United States v. Montgomery (10 F. Supp. 3d 801, 2014)

United States District Court for the Western District of Tennessee 2014-03-19

Crimes and Criminal Procedure

Citations

Full opinion text

ORDER DENYING MOTION TO DISMISS THE “SPECIAL FINDINGS” FROM THE SUPERSEDING INDICTMENT, AND TO STRIKE THE NOTICE OF INTENT TO SEEK THE DEATH PENALTY BECAUSE IT FAILS TO ADEQUATELY NARROW DEFENDANT’S ELIGIBILITY FOR THE DEATH PENALTY, MEET HEIGHTENED STANDARDS OF RELIABILITY, IS VAGUE AND DUPLICATIVE AND OVERLY BROAD (ECF NO. 141);

DENYING MOTION TO STRIKE STATUTORY AGGRAVATORS (ECF NO. 142); DENYING MOTION TO STRIKE THE NON-STATUTORY AGGRAVATING FACTORS FOR FAILURE TO INCLUDE THEM IN THE INDICTMENT (ECF NO. 143); DENYING MOTION TO DISMISS/STRIKE NON-STATUTORY AGGRAVATING FACTOR CONCERNING VICTIM-IMPACT EVIDENCE, OR IN THE ALTERNATIVE, TO LIMIT VICTIM-IMPACT TESTIMONY (ECF NO. 144);

DEFERRING RULING ON MOTION FOR BILL OF PARTICULARS REGARDING VICTIM IMPACT (ECF NO. 145); DENYING MOTION TO STRIKE/DISMISS NON-STATUTORY AGGRAVATOR CONCERNING STATUS OF VICTIMS (ECF NO. 146);

DENYING MOTION TO DISMISS/STRIKE NON-STATUTORY AGGRAVATING FACTORS CONCERNING IMPACT OF THE OFFENSE ON THE EMPLOYER AND COLLEAGUES OF THE VICTIM (ECF NO. 147);

DENYING MOTION TO STRIKE FUTURE DANGEROUSNESS AS AN AGGRAVATOR (ECF NO. 148);

DENYING MOTION TO STRIKE LACK OF REMORSE AS AN AGGRAVATOR (ECF NO. 149);

AND DENYING MOTION TO DISMISS OR STRIKE ANY AGGRAVATOR WITH OPEN-ENDED PHRASING (ECF NO. 150)

JON P. McCALLA, District Judge.

Before the Court are the following Motions, filed by Defendant Chastain Montgomery, Sr. (“Defendant”), on May 6, 2013: (1) a Motion to Dismiss the “Special Findings” from the Superseding Indictment, and to Strike the Notice of Intent to Seek the Death Penalty Because It Fails to Adequately Narrow Defendant’s Eligibility for the Death Penalty, Meet Heightened Standards of Reliability, Is Vague and Duplicative and Overly Broad (ECF No. 141); (2) a Motion to Strike Statutory Aggravators (ECF No. 142); (3) a Motion to Strike the Non-Statutory Aggravating Factors for Failure to Include Them in the Indictment (ECF No. 143); (4) a Motion to Dismiss/Strike Non-Statutory Aggravating Factor Concerning Victim-Impact Evidence, or in the Alternative, to Limit Victim-Impact Testimony (ECF No. 144); (5) a Motion for a Bill of Particulars Regarding Victim Impact (ECF No. 145); (6) a Motion to Strike/Dismiss Non-Statutory Aggravator Concerning Status of Victims (ECF No. 146); (7) a Motion to Dismiss/Strike Non-Statutory Aggravating Factors Concerning Impact of the Offense on the Employer and Colleagues of the Victim (ECF No. 147); (8) a Motion to Strike Future Dangerousness as an Aggravator (ECF No. 148); (9) a Motion to Strike Lack of Remorse as an Aggravator (ECF No. 149); and (10) a Motion to Dismiss or Strike Any Aggravator with Open-Ended Phrasing (ECF No. 150). The United States of America (the “Government”) timely responded in opposition to each of the Motions on June 12, 2013. (ECF Nos. 162-68,170.)

For the reasons stated below, each of Defendant’s Motions (ECF Nos. 141-44, 146-50) is DENIED except for his Motion for a Bill of Particulars Regarding Victim Impact (ECF No. 145), on which the Court DEFERS RULING.

I. BACKGROUND

On February 24, 2011, the Government filed a six-count Indictment against Defendant. (ECF No. 1.) On May 31, 2012, the Government filed a seven-count Superseding Indictment alleging the following facts and charges against Defendant. (ECF No. 49.)

The first six Counts allege crimes committed on October 18, 2010, and that Defendant was aided and abetted by his son, Chastain Montgomery, Jr., who is deceased. (Id. at 1-6.) Counts One and Two charge Defendant, pursuant to 18 U.S.C. § 1114(1) and 18 U.S.C. § 2, with the murders of Paula Robinson and Judy Spray, employees of the United States Postal Service (“USPS”). (Id. at 1-2.)

Count Three charges Defendant with the robbery of Paula Robinson and Judy Spray of the United States’ money while using a dangerous weapon in violation of 18 U.S.C. § 2114(a) and 18 U.S.C. § 2. (Id. at 3.) Count Four charges Defendant with the use of a firearm while perpetrating the crime of violence alleged in Count Three in violation of 18 U.S.C. § 924(c) and 18 U.S.C. § 2. (Id. at 4.) Counts Five and Six charge Defendant with the murder of Paula Robinson and Judy Spray while committing the crime alleged in Count Four in violation of 18 U.S.C. § 924(j)(l) and 18 U.S.C. § 2. (Id. at 5-6.)

Count Seven charges Defendant with conspiring from August 30, 2010, to February 14, 2011, with his son to rob USPS employees having custody of money and property of the United States in violation of 18 U.S.C. § 2114(a) and to rob banks and credit unions in violation of 18 U.S.C. § 2113(a). (Id. at 7.) This conspiracy is charged as a violation of 18 U.S.C. § 371. (Id. at 10.)

In support of Count Seven, the following facts are alleged in the Superseding Indictment. On August 30, 2010, Defendant purchased a Smith & Wesson .40 caliber semiautomatic pistol in Nashville, Tennessee, and, on October 15, 2010, Defendant purchased a Ruger 9mm semiautomatic pistol in Nashville, Tennessee. (Id. at 7.) Defendant provided his son with the Rug-er 9mm pistol. (Id. at 8.)

On October 18, 2010, Defendant and his son robbed the United States Post Office in Henning, Tennessee. (Id.) “[U]sing the Smith & Wesson .40 caliber pistol,” Defendant “shot and killed United States Postal employee Paula Robinson inside the United States Post Office in Henning, Tennessee.” (Id.) “[UJsing the Ruger 9mm pistol provided to him by [Defendant],” Defendant’s son “shot and killed United States Postal Service employee Judy Spray inside the United States Post Office in Henning, Tennessee.” (Id.)

On October 26, 2010, Defendant and his son stole a Nissan Frontier pickup truck in Smyrna, Tennessee. (Id. at 9.) On October 29, 2010, Defendant and his son “robbed at gunpoint the Southeast Financial Credit Union in Lavergne [sic], Tennessee,” and used the stolen Nissan Frontier pickup truck as a getaway vehicle. (Id.)

On November 29, 2010, Defendant and his son stole a Chevrolet Venture minivan in La Vergne, Tennessee. (Id.) On November 29, 2010, Defendant and his son “robbed at gunpoint the Mid-South Bank, Smyrna, Tennessee,” and used the stolen Chevrolet Venture minivan as the getaway vehicle. (Id.)

On February 11, 2011, Defendant sent a text message to his son stating, “We need to discuss an escape route.” (Id.) On February 14, 2011, Defendant’s son “stole at gunpoint a Chevrolet pickup truck from a person in Nashville, Tennessee” (id.) and “drove in the stolen Chevrolet pickup truck from Nashville, Tennessee[,] to Mason, Tennessee” (id. at 9-10). “On February 14, 2011, [Defendant’s son] fired shots at police officers in Mason, Tennessee.” (Id. at 10.) Defendant’s son was shot and killed by police. (Tr. Dec. 12, 2012, ECF No. 117, at 22:17-23:16.)

The Superseding Indictment also provides a Notice of Special Findings that, as to Counts One, Two, Five, and Six, Defendant:

(1) was more than 18 years of age at the time of the offense (Title 18, United States Code, Section 3591(a));

(2) intentionally killed the victim (Title 18, United States Code, Section 3591(a)(2)(A));

(3) intentionally inflicted serious bodily injury that resulted in the death of the victim (Title 18, United States Code, Section 3591(a)(2)(B));

(4) intentionally participated in an act, contemplating that the life of a person would be taken or intending that lethal force would be used in connection with a person, other than one of the participants in the offense, and the victim died as a direct result of the act (Title 18, United States Code, Section 3591(a)(2)(C));

(5) intentionally and specifically engaged in an act of violence, knowing that the act created a grave risk of death to a person, other than one of the participants in the offense, such that participation in the act constituted a reckless disregard for human life and the victim died as a direct result of the act (Title 18, United States Code, Section 3591(a)(2)(D));

(6) in the commission of the offense knowingly created a grave risk of death to 1 or more persons in addition to the victim of the offense (Title 18, United States Code, Section 3592(c)(5));

(7) committed the offense in the expectation of receipt of anything of pecuniary value (Title 18, United States Code, Section 3592(c)(8));

(8) committed the offense after substantial planning and premeditation to cause the death of a person (Title 18, United States Code, Section 3592(c)(9));

(9) intentionally killed more than one person in a single criminal episode (Title 18, United States Code, Section 3592(c)(16)).

(ECF No. 49 at 11-12.)

On March 15, 2013, the Government filed a Notice of Intent to Seek the Death Penalty (the “Notice”). (ECF No. 133.) The Government’s Notice indicates that the Government

will seek to prove the following statutory aggravating factors as the basis for the imposition of the death penalty in relation to Counts One and Two of the Indictment:

1. Pecuniary Gain. The [Defendant, Chastain Montgomery, Sr., committed the offense as consideration for the receipt, or in the expectation of the receipt, of anything of pecuniary value. (18 U.S.C. § 3592(c)(8)).

2. Multiple killings or attempted killings. The [Defendant, Chastain Montgomery, Sr., intentionally killed or attempted to kill more than one person in a single criminal episode. (18 U.S.C. § 3592(c)(16)).

(Id. at 3.)

The Government’s Notice further indicates that the Government-will seek to prove multiple “non-statutory aggravating factors as the basis for the imposition of the death penalty in relation to Counts One, Two, Five[,] and Six of the Indictment,” including: victim-impact evidence as to the characteristics of the victims, the impact of the offense on the families of the victims, and the impact of the offense on the employer and colleagues of the victims; the status of the victims as Government employees performing their official duties; that the murder occurred during the course of an armed robbery; that Defendant continued to commit violent criminal acts after the October 18, 2010, murders; that Defendant used his 18-year-old son as an accomplice in planning and committing a series of violent crimes resulting in his son’s death; that Defendant has demonstrated a lack of remorse for the murders; and that Defendant is likely to commit criminal acts of violence in the future (“future dangerousness”). (Id. at 3-6.)

The United States further gives notice that, in support of the imposition of the death penalty, in addition to evidence of the above-listed aggravating factors, [the Government] intends to rely upon all the evidence admitted by the Court at the guilt phase of the trial and the offenses of conviction as alleged in the Indictment as they relate to the background and character of the [Defendant, Chastain Montgomery, Sr., his moral culpability, and the nature and circumstances of the offenses charged in Counts One, Two, Five[,] and Six of the Indictment.

(Id. at 6.) On February 26, 2014, the Government filed a Supplement to Notice of Intent to Seek the Death Penalty providing the following additions in support of the future dangerousness aggravating factor:

(i) Defendant loudly interrupted court proceedings on September 30, 2013, and fought with law enforcement officers attempting to restrain him.

(j) Defendant loudly interrupted court proceedings and threatened to kill a witness, Michael Farrish, on October 4, 2013, requiring Defendant to be forcibly subdued and restrained by law enforcement personnel.

(ECF No. 343 at 1 (record citations omitted).)

The instant Motions challenge various aspects of the Government’s Notice. (See ECF Nos. 141-50.) The Court explains and analyzes Defendant’s challenges more fully below.

II. LEGAL STANDARD

“[T]he Eighth Amendment requires that a sentence of death not be imposed arbitrarily.” Jones v. United States, 527 U.S. 373, 381, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999). “In order for a capital sentencing scheme to pass constitutional muster, it must perform a narrowing function with respect to the class of persons eligible for the death penalty and must also ensure that capital sentencing decisions rest upon an individualized inquiry.” Id. The imposition of the federal death penalty is governed by the Federal Death Penalty Act of 1994 (“FDPA”),-18 U.S.C. §§ 3591-3599.

A. Framework of the FDPA

“There are two stages in the capital sentencing decision making process: the eligibility decision and the selection decision.” United States v. Lawrence, 735 F.3d 385, 417 (6th Cir.2013) (citing Tuilaepa v. California, 512 U.S. 967, 971, 114 S.Ct. 2630, 129 L.Ed.2d 750 (1994)); see also Buchanan v. Angelone, 522 U.S. 269, 275, 118 S.Ct. 757, 139 L.Ed.2d 702 (1998) (“In the eligibility phase, the jury narrows the class of defendants eligible for the death penalty, often through consideration of aggravating circumstances. In the selection phase, the jury determines whether to impose a death sentence on an eligible defendant.” (citations omitted)). “There is one principle common to both decisions, however: The State must ensure that the process is neutral and principled so as to guard against bias or caprice in the sentencing decision.” Tuilaepa, 512 U.S. at 973, 114 S.Ct. 2630 (citing Gregg v. Georgia, 428 U.S. 153, 189, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976)).

1. The Eligibility Phase

In the eligibility phase, “the trier of fact must convict the defendant of murder and find one ‘aggravating circumstance’ (or its equivalent) at either the guilt or penalty phase.” Tuilaepa, 512 U.S. at 971-72, 114 S.Ct. 2630 (citations omitted). Regarding the eligibility phase, the United States Supreme Court has “stressed the need for channeling and limiting the jury’s discretion to ensure that the death penalty is a proportionate punishment and therefore not arbitrary or capricious in its imposition.” Buchanan, 522 U.S. at 275-76, 118 S.Ct. 757.

For a defendant to be eligible for the death penalty under the FDPA, a jury must find, pursuant to § 3591(a)(2), the presence of at least one of the “intent” factors enumerated by Congress, i.e., that the defendant:

(A) intentionally killed the victim;

(B) intentionally inflicted serious bodily injury that resulted in the death of the victim;

(C) intentionally participated in an act, contemplating that the life of a person would be taken or intending that lethal force would be used in connection with a person, other than one of the participants in the offense, and the victim died as a direct result of the act; or

(D) intentionally and specifically engaged in an act of violence, knowing that the act created a grave risk of death to a person, other than one of the participants in the offense, such that participation in the act constituted a reckless disregard for human life and the victim died as a direct result of the act....

18 U.S.C. § 3591(a)(2). Moreover, the jury must find at least one of sixteen enumerated statutory aggravating factors. See id. § 3592(c). “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.” Id. § 3593(c). “A finding with respect to any aggravating factor must be unanimous.” Id. § 3593(d). “Once the jury finds the requisite intent and statutory aggravating factors, the crime is death-eligible.” United States v. Higgs, 353 F.3d 281, 294 (4th Cir.2003); see also Jones, 527 U.S. at 376-77, 119 S.Ct. 2090; Lawrence, 735 F.3d at 417 (“A defendant is rendered eligible for the death penalty in a homicide case upon a finding by the jury or judge that the defendant is guilty of murder and the finding of one aggravating circumstance at either the guilt or penalty phase.” (citations omitted)).

2. The Selection Phase

After the eligibility phase, the jury enters the selection phase, in which it must decide “whether [a defendant] should receive a death sentence.” Jones, 527 U.S. at 377, 119 S.Ct. 2090. The FDPA “requires that the sentencing jury consider all of the aggravating and mitigating factors and determine whether the former outweigh the latter (or, if there are no mitigating factors, whether the aggravating factors alone are sufficient to warrant a death sentence).” Id. In the selection phase, “[t]he jury ... may consider whether any other aggravating factor for which notice has been given exists.” 18 U.S.C. § 3592(c). The selection phase requires “a broad inquiry into all relevant mitigating evidence to allow an individualized determination.” Buchanan, 522 U.S. at 276, 118 S.Ct. 757 (citations omitted); see also Tuilaepa, 512 U.S. at 972, 114 S.Ct. 2630 (“ ‘What is important at the selection stage is an individualized determination on the basis of the character of the individual and the circumstances of the crime.’ ” (quoting Zant v. Stephens, 462 U.S. 862, 879, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983))). Both statutory and non-statutory aggravating factors must be considered during the selection phase. See 18 U.S.C. § 3593(e) (“the jury ... shall consider whether all the aggravating factor or factors found to exist sufficiently outweigh all the mitigating factor or factors found to exist to justify a sentence of death”).

B. Overbreadth and Vagueness of Aggravating Factors

The aggravating factors — in this case, the statutory factors enumerated in § 3592(c) — “must meet two requirements. First, the [aggravating] circumstance may not apply to every defendant convicted of a murder; it must apply only to a subclass of defendants convicted of murder. Second, the aggravating circumstance may not be unconstitutionally vague.” Tuilaepa, 512 U.S. at 972, 114 S.Ct. 2630 (citations omitted); see also Lawrence, 735 F.3d at 417 (same). “[A]s long as the ‘narrowing function’ of the aggravating circumstance is not impermissibly vague and is incorporated into the capital sentencing scheme, whether in the guilt phase or the eligibility phase, the process is not constitutionally infirm.” Lawrence, 735 F.3d at 417 (citing Lowenfield v. Phelps, 484 U.S. 231, 246, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988)). Aggravating factors “must be construed to permit the sentencer to make a principled distinction between those who deserve the death penalty and those who do not.” Lewis v. Jeffers, 497 U.S. 764, 776, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990).

1. Vagueness

“Ensuring that a sentence of death is not so infected with bias or caprice is our ‘controlling objective when we examine eligibility and selection factors for vagueness.’ ” Jones, 527 U.S. at 400, 119 S.Ct. 2090 (quoting Tuilaepa, 512 U.S. at 973, 114 S.Ct. 2630 (referring to a “commonsense core of meaning”)). Review for vagueness is “quite deferential” and, “[a]s long as an aggravating factor has a core meaning that criminal juries should be capable of understanding, it will pass constitutional muster.” Id. (quoting and citing Tuilaepa, 512 U.S. at 973, 114 S.Ct. 2630) (internal quotation marks omitted).

“[T]he Government is not required to provide specific evidence in its [§ 3593] notice of intent.” United States v. LeCroy, 441 F.3d 914, 929 (11th Cir.2006) (second alteration in original) (quoting United States v. Battle, 173 F.3d 1343, 1347 (11th Cir.1999)) (internal quotation marks omitted); accord Higgs, 353 F.3d at 325 (“The FDPA and the Constitution require that the defendant receive adequate notice of the aggravating factor, ... not notice of the specific evidence that will be used to support it.”); United States v. Lee, 274 F.3d 485, 495-96 (8th Cir.2001) (same). “[Ajlthough there is a right to advance notice of the charges, there is no extant constitutional right to advance notice of the evidence to prove such charges in a capital sentencing hearing.” LeCroy, 441 F.3d at 929 (citing Gray v. Netherlands 518 U.S. 152, 167-68, 116 S.Ct. 2074, 135 L.Ed.2d 457 (1996)).

2. Overbreadth

“An aggravating factor can be overbroad if the sentencing jury ‘fairly could conclude that an aggravating circumstance applies to every defendant eligible for the death penalty.’ ” Jones, 527 U.S. at 401, 119 S.Ct. 2090 (quoting Arave v. Creech, 507 U.S. 463, 474, 113 S.Ct. 1534, 123 L.Ed.2d 188 (1993)). Determining whether an aggravating factor is over-broad in the context of the selection decision is different than in the context of the eligibility decision. See id. (“We have not, however, specifically considered what it means for a factor to be overbroad when it is important only for selection purposes .... ”); United States v. Fields, 516 F.3d 923, 945 (10th Cir.2008) (“While the selection stage does not involve the narrowing function that is of primary importance at the eligibility stage, the [Supreme] Court identified another function relevant to both: protection ‘against bias or caprice in the sentencing decision’ through the use of factors that ‘direct the jury to the individualized circumstances of the case.’ ” (quoting Jones, 527 U.S. at 402, 119 S.Ct. 2090)).

Regarding the selection decision, “[e]ven though the concepts of [certain non-statutory aggravating factors] may well be relevant in every case, evidence [supporting the non-statutory aggravating factors] in a particular case is inherently individualized.” Jones, 527 U.S. at 401, 119 S.Ct. 2090. Accordingly, non-statutory aggravating factors will not be overbroad “[s]o long as [the non-statutory aggravating factors] are used to direct the jury to the individual circumstances of the case.... ” Id. at 402, 119 S.Ct. 2090.

C. Duplicative Aggravating Factors

In United States v. McCullah, the United States Court of Appeals for the Tenth Circuit found substantial overlap between two aggravating factors in the Continuing Criminal Enterprise provision of the Anti-Drug Abuse Act, 21 U.S.C. § 848. See 76 F.3d 1087, 1111 (10th Cir.1996) (finding that “[a]ny intentional conduct aimed at producing death is by definition conduct done with knowledge of grave risk of death.”). According to the Tenth Circuit, “[s]uch double counting of aggravating factors, especially under a weighing scheme, has a tendency to skew the weighing process and creates the risk that the death sentence will be imposed arbitrarily and thus, unconstitutionally.” Id.

“[Aggravating factors are duplica-tive when one ‘necessarily subsumes’ the other, or, in other words, when a jury would ‘necessarily have to find one in order to find the other.’ ” United States v. Fell (“Fell II”), 531 F.3d 197, 236 (2d Cir.2008) (citations omitted); see also Fields v. Gibson, 277 F.3d 1203, 1219 (10th Cir.2002) (same). “Two factors are not duplicative merely because they are supported by the same evidence.” Fell II, 531 F.3d at 236 (citing Jones, 527 U.S. at 399, 119 S.Ct. 2090).

The Supreme Court has not endorsed the Tenth Circuit’s double-counting theory. See Jones, 527 U.S. at 398, 119 S.Ct. 2090 (“We have never before held that aggravating factors could be duplicative so as to render them constitutionally invalid, nor have we passed on the ‘double counting’ theory that the Tenth Circuit advanced in McCullah .... ”). Moreover, the circuit courts are split on this issue. See Fell II, 531 F.3d at 235 n. 26 (indicating that the “Fourth and Ninth Circuits have aligned with the Tenth Circuit and adopted their own variations of the rule in McCullah,” but that “the Eighth Circuit has rejected the duplicative aggravating factor theory when applied to the FDPA ... and the Fifth Circuit has withdrawn its support of the double-counting theory in light of Jones.”).

D. Admissibility of Evidence

As relevant to the instant Motions, the FDPA provides that:

The government may present any information relevant to an aggravating factor for which notice has been provided under subsection (a). Information 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.

18 U.S.C. § 3593(c).

The FDPA is more stringent than the Federal Rules of Evidence (“FRE”) in one sense:

the balancing test set forth in the FDPA is, in fact, more stringent than its counterpart in the FRE, which allows the exclusion of relevant evidence “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.” Fed.R.Evid. 403 (emphasis added). Thus, the presumption of admissibility of relevant evidence is actually narrower under the FDPA than under the FRE.

United States v. Fell (“Fell I”), 360 F.3d 135, 145 (2d Cir.2004). The FDPA, however, is more stringent in this sense only; evidence not allowed at trial under other provisions of the FRE may be allowed under the FDPA. See United States v. Lee, 374 F.3d 637, 648 (8th Cir.2004) (rejecting an argument that the FDPA allows less reliable evidence because admitting more evidence increases reliability).

Application of the death penalty “requires heightened reliability” in the underlying determinations because “death is different.” Hill v. Humphrey, 662 F.3d 1335, 1385 (11th Cir.2011) (en banc). The FDPA achieves heightened reliability by admitting more, not less, evidence. Fell I, 360 F.3d at 143 (citing Gregg, 428 U.S. at 203-04, 96 S.Ct. 2909) (“[T]he Supreme Court has also made clear that in order to achieve such ‘heightened reliability,’ more evidence, not less, should be admitted on the presence or absence of aggravating and mitigating factors ....”); accord Lee, 374 F.3d at 648 (“[T]he admission of more rather than less evidence during the penalty phase increases reliability by providing full and complete information about the defendant and allowing for an individualized inquiry into the appropriate sentence for the offense.”); United States v. Basciano, 763 F.Supp.2d 303, 358 n. 41 (E.D.N.Y.2011) (noting that courts “ ‘should lean in favor of admitting as much information as possible to allow the jury to make an individualized determination of whether the defendant merits the death penalty.’ ” (quoting United States v. Cisneros, 363 F.Supp.2d 827, 833 (E.D.Va. 2005))).

The admissibility standard is a sufficient procedural safeguard.

[T]he FDPA allows the district judge to exclude evidence if its probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury. This provides a constitutionally sufficient procedural safeguard for evidentiary reliability.

United States v. Mitchell, 502 F.3d 931, 980 (9th Cir.2007).

E. The Statutory Maximum Penalty

“Other than the fact of a prior conviction, any fact that increases the penalty for a crime ' beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). “[T]he definition of statutory maximum for Apprendi purposes is not the high-end that a sentence may not exceed, but rather the maximum sentence a judge may impose solely on .the basis of the facts reflected in the jury verdict or admitted by the defendant.” Lovins v. Parker, 712 F.3d 283, 289 (6th Cir.2013) (quoting Blakely v. Washington, 542 U.S. 296, 303, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004)) (internal quotation marks omitted).

In United States v. Lighty, the United States Court of Appeals for the Fourth Circuit rejected an argument that non-statutory aggravating factors must be alleged in the indictment. See 616 F.3d 321, 367-68 (4th Cir.2010). The Fourth Circuit stated that “a non-statutory aggravating factor does not allow for the imposition of a more severe sentence than could have been imposed without the presence of the factor.” Id. at 368 (citing Blakely, 542 U.S. at 303-04, 124 S.Ct. 2531). In other words, a “non-statutory aggravating factor is not one of those ‘facts legally essential to the punishment’ that must be included within the indictment.” Id. (quoting Blakely, 542 U.S. at 313, 124 S.Ct. 2531); accord United States v. Brown, 441 F.3d 1330, 1368 (11th Cir.2006) (stating that the Eleventh Circuit and other circuits have “soundly rejected the argument that non-statutory aggravating factors must be alleged in the indictment.”). “The non-statutory aggravating factors, although relevant to determining whether a jury decides to impose the death penalty, do not make a defendant statutorily eligible for any sentence that could not be otherwise imposed in their absence.” Brown, 441 F.3d at 1368.

III. ANALYSIS

The Court addresses each of Defendant’s Motions in turn below.

A. Motion to Dismiss the “Special Findings” from the Superseding Indictment, and to Strike the Notice of Intent to Seek the Death Penalty Because It Fails to Adequately Narrow Defendant’s Eligibility for the Death Penalty, Meet Heightened Standards of Reliability, Is Vague and Duplicative and Overly Broad (ECF No. 141)

On May 6, 2013, Defendant filed his Motion to Dismiss the “Special Findings” from the Superseding Indictment, and to Strike the Notice of Intent to Seek the Death Penalty Because It Fails to Adequately Narrow Defendant’s Eligibility for the Death Penalty, Meet Heightened Standards of Reliability, Is Vague and Duplicative and Overly Broad. (ECF No. 141.) The Government responded in opposition on June 12, 2013. (ECF No. 163.)

Defendant makes six separate arguments in support of his Motion. The Court addresses each of them in turn below.

1.Intent Factors as Duplicative

Defendant challenges the following portion of the Government’s Notice:

2. [Defendant] intentionally killed the victim, Paula Robinson. Section 3591(a)(2)(A). (Counts One and Five)

3. [Defendant] intentionally inflicted serious bodily injury that resulted in the death of the victim, Paula Robinson. Section 3591(a)(2)(B). (Counts One and Five)

4. [Defendant] intentionally participated in an act, contemplating that the life of a person would be taken or intending that lethal force would be used in connection with a person, other than one of the participants in the offense, and the victims, Judy Spray and Paula Robinson, died as a direct result of the act. Section 3591(a)(2)(C).

5. [Defendant] intentionally engaged in an act of violence, knowing that the act created a grave risk of death to a person, other than one of the participants in the offense, such that participation in the act constituted a reckless disregard for human life, and Judy Spray and Paula Robinson died as a direct result of the act. Section 3591(a)(2)(D).

(ECF No. 133 at 2.)

Quoting U.S. v. McCullah, 87 F.3d 1136, 1138 (10th Cir.1996), Defendant argues that “all four of these factors overlap ‘because they are predicated upon the same acts’ by [Defendant].” (ECF No. 141 at 13.) Defendant argues that “only one of the four factors should be set forth by the Special Findings and the Government’s Notice_” {Id. at 12.) The Government distinguishes McCullah, arguing that it “involved a different capital sentencing scheme ... under which mental intent factors were actually weighed as aggravating factors during the sentence selection process.” (ECF No. 163 at 6.) The Government argues that, because the statutory intent factors have no bearing on the weighing process at the selection stage, there is no risk of double counting as identified in McCullah.

The Court rejects Defendant’s argument. Duplicative aggravating factors are only problematic under McCullah and its progeny during the weighing process: “ ‘the use of duplicative aggravating factors creates an unconstitutional skewing of the weighing process which necessitates a reweighing of the aggravating and mitigating factors.’ ” Fields, 277 F.3d at 1218 (quoting McCullah, 76 F.3d at 1112). This occurred when applying the intent factors in the former 21 U.S.C. § 848(n)(1), which were considered as aggravating factors in the weighing process. See McCullah, 76 F.3d at 1111-12.

Defendant, however, is being prosecuted under 18 U.S.C. § 3591, under which

the jury must find one of the four types of intent as a threshold matter, and unless the jury finds one of the four types of intent, the defendant is not eligible for the death penalty. See 18 U.S.C. § 3591.. Only after crossing this threshold does the jury reach the weighing of aggravating and mitigating factors. The findings regarding intent, therefore, play no role in the weighing process, which is done when the jury considers aggravating and mitigating circumstances. Thus, while the intent [under 21 U.S.C. § 848] actually operates as an aggravating factor, the intent under 18 U.S.C. § 3591 operates only as a threshold to reach the aggravating factors.

United States v. Jackson, 327 F.3d 273, 300-01 (4th Cir.2003); see also United States v. Webster, 162 F.3d 308, 323-23, 355 (5th Cir.1998) (“ § 3591(a) does not set forth aggravating factors, but rather serves as a preliminary qualification threshold. The fact that a defendant could satisfy more than one of these via the same course of action does not, therefore, constitute impermissible double counting.”)

The statutory intent factors alleged by the Government play no role in the weighing process under the FDPA. There is, therefore, no danger of double counting, and Defendant’s argument to the contrary is rejected.

2. Abandonment of Certain Statutory Aggravating Factors

Defendant next argues that the Court should strike the following portion of the Government’s Superseding Indictment because the Government did not include it in its Notice:

(b) As to Counts One, Two, Five, and Six of this indictment, [Defendant]:

(6) in the commission of the offense knowingly created a grave risk of death to 1 or more persons in addition to the victim of the offense (Title 18, United States Code, Section 3592(c)(5));

(8) committed the offense after substantial planning and premeditation to cause the death of a person (Title 18, United States Code, Section 3592(c)(9))

(ECF No. 49 at 11-12; see also ECF No. 133.) In response, the Government concedes that it omitted the statutory aggravating factors of pecuniary gain and substantial planning and premeditation from its Notice. (ECF No. 163 at 6.) The Government asserts that Defendant’s Motion is moot as to these factors because the Government does not intend to submit them to the jury at trial. (Id. at 7.)

Federal Rule of Criminal Procedure 7(d) provides that, “[u]pon the defendant’s motion, the court may strike surplusage from the indictment or information.” Fed.R.Crim.P. 7(d). “[A] motion to strike surplusage should be granted only if it is clear that the allegations are not relevant to the charge and are inflammatory and prejudicial.” 1 Charles Alan Wright & Andrew D. Leipold, Federal Practice and Procedure § 128, at 643 (4th ed.2008). “Unnecessary allegations are ‘surplusage’ and can be ignored.” Gambill v. United States, 276 F.2d 180, 181 (6th Cir.1960) (citations omitted).

In moving to strike surplusage, “the defendant is deemed to have waived his right to reindictment to the extent of eliminating such surplusage.” Short v. United States, 471 F.3d 686, 694 (6th Cir.2006) (citing United States v. Johnson, 585 F.Supp. 80, 81 n. 1 (M.D.Tenn.1984)). “A motion to strike surplusage from the indictment pursuant to Federal Rule of Criminal Procedure 7(d) is subject to the district court’s discretion.” United States v. Williams, 158 Fed.Appx. 651, 654 (6th Cir.2005) (citing United States v. Kemper, 503 F.2d 327, 329 (6th Cir.1974)). “A court does not err in ignoring irrelevancies in or striking surplusage from an indictment.” United States v. Grenoble, 413 F.3d 569, 577 (6th Cir.2005).

The factors Defendant requests to be stricken are relevant to a threshold determination of eligibility for the death penalty. See Jackson, 327 F.3d at 300-01. The factors are not relevant, and surplusage, only because the Government has decided not to present them to the jury. (See ECF No. 163 at 7.) Accordingly, to the extent that the factors are surplusage and striking them under Rule 7(d) is proper, the issue is moot. See Ky. Riverkeeper, Inc. v. Rowlette, 714 F.3d 402, .406 (6th Cir.2013) (“[A] change in circumstances that renders a court unable to grant petitioners meaningful relief may prudentially moot an action”).

3. Continued Violent Criminal Acts

Defendant also challenges the following portion of the Government’s Notice:

4. Continued Violent Criminal Acts Committed after the October 18, 2010[] Henning Post Office Murder

The defendant continued to commit violent criminal acts after the October 18, 2010[,] Henning Post Office murders including, but not limited to the following:

(a) The armed robbery of Southeast Financial Credit Union in Lavergne [sic], Tennessee, on October 29, 2010.

(b) The armed robbery of the Mid-South Bank in Smyrna, Tennessee, on November 29, 2010.

(c) The armed carjacking of Bill Petty, in Nashville, Tennessee, on February 14, 2011.

(d)Conspiracy to commit armed robbery on or about February 14, 2011.

(ECF No. 133 at 4-5.) Defendant’s Motion asserts two discernible challenges to the above-quoted language. The Court addresses each of them in turn below.

a. Duplicative Factors

As an initial matter, Defendant argues that the Government’s Notice alleges a “continuing pattern of violence” sub-part to the future-dangerousness aggravating factor (Paragraph Seven), and that it is duplicative with the “offenses of conviction as alleged in the Indictment” language (ECF No. 133 at 6). (See ECF No. 141 at 12.) The Government’s Notice, however, contains no “continuing pattern of violence” language. (See ECF No. 133.) To the extent Defendant argues that Paragraph Seven is duplicative of the “offenses of conviction as alleged in the Indictment” language, the Court rejects the argument. The future-dangerousness factor, Paragraph Seven, is merely supported by the evidence indicated in Paragraph 7(a) (“[t]he conduct charged in the Indictment”). (See id. at 5.) There are no dupli-cative factors.

Defendant also argues that Paragraph Four (continued violent criminal acts) and Paragraph Seven (future dangerousness) “re-allege[] the same acts or acts by another and acts charged in the indictment and clearly are identical or substantially overlap one another.” (ECF No. 141 at 13.) The Government responds that “the future dangerousness factor does not subsume the ‘continued violent criminal acts’ factor,” and that “each factor is alleged to highlight a different characteristic of the Defendant.” (ECF No. 163 at 8.)

The Government’s argument is more availing. The jury need not find that Defendant committed continued violent criminal acts in order to find that he presents future danger, and vice versa. In other words, the factors “are not duplicative because none of them ‘necessarily subsumes’ the others.” Fields, 277 F.3d at 1219. “While some of the same evidence may be relevant to proving the existence of each, none of them ‘necessarily subsumes’ any of the others.” Id.

b. Use of Unadjudicated Conduct

Defendant appears to argue that the relevance of non-statutory aggravating factors must be determined by reference to the FDPA’s statutory aggravating factors, which “rely[] almost exclusively on criminal convictions of either very- serious or repetitive felony offenses.” (ECF No. 141 at 13 (quoting United States v. Davis, 912 F.Supp. 938, 944 (E.D.La.1996)).) The implied argument is that because the FDPA’s statutory factors refer to convictions, unadjudicated conduct is not relevant. CSee id. at 13-14.) The Government argues that federal courts uniformly agree that unadjudicated criminal conduct is permissible in the penalty phase of a capital trial, and that the unadjudicated conduct alleged against Defendant “is relevant to the sentencing determination and highly probative.” (ECF No. 163 at 9.)

The Government has the better argument. The United States Court of Appeals for the Sixth Circuit has stated that, at the penalty phase of a capital trial, there is no constitutional barrier “limiting the introduction of other acts information to acts for which the defendant has been adjudicated criminally guilty.” United States v. Gabrion, 648 F.3d 307, 348 (6th Cir.2011), rev’d en banc on other grounds, 719 F.3d 511 (6th Cir.2013). “[E]very circuit to consider the issue has held that unadjudicated conduct may be considered in the process of assessing aggravating factors, and many courts have specifically recognized the relevance to the factor of future dangerousness.” United States v. Corley, 519 F.3d 716, 724 (7th Cir.2008) (citing Cummings v. Polk, 475 F.3d 230, 238 (4th Cir.2007)); Brown v. Dretke; 419 F.3d 365, 376-77 (5th Cir.2005); Lee, 274 F.3d at 494; United States v. Cooper, 91 F.Supp.2d 90, 106-08 (D.D.C.2000); see also United States v. Lujan, 603 F.3d 850, 856 (10th Cir.2010) (“[T]he Supreme Court ... [ has] repeatedly held that the district court may admit evidence of [ ] unadjudi-cated conduct in the penalty phase of a capital trial 'without violating the defendant’s constitutional rights.”). District courts within the Sixth Circuit have followed suit, refusing to strike even alleged unadjudicated murders from consideration at the penalty phase in capital cases. See, e.g., United States v. Henderson, 485 F.Supp.2d 831, 869 (S.D.Ohio 2007) (declining to strike “continuing pattern of violent conduct” aggravating factor that alleged two unadjudicated murders); see also United States v. Mayhew, 380 F.Supp.2d 936, 951-52 (S.D.Ohio 2005) (refusing to strike unadjudicated murder threat on Fifth and Sixth-Amendment grounds). Defendant’s assertion that introduction of alleged unadjudicated acts would violate his Fifth and Sixth Amendment rights (see ECF No. 141 at 15) is, therefore, rejected.

Evidence of the unadjudicated conduct, however, must be reliable and more probative than unfairly prejudicial. Corley, 519 F.8d at 724-25. It must also be proved beyond a reasonable doubt. 18 U.S.C. § 8593(c); see also Henderson, 485 F.Supp.2d at 869 (“[Ujnless the Government establishes [unadjudicated] behavior beyond a reasonable doubt, the jury will not be permitted to consider it when sentencing.”). Defendant argues that the probative value of the unadjudicated conduct alleged by the Government is outweighed by its danger of creating unfair prejudice. (ECF No. 141 at 18.) The Government responds that the unadjudicated robberies, carjacking, and conspiracy “are all serious criminal acts that are relevant to sentencing,” that “[t]here is no risk of unfair prejudice,” and that “[ t]he Government will prove the Defendant’s participation in each act beyond a reasonable doubt.” (ECF No. 163 at 11.)

In light of the clear weight of federal-court authority allowing such evidence at the sentencing phase of capital trials, the Court will not strike the unadjudicated conduct alleged by the Government. See United States v. Johnson, 915 F.Supp.2d 958, 1004 (N.D.Iowa 2013) (“There seems to be little doubt that unadjudicated criminal conduct can be considered in support of another aggravating factor, such as ‘continuing threat’ or ‘future dangerousness.’ ”). The cases cited by Defendant in support of the opposite result are distinguishable from the instant case. In Davis, for example, the court found that “verbiage alone is of insufficient relevancy to be admissible” as evidence of a defendant’s “continuing threat of future dangerousness to the lives and safety of other persons.” 912 F.Supp. at 947. By contrast, the Government in this case has alleged much more concrete, serious acts — armed robberies, an armed carjacking, and conspiracy to commit armed robbery. (See ECF No. 133 at 5.) Furthermore, in United States v. Gonzalez, the United States District Court for the. District of Connecticut precluded the presentation of evidence of unadjudicated murders because the unadjudicated conduct was “based on fact patterns similar to that of the underlying crime, further increasing the risk that the jury will use its guilt phase findings of guilt in its adjudicatory penalty phase deliberations.” No. 3:02CR7(JBA), 2004 WL 1920492, at *3 (D.Conn. Aug. 17, 2004). Conversely, in this case, the Government has not alleged unadjudicated criminal activity with fact patterns so factually similar to the underlying murder charges that the jury will be unable to separate the two at the guilt and penalty phases of the trial. Moreover, even if the Government had alleged unadjudicated murders, the Court is not convinced that Defendant would necessarily be unfairly prejudiced pursuant to § 3593(c). See, e.g., Henderson, 485 F.Supp.2d at 869.

Defendant’s argument that the Government’s averments to unadjudicated conduct should be stricken is, therefore, rejected.

4. Constitutionality of Non-Statutory Aggravating Factors

Defendant advances two reasons why the use of non-statutory aggravating factors under the FDPA is unconstitutional. First, Defendant argues that non-statutory aggravating factors do not narrow the jury’s discretion. (ECF No. 141 at 19.) Second, Defendant argues that the FDPA’s authorization of the Government “to unilaterally expand the list of aggravating factors on a case-by-case basis” violates the Eighth Amendment. (Id.) The Government responds that, following the eligibility phase, “the use of non-statutory aggravating factors serves only to individualize the sentencing determination.” (ECF No. 163 at 14.)

The Court rejects Defendant’s arguments. First, “[o]nly [statutory aggravating factors] are required to narrow the class of murderers who might properly face the death penalty; [non-statutory aggravating factors] serve as additional information for the sentencer.” United States v. Gooch, No. 04-128-23(RMC), 2006 WL 3780781, at *25 (D.D.C. Dec. 20, 2006). “So long as that information is relevant to the character of the defendant or the circumstances of the crime, consideration of nonstatutory aggravating factors ... serves the useful purpose of ensuring an individualized sentencing determination that minimizes the risk of arbitrary and capricious action.” Id. Second, the plain language of the FDPA, which explicitly contemplates the expansion of non-statutory aggravating factors, defeats Defendant’s second argument. See 18 U.S.C. § 3592(c) (“The jury, or if there is no jury, the court, may consider whether any other aggravating factor for which notice has been given exists.” (emphasis added)). The Supreme Court has unequivocally upheld the constitutionality of non-statutory aggravating factors so long as they are not vague or overbroad. See Jones, 527 U.S. at 395-^02, 119 S.Ct. 2090. Moreover, the Fourth Circuit persuasively rejected the exact argument Defendant advances in this case. See Higgs, 353 F.3d at 320 (“[W]e reject .the contention that the FDPA is unconstitutional merely because it allows the sentencing jury to weigh non-statutory aggravating factors when deciding whether to impose the sentence of death upon a defendant convicted of a death-eligible offense.”).

Accordingly, Defendant’s argument is rejected.

5. Prosecutorial Discretion and Ex Post Facto Laws

Defendant argues that the FDPA violates Article I, Section 9, clause 3 of the United States Constitution, which states, “No ... ex post facto Law shall be passed.” (ECF No. 141 at 20.) The Government argues that, because non-statutory aggravating factors do not increase the possible punishment or alter the elements of the offense, “the Government does not violate the Ex Post Facto Clause by defining the non-statutory factors after the crime has already been committed.” (ECF No. 163 at 15.)

Again, the Fourth Circuit persuasively rejected this exact argument as follows:

Although aggravating factors do make more burdensome the punishment for the crime, nonstatutory aggravating factors and mitigating factors are weighed by the jury to make the individualized determination to impose the death sentence upon a defendant who has already been found eligible. They do not increase the possible punishment or alter the elements of the offense.

Higgs, 353 F.3d at 322 (alteration, citation, and internal quotation marks omitted). District courts within the Sixth Circuit have also rejected this exact argument, with strikingly similar language. (Compare United States v. Green, No. 5:06CR19-R, 2008 WL 4000870, at *17 (W.D.Ky. Aug. 26, 2008) (rejecting defendant’s argument that the FDPA “ ‘permits the prosecution to manufacture out of whole cloth aggravating circumstances to be applied retroactively to crimes committed before the aggravating circumstances are identified.’ ”), with ECF No. 141 at 20 (arguing that the FDPA “permits the prosecution to manufacture out of whole cloth aggravating circumstances to be applied retroactively to crimes committed before the aggravating circumstances are identified”)-) In Green, the United States District Court for the Western District of Kentucky stated that “[n]on-statutory aggravating factors cannot violate the Ex Post Facto Clause because they in no way serve to increase the punishment a death-eligible defendant may receive.” 2008 WL 4000870, at *18.

Accordingly, Defendant’s argument is rejected.

6. Statutory Inconsistencies in the FDPA

Finally, Defendant argues that section 3591(a) “nullifies the general catchall provision under § 3592 and prohibits the use of non-statutory aggravators.” (ECF No. 141 at 21.) The Government asserts that Defendant’s argument “has been uniformly rejected by the federal courts,” and that Defendant’s interpretation of the FDPA violates the rule against surplusage. (ECF No. 163 at 16-17.) Section 3591(a) of the FDPA states that a defendant may be sentenced to death only “after consideration of the factors set forth in section 3592.” Yet § 3592(c) permits the jury to “consider whether any other aggravating factor for which notice has been given exists.”

The Court rejects Defendant’s restrictive interpretation. First, § 3591(a) does not limit consideration only to the aggravating factors set forth in § 3592, although Congress could have done so. Second, Defendant’s argument has been routinely rejected by the federal courts as a “ ‘strained and hyper-literal reading ... [that] would render large portions of § 3592 inoperative.’” United States v. Williams, No. 4:08-cr-00070, 2013 WL 1335599, at *20 (M.D.Pa. Mar. 29, 2013) (quoting United States v. Nguyen, 928 F.Supp. 1525, 1536 (D.Kan.1996)). Accordingly, Defendant’s interpretation of the FDPA is rejected.

For the foregoing reasons, Defendant’s Motion to Dismiss the “Special Findings” from the Superseding Indictment, and to Strike the Notice of Intent to Seek the Death Penalty Because It Fails to Adequately Narrow Defendant’s Eligibility for the Death Penalty, Meet Heightened Standards of Reliability, Is Vague and Duplicative and Overly'Broad (ECF No. 141) is DENIED.

B. Motion to Strike Statutory Aggravators (ECF No. 142)

On May 6, 2013, Defendant filed his Motion to Strike Statutory Aggravators. (ECF No. 142.) In the Motion, Defendant asserts that both of the statutory aggravating factors enumerated by the Government in its Notice — that Defendant “committed the offense as consideration for the receipt, or in the expectation of the receipt, of anything of pecuniary value ... and that he intentionally killed or attempted to kill more than one person in a single criminal episode” (see ECF No. 133 at 3)— are “invalid and should be stricken.” (ECF No. 142 at 2 (citations omitted).) Defendant- asserts:

The Government’s Notice provides no factual information to support the statutory aggravating factor of pecuniary gain. Nor are there any facts in the Notice to support the allegation that [Defendant] killed more than one victim. In fact there are no facts at all in the Notice. Nor is there any indication of [the Government’s] theory about how these aggravating factors apply to this case. This is not proper notice. [Defendant] cannot prepare his case without more detailed information. Nor can [Defendant] mount a legal challenge to whether these aggravating factors apply in this ease. Therefore, [Defendant] respectfully requests that this court direct the [Government to provide an informative outline of its proofs with regard to the aggravating [factors] it has alleged.

(Id. at 3.)

“The Government opposes these requests.” (ECF No. 164 at 1-2.) In a Response filed on June 12, 2013, the Government asserts that it “has provided all the notice that is constitutionally and statutorily required and Defendant is not entitled to an advance screening of the Government’s case.” (Id. at 2.) The Government asserts that the statute, 18 U.S.C. § 3593(a), does not require the Government to reveal its evidence in support of statutory aggravating factors. (Id.) The Government further asserts that it “is not obligated to outline what specific pieces of evidence it plans to use to support the aggravating factors.” (Id. at 3 (citing LeCroy, 441 F.3d at 930).) Regarding the Superseding Indictment, the Government states:

The indictment includes multiple overt acts. It identifies the Defendant by name and clearly sets forth his specific roles and actions in the alleged crimes. This is not a case involving a bare bones indictment. What is more, the indictment is supported by the Notice of Intent, which provides evidentiary detail of the kind requested by the Defendant’s motion. Further, the Government has gone beyond legal requirements in the massive amount of information and detail provided during discovery. Accordingly, the Court should reject the request for an outline of the government’s evidence or a pretrial hearing where the Government would be required to preview its evidence.

(Id. at 4.)

The Government has the more availing argument. According to the Supreme Court, in the context of a capital sentencing hearing, “[a] defendant’s right to notice of the charges against which he must defend is well established. But a defendant’s claim that he has a right to notice of the evidence that the state plans to use to prove the charges stands on quite a different footing.” Netherland, 518 U.S. at 167-68, 116 S.Ct. 2074 (citations omitted). Supreme Court precedent does “not compel a court to order the prosecutor to disclose his evidence....” Id. at 168, 116 S.Ct. 2074.

In Higgs, the Fourth Circuit declared, regarding non-statutory aggravating factors, that “[t]he FDPA and the Constitution require that the defendant receive adequate notice of the aggravating factor, ... not notice of the specific evidence that will be used to support it.” 353 F.3d at 325. The Eleventh Circuit similarly stated that “[t]he Government is not required to provide specific evidence in its notice of intent [to seek the death penalty].” Battle, 173 F.3d at 1347; see also United States v. Taylor, 316 F.Supp.2d 730, 741 (N.D.Ind.2004) (“[E]ach Notice of Intent informs the Defendant that the Government intends to seek the death penalty and lists the aggravating factors that the Government will seek to prove. The statute requires no more.”); Nguyen, 928 F.Supp. at 1545-46 (rejecting defendant’s argument that the government’s failure to provide detail about the evidence it planned to use in support of its notice of intent to seek the death penalty rendered the notice unconstitutional).

Consistent with these persuasive authorities, the Court rejects Defendant’s request for an Order requiring the Government to provide an informative outline of its evidence in support of statutory aggravating factors, “as well as its theory [supporting] these aggravating factors.” (ECF No. 142 at 7.) Accordingly, Defendant’s Motion to Strike Statutory Aggravated (ECF No. 142) is DENIED.

C. Motion to Strike the Non-Statutory Aggravating Factors for Failure to Include Them in the Indictment (ECF No. 143)

On May 6, 2013, Defendant filed his Motion to Strike the Non-Statutory Aggravating Factors for Failure to Include Them in the Indictment. (ECF No. 143.) In the Motion, Defendant argues that “[b]ecause the non-statutory aggravated in this case were not presented to or found by the grand jury, they must be stricken from the [GJovernment’s Notice of Intent to Seek [the Death Penalty].” (Id. at 8.) Citing Blakely, 542 U.S. at 302 n. 5, 124 S.Ct. 2531, Defendant argues that “the jury’s finding on non-statutory aggravating factors during the selection phase must occur before a death penalty may be imposed. As such, they constitute facts that must be charged in the indictment and proved to a jury beyond a reasonable doubt.” (ECF No. 143 at 4.) Defendant distinguishes contrary circuit-court precedent, such as Higgs, 353 F.3d 281, by arguing (1) that the death penalty “is a punishment that may be imposed only after additional findings are made during the selection phase”; and (2) that non-statutory aggravating factors “are among the findings made during the selection phase that are ‘legally essential’ before a sentence of death may be imposed.” (ECF No. 143 at 5-6 (citing United States v. Green, 372 F.Supp.2d 168, 174 (D.Mass. 2005) (finding non-statutory aggravating factor of prior unadjudicated crimes must be stricken from the government’s notice of intent to seek the death penalty)).)

The Government responded on June 12, 2013. (ECF No. 165.) In its Response, the Government asserts that “[t]he federal courts of appeal are in agreement that non-statutory aggravating factors are not required to be alleged in a capital indictment.” (Id. at 1-2 (citing Fell II, 531 F.3d at 237-38; Mitchell, 502 F.3d at 979; Brown, 441 F.3d at 1368 (11th Cir.2006); United States v. Purkey, 428 F.3d 738, 749-50 (8th Cir.2005); United States v. Bourgeois, 423 F.3d 501, 507-08 (5th Cir.2005); Higgs, 353 F.3d at 298-99).) The Government further asserts that “[t]he jury need not find a single non-statutory aggravating factor in order to impose the death penalty.... [T]he balancing of aggravating and mitigating factor[s] is not a fact that must be found by the jury.” (ECF No. 165 at 3 (citations omitted).)

The Sixth Circuit has squarely rejected Defendant’s position. In Lawrence, the Sixth Circuit joined the Second, Fourth, Fifth, Eighth, and Eleventh Circuits in holding that “[n]on-statutory aggravating factors are relevant considerations in the sentence selection decision, but do not, in themselves, determine whether a defendant is ‘eligible’ to be considered for the death sentence-[N]on-statutory aggravating factors need not be charged in the indictment to satisfy the Fifth Amendment’s Indictment Clause.” 735 F.3d at 420 (citation omitted); see also United States v. Haynes, 269 F.Supp.2d 970, 979-80 (W.D.Tenn.2003) (same).

Binding precedent undermines Defendant’s position. Defendant’s Motion to Strike the Non-Statutory Aggravating Factors for Failure to Include Them in the Indictment (ECF No. 143) is, therefore, DENIED.

D. Motion to Dismiss/Strike Non-Statutory Aggravating Factor Concerning Victim-Impact Evidence, or in the Alternative, to Limit Victim-Impact Testimony (ECF No. 144)

On May 6, 2013, Defendant filed his Motion to Dismiss/Strike Non-Statutory Aggravating Factor Concerning Victim-Impact Evidence, or in the Alternative, to Limit Victim-Impact Testimony. (ECF No. 144.) Defendant’s Motion challenges the following portions of the Government’s Notice regarding victim-impact evidence:

C. Noiir-Statutory Aggravating Factors Identified Under 18 U.S.C. § 3598(a)(2)

The United States will seek to prove the following non-statutory aggravating factors as the basis for the imposition of the death penalty in relation to Counts One, Two, Five and Six of the Indictment:

1. Victim Impact Evidence

As reflected by victim Paula Robinson’s and victim Judy Spray’s personal characteristics as individual human beings and the impact of the victims’ murders on the victims and the victims’ families, friends, and colleagues, the defendant caused loss, injury, and harm to the victims and the victims’ families, friends, and colleagues, including, but not limited to the following:

(a) Characteristics of the Victims

(i) The Defendant caused the death of Paula Robinson