United States v. Schlesinger

• Decision Date: 29 November 2021
• Docket Number: CR-18-02719-TUC-RCC (BGM)
• Parties: United States of America, Plaintiff, v. Ryan Phillip Schlesinger, Defendant.
• Court: U.S. District Court — District of Arizona

United States of America, Plaintiff,
v.
Ryan Phillip Schlesinger, Defendant.

No. CR-18-02719-TUC-RCC (BGM)

United States District Court, D. Arizona

November 29, 2021

ORDER

HONORABLE RANER C. COLLINS SENIOR UNITED STATES DISTRICT JUDGE

Pending before the Court are four motions filed by Defendant Ryan Phillip Schlesinger. He moves to dismiss the Government's notice of intent to seek the death penalty on the grounds that the Federal Death Penalty Act (“FDPA”) is unconstitutional. (Doc. 247.) He also moves to strike the future dangerousness non-statutory aggravating factor (Doc. 245), the victim impact non-statutory aggravating factor (Doc. 246), and the substantial planning and premeditation statutory aggravating factor (Doc. 248). The Government opposes the motions. (Docs. 297, 299-301.) The Court heard oral argument on August 3, 2021. For the reasons set forth below, the Court denies all motions.

I. Background

On November 30, 2018, a complaint was filed against Schlesinger charging him with the premeditated killing of Deputy United States Marshal C.W. in violation of 18 U.S.C. §§ 1111 and 1114. (Doc. 1.) C.W. was part of a task force sent to serve Schlesinger with a felony arrest warrant at his residence on November 29, 2018. (Id.) Schlesinger

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opened fire on the agents, striking and killing C.W. (Id.) Schlesinger was arrested shortly thereafter. (Id.)

The Government filed a superseding indictment (“Indictment”) on September 30, 2020, charging Schlesinger with two death-penalty-eligible counts: first-degree murder of a federal officer in violation of 18 U.S.C. §§ 1111(a) and 1114 (Count One) and the use of a firearm during and in relation to a crime of violence causing the Marshal's death in violation of 18 U.S.C. §§ 924(c)(1)(A) & (j) (Count Nine). (Doc. 192 at 1-5.)

The grand jury alleged additional special findings in conformity with the FDPA, see 18 U.S.C. § 3591 et seq., charging that Schlesinger was at least 18 years old at the time of each offense under 18 U.S.C. § 3591(a) and possessed all four guilty states of mind under § 3591(a)(2)(A) through (D) (gateway intent factors). (Id. at 6.) The grand jury also charged him with three statutory aggravating factors under § 3592(c)(9), including “substantial planning and premeditation.” Id. The Indictment does not allege any non-statutory aggravating factors. (See id.)

The Government filed a Notice of Intent (“Notice”) to seek a sentence of death in the event of a conviction on either Count One or Count Nine. (Doc. 194 at 1.) In the Notice, the Government alleged two non-statutory aggravating factors: victim impact and future dangerousness, in addition to the statutory aggravating factors alleged in the indictment as the basis for the imposition of the death penalty.

Schlesinger challenges the constitutionality of the FDPA and moves to strike the non-statutory aggravating factors and the substantial planning and premeditation statutory aggravating factor.

II. Motion to Dismiss

The Court will first consider Schlesinger's motion to dismiss. (Doc. 247.) His primary argument is that the FDPA is unconstitutional on its face because it does not mandate that a grand jury make a finding as to probable cause on all of the aggravating factors. He alleges this violates the Fifth Amendment's Indictment Clause and Ring v. Arizona, 536 U.S. 584 (2002), as well as the Separation of Powers doctrine. (Doc. 247 at

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3-13.) Alternatively, he asks this Court to strike the special findings and dismiss the Notice because the Indictment violates the Fifth and Sixth Amendments. Id. at 13-22.

A. The Facial Claim Against the FDPA

1. Schlesinger's Burden and the Presumption of Constitutionality

Schlesinger bears the burden of proving the FDPA invalid on its face. See United States v. Sampson, 486 F.3d 13, 20 (1st Cir. 2007) (explaining that “the burden of proving that the FDPA is unconstitutional is on the challenger. . . .”) (citations omitted). “A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.” United States v. Salerno, 481 U.S. 739, 745 (1987). The Court presumes that an Act of Congress is constitutional. United States v. Morrison, 529 U.S. 598, 607 (2000) (citations omitted); see also Gregg v. Georgia, 428 U.S. 153, 175, 187 (1976) (plurality opinion) (“[I]n assessing a punishment selected by a democratically elected legislature against the constitutional measure, [courts] presume its validity.”).

2. Ring's Impact on the FDPA

If Schlesinger is convicted of a death-qualifying offense, a separate penalty phase hearing will be conducted to determine punishment. See 18 U.S.C. § 3593(b). At this hearing, the parties may submit information “as to any matter relevant to the sentence, including any mitigating or aggravating factor permitted or required to be considered.” 18 U.S.C. § 3593(c). For a defendant to become eligible for a death sentence, a jury must unanimously find, beyond a reasonable doubt, that:

1) the defendant was at least 18 years old at the time of the crime, 18 U.S.C. § 3591(a)

2) he had at least one gateway intent factor, § 3591(a)(2); and

3) at least one statutory aggravating factor exists, § 3592(c)

See United States v. Mitchell (Lezmond), 502 F.3d 931, 973 (9th Cir. 2007).

Upon a finding of eligibility, the jury then determines the propriety of a death sentence. First, it determines whether non-statutory aggravating factors and mitigating circumstances exist. 18 U.S.C. § 3592(a) and (c). Next, it weighs all of the proven

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aggravating and mitigating factors. To justify a death sentence, the jury must determine that the aggravating factors “sufficiently outweigh” the mitigating circumstances. 18 U.S.C. § 3593(e). The jury must “unanimous[ly] . . . recommend whether the defendant should” receive a death sentence. Id.

The role of the petit jury under the FDPA conforms with Ring. In Ring, the Supreme Court held that under the Sixth Amendment a jury-not a judge-must determine whether at least one alleged statutory aggravating factor exists. 536 U.S. at 609 (striking down Arizona's death-sentence statute). The Court reasoned that these factors “operate as ‘the functional equivalent of an element of a greater offense'” and that the jury must find such elements beyond a reasonable doubt. Id. (quoting Apprendi v. New Jersey, 530 U.S. 466, 494 n.19 (2000)).

The role of the grand jury after Ring, however, is less clear. Ring did not protest the aggravating factors' absence from an indictment. Id. at 597 n.4. And, as the Court observed in Ring, the jury trial guarantee recognized in Apprendi had not “been construed to include the Fifth Amendment right to ‘presentment or indictment of a Grand Jury.'” Id. at 597 n.4 (citing Apprendi, 530 U.S. at 477 n.3).

The Ninth Circuit has not addressed whether Ring extends to the gateway intent factors or statutory aggravating factors. However, “other circuits have unanimously” held that Ring “applies with equal force in the context of a Fifth Amendment challenge” to both. United States v. Brown, 441 F.3d 1330, 1367 (11th Cir. 2006); see also United States v. Lawrence, 735 F.3d 385, 420 (6th Cir. 2013); Sampson, 486 F.3d at 21; United States v. Allen (Billie), 406 F.3d 940, 949 (8th Cir. 2005); United States v. Robinson, 367 F.3d 278, 284 (5th Cir. 2004); United States v. Higgs, 353 F.3d 281, 298 (4th Cir. 2003); United States v. Quinones, 313 F.3d 49, 53 n.1 (2d Cir. 2002).

In essence, the gateway intent factors and statutory aggravating factors are “element[s] of a greater offense. . . .” Ring, 536 U.S. at 609 (quoting Apprendi, 530 U.S. at 494 n.19). Such “elements must be charged in the indictment. . . .” Jones (Nathaniel) v. United States, 526 U.S. 227, 232 (1999) (citations omitted). Accordingly, this Court finds

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that the gateway intent factors and statutory aggravating factors must be charged in the indictment.

3. Facial challenge under the Fifth Amendment's Indictment Clause

Schlesinger claims that the FDPA is invalid on its face under the Fifth Amendment's Indictment Clause and Ring as it “neither permits nor contemplates affording the grand jury any role in determining which aggravating factors are to be alleged in a federal prosecution.” (Doc. 247 at 4.) Schlesinger asserts that the FDPA forbids grand juries from indicting defendants with the gateway intent factors and statutory aggravating factors because it expressly requires the Government to “sign and file with the court, and serve on the defendant, a notice” that it intends to seek a death sentence, listing aggravating factors that it plans “to prove as justifying” that sentence. 18 U.S.C. § 3593(a)(1) and (2). He maintains therefore that “Congress elected to enact a scheme where the decision to set death in motion would be reserved to the government's attorneys and no one else-not grand juries, not the Court, and not any other individual or entity.” (Doc. 247 at 6.)

The Court disagrees. The FDPA does not prevent the Government from alleging the gateway intent factors or statutory aggravating factors to a grand jury, nor does it prevent the grand jury from indicting defendants with those factors. The Ninth Circuit rejected such a challenge to the FDPA in Mitchell (Lezmond), where, as here, the indictment did charge statutory aggravating factors upon which the government proceeded. 502 F.3d at 979 (citing Brown, 441 F.3d at 1367; Robinson, 367 F.3d at 290). While “nothing in the FDPA requires prosecutors to charge aggravating factors in an indictment . . . there is nothing in that law inhibiting such a charge.” Robinson, 367 F.3d at 290; see also Brown, 441 F.3d at 1367 (“Nothing prohibits the government from presenting aggravating factors to a grand jury and then, if appropriate, charging...