U.S. v. Hargrove

Full title: UNITED STATES OF AMERICA, Plaintiff, v. DEMETRIUS HARGROVE, Defendant

Court: United States District Court, D. Kansas

Date published: Feb 25, 2005

Civil Action No. 03-20192-CM (D. Kan. Feb. 25, 2005)

Opinion

Civil Action No. 03-20192-CM.

February 25, 2005

MEMORANDUM AND ORDER

CARLOS MURGUIA, District Judge

Pending before the court are defendant's Request that the Court Rule Favorably Upon Hargrove's Alternative Request that the Government be Prohibited from Presenting "Information" and be Required to Follow the Federal Rules of Evidence During Penalty Phase Proceedings (Doc. 123); Petition that the Court Consider and Rule Favorably Upon Hargrove's Request that the Government be Prohibited from Seeking the Death Penalty for Failure to Include in its Indictment all Elements of its Capital Prosecution (Doc. 124); and Further Suggestions with Respect to Jury Selection (Doc. 125).

I. Request that the Court Rule Favorably Upon Hargrove's Alternative Request that the Government be Prohibited from Presenting "Information" and be Required to Follow the Federal Rules of Evidence During Penalty Phase Proceedings (Doc. 123)

On February 8, 2005, this court issued a Memorandum and Order (February Order), ruling upon defendant's Motion to Declare Federal Death Penalty Act Unconstitutional Due to Permitting Government to Present Information and not Following Federal Rules of Evidence (Doc. 100). Specifically, defendant challenged the constitutionality of the sentencing portion of the Federal Death Penalty Act (FDPA), 18 U.S.C. 3593(c), which allows the government to present any information relevant to an aggravating factor. Based upon sound reasoning and finding support in the case law, the court upheld the constitutionality of § 3593(c). Notwithstanding this ruling, defendant requests that the government be held, in all phases of trial, to presentation of evidence under the Federal Rules of Evidence.

In light of the court's ruling set forth in the February Order, the court denies defendant's request to require that the government be prohibited from presenting information at sentencing. The FDPA's evidentiary scheme "expressly provides the trial court with the discretion necessary to exclude unreliable and/or prejudicial evidence the admission of which would be fundamentally unfair and, therefore, violate the defendant's right to a fair trial under the Bill of Rights." United States v. Matthews, 246 F. Supp. 2d 137, 145 (2002) (citing United States v. Castillo, 140 F.3d 874, 883 (10^th Cir. 1998)). As such, should this case proceed to the sentencing phase, the court will exclude any evidence it deems overly prejudicial, confusing, or misleading, paying particular attention to the constitutional constraints of the Fifth and Sixth Amendments.

II. Petition that the Court Consider and Rule Favorably Upon Hargrove's Request that the Government be Prohibited from Seeking the Death Penalty for Failure to Include in its Indictment all Elements of its Capital Prosecution (Doc. 124)

Defendant next asserts that the court in its February Order failed to address whether the indictment in this case is insufficient for a capital prosecution due to the failure by the government to receive a true bill from the grand jury concerning non-statutory aggravating and weighing factors.

The court turns to the rationale set forth by the Fourth Circuit in United States v. Higgs, 353 F.3d 281 (4^th Cir. 2003). In Higgs, the court discussed the difference between statutory and non-statutory aggravating factors. The court pointed out that a defendant does not become eligible for the death penalty unless the jury finds at least one statutory intent factor, see 18 U.S.C.A. § 3591(a)(2), and at least one statutory aggravating factor, see 18 U.S.C.A. § 3592(c). Higgs, 353 F.3d at 298 (citing Jones v. United States, 527 U.S. 373, 376-377(1999)). As such, the court found that those intent and aggravating factors which the government intends to rely upon to render a defendant death-eligible under the FDPA are the functional equivalent of elements of the capital offenses and must be charged in the indictment, submitted to the petit jury, and proved beyond a reasonable doubt. Id.

However, with respect to non-statutory aggravating factors, the Fourth Circuit rejected the defendant's claim that the indictment clause requires that non-statutory aggravators relied upon by the government at trial be included in the indictment. The court reasoned:

The finding of a nonstatutory aggravator alone will not support imposition of the death penalty. Rather, the purpose of nonstatutory aggravators is to aid the factfinder inselecting the appropriate sentence from the available options, i.e., death or life imprisonment. Thus, "the sentencer determines whether a defendant eligible for the death penalty should in fact receive that sentence. What is important at the selection stage is an individualized determination on the basis of the character of the individual and the circumstances of the crime." Tuilaepa v. California, 512 U.S. 967, 972 (1994) (internal quotation marks omitted); see also Jones [ v. United States, 527 U.S.373, 376-379, 1999)] (discussing the FDPA decisionmaking process and the distinction between the "eligibility" decision and the "selection" decision); Zant v. Stephens, 462 U.S. 862, (1983) (discussing difference between "eligibility" and "selection" factors) . . . Because nonstatutory aggravating factors do not increase the available punishment to which a defendant might be subjected, they are not required to be alleged in the indictment.

Higgs, 353 F.3d at 298; see also United States v. Reagan, 221 F. Supp. 2d 672, 680-681 (E.D. Va. 2002) (holding that non-statutory factors need not be included in the indictment because a finding of non-statutory aggravating factors does not "increase the penalty for a crime beyond the prescribed statutory maximum") (quoting United States v. Apprendi, 530 U.S. 466, 490 (2000)). This court agrees with the reasoning set forth in Higgs.

Accordingly, because non-statutory factors are not required to be included in the indictment, the court finds that the indictment the government presented to the grand jury in this case was constitutionally sufficient to qualify defendant for death under the FDPA. If this case proceeds to the sentencing phase, the jury will already have determined whether defendant is eligible to receive the death penalty. At that point, the question before the jury in assessing the non-statutory aggravating factors is "whether a defendant eligible for the death penalty should in fact receive that sentence." Tuilaepa v. California, 512 U.S. 967, 972 (1994).

III. Further Suggestions with Respect to Jury Selection (Doc. 125)

Defendant sets forth further suggestions regarding both the time line suggested by the court in completing the jury questionnaires and the sequestration of individual venire persons.

In light of defendant's suggestions, the court sets forth the following schedule, which shall supersede the schedule initially advanced in the February 2005 Order: The jury questionnaires shall be completed 2 months before trial. Thus, the court directs that the questionnaires be completed on or about August 3, 2005, and distributed to counsel as soon as possible thereafter. The parties shall confer and jointly present to the court, 40 days prior to trial, a list of challenges for cause in three parts, consisting of 1) challenges for cause upon which the parties agree; 2) challenges for cause proposed by the government to which the defense objects; and 3) challenges for cause proposed by the defense to which the government objects. At that point, the court will set forth an expedited schedule for the parties to brief their challenges and objections to challenges.

With respect to defendant's request that individual venire persons be sequestered during the voir dire process, the court already has ruled on that issue. At this juncture, the court intends to proceed with voir dire as set forth in the February Order. As the date of trial draws nearer, or if compelling reasons become clear to the court, the court may alter the process as originally set forth.

IT IS THEREFORE ORDERED that defendant's Request that the Court Rule Favorably Upon Hargrove's Alternative Request that the Government be Prohibited from Presenting "Information" and be Required to Follow the Federal Rules of Evidence During Penalty Phase Proceedings (Doc. 123) is denied; defendant's Petition that the Court Consider and Rule Favorably Upon Hargrove's Request that the Government be Prohibited from Seeking the Death Penalty for Failure to Include in its Indictment all Elements of its Capital Prosecution (Doc. 124) is denied; and defendant's Further Suggestions with Respect to Jury Selection (Doc. 125) is granted in part and denied in part.