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 REGARDING MOTION TO PRECLUDE MERCY INSTRUCTION
Before the Court at Docket 706 is the government’s Motion In Limine to
Preclude Evidence or Argument Concerning a Mercy Instruction. Defendant John
Pearl Smith, II responded in opposition at Docket 805. The government replied at
Docket 849.
The government seeks an order precluding the defense “from introducing
an instruction, evidence, or argument that ‘death is never required,’ i.e. a ‘mercy’
instruction.”1 Although federal courts often use the terms “death is never required”
and “mercy” interchangeably, in this Court’s view the terms refer to different jury
instructions. A proper “death is never required” instruction tells a capital
sentencing jury that federal law does not require it to impose a death sentence
even though it has found a defendant guilty of a capital crime, eligible for the death
1 Docket 706 at 2.
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penalty, and is weighing the found aggravating and mitigating factors in the
selection phase. In contrast, a “mercy instruction” tells a capital sentencing jury
that it may consider jurors’ sense of mercy during the selection phase, when the
jury is determining whether to impose a death sentence or a life sentence on a
defendant. Based on the parties’ briefing, it appears that the dispute is about a
“mercy instruction.”2
I. The parties’ positions
The parties agree that mercy plays a role at some point in the jury’s selection
phase deliberative process. They disagree, however, as to when in that process
the jury may consider mercy. The government asserts that the jury may consider
mercy when it is weighing the found aggravating factors against the found
mitigating factors.3 In contrast, Mr. Smith appears to seek to have the jury
instructed that it may consider mercy after it has concluded that the aggravating
factors sufficiently outweigh the mitigating factors so as to justify the death
penalty.4 Mr. Smith appears to adopt the same argument recently made in the
2 Mr. Smith asks the Court to reserve ruling on the issue of a mercy instruction until the parties
have submitted their proposed penalty phase instructions. Docket 805 at 2. The parties have
since filed such proposed instructions, which the Court has reviewed.
3 Docket 706 at 4 (“A sentencing jury may factor in mercy in the context of the balancing process
required during the sentencing phase as outlined in 18 U.S.C. § 3593”); Docket 706 at 6 (“Mercy
is not precluded from entering into the balance of whether the aggravating circumstances
outweigh the mitigating circumstances.”).
4 Mr. Smith’s response to the government’s motion does not present a clear position on this
issue. He cites favorably to cases that both agree with the government’s position and to cases
that disagree with the government’s position. Compare Docket 805 at 6 (citing United States v.
Allen, 247 F.3d 741 (8th Cir. 2001) for the proposition that “[m]ercy is not precluded from
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Eastern District of Louisiana, in which the defendants asserted that “a ‘mercy
instruction’ is an instruction that, even if the jury finds, after the weighing process,
that a death penalty is justified, the jury is permitted to exercise mercy and impose
a life sentence without the possibility of release instead.”5
Thus, the issue before the Court is not whether to instruct the jurors that they
may consider mercy, but how to instruct the jurors as to when they may consider
mercy.6
II. Relevant statutes
The Federal Death Penalty Act (FDPA) sets forth an extensive and specific
process that a court and jury must follow during the penalty stage of a capital trial.
The instant motion requires interpretation of two sections of the FDPA: Sections
3591(a) and 3593(e)(3). Read together, these sections require that during penalty
phase deliberations, a sentencing jury “shall consider whether all the aggravating
factor or factors found to exist sufficiently outweigh all the mitigating factor or
entering into the balance of whether the aggravating circumstances outweigh the mitigating
circumstances”—which is the government’s position) with Docket 805 at 9 (citing United States
v. Duong, Case No. 01-CR-20154, Docket 1488 at 15 (N.D. Cal. Dec. 14, 2010) for the
proposition that “[e]ven if you have unanimously found that the Aggravating Factors sufficiently
outweigh the mitigating factors that a death sentence is justified . . . each of you must still
determine whether to in fact impose a death sentence . . . . You may decline to impose a death
sentence because of mercy or for any reason you deem to be relevant”—which is directly
contrary to the government’s position).
5 United States v. George, Case No. 17-201, 2020 WL 4432276, at *14 (E.D. La. July 31, 2020)
(emphasis in original).
6 The parties have each submitted proposed jury instructions on this issue. See Docket 878 at
15–18 (government’s proposed penalty phase instructions); Docket 879 at 15 (defense’s
proposed penalty phase instructions).
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factors found to exist to justify a sentence of death.”7 Then, “[b]ased upon this
consideration, the jury by unanimous vote . . . shall recommend whether the
defendant should be sentenced to death [or] to life imprisonment without possibility
of release.”8 If, after the jury considers “the factors set forth in section 3592 [the
aggravating and mitigating factors] in the course of a hearing held pursuant to
section 3593, it is determined that imposition of a sentence of death is justified,”
then the defendant “shall be sentenced to death.”9 Stated plainly, the deliberating
jury must weigh the found aggravating factors against the found mitigating
factors—these appear to be the only considerations contemplated by the FDPA.
If the jury unanimously finds, after weighing, that the aggravating factors
“are sufficient” to justify a death sentence, then it shall so recommend, and the
court will impose such a sentence.10
III. Statutory interpretation
The Court has reviewed the statutory interpretation analyses made by other
federal courts considering a mercy instruction. In 2001, the Eighth Circuit reviewed
sections 3591(a) and 3593(e) and concluded that “[b]ased upon the plain language
7 18 U.S.C. § 3593(e)(3). The FDPA also provides that if no mitigating factor is found to exist,
the jury shall consider “whether the aggravating factor or factors alone are sufficient to justify a
sentence of death.” 18 U.S.C. § 3593(e)(3).
8 18 U.S.C. § 3593(e)(3) (emphasis added).
9 18 U.S.C. § 3591(a) (emphasis added).
10 18 U.S.C. § 3594.
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of the statute, once a jury makes a final, unanimous determination that a sentence
of death is justified, then the FDPA requires its imposition.”11 The Eighth Circuit
found that it would be inconsistent with the FDPA “as a whole” to instruct the jury
that it could determine that the weight of the aggravating factors was sufficient to
justify a death sentence, but then use mercy to reject a death sentence.12 This
Court agrees with the Eighth Circuit’s statutory interpretation analysis.
In 2003, the Western District of Tennessee considered an FDPA defendant’s
request for a mercy instruction in United States v. Haynes.13 The District Court
undertook an extensive analysis of both the statutory construction of the FDPA
and its legislative history. The Haynes Court determined that, after the jury has
found that certain aggravating factors and mitigating factors are proven, the jury
then “must not only weigh the aggravating versus mitigating factors but also
determine whether the result, no matter how imbalanced the scale might be, is
sufficient to justify a sentence of death.”14 The Haynes Court thus expressly
differentiated between the result of the weighing process (i.e., that the found
aggravating factor(s) outweigh the found mitigating factor(s)) and the subsequent
11 United States v. Allen, 247 F.3d 741, 780 (8th Cir. 2001), vacated on other grounds by Allen v.
United States, 536 U.S. 953 (2002), reaffirmed in United States v. Ortiz, 315 F.3d 873 (8th Cir.
2002).
12 Id. at 780–81.
13 265 F. Supp. 2d 914 (W.D. Tenn. 2003).
14 Id. at 916.
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determination of whether that weighing result was sufficient to justify a sentence
of death (i.e., that the found aggravating factor(s) sufficiently outweigh the
mitigating factor(s) to justify a sentence of death).15 The Haynes Court found that
the FDPA gives jurors discretion—including the discretion to consider mercy—up
to the point in the process when it has unanimously determined that the found
aggravating factor(s) sufficiently outweigh the found mitigating factor(s) so as to
justify a sentence of death.16 Only once it has determined that does the jury lose
discretion to consider mercy. Finally, the Haynes Court’s review of the legislative
history of the FDPA led it to conclude that
both branches of Congress expressly considered, and ultimately
rejected, statutory language which mandates imposition of the death
penalty once the jury found that aggravating factors outweigh any
mitigating factors. Instead, Congress adopted language allowing
juries to exercise discretion to reject imposing a death sentence even
if aggravating factors outweighed mitigating factors should this
imbalance not be “sufficient” to “justify” a death sentence.17
This Court agrees with the Haynes Court’s reasoning that the FDPA requires the
jury to consider whether the found aggravating factor(s) outweigh the found
mitigating factor(s), but also separately requires the jury to determine if the result
15 Id. (“§§ 3591(a) and 3593(e), when read together, require the jury to 1) weigh or deliberate
over the balance of the aggravating versus mitigating factors; and then 2) find whether, based
on that weighing process, any imbalance in favor of a death sentence is sufficient to justify the
death penalty.”).
16 Id. (“[O]nce each juror has decided whether any imbalance is sufficient enough to justify a
death sentence, they have ‘determined’ whether the death sentence, life without parole, or some
other sentence shall be imposed and their job is finished.”).
17 Id. at 919.
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of that weighing is sufficient to justify a sentence of death. The jury may consider
mercy until it has completed this process, at which point it “shall” recommend a
sentence.18
In 2010, the Fourth Circuit considered the same issue, noting that “[t]he
issue turns on how the decision whether to select the death penalty rather than a
life sentence should be made according to 18 U.S.C. §§ 3591 and 3593(e).”19 The
Fourth Circuit took a more simplified approach and reasoned that the phrase
“based on this consideration”20 in § 3593(e) refers to the determination of whether
a death sentence is sufficiently justified, and that if such a determination is made,
the defendant “shall be sentenced to death.”21 Thus, the Fourth Circuit held that
the defense’s interpretation of the statutes—that the jury may use mercy to justify
a life sentence despite already finding that the aggravating factors sufficiently
outweighed the mitigating factors—was “legally incorrect.”22
18 18 U.S.C. § 3593(e). Notably, the government’s proposed instruction reflects this same
analysis, reading in relevant part:
“You are called upon to make a reasoned judgment, based upon all the evidence before you, as
to whether the death penalty is the appropriate punishment for the defendant, or whether the
defendant should be sentenced to life imprisonment without the possibility of release. Please
understand, however, that a sentence of death is never mandatory under the law. Thus, even if
you find that the aggravating factors outweigh any mitigating factor or factors, or in the absence
of any mitigating factors, you may still find that the aggravating factors alone are not sufficient to
justify a sentence of death and return a verdict in favor of life imprisonment without the
possibility of release.” Docket 878 at 18 (emphasis added).
19 United States v. Caro, 597 F.3d 608, 632 (4th Cir. 2010).
20 18 U.S.C. § 3593(e).
21 United States v. Caro, 597 F.3d 608, 632–33 (4th Cir. 2010).
22 Id.. See also United States v. Lighty, 616 F.3d 321, 367 (4th Cir. 2010) (“Lighty’s proposed
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The Tenth Circuit does not appear to have addressed this issue; however,
it is addressed in the Tenth Circuit’s Pattern Jury Instructions for FDPA cases. The
jury instructions comment agrees with the Eighth Circuit and the Hayes Court’s
conclusions that the jury’s determination that aggravating factor(s) sufficiently
outweigh mitigating factor(s) so as to justify a sentence of death cannot be altered
by then considering mercy “is strongly supported, if not dictated, by the terms of
§3591(a), which states that the defendant ‘shall be sentenced to death if, after a
consideration of the factors set forth in section 3592 in the course of a hearing
pursuant to section 3593, it is determined that imposition of a sentence of death is
justified.”23 The pattern jury instructions thus reflect that the consideration of mercy
must be “tied to the weighing process” and “the jury just should not be instructed
in a way that suggests that once they have concluded that their discretionary
weighing of aggravating and mitigating circumstances directs a death sentence,
they retain some last reservoir of essentially undirected discretion to withhold the
penalty that they have unanimously found should be imposed under the § 3593(e)
scheme.”24
language would have allowed the jury to impose a life sentence after it found the death
sentence justified under § 3591. However, under Caro, once the jury concludes a death
sentence is justified under § 3591, it must impose the death penalty.”).
23 Tenth Circuit Pattern Crim. Jury Instructions, Comment to § 3.02 (2018) (emphases in
original).
24 Tenth Circuit Pattern Crim. Jury Instructions, Comment to § 3.02 (2018).
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The Court similarly concludes that the text of the FDPA forecloses
instructing jurors that they may consider mercy to alter their determination that the
aggravating factors sufficiently outweigh the mitigating factors to justify a sentence
of death; accordingly, mercy can only be considered during (1) the weighing
process and (2) the determination of whether the outcome of the weighing process
sufficiently favors the death penalty so as to justify a sentence of death.25 This
Court disagrees with the jury instruction given in United States v. Duong, which
told jurors that “[e]ven if you have unanimously found that the Aggravating Factors
sufficiently outweigh the Mitigating Factors that a death sentence is justified . . .
each of you must still determine whether to in fact impose that sentence.”26
IV. A “death is never required” instruction
The Court concludes that a juror is never required to find that aggravating
factors sufficiently outweigh mitigating factors as to justify the death penalty and
25 See Kansas v. Carr, 136 S. Ct. 633, 642 (2016) (“And of course the ultimate question whether
mitigating circumstances outweigh aggravating circumstances is mostly a question of mercy . . .
.”). This Court notes that in United States v. Mikhel, the Ninth Circuit disallowed a capital
defendant from introducing his cousin’s plea that the jury be merciful. 889 F.3d 1003, 1062–63
(9th Cir. 2018). In doing so, the Ninth Circuit stated that the cousin’s plea for mercy “was
essentially an opinion about what the jury’s verdict should be” and “did not bear on Mikhel’s
character, prior record, or the circumstances of his offense.” Id. at 1063. This Court
distinguishes between a witness’s plea for mercy, which is addressed in the order at Docket
922, and jurors’ considerations of mercy, which are permissible.
26 Docket 805 at 9 (quoting United States v. Duong, Case No. 01-CR-20154, Docket 1488 at 15
(N.D. Cal. Dec. 14, 2010)). See United States v. Sampson, 335 F. Supp. 2d 166, 240 (D. Mass.
2004) (“[R]ather then treating the weighing process as a prerequisite to imposing the death
penalty based on some additional undefined criteria [such as mercy], the court, in essence,
instructed the jurors that the weighing process was the criteria by which they were to determine
if death was the appropriate sentence.”).
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that a juror may consider mercy during this weighing process.27 As to the parties’
arguments that “death is never required,” the Court intends that the jury
instructions will clearly convey that a juror is not required to find that aggravating
factors sufficiently outweigh mitigating factors, even if they have found Mr. Smith
guilty of capital murder in the guilt phase of trial and have found him eligible for the
death penalty in the eligibility phase of trial and regardless of whatever aggravating
and mitigating factors have been found by the jury. The Court reserves ruling on
precisely what language it will adopt for this so-called “death is never required” jury
instruction and for a “mercy” instruction.
CONCLUSION
In light of the foregoing, the motion at Docket 706 is GRANTED IN PART
and DENIED IN PART as discussed above.
DATED this 7th day of October, 2020, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
27 See United States v. Sampson, 335 F. Supp. 2d 166, 239 (D. Mass. 2004) (“[T]here are no
circumstances in which the law [FDPA] mandates that a juror find that the aggravating factors
sufficiently outweigh the mitigating factors to justify a sentence of death . . . .”).
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