The opinion of the court was delivered by: R. Barclay Surrick, J.
Presently before the Court is Defendant Kaboni Savage's Motion to Strike the Revised Notice of Intent to Seek the Death Penalty (ECF No. 373), Defendant Robert Merritt's Motion to Strike or Modify the Notice of Intent to Seek the Death Penalty (ECF No. 368), and Defendant Steven Northington's Motion to Strike Aggravating Factors (ECF No. 364). For the following reasons, Defendants' Motions will be granted in part and denied in part.
On May 9, 2012, a federal grand jury returned a seventeen-count Fourth Superseding Indictment (the "Indictment") charging Defendants Kaboni Savage and Robert Merritt with: conspiracy to participate in the affairs of a racketeering ("RICO") enterprise, in violation of 18 U.S.C. § 1962(d) (Count 1); conspiracy to commit murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(5) (Count 9); six counts of murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(1) (Counts 10-15); retaliating against a witness, in violation of 18 U.S.C. § 1513(a) (Count 16); and using fire to commit a felony, in violation of 18 U.S.C. § 844(h)(1) (Count 17). (Indictment, ECF No. 480.)*fn1 In addition to these counts, Kaboni Savage was also charged with six additional counts of murder in aid of racketeering (Counts 2-7). (Id.) Defendant Steven Northington was charged with RICO Conspiracy and two counts of murder in aid of racketeering (Counts 5, 7.) Defendants were charged along with Kaboni Savage's sister, Kidada Savage. Defendant Lamont Lewis was also charged in the First Superseding Indictment. The charges against Lewis were disposed of by guilty plea on April 21, 2011. On March 14, 2011, the Government filed a notice of intent to seek the death penalty against Savage (ECF No. 196), Merritt (Merritt NOI, ECF No. 197) and Northington (Northington NOI, ECF No. 198). On February 15, 2012, the Government filed a Revised Notice of Intent with respect to Kaboni Savage. (Savage Rev. NOI, ECF No. 361.) The Government does not seek the death penalty against Kidada Savage.
The charges against Defendants relate to a long-standing RICO conspiracy involving drug trafficking, murder, and witness intimidation. The Government alleges that all four Defendants were members of a regional criminal organization, which was based in North Philadelphia and was known as the Kaboni Savage Organization ("KSO"). From late 1997 through April 2010, members of the KSO conspired and agreed to distribute large quantities of controlled substances, to commit murder and arson, and to tamper with, and retaliate against, witnesses who had testified, or were about to testify, against the racketeering enterprise or its members. It is alleged that the KSO was committed to maintaining, preserving, protecting and expanding its power, territory, and profits by tampering with and retaliating against Government witnesses and their families through the use of threats, intimidation, violence, and murder.
A. Charges Against Kaboni Savage
The Indictment alleges that, in support of the KSO, Savage murdered Kenneth Lassiter on March 19, 1998 in Philadelphia. (Indictment 38-39.) Over two years later, on September 6, 2000, Savage allegedly directed the murder of Mansur Abdullah "for the purpose of maintaining and increasing position in the enterprise engaged in racketeering activity." (Id. at 40.) It is further alleged that, on September 13, 2001, Savage directed Lamont Lewis to murder Carlton Brown in retaliation for Brown's murder of another individual. (Id. at 12, 41.) The Indictment further alleges that on February 26, 2003, Savage and Northington murdered Barry Parker in order to eliminate Parker as a drug competitor. (Id. at 34, 42.) In addition, on March 14, 2003, Savage allegedly ordered co-conspirator Kareem Bluntly to murder Tyrone Toliver and steal from him. (Id. at 16, 43.) Over a year later, on March 1, 2004, Northington, at the direction of Savage, allegedly murdered Tybius Flowers in order to prevent Flowers's attendance and testimony at Savage's trial for the murder of Kenneth Lassiter in the Court of Common Pleas. (Id. at 44-45.) Finally, in Counts 10 - 16, the Government alleges that Savage, together with Merritt and Kidada Savage, murdered by way of arson, six members of the family of Eugene Coleman, a cooperating witness who was to testify against Savage at the 2005 drug conspiracy trial before the Honorable Mary A. McLaughlin. (Id. at 47-53.) The victims of this firebombing include Marcella Coleman (age 54), Tameka Nash (age 33), Sean Anthony Rodriguez (age 15), Tajh Porchea (age 12), Khadija Nash (age 10), and Damir Jenkins (age 15 months). (Id. at 22.)*fn2
In its Revised Notice of Intent with respect to Savage, the Government states that it will seek a sentence of death on the following offenses: (1) murder in aid of racketeering, and aiding and abetting, which resulted in the deaths of Kenneth Lassiter (Count 2), Mansur Abdullah (Count 3), Carlton Brown (Count 4), Barry Parker (Count 5), Tyrone Tolliver (Count 6), Tybius Flowers (Count 7), Marcella Coleman (Count 10), Tameka Nash (Count 11), Sean Anthony Rodriguez (Count 12), Tajh Porchea (Count 13), Khadija Nash (Count 14), and Damir Jenkins (Count 15); and (2) retaliating against a witness, victim or informant, which resulted in the deaths of the Coleman family (Count 16). (Savage Rev. NOI 1-2.)*fn3 Incorporating the Indictment's Notice of Special Findings listed in Count 1, the Government seeks to prove the following statutory aggravating factors enumerated 18 U.S.C. § 3592(c) against Savage: (1) previous conviction for a serious federal drug offense; (2) creation of a grave risk of death to additional persons; (3) substantial planning and premeditation; (4) commission of the offense for pecuniary gain; (5) procurement of the offense by payment; (6) commission of the offense in an especially heinous, cruel, or depraved manner that involved torture or serious physical abuse to the victim; (7) commission of the offense upon a victim particularly vulnerable due to youth; (7) and (8) intentional killing and attempted killing of more than one person in a single criminal episode. (Id. at 3-4.) In addition, the Government intends to introduce evidence of the following non-statutory aggravating factors against Savage: (1) victim impact evidence; (2) future dangerousness of the defendant; (3) contemporaneous conviction for another killing; and (4) obstruction of justice.
B. Charges Against Robert Merritt
In its Notice of Intent with respect to Merritt, the Government states that it will seek a sentence of death on the following offenses: (1) murder in aid of racketeering, and aiding and abetting, which resulted in the deaths of Marcella Coleman (Count 10), Tameka Nash (Count 11), Sean Anthony Rodriguez (Count 12), Tajh Porchea (Count 13), Khadija Nash (Count 14), and Damir Jenkins (Count 15); and (2) retaliating against a witness, victim or informant, which resulted in the deaths of the Coleman family (Count 16). (Merritt NOI 1-2.) The Government seeks to prove the following statutory aggravating factors enumerated 18 U.S.C. § 3592(c) against Merritt: (1) grave risk of death to additional persons; (2) heinous, cruel, or depraved manner that involved torture or serious physical abuse to the victim; (3) pecuniary gain; (4) substantial planning and premeditation; (5) conviction for two felony drug offenses; (6) vulnerability of victim; and (7) multiple killings or attempted killings in a single criminal episode. (Id. at 3-4.) In addition, the Government intends to introduce evidence of the following non-statutory aggravating factors against Merritt: (1) victim impact evidence; (2) future dangerousness of the defendant; and (3) obstruction of justice. (Id. at 4-5.)
C. Charges against Steven Northington
The Indictment alleges that, in support of the KSO, Defendant murdered
Barry Parker and Tybius Flowers. (Id. at 42, 44-45.)*fn4
In its Notice of Intent with respect to Northington, the
Government contends that a sentence of death is justified based on the
charge of murder in aid of racketeering activity related to the death
of Tybius Flowers (Count 7). (Northington NOI 1.)*fn5
Incorporating the Indictment's Notice of Special Findings listed in Count 1, the Government will endeavor to prove the following statutory aggravating factors: (1) previous conviction of offense for which a sentence of death or life imprisonment was authorized; (2) creation of a grave risk of death to additional persons; (3) substantial planning and premeditation; and (4) conviction for serious federal drug offenses. (Id. at 2.) In addition, the Government intends to introduce evidence of non-statutory aggravating factors, namely: (1) victim impact evidence; and (2) future dangerousness of the defendant.
On February 17, 2012, Northington filed a Motion to Strike Aggravating Circumstances or in the Alternative to Compel Discovery. (Northington Mot., ECF No. 364.) On February 20, 2012, Merritt filed his Motion to Strike or Modify the Notice of Intent to Seek the Death Penalty. (Merritt Mot., ECF No. 368.) On February 21, 2012, Savage filed a Motion to Strike the Revised Notice of Intent to Seek the Death Penalty. (Savage Mot., ECF No. 373.) On April 16, 2012, the Government filed an Omnibus Response to these Motions and other motions challenging the death penalty on constitutional grounds. (Gov't's Resp., ECF No. 467.)*fn6
On December 3, 2012, Savage filed a letter with the Court concerning one aspect of his Motion: the request for informational outlines from the Government to support the statutory and non-statutory aggravating factors set forth in the Notice of Intent. (ECF No. 775.) At a hearing held on December 17, 2012, counsel for Savage, Merritt, and Northington presented additional argument on their request for informational outlines. (See ECF No. 859 (on file with Court).) Counsel for Savage presented additional arguments in support of his request to strike the aggravating factors from the Revised Notice of Intent in a letter addressed to the Court dated May 5, 2013. (see ECF No. 1296.)
Trial of Defendants began on February 4, 2013. To the extent a sentencing phase is needed, it will commence immediately following the jury's verdict with respect to Defendants' guilt or innocence.
Defendants move to strike the Notices of Intent to seek the death penalty against them on two principle grounds. First, Defendants argue that the Notices should be dismissed because the Indictment is inconsistent with the Fifth Amendment. (Savage Mot. 17; Merritt Mot. 54-56.) Specifically, Defendants contend that their Fifth Amendment rights were violated because the grand jury was unaware when it returned the "special findings" section of the Indictment that the consequence would expose Defendants to a capital prosecution. Second, Defendants contend that the Notices of Intent fail to provide adequate notice required by the Federal Death Penalty Act ("FDPA"), 18 U.S.C. §§ 3591, et seq. Specifically, Defendants argue that the Notices fail to plead the required mental state and the aggravating factors with sufficient specificity to permit Defendants to prepare their defense in a capital sentencing.*fn7 Defendants seek to strike certain of the aggravating factors on the grounds that they fail to allege any factual basis to support them, or are vague, duplicative, unascertainable, irrelevant, or unfairly prejudicial. (Savage Mot. 23-24; Merritt Mot. 74.) In the alternative, Defendants request that the Government provide additional information in the form of an offer of proof or "informational outline" to support each of the deficient statutory and non-statutory aggravating factors.
With respect to Defendant's Fifth Amendment arguments, the Government responds that it is not constitutionally required to inform the grand jury that the death penalty is a possible consequence of returning the special findings in the Indictment. (Gov't's Resp. 34-35.) The Government also argues that the Notices of Intent provide sufficient notice in accordance with the FDPA. (Id. at 49-50.) Specifically, the Government contends that the FDPA mandates notice of the aggravating factors upon which the Government will rely, but does not require detailed evidence to support each of the factors. (Id. at 50.) To the extent that the Court determines that further disclosure is required, the Government submits that providing an informational outline is preferable to holding an evidentiary hearing.
1. Structure of Capital Sentencing
The FDPA sets forth the findings that a jury must make during the penalty phase of a capital case. First, the jury must determine whether the defendant is eligible for the death penalty, by deciding whether the Government has proven beyond a reasonable doubt (1) the defendant is eighteen years or older, (2) that the defendant acted with the requisite intent pursuant to 18 U.S.C. § 3591(a), and (3) the existence of one statutory aggravating factor. See 18 U.S.C. §§ 3591(a), 3592(c), 3593(c), (e); see also Tuilaepa v. California, 512 U.S. 967, 971 (1994). If the jury determines that the defendant is eligible, then in a separate hearing, the same jury must consider whether the death penalty should be imposed after balancing all of the statutory and non-statutory aggravating factors and the mitigating factors. United States v. Natson, 444 F. Supp. 2d 1296, 1309 (M.D. Ga. 2006). Specifically, the jury is charged with considering "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." 18 U.S.C. § 3593(e). The jury's determination as to whether a defendant should be sentenced to death or to life imprisonment must be unanimous. Id. at § 3593(c). On the other hand, an individual juror may consider any mitigation factor if found by a preponderance of the evidence, regardless of whether all jurors agree that the mitigating factor has been proven. Id. at § 3593(d).
2. The Notice of Intent and Aggravating Factors
The FDPA requires the Government to give notice to a defendant charged with a capital crime (1) "stating that the government believes that the circumstances of the offense are such that, if the defendant is convicted, a sentence of death is justified . . . and that the government will seek the sentence of death" and (2) "setting forth the aggravating factor or factors that the government, if the defendant is convicted, proposes to prove as justifying a sentence of death."
18 U.S.C. § 3593(a). Section 3592(c) of the FDPA lists sixteen statutorily-enumerated aggravating factors for homicide offenses that the Government may allege in support of a death sentence. The section also provides that the jury "may consider whether any other aggravating factor for which notice has been given exists." Id. at § 3592(b). Aggravating factors provided for in the Notice of Intent that do not fall under any of the specifically enumerated categories but are rather alleged pursuant to this catchall provision are referred to as non-statutory aggravating factors.
Aggravating factors serve many functions in a capital sentencing. They "focus the jury's attention on the particular facts and circumstances pertinent to each defendant found guilty of an offense punishable by death in the context of mitigating factors unique to him as an individual human being." United States v. McVeigh, 944 F. Supp. 1478, 1488 (D. Colo. 1996). They also serve to enable the jury to distinguish between those defendants who deserve capital punishment from those who do not. Arave v. Creech, 507 U.S. 463, 474 (1993). Aggravating factors ensure that due process is protected by assisting a defendant in preparing to defend against imposition of a capital sentence. In this regard, they reveal how the Government intends to "channel the sentencer's discretion" by providing a framework from which a defendant may structure a defensive strategy.
In order to pass constitutional muster, an aggravating factor must meet two requirements. First, the aggravating factor must not be constitutionally vague. United States v. Minerd, 176 F. Supp. 2d 424, 437 (W.D. Pa 2001) (citing Tuilaepa, 512 U.S. at 972). Second, the aggravating factor must not be unconstitutionally overbroad in that it must not apply to every defendant convicted of murder. Id. (citing Tuilaepa, 512 U.S. at 972). With respect to the vagueness inquiry, "[a]n aggravating factor may not be so indeterminate that it effectively leaves jurors with unbridled discretion." United States v. Runyon, 707 F.3d 475, 502 (4th Cir. 2013). The process during both the eligibility phase and the penalty phase must be "neutral and principled so as to guard against bias or caprice in the sentencing decision." Tuilaepa, 512 U.S. at 973. A district court has substantial discretion in determining whether an aggravating factor is constitutionally vague. Id. The Supreme Court has explained that an aggravating factor is not unconstitutionally vague if it has some "'common-sense core  meaning . . . that criminal juries should be capable of understanding.'" Id. (quoting Jurek v. Texas, 428 U.S. 262, 279 (1976) (White, J., concurring in judgment)). A jury must be provided a limiting or narrowing definition of the aggravating factor. Minerd, 176 F. Supp. 2d at 437 (citing Walton v. Arizona, 497 U.S. 639, 653-54 (1990)). With respect to the overbreadth analysis, "[a]n aggravator is unconstitutionally overbroad 'if the sentencer fairly could conclude that [the] aggravating circumstance applies to every defendant' eligible for the death penalty, such that the factor fails to sufficiently narrow the class of offenders who may receive that punishment." Runyon, 707 F.3d at 503 (quoting Arave, 507 U.S. at 474) (emphasis in original). Put simply, an aggravating factor must not apply to every defendant eligible for the death penalty. Jones v. United States, 527 U.S. 373, 401 (1999).
In exercising its gatekeeping function with respect to capital sentencing proceedings, a district court is empowered to preclude the Government from offering evidence in support of aggravating factors to the extent the court determines that constitutional rights would be violated. District courts have the discretion in determining whether the Government must provide greater specificity to support the factors outlined in its Notices of Intent. See Minerd, 176 F. Supp. 2d at 448-49; see also United States v. Catalan Roman, 376 F. Supp. 2d 108, ...