2005 | Cited 0 times | D. Massachusetts | June 6, 2005


On September 18, 2003, the government served defendants DarrylGreen ("Green") and Branden Morris ("Morris") with a Notice ofIntent to Seek the Death Penalty ("Notice"). The Notice indicatesthat, in the event that Morris and Green are convicted ofmurdering Terrell Gethers ("Gethers"), the government will seekto justify their death sentences on the basis of a number ofaggravating factors pursuant to the Federal Death Penalty Act("FDPA"), 18 U.S.C. § 3591 et seq. Among these factors areallegations of prior crimes that were not charged in the instantindictment and, indeed, have never been adjudicated in anysetting. The allegations are that:

1) Morris murdered Shelby Caddell ("Caddell") prior to the offense against Gethers;1 2) Green urged Edward Washington ("Washington") to attempt to murder Richard Green.2In their Motions to Strike [docket entries ## 184, 194],defendants move, inter alia, that these aggravating factors bestruck from the Notice, because they were never presented to thegrand jury.3 I GRANT defendants' motions in part,4 ordering thatthe allegations of prior unadjudicated crimes be STRUCK fromthe Notice. My ruling is based on recent Supreme Court case lawon sentencing, from Apprendi v. New Jersey, 530 U.S. 466(2000), to Blakely v. Washington, 124 S. Ct. 2531 (2004), andon the unique nature of allegations of prior unadjudicatedcrimes. I do not suggest that unadjudicated crimes can never beweighed by a sentencing jury. Rather, I hold that they must bepresented to a grand jury first.

One caveat at the outset: Defendants Green and Morris maydecide to waive their right to have the unadjudicated crimescharged in an indictment. First, the requirement that thegovernment present these accusations before a grand jury maydelay their trials (now scheduled to begin in early September 2005).5 Second, defendants could decide that this Court'spreliminary review of the evidence for relevance, reliability,and prejudicial effect before the penalty phase will suffice toprotect their rights under the circumstances (even though suchreview is surely not equivalent to grand juryscreening).6 Third, the issue may become moot if theliability juries do not convict the defendants of Gethers'murder.

Defendants must notify the Court of their decision regardingwaiver by June 23, 2005.


The FDPA is complex. At the outset, during a liabilityproceeding, a defendant must be found guilty beyond a reasonabledoubt of a crime for which a death sentence can be imposed. See18 U.S.C. § 3591(a). Here, under Count Sixteen of the SupersedingIndictment [docket entry # 92], Green and Morris are charged with such a crime — the murder of Gethers in aid ofracketeering pursuant to 18 U.S.C. § 1959(a)(1).

Once liability for murder has been established, the FDPArequires that a jury make three factual determinations during asecond proceeding — the penalty phase of a defendant'strial.7 See 3 Charles Alan Wright & Arthur R. Miller,Federal Practice and Procedure: Federal Rules of CriminalProcedure § 528.1 (3d ed. 2004).

First, the penalty jury must find, unanimously and beyond areasonable doubt, that the defendant had the requisite intent tocommit the charged offense, as set forth in §3591(a)(2)(A)-(D).8 Second, the jury must find (again, unanimously and beyond areasonable doubt) that at least one of the statutory aggravatingfactors set forth in § 3592(c)(1) through (16) alsoexists.9 See 18 U.S.C. § 3593(c). Once satisfied, thesesteps render the defendant eligible for a sentence ofdeath.10

The actual imposition of death depends on the third step in theprocess. During the third and final step, the sentencing juryfunctions as no other jury. It not only hears factualallegations, as juries typically do, but it also weighs certainpunishment factors, as judges typically do, to determine thedefendant's sentence. Significantly, at this stage, the government may present both aggravating factors expressly listedin the statute ("statutory aggravating factors") and any othernon-statutory factors that qualify as aggravators for the jury toweigh against any mitigating factors presented by thedefendant.11 See 18 U.S.C. § 3593(c). The jury is thencharged with determining whether the aggravating factor(s) foundto exist "sufficiently outweigh [or outweighs] all the mitigatingfactor or factors found to exist to justify a sentence of death,or, in the absence of a mitigating factor, whether theaggravating factor or factors alone are sufficient to justify asentence of death." 18 U.S.C. § 3593(e).

The statutory aggravators listed in § 3592(c)(1) through (16)include factors related to the nature of the offense ofconviction, such as "grave risk of death to additional persons"or "vulnerability of victim," as well as factors involving priorconvictions of crime, such as "two felony drug offenses" or"sexual assault or child molestation." § 3592(c)(5), (11), (10),(15). The government maintains that these factors must bepresented to a grand jury, while non-statutory aggravatingfactors need only be featured in a notice of intent. While the lack of a grand jury presentment may not raiseconcerns with most non-statutory aggravating factors, the instantcase is different. The non-statutory aggravating factors that thegovernment will ask the sentencing jury to weigh in determiningwhether to impose the death penalty include accusations of priorcrimes, unrelated to the case at bar and never adjudicated in anyother forum. They are uniquely prejudicial and, in ourConstitution, uniquely privileged. While the Constitution grantsto every citizen the right not to be "held to answer for acapital, or otherwise infamous crime, unless on a presentment orindictment of a Grand Jury . . .," U.S. Const. amend. V, no grandjury has ever returned an indictment linking Morris to Caddell'sdeath, or Green to the attempted murder of Richard Green.

Indeed, the government's position is ironic. The statutoryaggravating factors are either those already linked with thecharged offense (and, therefore, generally reviewed when thegrand jury reviews the indictment), or they involve convictions,obviously adjudicated in another forum. And yet, the governmentagrees that the statutory aggravators must be included in theindictment, while unrelated, uncharged and unadjudicatedaccusations of prior crimes can go directly to the sentencingjury, with only a judge as gatekeeper.

The government's rationale is that only the statutoryaggravators must be presented to the grand jury because these are the factors "that render a defendant eligible for the deathpenalty." Govt's Resp. to Mot. to Strike Notice of Intent at 3-4(emphasis added) [docket entry # 182]. As described above, thesentencing jury must find at least one statutory aggravatingfactor before a defendant is deemed death-eligible.

Defendants disagree with the government's position.12They contend that the landscape for evaluating its claim haschanged with the recent trilogy of cases, Apprendi v. NewJersey, 530 U.S. 466 (2000); Ring v. Arizona, 536 U.S. 584(2002); and Blakely v. Washington, 124 S. Ct. 2531(2004).13 By focusing on death-eligibility, rather thanon the totality of factors that bear on the actual imposition ofthe death penalty, the government overlooks the significance — indeed, the essence — ofthese cases.

Together, Apprendi, Ring, and Blakely abandoned theCourt's previous focus on the procedural protections requiredwhen a defendant is exposed to punishment above the statutorymaximum. They emphasized the protections that must be accordedmore generally to facts, including those factors traditionallycharacterized as sentencing factors, that are essential topunishment because they increase a defendant's punishment evenwithin a statutory sentencing range. Plainly, priorunadjudicated crimes that the government offers to justify theimposition of the ultimate punishment fit within this category ofessential factors.

Although defendants urge the Court to treat all nonstatutoryaggravating factors alike and require that everything bescreened,14 my ruling is a narrow one, limited to priorunadjudicated crimes. The other non-statutory factors here (lackof remorse and victim impact), like certain of the listedstatutory aggravators, are factors tied to the charged offense.They do not raise the same constitutional concerns as prior unadjudicated accusations of crime apparently unrelated to theoffense and uniquely prejudicial.

Accordingly, I find that these unadjudicated prior crimes mustbe STRUCK from the Notice of Intent to Seek the Death Penaltyand EXCLUDED from the penalty phase proceedings of Green's andMorris' capital trials.


A. Non-Statutory Aggravating Factors Should Be Charged in anIndictment under Apprendi, Ring and Blakely

The FDPA expressly requires the government to submit allaggravating factors to the unanimous review of a petit jury, butit does not oblige the government to have a grand jury includethose factors in an indictment.15 See18 U.S.C. § 3593(b), (e). The statute only directs that the aggravatingfactors appear in a notice of intent to seek the death penalty,filed by the government before trial. See 18 U.S.C. § 3593(a).

Recent Supreme Court decisions — notably Apprendi, Ring,and Blakely — cast constitutional doubt on the mere provisionof notice as an adequate alternative to grand jury screening. InApprendi, the Supreme Court held that the Sixth Amendmentrequires that any fact increasing a penalty for a crime beyondthe prescribed statutory maximum must be submitted to a jury andproved beyond a reasonable doubt. Blakely went further, holding that "`an accusation whichlacks any particular fact which the law makes essential to thepunishment is . . . no accusation within the requirements of thecommon law, and it is no accusation in reason.'" Blakely,124 S. Ct. at 2536 (emphasis added) (quoting 1 J. Bishop, CriminalProcedure § 87 (2d ed. 1872)). Accordingly, the Supreme Courtread Apprendi as giving "every defendant . . . the right toinsist that the prosecutor prove to a jury all facts legallyessential to the punishment." Id. at 2543.

In Ring, the Supreme Court applied Apprendi to the deathpenalty and, in effect, to a sentencing jury context. It heldthat an aggravating factor under Arizona's death penalty statutemust be proven to a jury beyond a reasonable doubt before it canbe used by a judge to impose the death penalty. The decision'srationale readily extends beyond factors that make a defendantdeath-eligible, embracing all aggravating factors that may beweighed by a capital jury in its final sentencing decision.

Significantly, none of these cases distinguishes between theSixth Amendment petit jury requirement, and the Fifth AmendmentIndictment Clause, suggesting instead that they are bothcomponents of a two-tiered process of proceduralprotections.16 Facts "essential" to punishment must therefore be screened by agrand jury prior to their submission before a petit jury.Accordingly, an aggravating factor (even non-statutory) must befound by a grand jury before it can be used by the government tojustify a death sentence.

1. Blakely Applied to the FDPA

a. Non-Statutory Aggravating Factors Are "Legally Essential"to Punishment

While the meaning of "legally essential" (to punishment) isclear in relation to the facts of Blakely, it is more ambiguousin the context of the FDPA. Under the framework in Blakely,much like in Apprendi, one aggravating factor — if found by thedecision-maker — led linearly to a higher sentence and wastherefore "legally essential" (i.e., if the fact-finder found xintent or y drug quantity, the finding led to zsentence).17 By inference, since the FDPA makes punishment contingent on abalancing process, all of the factors to be weighed by thedecision-maker should constitute what is "legally essential" to adefendant's punishment.18 As Apprendi instructed,". . . the relevant inquiry is one not of form, but of effect —does the required finding expose the defendant to a greaterpunishment than that authorized by the jury's guilty verdict?"19Apprendi, 530 U.S. at 494. Under the unique FDPA scheme, thenon-statutory aggravators at issue are among a set of factorsthat together expose Green and Morris to a greater punishmentthan that authorized by the jury's guilty verdict alone.

The government argues that non-statutory factors are not"essential" to the punishment of death because the jury maysentence a defendant to death once the government has satisfiedthe first two threshold burdens for establishingdeatheligibility. This argument has been adopted by numerouscourts interpreting Apprendi prior to Blakely. See infraParts II.A.1.b., II.B. It assumes that, since non-statutoryaggravating factors alone cannot raise the statutory maximumpenalty, they are merely sentencing factors, which, unlikeelements of the offense, do not have to be charged in anindictment or tried before a jury.

Today, such an argument ignores the nature of the FDPA, as wellas subsequent case law. Prior to Apprendi, Ring, and Blakely, and in the non-capital arena, one could say thefollowing with confidence: Elements of an offense had to bescreened by a grand jury before presentation to a petit jury. Ifthe grand jury found probable cause to believe that the elementswere present, the petit jury was obliged to decide guilt orinnocence. And, if the defendant was convicted, the judge wouldsentence him. There were — or appeared to be — clear differencesbetween offense facts (that went before grand and petit juries)and sentencing factors (that went before judges). See JudgeNancy Gertner, Circumventing Juries, Undermining Justice:Lessons from Criminal Trials and Sentencing, 32 Suffolk U.L.Rev. 419, 429-32 (1999).

But a death penalty case is not amenable to such a construct.The FDPA makes the death penalty jury a sentencing jury, not onlyconducting fact-finding, as any jury does, but also weighingaggravating and mitigating facts for the purpose of determiningpunishment, as judges typically do. The penalty jury's uniquerole muddies the distinction between offense facts, traditionallyscreened by grand juries, and sentencing facts, whichtraditionally went unscreened.

The trilogy of Apprendi, Ring, and Blakely furtherconflates the line between sentencing facts and offense facts.Blakely explicitly rejected methodical distinctions betweenformal offense elements and sentencing factors, holding that allfacts "essential" to punishment must be treated to theformalities of grand jury presentment and a jury trial. The Supreme Courtspecifically deemed it an "absurd result" that "the jury needonly find whatever facts the legislature chooses to labelelements of the crime, and that those it labels sentencingfactors — no matter how much they may increase the punishment —may be found by the judge." Blakely, 124 S. Ct. at 2539. Eventhe government agrees that certain "sentencing facts" — here thelisted statutory aggravating factor — must be screened by a grandjury.

Moreover, once a defendant is deemed death-eligible, the FDPArequires that the penalty jury impose the death penalty only ifthe aggravating factors "sufficiently outweigh" the mitigatingfactor or factors. 18 U.S.C. § 3593(e). This burden is notoptional. Even if the defendant presents no mitigating factors,to return a sentence of death after the first twodeatheligibility burdens have been met, the jury must find thatthe aggravating factors "alone are sufficient to justify asentence of death." Id. Because we will never know exactly howeach factor influences the jurors' ultimate punishmentdetermination, logic dictates that all aggravating factors —together — be considered legally essential to the punishment.Indeed, the government's argument that non-statutory factors arenot essential is disingenuous; if the government does not require additional evidence to convince the jury to vote for death, whyis it invoking non-statutory factors at all?

Accordingly, any aggravating factor is "legally essential topunishment" because, while not linearly triggering a highersentence within the statutory maximum, as Federal SentencingGuidelines factors do, it may effectively tip the scale from lifeto death in combination with the other factors at play.

b. Applying Blakely to the FDPA Is Consistent with theOutcome in Ring

The Supreme Court in Ring held that an aggravating factorunder Arizona's death penalty statute must be proven to a jurybeyond a reasonable doubt. On remand, the Arizona Supreme Courtinterpreted Ring to require that not just one, but allaggravating factors urged by the government be heard by a jury.The same rationale should require that a grand jury find morethan the one statutory aggravating factor necessary fordeath-eligibility.

Under the Arizona death penalty statute at issue in Ring, notunlike the FDPA, a defendant found guilty of first-degree murdercould only receive a sentence of death if a judge determined thepresence of at least one aggravating circumstance from a list ofenumerated circumstances and found that it outweighed anymitigating circumstances. See Ring, 536 U.S. at 592. Thisbalancing scheme functions much like that of the FDPA, exceptthat it does not involve non-statutory aggravating factors. Thus, the scheme in Ring proves a useful analog to theFDPA.

Ring's sentencing judge determined that he was subject to twoaggravating factors — commission of the offense in expectation ofpecuniary gain, and commission of the offense in an especiallyheinous, cruel or depraved manner. See id. at 594-595.However, the Arizona Supreme Court found insufficient evidence tosupport the aggravating circumstance of depravity, so theUnited States Supreme Court ultimately considered a death sentence basedon the existence of a single aggravating factor. See id. at596.

Though considering only one factor, the United States SupremeCourt did not expressly limit its holding to require that a juryfind only one aggravating factor. In concluding that, "[b]ecauseArizona's enumerated aggravating factors operate as `thefunctional equivalent of an element of a greater offense,' . . .the Sixth Amendment requires that they be found by a jury," theSupreme Court wrote in the plural.20 Id. at 609. Additionally, the Court opined, "[c]apital defendants, no lessthan non-capital defendants, . . . are entitled to a jurydetermination of any fact on which the legislature conditions anincrease in their maximum punishment." Id. at 589. It is farfrom clear that the Court interpreted the Arizona statute tocondition a sentence of death on the one aggravating factorthat makes a defendant eligible for such a sentence, whenmultiple factors may be balanced to determinepunishment.21

In fact, the Arizona Supreme Court found that Ring did notfocus single-mindedly on death-eligibility. When hearing the caseon remand from the United States Supreme Court, the highest courtof Arizona held that the government is required to try allstatutory aggravating factors that it puts forth, in recognitionof the structure of the statute. The Court wrote: As the State contends, once the government establishes any aggravating factor, a defendant becomes `death eligible' in the strict sense, and establishing additional aggravating factors does not render a defendant `more' death eligible. In our view, however, Ring II should not be read that narrowly. Although the Court there considered a death sentence based upon the existence of a single aggravating factor, we conclude that Ring II requires a jury to consider all aggravating factors urged by the State. . . . . . . [T]he legislature assigned to the same fact-finder responsibility for considering both aggravating and mitigating factors, as well as for determining whether the mitigating factors, when compared with the aggravators, call for leniency. . . . The process involved in determining whether mitigating factors prohibit imposing the death penalty plays an important part in Arizona's capital sentencing scheme. We will not speculate about how the State's proposal would impact this essential process.State v. Ring, 204 Ariz. 534, 561-62 (2003).22

The FDPA already complies with Ring's holding in the sensethat it requires a jury to find both statutory and non-statutoryaggravating factors. See supra Part I. Although Ring doesnot address the Fifth Amendment, other Supreme Court and circuitcourt opinions have paired Fifth and Sixth Amendment protections.See supra note 16; infra note 26; infra Part II.B. And,as Ring and some state courts following it have suggested,these procedural protections apply to more than one aggravatingfactor when the government presents multiple aggravating factors. Logic dictates the same conclusion. In essence, Morris' allegedmurder of Caddell (or Green's alleged attempted murder of RichardGreen) would be part of the jury's sentencing equation, much likethe statutory aggravator, grave risk of death to additionalpersons. Thus, it would be nonsensical to require grand juryscreening of one factor, but not the other.

2. Prior Unadjudicated Crimes, in Particular, RequireProcedural Protections

Grand jury screening is particularly indispensable where thefactor at issue is a prior unadjudicated crime. Priorunadjudicated crimes take on special meaning under theFifth Amendment and Supreme Court precedent. The principle that adefendant faced with the allegation of a prior unadjudicatedcrime must receive the protection of grand jury screening underthe Fifth Amendment can be gleaned from Supreme Court decisionsaddressing prior convictions.

In Almendarez-Torres v. United States, 523 U.S. 224 (1998),the Supreme Court considered a federal grand jury indictmentcharging the defendant with presence in the United Statespost-deportation — an offense carrying a statutory maximumsentence of two years. The defendant pled guilty and admitted, athis plea hearing, that he had originally been deported pursuantto three earlier felony convictions. The government then arguedthat, because of the defendant's recidivism, he should besentenced under a different part of the statute, carrying a sentence of up to twenty years. The defendant objected to asentence greater than two years in length because the indictmentdid not mention his earlier convictions.

The Supreme Court rejected Almendarez-Torres's argument underthe theory that he had "admitted the three earlier convictionsfor aggravated felonies — all of which had been entered pursuantto proceedings with substantial procedural safeguards of theirown. . . ." Apprendi, 530 U.S. at 488. Employing this reasoning— the assurance of accuracy and due process in light of prioradjudication as to the merits of criminal accusations —Apprendi and its progeny explicitly exempted prior convictionsfrom the indictment and jury trial requirements. See id. at476 ("`any fact (other than prior conviction) that increases themaximum penalty for a crime must be charged in an indictment,submitted to a jury, and proven beyond a reasonable doubt'")(quoting Jones v. United States, 526 U.S. 227, 243 n. 6(1999)). Similarly, since non-statutory factors like remorse andvictim impact are inextricably linked with the charged offense(and, thereby, with the procedural protections that attend thecase-in-chief), arguably, Morris and Green would not be deprivedof due process if they were sentenced on these bases withoutadditional grand jury screening.

But surely it cannot be said that a prior unadjudicatedcrime, entirely separate from the charged offense, comes with thesubstantial procedural safeguards accompanying a prior conviction, or factors intertwined with the trial of the chargedoffense. Indeed, in Shepard v. United States, 125 S. Ct. 1254(2005), the Supreme Court found that even prior convictions, ifimproperly substantiated, cannot be used to increase punishment.The Court held that a sentencing court could only rely on priorconvictions to enhance a defendant's sentence under the ArmedCareer Criminal Act if the statutorily required characteristicsof those convictions were evidenced by "the charging document,the terms of a plea agreement or transcript of colloquy betweenjudge and defendant in which the factual basis for the plea wasconfirmed by the defendant, or ? some comparable judicial recordof this information." Id. at 1263. The Court foreclosed abroader evidentiary inquiry that would allow a sentencing courtto conduct its own review of the record to ascertain theapplicability of prior convictions because this would "raise?the concern underlying Jones and Apprendi: the Sixth andFifth Amendments guarantee a jury standing between a defendantand the power of the state, and they guarantee a jury's findingof any disputed fact essential to increase the ceiling of apotential sentence." Id. at 1262.

Thus, even in Shepard, where the disputed fact could "bedescribed as a fact about a prior conviction[,]" the SupremeCourt deemed it "too far removed from the conclusive significanceof a prior judicial record, and too much like the findings subject to Jones and Apprendi to say that Almendarez-Torresclearly authorizes a judge to resolve the dispute." Id.

In this light, the Indictment Clause cannot be compromisedunder the assumption that the sentencing phase of the jury trialwill provide defendants with the requisite procedural protection;the grand jury function can neither be ignored nor supplanted byother procedures of the government's choosing.23 Despitetaking the government's position on non-statutory aggravating factorsbefore Blakely, see infra Part II.B., the Eighth Circuitcalled the Fifth Amendment's Indictment Clause ". . . the firstof a constitutionally-mandated two-tiered check [indictment andjury trial] on prosecutorial power — a protection which reachesparamount importance in a capital case." United States v.Allen, 357 F.3d 745, 756 (8th Cir. 2004); see also Harris,536 U.S. at 564 ("The grand and petit juries thus form a strongand two-fold barrier . . . between the liberties of the peopleand the prerogative of the [government].") (citations omitted).The Allen Court also rejected the contention that the grandjury is a mere formality that rarely refuses a prosecutor'srequested charge, characterizing the contention as "speculativereasoning . . . [that] disregards the constitutional frameworkthat, for felonies and capital crimes, places two separate bodiesof citizens between the accused and a state-sanctioned judgment."Allen, 357 F.3d at 757.

A two-tiered model of procedural protections is particularlycritical to achieving fairness in the FDPA context. Under anoncapital sentencing scheme, like the one at issue in Apprendior Blakely, the Supreme Court has held that the petit jury must serve as a screen for judges on facts essential to punishment.Under the FDPA, the penalty jury essentially serves the functionof both petit jury and judge, screening all facts for itself.Accordingly, without grand jury screening of unadjudicatedcrimes, the capital process is reduced from the two-tieredscreening process suggested by Blakely (grand jury and petitjury screening for judge) to a process without any tiers at all(capital jury screening unadjudicated crimes foritself).24

If our goal is a two-tiered system of procedural protections,then it is hard to imagine what could be more "legally essential"than ensuring that the unadjudicated prior crimes invoked againstMorris and Green — allegations that may, in the end, tip thescale from life to death — be charged in theirindictments.25 B. Existing Circuit Court Law on Aggravating Factors and theIndictment Clause

Three circuits, all issuing opinions pre-Blakely, havedisagreed with this Court's reasoning, concluding that only onestatutory aggravating factor — the bare minimum necessary toqualify a particular defendant for a sentence of death under theFDPA — must be alleged in the indictment. They held thatadditional statutory and non-statutory factors need not be soalleged, even if the government relies on them in seeking thedeath penalty.26 See United States v. Higgs,353 F.3d 281 (4th Cir. 2003); United States v. Robinson, 367 F.3d 278(5th Cir. 2004); Allen, 357 F.3d 745 (8th Cir. 2004), rev'd enbanc, 406 F.3d 940 (8th Cir. 2005).

In Robinson, a decision representative of all three circuitopinions, the defendant challenged his conviction and deathsentence under the Fifth Amendment, arguing that the indictmentfailed to charge the statutory aggravating factors that rendered him eligible for the death penalty. See 367 F.3d at 281. TheRobinson Court construed Ring's holding as hinging ondeatheligibility: "where an aggravating factor renders adefendant eligible for death, it is `the functional equivalentof an element of a greater offense' and therefore must be provento a jury beyond a reasonable doubt." Id. at 284 (emphasisadded). Accordingly, the court held that "the government is[only] required to charge, by indictment, the statutoryaggravating factors it intends to prove to render a defendanteligible for the death penalty, and its failure to do so . . .is constitutional error." Id. (emphasis added); see alsoAllen, 357 F.3d at 748; Higgs, 353 F.3d at 298.

Under the circuit courts' holdings, prior unadjudicated crimes— non-statutory aggravators under the FDPA — would be presentedto the sentencing jury without the protective screening of agrand jury indictment because they are not a prerequisite todeath-eligibility and therefore do not elevate the availablestatutory maximum sentence from life imprisonment to death. Asdiscussed supra, this outcome is irreconcilable with theFifth Amendment, Blakely, and even Ring.

In fact, the Fifth Circuit in Robinson at once downplayedand affirmed the role of the grand jury. Despite its holding'sinconsistency with the principles of the Fifth Amendment, thecourt invoked Supreme Court precedent to assert the two essential functions of the indictment process: 1) notice to the defendantof the charge so that s/he may prepare a defense; and 2)"interpos[ing] the public into the charging decision such that adefendant is not subject to jeopardy for a crime alleged only bythe prosecution." Robinson, 367 F.3d at 287.

While, under the FDPA, the government can fulfill its noticeobligation apart from the indictment, the indictment itself isthe only means by which the public serves as a pre-trial bufferbetween the prosecutor and the defendant.27 Since suchprotection cannot be provided once a trial has already begun,Robinson recognized that "meaningful enforcement of this rightalways will depend, in the main, on the vigilance of the trialcourt and on its willingness to require that a defectiveindictment be amended before trial." Id. at 287. Thus, theFifth Circuit's acknowledgment of the grand jury's importantfunction is difficult to reconcile with its conclusion that thetrial court's vigilance need only apply to the one statutory aggravator qualifying a defendant for death under the FDPA, whilepotentially more weighty aggravators slip by the grand jury andnonetheless appear before a sentencing jury.

Notably, each of the three circuit court decisions were issuedbefore the Supreme Court decided Blakely. The Higgs Court,for example, argued that non-statutory aggravators relied upon bythe government at trial need not be included in the indictmentbecause "the purpose of non-statutory aggravators is to aid thefactfinder in selecting the appropriate sentence from theavailable options." Higgs, 353 F.3d at 298. As discussedsupra, Blakely explicitly rejected such formalisticdistinctions between elements of a crime and sentencing factors.An emphasis on effect over form reinforces the idea thatdeath-eligibility should not be the sole factor in determiningwhat is to go before the grand jury under the FDPA. Wheredefendants may be subject to death on the basis of priorunadjudicated crimes, surely such formalism finds even less room.


For the reasons discussed above, I hereby ORDER that priorunadjudicated crimes be STRUCK from the government's Notice ofIntent to Seek the Death Penalty, unless the defendants waivegrand jury presentment.28 SO ORDERED.

1. The arson-murder of Caddell apparently will be thegovernment's basis for arguing that Morris is more deserving ofthe death penalty than others who commit a gang-related murder(what the government alleges the shooting of Gethers to be): [T]he defendant offers nothing to identify other `similarly situated individuals' . . . who have, within a period of less than two days, murdered one innocent citizen [Gethers] while firing a gun indiscriminately into a crowd of thousands and murdered another innocent citizen [Caddell] who was a paraplegic by burning down an apartment building.Govt's Consolidated Resp. to Defs.' Pretrial Mot. Re. FDPA at 14[docket entry # 196].

2. All references in this opinion to "Green" are to DarrylGreen. Richard Green is referred to by his full name. The Notice also accuses Green of attempting to murder AnthonyVaughan ("Vaughan"). While this allegation does not appear in theSuperseding Indictment's Notice of Special Findings, it is setforth in Counts Fourteen and Fifteen of the Indictment, andtherefore meets the criteria of this opinion.

3. In his Amended Motion to Strike [docket entry # 194],Morris argues that his Fifth Amendment rights have been violatedand that this Court should strike the entire Notice (or at leastthose elements of the Notice not alleged in the Indictment), notonly because the Superseding Indictment fails to allege thenon-statutory aggravating factors listed in the Notice (thesubject of the instant decision), but also because: 1) theSuperseding Indictment fails to allege the existence of anyaggravating factor which the grand jury found to be sufficient tojustify a sentence of death, a legally essential element forimposition of the death penalty; and 2) the government failed toinform the grand jury that the Indictment authorized thegovernment to seek a sentence of death, or that the grand jurywas required to find an aggravating factor sufficient to warrantthe sentence. These additional claims are resolved briefly below.See infra note 27. In his Motion to Strike [docket entry # 184], Green argues thatthis Court should declare the FDPA unconstitutional, strike theNotice of Special Findings from the Superseding Indictment,strike the Notice of Intent to Seek the Death Penalty, and/orstrike the statutory and non-statutory factors from this casebecause: 1) the federal death penalty scheme is arbitrary andcapricious; 2) it is racially biased; 3) it creates a substantialrisk that innocent persons will be executed; 4) it has beenrendered invalid by Ring v. Arizona, 536 U.S. 584 (2002), andUnited States v. Fell, 217 F. Supp. 2d 469 (D. Vt. 2002); 5) itdoes not allow for the use of non-statutory aggravating factors;6) the use of certain statutory and non-statutory aggravatingfactors in this case is improper; 7) there has been improperdelegation of nonstatutory aggravating factors; 8) a weighingstatute may not allow use of nonstatutory aggravating factorswithout proportionality review; 9) the scheme lacks meaningfulappellate review; and 10) the death penalty is cruel and unusualpunishment.

4. Morris' Motion to Strike [docket entry # 194] is GRANTEDin part and DENIED in part. See infra note 27. Green'sMotion to Strike [docket entry # 184] is GRANTED in part as toremedy, but will be fully addressed on its claims in a subsequentopinion, along with Morris' Motion to Dismiss all counts of hisIndictment [docket entry # 171], which is based on the samearguments. In a prior decision, issued November 12, 2004 [docket entry #235], I denied defendants' motions to dismiss on collateralestoppel and commerce clause grounds.

5. This assumes that there will be no further severance ordersand that the Court will proceed in the sequence specified by theMarch 16, 2005, scheduling order (i.e., Green and Jonathan Harttrial, followed by Morris and Washington trial) [docket entry #315]. The parties should be on notice that, for a variety ofreasons, the Court may order that the trials of thenondeath-eligible defendants take place before that of theremaining defendants.

6. See United States v. Gilbert, 120 F. Supp. 2d 147, 150(D. Mass. 2000) (quoting Gregg v. Georgia, 428 U.S. 153, 192(1976)) (an aggravating factor much be "particularly relevant tothe sentencing decision"); id. at 151 ("heightened reliabilityis crucial in capital sentencing hearings because of the uniquelygrave consequences of a death verdict"); Ford v. Wainwright,477 U.S. 399, 411 (1986) ("In capital proceedings generally, [theSupreme] Court has demanded that factfinding procedures aspire toa heightened standard of reliability."); 18 U.S.C. § 3593(c) ("Atthe sentencing hearing, . . . information may be excluded if itsprobative value is outweighed by the danger of creating unfairprejudice, confusing the issues, or misleading the jury.").

7. The strictures of the FDPA call for a penalty phaseproceeding that is, for all intents and purposes, a separatetrial at which both sides may call witnesses and presentinformation: At the sentencing hearing . . . [t]he defendant may present any information relevant to a mitigating factor. The government may present any information relevant to an aggravating factor. . . . Information is admissible [unless] its probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury. . . . The government shall open the argument. The defendant shall be permitted to reply. . . . The burden of establishing the existence of any aggravating factor is on the government, and is not satisfied unless the existence of such a factor is established beyond a reasonable doubt.18 U.S.C. § 3593(c).

8. To meet this intent requirement, the jury must find thatthe defendant: (A) intentionally killed the victim; (B) intentionally inflicted serious bodily injury that resulted in the death of the victim; (C) intentionally participated in an act, contemplating that the life of a person would be taken or intending that lethal force would be used in connection with a person, other than one of the participants in the offense, and the victim died as a result of the act; or (D) intentionally and specifically engaged in an act of violence, knowing that the act created a grave risk of death to a person, other than one of the participants in the offense, such that participation in the act constituted a reckless disregard for human life and the victim died as a direct result of the act. . . .18 U.S.C. § 3591(a)(2)(A)-(D).

9. Under the FDPA, the aggravating factors for homicide are:(1) death during commission of another crime; (2) previousconviction of violent felony involving firearm; (3) previousconviction of offense for which a sentence of death or lifeimprisonment was authorized; (4) previous conviction of otherserious offenses; (5) grave risk of death to additional persons;(6) heinous, cruel, or depraved manner of committing offense; (7)procurement of offense by payment; (8) pecuniary gain; (9)substantial planning and premeditation; (10) conviction for twofelony drug offenses; (11) vulnerability of victim; (12)conviction for serious federal drug offenses; (13) continuingcriminal enterprise involving drug sales to minors; (14) offensecommitted against high public officials; (15) prior conviction ofsexual assault or child molestation; (16) multiple killings orattempted killings. See 18 U.S.C. § 3592(c)(1)-(16).

10. Both the intent factors and the one statutory aggravatingfactor (knowingly creating a grave risk of death to one or morepersons in addition to Gethers) alleged against Green and Morriswere listed in the Superseding Indictment, and therefore screenedby the grand jury.

11. 18 U.S.C. § 3592(c) provides, "the jury . . . may considerwhether any other [unenumerated] aggravating factor for whichnotice has been given exists." In addition, 18 U.S.C. § 3593(d)states that the jury "shall return special findings identifyingany aggravating factor or factors set forth in section 3592 foundto exist and any other aggravating factor for which notice hasbeen provided under subsection (a) found to exist" (emphasisadded).

12. Indeed, defendants imply that the government cannotpresent aggravating factors to a grand jury at all because theyare not elements of an offense defined by Congress. They argue asfollows: 1) under Ring v. Arizona, 536 U.S. 584 (2002), whichheld that aggravating factors operate as elements of a greateroffense, all of the elements of federal capital murder must bealleged by indictment; 2) however, there is currently no crime offederal capital murder; and 3) it is for Congress, not for thecourts, to define the elements of a new offense. See Br. inSupp. of Morris's Mot. Re. the Capital Nature of this Prosecutionat 77 [docket entry # 172] (adopted in Green's Mem. in Support ofMot. to Strike at n. 2 [docket entry # 185]). I refrain fromdeclaring the FDPA unconstitutional on this basis. The BlakelyCourt departed from Ring's language regarding offense elements,opting for a more fluid process by which courts are to ensurethat all facts legally essential to punishment — whether formallyelements of an offense or not — are reviewed by grand and petitjuries. See infra Part II.A.1.a. Moreover, defendants'traditional construct has no place in the context of the FDPA,whose unique framework invites grand jury screening of factorsthat go before a sentencing jury; a process with no analog incriminal law. As indicated above, this issue will be addressed in greaterdetail alongside other unresolved arguments in a subsequentopinion.

13. Defendants do not invoke United States v. Booker,125 S. Ct. 738 (2005), because their motions were filed before thatdecision was issued.

14. Among the non-statutory aggravating factors allegedagainst the defendants in the Notice, two are factors relating tothe offense: 1) Green is accused of lack of remorse for killingTerrell Gethers; and 2) both defendants are accused of causinginjury, harm, and loss to the victim and the victim's family("victim impact"). This opinion does not strike remorse or victimimpact from the Notice.

15. As for the unanimous review requirement, the statute makesan exception when a defendant moves for a court proceedinginstead of a jury hearing and the government provides itsapproval.

16. Because Blakely dealt with a state court sentencingscheme, the Indictment Clause was not directly implicated. TheSupreme Court in Harris v. United States, 536 U.S. 545, 563(2002), issued on the same day as Ring, interpreted Apprendito hold that both the grand and petit juries must review allfacts to which the legislature has attached the maximumpunishment: "A crime was not alleged, and a criminal prosecutionnot complete, unless the indictment and the jury verdict includedall the facts to which the legislature had attached the maximumpunishment." Accordingly, circuit courts have incorporated anindictment requirement into the framework of the FDPA. Seeinfra Part II.B. For example, in United States v. Robinson,367 F.3d 278 (5th Cir. 2004), the Fifth Circuit invoked Jones v.United States, 526 U.S. 227 (1999); Apprendi v. New Jersey,530 U.S. 466 (2000); and United States v. Cotton, 535 U.S. 625(2002), to find that Ring's Sixth Amendment holding "applieswith equal force in the context of a Fifth Amendment IndictmentClause challenge, even though the Supreme Court has yet to holdas much in a capital case." Robinson, 367 F.3d at 284. Also, in her Blakely dissent, Justice O'Connor said as much.She predicted the majority's holding to mean that "facts thathistorically have been taken into account by sentencing judges . . .must now be charged in an indictment and submitted to ajury." Blakely, 124 S. Ct. at 2546 (O'Connor, J., dissenting).Thus, the remainder of this opinion assumes Apprendi and itsprogeny to apply equally to the Fifth and Sixth Amendments.

17. Charged in Washington state court, Blakely pled guilty tosecond-degree kidnapping. Although the statutory maximum forsecond-degree kidnapping in Washington was ten years,Washington's Sentencing Reform Act established a "standard range"of 49 to 53 months for the facts admitted in Blakely's pleaalone. Under the Act, a judge could impose a sentence above thestandard range only if s/he found "`substantial and compellingreasons justifying an exceptional sentence.'" Blakely,124 S. Ct. at 2535 (quoting Wash. Rev. Code § 9.94A.120(2)). The Actlisted aggravating factors, deemed illustrative rather thanexhaustive, that justified such departure. See id. (citingWash. Rev. Code § 9.94A.390). Having found that Blakely actedwith deliberate cruelty — a statutorily enumerated ground fordeparting from the standard range — the judge imposed a 90-monthsentence. Reviewing Blakely's sentence, the Supreme Court appliedApprendi, holding that the judge's findings were "legallyessential to the punishment," and that therefore the defendantwas entitled to have a jury determine those facts beyond areasonable doubt under the Sixth Amendment. Although the judge'sfindings only moved Blakely's punishment within the statutoryrange, they were nonetheless "essential" because the judge couldnot have sentenced Blakely beyond 53 months "solely on the basisof the facts reflected in the jury verdict or admitted by thedefendant." Blakely 124 S. Ct. at 2537 (citing Ring,536 U.S. at 602).

18. Nonetheless, the government argues that Blakely does notapply to the FDPA because the FDPA scheme is no different thanthe state scheme upheld by the Supreme Court in Williams v. NewYork, 337 U.S. 241 (1949), and distinguished in Blakely on thetheory that it did not "involve? a sentence greater than whatstate law authorized on the basis of the verdict alone."Blakely, 124 S. Ct. at 2538. However, Williams and the caseat bar are readily distinguishable. In Williams, under New Yorklaw, murder in the first degree was punishable by death, thoughthe jury could recommend a life sentence, which the judge did nothave to accept. Thus, a first-degree murder verdict authorized ajudge to find a sentence of life or death on the basis of anyfinding of fact (including prior bad act), or for no reason atall. As described supra, the FDPA does not amount to theindeterminate sentencing structure examined under Williams, forthe possibility of a death sentence does not attach automaticallyto a murder verdict alone — a jury must balance particularfactors to determine punishment. In addition, Ring's holdingeasily extends to the FDPA framework. See infra PartII.A.1.b. Furthermore, the FDPA was designed in a context very differentfrom the criminal code in Williams — at a time whendiscretionary, individualized sentencing had become a thing ofthe past with the advent of the Federal Sentencing Guidelines.Indeed, the FDPA is notably less open-ended than the scheme atissue in Williams.

19. Out of context, Apprendi's language arguably indicatesthat charging one statutory aggravating factor easily passesmuster, because a defendant punished according to additionaluncharged factors as well is not technically exposed to apunishment greater than that reflected in the indictment. But, asexplained infra, Apprendi is based on a sentencing scheme inwhich the finding of one additional factor linearly leads to ahigher statutory maximum. In contrast, under the FDPA, while onestatutory aggravating factor makes a defendant eligible for thedeath penalty, it is the balancing of a number of statutory,non-statutory, and mitigating factors that may "expose" adefendant to the death penalty. Thus, to say that it is enough tocharge and to try one statutory aggravating factor, because thisis all that is required to expose a defendant to a maximumpunishment of death, is to ignore the nature of the FDPA, as wellas the subsequent holding in Blakely.

20. The Supreme Court effectively mandated that a jurydetermine whether the defendant committed the offense inexpectation of pecuniary gain — the one aggravating factor atissue in Ring. The Court did so even though the factor wasinextricably linked with the charged offense. For both logisticaland constitutional reasons, I find that, unlike unadjudicatedcrimes, factors inextricably linked with the charged offense neednot be charged by a grand jury. See infra Part II.A.2. Myholding is not in tension with Ring because, faced with onlyone aggravating factor (necessary to death-eligibility), theCourt could not reach the subtle distinctions I am able to makeunder the facts before me. If anything, case law mandating grandjury screening of factors inextricably linked with the chargedoffense counsels against the use of unadjudicated crimes —lacking any procedural safeguards — without screening. Also,while this opinion largely pairs requirements for petit and grandjury screening, courts may want to start developing legitimatedistinctions between factors that trigger petit jury screeningand those that trigger grand jury screening.

21. "Ring is clarion clear on two key scores. First[,] thecapital jury must make specific findings as to aggravatingcircumstances. Second, those findings must be dispositive on theissue and binding on whomever does the eventual sentencing."Jeffrey Abramson, Death-Is-Different Jurisprudence and the Roleof the Capital Jury, 2 Ohio St. J. Crim. L. 117, 149 (2004)[hereinafter "Abramson, Death-Is-Different"].

22. When Ring was decided, its holding had implications forthe death sentencing procedures in eight states other thanArizona. See Abramson, Death-Is-Different at 147. Confirmingthis Court's interpretation of Ring, in response to thedecision, Colorado, Idaho, and Indiana (like Arizona) "switch[ed]over to jury determination of all aspects of capitalfact-finding as well as jury imposition of the actual sentence."Id. at 148 (emphasis added); but see Brice v. State,815 A.2d 314, 321-22 (Del. Supr. 2003) (Supreme Court of Delaware,ruling pre-Blakely, interpreted Delaware's amended proceduresin light of Ring to require a jury to find only one statutoryaggravating factor — the only factor "necessary" for impositionof the death penalty — before the judge could consider imposingthe death sentence); Abramson, Death-Is-Different at 147(Delaware, Montana, and Nebraska all instituted similar schemes);see also id. at 152 (Alabama and Florida maintained advisoryjury systems, which are "constitutionally suspect underRing").

23. Prior unadjudicated crimes also have special significancein the historical context of Fifth Amendment jurisprudence. TheSupreme Court has interpreted the Fifth Amendment's IndictmentClause to require that the criminally accused have a "substantialright to be tried only on charges presented in an indictmentreturned by a grand jury." Stirone v. United States,361 U.S. 212, 217 (1960) (further stating that "[d]eprivation of such abasic right is far too serious to be treated as nothing more thana variance and then dismissed as harmless error"). Again,thirty-two years after the Stirone decision, the Courtdescribed the Fifth Amendment grand jury right as "serv[ing] avital function in providing for a body of citizens that acts as acheck on prosecutorial power . . . No doubt that is true."United States v. Cotton, 535 U.S. 625, 634 (2002). Centuries of history support the important role the SupremeCourt placed on the grand jury in Stirone and its progeny, andrefute the government's contention that the Indictment Clause issolely a formality to ensure notice. The "whole theory of itsfunction is that it belongs to no branch of the institutionalgovernment, serving as a kind of buffer or referee between theGovernment and the people." United States v. Williams,504 U.S. 36, 47 (1992). The initial purpose of the grand jury — in 1161England — was inquisitional, presenting its own knowledge ofwrongful activities. Robert Misner, In Partial Praise of Boyd:The Grand Jury as Catalyst for Fourth Amendment Change, 29 Ariz.St. L.J. 805, 828-29 (1997) (citing 4 James F. Stephen,Commentaries on the Laws of England, 243-44 (21st ed. 1950)).By the end of the Seventeenth Century, it was designated the taskof deciding, based on material presented to it, whether a casewas triable. See id. (citing Patrick Devlin, The CriminalProsecution in England 4 (1958)). During this period, the grandjury developed the reputation as a guard of the people — "as abulwark against oppression and despotism of the Crown." Id.(quoting Yale Kamisar et al., Modern Criminal Procedure: Cases,Comments, and Questions, 689-90 (8th ed. 1994) (no citation toquotation in original)). This reputation continued to develop in the American colonies,where as early as 1734 grand juries were refusing to carry outthe misadvised will of the government — unwilling to indictindividuals who criticized political leaders and, inMassachusetts, refusing to indict the leaders of the Stamp Actriots. See id. at 832 (citing Richard Davis Younger, ThePeople's Panel: The Grand Jury in the United States 1634-1941,at 2 (1963)). Early American grand juries were not confined tocriminal matters — they "acted in the nature of local assemblies:making known the wishes of the people, proposing new laws,protesting against abuses in government, performingadministrative tasks, and looking after the welfare of theircommunities." Id. The grand jury's role as protectorate,reflecting the will of the people, remains largely unchangedtoday. Its screening function is particularly important in thecase at hand — where uncharged conduct, never tested before ajury or any judicial body, could tip the scale toward death.

24. Indeed, under the Federal Sentencing Guidelines,unadjudicated accusations of crime typically would not enter intothe sentencing calculus. See, e.g., U.S.S.G. § 4A1.2(a)(criminal history may be computed on the basis of prior sentencesor convictions for unrelated crimes, not on the basis of priorunadjudicated crimes).

25. Moreover, the unique role of the fact-finder under theFDPA has implications for the function of the grand jury as itsscreener. In the event that Morris and Green are found liable forGethers' murder, during their sentencing proceedings, thegovernment will present the jury with the nonstatutoryaggravating factors of the arson-murder of Caddell and theattempted murder of Richard Green. Without proof of priorconviction, this sentencing jury will have to play the role of atraditional liability jury in evaluating the veracity of thegovernment's criminal accusations. In other words, the sentencingphases of Morris' and Green's trials would mirror the liabilityphases in at least one significant respect — both would involvetrying defendants for murder-related offenses under thetraditional "beyond a reasonable doubt" standard. Despite the striking similarities between liability proceedingsand sentencing proceedings wherein a jury considers a defendant'sculpability for a prior unadjudicated crime, the governmentessentially argues that the procedural protections afforded tothe criminally accused in the former proceeding do not apply inthe latter. This Court is not swayed by the government'sargument, as it ignores the grand jury's constitutionallymandated role as buffer between the relative powerlessness of theaccused and the relative might of the accuser.

26. Focusing on what triggers death eligibility under theFDPA, all three circuits drew two conclusions. First, "only thestatutory [as opposed to nonstatutory] aggravating factors . . .trigger the Fifth Amendment's Indictment Clause, because they arethe only factors that render the defendant eligible for death."Robinson, 367 F.3d at 289 n. 16; see also Higgs,353 F.3d at 298. That is, "[b]ecause nonstatutory aggravating factors donot increase the available punishment to which a defendant mightbe subjected, they are not required to be alleged in theindictment." Higgs, 353 F.3d at 299. Second, it is enough forthe grand jury to charge only one statutory aggravating factorbecause only one factor is required under the Act to render adefendant death-eligible. Robinson, 367 F.3d at 289 n. 18; seealso Higgs, 353 F.3d at 299; Allen, 357 F.3d at 749.

27. As described above, see supra note 16, JusticeO'Connor predicted the Blakely holding's applicability to theIndictment Clause in her dissent. See Blakely,124 S. Ct. at 2546 (O'Connor, J., dissenting). While Blakely did not addressthe purposes of the indictment process directly, it implied aconcern for providing defendants with notice, and ensuring "thepeople's ultimate control . . . in the judiciary." Id. at 2539.However, O'Connor presented evidence that notice might not havebeen the majority's primary driving force. The defendant hadalready been informed about a potential statutory maximumsentence of 10 years through the charging document, his pleaagreement, and during his plea hearing. Furthermore, "theguidelines served due process by providing notice to petitionerof the consequences of his acts." Id. at 2547. If O'Connor wasright, then an interest beyond notice motivated the Supreme Courtin Blakely to effectively expand the role of the indictmentprocess. It is thereby appropriate to interpret the SupremeCourt's holding in a way that provides defendants faced withconviction on the basis of unadjudicated prior crimes with therequisite procedural protections.

28. As stated above, see supra note 3, Morris argues thatthe Indictment is inadequate because the grand jury did not makea finding that at least one aggravating factor is sufficient tojustify a sentence of death and the government failed to informthe grand jury that the Indictment authorized the government toseek a sentence of death, or that the grand jury was required tofind an aggravating factor sufficient to warrant the sentence. Iconclude that it is not the grand jury's function to determinewhether a certain punishment should actually be applied, andtherefore that there was no reason for the government to informthe grand jury about its intention to seek the death penalty. Totruly assess the sufficiency of an aggravating factor under theFDPA, the grand jury would have to determine whether it"sufficiently outweigh(s) all the mitigating factor or factorsfound to exist to justify a sentence of death, or in the absenceof a mitigating factor, whether the aggravating factor or factorsalone are sufficient to justify a sentence of death."18 U.S.C. § 3593(e). Since the grand jury is not privy to the mitigatingfactors (or lack thereof) that the petit jury has to weighagainst any aggravating factors in determining whether a deathsentence is justified, it cannot possibly be expected to make asufficiency determination. Accordingly, Morris' Motion to Authorize Disclosure of theProsecutor's Opening and Closing Statements to the Grand Jury andAny Instructions Regarding the Capital Nature of the Matter[docket entry # 158] is DENIED.

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