United States District Court, D. Alaska
ORDER RE: MOTION TO STRIKE ALL STATUTORY AND
NON-STATUTORY AGGRAVATING FACTORS BECAUSE THEY WERE NOT FOUND
BY THE GRAND JURY
SHARON
L. GLEASON UNITED STATES DISTRICT JUDGE.
Before
the Court at Docket 289 is Defendant John Pearl Smith,
II's Motion to Strike All Statutory and Non-Statutory
Aggravating Factors Because They Were Not Found by the Grand
Jury. The Government filed an opposition.[1] Mr. Smith did not
file a reply.
Mr.
Smith asserts that “all of the Statutory and
Non-Statutory Aggravating Circumstances are contained in
[Docket] 168, entitled Notice of Special Findings, signed by
two Assistant United States Attorneys. None of these
aggravating circumstances were submitted to, nor were they
found by, the Grand Jury.”[2] Mr. Smith asserts that the
Supreme Court's decision in Hurst v.
Florida[3]requires that a jury find each fact
necessary to impose a sentence of death. Mr. Smith interprets
Hurst to mean that all aggravating factors are
elements of the offense that must be submitted to and weighed
by the grand jury.[4]
The
Government responds that the Hurst decision is not
as broad as Mr. Smith maintains, and that
Hurst's requirement for jury fact-finding as to
a defendant's eligibility for the death penalty is
already built into the Federal Death Penalty Act: “the
FDPA provides for the jury to have the ultimate discretion in
determining a sentence-the exact remedy that the
Hurst Court required of the state of
Florida.”[5]
DISCUSSION
The
Grand Jury in this case issued a First Superseding Indictment
that includes a “Notice of Special Findings.” The
Notice states that “[t]he Grand Jury further
finds” and lists several threshold intent factors and
five statutory aggravating factors.[6] These five statutory
aggravators are the same statutory aggravators listed in the
Notice of Intent to Seek the Death Penalty.[7] The statutory
aggravating factors noticed in this case were submitted to
and found by the Grand Jury.[8]
In
contrast, the First Superseding Indictment does not contain
the non-statutory aggravating factors noticed by the
Government in its Notice of Intent.
The
FDPA sets forth a specific procedure that a jury must follow
in reaching a decision about whether to impose the death
penalty. If a defendant is found guilty in the guilty-not
guilty phase of trial, the trial moves into the penalty
phase. The penalty phase consists of eligibility and
selection.
In the
eligibility portion, the jury considers three factors:
whether the defendant was at least 18 years old at the time
of the offense, whether the defendant had at least one of
four enumerated mental states (referred to as gateway or
threshold intent factors), and whether at least one statutory
aggravating factor exists.[9] These three factors must be found
beyond a reasonable doubt.[10] The jury must unanimously
agree as to which threshold intent factor(s) and which
statutory aggravating factor(s) exists.[11] If, and only
if, the jury finds these three factors beyond a reasonable
doubt does the defendant become eligible for the death
penalty.[12] At that point, the maximum penalty the
defendant can receive is the death penalty.
In the
selection portion of the penalty phase, the jury considers
whether aggravating factors outweigh the mitigating
factors[13] so as to warrant a punishment of
death.[14] It is in this selection portion that the
jury-which has already determined that the defendant is
eligible for the death sentence-considers non-statutory
aggravating factors. “The non-statutory aggravating
factors, although relevant to determining whether a jury
decides to impose the death penalty, do not make a
defendant statutorily eligible for any sentence that could
not be otherwise imposed in their absence. They are neither
sufficient nor necessary under the FDPA for a sentence of
death.”[15] Because non-statutory aggravating
factors do not increase the maximum punishment, they are not
elements of the offense and the government need not submit
them to the grand jury or charge those factors in the
indictment.[16]
Hurst
v. Florida does not change this outcome. Hurst
found Florida's death penalty sentencing scheme violated
the Sixth Amendment because it did not require a jury to find
each fact necessary to impose the death
sentence.[17] Unlike Florida's sentencing scheme,
the FDPA requires the jury to find the facts necessary to
make the defendant death-penalty eligible.[18] Thus, any
aggravating factors that expose Mr. Smith to the death
penalty must be found by the jury, negating any
Hurst violation.
In
light of the foregoing, IT IS ORDERED that the motion at
Docket 289 is DENIED.
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