USA v. Smith et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
v.
JOHN PEARL SMITH, II,
Defendant.
Case No. 3:16-cr-00086-SLG-1
ORDER REGARDING MOTION TO PRECLUDE PROPORTIONALITY
EVIDENCE OR ARGUMENT
Before the Court at Docket 702 is the government’s Motion in Limine to
Preclude Proportionality Evidence or Argument. Defendant John Pearl Smith, II
responded in opposition at Docket 793. The government replied at Docket 832.
The government seeks an order precluding the defense from comparing Mr.
Smith “to other actual or potential capital defendants” during either the guilt or
penalty phase of trial.1 The government asserts that proportionality is not
constitutionally required and is not relevant to mitigation, and that if it were
relevant, it should be excluded because its probative value would be outweighed
by the danger of misleading the jury.2
1 Docket 702 at 2.
2 Docket 702 at 3, 8.
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Mr. Smith responds that the government’s view of what is relevant to
mitigation is too narrow and that comparative proportionality is a proper mitigating
factor pursuant to the Constitution and the Federal Death Penalty Act (FDPA).3 He
asserts that the defense could present proportionality information to the jury in a
manner that would not confuse the jury.4
“Proportionality review refers to the notion that imposition of the death
penalty would be ‘unacceptable in a particular case because [it is] disproportionate
to the punishment imposed on others convicted of the same crime.’”5 There is no
constitutional right to proportionality review.6 However, there is also no Supreme
Court or Ninth Circuit precedent that prohibits a district court from allowing
proportionality evidence so long as it meets the FDPA admissibility standards.
Accordingly, “[t]his dispute ultimately turns on whether the proffered ‘comparative
proportionality’ evidence is relevant mitigation evidence and admissible under the
FDPA.”7 As relevant here, § 3592(a) of the FDPA provides:
3 Docket 793 at 2–3.
4 Docket 793 at 4.
5 United States v. Mitchell, 502 F.3d 931, 980 (9th Cir. 2007) (quoting Pulley v. Harris, 465 U.S.
37, 43 (1984)) (alteration in Mitchell). Because Mr. Smith has no co-defendants charged with
capital murder, he seeks to compare himself and his case to capital defendants in other,
unrelated cases.
6 Id. at 981. See also Martinez-Villareal v. Lewis, 80 F.3d 1301, 1308 (9th Cir. 1996) (“[T]here is
no federal constitutional requirement of an inter-case proportionality analysis of death
sentences.”).
7 United States v. Williams, 18 F. Supp. 3d 1065, 1073 (D. Haw. 2014) (footnote omitted).
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(a) Mitigating factors.—In determining whether a sentence of death is
to be imposed on a defendant, the finder of fact shall consider any
mitigating factor, including the following:
***
(8) Other factors. Other factors in the defendant’s
background, record, or character or any other circumstance of
the offense that mitigate against imposition of the death
sentence.
The government cites to the Ninth Circuit’s decision in United States v.
Mitchell and maintains that the Circuit Court expressly rejected a proportionality
argument in that case, where the Circuit described a co-defendant’s culpability in
a separate double murder as “irrelevant” to determining the defendant’s sentence.8
However, the Circuit’s analysis on that point was under the Eighth Amendment,
not the FDPA. The government also encourages this Court to adopt the reasoning
of the District Court for the District of Hawaii in United States v. Williams.9 The
Williams Court reviewed each of the mitigating factors set forth in § 3592(a) and
concluded that proportionality information was not relevant to any of those
mitigating factors.10 The Williams Court specifically noted that “[e]very indication
in the statute is [that] all of the examples of mitigating evidence listed in § 3592(a)
8 Docket 702 at 4 (citing Mitchell, 502 F.3d at 980); 502 F. 3d at 981 (“Nakai’s culpability in a
separate double murder is irrelevant . . . . As with Nakai, it is irrelevant that Orsinger was also
involved in the separate double murder.”) (emphasis in original).
9 Docket 702 at 4–5 (citing Williams, 18 F. Supp. 3d at 1072).
10 18 F. Supp. 3d at 1074–75.
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concern the defendant’s background, culpability, or crime.”11 The Williams Court
concluded by ruling that “even if it might have some relevance, the [proportionality]
evidence proffered by Defendant is likely to confuse and mislead the jury” and thus
would be precluded on that basis.12
Mr. Smith encourages the Court to follow the reasoning of the District Court
for the District of Massachusetts in United States v. Sampson.13 The Sampson
Court adopted the statutory interpretation made in United States v. Davis, which
read § 3592(a) to permit broader mitigation than listed in the enumerated
categories.14 Specifically, the Davis and Sampson Courts reasoned that the plain
language of § 3595(a) requires the jury to consider any mitigating factor.15 Those
courts reasoned that because § 3595(a) contains the introductory phrase
“including the following,” the subsequent list thus “is not exclusive, but is instead
illustrative.”16 As relevant to proportionality mitigation, those courts reasoned that
“subhead (8) which refers to other factors ‘in the defendant’s background, record,
or character or any other circumstance of the offense’ is a sub category of ‘any
11 Id. at 1074 (quoting United States v. Gabrion, 719 F.3d 511, 524 (6th Cir. 2013) (alterations in
Williams)).
12 Id. at 1076.
13 Docket 793 at 3–4 (citing Sampson, 335 F. Supp. 2d. 166 (D. Mass. 2004)).
14 335 F. Supp. 2d at 194–95 (quoting United States v. Davis, 132 F. Supp. 2d 455, 463–64
(E.D. La. 2001)).
15 Id. at 194 (citing Davis, 132 F. Supp. 2d at 463–64).
16 Id. (quoting Davis, 132 F. Supp. 2d at 463–64).
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mitigating factor’ rather than being the outer boundaries of what may be considered
as mitigating.”17
This Court has previously held that
[a] proper mitigating factor, as defined by the FDPA, is one that is
enumerated in the FDPA or is a factor “in the defendant’s background,
record, or character or any other circumstance of the offense that
mitigate[s] against imposition of the death sentence.” Relevant
mitigating evidence, therefore, is “evidence which tends logically to
prove or disprove some fact or circumstance which a fact-finder could
reasonably deem to have mitigating value.”18
The Court finds that inter-case proportionality such as proposed by Mr. Smith is
not a stand-alone mitigating factor, nor is it information relevant to any mitigating
factor. In reaching this conclusion, the Court is persuaded by the reasoning in
United States v. Taylor.19 The Taylor Court undertook a statutory interpretation
analysis of § 3592(a) and found three bases for concluding that the FDPA’s list of
mitigating factors was not so broad as to allow proportionality information. First,
applying the canon of ejusdem generis, the Taylor Court found that “the description
of ‘Other factors’ [subheading (8)] does not allow for factors of an entirely different
nature from the illustrated factors. All the illustrated factors concern the defendant
or the circumstances of the offense . . . .”20 Second, the Taylor Court found that
17 Id. at 195 (quoting Davis, 132 F. Supp. 2d at 463–64).
18 Docket 948 at 4 (quoting 18 U.S.C. § 3592(a) and United States v. Mitchell, 502 F.3d 931, 991
(9th Cir. 2007)).
19 583 F. Supp. 2d 923 (E.D. Tenn. 2008).
20 583 F. Supp. 2d at 935.
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“[i]f the statute permitted other factors beyond what is contained in ‘Other factors,’
the statute would contain a broader description than what is contained in ‘Other
factors’ . . . thus rendering ‘Other factors’ superfluous.”21 Finally, the Taylor Court
reasoned that the statute’s use of the word “any” in § 3592(a) “does not indicate
Congress intended to greatly expand the definition of mitigating factors over that
required by the Constitution . . . . [E]lsewhere the statute makes clear non-relevant
information is inadmissible.”22 The Taylor Court undertook a thorough review of
the FDPA, which this Court finds persuasive.
The Court is also persuaded by the Ninth Circuit’s holding that in the Eighth
Amendment context, proportionality information is “not relevant.”23 Even if not
directly on point, the Circuit Court’s holding in Mitchell is certainly fully consistent
with a holding that proportionality information lacks relevance under the FDPA.
The Court further finds that even if proportionality information might have
some relevance, it would likely confuse and mislead the jury, resulting in a series
of mini-trials and argument about any disputed facts in the other cases and
whether each case was sufficiently similar to be probative.24
21 Id.
22 Id. (citing 18 U.S.C. § 3593(c)).
23 Mitchell, 502 F. 3d at 980.
24 18 U.S.C. § 3593(c).
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In light of the foregoing, the motion at Docket 702 is GRANTED. However,
if the government opens the door—through statements of counsel or through a
witness—by categorizing Mr. Smith or the crimes in relation to other defendants or
their crimes (e.g., “the most cold-blooded,” “the least remorseful,” “the most
dangerous,” or “the worst crime committed in this district”), the Court may allow the
defense to rebut this claim, including by introducing proportionality information. In
that event, the defense may make an application to Court to reconsider this order,
but shall do so outside the presence of the jury.
DATED this 2nd day of November, 2020, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
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