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United States v. Council

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

December 17, 2019

United States of America,
Brandon Michael Council, Defendant.


          R. Bryan Harwell Chief United States District Judge

         This 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.[1]


         Defendant 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”).[2] 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.

         I. Legal Standards

         Rule 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.[3] 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 omitted).

         Rule 33 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. 2008).

         II. Defendant's Arguments

         Defendant presents two arguments, which the Court will address in turn.

         A. Whether Certain Aggravating Factors Were Contradictory

         Defendant 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 contradictory. Id.

         The 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 Defendant

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.

         ECF No. 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 ...

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