United States v. Bowers

498 F.Supp.3d 741

UNITED STATES of America

v.Robert BOWERS, Defendant.

Criminal No. 18-292

United States District Court, W.D. Pennsylvania.

Filed October 29, 2020

Cindy K. Chung, Eric G. Olshan, Soo C. Song, Troy Rivetti, Rebecca L. Silinski, United States Attorney's Office, Pittsburgh, PA, Julia Gegenheimer, Washington, DC, for United States of America.

Elisa A. Long, Michael J. Novara, Federal Public Defender's Office, Pittsburgh, PA, Judy Clarke, Clarke Johnston Thorp & Rice, PC, San Diego, CA, for Defendant.

OPINION AND ORDER OF COURT

AMBROSE, Senior District Judge

SYNOPSIS

On January 29, 2019, the Government filed a superseding indictment charging Defendant, in part, with Obstruction of Free Exercise of Religious Beliefs Resulting in Death in violation of 18 U.S.C. §§ 247(a)(2) and 247(d)(1) (Counts 1-11) and Use and Discharge of a Firearm to Commit Murder During and in Relation to a Crime of Violence and Possession of a Firearm in Furtherance of a Crime of Violence in violation of 18 U.S.C. §§ 924(c)(1)(A)(i), 924(c)(1)(A)(ii), 924(c)(1)(A)(iii), and 924(j)(1) (Counts 23-33). [ECF No. 44]. On August 26, 2019, the Government filed a Notice of Intent to Seek the Death Penalty as to these counts ("Notice of Intent"). [ECF No. 86]. The Notice of Intent enumerates the statutory gateway factors and statutory and non-statutory aggravating factors that the Government proposes to prove as justifying a sentence of death. Id. Defendant has filed a Challenge to the Notice of Intent and Memorandum of Support seeking to strike mental state eligibility and aggravating factors pursuant to Article I and the Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States Constitution, 18 U.S.C. §§ 3592, et seq., and case law. [ECF No. 241]. The Government filed a Response in Opposition and Defendant filed a Reply. [ECF Nos. 250, 253]. For the reasons set forth below, the Challenge is denied.

OPINION

I. THE FEDERAL DEATH PENALTY ACT

The Federal Death Penalty Act, 18 U.S.C. §§ 3591, et seq. ("FDPA"), gives federal prosecutors discretion to determine whether the United States will seek the death penalty for capital offenses. See 18 U.S.C. § 3593(a). If the government intends to seek the death penalty in a case involving a capital offense, it must file a notice "a reasonable time before trial" both stating that intent and "setting forth the aggravating factor or factors that [it], if the defendant is convicted, proposes to prove as justifying a sentence of death." Id.

If a defendant is convicted of a death-eligible offense, the case moves into the penalty phase. During the penalty phase, the government must first establish that the defendant had the mental state described in at least one of four gateway intent factors set forth in 18 U.S.C. § 3591(a)(2)(A)-(D), specifically that the defendant:

(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 lethal force would be used in connection with a person, other than one of the participants in the offense, and the victim dies 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.

Id. Here, the Government proposes to prove all four of these gateway mental-state factors in the Notice of Intent. [ECF No. 86, at 1-2].

Next, the Government must prove the existence of at least one statutory aggravating factor listed in 18 U.S.C. § 3592(c). The statutory aggravating factors identified in the Notice of Intent and relevant to Defendant's challenge here include: grave risk of death to additional persons, 18 U.S.C. § 3592(c)(5) ; substantial planning and premeditation, 18 U.S.C. § 3592(c)(9) ; vulnerability of victims, 18 U.S.C. § 3592(c)(11) ; and multiple killings or attempted killings, 18 U.S.C. § 3592(c)(16). [ECF No. 86, at 3].

If the government proves at least one gateway intent factor and at least one statutory aggravating factor, the jury then weighs the existence of the statutory aggravating factors and any non-statutory aggravating factors for which notice has been given¹ against any mitigating factors in order to arrive at a recommended sentence. 18 U.S.C. § 3593(e). The challenged non-statutory aggravating factors contained in the Notice of Intent include: (1) victim impact; (2) injury to surviving victims; (3) lack of remorse; (4) selection of site; and (5) killings motivated by religious animus. [ECF No. 86, at 3-5].

Defendant raises numerous challenges to the Government's Notice of Intent, the mental state eligibility factors, and various statutory and non-statutory aggravating factors enumerated therein. I address each of Defendant's arguments in turn.

II. MENTAL STATE ELIGIBILITY FACTORS

The Notice of Intent lists each of the four gateway mental state eligibility factors set forth in 18 U.S.C. § 3591(a)(2) as factors the Government proposes to prove to justify a sentence of death with regard to Counts 1-11 and 23-33 of the Superseding Indictment. [ECF No. 86]. Defendant argues that all of these gateway eligibility factors except the one alleging an intentional killing pursuant to 18 U.S.C. § 3591(a)(2)(A) should be stricken. [ECF No. 241, at 5-11]. Defendant contends that the "intentional killing" factor subsumes the second factor ("intentionally inflicted seriously bodily injury" resulting in death) and, therefore, that the second factor should be stricken as duplicative. Id. Defendant further alleges that the third and fourth factors set forth in § 3591(a)(2)(C) and (D) should be stricken because they are premised on an aiding and abetting theory that has not been advanced in this case. Id. In addition, Defendant asserts that permitting the allegations to stand would violate § 3593(c) and the Fifth, Sixth, and Eighth Amendments because it would allow the Government to artificially inflate the mental state gateway factors, confusing the jury and resulting in unfair prejudice. Id. at 10-11. After careful consideration, Defendant's request to strike the gateway mental state eligibility factors other than "intentional killing" from the Notice of Intent is denied.

Defendant relies on cases such as United States v. McCullah, 76 F.3d 1087, 1111-12 (10th Cir. 1996), United States v. Tipton, 90 F.3d 861, 898 (4th Cir. 1996), and their progeny in support of his argument that the use of duplicative mental state factors creates an unconstitutional skewing of the death penalty weighing process. [ECF No. 241, at 6-11]. As the Government notes in its response, McCullah and Tipton are not FDPA cases, but, rather, addressed a since-repealed statutory scheme under which the jury considered intent as an aggravating factor to be weighed in the final sentencing determination. [ECF No. 250, at 18-19 and cases cited therein]. In contrast, under the FDPA, the intent factors are not aggravating factors to be weighed, but, rather, threshold questions of eligibility for the death penalty. As such, the intent factors do not implicate Defendant's concerns. See United States v. Webster, 162 F.3d 308, 355 (5th Cir. 1998) (" § 3591(a) does not set forth aggravating factors, but rather serves as a preliminary qualification threshold. The fact that a defendant could satisfy more than one of these via the same course of action does not, therefore, constitute impermissible double counting."); United States v. Jackson, 327 F.3d 273, 300-01 (4th Cir. 2003) (distinguishing Tipton and holding that the court did not err in submitting all four types of intent under § 3591 to the jury because "[w]hether the jury found one type of intent or all four would not, under the instructions given, skew the weighing process. The weighing process involved only aggravating and mitigating circumstances which were distinct from the intent finding."); United States v. Bolden, 545 F.3d 609, 629-30 (8th Cir. 2008) (disagreeing that submission of all four mental states to the jury enhanced the risk that the jurors would inflate the weight of mental state evidence during the penalty phase); United States v. Minerd, 176 F. Supp. 2d 424, 445 (W.D. Pa. 2001) ("[E]ven if the jury finds that more than one of the intentions have been established, this cannot tip the balance towards a sentence of death because the gatekeeping factors under the FDPA are not weighed."); United States v. Cooper, 91 F. Supp. 2d 90, 109-10 (D.D.C. 2000) ; United States v. Montgomery, 10 F. Supp. 3d 801, 815-16 (W.D. Tenn. 2014). Because the intent factors set forth in § 3591 are threshold factors that do not play any role in the weighing process under the FDPA, there is no danger of prejudicial skewing or double counting. Defendant's arguments to the contrary are without merit.

Defendant's request that the intent factors in § 3591(a)(2)(C) and (D) be stricken because the Government does not assert an aiding and abetting theory likewise is misplaced. Defendant does not cite any persuasive authority to support this proposition. The language of these two intent factors is not limited to accomplices only. Although an aider or abettor could not be liable under the language of (A) and (B), the converse is not necessarily true regarding a single actor under (C) and (D).²

As the Government points out, it does not yet know Defendant's trial defense strategies, including whether Defendant intends to deny specific intent. Thus, it would be premature at this stage of the proceedings to constrain the Government's ability to assert any potentially applicable gateway factor that would render Defendant eligible for the death penalty.

For these reasons, Defendant's request to strike all of the gateway...