DocketNumber: Case No. 6:17-cr-15-Orl-37KRS
Citation Numbers: 337 F. Supp. 3d 1186
Judges: Dalton
Filed Date: 10/10/2018
Status: Precedential
Modified Date: 7/25/2022
Now before the Court are the parties' pre-trial motions in this federal capital case for which the Court determined no hearing is required.
BACKGROUND
On February 14, 2018, the grand jury returned a three-count second superseding indictment charging Defendant Jarvis Wayne Madison with: (1) kidnapping that resulted in a death in violation of
Beyond being eighteen or older at the time of the offense, the Government proposed as statutory threshold factors that Defendant: (1) intentionally killed the victim; (2) intentionally inflicted serious bodily injury that resulted in the death of the victim; (3) intentionally participated in an act, contemplating that the life of a person would be taken and intending that lethal force would be used in connection with a person, other than one of the participants in the offense, and the victim died as a direct result of that act; and (4) intentionally and specifically engaged in an act of violence, knowing that the act created a grave risk of death to a person, other than one of the participants in the offense, such that participation in the act constituted a reckless disregard for human life and the victim died as a direct result of such action. (Id. at 2-3 (citing
For statutory aggravating factors, the Government proposed one: the death of the victim or injury resulting in the death of the victim occurred during the commission or attempted commission of, or during the immediate flight from the commission of, the kidnapping. (Id. at 3 (citing § 3592(c)(1) ).) Last, the Government proposed two non-statutory aggravating factors: victim impact and pattern of domestic abuse. (Id. at 4 (citing § 3593(a)(2) ) ); see also § 3592(c) ("The jury ... may consider whether any other aggravating factor for which notice has been given exists.").
Following this, the parties filed various pre-trial motions that have now been fully briefed. The Court takes each in turn, but starts with an overview of the FDPA.
DISCUSSION
I. Federal Death Penalty Act
To be eligible for the death penalty under the FDPA, a defendant must first be found guilty of a death penalty eligible crime.
*1193If eligibility is met, the jury "shall consider whether all the aggravating factor or factors found to exist sufficiently outweigh all the mitigating factor or factors found to exist to justify a sentence of death." § 3593(e). To that end, the FDPA allows the presentation of information "as to any matter relevant to the sentence ... regardless of its admissibility under the rules governing admission of evidence at criminal trials 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." § 3593(c). The Government maintains the burden of establishing aggravating factors beyond a reasonable doubt, while the defendant has the burden of establishing mitigating factors by a preponderance of the information.
With that backdrop, the Court turns first to Defendant's motions.
II. Defense Motions
A. Motion to Declare
First, the Court tackles Defendant's motion to declare the federal kidnapping statute unconstitutional and strike the Notice. (Doc. 290.) The Government opposes. (Doc. 304.)
1. Factual background
Married in 2013, Defendant and the victim, R.M., were estranged at the time of the offenses charged in the Indictment. (Doc. 304, p. 4.) On November 15, 2016, R.M. reported a domestic violence incident to the Indiana state police. (Id. ) During the incident Defendant confined R.M. inside his car, at gunpoint, and verbally threatened to kill her. (Id. ; see also Doc. 1, ¶ 6) When R.M. first attempted to escape, Defendant fired a single round shot at R.M, narrowly missing her. (Doc. 304, p. 4; see also Doc. 1, ¶ 6.) On her second escape attempt, R.M. succeeded, taking refuge in a Wal-Mart where a store employee called 911. (Doc. 304, p. 4.)
An Indiana State Police Trooper responded to the 911 call and made an official report concerning the incident. (Id ; see also Doc. 1, ¶ 7.) By the time law enforcement arrived, Defendant fled the scene. (Doc. 304, p. 4.) Following the incident, R.M. left Indiana with her aunt, traveling to Ormond Beach, Florida where she resided with her aunt until her disappearance on November 27, 2016. (Id. )
According to the Government, beginning on November 15, 2016, after R.M. fled to Florida, Defendant began travelling southbound. (Id. at 4-5.) On November 27, 2016, he arrived in Volusia County where he first surveilled the house of R.M.'s aunt. (Id. at 6; see also Doc. 1, ¶ 9.) That same day, R.M. went jogging and Defendant, disguised, approached R.M. (Doc. 304, p. 6.) At some point between November 27, 2016, and December 2, 2016, Defendant shot R.M. multiple times while she was a passenger in his car. (Id. ) Following R.M.'s disappearance, her aunt reported her missing to law enforcement. (Id. at 7.) On December 2, 2016, law enforcement located and arrested Defendant in Louisville, Kentucky *1194where he ultimately admitted to shooting R.M. three times while inside his car but claimed she voluntarily went with him from Florida. (Id. ; see also Doc. 1, ¶ 12.) Defendant then agreed to assist law enforcement in locating R.M.'s remains, and that evening he led agents to the site of R.M.'s burial where they located R.M.'s partially buried body. (Doc. 304, p. 8; Doc. 1, ¶¶ 12, 17.)
2. Analysis
Section 1201(a) criminalizes kidnappings when a defendant "unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person ... when the person is willfully transported in interstate or foreign commerce." Defendant brings both a facial and as-applied challenge, contending that § 1201(a) is unconstitutionally vague under the Fifth and Eighth Amendments and overbroad under the First Amendment.
The Fifth Amendment's due process guarantee is violated "by taking away someone's life, liberty, or property under a criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement." Johnson v. United States , --- U.S. ----,
Even if a law is not unconstitutionally vague it may be impermissibly overbroad. Agan v. Vaughn ,
a. As-applied challenge
First, Defendant claims that the portion of § 1201(a) that refers to holding a victim "for ransom or reward or otherwise" is unconstitutional as applied to his conduct. (Doc. 290, p. 11.) An as-applied *1195challenge addresses whether a statute is unconstitutional on the facts of a particular case. See, e.g., United States v. Vickers ,
To begin, Defendant's argument does not appear to be constitutional challenge at all; rather, his contention attacks only the Government's ability to prove its case.
To the extent Defendant's as-applied challenge seeks to invalidate § 1201(a) on more than just the sufficiency of the evidence, it is not appropriately raised pre-trial. Whether Defendant's conduct sufficiently brings him within the prohibitions proscribed by § 1201(a)(1) depends on a consideration of facts, and because the facts proffered here may or may not be developed at trial, it is premature to resolve the as-applied constitutional challenge. See, e.g., United States v. Graves , No. 1:13-cr-417-WSD-JSA,
The Government's suggestion that Defendant's as-applied vagueness argument is foreclosed by binding and persuasive authority in the Eleventh Circuit is misplaced in the context of an as-applied challenge. (Doc. 304, pp. 12-14.) It relies on Vickers ,
b. Facial challenge
Next, Defendant asserts a go-for-broke proposition that § 1201(a) is facially invalid, claiming it is both vague and overbroad. (See Doc. 290, pp. 7-11.) As noted above, a law is vague if " 'it either denies fair notice to defendants' or 'invites arbitrary enforcement by judges.' "
*1196Caldwell ,
Were the Court confined to the words of § 1201(a) alone, Defendant's argument may have merit. But the Court does not work from a blank slate. Courts have interpreted the phrase "or otherwise" to include nonpecuniary motives. See United States v. Healy ,
Defendant's overbreadth argument also lacks merit. In Defendant's view, § 1201(a) reaches constitutionally protected activity because it interferes with a First Amendment right to association, namely marriage. (Doc. 290, p. 7.) Relying on Chatwin v. United States ,
B. Motion to Strike Death Penalty Notice Because the Federal Death Penalty Act Violates the Tenth Amendment to the United States Constitution
Next, Defendant seeks a declaration that the FDPA is unconstitutional because *1197two of its provisions violate the state-federal balance safeguarded by the Tenth Amendment, compelling state officials to carry out federal executions. (Doc. 300.) Based on this constitutional infirmity, he requests the Court strike the Notice. (Id. at 2.) The Government opposes and presents two arguments: (1) Defendant's claim is not ripe because he does not have an execution date; and (2) the plain language of the FDPA defeats Defendant's constitutional challenge under the Tenth Amendment. (Doc. 310.) On review, the Government's first argument carries the day.
The Tenth Amendment provides that "[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." U.S. Const. amend. X. So Congress' legislative powers are not plenary, rather they are limited as enumerated. See
Here, Defendant's constitutional challenge focuses on two allegedly offending provisions-
A person who has been sentenced to death pursuant to this chapter shall be committed to the custody of the Attorney General until exhaustion of the procedures for appeal of the judgment of conviction and for review of the sentence. When the sentence is to be implemented, the Attorney General shall release the person sentenced to death to the custody of a United States marshal, who shall supervise implementation of the sentence in the manner prescribed by the law of the State in which the sentence is imposed. If the law of the State does not provide for implementation of a sentence of death, the court shall designate another State, the law of which does provide for the implementation of a sentence of death, and the sentence shall be implemented in the latter State in the manner prescribed by such law [ ("Implementation Provision ") ].
§ 3596(a). The FDPA also provides for the use of state facilities to implement federal executions:
A United States marshal charged with supervising the implementation of a sentence of death may use appropriate State or local facilities for the purpose, may use the services of an appropriate State or local official or of a person such an official employs for the purpose, and shall pay the costs thereof in an amount approved by the Attorney General. [ ("Use Provision ") ].
The ripeness doctrine springs "from the Constitution's Article III requirement that the jurisdiction of the federal courts be limited to actual cases or controversies." Elend v. Basham ,
*1198(quoting Beaulieu v. City of Alabaster ,
Here, Defendant posits that the Implementation and Use Provisions could-at some future date following his conviction and sentencing-conscript state officials to carry out his death sentence, which would violate the Tenth Amendment. (Doc. 300, pp. 6-17.) But this argument is not ripe, rooted in speculation, as the Court is still in the pre-trial posture and no death sentence has been imposed. As such, the Court can neither address nor strike down these FDPA provisions as unconstitutional. See, e.g., United States v. Sampson , No. 01-10384-LTS,
C. Motion for Order Striking Death Penalty Notice as Offending Evolving Standards of Decency Based Upon Defendant's Irreversible Serious Mental Illness and Substantial Brain Damage
Continuing on, Defendant moves to strike the death penalty notice based on mental illness and substantial brain damage. (Doc. 301.) Invoking the Eighth Amendment's "evolving standards of decency" framework relied on by the Supreme Court in Atkins v. Virginia ,
On review, the Court agrees with the Government. Since Atkins , the Supreme Court has not added individuals *1199with mental illnesses or severe brain damage to the category of individuals who cannot receive the death penalty. Rather, evidence of a defendant's mental illness may be presented to the jury during the sentencing phase as a mitigating factor for not imposing the death penalty. See
D. Motion to Strike Death Penalty Notice Based Upon Influence of Arbitrary Factor-Race and Gender of Victim
Defendant then challenges the death penalty notice as unconstitutional in light of the race and gender of the victim here. (Doc. 264.) Relying on statistical findings, Defendant contends that when the victim is a white female, the likelihood of a federal death sentence increases. (Id. at 14-16.) From this correlation, Defendant avers he has established a prima facie case that: (1) he has suffered and is likely to continue to suffer prejudice compared to similarly situated death-eligible federal defendants; and (2) the federal death penalty is arbitrary.
First, "to prevail under the Equal Protection Clause, [Defendant] must prove that the decisionmakers in his case acted with discriminatory purpose." See McCleskey v. Kemp ,
Similarly, Defendant's Eighth Amendment challenge founders. He claims his statistics show the imposition of the federal death penalty is unconstitutionally arbitrary. (Id. at 18-20.) Again, McCleskey negates this argument. See
Against this, Defendant's cited statistics demonstrate no constitutionally significant risk of racial and gender bias under the FDPA for Defendant. (See Docs. 264, pp. 5-20; 264-1.) Rather, Defendant takes an amalgam of articles and studies discussing race and gender outcomes in state capital cases to extrapolate that when the victim is a white female, the death penalty is more likely. (Id. at 5-13.) Then, Defendant relies on an outcome-driven statistical analysis of federal capital cases that found a statistically significant correlation between the presence of a white female victim and the likelihood of a death sentence. (Id. at 14-16; Doc. 264-1.) But like the study rejected in McCleskey , such "[s]tatistics at most may show only a likelihood that a particular factor entered into some decisions." See
E. Motion to Strike Notice of Intent to Seek Death Due to Evolving Standards of Decency that Preclude a Death Penalty Based Solely on the Felony-Murder Aggravating Factor
In this motion, Defendant submits that seeking the death penalty when the sole statutory aggravating factor is that the death occurred during the commission of another crime is arbitrary and violates the Eighth Amendment's evolving standards of decency. (Doc. 254.) Boiled down, Defendant argues that because he is charged with kidnapping resulting in a death under
The Government is correct. "To pass constitutional muster, a capital sentencing scheme must 'genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found *1201guilty of murder.' " Lowenfield v. Phelps ,
For Defendant, the sole statutory aggravating factor charged is "death during commission of another crime." (Doc. 230, p. 3.) As defined, this factor requires finding "[t]he death, or injury resulting in death, occurred during the commission or attempted commission of, or during the immediate flight from the commission of , an offense under ... section 1201 (kidnapping)."
Accordingly, Defendant's motion to strike the death penalty notice on this ground fails. Seeking the death penalty here, with a statutory aggravating factor that genuinely narrows the class of death-eligible people, does not violate the Eighth Amendment. So the motion is denied.
F. Motion to Preclude the Death Penalty Because the Government's Arbitrary Use of the Death Penalty Under the Federal Death Penalty Act is Unconstitutional
Now, adopting the kitchen sink approach, Defendant seeks to preclude the imposition of the death penalty on Fifth and Eighth Amendment grounds. (Doc. 303.) Relying heavily on an opinion from Judge Crawford in the capital case United States v. Fell , Justice Breyer's dissent in Glossip v. Gross , and various studies, Defendant levels a fusillade of arguments that, as the Government's opposition points out, have all been previously rejected. (See
First, Defendant again claims that FDPA is arbitrary because it does not genuinely narrow the set of defendants eligible for the death penalty, i.e. the constitutionally required narrowing function. (Doc. 303, pp. 4-6.) But as the Court just analyzed, the statutory aggravating factor charged here is constitutional. See supra *1202Part II.E. And adding the two non-statutory aggravating factors charged-victim impact and a pattern of domestic abuse-further narrows the jury's discretion in imposing the death penalty, thus ensuring the requisite "individualized determination." See Zant ,
Next, Defendant claims that geographic disparity, the white female victim effect, infrequency of capital prosecution for felony murder, the lack of aggravated circumstances, defense counsel funding discrepancies, the jury death-qualification process, the lack of clarity in jury instructions, and the Department of Justice's ("DOJ ") administration of the death penalty all render the imposition of the death penalty here unconstitutional. (Doc. 303, pp 6-19.) As support, Defendant relies on statistics, summaries of other capital cases, various studies, and the United States Attorneys' Manual protocol for capital cases. (See
For starters, Defendant's cited evidence does not overcome McCleskey , as Defendant still points to general statistical disparities without application to his circumstances. See supra Part II.D. (discussing McCleskey ). Beyond this, not to sound like a broken record, but because the FDPA embodies a constitutional sentencing scheme, differences in outcomes and its administration do not render it arbitrary. See supra Parts II.D, E. Last, Defendant's jury-based arguments ignore Supreme Court precedent that requires "juror[s] who in no case would vote for capital punishment ... [to] be removed for cause" and presumes that "jurors follow their instructions." Morgan v. Illinois ,
G. Motion to Dismiss Indictment and to Declare the U.S. Middle District Jury Plan Unconstitutional
Defendant's closing constitutional challenge centers on this district's jury selection process, which he contends abridges the fair-cross section requirement of the Sixth Amendment and the Jury Selection and Service Act ("JSSA ") by systematically underrepresenting African Americans and Hispanics. (Doc. 363, p. 6, 9-23.) Binding Eleventh Circuit precedent says otherwise.
To establish a prima facie violation of the fair cross-section requirement, both constitutional and statutory, a defendant must show: (1) the excluded group is "distinctive" in the community; (2) the representation of this group in venires is not fair and reasonable in relation to its numbers in the community; and (3) this underrepresentation is due to the systematic exclusion of the group in the jury selection process. United States v. Pepe ,
Here, Defendant cannot get past the second element. The "relevant comparison" is the difference between the percentage of the "distinctive group" in the population eligible for jury service and the percentage of the group in the qualified jury wheel. Id. (citation omitted); see also United States v. Carmichael ,
H. Motion to Trifurcate Proceedings
The final defense motion seeks to trifurcate the trial into three phases: (1) merits; (2) eligibility; and (3) selection. (Doc. 245, pp. 1-2.) First, the merits phase would determine Defendant's guilt of the crimes charged. (Id. at 1.) If Defendant is found guilty of Count One, kidnapping, the jury would then determine in the eligibility phase whether he is eligible for the death penalty, considering his mental state and the existence of the felony murder statutory aggravating factor. (Id. at 2.) Last the jury in the selection phase would consider the appropriate penalty to recommend, weighing evidence related to the non-statutory aggravating factors of victim impact and pattern of domestic abuse against Defendant's mitigating factors. (Id. at 3.)
Defendant contends trifurcation is appropriate to ensure the jury's eligibility determination is not prejudiced by powerful victim impact and domestic abuse testimony, and because it will conserve judicial resources. (Id. ) In response, the Government argues that: (1) trifurcation is not statutorily or constitutionally required; (2) Defendant's concerns of spillover prejudice from victim impact or pattern of domestic abuse testimony are unfounded and can be addressed by carefully crafted jury instructions; and (3) trifurcation unduly burdens everyone involved in the case and causes jury confusion. (See Doc. 267.) In reply, Defendant delved into cases the Government relied on to support its position, distinguishing them. (Doc. 276.) On review, the Court agrees with Defendant.
The FDPA requires splitting a capital case between the merits and sentencing.
"A trifurcated proceeding allows a district court not only to avoid the admission of prejudicial evidence before the eligibility decision, but also to delineate clearly between the applications of the Confrontation Clause in the eligibility and selection phases."
Here, the Notice charges Defendant with one statutory aggravating factor-that the death occurred during the commission of the kidnapping. (See Doc. 230.) So beyond the gateway mental state factors, the Government must prove this factor's existence for Defendant to be eligible for the death penalty. See
According to the Government, trifurcation is not necessary because any risk of "spillover prejudice" from victim impact evidence or pattern of domestic abuse evidence-which it "no doubt" recognizes "may be emotional and powerful"-can be addressed "by carefully worded jury instructions." (Doc. 267, p. 6.) For this, it relies on Bolden , where the Eighth Circuit found no abuse of discretion in the district court's denial of a motion to bifurcate the penalty phase premised not on the risk of prejudice from victim impact testimony, but on the risk presented by introducing the defendant's criminal history. See
At this juncture, decently apprised of the type of evidence the Government would put on for victim impact and pattern of domestic abuse factors, the Court is absolutely persuaded of its prejudicial import. And hearing this evidence before deciding whether Defendant is eligible for the death penalty carries a high, if not insurmountable, risk that it will unfairly skew that finding. See, e.g., Johnson ,
Having disposed of Defendant's pre-trial motions, the Court turns to the Government's.
III. Government Motions
A. Motion to Preclude Comparative Proportionality Evidence and Arguments
First up is the Government's penalty phase motion in limine to preclude comparative proportionality evidence and arguments (Doc. 256), to which Defendant filed an initial response (Doc. 271). The Government seeks exclusion of evidence or argument by Defendant comparing the facts of this case to "any other case, particularly similarly situated cases in which a sentence of death was not imposed." (Doc. 256, p. 1.) Such evidence is not constitutionally required, and the Government contends comparing this case to others is not relevant to Defendant's presentation of mitigating factors. (Id. at 2-3.) Moreover, the Government argues that the probative value of such evidence is outweighed by its potential for confusing the issues here and misleading the jury. (Id. at 3-5.)
In response, Defendant notes that his preliminary analysis of comparative proportionality reveals this case is in a world of its own. (Doc. 271, pp. 1-5.) Based on this, any evidence Defendant might present diverges from comparative proportionality evidence historically sought to be admitted and rejected on a probative value assessment-what the Government cites. (Id. at 5-13.) Plus, Defendant does not know yet what proportionality evidence he might seek to admit, so he ultimately asserts that this motion is premature. (Id. at 12-13.) When the time comes that Defendant's comparative proportionality assessment is complete, he asks the Court to then balance its probative value against the risk of unfair prejudice. (Id. )
On review, the Court agrees with Defendant. At this point, neither party knows what, if any, comparative proportionality evidence Defendant may seek to admit. So any present attempt to assess its admissibility *1206would be going in blind. Should Defendant's comparative proportionality investigation unearth relevant and probative evidence that he seeks to offer in the penalty phase, and the Government objects, the Court will then assess its admissibility. But not now. Hence, the Court denies this motion without prejudice.
B. Motion to Preclude Execution Impact Evidence
At bat now is the Government's penalty phase motion in limine to preclude execution impact evidence (Doc. 257), which Defendant opposes (Doc. 265). Acknowledging a capital defendant's right to present any relevant mitigating evidence in the penalty phase, the Government submits that this does not extend to evidence on the impact Defendant's execution would have on those who love him. (Doc. 257, pp. 5-10.) Specifically, the Government seeks to exclude testimony from Defendant's family and friends regarding their love for him, the impact his death would have on them, their personal views on the death penalty, what they consider an appropriate sentence, or general pleas for sympathy or mercy. (Id. at 4-5.) Testimony of this nature, the Government contends, falls outside the scope of relevant mitigating evidence and improperly spotlights the impact of a death sentence on third parties. (Id. at 5-10.) Furthermore, the Government notes that execution-impact testimony is not required and has been excluded on these grounds before. (See id. at 2-9.)
But the issue is not quite so clear cut. As Defendant points out, many courts have permitted some form of execution impact testimony as relevant mitigating evidence. (See Doc. 265, pp. 2-7 (collecting capital cases); pp. 7-9 (state cases).) Certainly, the Government is correct that some courts have adopted a categorical exclusion approach. See, e.g., United States v. Snarr ,
Ultimately, the Court finds it appropriate to adopt the nuanced approach. Whether such testimony constitutes relevant mitigating evidence will depend on what Defendant seeks to introduce. See United States v. Hager ,
C. Motion to Preclude Unsworn Allocution by Defendant
Moving along, the Government filed another penalty phase motion in limine to preclude unsworn allocution by Defendant. (Doc. 258.) Its argument is rooted in the absence of a constitutional or *1207statutory right of allocution and the inapplicability of Federal Rule of Criminal Procedure 32 in capital jury trials. (Id. at 1-5.) The Government also opines that allocution would not constitute admissible mitigating evidence under the FDPA's evidentiary standard and notes that Defendant already has the right to testify during which he could personally address the jury. (Id. at 5-6.)
In response, Defendant objects to a pre-trial ruling on this matter and raises the issue of his competency. (Doc. 272, p. 2.) Then, substantively speaking, Defendant argues that precluding allocution deprives him of a fair jury trial and due process. (Id. at 3-10.)
On review, the Court agrees with Defendant that this issue cannot be decided pre-trial. Rather, in the event of a penalty phase, Defendant's right of allocution must take into account whether he testifies, mitigating evidence, and other factors that simply cannot be assessed at this time. With this, the Court will deny this motion without prejudice. The Government may raise an appropriate objection at trial.
D. Motion in Limine to Admit Statements of Victim Pursuant to Federal Rule of Evidence 803(3)
Last but certainly not least, the Court turns to the Government's motion in limine to admit statements of the victim under Federal Rule of Evidence 803(3). (Doc. 322.) The Government seeks to admit statements R.M. made to family members and others following her alleged escape from Defendant on November 15, 2016. (Id. at 1-3.) The Government maintains these statements are relevant under Federal Rule of Evidence 401 and admissible under Rule 803(3) as an exception to hearsay because they are statements of a declarant's then-existing state of mind. (Id. at 4-6.) In response, Defendant seeks exclusion of these statements as unfairly prejudicial under Rule 403. (Doc. 335, pp. 4-6.) But if these statements are to be admitted, Defendant seeks to limit the testimony to R.M.'s state of mind, without accompanying explanation of why she felt that way, and requests a limiting instruction. (Id. at 1-4.)
On review, the Court will grant the motion in part, limiting testimony to R.M.'s state of mind without any accompanying explanation. Contrary to Defendant's 403 argument, the probative value of these statements is clear: they paint a picture of the circumstances surrounding R.M.'s alleged escape and stint in Florida. And because the Court will limit their content, as explained next, this lessens their prejudicial import. See United States v. King ,
*1208• R.M. communicating by telephone with an individual the evening of November 15, 2016 and November 16, 2016 that she was "finally free." (Doc. 322, p. 2.)
• R.M. telling T.N. on or about November 18, 2016 that "she would never go back with the Defendant, and stressed that her relationship with the Defendant was over"; R.M. expressing "a desire to get a divorce and move on with her life; and R.M. stating "she wanted to sell the jewelry the Defendant had given her." (Id. )
• R.M.'s statements between November 18, 2016 and November 27, 2016 of her "desire to move on from the Defendant, reside in Ormond Beach with T.N., and obtain employment." (Id. )
• R.M.'s statements to B.B. that "she was relieved to be away from Defendant"; that she was "worried"; her "plans to obtain restraining orders against the Defendant, as well as taking other measures to hide from the Defendant"; and that she "was positive and upbeat, and stated she had no intentions of reuniting with the Defendant." (Id. at 2-3.)
• R.M.'s statements to C.D. on or about November 24, 2016 that "R.M. was grateful to have her life back" but "was worried"; "she was never going back to the Defendant"; "she wanted her things back from the Defendant"; "had no desire to go back to the Defendant"; and she "cried several times when talking with C.D., and expressed sadness." (Id. at 3.)
All of these statements are declarations of condition or intent or plan, so they are admissible under Rule 803(3). Conversely, these statements are inadmissible:
• R.M.'s statement to T.N. on or about November 18, 2016 that "she believed the Defendant would kill her (R.M.) if he ever saw R.M. not wearing the jewelry he purchased for her." (Id. at 2.)
• R.M.'s reasoning behind her statement to B.B. that she was worried-because "the Defendant would track her down." (Id. )
• R.M.'s reasoning behind her statement of worry to C.D. "that the Defendant would come and find her and hurt her." (Id. at 3.)
• R.M.'s reasoning behind crying and expressing sadness to C.D. that "she had missed so many birthdays of family members and other important events while with the Defendant." (Id. )
• C.D. asking R.M. "why she came to Florida, given that the Defendant knew she had escaped with T.N. and could track her to Florida" and R.M's response that "it did not matter where she went, that the Defendant would find her anyway." (Id. at 3.)
• Any explanation behind R.M.'s statements between November 18, 2016 and November 27, 2016 where she expressed a desire to move on from the Defendant, reside in Ormond Beach with T.N., and obtain employment. (See id. at 2.)
• Any explanation for when R.M. contacted B.B. in Ormond Beach and stated she "was relieved to be away from the Defendant." (See id. )
As such, the admissible statements are narrowly limited to R.M.'s present state of *1209mind, not why she held that state of mind. See Samaniego ,
CONCLUSION
Accordingly, it is ORDERED AND ADJUDGED as follows:
1. Defendant's Motion to Declare18 U.S.C. § 1201 (a) Unconstitutional and to Strike the Capital Punishment Notice (Doc. 290) is DENIED .
2. Defendant's Motion to Strike Doc. 230 (Notice of Intent to Seek the Death Penalty) Because the Federal Death Penalty Act Violates the Tenth Amendment to the United States Constitution (Doc. 300) is DENIED .
3. Defendant's Motion for Order Striking Death Penalty Notice as Offending "Evolving Standards of Decency," Based Upon Defendant's Irreversible Serious Mental Illness and Substantial Brain Damage (Doc. 301) is DENIED .
4. Defendant's Motion to Strike Death Penalty Notice Based Upon Influence of Arbitrary Factor-Race and Gender of Victim (Doc. 264) is DENIED.
5. Defendant's Motion to Strike Notice of Intent to Seek Death Due to Evolving Standards of Decency that Preclude a Death Penalty Based Solely on the Felony-Murder Aggravating Factor (Doc. 254) is DENIED .
6. Defendant's Opposed Motion to Preclude the Death Penalty Because the Government's Arbitrary Use of the Death Penalty Under the Federal Death Penalty Act Is Unconstitutional (Doc. 303) is DENIED .
7. Defendant's Motion to Dismiss Indictment and to Declare the U.S. Middle District Jury Plan Unconstitutional (Doc. 363) is DENIED .
8. Defendant's Motion to Trifurcate Proceedings (Doc. 245) is GRANTED .
9. The United States' Penalty Phase Motion in Limine to Preclude Comparative Proportionality Evidence and Arguments and Incorporated Memorandum (Doc. 256) is DENIED WITHOUT PREJUDICE .
10. The United States' Penalty Phase Motion in Limine to Preclude Execution Impact Evidence and Incorporated Memorandum (Doc. 257) is DENIED WITHOUT PREJUDICE .
11. The United States' Penalty Phase Motion in Limine to Preclude Unsworn Allocution by the Defendant and Incorporated Memorandum (Doc. 258) is DENIED WITHOUT PREJUDICE .
12. The United States' Motion in Limine to Admit Statements of Victim Pursuant to Fed. R. Evid. 803(3) is GRANTED IN PART AND DENIED IN PART to the extent identified in this Order.
DONE AND ORDERED in Chambers in Orlando, Florida, on October 10, 2018.
The Court has announced its intent to hold a hearing on Defendant's motion to exclude pattern of domestic abuse evidence in the penalty phase (Doc. 223), pending resolution of Defendant's second competency determination. (See Docs. 237, 353).
Given the procedural posture of this motion, the Court recites the facts as set forth in the Government's brief (Doc. 304) and the Criminal Complaint (Doc. 1).
Defendant maintains that § 1201(a) also violates the Sixth Amendment, but he cites no authority challenging § 1201(a) under the constitutional guarantees of the Sixth Amendment. (See Doc. 290.). (See Doc. 290, pp. 1, 2-3.) The Court construes the motion accordingly.
While unpublished opinions are not binding precedent, they may be considered as persuasive authority. See 11th Cir. R. 36-2 ; see also United States v. Almedina ,
The decisions of the former Fifth Circuit rendered before October 1, 1981 are binding on the Eleventh Circuit. Bonner v. City of Prichard ,
Indeed, the authority Defendant summoned overturned the kidnapping convictions based on insufficient evidence, not on constitutional grounds. (See Doc. 290, pp. 6-7.)
Admittedly, the standard for facial challenges has been the source of heated debate in the Supreme Court. See United States v. Frandsen ,
At that start of this motion, Defendant states he is relying on the Fifth, Sixth, and Eighth Amendments, but then refers only to the Eighth Amendment throughout the motion, save for one sentence at the end where he invokes the Equal Protection Clause of the Fourteenth Amendment. (See Doc. 301.) Thus, the Court construes this motion as an Eighth Amendment challenge alone.
Again, this motion blanketly asserts that the Fifth, Sixth, and Eighth Amendments are violated without elaboration. (See Doc. 264, pp. 1, 2, 21.) On review, the Court construes the motion as raising a Fifth Amendment equal protection challenge and an Eighth Amendment arbitrary challenge, which Defendant substantively argued. (See id. at 16-20.)
As Defendant recognizes, because he cannot overcome the second element with the absolute disparity test, the Court need not address his arguments on the third element regarding systematic exclusion. (See Doc. 353, pp. 15-16; see generally id. at 15-23); Pepe ,