Opinion

United States v. Sampson

275 F. Supp. 2d 49
2003 U.S. Dist. LEXIS 14050
2003 WL 21910676

Court: District Court, D. Massachusetts
Filed: Aug 11, 2003
Status: Published
Author: Wolf
On the bench: Wolf
Cited by: 20 cases
Authority: More cited than 62.4%

finding that the defendant did not demonstrate that the FDPA was unconstitutional despite the risk in executing an innocent person

How later courts described this case

finding that the defendant did not demonstrate that the FDPA was unconstitutional despite the risk in executing an innocent person
noting that a majority of Justices in Herrera agreed that execution of an innocent person would be unconstitutional, which implies that a meritorious freestanding claim of innocence would warrant relief
elucidating the difference between problems of standing and the substantive test that is applied to a facial challenge
the purpose of nonstatutory aggravating factors is to allow the State to advocate “concerning the propriety of the death penalty in a particular case”

Written by the judges who cited it.

The opinion

MEMORANDUM AND ORDER

WOLF, District Judge.

I. BACKGROUND AND SUMMARY

Defendant Gary Lee Sampson is charged with two counts of carjacking resulting in death in violation of 18 U.S.C. § 2119 (3). The Attorney General has filed a notice of his intention to seek the death penalty.

Sampson has moved to dismiss the death penalty charges against him and also challenges the government’s right to present certain evidence in support of them. Although Sampson raises at least one serious issue, each of his thirteen claims is either without merit or not ripe for resolution. Therefore, his motions to dismiss the death penalty charges and for certain other relief are being denied.

The fundamental facts of this case are not in dispute. On July 23, 2001, Sampson, a 41-year old white male who was wanted for committing a series of bank robberies in North Carolina, called the Boston Office of the Federal Bureau of Investigation (the “FBI”) to ask that the FBI arrest him. The call was received by William Anderson, an FBI employee. Although Sampson reportedly waited in Ab-ington, Massachusetts for the FBI to arrive, he was not arrested. Anderson had disconnected Sampson’s call and did not report it to anyone. .

On July 24, 2001, Phillip McCloskey, a 69-year old white retiree, picked up Sampson, who was hitchhiking. Sampson subsequently murdered McCloskey and attempted to steal his car.

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On July 27, 2001, Sampson was hitchhiking again. He was picked up by Jonathan Rizzo, a white college student. Sampson murdered Rizzo and stole his automobile.

On July 30, 2001, Sampson encountered Robert Whitney in New Hampshire. Sampson murdered Whitney and took his automobile.

On July 31, 2001, William Gregory picked up Sampson who was hitchhiking in Vermont. Sampson pulled a knife and ordered Gregory to drive down a dirt road. Gregory, however, jumped out of his automobile, which Sampson drove away. Gregory reported that his car had been stolen. Shortly thereafter, Sampson called 911 to surrender.

Sampson was arrested by the Vermont State Police and quickly confessed his crimes, including the murders of McClos-key, Rizzo, and Whitney. He also said that he had sought to surrender to the FBI before committing those murders.

In August 2001, Sampson was charged by the Commonwealth of Massachusetts for the murders of McCloskey and Rizzo. In 1972, the United States Supreme Court declared the nation’s death penalty statutes unconstitutional because, as they were written and operated, they resulted in the arbitrary and capricious imposition of the ultimate sanction.

See Furman v. Georgia,

408 U.S. 238 , 92 S.Ct. 2726 , 33 L.Ed.2d 346 (1972). By 1976, Georgia had enacted a new statute, which limited and directed the exercise of a jury’s discretion to decide whether to sentence a defendant to death, that was found to be constitutional.

See Gregg v. Georgia,

428 U.S. 153 , 96 S.Ct. 2909 , 49 L.Ed.2d 859 (1976). Today, thirty-eight states have laws providing for the death penalty. However, Massachusetts has since 1972 repeatedly declined to enact legislation that would reinstitute death as a penalty for murder or any other crime. Sampson was willing to plead guilty to the murder charges against him and to accept the maximum sentence permitted under Massachusetts law — life in prison without parole.

However, on October 24, 2001, Sampson was also indicted in this federal case, which could result in his execution under the Federal Death Penalty Act of 1994, 18 U.S.C. § 3591 ,

et seq.

(the “FDPA”). Following the

Furman

decision in 1972, there was not a constitutionally valid federal death penalty statute. In 1988, the federal death penalty was instituted for certain drug offenses.

See

21 U.S.C. § 848 (e). In 1994, the FDPA extended the federal death penalty to more than fifty additional crimes, including carjacking resulting in death, but not to murder, which is not alone a federal offense. While murder is, of course, a horrible crime, it has not historically been a federal crime. Prior to the FDPA, if Sampson had murdered McCloskey and Rizzo in Massachusetts, he would not have been subject to the death penalty. He now faces the possibility of execution because he also stole, or attempted to steal, their automobiles.

The Massachusetts charges against Sampson were dismissed in deference to this federal prosecution. Sampson offered to plead guilty and accept a federal sentence of life in prison without the possibility of parole. The Department of Justice did not accept this offer. Rather, on November 19, 2002, the Attorney General filed a notice of intent to seek the death penalty in this case.

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The court has previously rejected both Sampson’s claim that the Supreme Court’s 2002 decision in

Ring v. Arizona,

536 U.S. 584 , 122 S.Ct. 2428 , 153 L.Ed.2d 556 (2002), renders the FDPA unconstitutional, and his related claim that he has a right to plead guilty and be sentenced to life in prison without parole.

See United States v. Sampson,

245 F.Supp.2d 327 (D.Mass.2003). Sampson subsequently filed a motion to dismiss the death penalty charges against him, alleging that the FDPA violates the Eighth Amendment, which prohibits cruel and unusual punishment, for a series of related reasons. He also attacks some of the factors and evidence on which the government intends to rely in its effort to persuade the jury that Sampson should be executed.

See

§ III,

infra.

Some, but not all, of Sampson’s claims are now ripe for resolution.

See

§ V,

infra.

The court has received voluminous briefs from the parties. A hearing on the pending motions was held on June 11 and 16, 2003. For the reasons described in detail in this Memorandum, the court is now deciding Sampson’s primary claims as follows.

Only the Supreme Court can reverse its prior decisions that the death penalty is not inherently cruel and unusual punishment.

See

§ VI,

infra.

Sampson has not proven his claim that the FDPA results in death sentences that are arbitrary and capricious because of alleged regional and racial disparities.

See

§ VIII,

infra.

Sampson’s claims that the FDPA is unconstitutional because it does not mandate the use of the Federal Rules of Evidence at the sentencing phase of a capital case and does not provide for adequate appellate review are not ripe for resolution.

See

§§ IX, XI,

infra.

Sampson is not correct in his contentions that the FDPA does not authorize a sentencing jury to consider unadjudicated criminal conduct and that doing so would constitute an impermissible delegation of legislative power to the executive branch.

See

§§ XII.C, XII.B,

infra.

Sampson’s motion to dismiss does present a serious question concerning whether the FDPA is unconstitutional because of the mounting evidence that innocent individuals have been sentenced to death, and undoubtedly executed, more often than previously understood.

See

§ VII,

infra.

However, the court finds that Sampson has not demonstrated that the FDPA is now unconstitutional for this reason.

As the Supreme Court has repeatedly reiterated, whether a penalty constitutes cruel and unusual punishment is not determined by the standards of the eighteenth century when the Eighth Amendment was adopted. Rather, the Eighth Amendment must draw its meaning from “ ‘the evolving standards of decency that mark the progress of a maturing society.’ ”

Atkins v. Virginia,

536 U.S. 304, 311-12 , 122 S.Ct. 2242 , 153 L.Ed.2d 335 (2002) (quoting

Trop v. Dulles,

356 U.S. 86, 101 , 78 S.Ct. 590 , 2 L.Ed.2d 630 (1958) (plurality opinion)). It is, therefore, the duty of the courts to reconsider periodically whether the death penalty offends

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contemporary standards of decency.

See

§ IV,

infra.

In doing so, a court must focus on objective indicia of contemporary attitudes to the maximum extent possible.

Atkins,

536 U.S. at 311 , 122 S.Ct. 2242 . Legislation, enacted by elected representatives, is a primary form of such objective evidence. However, the fact that a statute, or many statutes, authorize the death penalty is not the end of the inquiry. As the Supreme Court has written:

“Judicial review by definition, often involves a conflict' between judicial and legislative judgment as to what the Constitution means or requires. In this respect, Eighth Amendment cases come to [the courts] in no different posture.... [T]he Amendment imposes some obligations on the judiciary to judge the constitutionality of punishment and [] there are punishments that the Amendment would bar whether legislatively approved or not.”

Gregg,

428 U.S. at 174 , 96 S.Ct. 2909 (quoting

Furman,

408 U.S. at 313-14 , 92 S.Ct. 2726 (White, J., concurring)).

Jury verdicts are also significant and rehable evidence of contemporary values. Indeed, “one of the most important functions any jury can perform in making ... a selection [between life and death] is to maintain a link between community values and the penal system' — -a link without which the determination of punishment would hardly reflect ‘the evolving standards of decency that mark the progress of a maturing society.’”

Witherspoon v. Illinois,

391 U.S. 510 , 519 n. 15, 88 S.Ct. 1770 , 20 L.Ed.2d 776 (1968) (quoting

Trop,

356 U.S. at 101 , 78 S.Ct. 590 (plurality opinion)).

In deciding the current meaning of the Eighth Amendment, the Supreme Court has also recently considered polling data, and the practices of England and other Western European countries that share our nation’s traditions. This court has considered all of these objective factors in the instant case, giving the greatest weight to legislation and jury verdicts.

Contrary to the government’s contention, and the decision of the Second Circuit in

United States v. Quinones,

313 F.3d 49 (2d Cir.2002),

reh’g denied,

317 F.3d 86 (2d Cir.2003), the Supreme Court has never decided whether the risk of executing innocent individuals renders the death penalty unconstitutional.

See

§ VII,

infra.

Although Sampson does not claim to be innocent, he does have standing to assert that the FDPA is unconstitutional for this reason.

Whether he has a right not to be executed pursuant to an unconstitutional statute is a question that implicates a debate that is raging among Justices of the Supreme Court and in academia. This question need not be resolved in this case because Sampson has not proven that the FDPA is unconstitutional as a result of the risk of executing innocent individuals. He has, however, persuaded the court that this is a serious question, that future developments could strengthen this argument, and that courts will have a duty to monitor carefully future legislation and jury verdicts concerning the death penalty in deciding what is likely to be the constantly recurring question of whether the risk of executing innocent individuals renders the death penalty generally, or the FDPA particularly, unconstitutional.

See

§ VII,

infra.

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More specifically, in 1993, a majority of the Justices of the Supreme Court stated that the execution of an innocent person would violate the Constitution.

See Herrera v. Collins,

506 U.S. 390 , 113 S.Ct. 853 , 122 L.Ed.2d 203 (1993). This court agrees.

The risk of executing the innocent has long been recognized. However, in the past decade substantial evidence has emerged to demonstrate that innocent individuals are sentenced to death, and undoubtedly executed, much more often than previously understood. In that period, DNA testing has established the actual innocence of at least a dozen inmates who had been sentenced to death. These developments have prompted the reinvestigation of many other capital cases, resulting in the release of more than 100 innocent individuals from the nation’s death rows.

In deciding in 2002 that it is no longer constitutional to execute the mentally retarded, the Supreme Court wrote that “we cannot ignore the fact that in recent years a disturbing number of inmates on death row have been exonerated.”

Atkins,

536 U.S. at 320 n. 25, 122 S.Ct. 2242 . The government correctly asserts that the Supreme Court was addressing convictions obtained in state courts, rather than under the FDPA. The government contends that similar errors could not occur in federal courts.

The government’s confidence that the FDPA will never lead to the execution of innocent individuals is not shared by the only federal judge to have conducted the trial of an FDPA case in Massachusetts. Judge Michael Ponsor presided in the trial of Kristen Gilbert, a nurse convicted of murdering four of her patients and attempting to murder three others. After the jury’s 2001 verdict decided that she should be sentenced to life in prison, Judge Ponsor wrote that “[t]he experience left me with one unavoidablé conclusion: that a legal regime relying on the death penalty will inevitably execute innocent people — not too often, one hopes, but undoubtedly sometimes.” Appendix (“A-”)-90, Michael Ponsor, “Life, Death, and Uncertainty,”

Boston Globe,

July 8, 2001, at D2.

There are compelling reasons to believe that Judge Ponsor’s prediction is prophetic. Federal judges, like state judges, are human and, therefore, fallible. Jurors in federal cases are essentially the same citizens who serve as jurors in state cases. In addition, many federal cases, including this one, result from investigations conducted primarily, if not exclusively, by state and local law enforcement.

The instant case illustrates the potential for serious imperfections in a federal capital ease. Since Sampson surrendered, his counsel has proclaimed that he would rely heavily on Sampson’s telephone call to the FBI as a mitigating factor in the effort to persuade a jury not to sentence Sampson to death. Anderson, among others, was promptly questioned by the FBI and later by the Department of Justice Inspector General concerning Sampson’s claim that he had called the FBI. Anderson repeatedly denied receiving the call, including in a sworn interview and affidavit given on October 30, 2001. In December 2001, Anderson acknowledged that he received Sampson’s call after being informed that he had failed a polygraph examination concerning it. If Anderson’s perjury had not been discovered, a jury in this case would have been deprived of evidence that might determine whether Sampson lives or dies.

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Important errors are, however, not always identified prior to death sentences being imposed, at times because of misconduct by state and federal investigators. It is now clear that in 1967 Joseph Salvati and several other individuals were unfairly convicted because the FBI had withheld information that its informants, rather than the defendants, had murdered Edward Deegan, and had allowed its informants to testify falsely against the innocent men. Several of the defendants, including Peter Limone, were sentenced to death. While those death sentences were reduced to life in prison following the invalidation of the death penalty by

Furman ,

two of the wrongfully convicted men died in prison. Salvati, who was originally sentenced to life in prison, received a commutation and was released in 1997. Limone was released in 2001, after his wrongful conviction had been demonstrated.

See United States v. Flemmi,

195 F.Supp.2d 243, 251 (D.Mass.2001).

The deliberate misconduct by federal investigators that was so belatedly revealed with regard to the Deegan murder is neither ancient history nor unique to Boston. Daniel Bright was, in 1996, convicted of murder by the state of Louisiana and sentenced to death. Several months ago, a federal judge found that the FBI had evidence that another person had claimed to have committed the murder, but the FBI violated the government’s constitutional duty to disclose that evidence to Bright before his trial, and later lied to the federal judge about its existence.

See Bright v. Ashcroft,

259 F.Supp.2d 494 (E.D.La.2003) and 259 F.Supp.2d 502 (E.D.La.2003).

The government misconduct concerning Salvati and Bright are not isolated occurrences. A recent study of capital cases from 1973 to 1995 reported that one of the two most common errors prompting the reversal of state convictions in which the defendant was sentenced to death was the improper failure of police or prosecutors to disclose “important evidence that the defendant was innocent or did not deserve to die.” James S. Liebman,

et al., A Broken System: Error Rates in Capital Cases, 1973-1995

at ii (2000). As indicated earlier, the performance of state and local police is important to the operation of the FDPA because many cases, including this one, have initially been investigated by them and later brought in federal court, at times in an effort to achieve a death sentence that is not available under state law.

Serious errors appear to be common in capital cases. After analyzing more than 4500 appeals of capital cases, the same study found that “the overall rate of prejudicial error in the American capital punishment system was

68%.

”

Id.

at i (emphasis in original). As the authors later wrote:

For cases whose outcomes are known, an astonishing 82% of retried death row inmates turned out not to deserve the death penalty; 7% were not guilty. The process took nine years on average. Put simply, most death verdicts are too flawed to carry out, and most flawed ones are scrapped for good. One in 20 death row inmates is later found not guilty.

A-284, James Liebman,

et al.,

“Technical Errors Can Kill,”

Nat’l L.J.,

Sept. 4, 2000, at A16.

In view of the foregoing, this court agrees with Judge Ponsor, among others, that the FDPA, like the state death penalty statutes, will inevitably result in the

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execution of innocent people. Since a majority of the Supreme Court stated in 1993 that the execution of an innocent person would be unconstitutional, the critical question is how many of those who will be executed must be innocent to offend contemporary standards of decency and, therefore, render the FDPA unconstitutional.

The government contends that where, as here, a defendant claims that a statute is unconstitutional on its face “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 , 107 S.Ct. 2095 , 95 L.Ed.2d 697 (1987). However, “[t]o the extent [the Supreme Court has] consistently articulated a clear standard for facial challenges, it is not the

Salerno

formulation, which has never been the decisive factor in any decision of [the Supreme] Court, including

Salerno

itself .... ”

City of Chicago v. Morales,

527 U.S. 41 , 55 n. 22, 119 S.Ct. 1849 , 144 L.Ed.2d 67 (1999) (plurality opinion).

Nor does the quoted dicta from

Salerno

provide the proper test for deciding Sampson’s Eighth Amendment claim that the risk of executing the innocent renders the FDPA unconstitutional. That standard would require that the statute be upheld unless it would be unconstitutional as applied to everyone. Thus, under the

Salerno

dicta the FDPA would be constitutional if 99 times out of 100 it resulted in the execution of an innocent individual because there would be one case in which a guilty person would be executed. However, a statute that resulted in the execution of actually innocent individuals in 99% of all cases undoubtedly would be deemed to impose cruel and unusual punishment.

The Supreme Court has held that a statute regulating abortion was subject to a facial challenge and unconstitutional if “in a large fraction of the cases in which [it] is relevant, it will operate as a substantial obstacle to a woman’s choice to undergo an abortion.”

Planned Parenthood v. Casey,

505 U.S. 833, 895 , 112 S.Ct. 2791 , 120 L.Ed.2d 674 (1992). In

Casey ,

the statutory requirement that a husband be notified before his wife had an abortion actually impacted about 1% of the women who seek abortions.

Id.

at 894-95 , 112 S.Ct. 2791 . Nevertheless, the requirement was declared unconstitutional on its face.

Id.

at 898 , 112 S.Ct. 2791 .

Similarly, in the instant case the proper question for the purpose of Eighth Amendment analysis is, as indicated earlier, how large a fraction of FDPA prosecutions must result in the execution of innocent individuals for the statute to offend contemporary standards of decency and, therefore, violate the Eighth Amendment. Answering this question implicates fundamental principles concerning the relative roles in our democracy of citizens, the representatives they elect to make laws, the officials responsible for executing them, and the courts.

As described earlier, courts are required to discern contemporary standards of decency from objective factors to the maximum possible extent. Those factors demonstrate the following. In 1791, the concept of “cruel and unusual punishment” incorporated in the Eighth Amendment was imported from English law. England and other nations that share our heritage have now abolished capital punishment.

Recent opinion polls show that 73% of Americans believe that our nation’s death penalty statutes have resulted in the execution of an innocent person in the past five years. Nevertheless, 74% say they support the death penalty. However, only a slight majority (53%) prefer it to life in prison without parole (44%) for convicted murderers.

The decisions of juries in recent FDPA cases indicate that there is a definite dis

*59

parity between the attitudes of Americans toward the death penalty in general and their willingness to impose it in particular cases. In sixteen of the last seventeen penalty phase verdicts returned by juries in FDPA cases the defendant was not sentenced to death. In fifteen of those sixteen cases the defendant had been convicted of a federal crime involving murder. Therefore, juries have recently been regularly disagreeing with the Attorney General’s contention that the death penalty is justified in the most egregious federal cases involving murder.

The difficulty that citizens as jurors have had in imposing the death penalty in federal cases has not, however, been manifested in legislative reform. After determining that seventeen people who had been sentenced to death in Illinois were actually innocent, in January 2003 the Governor of Illinois commuted the sentences of everyone left on that state’s death row to life in prison. However, thirty-eight states and the federal government still have statutes providing for the death penalty. Neither the federal government nor any state has recently repealed a death penalty statute. Perhaps this is because of what the Supreme Court has characterized as “the well-known fact that anticrime legislation is far more popular than legislation providing protections for persons guilty of violent crime.”

Atkins,

536 U.S. at 315 , 122 S.Ct. 2242 . Perhaps it is because citizens as voters are not wrestling with the risk of executing the innocent, or indeed the implications of executing the guilty, as citizens as jurors must.

In any event, the Supreme Court has explained that legislation is “the clearest and most reliable objective evidence of contemporary values.”

Id.

at 312 , 122 S.Ct. 2242 . When the Supreme Court decided in 2002 that it is no longer permissible to execute the retarded, it relied largely on the facts that after the Court had found the practice constitutional in 1988: many states enacted legislation exempting the retarded from execution; the direction of change was consistent; even states that continued to have statutes which authorized the execution of the retarded were not doing so; and only five retarded individuals had been executed in the past thirteen years.

See Atkins, supra.

Atkins

the Supreme Court essentially held that because Virginia diverged from the substantial consensus that had emerged in legislation, decisions of prosecutors, and jury verdicts in many other states, it was arbitrary and capricious and, therefore, cruel and unusual for a retarded person in Virginia to face execution when a similarly situated individual in another jurisdiction would not. If the evolution of events concerning the general imposition of the death penalty parallels the developments described in

Atkins

concerning the execution of the retarded, the day may come when courts properly can and should declare the ultimate sanction to be unconstitutional in all cases.

However, that day has not come yet. There is not now sufficient objective evidence to establish that the death penalty offends contemporary standards of decency to permit a court to end political debate and democratic decisionmaking concerning its propriety.

Nevertheless, “the Clause forbidding ‘cruel and unusual’ punishments ... ‘may acquire meaning as public opinion becomes enlightened by a humane justice.’ ”

Gregg,

428 U.S. at 171 , 96 S.Ct. 2909 (quoting

Weems v. United States,

217 U.S. 349, 378 , 30 S.Ct. 544 , 54 L.Ed. 793 (1910)). Judges seek to administer humane justice. Judicial decisions are part of a colloquy with citizens and those they elect to make and execute our laws. Those decisions have the potential to influence contemporary standards of decency and, therefore, the

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current meaning of the Eighth Amendment.

While this court does not find that the risk of executing the innocent now renders the FDPA unconstitutional, the record regarding this issue raises profound questions. Those questions are not hypothetical. Rather, as demonstrated by the experiences of Salvati and Bright, among others, those questions are real and recurring.

Error is, of course, possible in any criminal case. While our system promises everyone a fair trial, it does not pretend to perform perfectly. However, as the Supreme Court has repeatedly reiterated, “[t]he penalty of death differs from all other forms of criminal punishment not in degree but in kind. It is unique in its total irrevocabality.”

Furman,

408 U.S. at 306 , 92 S.Ct. 2726 (Stewart, J., concurring);

see also

United States Attorneys’ Manual (“USAM”), Capital Crimes § 9-10.000.

If the government decides to seek the death penalty, the FDPA bifurcates the trial into two phases, a guilt phase and a penalty phase. The penalty phase occurs only if the defendant is found guilty of a capital offense. In the context of this case, the government must prove during the guilt phase, beyond a reasonable doubt, that the defendant committed at least one carjacking or attempted carjacking resulting in death within the meaning of 18 U.S.C. § 2119 (3). If the government proves either of the two capital charges, a penalty phase of the jury trial will be required.

There are two distinct issues before the jury during the penalty phase. The first is whether the defendant is eligible for the death penalty. If so, the second is whether the death penalty is justified.

In order to establish eligibility for a death sentence for a homicide, the government must prove, beyond a reasonable doubt, that: the defendant was at least 18 years old at the time of the offense, 18 U.S.C. § 3591 (a); he acted with one of the four mental states set forth in 18 U.S.C. § 3591 (a)(2); and at least one of the sixteen statutory aggravating factors set forth in 18 U.S.C. § 3592 (c) exists. If the government fails to establish eligibility, a death sentence cannot be imposed.

If the jury finds that the defendant is eligible for the death penalty, it must decide whether a sentence of death is justified. In reaching this decision, the jury must weigh any aggravating factors against any mitigating factors. In order to recommend that the defendant be sentenced to death, the jury must unanimously conclude that “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, or, in the absence of a mitigating factor, [ ] the aggravating factor or factors alone are sufficient to justify a sentence of death.” 18 U.S.C. § 3593 (e). The jury can also recommend a sentence of life imprisonment or, in some cases, some lesser punishment. A jury’s “recommendation” of a sentence of death or life imprisonment is binding on the court. 18 U.S.C. § 3594 .

Aggravating factors may include statutory aggravating factors and non-statutory aggravating factors identified by the government in its notice of intent to seek the death penalty.

See

18 U.S.C. § 3593 ; § XII.A,

infra.

Mitigating factors may include any “relevant circumstance that could cause [a jury] to decline to impose the [death] penalty.”

McCleskey v. Kemp,

481 U.S. 279, 305-06 , 107 S.Ct. 1756 , 95 L.Ed.2d 262 (1987).

Different standards govern the proof of ' aggravating factors and mitigating factors. “The* burden of establishing the existence of any aggravating factor is on the government, and is not satisfied unless the existence of such a factor is established beyond a reasonable doubt. The burden of establishing the existence of any mitigating factor is on the defendant, and is not satisfied unless the existence of such a factor is established by a preponderance of the information.” 18 U.S.C. § 3593 (c). A jury must unanimously agree that an aggravating factor has been proven in order to consider it in deciding if the death penalty is justified. 18 U.S.C. § 3593 (d). However, any juror who finds that the

*62

defendant has established a mitigating factor may take it into account in considering whether a death sentence is justified even if no other juror finds that that mitigating factor has been proven.

Id.

The FDPA refers to “information” rather than “evidence” because the penalty phase of a capital case is not governed by the Federal Rules of Evidence.

See

18 U.S.C. § 8593 (c). Rather, any relevant information may be presented to the jury unless “its probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury.”

Id.

In order to guard against discrimination, the jurors are given special instructions prohibiting them from considering “the race, color, religious beliefs, national origin, or sex of the defendant or of any victim,” and admonishing the jury “not to recommend a sentence of death unless it has concluded that it would recommend a sentence of death for the crime in question no matter what the race, color, religious beliefs, national origin, or sex of the defendant or of any victim may be.” 18 U.S.C. § 3593 (f). Each juror is required to certify that he or she has followed these special instructions.

Id.

The FDPA also includes special provisions for appellate review if the defendant is sentenced to death.

See

18 U.S.C. § 3595 .

III. SAMPSON’S CLAIMS

Sampson’s pretrial motions present thirteen claims. First, Sampson raises a series of challenges to the FDPA, some of which would apply to any FDPA prosecution. Specifically, he contends that the FDPA is unconstitutional because: it is inherently cruel and unusual punishment (Point Thirteen); it will inevitably result in the execution of innocent individuals (Point Four); it is arbitrary and capricious because it is so rarely sought or imposed (Point One), there is no principled basis for distinguishing the cases in which it is imposed from those in which it is not (Point Two), and it is sought and imposed on the invidious basis of race and the irrational basis of geography (Point Three); the penalty phase is not governed by the Federal Rules of Evidence (Point Five); it does not require that a grand jury allege the facts that would subject a defendant to the death penalty (Point Six); and it fails to provide for meaningful appellate review (Point Twelve), particularly for proportionality review (Point Eleven).

Sampson also makes a series of claims that are specific to this case. He contends that the FDPA either does not authorize the consideration of the non-statutory aggravating factors that have been alleged (Point Seven) or, if it does, the FDPA involves an unconstitutional delegation of legislative power to the executive branch (Point Ten). Sampson also asserts that some of the non-statutory factors alleged in this case are irrelevant, duplicative, or unsupported by the facts (Point Eight). Among other things, he argues that unad-judicated alleged criminal conduct may not be considered by the jury (Point Nine).

As described below, Sampson’s claim that the FDPA is unconstitutional must be analyzed under the Eighth Amendment. His statutory claims require interpretation of the FDPA.

IV.

THE GENERALLY APPLICABLE CONSTITUTIONAL LAW

As indicated earlier, Sampson asserts that the FDPA is unlawful because it violates the Eighth Amendment for a variety of reasons.

The Eighth Amendment, in pertinent part, prohibits the infliction of “cruel and unusual punishments.” U.S. Const., Am. VIII. “[T]he primary concern of the drafters was to proscribe ‘torture(s)’ and other

*63

‘barbar(ous)’ methods of punishment.”

Estelle v. Gamble,

429 U.S. 97, 102 , 97 S.Ct. 285 , 50 L.Ed.2d 251 (1976) (quoting Anthony F. Granucci, “Nor Cruel and Unusual Punishment Inflicted: The Original Meaning,” 57

Cal. L.Rev.

839, 842 (1969)). However, the Supreme “Court has not confined the prohibition embodied in the Eighth Amendment to ‘barbarous’ methods that were generally outlawed in the 18th century. Instead, the Amendment has been interpreted in a flexible and dynamic manner.”

Gregg,

428 U.S. at 171 , 96 S.Ct. 2909 . Because “ ‘[t]he basic concept underlying the Eighth Amendment is nothing less than the dignity of man .... [t]he Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.’ ”

Atkins,

536 U.S. at 311-12 , 122 S.Ct. 2242 (quoting

Trop,

356 U.S. at 100-01 , 78 S.Ct. 590 (plurality opinion)).

Therefore, a claim that a punishment is cruel and unusual “is judged not by the standards that prevailed ... when the Bill of Rights was adopted [in 1791], but rather by those that currently prevail.”

Atkins,

536 U.S. at 311 , 122 S.Ct. 2242 . As the Supreme Court has often reiterated, “the Clause forbidding ‘cruel and unusual’ punishments ‘is not fastened to the obsolete but may acquire meaning as public opinion becomes enlightened by a humane justice.’ ”

Gregg,

428 U.S. at 171 , 96 S.Ct. 2909 (quoting

Weems,

217 U.S. at 378 , 30 S.Ct. 544 );

accord Thompson v. Oklahoma,

487 U.S. 815 , 821 n. 4, 108 S.Ct. 2687 , 101 L.Ed.2d 702 (1988);

McCleskey,

481 U.S. at 300 , 107 S.Ct. 1756 ;

Sellars v. Beto,

409 U.S. 968, 970 , 93 S.Ct. 279 , 34 L.Ed.2d 233 (1972).

Sampson also contends that the FDPA violates his Fifth Amendment right to substantive due process. Government conduct violates a right to substantive due process if it shocks the conscience.

See, e.g., Rochin v. California,

342 U.S. 165, 172-74 , 72 S.Ct. 205 , 96 L.Ed. 183 (1952). A right to substantive due process is also violated by conduct that is offensive to a “principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.”

Medina v. California,

505 U.S. 437, 445 , 112 S.Ct. 2572 , 120 L.Ed.2d 353 (1992) (quoting

Patterson v. New York,

432 U.S. 197, 201-02 , 97 S.Ct. 2319 , 53 L.Ed.2d 281 (1977)).

However, the Supreme Court has held that “[w]here a particular Amendment ‘provides an explicit textual source of constitutional protection’ against a particular sort of governmental behavior, ‘that Amendment, not the more generalized notion of “substantive due process,” must be the guide for analyzing these claims.’ ”

Albright v. Oliver,

510 U.S. 266, 273 , 114 S.Ct. 807 , 127 L.Ed.2d 114 (1994) (quoting

Graham v. Connor,

490 U.S. 386, 395 , 109 S.Ct. 1865 , 104 L.Ed.2d 443 (1989)). In the instant case, the Eighth Amendment provides such an “explicit textual source of constitutional protection.”

Id.

Nevertheless, the Supreme Court has occasionally referred to the substantive due process standard, in addition to the Eighth Amendment standard, in addressing issues concerning the death penalty.

See, e.g., Herrera,

506 U.S. at 419 , 113 S.Ct. 853 (O’Connor, J. and Kennedy, J., concurring), 435-37 (Blackmun, J., Stevens, J., and Souter, J., dissenting). However, the Supreme Court essentially treats the Eighth Amendment and substantive due process standards as interchangeable.

Id.

As Justice Marshall wrote in

Furman,

408 U.S. at 359 n. 141, 92 S.Ct. 2726 , “[t]he concepts of cruel and unusual punishment and substantive due process become so close as to merge ...” (Marshall, J., concurring);

see also

Dorf,

supra;

Henry Paul Mona-ghan, “Overbreadth,” 1981

Sup.Ct. Rev.

1, 3-14 (1981).

The debate Professor Fallon describes is exemplified by the Supreme Court’s decision in

Morales, supra.

Invalidating an anti-loitering ordinance on its face, Justice Stevens wrote for the plurality that:

To the extent we have consistently articulated a clear standard for facial challenges, it is not the

Salerno

formulation, which has never been the decisive factor in any decision of this Court, including

Salerno

itself .... When asserting a facial challenge, a party seeks to vindicate not only his own rights, but those of others who may also be adversely impacted by the statute in question. In this sense, the threshold for facial challenges is a species of third party

(jus tertii)

standing, which we have recognized as a prudential doctrine and not one mandated by Article III of the Constitution.

Morales,

527 U.S. at 55 n. 22, 119 S.Ct. 1849 (plurality opinion).

In his dissent, Justice Scalia acknowledged that the Court had often declared statutes to be unconstitutional not only as applied to the person before it but in all applications.

Id.

at 77 , 119 S.Ct. 1849 (Scalia, J., dissenting). In his view, “it is highly questionable whether federal courts have any business making such a declaration.”

Id.

at 74 , 119 S.Ct. 1849 .

However, Justice Scalia explained that his disagreement with the plurality was not about standing, but one of substantive law. As he wrote:

Disagreement over the

Salerno

rule is not a disagreement over the “standing” question whether the person challenging the statute can raise the rights of third parties: under both

Salerno

and the plurality’s rule he can. The disagreement relates to how many third-party rights he must prove to be infringed by

*69

the statute before he can win:

Salerno

says “all” (in addition to his own rights), the plurality says “many.” That is not a question of standing but of substantive law.

Id.

at 79 n. 3, 119 S.Ct. 1849 (emphasis omitted).

The Supreme Court has often declared statutes to be overbroad and, therefore, unconstitutional when a violation of the First Amendment right to freedom of speech is alleged.

See, e.g., Ashcroft v. Free Speech Coalition,

535 U.S. 234 , 122 S.Ct. 1389 , 152 L.Ed.2d 403 (2002);

Reno v. ACLU,

521 U.S. 844 , 117 S.Ct. 2329 , 138 L.Ed.2d 874 (1997);

City of Houston v. Hill,

482 U.S. 451 , 107 S.Ct. 2502 , 96 L.Ed.2d 398 (1987);

Bd. of Airport Comm’rs v. Jews for Jesus, Inc.,

482 U.S. 569 , 107 S.Ct. 2568 , 96 L.Ed.2d 500 (1987);

Sec’y of State v. Joseph H. Munson Co.,

467 U.S. 947 , 104 S.Ct. 2839 , 81 L.Ed.2d 786 (1984).

Even outside the First Amendment context, the Court has not always required that a statute unlawfully affect a litigant before declaring it unconstitutionally over-broad on other grounds. For example, in

Casey,

505 U.S. at 895 , 112 S.Ct. 2791 , the Supreme Court held that a statute regulating abortion was subject to a facial challenge and unconstitutional if “in a large fraction of the cases in which [it] is relevant, it will operate as a substantial obstacle to a woman’s choice to undergo an abortion.”

see also

Alex Kotlowitz, “In the Face of Death,”

N.Y. Times Sunday Magazine,

July 6, 2003, at 32, 34. One of those individuals was “Anthony Porter, who spent no less than 16 years on death row until prosecutors decided they had made a mistake (upon which determination they then brought murder charges against a different suspect, who confessed).”

Quinones,

205 F.Supp.2d at 265 .

Moreover:

It was not until the year 2000 ... that Professor James S. Liebman and his colleagues at Columbia Law School released the results of the first comprehensive study ever undertaken of modern American capital appeals (4,578 appeals between 1973 and 1995). That study, though based only on those errors judicially identified on appeal, concluded that “the overall rate of prejudicial error in the American capital punishment system” is a remarkable 68%. James S. Liebman, et al.,

A Broken System: Error Rates in Capital Cases

(2000) at ii.

Quinones,

196 F.Supp.2d at 418 .

The authors of that study later wrote: Looking at thousands of death verdicts reviewed by courts in 34 states over 23 years, we found that nearly seven in 10 were thrown out for serious error, requiring 2,370 retrials. For cases whose outcomes are known, an astonishing 82% of retried death row inmates turned out not to deserve the death penalty; 7% were not guilty. The process took nine

*78

years on average. Put simply, most death verdicts are too flawed to carry out, and most flawed ones are scrapped for good. One in 20 death row inmates is later found not guilty.

A-284, James Liebman,

et al.,

“Technical Errors Can Kill,”

Nat’l L.

J., Sept. 4, 2000, at A16.

These developments have been recognized and been relied upon by the Supreme Court. In reversing

Penry

the Supreme Court declared that it is no longer constitutionally permissible to execute the retarded in part because they “face a special risk of wrongful execution.”

Atkins,

536 U.S. at 321 , 122 S.Ct. 2242 . The Court also stated that “we cannot ignore the fact that in recent years a disturbing number of inmates on death row have been exonerated.”

Id.

at 320 n. 25, 122 S.Ct. 2242 .

The government correctly asserts that the foregoing statistics relate to convictions obtained in state courts rather than under the FDPA. It contends that similar errors and injustices could not occur in the federal courts.

See

June 11, 2003 Tr. at 52;

see also

Kotlowitz,

supra

(“Faced with the decision to execute or not, pro-death penalty jurors are increasingly sparing lives.”). There is evidence to validate Judge Jones’ insight.

The decisions of juries in recent FDPA cases indicate that

there is

a definite disparity between attitudes toward the death penalty in principle and the willingness of federal jurors to impose it when they are fully informed about a particular case, and their decision will have real and serious consequences. The death penalty is sought only in those eligible federal cases in which the Attorney General has personally decided that it is justified.

DOJ Study

at 5, 26. Jurors who express an unyielding general unwillingness to impose the death penalty may not serve in a capital case.

See Witt, supra; Witherspoon, supra.

Nevertheless, in sixteen of the last seventeen penalty phase verdicts returned by juries in FDPA cases the defendant has not been sentenced to death.

A-38, A-

*85

41, A-66 to A-67; Def.’s Supp. Mem.; Def.’s Second Supp. Mem.; Def.’s Fourth Supp. Mem. In fifteen of those sixteen cases the defendant was convicted of a crime involving murder. M

As described earlier, the Supreme Court has repeatedly reiterated that the decisions of citizens as jurors are “ ‘a significant and reliable index of contemporary values.’ ”

Atkins,

536 U.S. at 323 , 122 S.Ct. 2242 (Rehnquist, C.J., dissenting) (quoting

Coker,

433 U.S. at 596 , 97 S.Ct. 2861 (plurality opinion) and

Gregg,

428 U.S. at 181 , 96 S.Ct. 2909 ). In finding the death sentence to be cruel and unusual punishment for rape in

Coker,

the Supreme Court “credited data showing that ‘at least 9 out of 10’ juries in Georgia did not impose the death sentence for rape convictions.”

Id.

(quoting

Coker,

433 U.S. at 596-97 , 97 S.Ct. 2861 ). The statistical sample may now be too small to draw any definite conclusions from the most recent FDPA jury verdicts. However, if juries continue to reject the death penalty in the most egregious federal cases, the courts will have significant objective evidence that the ultimate sanction is not compatible with contemporary standards of decency.

However, the difficulty that citizens as jurors have had in imposing the death penalty in federal cases has not been manifested in legislative reform. As described earlier, the Governor of Illinois imposed a moratorium on executions and, in January 2003, commuted the sentence of everyone on Illinois’ death row to life in prison because of the demonstrated risk that innocent individuals would be executed. A-285 to A-298. In 2002, Maryland imposed a temporary moratorium on executions in order to permit racial inequities in the capital punishment system to be investigated. A-121. That moratorium was ended when a new Governor took office. Pennsylvania is currently considering a moratorium. “Pennsylvania Panel Advises Death Penalty Moratorium,”

CNN,

Mar. 4, 2003,

http://www.cnn.com/2003/LAW/03/ 04/pennsylvania.death.penalty/index.html (last visited Aug. 8, 2003).

Nevertheless, thirty-eight states and the federal government now have statutes providing for the death penalty.

Quinones,

313 F.3d at 62 n. 11. As described earlier, the Supreme Court has characterized legislation as the “clearest and most reliable objective evidence of contemporary values....”

Atkins,

536 U.S. at 312 , 122 S.Ct.

*86

2242 (quoting

Penry,

492 U.S. at 331 , 109 S.Ct. 2934 ). In

Atkins ,

the Supreme Court emphasized that, after

Penry ,

many states exempted the mentally retarded from execution.

Id.

at 314-16 , 109 S.Ct. 2934 . The direction of change was consistent.

Id.

Moreover, even the states that continued to have statutes which authorized the execution of the mentally retarded were not doing so.

Id.

at 316 , 109 S.Ct. 2934 . Indeed, only five mentally retarded individuals were executed after

Penry. Id.

Thus, there was little need to repeal the laws authorizing their execution in states in which they were not being enforced.

Id.

The Supreme Court concluded that “[t]he practice [of executing the mentally retarded], therefore, has become truly unusual, and it is fair to say that a national consensus has developed against it.”

Id.

In contrast, neither the federal government nor any state has recently repealed a death penalty statute. The lack of legislative reform seems to be inconsistent with the recent trend in jury verdicts, at least in federal cases. Perhaps this is because of what the Supreme Court has characterized as “the well-known fact that anticrime legislation is far more popular than legislation providing protections for persons guilty of violent crime.”

Id.

at 315 , 109 S.Ct. 2934 . Perhaps it is because citizens as voters are not wrestling with the risk of executing the innocent, or indeed the implications of executing the guilty, as jurors must.

Whatever the explanation, the objective evidence is not now sufficient to demonstrate that contemporary standards of decency have generated a national consensus that the death penalty constitutes cruel and unusual punishment because of the risk of executing the innocent.

It will, however, be incumbent on courts in future cases to monitor the reactions of legislatures and juries to the mounting evidence that death penalty statutes have resulted in death sentences and executions of innocent individuals much more often than previously understood. In 2003, bills to abolish the death penalty have been introduced in Congress and in various states legislatures.

See

Federal Death Penalty Abolition Act of 2003, S. 402,108th Cong. (2003); H.B. 2393, 46th Leg., 1st Reg. Sess. (Ariz.2003); H.B. 213, 93rd Gen. Assem. (111.2003); S.B. 282, 2003 Reg. Sess. (Ind.2003); H.B. 472, 2003 Reg. Sess. (Ky.2003); S.B. 544, 2003 Reg. Sess. (Md.2003); S.B. 2139, 2003 Reg. Sess. (Miss.2003); S.B. 169, 2003 Sess. (Mo. 2003); L.B. 791, 98th Leg., 1st Sess. (Neb. 2003); S.B. 217, 72nd Sess. (Nev.2003); A. 359, 210th Leg. (N.J.2003); S.B. 651, 2003 Reg. Sess. (N.M.2003); A. 2306, 2003 Leg. Sess. (N.Y.2003); H.B. 345, 78th Reg. Sess. (Tex.2003); H.B. 1554, 2003 Sess. (Va.2003).

Whether such legislation is enacted will be important to future assessments of the constitutionality of the FDPA. The decisions of juries in federal and other death penalty cases will continue to be instructive as well.

The present record does not, however, include sufficient objective evidence to prove that the FDPA is unconstitutional because of the risk that innocent individuals will be executed.

*87

VIII. THE FDPA DOES NOT OTHERWISE OPERATE IN A MANNER THAT RENDERS IT UNCONSTITUTIONAL

Sampson makes three additional, related arguments that the FDPA operates in an unconstitutional manner. Sampson’s first argument (Point One) relies on the fact that the death penalty is rarely imposed in federal cases. He next asserts that there is no principled way to distinguish between federal cases in which the death penalty is imposed and those in which it is not (Point Two). Finally, Sampson argues that the death penalty is sought on the invidious basis of race and on the irrational basis of geography (Point Three). Thus, Sampson argues that the imposition of the death penalty in any particular ease is arbitrary and capricious, and, therefore, violates the Eighth Amendment.

It is permissible and appropriate for the court to decide these related claims prior to trial. Once again, there is a genuine case and controversy, Sampson has standing, the record concerning these claims is complete, and Sampson will suffer hardship if required to go to trial pursuant to the FDPA.

See Doe,

323 F.3d at 138 . As set forth below, however, Sampson’s claims do not, individually or cumulatively, establish that the FDPA operates in an arbitrary and capricious manner.

Sampson first asserts that in

Furman

the Supreme Court found that only 15-20% of convicted murderers were sentenced to death in the jurisdictions where the death penalty was authorized.

See Furman,

408 U.S. at 386 n. 11, 92 S.Ct. 2726 (Burger, C.J., dissenting) and 435 n.19, 92 S.Ct. 2726 (Powell, J., dissenting). Sampson asserts that the essence of the ruling in

Furman

was captured by Justice Stewart, who stated that:

These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual. For, of all the people convicted of rapes and murders in 1967 and 1968, many just as reprehensible as these, the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed.

Id.

at 309-10 , 92 S.Ct. 2726 (Stewart, J., concurring).

Sampson contends, without contradiction, that since the federal death penalty was reinstituted in 1988, less than 2% of the more than 1700 defendants eligible for its imposition have actually been sentenced to death.

See

A-16, A-19, Declaration of Kevin McNally, ¶ 6. Thus, he argues that the FDPA, like the statutes at issue in

Furman ,

is unconstitutional.

However, the Supreme Court has explained that the decision in

Furman

was not founded on the fact that the death penalty had rarely been imposed, but rather on the fact that juries exercised unguided discretion in deciding who should live and who should die. In 1976, the Supreme Court in

Gregg

wrote that:

Furman

mandates that where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.

Gregg,

428 U.S. at 189 , 96 S.Ct. 2909 .

On the same day, the Supreme Court ruled that it was essential that juries be afforded discretion in deciding whether to impose the death penalty by invalidating statutes that required its imposition for certain crimes.

See Woodson v. North Carolina,

428 U.S. 280, 301 , 96 S.Ct. 2978 , 49 L.Ed.2d 944 (1976);

Roberts, supra.

In contrast, the statute upheld in

Gregg

was deemed valid because the procedures it established “require[d] the jury to consider

*88

the circumstances of the crime

and the criminal

before it recommend[ed][a] sentence” and directed the jury’s attention both to potentially relevant circumstances concerning the crime and potentially relevant characteristics of the person who committed it.

Gregg,

428 U.S. at 197 , 96 S.Ct. 2909 (emphasis added). These safeguards in

Gregg

were found to “further an essential need of the Anglo-American criminal justice system — to balance the desirability of a high degree of uniformity against the necessity for the exercise of discretion.”

McCleskey,

481 U.S. at 313 n. 35, 107 S.Ct. 1756 .

The FDPA fully meets the requirements established in

Gregg

for guiding the discretion of the jury in a capital case.

See Gregg,

428 U.S. at 196-98 , 96 S.Ct. 2909 . Indeed, Sampson does not contend that the FDPA as written is constitutionally inadequate in this respect. Because the decision in

Furman

was based on the exercise of unguided discretion by juries rather than on their infrequent imposition of the death penalty, the mere fact that the federal death penalty is often not sought and is more rarely imposed does not render it unconstitutional.

See United States v. Hammer,

25 F.Supp.2d 518, 546-47 (M.D.Pa.1998);

O’Driscoll,

203 F.Supp.2d at 341.

This conclusion is not altered by Sampson’s claim that the brief case summaries in his appendix reveal no principled basis on which to distinguish the cases in which the federal death penalty has been sought or imposed from those in which neither has occurred. It is true, as Sampson asserts, that the Supreme Court has insisted that “capital punishment be imposed fairly, and with reasonable consistency, or not at all.”

Eddings v. Oklahoma,

455 U.S. 104, 112 , 102 S.Ct. 869 , 71 L.Ed.2d 1 (1982).

However, in

Eddings,

the Supreme Court immediately went on to explain that:

By requiring that the sentencer be permitted to focus “on the characteristics of the person who committed the crime,”

Gregg,

[ 428 U.S. at 197 , 96 S.Ct. 2909 ], the rule in

Lockett [v. Ohio,

438 U.S. 586 , 98 S.Ct. 2954 , 57 L.Ed.2d 973 (1978) ] recognizes that “justice ... requires ... that there be taken into account the circumstances of the offense together with the character and propensities of the offender.”

Pennsylvania v. Ashe,

302 U.S. 51, 55 , 58 S.Ct. 59, 60 , 82 L.Ed. 43 (1937). By holding that the sentencer in capital cases must be permitted to consider any relevant mitigating factor, the rule ... recognizes that a consistency produced by ignoring individual differences is a false consistency.

Id.

The Supreme Court reiterated this point in

McCleskey

when it wrote that “[t]he Constitution is not offended by inconsistency in results based on the objective circumstances of the crime. Numerous legitimate factors may influence the outcome of a trial and a defendant’s ultimate sentence.... ”

McCleskey,

481 U.S. at 307 n. 28, 107 S.Ct. 1756 .

The evidence Sampson has submitted is not sufficient to prove that truly similar capital cases result in disparate sentences. The brief case summaries on which Sampson relies lack detail and focus almost exclusively on the crime.

See

A-37 to A-72. They disclose nothing about the characteristics of the criminal except his race.

Id.

By ignoring the “individual differences” among criminals, Sampson invites the court to invalidate the FDPA because it does not produce “a false consistency” in the imposition of the death penalty.

Eddings,

455 U.S. at 112 , 102 S.Ct. 869 . This is not permissible or appropriate.

Sampson could prevail in his effort to avoid being subject to the death penalty if he proved that he is being selectively subject to prosecution based on his race or for

*89

some other constitutionally impermissible reason.

See McCleskey,

481 U.S. at 292 n. 8, 107 S.Ct. 1756 ;

United States v. Lewis,

40 F.3d 1325, 1345 (1st Cir.1994);

United States v. Bin Laden,

126 F.Supp.2d 256, 260-61 (S.D.N.Y.2000). Sampson, however, has not asserted such a Fifth Amendment claim.

See

June 11, 2003 Tr. at 75; Def.’s Reply at 9-10. Nor is the evidence sufficient to establish a Fifth Amendment selective prosecution claim because Sampson has failed to identify a similarly situated individual for whom the federal government is not seeking the death penalty.

See Bin Laden,

126 F.Supp.2d at 260-63.

Rather, based on the evidence in the

DOJ Study,

Sampson contends that the federal death penalty system treats cases differently based on three factors: the race of the defendant, the race of the victim, and the geographic location of the prosecution. Specifically, the defendant argues that federal prosecutors are more likely to seek the death penalty for black defendants than white defendants; are more likely to seek the death penalty in cases where the victim is white than in cases where the victim is black; and are more likely to seek the death penalty in Southern “death belt” states than in Northern states that do not have a culture of imposing the death penalty.

All three of these factors implicate the Eighth Amendment. None of them relate to the circumstances of the crime or the characteristics of the criminal, which are the factors that must be weighed in determining whether the death penalty is justified. If the sentences of similarly situated defendants based on these three factors were so great as to make the imposition of the death penalty arbitrary and capricious, the Eighth Amendment would be violated. The first two factors, the race of the defendant and the race of the victim, also implicate the Fifth Amendment’s guarantee of equal protection of the law.

Sampson’s victims were white, and he is a white person being prosecuted in a Northern state. Nevertheless, as with the issue concerning the execution of the innocent discussed previously, Sampson relies on the contention that he may not be prosecuted under a law that operates in an unconstitutional manner to present arguments based on disparities relating to race of the defendant and geography. Once again, it is not necessary for the court to decide this issue because Sampson has not demonstrated that racial or regional disparities render the imposition of the death penalty pursuant to the FDPA arbitrary and capricious, or that the racial disparities prove a pattern of violations of the Fifth Amendment.

As noted earlier, Sampson bases his argument regarding racial and regional disparities on the 2000 DOJ Study of how the federal death penalty had been administered since 1988, and a 2001 supplemental report (the “Supplemental DOJ Study”). Sampson asserts that:

*90

The essence of the study’s findings was that the federal death penalty had been disproportionately sought against minority-group defendants and irrationally sought on a regional basis. As reported in the DOJ Study, after 12 years of discriminatory and irrational charging decisions, federal death row consisted of 19 men, of whom four were white, 13 black, one Hispanic and one “other.” Consistent with the historical roots of the death penalty, 12 of the 19 defendants on federal death row at that time had been sentenced to death in the South. Virginia and Texas had contributed four defendants apiece. No other jurisdiction, at the time of the Study’s release, had sentenced more than a single defendant to death.

In terms of which defendant actually faced the federal death penalty, the DOJ Study showed that of the 159 cases where the Attorney General had authorized a capital prosecution, 44 defendants were white (27.7%), 71 were black (44.7%), 32 were Hispanic (20.1%) and another 26 were categorized as “other” (7.5%).

[See,

Table 1A at p. T-2 of DOJ Study.] Thus, more than 70% of the federal defendants targeted for the death penalty were non-whites.

In addition to the racial disparity in federal death-penalty prosecutions, the study revealed a regional bias to enforcement of the federal death penalty. The DOJ study revealed the following on the issue of regional disparity:

From 1995 onward, of the 94 federal districts in the federal system, only 49 had ever submitted a case recommending capital prosecution. [DOJ Study at 14.]

Twenty-two federal districts had never submitted a case for review at all. [DOJ Study at T-59.]

Twenty-one federal districts, although submitting one or more cases for review, had never sought permission to seek the death penalty in any case.

Def.’s Brief in Support of Pretrial Motions at 37-38 (footnote omitted).

After analyzing the two DOJ studies, Professor David Baldus opined that: there is a significant risk of racial unfairness and geographic arbitrariness in the administration of the federal death penalty (A-30); U.S. Attorney charging and Department of Justice authorization rates are much higher in white-victim cases than they are in minority-victim cases

(id.);

and the practice of death-sentencing in the federal system is largely a Southern phenomenon (A-32).

The argument that the statistics disclosed in the

DOJ Study

and Supplemental Study demonstrate that the FDPA operates in an arbitrary and capricious manner was rejected in

Bin Laden,

126 F.Supp.2d at 263, for reasons that this court finds persuasive. Among other things, the

DOJ Study

“cannot tell us the most meaningful information of all: whether individuals similarly situated ... have not been capitally-prosecuted in other federal districts.”

Id.

In addition:

[F]or the aggregate statistical disparities in the DOJ [Study] even to be relevant, a preliminary assumption must be made that capital-approval rates should be approximately equal across all 94 federal districts. But this is unrealistic given inevitable differences between districts in factors such as geographic size, population, demographic composition, and criminal density. It is eminently reasonable to be of the view that some districts will of course encounter greater instances of illicit conduct meeting federal capital-eligibility criteria.

Id.

While the court in

Bin Laden

was addressing only the issue of geographic disparity, its observations are equally appliea-

*91

ble to Sampson’s claim that alleged racial disparities relating to the administration of the FDPA violate the Eighth Amendment. For example, while the DOJ Study indicates that most inmates on death row are minorities, it does not indicate what percentage of the individuals committing death eligible offenses are minorities.

Id.

As the court in

Bin Laden

concluded:

At most, the DOJ [Study] indicates that the 94 U.S. Attorneys in this nation exercise their capital-approval discretion unevenly. The Supreme Court declared in

McCleskey ,

however, that “[a]pparent disparities ... are an inevitable part of our criminal justice system” and “where the discretion that is fundamental to our criminal process is involved, [courts should] decline to assume that what is unexplained is invidious.” (481 U.S. at 312-313, 107 S.Ct. 1756 , 95 L.Ed.2d 262 ).

Id.

at 263.

The statistics provided in this case do suggest that United States Attorneys exercise their discretion unevenly. For example, from 1988-2000 the United States Attorney for the District of Massachusetts requested authorization to seek the death penalty in only one of thirteen eligible cases, while the two United States Attorneys in Missouri sought authorization to seek it in each of the sixteen eligible cases in those districts.

DOJ Study

at T-15, T-19. However, the ultimate decision whether to make a prosecution a capital case is the Attorney General’s. Thus, in contrast to

McCleskey,

481 U.S. at 294 -95 n. 15, 107 S.Ct. 1756 , it is possible to focus on the decisions of a single federal official to determine if discretion is being exercised in a permissible manner in federal cases.

However, the ninety-four United States Attorneys still have the discretion to decide whether to initiate a federal case in which death is a potential penalty or to defer to a state prosecution in which the death penalty may not (as in Massachusetts) be authorized or, if it is authorized, may not be sought. During the period covered by the

DOJ Study,

twenty-two districts did not submit a potential case for review by the Attorney General.

DOJ Study

at T-59 to T-62. This suggests that the ninety-four United States Attorneys are still exercising unreviewed discretion that may result in a more uneven application of the federal death penalty than the

DOJ Study

indicates.

However, this does not necessarily suggest that the FDPA is being administered arbitrarily and capaciously. Rather, the apparent, and perhaps hidden, regional disparities in seeking the federal death penalty may in meaningful measure reasonably reflect cultural differences in our very large and diverse nation and an appropriate respect for those differences. Death is not a permissible penalty for murder or any other crime in Massachusetts. It is an authorized punishment under Missouri law. The historically different practices of the United States Attorneys in Massachusetts and Missouri in requesting authority to seek the federal death penalty may reflect the differing attitudes toward the death penalty embodied in the statutes of their respective states. The fact that, at least until recently, the Attorney General has respected those differences is not necessarily improper. Rather, it may indicate a reasonable appreciation for the principles that are the foundation of our federal system of government, and a recognition that while the national government has the power to seek the death penalty in a federal prosecution in a state like Massachusetts, respect for the preferences of Massachusetts citizens militates against doing so.

The Department of Justice’s standards and procedures require a substantial fed

*92

eral interest to justify seeking the death penalty pursuant to FDPA.

See

USAM § 9-10.070. Until June 2001, the United States Attorney’s Manual provided in pertinent part, that:

Where concurrent jurisdiction exists with a State or local government, it is anticipated that a Federal indictment for an offense subject to the death penalty will be obtained only when the Federal interest in the prosecution is more substantial than the interests of the State or local authorities.

See

Principles of Federal Prosecution, USAM 9-27.000.

et seq. In states where the imposition of the death penalty is not authorized by law, the fact that the maximum Federal penalty is death is insufficient, standing alone, to show a more substantial interest in Federal prosecution.

USAM § 9-10.070 (2000) (emphasis added). In June 2001, the last quoted sentence was deleted from the United States Attorney’s Manual.

See

USAM § 9-10.070 (2003);

see also

Raymond Bonner, “U.S. Executes a Second Killer in a Week,”

N.Y. Times,

June 20, 2001, at A12. Therefore, the fact that a state’s law does not provide for the death penalty may alone now prompt the initiation of a federal capital case.

Indeed, the Attorney General has reportedly recently directed that the death penalty be sought in cases in which United States Attorneys in the North have recommended against it.

See

A-76, Benjamin Weiser & William Glaberson, “Ashcroft Pushes Executions in More Cases in New York,”

N.Y. Times,

Feb. 6, 2003, at Al. In any event, the instant FDPA prosecution against a white man in the North may be part of a trend toward diminishing regional and racial disparities in seeking the federal death penalty at the expense of no longer respecting disparate regional preferences regarding the ultimate sanction.

Jurors, however, have the potential to assure that a community’s deeply held values are not rendered irrelevant by decisions of the national government. It appears that potential is often realized. There has only been one FDPA prosecution in which the jury found the death penalty to be justified in a state — Michigan — that does not itself have a statute providing for the death penalty.

See

A-68 to A-70.

In any event, as indicated earlier, the Supreme Court has instructed that “[wjhere the discretion that is fundamental to our criminal process is involved, [courts should not] assume that what is unexplained is invidious.”

McCleskey,

481 U.S. at 313 , 107 S.Ct. 1756 . Sampson, however, challenges the government to explain what he characterizes as regional and racial disparities in the operation of the FDPA. This is, in effect, a request for discovery.

In the context of a Fifth Amendment selective prosecution claim, the Supreme Court has recently held that “a defendant who seeks discovery ... must show some evidence of both discriminatory effect and discriminatory intent,” and that “raw statistics regarding overall charges say nothing about charges brought against

similarly situated defendants.” United States v. Bass,

536 U.S. 862, 863, 864 , 122 S.Ct. 2389 , 153 L.Ed.2d 769 (2002). This court concludes that a comparable showing is required to obtain discovery concerning Sampson’s related Eighth Amendment claim. That showing has not been made.

Thus, Sampson’s claim that the FDPA operates in a manner that is arbitrary and capricious must be decided on the current record. For the reasons described previously, Sampson’s three related arguments that the FDPA operates in a way that is arbitrary and capricious and is, therefore, cruel and unusual in violation of the Eighth Amendment are not, individually or

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cumulatively, convincing.

See Bin Laden,

126 F.Supp.2d. at 263.

Nor has Sampson demonstrated a violation of the Fifth Amendment based on racial disparities in the administration of the federal death penalty.' The First Circuit has held that:

A selective prosecution claim fails unless the defendant establishes that his prosecution results from “intentional and purposeful discrimination.”

United States v. Bassford,

812 F.2d 16, 19 (1st Cir.),

cert. denied,

481 U.S. 1022 , 107 S.Ct. 1909 , 95 L.Ed.2d 514 (1987). This requires that the defendant demonstrate, “at least prima facie, (1) that, while others similarly situated have not generally been proceeded against because of conduct of the type forming the basis of the charge against him, he has been singled out for prosecution, and (2) that the government’s discriminatory selection of him for prosecution has been invidious or based in bad faith, i.e., based upon such impermissible considerations as race....”

Id.

(quoting

United States v. Berrios,

501 F.2d 1207, 1211 (2d Cir.1974)).

Lewis,

40 F.3d at 1345 ;

accord McCleskey,

481 U.S. at 292, 107 S.Ct. 1756 (“[A] defendant who alleges an equal protection violation has the burden of proving the existence of purposeful discrimination.”) (internal quotation marks and citation omitted).

While Sampson’s Fifth Amendment claim relies on the alleged violation of the rights of others, he fails to identify any particular person for whom the federal government sought the death penalty while not seeking that sanction for another similarly situated individual. Sampson’s statistical evidence is insufficient to establish the necessary discriminatory effect.

See Bin Laden,

126 F.Supp.2d at 261-62.

It is also not adequate to prove purposeful discrimination,

la-McCleskey,

the Supreme Court rejected the use of statistics to demonstrate purposeful discrimination in the context of a challenge to the death penalty.

McCleskey,

481 U.S. at 293-98 , 107 S.Ct. 1756 . As the court wrote in

Bin Laden,

126 F.Supp.2d at 261, “[a]t its core, [ ]

McCleskey

stands for the notion that, by themselves, systemic statistics cannot prove racially discriminatory intent in support of an equal protection claim by a particular capital defendant.”

Sampson attempts to distinguish

McCleskey ,

arguing that unlike the large number of decision-makers at issue in

McCleskey ,

in this case all of the authorization decisions at issue were made by the Attorney General. The- defendant further notes that a single Attorney General, Janet Reno, personally approved over 80% of federal death penalty prosecutions initiated after 1988. Def.’s Brief at 60 n. 33. The court in

Bin Laden

recognized this distinction:

McCleskey

is silent on whether an

individualized

statistical study should be treated as skeptically as a systemic one. It is not entirely clear, after all, that racially disproportionate figures with respect to a single prosecutor’s capital-charging decisions should not afford a more legitimate basis for an inference of discriminatory intent.

(See generally

John H. Blume, Theodore Eisenberg & Sheri Lynn Johnson,

“Vost-McCleskey

Racial Discrimination Claims in Capital Cases,” 83

Cornell L.Rev.

1771 (Sept. 1998).) This practical distinction is at issue here because the DOJ Survey offers both systemic and individualized figures.

Bin Laden,

126 F.Supp.2d at 261. Ultimately, the court in

Bin Laden

determined that it “need not rule ... on the relationship in death penalty cases between individualized statistical evidence and proof of discriminatory intent” because the defen

*94

dants failed to establish discriminatory effect.

Id.

However, the difficulty of using a systemic study to establish purposeful discrimination by various individuals was only one reason that the Supreme Court rejected the use of statistics to demonstrate discriminatory intent in

McCleskey,

481 U.S. at 294-97 , 107 S.Ct. 1756 . The Court also refused to permit McCleskey to use statistical evidence to prove purposeful discrimination because of: the “innumerable” factors that enter into decisions in a death penalty case, “the impropriety of [ ] requiring prosecutors to defend their decisions to seek death penalties, often years after they were made,” and the need for discretion in the criminal justice process.

Id.

at 294, 296-97 , 107 S.Ct. 1756 (internal quotation marks omitted). In light of these considerations, the statistics proffered by the defendant are insufficient to establish purposeful discrimination by the Attorney General. Accordingly, Sampson’s Fifth Amendment claim that the FDPA discriminates based on race is not proven.

IX. SAMPSON’S CLAIM THAT THE FDPA IS UNCONSTITUTIONAL FOR THE REASONS DESCRIBED IN

FELL

IS NOT YET RIPE FOR DECISION

Sampson contends that because 18 U.S.C. § 3593 (c) authorizes the use of information at sentencing that would not be admissible under the Federal Rules of Evidence, the FDPA violates his Fifth and Sixth Amendment rights. This claim was found to be meritorious in

Fell,

217 F.Supp.2d at 485-90 , but has been rejected in other cases.

See, e.g., United States v. Haynes,

269 F.Supp.2d 970, 984-85 , 2003 WL 21537282, at *12-13 (W.D.Tenn.2003);

United States v. Matthews,

246 F.Supp.2d 137, 141-46 (N.D.N.Y.2002);

United States v. Lentz,

225 F.Supp.2d 672, 682-84 (E.D.Va.2002);

United States v. Regan,

221 F.Supp.2d 672, 681-83 (E.D.Va.2002). This issue is not ripe for resolution in the instant case because the relevant record is not complete.

This court explained previously its tentative view on this issue.

See Sampson,

245 F.Supp.2d at 338-39 . It is still not clear whether the government will offer, and the court will admit under § 3593(c), any evidence against Sampson that would not be admissible pursuant to the Federal Rules of Evidence.

Id.

at 339.

Moreover, § 3593(c) may prove to be more favorable to Sampson than the Federal Rules of Evidence. It may allow him to present to the jury information concerning mitigating factors that would ordinarily be inadmissible. In addition:

Section 3593(c) provides that at the penalty phase of the trial, “[i]nformation is admissible 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.” This balancing test is more favorable to the defendant than the test established by Federal Rule of Evidence 403, which requires that to exclude otherwise admissible evidence a court find that its probative value is

substantially

outweighed by such dangers.

See

Fe R. Evid. 403;

Regan,

221 F.Supp.2d at 682 .

Id.

(emphasis added).

The Supreme Court held in

Gregg,

428 U.S. at 204 , 96 S.Ct. 2909 , that “it [is] desirable for the jury to have as much information before it as possible when it makes the sentencing decision.” In

Ring,

536 U.S. at 609 , 122 S.Ct. 2428 , the Supreme Court reversed its prior precedent and deemed the factors that subject a defendant to a possible death sentence to be the functional equivalents of elements of the offense. This ruling may render inad

*95

missible some information that previously could have been presented to a jury in the penalty phase of a capital case.

See Sampson,

245 F.Supp.2d at 339 . However, this case is still not in a posture where that question can be resolved.

The court will evaluate the government’s proffered penalty phase evidence in the context of Sampson’s claim that § 3593(c) violates his constitutional rights. If the court decides that the government should be allowed to introduce evidence that would be inadmissible pursuant to the Federal Rules of Evidence, Sampson’s claim based on

Fell

will be ripe for resolution.

X. SAMPSON’S CLAIM THAT THE FDPA IS UNCONSTITUTIONAL AFTER

RING

IS INCORRECT

Sampson reiterates his claim that

Ring

renders the FDPA unconstitutional because the statute does not expressly require that the factors which subject a defendant to the possible imposition of the death penalty be alleged in the indictment. The court previously considered and rejected this contention.

See Sampson,

245 F.Supp.2d at 330-38 . For the reasons explained previously, Sampson’s claim remains unmeritorious.

Id.

XI. SAMPSON’S CLAIMS REGARDING APPELLATE REVIEW ARE NOT ALL RIPE FOR RESOLUTION

Sampson asserts that the FDPA does not authorize appellate review for plain error (Point Twelve) or review of whether the death sentence imposed on the appellant is proportional to the sentences imposed on other, similarly situated individuals (Point Eleven). He argues that the FDPA is, therefore, unconstitutional. Many lower courts have rejected these arguments.

See Bin Laden,

126 F.Supp.2d at 297 nn. 10, 12 (citing cases). As the government has acknowledged, however, the Supreme Court has not decided all of the issues Sampson presents.

See

June 11, 2003 Tr. at 144.

This court finds that the issues concerning the constitutional adequacy of the appellate review provided by the FDPA are not all ripe for resolution. If Sampson is convicted and is sentenced to death, the-First Circuit will decide the scope of its review.

See Llera Plaza,

179 F.Supp.2d at 457 (“Determining the proper scope of appellate review is, of course, a matter to be determined by a court of appeals, not by a district court.”). Only then will the facts be sufficiently clear to permit a decision on Sampson’s claim that the FDPA does not provide for constitutionally adequate appellate review. It is most appropriate that the First Circuit decide the merits of that claim.

Id.; Cuff,

38 F.Supp.2d at 286 .

More specifically, Sampson asserts that the FDPA provides, in part, that “whenever the court of appeals finds that ... the proceedings involved any other legal error requiring reversal of the sentence

that was properly preserved for appeal under the rules of criminal procedure

” it shall remand the case. 18 U.S.C. § 3595 (c)(2)(C) (emphasis added). Sampson contends that the statute, therefore, deprives the courts of appeals in FDPA cases of their usual power to review and reverse or remand for plain error, as to which there was no objection at trial.

See

Fed. R. Crim P. 52(b);

United States v. Olano,

507 U.S. 725, 731-37 , 113 S.Ct. 1770 , 123 L.Ed.2d 508 (1993);

United States v. Frady,

456 U.S. 152 , 163 n. 13, 102 S.Ct. 1584 , 71 L.Ed.2d 816 (1982).

However, the Supreme Court has addressed § 3595(c)(2)(C) and stated that “[t]he statute does not explicitly announce an exception to plain-error review, and a congressional intent to create such an exception cannot be inferred from the overall scheme.”

Jones v. United States,

527 U.S.

*96

373, 388-89, 119 S.Ct. 2090 , 144 L.Ed.2d 370 (1999). The Court then went on to review the jury instructions at issue for plain error.

Id.

at 389, 119 S.Ct. 2090 . Thus, Sampson’s claim that the FDPA violates his right to equal protection by prohibiting plain error review is without merit.

Sampson’s argument regarding proportionality review is not ripe for resolution. The proportionality review Sampson claims is not provided by the FDPA:

presumes that the death sentence is not disproportionate to the crime in the traditional sense. It purports to inquire instead whether the penalty is nonetheless unacceptable in a particular case because disproportionate to the punishment imposed on others convicted of the same crime.

Pulley v. Harris,

465 U.S. 37, 43 , 104 S.Ct. 871 , 79 L.Ed.2d 29 (1984).

The FDPA does not expressly provide for proportionality review. In

Pulley

the Supreme Court stated that while in

Zant v. Stephens,

462 U.S. 862 , 103 S.Ct. 2733 , 77 L.Ed.2d 235 (1983) it had “emphasiz[ed] the importance of mandatory appellate review under the Georgia statute, [it] did not hold that without comparative proportionality review the statute would be unconstitutional.”

Id.

at 50, 104 S.Ct. 871 (internal citations omitted). The Court added that “[t]here is [] no basis in [its] cases for holding that comparative proportionality review by an appellate court is required in every case in which the death penalty is imposed and the defendant requests it.”

Id.

at 50-51 , 104 S.Ct. 871 .

Pulley

did not involve a statute which, like the FDPA, permits the use of non-statutory aggravating factors and a weighing of aggravating and mitigating factors to determine whether a death sentence is justified.

See Pulley,

465 U.S. at 51-54 , 104 S.Ct. 871 . Thus, as the government has acknowledged,

see

June 11, 2003 Tr. at 144, neither the Supreme Court nor the First Circuit has decided the issue Sampson presents.

However, the FDPA does not prohibit the courts of appeals from performing a proportionality review of a death sentence. The Florida Supreme Court performs proportionality review despite the fact that the Florida statutes authorizing capital punishment do not provide for it.

See Tillman v. State,

591 So.2d 167, 168-69 (Fla.1991). The Supreme Courts of Arizona and Arkansas did the same, despite a lack of statutory authority, prior to

Pulley. See

Penny J. White, “Can Lightning Strike Twice? Obligations of State Courts after

Pulley v. Harris,”

U. Colo. L.Rev.

813, 845-48 (1999). These examples suggest that the First Circuit may conduct a proportionality review if Sampson is sentenced to death.

Such review would not involve a constitutionally impermissible rewriting of the statute. Just as the FDPA neither explicitly forbids nor requires that an indictment allege at least one statutory aggravating factor, the FDPA neither forbids nor requires proportionality review. This court has previously found that

Ring, supra,

did not render the FDPA unconstitutional in part because “there is nothing in the [statute] that expresses Congressional intent to prohibit the grand jury from performing its traditional function under the Fifth Amendment following Ring.”

Sampson,

245 F.Supp.2d at 336 . The same analysis and conclusion apply to Sampson’s claim concerning proportionality review.

Sampson’s claim that the FDPA is unconstitutional because it does not provide for proportionality review is, therefore, not ripe for resolution because the relevant facts regarding the scope of review are not yet established.

See Doe,

323 F.3d at 138 . As the First Circuit has written, “[deciding constitutional questions in the abstract

*97

is a recipe for making bad law.”

United States v. Hilton,

167 F.3d 61, 71 (1st Cir.1999),

abrogated on other grounds by, Free Speech Coalition, supra.

The court will not do so with regard to Sampson’s claim that the FDPA fails to provide for constitutionally required proportionality review.

XII. SAMPSON’S CHALLENGES TO THE NON-STATUTORY AGGRAVATING FACTORS ARE EITHER NOT RIPE OR ARE WITHOUT MERIT

Sampson raises several challenges to the non-statutory aggravating factors that the government alleges in its Notice of Intent to Seek the Death Penalty. He argues that: they are not authorized by the FDPA (Point Seven); if authorized, they represent an unconstitutional delegation of legislative authority (Point Ten); they may not include unadjudicated criminal conduct (Point Nine); and some of them are unconstitutionally vague, duplicative or irrelevant (Point Eight). Some of these claims are ripe for decision now, but others are not.

Sampson’s arguments that the FDPA does not authorize the government to allege non-statutory factors and that, if it does, the FDPA violates the constitutional prohibition on the delegation of legislative power to the executive branch are ripe for adjudication. Both arguments can be resolved based on the text of the statute. Sampson’s claim that unadjudicated criminal conduct can never properly be a non-statutory aggravating factor is also ripe for decision because it does not depend on the particular unadjudicated crimes that the government alleges in this case. In contrast, the arguments relating to specific aggravating factors are, in large part, not yet ripe for decision. In order to best evaluate the relevance, reliability, probative value and danger of unfair prejudice associated with the non-statutory aggravating factors that Sampson attacks, the court must wait until it has additional information about them.

A. THE FDPA AUTHORIZES THE GOVERNMENT TO ALLEGE NON-STATUTORY AGGRAVATING FACTORS

Sampson contends that the FDPA does not authorize the government to allege non-statutory aggravating factors, with the exception of victim impact evidence. According to Sampson:

This is so because § 3592(c) of the statute contradicts § 3591(a) of the statute. The former provides that the jury “may consider whether any other aggravating factor for which notice has been given exists.” 18 U.S.C. § 3592 (c). But § 3591(a) provides that a defendant may be sentenced to death only after a consideration by the jury of “the factors set forth in § 3592 -” Section 3592 contains ... a listing of 16 factors and 16 factors only. Therefore, non-statutory factors may not be considered by a jury since they are not — and could not be— set out in § 3592.

Def.’s Brief at 77 (footnote omitted).

This argument is not persuasive.

See Llera Plaza,

179 F.Supp.2d at 457-59 . Rather, the FDPA provides that in deciding whether the death penalty is justified, the jury must consider the statutory aggravating factors set forth in § 3592 and may also consider any proven non-statutory aggravating factors. More specifically, as explained in

Llera Plaza :

Close scrutiny of the FDPA’s text reveals that the problem of parsing §§ 3591(a) and 3592(c) is somewhat more complex than the defendants’ argument — and the refutation of a cognate argument in

[United States

v.]

Nguyen

[, 928 F.Supp. 1525 (D.Kan.1996) ]— would suggest. To understand the quot

*98

ed statutory provisions, reference must be made to the entire fabric of the FDPA.

Other sections of the FDPA confirm that the phrase “the factors set forth in section 3592,” as used in § 3591(a), should be interpreted to include only statutory aggravating factors. For example, elsewhere in the statute, the sen-tencer is directed to “return special findings identifying any

aggravating factor or factors set forth in section 3592

found to exist and any

other aggravating factor for which notice has been provided

under subsection (a) found to exist.” § 3593(d) (emphasis added). In this context, it is clear that the phrase “factor or factors set forth in section 3592” refers only to statutory aggravating factors, since it is explicitly distinguished from the phrase “any other aggravating factor for which notice has been provided,” referring to non-statutory aggravating factors. In addition, the FDPA also mandates that “[i]f no

aggravating factor set forth in section 3592

is found to exist, the court shall impose a sentence other than death authorized by law.” § 3593(d) (emphasis added). Here again, the phrase “factor set forth in section 3592” clearly refers only to statutory aggravating factors; the FDPA is uniformly understood to preclude the sentencer from imposing the death penalty if it has not found, beyond a reasonable doubt, that at least one statutory aggravating factor exists.

See, e.g., Allen,

247 F.3d at 758;

Cooper ,

91 F.Supp.2d. at 95.

Consistency therefore demands that in reading § 3591(a), the phrase “the factors set forth in section 3592” must be taken to comprehend only statutory aggravating factors. However, this is not to say that the defendants are correct that § 3591(a) undermines the government’s authority, under the catch-all sentence of § 3592(c), to articulate and attempt to establish non-statutory aggravating factors. To reiterate, § 3591(a) authorizes the sentencer to impose the death penalty if it finds such a sentence justified “after consideration of the factors set forth in section 3592.” Section 3591(a) thus affirmatively directs the sentencer to include statutory factors in its calculus; however, it does not prohibit the sentencer from including non-statutory aggravating factors as well — or, for that matter, mitigating factors. Simply because consideration of one type of factor is mandated does not mean that consideration of other types of factors is precluded. •

To construe § 3591(a) so narrowly as to nullify the catch-all sentence of § 3592(c) authorizing the use of non-statutory aggravating factors would violate “the longstanding canon of statutory construction that terms in a statute should not be construed so as to render any provision of that statute meaningless or superfluous.”

Beck v. Prupis,

529 U.S. 494, 506 , 120 S.Ct. 1608 , 146 L.Ed.2d 561 (2000);