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United States v. Ofomata

United States District Court, E.D. Louisiana

February 11, 2019


         SECTION I

          ORDER & REASONS

          Lance M. Africk, United States District Judge.

         Before the Court is defendant Chukwudi Ofomata's (“Ofomata”) motion[1] to strike the death penalty as a possible punishment. The motion requests the following forms of relief: an order striking the government's notice of intent to seek the death penalty as to Ofomata; an order striking the notice of special findings in the superseding indictment;[2] an order requiring that the government produce the grand jury instructions that pertain to the consequences of the jury's special findings; and an order requiring the government to submit an outline with information about the evidence it intends to use to prove the aggravating factors set forth in its notice of intent to seek the death penalty as to Ofomata, followed by a hearing to determine the admissibility of such evidence.[3] For the following reasons, the motion is denied.


         On August 31, 2018, the government filed its notice of intent to seek the death penalty as to Ofomata.[4] 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).[5]

         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 to determine if a death sentence is appropriate. § 3593(e).


         Ofomata offers several arguments in support of his contention that the death penalty is unconstitutional, and he requests various forms of relief-all of which the Court will address in turn.


         Ofomata first argues that over thirty years of experience with the federal death penalty has demonstrated that it operates in an arbitrary and capricious way, in violation of the Eighth Amendment.[6] In support of his position, Ofomata relies on a dissenting opinion from the United States Supreme Court's decision in Glossip v. Gross, in which two justices identified what they considered to be “fundamental constitutional defects” in the modern imposition of the federal death penalty. Glossip, 135 S.Ct. 2726, 2755-56 (Breyer, J. and Ginsburg, J., dissenting). He also relies on another federal district court's finding that the FDPA is imposed and carried out arbitrarily. See United States v. Fell, 224 F.Supp.3d 327, 358 (D. Vt. 2016).

         Notwithstanding the dissent in Glossip and the district court's findings in Fell, the majority of the Supreme Court has expressly provided that “it is settled that capital punishment is constitutional.” Glossip, 135 S.Ct. at 2732. Indeed, in Fell, the district court ultimately concluded that-despite its finding that the death penalty is arbitrarily imposed-it was powerless: “Institutional authority to change this body of law is reserved to the Supreme Court.” Fell, 224 F.Supp.3d at 359.

         Perhaps in an attempt to circumvent such precedent, Ofomata argues that, “if there has been a material change in facts relevant to the Eighth Amendment analysis, ” a district court may reconsider an issue that the Supreme Court has already decided.[7] The Court declines to do so. “Changing forty years of decisional law raises questions that can only be settled by the Supreme Court itself.” Id. at 238-29; see also United States v. Quinones, 313 F.3d 49, 52 (2d Cir. 2002) (noting that, “to the extent the defendants' arguments rely upon the Eighth Amendment, their argument is foreclosed by the Supreme Court's decision in Gregg v. Georgia”)[8]; United States v. Jones, 132 F.3d 132 F.3d 232, 242 (5th Cir. 1998) (“We are bound by Supreme Court precedent which forecloses any argument that the death penalty violates the Constitution under all circumstance.”).

         Moreover, Ofomata has not demonstrated any “material change” that is critical to the Eighth Amendment inquiry and which would warrant this Court's reconsideration of the issue. Ofomata first argues that the FDPA is extremely rare and infrequently imposed, citing Furman v. Georgia, 408 U.S. 238 (1972), which declared the death penalty cruel and unusual in violation of the Eighth and Fourteenth Amendments, as applied by the states at that time. But “[i]n the thirty-four years since Furman was decided, the [Supreme] Court has made clear that its decision was not based on the frequency with which the death penalty was sought or imposed.” United States v. Sampson, 486 F.3d 13, 23 (1st Cir. 2007). “Rather, the primary emphasis . . . has been the requirement that the discretion exercised by juries be guided so as to limit the potential for arbitrariness.” Id. Multiple circuits, including the Fifth Circuit, have held that “the FDPA fully meets the requirements of guided discretion.” See Id. at 24; United States v. Mitchell, 502 F.3d 931, 938 (9th Cir. 2007) (“That federal executions are rare . . . does not render the FDPA unconstitutional.”); Jones, 132 F.3d at 241 (“The FDPA provides sufficient safeguards to prevent the arbitrary imposition of the death penalty.”).

         Ofomata's second argument in support of his request that the Court reevaluate the constitutionality of the death penalty under the Eighth Amendment is that the FDPA is discriminatory-namely, that there are racial and geographical disparities in the way the FDPA is utilized.[9] Ofomata relies on several studies and reports.[10] The Supreme Court, however, has rejected Eighth Amendment claims based on similar statistics:

Because of the risk that the factor of race may enter the criminal justice process, we have engaged in “unceasing efforts” to eradicate racial prejudice from our criminal justice system. . . . Our efforts have been guided by our recognition that “the inestimable privilege of trial by jury . . . is a vital principle, underlying the whole administration of criminal justice[.]
At most, the . . . study indicates a discrepancy that appears to correlate with race. Apparent disparities in sentencing are an inevitable part of our criminal justice system. . . . “[T]here can be ‘no perfect procedure for deciding in which cases governmental authority should be used to impose death.'” . . . Despite these imperfections, our consistent rule has been that constitutional guarantees are met when “the mode [for determining guilt or punishment] itself has been surrounded with safeguards to make it as fair as possible.” . . . Where the discretion that is fundamental to our criminal process is involved, we decline to assume that what is unexplained is invidious.

McCleskey v. Kemp, 481 U.S. 279, 309-13 (1987).

         The Supreme Court in McCleskey refused to accept the results of the study proffered by the defendant as “the constitutional measure of an unacceptable risk of racial prejudice influencing capital decisions.” McCleskey, 481 U.S. at 309. “The statistics submitted by [Ofomata] are no more probative than those rejected in McCleskey.” Sampson, 486 F.3d at 26; see also Fell, 224 F.Supp.3d at 357 (“The current state of the law . . . is that once the required statute is in place and the jury is made the decision-maker, the inquiry into factors such as racial bias, geographical disparity, and other shortcomings in jury decision-making is largely at an end.”).

         “In light of the safeguards designed to minimize racial bias in the process, the fundamental value of jury trial in our criminal justice system, and the benefits that discretion provides to criminal defendants, ” the data submitted by Ofomata “does not demonstrate a constitutionally significant risk of racial bias affecting the [FDPA's] capital sentencing process.”[11] McCleskey, 481 U.S. at 313; see also United States v. Sablan, No. 00-531, 2006 WL 1028780, at *11 (D. Colo. Apr. 18, 2006) (“[B]y requiring juries to consider the individual characteristics of the defendant and specific circumstances of the crime, and thereby narrowing the class of individuals subject to the death penalty, the FDPA in effect recognizes that ‘a consistency produced by ignoring individual differences is a false consistency.'”) (quoting Eddings v. Okla., 455 U.S. 104, 112 (1982)); Sampson, 486 F.3d at 27 (“McCleskey prohibits us from assuming that ‘what is unexplained is invidious.'”) (citation omitted).


         Ofomata also argues that the FDPA is unconstitutional because it fails to provide sentencing juries with a structure that permits them to make a reasoned choice between the death penalty and life imprisonment.[12]

         To comply with federal constitutional requirements, a capital sentencing scheme must: “(1) rationally narrow the class of death-eligible defendants; and (2) permit a jury to render a reasoned, individualized sentencing determination based on a death-eligible defendant's record, personal characteristics, and the circumstances of his crime.” See Kansas v. Marsh, 548 U.S. 163, 173-74 (2006). The FDPA satisfies the foregoing parameters. With respect to the narrowing requirement:

[T]he FDPA requires the jury first to find that the defendant had the requisite intent. 18 U.S.C. § 3591. The FDPA further narrows the jury's discretion with the requirement [that] the jury find at least one statutory aggravating factor prior to recommending the death penalty. See 18 U.S.C. § 3592(c). Thus, the FDPA narrows the jury's discretion through the findings of intent and aggravating factors.

Jones, 132 F.3d at 248-49; see also United States v. Aquart, 912 F.3d 1, 100-03 (2d Cir. 2018) (holding that the FDPA's procedures “adequately channel the sentencer's discretion”) (citations omitted); United States v. Webster, 162 F.3d 308, 355 (5th Cir. 1998) (characterizing § 3591(a) as a “gatekeeping function”); Sampson, 486 F.3d at 24 (“[T]he FDPA fully meets the requirements of guided discretion, suitably directing and limiting the leeway afforded to the decisionmakers.”).

         Then, to ensure that sentencing is reasoned and individualized, “the jury decides whether the aggravating factors sufficiently outweigh statutory or non-statutory mitigating factors to warrant a death sentence or, absent mitigating factors, whether the aggravators alone warrant that sentence.” United States v. Davis, 609 F.3d 663, 673 (5th Cir. 2010); see also United States v. Davis, No. 01-282, 2003 WL 1837701, at *12 (E.D. La. Apr. 9, 2003) (Vance, J.) (“Consideration of aggravating and mitigating factors is the means by which the jury takes into account both the circumstances of the crime and of the criminal before it recommends a sentence.”).

         Ofomata cites several studies, including one that this Court has already rejected as a source of relief, to argue that juries have great difficulty with the guided discretion process.[13] Regardless of the validity of these studies, the argument is foreclosed by precedent that is binding on this Court. See Gregg, 428 U.S. at 195; United States v. Robinson, 367 F.3d 278, 291 (5th Cir. 2004); Jones, 132 F.3d at 252- 53; see also Davis, 2003 WL 1837701, at *12 (finding “that the studies cited by defendant are not sufficient to call into question the constitutionality of the FDPA's sentencing scheme” and “that a jury can be instructed so that it will understand and appropriately apply the FDPA's provisions”).[14]


         Ofomata also argues that the death penalty is contrary to evolving standards of decency in such a way that renders it unconstitutional.[15] As this Court has reiterated, it is bound by the decisions of higher courts. The Second Circuit summarized the significance of the Supreme Court's opinion in Gregg v. Georgia to modern death penalty challenges:

[T]he Supreme Court expressly held in Gregg v. Georgia that capital punishment does not constitute a per se violation of the Eighth Amendment. . . . The Court reached this conclusion despite the petitioner's argument that the death penalty “entail[s] both mistake and caprice, ” and that “some people will be killed wrongly, ” Br. for Petitioner in Gregg at 10a, and despite its own acknowledgment that “[t]here is no question that death as a punishment is unique in its severity and irrevocability.”. . . The Gregg Court was . . . keenly aware of the argument asserted here, that execution terminates any asserted right to the opportunity for exoneration during one's natural life. Despite this awareness, the Court rejected the proposition that capital punishment is unconstitutional per se.

Quinones, 313 F.3d at 67; see also Baze v. Rees, 553 U.S. 35, 61 (2008) (“This Court has ruled that capital punishment is not prohibited under our Constitution . . . .”). Indeed, “the Supreme Court expressly held in Gregg that, to the extent our standards of decency have evolved since the enactment of the Constitution, they still permit punishment by death for certain heinous crimes.” Quinones, 313 F.3d at 61.

         In light of Gregg, the Fifth Circuit has similarly held that the death penalty is not per se unconstitutional. Jones, 132 F.3d at 242 (“We are bound by Supreme Court precedent which forecloses any argument that the death penalty violates the Constitution under all circumstance[s].”).

[The defendant] asks us to invalidate the FDPA on the ground that the death penalty is cruel and unusual punishment, in violation of the Eighth Amendment. He recognizes that this claim is foreclosed by Gregg v. Georgia, . . . but he argues that societal standards of decency have evolved to the point at which imposing the death penalty against an adult murderer has become an intolerably cruel act. . . . We note, however, that it is uncertain whether this court is even empowered to recognize such an evolution in the law, or must instead reserve that question for the Supreme Court. Even assuming we had such a power, Robinson presents no evidence of an evolution in societal standards of decency, and we see no reason to believe that there has emerged a national consensus against capital punishment for defendants who commit crimes that are as depraved as [the defendant's].

Robinson, 367 F.3d at 291. Absent the Supreme Court announcing a change in the law, the Court cannot declare the FDPA unconstitutional based on Ofomata's broad arguments that the death penalty is contrary to changed societal standards.[16]


         Ofomata next argues that the FDPA creates an unacceptable risk of executing the innocent. The Court notes that, although Ofomata frames this argument as a direct challenge to the FDPA, most of the studies, articles, and cases he cites discuss the death penalty generally.

         The terrible possibility that innocent people may be executed under a capital sentencing scheme is not new, and it has been contemplated by both Congress and the Supreme Court. See Quinones, 313 F.3d at 63.

[I]t has been central to the centuries-old debate over both the wisdom and the constitutionality of capital punishment, and binding precedents of the Supreme Court prevent us from finding capital punishment unconstitutional based solely on a statistical or theoretical possibility that a defendant might be innocent.
[T]he Supreme Court has upheld state and federal statutes providing for capital punishment for over two hundred years, and it has done so despite a clear recognition of the possibility that, because our judicial system-indeed, any judicial system-is fallible, innocent people might ...

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