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United States v. George

United States District Court, E.D. Louisiana

January 28, 2019


         SECTION I

          ORDER & REASONS


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


         The allegations in the superseding indictment are familiar to the Court and were summarized in a previous order.[2] 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] Count three alleges that George and several of his codefendants, “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 was murder because it was committed in perpetration of a robbery.[5]

         The notice of intent includes seven aggravating factors that the government intends to prove at the sentencing hearing to justify a death sentence for George.[6]Five of the aggravating factors are non-statutory: victim impact, lack of remorse, other criminal conduct (a separate armed robbery), other criminal conduct (drug trafficking with a firearm), and other criminal conduct (substantial planning and premeditation with respect to the armed robbery at issue in this case).[7]


         George moves the Court to strike all five non-statutory aggravating factors from the notice of intent. He does not argue the impermissibility of any particular factor. Rather, George argues broadly that the sentencing jury's consideration of non-statutory aggravating factors is improper for three reasons. The Court will address them in turn.


         George first argues that a plain reading of the Federal Death Penalty Act (the “FDPA”), 18 U.S.C. §§ 3591-3598, reveals that the law does not authorize the jury's consideration of non-statutory aggravating factors.[8] His argument rests on a purported conflict between two sections of the FDPA-§ 3592 and § 3591. Section 3592 enumerates aggravating factors that the sentencing jury may consider when determining whether a death sentence is justified. For homicide cases, the FDPA lists sixteen aggravating factors. See § 3592(c). In addition to the sixteen statutory aggravating factors, the FDPA provides that “[t]he jury . . . may consider whether any other aggravating factor for which notice has been given exists.” § 3592(c) (emphasis added). Since the FDPA's inception, courts have permitted sentencing juries to consider non-statutory aggravating factors, so long as notice of such factors has been provided.

         Section 3591 states that a defendant who has been found guilty of certain offenses “shall be sentenced to death if, after consideration of the factors set forth in section 3592[, ] . . . it is determined that imposition of a death sentence is justified.” § 3591(a) (emphasis added). According to George, because non-statutory aggravating factors are not “set forth” in § 3592, the sentencing jury may not consider them in accordance with the procedure provided in § 3591.[9]

         George acknowledges that at least one federal district court has rejected this argument as “hyper-literal.” See United States v. Nguyen, 928 F.Supp. 1525, 1535 (D. Kan. 1996). However, numerous other district courts have also concluded that George's reading of the FDPA is without merit. See, e.g., United States v. Montgomery, 10 F.Supp.3d 801, 821 (W.D. Tenn. 2014) (explaining that “§ 3591(a) does not limit consideration only to the aggravating factors set forth in § 3592, although Congress could have done so”); United States v. Williams, No. 08-70, 1335599, at *20 (M.D. Pa. Mar. 29, 2013) (“[N]on-statutory aggravating factors serve the constitutional need for individualized sentencing because it would be impossible to identify every possible relevant consideration in any given capital case.”); United States v. Diaz, No. 05-167, 2007 WL 656831, at *16 (N.D. Cal. Feb. 28, 2007) (noting that § 3593(e) “requires the jury to weigh ‘all the aggravating factor or factors found to exist'”); United States v. Davis, No. 01-282, 2003 WL 1837701, at *14 (E.D. La. Apr. 9, 2003) (Vance, J.) (“In context, ‘set forth' simply means ‘contained in' or ‘stated in,' and it does not require a particular level of specificity.”). More importantly, the Fifth Circuit has rejected George's “tortured reading of the statute, ” holding that, “[w]hen the statute is read as a coherent whole, the two provisions are not in tension, because § 3592 adequately ‘sets forth' the non-statutory aggravating factors by providing that the jury may consider them.” United States v. Robinson, 367 F.3d 278, 293 (5th Cir. 2004).


         George next argues that non-statutory aggravating factors do not “constitutionally limit and guide the discretion of the jury, ” which allows for arbitrary and capricious death sentences in violation of the Eighth and Fourteenth Amendments.[10] As the Eighth Circuit has explained, however, non-statutory aggravating factors are not intended to limit and guide the jury's ...

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