United States v. Brandon Michael Council
Decision Date | 02 May 2018 |
Docket Number | Criminal No.: 4:17-cr-00866-RBH |
Court | U.S. District Court — District of South Carolina |
Parties | United States of America, v. Brandon Michael Council, Defendant. |
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 nor practically necessary in this case. See ECF No. 112.1
"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:
Id. § 3592(a). To reiterate, the word "notice" or any similar term is conspicuously absent from subsection (a).
United States v. Searcy, 880 F.3d 116, 126 (4th Cir. 2018) ( ). 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) ( ). 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) ( ); see, e.g., United States v. Howard-Arias, 679 F.2d 363, 369 (4th Cir. 1982) ( ). 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) . 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 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 to amend 18 U.S.C. § 3593(b) to state"[i]f . . . the government has filed notice seeking a sentence of death, the defendant shall, a reasonable time before the trial, sign and file with the court, and serve on the attorney for the government, notice setting forth the mitigating factor or factors that the defendant proposes to prove mitigate against imposition of a sentence of death."). This proposed legislation—including that quoted in the prior parenthetical—never passed. While the Court recognizes the arguments made by the Government encouraging pretrial disclosure,3 the Court cannot rewrite the statute. These arguments could serve as a basis for amendment of the FDPA;...
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