The opinion of the court was delivered by: Pisano, District Judge.
After several weeks of trial in this matter, the defendant, William Baskerville, ("Defendant") was convicted of various drug-related offenses and two capital murder conspiracy charges. Under the Federal Death Penalty Act ("FDPA"), 18 U.S.C. § 3591 et seq., once a determination of guilt has been made with respect to offenses punishable by death, the trial continues to a second phase, the "penalty phase," in which the jury*fn1 determines the defendant's sentence for those offenses. During this second phase, a jury must first determine whether a defendant is death-penalty eligible, and, if so, the jury then weighs any aggravating and mitigating circumstances to arrive at a sentence.
In the present case, relevant to the determination of whether Defendant was death-penalty eligible were certain "special findings" set forth in the Notice of Special Findings ("Notice") in the Fourth Superseding Indictment ("Indictment"). After the jury returned its guilty verdicts on the capital charges but before the penalty phase in this case commenced, a motion was made by Defendant to strike one of the enumerated special findings from the Notice in the Indictment as not being supported by the evidence presented in this case.*fn2 Oral argument was held on May 2, 2007, and the Court issued a ruling from the bench on May 4, 2007, granting Defendant's motion. This opinion supplements the Court's oral opinion and further sets forth the reasoning of May 4th ruling.
On June 29, 2006, a Fourth Superseding Indictment was filed charging defendant with conspiracy to murder a witness, conspiracy to retaliate against an informant and several non-capital drug crimes. The two murder conspiracy charges related to the murder of Kemo McCray, a confidential witness who, as stated in the Indictment, purchased illegal drugs from the Defendant "under the supervision and surveillance of Federal law enforcement agents." Indictment at 1-2. After Defendant's arrest on charges stemming from these drug transactions, the government alleged that Defendant was able to ascertain the identity of the confidential witness. According to the prosecution, Defendant "informed co-conspirators that the identity of the 'confidential witness' was [Kemo McCray] and told co-conspirators to kill [him]." Indictment at 3.
According to testimony at trial, on March 2, 2004, McCray was approached on a city street by Anthony Young,*fn3 a long-time friend of the Defendant. Young testified that as McRay was walking with another individual, Young approached McCray and shot him several times, killing him. Defendant, who had been in federal custody since his arrest on drug charges in November 2003, was in jail at the time McRay was murdered.
The first two counts in the Indictment against Defendant alleged that Defendant participated in a conspiracy to murder McCray for the purpose of (1) retaliating against McCray for providing information to law enforcement; and (2) preventing McCray from testifying against Defendant on the drug charges. Indictment at 4, 6. These two offenses can be punishable by death, and the government sought the death penalty against Defendant with respect to each of the capital counts. See Notice of Intent to Seek the Death Penalty filed June 16, 2006. On May 1, 2007, a jury returned guilty verdicts against Defendant on all charges.
As noted previously, under the FDPA, in cases where a conviction is obtained for a death-eligible offense, the trial proceeds to a second phase after the determination of guilt has been rendered. This second phase is generally known as the "penalty phase" of a capital case. The initial step of the penalty phase*fn4 involves a jury making certain findings in order to determine whether a defendant is death-penalty eligible. 18 U.S.C. 3593(b). In this regard, as relevant to the present motion, the government first must establish beyond a reasonable doubt that a defendant had the requisite mental state; that is, the government must show that the defendant met at least one of four statutory intent factors, known as "gateway" factors. These factors require the jury to unanimously find 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 ...