USA v. Smith et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
v.
JOHN PEARL SMITH, II,
Defendant.
Case No. 3:16-cr-00086-SLG-1
ORDER RE: MOTION TO STRIKE NON-STATUTORY AGGRAVATORS
Before the Court at Docket 292 is Defendant John Pearl Smith, II’s Motion to Strike
All Non-Statutory Aggravating Factors in Their Entirety. 	The Government filed an
opposition.1 Mr. Smith did not file a reply.
Mr. Smith’s facial challenge to the Federal Death Penalty Act (FDPA) consists of
three arguments: First, he maintains that the plain text of the FDPA does not authorize
the Government “to utilize non-statutory aggravating factors in pursuit of a death
sentence.”2 	Second, he asserts that the FDPA’s “standardless procedure creates an
impermissible risk that the death penalty will be imposed arbitrarily and capriciously,” in
violation of the Eighth Amendment and Fourteenth Amendment.3 Third, he argues that
1 Docket 315.
2 Docket 292 at 5.
3 Docket 292 at 8.
Case 3:16-cr-00086-SLG Document 390 Filed 03/28/19 Page 1 of 11

Case No. 2016-cr-00086-SLG, United States v. Smith
Order Re: Motion to Strike Non-Statutory Aggravators
Page 2 of 11
“permitting the Justice Department to insert non-statutory aggravating factors that are
necessary elements to the charged crime violates the ex post facto clause.”4
I. 	The text of the FDPA does not prohibit the use of non-statutory
aggravating factors.
Mr. Smith asserts that the plain language of the FDPA prohibits non-statutory
aggravating factors. 	Specifically, he claims that “§ 3592(c) of the [FDPA] contradicts §
3591(a) of the statute.”5 18 U.S.C. § 3591(a) states that a defendant may be sentenced
to death “after consideration of the factors set forth in section 3592. . . .” 	Mr. Smith
maintains that because section 3592 only sets forth statutory aggravating factors, section
3591(a) limits the Government to those statutory factors, and non-statutory factors are
not permitted.6 In contrast, section 3592(c) states that a jury “may consider whether any
other aggravating factor for which notice has been given exists,” without limitation on the
type of aggravating factor. Although not expressly argued, Mr. Smith presumably asserts
that the specific limitation in section 3591—“after consideration of the [statutory] factors
set forth in section 3592”—nullifies the broader provision in section 3592(c).
The Government does not address Mr. Smith’s textual argument but emphasizes
that non-statutory aggravators have been upheld by the Supreme Court and circuit
courts.7
4 Docket 292 at 12.
5 Docket 292 at 6.
6 Docket 292 at 6–7.
7 Docket 315 at 4–6 (citing Simmons v. South Carolina, 512 U.S. 154 (1994); Zant v. Stephens,
462 U.S. 862 (1983); Barclay v. Florida, 463 U.S. 939 (1983) (Stevens, J., concurring); United
States v. Bolden, 545 F.3d 609 (8th Cir. 2008); United States v. Robinson, 367 F.3d 278 (5th Cir.
2004); and United States v. Higgs, 353 F.3d 298 (4th Cir. 2003)).
Case 3:16-cr-00086-SLG Document 390 Filed 03/28/19 Page 2 of 11

Case No. 2016-cr-00086-SLG, United States v. Smith
Order Re: Motion to Strike Non-Statutory Aggravators
Page 3 of 11
Courts that have considered this exact argument have concluded that it is without
merit.8 In United States v. Llera Plaza, the district court determined that although section
3591(a) “affirmatively directs the sentencer to include statutory factors in its calculus . . .
it does not prohibit the sentencer from including non-statutory factors as well—or for that
matter, mitigating factors. 	Simply because consideration of one type of factor is
mandated does not mean that consideration of other types of factors is precluded.”9 This
distinction between mandatory consideration of statutory factors and non-mandatory
consideration of non-statutory factors is bolstered by the FDPA’s requirement that before
a defendant becomes eligible for the death penalty, the jury must find at least one
statutory aggravating factor beyond a reasonable doubt.10 	In contrast, the jury could
impose the death penalty without finding any non-statutory factors.11
Further, interpreting section 3591(a) to exclude any consideration of non-statutory
factors would nullify section 3592(c)’s permission to consider “whether any other
aggravating factor for which notice has been given exists.” 	Statutes “should not be
construed so as to render any provision of that statute meaningless or superfluous.”12
8 See United States v. George, No. CR 17-201, 2019 WL 343186, at *2 (E.D. La. Jan. 28, 2019)
(listing cases so holding).
9 179 F. Supp. 2d 444, 459 (E.D. Penn. 2001).
10 Id.
11 18 U.S.C. § 3593(d).
12 Llera Plaza, 179 F. Supp. 2d at 459 (citing Beck v. Prupis, 529 U.S. 494, 506 (2000)); see
also Robinson, 367 F.3d at 293 (defendant’s “tortured reading” of FDPA ignored rules of
statutory construction: “When 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.”).
Case 3:16-cr-00086-SLG Document 390 Filed 03/28/19 Page 3 of 11

Case No. 2016-cr-00086-SLG, United States v. Smith
Order Re: Motion to Strike Non-Statutory Aggravators
Page 4 of 11
In United States v. Cheever, the district court pointed to other portions of the FDPA
that presume the use of non-statutory aggravating factors in a capital sentencing. Section
3593(a) “expressly mentions victim impact evidence . . . . Since this aggravating factor is
not 	expressly 	enumerated 	in 	section 	3592(c), 	it 	is 	obvious 	that 	section 	3593(a)
contemplates the use of what is generally referred to as non-statutory aggravating
factors.”13 Similarly, section 3593(d) requires special findings “identifying any aggravating
factor factors set forth in section 3592 found to exist and any other aggravating factor for
which notice has been provided under subsection (a) found to exist.”14
Mr. Smith maintains that the FDPA’s provision for appellate review reinforces that
non-statutory aggravators may not be considered by a jury because the provision “makes
reference only to aggravating factors considered by the jury under § 3592.”15 The FDPA
provides that “[t]he court of appeals shall address . . . whether the evidence supports the
special finding of the existence of an aggravating factor required to be considered under
section 3592.”16 However, the appellate review is not as narrow as Mr. Smith suggests:
The FDPA “provides unlimited review for the appellate court”17 because it requires the
appellate court to “review the entire record in the case” and “address all substantive and
13 423 F. Supp. 2d 1181, 1208 (D. Kan. 2006).
14 Id. (emphasis in original); see also United States v. Umana, 707 F. Supp. 2d 621, 630 (W.D.
N.C. 2010) (rejecting defendant’s identical argument because sections 3592(c) and 3593(d)
authorize jury to consider non-statutory aggravating factors).
15 Docket 292 at 7 n. 3 (citing 18 U.S.C. § 3595).
16 18 U.S.C. § 3595(c)(1).
17 United States v. Frank, 8 F. Supp. 2d 253, 271 (S.D. N.Y. 1998) (emphasis in original) (holding
the FDPA provides meaningful appellate review of death sentences).
Case 3:16-cr-00086-SLG Document 390 Filed 03/28/19 Page 4 of 11

Case No. 2016-cr-00086-SLG, United States v. Smith
Order Re: Motion to Strike Non-Statutory Aggravators
Page 5 of 11
procedural issues raised on the appeal of a sentence of death.”18 	The appellate court
may remand a case for two enumerated reasons or if the trial “involved any other legal
error requiring reversal of the sentence . . . .”19 	Although review of the statutory
aggravating factors is mandated, nothing prevents an appellate court from also reviewing
non-statutory aggravating factors.
The reasoning of Llera Plaza and Cheever is persuasive. 	The FDPA, read in
whole, contemplates that the jury may consider non-statutory aggravating factors for
which the Government has given notice.20
II. 	The FDPA’s procedure does not create an impermissible risk that the
death penalty will be imposed arbitrarily and capriciously.
Mr. Smith next asserts that allowing the use of non-statutory aggravating factors
authorizes “the Government to unilaterally expand the list of aggravating factors on a
case-by-case basis . . . .” despite the FDPA’s lack of guidance in selecting these factors.21
Mr. Smith maintains that this “injects impermissible randomness into the process” in
violation of the Eighth Amendment’s requirement that capital sentencing decisions be
18 18 U.S.C. § 3595(b), (c)(1).
19 18 U.S.C. § 3595(c)(2)(c).
20 Cf. United States v. Mitchell, 502 F.3d 931, 980 (9th Cir. 2007) (summarily stating that “the
FDPA authorizes consideration of non-statutory aggravating factors” although not considering
textual argument); Babbitt v. Calderon, 151 F.3d 1170, 1178 (9th Cir. 1998), as amended Aug.
27, 1998 (considering California state sentencing and noting that “[n]othing in the Constitution
limits the consideration of nonstatutory aggravating factors”).
21 Docket 292 at 8.
Case 3:16-cr-00086-SLG Document 390 Filed 03/28/19 Page 5 of 11

Case No. 2016-cr-00086-SLG, United States v. Smith
Order Re: Motion to Strike Non-Statutory Aggravators
Page 6 of 11
made using clear and defined standards to avoid arbitrary and capricious application of
the death penalty.22
The Government responds that “non-statutory aggravators are not required to
narrow the class of murderers eligible for the death penalty . . . . Non-statutory
aggravators individualize the selection of the appropriate sentence by calling the jury’s
attention 	to 	the 	individualized 	circumstances 	of 	the 	crime 	and 	character 	of 	the
defendant.”23
The Supreme Court has recognized that there is some incongruity between the
need in the eligibility phase to limit and guide the jury’s discretion to avoid arbitrary death
sentences and the need in the selection phase to give the jury as much relevant
information as possible so that it makes an individualized determination of the appropriate
penalty.24 	The factors used in the eligibility phase—the gateway intent and statutory
aggravating factors—“perform the constitutional narrowing function”25 	by “fulfill[ing] the
role of limiting and guiding a jury’s discretion in making the eligibility decision.”26 Once a
defendant has been found eligible for the death penalty, the Constitution’s narrowing
requirement has been met.27
22 Docket 292 at 7–9.
23 Docket 315 at 7.
24 Tuilaepa v. California, 512 U.S. 967, 973 (1994).
25 Brown v. Sanders, 546 U.S. 212, 216 n. 2 (2006).
26 United States v. Allen, 247 F.3d 741, 757 (8th Cir. 2001), vacated on other grounds, 536 U.S.
953 (2002).
27 Brown v. Sanders, 546 U.S. at 216.
Case 3:16-cr-00086-SLG Document 390 Filed 03/28/19 Page 6 of 11

Case No. 2016-cr-00086-SLG, United States v. Smith
Order Re: Motion to Strike Non-Statutory Aggravators
Page 7 of 11
Non-statutory aggravating factors are used only in the selection portion of capital
sentencing, after a defendant has already been found eligible for the death penalty.28
They “are not intended to limit or guide the jury’s discretion.”29 The selection portion of
capital sentencing emphasizes “an individualized determination on the basis of the
character of the individual and the circumcenters of the crime.”30 	At this stage, “the
sentencer may be given unbridled discretion in determining whether the death penalty
should be imposed.”31 	Non-statutory aggravating factors are thus solely used to
determine who amongst death-eligible defendants should be sentenced to the death
penalty. 	Accordingly, the Supreme Court has permitted the use of non-statutory
aggravating factors to promote individualized sentencing.32
However, non-statutory aggravators are not entirely unregulated. The Ninth Circuit
has recognized that “there are a number of limitations on the government’s power to
pursue non-statutory aggravators.”33 The selection factors must still meet procedural and
constitutional requirements before they may be considered by a jury.34 The Government
28 18 U.S.C. § 3593(e); Mitchell, 502 F.3d at 979.
29 United States v. George, No. CR 17-201, 2019 WL 343186, at *2 (E.D. La. Jan. 28, 2019)
(citing Allen, 247 F.3d at 747).
30 Tuilaepa v. California, 512 U.S. 967, 972 (1994) (emphasis in original).
31 Id. at 979–80 (internal quotation omitted); Mitchell, 502 F.3d at 977 (“once [defendant]
became death eligible, all of the aggravating factors—statutory and non-statutory alike—and all
of the mitigating factors were thrown into the pot to be weighed by the jury as it saw fit.”).
32 Zant v. Stephens, 462 U.S. 862, 878–79 (1983) (“[T]he Constitution does not require the jury
to ignore other [non-statutory] possible aggravating factors in the process of selecting, from
among that class [of persons eligible for the death penalty], those defendants who will actually
be sentenced to death.”).
33 Mitchell, 502 F.3d at 979.
34 Tuilaepa, 512 U.S. at 973.
Case 3:16-cr-00086-SLG Document 390 Filed 03/28/19 Page 7 of 11

Case No. 2016-cr-00086-SLG, United States v. Smith
Order Re: Motion to Strike Non-Statutory Aggravators
Page 8 of 11
must give advance notice of the factors it intends to try and prove in the sentencing
phase.35 The factors are invalid if they are unconstitutionally vague.36 They also cannot
be so overbroad that a jury could find the factor applies to every defendant eligible for the
death penalty.37 A factor must be relevant and can be excluded “if its probative value is
outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading
the jury.”38
If the Government selects non-statutory aggravating factors that violate these
requirements, they may be struck from the notice of intent. The federal government does
not have unlimited authority to create and present non-statutory aggravating factors.39
III. 	The use of non-statutory aggravating factors in the Notice of Intent
does not violate the Ex Post Facto Clause.
Mr. Smith next asserts that non-statutory aggravating factors are elements of the
charged homicides, and “permitting the Justice Department to insert . . . necessary
elements to the charged crime violates the ex post facto clause.”40 Mr. Smith maintains
that non-statutory aggravators are functionally elements of a capital crime, and thus they
35 18 U.S.C. § 3593(a).
36 Tuilaepa, 512 U.S. at 972.
37 Arave v. Creech, 507 U.S. 463, 474 (1993)); cf. Jones v. United States, 527 U.S. 373, 401
(1999) (plurality opinion) (noting that Supreme Court has not considered what it means for a
selection factor, rather than an eligibility factor, to be overbroad).
38 United States v. Bin Laden, 126 F. Supp. 2d 290 (S.D. N.Y. 2001); 18 U.S.C. § 3593(c).
39 See United States v. Jones, 132 F.3d 232, 239 (5th Cir. 1998) (“the prosecution does not have
carte blanche in devising non-statutory aggravating factors”).
40 Docket 292 at 12. The Ex Post Facto Clause is found at Article I, § 9, clause 3 of the
Constitution (“No bill of Attainder or ex post facto Law shall be passed.”).
Case 3:16-cr-00086-SLG Document 390 Filed 03/28/19 Page 8 of 11

Case No. 2016-cr-00086-SLG, United States v. Smith
Order Re: Motion to Strike Non-Statutory Aggravators
Page 9 of 11
violate the ex post facto clause by changing the definition of the crime or increasing the
punishment. 	He relies on the Supreme Court’s opinions in Apprendi v. New Jersey41,
Ring v. Arizona42, and Hurst v. Florida.43 The Government responds that “[a]ggavating
factors, whether statutory or non-statutory in nature, are neither ‘separate penalties or
offenses,’ nor ‘elements of any offense.’”44 	Thus they do not retroactively change the
definition of the alleged crimes or increase their punishment.45
The Ex Post Facto Clause is triggered by laws that “retroactively alter the definition
of crimes or increase the punishment for criminal acts.”46 	Here, the crime of using a
firearm during and in relation to a crime of violence resulting in murder—alleged in counts
3 through 6—and the crime of using a firearm during and in relation to a drug trafficking
crime resulting in murder—alleged in counts 7 and 8—are defined in 18 U.S.C. § 924(c),(j)
and 18 U.S.C. § 1111. 	These crimes are punishable by death pursuant to 18 U.S.C. §
924(j).
The “elements” that expose a capital defendant to the death penalty are those
elements listed in the substantive statute along with one gateway/threshold intent factor
41 530 U.S. 466, 490, 494 (2000) (holding that any fact that increases the penalty beyond the
statutory maximum is functionally an element of a greater offense and must be submitted to a
jury and proved beyond a reasonable doubt).
42 536 U.S. 584 (2002) (applying Apprendi to capital sentencings).
43 136 S. Ct. 616 (2016) (invalidating Florida’s capital sentencing scheme because it did not
require jury findings to impose death penalty).
44 Docket 315 at 10. However, the Government has also stated that the eligibility factors
(threshold intent and statutory aggravators) “are functionally equivalent to elements of an
offense” for the purposes of being included in an indictment. Docket 315 at 2–3.
45 Docket 315 at 10.
46 Collins v. Youngblood, 497 U.S. 37, 41 (1990).
Case 3:16-cr-00086-SLG Document 390 Filed 03/28/19 Page 9 of 11

Case No. 2016-cr-00086-SLG, United States v. Smith
Order Re: Motion to Strike Non-Statutory Aggravators
Page 10 of 11
and one statutory aggravating factor.47 Only if the jury finds each of those factors beyond
a reasonable doubt is the defendant eligible for the death penalty.48 	Non-statutory
aggravating factors, although defined after the commission of the crime, do not alter the
definition of the crime or increase the possible punishment and thus do not violate the Ex
Post Facto Clause.49 	Hurst did not change these aspects of the FDPA: 	Hurst did not
involve an ex post facto claim, it did not alter the holdings of Apprendi or Ring, and it did
not change non-statutory aggravators into functional elements of a capital crime. Rather,
Hurst held that Florida’s state death penalty scheme violated the Sixth Amendment right
to a jury trial.50 Under the state statute, a jury would issue an advisory sentence, but a
judge would make the findings of fact required to impose the death penalty.51
47 Cheever, 423 F. Supp. 2d at 1207–08 (“[E]ven accepting for sake of argument defendant’s
conclusion that Ring created a new offense of federal capital murder . . . the ‘elements’ of such
a crime would at most include one of the gateway intent factors and one statutory aggravating
factor.”). The jury must also find that the defendant was at least eighteen years old at the time
of the offense. 18 U.S.C. § 3591(a).
48 18 U.S.C. §§ 3591, 3593; Mitchell, 502 F.3d at 979.
49 See Higgs, 353 F.3d at 322 (“[N]onstatutory aggravating factors and mitigating factors are
weighed by the jury to make the individualized determination to impose the death sentence
upon a defendant who has already been found eligible. They do not increase the possible
punishment or alter the elements of the offense.”); Allen, 247 F.3d at 759 (“proposing
nonstatutory aggravating factors to the jury does not in any way alter the definition of the
underlying crime for which Allen was convicted, nor does it increase the punishment to which
Allen is subjected”); see also United States v. George, No. CR 17-201, 2019 WL 343186, at *4
n. 17 (E.D. La. Jan. 28, 2019) (listing cases rejecting argument that selection of non-statutory
factors after the crime has been committed violates Ex Post Facto Clause).
50 136 S. Ct. 616, 624 (2016).
51 Id. at 620.
Case 3:16-cr-00086-SLG Document 390 Filed 03/28/19 Page 10 of 11

Case No. 2016-cr-00086-SLG, United States v. Smith
Order Re: Motion to Strike Non-Statutory Aggravators
Page 11 of 11
In light of the foregoing, IT IS ORDERED that the motion at Docket 292 is DENIED.
DATED this 27th day of March, 2019, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
Case 3:16-cr-00086-SLG Document 390 Filed 03/28/19 Page 11 of 11