2:15-cr-00472-RMG

Date Filed 09/06/16

Entry Number 356

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION

UNITED STATES OF AMERICA
v.
DYLANN STORM ROOF

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Criminal No. 2:15-CR-00472-RMG

GOVERNMENT’S MOTION IN LIMINE TO
PRECLUDE “MERCY” INSTRUCTION
The United States of America, by and through its attorneys, files this motion in limine
and respectfully requests that the Court prohibit the defendant from introducing a “mercy
instruction” or related argument in violation of the statutory scheme of the Federal Death Penalty
Act (FDPA), and in support thereof, states as follows:
At the penalty phase, if applicable, the defendant may offer argument and/or request a
“mercy” instruction, wherein jurors are told that, regardless of their findings, they are never
required to sentence the defendant to death. The United States objects to such an argument or
instruction on the grounds that it is not consistent with the statutory scheme of the FDPA as
properly interpreted by the Fourth Circuit.
The FDPA provides the defendant with a broad opportunity to present evidence in
mitigation of punishment at a separate penalty phase hearing should he be convicted of a capital
eligible offense. The rules concerning the admissibility of evidence and the categories about
which evidence can be presented are expansive, although not unlimited.
In the selection phase, the jury may consider both aggravating factors from the
government and mitigating factors from the defense. 18 U.S.C. § 3593(c). At the penalty

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phase, the government has a high burden. The FDPA requires the government to prove the
existence of any aggravating factor beyond a reasonable doubt, and the jury’s finding of these
factors must be unanimous. Id. § 3593(c) & (d). In contrast, the defendants’ burden is
significantly lower. The defendant must prove the existence of any mitigating factor by a
“preponderance of the information,” to just one or more jurors. Id. The jury must then make its
final determination: whether all of the aggravating factors sufficiently outweigh all of the
mitigating factors so as to justify a sentence of death. Id. § 3593(e). The jury’s sentencing
recommendation must be unanimous. Id. It is these factors alone that go into the capital
punishment selection equation. The FDPA makes this clear:
[T]he jury, or if there is no jury, the court, 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, or,
in the absence of a mitigating factor, whether the aggravating factor or
factors alone are sufficient to justify a sentence of death. Based upon this
consideration, the jury by unanimous vote, or if there is no jury, the court,
shall recommend whether the defendant should be sentenced to death, to
life imprisonment without possibility of release or some other lesser
sentence.
Id. (emphasis added). Moreover, the FDPA also makes clear that a defendant:
shall be sentenced to death if, after consideration of the factors set forth in
section 3592 in the course of a hearing held pursuant to section 3593, it is
determined that imposition of a sentence of death is justified, except that
no person may be sentenced to death who was less than 18 years of age at
the time of the offense.
Id. at § 3591(a)(emphasis added). Accordingly, pursuant to the FDPA, the balancing scheme
established in §§ 3591-3593 is the sole vehicle for determining the propriety of a capital
sentence.
Mandating a death sentence based on the outcome of the jury’s weighing of aggravating
and mitigating factors is permissible. In Boyde v. California, 494 U.S. 370, 374 (1990), the

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defendant challenged an instruction given at trial that included: “If you conclude that the
aggravating circumstances outweigh the mitigating circumstances, you shall impose a sentence
of death.” The Court held:
Petitioner suggests that the jury must have freedom to decline to impose
the death penalty even if the jury decides that the aggravating
circumstances “outweigh” the mitigating circumstances. But there is no
such constitutional requirement of unfettered sentencing discretion in the
jury, and States are free to structure and shape consideration of mitigating
evidence ‘in an effort to achieve a more rational and equitable
administration of the death penalty.’” (citing Franklin v. Lynaugh, 487
U.S. 164 (1988)).
Id. at 377. Accord Blystone v. Pennsylvania, 494 U.S. 299 (1990) (rejecting petitioner’s claim
that state’s death penalty statute was unconstitutional because it mandated a sentence of death
based on the outcome of the weighing process).
Any “information” relevant to the sentence, including any mitigating or aggravating
factor, is admissible at sentencing “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.” Id. § 3593(c). The government and the defendant can rebut any
information and argue the adequacy of the information and the appropriateness of imposing a
death sentence. Id.
A sentencing jury may factor in mercy in the context of the balancing process required
during the sentencing phase as outlined in 18 U.S.C. § 3593. The statutory scheme of the FDPA
itself provides that the jury exercises complete discretion in determining whether aggravating
factors (if found) sufficiently outweigh any mitigating factors to justify a sentence of death. It is
within that context, and that context alone, that mercy may enter into the death penalty process.
The FDPA does not, however, provide a separate mechanism for jurors to disregard their

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aggravating and mitigating analysis and impose a sentence less than that which is justified by
their own deliberations.
The Fourth Circuit considered this precise issue in United States v. Caro, 597 F.3d 608,
631 (4th Cir. 2010). In that case, the defendant offered the following instruction:
[W]hatever findings you make with respect to the aggravating and
mitigating factors, you are never required to impose a sentence of
death. For example, there may be something about this case or
about Carlos David Caro that one or more of you are not able to
identify as a special mitigating factor, but that nevertheless creates
a reasonable doubt about the need for Carlos David Caro’s death.
In such a case, the jury should render a decision against a death
sentence. Moreover, even when a sentence of death is fully
supported by the evidence, Congress has nevertheless given each
of you the discretion to temper justice with mercy. Any one of you
is free to decide that a death sentence should not be imposed in this
case for any reason that you see fit. You will not have to explain
the reason. Indeed, I am specifically required by law to advise you
that you have this broad discretion.
Id. The District Court rejected the proposed instruction, holding it was “improper because it
would have told the jury that it could base its determination on factors not specified in the
FDPA.” United States v. Caro, 483 F. Supp. 2d 513, 517-18 (W.D. Va. 2007). In affirming the
District Court, the Fourth Circuit held:
Caro argues that § 3593(e)’s two-sentence structure creates a two-step
process whereby (1) the death penalty might be found justified, with
aggravating factors sufficiently outweighing mitigating factors, but (2) the
jury might nonetheless impose a lesser sentence out of mercy.
Conversely, the district court interpreted §§ 3591 and 3593(e) together to
mean that, once the death penalty has been found justified because
aggravating factors sufficiently outweigh mitigating factors, the death
penalty must be imposed.
We find Caro’s interpretation unpersuasive. First, the opening clause of §
3593(e)’s second sentence, namely, “Based on this consideration,” refers
back to the preceding sentence and thereby implies that when selecting a
sentence the jury may consider only whether the death penalty is justified.
18 U.S.C. § 3593(e) (emphasis added). Second, § 3591 states plainly that
an eligible defendant “shall be sentenced to death if . . . it is determined

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that imposition of a sentence of death is justified,” 18 U.S.C. § 3591, and
we are obliged to read §§ 3591 and 3593(e) in harmony, see Smith v.
United States, 508 U.S. 223, 233, 113 S. Ct. 2050, 124 L. Ed. 2d 138
(1993)(“Just as a single word cannot be read in isolation, nor can a single
provision of a statute.”); King v. St. Vincent’s Hosp., 502 U.S. 215, 221,
112 S. Ct. 570, 116 L. Ed. 2d 578 (1991)(noting “the cardinal rule that a
statute is to be read as a whole since the meaning of statutory language,
plain or not, depends on context” (citations omitted)). See United States v.
Allen, 247 F.3d 741, 780-81 (8th Cir. 2001) (interpreting § 3593(e) the
same way based on § 3591), vacated on other grounds, 536 U.S. 953, 122
S. Ct. 2653, 153 L. Ed. 2d 830 (2002). Because Caro’s proposed
instruction was legally incorrect, the district court’s refusal to give that
instruction was not an abuse of discretion.
Caro, 597 F.3d at 632-33. Accordingly, any instruction that is inconsistent with the express
language of the FDPA should be rejected.
This issue was also addressed in United States v. Allen, 247 F.3d 741, 780 (8th Cir.
2001), judgment vacated and remanded on other grounds, 122 S. Ct. 2653 (2002). In Allen, the
defendant argued that the district court erred in failing to submit to the jury his tendered “mercy
instruction” which would have informed the jury that it is never required to impose a sentence of
death. Apparently, the defendant’s proposed “mercy” instruction closely followed the language
in the Title 21 statute and would have instructed the jury that “regardless of its findings with
respect to aggravating and mitigating factors, is never required to impose a death sentence.”
Allen, 247 F.3d at 780. The Court rejected the defendant’s request and held that under the
FDPA, the jury exercises complete discretion in its determination of whether the aggravating
factors outweigh the mitigating factors. The jury was informed that whether or not the
circumstances justify a sentence of death was a decision left entirely to them. Mercy is not
precluded from entering into the balance of whether the aggravating circumstances outweigh the
mitigating circumstances. The FDPA merely precludes the jurors from arbitrarily disregarding
its unanimous determination that a sentence of death is justified. The Court in Allen held:

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Based upon the plain language of the statute, once a jury makes a final,
unanimous determination that a sentence of death is justified, then the
FDPA requires its imposition. See 18 U.S.C. § 3594 (requiring that once a
recommendation of death or life imprisonment is made, “the court shall
sentence the defendant accordingly”). Allen argues that the language in §
3593(e) requires a jury to make two decisions--first, whether a sentence of
death is justified and second, whether a sentence of death should actually
be imposed. Although § 3593(e) could lend itself to this interpretation
when read in isolation, we reject this interpretation as inconsistent with the
Act as a whole. See Harmon Indus., Inc. v. Browner, 191 F.3d 894, 900
(8th Cir. 1999) (noting that we apply common sense meaning to the text of
statutes and interpret provisions “in a manner logically consistent with the
Act as a whole”). Allen’s two-decision interpretation of § 3593(e) would
allow the jurors to disregard a unanimous determination that a sentence of
death is justified. We conclude that such an interpretation contradicts the
language of § 3591(a)(2), stating that a defendant shall be sentenced to
death if the fact finder determines that a sentence of death is justified after
weighing the aggravating and mitigating circumstances. To consistently
harmonize the two sections, we must read § 3593(e) as specifying the
jury’s options within this framework. We already know from § 3591(a)(2)
that a unanimous finding that death is justified requires a recommendation
of a death sentence. The jury’s remaining options, then (life imprisonment
without possibility of release or some other lesser sentence), are only valid
options for the jury to recommend if the balancing process favors the
mitigating factors and does not justify a sentence of death.
Allen, 247 F.3d at 781.
Based on this authority, the Court should preclude the defendant from suggesting to
jurors that the law never requires a death sentence, and should similarly reject any request for an
instruction to the same effect.
Respectfully submitted,
BETH DRAKE
ACTING UNITED STATES ATTORNEY
DISTRICT OF SOUTH CAROLINA

September 6, 2016

BY: s/Julius N. Richardson
JULIUS N. RICHARDSON (ID #9823)
NATHAN WILLIAMS
Assistant United States Attorneys
1441 Main Street, Suite 500
Columbia, SC 29201
Tel. (803) 929-3000