Free Order on Motion to Preclude - District Court of Colorado - Colorado

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Wiley Y. Daniel Criminal Case No. 00-cr-00531-WYD UNITED STATES OF AMERICA, Plaintiff, v. 1. WILLIAM CONCEPCION SABLAN, 2. RUDY CABRERA SABLAN, Defendants. _____________________________________________________________________ ORDER _____________________________________________________________________ DANIEL, Judge I. INTRODUCTION THIS MATTER is before the Court in connection with the parties' legal challenges to the death penalty (" Phase II Challenges" By way of background, on May 1, 2001, the ). Government filed a Notice of Intent (" NOI" to seek the death penalty pursuant to the ) Federal Death Penalty Act [hereinafter " FDPA" 18 U.S.C. §§ 3591-3596, as to both ], Defendants in this case. Amended Notices of Intent to Seek the Death Penalty were filed December 21, 2005. During the week of December 5, 2005, the Court held a hearing concerning Defendants'objections to the NOIs as well as Defendants'constitutional challenges to various provisions of the FDPA. This Order addresses the issues raised in the December 2005 hearing as set forth in the Defendants' Phase II Challenges.

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II.

ANALYSIS A. Facial Constitutional Challenges

I first address Defendants' facial challenges to the FDPA as set forth in William Sablan' Motion to Strike the Government' Notice of Intent to Seek the Death Penalty on s s the Grounds that The Federal Death Penalty Act, 18 U.S.C. § 3591, et seq., Is Facially Unconstitutional, and Memorandum Brief in Support, filed August 29, 2005, and

Defendant Rudy Sablan' Motion to Preclude Consideration of the Death Penalty for s Unconstitutional Provisions and Procedures Established by 18 U.S.C. § 3591, et seq., filed September 2, 2005. The Government filed a consolidated Response to these Motions on October 21, 2005. Defendant William Sablan filed a Reply on November 17, 2005. Defendants raise multiple facial challenges to the FDPA, 18 U.S.C. § 3591, et seq. As an initial matter, I note that a facial challenge to a federal statute is difficult to mount. To succeed on any of their facial challenges, Defendants must show that due to the alleged defects in the FDPA there exists " set of circumstances exists under which the no Act would be valid." United States v. Salerno, 481 U.S. 739, 745 (1987). 1. Fifth Amendment Grand Jury Clause

First, both Defendants contend that the FDPA violates the Grand Jury Clause of the Fifth Amendment to the United States Constitution because it does not require that " facts essential to a death sentence"-- namely, all statutory and nonstatutory aggravating factors -- be presented to a grand jury and charged in the indictment. The FDPA permits the Government to seek the death penalty by filing a written notice at " reasonable time a before trial . . . setting forth the aggravating factor or factors the government . . . proposes -2-

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to prove as justifying a sentence of death." 18 U.S.C. § 3593(a)(1) & (2). In order for a defendant to be eligible for the death penalty, the jury must find the existence of at least one enumerated mental state and at least one statutory aggravating factor. 18 U.S.C. §§ 3591(a)(2) & 3592(c). If the jury determines a defendant is " death eligible," must then it review any nonstatutory aggravating factors as well as any mitigating factors and " consider whether all the aggravating factor or factors found to exist sufficiently outweigh all the mitigating factor or factors found to exist to justify a sentence of death." 18 U.S.C. § 3593(e). The FDPA does not require the Government to charge statutory or nonstatutory aggravating factors in the indictment nor does it require the Government to present statutory and nonstatutory aggravating factors to a grand jury. The Grand Jury Clause of the Fifth Amendment to the United States Constitution states that " [n]o person shall be held to answer for a capital . . . crime, unless on presentment or indictment of a Grand Jury . . .." U.S. Const. Amend. V. Defendants contend that pursuant to the United States Supreme Court decisions in Apprendi v. New Jersey, 530 U.S. 466 (2000); Ring v. Arizona, 536 U.S. 584 (2002); and Blakely v. Washington, 542 U.S. 296 (2004), all aggravating factors, including nonstatutory aggravating factors, must be presented to a grand jury and charged in the indictment. Several circuit courts have found the holdings in Ring, Apprendi, and Jones v. United States, 526 U.S. 227 (1999) applicable to the Fifth Amendment Grand Jury Clause and concluded that the Fifth Amendment requires that at least one statutory aggravating factor that allows for imposition of the death penalty must be presented to a grand jury and charged in the indictment. See United States v. Allen, 406 F.3d 940, 943 (8th Cir. 2005) -3-

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(" We therefore conclude that the Fifth Amendment requires at least one statutory aggravating factor and the mens rea requirement to be found by the grand jury and charged in the indictment" see also United States v. Robinson, 367 F.3d 278, 284 (5th ); Cir.), cert. denied, 543 U.S. 1005 (2004); United States v. Higgs, 353 F.3d 281, 298 (4th Cir. 2003); United States v. Quinones, 313 F.3d 49, 53 n.1 (2d Cir. 2002). I agree with the reasoning in these cases and adopt that reasoning here. Although the FDPA does not require the Government to charge statutory aggravating factors in the indictment and present them to the grand jury, it does not preclude the Government from doing so. In this case, the Government did in fact charge the culpability and statutory aggravating factors (but not the nonstatutory aggravating factors) in the Second Superseding Indictment and present those factors to the grand jury. Because the FDPA does not prevent the Government from fulfilling its obligations under the Grand Jury Clause of the Fifth Amendment, I reject Defendants' contention that the FDPA is facially unconstitutional under the Grand Jury Clause. See Allen, 406 F.3d at 949; Robinson, 367 F.3d at 290; United States v. Barnette, 390 F.3d 775, 789 (4th Cir. 2004), vacated on other grounds, 126 S. Ct. 92 (2005). As to nonstatutory aggravating factors, I find that the Government has no Fifth Amendment obligation to charge nonstatutory aggravating factors in the indictment and present them to the grand jury. According to Defendant, under Ring, Apprendi, and Jones, nonstatutory aggravating factors must be charged in the indictment and presented to the grand jury because they expose a defendant to a greater punishment than that authorized by the jury' guilty verdict alone. I disagree and find that nonstatutory aggravating factors s -4-

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do not increase the level of punishment to which a defendant may be subjected. As described above, the jury may only consider nonstatutory aggravating factors after making an initial determination that a defendant is eligible to receive the death penalty. See United States v. Bourgeois, 423 F.3d 501, 507 (5th Cir. 2005), petition for cert. filed (U.S. Jan. 9, 2006) (No. 05-8557); Higgs, 353 F.3d at 298; United States v. Hargrove, No. 0320192-CM, 2005 WL 1041340, at *2 (D. Kan. Feb. 25, 2005). Because I find that the Fifth Amendment does not require the Government to charge nonstatutory aggravating factors in the indictment and present them to the grand jury, the fact that the FDPA does not contain such a requirement does not render the statute facially unconstitutional. a. Motions to Strike

Because I reject Defendants' facial challenge to the FDPA under the Grand Jury Clause of the Fifth Amendment, I must also deny Defendant William Sablan' Motion to s Strike the Nonstatutory Aggravating Factor of Future Dangerousness from the Government' Notice of Intent to Seek the Death Penalty on the Grounds that the Factor s Was Not Presented to the Grand Jury In Violation of the Fifth Amendment, filed August 29, 2005. In this motion, Defendant William Sablan requests that I strike the nonstatutory aggravating factor of " future dangerousness"from the Government' NOI because this s nonstatutory aggravator was never presented to the grand jury. As discussed above, the Government has no obligation under the Fifth Amendment to present nonstatutory aggravators to the grand jury. I also deny Defendant William Sablan' Motion to Strike " s Notice of Special Findings" From the Second Superseding Indictment on the Grounds that the Grand Jury Has No -5-

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Authority to Make Death-Eligibility Findings, filed August 29, 2005. Here, Defendant William Sablan requests that this Court strike the " Notice of Special Findings"from the Second Superseding Indictment on the grounds that the grand jury was without authority to render them. Defendant suggests that construing the FDPA as providing for grand jury indictments on death-eligibility matters would render the government-notice provision wholly superfluous. Defendant' argument is inconsistent with his prior argument that all s facts relevant to Defendant' eligibility for the death sentence under the FDPA must be s charged in the indictment and presented to the grand jury. As discussed above, while the FDPA does not provide for or require the Government to charge a culpability factor or statutory aggravating factors in an indictment and present them to the grand jury, nothing in the FDPA precludes the Government from doing so. See Allen, 406 F.3d at 949; Robinson, 367 F.3d at 290. 2. Scope of the FDPA

Next, Defendants assert that the FDPA fails to narrow the class of persons eligible for the death penalty from the category of persons convicted of crimes involving other " intentional"killings. Pursuant to Zant v. Stephens, 462 U.S. 862 (1983), a constitutional death penalty statute must " genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder." Id. at 877. In accord with the appellate courts that have addressed this issue, I conclude that the FDPA meets the constitutional requirements described in Zant. See United States v. Allen, 247 F.3d 741, 761 (8th Cir. 2001), vacated on other grounds, 536 U.S. 953 (2002). First, the FDPA only -6-

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authorizes the death penalty for certain federal crimes. Second, the FDPA further narrows the class of persons eligible for death by requiring that the jury find that the defendant had the requisite intent and the presence of at least one statutory aggravating factor. See United States v. Jones, 132 F.3d 232, 248 (5th Cir. 1998) (" [t]he use of aggravating factors helps to narrow the class of death-eligible persons . . . ." (citing Lowenfield v. Phelps, 484 ) U.S. 231, 244 (1987)), aff' 527 U.S. 373 (1999). Defendants complain that the list of d, statutory aggravating factors under 18 U.S.C. § 3592(c) is too broad. I disagree. 18 U.S.C. § 3592(c) lists sixteen aggravating factors for homicide. Consideration of the existence any of these aggravators for which proper notice has been given " helps to channel the jury' discretion by allowing the jury to consider the circumstances of the crime s when deciding the propriety of the death sentence." Jones, 132 F.3d at 249. 3. Use of Nonstatutory Aggravating Factors

Defendants challenge the use of nonstatutory aggravating factors on several grounds. These are considered separately below. a. Unconstitutional Delegation

First, Defendants assert that the use of nonstatutory aggravating factors constitutes an unconstitutional delegation of legislative power to the Executive Branch, because the FDPA does not limit a prosecutor' discretion to allege any fact as a nonstatutory s aggravating factor. As Defendants acknowledge, this argument was rejected in United States v. McVeigh, 944 F. Supp. 1478, 1486 (D. Colo. 1996). In addition, the Tenth Circuit in United States v. McCullah, 76 F.3d 1087 (10th Cir. 1996), stated that " [t]he prosecutorial discretion to promulgate nonstatutory aggravating factors falls squarely within the -7-

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permissible delegation of power to the Executive Branch." Id. At 1106. I concur with the reasoning in McVeigh and adopt it here. b. Discretion of Jury

Next Defendants contend that the use of nonstatutory aggravating factors fails to limit and guide the discretion of the jury in violation of the Eighth Amendment. Defendants assert that by permitting different prosecutors to select the nonstatutory aggravating factors they choose to present in an individual case, the FDPA injects arbitrariness and capriciousness into the capital sentencing process. I disagree. " the selection stage of At a capital proceeding, the focus is on ` individualized determination on the basis of the an character of the individual and the circumstances of the crime.' McCullah, 76 F.3d at " 1106 (quoting Zant v. Stephens , 462 U.S. 862, 879 (1983) (emphasis in original)). As the Tenth Circuit recognized in McCullah, the use of relevant nonstatutory aggravators serves to individualize the capital sentencing process and, thus, makes imposition of the death penalty less arbitrary and capricious. Id. at 1106-07. c. Proportionality Review

Defendants also object to the FDPA' use of nonstatutory aggravating factors s without providing for proportionality review. In Pulley v. Harris, 465 U.S. 37, 43 (1984), the United States Supreme Court found that while proportionality review is an additional safeguard against arbitrary imposition of the death penalty, it is not constitutionally required in capital cases. See McVeigh, 944 F. Supp. at 1486. Indeed, the Eighth Circuit has concluded that " proportionality review is not required in order for the FDPA to pass constitutional muster."United States v. Allen, 247 F.3d 741, 760 (8th Cir. 2001), vacated -8-

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on other grounds, 536 U.S. 953 (2002). In Allen, the Eighth Circuit reasoned that the FDPA' requirement that a jury find beyond a reasonable doubt the existence of one s culpability factor and one statutory aggravating factor, as well as the other procedural protections contained in the statute, were sufficient safeguards against arbitrary imposition of the death penalty. Id. at 760. In accord with Allen, I conclude that the FDPA' failure s to provide for proportionality review does not render the statute facially unconstitutional. d. Ex Post Facto Clause

Finally, Defendants contend that the use of nonstatutory aggravating factors violates the Ex Post Facto Clause by permitting the prosecution to manufacture aggravating factors after a crime was committed and apply them retroactively. The Ex Post Facto Clause, U.S. Const., Article I, section 9, cl. 3, protects against laws that " retroactively alter the definition of crimes or increase the punishment for criminal acts." Collins v. Youngblood, 497 U.S. 37, 43 (1990). The argument was advanced by the defendant in McVeigh, wherein the court stated that the enactment of the FDPA " was a change in sentencing procedure, not a change in the definition of a crime or an increase in the punishment." McVeigh, 944 F. Supp. at 1486. I agree that the use of nonstatutory aggravating factors neither alters the definition of the death eligible crimes nor increases the punishment for those crimes because consideration of any nonstatutory aggravators does not occur until the defendant has already been found eligible to receive the death penalty. See United Sates v. Higgs, 353 F.3d 281, 322 (4th Cir. 2003) (" nonstatutory aggravating factors and mitigating factors are weighed by the jury to make the individualized determination to impose the death sentence upon a defendant who has -9-

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already been found eligible. They do not increase the possible punishment or alter the elements of the offense." ). 4. Evidentiary Standards

Defendants both object to the provision in the FDPA, which allows the Government and defendant to present " information relevant"during the penalty phase of a capital any sentencing proceeding, " regardless of its admissibility under the rules governing the admission of evidence at criminal trials except that information may be excluded if its probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury." 18 U.S.C. § 3593(c). In support of their argument, Defendants cite United States v. Fell, 217 F. Supp. 2d 469 (D. Vt. 2002), a case in which the United States District Court for the District of Vermont found the FDPA unconstitutional because it " bases a finding of eligibility for imposition of the death penalty on information that is not subject to the Sixth Amendment' guarantees of confrontation and crosss examination, nor to rules of evidentiary admissibility guaranteed by the Due Process Clause . . . ." Id. at 489. However, as noted by the Government, the Second Circuit reversed the District Court decision in Fell and held that the FDPA' relaxed evidentiary s standard did not render the statute unconstitutional because nothing in the FDPA alters a court' " s inherent obligation to exclude evidence the admission of which would violate a defendant' Constitutional Rights."See United States v. Fell, 360 F.3d 135, 138 (2d Cir.), s cert. denied, 543 U.S. 946 (2004); see also United States v. Lee, 374 F.3d 637, 648 (8th Cir. 2004) (" [w]e agree with the Second Circuit that the FDPA standard does not impair the reliability of the evidence admissible during the penalty phase." cert. denied, 125 S. Ct. ), -10-

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2692 (2005); United States v. Rodriguez, 380 F. Supp. 2d 1041, 1052 (because " courts are still bound by constitutional dimensions . . . the evidentiary standard articulated in the FDPA remains constitutional." As noted by the Second Circuit, " ). [t]he FRE . . . do not set forth the constitutional parameters of admissible evidence, nor does a criminal defendant have a constitutional right to have the FRE in place." Fell, 360 F.3d at 144. In fact, the Federal Rules of Evidence are generally inapplicable in sentencing proceedings before a judge and " afford broader protection than required by the Constitution by excluding evidence that would be constitutionally permissible." Id. I find the Second Circuit' s reasoning in Fell persuasive. I agree that § 3593(c) does not render the FDPA facially unconstitutional because it does not prevent a court from excluding unconstitutional evidence when proffered. See also McVeigh, 944 F. Supp. at 1487 (refusing to find § 3593(c) unconstitutional and noting that the trial court has considerable discretion to control the presentation of the " information"to the jury). 5. Standard of Proof

18 U.S.C. § 3593(e) provides that once the jury has found a defendant eligible to receive the death penalty, the jury shall then " consider whether all the aggravating factor or factors found to exist sufficiently outweigh all the mitigating factor or factors found to exist to justify a sentence of death, or, in the absence of a mitigating factor, whether the aggravating factor or factors alone are sufficient to justify a sentence of death. Based upon this consideration, the jury by unanimous vote . . . shall recommend whether the defendant should be sentenced to death, to life imprisonment without possibility of release or some other lesser sentence." Defendant William Sablan asserts that this provision in -11-

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the FDPA violates the holdings in Jones v. United States, 526 U.S. 227, 243 n. 6 (1999) and Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 2537 (2004), as well as the Eighth Amendment because the jury is not required to find that the aggravating factors outweigh the mitigating factors and that a sentence of death is justified " beyond a reasonable doubt."Jones and its progeny generally hold that any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proven beyond a reasonable doubt. In response, the Government notes that the FDPA does not prohibit the jury from making the finding described in § 3593(e) beyond a reasonable doubt and, therefore, cannot be considered facially unconstitutional on this basis. Alternately, the Government asserts that the reasonable doubt standard does not govern the weighing process in a federal capital case. See United States v. Flores, 63 F.3d 1342, 1376 (5th Cir. 1995) (" the Supreme Court has ` never held that a specific method for balancing mitigating and aggravating factors in a capital sentencing proceeding is constitutionally required.'); " United States v. Chandler, 996 F.2d 1073, 1091-93 (11th Cir. 1993) (" capital sentencing [a] scheme is constitutional even if it does not require that a specific burden of proof govern the jury' weighing process." I note that the cases cited by the Government, Flores and s ). Chandler, were decided prior to the United States Supreme Court' decision in Jones, s supra. The application of Jones and Ring v. Arizona, 536 U.S. 584 (2002) to § 3593 was discussed by the United States District Court for the District of Massachusetts in United States v. Sampson, 245 F. Supp. 2d 327 (D. Mass 2003). In Sampson, the court found that the FDPA " written in a way that survives the evolution of the constitutional law that is -12-

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Ring represents,"but noted in a footnote that the statute is silent as to whether " jury the must be persuaded beyond a reasonable doubt that aggravating factors sufficiently outweigh mitigating factors to justify the imposition of the death penalty." Id. at 335, n. 1. The Court also observed and that in the only Massachusetts case in which a jury has been required to consider the death penalty under the FDPA, the jury was instructed that the government had to prove beyond a reasonable doubt that the death penalty was justified. Id. I agree that the FDPA does not set forth a standard of proof for the jury to apply when determining whether any aggravating factors outweigh any mitigating factors or in determining whether a death sentence is justified. Because the FDPA does not prohibit a Court from requiring that the jury to make these findings " beyond a reasonable doubt," § 3593(d) & (e) are not facially unconstitutional under the Due Process Clause of the Fifth Amendment or the Eighth Amendment. At this stage of the case, I do not need to determine whether Ring requires that I instruct the jury that it must find beyond a reasonable doubt that any aggravating factors found to exist outweigh any mitigating factors found to exist and whether a sentence of death is justified. However, as discussed in section II.A.1., infra, the jury does not weigh the aggravating and mitigating factors to determine whether the death sentence is justified in a particular case until after it has determined that a defendant is " death eligible." Thus, none of the facts " found"by the jury in the weighing phase subjects a defendant to a greater penalty than death because the jury has already determined that the defendant is eligible for death. The weighing of aggravating and mitigating factors assists the jury in -13-

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determining whether a particular defendant, although eligible for the death penalty, should be given a sentence other than death. 6. Mitigating Factors

Defendant William Sablan contends that the FDPA provision providing that " information relevant to a mitigating factor . . . may be excluded if its probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury,"as set forth in 18 U.S.C. § 3593(c), is unconstitutional because the Eighth Amendment requires consideration of " relevant mitigating evidence."See Eddings v. any Oklahoma, 455 U.S. 104, 113-14 (1982) (citing Lockett v. Ohio, 438 U.S. 586 (1978) and holding that under the Eighth and Fourteenth Amendments, " [j]ust as the State may not by statute preclude the sentencer from considering any mitigating factor, neither may the sentencer refuse to consider, as a matter of law, any relevant mitigating evidence." (emphasis in original)). The Government responds that the FDPA permits but does not mandate the exclusion of mitigating evidence. As such, the Government contends that Defendant' facial attack on the FDPA must fail because the statute does not require s exclusion of mitigating evidence in all circumstances. While neither the Defendant nor the Government cites any relevant case law on this point, I agree with the Government that Defendant' facial attack on the FDPA must fail. However, this issue may need to be s revisited if and when the Government objects during the penalty phase to certain mitigation evidence proffered by Defendants on the grounds specified in § 3593(c). 7. Penalty-Phase Scheme

Defendant William Sablan next asserts that there is a reasonable likelihood that the -14-

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jury will be confused as to the concept of weighing aggravating and mitigating circumstances at the penalty phase of the proceeding, rendering the FDPA unconstitutional under the Fifth and Sixth Amendments. Defendant cites several studies set forth in various social science journals and law journals that purport to demonstrate juror confusion regarding these concepts. See Craig Haney, et al., Deciding to Take a Life: Capital Juries, Sentencing Instructions, and the Jurisprudence of Death, Journal of Social Issues, Vol. 50, No. 2, pp. 149-176 (1994); James Luginbuhl & Julie Howe, Discretion in Capital Sentencing Instructions: Guided or Misguided?, 70 Ind. L. J. 1161 (1995); William J. Bowers, The Capital Jury Project: Rational, Design, and Preview of Early Findings, 70 Ind. L. J. 1043 (1995); Craig Haney & Mona Lynch, Comprehending Life and Death Matters: A Preliminary Study of California' Capital Penalty Instructions, Law & Human s Behavior, Vol. 18, No. 4, pp. 411-436 (1994). The studies cited by Defendant involve data gathered from interviews with capital-case jurors in California, North Carolina, Oregon and other states. None of the studies dealt specifically with the FDPA. A jury instruction may be " constitutionally defective if there is a ` reasonable likelihood' that it misled the jury into sentencing the defendant to death." Free v. Peters, 12 F.3d 700, 703 (7th Cir. 1993) (citing Boyde v. California, 494 U.S. 370, 380 (1990)). The FDPA requires the jury, during the penalty phase, to determine whether proven aggravating factors sufficiently outweigh proven mitigating factors to justify a sentence of death. Obviously, at this stage of the proceedings the Court and counsel have not yet formulated the penalty phase jury instructions to be given in this case. Defendant essentially asserts that the FDPA' penalty scheme is so confusing that a jury will never s -15-

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be able to comprehend the concepts of aggravating and mitigating factors, regardless of the instructions given, and will never be able to make a reasoned decision concerning whether to impose death sentence or a life sentence without the possibility of parole. I find no support for this assertion. Similar arguments, based on some of the same studies cited by Defendant in this case, have been rejected by other courts. See United States v. Mikos, No. 02 CR 137-1, 2003 WL 22110948, at **17-19 (N.D. Ill., Sept. 11, 2003) (" [t]here is no justification prior to trial for this court to hold that the sentencing jury will be unable to comprehend the provisions of the FDPA or the instructions provided by the court or counsel." United States v. Regan, 228 F. Supp. 2d 742, 746 (E.D. Va. 2002); United ); States v. Llera Plaza, 179 F. Supp. 2d 444, 450 (E.D. Pa. 2001) (studies cited " not do establish that the concepts of aggravating and mitigating factors as used in the FDPA bear such a degree of intrinsic ` incomprehensibility' to render them incapable of clarification as through adequate jury instructions" I find the reasoning in these cases persuasive and ). adopt it here. 8. Automatic Review

Both Defendants challenge the provisions in the FDPA that provide for appellate review and remand. 18 U.S.C. § 3595(c)(2) provides that if, on appellate review, the court finds that: (A) the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor; (B) the admissible evidence and information adduced does not support the special finding of the existence of the required aggravating factor; or

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(C) the proceedings involved any other legal error requiring reversal of the sentence that was properly preserved for appeal under the rules of criminal procedure, the court " shall remand the case for reconsideration under section 3593 or imposition of a sentence other than death." Id. Defendants complain that these provisions eliminate plain error review and single out defendants sentenced to death under the FDPA for diminished appellate review in violation of the Due Process Clause of the Fifth Amendment. As an initial matter, I question Defendants' standing to raise this argument at this stage of the proceedings, prior to being tried and sentenced to death under the FDPA. See United States v. Cuff, 38 F. Supp. 2d 282, 286 (S.D.N.Y. 1999) (harm to defendant that would be attributable to FDPA' appellate review procedures too speculative for the s court to determine pretrial); United States v. Williams, No. S11 96 CR. 515 (MBM), 2004 WL 2980027, at *15 (S.D.N.Y. Dec, 12, 2004) (challenge to FDPA' appellate review s procedures not ripe for determination pretrial). In any event, I note that the merits of Defendants' arguments were previously rejected in McVeigh. McVeigh, 944 F. Supp. at 1485. In McVeigh, the court rejected the defendant' equal protection challenge to the s scope of appellate review under the FDPA and noted that the scope of review under the FDPA was actually broader than the scope of review provided for other criminal sentences. Id. at 1485. The court further noted that it was " unwilling to speculate as to the approach that the Tenth Circuit Court of Appeals may take with respect to the possible application of the ` plain error' doctrine and the scope of appellate review under the Constitution, in spite of any purported limitation in the statute."Id. Contrary to Defendants' contention in -17-

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this case, nothing in the FDPA " requires an appellate court to affirm a death verdict which was returned as a result of plain error," and I decline Defendants' request to find the FDPA facially unconstitutional on this basis. Defendants also challenge the FDPA' failure to mandate automatic review of a s death sentence under 18 U.S.C. § 3595(a), which provides that a defendant must file a notice of appeal and must do so " within the time specified for the filing of a notice of appeal."Defendants contend that several states provide for review of all death sentences, regardless of the defendant' wishes. While Defendants assert that the FDPA' lack of s s automatic review enhances the risk that factually innocent defendants will be executed, they cite no authority to support an argument that automatic review is constitutionally mandated. Defendants argument was rejected in McVeigh, where the court concluded that " [c]onjecture about a particular defendant' ability to make an informed and rational s decision to appeal a sentence is not a basis for invalidating the Act." McVeigh, 944 F. Supp. at 1484-85. In accord with McVeigh, I find that the FDPA' lack of automatic s review does not render the statute facially unconstitutional. 9. Double Jeopardy

Defendant William Sablan also complains that 18 U.S.C. § 3595(c)(2)(B), which provides for remand for reconsideration when the record does not support a jury' finding s of a aggravating factor, violates the Double Jeopardy Clause of the Fifth Amendment. Generally, the Double Jeopardy Clause prohibits the retrial of a defendant who has been acquitted of the crime charged. Bullington v. Missouri, 451 U.S. 430, 437 (1981). Again, I question whether Defendant has standing to challenge this provision at this stage of the -18-

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proceeding. However, I find that even if the Double Jeopardy Clause is implicated in the event of a " remand for reconsideration"under § 3595(c)(2)(B), the statute is not facially unconstitutional because that section also provides that an appellate court could choose to remand the case for " imposition of a sentence other than death."See United States the v. Cooper, 91 F. Supp. 2d 90, 100 (D.D.C. 2000) (finding that because the FDPA allows the court the alternative of remanding for imposition of a sentence other than death, it does not compel the appellate court to violate double jeopardy). 10. Evidence of Unadjudicated Criminal Acts

Finally, Defendant Rudy Sablan asserts that the Government intends to introduce evidence during the penalty phase concerning certain prior criminal acts not resulting in convictions in violation of the plain language of the FDPA and his rights under the Fifth, Sixth and Eighth Amendments. According to Defendant Rudy Sablan, the Government intends to present evidence of what he describes as " minor offenses" and " incident reports"in order to demonstrate the existence of the nonstatutory aggravating factor of " future dangerousness."Defendant Rudy Sablan contends that under the plain language of the FDPA, only criminal conduct that has resulted in a conviction for one of the crimes listed in § 3592(c) may be introduced in the penalty phase. Defendant Rudy Sablan does not specify which unadjudicated acts the Government will seek to introduce, but notes that he had no right to any Sixth Amendment protections or right of confrontation under Crawford v. Washington, 541 U.S. 36 (2004) in connection with the " institutional" incidents at issue. In section II.E.1.b, infra, of this opinion, I rejected Defendant William Sablan' s -19-

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constitutional challenge to the use of " future dangerousness" as a nonstatutory aggravating factor and also rejected his argument that the FDPA implicitly precludes the use of prior criminal acts to establish future dangerousness. Adopting the same analysis used in that section, I reject Defendant Rudy Sablan' argument that only criminal conduct s that has resulted in a conviction for one of the crimes listed in § 3592(c) may be introduced in the penalty phase. Moreover, I note that the Tenth Circuit has held that " admission of evidence of unadjudicated offenses at a sentencing proceeding does not violate due process." See Boltz v. Mullin, 415 F.3d 1215, 1231 (10th Cir. 2005), petition for cert. filed (Feb. 6, 2006) (No. 05-9129). B. Eighth Amendment & Fifth Amendment Challenges (Per Se)

I next address the issues raised in Defendants' Motions challenging the constitutionality of the FDPA under the Eighth Amendment and the Due Process Clause of the Fifth Amendment as set forth in Defendant William Sablan' Motion to Strike the s Death Penalty from Consideration on the Grounds that the Federal Death Penalty Experience under 18 U.S.C. § 848(e) and § 3591, et seq., Operates in a Fundamentally Arbitrary and Capricious Manner and Therefore Violates the Fifth and Eighth Amendments, filed August 29, 2005; Defendant William Sablan' Motion to Strike the Death Penalty from s Consideration on the Grounds that the Death Penalty Constitutes Cruel and Unusual Punishment in Violation of the Eighth Amendment and is a Per Se Violation of Due Process Under the Fifth Amendment, filed August 29, 2005; and Defendant Rudy Sablan' s Motion to Preclude Consideration of the Death Penalty as Cruel and Unusual Punishment Per Se and As Applied to the Facts of This Case, filed September 2, 2005. -20The

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Government filed Responses to these Motions on October 21, 2005. Defendant Rudy Sablan filed a Reply on November 14, 2005, and Defendant William Sablan filed Replies on November 17, 2005. 1. Arbitrary and Capricious

Defendant William Sablan requests that the Court strike the death penalty from consideration in this case on the grounds that the FDPA operates in a fundamentally arbitrary and capricious manner in violation of the Fifth and Eighth Amendments under Furman v. Georgia, 408 U.S. 238 (1972). In Furman, the Supreme Court held that under the sentencing schemes in place at that time, the death penalty was " cruel and unusual" punishment in violation of the Eighth Amendment because it was imposed infrequently, arbitrarily and discriminatorily. Furman, 408 U.S. at 240. According to Defendant, the FDPA suffers from the same infirmaries that existed at the time Furman was decided. Defendant argues that since the enactment of the FDPA in 1988 (post Furman): (1) the Government has pursued the death penalty in only 18% of potential capital cases, which is slightly less frequent than under the sentencing schemes at issue when Furman was decided; (2) there is no consistency or predictability in the manner in which federal juries have imposed the federal death penalty; and (3) the federal death penalty is sought and imposed on the basis of race of the defendant and the victim and on the basis of geography. Defendant has submitted to me the Declaration of Kevin McNally, Federal Death Penalty Resource Counsel (" McNally Declaration" and " ) The Federal Death Penalty System: A Statistical Survey," which includes data gathered from 1988 through 2000 (DOJ -21-

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Survey). McNally' Declaration summarizes statistical data concerning the frequency with s which the federal death penalty has been sought and imposed since 1988, the race of the defendants prosecuted under the FDPA, and the frequency with which the federal death penalty is authorized and imposed on a regional basis. In addition, at the December 2005 hearing, I heard testimony from Professor Michael L. Radelet, who opined that racial bias, particularly regarding the race of the victim, continues to impact which defendants are selected for prosecution under the FDPA. I first address Defendant' assertion that the relative infrequent use of the FDPA s means that the federal death penalty is impermissibly " arbitrary,"in violation of the Eighth Amendment. According to the McNally Declaration, of the 2,227 capital defendants eligible to receive the death penalty, only 18% of those, or 359 cases, have been selected for prosecution under the FDPA. Of those 359 cases, 47 defendants are currently serving death sentences, and three defendants have been executed. The relative infrequency with which the federal death penalty is imposed does not necessarily equate with arbitrariness. In Furman, the United States Supreme Court held that the death penalty could not be imposed where the sentencing procedures utilized created a substantial risk that it would be inflicted in an arbitrary and capricious manner. Furman, 408 U.S. at 313. Thus, when federal prosecutors decide whether to seek the death penalty in a particular case and when juries decide whether to impose the death penalty in a particular case, their " discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action." Gregg, 428 U.S. at 189. Thus, " [Supreme Court' the s] decision in Furman was based on the exercise of unguided discretion by juries rather than -22-

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on their infrequent imposition of the death penalty" See United States v. Sampson, 275 . F. Supp. 2d 49, 88 (D. Mass. 2003). A sentencing scheme that requires a jury to consider the special circumstances of a particular crime and a particular criminal using " clear and objective standards"will be deemed constitutional. Gregg, 428 at 197. I find that the FDPA, by requiring the weighing of aggravating and mitigating factors, provides clear and objective standards sufficient to guide the discretion of the jury in capital cases and meets the constitutional requirements set forth in Furman, and the fact that the federal death penalty is infrequently sought and imposed does not render it unconstitutional. Sampson, 275 F. Supp. 2d at 88. I also reject Defendant' argument that the FDPA violates the Eighth Amendment s because there " no principled legal basis distinguishing the cases where it is imposed is from those where it is not." Defendant has made clear that, to date, he has not raised a selective-prosecution claim under the Fifth Amendment' Due Process Clause. Rather, s Defendant' argument is based on Federal Death Penalty Resource Counsel Project' s s summaries of federal cases in which the Attorney General withdrew the notice of intent to seek the death penalty, federal capital cases resulting in a death sentence, federal death penalty cases resulting in execution, and federal death penalty cases in which the jury or judge has refused to impose the death penalty. However, these summaries do not provide specific information concerning the characteristic of the defendant or the crime. As the United States Supreme Court stated in McClesky v. Kemp, 481 U.S. 279 (1987), " [t]he Constitution is not offended by inconsistency in results based on the objective circumstances of the crime." Id. at 306, n.28. Again, by requiring juries to consider the -23-

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individual characteristics of the defendant and specific circumstances of the crime, and thereby narrowing the class of individuals subject to the death penalty, the FDPA in effect recognizes that " consistency produced by ignoring individual differences is a false a consistency." Eddings v. Oklahoma, 455 U.S. 104, 112 (1982). Finally, I address Defendant' argument that the FDPA violates due process and s equal protection because it is sought and imposed on the invidious basis of race and the irrational basis of geography. The DOJ Study on which Defendant relies reports that between 1995 and 2000, of the 159 defendants authorized for prosecution under the FDPA, 44 defendants were White (27.7%), 71 were Black (44.7%), 32 were Hispanic (20.1%) and 26 were classified as Other (7.5%). The DOJ Study goes on to report how many defendants in each group were convicted and how many were sentenced to death. The DOJ Study also reports that between 1995 and 2000 the Attorney General sought the death penalty 61 of 167 (37%) eligible death penalty cases involving White victims but sought the death penalty in only 81 of the 383 (21%) eligible death penalty cases involving Black, Hispanic, or Other victims. Finally, the DOJ Study reflects that federal prosecutors in Southern districts (Texas, Virginia, Missouri, and Florida in particular) recommend and obtain more death sentences that federal prosecutors in other districts. From this DOJ Study, Defendant concludes that the federal death penalty is sought and imposed on the basis of race and geography. This conclusion is flawed for the reasons set forth in United States v. Sampson, 275 F. Supp. 2d at 89-91 and United States v. Bin Laden, 126 F. Supp. 2d 256 (S.D.N.Y. 2000), which I find persuasive. Notably, the DOJ Study does not provide information concerning what percentage of individuals committing death eligible offenses -24-

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are minorities or whether individuals " similarly situated . . . have not been capitallyprosecuted in other federal districts."Sampson, 275 F. Supp. 2d at 90; Bin Laden, 126 F. Supp. 2d at 263 (the 2000 DOJ Study failed to show a " constitutionally unacceptable risk that geography plays an inappropriate role in federal capital decision-making" with respect to their prosecution). Therefore, I reject Defendant' assertion that application of the s FDPA on its face offends the concepts of due process and equal protection. 2. Cruel and Unusual Punishment

Both Defendants move to preclude consideration of the death penalty on the grounds that it constitutes cruel and unusual punishment in violation of the Eighth Amendment. Defendant William Sablan asserts that the FDPA constitutes cruel and unusual punishment in violation of the Eighth Amendment and is a per se violation of the Due Process Clause under the Fifth Amendment. Similarly, Defendant Rudy Sablan asserts that the death penalty is unconstitutional per se as a violation of the Eighth Amendment' prohibition against cruel and unusual punishment. s Defendants acknowledge that the United States Supreme Court has found the death penalty " a general proposition"to be constitutional under McClesky v. Kemp, 481 U.S. as 279, 300-03 (1987). Nevertheless, Defendants contend that in determining whether punishments are so disproportionate as to be " cruel and unusual" appropriate standard the is one based upon " evolving standards of decency that mark the progress of a maturing society." Roper v. Simmons, 543 U.S. 551 (2005) (abrogating Stanford v. Kentucky, 492 U.S. 361 (1989) and holding that the Eighth Amendment prohibited execution of individuals under 18 at the time of their crime); see also Atkins v. Virginia, 536 U.S. 304 (2002) -25-

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(abrogating Penry v. Lynaugh, 492 U.S. 302 (1989) and holding that standards of decency have evolved such that execution of the mentally retarded is now cruel and unusual punishment). Defendants assert that imposition of the death penalty has decreased worldwide and point to anecdotal evidence concerning inmates whose convictions and death sentences have been overturned or were pardoned based on new evidence of innocence. While recent advances in technology have enabled some defendants to successfully challenge their convictions and death sentences based on claims of actual innocence, I do not find that society' standards of decency have evolved such that the s death penalty is per se cruel and unusual punishment in violation of the Eighth Amendment. See McClesky, 481 U.S. at 300-03; Gregg, 428 U.S. at 168-87, 177-78, 183 (the death penalty is not per se cruel and unusual punishment in violation of the Eighth Amendment); United States v. Jones, 132 F.3d 232, 242 (5th Cir. 1998), aff' 527 U.S. d, 373 (1999). 3. Due Process

I also reject Defendant William Sablan' assertion that implementation of the FDPA s is a per se violation of the Fifth Amendment because it deprives innocent defendants of an opportunity to prove their innocence in violation of their procedural due process rights, and because it creates an undue risk of executing innocent defendants in violation of their substantive due process rights. Defendant relies on United States v. Quinones, 205 F. Supp. 2d 256, 257, 268 (S.D.N.Y. 2002), in which the United States District Court for the Southern District of New York held that because of the frequency at which innocent persons are convicted of capital crimes, -26-

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implementation of the [FDPA] not only deprives innocent people of a significant opportunity to prove their innocence, and thereby violates procedural due process, but also creates an undue risk of executing innocent people, and thereby violates substantive due process. Id. However, the Second Circuit Court of Appeals reversed the district court in United States v. Quinones, 313 F.3d 49, 53 (2d Cir. 2002), holding that the defendant' Fifth s Amendment due process claim was foreclosed by the United States Supreme Court' s decision in Herrera v. Collins, 506 U.S. 390, 407-08 (1993). In Hererra, the Supreme Court held that the petitioner was not entitled to federal habeas relief where his habeas petition was based solely on a claim of actual innocence, without an accompanying federal constitutional violation. Hererra, 506 U.S. at 397-98, 418-19. According to the Second Circuit, " defendant' argument that execution deprives individuals of the opportunity for s exoneration"is without merit because, under Herrera, " there is no fundamental right to a continued opportunity for exoneration throughout the course of one' natural life." s Quinones, 313 F.3d at 52. I agree with the reasoning of the Second Circuit in Quinones and find that Herrera disposes of Defendant' procedural due process argument. s In addition, I do not find Defendant' substantive due process argument persuasive. s While the dissent in Hererra stated that the petitioner in that case could raise a substantive due process challenge on the grounds that he was actually innocent, this is not the argument advanced by Defendant William Sablan in this case. While execution of an innocent person would surely violate that person' substantive due process rights, here s Defendant argues the FDPA is a per se violation of the Fifth Amendment. In order for Defendant to succeed on his per se challenge, he must show that the FDPA always -27-

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operates to deprive defendants of their substantive due process rights. Defendant has failed to make such a showing. C. Eighth Amendment and Fifth Amendment Challenges (as applied)

Defendant Rudy Sablan asserts several challenges to the FDPA as applied to the facts of this case. I address each in turn. 1. Racial Discrimination

Defendant Rudy Sablan challenges imposition of the death penalty in this case by asserting that it is applied in a racially discriminating manner. Defendant Rudy Sablan relies on the DOJ Survey discussed in section II.B.1, infra. To the extent Defendant Rudy Sablan is challenging the operation of the FDPA generally, this argument is foreclosed for the reasons set forth in section II.B.1 of this Order. To the extent Defendant Rudy Sablan is challenging the operation of the FDPA " applied"to the facts of this case, his claim as must fail because he has not established " existence of purposeful discrimination"that the had a " discriminatory effect"on him. See McCleskey v. Kemp, 481 U.S. 279, 293 (1987) (defendant must prove that one of the decisionmakers in his case acted with discriminatory purpose); United States v. Bin Laden, 126 F. Supp. 2d 256, 260-61 (S.D.N.Y. 2000) (under McClesky, systemic statistics alone an not establish discriminatory intent in a particular prosecution). In addition, it is difficult to see how the information in the DOJ Survey regarding racial and geographic disparities would suggest that the FDPA was discriminatory as applied to Defendant Rudy Sablan in this case because Defendant was born in the Commonwealth of Northern Mariana Islands, the victim in this case was Hispanic, and the crime occurred in the District of Colorado. -28-

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2.

Suppression of Evidence

Defendant Rudy Sablan also asserts that the death penalty is unconstitutional as applied in this case because the Government has suppressed material penalty phase evidence, namely evidence of his intoxication. Specifically, Defendant Rudy Sablan complains that the Government destroyed penalty phase evidence by (1) failing to obtain a blood alcohol level for Rudy Sablan following the incident; (2) allowing the mouthwash bottle to be lost or destroyed; (3) destroying the trash bags used to make and store intoxicants in the cell; and (4) destroying other evidence of Rudy Sablan' intoxication the s night of the incident. Defendant Rudy Sablan asserts that the deprivation of this mitigation evidence is a violation of his rights under the Fifth and Eighth Amendments and constitutes the suppression of exculpatory evidence in violation of the holding in Brady v. Maryland, 373 U.S. 83 (1963). As discussed above, due process and the Eighth Amendment require that the sentencer consider " relevant mitigating evidence" any presented during the penalty phase of a capital case. See Eddings v. Oklahoma, 455 U.S. 104, 113-14 (1982). Underlying this requirement is the " principle that punishment should be directly related to the personal culpability of the criminal defendant."Penry v. Lynaugh, 492 U.S. 302, 319 (1989). I note that Defendant Rudy Sablan previously raised these same complaints concerning the destruction of intoxication evidence in his Motion for Sanctions for Loss and Destruction of Evidence by Government Agents, filed August 17, 2001. I denied that motion by Order dated October 14, 2003, in which I concluded that the evidence allegedly lost or destroyed by the Government (i.e. the mouthwash bottle and plastic bag used to make intoxicants) -29-

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did not amount to a due process violation because the evidence was only potentially useful to the Defendant, there was no bad faith associated with its loss, and comparable evidence of intoxication exists. See Order at 55-59. I also concluded that " record does not the indicate that any behavior of Rudy or William Sablan would have clearly indicated that they were too intoxicated at the time of the offense to form the requisite mens rea." Order at 61-62. Defendant acknowledges the conclusions set forth in the October 14, 2003, Order, but requests that I reconsider my conclusion that comparable evidence of intoxication exists in this case. Specifically, Defendant complains that the ability of an expert to testify on the effects of alcohol on Defendant is related to the availability of evidence of the level of intoxication. I note that the instant motion relates to Defendant' ability to present s certain mitigation evidence during the penalty phase, which is different from the posture under which I first examined the argument. While the BOP did not obtain a blood alcohol level for Defendant Rudy Sablan immediately following the incident, Defendant will not be prevented from presenting evidence of both the fact of his intoxication and the level of his intoxication during the penalty phase. There is evidence available to the defense that Defendant Rudy Sablan was drinking the night of the incident, and there is some evidence concerning Defendant' level of intoxication, including evidence of the blood alcohol level s of the victim and the behavior of Defendant immediately following the incident, as captured on videotape. Thus, I conclude that the Government' failure to preserve certain evidence s of Defendant Rudy Sablan' intoxication does not amount to a due process violation or an s Eighth Amendment violation. -30-

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I also do not find that Defendant Rudy Sablan has established that the Government' failure to preserve certain intoxication evidence amounts to a Brady s violation in this case. In order for Defendant to establish a Brady violation, he must show that " evidence is material either to guilt or punishment." Brady, 373 U.S. at 87 the (" [E]vidence is material [and constitutional error results from its suppression] only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different" see United States v. Bagley, 473 U.S. 667, ); 682 (1985); United States v. Agurs, 427 U.S. 97, 104 (1976); see also Kyles v. Whitley, 514 U.S. 419, 115 S. Ct. 1555, 1565 (1995). Again, I have already determined that the evidence in question was only potentially useful and that comparable evidence of intoxication exists. 3. Mitigation Evidence

Defendant William Sablan moves to dismiss the NOI asserting that 18 U.S.C. § 3593(f) is unconstitutional as applied to him because it precludes the jury from considering certain potentially mitigating evidence. Section 3593(f) provides that prior to jury deliberation during the penalty phase, the court: shall instruct the jury that, in considering whether a sentence of death is justified, it shall not consider the race, color, religious beliefs, national origin, or sex of the defendant or of any victim and that the jury is not to recommend a sentence of death unless it has concluded that it would recommend a sentence of death for the crime in question no matter what the race, color, religious beliefs, national origin, or sex of the defendant or any victim may be. 18 U.S.C. § 3593(f). The statute also requires that the jury certify that:

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consideration of the race, color, religious beliefs, national origin, or sex of the defendant or any victim was not involved in reaching his or her individual decision and that the individual juror would have made the same recommendation regarding a sentence for the crime in question no matter what the race, color, religious beliefs, national origin, or sex of the defendant or any victim may be. 18 U.S.C. § 3593(f). According to Defendant William Sablan, his race, national origin, and religious beliefs are crucial components of his mitigation evidence and the effect of § 3593(f) is to preclude introduction of such evidence. Specifically, Defendant contends that he will seek to introduce: (1) information regarding William' upbringing in Saipan and s how his upbringing shaped his attitude towards individuals of other races; (2) how race and nation origin impact what defense counsel describes as William' " s historic victimization"and his diagnosis of post traumatic stress disorder; (3) the way in which William' belief in the " s Taotaomo' spirits"affected his behavior; (4) and how race of the na victim and William' understanding that the victim belonged to the " s Mexican Mafia" affected his behavior. A death penalty statute violates the Eighth Amendment if it precludes consideration of any relevant mitigating evidence. See Lockett v. Ohio, 438 U.S. 586, 604, 608 (1978). However, I do not read § 3593(f) as precluding the mitigation evidence Defendant William Sablan seeks to introduce. " act of Congress ought not be construed to violate the An Constitution if any other possible construction remains available." NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 500 (1979). While the FDPA explicitly prohibits the jury from considering evidence of a defendant' race, national origin, and religious beliefs, it s also provides that the fact finder shall consider any mitigating factor including " factors in -32-

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the defendant' background, record, or character or any other circumstance of the offense s that mitigate against imposition of the death sentence."18 U.S.C. § 3592(a)(8). Here, the mitigation evidence Defendant William Sablan seeks to introduce consists of information concerning his background and life experiences and how those experiences shape his beliefs and affect his behavior. See United States v. Webster, 162 F.3d 308, 356-57 (5th Cir. 1998) (the FDPA does not prevent a defendant from presenting evidence of " the effects and experiences of race" United States v. Llera Plaza 179 F. Supp. 2d 444, 459); 60 (E.D. Pa. 2001) (accord); United States v. Cooper, 91 F. Supp. 2d 90, 101-02 (D. D.C. 2000) (accord). Defendant can present this mitigation evidence without " using race in and of itself as a proxy"for his set of beliefs and experiences. Webster, 162 F.3d at 357. D. Fifth and Sixth Amendments

I next address Defendant William Sablan' Motion to Dismiss the Second s Superseding Indictment on the Grounds that it is Insufficient under the Fifth and Sixth Amendments to Charge a Capital Offense, filed August 29, 2005. This motion was joined in by Rudy Sablan. The Government filed a response to this motion on October 21, 2005. The premise of the motion is that the FDPA' mens rea eligibility findings stated in s 18 U.S.C. § 3591(2)(A)-(D) must be specific to the individual defendant. Defendant William Sablan argues that the Notice of Special Findings in the Second Superseding Indictment is deficient in that it charges that he acted to cause Joey Estrella' death while s having all four of the relevant statutory mental states. By alleging all four mental states and by failing to specify the conduct in which William Sablan engaged, it is argued that the indictment fails to provide sufficient notice as required by the Fifth and Sixth Amendments. -33-

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Thus, Defendant contends that the Second Superseding Indictment should be dismissed. Turning to my analysis, I first address the role of the gatekeeping factors set out in 18 U.S.C. § 3591(a)(2)(A)-(D). These are not aggravating factors, but codify the command of the Supreme Court " limit the imposition of the death penalty to those murderers who to both undertake felony participation and demonstrate at least reckless indifference to human life." United States v. Webster, 162 F.3d 308, 355 (5th Cir. 1998). " Satisfaction of these elements only begins the death penalty inquiry; it does not and cannot establish death penalty eligibility by itself." Id. In other words, § 3591(a) " does not set forth aggravating factors, but rather serves as a preliminary qualification threshold." Id.; see also United States v. Minerd, 176 F. Supp. 2d 424, 445 (W.D. Pa. 2001). The gatekeeping factors are not weighed. Minerd, 176 F. Supp. 2d at 445. If at least one of the four gatekeeping factors is found by the jury, the jury then moves on to consideration of the aggravating and mitigating factors. Id. Turning to the sufficiency of an indictment under the Fifth and Sixth Amendments, two criteria are looked at in deciding whether an indictment is sufficient: (1) " whether the indictment ` contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet;' and (2) ` case any other in proceedings are taken against him for a similar offense whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.' "Russell v. United States, 369 U.S. 749, 763-64 (1962) (internal quotes and quotations omitted). In other words, " [t]he accused must (1) be informed of the charges against him so that he may present his defense and not be surprised by the evidence offered at trial; and (2) be -34-

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protected against another prosecution for the same offense."United States v. Ailsworth, 138 F.3d 843, 849 (10th Cir. 1998). An indictment is generally sufficient if it states the offense in the words of the statute itself, "as long as those words of themselves fully, directly, and expressly, without ` any uncertainty or ambiguity, set forth all the elements necessary to constitute the offence intended to be punished.' "United States v. Kovach, 208 F.3d 1215, 1218 (10th Cir. 2000) (internal quotes and quotation omitted); see also United States v. Dunn, 841 F.2d 1026, 1029 (10th Cir. 1988). However, " [w]here guilt depends so crucially upon . . . a specific identification of fact . . . an indictment must do more than simply repeat the language of the criminal statute." Russell, 369 U.S. at 764. In that circumstance, while " language of the the statute may be used in the general description of an offense, . . . it must be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offense, coming under the general description, with which he is charged.' Id. at 765. " I conclude that Defendant William Sablan' motion to dismiss should be denied. s First, I note that Defendant has not cited any authority for his argument that listing all four of the mens rea elements, as compared to one or two, makes the indictment insufficient under the Fifth and Sixth Amendments as defined in Russell. Second, I agree with the Government that Defendant has adequate notice of the crime charged, i.e., that he had specific intent to kill Estrella. See United States v. McVeigh, 944 F. Supp. 1478, 1488 (D. Colo. 1996) (" sentence of death may not be imposed for anything other than an a intentional killing as defined in § 3591(a)(2)). Third, the mens rea elements simply -35-

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