U.S. v. Mayhew

• Decision Date: 01 August 2005
• Docket Number: No. 2:03-CR-165.,2:03-CR-165.
• Citation: 380 F.Supp.2d 936
• Parties: UNITED STATES of America, Plaintiff, v. John Richard MAYHEW, Jr., Defendant.
• Court: U.S. District Court — Southern District of Ohio

380 F.Supp.2d 936

UNITED STATES of America, Plaintiff, v. John Richard MAYHEW, Jr., Defendant.

No. 2:03-CR-165.

United States District Court, S.D. Ohio, Eastern Division.

August 1, 2005.

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David DeVillers, United States Attorney, Salvador A. Dominguez, U.S. Attorney's Office, Columbus, OH, for Plaintiff.

Frederick Douglas Benton, Steven Ray Keller, Steven Scott Nolder, Federal Public Defender, Columbus, OH, Isiah Gant, Nashville, TN, for Defendant.

OPINION AND ORDER REGARDING MOTIONS TO DISMISS PORTIONS OF THE NOTICE OF INTENT AND MOTION TO DECLARE § 1201 UNCONSTITUTIONAL

MARBLEY, District Judge.

I. INTRODUCTION

This matter is before the Court on (1) Defendant's Motion to Dismiss Notice of Aggravating Factors and Declare the Federal Death Penalty Act of 1994 Unconstitutional in Light of the Supreme Court's Opinion in Ring v. Arizona [Docket No. 94]; (2) Defendant's Motion to Strike the Statutory and Nonstatutory Aggravating Factors from the Government's Notice of Intent to Seek a Sentence of Death [Docket No. 95]; (3) Defendant's Motion to Dismiss Nonstatutory Aggravating Factors (C)(1)(a)(b) & (c) Alleged in the Government's Notice of Intent to Seek the Death Penalty for Counts One & Seven [Docket Nos. 130 and 134]; (4) Defendant's Motion to Dismiss First Statutory Aggravator Alleged in Count One [Doc. No. 131]; (5) Defendant's Motion to Declare § 1201(a) Unconstitutional [Docket No. 105]; and (6) Government's Motion to Amend the Indictment and Notice of Intent to Seek the Death Penalty [No. 159].

II. FACTS AND BACKGROUND

The essential background facts, as alleged by the government, are as follows. On the night of August 7, 2003, Defendant went to a home at 2258 Springmont Avenue, Columbus, Ohio, where he shot and killed his ex-girlfriend, Tamara McKibben, and her fiancé, Frank Rigsby. While at the residence, he threatened Tamara McKibben's son, Andy Aspell, Jr., with his gun. Defendant then kidnaped his and Tamara McKibben's daughter, Kristina McKibben, from the home. Defendant took Kristina McKibben with him in his car and drove with her to West Virginia. On August 9, 2003, Defendant, still with Kristina McKibben in the car, was pulled over by a West Virginia state trooper for a minor traffic offense. When the officer approached the car, Defendant drew a gun and shot the officer. A 30-minute car chase ensued. Defendant ultimately was stopped by a roadblock and tire spikes. While police were ordering him to exit the car, Defendant shot Kristina McKibben twice, then shot himself once. Police pulled both people from the car, and Kristina McKibben told the police that she was from Columbus and that there was a bomb in the car. Two bombs were found under the front seats of the vehicle. Kristina McKibben died en route to the hospital. Shortly after his arrest, Mayhew was interviewed by Lieutenant David Livingston of the Greenbrier County Sheriff's Department. Mayhew admitted to having shot Tamara McKibben, Frank Rigsby, the West Virginia state trooper, and Kristina McKibben. He stated that he committed all of these shootings with the Tech-9 weapon recovered at the scene of his arrest. He informed Livingston that there were additional firearms — namely a 12-gauge shotgun and a .22 Magnum Marlin bolt-action rifle — at his home at 28 North Princeton Avenue in Columbus. On October 2, 2003, the government issued a seven count Indictment.¹

III. ANALYSIS OF FDPA AND NOTICE OF INTENT

A. Overview of FDPA's Sentencing Phase

The Federal Death Penalty Act of 1994 ("FDPA"), 18 U.S.C. §§ 3591-3598, established procedures for imposing the death penalty for over sixty offenses. As an initial matter, the government must serve a defendant with a pretrial notice of the government's intent to seek the death penalty, a document which lists both the statutory and nonstatutory aggravating factors the prosecution intends to prove. 18 U.S.C. § 3593(a). In this case, the government filed this Notice of Intent ("NOI") on October 5, 2004.

Under the FDPA, the death sentence can only be imposed if the jury first determines that the defendant is guilty of the underlying death-eligible crimes.² If the defendant is found guilty, the sentencing phase begins, and the jury must find unanimously and beyond a reasonable doubt that the defendant had the requisite mental state when he committed the offense.³ 18 U.S.C. § 3591(a)(2)(A)-(D). Third, the jury must find, unanimously and beyond a reasonable doubt, that at least one statutory aggravating factor exists.⁴ Only if the jury finds both the requisite mental state and the existence of one statutory aggravating factor does the defendant become death eligible. Fourth, the jury considers that aggravating factor, plus any additional statutory aggravating factors and nonstatutory aggravating factors that the government has set forth, and weighs them against any mitigating factors the jury has found to be present.⁵ 18 U.S.C. § 3593(e) ("[T]he jury ... shall consider whether all 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."). Under 18 U.S.C. § 3591, the jury may recommend death, life imprisonment, or a lesser sentence, if it does so by a unanimous vote. If the jury is deadlocked, the court must sentence the defendant. Finally, although § 3593(e) uses the word "recommend" in describing the jury's decision to impose a death sentence, § 3594 indicates that the court "shall" sentence in accordance with the jury's verdict. Id.

B. Facial Challenges to FDPA

Defendant makes two broad constitutional attacks against the FDPA.⁶ First, Defendant argues that because recent federal death penalty jurisprudence has mandated that the mens rea requirement and at least one aggravating factor be charged to the grand jury, and because the FDPA does not provide as such, the FDPA is unconstitutional. In Ring v. Arizona, 536 U.S. 584, 588, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), the Supreme Court held that the Sixth Amendment required that the aggravating circumstances necessary for imposition of the death penalty be found by the jury beyond a reasonable doubt, reasoning that under the Sixth Amendment, all factors increasing the penalty for a crime beyond the statutory maximum must be found by a petit jury. Id. Ring, however, did not require that the aggravating factors be charged to a grand jury, pursuant to the Fifth Amendment, because Ring was a state death penalty case, and the Fifth Amendment's grand jury requirement has not been applied to the states. Id. at 597 n. 4, 122 S.Ct. 2428 ("Ring does not contend that his indictment was constitutionally defective.") (citing Apprendi v. New Jersey, 530 U.S. 466, 477, n. 3, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (noting that the Fourteenth Amendment has not been construed to include the Fifth Amendment right to presentment or indictment of a Grand Jury) (internal citation omitted)).

Notwithstanding Ring's Sixth Amendment based holding, a number of circuits have interpreted Ring, when read in conjunction with Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999),⁷ to require that at least one statutory aggravating factor and the mens rea requirement be charged in the indictment, pursuant to the Fifth Amendment's grand jury requirement, reasoning that mens rea and statutory aggravators, in a capital case, are the functional equivalents of elements of the offense. See United States v. Allen, 406 F.3d 940, 943 (8th Cir.2005) (en banc) (holding "the Fifth Amendment requires at least one statutory aggravating factor⁸ and the mens rea requirement to be found by the grand jury and charged in the indictment ... because that is what is required to elevate the available statutory maximum sentence from life imprisonment to death"); United States v. Robinson, 367 F.3d 278, 284 (5th Cir.2004) ("Ring's Sixth Amendment holding applies with equal force in the context of a Fifth Amendment Indictment Clause challenge ... [and][a]s a result, the government is required to charge, by indictment, the statutory aggravating factors it intends to prove to render a defendant eligible for the death penalty, and its failure to do so in this case is constitutional error."); United States v. Higgs, 353 F.3d 281, 299 (4th Cir.2003) ("So long as one statutory aggravating factor is alleged in the indictment and the petit jury finds that statutory aggravating factor to exist, the indictment is not defective as to the capital offense charged."); (United States v. Quinones, 313 F.3d 49, 53 n. 1 (2d Cir.2002)) (noting that Ring now requires statutory aggravating factors be "alleged in the indictment and found by a jury in capital cases"). Although the Sixth Circuit has not directly commented on Ring's application to the Fifth Amendment's grand jury requirement, this Court finds persuasive the reasoning set forth by the Eighth Fifth, Fourth, and Second Circuits, and holds that both the mens rea and at least one statutory aggravator found by the petit jury must have been charged in the indictment.

The prosecution in the case sub judice has complied with Ring's Fifth Amendment requirements. It charged both the mens rea requirements and all statutory aggravators to the grand jury, listing them in the Indictment under the heading "Special Findings." Thus, Defendant does not, and indeed cannot, argue that his Fifth Amendment Rights have been violated. Instead, Defendant argues that in light of this grand jury requirement, the FDPA must be held unconstitutional because it requires only that the aggravating factors and mens rea requirement be charged in a Notice of Intent to Seek the Death Penalty, not in the indictment itself. See 18 U.S.C. § 3593(a).⁹

Defendant further argues that the...