United States District Court, D. South Carolina, Florence Division
Bryan Harwell Chief United States District Judge
capital case is before the Court on Defendant Brandon Michael
Council's “Motion for New Sentencing Trial
and/or for Judgment of Acquittal As to
Sentencing.” See ECF No. 866 (emphases
added). The Government has filed a response in opposition to
Defendant's motion. See ECF No. 867. The Court
denies the motion for the reasons herein.
has been convicted of two capital offenses-bank robbery
resulting in death, in violation of 18 U.S.C. § 2113(a)
and (e), and use of a firearm during and in relation to a
crime of violence and causing death in such a manner to
constitute murder, in violation of 18 U.S.C. § 924(c)
and (j)-and sentenced to death for both offenses under the
Federal Death Penalty Act (“FDPA”). He has now filed
a motion seeking a new sentencing trial and/or judgment of
acquittal as to his death sentences, pursuant to Federal
Rules of Criminal Procedure 29(c) and 33(b)(2). See
ECF No. 866.
29(c) provides that “[a] defendant may move for a
judgment of acquittal . . . after the court discharges the
jury, ” and that “[i]f the jury has returned a
guilty verdict, the court may set aside the verdict and enter
an acquittal.” Fed. R. Crim. P. 29(c). It is unclear
whether Rule 29 can be used to obtain a judgment of acquittal
as to a capital sentencing hearing. Compare
United States v. Runyon, 652 F.Supp.2d 716, 718 (E.D.
Va. 2009) (concluding that “Rule 29 . . . by its very
terms, only applies to the guilt/innocence phase of
trial” because “[q]uestions of
‘acquittal,' ‘conviction,' or
‘guilty verdict' are in apposite to a sentencing
hearing”), and United States v. Sampson, 335
F.Supp.2d 166, 198-202 (D. Mass. 2004) (same), with
United States v. Lawrence, 735 F.3d 385, 411 (6th Cir.
2013) (involving a Rule 29 motion raised in the context of a
capital sentencing proceeding), and United States v.
Wilson, 967 F.Supp.2d 673, 677 & n.2 (E.D.N.Y. 2013)
(same). In any event and regardless, a district court has
“inherent judicial power” to entertain a
post-trial motion regarding a defendant's capital
sentencing hearing. See Runyon, 652 F.Supp.2d at
718-19 (collecting cases). Generally, “[w]here physical
facts and evidence are capable of more than one
interpretation and reasonable inferences therefrom can be
drawn by a jury, its verdict should not be disturbed. It is
the jury's duty to weigh contradictory evidence and
inferences, pass on the credibility of witnesses, and draw
the ultimate factual conclusions.”
Gomez-Jimenez, 750 F.3d at 379 (internal citation
provides that “after the verdict” and
“[u]pon the defendant's motion, the court may
vacate any judgment and grant a new trial if the interest of
justice so requires.” Fed. R. Crim. P. 33(a), (b)(2);
see, e.g., United States v. Lee, 274 F.3d
485, 491 (8th Cir. 2001) (involving a defendant's motion
for a “new penalty hearing” under Rule
33 (emphasis added)). “A trial court should exercise
its discretion to award a new trial sparingly, and a jury
verdict is not to be overturned except in the rare
circumstance when the evidence weighs heavily against
it.” United States v. Burfoot, 899 F.3d 326,
340 (4th Cir. 2018) (internal quotation marks omitted). When
the evidence is “wholly sufficient” to support
the jury's verdict, a Rule 33 motion must be denied.
United States v. Singh, 518 F.3d 236, 250 (4th Cir.
presents two arguments, which the Court will address in turn.
Whether Certain Aggravating Factors Were
argues that his death sentences should be set aside and that
he should be resentenced because the Court erred in allowing
the jury to find and weigh two “inherently
contradictory” aggravating factors. See ECF
No. 866 at pp. 2-5. Specifically, he asserts that the
statutory aggravating factor of Pecuniary
Gain conflicted with the nonstatutory
aggravating factor of Targeting Innocent
Victims and that no rational jury could have found
both these aggravators because they were inherently
Court has previously summarized the statutory (two total) and
nonstatutory (four total) aggravators alleged in this case.
See ECF No. 413. The Pecuniary Gain
statutory aggravator alleged Defendant “committed the
offense in the expectation of the receipt of anything of
pecuniary value.” ECF No. 16 at p. 6; ECF No. 603 at p.
2; see 18 U.S.C. 3592(c)(8). The Targeting
Innocent Victims nonstatutory aggravator alleged
displayed particularly cruel and callous disregard for human
life by shooting both victims, who were unknown to him,
multiple times at close range without warning and without
provocation or resistance from the victims, in spite of the
fact that such violence was not necessary to successfully
complete the robbery of the CresCom bank.
603 at p. 3 (emphasis added). The Court rejected
Defendant's pretrial argument that the Pecuniary Gain and
Targeting Innocent Victims aggravators were in conflict.
See ECF No. 413 at pp. 9-10. The jury unanimously
found both aggravators ...