GEOFFREY W. CRAWFORD, District Judge.
Defendant Donald Fell seeks dismissal of the Superseding Indictment and the Special Findings in that Indictment (Doc. 57) under Fed. R. Crim. P. 12(b)(3)(B)(v) and the Fifth, Sixth, and Eighth Amendments to the United States Constitution. (Doc. 632.) Alternatively, Fell seeks to strike a portion of paragraph 1 of the Superseding Indictment as prejudicial surplusage under Fed. R. Crim. P. 7(d). The Government opposes Fell's Motion, (Doc. 658), and Fell has filed a Reply (Doc. 681). For the reasons below, Fell's Rule 12(b)(3)(B)(v) Motion to Dismiss and Rule 7(d) Motion to Strike (Doc. 632) are DENIED.
The July 8, 2002 Superseding Indictment begins with the following introductory paragraphs:
(Doc. 57 at 1-2.)
The Superseding Indictment then recites the following four counts. In Count 1, the carjacking count, the Grand Jury charged:
(Doc. 57 at 3.) In Count 2, the kidnapping count, the Grand Jury charged:
(Doc. 57 at 4.)
Counts 3 and 4 are firearm counts. In Count 3, the Grand Jury charged:
(Doc. 57 at 5.) Count 4 reads:
(Doc. 57 at 6.)
The Superseding Indictment also contains the following "Notice of Special Findings," stating that, as to Counts 1 and 2, Fell:
(Doc. 57 at 7-8.)
Under Rule 12(b)(3)(B)(v), a defendant may bring a motion to dismiss for "a defect in the indictment or information including . . . (v) failure to state an offense." Fell contends that each count of the Superseding Indictment is defective for failing to state one or more essential elements. (Doc. 632-1 at 11.) He also contends that the Notice of Special Findings is defective for failing to state one or more essential elements. (See id. at 15, 19, 31.) The court begins with the applicable legal standards, and then turns to each of Fell's specific challenges.
Rule 7(c)(1) of the Federal Rules of Criminal Procedure requires that an indictment "be a plain, concise, and definite written statement of the essential facts constituting the offense charged." This court has held that, "[i]n order to meet these requirements, `an indictment need do little more than to track the language of the statute charged and state the time and place (in approximate terms) of the alleged crime.'" United States v. Roy, No. 11-cr-109, 2012 WL 47768, at *2 (D. Vt. Jan. 9, 2012) (quoting United States v. Tramunti, 513 F.2d 1087, 1113 (2d Cir. 1975)). In addition to what Rule 7(c)(1) requires,
United States v. Veliz, 800 F.3d 63, 77 n.15 (2d Cir. 2015) (quoting United States v. Rigas, 490 F.3d 208,228 (2d Cir. 2007)); see also United States v. Resendiz-Ponce, 549 U.S. 102, 108 (2007) (same). Thus, "[i]f . . . an essential element is omitted, the indictment must be dismissed." United States v. Miller, 17 F.R.D. 486, 489 (D. Vt. 1955).
The text of a criminal statute may not always recite all of the essential elements. See, e.g., Neder v. United States, 527 U.S. 1, 25 (1999) (holding that, although materiality was not mentioned in the federal mail fraud, wire fraud, and bank fraud statutes, it was an element of those crimes). Essential elements not stated in the statutory text must be explicitly alleged in the indictment. See United States v. Santeramo, 45 F.3d 622, 624 (2d Cir. 1995) (per curiam) ("It is generally sufficient that an indictment set forth the offense in the words of the statute itself, as long as those words of themselves fully, directly, and expressly . . . set forth all the elements necessary to constitute the offence intended to be punished." (internal quotation marks omitted; ellipsis in original) (quoting Hamling v. United States, 418 U.S. 87, 117 (1974))); United States v. Jackson, 749 F.Supp.2d 19,26 (N.D.N.Y. 2010) ("When statutory language fails to include all the elements of an offense, the missing elements must be included in the indictment."); see also 1 Charles Alan Wright et al., Federal Practice and Procedure: Criminal § 125 (4th ed. 2015) ("If the statute itself does not state an essential element of the offense or includes it only by implication, a pleading that merely repeats the statutory language will be insufficient-the missing element must be directly alleged.").
The carjacking statute under which Fell was indicated provides, in pertinent part, as follows:
18 U.S.C. § 2119(3). Fell asserts that Count 1 fails to state an offense in three separate ways.
The court addresses each of those issues in turn.
One of the elements of § 2119(3) is a mens rea element: the defendant must have taken the motor vehicle "with the intent to cause death or serious bodily harm." Count 1 indeed charges that Fell took Teresca King's automobile "with intent to cause death and serious bodily harm." (Doc. 57 at 3.) Fell contends, however, that Count 1 is deficient because it fails to charge that he formed the requisite intent "at the precise moment he demanded or took control over the car `by force and violence or intimidation.'" Holloway v. United States, 526 U.S. 1,8 (1999).
It is true that the Supreme Court in Holloway interpreted the mens rea requirement as modifying the act of "taking" the motor vehicle, and that the defendant's state of mind must therefore be evaluated at the moment he demanded or took over the vehicle. See id. Consistent with that interpretation, this court at Fell's first trial charged the jury on June 24, 2005 with evaluating the intent element at the moment he demanded or took control of the vehicle. The court concludes, however, that the Holloway Court did no more than interpret § 2119(3)'s specific-intent element; it did not add any essential element to that section.
Fell correctly notes that, in United States v. Lamont, the Second Circuit stated that "an allegation for lack of which the prosecution must evidently and as a matter of law fail cannot be regarded as superfluous." 236 F.3d 312, 315 (2d Cir. 1956). That case arose in the era of McCarthyism; the defendants were charged with contempt under 2 U.S.c. § 192 after refusing to answer questions posed by the Permanent Subcommittee on Investigations of the Senate Committee on Government Operations concerning the defendants' alleged communist activities. The trial court found the indictments to be defective because they failed to plead, among other things, that the subcommittee was duly empowered to conduct the inquiry, or that the inquiry was within the scope of the committee's authority.
The Second Circuit affirmed, noting that there was no allegation in the indictments linking the inquiry conducted by the subcommittee to the grant of authority dispensed to the committee. Taking judicial notice of the legislation describing the scope of the committee's authority, the Second Circuit concluded that in fact there was no such link, and that the "crucial problem at the heart of the case" was not so much a question of pleading, but that no crime had been shown. Lamont, 236 F.2d at 315-16. The missing allegation that caused the prosecution to fail as a matter of law could not have been proven even if it had been alleged.
This case is quite different: as the court's June 24,2005 instruction to the jury suggests, the issue of whether Fell formed the requisite intent at the moment he demanded or took over the car was not unprovable, but rather a question of fact for the jury. That factual question needs to be resolved to determine whether the Government has satisfied the specific-intent element of § 2119(3), but it is not the essential element itself. Ultimately, Lamont does not stand for the proposition that an essential element is only properly pleaded if the Government also includes in the pleadings an explanation of the element, or what the Government would have to prove to establish the element. The authority cited by Fell actually undermines his position; it draws a clear line between § 2119(3)'s specific-intent element and the facts that would be needed to prove that element. See 3-53A Leonard B. Sand et al, Modern Federal Jury Instructions-Criminal, Instruction 53A-2 (listing specific-intent element simply as the requirement "that the defendant acted with intent to cause death or serious bodily harm"); id. Instruction 53A-6 (describing what the Government must prove to establish the element).
Fell next argues that, "to prove a carjacking charge, the Government must also show that there was a nexus between the intent . . . to do harm and the objective of stealing the car." (Doc. 632-1 at 15.) In support, Fell cites United States v. Harris, 420 F.3d 467 (5th Cir. 2005), and United States v. Applewhaite, 195 F.3d 679 (3d Cir. 1999). Fell asserts that those cases "hold that, in order to satisfy the intent requirements of the statute, the defendant must intend harm in order to complete the theft of the car, distinguishing cases where the vehicle may have been stolen as an afterthought to a separate violent crime." (Doc. 632-1 at 15.)
Fell may be correct in asserting that the intent element of § 2119 cannot be satisfied if the vehicle was stolen only as an "afterthought." The court need not rule on that issue now, however. Even if Fell is correct, he cites no case holding that there is any distinct intent-related "nexus element" in the crime. (Doc. 632-1 at 15).
In United States v. Rivera-Figueroa, the First Circuit stated that, under the federal carjacking statute, "we may assume that a defendant who `takes a motor vehicle' must know what he is doing . . . [i.e.,] that the defendant be aware that the action in which he is engaged . . . involves the taking of a motor vehicle." 149 F.3d 1, 4 (1st Cir. 1998). It is true that Count 1 does not contain the words "knowingly" or "intentionally." However, to the extent that the "taking" element of § 2119 includes that mental state, Count 1 is not defective because the Superseding Indictment fairly imported the scienter element, putting Fell on notice that the Grand Jury was charging that he knew he was engaged in "taking" the vehicle.
Numerous cases support this conclusion. See United States v. Jackson, 513 F. App'x 51, 55 (2d Cir. 2013) ("Although the indictment did not specifically contain the words `knowingly' or `willfully,' the plain and common-sense reading of the indictment put the defendant on notice of what the charges against him were, such that he was not prejudiced in the preparation of his defense."); Santeramo, 45 F.3d at 624 (knowledge of use of firearm in relation to drug offense was an essential element of 18 U.S.C. § 924(c)(1), but indictment that failed to expressly allege knowledge was not deficient because the language "fairly import[ ed]" the knowledge requirement);
The Rivera-Figueroa court was able to "assume" from the "taking" language that the taking must be a knowing taking. Fell could fairly reach the same conclusion by reading the text of Count 1. This conclusion is also supported by the fact that the Superseding Indictment charged Fell with "accost[ing] Teresca King . . . commandeer[ing] King's vehicle at shotgun-point and abduct[ing] Mrs. King." (Doc. 57 ¶ 3.) Having charged that conduct, the Grand Jury fairly put Fell on notice that it was also charging him with knowledge that the action in which he was engaged involved the taking of a motor vehicle.
United States v. Miller, 17 F.R.D. 486 (D. Vt. 1955), does not require a contrary result. The court in that case dismissed an indictment charging a violation of 18 U.S.C. § 111 (assaulting, resisting, or impeding a federal officer) because the indictment failed to allege the essential facts that the defendant knew his victim was a United States Marshal and that the Marshal was in the performance of his official duties. Miller, 17 F.R.D. at 491. That case deals with an entirely different offense, however, and the knowledge that the court required there did not spring obviously from the text.
The kidnapping statute under which Fell was indicated provides, in relevant part:
18 U.S.C. § 1201(a)(1). Fell's challenge to the kidnapping count is similar to his third challenge to the carjacking count: he contends that Count 2 is deficient because it fails to allege that he "knowingly" and "intentionally" seized, kidnapped, abducted and carried away Teresca King. (Doc. 632-1 at 17.) Although Count 2 does charge that Fell "unlawfully" kidnapped Teresca King and that he "willfully" transported her, that count does not explicitly charge that Fell "knowingly" and "intentionally" kidnapped her.
Courts applying § 1201(a)(1) have ascribed a knowledge requirement to the act of kidnapping. See United States v. Osborne, 68 F.3d 94, 100 (5th Cir. 1995) (listing as an element of § 1201(a)(1) that "the acts were done knowingly and willfully"); United States v. Pedroza, 750 F.2d 187 (2d Cir. 1984) (holding that there was an evidentiary basis for a charge to the jury considering a § 1201(a)(1) count that the defendants had to act "knowingly and intentionally in committing a kidnapping"); United States v. Corbett, No. 3:10-cr-28 (CFD), 2011 WL 2144659, at *4 (D. Conn. 2011) (listing as an element of § 1201(a)(1) that the defendant "unlawfully, knowingly, and willfully seized, confined, inveigled, decoyed, kidnapped, abducted, or carried away" the victim). Other authorities are in accord. See 2-42 Leonard B. Sand et al, Modern Federal Jury Instructions-Criminal, Instruction 42-6 (listing as an element of § 1201 that "the defendant acted unlawfully, knowingly, and willfully," that is, that the defendant knew the victim "was not accompanying him voluntarily but rather was forced, coerced, or tricked to come along"); 2A Federal Jury Practice & Instructions § 46:03 (6th ed. 2015) (listing as an element that the defendant "knowingly and willfully seized, confined, kidnapped, abducted, or carried away" the victim).
The court concludes, however, that Count 2 is not deficient for the same reason the carjacking count is not defective: the language of the Superseding Indictment fairly imports the knowledge requirement. As with the carjacking count, this conclusion is supported by the fact that the Superseding Indictment charged Fell with "accost[ing] Teresca King . . . commandeer[ing] King's vehicle at shotgun-point and abduct[ing] Mrs. King." (Doc. 57 ¶ 3.) Having charged such conduct in terms emphasizing its purposeful and domineering nature, the Grand Jury fairly put Fell on notice that it was also charging him with knowledge that Teresca King was not accompanying him voluntarily.
Section 924(c)(1)(A)(ii) provides in pertinent part:
Since the court has rejected Fell's challenges to Counts 1 and 2, the court also rejects Fell's contention that Count 3 is flawed as dependent on Counts 1 and 2.
Count 3 charges that Fell "knowingly possessed and brandished a firearm." Fell contends that Count 3 is defective for failing to charge that he "intentionally" brandished the firearm. As the Supreme Court has explained, "Congress expressly included an intent requirement for [the brandishing] provision, by defining `brandish' to mean `to display all or part of the firearm, or otherwise make the presence of the firearm known to another person, in order to intimidate that person.'" Dean v. United States, 556 U.S. 568,572 (2009) (quoting 18 U.S.C. § 924(c)(4)). Since the intent element expressly appears in the definition of the word "brandish," Count 3 fairly incorporated that element.
Finally, Fell argues that any allegation of "brandishing" should be dismissed because the Government abandoned that theory at Fell's first trial. Fell maintains that the Government "clearly abandoned the theory of brandishment" in its closing statement, where it mentioned only two elements:
(Doc. 632-1 at 19 (quoting Trial Transcript of June 24, 2005 at 68).) The Government argues that it did not "abandon" the brandishing claim at trial, and is in any case not bound by the positions it took at the first trial.
The Second Circuit has explained that, "[u]ltimately, the question of abandonment is one of intent." Austin v. Ford Models, Inc., 149 F.3d 148, 155 (2d Cir. 1998), abrogated on other grounds by Swierkiewicz v. Sorema NA., 534 U.S. 506 (2002). In this case, the court cannot conclude that the Government intended to abandon the brandishment element. The Government's closing statement did not mention "brandishing." But it was not until 2013-eight years after the 2005 trial — that the Supreme Court described "brandishing" as an element of the distinct aggravated offense defined by § 924(c)(1)(A)(ii). Alleyne v. United States, 133 S.Ct. 2151, 2162-63 (2013). Even if the Government could be faulted for not anticipating that holding, failure to mention "brandishing" as a third element could not have been an abandonment.
Moreover, the brandishment element was developed at trial and specifically charged to the jury. See Jury Charge (June 24, 2005) at 33 ("[T]he government must prove . . . that the defendant knowingly possessed and brandished a firearm. . . ."). In its June 2006 Sentencing Memorandum, the Government also specifically relied on the "brandishing" offense described in § 924(c)(1)(A)(ii). (See Doc. 240 at 1-2.) The court's June 16,2006 Judgment explicitly cited § 924(c)(1)(A)(ii), and imposed a 7-year prison sentence on Count 3-a term not available without the brandishment element. (See Doc. 244 at 1-2.) In light of these circumstances, the Government cannot be said to have intended to abandon the brandishment element merely because it did not discuss it at closing. See Haines v. NH. Dep't of Corr., No. Civ. 99-153, 2003 WL 1538187, at *3 (D.N.R. Mar. 25, 2003) (failure to mention "self-defense" in closing argument did not abandon self-defense claim, where the claim was developed at trial and the jury was properly instructed on that claim).
Under 18 U.S.c. § 922(g)(2), it is unlawful "for any person . . . who is a fugitive from justice . . . to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm. . . ." Fell first contends that Count 4 is defective because it alleges that he "was" (not "is") a fugitive from justice. The court rejects that argument. Section 922(g)(2) plainly only covers the transportation of firearms if the person doing the transporting is a fugitive from justice at the time. Count 4 alleges precisely that; it uses the past tense because, by the time of the Superseding Indictment, Fell was in custody and no longer a fugitive. Indeed, as the Government points out, all four counts of the Superseding Indictment describe the 2000 offense conduct in the past tense.
Fell also argues that Count 4 omits the mental state that appears in the relevant penalty provision. See 18 U.S.C. § 924(a)(2) ("Whoever knowingly violates subsection . . . (g) . . . of section 922 shall be fined as provided in this title, imprisoned not more than 10 years, or both." (emphasis added).) The Government does not dispute that the statute requires that a violation be knowing, but maintains that Count 4 "fairly imports" the knowledge element. (Doc. 658 at 18.) Largely for the reasons described above with respect to the carjacking and kidnapping counts, the court concurs that Count 4 fairly imports the knowledge element. Notably, the knowledge required by the statute is not extensive; it "merely requires proof of knowledge of the facts that constitute the offense." Bryan v. United States, 524 U.S. 184, 193 (1998). The allegations of the Superseding Indictment fairly allege that, while Fell was a fugitive from justice, he knew that he possessed a firearm.
The "Special Findings" relate to issues concerning Fell's eligibility for the death penalty, and whether a jury might select that penalty. Of course, a jury would not reach the "selection" stage unless it has already found a defendant "eligible." The court, however, discusses Fell's "selection" and "eligibility" arguments in the order that he raises them.
Under 18 U.S.C. § 3592(c), a jury determining (or "selecting") whether a sentence of death is justified must consider and determine whether certain "aggravating factors" are present. One such factor is whether the defendant committed the offense "in an especially heinous, cruel, or depraved manner in that it involved torture or serious physical abuse to the victim." Id. § 3592(c)(6). Paragraph 16(g) of the Special Findings charges that Fell committed the carjacking and kidnapping offenses "in an especially heinous, cruel, or depraved manner in that it involved serious physical abuse to Teresca King." (Doc. 57 at 8, ¶ 16(g).) Fell contends that paragraph 16(g) must be dismissed because it is missing necessary elements.
First, Fell contends that paragraph 16(g) fails to include any statement as to his intent. Other courts applying § 3592(c)(6) have indeed held that, when analyzing whether "serious physical abuse" is present, "`the focus is in large part on the defendant's intent and state of mind.'" United States v. Taveras, 488 F.Supp.2d 246, 251 (E.D.N.Y. 2007) (quoting United States v. Sampson, 335 F.Supp.2d 166, 204 (D. Mass. 2004)); see also Sampson, 335 F. Supp. 2d at 180 ("For a finding of especially serious physical abuse, the jury would have to find that the defendant had the intent to inflict physical abuse to the victims' bodies beyond that necessary to kill the victims."). However, those cases say nothing about what must be stated in an indictment charging "serious physical abuse" under § 3592(c)(6). Moreover, the Superseding Indictment must be read to contain an element of intent, especially in light of the specific allegations regarding how Fell and Lee killed Teresca King. (See Doc. 57 at 1-2, ¶ 4.)
Second, Fell contends that paragraph 16(g) fails to include statements such as those appearing in the court's July 13, 2005 Jury Charge regarding the meaning of "heinous," "cruel," "depraved," and "especially." (See Doc. 197 at 13-14.) The fact that the court defined those words when it charged the jury does not mean that the definitions must appear in the indictment. An indictment plays a very different role than jury instructions. Fell does not cite any case finding deficient an indictment alleging a § 3592(c)(6) factor for failure to provide detailed definitions of those terms. United States v. Mitchell, 502 F.3d 931,975 (9th Cir. 2007), actually undermines Fell's position, since in that case the court explained that Congress "defined what it meant by `especially heinous, cruel, or depraved' when it specified that for this manner of killing to be aggravating, it must involve `torture or serious physical abuse to the victim.'" Sampson is in accord. See 335 Supp. 2d at 204-07 (noting that, under express terms of the Federal Death Penalty Act (FDPA), "serious physical abuse" and "torture" are both ways of establishing that an offense was committed in an especially heinous, cruel, or depraved manner).
In order to trigger death penalty eligibility in a case involving a victim's death, one of four statutory "gateway factors" must be met.
18 U.S.C. § 3591 (a)(2). As recited above, the Notice of Special Findings in the Superseding Indictment alleges all four gateway factors. (Doc. 57 at 7, ¶ 16(b)-(e).)
Fell argues that the Government's theory has been (and is) that he intentionally killed Teresca King (Factor A). Fell contends that Factor B should be stricken as duplicative of Factor A, and that the Government should be precluded or estopped from asserting other "inconsistent" theories (Factors B, C, and D), including theories premised on aiding and abetting in Teresca King's murder. Finally, Fell argues that evidence or argument that he is an aider and abetter would be unfairly prejudicial and would confuse the jury.
The court rejects Fell's contention that Factor B should be stricken as duplicative of Factor A.
United States v. McCullah, 76 F.3d 1087 (10th Cir. 1996), and United States v. Becliford, 968 F.Supp. 1080 (E.D. Va. 1997), do not hold to the contrary. The defendants in both of those cases challenged as duplicative the presentation of more than one of four alternative "(n)(1)" mental states that would be sufficient to constitute an aggravating factor for homicide in the course of a "continuing criminal enterprise":
Anti-Drug Abuse Act of 1998, § 7001(b), 102 Stat. 4181 (adding, among other things, subsection (n)(1); repealed 2006; current version at 21 U.S.C. § 848).
The McCullah court concluded that the (n)(1)(C) factor necessarily subsumed the (n)(1)(D) factor, holding that it was error to submit both statutory aggravating factors to the jury and that "the use of duplicative aggravating factors creates an unconstitutional skewing of the weighing process which necessitates a reweighing of the aggravating and mitigating factors." 76 F.3d at 1112. The Backford court similarly concluded that each of the (n)(1) circumstances was essentially a lesser included aspect of the circumstance above it. See 968 F. Supp. at 1084. But both McCullah and Becliford involved a weighing of aggravating factors, not an analysis of gateway factors. Moreover, as the Becliford court observed, a death penalty notice may reference — and the Government may try to prove-all of the (n)(1) factors. Id. At least with respect to the death-penalty eligibility phase, the same is true with respect to the gateway factors.
Regarding his preclusion or estoppel argument, Fell points to the Government's opening and closing statements at the 2005 guilt and penalty phase proceedings to argue that "from the beginning to the end of this case, the government has advanced only one theory as to the gateway eligibility factors, that is, that Mr. Fell `intentionally killed Teresca King. . . .'" (Doc. 632-1 at 29.) The Government's response is twofold. It insists that it has not abandoned any of its theories, and that it is not restricted to the theories advanced in the 2005 trial or to the evidence it introduced at that proceeding.
As noted above, the question of abandonment is ultimately a question of intent. Fell correctly notes that the Government made several statements at the 2005 trial suggesting that Fell intentionally killed Teresca King. But even Fell concedes that at those proceedings the Government also asserted that Fell acted in concert with Lee. (See Doc. 632-1 at 27 (quoting Government's summation on June 24, 2005, where Government asserted that Fell, "with his friend[] Bobby Lee . . . murdered [Teresca King]"); see id. at 28 n.5 (conceding that Government argued at both the guilt and penalty phases that Fell and Lee both killed Teresca King).)
Even if the Government did "abandon" Factors B, C, and D at Fell's 2005 trial, that would be no bar to the Government's pursuit of those factors in this retrial. The court previously stated that it would not adopt the defense perspective that statements and positions taken by the prosecution in opening and closing limit the Government's proof on retrial. (Doc. 647 at 2.) For the reasons below, the court continues to so hold. On the issue of the effect of any prior "abandonment," Fell appears to be making due process and estoppel arguments. As to due process, the Second Circuit has remarked that "other circuits have found that `the use of inherently factually contradictory theories violates the principles of due process.'" United States v. Boyle, 283 F. App'x 825, 826 (2d Cir. 2007) (quoting Smith v. Groose, 205 F.3d 1045, 1052 (8th Cir. 2000)), aff'd on other grounds, 556 U.S. 938 (2009). Assuming that the law is the same in this circuit,
The court in Smith held that "[t]o violate due process, an inconsistency must exist at the core of the prosecutor's cases against [separate] defendants for the same crime." Smith, 205 F.3d at 1052. Here, there is only one defendant facing trial for the alleged crimes. Moreover, to the extent there is any inconsistency in asserting that Fell is both a principal and an accomplice in the carjacking and kidnapping, it is not a factual inconsistency at the "core" of the Government's case. Any inconsistency on this point goes only to the extent of Fell's involvement in the alleged crimes-an issue that is proper for jury consideration at the death-penalty eligibility phase. As noted above, "there is no constitutional violation, or violation of the FDPA, by virtue of the Government's presentation of multiple Gateway Factors to the jury during the death-penalty eligibility determination." Basciano, 763 F. Supp. 2d at 342.
Fell's estoppel argument cannot be a collateral-estoppel claim. The judgment resulting from the 2005 trial was vacated (due to juror misconduct), and thus has no preclusive effect. See Stone v. Williams, 970 F.2d 1043, 1054 (2d Cir. 1992) ("A judgment vacated or set aside has no preclusive effect."). Of course, collateral estoppel is an aspect of the Fifth Amendment's guarantee against double jeopardy. United States v. Dionisio, 503 F.3d 78, 85 (2d Cir. 2007); United States v. Stitt, 760 F.Supp.2d 570, 584 (E.D. Va. 2010). But any separate double jeopardy argument would likely fail. The Second Circuit has rejected similar "abandonment" theories. See United States v. Bruno, 531 F. App'x 47, 48 (2d Cir. 2013) (noting holding in Saylor v. Cornelius, 845 F.2d 1401 (6th Cir. 1988) — that government was barred from pursuing in a subsequent prosecution a theory of liability that it had "abandoned" at the first trial — but remarking that Saylor is an "outlier" that has been called into question). And this case is similar to Stitt insofar as the court in that capital sentencing retrial case concluded that collateral estoppel did not apply for lack of a "valid and final" judgment due to prior error. Stitt, 760 F. Supp. at 584.
Fell's estoppel argument, then, is best described as a claim of judicial estoppel. "Judicial estoppel `prevents a party from asserting a factual position in a legal proceeding that is contrary to a position previously taken by [that party] in a prior legal proceeding.'" Robinson v. Concentra Health Servs., Inc., 781 F.3d 42, 45 (2d Cir. 2015) (alteration in original) (quoting Bates v. Long Island R.R. Co., 997 F.2d 1028, 1037 (2d Cir. 1993)). "A party invoking judicial estoppel must show that (1) the party against whom the estoppel is asserted took an inconsistent position in a prior proceeding and (2) that position was adopted by the first tribunal in some manner, such as by rendering a favorable judgment." Id. (quoting Mitchell v. Washingtonville Cent. Sch. Dist., 190 F.3d 1,6 (2d Cir. 1999)).
Initially, it is unclear whether judicial estoppel can even be applied against the government in a criminal case. See United States v. D'Amico, 734 F.Supp.2d 321,352 (S.D.N.Y. 2010) ("[S]everal circuits have found, or at least suggested, that the doctrine of judicial estoppel may not be applied in a criminal case to bar the prosecution from asserting factually inconsistent theories." (citing cases)). Even assuming that judicial estoppel could apply, Fell has not established its application in this case. First, the Government is not taking a factual position that is contrary to its position at the 2005 trial, since — as described above — the Government never abandoned any theory of accomplice liability. Second, Fell cannot show that any inconsistent position was adopted by the court in the 2005 trial. Indeed, the 2006 Judgment (Doc. 244) was based on a Special Verdict Form in which the jury found all of the gateway factors had been met. (See Doc. 200 at 3-4.)
United States v. Johnson, 377 F.Supp.2d 689 (N.D. Iowa 2005), does not compel a contrary result. In that case, the government had decided to strike allegations charging the defendant, Johnson, as a "principal" in the capital charges against her and to proceed to trial only on an "aiding and abetting" theory as to each count. Id. at 689-90. The court concluded that the government could not be precluded from presenting evidence that Johnson acted as a principal, but that "the government is now estopped from arguing that Johnson is guilty of any offense as a `principal' rather than an `aider and abetter' by its election to go to trial only on an `aiding and abetting' theory." Id. at 694. Johnson is distinguishable because in that case the government had explicitly stricken one of the potential theories of liability. As described above, the Government in this case never abandoned (let alone affirmatively struck) any of the gateway factors.
Stitt is similarly unpersuasive on this point. That case, like McCullah and Becliford, involved the "(n)(1)" aggravating factors that appeared in 21 V.S.c. § 848. Fell relies on a portion of the Stitt court's May 28, 2010 decision in which the court on one of the counts — after remand for a new capital sentencing hearing — stuck the mental state aggravators referring to subparagraphs (n)(1)(A) and (n)(1)(B), leaving only subparagraph (n)(1)(C) for the jury's consideration. Stitt, 760 F Supp. 2d at 583. The court reasoned:
Id. at 582-83.
Stitt is distinguishable because none of the gateway factors are inconsistent with the Government's "evidence." Unlike Stitt, which involved only a new capital sentencing hearing, Fell's retrial is set to include both guilt and penalty phases. Thus there is presently no "evidence" with which the gateway factors might be inconsistent.
This leads to Fell's final argument against Factors C and D. He contends that, under 18 U.S.C. § 3593(c), the court "should prohibit the admission of evidence and argument that Mr. Fell is an aider and abettor because it would be unfairly prejudicial and would confuse the jury." (Doc. 632-1 at 34-35.) Section 3593(c) concerns the proof of mitigating and aggravating factors at a capital penalty-phase hearing. It provides, in part, that information at that hearing "may be excluded if its probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury." 18 U.S.C. § 3953(c).
The court finds no basis under § 3593(c) to exclude presentation of all four gateway factors during the death-penalty eligibility determination. Even if the Government had "abandoned" any of the gateway factors in the 2005 proceeding, that would not cause any confusion in the retrial proceedings. The jury on retrial did not sit on the 2005 case and could not have witnessed the Government "abandon" any theory there.
Neither is there any danger of unfair prejudice. Section 3591(a) explicitly contemplates that the jury will determine the gateway factors at the § 3593 hearing-the same hearing at which it considers the mitigating and aggravating factors. That process is presumptively constitutional. See Fed. Election Comm'n v. Political Contributions Data, Inc., 943 F.2d 190, 191 (2d Cir. 1991) ("[C]ongress is presumed to have passed statutes which are constitutional.").
It is true that in Basciano the court granted a defense motion to strike Factor D (reckless disregard). Id. at 344. But the court only did so because the government had expressly conceded that a reckless-disregard theory was not consistent with its theory of the case, and thus the risk of confusing the jury by offering Factor D outweighed "the minimal benefit of allowing the jury to consider this theory." Id. There is no similar concession in this case. Absent that, there is no basis for striking any of the gateway factors as prejudicial. See id. ("[T]he Government is not precluded as a matter of law from pursuing both theories of culpability. . . .").
Sampson is also not persuasive on Fell's unfair-prejudice argument. The court in that capital case noted that it was required to "serve a gate-keeping function with respect to non-statutory aggravating factors" and that "[i]n exercising its gate-keeping role and permitting a party to present a particular non-statutory factor to the jury, a court is, in effect, deciding that the jurors must assign that factor some weight, however small, in favor of or against a death sentence if the factor is proven." Sampson, 335 F. Supp. 2d at 229. The Sampson court was discussing the consequence of placing before a capital jury a non-statutory aggravating or mitigating factor. Nothing in that discussion was aimed at the statutory gateway factors. To the extent that any prejudice arises by asking the jury to consider multiple gateway factors in the eligibility phase just before the penalty selection phase, it is not unfair prejudice for all of the reasons described above.
In addition to the other arguments discussed above regarding the gateway factors, Fell brings an Eighth Amendment challenge to Factor B in particular. He contends that the only mental state alleged in Count 1 is that he acted "with intent to cause death [or] serious bodily harm,"
Fell correctly notes that, to be constitutional, "a capital sentencing scheme must genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder." Romano v. Oklahoma, 512 U.S. 1, 7 (1994) (internal quotation marks omitted). According to Fell, if Factor B is sufficient as a gateway factor, there will be no narrowing in his case because the death penalty might be imposed even if his mental state is found to be no more culpable than intent to cause serious bodily harm. Fell cites no authority, however, for the proposition that the "narrowing" must limit death-penalty eligibility to the mental state of"intent to kill" or what Fell says is "some other equally culpable mental state" that does not include intent to cause serious bodily harm. (Doc. 632-1 at 39.)
Fell relies on Tison v. Arizona, 481 U.S. 137 (1987), but that case actually undermines his argument. In Tison, the Supreme Court stated that "[a] narrow focus on the question of whether or not a given defendant `intended to kill' . . . is a highly unsatisfactory means of definitively distinguishing the most culpable and dangerous of murderers." Id. at 157. The Court explained that "[m]any who intend to, and do, kill are not criminally liable at all-those who act in self-defense or with other justification or excuse." Id.
Id. "This reckless indifference to the value of human life may be every bit as shocking to the moral sense as an `intent to kill'" Id. "Indeed it is for this very reason that the common law and modern criminal codes alike have classified behavior such as occurred in this case along with intentional murders." Id. The Court held that "the reckless disregard for human life implicit in knowingly engaging in criminal activities known to carry a grave risk of death represents a highly culpable mental state, a mental state that may be taken into account in making a capital sentencing judgment when that conduct causes its natural, though also not inevitable, lethal result." Id. at 157-58.
Tison thus makes clear that the death penalty may be imposed even in cases where the defendant's mental state was something other than "intent to kill." Indeed, Tison explicitly held that "reckless disregard for human life" (precisely that mental state listed in Factor D) may be a sufficiently culpable mental state. Since that is so, the mental states identified in Factors Band C-arguably more culpable mental states than Factor D-can also be sufficient.
Fell asserts that the court should strike the portion of paragraph 1 of the Superseding Indictment charging that "DONALD FELL and Robert Lee killed Debra Fell and Charles Conway by stabbing them with knives and slashing their throats." (Doc. 57 at 1, ¶ 1.) According to Fell, that portion of paragraph 1 is "extremely prejudicial" and is also "false, according to the government's own evidence." (Doc. 632-1 at 42.) Fell maintains that "the evidence and argument offered by the government at the first trial showed that it was Robert Lee alone who killed Debra Fell." (Id.) The Government argues that it is not limited to the evidence presented at the 2005 trial, and that its theory of the case has always been that Fell and Lee "acted in concert and aided and abetted each other." (Doc. 658 at 38.) The Government also argues that the challenged language is "hardly prejudicial" in the context of the other allegations, and that it is in any case relevant and material because it "describes exactly and concisely what Mr. Fell and Mr. Lee did in killing the Rutland victims." (Id. at 40-41.)
"It is not improper for the court to read the indictment in its entirety or portions thereof to the jury." United States v. Press, 336 F.2d 1003, 1016 (2d Cir. 1964). "Similarly, it is not error to give the indictment to the jury for use during its deliberations." Id. Rule 7(d) provides that, "[u]pon the defendant's motion, the court may strike surplusage from the indictment or information." Fed. R. Crim. P. 7(d). "Motions to strike surplusage from an indictment will be granted only where the challenged allegations are not relevant to the crime charged and are inflammatory and prejudicial." United States v. Mulder, 273 F.3d 91, 99 (2d Cir. 2001) (quoting United States v. Scarpa, 913 F.2d 993, 1013 (2d Cir. 1990)). "[I]f evidence of the allegation is admissible and relevant to the charge, then regardless of how prejudicial the language is, it may not be stricken." Scarpa, 913 F.2d at 1013 (quoting United States v. DePalma, 461 F.Supp. 778, 797 (S.D.N.Y. 1978)).
Paragraph 1 could be read as charging that Fell himself wielded the knife used to kill Debra Fell. In its Bill of Particulars, the Government concedes that Donald Fell did not actually kill Debra Fell. (See Doc. 689 at 1-2 ("[I]n a joint attack on the two victims in the apartment's small living room, Fell killed Charles Conway by slashing his throat and stabbing him, and Lee killed Debra Fell by slashing her throat and stabbing her.").) The "prejudice" to which Fell refers is that paragraph 1 suggests (or could be read to suggest) that he was Debra Fell's actual murderer, when in fact it was Lee who actually killed that victim.
The court rejects the Government's contention that paragraph 1 "describes exactly and concisely what Mr. Fell and Mr. Lee did in killing the Rutland victims." (Doc. 658 at 41.) If that were so, the court would not have granted Fell's motion for a bill of particulars as to that paragraph. Nevertheless, the court cannot conclude that paragraph 1 is so "inflammatory and prejudicial" that it should be stricken under Rule 7(d). The language is ambiguous about who actually killed which Rutland victim. The evidence at trial will resolve any such ambiguity, and since the Government is bound by the Bill of Particulars-United States v. Murray, 297 F.2d 812, 819 (2d Cir. 1962)-the shape of that evidence is predictable. To the extent the jury might, after hearing the evidence on this point, be confused by the ambiguous language in paragraph 1, the court will entertain a request for an appropriate limiting instruction.
For the reasons stated above, Fell's Rule 12(b)(3)(B)(v) Motion to Dismiss and Rule 7(d) Motion to Strike (Doc. 632) are DENIED.
