The opinion of the court was delivered by: Chief Judge Curtis L. Collier
Before the Court is Defendant Rejon Taylor's ("Defendant") "Motion to Strike and/or Dismiss Sentencing Allegations in the Indictment and Aggravators in the Notice of Intent to Seek the Death Penalty" (Court File No. 166). The government responded to the motion (Court File No. 185) and Defendant filed a reply brief (Court File No. 191). For the following reasons, the Court will GRANT IN PART and DENY IN PART Defendant's motion.
Defendant's memorandum in support of his motion requests the Court to "strike and / or dismiss the sentencing allegations in the Indictment, and the statutory and non-statutory aggravators in the Notice to Seek the Death Penalty as to Rejon Taylor, as in violation of the Fifth, Sixth and Eighth Amendments to the Constitution of the United States (the "Constitution"), and for other reasons" set forth in the memorandum (Court File No. 167, p. 1).
The Fifth Amendment to the Constitution states:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. Specifically, a person can be tried only upon the indictment as found by the grand jury and especially upon its language found in the charging part of the instrument. See Stirone v. United States, 361 U.S. 212 (1960) (holding a variation between pleading and proof deprived petitioner of his right to be tried only upon charges presented in the indictment). Indictments found by grand juries may be amended by the prosecution only in limited circumstances. In Ex Parte Bain, 121 U.S. 1, 12 (1887), the Supreme Court of the United States (the "Supreme Court") held that the indictment could not be changed at all by the prosecution. United States v. Miller, 471 U.S. 130 (1985), partly reversed Ex Parte Bain; now, an indictment's scope may be narrowed by the prosecution. Thus, lesser included charges may be dropped, but new charges may not be added.
The Sixth Amendment to the Constitution reads:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
The constitutional right to be informed of the nature and cause of the accusation entitles the defendant to insist that the indictment apprise him of the crime charged with such reasonable certainty that he can make his defense and protect himself after judgment against another prosecution on the same charge. Bartell v. United States, 227 U.S. 427 (1913); Burton v. United States, 202 U.S. 344 (1906); United States v. Simmons, 96 U.S. 360 (1878); United States v. Cruikshank, 92 U.S. 542, 544, 558 (1876). Finally, the Eighth Amendment to the Constitution reads "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."
II. RELEVANT FACTS AND PROCEDURAL HISTORY
On October 13, 2004, the government filed a four-count indictment (the "Indictment) against Defendant (Court File No.1). The Indictment included six (6) sentencing allegations as to Defendant (Court File No. 1, Pages 5-6, ¶¶ 1, 4, 5, 6, 7 and 8a-c). On June 1, 2006, the government filed its notice of intent to seek the death penalty (the "Notice"). The Notice lists four statutory intent factors*fn1 under 18 U.S.C. §§ 3591(a)(2)(A)-(D) and three statutory aggravating facts*fn2 under 18 U.S.C. §§ 3591(c)(1). All four of the statutory intent factors and statutory aggravating facts one and two were set forth as sentencing allegations in the original indictment presented to the grand jury. The third statutory aggravating fact, substantial planning and premeditation, was not presented to the grand jury in the original indictment.
The Notice also sets forth two main sub-sets of non-statutory aggravating facts under 18 U.S.C. § 3593(a) and (c): (1) "Participation in Additional Uncharged Murders, Attempted Murders, or Other Serious Acts of Violence"; and (2) "Future Dangerousness." As these non-statutory facts relate to Defendant's attempted escape from a detention facility in Chattanooga, Tennessee on April 14, 2006, these facts were not included in the original Indictment presented to the grand jury.
The Federal Death Penalty Act ("FDPA") sets forth the procedure by which the jury must determine punishment under the FDPA. See 18 U.S.C. §§ 3591-3598. This procedure is well-summarized in United States v. Nguyen, 928 F. Supp. 1525, 1532 (D. Kan. 1996):
First, the jury must determine whether [the defendant] had the requisite intent to commit the death eligible offense. 18 U.S.C. § 3591(a). If the jury unanimously finds beyond a reasonable doubt that intent is established, it moves to the next step in the penalty process. If the jury does not so find, the deliberations are over and the death penalty may not be imposed.
Assuming the jury finds the requisite intent, it must then consider the statutory aggravating factors alleged by the government in its notice to seek the death penalty. The statutory aggravating factors from which the government may choose are listed at 18 U.S.C. §§ 3592(c)(1)-[(16)]. The jury must determine whether the government has proven at least one of the statutory factors alleged beyond a reasonable doubt.
18 U.S.C. § 3593(c). If the jury unanimously so finds, it moves to the next step of the penalty process. If not, the deliberations are over and the death penalty ...