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United States v. George

United States District Court, E.D. Louisiana

February 11, 2019


         SECTION I

          ORDER & REASONS


         Before the Court is defendant Lilbear George's (“George”) motion[1] to declare the Federal Death Penalty Act and the death penalty unconstitutional.[2] 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 George.[3] 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).[4]

         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).


         George moves the Court to declare both the death penalty, generally, and the FDPA, specifically, unconstitutional. In support of his motion, he makes several arguments, many of which are foreclosed by Fifth Circuit precedent-which the Court will address in turn.


         George first argues that the FDPA fails to provide jurors with a structure that permits them to make a reasoned choice in sentencing, violating both a defendant's Fifth Amendment right to due process and a defendant's Sixth Amendment right to trial by an impartial jury.[5] In Furman v. Georgia, 408 U.S. 238, 239-40 (1972), the United States Supreme Court struck down states' capital-sentencing schemes as cruel and unusual.[6] Furman concluded that “state capital-sentencing schemes allowing the death penalty to be ‘wantonly and . . . freakishly imposed' by permitting unbridled discretion in sentencing violated the Eighth and Fourteenth Amendments.” Nelson v. Quarterman, 472 F.3d 287, 293 (5th Cir. 2006) (quoting Furman, 408 U.S. at 310 (Stewart, J., concurring)).

         Furman effectively abolished the death penalty as it was administered in the United States at that time.[7] In response, states revised their death penalty statutes to restrict the classes of death-eligible defendants and channel sentencing jurors' discretion. Id. at 293.

The immediate post-Furman Supreme Court cases addressing [Texas's] and other sentencing schemes attempted to strike a balance between satisfying two competing constitutional requirements-the requirement of “individualized sentencing” that takes into account the unique facts of each case and each defendant, and the requirement of preventing the arbitrary imposition of the death penalty that can result from giving the sentencer unfettered discretion.


         Four years after Furman, the Supreme Court revived the death penalty, holding that it was not per se unconstitutional. See Gregg v. Georgia, 428 U.S. 154, 195 (1976). The Supreme Court explained that “the concerns expressed in Furman that the penalty of death not be imposed in an arbitrary or capricious manner can be met by a carefully drafted statute that ensures that the sentencing authority is given adequate information and guidance.” Id. 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). As the government correctly notes, 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.

United States v. Jones, 132 F.3d 232, 248-49 (5th Cir. 1998); 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. Sampson, 486 F.3d 13, 24 (1st Cir. 2007) (“[T]he FDPA fully meets the requirements of guided discretion, suitably directing and limiting the leeway afforded to the decisionmakers.”); United States v. Webster, 162 F.3d 308, 355 (5th Cir. 1998) (characterizing § 3591(a) as a “gatekeeping function”).

         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.”).

         George cites an ongoing study, the Capital Jury Project, to argue that, over time, and despite attempts to comply with Gregg, jurors' decision-making in capital sentencing has proven arbitrary and confused.[8] He also cites to several cases from outside the Fifth Circuit that supposedly demonstrate that the FDPA operates in an arbitrary and capricious manner.[9] However, the Fifth Circuit has upheld both the constitutionality of the death penalty, generally, and the constitutionality of the FDPA. See Jones, 132 F.3d at 252-53 (5th Cir. 1998); United States v. Robinson, 367 F.3d 278, 291 (5th Cir. 2004); 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”).[10] Further, as recently as 2015 the Supreme Court explained that “it is settled that capital punishment is constitutional.” Glossip v. Gross, 135 S.Ct. 2726, 2732 (2015); see also United States v. Quinones, 313 F.3d 49, 52 (2d Cir. 2002) (“[T]o the extent the defendants' arguments rely upon the Eighth Amendment, their argument is foreclosed by the Supreme Court's decision in Gregg v. Georgia . . . .”).[11]

         In a related argument, George argues that the facts of this case illustrate that the discretion of jurors to impose the death penalty is insufficiently limited.[12] He notes that, although he is alleged to have participated in a robbery that resulted in the death of Hector Trochez, he is not charged with actually killing Hector Trochez and that, consequently, he falls outside the category of defendants for whom a death sentence is warranted.[13] Specifically, George argues that “the two factors of [(1) his] alleged role in an armored car robbery and [(2)] his alleged motivation of pecuniary gain, if proven by the government, would place him outside of the kind of criminal conduct which the Supreme Court considers to be proportionately punished by the death penalty.”[14]

         However, the FDPA sufficiently safeguards against the imposition of the death penalty absent the requisite culpability. As discussed herein, the sentencing jury cannot consider recommending the death penalty unless it first finds beyond a reasonable doubt the existence of one of four statutory intents. See 18 U.S.C. § 3591(a)(2); Webster, 162 F.3d at 322 (“The FDPA . . . limit[s] even the possibility of a death sentence to those defendants with sufficient culpability.”). According to the notice of intent, with respect to George, the government intends to prove two of the statutory intent factors: that George “intentionally participated in an act, contemplating that the life of a person would be taken or intending that lethal force would be used in connection with a person” and that George “intentionally and specifically engaged in an act of violence, knowing that the act created a grave risk of death to a person . . . such that participation in the act constituted a reckless disregard for human life.”[15]

         If the sentencing jury does not unanimously find beyond a reasonable doubt the existence of at least one of the requisite mental states, the jury's deliberations are complete, and the death penalty may not be imposed. The fact that the government intends to prove additional aggravating factors if the jury deems George death-eligible does not conflict with or contradict the government's allegations as to George's mental state at the time of the alleged offense. A person can rob an armored truck for money and simultaneously participate in an act either contemplating that someone would die or knowing that a grave risk of death would occur. George's argument is without merit.


         George next argues that the FDPA is unevenly applied and discriminates against minorities in violation of the Eighth Amendment's prohibition against arbitrariness and the Fifth Amendment's due process protections.[16] He relies on a congressional report and a journal article, both of which suggest ...

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