MEMORANDUM AND ORDER
This memorandum is based on the transcript of the decision renderedorally on January 3, 2003, in which the court denied the defendant'sMotion to Withdraw Previously-Entered Pleas of Not Guilty and to PleadGuilty to Both Counts of the Indictment. This memorandum adds somecitations, clarifies some language, expands some discussion, and deletesthe discussion of a potential Ex Post Facto Clause issue that is not nowpresented.
I. PROCEDURAL HISTORY
Defendant Gary Sampson was indicted on October 24, 2001. He was chargedwith two counts of violating 18 U.S.C. § 2119(3). Section 2119 makesit a crime to take a motor vehicle by force or violence with intent tocause death or serious bodily harm. Section 2119(3) provides that, ifdeath results, the defendant may be sentenced to death himself. Thedefendant pled not guilty to both charges on November 5, 2001.
On June 5, 2002, the grand jury returned the First SupersedingIndictment, which corrected some errors in the original indictment, butdid not substantively change the charges against Sampson.Like theoriginal indictment, the First Superseding Indictment alleged each of theelements of the § 2119(3) offense. It did not, however, allege thefacts that would have to be proven for the defendant to be eligible forthe imposition of the death penalty pursuant to the Federal Death PenaltyAct, 18 U.S.C. § 3591 et seq. On June 14, 2002, the defendant plednot guilty to both counts of the First Superseding Indictment.
On June 24, 2002, the Supreme Court decided Ring v. Arizona, 122 S.Ct.2428 (2002). Addressing an Arizona law and overruling Walton v. Arizona,497 U.S. 639 (1990), the Court held in Ring that a jury, not a judge,must decide if aggravating factors required to impose the death penaltyhave been proven beyond a reasonable doubt. Ring, 122 S.Ct. at 2443.
On August 5, 2002, Sampson filed a motion to withdraw his not guiltypleas, to plead guilty to the First Superseding Indictment, and to besentenced to life in prison without possibility of parole (the"Motion"). The Motion was premised on the contention that the FirstSuperseding Indictment did not include all of the allegations necessaryto permit the imposition of the death penalty after Ring.
On August 8, 2002, the grand jury returned the Second SupersedingIndictment. The Second Superseding Indictment includes a Notice ofSpecial Findings, which alleges the facts concerning the defendant's stateof mind and certain statutory aggravating factors which must be provenbeyond a reasonable doubt to a jury for the defendant to be eligible forthe death penalty. See 18 U.S.C. § 3591(a)(2), 3592(c), 3593(c)-(e).
On August 8, 2002, the court ordered the defendant to file a memorandumin support of the Motion. On September 13, 2002, the defendant filed thatmemorandum. The defendant also then agreed to defer arraignment on theSecond Superseding Indictment until the Motion was decided.
The defendant filed a supplemental memorandum on September 25,2002. The government filed its opposition to the Motion on October4, 2002. On October 16, 2002, the defendant filed a reply.
The court did not act immediately on the Motion because the Departmentof Justice had not filed a notice of intent to seek the death penalty, asis required by 18 U.S.C. § 3593(a) to subject a defendant to thatsanction. If the Department of Justice decided not to file such anotice, the Motion would have been moot. Sampson could have pled guiltyto the First or the Second Superseding Indictments and been sentenced toa maximum of life in prison.
However, the Department of Justice did file a notice of intent to seekthe death penalty on November 19, 2002. It reiterates the allegationsconcerning the defendant's state of mind and, with one exception, theaggravating factors included in the Second Superseding Indictment. Italso describes certain non-statutory factors on which the governmentintends to rely in seeking the death penalty if it obtains a conviction,proves that the defendant acted with one of the required states of mind,and proves that at least one statutory aggravating factor exists. See18 U.S.C. § 3591(a)(2), 3592(c), 3593(c)-(e).
On November 22, 2002, the government filed a supplemental opposition tothe Motion. On December 6, 2002, the court held a conference andscheduled oral argument for January 3, 2003. On December 18, 2002, thedefendant filed a second supplemental memorandum. On January 3, 2003, thecourt held a hearing on the Motion.
For the reasons described below, the Motion is being denied.
Sampson argues primarily that a series of recent Supreme Courtdecisions, culminating in Ring, render the Federal Death Penalty Actunconstitutional because the statute requires that the Department ofJustice rather than a grand jury decide if it is permissible andappropriate to subject a defendant to a prosecution that could result in adeath sentence. The court must resolve this issue now. If Sampson'scontention is correct, he is entitled to plead guilty to the FirstSuperseding Indictment and all other issues will be moot.
The defendant also initially argued that the Federal Death Penalty Actis unconstitutional because 18 U.S.C. § 3593(c) permits evidence tobe admitted in the death penalty phase of the case that would not beadmissible under the Federal Rules of Evidence and, therefore, violateshis Fifth and Sixth Amendment rights. This argument proved persuasive tothe district court in United States v. Fell, 217 F. Supp.2d 469 (D.Vt.2002). However, at the January 3, 2003 hearing, after the court expressedits tentative view that it was premature to address this question in thiscase, counsel for Sampson withdrew this ground for the Motion withoutprejudice to raising the issue in the future.
A. Ring Does Not Render The Federal Death Penalty Act Unconstitutional
The defendant has the burden of proving that the Federal Death PenaltyAct is unconstitutional. See, e.g., Lujan v. G & G Fire Sprinklers,Inc., 532 U.S. 189, 198 (2001). The Federal Death Penalty Act was enactedin 1994. At that time, Walton v. Arizona, supra, represented the lawconcerning the procedures required for the constitutionally lawfulimposition of the death penalty. Walton was decided by the Supreme Courtin 1990. In Walton, the Supreme Court held that "`the Sixth Amendmentdoes not require that the specific findings authorizing the imposition ofthe sentence of death be made by the jury.'" Id. at 648 (quoting Hildwinv. Florida, 490 U.S. 638, 640-41 (1989) (per curiam)). This meant that itwas constitutionally permissible for a judge, rather than a jury, to makethe factual findings necessary to raise the maximum possible sentencefrom life in prison to death.
The Federal Death Penalty Act, however, provides defendants moreprocedural protection than Walton required. The Federal Death Penalty Actprovides that, in a federal case, the jury must find beyond a reasonabledoubt that the defendant acted with at least one form of statutorilydefined intent and that at least one statutory aggravating factor existsbefore it can decide that the death penalty is justified. See18 U.S.C. § 3591(a)(2), 3592(c), 3593(c)-(e).
However, the Federal Death Penalty Act does not define a role for thegrand jury in determining what state of mind or aggravating factors maybe considered at trial. Rather, § 3593(a) provides that theDepartment of Justice may determine whether to seek the death penalty. Ifthe government decides to do so, the statute also requires that theattorney for the government give notice that it will seek the deathpenalty and set forth the aggravating factors it proposes to prove toobtain the imposition of the ultimate sanction. See18 U.S.C. § 3593(a). This procedure was constitutional under Waltonbecause the Supreme Court had in effect decided that the facts thatraised themaximum sentence from a term of imprisonment to death weresentencing factors rather than elements of the offense, which the FifthAmendment requires be charged by the grand jury in an indictment. SeeWalton, 497 U.S. at 647-49; Jones v. United States, 526 U.S. 227, 251(1999); Ring, 122 S.Ct. at 2439.
In 1999, however, the Supreme Court decided Jones. In Jones, the Courtheld that the carjacking statute involved in this case,18 U.S.C. § 2119, creates three separate offenses. See Jones, 526U.S. at 251-52. Section 2119(3) requires causing serious bodily injury ordeath to raise the maximum possible punishment to death. Therefore, thosefacts were deemed elements of a greater offense that had to be found by ajury beyond a reasonable doubt rather than by a judge. Id.
The Supreme Court expressly explained the basis for its decision,stating that:
[U]nder the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.
Id. at 243 n. 6. The Court also made clear in that footnote that it wasnot restricting the ability of legislators to define the elements of acriminal offense. Id. Rather, it said that "[t]he constitutionalsafeguards that figure in our analysis concern not the identity ofelements defining criminal liability but only the required procedures forfinding facts that determine the maximum possible punishment." Id.(emphasis added).
Nevertheless, in Jones, the majority attempted to distinguish certaincapital sentencing factors, including those upheld in Walton. Id. at251; accord Ring at 2439. Therefore, Jones did not overrule Walton.
In 2000, the Supreme Court decided Apprendi v. New Jersey, 530 U.S. 466(2000). At issue was "the adequacy of New Jersey's procedure" fordetermining whether a crime was committed to intimidate someone based onrace or some other factor that potentially enhanced a sentence.Apprendi, 530 U.S. at 475. In Apprendi, the existence of such a motivewould have raised the maximum permissible punishment from ten to twentyyears in prison. Id. at 468-69. New Jersey law permitted a judge todecide by a preponderance of the evidence whether an offense was a hatecrime and, therefore, subjected the defendant to a higher maximumsentence. Id. at 471-73. The Supreme Court, however, held that if aparticular fact results in an "increase beyond the maximum authorizedstatutory sentence, it is the functional equivalent of an element of agreater offense than the one covered by the jury's guilty verdict.Indeed, it fits squarely within the usual definition of an `element' ofthe offense." Id. at 494 n. 19.
Thus, the Supreme Court invalidated the New Jersey sentencing scheme asit applied to hate crimes because the Fifth and Sixth Amendments"indisputably entitle a criminal defendant to `a jury determination that[he] is guilty of every element of the crime with which he is charged,beyond a reasonable doubt.'" Id. a 477 (quoting United States v. Gaudin,515 U.S. 506, 510 (1995)) (brackets in original).
In Ring, the Supreme Court recently reconsidered and overruled Walton.SeeRing, 122 S.Ct. at 2443. It characterized Arizona's enumeratedaggravating factors as the functional equivalents of elements of agreater offense. Id. Thus, it held that those factors would have to befound by a jury beyond a reasonable doubt for the maximum permissiblesentence to be raised to death. Id. at 2439, 2443.
On the day it decided Ring, the Supreme Court also decided Harris v.United States, 122 S.Ct. 2406 (2002). In Harris, a plurality of the Courtstated that "McMillan [v. Pennsylvania, 477 U.S. 79 (1986)] and Apprendimean that those facts setting the outer limits of a sentence . . . areelements of the crime for the purposes of the constitutional analysis."Id. at 2419.
Consistent with the statement in Jones, 526 U.S. at 243 n. 6, that theSupreme Court was addressing only the required procedures for findingfacts, Jones, Apprendi, and Ring have been regularly held, in habeascases, to announce a rule of criminal procedure rather than a new rule ofsubstantive law. See United States v. Brown, 305 F.3d 304, 308-09 (5thCir. 2002); Cannon v. Mullin, 297 F.3d 989, 994 (10th Cir. 2002); UnitedStates ex rel. Perez v. Warden, FMC Rochester, 286 F.3d 1059, 1063 (8thCir. 2002); United States v. Sanchez-Cervantes, 282 F.3d 664, 668 (9thCir. 2002); McCoy v. United States, 266 F.3d 1245, 1257 n. 16 (11th Cir.2001).
In addition, in rejecting a constitutional challenge to21 U.S.C. § 841, which provides for enhanced penalties in drug casesbased on drug type and quantity, the Fourth Circuit held that theApprendi rule governs only the process by which the elements of the crimemust be determined. See United States v. McAllister, 272 F.3d 228, 232(4th Cir. 2001).
This court agrees that Jones, Apprendi, and Ring concern criminalprocedure and not the definition of conduct which is criminal, which is alegislative function. See Jones, 526 U.S. at 243 n. 6. Essentially, afterthis trilogy of cases, legislatures retain the sole power to determinewhat must be proven to subject a defendant to the death penalty. Id. Asthe Supreme Court wrote in Jones, "[t]he constitutional guarantees thatgive rise to our concern in no way restrict the ability of legislaturesto identify the conduct they wish to characterize as criminal or todefine the facts whose proof is essential to the establishment ofcriminal liability." Id. However, the courts are the final arbiterconcerning which of those facts must be treated as elements of theoffense that must be charged in an indictment and proven to a jury beyonda reasonable doubt for a particular punishment to be imposed. See Ring,122 S.Ct. at 2441. As the Supreme Court noted in Ring, "Apprendirepeatedly instructs . . . that the characterization [by the legislature]of a fact or circumstance as an `element' or a `sentencing factor' is notdeterminative." Id.
In view of the foregoing, the court concludes that, in light of Ring,the facts concerning a defendant's state of mind and aggravating factorsthat the Federal Death Penalty Act requires be proven for a defendant tobe eligible for the death penalty must be treated procedurally aselements of the offense alleged — in this case, a violation of§ 2119(3). Therefore, they "`. . . must be charged in an indictment,submitted to a jury, and proven beyond a reasonable doubt.'" Ring, 122S.Ct. at 2439 (quoting Jones, 526 U.S. at 243 n. 6).
The government does not dispute this. Rather, the government states inits opposition to the Motion that, "[a]fter Ring, it seems that theculpability and statutory aggravating factors that allow for theimposition of the death penalty should appear in the indictment." Govt.'sOpp. at 8-9. That is the reason that the government obtained the SecondSuperseding Indictment, which includes a notice of special findingsconcerning the defendant's state of mind and certain statutoryaggravating factors.
As described earlier, the Federal Death Penalty Act expressly requiresthat the facts necessary to make a defendant eligible for the deathpenalty be found by a jury beyond a reasonable doubt, as isconstitutionally required after Ring. See 18 U.S.C. § 3593(c)-(e).The Federal Death Penalty Act does not, however, require that a grandjury find probable cause to believe that those facts exist and includethem in an indictment. Therefore, the defendant asserts that the FederalDeath Penalty Act is unconstitutional. The defendant also argues that"the act may not be saved by a judicial `construction' that creates a newcriminal offense whose elements and intertwined procedures have neitherbeen considered, nor enacted into law, by Congress." Def.'s Memo. at 4.The defendant's contentions, however, are not correct.
Read together, the Federal Death Penalty Act and Ring provide that: (1)the Department of Justice must find that the circumstances of an allegedoffense justify the imposition of the death penalty; but (2) theDepartment of Justice finding is not alone sufficient to subject adefendant to a possible death sentence.
Because the intent and aggravating factors requirements of the FederalDeath Penalty Act must now be treated procedurally as elements of anoffense for which the death penalty is authorized, a grand jury mustagree with the Department of Justice that it is permissible andappropriate that a defendant be exposed to the death penalty and give himnotice in the indictment of the alleged grounds for imposing it. SeeRussell v. United States, 369 U.S. 749, 763 (1962) (discussing role ofgrand jury); Hamling v. United States, 418 U.S. 87, 117 (1974) (same);United States v. Cotton, 122 S.Ct. 1781, 1786-87 (2002) (same).
The Supreme Court has often instructed that "courts should construestatutes to avoid decision as to their constitutionality." United Statesv. Monsanto, 491 U.S. 600, 611 (1989); see also INS v. St. Cyr,533 U.S. 289, 299-300 (2001); Salinas v. United States, 522 U.S. 52,59-60 (1997); Edward J. DeBartolo Corp. v. Florida Gulf Coast Building& Construction Trades Council, 485 U.S. 568, 575 (1988). However,this "canon of constitutional avoidance has no application in the absenceof statutory ambiguity." United States v. Oakland Cannabis Buyers'Coop., 532 U.S. 483, 494 (2001); see also Salinas, 522 U.S. at 59-60;Monsanto, 491 U.S. at 611. In this case it is clear that, in enacting theFederal Death Penalty Act in 1994, Congress did not provide that thegrand jury would play a role in deciding whether a defendant would beeligible for a death sentence if convicted of the crime it charged.Thus, it is not permissible for the court to invoke the canon ofconstitutional avoidance to interpret the statute as providing a role forthe grand jury.
However, the Federal Death Penalty Act does not manifest an intent toprohibit the grand jury from performing its historic, constitutionalfunction if Walton were ever reversed and the facts making a defendanteligible for the death penalty weredeemed, for procedural purposes, tobe elements of an offense rather than sentencing factors.
"The avoidance canon rests upon [the Supreme Court's] `respect forCongress, which [the Court] assume[s] legislates in light ofconstitutional limitations.'" Harris, 122 S.Ct. at 2413 (quoting Rust v.Sullivan, 500 U.S. 173, 191 (1991)). It should, therefore, be assumedthat Congress knew in 1994 that the Constitution requires that allelements of an offense must be alleged in an indictment. This propositionwas well established long before 1994. The Supreme Court discussed thisrequirement in 1962 in Russell. See 369 U.S. at 763. In 1974, inHamling, it reiterated the holding of Russell and cited cases in supportof it dating back to 1882. See 418 U.S. at 117-18.
As a corollary of the principle that it should be assumed that Congresslegislates in light of constitutional limitations, it is logical andreasonable to assume also that Congress legislates with knowledge thatthe Supreme Court at times reverses its previous interpretation of theConstitution. Virtually everyone knows that, in 1896, the Supreme Courtheld that separate but equal facilities for blacks and whites wereconstitutionally permissible and, in 1954, held that they were not.Compare Plessy v. Ferguson, 163 U.S. 537 (1896) with Brown v. Board ofEducation, 347 U.S. 483 (1954).
Most lawyers remember from their first year in law school that, in1938, the Supreme Court reversed Swift v. Tyson and, in Erie RailroadCo. v. Tompkins, held that, in diversity cases, federal courts must applystate substantive law. Compare Swift v. Tyson, 41 U.S. 1(1842) with ErieR. Co. v. Tompkins, 304 U.S. 64 (1938). In explaining the Erie decision,Justice Louis D. Brandeis wrote: "If only a question of statutoryconstruction were involved, we should not be prepared to abandon adoctrine so widely applied throughout nearly a century. But theunconstitutionality of the course pursued has now been made clear, andcompels us to do so." Erie, 304 U.S. at 77-78.
As Edward Levi, then a professor of law, wrote in 1948 in his widelyread An Introduction to Legal Reasoning:
In addition to the power to hold legislative acts invalid, a written Constitution confers another and perhaps as great a power. It is the power to disregard prior cases. "The ultimate touchstone of constitutionality is the Constitution itself and not what we have said about it," Justice Frankfurter has written. The problem of stare decisis where a Constitution is involved is therefore an entirely different matter from that in case law or legislation. This is often overlooked when the court is condemned for its change of mind. A change of mind from time to time is inevitable when there is a written Constitution. There can be no authoritative interpretation of the Constitution. The Constitution in its general provisions embodies the conflicting ideals of the community. Who is to say what these ideals mean in any definite way? Certainly not the framers, for they did their work when the words were put down. The words are ambiguous. Nor can it be the Court, for the Court cannot bind itself in this manner; an appeal can always be made back to the Constitution. . . . [T]here is the influence of constitution worship. This influence gives great freedom to a court. It can always abandon what has been said in order to go back to the written document itself.
Edward H. Levi, An Introduction to Legal Reasoning 58-59 (1948) (quotingGraves v. New York, 306 U.S. 466, 491 (1939) (Frankfurter, J.,concurring)).
This principle has particular pertinence with regard to the deathpenalty. In 1991, the Supreme Court in Payne v. Tennessee, 501 U.S. 808,828 (1991) overruled its prior decisions in Booth v. Maryland, 482 U.S. 496(1987) and South Carolina v. Gathers, 490 U.S. 805 (1989) concerning theadmissibility of victim impact evidence in a death penalty proceeding. Indoing so, the Court explained why the reasons for the principlesunderlying the doctrine of stare decisis were weakest in constitutionalcases involving procedural and evidentiary rules. See Payne, 501 U.S. at828. It is reasonable to assume that Congress knew this in 1994.
It is also reasonable to assume that in 1994 Congress knew the SupremeCourt had, in 1972, held in Furman v. Georgia, 408 U.S. 238 (1972) thatstate death penalty statutes long regarded as lawful wereunconstitutional because they permitted the arbitrary and unguidedimposition of the death sentence and, therefore, had to be rewritten andreenacted by legislatures. As a result, many states were, for a period oftime, unable to impose the death penalty in cases in which they hadintended that it be available.
In view of the foregoing, it is reasonable to assume that Congressunderstood that the Supreme Court might reverse Walton and decide in thefuture that the facts which must be proven to impose the death penaltymust be treated as elements of an offense. Therefore, Congress had reasonto enact a Federal Death Penalty Statute that would remain constitutionalif this occurred. While the court does not find that Congress actuallyconsidered the question of the grand jury's role while drafting,debating, and enacting the Federal Death Penalty Act, it did have areason to recognize that the Supreme Court's interpretation of theConstitution as applied to the death penalty might change and to enact alaw that would be flexible enough to withstand any such change. Thus,Congress had reason to create a statute that would not only beconstitutional when enacted, but would also remain constitutional inlight of possible future developments.
The question then becomes whether the Federal Death Penalty Act iswritten in a way that survives the evolution of the constitutional lawthat Ring represents. The court finds that it is.
The Federal Death Penalty Act anticipated some of the constitutionalrequirements imposed by Ring. As described earlier, it provides that thefacts which make a defendant eligible for the death penalty must beproven to a jury beyond a reasonable doubt.1 See18 U.S.C. § 3593(c)-(e).
The fact that Ring requires decisions by the grand jury in addition tothe Department of Justice before a defendant is subject to the possibleimposition of the death penalty is consistent with the usual practice incriminal cases. Federal Rule of Criminal Procedure 7(c)(1) requires thatan attorney for the government sign an indictment. As the Supreme Courthas explained, the grand jury serves as a check on the potential abuse ofpower by the government. See Cotton, 122 S.Ct. at 1786-87. The signingrequirement of Federal Rule of Criminal Procedure 7(c)(1) provides ameans by which the Department of Justice serves as a check against thepossible abuse of power by a grand jury.
As indicated earlier, there is nothing in the Federal Death Penalty Actthat expresses Congressional intent to prohibit the grand jury fromperforming its traditional function under the Fifth Amendment followingRing. Rather, the statute is silent with regard to the grand jury'srole. As explained earlier, Jones, Apprendi, and Ring address issues ofcriminal procedure. The Federal Death Penalty Act does not conflict withor contradict the grand jury process that is now prescribed by thesecases. A similar silence and lack of conflict have been relied upon bythe First Circuit and other Courts of Appeals to reject claims thatprovisions of drug statutes which raise maximum penalties based on drugweight are unconstitutional because they do not provide for proving thetriggering facts to a jury beyond a reasonable doubt. See United Statesv. Collazo-Aponte, 281 F.3d 320, 324-25 (1st Cir. 2002); accord UnitedStates v. Candelario, 240 F.3d 1300, 1311 n. 16 (11th Cir. 2001); UnitedStates v. Slaughter, 238 F.3d 580, 582 (5th Cir. 2000); United States v.Cernobyl, 255 F.3d 1215, 1218-19 (10th Cir. 2001); McAllister, 272 F.3dat 232; United States v. Kelly, 272 F.3d 622, 623-24 (3d Cir. 2001);United States v. Martinez, 253 F.3d 251, 256 n. 6 (6th Cir. 2001); UnitedStates v. Woods, 270 F.3d 728, 729-30 (8th Cir. 2001).
Recognizing a role for the grand jury in deciding whether a defendantshall be subject to the death penalty does not require a rewriting of theFederal Death Penalty Act. The statutory roles of the Department ofJustice, the judge, and the jury are not altered. Contrary to Sampson'scontention, the notice by the Department of Justice is not renderedredundant if the grand jury's indictment includes allegations concerningthe defendant's state of mind and aggravating factors that the FederalDeath Penalty Act requires be proven for the defendant to be eligible forthe death sentence. The Department of Justice's notice may omit at leastone of the statutory aggravating factors and also may describe additionalnon-statutory aggravating factors that the government will seek to proveto justify a sentence of death. In the instant case, the notice servesboth of these functions by omitting one of the statutory aggravatingfactors alleged in the Second Superseding Indictment and by describingcertain non-statutory aggravating factors that the government will seekto prove. See Notice of Intent to Seek the Death Penalty (Docket No. 103)at 3-5, 7-9 (identifying non-statutory aggravating factors). Compare id.at 3, 6-7 with Second Superseding Indictment at 4-6 (omitting in theNotice a statutory aggravating factor alleged in the Second SupersedingIndictment).
Therefore, contrary to defendant's contention, this case isdistinguishable from United States v. Jackson, supra, andBlount v. Rizzi, 400 U.S. 410 (1971). In Jackson, thestatute at issue authorized only a jury to return a verdict of death. SeeJackson, 390 U.S. at 572. The Supreme Court found that this imposed animpermissible burden on the constitutional right to a jury trial becausethere would be no jury if a defendant pled guilty or was tried by a judge.Id. at 572, 582-83. Therefore, the statute placed pressure on a defendantto plead guilty or to waive his right to a jury trial in order to avert thedeath penalty or, alternatively, to place his life at risk by exercisinghis constitutional right to a trial by a jury. Id.
The government argued, however, that the judge had the power to convenea special jury for the limited purpose of addressing the death penalty.See id. The Supreme Court rejected this construction of the statute atissue, in part because the power to impanel such a jury had not beenrecognized in the federal system when the statute was enacted. Id. at578. The Supreme Court stated, however, that:
If the power to impanel such a jury had been recognized elsewhere in the federal system when Congress enacted the Federal Kidnaping Act, perhaps Congress' total silence on the subject could be viewed as a tacit incorporation of this sentencing practice into the new law. But the background against which Congress legislated was barren of any precedent for the sort of sentencing procedure we are told Congress impliedly authorized.
In contrast, as described earlier, the fact that the Fifth Amendmentrequires that a grand jury charge elements of an offense was clearlyestablished in 1994 when the Federal Death Penalty Act was enacted. SeeRussell, 369 U.S. at 763; Hamling, 418 U.S. at 117. It is reasonable toassume that the fact that the statute does not attempt to prohibit thegrand jury from performing its traditional function reflects Congress'tacit understanding that the grand jury could and would do so in a deathpenalty case if Walton were ever reversed. In finding probable cause tobelieve that facts which make the defendant eligible for the deathpenalty exist and including them in the Second Superseding Indictment, thegrand jury has not made impermissible special findings. Rather, it hasperformed its traditional duty under the Fifth Amendment to allege allelements of the offense that it has charged.
The statute in Jackson was also invalidated because the interpretationadvocated by the government would not merely have required the court to"fill a minor gap," but instead would have compelled the Court to "createfrom whole cloth a complex and completely novel procedure." Id. at 580.In contrast, the Federal Death Penalty Act, the Federal Rules of CriminalProcedure, and the common law governing grand jury practice give Sampson"the guidance that defendants ordinarily find in a body of procedural andevidentiary rules spelled out in advance of trial," that the SupremeCourt found lacking in Jackson. Id.
Blount, supra, is also distinguishable from the instant case. Blountinvolved a statute that permitted the Postmaster General to decide if amailing is obscene and, if so, to return it to the sender. Id. at411-14. If there was a complaint about such a decision, the statuteprovided for an administrative appeal of the Postmaster General'sdecision. Id. Subsequent to the enactment of the statute, the SupremeCourt held that, in order to be constitutional, a scheme ofadministrativecensorship must: (1) require the censor to initiatejudicial review promptly and prove the material is unprotectedexpression; (2) require a prompt judicial decision on the merits; and (3)limit any restraint pending a judicial decision to the shortest time"compatible with sound judicial resolution." Id. at 417.
The statute at issue in Blount was found to be unconstitutional becauseit did not require that the Postmaster General seek a prompt judicialdetermination or require a prompt decision by the court. Id. at 418-19.The Supreme Court rejected the government's argument that it could avoidthe constitutional question by construing the statute to deny theadministrative order any effect if the distributor sought judicialreview. Id. at 419. The court explained that this construction failed tosatisfy the requirement that the government initiate the review and thatthe court decide the matter promptly. Id. Thus, it held that, "it is forCongress, not this Court, to rewrite the statute." Id.
In contrast, Ring does not require that any provision of the FederalDeath Penalty Act be rewritten. As described earlier, it only requiresthat the grand jury perform its traditional function concerning factsthat are now deemed to be elements, or the functional equivalent ofelements, of offenses for which Congress has decided the death penaltycan be imposed.
In view of the foregoing, this court agrees with each of the othercourts that have addressed this issue in reported decisions and foundthat Ring does not render the Federal Death Penalty Actunconstitutional. See United States v. Johnson, ___ F. Supp.2d. ___, No.CR 01-3046-MWB, 2003 WL 43363, at *9-*20 (N.D.Iowa Jan. 7, 2003); UnitedStates v. Denis, ___ F. Supp.2d ___, No. 99-714-CR-MORENO, 2002 WL31730863, at *3 (S.D.Fla. Dec. 3, 2002); United States v. Fell,217 F. Supp.2d 469, 478-84 (D.Vt. 2002); United Sates v. Regan,221 F. Supp.2d 672, 679-81 (E.D.Va. 2002); United States v. Lentz,225 F. Supp.2d 672, 677-82 (E.D.Va. 2002); United States v. Church,218 F. Supp.2d 813, 815 (W.D.Va. 2002).
B. 18 U.S.C. § 3593(c) May Not Render The Federal Death Penalty Act Unconstitutional, But This Issue Is Not Ripe For Resolution
As indicated earlier, Sampson has withdrawn his request that the courtnow declare the Federal Death Penalty Act unconstitutional because18 U.S.C. § 3593(c) authorizes the admission at sentencing ofinformation that would not be admissible under the Federal Rules ofEvidence, thus violating defendants' Fifth and Sixth Amendment rights.However, it may be helpful to work that the parties will be doing in thefuture for the court to explain its tentative thoughts on this issue.
Sampson relies on the analysis declaring the Federal Death Penalty Actunconstitutional in Fell, 217 F. Supp.2d at 485-90. Other decisions,including Regan, 221 F. Supp.2d at 681-83, have reached a contraryconclusion on the same issue.
Sampson's claim that § 3593(c) renders the Federal Death PenaltyAct unconstitutional would not now be ripe for resolution in this case.Generally, a court should not decide constitutional issuesunnecessarily. This is a fundamental axiom of judicial restraint. See,e.g., Three Affiliated Tribes v. Wold Eng'g, P.C., 467 U.S. 138, 157(1984). In addition, except in First Amendment cases, the issue ofwhether a statute is unconstitutional must be decided as applied in aparticular case. See Broadrick v. Oklahoma, 413 U.S. 601, 610-11 (1973);Members of City Council of Los Angeles v. Taxpayers for Vincent,466 U.S. 789, 797-98 (1984). As the First Circuit has stated, "[d]ecidingconstitutional questions in the abstract is a recipe for making bad law."United States v. Hilton, 167 F.3d 61, 71 (1st Cir. 1999), overruled onother grounds by Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002).
In Fell, the court focused on a statement the government proposed tointroduce that was allegedly made by a deceased co-defendant. See Fell,217 F. Supp.2d at 485. The court evidently believed that it would beobligated to admit the statement under § 3593(c), but would excludeit if the Federal Rules of Evidence applied.
In the instant case, Sampson has not pled guilty or been convicted. Itis uncertain whether his trial will involve a penalty phase. Inaddition, and significantly, the court has not been told what evidencethe government proposes to offer in any penalty phase. The court cannotnow determine whether any such evidence might be admissible under §3593(c), but not under the Federal Rules of Evidence. Thus, the issueraised and now withdrawn by Sampson might be moot in this case.
If the issue is presented, it is possible that § 3593(c) will proveto be more favorable to the defendant than the Federal Rules ofEvidence. Section 3593(c) provides that at the penalty phase of thetrial, "[i]nformation is admissible regardless of its admissibility underthe rules governing admission of evidence at criminal trials except thatinformation may be excluded if its probative value is outweighed by thedanger of creating unfair prejudice, confusing the issues, or misleadingthe jury." This balancing test is more favorable to the defendant thanthe test established by Federal Rule of Evidence 403, which requires thatto exclude otherwise admissible evidence a court find that its probativevalue is substantially outweighed by such dangers. See Fed R. Evid. 403;Regan, 221 F. Supp.2d at 682.
Moreover, the Federal Rules of Evidence are not coextensive with therequirements of due process. They are subject to the requirements of dueprocess, but they may provide a defendant more protection than due processrequires in a particular case. See United States v. Brainer, 691 F.2d 691,695 n. 7 (4th Cir. 1982) (quoting Tot v. United States, 319 U.S. 463(1943)). Prior to Ring, the Supreme Court held that, in a death penaltycase, "it [is] desirable for the jury to have as much information beforeit as possible when it makes the sentencing decision." Gregg v. Georgia,428 U.S. 153, 204 (1976). The Supreme Court previously and more generallystated that "[t]he due-process clause should not be treated as a devicefor freezing the evidential procedure of sentencing in the mold of trialprocedure." Williams v. New York, 337 U.S. 241, 251 (1949).
Ring's holding that the facts that make a defendant eligible for thedeath penalty must be treated as elements of the offense may place theseprevious pronouncements in doubt. The present case is not, however, now ina posture where any such doubts can be properly resolved. As trialapproaches, the court intends to encourage disclosure of information thatthe parties propose to introduce in the possible penalty phase of thetrial and order the filing of motions in limine concerning suchinformation. The § 3593(c) issue that Sampson has noted may then beripe for resolution on the merits.
It is hereby ORDERED that:
1. The defendant's Motion to Withdraw Previously-Entered Pleas of Not Guilty and to Plead Guilty to Both Counts of the Indictment is DENIED with prejudice. 2. The defendant's Motion to Declare the Federal Death Penalty Act of 1994 Unconstitutional in accord with United States v. Fell, 217 F. Supp.2d 469 (D.Vt. 2002) because of the evidentiary standard set forth in 18 U.S.C. § 3593(c) is WITHDRAWN.
1. The statute does not address whether the jury must be persuadedbeyond a reasonable doubt that aggravating factors sufficiently outweighmitigating factors to justify the imposition of the death penalty. See18 U.S.C. § 3593(e). This issue has not been presented by the Motionthat the court is now addressing and is not being decided. However, thecourt notes that in United States v. Jackson, 390 U.S. 570, 580 (1968),the Supreme Court stated that it is permissible to fill a minor gap in astatute by extrapolating from its general design details that have beeninadvertently omitted. The court expects that this is an issue it mayhave to decide in the future. The court notes that in United States v.Gilbert, Cr. No. 98-30004-MAP, which is to date the only case in which aMassachusetts jury has been required to consider imposing the deathpenalty pursuant to the Federal Death Penalty Act, Judge Michael Ponsorinstructed that the government had to prove beyond a reasonable doubtthat the death penalty was justified.