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United States v. Con-Ui

United States District Court, M.D. Pennsylvania

April 18, 2017

UNITED STATES OF AMERICA
v.
JESSIE CON-UI, Defendant.

          MEMORANDUM

          A. Richard Caputo United States District Judge

         Presently 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.

         I. Background

         On 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.

         In the 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 jury.

         In my 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).

         However, 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).[1]

         II. Analysis

         Defendant 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.

         Defendant argues that,

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.

         In 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.

         Thus, 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 ...


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