United States v. Brandon Michael Council

United States of America, v. Brandon Michael Council, Defendant.

CRIMINAL No. 4:17-cr-00866-RBH

United States District Court, D. South Carolina, Florence Division

September 10, 2021

ORDER

R Bryan Harwell Chief United States District Judge

On December 30, 2019, Defendant Brandon Michael Council filed a notice of appeal in this capital case. ECF No. 872. The appeal remains pending. On July 21, 2021, Defendant filed a “Motion to Vacate Sentences of Death by Electrocution” under Federal Rule of Criminal Procedure 33. ECF No. 923. On August 5, 2021, the Government filed a response in opposition to the motion, and on August 13, 2021 Defendant filed a reply. ECF Nos. 925 & 927. The Court denies Defendant's motion for the reasons herein.^[1]

Background

On September 24, 2019, a jury convicted Defendant of two capital offenses: bank robbery resulting in death, in violation of 18 U.S.C. § 2113(a) and (e), and use of a firearm during and in relation to a crime of violence and causing death in such a manner to constitute murder, in violation of 18 U.S.C § 924(c) and (j). ECF No. 819. The jury subsequently determined Defendant should receive death sentences for both convictions, and on October 3, 2019, the Court imposed the death sentences under the Federal Death Penalty Act (“FDPA”).^[2] ECF Nos. 856, 857, & 860. Judgment was entered on October 7, 2019; the judgment provides in relevant part:

Defendant is committed to the custody of the Attorney General until the exhaustion of the procedures for appeal of the judgment of conviction and for review of the sentences. See 18 U.S.C. Sec. 3596(a). When the sentence of death is to be implemented, the Attorney General shall release the defendant to the custody of a United States Marshal, who shall supervise the implementation of the sentence in the manner prescribed by the law of the State in which the sentence is imposed. See 18 U.S.C. Sec. 3596(a).

ECF No. 860 at p. 3.

On November 4, 2019, Defendant filed a motion seeking a new sentencing trial and/or judgment of acquittal as to his death sentences, pursuant to Federal Rules of Criminal Procedure 29(c) and 33(b)(2).^[3] ECF No. 866. He argued in part that 18 U.S.C. § 3596(a)^[4] violated the nondelegation doctrine. Id. at pp. 2, 5-8. The Court denied the motion on December 17, 2019, and Defendant filed a notice of appeal on December 30, 2019. ECF Nos. 869 & 872. Defendant's direct appeal remains pending, with his opening brief currently due October 14, 2021. See United States v Council, No. 20-1, at Doc. No. 34 (4th Cir. June 2, 2021) (briefing schedule).

On July 21, 2021, Defendant filed the instant motion under Federal Rule of Criminal Procedure 33, asserting he “stands sentenced to death by electrocution” due to a May 14, 2021 amendment of South Carolina's death penalty statute. ECF No. 923 at pp. 1, 5; see Act. No. 43, § 1, 2021 S.C. Acts (amending S.C. Code Ann. § 24-3-530).^[5] Defendant again challenges the constitutionality of 18 U.S.C. § 3596(a), making ex post facto, Eighth Amendment, nondelegation, equal protection and due process arguments. ECF No. 923 at pp. 2, 20-42. Defendant contends that “the Court should vacate [his] sentences of death by electrocution” and that he “must be resentenced to a sentence other than death.” Id. at pp. 42-43.

On August 5, 2021, the Government filed a response in opposition to Defendant's motion, and on August 13, 2021, Defendant filed a reply. ECF Nos. 925 & 927.

Discussion^[6]

I. Rule 33 May Be Inapplicable.

Initially, the Court questions whether Rule 33 is an appropriate mechanism for Defendant's challenges. The Rule's plain language contemplates “vacat[ing a] judgment and grant[ing] a new trial, ” Fed. R. Crim. P. 33(a) (emphasis added), but Defendant seeks“resentenc[ing] to a sentence other than death” or, alternatively, an evidentiary hearing on electrocution as an execution method. ECF No. 923 at pp. 42-43. The Court likely lacks authority to grant such relief under Rule 33. See generally United States v. Davis, 679 F.3d 190, 196 (4th Cir. 2012) (recognizing a “district court's authority under a rule” must “start with the rule's plain language” and end there absent some ambiguity). In the capital sentencing context, Rule 33 at most contemplates granting a new sentencing hearing before another jury-where death would remain a potential sentence. See United States v. Lighty, 616 F.3d 321, 376 n.47 (4th Cir. 2010) (indicating Rule 33 could support “a new sentencing hearing”); see, e.g., United States v. Lee, 274 F.3d 485, 491 (8th Cir. 2001) (involving a defendant's motion for a “new penalty hearing” under Rule 33). Nothing in Defendant's motion presents a basis for a plenary sentencing hearing.

The Court raised similar concerns in its order addressing Defendant's prior motion:

Although not raised by the Government, the Court sua sponte questions whether it has jurisdiction to rule on the merits of Defendant's argument, which presents a challenge to the implementation of his death sentences-not their validity. It would seem that such a challenge normally would be made in a habeas corpus petition filed pursuant to 28 U.S.C. § 2241. See In re Vial, 115 F.3d 1192, 1194 n.5 (4th Cir. 1997) (“[A]ttacks on the execution of a sentence are properly raised in a § 2241 petition.”); United States v. Little, 392 F.3d 671, 679 (4th Cir. 2004) (same); see, e.g., Higgs v. United States, 711 F.Supp.2d 479, 556 (D. Md. 2010) (holding the defendant's challenge to 18 U.S.C. § 3596(a) had to be brought in a § 2241 action); Jackson v. United States, 638 F.Supp.2d 514, 614-15 (W.D. N.C. 2009) (involving a challenge to § 3596(a) where the Government pointed out the district court “lack[ed] jurisdiction to entertain a challenge to the manner of the execution of the [p]etitioner's sentence of death [because] any such attack must occur, when ripe, in the district in which he is confined through a habeas proceeding or a civil action”); United States v. Caro, 2006 WL 1594185, at *3 (W.D. Va. June 2, 2006) (indicating the defendant's challenge to the execution of any potential death sentence needed to be brought in a § 2241 action), adopted by, 2006 WL 2987930 (W.D. Va. Oct. 17, 2006). However, the Court notes that the Eleventh Circuit addressed a similar argument on the merits in the context of a direct appeal, see United States v. Battle, 173 F.3d 1343, 1350 & n.2 (11th Cir. 1999), and that the Court's own judgment references 18 U.S.C. § 3596(a), and therefore the Court will address the merits out of an abundance of caution.

ECF No. 869 at p. 5 n.6. Here, as before, it would seem Defendant's instant challenges to the constitutionality of 18 U.S.C. § 3596(a) and implementation of his death sentences are more appropriately raised via a habeas petition such as 28 U.S.C. § 2241. Nevertheless, because the Court addressed Defendant's prior motion on the merits, ^[7] the Court will likewise do so here.

II. Defendant's Proffered “Evidence” Is Not “Newly Discovered” Within the Meaning of Rule 33(b)(1); His Motion Is Untimely Under Rule 33(b)(2); and the Interest of Justice Does Not Require Relief.

Rule 33 provides:

(a) Defendant's Motion. Upon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires. If the case was tried without a jury, the court may take additional testimony and enter a new judgment.

(b) Time to File.

(1) Newly Discovered Evidence. Any motion for a new trial grounded on newly discovered evidence must be filed within 3 years after the verdict or finding of guilty. If an appeal is pending, the court may not grant a motion for a new trial until the appellate court remands the case.

(2) Other Grounds. Any motion for a new trial grounded on any reason other than newly discovered evidence must be filed within 14 days after the verdict or finding of guilty.

Fed. R. Crim. P. 33. Rule 33 motions “are highly disfavored motions that a court should grant only sparingly.” United States v. Ali, 991 F.3d 561, 570 (4th Cir. 2021) (internal quotation marks omitted). “[T]he district court does not need to expound upon its reasoning in its denial of a new trial motion.” Id. “[A] motion for new trial in a capital case is governed by the same Rule 33 applicable in all criminal cases.” United States v. Johnson, 713 F.Supp.2d 595, 605 (E.D. La. 2010);^[8] see Fed. R. Crim P. 1(a)(1) (“These rules govern the procedure in all criminal proceedings in the United States district courts . . . .”).

First as the Government points out, Defendant's motion does not identify any “newly discovered evidence” within the meaning of Rule 33(b)(1). “Newly discovered evidence” means “evidence relat[ing] to the elements of the crime charged, ” United States v. Blackwell, 436 Fed.Appx. 192, 198 (4th Cir. 2011), or in the capital context, “information” presented at a penalty hearing under 18 U.S.C. § 3593(c) where mitigating and aggravating factors are weighed, cf. Lee, 274 F.3d at 493-94 (addressing a Rule 33 motion and discussing “evidence at capital sentencing hearings” under § 3593(c)); Johnson, 713 F.Supp.2d at 620 (“Rule 33 error is evaluated against the record as a whole, which includes the evidence presented in these proceedings relevant to the sentencing selection. Part of the [c]ourt's measurement as to the effect of error includes consideration of the mitigation evidence presented by the defendant at this same selection of trial.” (internal quotation marks and citation omitted)). Although Defendant has submitted various exhibits with his motion, ^[9] these materials are not the type of “evidence” contemplated by Rule 33. See United States v. Smith, 62 F.3d 641, 649 (4th Cir. 1995) (“[T]hat which is ‘newly discovered' must be evidence that would be admissible were a new...