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UNITED STATES v. FRANK

May 6, 1998

UNITED STATES OF AMERICA, Plaintiff,
v.
DERIC FRANK, Defendant.



The opinion of the court was delivered by: COTE

DENISE COTE, District Judge:

 This is a capital case. The Grand Jury charges that, in early March 1997, the defendant, Deric Frank ("Frank"), kidnapped his girlfriend, Shaneika Price ("Price"), transported her across state lines, and murdered her by setting fire to a car after he had locked her in the trunk. *fn1" The Government filed a Notice of Intent to Seek the Death Penalty on November 26, 1997, pursuant to 18 U.S.C. § 3593(a), part of the Federal Death Penalty Act of 1994 (the "FDPA" or "the Act"), codified at 18 U.S.C. § 3591 et seq. Frank has pled not guilty. Trial is set for June 1998.

 To provide some context for this Opinion, the Court sets forth the following brief facts about the case. According to the Government, Frank is a drug dealer in Norwalk, Connecticut. He and Price had a volatile relationship spanning many years. At the time of her death, Price had a five year old son whom she claimed was fathered by Frank, and whom Frank had, at times, recognized as his son. Price had obtained an order of protection against Frank just three weeks prior to her death. Based on these and other facts, the Government has a two-fold theory for Price's murder: (1) Frank believed that Price was cooperating with police and was going to tell them where he kept his stash of drugs; and (2) Frank's history of violence towards Price finally escalated into murder.

 Frank is eligible for the death penalty on the kidnapping charge. His is the first death penalty prosecution in the Second Circuit under the FDPA.

 At this juncture, Frank has filed numerous motions addressed to (1) the facial constitutionality of the FDPA; (2) the constitutionality of the Government's use of certain statutory and non-statutory aggravating factors, as applied to him; (3) the propriety of putting off proof of a murder until the penalty phase; (4) the constitutionality of the Violence Against Women Act ("VAWA"), under which Frank is in part charged; (5) the propriety of the Government's decision to seek the death penalty in this case; and (6) the admissibility of certain evidence the Government intends to offer. This Opinion will address the first five categories of Frank's challenges. A separate Opinion will address his motions addressed to the evidence in this case. *fn2"

 I. BACKGROUND

 Since 1994, the federal kidnapping statute has authorized the death penalty for individuals convicted of a kidnapping in which a death results. It provides, in pertinent part:

 
Whoever unlawfully seizes . . . kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person . . . when the person is willfully transported in interstate or foreign commerce . . . if the death of any person results, shall be punished by death or life imprisonment.

 18 U.S.C. § 1201(a) (emphasis added). The kidnapping statute does not, however, set forth procedures for the imposition of a sentence of death. These procedures are set forth in the FDPA, which effectively reinstated the death penalty for numerous crimes as to which it had formerly been authorized, and for the first time authorized the death penalty for many other crimes, such as kidnapping. *fn3" Prior to the enactment of the FDPA, the death penalty could not be imposed even where it previously had been approved because Congress had not established procedures for its imposition that were consistent with the Supreme Court's death penalty jurisprudence. The FDPA filled this gap. See H.R. Rep. No. 103-467 (1994) (purpose of the FDPA is to "establish constitutional procedures for the imposition of the death penalty"). *fn4"

 The FDPA sets forth the following structure for the imposition of a sentence of death. First, if the Government intends to seek the death penalty for a certain defendant, it must notify him in advance of its intention to do so, and the basis for its view that death is authorized. See 18 U.S.C. § 3593(a)(1). The Government also must notify the defendant of all aggravating factors that the Government "proposes to prove as justifying a sentence of death" if the defendant is convicted of the underlying offense. Id. at 3593(a)(2).

 The Act provides separate guilt and penalty phases for a death penalty prosecution. If the defendant is convicted at the guilt phase, the same jury returns to deliberate during the penalty phase. The penalty phase is an adversarial proceeding -- in effect, a second trial -- overseen by the court, and focused solely on the issue of whether the defendant should be put to death. During this phase, the Government must first set forth proof that the defendant had at least one of four enumerated mental states establishing the defendant's intent to kill. Id. at 3591(2). *fn5" The jury must find beyond a reasonable doubt that the defendant had at least one of these four mental states before it may consider a sentence of death.

 If the jury finds that the defendant acted with at least one of the requisite mental states, then it may consider the Government's proof of any aggravating factors -- the same factors of which the Government has previously given the defendant notice -- that the Government believes weigh in favor of a death sentence ("the aggravating factors"). These factors may include factors set forth in the FDPA itself ("the statutory factors"), *fn6" and factors not set forth in the statute ("the non-statutory factors"). Id. at 3592(c). The defendant may put before the jury proof of any mitigating factors he believes weigh against a sentence of death. Id. at 3592(a). To return a death sentence, the jury must find the existence of at least one statutory aggravating factor. Id. at 3593(e). Having found the existence of at least one statutory aggravating factor, the jury then may consider all of the aggravating factors and all of the mitigating factors that have been proven. Id. The Government has the burden of establishing the existence of any aggravating factors beyond a reasonable doubt. The defendant's burden of establishing the existence of any mitigating factor is by a preponderance of the information. Id. at § 3593(c). The jury must weigh all of the aggravating factors it has found to exist against all of the mitigating factors that have been found to exist, and determine by unanimous vote whether the defendant should be sentenced to death or some lesser sentence. Id. at § 3593(e). *fn7"

 The Act thus provides at least three hurdles that the Government must clear before it may ask a jury to impose a sentence of death. First, the Government must prove beyond a reasonable doubt that the defendant is guilty of a crime for which the death penalty is authorized. Second, it must prove beyond a reasonable doubt that the defendant acted with one of the four mental states set forth in the statute. Third, it must prove beyond a reasonable doubt the existence of at least one statutory aggravating factor. If the Government does not carry its burden as to any of these hurdles, the jury may not consider a sentence of death. If the Government does carry its burden as to all three hurdles, the jury may, but need not, impose a sentence of death.

 Here, the Government has notified the defendant that it intends to seek the death penalty for the kidnapping count. The Government indicated in its Notice of Intent to Seek the Death Penalty that it believes that the defendant possessed all four of the mental states set forth in the FDPA, *fn8" and that the circumstances of the crime suggest the existence of three statutory aggravating factors: (1) the death occurred during the course of another crime (kidnapping); (2) the offense was committed in an especially heinous, cruel, or depraved manner; and (3) the defendant committed the offense after substantial planning and premeditation to cause the death of a person. *fn9" Finally, the Government has identified four non-statutory aggravating factors that it contends weigh in favor of a death sentence: *fn10" (1) the victim was killed in an effort to obstruct justice; (2) the defendant presents a continuing danger to society; (3) the defendant caused severe and irreparable harm to the family of the victim; and (4) the defendant kidnapped and caused the death of his victim in violation of a judicial order of protection. *fn11"

 The Court will address at the outset Frank's three challenges to the FDPA, first with respect to the Act's statutory framework; second concerning the particular statutory and non-statutory aggravating factors that have been noticed in this case; and third regarding the necessity of proving murder only at the penalty phase of trial. As a fourth issue, the Court will address Frank's challenges to the Violence Against Women Act. Fifth and last, the Court will address the propriety of the Government's decision to seek the death penalty in the first instance.

 II. DISCUSSION

 A. The Facial Constitutionality of the FDPA

 Frank makes six challenges to the facial constitutionality of the FDPA, the most significant (and first three) of which attack the use of non-statutory aggravating factors at the penalty phase. *fn12" First, Frank claims that the Act's incorporation of non-statutory factors violates principles of the Supreme Court's death penalty jurisprudence because the use of non-statutory factors encourages wholly arbitrary and capricious death sentences. Second, he claims that the statute's authorization of the United States Attorney to define non-statutory aggravating factors constitutes an impermissible delegation of power in violation of the separation of powers doctrine. Third, and related to the second claim, Frank argues that the use of non-statutory aggravating factors violates the Ex Post Facto Clause of the Constitution. Frank's additional challenges to the facial validity of the FDPA are, fourth, that the evidentiary standard prescribed for the penalty phase of the trial is insufficiently rigorous; fifth, that the Act provides inadequate appellate and proportionality review; and sixth, that the death penalty is per se unconstitutional under the Eighth Amendment.

 The Court notes at the outset that all of the arguments advanced by Frank for the FDPA's facial unconstitutionality have been rejected by other courts confronted with death penalty prosecutions under the Act. A growing body of case law, derived largely from district court opinions and a few circuit opinions, has developed considering various challenges to the FDPA and its precursor, the Anti-Drug Abuse Act of 1988. Without exception, these opinions have upheld both Acts' constitutionality. See, e.g., United States v. Jones, 132 F.3d 232 (5th Cir. 1998) (considering similar challenges to the FDPA); United States v. Tipton, 90 F.3d 861 (4th Cir. 1996) (considering similar challenges to the Anti-Drug Abuse Act), cert. denied, 117 S. Ct. 2414 (1997); United States v. McCullah, 76 F.3d 1087 (10th Cir. 1996) (same), cert. denied, 137 L. Ed. 2d 825, 117 S. Ct. 1699 (1997); United States v. Kaczynski, 96 Civ. 259 (GEB), 1997 WL 716487 (E.D. Cal. Nov. 7, 1997) (considering challenges to the FDPA); United States v. Nguyen, 928 F. Supp. 1525 (D. Kan. 1996) (same); United States v. Davis, 912 F. Supp. 938 (E.D. La. 1996) (same), aff'd, 132 F.3d 1454 (5th Cir. 1997), cert. denied, 140 L. Ed. 2d 492, 118 S. Ct. 1331 (1998); United States v. McVeigh, 944 F. Supp. 1478 (D. Col. 1996) (same); United States v. Pitera, 795 F. Supp. 546 (E.D.N.Y. 1992) (considering challenges to Anti-Drug Abuse Act). This Court has considered on its own the merits of Frank's arguments, but nevertheless concludes that it agrees with the other courts that have considered these issues. In sum, the Court does not find the FDPA constitutionally infirm for any of the reasons advanced by Frank.

 1. The FDPA's Incorporation of Non-Statutory Aggravating Factors

 First, the Court rejects the argument that the use of non-statutory aggravating factors will result in the arbitrary and capricious imposition of the death penalty. In order to evaluate this argument and the others that follow, a brief review of the Supreme Court's death penalty jurisprudence is necessary.

 a) Furman and Gregg

 The landmark decisions in the Supreme Court's death penalty jurisprudence are Furman v. Georgia, 408 U.S. 238, 33 L. Ed. 2d 346, 92 S. Ct. 2726 (1972), and Gregg v. Georgia, 428 U.S. 153, 49 L. Ed. 2d 859, 96 S. Ct. 2909 (1976). Although the Court has often revisited the various aspects of the constitutional imposition of the death penalty,

 
since 1976, the Supreme Court's pronouncements on capital punishment have been essentially backward-looking; majority and dissenting Justices alike have cast their positions in terms of what Furman and Gregg command and permit.

 Carol and Jordan Steiker, Sober Second Thoughts: Reflections of Two Decades of Constitutional Regulation of Capital Punishment, 109 Harv. L. Rev. 355, 364 (1995).

 In Furman, the Court struck down Georgia's capital sentencing scheme under the Eighth Amendment. Under the Georgia scheme, capital punishment was authorized for any defendant convicted of murder. Juries were given no guidance as to which sub-group of murderers, among that large group of defendants eligible for the death penalty, should be sentenced to death.

 The majority opinion of the Furman Court is a one-paragraph per curiam opinion invalidating the imposition of the death penalty against the three petitioners in the case. Each of the five Justices in the majority appended a concurring opinion, however, explaining their own reasons for the decision. Only two Justices, Brennan and Marshall, wrote that the death penalty was per se unconstitutional as cruel and unusual punishment. Justice Stewart's opinion best expressed the theme that would become the core of the Court's jurisprudence in the years to follow. Emphasizing the infrequency and arbitrariness of the imposition of the death penalty in Georgia, Justice Stewart wrote:

 
These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual. For, of all the people [eligible for the death penalty under Georgia's statute], many just as reprehensible as these, the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed. . . . If any basis can be discerned for the selection of these few to be sentenced to die, it is the constitutionally impermissible basis of race. . . . [Putting aside the issue of race,] I simply conclude that the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed.

 Furman, 408 U.S. at 309-10. Thus, according to Justice Stewart, the death penalty was not per se unconstitutional, but a statutory scheme that allowed juries to impose the death penalty "wantonly" and "freakishly," was inconsistent with the Eighth Amendment. To meet constitutional requirements, a statute would at the very least have to give the jury a principled basis for determining which murderers should live and which should die, so that a sentence of death would not occur with the randomness of a stroke of lightning.

 In his separate concurrence, Justice White also focused on the lack of guidance given to juries under the Georgia scheme, although he described the problem as one of over-delegation of sentencing authority to the jury. Id. at 314. Justice White noted, "legislative 'policy' is thus necessarily defined not by what is legislatively authorized but by what juries and judges do in exercising the discretion so regularly conferred upon them." Id.

 Georgia revised its capital sentencing scheme in the aftermath of Furman. The new scheme, which the Court reviewed in Gregg v. Georgia, no longer gave the jury unbridled discretion to impose death on any defendant convicted of murder. Although the state murder statute continued to authorize the death penalty for anyone convicted of murder, the revised capital sentencing scheme established ten statutory aggravating circumstances, at least one of which had to be established beyond a reasonable doubt before a jury could consider imposing a death sentence. In addition, the scheme authorized the jury to consider "any other appropriate aggravating or mitigating circumstances." Gregg, 428 U.S. at 197. Finally, the revised scheme provided for automatic appellate and proportionality review by the Georgia Supreme Court of any sentence of death. Id. at 198. Proportionality review is an inquiry into "whether the sentence is disproportionate compared to those sentences imposed in similar cases." Id.

 The Gregg Court upheld the revised scheme. Justice Stewart, writing for the Court, stated that the revised statute addressed the concerns raised in Furman ; no longer would sentences of death be imposed "wantonly" or "freakishly." Gregg, 428 U.S. at 207. The Court noted with respect to the effect of the new procedures:

 
No longer can a Georgia jury do as Furman's did: reach a finding of the defendant's guilt and then, without guidance or direction, decide whether he should live or die. Instead, the jury's attention is directed to the specific circumstances of the crime : Was it committed in the course of another capital felony? Was it committed for money? Was it committed upon a peace officer or judicial officer? Was it committed in a particularly heinous way or in a manner that endangered the lives of many persons? In addition, the jury's attention is focused on the characteristics of the person who committed the crime: Does he have a record of prior convictions for capital offenses? Are there any special facts about this defendant that mitigate against imposing capital punishment (e.g., his youth, the extent of his cooperation with the police, his emotional state at the time of the crime). As a result, while some jury discretion still exists, the discretion to be exercised is controlled by clear and objective standards so as to produce non-discriminatory applications.

 Id. at 197-98 (internal quotation omitted) (emphasis added). In short, because the new scheme provided the jury with clear and objective standards to guide their consideration of (1) the circumstances of the crime, and (2) the characteristics of the defendant, the scheme passed constitutional muster. Id. at 198. The Gregg Court also noted favorably the mandatory appellate and proportionality review provisions that were part of the new scheme, calling them "additional" or "further" safeguards against "arbitrariness and caprice." Id.

 During the same term in which it decided Gregg, the Supreme Court handed down four additional decisions elucidating its emerging view of the constitutional regulation of capital punishment. In Roberts v. Louisiana, 428 U.S. 325, 336, 49 L. Ed. 2d 974, 96 S. Ct. 3001 (1976), and Woodson v. North Carolina, 428 U.S. 280, 305, 49 L. Ed. 2d 944, 96 S. Ct. 2978 (1976), the Court struck down Louisiana and Texas statutes providing for the mandatory imposition of the death penalty in certain circumstances. Sounding what would emerge as the strongest counter-theme to Gregg's "clear and objective standards" theme, the Court noted in Woodson that

 
in capital cases the fundamental respect for humanity underlying the Eighth Amendment requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.

 428 U.S. at 304 (internal citation omitted). Woodson established that, no matter how clearly and objectively a capital sentencing scheme guided the jury's discretion as to aggravating factors, the scheme would not pass constitutional muster if it did not in addition permit the jury to consider mitigating evidence as a reason to impose a sentence less than death.

 In Jurek v. Texas, 428 U.S. 262, 276-77, 49 L. Ed. 2d 929, 96 S. Ct. 2950 (1976), and Proffitt v. Florida, 428 U.S. 242, 259-60, 49 L. Ed. 2d 913, 96 S. Ct. 2960 (1976), the Court upheld two additional state capital sentencing schemes which, like Georgia's, adequately guided the jury's discretion while allowing the jury to consider any mitigating circumstances. In these decisions, as in all five of the 1976 opinions, the Court emphasized the twin, competing themes of its emerging jurisprudence. On the one hand, the jury must be given clear and objective standards, regarding the circumstances of the crime and of the defendant, to distinguish between those defendants who should live and those who should die. On the other hand, the jury must be allowed to consider all mitigating evidence regarding the defendant, so that its decision is based on "all possible relevant information about the individual defendant whose fate it must determine." Jurek, 428 U.S. at 276. See Torres v. United States, 1998 U.S. App. LEXIS 5806, F.3d , 1998 WL 139069, at *13 (2d Cir. March 25, 1998).

 b) Since Furman and Gregg

 The Court's death penalty jurisprudence continues to speak in terms of the themes sounded in Furman and Gregg. *fn13" More recent cases, echoing Gregg, hold that a capital sentencing scheme 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." Zant v. Stephens, 462 U.S. 862, 877, 77 L. Ed. 2d 235, 103 S. Ct. 2733 (1982). See also McCleskey v. Kemp, 481 U.S. 279, 303, 95 L. Ed. 2d 262, 107 S. Ct. 1756 (1986) ("a State must 'narrow the class of murderers subject to capital punishment'") (quoting Gregg, 428 U.S. at 196).

 The Supreme Court has clarified that the required narrowing function may be accomplished in either of two ways:

 
The legislature may itself narrow the definition of capital offenses . . . so that the jury finding of guilt responds to this concern, or the legislature may more broadly define capital offenses and provide for narrowing by jury findings of aggravating circumstances at the penalty phase.

 Lowenfield v. Phelps, 484 U.S. 231, 246, 98 L. Ed. 2d 568, 108 S. Ct. 546 (1987). Thus, the aggravating circumstance that distinguishes the crime from all other murders and makes it worthy of the death penalty "may be contained in the definition of the crime or in a separate sentencing factor (or in both)." Tuilaepa v. California, 512 U.S. 967, 972, 129 L. Ed. 2d 750, 114 S. Ct. 2630 (1994). The narrowing doctrine in effect "force[s] communities, speaking through [their] legislatures, to designate in advance those offenders most deserving of death." Steiker & Steiker, supra, at 372. Instead of leaving it to juries to determine which offenses are deserving of death, as had Georgia prior to Furman, states now must determine in advance -- either through the definition of the crime itself or through the use of aggravating circumstances -- which crimes are most deserving of capital punishment.

 The Court has further clarified the requirements of any aggravating factor upon which a sentence of death is predicated:

 
First, the circumstance may not apply to every defendant convicted of a murder; it must apply only to a subclass of defendants convicted of murder. . . . Second, the aggravating circumstance may not be unconstitutionally vague.

 Tuilaepa, 512 U.S. at 972 (internal quotation omitted). In short, the "distinction" offered by an aggravating factor must be meaningful. "If the sentencer fairly could conclude that an aggravating circumstance applies to every defendant eligible for the death penalty, the [factor] is constitutionally infirm." Arave v. Creech, 507 U.S. 463, 474, 123 L. Ed. 2d 188, 113 S. Ct. 1534 (1993) (emphasis in original). Finally, to satisfy vagueness review, the aggravating factor must "have some common-sense core of meaning . . . that criminal juries [are] capable of understanding." Tuilaepa, 512 U.S. at 975 (ellipsis in original) (internal citation omitted).

 c) The FDPA

 Frank argues that the FDPA does not comport with constitutional requirements. First, he claims that the Act will result in the "wanton" and "freakish" imposition of the death penalty, as barred by Furman, because the non-statutory factors identified by the Government will be different in every case. Frank argues that allowing the government to introduce non-statutory factors unique to each case

 
injects into capital proceedings precisely the uncertainty and disparate results that Furman found to violate the Eighth Amendment. The only guidance that the statute gives is really no guidance at all: that the prosecutor may give notice of, and the jury may consider, "any other aggravating factor." Beyond the requirement that a factor be "other" and be "aggravating," the statute provides no guidance to prosecutors in determining how to select or define non-statutory aggravating factors in a particular case. Under such a scheme, the factors on which the sentencer must base its decision are not limited to "clear and objective" criteria, Gregg, 428 U.S. at 198, 202, but are restricted only by the imagination of the prosecutor. Particularly in conjunction with the evidentiary free-for-all created by the scope of "information" admissible at the penalty phase . . ., the statute's standard-less procedure creates an impermissible risk that the death penalty will be imposed arbitrarily and capriciously, in violation of the Eighth Amendment.

 The Court will address separately below that portion of Frank's argument concerning the evidentiary standard provided for the penalty phase. The Court therefore confines its analysis in this section to the Government's selection and use of non-statutory aggravating factors.

 Frank does not argue that, when non-statutory aggravating factors are put aside, the FDPA fails adequately to narrow the class of defendants eligible for the death penalty. Instead, he argues that the fact that the Government may introduce non-statutory factors undoes all of the narrowing work otherwise accomplished by the statute. According to Frank, the introduction of non-statutory factors injects impermissible arbitrariness into the jury's decision because the Government is utterly unrestrained in its ability to identify non-statutory factors particular to the defendant.

 This argument is unavailing for two reasons. First, the Government is restrained in its ability to choose aggravating factors by the Supreme Court's death penalty jurisprudence and the trial court's review of the factors. Second, the argument ignores the other dominant theme (discussed above) of the Supreme Court's death penalty jurisprudence -- of no less importance than its "narrowing" holdings -- that the decision to impose death must be particularized to an individual defendant. See, e.g., Jurek, 428 U.S. at 274; Gregg, 428 U.S. at 204. Because the decision to impose death must be individualized, the jury is required to consider the circumstances of the crime as well as the record and character of the defendant. Tuilaepa, 512 U.S. at 972.

 Although it is true that the FDPA provides that the Government may introduce any "other" aggravating factor for which it has given notice, the prosecutor does not enjoy unbridled discretion to choose aggravating factors. As the Fifth Circuit determined when it considered this issue,

 
the death penalty jurisprudence devised by the Supreme Court guides the prosecution in formulating nonstatutory aggravating factors. For example, due process requires that information submitted as aggravating genuinely narrow the class of persons eligible for the death penalty.

 Jones, 132 F.3d at 240 (citing Zant, 462 U.S. at 877). See also Zant, 462 U.S. at 885 (listing ways in which an aggravating circumstance may be invalid). The non-statutory aggravating factors identified by the Government also may not be unfairly duplicative of one another, see Jones, 132 F.3d at 250-51, or unconstitutionally vague, Tuilaepa, 512 U.S. at 972.

 In addition, the FDPA explicitly provides that a jury may not consider information regarding the defendant for the kind of impermissible purposes that were at the heart of the Court's concerns in Furman. The FDPA explicitly requires the court to instruct the jury that it may not take into account the defendant's race, color, national origin, religious beliefs, or sex in considering whether a sentence of death is justified. 18 U.S.C. § 3593(f). Indeed, to ensure that such characteristics do not play a role in the process, the jury is required to return to the court a certificate, signed by each juror, stating that these factors played no part in their decision. Id. It goes without saying, therefore, that the Government may not ask the jury to consider factors such as the defendant's race in reaching a decision as to whether the defendant should be put to death.

 The FDPA ensures that the Government will not violate these constitutional and statutory rules in any particular prosecution by requiring that a defendant have notice of the factors on which the Government intends to rely, and by providing a gate-keeping role for the district court. Thus, the Government may not employ simply any non-statutory factor of its choice. Instead, having chosen non-statutory factors it believes appropriate to the case, the Government must submit such factors to the defendant and to the court. If the court determines that any of the factors are inappropriate or run afoul of the Supreme Court's death penalty jurisprudence, the factor will be excluded. See 18 U.S.C. § 3593(c). See also Jones, 132 F.3d at 250-51 (excluding non-statutory factors as duplicative); Nguyen, 928 F. Supp. at 1543-44; Davis, 912 F. Supp. at 945-47 (excluding non-statutory factors as duplicative or otherwise improper).

 Given this Court's finding that the Government's discretion to identify non-statutory aggravating factors is limited by constitutional norms and the district court's review, the Court now addresses why the use of such non-statutory factors -- far from injecting arbitrariness into the process -- is to be encouraged. See Woodson, 428 U.S. at 304. The preference for allowing non-statutory factors in addition to all available mitigating evidence comes from the Supreme Court's view that "what is essential is that the jury have before it all possible relevant information about the individual defendant whose fate it must determine." Jurek, 428 U.S. at 276 (1975). The FDPA's use of non-statutory aggravating factors borrows a structure employed in the very first death penalty statute upheld by the Court, which allowed the jury to consider "any other appropriate aggravating factor" after it had found one of the statutory aggravating factors to exist. Gregg, 428 U.S. at 197. Indeed, once the jury's discretion has been sufficiently guided in determining whether the defendant is eligible for the death penalty, the jury may be given "unbridled discretion in determining whether the death penalty should be imposed after it has found that the defendant is a member of the class made eligible for that penalty." Tuilaepa, 512 U.S. at 979-80 (quoting Zant, 462 U.S. at 875) (emphasis added).

 In light of the foregoing, Frank's motion to preclude imposition of the death penalty on the ground that the use of non-statutory factors injects impermissible ...


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