United States District Court, M.D. Pennsylvania
Richard Caputo United States District Judge
before me is Defendant Jessie Con-ui's
("Defendant") Motion to Strike the Amended Notice
of Intent to Seek the Death Penalty in Light of Hurst v.
Florida. (Doc. 948). For the reasons that follow, the
motion will be denied.
October 6, 2015, Defendant filed a Motion to Strike the Death
Penalty (Doc. 836), claiming that the Federal Death Penalty
Act ("FDPA"), 18 U.S.C. §§ 3591-3599, is
facially unconstitutional. Among others, Defendant claimed
that the government was barred from pursuing the death
penalty because the Supreme Court's decision in Ring
v. Arizona, 536 U.S. 584 (2002) and its progeny rendered
the FDPA unconstitutional. On January 28, 2016, I issued a
Memorandum and Order, rejecting Defendant's arguments and
finding that the FDPA's statutory scheme was
constitutional. (Docs. 867, 868). Specifically, I found that
certain aggravating factors need not be included in the
indictment and passed on by the grand jury since those
factors are only considered at trial after a defendant has
been deemed death-eligible, and, thus, do not trigger a
higher punishment. Id. 25-26.
instant motion, filed on January 4, 2017, Defendant argues
that the penalty-phase consideration and weighing of
aggravating factors is an essential "fact" (or
"element" of the underlying offense) that must be
found by the jury before Defendant's penalty can be
increased from life-in-prison to death. (Doc. 948, at 14).
Thus, because consideration and weighing of the aggravating
factors is an essential "fact" or
"element" of the offense, the Fifth, Sixth and
Eighth Amendments require that they be charged in the
indictment and submitted to a grand jury. As the defense
points out, in the instant case, none of the non-statutory
aggravating factors listed in the government's Amended
Notice of Intent to Seek the Death Penalty ("ANOI")
were included in the indictment or presented to the grand
January 28, 2016 Memorandum and Order, as already explained,
I rejected Defendant's argument that Ring and
its progeny require non-statutory aggravating factors to be
presented to a grand jury. Defendant, however, "moves
for reconsideration of this court's ruling" in light
of Hurst v. Florida, 136 S.Ct. 616 (2016), which
held that Florida's death penalty sentencing scheme was
unconstitutional because it violated the Sixth
Amendment's requirement that a jury, not a judge, find
each fact necessary to impose a sentence of death. (Doc. 948,
at 1-2). Defendant asks for reconsideration even though I
twice cited to Hurst in my January 28, 2016
Memorandum and Order (Doc. 867, at 12, 14).
despite the government's objections, I will not construe
Defendant's instant motion as a request for
reconsideration of my previous Order. This is so because
Defendant's previous challenge sought to strike the
Notice of Intent to Seek the Death Penalty, whereas his
instant challenge pertains to the Amended Notice of
Intent to Seek the Death Penalty. I agree with Defendant that
"[s]hould Mr. Con-Ui be sentenced to death, it is
critical that the record contain this court's ruling on
the challenge to both the [Amended Notice] and the
constitutionality of the FDPA in light of
Hurst." (Doc. 965, at 8).
asks that I evaluate the impact of Hurst on whether
the consideration and weighing of aggravating factors during
the sentence selection phase constitutes an
"element" of the offense, requiring that it be
charged in the indictment and presented to the grand jury.
More precisely, the question is not whether the consideration
and weighing of the factors is an element of the offense, but
rather, whether Hurst v. Florida held as much. I
find that it did not.
Hurst, a decision that is effecting seismic change
to capital jurisprudence throughout the country, makes
crystal clear that the consideration and weighing of
aggravating factors by the jury is an "element" of
the offense. And, critically, that this essential jury
finding must occur before the guilty defendant's
potential punishment can be increased from life imprisonment
to the death penalty. Hurst, 136 S.Ct. at 620-22. As
such, it must be alleged by indictment.
(Doc. 948, at 4). Defendant's motion further argues that
Hurst, by expanding the definition of a
"fact" or "element" that exposes the
defendant to a greater maximum punishment to include the
FDPA's weighing process, by implication incorporated
nonstatutory aggravating factors into the same category.
Defendant claims that both the nonstatutory aggravators and
the weighing process act as functional equivalents of the
"elements" of the offense and, thus, must be
presented to the grand jury.
Hurst, the Supreme Court found that Florida's
capital sentencing procedure violated the Sixth Amendment.
136 S.Ct. at 619. The sentencing scheme at issue permitted a
jury to render an advisory opinion as to whether a defendant
should be subject to the death penalty, but the judge made
the ultimate determination after holding a separate hearing
and independently weighing the mitigating and aggravating
factors. Id. at 620. Similarly to the sentencing
procedure the Supreme Court invalidated in Ring, the
Florida courts impermissibly did "not require the jury
to make the critical findings necessary to impose the death
penalty." Id. at 622. Thus, the Court held that
"[t]he Sixth Amendment requires a jury, not a judge, to
find each fact necessary to impose a sentence of death. A
jury's mere recommendation is not enough."
Id. at 619. Accordingly, the Court found that a
jury's advisory opinion on the death penalty violates a
capital defendant's constitutional rights, and struck
down Florida's sentencing scheme. Id.
Hurst stands for the proposition that a capital
sentencing scheme under which a jury makes a sentencing
recommendation and a judge makes the critical findings needed
for the imposition of a death sentence violates the Sixth
Amendment's right to a jury trial. It appears, therefore,
that Hurst merely applied ...