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United States v. Stone

United States District Court, Ninth Circuit

December 20, 2013

SAMUEL STONE, Defendant.


JOHN C. COUGHENOUR, District Judge.

This matter comes before the Court on Defendant's motion to strike certain non-statutory aggravators. (Dkt. No. 111). Having thoroughly considered the parties' briefing and the relevant record, the Court finds oral argument unnecessary and hereby DENIES the motion for the reasons explained herein.


Defendant, Samuel Stone, is accused of murdering Michael Anita, his cellmate at the time of the alleged crime. The government has given notice that it intends to seek the death penalty. (Dkt. No. 3.) In addition to certain statutory aggravating factors, it gave notice of four non-statutory aggravating factors. ( Id. at 3-4.) Defendant moves to strike three of them:

1) Pattern of Violent Criminal Conduct. The defendant, SAMUEL STONE, from at least age fifteen and continuing into his adult life, engaged in a continuing pattern of violent criminal conduct against other individuals, including, but not limited to, the following: threats of violence towards others, the physical beating of others; and the killing of others.
2) Lack of Remorse. The defendant, SAMUEL STONE, has displayed no remorse for the murder of Michael Anita.
3) Future Dangerousness. The defendant, SAMUEL STONE, poses a continuing danger to others in that he is likely to commit additional acts of violence in any setting against inmates, prison guards and other officials at correctional institutions where he is or will be incarcerated, as evidenced by his past acts of violence and pattern of violence. See Simmons v. South Carolina, 512 U.S. 154, 162-164 (1994).

(Dkt. No. 111, at 2.)[1] Specifically, Defendant contends that the "pattern of violent conduct" and "future dangerousness" factors are unconstitutionally vague, were not intended by Congress to be used as non-statutory aggravating factors, and are outweighed by the risk of unfair prejudice; the "future dangerousness" factor is not a rational basis for the imposition of the death penalty, is too unreliable to serve as an aggravating factor, and undermines the beyond a reasonable doubt standard; and the "lack of remorse" factor would violate Defendant's Fifth, Sixth, and Eighth Amendment rights. (Dkt. No. 111, at 3-14.) Defendant also asks that the Court screen any evidence that the government intends to use to support those factors. The government opposes the motion, arguing that none of the bases of Defendant's motion are sufficient to strike the non-statutory factors. (Dkt. No. 124.)

Defendant filed a reply, emphasizing his request to require the government to provide a "detailed proffer of the evidence and witnesses it intends to present" with respect to future dangerousness and lack of remorse. (Dkt. No. 147, at 2.) The government moved for leave to file a sur-reply, (Dkt. No. 154), which the Court granted, (Dkt. No. 159.) The government filed a sur-reply. (Dkt. No. 155.)


Under the Eighth Amendment, there are "two different aspects of the capital decisionmaking process: the eligibility decision and the selection decision." Tuilaepa v. California, 512 U.S. 967, 971 (1994). "To render a defendant eligible for the death penalty in a homicide case, ... the trier of fact must convict the defendant of murder and find an aggravating circumstance' (or its equivalent) at either the guilt or penalty phase." Id. at 971-72.

The selection decision "determines whether a defendant eligible for the death penalty should in fact receive that sentence." Id. at 972. This requires an individualized determination, considering "relevant mitigating evidence of the character and record of the defendant and the circumstances of the crime." Id. While "statutory aggravating circumstances play a constitutionally necessary function" by "circumscrib[ing] the class of persons eligible for the death penalty.... [t]he Constitution does not require the jury to ignore other possible aggravating factors in the process of selecting, from among that class, those defendants who will actually be sentenced to death." Zant v. Stephens, 462 U.S. 862, 878 (1983). Thus, after the jury finds at least one statutory aggravating circumstance, rendering the defendant eligible for the death penalty, it must still weigh other aggravating and mitigating circumstances, including non-statutory aggravating factors, to determine whether the death penalty should actually be applied in a particular case.

Nonstatutory aggravating factors must be relevant, reliable, not overly broad, and not overly vague. The "relevance" and "reliability" requirements mean that the factor must be "of sufficient seriousness in the scale of societal values to be weighed in selecting who is to live or die, " and also must be "imbued with a sufficient degree of logical and legal probity to permit the weighing process to produce a reliable outcome." United States v. Friend, 92 F.Supp.2d 534, 543 (E.D. Va. 2000). The "overly broad" requirement means that "the circumstance[s] may not apply to every defendant convicted of a murder; it must apply only to a subclass of defendants convicted of murder." Tuilaepa, 512 U.S. at 972. Finally, an aggravating factor is unconstitutionally vague when it does not "channel the sentencer's discretion by clear and objective standards that provide specific and detailed guidance and that make rationally reviewable the process for imposing a sentence of death.'" Lewis v. Jeffers, 497 U.S. 764, 774 (1990) (quoting Godfrey v. Georgia, 446 U.S. 420, 428 (1980)).

A. "Pattern of Violent Criminal Conduct" and "Future Dangerousness" Factors

Defendant moves to strike these two factors on several different grounds. They are addressed in sequence below.

1. Unconstitutional Vagueness

Defendant first argues that the "Pattern of Violent Criminal Conduct" and "Future Dangerousness" factors are unconstitutionally vague. However, apart from the conclusory statement that the factors are unconstitutionally vague, and a discussion of the vagueness standard, Defendant does not actually articulate why he thinks the two aggravators should be stricken on this basis. Moreover, he cites only one case in support of his argument, a case where after dismissing the factor, the court granted the government leave to re-draft the "non-statutory factors in... short declarative sentences.'" United States v. Johnson, 136 F.Supp.2d 553, 561 (W.D. Va. 2001). However, in this case, the government has already provided notice of these two non-statutory aggravating factors in short declarative sentences. ( See Dkt. No. 3, at 3-4).

Finally, there is ample authority upholding these factors or factors very similar to them. See, e.g., Jurek v. Texas, 428 U.S. 262, 274-76 (1976) (upholding future dangerousness as an aggravating factor); California v. Ramos, 463 U.S. 992, 1002-03 (1983) (same); Simmons v. South Carolina, 512 U.S. 154, 164-65 & n.5 (1994) (same, but requiring notification to the jury when a prisoner will be subject to life without parole if not sentenced to death). See also Tuilaepa, 512 U.S. at 976-77 (nonstatutory aggravating factor regarding previous criminal history not unconstitutionally vague); Zant, 462 U.S. at 888 (during a capital penalty phase proceeding, jury is allowed to "take account of a defendant's prior criminal record in making its sentencing determination"). The Court does not find that either of the two factors "is... too vague to provide any guidance to the sentencer.'" Arave v. Creech, 507 U.S. 463, 471 (1993) (quoting Walton v. Arizona, 497 U.S. 639, 654 (1990)). Accordingly, the Court declines to strike it.

2. Congressional Intent

Defendant argues that Congress did not intend for Defendant's future dangerousness and pattern of violent criminal conduct to be considered as aggravating factors, as they are not among the aggravating factors specifically enumerated in the Federal Death Penalty Act. (Dkt. No. 111, at 3.) However, the statute states that, in addition to the listed aggravating factors, the "jury... may consider whether any other aggravating factor for which notice has been given exists." 18 U.S.C. § 3592. Defendant does not address this language in his motion papers, but it appears to invalidate his Congressional intent argument.

As a part of this argument, Defendant argues that the inclusion of future dangerousness and a pattern of violent conduct "is merely piling on and may actually constitute double counting' of aggravating factors." (Dkt. No. 111, at 4.) However, while Defendant contends that the statute already contains "several specific aggravating factors directly related to" the notion of future dangerousness, (Dkt. No. 111, at 4), he does not state which statutory factors are supposedly duplicative of the nonstatutory factors, or argue how they are duplicative. He appears to be arguing only that, under some circumstances, the "future dangerousness" factor might be proven in a manner identical to one or more of the statutory aggravating factors, but he does not say that this case involves such an instance. Nor does Defendant cite to any authority supporting his argument that these particular nonstatutory factors are duplicative of any other factor. Moreover, other courts have rejected this argument. See United States v. Allen, 247 F.3d 741, 789 (8th Cir. 2001) (disagreeing with defendant's argument that the FDPA precludes using prior criminal acts as a nonstatutory aggravating factor because six of the sixteen aggravating factors in the FDPA are based on prior criminal acts), vacated on other grounds, 536 U.S. 953 (2002). The Court declines to strike these factors on the basis of Congressional intent.

3. Rational Basis of Future Dangerousness

Defendant argues that, given the security of the ADX "supermax" facility, there is no rational basis for submitting the future dangerousness factor to a jury. He points to an order requiring that the government, in its revised death notices, "set forth reasons why the government's incarceration facilities and prison-security protocols would be insufficient to neutralize defendants' potential for harm." United States v. Diaz, Case No. CR05-0167-WHA, 2007 WL 656831, at *23 (N.D. Cal. Feb. 28, 2007).

While the Court understands the Diaz court's concerns, the government has mitigated those concerns in this case by discussing its arguments in favor of a finding of future dangerousness. ( See Dkt. No. 124, at 20-21.) In any case, given the widespread and longstanding existence of "supermax" facilities, and the fact that courts have routinely allowed future dangerousness as a factor even in the face of those facilities' existence, the Court does not believe it can strike the future dangerousness factor on this basis. In Simmons, the Supreme Court held that future dangerousness could be used as an aggravating factor even though the defendant in that case would, if not sentenced to death, be subject to a life sentence without the possibility of parole. Simmons, 512 U.S. at 165 n.5. Similar logic, concerning the possibility of safely housing the defendant, governs here. See United States v. Hager, 721 F.3d 167, 199-200 (4th Cir. 2013) (Defendant's argument that his future dangerousness should be mitigated by the fact that he would be incarcerated in a maximum security facility could not be used to strike future dangerousness factor, but could be presented to a jury).

4. Reliability of Future Dangerousness

Defendant argues that the "future dangerousness" factor is unreliable, as a large number of individuals have been sentenced to death on the basis of "future dangerousness, " only to subsequently behave as well or better than other prisoners. ( See Dkt. No. 111, at 6-7). However, the Supreme Court has foreclosed that argument. See Barefoot v. Estelle, 463 U.S. 880, 896-903 (1983) (explaining why expert psychiatric testimony regarding future dangerousness may be submitted to a jury, even taking into consideration the arguments about scientific reliability of that testimony and the factor as a whole). The Supreme Court has repeatedly allowed the submission of the future dangerousness factor to the jury during the penalty phase. "Whether contemporary values dictate a different answer today is for the Supreme Court to decide; the Eighth Amendment does not authorize this court to overrule Supreme Court precedent even where subsequent decisions or factual developments may appear to have significantly undermined the rationale for [an] earlier holding.'" United States v. Mitchell, 502 F.3d 931, 982 (9th Cir. 2007) (quoting Roper v. Simmons, 543 U.S. 551, 594 (2005) (O'Connor, J., dissenting)).

5. Future Dangerousness and Beyond a Reasonable Doubt

Defendant also argues that the future dangerousness factor undermines the beyond a reasonable doubt standard: the prosecution intends to prove that it is "likely" that Defendant will commit future acts of violence, but the prosecution must prove beyond a reasonable doubt that Defendant is a future danger. (Dkt. No. 111, at 7-8.) Once again, the Supreme Court has ruled on this issue, upholding a future dangerousness factor that asked the jury to consider whether the evidence proved beyond a reasonable doubt that there was "a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society." Jurek, 428 U.S. at 267-68. The Court may not rule in a manner contrary to binding Supreme Court precedent, and Defendant offers no arguments for how the Jurek factor is materially different from the factor in this case.

6. "Is Likely To" Commit Future Crimes and Heightened Reliability

Defendant argues that the future dangerousness factor's allegation that Mr. Stone "is likely to" commit future crimes grants the jury "open-ended" discretion, undermining the factor's reliability. However, as noted above, the Supreme Court has repeatedly upheld future dangerousness as an aggravating factor, and has not held that it grants the jury open-ended discretion, or is unconstitutionally vague. See Estelle, 463 U.S. at 884; Simmons, 512 U.S. at 165 n.5; Jurek, 428 U.S. at 274-76; Ramos, 463 U.S. at 1002-03.

7. Future Dangerousness and Pattern of Violent Conduct, and Unfair Prejudice

Defendant argues that the future dangerousness factor and the pattern of violent conduct factor should be stricken because of the risk of unfair prejudice.

This argument echoes Defendant's previous arguments, as it relies on finding that the evidence is of insufficient probative value (and thus is insufficiently "reliable") to justify the risk of unfair prejudice. The "danger of unfair prejudice" test relates to the exclusion of information presented in support of a factor. See 18 U.S.C. § 3593(c) ("[I]nformation may be excluded if its probative weight is outweighed by the danger of creating unfair prejudice."). Here, the Court cannot rule that the risk of prejudice inherent in all information related to these nonstatutory factors must result in the factors being stricken, when the Supreme Court has repeatedly upheld similar factors in the past. See Estelle, 463 U.S. at 884 (future dangerousness); Simmons, 512 U.S. at 165 n.5 (same); Jurek, 428 U.S. at 274-76 (same); Ramos, 463 U.S. at 1002-03 (same); Tuilaepa, 512 U.S. at 976-77 (prior criminal history); Zant, 462 U.S. at 888 ("Nothing in the Constitution prohibits a trial judge from instructing a jury that it would be appropriate to take account of a defendant's prior criminal record in making its sentencing determination.").

B. "Lack of Remorse" Factor

Defendant argues that the "lack of remorse" factor violates his Fifth Amendment right to remain silent and his Sixth Amendment right to trial because it imposes a penalty on the exercise of those rights. He also argues that it is inherently unreliable, and so violates the Eighth Amendment. Specifically, Defendant argues that the "lack of remorse" factor is per se problematic: unless Defendant waives his right to remain silent, apologizing for a crime for which he has no obligation to apologize, he will be punished. Accordingly, Defendant argues that the bare assertion that he has not displayed remorse is sufficient.

The Supreme Court has suggested that "lack of remorse" is an acceptable aggravating factor. See Zant v. Stephens, 462 U.S. 862, 885 n.22 (1983) ("Any lawful evidence which tends to show the motive of the defendant, his lack of remorse, his general moral character, and his predisposition to commit other crimes is admissible in aggravation.'" (quoting Fair v. State, 268 S.E.2d 316, 321 (Ga. 1980))).

Defendant does not point to any cases where lack of remorse was found to be per se unacceptable. Instead, Defendant points to cases where the particular evidence presented by the prosecution was insufficient to prove lack of remorse. See United States v. Roman, 371 F.Supp.2d 36, 50-51 (D.P.R. 2005) (sufficient evidence of lack of remorse found as to one defendant, based on a shopping spree and a "demonstration of his sharpshooting technique in prison, " but insufficient evidence found as to a defendant who merely "slammed his weapon on the pavement in disgust following his attack on the victim"); United States v. Davis, 912 F.Supp. 938, 946 (E.D. La. 1996) ("Without passing on whether lack of remorse is per se an inappropriate independent factor to consider, the court finds it inappropriate in this case. The only information proposed to sustain the factor is DAVIS' alleged jubilation in learning that Kim Groves had been killed."); United States v. Walker, 910 F.Supp. 837, 855 (N.D.N.Y. 1995) (statement by defendant that, while incarcerated, he said that "he and Walter killed the motherf***er'" insufficient to prove lack of remorse).

In this case, the government suggests that it will use Defendant's actions and some of his statements admitting to the crime to prove lack of remorse. Specifically, the government intends to argue that the combination of: 1) the brutal method of the alleged murder, 2) Defendant's statements that nobody controls him and that Mr. Anita needed killing, and 3) certain other statements to the Bureau of Prisons employees, shows that he lacks remorse. (Dkt. No. 124, at 29-30.) This is qualitatively and quantitatively different from the alleged actions in the cases cited by Defendant where "lack of remorse" could not be submitted to the jury.

Accordingly, this Court declines to strike lack of remorse. See United States v. Nguyen, 928 F.Supp. 1525, 1541-42 (D. Kan. 1996) (declining to strike lack of remorse, while cautioning the government that it must support this factor with "more than mere silence"). The Court will not reach the question of what, precisely, the government can and cannot introduce to prove this factor at this time. Defendant's arguments regarding the admissibility of various types of evidence to prove his alleged lack of remorse are not properly raised in a motion to strike.

C. Screen Evidence Regarding Aggravating Factors

Finally, Defendant asks "that the Court require the government to provide prior to trial a detailed proffer of the evidence and witnesses it intends to present to the sentencing jury with respect to future dangerousness in the prison setting and lack of remorse that does not improperly implicate Mr. Stone's Fifth Amendment rights." (Dkt. No. 147, at 2.) Such a screening process is not a proper remedy in a motion to strike aggravating factors. To the extent Defendant is entitled to information held by the government, he may obtain it using the discovery process or a motion for a bill of particulars. In any case, Defendant does not point to any authority permitting the Court to screen all the evidence the government intends to present during the penalty phase. While the Supreme Court has not directly ruled on this issue, [2] the courts that have addressed this issue have held that there is no such right. See, e.g., United States v. LeCroy, 441 F.3d 914, 929 (11th Cir. 2006) (the government "is not required to provide specific evidence in its [§ 3593] notice of intent'" (quoting United States v. Battle, 173 F.3d 1343, 1347 (11th Cir. 1999))); United States v. Higgs, 353 F.3d 281, 325 (4th Cir. 2003) ("The FDPA and the Constitution require that the defendant receive adequate notice of the aggravating factor... not notice of the specific evidence that will be used to support it.").


For the foregoing reasons, Defendant's motion to strike certain nonstatutory aggravating factors, (Dkt. No. 111), is DENIED.

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