reach constitutional proportions where the jury is properly instructed that it must find such conduct unanimously and beyond a reasonable doubt. See Higgs, 353 F.3d at 322-23 (rejecting the defendant's Fifth, Sixth, and Eighth Amendment objections that a capital sentencing jury would be unable to evaluate fairly evidence of uncharged criminal conduct where "[t]he jury was carefully instructed that the government was required to `prove beyond a reasonable doubt that the defendant tampered and attempted to tamper with evidence and witnesses for the purpose of obstructing the investigation of the kidnappings and murders' of the three women"); United States v. Umana, 707 F.Supp.2d 621, 631 (W.D.N.C.2010); United States v. Gilbert, 120 F.Supp.2d 147,
Johnson's bias and unreliability objection to the "uncharged criminal conduct" "non-statutory aggravating factors" also fails.
Next, Johnson argues that unadjudicated crimes evidence should be excluded because its probative value is necessarily far outweighed by the danger of unfair prejudice and confusing the jury. She admits, however, that this argument relies on her previous argument that evidence of unadjudicated criminal acts is unfairly prejudicial because it is unreliable. The prosecution asserts, again, that this argument is foreclosed by Eighth Circuit precedent. In reply, Johnson tries to explain her argument to be that, because the same "uncharged criminal conduct" is offered in support of both independent aggravating factors and as demonstrating "future dangerousness," the jury will be confused about which standard of proof to apply to those allegations. This is so, she argues, because only consideration of such conduct as an independent aggravating factor requires proof of the conduct beyond a reasonable doubt. She also argues that jurors will be confused and misled, to her prejudice, where the jurors must assess the reliability of decades-old misconduct that was not contemporaneously adjudicated. She also argues that this evidence of remote misconduct provides little probative insight into her current character.
Johnson's first "juror confusion" argument is unavailing here. Again, for the reasons stated below, in Section IV.D.3., beginning on page 109, the "future dangerousness" factor in this case will be limited to "future dangerousness in prison." Also, for the reasons stated above, in Section IV.C.2., and specifically beginning on page 71, the incidents on which the "future dangerousness in prison" factor could rely do not include any of the ten "uncharged criminal conduct" factors. I believe that Johnson's other "juror confusion" and "presumption of innocence" arguments are defeated, once again, by the requirement that the jurors must find the "uncharged criminal conduct" beyond a reasonable doubt. Her final argument that evidence of remote misconduct provides little insight into her current character is simply a "weight of the evidence" argument that should be made to the jury, but does not warrant exclusion of the "uncharged criminal conduct" evidence per se.
Johnson's last "general" argument to exclude the "uncharged criminal conduct" "non-statutory aggravating factors" is that there are relevance and heightened reliability requirements for "non-statutory aggravating factors" that are not met here. Her argument — although stated at much greater length — appears to be that the "uncharged criminal conduct" factors alleged here are not sufficiently serious, in the scale of societal values, to be weighed in the selection of who is to live or die, and that they do not have sufficient logical and legal "probity" in a life or death determination to produce a reliable penalty determination. The prosecution disputes what
In Corley, the Seventh Circuit Court of Appeals provided guidance on whether uncharged or unadjudicated criminal conduct should be admitted in the penalty phase in support of another aggravating factor, "future dangerousness." 519 F.3d at 724. Although the concern here is whether uncharged or unadjudicated criminal conduct should be admitted as an independent aggravating factor, I find that Corley identifies considerations pertinent to that situation, as well. In Corley, the court observed,
Corley, 519 F.3d at 724. Similarly, in Bolden, the Eighth Circuit Court of Appeals suggested that "uncharged criminal conduct," in that case, "obstruction of justice," must have "sufficient relevance" to be considered as an independent "non-statutory aggravating factor":
Bolden, 545 F.3d at 624. Thus, the court acknowledged the "sufficient relevance" standard, but held that it was met by the recognition that the specific uncharged offense, obstruction of justice, had been recognized as relevant to the penalty determination.
It appears that the federal district courts, rather than the federal appellate courts, have been the most concerned to develop more specific standards for the "sufficiency" of "non-statutory aggravating factors" that can be considered in the penalty phase of a capital trial, however. For example, in United States v. Gilbert, 120 F.Supp.2d 147, 150 (D.Mass.2000), one of the seminal decisions on this issue, United States District Court Judge Michael Ponsor observed,
Gilbert, 120 F.Supp.2d at 150. Judge Ponsor then addressed more specifically each of the three key factors that he had identified.
As to "relevance," Judge Ponsor explained,
Gilbert, 120 F.Supp.2d at 150-51. As to "reliability," he explained,
Gilbert, 120 F.Supp.2d at 151. Finally, as to "probative value versus prejudice," Judge Ponsor explained,
Gilbert, 120 F.Supp.2d at 151. Numerous district courts have articulated similar standards for determining the "sufficiency"
I note that the "probative value versus prejudice" standard under the ADAA, at issue in this case, is somewhat different than it is under the FDPA, at issue in Gilbert. Compare former 21 U.S.C. § 848(l) ("Any other information relevant to such mitigating or aggravating factors may be presented by either the Government or the defendant, regardless of its admissibility under the rules governing admission of evidence at criminal trials, except that information may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury." (emphasis added)); with 18 U.S.C. § 3593(c) ("Information is admissible regardless of its admissibility under the rules governing admission of evidence at criminal trials except that information may be excluded if its probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury."). Nevertheless, I also believe that Judge Ponsor has identified appropriate factors in Gilbert for the determination of whether alleged "non-statutory aggravating factors" are appropriate in this ADAA case.
I am less convinced by Judge Ponsor's conclusion that, in considering the "relevance" factor, "the court is guided by the statutory aggravating factors Congress has listed in [the applicable statute], which provide `a ready framework for determining Congressional intent' on this matter." Gilbert, 120 F.Supp.2d at 152 (quoting Davis, 912 F.Supp. at 944). More specifically, Judge Ponsor reasoned,
Gilbert, 120 F.Supp.2d at 152-53. My problem with this reasoning is much the same as my problem with the argument that specification of certain convictions as "statutory aggravating factors" in the ADAA or the FDPA indicates a congressional intent to exclude unadjudicated criminal conduct from consideration as "non-statutory aggravating factors," which I explained above, in Section IV.C.3.a.ii., and more specifically, beginning at page 73, and which I note is an argument that Judge Ponsor had also rejected. See Gilbert, 120 F.Supp.2d at 152.
First, as noted above, former § 848(j) expressly allows the prosecution to assert, and the jurors to consider, "any other aggravating factor for which notice has been provided," without limitation or specification of severity. Former 21 U.S.C. § 848(j). Reading former § 848(n), which defines "statutory aggravating factors," to impose a standard of "severity" or "gravity" on "non-statutory aggravating factors" would "nullify," in large part, the breadth of the "non-statutory aggravating factors" permitted by the plain language of former § 848(j).
Furthermore, neither the ADAA nor the FDPA provides a "general" or "generic" statutory definition of "aggravating factor"; they only provide definitions of certain kinds of conduct as what we call "statutory aggravating factors" that are sufficient to make a defendant "eligible" for the death penalty. Thus, "aggravating factor" must be understood in its ordinary sense. See, e.g., United States v. Hansl, 439 F.3d 850, 853-54 (8th Cir.2006) (reiterating that, in the absence of an express definition for a term used in a criminal statute, the court must "interpret the words as having their ordinary, common meaning" (citing United States v. Fountain, 83 F.3d 946, 952 (8th Cir.1996))). While the ordinary meaning of the word "aggravate" is "to make worse, more serious, or more severe," or to "intensify unpleasantly," it does not suggest any high level of seriousness or severity or even any specific level of intensification. See, e.g., MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY (10th ed., 1993), 22. Indeed, it also means "to rouse to displeasure or anger by usu. persistent and often petty goading." Id. (emphasis added).
Finally, the significant difference in the functions of "statutory aggravating factors" and "non-statutory aggravating factors" counsels against reading the statute to require some kind of "proportionality" between such factors in terms of severity, gravity, or seriousness. See, supra, Section II.B.1.; see also Chong, 98 F.Supp.2d at 1128 n. 10 (rejecting any supposed statutory limitation on "non-statutory aggravating factors" based on the definition of "statutory aggravating factors" as "resting on the erroneous factual premise that jurors cannot discern that statutory aggravating factors are more important than nonstatutory aggravating factors"). While there must certainly be significant gravity to any "statutory aggravating factor" that
This is not to say that "trivial" matters must be accepted as "non-statutory aggravating factors." The exclusion of "trivial" matters, however, comes from the requirement that a "non-statutory aggravating factor" must have sufficient relevance to whether the defendant should be sentenced to death, and not merely to whether the defendant could be considered a bad person. See Bolden, 545 F.3d at 624; Gilbert, 120 F.Supp.2d at 150. It also comes from the statutory requirement "that information may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury." Former 21 U.S.C. § 848(j); Corley, 519 F.3d at 724; Gilbert, 120 F.Supp.2d at 151. This is so, because a trivial matter would have slight probative value to the determination of the appropriate penalty, in light of its potential for prejudice, confusion of the issues, or misleading the jury.
With these standards in mind, I turn to consideration of Johnson's challenges to specific "uncharged criminal conduct" factors.
The fifth "non-statutory aggravating factor" alleged in the Third Notice Of Intent is that "[Johnson] committed physical assault and battery of Mason City Police Officer, Dave Tyler, on September 11, 1989." Johnson asserts that, far from being a violent altercation between her and a police officer, the incident involved her pushing the officer after he had arrested Terry DeGeus for disorderly conduct or public intoxication and DeGeus had resisted arrest. She contends that this incident is properly characterized as interference with an officer, an infraction at best, not as an "assault and battery." Thus, she asserts that this incident simply lacks the same sort of seriousness or severity as the "statutory aggravating factors" and should not be weighed with those factors to determine whether or not the death penalty is justified — a "proportionality" argument that I rejected just above. The prosecution does not concede that Johnson accurately describes the factual circumstances underlying any of the "uncharged criminal conduct" factors, including this one.
Again, as a general premise, "uncharged criminal conduct," and particularly such conduct demonstrating violence or obstruction of justice, is admissible as a "non-statutory aggravating factor" in a capital sentencing. Bolden, 545 F.3d at 624-25; Allen, 247 F.3d at 789. Thus, an incident of alleged violence, particularly against a police officer, as is alleged here, is sufficiently relevant to whether the defendant should be sentenced to death. See Bolden, 545 F.3d at 624; Gilbert, 120 F.Supp.2d at 150. Evidence in the form of first-hand testimony about the incident from officers present at the scene is also sufficient to meet the "reliability" requirement set out in Gilbert, 120 F.Supp.2d at 150-51. See, e.g., Zant, 3 F.3d at 1464-65 (concluding that a rape victim's testimony was sufficient to meet the "reliability" requirement). Ultimately, of course, the prosecution must prove the incident beyond a reasonable doubt. See former 21 U.S.C. § 848(j) ("The burden of establishing the existence of any aggravating factor is on the Government, and is not satisfied unless established beyond a reasonable doubt."); see also Corley, 519 F.3d at 724 (requiring consideration of the burden of proof for determining reliability and for a jury to determine whether the conduct may be considered); Higgs, 353 F.3d at 322-23 (the reliability requirement for an unadjudicated criminal offense to serve as an independent aggravating factor was met where the jury was required to find such a factor beyond a reasonable doubt). Furthermore, the new jury for Johnson's "penalty retrial" will be properly instructed that, in weighing the aggravating and mitigating factors, they must not simply count each factor and reach a decision based on which number is greater, but should individually consider the weight and value of each factor before deciding whether a sentence of death is justified on a particular count. Cf. Bolden, 545 F.3d at 625 (considering such a factor as mitigating any "duplicativeness").
It is possible that, when I have heard the evidence relating to this factor in the context of the "penalty retrial," I will be convinced that its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. Former 21 U.S.C. § 848(j); Corley, 519 F.3d at 724; Gilbert, 120 F.Supp.2d at 151. However, I am reluctant, at least at this point in the proceedings, to take from the jury the opportunity to determine whether or not the incident can be proved beyond a reasonable doubt and to determine what weight, if any, it deserves in the determination of the appropriate penalty. For now, it is sufficient to conclude that the prosecution has shown that the incident is relevant to the determination of the penalty, and that it may satisfy the other requirements for a "non-statutory aggravating factor," so that it will not be stricken from the Third Notice Of Intent at this time.
The sixth "non-statutory aggravating factor" alleges that Johnson "committed perjury before the grand jury: October 27, 1993; March 5, 1996; July 23, 1996; and April 11, 2000." Johnson argues that such perjury offenses are neither sufficiently grave to be relevant to capital sentencing nor sufficiently reliable to be considered as part of the decision on whether a capital
While these alleged incidents of perjury might have involved obstruction of justice, they did not involve the sort of obstruction of justice by violent means at issue in Bolden, 545 F.3d at 625, involving a motive to kill a person to eliminate a witness, or the tampering with witnesses, including plans to eliminate a witness and tampering with evidence, at issue in the "obstruction of justice" factor in Higgs, 353 F.3d at 322-23. Indeed, I have difficulty seeing how these incidents of alleged perjury, even if they are proved beyond a reasonable doubt, are sufficiently relevant to whether the defendant should be sentenced to death. See Bolden, 545 F.3d at 624; Gilbert, 120 F.Supp.2d at 150. That being so, the danger of unfair prejudice, confusion of the issues, or misleading the jury that these incidents pose substantially outweighs their probative value. Former 21 U.S.C. § 848(j); Corley, 519 F.3d at 724; Gilbert, 120 F.Supp.2d at 151.
Therefore, the "uncharged criminal conduct" factor based on alleged "perjury" will be stricken.
Johnson contends that the following "uncharged criminal conduct" factors should also be stricken as involving nothing more than "threatening words and warped bravado": number seven, alleging that "[o]n multiple occasions between 1995 and 1996, defendant threatened to harm Kathy Rick, Dustin Honken's former girlfriend"; number eight, alleging that "[i]n 1997, defendant threatened Daniel Cobeen, a person she then knew to be a witness cooperating with the United States Government, by making a hand gesture as if she was shooting him with a handgun"; number eleven, alleging that "[d]uring the sentencing hearing of Dustin Honken in February 1998, defendant threatened to harm the judge, prosecutor, and law enforcement agents"; and number thirteen, alleging that "[i]n 1998, defendant threatened to kill or injure Doug Book, Chief of Police of Forest City, Iowa, and plotted to kill or injure Doug Book's dogs by use of poison," at least to the extent that the threats only related to the dogs.
Johnson contends that threatening words and warped bravado, without affirmative acts, are simply not sufficient to justify a death sentence; that some of these incidents are too attenuated to have any probative value; and that any probative value that they may have is outweighed by the potential for prejudice and confusion. The prosecution argues that these "uncharged criminal conduct" factors are not just threatening words and warped bravado, because, in other circumstances, Johnson has acted on her words to commit violent acts. More specifically, the prosecution argues that Johnson threatened to harm Dan Cobeen, a government witness, after she had, in fact, helped to kill a government witness, Greg Nicholson, and that she threatened to harm other inmates, and in fact, assaulted them. Thus, the prosecution argues, this is not simply a defendant who makes empty threats, but a defendant who carries them out. The prosecution also argues that the jury should determine whether this conduct constitutes empty threats or aggravating circumstances. Johnson responds that none of these incidents actually involved violent acts, so that she did not carry out these threats.
Johnson is correct that, in United States v. Davis, 912 F.Supp. 938 (E.D.La.1996), the district court rejected aggravating factors based solely on "threatening rhetoric," as follows:
Davis, 912 F.Supp. at 945. In my view, this analysis overlooks circumstances in which threats can, indeed, constitute criminal offenses and aggravating circumstances. Moreover, in my view, this analysis overlooks the fact that the question of whether a statement constitutes mere "threatening words" or "warped bravado," rather than a true threat, is for the jury to decide, and any danger of unfair prejudice is mitigated, because the jury must find a true threat beyond a reasonable doubt.
For example, the Supreme Court has noted, in a number of decisions, that various states identify a conviction of a felony involving the use or threat of violence as an aggravating factor. See, e.g., Porter v. McCollum, 558 U.S. 30, 32 n. 2, 130 S.Ct. 447, 449 n. 2, 175 L.Ed.2d 398 (2009) (Florida law); House v. Bell, 547 U.S. 518, 532, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006) (Tennessee law); Rompilla v. Beard, 545 U.S. 374, 399, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005) (Pennsylvania law). Indeed, former § 848(n)(5) identifies a "statutory aggravating factor" involving a "grave risk" of death to others, during the commission of the capital offense or while escaping apprehension for such an offense, and one district court has concluded that if the government could prove that the defendant threatened bystanders at gunpoint, the jury could consider the aggravating factor of grave risk to others. See United States v. Walker, 910 F.Supp. 837, 849-50 (N.D.N.Y.1995), cited in United States v. Barnette, 211 F.3d 803, 819 (4th Cir.2000). The fact that a "non-statutory aggravating factor" does have a statutory analogue does reasonably suggest that the "non-statutory aggravating factor" is sufficiently relevant to the determination of whether a death sentence is justified. I also note that, under Iowa criminal law, "assault" is defined, inter alia, as "[a]ny act which is intended to place another in fear of immediate physical contact which will be painful, injurious, insulting, or offensive, coupled with the apparent ability to execute the act." IOWA CODE § 708.1(2). Thus, no physical act of violence is actually required to constitute an "assault" under Iowa law, a threat is sufficient, if the defendant has the apparent ability to execute the threat.
In light of these authorities, I am satisfied that, to the extent that the prosecution can prove at the "penalty retrial," beyond a reasonable doubt, that any of these "uncharged criminal conduct" incidents would have constituted an "assault" or other crime under Iowa or federal law, then the fact that they are based on a threat of violence, but no other violent "act," does not mean that they are insufficient to be "non-statutory aggravating factors."
I am also satisfied that, if the prerequisite identified above is met, then these incidents are sufficiently relevant to whether the defendant should be sentenced to death. See Bolden, 545 F.3d at 624; Gilbert, 120 F.Supp.2d at 150. This is so, because they indicate Johnson's character by showing that, in other circumstances besides those involved in the CCE murders, she resorted to threats of violence. Moreover, I will be better able to determine, when the evidence is presented in the context of the "penalty retrial,"
Johnson's challenges to these "uncharged criminal conduct" factors are denied for the present.
Johnson also challenges the ninth "non-statutory aggravating factor," which alleges the following:
I will consider this factor, at least for the present, to be limited to the attempt to obtain the release of Dennis Putzier.
Johnson argues that Putzier omitted this incident in some testimony, and changed his testimony about it from one proceeding to another, which casts doubt on the reliability of the evidence supporting this factor. Johnson also argues that this incident does not satisfy the requirements of an factor, because there was no hope that Putzier was ever going to escape from the jail in the manner indicated in his and other testimony in various proceedings. Johnson also argues that, apart from Honken's statements to Putzier, there is no evidence that she even knew about Honken's plan for Putzier's escape, much less that she did any act to assist or encourage the escape. The prosecution asserts that Johnson's rendition of the facts is demonstrably unreliable. The prosecution also argues that this factor is based on evidence of Johnson's own conduct and other evidence, beside Putzier's testimony, although the prosecution argues that this is not the time or place to discuss the evidence.
I am not convinced that the likelihood of success of a plan to help a felon to escape from custody so that he could harm witnesses against the defendant and others has anything to do with its relevance to the determination of the proper penalty in a capital case. Rather, however unlikely success might have been, evidence that the defendant and her cohorts took steps to put such a plan into action is, in my view, sufficiently relevant to whether the defendant should be sentenced to death. See Bolden, 545 F.3d at 624; Gilbert, 120 F.Supp.2d at 150. This is so, because that evidence indicates Johnson's character by showing that she was willing to resort to extreme measures to attempt to eliminate witnesses or to retaliate against them and to harm others involved in the investigation of her crimes or the administration of justice. Furthermore, the new jury for Johnson's "penalty retrial" will be properly instructed that, in weighing the aggravating and mitigating factors, they must not simply count each factor and reach a decision based on which number is greater, but should individually consider the weight and value of each factor before deciding whether a sentence of death is justified on a particular count. Cf. Bolden, 545 F.3d at
Johnson's challenge to this "non-statutory aggravating factor" is denied, at least for now.
Johnson also challenges "non-statutory aggravating factor" number ten, which alleges that she "conspired with Dustin Honken to aid his escape from the Woodbury County jail in 1996." Again, Johnson argues that this factor does not resemble any "statutory aggravating factor" and that the witness who provides most of the evidence for this "non-statutory aggravating factor," and who would also supposedly obtain a rocket launcher to break inmates out of the jail, is unreliable and did not have access to a rocket launcher. She also contends that the plan, as explained by that witness, was actually for Honken to remain in jail until the charges against him were dropped, because the escapees had killed the witnesses against him. Johnson also contends that there is no credible evidence linking her to this plot, or "scam," as she prefers to call it, or that she even knew about it.
Although the prosecution offers no specific defense of this "non-statutory aggravating factor," to the extent that the prosecution can ultimately prove the scheme and Johnson's involvement in it beyond a reasonable doubt, it is, in my view, sufficiently relevant to whether the defendant should be sentenced to death. See Bolden, 545 F.3d at 624; Gilbert, 120 F.Supp.2d at 150. This is so, because, again, this incident indicates Johnson's character by showing that she was willing to resort to extreme measures to attempt to obtain Honken's release or the release of persons who would help eliminate witnesses. Furthermore, the new jury for Johnson's "penalty retrial" will be properly instructed that, in weighing the aggravating and mitigating factors, they must not simply count each factor and reach a decision based on which number is greater, but should individually consider the weight and value of each factor before deciding whether a sentence of death is justified on a particular count. Cf. Bolden, 545 F.3d at 625 (considering such a factor as mitigating any "duplicativeness"). Finally, I will be better able to determine, when the evidence is presented in the context of the "penalty retrial," whether any danger of unfair prejudice, confusion of the issues, or misleading the jury that this incident might pose substantially outweighs its probative value. Former 21 U.S.C. § 848(j); Corley, 519 F.3d at 724; Gilbert, 120 F.Supp.2d at 151.
Johnson's challenge to this "non-statutory aggravating factor" is denied, at least for now.
Next, Johnson challenges "non-statutory aggravating factor" number twelve, which alleges that she "distributed controlled substances, specifically methamphetamine, after 1997." Although she admits that this "non-statutory aggravating factor" has a corollary among the "statutory aggravating factors," in former § 848(n)(4), she argues that it should be excluded, because it does not involve "death-worthy" conduct. She argues that, if the prosecution is permitted to submit this "non-statutory aggravating factor" to the jury, unadjudicated
Notwithstanding the lack of any specific defense of this "non-statutory aggravating factor" by the prosecution, I have already rejected Johnson's "statutory prohibition" and "proportionality" arguments. Moreover, the situation here, as Johnson acknowledges, is that there is, in fact, a "corollary" "statutory aggravating factor," former § 848(n)(4), which is defined as follows:
Former 21 U.S.C. § 848(n)(4) (emphasis added). Both the former § 848(n)(4) factor and the "non-statutory aggravating factor" alleged here involve distribution of a controlled substance. They differ in that the former § 848(n)(4) factor requires convictions, but the "non-statutory aggravating factor" involves an "uncharged" offense. That difference is undermined, however, by the requirement that, to stand as a "non-statutory aggravating factor," the uncharged offense, like a prior conviction, would have to be proved beyond a reasonable doubt. The only salient difference, then, is that the former § 848(n)(4) factor requires "two or more" offenses, but the "non-statutory aggravating factor" appears to allege only one distribution of methamphetamine after 1997. While identification of certain convictions as "statutory aggravating factors" certainly does not preclude identification of uncharged offenses as "non-statutory aggravating factors," I have already acknowledged that the fact that a "non-statutory aggravating factor" does have a statutory analogue does reasonably suggest that the "non-statutory aggravating factor" is sufficiently relevant to the determination of whether a death sentence is justified.
Nevertheless, there are three reasons why I find this "non-statutory aggravating factor" too troubling to be allowed in this case. First, I believe that it is "duplicative" of the underlying CCE murders. This is so, because, in order to convict Johnson of aiding and abetting the CCE murders, the prosecution was required to prove, and the jury was required to find, beyond a reasonable doubt, the existence of the CCE, including a "series of three or more violations." See Preliminary Instructions (docket no. 520), No. 7 — Requirements For Proof: Counts 6 Through 10: CCE Murder, and No. 8 — Requirements For Proof: "Continuing Criminal Enterprise" Defined; ["Merits"] Verdict Form (docket no. 527), Counts 6 Through 10, Step 2. The original jurors found, unanimously and beyond a reasonable doubt, that the "series of violations" included "[d]istribution of a methamphetamine mixture from about 1992 to and including 1998," and that such violations occurred both before and after the killings. The original jury also found that Johnson was a member of the CCE who acted "in concert" with Honken both before and after the killings. ["Merits"] Verdict Form (docket no. 527), Counts 6 Through 10, Step 2. Thus, Johnson's "distribut[ion of] controlled substances, specifically methamphetamine, after 1997," would necessarily have been included in the "[d]istribution of a methamphetamine mixture from about 1992 to and including 1998" included in the
Second, defining a single uncharged incident of distribution of a controlled substance as a "non-statutory aggravating factor," where two or more convictions are required to establish the "statutory aggravating factor," seems to me to be something of an "end run" around the statute. The difference here between this "uncharged methamphetamine distribution" "non-statutory aggravating factor" and other "uncharged criminal conduct" "non-statutory aggravating factors" that I concluded were not barred by former § 848(n), in light of former § 848(j), is that this one provides a "second bite at the apple." That is, if the prosecution has failed to allege or prove a "statutory aggravating factor" based on two or more convictions of methamphetamine distribution, to establish the defendant's "eligibility" for the death penalty, I do not believe that, in light of the sequential process for determining the penalty under former § 848, the prosecution should be allowed to try to assert a single incident of methamphetamine distribution, whether adjudicated or unadjudicated, charged or uncharged, as a "non-statutory aggravating factor." See, supra, p. 974 (discussing the effect of the sequential penalty process on "second bites").
Third, notwithstanding identification of at least two comparable convictions as a "statutory aggravating factor," I have difficulty seeing how a single incident of drug dealing (if it is not, in fact, duplicative of the underlying offense), even if it is proved beyond a reasonable doubt, is sufficiently relevant to whether the defendant should be sentenced to death. See Bolden, 545 F.3d at 624; Gilbert, 120 F.Supp.2d at 150. That being so, the danger of unfair prejudice, confusion of the issues, or misleading the jury that proof of this "non-statutory aggravating factor" would pose substantially outweighs its probative value. Former 21 U.S.C. § 848(j); Corley, 519 F.3d at 724; Gilbert, 120 F.Supp.2d at 151.
Therefore, the "uncharged criminal conduct" factor based on "uncharged distribution of methamphetamine after 1997" will be stricken.
Finally, Johnson challenges "non-statutory aggravating factor" number fourteen, which alleges the following:
Third Notice Of Intent, § C.14.
Johnson argues that there is no evidence that any acts to further the objectives alleged in this factor were done or that any harm came to the alleged target. She contends that this is simply another incident of "threatening words and warped bravado," unaccompanied by any affirmative acts, that should not be considered a "non-statutory aggravating factor." Again, the prosecution makes no specific defense of this "non-statutory aggravating factor," but argues generally that this and other incidents of threatened violence are sufficiently serious to constitute "non-statutory aggravating factors," because they
Johnson's argument fails, because, to the extent that the prosecution can prove beyond a reasonable doubt that Johnson attempted to hire an undercover agent and a confidential informant for the purpose indicated, it will have proved more than just "threatening words" or "warped bravado," but will, instead, have proved an act, the alleged "solicitation," to attempt to cause violence and harm to the drug dealer. Again, I do not believe that success of the plan is relevant to the penalty determination. Rather, to the extent that the prosecution can prove that soliciting someone to attempt to harm or kidnap another is a crime, then such conduct is sufficiently relevant to whether the defendant should be sentenced to death. See Bolden, 545 F.3d at 624; Gilbert, 120 F.Supp.2d at 150. This is so, because the incident indicates Johnson's character by showing that, in other circumstances besides those involved in the CCE murders, she resorted to threats of violence, an attempt at violence, or solicitation of violence. Furthermore, the new jury for Johnson's "penalty retrial" will be properly instructed that, in weighing the aggravating and mitigating factors, they must not simply count each factor and reach a decision based on which number is greater, but should individually consider the weight and value of each factor before deciding whether a sentence of death is justified on a particular count. Cf. Bolden, 545 F.3d at 625 (considering such a factor as mitigating any "duplicativeness"). Finally, I will be better able to determine, when the evidence is presented in the context of the "penalty retrial," whether any danger of unfair prejudice, confusion of the issues, or misleading the jury that this incident might pose substantially outweighs its probative value. Former 21 U.S.C. § 848(j); Corley, 519 F.3d at 724; Gilbert, 120 F.Supp.2d at 151.
Johnson's challenge to this "non-statutory aggravating factor" is denied, at least for now.
The Third Notice Of Intent also identifies "future dangerousness" as a "non-statutory aggravating factor," as follows:
Third Notice Of Intent, § C.15. I agree with the parties that this factor has two aspects: "future dangerousness in prison,"
Johnson makes the following challenges to this "non-statutory aggravating factor": (1) it is barred by collateral estoppel/double jeopardy; (2) it should be limited to "future dangerousness in prison," because imprisonment for less than life without parole is not a sentencing option in the case; (3) it fails to provide constitutionally sufficient notice, because it is stated as "including, but not limited to" certain specified conduct; and (4) the five alleged incidents of assaults on other inmates are not the stuff of which death sentences should be made. I will consider these challenges in turn.
Johnson argues that this factor should be excluded on the grounds of collateral estoppel/double jeopardy, because not a single original juror found the prosecution's "non-statutory aggravating factor" that she would be a danger in the future to the lives and safety of other persons. She contends that this issue has, therefore, necessarily been decided against the prosecution, that decision amounts to an "acquittal" of that factor, and the prosecution should not be allowed a second chance to prove it. The prosecution contends that there is no such collateral estoppel/double jeopardy bar to the "future dangerousness" factor, because controlling authority demonstrates that a capital defendant is not "acquitted" of a certain aggravating factor, even if a jury does not find it in prior trials, because such aggravating factors are "standards" to guide the jury's decision, not separate sentences.
I reject Johnson's "collateral estoppel/double jeopardy" argument for the same reasons that I concluded, above, that an argument that Johnson had been "acquitted" of the "substantial planning and premeditation" "statutory aggravating factor" as to all of the CCE murders except that of Terry DeGeus, was unavailing, see, supra, beginning on p. 974, and the reasons that I also rejected Johnson's argument that seeking the death penalty for the CCE murder of Greg Nicholson violated double jeopardy, see, supra, beginning on p. 979. See, e.g., Sattazahn v. Pennsylvania, 537 U.S. 101, 109, 123 S.Ct. 732, 154 L.Ed.2d 588 (2003) ("[T]he touchstone of double-jeopardy protection in capital-sentencing proceedings is whether there has been an `acquittal.'"). Somewhat more specifically, under the ADAA, a finding of an "aggravating factor," either "statutory" or "non-statutory," had to be unanimous, but a rejection of any "aggravating factor" did not have to be unanimous. See former 21 U.S.C. § 848(k) ("A finding with respect to any aggravating factor must be unanimous," but "[a] finding with respect to a mitigating factor may be made by one or more of the members of the jury."). The statute does not require unanimity as to the non-existence of any "aggravating factor," and the original jury was not instructed that unanimity was required to reject an "aggravating factor." Thus, Johnson's assertion that not a single original juror found the "future dangerousness" factor is wrong; all that is apparent from the prior "penalty phase" verdict is that the original jurors did not unanimously agree that the factor had been proved beyond a reasonable doubt. Rejection of this "non-statutory aggravating factor" has only the non-preclusive effect of a "deadlocked" or "hung" jury. Sattazahn, 537 U.S. at 109-10, 123 S.Ct. 732.
Moreover, as the prosecution points out, in Storey v. Roper, 603 F.3d 507 (8th Cir. 2010), the Eighth Circuit Court of Appeals concluded that submission of a "pecuniary
This challenge to the "non-statutory aggravating factor" of "future dangerousness" is denied.
Next, Johnson argues that any "future dangerousness" "non-statutory aggravating factor" must be limited to "future dangerousness in prison." She reiterates her arguments that this is so, because a sentence of less than life in prison is simply not an option in this case, where she has already been sentenced to life imprisonment without possibility of release on
I will not reiterate all of my reasons for concluding that all of the penalties for CCE murder in this case were vacated by my ruling on Johnsons § 2255 Motion, including the life sentence for the CCE murder of Greg Nicholson in
Some further analysis of the question is appropriate here, however, in light of precedents that have considered it. For example, the Eighth Circuit Court of Appeals has held that due process does not require an express limitation on "future dangerousness" evidence, where the jury is informed of the defendant's ineligibility for parole. See Allen, 247 F.3d at 788-89 (stating, "A defendant in prison for life is still a risk to prison officials and to other inmates, and even though a life sentence without the possibility of parole greatly reduces the future danger to society from that particular defendant, there is still a chance that the defendant might escape from prison or receive a pardon or commutation of sentence," and holding that a "non-statutory aggravating factor" of "future dangerousness" was properly submitted,
Moreover, it bears reiterating that the limitation of the "future dangerousness" factor to "future dangerousness in prison" in this case means that the incidents on which the "future dangerousness in prison" factor can rely are limited to the five specific assaults on inmates listed in the Third Notice Of Intent and any other assaults on inmates, notwithstanding that the factor uses "including, but not limited to" language. This is so, because the full statement is, "Evidence that defendant will pose a danger to others in a prison setting includes assault[s] of other inmates, including but not limited to [five specified assaults]." Third Notice Of Intent, § C.15. (emphasis added). Thus, other incidents not specifically identified would have to be assaults of other inmates, and none of the "uncharged criminal conduct" factors involve such assaults.
The "future dangerousness" factor will be limited to "future dangerousness in prison," and in support of that factor, the prosecution may rely only on incidents of assaults by Johnson on other inmates.
Next, Johnson contends that the allegation of the "future dangerousness" factor fails to provide constitutionally sufficient notice, because of the open ended qualifier "including but not limited to," particularly where the prosecution has indicated its intention to assert an additional but as yet undisclosed incident in support of "future dangerousness in prison." The prosecution asserts that Johnson has failed to consider contrary authority. Indeed, the prosecution asserts that it has provided more notice than is required by listing instances of conduct showing a future danger. The prosecution also asserts that "future danger" has a common meaning that jurors can understand, so that the "including but not limited to" language is not unconstitutionally vague. In reply, Johnson attempts to show that the cases relied on by the prosecution are inapposite.
The Eighth Circuit Court of Appeals has recognized that, "`[a]s long as an aggravating factor has a core meaning ... capable of understanding, it will pass constitutional muster'" over an allegation of vagueness. Moore v. Kinney, 320 F.3d 767,
Cisneros, 363 F.Supp.2d at 837.
Here, as I reiterated just above, the "future dangerousness in prison" "non-statutory aggravating factor" is expressly limited to the five specific assaults on inmates listed and any other assaults on inmates, notwithstanding that the factor uses "including, but not limited to" language. Thus, here, as in Cisneros, "the full text of the factor properly limits the scope of the factor, and it provides the defendant with adequate notice as required by the death penalty statute." 363 F.Supp.2d at 837. Moreover, "assault[s] of other inmates" has a "common sense core of meaning as required by the Constitution," such that it "is not vague despite [this factor's] use of the words `including, but not limited to.'" Id.; accord Moore, 320 F.3d at 774; Allen, 247 F.3d at 786. This is true, even though the prosecution has represented that it has learned of another assault on an inmate by Johnson, which it will add to the Third Notice Of Intent, if it obtains sufficient details to warrant doing so.
Johnson's challenge to this factor as providing insufficient notice, thus, fails.
As her last challenge to this factor, Johnson contends that the five alleged incidents of assaults on other inmates are not the stuff of which death sentences should be made. I find it unnecessary to discuss each of the five listed incidents separately. Suffice it to say that, in each incident, Johnson was found guilty of "fighting" in disciplinary proceedings in the jail or prison, despite her contention that, in some of the incidents, she acted in self-defense. These incidents and, more specifically, the "future dangerousness in prison" factor that they support are sufficiently relevant to whether the defendant should be sentenced to death. See Bolden, 545 F.3d at 624; Gilbert, 120 F.Supp.2d at 150. This is so, because they indicate Johnson's character by showing that, even while incarcerated, she has resorted to violence against other inmates. Furthermore, the new jury for Johnson's "penalty retrial" will be properly instructed that, in weighing the aggravating and mitigating factors, they must not simply count each factor and reach a decision based on which number is greater, but should individually consider the weight and value of each factor before deciding whether a sentence of death is justified on a particular count. Cf. Bolden, 545 F.3d at 625 (considering such a factor as mitigating any "duplicativeness"). Finally, I will be better able to determine, when the evidence is presented in the context of the "penalty retrial," whether any danger of unfair prejudice, confusion of the issues, or misleading the jury that these incidents might pose substantially outweighs their probative value. Former 21 U.S.C. § 848(j); Corley, 519 F.3d at 724; Gilbert, 120 F.Supp.2d at 151.
Johnson's challenge to the sufficiency of the incidents supporting this "non-statutory aggravating factor," as limited to "future dangerousness in prison," is denied.
The last two "non-statutory aggravating factors" alleged in the Third Notice Of Intent are the following:
Third Notice Of Intent, § C.16-17. Each factor then alleges specific facts relating to each victim's "unique characteristics" and relating to each victim's family members' loss or suffering because of the victim's death, respectively.
Johnson contends that the prosecution has improperly severed into two separate "non-statutory aggravating factors" "victim impact" and "victims' family member impact," which really constitute only a single aggravator. She contends that the Supreme Court has authorized consideration of both "victim impact" and "victims' family member impact" as a single factor, and that severing the two aspects allows
The prosecution responds that there is authority from the Eighth Circuit Court of Appeals that these factors may be asserted separately and that the two factors are not logically "duplicative," where they involve impact on the victims, on the one hand, and on the victims' family members, on the other. The prosecution also points out that Johnson has not articulated what sort of "limits" she believes that I should put on this evidence.
In reply, Johnson argues that the Supreme Court's ruling that evidence about the victim and the impact of the victim's murder on the victim's family is relevant to the decision of whether or not the death penalty should be imposed is authority that such information constitutes only a single class of aggravating evidence. She contends that the lack of objection to consideration of "victim impact" and "impact on victims' family members" in Eighth Circuit cases, where there was no objection to treating them separately, provides no authority for separate consideration of these duplicative factors.
I believe that Johnson reads far too much into the Supreme Court's decision in Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991), when she reads it as authority only for the combined consideration of "victim impact" and "impact on victims' family members" as a single aggravating factor. In Payne, the Court explained,
Payne, 501 U.S. at 817, 111 S.Ct. 2597. The Court ultimately held, as follows:
Payne, 501 U.S. at 827, 111 S.Ct. 2597.
Johnson's error is the obverse of the one with which she charges the prosecution: The Court in Payne was never asked to consider whether "victim impact" and "victims' family member impact" constituted but a single aggravating factor, and she has pointed to nothing in Payne that suggests, for example, that the Court considered only the combination of the two sufficient to constitute an aggravating factor. I believe that the proper question, not directly posed or answered in Payne, is whether "victim impact" and "victims' family member impact" are "duplicative," if they are asserted as separate "non-statutory aggravating factors."
As I have elsewhere explained in more detail, the "duplicativeness" analysis as to
This is so, because, in Payne, the Court described both the victim's personal characteristics, see id. at 817, 111 S.Ct. 2597, and the victim's uniqueness as an individual human being, see id. at 823, 111 S.Ct. 2597, as aspects of "victim impact." When the Court described "victims' family member impact," however-albeit as a kind of "victim impact" — the Court referred specifically to the effect or emotional impact of the crimes on the victim's family. Id. at 817, 821, 111 S.Ct. 2597. While the same facts may be the basis for both "victim impact" and "victims' family member impact," those facts would support different inferences: inferences concerning the victim's character or uniqueness and what he or she lost, on the one hand, and inferences concerning the effect or emotional impact on the victim's family members, on the other. Bolden, 545 F.3d at 625. This is comparable to the distinction between inferences about the defendant's conduct and inferences about the victim in Paul arising from the same evidence about the nature, circumstances, and effect of the attack on the victim. 217 F.3d at 1001-02. To put it another way, the effect or emotional impact of the victim's murder on the victim's family is a distinct aspect from the victim's personal characteristics and uniqueness as an individual human being, whether or not it is based, in part, on the victim's personal characteristics and uniqueness. Moreover, "impact on victim's family members" might focus exclusively on such "impersonal" facts as the loss of financial support ensuing from the victim's death, rather than on the victim's personal characteristics or uniqueness as an individual human being.
Johnson's challenge to the "victim impact" factor and the "victims' family member impact" factor as duplicative is denied.
I turn, finally, to Johnson's contention that the Third Notice Of Intent is "vindictive." Johnson contends that inferences of "vindictiveness" arise from the following circumstances: (1) expansion of the list of "non-statutory aggravating factors," some of which are new and some of which are based on incidents that were all well known to the prosecution long before the Second Notice Of Intent was filed in 2002; (2) the timing of the new allegations, which she contends is intended to punish her for successfully pursuing § 2255 relief; (3) the novel ways (Johnson alleges that there are five ways) in which the prosecution has artificially expanded the number of aggravating factors; and (4) "fairness" problems, as a matter of due process or scheduling, arising from assertion only now of very old incidents as separate aggravating factors and asserting them only after the Court had set a firm trial date. The prosecution
At the very least, the standards applicable to claims of "vindictive prosecution" provide some guidance for the analysis of Johnson's present "vindictive death notice" claim. As the Eighth Circuit Court of Appeals has explained,
United States v. Graham, 323 F.3d 603, 606 (8th Cir.2003). Similarly, I believe that due process requires that vindictiveness play no part in the manner in which the prosecution attempts to obtain the death penalty against a defendant on a "penalty retrial" in a capital case after the defendant has successfully attacked the penalties imposed in the original "penalty phase" after her conviction.
As the Eighth Circuit Court of Appeals has also explained,
Graham, 323 F.3d at 607. Any presumption of vindictiveness, in turn, may be overcome, for example, by the prosecution presenting objective evidence justifying the prosecutor's actions. Id. at 608.
Without attempting to ascertain who bears what burden or what presumptions might obtain for a claim of a "vindictive death notice," I am satisfied that the record does not present the inferences of vindictiveness of the Third Notice Of Intent that Johnson asserts. Where the detailed analysis, above, of Johnson's challenges to the Third Notice Of Intent indicates that, in almost every instance, the prosecution has properly asserted the challenged aggravating factors, I believe that there is "objective evidence" defeating any inference that the form and content of the Third Notice Of Intent are the result of vindictiveness. Id. Moreover, I cannot conclude that, even where my conclusions differed from the prosecution's positions, that the prosecution's positions were not reasonably justified. Id. at 608 (considering whether
Moreover, I have little doubt that Johnson's current defense team also will frame the mitigating factors for the "penalty retrial" in such a way that there are not only many more of them than in the original "penalty phase," but in such a way that specific incidents or specific facts will be cast as separate mitigating factors. I think that this is very likely, because, in Johnson's § 2255 Motion, Johnson attempted to assert, as a belated amendment, a claim that her trial attorneys provided ineffective assistance by using multifaceted, overly-complicated yet incomplete mitigating factors for the jury to weigh, rather than simple, straightforward facts that encompassed all of the mitigation. See Johnson, 860 F.Supp.2d at 873. Similarly, in my ruling on Johnson's § 2255 Motion, I acknowledged my mistake in failing to act on my misgivings that Johnson's original defense team had proposed multifaceted, complex, convoluted, and confusing mitigating factors that did not adequately guide the jurors in their death penalty determination, and I observed that, had Johnson timely asserted a claim that her trial attorneys provided ineffective assistance in drafting mitigating factors, I would likely have granted relief on such a claim. See id. at 875-76. In the Third Notice Of Intent, the prosecution appears to have taken to heart the same lesson by reformulating certain "non-statutory aggravating factors," such as the "uncharged criminal conduct" factors, as separate factors, rather than as a single, multifaceted factor. What Johnson perceives as "vindictiveness," appears to me, in most cases, to be "equal opportunity" refinement of the prosecution's "penalty phase" case, particularly where I have rejected her arguments that various "non-statutory aggravating factors" are "duplicative."
This final challenge to the Third Notice Of Intent is also denied.
Although the motion before me specifically challenged certain aggravating factors in the Third Notice Of Intent, the parties' arguments raised a number of issues that were relevant to the greater context of the "penalty retrial." I urge the parties to take careful note of my resolution of those "contextual" issues, even though they are not reflected in the summary disposition, below, of Johnson's November 1, 2012, Motion To Dismiss Certain Statutory And Non-Statutory Aggravating Factors From The Government's Third Amended Notice Of Intent To Seek The Death Penalty (Challenge To Third Notice Of Intent) (docket no. 906).
UPON THE FOREGOING, Johnson's November 1, 2012, Motion To Dismiss Certain Statutory And Non-Statutory Aggravating Factors From The Government's Third Amended Notice Of Intent To Seek The Death Penalty (Challenge To Third Notice Of Intent) (docket no. 906) is
2. The part of the Challenge To Third Notice Of Intent asking that I strike the twelfth "non-statutory aggravating factor" in the Third Notice Of Intent (docket no. 879), alleging that Johnson "distributed controlled substances, specifically methamphetamine, after 1997," is granted, and that "non-statutory aggravating factor" is
3. The Challenge To Third Notice Of Intent is
This capital case, which is set for a "penalty retrial" beginning on June 3, 2013, is before me on the prosecution's February 15, 2013, Motion To Reconsider Portions Of The Court's Order Dated January 16, 2013 (docket no. 966). The challenged decision is my Memorandum Opinion And Order Regarding Defendant's Motion To Dismiss Certain Statutory And Nonstatutory Aggravating Factors From The Government's Third Amended Notice Of Intent To Seek The Death Penalty (docket no. 951), published at United States v. Johnson, 915 F.Supp.2d 958, 2013 WL 163463 (N.D.Iowa Jan. 16, 2013). The challenged portions of that decision are the following rulings: (1) that the new jury will not redetermine the defendant's eligibility for the death sentence; (2) that I will instruct the new jury that the defendant's only possible sentences are death or life without parole; and (3) that evidence of the defendant's future dangerousness outside of prison will be excluded. I reviewed the parties' positions and stated my own regarding this motion during a status conference on March 4, 2013, which was primarily devoted to matters relating to jury selection, and indicated that this written ruling would follow.
As to the first issue that the prosecution asks me to reconsider, the prosecution has not convinced me that the applicable sentencing statute, former 21 U.S.C. § 848(g), (4), prohibits a retrial of only the "penalty phase" of the trial, but not the "eligibility phase," or that case law permitting the "bifurcation" of the sentencing hearing into "eligibility" and "penalty" phases is unpersuasive or wrong. Thus, I reiterate my conclusion that the "penalty retrial" here is properly limited to a retrial of the "penalty phase," involving the determination of the existence of "non-statutory aggravating factors" and "mitigating factors" by the new jury and the new jury's weighing of the "statutory aggravating factors" found by the original jury with the "non-statutory aggravating factors" found by the new jury against any "mitigating factors" found by the new jury. The new jury will not redetermine whether or not the defendant is "eligible" for the death penalty on any counts.
In the alternative, the prosecution asked me to clarify what evidence will be admissible in the "penalty retrial," because the prosecution argues that the practical effect of my ruling limiting the scope of the "penalty retrial" is to preclude the prosecution from presenting certain evidence of substantial planning and premeditation of the July 1993 murders, as well as precluding the jury from considering a statutory aggravating factor of substantial planning
January 16, 2013, Memorandum Opinion And Order (docket no. 951) at 21-22, Johnson, 915 F.Supp.2d at 975, 2013 WL 163463 at *10 (emphasis added). At the status conference, I observed that I was unable to recall any evidence of "substantial planning and premeditation" relating to the July 1993 murders that would not have been admissible for some other proper purpose in the "penalty retrial," including demonstrating the defendant's culpability, and the defendant was unable to identify any such evidence. Thus, I would be surprised if there is any such evidence. Saying so does not preclude the defendant from filing a pretrial motion in limine, however, if she identifies specific evidence that she believes is relevant only to "substantial planning and premeditation" of the July 1993 murders or that she believes is substantially more prejudicial than probative on an issue properly before the jury in the "penalty retrial." See Former 21 U.S.C. § 848(j).
As to the second and third issues raised by the prosecution in its Motion To Reconsider, I stand firm on my prior conclusions that I will instruct the jury that the defendant's only possible sentences are death or life without parole and that evidence of the defendant's future dangerousness outside of prison will be excluded. The prosecution has not convinced me that my original reasons for these conclusions are suspect or wrong. Moreover, the defendant has now indicated that she will stipulate that the available sentences are death or life without parole and that she will not seek any lesser sentence, essentially mooting the prosecution's grounds for seeking to reopen these issues.
For her part, in her February 28, 2013, Resistance To Government's Motion To Reconsider Portions Of The Court's Order Dated January 16, 2013 (docket no. 969), Johnson argues that, to the extent that I reconsider any portion of the pertinent ruling, I should also reconsider my ruling allowing the government to subdivide its single unadjudicated misconduct aggravator into multiple aggravators. See January 16, 2013, Memorandum Opinion And Order (docket no. 951) at 121, Johnson, 915 F.Supp.2d at 1029, 2013 WL 163463 at *63. Although I do not retreat from my conclusion that the defendant has not raised an inference of "vindictiveness" in the prosecution's formulation of "non-statutory aggravating factors," I now question whether "mitigating factors" and "non-statutory aggravating factors" are necessarily subject to "symmetrical" standards, in light of authorities that Johnson has cited. Compare, e.g., McCleskey v. Kemp, 481 U.S. 279, 305-06, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987) (mitigating circumstances include any relevant circumstances) with, e.g., Stringer v. Black, 503 U.S. 222, 112 S.Ct. 1130, 117 L.Ed.2d 367 (1992) (there is an Eighth Amendment prohibition on artificially inflating the number of aggravating factors). Consequently, if the defendant can demonstrate that specific separate "nonstatutory aggravating factors" are so closely-related factually or that they are probative of essentially
THEREFORE, the prosecution's February 15, 2013, Motion To Reconsider Portions Of The Court's Order Dated January 16, 2013 (docket no. 966) is
Furthermore, "statutory aggravating factors" are not "weighed" in the "eligibility phase." Rather, if, as to a particular count, the jury finds the necessary "statutory aggravating factors" in the "eligibility phase" — that is, an "intent" factor identified in § 848(n)(1) and at least one other factor identified in § 848(n)(2) through (12) — then the "eligibility" determination is essentially automatic. See former 21 U.S.C. § 848(k). The "statutory aggravating factors" are only "weighed" in the "penalty phase," with the "non-statutory aggravating factors," if any, and the "mitigating factors," if any, found to exist, to determine whether a death sentence is justified. See id.
