U.S. v. Mills

Decision Date17 August 2006
Docket NumberNo. CR02-938(E)DOC.,CR02-938(E)DOC.
Citation446 F.Supp.2d 1115
PartiesUNITED STATES of America, Plaintiff, v. 1) Barry Byron MILLS; 2) Tyler Davis Bingham, Defendants.
CourtU.S. District Court — Central District of California

Gregory W. Jessner, U.S. Attorneys, Los Angeles, CA, for Plaintiff.

Mark F. Fleming, Mark F. Fleming Law Offices, San Diego, CA, H. Dean Steward, H. Dean Steward Law Offices, San Clemente, CA, for Defendants.


CARTER, District Judge.

Before the Court are two issues concerning the procedures of the death penalty phase of the Aryan Brotherhood trial: (1) whether the Confrontation Clause of the Sixth Amendment applies during the penalty phase of a capital trial; and (2) whether proof of unadjudicated crimes, when offered as evidence to prove the alleged non-statutory aggravating factor of future dangerousness, should be subject to an independent burden of proof. After considering extensive written and oral argument submitted by the parties, for the reasons set forth below, the Court hereby makes final its tentative rulings that: (1) Testimonial hearsay offered to prove statutory and non-statutory aggravating factors in the death penalty selection phase is barred by the Confrontation Clause; and (2) unadjudicated criminal acts offered to prove the non-statutory aggravating factor of future dangerousness are not subject to an independent burden of proof.


On July 29, 2006, a jury rendered guilty verdicts to Counts Six and Seven of the First Superseding Indictment against Defendants Barry Byron Mills and Tyler Davis Bingham. Counts Six and Seven each allege that the defendants committed a violent crime in aid of racketeering ("VICAR"), namely the murders of Frank Joyner and Abdul Salaam at the United States Penitentiary ("USP") in Lewisburg, Pennsylvania in 1997. See 18 U.S.C. § 1959(a)(1). VICAR murder is a capital offense. Id. The government now seeks the death penalty against Defendants Mills and Bingham.

At a status conference held during the jury's deliberations in the guilt phase, the Court requested that the government provide an overview of the evidence it intends to present during the penalty phase of the trial, should a guilty verdict ensue. The government presented to the Court several hundred pages of documents regarding each defendant. These documents are mostly prison documents and pre- and post-sentence reports. Within these documents are numerous allegations of misconduct against Defendants, including acts ranging in severity from delaying a bed count or flooding one's cell to never-prosecuted acts of murder. The government indicated that, at that time, it intended to prove the non-statutory factor of future dangerousness primarily through those documentary sources and that it expected to call few live witnesses.

The government contends that the right of confrontation-does not apply to evidence of aggravating factors that can subject a capital defendant to the death penalty. This view sanctions the admission of, for example, hearsay evidence from uncorroborated, unnamed informants, presented to the jury in a sterilized document, in order to prove uncharged crimes allegedly committed decades ago. The Court rejects this view, holding that the Confrontation Clause forbids the admission of testimonial hearsay during the death penalty phase.

II. The Federal Death Penalty Act

The Federal Death Penalty Act ("Act" or "FDPA"), 18 U.S.C. §§ 3591, et seq., sets forth the procedures for the penalty phase of a capital trial in federal court. It requires the jury, and not the judge, to engage in a six-step sentencing procedure and make the following determinations: (1) that the statutory intent factor has been proven beyond a reasonable doubt, id. § 3591(a)(2); (2) that at least one statutory aggravating facto has been established beyond a reasonable doubt, id. § 3593(c), (d); (3) that any additional statutory factors have been established beyond a reasonable doubt, id. § 3593(c); (4) that any non-statutory aggravating factor1 has been established beyond a reasonable doubt, id.; (5) whether any single juror has found a mitigating factor by preponderance of the evidence, id.; and (6) "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," id. § 3593(e). Under this procedure, the FDPA empowers the jury with the ultimate decision about whether to impose the death penalty. Thus, the statutory procedure differs from non-capital sentencing, which is conducted by the judge. The jury makes this ultimate decision only after engaging in this highly structured process.

This six-step procedure comprises both the "eligibility phase" and "selection phase" of death penalty procedure. E.g., Tuilaepa v. California, 512 U.S. 967, 971, 114 S.Ct. 2630, 129 L.Ed.2d 750 (1994). These two phases ensure that the procedure "rationally narrow[s] the class of death-eligible defendants" and permit the jury to "render a reasoned, individualized sentencing determination based on a death-eligible defendant's record, personal characteristics, and the circumstances of his crime." Kansas v. Marsh, ___ U.S. ___, 126 S.Ct. 2516, 2524-25, 165 L.Ed.2d 429 (2006). The Supreme Court has devised this two-phased procedure in recognition of the need for heightened reliability in death penalty proceedings. See Murray v. Giarratano, 492 U.S. 1, 8-9, 109 S.Ct. 2765, 106 L.Ed.2d 1 (1989) (recognizing that "[t]he finality of the death penalty requires `a greater degree of reliability' when it is imposed" (quoting Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978))); Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976) (plurality opinion) (recognizing that "the penalty of death is qualitatively different" from all other forms of punishment).

The first two steps comprise the eligibility phase: Upon finding the intent factor and one statutory aggravating factor, a defendant becomes "eligible" for the death penalty. Eligibility requires that "the defendant must be convicted of a crime for which the death penalty is a proportionate punishment." Tuilaepa, 512 U.S. at 971, 114 S.Ct. 2630. "The eligibility decision fits the crime within a defined classification. Eligibility factors almost of necessity require an answer to a question with a factual nexus to the crime or the defendant so as to `make rationally reviewable the process for imposing a sentence of death.'" Id. at 973, 114 S.Ct. 2630.

The final four steps of the FDPA comprise the "selection phase," where the jury must decide "whether he should receive a death sentence." Jones, 527 U.S. at 377, 119 S.Ct. 2090. Unlike the eligibility phase, the selection phase "requires individualized sentencing and must be expansive enough to accommodate relevant mitigating evidence so as to assure an assessment of the defendant's culpability." Tuilaepa, 512 U.S. at 973, 114 S.Ct. 2630. "In making the selection decision, the Act requires that the sentencing jury consider all of the aggravating and mitigating factors...." Jones, 527 U.S. at 377, 119 S.Ct. 2090 (citing 18 U.S.C. §§ 3591(a), 3592, 3593(e)). "The Act, however, requires more exacting proof of aggravating factors than mitigating ones." Id. In order to warrant consideration of an aggravating factor in selecting a penalty, the government must establish that factor—whether statutory or non-statutory—beyond a reasonable doubt. Id. "[T]he jury may consider a mitigating factor in its weighing process so long as one juror finds that the defendant established its existence by preponderance of the evidence...." Id. (citing 18 U.S.C. § 3593(c), (d)). After finding which factors are relevant to its inquiry the jury is required to 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." 18 U.S.C. § 3593(e). "Based upon this consideration, the jury by unanimous vote ... shall recommend whether the defendant should be sentenced to death, [or] to life imprisonment without the possibility of release." Id.

The FDPA further provides that "[i]nformation is admissible regardless of its admissibility under the rules governing admission of evidence at criminal trials except that information may be excluded if its probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury." Id. § 3593(c).

In the next section, the Court tackles the difficult issue of whether a defendant's Sixth Amendment right to confront the witnesses against him extends to the eligibility and selection phases of capital sentencing.

III. Right to Confrontation During Capital Sentencing

The Sixth Amendment to the Constitution provides that, "[i[n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." U.S. Const. Amend. VI. In its landmark decision in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the Supreme Court held that the Confrontation Clause bars admission of "testimonial statements" of a witness who does not appear at trial, unless the witness is unavailable to testify, and the defendant previously had the opportunity to cross-examine the declarant. Id. at 53-54, 124 S.Ct. 1354.

Crawford classifies hearsay evidence into two types: testimonial and non-testimonial. Id.; see Davis v. Washington, ___ U.S. ___, 126 S.Ct. 2266, 2273-74, 165 L.Ed.2d 224 (2006). While the Court in Crawford declined to...

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