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 BEYOND A REASONABLE DOUBT STANDARD
DURING PENALTY PHASE “WEIGHING”
Before the Court at Docket 701 is the government’s Motion in Limine to
Preclude Argument or Instruction that Beyond a Reasonable Doubt Standard
Applies to Penalty Phase Weighing. Defendant John Pearl Smith, II, responded in
opposition at Docket 792. The government replied at Docket 831.
The government seeks an order precluding the defense “from arguing or
instructing the jury that the beyond a reasonable doubt standard applies to
weighing factors in any penalty phase proceeding.”1 The government relies on the
Ninth Circuit’s decision in United States v. Mitchell2 and the decisions of six other
circuits that have “rejected that argument that a jury must make its selection-phase
decision under [18 U.S.C.] § 3593(e) by applying a beyond a reasonable doubt
1 Docket 701 at 2.
2 502 F.3d 931, 993–94 (9th Cir. 2007).
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standard.”3 Mr. Smith acknowledges the holding in Mitchell but asserts that the
analysis in Mitchell and other decisions is flawed and that the decisions “have been
effectively abrogated by the Supreme Court’s more recent decision in Hurst v.
Florida.”4 Mr. Smith maintains that the jury should be instructed that it must find
beyond a reasonable doubt that aggravating factors outweigh mitigating factors
before it can impose the death sentence.5
Pursuant to the Federal Death Penalty Act (FDPA), if a jury finds a defendant
guilty of a death-penalty eligible crime, the trial then proceeds to the penalty phase.
During the eligibility portion of the penalty phase, the jury considers three factors.6
If the jury finds each of the three factors have been proven beyond a reasonable
doubt, the defendant becomes eligible for the death penalty.7 In that event, the
trial then proceeds to the selection portion of the penalty phase. During the
selection phase, the government presents information in support of aggravating
factors and the defense may present information in support of mitigating factors.
3 Docket 701 at 2 (citing United States v. Mitchell, 502 F.3d 931 (9th Cir. 2007)).
4 Docket 792 at 2–4 (citing Hurst v. Florida, 136 S. Ct. 616 (2016)).
5 Docket 792 at 5–6.
6 The three factors are whether the defendant was at least 18 years old at the time of the
offense, whether the defendant had at least one of four enumerated mental states (referred to
as gateway or threshold intent factors), and whether at least one statutory aggravating factor
exists. See United States v. Mitchell, 502 F.3d 931, 973 (9th Cir. 2007) (citing 18 U.S.C.
§§ 3591(a), 3592(c)).
7 Id.; 18 U.S.C. §§ 3591(a)(2), 3593(c); see also Ring v. Arizona, 536 U.S. 584, 609 (2002)
(extending Apprendi v. New Jersey, 530 U.S. 466 (2000) to capital sentencing and holding that
Sixth Amendment requires jury, not sentencing judge, to find any aggravating factor “necessary
for imposition of the death penalty”).
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The government must prove aggravating factors to a unanimous jury beyond a
reasonable doubt, while the defense must prove any mitigating factors by a
preponderance of the information to at least one juror.8 After aggravators and
mitigators are found to exist, the jury
shall consider whether all of the aggravating factor or factors found to
exist sufficiently outweigh all the mitigating factor or factors found to
exist to justify a sentence of death, or, in the absence of a mitigating
factor, whether the aggravating factor or factors alone are sufficient to
justify a sentence of death.9
It is this weighing process that is at the center of the instant motion.
In United States v. Mitchell, the Ninth Circuit considered the unpreserved
question of “whether aggravators outweigh mitigators and the question whether
death is justified . . . [must] be proved beyond a reasonable doubt.”10 The Ninth
Circuit concluded that “the weighing step is an ‘equation’ that ‘merely channels a
jury’s discretion by providing it with criteria by which it may determine whether a
sentence of life or death is appropriate.’”11 The Ninth Circuit emphasized that the
defense had presented no persuasive argument as to “how a beyond-reasonable-
doubt standard could sensibly be superimposed upon this process, or why it must
be in order to comport with due process, or to make his death sentence reliable,
8 18 U.S.C. § 3593(c), (d).
9 18 U.S.C. § 3593(e).
10 502 F.3d at 993.
11 Id. (quoting Kansas v. Marsh, 548 U.S. 163, 177 (2006)).
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or to comply with the Sixth Amendment.”12 Mitchell thus addressed the exact issue
raised by the government in its motion and rejected the applicability of the beyond-
-a-reasonable-doubt standard to the weighing process.
Mr. Smith contends that in Hurst v. Florida,13 the Supreme Court effectively
abrogated Mitchell by treating the weighing determination as being covered by
Ring v. Arizona and Apprendi v. New Jersey and thus requiring that the weighing
determination be made beyond a reasonable doubt.14 In Hurst, the Supreme Court
held that Florida’s state death penalty scheme violated the Sixth Amendment
because it “required the judge alone to find the existence of an aggravating
circumstance” necessary for the imposition of a death sentence.15 As this Court
has previously observed, the FDPA differs from the Florida scheme because
federal law requires the jury to find all of the facts necessary to make a defendant
death-penalty eligible (the eligibility-phase findings).16 But the weighing provision
of the FDPA does not require any fact-finding:
12 Id.; see also United States v. Williams, 18 F.Supp.3d 1065, 1077 (D. Haw. 2014) (concluding
that in Mitchell, the Ninth Circuit “unequivocally rejected the defendant’s argument that Apprendi
and its progeny required a jury to make its decision weighing the factors finding beyond a
reasonable doubt”).
13 136 S. Ct. 616 (2016).
14 Docket 792 at 4–5. In Apprendi v. New Jersey, the Supreme Court held that “any fact that
increases the penalty for a crime beyond the prescribed statutory maximum must be submitted
to a jury, and proved beyond a reasonable doubt.” 530 U.S. 466, 490 (2000). Ring v. Arizona
applied this holding to capital sentencing. 536 U.S. 584, 609 (2002).
15 136 S. Ct. at 624.
16 Docket 352 at 5.
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What § 3593(e) requires is a determination of the sentence itself . . . .
[The jury] only needed to decide, pursuant to the weighing of factors
described in the statute, that such a sentence was “just[].” And in
making that moral judgment, the jury did not need to be instructed as
it if were making a finding of fact.17
Because no fact finding occurs during the weighing process, Hurst is inapplicable.
Moreover, post-Hurst the Ninth Circuit has considered whether the weighing
process in a state death penalty scheme requires proof beyond a reasonable
doubt. In Ybarra v. Filson, the defendant was convicted and sentenced pursuant
to Nevada’s death penalty scheme, which required that “each juror
must . . . individually determine that mitigating circumstances, if any exist, do not
outweigh the aggravating circumstances.”18 The defendant there raised an
argument similar to Mr. Smith’s: That Hurst transformed Nevada’s weighing
determination into an element that had to be found beyond a reasonable doubt.19
In dicta, the Ninth Circuit stated that it was
highly skeptical of this argument. In our view, the weighing
determination is more akin to a sentence enhancement than to an
element of the capital offense. As such, it is not clear that the Nevada
sentencing scheme runs afoul of Hurst. And even more
fundamentally, it is not clear that Hurst actually establishes a new rule
of constitutional law at all. Instead, it may be nothing more than a
direct application of Ring.20
17 United States v. Gabrion, 719 F.3d 511, 533 (6th Cir. 2013) (emphasis and second alteration
in original) (citation omitted) (quoting 18 U.S.C. §§ 3591(a), 3593(e)).
18 869 F.3d 1016, 1030 (9th Cir. 2017) (quoting Servin v. State, 32 P.3d 1277, 1285 (2001)).
19 Id. at 1030.
20 Id. at 1030–31.
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In light of the continued validity of Mitchell and the Ninth Circuit’s post-Hurst
guidance, the Court concludes that the FDPA’s weighing process does not require
application of the beyond-a-reasonable-doubt standard. Accordingly, the motion
at Docket 701 is GRANTED.
DATED this 29th day of July, 2020, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
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