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United States v. Brandon Michael Council

United States District Court, D. South Carolina, Florence Division

May 2, 2018

United States of America,
v.
Brandon Michael Council, Defendant.

          ORDER DENYING PRETRIAL DISCLOSURE OF DEFENDANT'S MITIGATING FACTORS LISTED IN 18 U.S.C. § 3592(A)

          R. Bryan Harwell United States District Judge.

         Defendant is charged with capital crimes involving two homicides for which he faces a possible sentence of death if convicted. See ECF Nos. 16 & 81. The matter is before the Court on the Government's “Motion for Pretrial Disclosure of Defendant's Proposed Mitigating Factors.” See ECF No. 104. Defendant has filed a response in opposition. See ECF No. 112. As explained below, the Court will deny the Government's motion seeking pretrial disclosure. However, because Defendant has agreed to provide the Government a list of proposed mitigating factors following any guilty verdict on the homicide counts, the Court will require Defendant to provide that list within twelve hours of any such verdict.

         Background

         In its instant motion, the Government requests the Court to compel Defendant to disclose by October 12, 2018-approximately three months before trial-a list of the proposed mitigating factors he plans to use during the penalty phase of trial (should it proceed to that stage). See ECF No. 104. The Government asserts the Court “should exercise its inherent authority to compel” such disclosure. See Id. at p. 5. Defendant has filed a response in opposition arguing such disclosure is (1) not required by statute or rule, (2) undermines his Fifth and Sixth Amendment rights, and (3) is neither legally required nor practically necessary in this case. See ECF No. 112.[1]

         Discussion

         I. Pretrial Disclosure of Mitigating Factors Is Not Required

         “Under the Federal Death Penalty Act (‘FDPA'), [if] the jury finds the defendant guilty of an offense for which a death sentence is provided, the trial proceeds to the penalty phase.” United States v. Torrez, 869 F.3d 291, 304 (4th Cir. 2017). The jury must consider both mitigating and aggravating factors in determining whether a death sentence is justified. See generally 18 U.S.C. § 3592. Section 3592 contains four distinct subsections: “(a) Mitigating factors, ” “(b) Aggravating factors for espionage and treason, ” “(c) Aggravating factors for homicide, ” and “(d) Aggravating factors for drug offense death penalty.” Id. § 3592(a)-(d).[2] The three subsections listing aggravating factors-including subsection (c), which would presumably apply here-all begin with the identical language that “the jury, or if there is no jury, the court, shall consider each of the following aggravating factors for which notice has been given and determine which, if any, exist”; and they all end with the identical language that “[t]he jury, or if there is no jury, the court, may consider whether any other aggravating factor for which notice has been given exists. See Id. § 3592(b), (c), (d) (emphases added). Thus, the aggravating factor subsections all require notice by the Government to Defendant. However, the subsection listing mitigating factors-§ 3592(a)-does not require, mention, or otherwise contemplate “notice” by Defendant to the Government. Indeed, the word “notice” is noticeably absent, as subsection (a) provides in full:

(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:
(1) Impaired capacity.-The defendant's capacity to appreciate the wrongfulness of the defendant's conduct or to conform conduct to the requirements of law was significantly impaired, regardless of whether the capacity was so impaired as to constitute a defense to the charge.
(2) Duress.-The defendant was under unusual and substantial duress, regardless of whether the duress was of such a degree as to constitute a defense to the charge.
(3) Minor participation.-The defendant is punishable as a principal in the offense, which was committed by another, but the defendant's participation was relatively minor, regardless of whether the participation was so minor as to constitute a defense to the charge.
(4) Equally culpable defendants.-Another defendant or defendants, equally culpable in the crime, will not be punished by death.
(5) No prior criminal record.-The defendant did not have a significant prior history of other criminal conduct.
(6) Disturbance.-The defendant committed the offense under severe mental or emotional ...

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