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United States v. George

United States District Court, E.D. Louisiana

January 22, 2019

UNITED STATES OF AMERICA
v.
LILBEAR GEORGE

         SECTION I

          ORDER & REASONS

          LANCE M. AFRICK UNITED STATES DISTRICT JUDGE.

         Before the Court is defendant Lilbear George's (“George”) motion[1] to strike the non-statutory aggravating factor “lack of remorse” from the government's notice of intent to seek the death penalty. For the following reasons, the motion is denied.

         I.

         The allegations in the superseding indictment are familiar to the Court and were summarized in a previous order.[2] Under the Federal Death Penalty Act (the “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).

         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). Along with the aggravating factors explicitly set forth in the FDPA, the statute provides that “[t]he jury . . . may consider whether any other aggravating factor for which notice has been given exists.” Id. These “other” factors are referred to as non-statutory aggravating factors. During the selection phase, 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 to determine if a death sentence is appropriate. § 3593(e).

         On August 31, 2018, the government filed its notice of intent to seek the death penalty as to George.[3] The notice of intent states that the 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.”[4] The notice of intent also sets forth the aggravating factors that the government intends to prove at the sentencing hearing to justify a death sentence. One of the non-statutory aggravating factors is titled “Lack of Remorse.” It provides:

[George] has demonstrated a lack of remorse for the capital offenses committed in this case, as indicated by his statements and actions during the course of and following the offenses alleged in the Superseding Indictment, including by [sic] not limited to one or more of the following:
a. [George] stated that if arrested for the offense alleged in Count 3, he would tell police that he stole the vehicle but gave it to someone else;
b. [George] stated that he should have killed someone and then planted his gun on the deceased to divert attention away from himself[.][5]

         George now moves to strike the “lack of remorse” factor and prohibit the government from introducing evidence in support thereof.[6]

         II.

         The United States Supreme Court has held that “the [sentencing jury's] weighing process may be impermissibly skewed if the sentencing jury considers an invalid factor.” See Jones v. United States, 527 U.S. 373, 398 (1999) (citing Stringer v. Black, 503 U.S. 222, 232 (1992)). Several constitutional restrictions guide consideration of whether an aggravating factor is valid.

As the Eighth Amendment prohibits the arbitrary imposition of the death penalty, an aggravating factor must meet two distinct thresholds to pass constitutional muster. First, the factor must not be so broad that it could apply to every murderer potentially eligible for the death penalty. This is because an overbroad aggravator could invite arbitrariness into the capital sentencing decision, in violation of the Eighth Amendment. Consequently, the factor “must perform a narrowing function with respect to the class of ...

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