U.S. v. Stitt

760 F.Supp.2d 570

UNITED STATES of America,

v.Richard Thomas STITT, Defendant.

Criminal Action No. 2:98cr47.

United States District Court, E.D. Virginia,Norfolk Division.

May 28, 2010.

Fernando Groene, U.S. Attorney's Office, Richmond, VA, for U.S.

MEMORANDUM OPINION AND ORDER

RAYMOND A. JACKSON, District Judge.

Before the Court are the Government's Motion to Reconsider the Court's Order Striking the Second Amended Death Notice and Applying Confrontation Clause Throughout the Penalty Phase, and Richard Thomas Stitt's (“Defendant”) Motion to Strike Aggravating Factors (of the Original Notice of Intent to Seek the Death Penalty). The Court held a hearing on these matters on May 14, 2010. After conducting a hearing and thoroughly reviewing the parties' memoranda, the Court DENIED IN PART and GRANTED IN PART the Government's Motion to Reconsider. Furthermore, the Court DENIED IN PART and GRANTED IN PART the Defendant's Motion to Strike. This Memorandum Opinion and Order further expiates the Court's bench rulings made at the May 14, 2010 hearing.

I. FACTUAL AND PROCEDURAL BACKGROUND

On March 2, 2010, Defendant filed a Motion to Strike the Aggravating Factors in the Government's First Amended Notice of Intent to Seek the Death Penalty and Memorandum in Support. On March 8, 2010, the Government filed a Motion for Reconsideration of the Court's Memorandum Order Striking the Government's Second Amended Notice of Intent to Seek the Death Penalty. On March 17, 2010, Defendant responded to the Government's Motion. The Government filed a response to Defendant's Motion on March 29, 2010. The Court held a hearing on this matter on May 14, 2010.

II. DISCUSSION

A. Government's Motion to Reconsider

The Government requests the Court to reconsider its Memorandum Opinion and Order issued on February 22, 2010 in which it denied the Government's Second Amended Notice of Intent to Seek the Death Penalty and issued other rulings related to Defendant's resentencing. The Government asserts that this Court's opinion rests on legal error, and would result in the exclusion of evidence otherwise admissible during the penalty phase.

Specifically, the Government argues that: (1) The Court erroneously used its “equitable powers” under 28 U.S.C. § 2255 in barring introduction of new evidence; (2) The Court erred in dismissing the Second Amended Notice which included the introduction of victim impact evidence; and (3) The Court erred in its decision to apply the Confrontation Clause to the entirety of the penalty phase. The Defendant contends that the Government's arguments are wholly without merit.

The Federal Rules of Criminal Procedure do not have a provision addressing a motion to reconsider on a criminal matter such as this one. See Nilson Van & Storage Co. v. Marsh, 755 F.2d 362, 364 (4th Cir.1985) (noting that the Federal Rules of Criminal Procedure “do not specifically provide for motions for reconsideration and prescribe the time in which they must be filed”). However, district courts generally have inherent authority to decide motions for reconsideration and rehearings of orders in criminal proceedings. See United States v. Aguirre, 214 F.3d 1122, 1124 (9th Cir.2000) (noting, in part, that district courts' inherent authority to reconsider is only expressly limited in correcting or modifying a final sentence).

1. The Court's “Equitable Powers” under § 2255

The Government first argues that the Court assumes that Defendant's resentencing is part of Defendant's proceeding under 28 U.S.C. § 2255, in which a district court exercises equitable powers to determine when a piece of evidence or procedural rule may properly be employed. However, because Defendant's § 2255 proceeding has ended, the Government argues that the Court is without power to bar the Government from introducing all new evidence that is disadvantageous to Defendant. In essence, the Government is making virtually the same argument as it presented to the United States Court of Appeals for the Fourth Circuit (“Fourth Circuit”) in United States v. Stitt, 552 F.3d 345 (4th Cir.2008), when it argued that this Court lacked broad “equitable powers” under § 2255 to hold a new sentencing hearing without the possibility of the death penalty, and without impaneling a new jury.

The Court finds that the Government erroneously views this Court's power to “reshape” Defendant's resentencing as equitable under § 2255. Because of the relief this Court granted Defendant pursuant to his § 2255 petition, Defendant has been placed in the “same position he would have been had there been no error in the first instance.” United States v. Silvers, 90 F.3d 95, 99 (4th Cir.1996). This position is facing resentencing under 21 U.S.C. § 848(g), et seq. The evidentiary issues encompassed in the Court's power to deny or strike the Notice of Intent to Seek the Death penalty are the those specifically regarding his resentencing, not his § 2255 petition. Thus, the Court is not relying on its § 2255 “equitable” powers in making a determination that would limit some of the Government's proposed evidence. Accordingly, the Government's Motion to Reconsider based on the assertion of the Court's improper use of its “equitable powers” is DENIED.

2. De Novo Sentencing and Introduction of New Evidence

The Government next argues that because the Fourth Circuit did not issue a mandate limiting the scope of the resentencing, both parties should be entitled to introduce all new evidence in this “de novo” sentencing.

The Court distinguishes the introduction of “new” evidence in support of a properly stated aggravating factor in the Notice of Intent to Seek the Death Penalty, from the introduction of an entirely new set of aggravators that the Government seeks to put forth after the Defendant has already been sentenced. A Defendant is entitled to receive adequate notice of the aggravating factors, but not notice of the specific evidence that will be used to support it. United States v. Higgs, 353 F.3d 281, 324 (4th Cir.2003); see also United States v. Battle, 173 F.3d 1343, 1347 (11th Cir.1999) (observing that notice given to a defendant of the applicable aggravating factors in a death penalty case is not the name as notice of the specific evidence that the government intends to present at a sentencing hearing). Thus, the Government is “not required to spell out the evidence it intends to use during sentencing.” United States v. Cisneros, 363 F.Supp.2d 827, 837 (E.D.Va.2005). However, for a piece of evidence to be introduced and stated as a non-statutory aggravating factor in a notice of intent to seek the death penalty, it must meet a certain level of “heightened” reliability and relevance. See United States v. Friend, 92 F.Supp.2d 534, 543–44 (E.D.Va.2000).

Thus, although the Fourth Circuit did not place limits on what sort of new evidence could be introduced at the resentencing, this does not automatically entitle the Government to the introduction of additional new aggravators in support of a death sentence if the aggravators do not meet the necessary heightened degree of reliability and relevance. Moreover, in exercising discretion as to whether the Government is permitted to amend, the Court must additionally look to whether such amendments would prejudice Defendant. See United States v. Pitera, 795 F.Supp. 571, 573 (E.D.N.Y.1992) (noting that good cause is demonstrated where “the government's application was made in good faith and the defendant was not prejudiced”); United States v. Frank, 11 F.Supp.2d 314, 318 (S.D.N.Y.1998) (noting that the Federal Death Penalty Act envisions that judges will continue to play a “gatekeeping” role at the penalty phase of a capital trial, and that considerations of unfair prejudice to defendant at sentencing must be taken into account). The uniquely high prejudice to Defendant in this case is presented in large part by the fact that the Government attempts to seek the death penalty based on new aggravating factors some twelve years after Defendant's initial sentence. Accordingly, the Court finds that the risks of undue prejudice to Defendant are too great in this case to permit the admission of new nonstatutory aggravating factors and denies the Government's Motion to Reconsider.

However, the Court does find that new evidence in support of a properly drafted aggravating factor in the Notice of Intent to Seek the Death penalty is appropriate and acceptable. The concepts of constitutional relevance, reliability and vagueness do not apply to the evidence supporting the non-statutory aggravators. Cisneros, 363 F.Supp.2d at 838 (noting that in determining whether to admit evidence in support of a non-statutory aggravating factor, a court must consider whether it is “relevant to the non-statutory aggravator, whether it is reliable, and whether it is less prejudicial than probative”). In other words, the Court's holding does not bar the introduction of all new evidence as the Government opines. The Court simply denied the introduction of the additional aggravators as the Government presented in the Second Amended Notice of Intent to Seek the Death Penalty. Accordingly, this portion of the Government's Motion to Reconsider is DENIED.

3. Victim Impact Evidence

The Government argues that the court erred in denying the admission of victim impact as a non-statutory aggravating factor. The Government takes the position that striking this factor contradicts the United States Supreme Court's (“Supreme Court”) rulings in Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991) and Jones v. United States, 527 U.S. 373, 395–96, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999), that the sentencing jury should learn of the impact of Defendant's crimes, as well as the Justice for All Act. The Justice for All Act, 18 U.S.C. § 3771(a)(4) offers victims “[t]he right to be reasonably heard at any public proceeding in the district court involving ... sentencing.” Finally, the...