The opinion of the court was delivered by: Surrick, J.
Presently before the Court is Defendant Steven Northington's Penalty Phase Motion (ECF No. 1317.) For the following reasons, Defendant's Motion will be denied.
On May 9, 2012, a federal grand jury returned a seventeen-count Fourth Superseding Indictment (the "Indictment") against Defendants Kaboni Savage, Robert Merritt, Steven Northington, and Kidada Savage. On March 14, 2011, the Government filed a Notice of Intent to seek the death penalty ("Notice") against Kaboni Savage, Robert Merrit, and Northington. (ECF Nos. 196, 197, 198.) A revised Notice of Intent was filed against Kaboni Savage on February 15, 2012. (ECF No. 361.)
Trial was held from February 4, 2013 to May 6, 2013. On May 13, 2013, the jury returned a guilty verdict against Northington for conspiracy to participate in the affairs of a racketeering ("RICO") enterprise, in violation of 18 U.S.C. § 1962(d) (Count 1), and two counts of murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(1) (Counts 5, 7). Kaboni Savage was also convicted of murder in aid of racketeering of Barry Parker (Count 5)*fn2 and murder in aid of racketeering of Tybius Flowers (Count 7). Robert Merritt was found not guilty of the capital offenses with which he was charged.
In its Notice 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). (Notice 1.)*fn3 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. (Notice 2.) In addition, the Government intends to introduce evidence of non-statutory aggravating factors, namely: (1) victim impact evidence; and (2) future dangerousness of Defendant.
On May 9, 2013, Defendant Steven Northington filed the instant Penalty Phase Motion. (Def.'s Mot., ECF No. 1317.) Defendant makes the following requests with respect to the penalty phase of the trial: (1) that the jury be precluded from considering certain intent factors as to the murder of Tybius Flowers; (2) that the Court not allow the statutory aggravating factor of substantial planning and premeditation to be considered by the jury; (3) that all victim impact evidence be reduced to writing; (4) that the Government be precluded from arguing lack of remorse based on Defendant's silence; and (5) that the Government be precluded from submitting the statutory aggravating factor that Defendant had a previous conviction of an offense for which a sentence of death or life imprisonment was authorized.*fn4
On May 10, 2013, we filed a Memorandum and Order granting in part and denying in part Northington's prior motion to strike aggravating factors. (Strike Mem., Strike Order.) The Court denied Northington's request to strike the statutory aggravating factor of grave risk of death to additional persons, and denied his request to strike the two non-statutory aggravating factors of victim impact and future dangerousness. (Strike Mem. 35-36.) However, the Government was ordered to provide an outline of the evidence that it intends to use in support of these aggravating factors. (Id.)
A.Gateway Factors Under the Federal Death Penalty Act
Under the Federal Death Penalty Act ("FDPA"), 18 U.S.C. §§ 3591, et seq. the jury must unanimously conclude beyond a reasonable doubt that the defendant was over the age of eighteen upon committing the offense and acted with one of four requisite mental states. 18 U.S.C. § 3591(a)(1)(A)-(D). The mens rea requirement is often referred to as a "gateway" mental state. See United States v. O'Driscoll, 203 F. Supp. 2d 334, 350 & n.14 (M.D. Pa. 2002); United States v. Minerd, 176 F. Supp. 2d 424, 441 (W.D. Pa. 2001) (distinguishing between eligibility and selection phase and calling gateway factors a "'preliminary qualification threshold'") (quoting United States v. Webster, 162 F.3d 308, 355 (5th Cir. 1998)). Each "gateway" mental state in the FDPA requires a level of intent. Specifically, to be death penalty eligible, a defendant must have:
(A) intentionally killed the victim; (B) intentionally inflicted serious bodily injury that resulted in the death of the victim; (C) intentionally participated in an act, contemplating that the life of a person would be taken or intending that legal force would be used in connection with a person, other than one of the participants in the offense, and the victim died as a direct result of the act; or (D) intentionally and specifically engaged in an act of violence, knowing that the act created a grave risk of death to a person, other than one of the participants in the offense, such that participation in the act constituted a reckless disregard for human life and the victim died as a direct result of the act.
18 U.S.C. § 3591(a)(1)(A)-(D). Unlike under 18 U.S.C. § 848, "the gateway intent factors under the FDPA are not treated as aggravating factors that the jury is permitted to weigh in making a sentencing recommendation." Cheever, 423 F. Supp. 2d at 1199 (emphasis in original) (citing 18 U.S.C. § 3593(e)).
Here, Defendant argues that the Court should strike three of the four intent factors. (Def.'s Mot. 5.)*fn5 According to Defendant, the only mental state that the Government can plausibly argue would be that he "intentionally participated in an act, contemplating that the life of a person would be taken or intending that lethal force would be used in connection with a person, other than one of the participants in the offense, and the victim died as a direct result of the act." (Def.'s Mot. 5) Defendant contends that "there is no view of the evidence that would show that Mr. Northington was the shooter of Mr. Flowers . . . ." (Id.) Defendant also argues that the second gateway factor is inapplicable, as the circumstances surrounding the murder do not comport with one intending to inflict serious bodily injury. (Id.) Finally, ...