U.S. v. Rodriguez, Crim.No. C2-04-55.

• Decision Date: 29 July 2005
• Docket Number: Crim.No. C2-04-55.
• Citation: 380 F.Supp.2d 1041
• Parties: UNITED STATES of America, Plaintiff, v. Alfonso RODRIGUEZ, Jr., Defendant.
• Court: U.S. District Court — District of North Dakota

Page 1041

380 F.Supp.2d 1041

UNITED STATES of America, Plaintiff, v. Alfonso RODRIGUEZ, Jr., Defendant.

Crim.No. C2-04-55.

United States District Court, D. North Dakota, Northeastern Division.

July 29, 2005.

Robert G. Hoy, Ohnstad Twichell, West Fargo, ND, Richard Ney, Richard Ney Law Office, Wichita, KS, for Defendant.

Drew H. Wrigley, U.S. Attorney's Office, Fargo, ND, for Plaintiff.

ORDER ON FIRST ROUND OF PRETRIAL MOTIONS

ERICKSON, District Judge.

The Court has before it several pretrial motions filed by Defendant (docs. # 58, 60, 62, 64, 66, 68, and 70). A hearing was held on June 24, 2005, during which the Court ruled from the bench on some of the issues and took other issues under advisement. The Court has carefully considered the briefs submitted by the parties along with the arguments and statements of counsel at the hearing and now issues this memorandum opinion and order, which encompasses all issues addressed during the hearing.

SUMMARY OF RULINGS

I. Because the Court finds the Federal Death Penalty Act is not violative of the Constitution or recent decisions from the United States Supreme Court, Defendant's motion to declare the Federal Death Penalty Act unconstitutional and to strike the special findings in the indictment is DENIED. In addition, the Court finds the indictment is not rendered deficient by the government's failure to include non-statutory aggravating factors.

II. Because the Constitution is not suspended during the sentencing phase and the judge, as gatekeeper, has the authority to control the evidence and make assurances the evidence presented is reliable and fair, Defendant's motion to declare the "relaxed" evidentiary standard of 18 U.S.C § 3593(c) unconstitutional is DENIED.

III. Defendant's motion for discovery is GRANTED with the understanding that the government has provided all the information and evidence it has gathered and the Court orders that the government shall continue to update and disclose additional information and evidence as it becomes available. Further, the government is ordered to provide disclosure of Rule 404(b) evidence and notice under Rule 807 of the Federal Rules of Evidence no later than 90 days prior to trial. If issues arise within 90 days of trial, the matter should be promptly brought to the attention of defense counsel and the Court as soon as practical.

IV. The Court, pursuant to its inherent authority, orders that the government shall submit an amended death penalty notice under seal by August 15, 2005, articulating the specific factual basis for each allegation Defendant has requested. Since this order is in lieu of a bill of particulars, Defendant's motion for a bill of particulars is rendered MOOT.

V. The Court finds Defendant has established a "particularized need" for disclosure of grand jury testimony and no basis has been presented to justify further withholding of the transcripts, Defendant's motion for disclosure of grand jury transcripts is GRANTED. It is ordered that the government shall provide defense counsel with the grand jury transcripts within 14 days of the date this order is filed. It is further ordered that the grand jury transcripts are not to be disclosed to anyone other than defense counsel or a defense expert retained by defense counsel.

VI. Given that the government has provided defense counsel with all the information and evidence it has gathered and is ordered to continue to update and disclose additional information as it becomes available, Defendant's motion for immediate production of Jencks Act and Fed.R.Crim.P. 26.2 statements is MOOT.

VII. The Court finds the minimum three day compliance under 18 U.S.C. § 3432 will not afford Defendant a fair opportunity for adequate defense preparation. While Defendant's motion to order the government to file a witness list 120-days before trial is DENIED, it is ordered that the government shall produce a tentative witness list 60 days prior to the commencement of the trial. It is further ordered that the witness list may be amended as of right until three days before trial.

BACKGROUND

On November 22, 2003, Dru Katrina Sjodin disappeared while walking to her vehicle in a mall parking lot in Grand Forks, North Dakota. Her body was later found near Crookston, Minnesota in April 2004. On May 11, 2004, a federal grand jury returned an indictment in this Court charging Defendant with kidnapping resulting in the death of Dru Katrina Sjodin, in violation of 18 U.S.C. § 1201(a)(1). The indictment contains a section entitled "NOTICE OF SPECIAL FINDINGS." It is in this section that certain threshold mental culpability and aggravating factors that make the offense potentially punishable by death are set out. See 18 U.S.C. § 3591(a).

On October 28, 2004, the government filed a "NOTICE OF INTENT TO SEEK A SENTENCE OF DEATH." This notice is filed pursuant to 18 U.S.C § 3593(a). In the notice, the government alleges the circumstances in this case are such that a penalty of death is justified. In support of its claim, the government will seek to prove the statutory threshold findings, as set out in 18 U.S.C. § 3591(a)(2)(A) through (D); the statutory aggravating factors, as set out in 18 U.S.C. § 3592(c)(1), (4), (6), and (9); and other non-statutory aggravating factors identified under 18 U.S.C. § 3593(a) and (c). The non-statutory aggravating factors include allegations that Defendant participated in additional charged and uncharged serious acts of violence, that Defendant represents a continuing danger to the lives and safety of other persons, that Defendant caused loss, injury, and harm to the victim and the victim's family, and that Defendant failed to avail himself of treatment for his sexual-predator proclivities.

Defendant now brings several motions before the Court for consideration.

ANALYSIS

I. Motion to Declare the Federal Death Penalty Act Unconstitutional and to Strike Special Findings.

Defendant argues the Federal Death Penalty Act ("FDPA") in its current form violates the Fifth, Sixth, and Eighth Amendments to the Constitution. Additionally, Defendant also argues the failure to allege non-statutory aggravating factors renders the indictment deficient. Consequently, Defendant contends the Court should strike the "special findings" from the indictment and prohibit the government from seeking the death penalty against Defendant.

In summary, Defendant contends the structure of the FDPA demonstrates that Congress intended aggravating factors to be "sentencing considerations" and not elements of the crime of capital murder. Thus, nothing in the FDPA contemplates aggravating factors to be taken to a grand jury and contained in the indictment. Defendant maintains the government is essentially creating a new crime by adding aggravating factors, which amount to additional elements, to an offense set out by statute. Defendant argues the attempt by the government to "fix" the FDPA and comply with Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), by including the statutory intent requirements and the statutory aggravating factors in a "special findings" portion of an indictment fails under United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), because only Congress has the constitutional authority to amend the FDPA and an alteration of the scheme Congress has enacted by the Department of Justice or the courts usurps the powers of Congress.

In contrast, the government argues no rewriting of the FDPA is necessary to comply with the Constitution. The indictment in this case contains the mens rea and statutory aggravating factors which increase the possible punishment for the charged offense from life imprisonment to death. This procedure cures any Fifth Amendment concerns without violating the plain language of the FDPA. Furthermore, by including more in the indictment, the government argues, Defendant is given more protection because he is notified earlier of the factors which make his prosecution death-eligible.

A. Background of Federal Death Penalty Act

The FDPA was enacted in 1994. At that time, Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990), represented the law concerning the procedures required for the imposition of the death penalty. In Walton, the Supreme Court held that "`the Sixth Amendment does not require that the specific findings authorizing the imposition of the sentence of death be made by the jury.'" Id. at 648, 110 S.Ct. 3047 (quoting Hildwin v. Florida, 490 U.S. 638, 640-41, 109 S.Ct. 2055, 104 L.Ed.2d 728 (1989)). This meant it was constitutionally permissible for a judge, rather than a jury, to make factual findings necessary to raise the maximum possible sentence from life in prison to death.

The FDPA, however, provides a defendant more procedural protection than Walton required. Under the FDPA, if the government believes that the circumstances of an offense justify a death sentence, it may, at a "reasonable time" before trial, serve on the defendant a notice stating that death will be sought and "setting forth the aggravating factor or factors that the government, if the defendant is convicted, proposes to prove as justifying a sentence of death." 18 U.S.C. § 3593; see also 21 U.S.C. § 848(h). In order to lawfully impose a death sentence under the FDPA, a jury must first find beyond a reasonable doubt that a defendant convicted of a crime punishable by death acted with the requisite intent. The jury must then find beyond a reasonable doubt that at least one enumerated statutory aggravating factor exists. See 18 U.S.C. § 3593(c); 21 U.S.C. § 848(j). Only if these two preconditions are satisfied is a defendant eligible to receive a death sentence.

Whether death is, in fact, imposed depends on the outcome of a separate sentencing phase, at which the government may introduce proof of the aggravating circumstances of which it has given notice under § 3593 and the defendant may...