United States v. George

UNITED STATES OF AMERICA v. LILBEAR GEORGE, CURTIS JOHNSON, JR., & CHUKWUDI OFOMATA

CRIMINAL ACTION No. 17-201 SECTION I

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

July 31, 2020

ORDER & REASONS

Before the Court are six motions¹ filed by the government to exclude certain evidence, argument, or instruction during any penalty phase proceedings of defendants Lilbear George ("George"), Curtis Johnson, Jr. ("Johnson"), and Chukwudi Ofomata's ("Ofomata") (collectively, the "defendants") capital trial. The defendants oppose each of the government's motions.² For the following reasons, the government's motions are granted, denied, and/or dismissed without prejudice.

I.

The allegations in the second superseding indictment are familiar to the Court.³ On August 31, 2018, the government filed its notices of intent to seek the death penalty as to George, Johnson, and Ofomata.⁴ Each notice of intent states thatthe government "believes the circumstances of the offenses charged in Count 3 of the Superseding Indictment are such that in the event of a conviction, a sentence of death is justified . . . , and that [the government] will seek the sentence of death for this offense."⁵ Count three alleges that the defendants, along with codefendants Jeremy Esteves and Robert Brumfield, III, "aiding and abetting each other, did knowingly use, carry, brandish, and discharge firearms during and in relation to crimes of violence . . . , and in the course thereof caused the death of Hector Trochez through the use of firearms," and that the killing is murder in that the murder was committed in perpetration of a robbery affecting commerce.⁶

Under the Federal Death Penalty Act ("FDPA"), 18 U.S.C. §§ 3591-3598, "conviction of an offense punishable by death is followed by a separate sentencing hearing which involves both an eligibility and selection phase." United States v. Ebron, 683 F.3d 105, 149 (5th Cir. 2012). To render a defendant eligible for the death penalty, the government must prove beyond a reasonable doubt one of four mental states, also known as statutory intent factors, provided in § 3591(a)(2) and at least one of sixteen statutory aggravating factors provided in § 3592(c). United States v. Bourgeois, 423 F.3d 501, 506-07 (5th Cir. 2005).⁷

Once the defendant becomes eligible for the death penalty, the selection phase begins, during which the government may attempt to prove the existence of additional factors in support of its position that the death penalty should be imposed. See § 3593(c). Similarly, the defendant may attempt to prove the existence of mitigating factors to dissuade the sentencing jury from recommending a death sentence. Id. The jury then weighs the proven aggravating factors against any proven mitigating factors in order to determine if a death sentence is appropriate. § 3593(e).

II.

The government moves the Court to preclude: evidence of unsworn allocutions before any capital jury,⁸ evidence or argument concerning residual doubt,⁹ argument or instruction that the beyond a reasonable doubt standard applies to penalty phase weighing,¹⁰ argument of execution impact evidence and proportionality evidence,¹¹ evidence or argument concerning a mercy instruction,¹² and evidence or argument concerning prison conditions generally.¹³ The Court will consider each motion in turn.

A. Unsworn Allocution

A statement of allocution is "[a]n unsworn statement from a convicted defendant to the sentencing judge or jury in which the defendant can ask for mercy,explain his or her conduct, apologize for the crime, or say anything else in an effort to lessen the impending sentence." United States v. Jackson, 549 F.3d 963, 980 n.22 (5th Cir. 2008) (internal quotation marks and citation omitted).

The government moves to preclude the defendants from making any unsworn statements before the jury during the penalty phase because Fifth Circuit precedent establishes that capital defendants have no constitutional or statutory right to allocute before the jury.¹⁴ The government further argues that any allocution should be excluded because its probative value is outweighed by the danger of creating unfair prejudice due to its lack of reliability.¹⁵ Moreover, the government asserts, permitting the defendants to make unsworn and unexamined statements would deny the jury essential information necessary for the determination of credibility.¹⁶

The defendants argue in opposition that, like all other criminal defendants, they have a constitutional, common law, and statutory right to allocute, and that even if no such right exists, the FDPA grants the Court the discretion to permit allocution.¹⁷

Specifically, the defendants point to Federal Rule of Criminal Procedure 32, which provides, in pertinent part, that before imposing a defendant's sentence, the Court must "address the defendant personally in order to permit the defendant to speak or present any information to mitigate the sentence." Fed. R. Crim. P.32(i)(4)(A)(ii).¹⁸ The defendants contend that for allocution to serve its purposes of tempering punishment with mercy and ensuring individualized sentencing, the defendants must be allowed to address the sentencer, in this case, the jury, before the jury deliberates their sentences.¹⁹ To hold otherwise, and to permit allocution only after the jury deliberates, the defendants assert, would be an "empty formality" that would not satisfy due process because it could have "no mitigating effect."²⁰

The defendants argue that the FDPA also provides them with the right to allocute before the jury.²¹ Pursuant to 18 U.S.C. § 3593, a defendant may present "any information relevant to a mitigating factor" and, therefore, the defendants conclude, they should each be allowed to offer an unsworn, un-cross-examined statement to the jury as evidence relevant to mitigation.²² The defendants assert that any danger of unfair prejudice may be cured with a limiting instruction reminding the jurors that they should carefully consider the credibility of such statements, considering that they are not sworn or subject to cross-examination.²³

The defendants acknowledge that Fifth Circuit precedent establishes that a capital defendant does not have an unconditional right to allocute, but they argue that nothing forbids the Court from exercising its discretion to allow the defendants to allocute with conditions, such as by providing an instruction to the jury regardingthe nature of allocution, as previously discussed; limiting the timing of allocution;²⁴ requiring the defendants to remain at the defense table; and providing the Court and government with advance notice as to whether one or more of the defendants intends to allocute and the contents of their statements.²⁵

Fifth Circuit precedent clearly establishes that "a criminal defendant in a capital case does not possess a constitutional right to make an unsworn statement of remorse before the jury that is not subject to cross-examination." Jackson, 549 F.3d at 980 (quoting United States v. Hall, 152 F.3d 381, 396 (5th Cir.1998), abrogated on other grounds by United States v. Martinez-Salazar, 528 U.S. 304 (2000)).

In Hall, the Fifth Circuit also held that a capital defendant has no right under Rule 32, the FDPA, or common law to allocute before the jury prior to the jury's deliberations. 152 F.3d at 391-95. The court found that the district court complied with the plain language of Rule 32 by inquiring of the defendant whether he wished to make a statement before it announced his sentence, and it held that "[t]he text of the rule provides no basis for concluding that the defendant has a right to make a statement to the jury prior to the jury's arriving at its sentencing recommendation." Id. at 392. As the court explained:

[Section] 3593(c) counsels against construing Rule 32[(i)(4)(A)(ii)] as establishing an unconditional right for the defendant to make an unsworn statement of remorse to the jury. . . . Construing [the rule] as granting a defendant the unconditional right to make an unsworn statement of remorse to the jury would contravene § 3593's mandate that the district court exercise discretion in determining whether toexclude any information offered by the parties on the basis that its probative value "is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury." . . . Construing Rule 32[(i)(4)(A)(ii)] as creating a per se right to make an unsworn statement of remorse to the jury that is not subject to cross-examination would in no sense increase the accuracy and reliability of the capital-sentencing process. When the district court receives a statement in allocution, it recognizes the legal effect of the fact that the statements are not sworn and the attendant potential effect of this fact upon the credibility of the defendant's statements; the same cannot be said for a jury.

Id. at 392-93 (quoting 18 U.S.C. § 3593(c)).

Hall rejected the argument that only permitting defendants to allocute after the jury arrives at its sentencing recommendation "render[s] allocution an empty gesture because the district court has no discretion to disregard the jury's recommendation." Id. The court noted that other circumstances exist in which allocution is "equally devoid of practical impact," such as when the statutory mandatory minimum sentence for a particular offense exceeds the maximum sentence under the otherwise applicable U.S. Sentencing Guidelines range. Id.

Hall declined to express an opinion as to whether the district court could have properly exercised its discretion to allow the defendant to allocute before the jury deliberated its sentencing recommendation. Id. at 393 n.6. As the defendants recognize, the FDPA provides that "[t]he defendant may present any information relevant to a mitigating factor," 18 U.S.C. § 3593(c), and some courts have exercised their discretion to permit defendants to allocute before the jury as information relevant to mitigation. See, e.g...