United States v. Brandon Michael Council, Criminal No.: 4:17-cr-00866-RBH

CourtUnited States District Courts. 4th Circuit. United States District Court of South Carolina
Writing for the CourtR. Bryan Harwell United States District Judge
Docket NumberCriminal No.: 4:17-cr-00866-RBH
PartiesUnited States of America, v. Brandon Michael Council, Defendant.
Decision Date02 May 2018

United States of America,
Brandon Michael Council, Defendant.

Criminal No.: 4:17-cr-00866-RBH


May 2, 2018


Defendant is charged with capital crimes involving two homicides for which he faces a possible sentence of death if convicted. See ECF Nos. 16 & 81. The matter is before the Court on the Government's "Motion for Pretrial Disclosure of Defendant's Proposed Mitigating Factors." See ECF No. 104. Defendant has filed a response in opposition. See ECF No. 112. As explained below, the Court will deny the Government's motion seeking pretrial disclosure. However, because Defendant has agreed to provide the Government a list of proposed mitigating factors following any guilty verdict on the homicide counts, the Court will require Defendant to provide that list within twelve hours of any such verdict.


In its instant motion, the Government requests the Court to compel Defendant to disclose by October 12, 2018—approximately three months before trial—a list of the proposed mitigating factors he plans to use during the penalty phase of trial (should it proceed to that stage). See ECF No. 104. The Government asserts the Court "should exercise its inherent authority to compel" such disclosure. See id. at p. 5. Defendant has filed a response in opposition arguing such disclosure is (1) not required by statute or rule, (2) undermines his Fifth and Sixth Amendment rights, and (3) is neither legally required

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nor practically necessary in this case. See ECF No. 112.1


I. Pretrial Disclosure of Mitigating Factors Is Not Required

"Under the Federal Death Penalty Act ('FDPA'), [if] the jury finds the defendant guilty of an offense for which a death sentence is provided, the trial proceeds to the penalty phase." United States v. Torrez, 869 F.3d 291, 304 (4th Cir. 2017). The jury must consider both mitigating and aggravating factors in determining whether a death sentence is justified. See generally 18 U.S.C. § 3592. Section 3592 contains four distinct subsections: "(a) Mitigating factors," "(b) Aggravating factors for espionage and treason," "(c) Aggravating factors for homicide," and "(d) Aggravating factors for drug offense death penalty." Id. § 3592(a)-(d).2 The three subsections listing aggravating factors—including subsection (c), which would presumably apply here—all begin with the identical language that "the jury, or if there is no jury, the court, shall consider each of the following aggravating factors for which notice has been given and determine which, if any, exist"; and they all end with the identical language that "[t]he jury, or if there is no jury, the court, may consider whether any other aggravating factor for which notice has been given exists. See id. § 3592(b), (c), (d) (emphases added). Thus, the aggravating factor subsections all require notice by the Government to Defendant. However, the subsection listing mitigating factors—§ 3592(a)—does not require, mention, or otherwise contemplate "notice" by Defendant to the Government. Indeed, the word "notice" is noticeably absent, as subsection (a) provides in full:

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(a) Mitigating factors.—In determining whether a sentence of death is to be imposed on a defendant, the finder of fact shall consider any mitigating factor, including the following:

(1) Impaired capacity.—The defendant's capacity to appreciate the wrongfulness of the defendant's conduct or to conform conduct to the requirements of law was significantly impaired, regardless of whether the capacity was so impaired as to constitute a defense to the charge.
(2) Duress.—The defendant was under unusual and substantial duress, regardless of whether the duress was of such a degree as to constitute a defense to the charge.
(3) Minor participation.—The defendant is punishable as a principal in the offense, which was committed by another, but the defendant's participation was relatively minor, regardless of whether the participation was so minor as to constitute a defense to the charge.
(4) Equally culpable defendants.—Another defendant or defendants, equally culpable in the crime, will not be punished by death.
(5) No prior criminal record.—The defendant did not have a significant prior history of other criminal conduct.
(6) Disturbance.—The defendant committed the offense under severe mental or emotional disturbance.
(7) Victim's consent.—The victim consented to the criminal conduct that resulted in the victim's death.
(8) Other factors.—Other factors in the defendant's background, record, or character or any other circumstance of the offense that mitigate against imposition of the death sentence.

Id. § 3592(a). To reiterate, the word "notice" or any similar term is conspicuously absent from subsection (a).

"Any statutory analysis necessarily begins with the plain language of the statute. When the statute's language is plain, the sole function of the courts—at least where the disposition required by

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the text is not absurd—is to enforce it according to its terms." United States v. Searcy, 880 F.3d 116, 126 (4th Cir. 2018) (internal quotation marks, brackets, and emphasis removed). Furthermore, "a statute is to be read as a whole since the meaning of statutory language, plain or not, depends on context[.]" United States v. Caro, 597 F.3d 608, 633 (4th Cir. 2010) (construing a statute in the FDPA). The plain language of § 3592, when read as a whole, specifies notice must be given for aggravating factors but nowhere indicates notice must be given for mitigating factors. A plain reading of § 3592 could not be any clearer. If Congress had intended for defendants to give pretrial notice of their proposed mitigating factors, then it would have said so in subsection (a) or elsewhere in the FDPA. See, e.g., United States v. Marine, 155 F.2d 456, 458-59 (4th Cir. 1946) (recognizing that when a court "ha[s] no manner of doubt from the plain words of the statute, considered in the light of the ordinary rules of statutory construction," the court is "not at liberty to alter or add to the plain language of the statute to effect a purpose which does not appear on its face"); see, e.g., United States v. Howard-Arias, 679 F.2d 363, 369 (4th Cir. 1982) (interpreting the plain language of a statute and stating that when one subsection of the statute "explicitly stated" a particular element, then "it can be persuasively argued that had Congress intended that the same element . . . be included in [another subsection of the same statute], it would have said so"). The Court believes the plain language of § 3592 invalidates the Government's argument, but notes several additional reasons support its ruling that pretrial disclosure of mitigating factors is not required.

First, the Court can literally turn the page to the next section in the FDPA—18 U.S.C. § 3593—which also addresses "notice." See generally Soliman v. Gonzales, 419 F.3d 276, 282 (4th Cir. 2005) ("We are obliged to look to the statutory language as a whole, construing each section in harmony with every other part or section, because Acts of Congress should not be read as a series of unrelated

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and isolated provisions." (internal quotation marks, alteration, and ellipsis omitted)). Subsection 3593(a) requires the Government to comply with certain requirements when filing and serving its notice of intent to seek the death penalty: one such requirement is that the "notice . . . set[] 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(a) (emphasis added). Meanwhile, subsection 3593(c) deals with the burdens of proof that the Government ("beyond a reasonable doubt") and the defendant ("by a preponderance of the information") bear in establishing the existence of aggravating and mitigating factors at a sentencing hearing; subsection (c) provides that "[t]he defendant may present any information relevant to a mitigating factor. The government may present any information relevant to an aggravating factor for which notice has been provided under subsection (a)." Id. § 3593(c) (emphasis added). Plainly, § 3593(c) juxtaposes mitigating and aggravating factors in two consecutive sentences and mentions notice for the latter but not the former. Again, the word "notice" or any similar term is conspicuously absent, and as the Government itself acknowledges in its motion, "the FDPA does not expressly impose a reciprocal duty on the defense[] requiring pre-trial notice of mitigating factors." ECF No. 104 at p. 1.

Second, the Court's "plain reading of the statute is reinforced by its legislative history." United States v. Miltier, 882 F.3d 81, 91 (4th Cir. 2018). As pointed out by Defendant (see ECF No. 112 at p. 3), proposed legislation was introduced in the 110th Congress that would have amended the FDPA and explicitly required a defendant to make pretrial disclosure of mitigating factors. See Death Penalty Reform Act, H.R. 851, 110th Cong. §§ 3-4 (2006), available at https://www.congress.gov/bill/110th-congress/house-bill/851/text (proposing to amend 18 U.S.C. § 3592(a) "by inserting 'for which notice has been provided'" and...

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