United States v. Pleau

UNITED STATES OF AMERICA

v.JASON WAYNE PLEAU, Defendant.

CR. No. 10-184-1 S

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

Date: April 17, 2013

OPINION AND ORDER

WILLIAM E. SMITH, United States District Judge.

Before the Court are Defendant Jason Pleau's Motion to Dismiss the Capital Aspects of the Indictment (ECF No. 164) and his Motion to Strike Aggravating Factors or in the Alternative for Other Relief (ECF No. 209). For the reasons set forth below, Pleau's motion to dismiss is DENIED, and his motion to strike is GRANTED in part and DENIED in part.

I. Background

On December 14, 2010, Pleau was indicted and charged with: (1) conspiracy to commit robbery affecting commerce, 18 U.S.C. § 1951(a); (2) robbery affecting commerce, id.; and (3) using, carrying, possessing, and discharging a firearm during and in relation to a crime of violence, death resulting, § 924(c)(1)(A) and (j)(1). (ECF No. 13.) These charges stem from the September 20, 2010 robbery and fatal shooting of David Main. The government subsequently filed its Notice of Intention toSeek the Death Penalty as to Defendant Jason W. Pleau ("notice of intent"). (ECF No. 120.)

In order for a defendant to be "death eligible" under the Federal Death Penalty Act ("FDPA"), the sentencing jury, if it convicts the defendant of the crime alleged, must find that he acted with at least one of the required mental states set out in 18 U.S.C. § 3591(a)(2)(A)-(D). Jones v. United States, 527 U.S. 373, 376 (1999). Additionally, the jury must find the existence of at least one of the aggravating factors listed in 18 U.S.C. § 3592(c) ("statutory aggravating factors"). Jones, 527 U.S. at 376-77. Once these threshold requirements are met, the jury has to decide whether to impose a death sentence by weighing the aggravating factors against the mitigating factors. Id. at 377. In making this determination, the jury may consider aggravating factors other than those expressly provided for by statute ("non-statutory aggravating factors"), so long as they were included in the government's notice of intent. See 18 U.S.C. § 3592(c).

Here, in a section of the indictment entitled "Notice of Special Findings," the grand jury found that, as to Count Three, Pleau acted with the four mental states enumerated in 18 U.S.C. § 3591(a)(2)(A)-(D). It also found two statutory aggravatingfactors,¹ namely that Pleau: (1) knowingly created a grave risk of death to one or more persons in addition to the victim of the offense, § 3592(c)(5), and (2) committed the offense as consideration for the receipt, or in the expectation of the receipt, of anything of pecuniary value, § 3592(c)(8).

In its June 18, 2012 notice of intent, the government proposes to prove these same two statutory aggravating factors beyond a reasonable doubt. The notice further includes three non-statutory aggravating factors, namely: (1) victim impact evidence; (2) participation in other serious acts of violence; and (3) future dangerousness.

II. Discussion

A. Motion to Dismiss

In his motion to dismiss, Pleau contends that: (1) the federal death penalty is unconstitutional because it is rarely sought and imposed; (2) the federal death penalty is unconstitutional because there is no principled basis for distinguishing between cases in which it is imposed and those in which it is not imposed; (3) the federal death penalty is unconstitutional because it is sought and imposed on the bases of race and geography; (4) the Supreme Court's decision in Ringv. Arizona, 536 U.S. 584 (2002), has rendered the FDPA unconstitutional; (5) the indictment in this case violates the Fifth Amendment; (6) the FDPA is unconstitutional because it fails to provide a structure which permits jurors to make a reasoned choice between death and life imprisonment; (7) the federal death penalty is unconstitutional in light of evidence that its continued enforcement will lead to the execution of innocent people; (8) the imposition of the federal death penalty in this case would be unconstitutional because the state of Rhode Island has rejected capital punishment; and (9) the death penalty is unconstitutional in all cases.

Pleau's first, second, fourth, seventh, and ninth arguments have been squarely rejected by the First Circuit and, accordingly, do not merit further discussion. See United States v. Sampson, 486 F.3d 13, 20-25, 27-29 (1st Cir. 2007).

Pleau's third claim also fails because, under Sampson, statistical evidence of racial and geographic disparities is not sufficient to establish a constitutional violation. See id. at 25-27. Such evidence is also insufficient to make out a violation of 18 U.S.C. § 3593(f), see Sampson, 486 F.3d at 25 n.4, or to justify an exercise of the Court's supervisory powers, see id.; United States v. Johnson, No. 05-CR-80337, 2009 WL 1856240, at *7 (E.D. Mich. June 29, 2009); United States v. Barnes, 532 F. Supp. 2d 625, 636 (S.D.N.Y. 2008). Finally,evidence of statistical disparity does not entitle Pleau to discovery on his selective prosecution claim, see United States v. Bass, 536 U.S. 862, 863-64 (2002), or an evidentiary hearing, see United States v. Webster, 162 F.3d 308, 334 (5th Cir. 1998); Johnson, 2009 WL 1856240, at *5-6; Barnes, 532 F. Supp. 2d at 636-37.

Pleau's Fifth Amendment Grand Jury Clause arguments fare no better. Several federal district courts have held that the grand jury need not be informed that its "special findings" may subject the defendant to the death penalty. See, e.g., United States v. Johnson, No. CR 01-3046-MWB, 2012 WL 5275491, at *5-6 (N.D. Iowa Oct. 25, 2012); United States v. Jacques, No. 2:08-Cr-117, 2011 WL 1675417, at *10 (D. Vt. May 4, 2011), vacated on other grounds, 684 F.3d 324 (2d Cir. 2012); United States v. Haynes, 269 F. Supp. 2d 970, 981 (W.D. Tenn. 2003). Similarly, federal courts of appeals are in agreement that non-statutory aggravating factors are not required to be alleged in the indictment. See United States v. Fell, 531 F.3d 197, 237-38 (2d Cir. 2008); United States v. Mitchell, 502 F.3d 931, 979 (9th Cir. 2007); United States v. Brown, 441 F.3d 1330, 1368 (11th Cir. 2006); United States v. Purkey, 428 F.3d 738, 749-50 (8th Cir. 2005); United States v. Bourgeois, 423 F.3d 501, 507-08 (5th Cir. 2005); United States v. Higgs, 353 F.3d 281, 298-99(4th Cir. 2003). ² The grand jury also was not required to find that the aggravating factors outweigh the mitigating factors sufficiently to justify a death sentence. See, e.g., Purkey, 428 F.3d at 750; Jacques, 2011 WL 1675417, at *11. This proposition finds support in Sampson, where the First Circuit rejected the defendant's argument that the balancing of aggravating and mitigating factors is a fact that must be found by the jury beyond a reasonable doubt. The court explained that "the requisite weighing constitutes a process, not a fact to befound." Sampson, 486 F.3d at 32 (citing Purkey, 428 F.3d at 750).

Pleau's claim that the Court's penalty phase instructions will necessarily be incomprehensible to jurors is premature at this point in the litigation. See, e.g., Jacques, 2011 WL 1675417, at *12; United States v. Llera Plaza, 179 F. Supp. 2d 444, 449-50 (E.D. Pa. 2001). Moreover, the First Circuit has strongly implied that it is possible to craft FDPA instructions that comply with the Constitution. See Sampson, 486 F.3d at 32.

Finally, contrary to Pleau's contentions, district courts have held that the federal death penalty may be constitutionally imposed in states that do not authorize capital punishment. See, e.g., Johnson, 2012 WL 5275491, at *9-11; Jacques, 2011 WL 1675417, at *15-16; United States v. Jacques, No. 2:08-CR-117, 2011 WL 3881033, at *2-6 (D. Vt. Sept. 2, 2011) (denying the defendant's motion for reconsideration).

B. Motion to Strike

Federal courts have repeatedly upheld the statutory and non-statutory aggravating factors alleged by the government in this case. For this reason, the Court denies Pleau's request to strike each of these factors from the notice of intent.

1. Grave risk of death

Two federal courts of appeals have held that the grave risk of death statutory aggravator is not unconstitutionally vague.See United States v. Allen, 247 F.3d 741, 786-87 (8th Cir. 2001) (grave risk of death defined as "a significant and considerable possibility under the circumstances that existed at that time that another person could be killed"), vacated on other grounds, 536 U.S. 953 (2002); United States v. Barnette, 211 F.3d 803, 819 (4th Cir. 2000) (grave risk of death defined as "a significant and considerable possibility" and as placing others in a "zone of danger").³ Here, the government alleges that Pleau discharged a firearm between four and six times in a public place with several people nearby. If proved, these allegations are sufficient to support a finding that Pleau created a grave risk of death to others. See United States v. Robinson, 367 F.3d 278, 289 (5th Cir. 2004) (holding that no rational grand jury could have failed to find probable cause to support this factor where the defendant fired several shots "in a residential neighborhood in close proximity to at least two adolescent eyewitnesses playing on a nearby porch, and across the street from a barbecue attended by at least ten people"); United States v. Diaz, No. CR 05-00167 WHA, 2007 WL 2349286, at *4 (N.D. Cal. Aug. 14, 2007) (finding sufficient evidence to support thisfactor where the government alleged that the defendant "shot a firearm in close proximity to civilians and public-housing units").

2. Pecuniary gain

Similarly, several federal courts of appeals have rejected Pleau's argument that the FDPA's pecuniary gain aggravating factor applies only to "murder-for-hire" situations. See United States v. Bolden, 545 F.3d 609, 615 (8th Cir. 2008); Mitchell, 502 F.3d at 975; Brown, 441 F.3d at 1370. The scope of this aggravator is not, however, broad enough to encompass all murders committed during the course of a robbery. Rather, the...