UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Criminal Action No. 96-CR-68-M
UNITED STATES OF AMERICA
TIMOTHY JAMES MCVEIGH and
TERRY LYNN NICHOLS,
MEMORANDUM OPINION AND ORDER ON MOTIONS
ADDRESSED TO DEATH PENALTY NOTICE
MATSCH, Chief Judge
This memorandum opinion addresses the issues raised in the following
Docket entry 144
Motion to Disqualify Attorney General and All other Officers and
Employees of the Department of Justice from Participating in Decision
Whether to Seek the Death Penalty, and to Preclude Seeking the Death
Penalty Until a Lawful Prosecutorial Decision Can Be Made Whether to
Seek It. (McVeigh)
Docket entry 145
Memorandum of Law in Support of Motion to Disqualify Attorney General
and All other Officers and Employees of the Department of Justice from
Participating in Decision Whether to Seek the Death Penalty, and to
Preclude Seeking the Death Penalty Until a Lawful Prosecutorial Decision
Can Be Made Whether to Seek It. (McVeigh)
Docket entry 182
Brief of the United States in Opposition to Motion to Disqualify the
Attorney General and All Officers of the Department of Justice and to
Preclude the Government from Seeking the Death Penalty.
Docket entry 210
Reply Brief of Defendant Timothy McVeigh in Support of Motion to
Disqualify Attorney General and All other Officers and Employees of the
Department of Justice from Participating in Decision Whether to Seek the
Death Penalty, and to Preclude Seeking the Death Penalty Until a Lawful
Prosecutorial Decision Can Be Made Whether to Seek It.
Docket entry 489
Notice of Intention to Seek the Death Penalty as to Defendant Timothy
Docket entry 490
Notice of Intention to Seek the Death Penalty as to Defendant Terry Lynn
Docket entry 637
Motion to Strike Notice of Intention to Seek the Death Penalty as to
Defendant Timothy James McVeigh
Docket entry 638
Memorandum in Support of Motion to Strike Notice of Intention to Seek
the Death Penalty as to Defendant Timothy James McVeigh
Docket entry 639
Motion to Strike Notice of Intention to Seek the Death Penalty as to
Defendant Terry Lynn Nichols, and Memorandum in Support Thereof; Oral
Docket entry 742
Brief of the United States in Opposition to Defendants' Motions to
Strike to the Notices of Intent to Seek the Death Penalty
Docket entry 801
Reply Memorandum Concerning Motion to Strike the Death Penalty (Nichols)
Docket entry 843
Reply Brief of Defendant Timothy James McVeigh in Support of Motion to
Strike the Notice of Intention to Seek the Death Penalty
Docket entry 987
Notice Re Motion to Strike Notice of Intention to Seek Death Penalty as
to Defendant Timothy James McVeigh (Nichols)
Docket entry 1182
Motion for Leave of court to File Supplemental Brief; Supplemental Brief
In Support of Motion to Strike Notice of Intention to Seek the Death
Penalty as to Defendant Timothy James McVeigh
Docket entry 1195
Notice Re: Supplemental Brief in Support of Motion to Strike Notice of
Intention to Seek the Death Penalty as to Defendant Timothy James
On October 20,1995, the government filed a Notice of Intention to Seek
the Death Penalty as to defendant Timothy James McVeigh, and an
identical notice as to defendant Terry Lynn Nichols. These notices,
under 18 U.S.C. Sec. 3593(a), invoke the provisions of the Federal Death
Penalty Act, ("Act") 18 U.S.C. Secs. 3591-3596.
Before the notices were filed, defendant Timothy McVeigh moved to
disqualify the Attorney General and all other officers and employees of
the Department of Justice from any participation in the process of
deciding whether to seek the death penalty in this case. That motion,
filed July 25,1995, was fully briefed but not decided before the
reassignment of this case and the change of venue. The defendant Terry
Nichols joined in the motion. The particular relief sought in the motion
to disqualify is now moot because the notices have been filed. The
contentions made must be considered, however, because they also affect
the validity of these notices as challenged by the defendants' motions
Mr. Nichols filed a separate civil action in the Western District of
Oklahoma, Terry Lynn Nichols v. Janet Reno, Civil Action No. 96-M-606,
(formerly CIV-95-1824W), which was transferred to this court. The
complaint in that case, brought under the Administrative Procedures Act,
made some of the same contentions contained in Mr. McVeigh's motion to
disqualify. This court granted the defendants' motion to dismiss the
civil action in a memorandum opinion and order entered on May 29, 1996.
Nichols v. Reno, 931 F.Supp. 748 (D.Colo. 1996). Although the dismissal
resulted from the conclusion that the complaint did not state a claim
for relief within the court's jurisdiction, the reasoning is applicable
here on the merits of Mr. McVeigh's motion to disqualify.
The premise of the motion is that the Attorney General made the decision
to seek the death penalty before any suspect was even identified. On
April 19,1995, shortly after the explosion in Oklahoma City giving rise
to the charges in this case, General Reno publicly announced that the
death penalty would be sought in any prosecution for bombing the Murrah
Building. The President repeated that public pledge two days later,
shortly after Timothy McVeigh was identified as a suspect. Later on that
day, April 21, when Mr. McVeigh appeared before Magistrate Judge Ronald
L. Howland in Oklahoma City, an Assistant United States Attorney advised
the court that the maximum penalty on the charge of violation of 18
U.S.C. Sec. 844(f) was death.
In the memorandum opinion and order deciding the civil case, the court
reviewed the "Death Penalty Protocol" published in the United States
Attorneys' Manual, prescribing a procedure for prosecutors to follow to
obtain authority to seek the death penalty in any criminal case. Patrick
Ryan, United States Attorney for the Western District of Oklahoma, wrote
a letter to Timothy McVeigh's attorney, Stephen Jones, inviting his
participation in the Protocol process. Mr. Jones refused any
participation, claiming that it would be futile because these public
statements showed that the decision had already been made. Despite the
refusal, the Department of Justice procedure was followed and the formal
notices of intention to seek the death penalty were approved according
to the Protocol. Counsel for Terry Nichols did submit statements
pursuant to the Protocol, as described in the civil case opinion.
Counsel for both defendants have asked for discovery of the Department
of Justice internal documents relevant to the notices to support their
motions. That request is denied. Such documents are not pertinent to the
McVeigh motion to disqualify or to the defendants' motions to strike the
death penalty notices because the administrative decision to file them
is not judicially reviewable.
As this court ruled in the civil action, the decision to seek the death
penalty under the Act is a matter of prosecutorial discretion. The
Protocol did not create any individual right or entitlement subject to
the due process protections applicable to an adjudicative or quasi-
adjudicative governmental action. The Act expressly provides that the
attorney for the government shall file and serve the death penalty
notice if he believes that the "circumstances of the offense" are such
that a sentence of death is justified. Sec. 3593(a). There is no
requirement that the prosecutor consider any other matters, including
any mitigating factors concerning the offense or the character and
circumstances of a particular defendant. The decision of a jury whether
to recommend a sentence of death is made only after a full hearing and
consideration of aggravating and mitigating factors provided by
information submitted pursuant to the adversary process. Sec. 3593(b)-
(e). The constitutional protections of the life and liberty of a
defendant are provided by the sentencing hearing following trial of the
charges in the indictment. The issuance of these notices is essentially
a prosecutor's charging decision. The McVeigh motion to disqualify the
Attorney General and Department of Justice officials is denied on the
In their motions to strike the death penalty notices the defendants
assert that the notices filed on October 20, 1995, violate the Fifth and
Eighth Amendments. The defendants claim that the prosecution has exposed
them to the possibility of capital punishment as a result of arbitrary
and irrational decisions. Nothing has been submitted to show or suggest
that the notices were filed because of any discriminatory motive,
invidious classification or improper motivation as to either defendant.
Those are the only grounds warranting judicial interdiction of such
action by an officer of the executive branch of government. Accordingly,
there is no merit to this contention.
Additionally, the defendants suggest that Fed.R.Crim.P. 7 is
applicable to these notices and that they fail to include adequate
statements of the essential facts relied on as required by subsection
(c) of the rule. Assuming that the rule fairly states the requirement of
adequate notice for procedural due process and is, therefore, applicable
to the notices, there is no violation when the notices are read in
conjunction with the allegations of the indictment. The indictment
contains such detailed statements of what the prosecution intends to
prove that these defendants previously challenged its language as being
inflammatory and containing prejudicial surplusage. Taken together, the
indictment and notices give the defendants adequate information as to
what the government will rely on at trial and sentencing. Additional
notice has been given in the extensive discovery provided by the
The defense motions claim that the Act is facially unconstitutional in
several aspects. The broadest argument is that under all circumstances
the death penalty is cruel and unusual punishment prohibited by the
Eighth Amendment. That argument is foreclosed by the decisions of the
Supreme Court. McCleskey v. Kemp, 481 U.S. 279, 300-303 (1987).
The defendants claim that the government's notice violates the Fifth
Amendment grand jury requirement. This position was rejected in the
Memorandum Opinion and Order filed on September 9, 1996. United States
v. McVeigh and Nichols, 1996 WL 523063, at *8-10 (D. Colo.1996).
The defendants argue that the Act does not permit meaningful appellate
review because Congress provided in Sec. 3595 that a sentence of death
will be reviewed upon appeal only if the defendant files a notice of
appeal within the time specified for filing any other notice of appeal.
There is no automatic appellate review as in some of the state statutes
which have been validated by the Supreme Court since Furman v. Georgia,
408 U.S. 238 (1972). The defendants say that conditioning sentence
review upon a request by the defendant is an invalid limitation,
suggesting that a defendant may be unable to decide to appeal because of
depression or other mental or emotional infirmity after the sentencing.
That contention is highly speculative. While the decision to appeal a
conviction and sentence must be made by a defendant, the court has the
duty to provide the assistance of counsel who must also be given the
authority and means to employ such consultants and advisors, including
psychiatrists, upon an appropriate ex parse showing of need under 21
U.S.C. Sec. 848(q). Conjecture about a particular defendant's ability to
make an informed and rational decision to appeal a sentence is not a
basis for invalidating the Act. Adequate resources are ensured to
protect against the possibility of the loss of an appeal resulting from
such circumstances. Moreover, Sec. 3595 of the Act provides for
consolidation of the appeal of the sentence with an appeal of the
judgment of conviction and directs that the case be given priority over
all other cases in the appellate court. The full record of pretrial,
trial and sentencing proceedings may be presented to the court of
The defendants also assert that the Act improperly imposes a legislative
limitation on the scope of review of a death sentence in 18 U.S.C. Sec.
3595(c). That subsection directs the court of appeals to address all
substantive and procedural issues raised on the sentence appeal and to
consider whether the death sentence "was imposed under the influence of
passion, prejudice or any other arbitrary factor and whether the
evidence supports the special finding of the existence of an aggravating
factor required to be considered under Sec. 3592." It further provides
that upon such a determination or upon a conclusion that the proceedings
involved any other legal error requiring reversal that was adequately
preserved for appeal under the Federal Rules of Criminal Procedure, the
case shall be remanded for reconsideration under Sec. 3593 or imposition
of a sentence other than death. Section 3595(c)(2)(C) adds the following
The court of appeals shall not reverse or vacate a sentence of death on
account of any error which can be harmless, including any erroneous
special finding of an aggravating factor, where the Government
establishes beyond a reasonable doubt that the error was harmless.
It is presumed that such a showing by the government would be based on
the record for review under Sec. 3595(b).
The defendants claim that because of these restrictions, those who are
sentenced to death under this Act are denied equal protection of the law
as compared with persons sentenced under other statutes.
The general jurisdiction of the court of appeals is granted in 28 U.S.C.
Sec. 1291, providing for appeals from all final decisions of the
district courts. Review of sentences other than for the death penalty is
under 18 U.S.C. Sec. 3742(a), providing that a defendant may file a
notice of appeal for review of a sentence imposed in violation of law,
resulting from an incorrect application of the sentencing guidelines, a
sentence greater than provided under the applicable guideline range, or,
when imposed for an offense for which there is no sentencing guideline,
"is plainly unreasonable." Thus, the review provided for a death
sentence is actually broader in scope than that for any other sentence.
The harmless error restriction on reversal of any decision is well
established. United States v. Tipton, 90 F.3d 861, 899-901 (4th Cir.
1996). As already noted, a consolidated appeal of conviction and
sentence is contemplated by the statute so the court of appeals will
have before it any issues which are asserted as error in the trial
resulting in the conviction. Additionally, this court is unwilling to
speculate as to the approach that the Tenth Circuit Court of Appeals may
take with respect to the possible application of the "plain error"
doctrine and the scope of appellate review under the Constitution, in
spite of any purported limitations in the statute. Reading this statute
as an interference with the authority of the court of appeals to correct
a fundamental error in a particular type of case would construe it in
contradiction of the constitutional doctrine of separation of powers.
Cf. United States v. Bradley, 880 F. Supp. 271, 283 (M.D.Pa.1994)
(construing the Act to avoid constitutional infirmity by reading its
provision for appellate review of "arbitrary finding[s]" to allow
reversal of a sentence if reversible errors occurred at trial).
Defense counsel argue that the death penalty notices are invalid because
they include aggravating factors not listed in the statute. The
defendants note an inconsistency in the Act in that Sec. 3592(c) lists
specific aggravating factors which may be included in the government's
notice for homicide crimes under Sec. 3591(a)(2) and then provides that
the jury may consider "whether any other aggravating factor for which
notice has been given exists." Yet, in Sec. 3591, Congress provided for
a sentence of death if "after consideration of the factors set forth in
Sec. 3592..." it is determined that imposition of a sentence of death is
justified. Thus, Sec. 3591 appears to limit the jury to consideration of
such of the 15 specific statutory aggravating factors in Sec. 3592(c) as
may be listed in the government's notice. Additionally, under Sec.
3593(e), to recommend death, all jurors must determine that at least one
aggravating factor required to be considered under Sec. 3592(c) has been
proved beyond a reasonable doubt and then consider whether all the
aggravating factors so proved suffficiently outweigh all the mitigating
factors found to exist by a preponderance of the evidence to justify a
sentence of death. There is no specific mention of non-statutory
aggravating factors in that section. Noteworthy, however, in Sec.
3593(a), the factors for which notice is provided "may include the
effect of the offense on the victim and the victim's family," a factor
not among those specified in Sec. 3592(c).
Other courts have read the other death penalty statute, 21 U.S.C. Sec.
848(e), to permit inclusion of non-statutory aggravating factors. United
States v. McCullah, 76 F.3d 1087,1106-07 (10th Cir. 1996). In a recent
case, the District Court of Kansas reached the same result under this
Act. United States v. Nguyen, 928 F. Supp.1525, 1536-37 (D. Kan.1996).
The reasoning of these cases is persuasive on this issue.
The defendants assert that if the Act is interpreted to permit non-
statutory aggravating factors, it is unconstitutional as a delegation of
legislative authority to officers of the executive branch without any
guiding policy limiting what the prosecutors may choose to include in
their notice. There is some merit to the argument as an abstraction.
Both sides cite Mistretta v. United States, 488 U.S. 361 (1989), in
support of their respective positions concerning this delegation
argument. As noted in an earlier opinion, United States v. McVeigh and
Nichols, 1996 WL 523063, at *7 (D. Colo. 1996), the court should not
address abstract constitutional questions. There is no merit to the
defendants' arguments in the context of a sentencing hearing under Sec.
While it is true that Congress did not impose policy limitations or give
clear guidance to prosecuting attorneys as to what may be included as
non-statutory aggravating factors, the sentencing hearing is governed by
the court within the adversary process. Accordingly, the validity of
particular non-statutory aggravating factors may be litigated and
adjudicated before the court, just as is being done in the present
motions. It is then the judicial authority of the court within the
factual context of particular cases that controls the scope of the
sentencing hearing. The guiding principles for judicial determination of
the validity of particular non-statutory aggravators is the death
penalty jurisprudence developed by the Supreme Court. Thus, the
aggravating factors must serve the purpose of selection of the defendant
for the special penalty with individual consideration to his character
and particular conduct in the offense. See McCullah, 76 F.3d at 1106
(noting that non-statutory aggravating factors are guided by the
principle of individualized sentencing).
Mr. McVeigh also asserts that the addition of non-statutory aggravating
factors is barred by the Ex Post Facto clause in Art. 1, Sec. 9, of the
Constitution. The answer to that argument is that the enactment of this
statute was a change in sentencing procedure, not a change in the
definition of a crime or an increase in the punishment. Dobbert v.
Florida, 432 U.S. 282, 293-94 (1977); Hatch v. Oklahoma, 58 F.3d 1447,
1463-65 (10th Cir. 1995).
The Act does not require an appellate review of the proportionality of a
death sentence compared with others convicted of the same crime.
Recognizing that the Supreme Court held that a proportionality review is
not required by the Eighth Amendment in Pulley v. Hams, 465 U.S. 37, 43-
44 (1984), the defendants attempt to distinguish that ruling on the
ground that the California statute involved in that case did not permit
the use of non- statutory aggravating factors. Thus, a proportionality
review is urged to be an indispensable requirement to check against the
arbitrary imposition of the death penalty if non-statutory aggravating
factors are included. This attempted distinction is not persuasive. As
discussed later in this opinion, the function of aggravating factors,
whether or not statutorily required, is to provide assurance that the
jury arrives at a rational decision, after following an assessment
process adequately designed to measure the variables involved in the
crime and the circumstances of the perpetrator, to select him as
deserving the maximum punishment.
Another general challenge to the constitutionality of the Act made by
the defendants is directed to Sec. 3593(c) providing for proof of
mitigating and aggravating factors by "information" regardless of
admissibility under the Federal Rules of Evidence, "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." Thus, the only explicit standard for exclusion is an
adaptation from Fed. R. Evid. 403. The court's discretion is broader in
the penalty hearing, however, because under Rule 403 the court may
exclude relevant evidence only if its probative value is substantially
outweighed by such dangers whereas the statute has no such quantitative
limitation. Read literally, the substitution of information for evidence
in Sec. 3593(c) raises the specter of violations of the Confrontation
Clause and other fundamental protections contained in the Fifth and
Sixth Amendments. What saves the statute is the fact that the hearing is
governed by the trial judge who has considerable discretion in
controlling the presentation of the "information" to the jury in both
content and form. Congress has no authority to prevent the court from
protecting the life and liberty of a defendant by the exercise of its
Article III authority to conduct all hearings before it.
The defendants have made the general objection to most of the statutory
and non- statutory aggravating factors in the notices that they are
vague and overbroad. Analysis of the merits of this challenge requires
some reflection on the purpose and function of aggravating factors in
the sentencing scheme established by the Act. That, in turn, requires
some restatement of the Court-dictated imperatives for a
constitutionally valid sentence to death.
The Court was unable to form a plurality to support a single opinion
stating why the imposition and carrying out of the death penalty in
Georgia and Texas before 1972 constituted cruel and unusual punishment
in violation of the Eighth and Fourteenth Amendments in Furman v.
Georgia, 408 U.S. 238 (1972). Four separate opinions were filed in
support of the judgment in Gregg v. Georgia, 428 U.S.153 (1976), that a
sentence to death for murder under a new sentencing scheme adopted by
the Georgia legislature was not an unconstitutional punishment.
Individual justices have continued to struggle with attempts to
articulate their views about the imperatives of a valid procedure in the
many subsequent decisions approving and disapproving variations in state
laws governing the extreme punishment of death. They have been more
clear in stating what is prohibited than what is required. Thus, the
penalty of death may not be ordered automatically, arbitrarily,
irregularly, randomly, capriciously, wantonly, freakishly,
disproportionately or under any procedure that permits discrimination by
race, religion, wealth, social position or economic class.
To be valid, the procedure must protect against a decision motivated by
passion and prejudice. It must guide the jurors to individualized
consideration of each defendant. The aggravating factors considered must
be objectively provable and rationally related to the criminal conduct
in the offenses proven at trial. There can be no limitation on the
ability of individual jurors to consider mitigating factors. The jurors
must be unanimous if their finding is that death is justified, and the
jury must articulate the reasons in a manner enabling meaningful
appellate review. What must be clear in the end is that the jury has
performed its task of acting as the conscience of the community in
making a moral judgment about the worth of a specific life balanced
against the societal value of a deserved punishment for a particular
crime. See Arave v. Creech, 507 U.S. 463, 470-71 (1993); McClesky v.
Kemp, 481 U.S. 279, 302-03 (1986); Godfrey v. Georgia, 446 U.S. 420, 428
Congress has attempted to meet these requirements in two death penalty
statutes. The first, the Anti-Drug Abuse Act of 1988, now codified at 21
U.S.C. Sec. 848(e)- (g), provides for the possibility of the death
penalty for killings committed while the perpetrators are engaged in
certain drug crimes. The second is the Death Penalty Act, applicable to
all other offenses for which death has been legislatively prescribed as
a possible punishment. Secs. 3591-3596. Both statutes require a separate
penalty phase hearing to consider aggravating factors identified in a
pretrial notice and such mitigating factors as the defendant may
introduce at the hearing.
If there are convictions in this case requiring a penalty phase hearing,
the jury will proceed in a sequential manner, first determining whether
the government proved one of the four intentions described in Sec. 3591
(a)(2)(A) through (D). If the jurors are not unanimous in finding that
one of these intentions existed, their task is complete and the court
will sentence according to the Sentencing Guidelines. If such an
intention is found, the jury will then consider whether they are
unanimously agreed that at least one of the statutory aggravating
factors identified in the government's notice has been proved beyond a
reasonable doubt. If such a factor is found, the jury may then consider
any other aggravating factors submitted to them, if also proved beyond a
reasonable doubt, and each juror will then weigh those factors so proven
against such mitigating factors as each individual juror may find to
exist by a preponderance of the information presented at the hearing.
Sec. 3593(d) & (e). Unanimous specific findings must be made as to
aggravating factors and the jury may not return a recommendation that a
defendant be sentenced to death unless the jurors are unanimously agreed
that such aggravating factor or factors sufficiently outweigh all the
mitigating factors found to exist to justify a sentence of death. Id.
In effect, a sentence of death may not be imposed for anything other
than an intentional killing as defined in Sec. 3591(a)(2), and then only
after careful consideration of aggravating and mitigating factors
particularized as to each defendant.
The aggravating factors function to focus the jury's attention on the
particular facts and circumstances pertinent to each defendant found
guilty of an offense punishable by death in the context of mitigating
factors unique to him as an individual human being. They serve to assist
the jury in distinguishing "those who deserve capital punishment from
those who do not ...." Arave v. Creech, 507 U.S. 463, 474 (1993). The
notice filed by the government gives the defendants the opportunity to
prepare for the hearing and provides the court with some frame of
reference for ruling on objections to the information offered at the
hearing. It describes how the prosecution intends to "channel the
sentencer's discretion by 'clear and objective standards' that provide
specific and detailed guidance and make rationally reviewable the death
sentencing process." Id. at 471, quoting from Lewis v. Jeffers, 497 U.S.
764, 774 (1990).
The Supreme Court has held that aggravating factors must be in
sufficiently clear language to be understandable by the jury. Tuilaepa
v. California, 114 S.Ct. 2630, 2635- 36 (1994). In considering this
issue at this time, it must be recognized that the notices will be given
to a jury with additional instructions to assist in further narrowing
and defining the terms used and the concepts communicated.
With these general principles in mind, the particular aggravating
factors identified in the notices must be considered. The government has
given notice of five factors listed as statutory factors under Sec.
3592(c)(1). Each must be examined.
1. That the deaths or injuries resulting in death occurred during the
commission of an offense under 18 U.S.C. 33 (destruction of a motor
vehicle or a motor vehicle facility), 18 U.S.C. 844(d) (transportation
of explosives in interstate commerce for certain purposes), 18 U.S.C.
844(f) (destruction of government property by explosives), 18 U.S.C.
844(i) (destruction of property affecting interstate commerce by
explosives), and 18 U.S.C. 2332a (use of a weapon of mass destruction).
See Section 3592(c)(1)
Of the five crimes listed, three have not been charged in the
indictment. Two--Sec. 844(f) and Sec. 2332a-- are charged in the
indictment, although the reference to Sec. 2332a is indefinite in that
there are subsections to that section and two of those subsections are
charges in counts one and two of the indictment. The defendants
correctly observe that Sec. 2332a is not one of the crimes listed in
Sec. 3592(c)(1). As the government notes, it is obvious that the
reference to Sec. 2339 in the statute with the parenthetical identifier
"(use of weapons of mass destruction)" shows a typographical error. The
court accepts that position.
The defendants object to this factor because the introduction of
multiple predicate offenses to support it could confuse the jury and
lead it to consider each of the enumerated predicate offenses as being
separate aggravating factors, thereby unfairly weighting this factor and
the calculus. There are appropriate procedural answers to that
objection. First, the jury instructions can clearly advise that these
offenses are simply multiple means for determining that this single
aggravating factor, a killing in the course of another offense, is shown
to exist. Second, the jury can be required by a special interrogatory to
show unanimity in finding which of the underlying offenses they rely on
if an affirmative finding is made with respect to this first aggravating
Additionally, the defendants object to this factor because two of the
offenses referred to entirely duplicate counts of the indictment, while
others duplicate various elements of the charged crimes. The government
counters that the commission of these enumerated felony offenses narrows
the class of death-eligible defendants and fulfills the principle of
selectivity. The government correctly asserts that the Supreme Court's
opinion in Lowenfield v. Phelps, 484 U.S. 231 (1988), prevents this
factor from being stricken on the ground that it fails to narrow the
class of defendants that are eligible for the death penalty. The Tenth
Circuit applied Lowenfield in United States v. McCullah, 76 F.3d 1087
(10th Cir.1996), to uphold the use of an aggravating factor that
duplicated charges in the indictment against a narrowing challenge. The
court ruled that because the federal death penalty statute in that case,
28 U.S.C. Sec. 848(e), had already narrowed the field of death-eligible
defendants, the aggravating factor was not invalid because it failed to
further narrow that category. Id. at 1107-08. Similarly, the intent
requirement of the Act operates in this case to narrow the category of
death eligibility for the charged crimes, and thus, this first
aggravating factor does not fall under this challenge.
However, with respect to those offenses that entirely repeat a charge in
the indictment, there is a problem of duplication that was not raised in
either Lowenfield or McCullah. This problem must be viewed in the
context of the weighing procedure required by the Act. In Stringer v.
Black, 503 U.S. 222 (1992), the Supreme Court discussed the severe
effect that inappropriate aggravating factors have in a weighing scheme:
[T]he difference between a weighing State and a non-weighing State is
not one of "semantics" . . . but of critical importance. In a
nonweighing State, so long as the sentencing body finds at least one
valid aggravating factor, the fact that it also finds an invalid
aggravating factor does not infect the formal process of deciding
whether death is an appropriate penalty.... But when the sentencing body
is told to weigh an invalid factor in its decision, a reviewing court
may not assume it would have made no difference if the thumb had been
removed from death's side of the scale. 503 U.S. at 231-32 (cite omitted).
Because the Court has held that the weighing process is highly sensitive
to the influence of aggravating factors that might unfairly tip the
scales in favor of death, the government may not introduce those
offenses as aggravating factors that duplicate the crimes charged in the
indictment. To allow the jury to weigh as an aggravating factor a crime
already proved in a guilty verdict would unfairly skew the weighing
process in favor of death. Accordingly, the offenses under Sec. 844(f)
and Sec. 2332a are stricken. As to any charged offense for which a
verdict of not guilty is returned, that offense must then be stricken
from the notice because permitting the jury to find it as an aggravating
factor in a penalty hearing would result in an inconsistent verdict.
Those offenses that merely have overlapping elements with the crimes
charged in the indictment may be introduced because the penalty jury
will not have predetermined the defendant's guilt with respect to all
elements of those crimes.
The defendants also challenge the inclusion of those offenses under Sec.
3592(c)(1) that are not charged in the indictment. This challenge
presents the same issue that is raised in the defendants' objections to
the third non-statutory aggravating factor--the commission of the crimes
of burglary, robbery and theft to finance and facilitate the underlying
crimes charged. The defendants' argument is that due process requires
consideration of these other crimes only upon conviction of them. The
court agrees and the problem is solved by instructing the jury that they
must find each of the essential elements of those uncharged offenses as
a part of their finding of the existence of this aggravating factor
beyond a reasonable doubt. Adequate instructions will also answer the
defendants' objection that this statutory factor violates the Fifth
Amendment because it is too vague.
2. That the defendant, in the commission of the offense(s), knowingly
created a grave risk of death to one or more persons in addition to the
victim(s) of the offense(s). See Section 3592(c)(5).
The defendants in their vagueness objection to this factor point out
that no details are alleged and that there is uncertainty with respect
to whether an intent to place others at grave risk must be shown. Read
in the context of the factual allegations of the indictment, there is no
problem here. The government intends to prove that the truck bomb was of
such force as to create a risk to persons who were not physically
affected by the explosion. The issue is one of scope and a clarifying
instruction may validate this factor.
3. That the defendant committed the offense(s) after substantial
planning and premeditation to cause the death of one or more persons and
to commit an act of terrorism. See Section 3592(c)(9).
The defendants criticize the word "substantial" as having no definite
meaning. In this court's view, substantial is one of those everyday
words having a common sense core meaning that jurors will be able to
understand. Tuilaepa, 114 S.Ct. at 2636.
4. That various victims were particularly vulnerable due to old age,
youth, and infirmity. See Section 3592(c)(11).
There is considerable uncertainty with respect to this factor. In the
government's response to these motions, the prosecutors have not
identified which of the categories will be relied on to support the
allegation. Obviously, from the ages given for the victims listed in
count one of the indictment, the children killed in this explosion might
be considered vulnerable because of their youth. To rule out this
aggravator for vagueness at this time would be a premature determination
of its validity. The court must await the evidence, at least at the
trial of the counts of the indictment, before determining whether and to
what extent a penalty phase jury will be allowed to consider this
5. That the defendant committed the offense(s) against one or more
federal public servants who were law enforcement officers, (a) while
such victim(s) were engaged in the performance of official duties, (b)
because of such victim(s)' performance of official duties, and (c)
because of such victim(s)' status as public servants. See Section
Although the defendants again challenge this as vague and overbroad with
overlapping categories, the court's principal concern here is with
duplication of the crimes charged in the eight murder counts. As noted
in the court's previous memorandum opinion and order relating to the
facial validity of the indictment, United States v. McVeigh and Nichols,
1996 WL 523063 (D. Colo. 1996), the government has made clear that for
conviction on these counts it will rely on the fact that the victims
named in them were law enforcement officers who were killed while
engaged in the performance of official duties. To that extent, there is
an unwarranted duplication. The notice, however, includes the assertion
that these and perhaps other persons were killed because of the
performance of their official duties and because of their status as
public servants. Because this factor differs from the crime in the
indictment, it is not duplicative. Whether there will be adequate
"information" to support this contention will be a matter to be
addressed after a penalty phase hearing.
The government has included four non-statutory aggravating factors in
1. That the offense(s) committed by the defendant resulted in multiple
deaths of 169 persons.
The defendants object that this duplicates counts one and two in the
indictment. While that is true with respect to the allegations that
deaths resulted, the government will not be required to prove the
specific number of persons whose deaths resulted from criminal acts to
obtain convictions. Thus, this non-statutory factor does not duplicate
the proof at trial, but simply permits the jury to consider the number
of persons killed and weigh that fact in determining the penalty.
2. That, in committing the offense(s) charged in the indictment, the
defendant caused serious physical and emotional injury, including
maiming, disfigurement, and permanent disability, to numerous
This is objected to as duplication but the same analysis made in
approving the previous aggravating factor is appropriate. It is not only
that some persons were maimed, disfigured and injured. The number of
such persons warrants consideration by the jury in the selection
3. That the defendant committed, caused, and aided and abetted acts of
burglary, robbery, and theft to finance and otherwise facilitate the
commission of the capital offense(s) charged in the indictment.
Again, the defendants assert that there must be convictions of such
crimes to warrant their consideration. As previously noted, the court
will require, by its instructions, that the jury find beyond a
reasonable doubt that all of the essential elements of these crimes have
been proved and that the motivation for them was to finance and
facilitate the crimes of conviction.
4. Victim impact evidence concerning the effect of the defendant's
offense(s) on the victims and the victims' families, as evidenced by
oral testimony and victim impact statements that identify the victims of
the offense(s) and the extent and scope of injury and loss suffered by
the victims and the victims' families.
This is the most problematical of all of the aggravating factors and may
present the greatest difficulty in determining the nature and scope of
the "information" to be considered. Congress expressly provided for
victim impact consideration in the Death Penalty Statute but it did not
put any limits on what can be considered. Sec. 3593(a). That is a matter
for the court's discretion and must be determined with consideration for
the constitutional limitation that the jury must not be influenced by
passion or prejudice. Payne v. Tennessee, 501 U.S. 808, 825 (1991).
However, because victim impact evidence is relevant only to demonstrate
the specific harm caused by a particular crime, id., it seems clear that
the victims' testimony must reflect the harm caused by the criminal
conduct, rather than the impact of the trial proceedings. This point
supports the court's ruling that Rule 615 applies to exclude from the
trial proceedings those persons who may testify as victims giving
evidence to support this factor at the penalty hearing.
Upon the foregoing, it is
ORDERED that with the exception of the deletions necessary to avoid
invalid duplication in the aggravating factors, the defendants' motions
Dated: September 25, 1996
BY THE COURT.
/s/ Richard P. Matsch, Chief Judge
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