The opinion of the court was delivered by: Surrick, J.
Presently before the Court is Defendant Kidada Savage's Motion to Preclude the Death Penalty. (ECF No. 336.) For the following reasons, the Motion will be denied.
On June 22, 2011, a federal grand jury in Philadelphia returned a 17-count Superseding Indictment charging Defendant with conspiracy to participate in a racketeering enterprise (Count 1), six counts of murder in aid of racketeering (Counts 10-15), which are punishable by death, retaliating against a witness (Count 16), and use of fire to commit a felony (Count 17). (Second Superseding Indictment, ECF No. 229.) All of the charges against Defendant relate to a single criminal episode involving the murder by arson of a family of one of the key witnesses in the 2005 drug trial of Defendant's brother, Kaboni Savage. (Id.) Steven Northington, Robert Merritt, and Kaboni Savage are also charged in the Superseding Indictment.*fn1 (Id.) The Indictment contains a list of "special findings" related to all of the Defendants, making all four eligible for the death penalty. (Id.)
Defendant was arrested on June 22, 2011. (Def.'s Mot. 6, ECF No. 336.) On June 27, 2011, an attorney was appointed to represent Defendant. On July 28, 2011, a second attorney "learned in the law applicable to capital cases" was appointed pursuant to 18 U.S.C. § 3005. (ECF No. 268.) On August 5, 2011, an Order was entered directing the U.S. Attorney for the Eastern District of Pennsylvania and counsel for Defendant to meet within 60 days to discuss the U.S. Attorney's request for authorization from the Attorney General to seek the death penalty against Defendant. (ECF No. 272.) The Order also provided that by January 2012, the Government was required to notify the Court and Defendant of its intention to seek the death penalty or to not seek the death penalty. (Id.)
The Government and counsel for Defendant met on October 24, 2011. (Gov't's Resp. 2, ECF No. 341.) At that meeting, Counsel presented substantive arguments in support of mitigation, but maintained that they had not had sufficient time to prepare for the meeting. (Id.) On November 1, 2011, the Government invited counsel for Defendant to meet with the U.S. Attorney's Office and the Capital Crimes Review Committee ("CCRC") located at the Department of Justice ("DOJ") in Washington D.C. (Id.)*fn2 After resolving scheduling conflicts, the meeting took place on December 5, 2011. (Id. at 3.) On December 14, 2011, we granted the Government's unopposed motion to extend the deadline to file its notice of intent. (ECF No. 343.) The Government has until February 17, 2012 to notify this Court and Defendant of its intention to seek the death penalty or to not seek the death penalty. (Id.) At the December 5th meeting, Counsel continued to complain that they lacked sufficient time to present a meaningful mitigation defense. Nevertheless, Counsel made substantive arguments in an attempt to convince the Attorney General not to seek the death penalty. (Gov't's Resp. 3.)
Trial for all Defendants is scheduled to begin on September 10, 2012. (Order, ECF No. 239.)
Defendant filed the instant Motion on November 18, 2011. Defendant filed a supplement to the Motion on November 29, 2011. (ECF No. 338.) The purpose of the supplement was to update the declaration of Kevin McNally, Director of the Federal Death Penalty Resource Counsel Project, which was filed as an exhibit to the Motion. (Id.) Mr. McNally's declaration states that based on his research, the average time between indictment and the defense presentation to the CCRC in federal capital cases is 12.2 months. (Id. at Ex. A.) The Government filed a response to Defendant's Motion on December 8, 2011. (Gov't's Resp.) Defendant filed a reply to the Government's response on December 15, 2011. (ECF No. 344.)
Defendant advances two arguments in support of her Motion. Defendant argues that Counsel did not have sufficient time to prepare their mitigation presentation to the U.S. Attorney's Office on October 14th, and to the CCRC on December 5th. Defendant also contends that with the trial currently scheduled to take place in September 2012, Counsel will not have adequate time to prepare for the presentation of mitigation evidence at trial. The Government responds that Defendant has no constitutional or substantive rights to present evidence in support of mitigation to the U.S. Attorney's Office or to the DOJ. The Government also argues that based on the schedule currently set and the facts surrounding Defendant's charges, her counsel will have more than enough time to prepare for the penalty phase of trial.
As a threshold matter, the Government has not yet filed a notice of intent pursuant to 18 U.S.C. § 3593.*fn3 Therefore, Defendant's challenge to the imposition of the death penalty is premature at this time. See Wyatt v. Gov't of the V.I., 385 F.3d 801, 806 (3d Cir. 2004) ("A dispute is not ripe for judicial determination if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all."). Assuming, arguendo, that Defendant's argument was ripe for review, for a number of reasons, it must be rejected.
Defendant is essentially requesting that we interfere with the discretionary authority granted to the Government in making the decision as to whether to seek the death penalty. The Federal Death Penalty Act, 18 U.S.C. § 3591, et seq., explicitly vests discretion with the government. The Act states that if "the attorney for the government believes that the circumstances of the offense are such that a sentence of death is justified under this chapter, the attorney shall . . . file . . . a notice [of intent]." 18 U.S.C. § 3593(a); see also McCleskey v. Kemp, 481 U.S. 279, 296-97 (1987) (discussing a prosecutor's wide discretion in deciding whether to seek the death penalty); United States v. Robinson, 45 F.3d 1423, 1438 (10th Cir. 1995) ("[C]oncerns relating to the doctrine of separation of powers counsel hesitancy before second-guessing prosecutorial choices."); United States v. Shakir, 113 F. Supp. 2d 1182, 1191 (M.D. Tenn. 2000) (noting that "the Court has no authority to interfere with internal DOJ policy governing the prosecutorial decision of whether to seek the death penalty.").
The Government's discretion is not unfettered, and is subject to constitutional constraints. McCleskey, 481 U.S. at 297. However, a determination that the Government's discretion has been abused can only be made upon a showing of "exceptionally clear proof." Id. Defendant has made no showing that the Government has abused its discretion here. The Government is simply trying to comply with the Court's deadline for the filing of its notice of intent.
Defendant's argument that precluding the death penalty is justified in light of Counsel's belief that inadequate time was given to prepare for their presentation to the U.S. Attorney's Office and to the DOJ is meritless. Defendant argues that the process by which the DOJ certifies a case for the death penalty "is a critical stage at which Ms. Savage's Sixth Amendment rights  attach and should, at a minimum, receive adequate consideration." (Def.'s Mot. 2.) Defendant is referring to what is commonly known as the "death penalty protocol." The death penalty protocol, found in the U.S. Attorney's Manual ...