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United States of America vs. Steven Dale Green -  The 2008 Case File

 

Criminal Proceedings against Steven D. Green

 

U.S. vs. Steven D. Green

U.S. District Court for the Western District of Kentucky

Case No.: 5:06-CR-00019-R (prior to November 3rd, 2006: 3:06 MJ 230)

 

December 19th, 2008 - Opinion & Order

December 17th, 2008 - US’ Post-Hearing Reply on Defendant’s Motion to Suppress Statements

December 12th, 2008 - Order

December 11th, 2008 - Order

December 10th, 2008 - US’ Motion for Order Authorizing Access to Confidential Communications

December 10th, 2008 - Defendant’s Post-Hearing Brief on Motion to Suppress Statements

December 3rd, 2008 - United States’ Motion for Extension of Time

November 20th, 2008 - United States’ Post-Hearing Brief on Defendant’s Motion

November 7th, 2008 - Notice of Filing of Official Transcript

November 6th, 2008 - Order

November 4th, 2008 - Order

November 3rd, 2008 - United States’ Response to Defendant's Motion for Preservation of Notes

November 3rd, 2008 - United States’ Motion to Accept Late Filing

November 3rd, 2008 - United States’ Motion Regarding Mental Health Evidence

November 3rd, 2008 - United States’ Response to the Court’s Order Requiring a Brief

October 24th, 2008 - Order

October 21st, 2008 - Order

October 21st, 2008 - United States’ Response to Defendant’s Motion to Suppress Statements

October 16th, 2008 - Order

October 7th, 2008 - Motion to Suppress Statements

October 1st, 2008 - Motion to Preserve Agents’ Notes

October 1st, 2008 - United States’ Motion for Extension of Time

August 28th, 2008 - Order

August 26th, 2008 - Order & Memorandum Opinion on Motion to Dismiss for Lack of Jurisdiction

August 26th, 2008 - Order & Memorandum Opinion on Motion to Declare the Death Penalty Act Unconstitutional

August 26th, 2008 - Order & Memorandum Opinion on Motion to Strike the Death Penalty Notice as Inadequate

August 26th, 2008 - Order & Memorandum Opinion on Motion to Declare the Death Penalty Act Unconstitutional

August 26th, 2008 - Memorandum Opinion and Order

August 26th, 2008 - Order & Memorandum Opinion on Motion to Declare Lethal Injection Unconstitutional

August 26th, 2008 - Order & Memorandum Opinion on Motion to Declare the Death Penalty Act Unconstitutional

August 26th, 2008 - Order & Memorandum Opinion on Motion to Dismiss

May 15th, 2008 - Notice of Intent to Introduce Expert Testimony Relating to Mental Disease

May 15th, 2008 - Notice of Intent to Rely Upon the Defense of Insanity

May 12th, 2008 - U.S.’ Response to Defendants Motion to Conduct Oral Argument

April 30th, 2008 - Motion to Conduct Oral Argument

April 22nd, 2008 - Reply to United States’ Response to Motion to Dismiss

April 18th, 2008 - Reply to U. S. Response to Motion to Dismiss for Lack of Jurisdiction

April 18th, 2008 - Reply to U.S. Response to Motion to Declare Death Penalty Act Unconstitutional

April 18th, 2008 - Reply to U.S. Response to Motion to Declare Lethal Injection Unconstitutional

April 2nd, 2008 - Order

March 21st, 2008 - United States’ Response to Defendant’s Motion to Dismiss

March 21st, 2008 - US’ Response to Defendant’s Motion to Dismiss for Lack of Jurisdiction

March 21st, 2008 - US’ Response to Defendant’s Motion to Declare Federal Death Penalty Act Unconstitutional (V)

March 21st, 2008 - US’ Response to Defendant’s Motion to Declare Lethal Injection Unconstitutional

March 21st, 2008 - US’ Response to Defendant’s Motion to Declare Federal Death Penalty Act Unconstitutional (IV)

March 21st, 2008 - US’ Response to Defendant’s Motion to Declare Federal Death Penalty Act Unconstitutional (III)

March 21st, 2008 - US’ Response to Defendant’s Motion to Declare Federal Death Penalty Act Unconstitutional (II)

March 21st, 2008 - US’ Response to Defendant’s Motion to Declare Federal Death Penalty Act Unconstitutional (I)

March 6th, 2008 - United States’ Motion for Extension of Time

February 15th, 2008 - Motion to Dismiss for Lack of Jurisdiction

February 15th, 2008 - Motion to Declare the Federal Death Penalty Act Unconstitutional (Arbitrary)

February 15th, 2008 - Motion to Declare the Federal Death Penalty Act Unconstitutional (Improper)

February 15th, 2008 - Motion to Declare the Federal Death Penalty Act Unconstitutional (“Special Findings”)

February 15th, 2008 - Motion to Declare the Federal Death Penalty Act Unconstitutional (Irreconcilable)

February 15th, 2008 - Motion to Declare Lethal Injection Unconstitutional

February 15th, 2008 - Motion to Declare the Federal Death Penalty Act Unconstitutional (Aggravators)

February 15th, 2008 - Motion to Dismiss

 

December 19th, 2008 - Opinion & Order

 

“[…] Defendant moves the Court to enter an order ‘to compel any and all governmental law enforcement officials who aided in the investigation’ of this case to preserve all their ‘rough notes, memoranda, resumes, synopses, etc., which were taken as part of their investigation.’ […]

 

“The Government does not argue that preserving the rough notes produced by its agents would be administratively burdensome or prejudicial in any way. Given the circumstances of this case, and out of an abundance of caution, the Court finds no reason why it should not grant Defendant’s motion. In doing so, the Court expresses no opinion as to whether or not the Brady doctrine or Jencks Act compel the government to preserve the rough notes of its agents.

 

“For the foregoing reasons, it is hereby ordered that the Government direct all law enforcement and investigative officials involved in this case to preserve their investigative materials, including their rough notes, currently in existence and in the future. […]”

 

December 17th, 2008 - US’ Post-Hearing Reply on Defendant’s Motion to Suppress Statements

 

“[…] When the defendant invoked his right to counsel shortly after apprehension, the arresting FBI agents did not attempt to question him. During transport, and after sitting in silence for approximately 15 minutes, Green initiated conversation regarding the nature of his case and his time in Iraq. Any question that was asked of Green during that time, or ever after, was not asked for the purpose of eliciting an incriminating response nor can it be shown that an incriminating response was provided based on such a question. The evidence demonstrates that Green clearly wanted to converse with Agent Kelley during his transport to Asheville and Charlotte. In initiating conversation again and again, Green proved his intent to voluntarily reopen the lines of communication. Agent Kelley’s participation in Green’s conversation was not interrogation under Miranda and did not violate Green’s constitutional rights.

 

“Furthermore, the two hour drive from Asheville to Charlotte, where Green’s initial appearance was held, does not constitute ‘unnecessary delay’ for purposes of Rule 5(a). There is no evidence that the United States sought delay for purposes of postponing attachment of the Sixth Amendment. If anything, the evidence supports a conclusion that due to scheduling concerns between lawyers, clerks, and judges in a small court division on a July 4th weekend, an initial appearance in Charlotte was more appropriate, practical, and certainly reasonable. Regardless, Green was presented to a magistrate the next business day after his arrest. Wherefore, the United States respectfully requests that defendant’s motion to suppress be denied. […]”

 

December 12th, 2008 - Order

 

“[…] It is ordered. No later than February 2, 2009 the United States shall provide expert disclosures reports, as required, or otherwise agreed. Any Daubert Motions or challenges to any experts must be filed by February 16, 2009. […]”

 

December 11th, 2008 - Order

 

“[…] By agreement of the parties, the order entered December 18, 2007, DN 87, paragraph 11 is amended as follows:

 

“11. The jury that is summoned for the case is directed to report to the courthouse the week of February 9, 2009 to complete the jury questionnaire. The jury questionnaire will be provided to counsel no later than March 6, 2009. It is so ordered. […]”

 

December 10th, 2008 - US’ Motion for Order Authorizing Access to Confidential Communications

 

“[…] Comes the United States, by counsel, and moves the Court for authorization to access confidential communications between the defendant and an Army psychotherapist, Dr. E. B. The defendant waived his psychotherapist-patient privilege by placing his mental health squarely at issue in this case when he filed notice of intent to assert the defense of insanity under Federal Rule of Criminal Procedure 12.2(a). Accordingly, in order to prepare to meet this defense at trial, the United States must be permitted access to confidential communications between the defendant and Dr. E. B. […]”

 

December 10th, 2008 - Defendant’s Post-Hearing Brief on Motion to Suppress Statements

 

“[…] Green has been in law enforcement custody since the time of his arrest on June 30, 2006. He invoked his Fifth Amendment right to counsel immediately upon his arrest. Law enforcement never advised Green of his Miranda rights. None the less, law enforcement engaged in the ‘questioning’ and the ‘functional equivalent’ of questioning of Green on June 30 and July 3, 2006. As such, Green’s statements were obtained in violation of Miranda and must be suppressed.

 

“Also as to the July 3rd statements, Green was transported from Asheville to Charlotte, North Carolina, for his initial appearance despite there being a Federal courthouse and a sitting magistrate and district judge in Asheville. This two hour car ride with the FBI resulted in Green allegedly making more statements to the FBI. The act of transporting Green two hours away for his initial appearance violated FRCrP 5, 18 U.S.C. § 3501(c), and the Sixth Amendment. As such, the statements of July 3rd must be suppressed on these grounds also.

 

“Wherefore, the defendant respectfully moves the Court to grant his Motion to Suppress. […]”

 

December 3rd, 2008 - United States’ Motion for Extension of Time

 

“[…] Comes the United States of America, by counsel, and moves the Court for a brief extension of time for the parties to submit either an agreed upon jury questionnaire or to submit their respective proposed jury questionnaires. The deadline currently set by the Court for the parties to submit an agreed jury questionnaire is December 5, 2008. The undersigned has conferred with counsel for the defendant, Steven D. Green, who advised that defense counsel had been working on a proposed jury questionnaire which they would submit to the United States for consideration. The United States has also been working on questions for a proposed jury questionnaire. At this time, however, neither party has had an opportunity to review the questions proposed by the other.

 

“Accordingly, the United States respectfully requests an extension of time of two weeks, until Friday, December 19, 2008, for the parties to either submit a jury questionnaire upon which they have agreed, or, in the alternative and if no agreement can be reached, for each party to submit a proposed set of questions to be posed to the panel of prospective jurors for consideration by the Court. […]”

 

November 20th, 2008 - United States’ Post-Hearing Brief on Defendant’s Motion

 

“[…] Comes the United States, by counsel, to brief the Court following the hearing on defendant Steven Green’s Motion to Suppress Statements. As the evidence at the hearing showed, Green’s statements were voluntary and not in response to interrogation. Accordingly, the defendant’s motion should be denied.

 

“The facts of the case and the principal arguments of the United States are set forth in its Response to Defendant’s Motion to Suppress Statements. Res. to Def. Mot. of Oct. 7, 2008, Doc. No. 154. Considering the arguments in that Response and the evidence offered at the hearing, the United States respectfully submits that the sole issue on the motion before the Court is whether Green’s statements upon arrest and during transport were made in response to ‘interrogation’ under Miranda v. Arizona, 384 U.S. 436, 444 (1966). […]”

 

November 7th, 2008 - Notice of Filing of Official Transcript

 

“Notice of filing of official transcript of Proceedings as to Steven D. Green held on October 29, 2008, before Judge Thomas B. Russell. Court Reporter/Transcriber Terri Turner, Telephone number 270-415-6417. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 11/28/2008. Redacted Transcript Deadline set for 12/8/2008. Release of Transcript Restriction set for 2/5/2009. […]”

 

November 6th, 2008 - Order

 

“[…] This matter is before the Court on the motion of the United States to accept the late filing of its Response to Defendant’s Motion to Preserve Agents’ Notes. The Court having considered the motion, and being otherwise sufficiently advised, it is ordered that the motion of the United States be and it is hereby granted. […]”

 

November 4th, 2008 - Order

 

“[…] It is ordered.

 

“1. A hearing on the Defendant’s Motion to Suppress Statements was held on October 29, 2008.

 

“2. The parties stated they would not call any additional witnesses.

 

“3. The United States shall file a brief 2 weeks after the filing of the official court transcript. The Defendant shall file a brief 2 weeks thereafter with any reply due in 1 week. Counsel for the United States shall notify the Court by letter, with a copy to opposing counsel, when the matter is ripe for a decision.

 

“4. The suppression hearing set on November 3, 2008 is vacated. […]”

 

November 3rd, 2008 - United States’ Response to Defendant's Motion for Preservation of Notes

 

“[…] Comes the United States of America, by counsel, for its response to the motion of the Defendant, Steven D. Green, for Preservation of Agents' Notes in this case. Green seeks an order from the Court ‘to compel any and all governmental law enforcement officials who aided in the investigation of the acts, transactions and matters indicated in the indictment ... to preserve their rough notes.’

 

“The United States is under no obligation to preserve notes, memoranda, and reports made by government agents in the course of an investigation. The Supreme Court has held that destruction of notes made by FBI agents while interviewing witnesses ‘did not constitute an impermissible destruction of evidence nor deprive petitioner of any rights’ if destroyed ‘in good faith and in accord with their normal practices.’ […]

 

“[…] For the foregoing reasons, the motion of the Defendant for an Order compelling any law enforcement officials who aided in this investigation to preserve all rough notes should be denied as such an Order is not supported by the law in this Circuit, is over broad, and would place an undue burden on the United States. […]”

 

November 3rd, 2008 - United States’ Motion to Accept Late Filing

 

“[…] Comes the United States of America, by counsel, Marisa J. Ford, Assistant U.S. Attorney for the Western District of Kentucky, and moves the Court to accept the late filing of the United States’ Response to Defendant’s Motion to Preserve Agents’ Notes. As grounds for its motion, the United States submits that Defendant’s motion was filed on October 1, 2008, with a response deadline of October 15, 2008. The undersigned was out of the office on work-related and/or family matters for substantially all of the two week period beginning on September 28, 2008, and concluding on October 14, 2008, and was unable to gain remote wireless access either to the server at the United States Attorney’s Office or to the Court’s Electronic Case Filing system, and was unable to prepare or file the response of the United States on or before the October 15, 2008, due date. […]”

 

November 3rd, 2008 - United States’ Motion Regarding Mental Health Evidence

 

“[…] For this reason, the United States requests the Court to enter an order: (1) extending the deadline for the filing of pretrial motions related to discovery and admissibility of the mental health evidence Defendant intends to introduce at trial on the issue of insanity, as well as for any additional testing which the United States may request, to December 31, 2008; and (2) requiring the exchange between defense and experts retained by the United States of all materials upon which they may rely to form the basis of their opinions, including all medical records and other record, on or before December 1, 2008.

 

“Fed. R. Crim. P. 12.2 requires, in the plainest terms, that the defendant give notice and discovery to the United States whenever it plans to offer mental health evidence at trial, whether it be at the guilt or penalty phase. The Rule’s ‘objective is to give the government time to prepare to meet the issue, which will usually require reliance upon expert testimony.’ […] The Defendant has had at least a year, since the date the United States’ filed its notice of intent to seek the death penalty in this case, to prepare his insanity defense. Since September 15, 2008, the United States has had a thirteen page narrative summary which purports to set forth the complex neuropsychological assessments of the Defendant’s team of expert witnesses. At this juncture, the United States simply does not have enough meaningful discovery to meet the Court’s deadline for the filing of pretrial motions in this case. […]”

 

November 3rd, 2008 - United States’ Response to the Court’s Order Requiring a Brief

 

“[…] As the Court is, of course, well aware, the United States is engaged in a conflict in Iraq and is conducting active military operations in that country. It is currently not possible to obtain a summary of victim-impact evidence because the witnesses have relocated due in part to the crimes allegedly committed by Green and others. Although U.S. authorities are coordinating with the Iraqi government in attempting to locate Iraqi civilian witnesses, the ongoing conflict and the country’s limited infrastructure has made communicating with the witnesses a slow and potentially dangerous process.

 

“For these reasons, it is difficult to provide the Court with a date certain when the United States will be able to provide defense counsel with a summary of its victim-impact evidence. However, taking into account the coordination required with the Iraqi government, the United States believes that it will be in communication with the victim witnesses within 60 days. After that, the United States anticipates that U.S. authorities will be in a position to obtain a summary of the testimony of the victim witnesses after an additional three to four weeks.

 

“In short, the United States expects that it will be in contact with Iraqi civilian witnesses within sixty days and have summaries of its victim-impact evidence to provide to defense counsel by February 1, 2009. In going forward, if the United States believes it cannot abide by this schedule, the undersigned will alert the Court. Of course, if the United States is able to obtain a summary of the anticipated testimony of Iraqi victim witnesses in advance of current predictions, it will immediately make that information available to counsel for the Defendant. […]”

 

October 24th, 2008 - Order

 

“[…] The order entered December 18, 2007, DN 87, paragraph 11 is amended as follows:

 

“11. The jury that is summoned for the case is directed to report to the courthouse the week of January 12, 2009 to complete the jury questionnaire. It is so ordered. […]”

 

October 21st, 2008 - Order

 

“[…] It is ordered. A hearing on the Defendant’s Motion to Suppress is set on October 29, 2008 at 1:00 p.m. EST in Louisville, Kentucky as stated in the official court record. […]”

 

October 21st, 2008 - United States’ Response to Defendant’s Motion to Suppress Statements

 

“[…] Comes the United States, by counsel, and responds to defendant Steven Green’s Motion to Suppress Statements. The Motion concerns statements that the defendant made during his arrest in Nebo, NC, on June 30, 2006. It also concerns post-arrest statements Green made while agents were driving him to the Buncombe County Detention Center in Asheville, NC, on June 30, 2006, and statements made while he was being driven to the federal courthouse in Charlotte, NC, on July 3, 2006. The Motion should be denied because Green’s statements were made voluntarily and not in response to interrogation.

 

“I. Facts - On June 30, 2006, law enforcement agents from the Federal Bureau of Investigation (‘FBI’) arrived at a house in Nebo, NC, to arrest the defendant based on a Warrant for Arrest issued in the Western District of Kentucky. An undercover officer encountered Green in the backyard of the house. Once Green was identified, a team of agents approached him and he was immediately restrained. While the defendant was being handcuffed, Green said he wished the agents had called him because he would have turned himself in to the authorities.

 

“As the arresting agents walked Green from the backyard of the house toward the officers’ cars parked toward front of the house, agents noticed that the defendant’s grandmother - who had just witnessed Green’s arrest - was visibly upset. Agents asked the defendant if they could explain to his grandmother why he was being arrested. Green initially said yes, but then changed his mind and said no because he did not want to upset her.

 

“Before transporting Green to the Buncombe County Detention Center in Asheville, NC, the agents let Green smoke a few cigarettes. Although the agents did not attempt to question Green, the defendant told the officers that he did not want to answer questions without an attorney present. When Green was done smoking, agents placed him in the backseat of their car and began driving to Asheville.

 

“During the defendant’s transport to the detention center, agents did not ask Green any questions. However, without prompting, the defendant stated the following over the course of the approximately 45-minute drive: ‘You probably think I’m a monster.’ ‘I’m not a criminal in the United States - except for getting arrested for marijuana when I was sixteen.’ ‘Knew you guys were coming.’ ‘All of my buddies were getting killed over there - my Lieutenant got his face blown off.’ ‘George Bush and Dick Cheney ought to be the ones that are arrested.’ ‘Joining the Army was the worst decision I ever made.’

 

“In addition to these statements, Green engaged the agents in small talk regarding the amount of time that he spent in Iraq and said he would have turned himself in prior to arrest. The agents, however, did not ask him any questions.

 

“Three days later, on July 3, 2006, FBI agents transported Green from the Buncombe County Detention Center to the Federal Courthouse in Charlotte, NC. During the approximately 2-hour drive to Charlotte, agents did not ask Green any questions.

 

“Again, however, without prompting, the defendant made the following statements: ‘Will I be tried federally or by the military?’ ‘Will the federal system take into account what goes on over there in Iraq?’ ‘I guess I will get called as a witness or have to testify at the other guys’ trials.’ ‘How long will judicial process take?’ ‘Guess I’m looking at spending the rest of my life in jail.’ ‘I heard that some of the Vietnam era guys had gotten out of prison after getting 20-30 year sentences for the same things.’ ‘Joining the Army was the worst decision I ever made.’ ‘Thought I was passed this, being discharged out of the military.’ ‘At least I got to enjoy being home for a while.’

 

“In addition to making these statements, the defendant again engaged the agents in conversation. The agents did not ask Green any questions. Green, however, volunteered information related to at least a dozen topics - most related to his tour of duty in Iraq.

 

“Finally, Green asked the agents about the status of the others involved, and stated that he knew authorities were coming to arrest him. Green stated that he and his grandmother had gone to dinner and planned to go to a movie. Instead, he came home because he was thinking about turning himself in. However, he thought he would ‘enjoy the last halfhour of freedom.’

 

“Upon reaching the Federal Courthouse in Charlotte, Green received his initial appearance and was turned over to the U.S. Marshals for booking. […]”

 

October 16th, 2008 - Order

 

“[…] This matter is before the Court on the motion of the United States for an extension of time to November 3, 2008 in which to: 1) respond to the Court’s Order requiring the United States to provide more specific victim impact information, and 2) to file any pretrial motions.

 

“The Court having considered the motion of the United States, there being no objection by the Defendant, and being otherwise sufficiently advised, it is ordered that the motion of the United States be and it is hereby granted. The United States has until November 3 to respond to: 1) respond to the Court’s Order requiring the United States to provide more specific victim impact information, and 2) to file any pretrial motions. […]”

 

October 7th, 2008 - Motion to Suppress Statements

 

“[…] Comes the Defendant, Steven Dale Green, by counsel, pursuant to the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution and respectfully moves this Court to enter an order suppressing any and all statements the defendant allegedly made to law enforcement.

 

“In support of said motion, the defense states as follows: The defendant was arrested on June 30, 2006, in Nebo, North Carolina. The United States has stated that when the defendant was arrested, he informed law enforcement that he did not wish to speak with them without the presence of an attorney. After his arrest, the defendant was transported to a detention facility in Asheville, North Carolina, by FBI agents. The United States alleges that during this transport, the defendant made statements and ‘discussed topics’ with the agents related to this case.

 

“On July 3, 2006, the defendant was again transported by FBI agents, this time from the Asheville detention center to the Federal Courthouse in Charlotte, North Carolina. The United States alleges that on this date the defendant again made statements and ‘discussed topics’ related to the case with the agents.

 

“The United States has not alleged that law enforcement ever advised the defendant of his Miranda rights. Nevertheless, the defendant’s invocation of his right to counsel at the time of arrest prevented law enforcement from questioning him or engaging in the functional equivalent of questioning him without the aid of an attorney. As such, the defense challenges any statements the defendant allegedly made to law enforcement. The defense claims that such alleged statements were obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966), and Fifth and Sixth Amendments of the United States Constitution.

 

“Wherefore, the defendant respectfully requests a hearing on this motion and moves the Court to suppress any and all statements the defendant allegedly made to law enforcement. […]”

 

October 1st, 2008 - Motion to Preserve Agents’ Notes

 

“[…] Comes the Defendant, Steven Dale Green, by counsel, pursuant to the Fifth, Sixth, and Fourteenth Amendments and respectfully moves this Court to enter an order directing all government agents and all military and local investigative personnel involved in any aspect of this case to retain and preserve all notes made during the course of the investigation in this case.

 

“Specifically, defendant requests the preservation of all rough notes, memoranda, resumes, synopses, etc., which were taken as part of their investigation, whether or not the contents of the same were incorporated into any official records such as, but not limited to, FBI reports, military reports, Department of Defense reports, polygraph reports, and rough notes taken during both prepolygraph and post-polygraph interrogation.

 

“In addition, these rough, handwritten notes, resumes, synopses, etc., taken during the course of the investigation or while interviewing witnesses are potentially discoverable material at trial under the Jencks Act and are required to be preserved and produced even if these notes are not discoverable prior to trial. […]”

 

October 1st, 2008 - United States’ Motion for Extension of Time

 

“[…] Comes the United States of America, by counsel, and moves the Court for an extension of time in which the United States must file a response to the Court’s Order requiring the government to provide more specific information on the nature of the victim impact evidence the United States expects to introduce in the trial of this case. The United States is currently engaged in communication with the appropriate officials in the Iraqi government to obtain this information. Additional time is necessary for the United States to obtain the information necessary to respond to the Court’s Order.

 

“Because the United States received the expert witness disclosures from Green on September 15, 2008, it is requested that the United States be permitted an extension of time within which to file any pretrial motions related to this evidence.

 

“Wherefore, on the basis of the aforementioned matters, the United States respectfully requests an extension through November 3, 2008 to: 1) respond to the Court’s Order requiring the United States to provide more specific victim impact information, and 2) to file any pretrial motions. […]”

 

August 28th, 2008 - Order

 

“[…] In the Memorandum Opinion and Order denying the Defendant’s Motion to Declare the Federal Death Penalty Act Unconstitutional, Dismiss Aggravators, and Dismiss the Government’s Death Penalty Notice, the Court ordered the Government to provide a brief detailing the circumstances of obtaining victim impact evidence and what it will require by September 1, 2009.

 

“It is hereby ordered that the date for the Government’s submission of this brief is hereby amended such that it shall be due on or before October 1, 2008. […]”

 

August 26th, 2008 - Order & Memorandum Opinion on Motion to Dismiss for Lack of Jurisdiction

 

“[…] Given the evidence before the Court, Defendant was a civilian ex-soldier who had severed all relationship with the military and its institutions. The Court finds that the exercise of courtmartial jurisdiction over Defendant would be unconstitutional under the facts and circumstances of this case. As such, Defendant was not under the jurisdiction of the UCMJ at the commencement of this prosecution.

 

“For the above reasons, Defendant’s Motion to Dismiss for Lack of Jurisdiction is denied. […]”

 

August 26th, 2008 - Order & Memorandum Opinion on Motion to Declare the Death Penalty Act Unconstitutional

 

“[…] The Defendant presents no evidence and makes no argument that the FDPA’s procedures are unfair or inconsistent. Instead, he ‘emphasizes the effect of the FDPA, which is an unavailing argument. Inconsistent results are not unconstitutional.’ […]. The Supreme Court held in McCleskey that ‘[t]he Constitution is not offended by inconsistency in results based on the objective circumstances of the crime. Numerous legitimate factors may influence the outcome of a trial and a defendant’s ultimate sentence, even though they may be irrelevant to his actual guilt.’ […]

 

“’The Constitution requires fair and consistent sentencing proceedings,’ and the Defendant has not shown the FDPA violates that requirement. […] Accordingly, the Defendant’s motion is denied with respect to the consistency with which the federal death penalty is imposed.

 

“For the foregoing reasons, the Defendant’s Motion to Declare the Federal Death Penalty Act Unconstitutional Because it is Arbitrary; Violates Evolving Standards of Decency; and is Applied in a Fundamentally Unfair Manner is denied. […]”

 

August 26th, 2008 - Order & Memorandum Opinion on Motion to Strike the Death Penalty Notice as Inadequate

 

“[…] The Defendant also argues that the ‘victim impact’ non-statutory aggravating factor is unconstitutionally vague because it uses such general terms as ‘personal characteristics’ and ‘family,’ without specifying those characteristics or what family. The victim impact aggravating factor, as used in the Notice of Intent, states:

 

“Victim Impact Evidence

 

“1. The defendant caused injury, harm and loss to the family of Abeer Kassem Hamza Al-Janabi, as evidenced by her personal characteristics as a human being and the impact of her death on her family.

 

“2. The defendant caused injury, harm and loss to the family of Hadeel Kassm Hamza Al-Janabi, as evidenced by her personal characteristics as a human being and the impact of her death on her family.

 

“3. The defendant caused injury, harm and loss to the family of Kassem Hamza Rachid Al-Janabi, as evidenced by his personal characteristics as a human being and the impact of his death on his family.

 

“4. The defendant caused injury, harm and loss to the family of Fakhriya Taha Mohsine Al-Janabi, as evidenced by her personal characteristics as a human being and the impact of her death on her family.

 

“5. The injuries caused by the defendant extend especially to the two minor children orphaned as a result of their parents’ death and to those presently caring for the children.

 

“In its Memorandum Opinion denying the Defendant’s Motion to Declare the Federal Death Penalty Act Unconstitutional, Dismiss Aggravators, and Dismiss the Government’s Death Penalty Notice, the Court denied the Defendant’s request to strike the victim impact evidence is aggravator but ordered the Government to produce more information on the aggravator by September 1, 2009. The Court believes this brief, when produced, will alleviate the Defendant’s arguments regarding any alleged vagueness with the victim impact aggravator, and negates the Court’s need to further address the Defendant’s argument in this Motion.

 

“For the foregoing reasons, the Defendant’s Motion to Declare the Federal Death Penalty Act Unconstitutional and to Strike the Death Penalty Notice as Inadequate is denied. […]”

 

August 26th, 2008 - Order & Memorandum Opinion on Motion to Declare the Death Penalty Act Unconstitutional

 

“[…] In a case such as this, the jury only reaches the sentencing phase if it unanimously finds the defendant guilty on an underlying charge. The jury must then unanimously find that the defendant is eligible for the death penalty before it selects whether or not to impose the penalty.

 

“A presumption of innocence instruction ‘would then necessarily give rise to some other instruction that endeavors to explain what it means for a guilty person to be considered innocent and how the jury is to perform the mental gymnastics necessary to meaningfully employ that presumption in its deliberations.’

 

“If this case reaches the sentencing phase: the jury will be instructed in no uncertain terms that it is the government’s burden to prove, if it can, to a unanimous jury beyond a reasonable doubt everything required to make defendant eligible for the death penalty, and everything required for the jury to return a recommendation of death, as contemplated by both the FDPA and the Constitution. The jury will also be instructed in unequivocal terms that defendant has no burden or duty to prove anything (unless, or course, defendant elects to present evidence in mitigation, in which case the jury will be instructed on the preponderance standard, lack of a unanimity requirement to consider mitigating factors, etc.). Under those circumstances, defendant will not be deprived of his constitutional right to a fair trial. […]

 

“For the foregoing reasons, the Defendant’s Motion to Declare the Federal Death Penalty Act Unconstitutional, Dismiss Special Findings from the Indictment, and Strike the Notice of Intent to Seek the Death Penalty is denied. […]”

 

August 26th, 2008 - Memorandum Opinion and Order

 

“[…] The Court agrees with the Duncan court that the findings of the CJP provide no basis for undermining the constitutionality of the FDPA, a statute that has withstood innumerable attacks since its passage in 1994.The Government correctly points out that the Defendant’s arguments are most suitable for consideration by a legislative body. The FDPA has not been declared unconstitutional by the United States Supreme Court. The Defendant’s claim that the findings of the CJP necessarily lead to the conclusion that the FDPA is unconstitutional due to improper sentencing procedures in entirely unsupported by law.

 

“For the foregoing reasons, it is hereby ordered that the Defendant’s Motion to Declare the Federal Death Penalty Act Unconstitutional Due to Improper Sentencing Procedures is denied. […]”

 

August 26th, 2008 - Order & Memorandum Opinion on Motion to Declare Lethal Injection Unconstitutional

 

“[…] This matter has come before the Court upon the Defendant’s Motion to Declare Lethal Injection Unconstitutional. The United States has responded and the Defendant has replied. This matter is ripe for adjudication. For the following reasons, the Defendant’s Motion is denied […]”.

 

August 26th, 2008 - Order & Memorandum Opinion on Motion to Declare the Death Penalty Act Unconstitutional

 

“[…] Thus, the Defendant’s argument that the witness elimination non-statutory aggravating factor should be dismiss because it does not narrow the class of defendant’s eligible for capital punishment is without merit. Further, the Court does not agree that the witness elimination aggravator may be applied ‘in almost every murder.’ As the Government stated in response, ‘some murderers are motivated to kill their victims for financial gain or for some revenge.’ There are myriad reasons that may motivate one person to kill another. To kill a person in order to eliminate them as a witness to a crime is a specific purpose. The witness elimination nonstatutory aggravator is valid and the Government may offer proof of the aggravator to the jury, and, if proved, will help to insure an individualized sentence that minimizes the risk of arbitrary and capricious action.

 

“[…] For the foregoing reasons, the Defendant’s Motion to Declare the Federal Death Penalty Act Unconstitutional, Dismiss Aggravators, and Dismiss the Government’s Death Penalty Notice is denied. […]”

 

August 26th, 2008 - Order & Memorandum Opinion on Motion to Dismiss

 

“[…] As Defendant has no fundamental right to trial by court-martial, the contested Government action must bear a reasonable relation to a legitimate governmental interest. Flores, 507 U.S. at 306. The Government asserts, and this Court agrees, that the Government has a legitimate governmental interest in ensuring that its soldiers are fit to serve in the United States Army. See United States v. Bickel, 27 M.J. 638, 642 (A.C.M.R. 1988). Defendant’s Brigade Commander requested Defendant’s release from theater in Iraq on grounds of a discharge for personality disorder on April 2, 2006, and on April 14, 2006, Defendant’s Company Commander notified Defendant that he was initiating action to separate Defendant from the military for a personality disorder. Defendant has made no argument denying his personality disorder or that such personality disorder would not impair his fitness to serve. This Court finds that Defendant’s discharge was reasonably related to the Government’s interest in ensuring that its soldiers are fit to serve.

 

“Therefore, this Court finds that Defendant’s prosecution in a civilian court does not amount to a violation of either procedural or substantive due process. […]”

 

May 15th, 2008 - Notice of Intent to Introduce Expert Testimony Relating to Mental Disease

 

“[…] Comes the defendant, Steven Dale Green, by counsel, pursuant to Rule 12.2(b) of the Federal Rules of Criminal Procedure, and gives notice in writing to the attorney for the government that at the trial of this action he intends to introduce or may introduce expert testimony relating to mental disease or defect and other mental conditions of the defendant bearing on the issue of his guilt of the offenses charged herein.

 

“Defendant also gives notice in writing to the attorney for the government that should he be convicted he intends to introduce or may introduce expert testimony relating to mental disease or defect and other mental conditions of the defendant bearing on the issue of punishment, including, but not limited to, whether he committed the offenses charged herein under significant impairment of his capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law, whether he committed the offenses charged herein under unusual and substantial duress, whether he committed the offenses charged herein under severe mental or emotional disturbance, and other factors in his background, record, or character or any other circumstances of the offense which may mitigate his sentence herein. […]”

 

May 15th, 2008 - Notice of Intent to Rely Upon the Defense of Insanity

 

“[…] Comes the defendant, Steven Dale Green, by counsel, pursuant to Rule 12.2(a) of the Federal Rules of Criminal Procedure, and gives notice in writing to the attorney for the government that at the trial of this action he intends to rely or may rely upon the defense of insanity at the time of the offenses alleged herein. […]”

 

May 12th, 2008 - U.S.’ Response to Defendants Motion to Conduct Oral Argument

 

“[…] Comes the United States of America, by counsel, for its response to the motion of the Defendant, Steven D. Green, for oral argument regarding his Motion to Dismiss […] and Motion to Dismiss for Lack of Jurisdiction […]. In support of his motion, Green asserts that he is the first former soldier to be prosecuted in United States District Court for conduct which took place while he was serving in the military, and that his Motion to Dismiss and Motion to Dismiss for Lack of Jurisdiction raise issues of first impression before a federal court.

 

“The United States respectfully submits that oral argument is not necessary for the Court to resolve the issues raised in the Defendant’s two motions to dismiss. The issues have been extensively briefed by the parties. In addition, during a telephonic further proceeding conducted in connection with the entry of the Court’s pretrial scheduling order, the issue of setting specific dates for oral argument was expressly discussed by the parties, and rejected by the Court as unnecessary, the Court indicating that it would schedule argument on motions if it deemed, in the Court’s discretion, oral argument to be helpful in ruling upon a particular issue.

 

“Finally, although prosecutions under the Military Territorial Jurisdiction Act, 18 U.S.C. § 3261, such as this are by no means routine, Green is not the only former soldier to be prosecuted in United States District Court under MEJA, nor are his motions to dismiss issues of first impression before a federal court. […]”

 

April 30th, 2008 - Motion to Conduct Oral Argument

 

“[…] Comes the defendant, by counsel, and moves the Court to conduct oral arguments regarding the defendant’s Motion to Dismiss (R. 92) and Motion to Dismiss for Lack of Jurisdiction (R. 99).

 

“As grounds for said motion, the defense submits the following: PFC Green is being prosecuted under The Military Extraterritorial Jurisdiction Act, 18 U.S.C. § 3261 (MEJA). To the best of the defense counsels’ knowledge, PFC Green is the first soldier or former soldier to be prosecuted under MEJA. He is also the first soldier or former soldier to be prosecuted in a United States’ civilian court for conduct that allegedly took place while serving in the military within a war zone.

 

“The defense’s Motion to Dismiss and Motion to Dismiss for Lack of Jurisdiction address this Court’s jurisdiction over this case under MEJA. The defense respectfully submits that many of the issues involved in these motions are ones of first impression before a Federal court. As such, the defense believes that oral argument may assist the Court in deciding these motions.

 

“Wherefore, the defense respectfully requests the Court to schedule oral argument on the defendant’s Motion to Dismiss […] and Motion to Dismiss for Lack of Jurisdiction […]. […]”

 

April 22nd, 2008 - Reply to United States’ Response to Motion to Dismiss

 

“[…] The discovery also shows that on March 12, 2006, after the alleged crimes were committed, Sgt. Yribe led an investigating team that included Cortez and Barker to the scene. On the same day, Green confessed his involvement to Yribe while they were in the presence of Barker. The following day, Green again confessed to Yribe in the presence of Barker. By not reporting Green’s actions, Sgt. Yribe, Sgt. Cortez, and Spec. Barker violated Article 134 of the UCMJ, Misprision of serious offense. Green arguably proceeded in a manner that would have immediately subjected him to the UCMJ but it was the criminal acts of Yribe, Cortez, and Barker that led to the failure to prosecute Green under the UCMJ at or near the time of the charged offenses. The criminal conduct of other persons cannot be the decisive factor in determining in which of two criminal justice systems a defendant is to be prosecuted. Such an anomalous result is a clear violation of due process.

 

“Lastly, the post-crime events that enabled the United States to acquire jurisdiction in federal court were initiated by military personnel - not by defendant Green. Thus, it can hardly be claimed that the government is treating him fairly when he - and he alone - is subjected to a much harsher judicial system than that faced by his co-defendants. The coverup by Yribe, Cortez, and Barker is a blatant manipulation of the military justice system. It created a jurisdictional hook that did not exist when the crimes where committed and is the sole predicate for federal court jurisdiction. Unlike his superiors, PFC Green took no affirmative steps to avoid prosecution under the UCMJ. It is therefore inconsistent with fundamental fairness and due process for the government to benefit from the wrongdoing of Yribe, Cortez, and Barker. Accordingly, the indictment must be dismissed.

 

“Conclusion - For the reasons set forth in his original motion and this reply, 18 U.S.C. §3261, on its face and as applied by the United States in this case, violates the separation-of-powers principle, the non-delegation doctrine, the Due Process Clause of the Fifth Amendment, and the Equal Protection Clause of the Fourteenth Amendment, as embodied in the Fifth Amendment. Accordingly, the indictment should be dismissed. […]”

 

April 18th, 2008 - Reply to U. S. Response to Motion to Dismiss for Lack of Jurisdiction

 

“[…] The United States’ response to Defendant’s motion to dismiss for lack of jurisdiction is in large part an attempt to minimize the impact of United States v. King, […]. In its response, the United States, in essence, characterizes the King holding as addressing a mere bureaucratic or administrative process that is steeped in paperwork. The prosecution first encourages this Court to overlook its holding because it would become federal precedent that would provide military authorities an opportunity to ‘comb through personnel regulations in order to challenge standard out-processing procedures ... in efforts to retain court-martial jurisdiction over discharged service members’ […]. The prosecution then encourages this Court to find that the Army did in fact comply with the discharge requirements mandated in King. […].

 

“[…] As argued in the Defendant’s original motion, the court in King recognized that the applicable statutes [10 U.S.C. §§ 1168(a) and 1169)] set forth three requirements for a proper early discharge. […]. When those three requirements are not met, there can be ‘no valid discharge.’ […] The requirement at issue in PFC Green’s case is whether he completed the ‘clearing’ process required under appropriate service regulations to separate him from military service.’ […]. The United States can call the ‘clearing process’ whatever it wants but the fact remains it is an essential element to a valid discharge and, for the reason stated in the Defendant’s motion to dismiss for lack of jurisdiction […] that requirement was not met in this case. […]”

 

April 18th, 2008 - Reply to U.S. Response to Motion to Declare Death Penalty Act Unconstitutional

 

“[…] The United States […] maintains that this aggravator is constitutional because the meaning of the word ‘substantial’ is easily understood by jurors and it serves the constitutionally narrowing function required of statutory aggravators. It can hardly be denied that whether a defendant’s actions amounted to ‘substantial’ planning is necessarily applied on a sliding scale because there is no specific or objective criteria by which to limit the scope of that aggravator. Two, different juries can consider the same evidence and arrive at different conclusions about whether the defendant’s planning was ‘substantial.’ The word ‘substantial’ is inherently capable of leading to inconsistent, and therefore arbitrary, results because there is no logical way to differentiate between those murders which involve substantial planning and those that do not. Thus, the word ‘substantial’ allows the jury to exercise unfettered discretion in determining whether the aggravator exists. The jury’s unchanneled discretion necessarily results in an arbitrary and capricious decision. The Court should therefore declare the Substantial Planning and Premeditation Aggravator unconstitutional. […]”

 

April 18th, 2008 - Reply to U.S. Response to Motion to Declare Lethal Injection Unconstitutional

 

“[…] Comes the defendant, Steven Dale Green, by counsel, and for his reply to the United States’ response to his motion to declare lethal injection unconstitutional, states as follows: The United States argues that defendant’s motion is not ripe for review because he has not yet been convicted of capital murder, sentenced to death, and exhausted his appeals. […]

 

“Defendant has raised this issue at the present time in order to avoid any future claim by the Government that a later challenge to the constitutionality of execution by lethal injection is merely a dilatory tactic. […]”

 

April 2nd, 2008 - Order

 

“[…] It has been brought to the Court’s attention that during the month of April, 2009, hotel rooms will be difficult to secure in the Paducah, Kentucky area due to the National American Quilt show. By joint agreement and motion of counsel, the jury trial set on April 13, 2009 is vacated. The Court will begin jury selection on April 6, 2009 at 9:00 a.m. CDT and the jury trial will begin on April 27, 2009 at 9:00 a.m. CDT. All other deadlines remain as scheduled. […]”

 

March 21st, 2008 - United States’ Response to Defendant’s Motion to Dismiss

 

“[…] Comes the United States, by counsel, and responds to defendant’s Motion to Dismiss. Green argues that the perceived ability of the United States to choose whether Green is tried in federal court or by court-martial is an unconstitutional delegation of legislative authority and violates equal protection and due process. However, given Supreme Court precedent and the statutory framework of MEJA and the UCMJ, the alleged constitutional deficiencies are unsupported and continued prosecution in federal court is appropriate.

 

“I. Facts - On February 16, 2005, Green enlisted in the U.S. Army, 101st Airborne Division, and became subject to the UCMJ. […] In September 2005, Green was deployed to Iraq. […] On April 14, 2006, his Company Commander, CPT John Goodwin, notified Green that Goodwin was initiating action to separate Green from the military for a personality disorder pursuant to Army Regulation (‘AR’) 635-200 5-13. […] On April 2, 2006, Brigade Commander, COL Todd Ebel, requested Green’s release from theater in Iraq on grounds of a discharge for personality disorder. […] After his arrival at Ft. Campbell, he was administratively out-processed […] and discharged on May 19, 2006 […].

 

“According to discovery provided to the defendant, approximately five weeks after Green’s discharge, U.S. Army command in Mahmoudiyah, Iraq, first received information that Green was involved in the rape and murder of an Iraqi family in Yousifiyah, Iraq. See Stmt. of LTC Thomas Kunk. Green’s co-conspirators, who were all still in the Army and subject to the UCMJ, were interviewed by the Army’s Criminal Investigation Division and criminally charged on June 6, 2006. […]

 

“Because Green was a civilian at the time, he was arrested on a federal criminal complaint on June 30, 2006. […] He made his initial appearance before Magistrate Judge James Moyer on July 6, 2006. […] He was later indicted for 16 counts of conspiracy, aggravated sexual abuse, premeditated murder, and firearm charges pursuant to MEJA, and an additional count of obstruction of justice under 18 U.S.C. 1512(c)(1). […]

 

“Green’s co-conspirators Cortez, Barker, and Spielman, all tried for rape and murder, were convicted by courts-martial. Cortez was sentenced to life without parole while Barker and Spielman were sentenced to life with possibility of parole; all three sentences were reduced pursuant to plea agreements to 100, 90, and 110 years imprisonment, respectfully. Although charged as principals, none were alleged to have actually murdered Mr. and Mrs. Al-Janabi or their minor daughters. All are eligible for parole in ten years.

 

“Nearly one year after his discharge, Green sought to reenlist. […] However, because he was discharged for a personality disorder, he is ineligible to reenlist absent a waiver. […] To date, Green has provided no reason to believe that he has resolved his personality disorder or that he could now offer the Army improved military performance. […]”

 

March 21st, 2008 - US’ Response to Defendant’s Motion to Dismiss for Lack of Jurisdiction

 

“[…] Comes the United States, by counsel, and responds to defendant’s Motion to Dismiss for Lack of Jurisdiction. Defendant attempts to avoid federal prosecution under the Military Extraterritorial Jurisdiction Act of 2000, 18 U.S.C. § 3261, et seq. (‘MEJA’), for lack of jurisdiction, claiming he is still subject to the Uniform Code of Military Justice (‘UCMJ’). To support this claim, Green contends that he did not complete the U.S. Army’s ‘clearing’ process and was therefore never discharged from the Armed Forces.

 

“Green’s argument is unsupported by the facts and the law. MEJA provides jurisdiction over Green’s alleged crimes because at the time he allegedly committed the offenses, he was a member of the Armed Forces subject to the UCMJ. However, MEJA limits federal prosecution of members of the Armed Forces unless the member is no longer subject to the UCMJ, or the member committed the offense with one or more other defendants, at least one of whom is not subject to the UCMJ.

 

“Prior to Green’s arrest and indictment in this case, he had been discharged from the U.S. Army. He received his discharge certificate, a final accounting of pay was made, and contrary to his assertions, he successfully completed Ft. Campbell’s clearing process for outgoing servicemembers. Because Green was discharged from the military, he is no longer subject to the UCMJ. Therefore, MEJA confers upon this Court federal jurisdiction over Green and his alleged offenses. For these reasons and those provided below, the motion should be denied.

 

“I. Facts - On February 16, 2005, Green enlisted in the U.S. Army, 101st Airborne Division, and became subject to the UCMJ. […] In September 2005, Green was deployed to Iraq. […] On April 14, 2006, his Company Commander, CPT John Goodwin, notified Green that Goodwin was initiating action to separate Green from the military for a personality disorder and ‘continued poor performance’ pursuant to Army Regulation (‘AR’) 635-200 5-13. […] On April 2, 2006, Brigade Commander, COL Todd Ebel, requested Green’s release from theater in Iraq on grounds of a discharge for personality disorder. […] After Green’s arrival at Ft. Campbell, he received orders dated May 9, 2006, which reassigned him to the U.S. Army transition point for transition processing, required him to complete the preseparation counseling checklist, and instructed him to contact the Army Career and Alumni Program Center (‘ACAP’). […] On May 11, 2006, Green received counseling on transition benefits and services and completed the preseparation counseling checklist. […] That same day, the Chief of Ft. Campbell’s In/Out Processing certified that Green had completed installation clearance and was scheduled for departure. […] His May 9th orders were stamped ‘Final Instalation Clearance’ on May 15, 2006. […] After receiving final pay, he was issued a Certificate of Discharge, which officially recorded his discharge from the U.S. Army as May 16, 2006. […]

 

“On June 30, 2006, Green was arrested on a federal criminal complaint. […] He was later indicted for 16 counts of conspiracy, aggravated sexual abuse, premeditated murder, and firearm charges pursuant to MEJA, and an additional count of obstruction of justice under 18 U.S.C. 1512(c)(1). […] The crimes of indictment were alleged to have been committed on March 12, 2006, in Mahmoudiyah, Iraq, while Green was still a member of the Armed Forces subject to the UCMJ. […]”

 

March 21st, 2008 - US’ Response to Defendant’s Motion to Declare Federal Death Penalty Act Unconstitutional (V)

 

March 21st, 2008 - US’ Response to Defendant’s Motion to Declare Lethal Injection Unconstitutional

 

“[…] Comes the United States, by counsel, for its response to the motion of the defendant, Steven D. Green, to declare lethal injection unconstitutional as a violation of the Eighth Amendment’s prohibition against cruel and unusual punishment. In his motion, Green argues that use of lethal injection under Kentucky’s execution protocol violates the Constitution. He relies primarily on the fact that the Supreme Court granted certiorari in the case of Baze v. Rees, 217 S. W. 3d 207 (Ky. 2006), to review whether Kentucky’s protocol violates the Eighth Amendment. The defendant’s motion should be rejected because his claim is not ripe and it is unsupported by any case law. […]”

 

March 21st, 2008 - US’ Response to Defendant’s Motion to Declare Federal Death Penalty Act Unconstitutional (IV)

 

“[…] Comes the United States, by counsel, for its response to the motion of the Defendant, Steven D. Green, to declare the Federal Death Penalty Act (FDPA), 18 U.S.C. § 3591 et. seq., unconstitutional and to strike the United States’ notice of intent to seek the death penalty as inadequate. Green’s motion is without merit.

 

“Green’s motion raises two issues. First, Green claims that the notice he received via the United States’ Notice of Intent to Seek the Death Penalty is insufficient. He provides no citation, however, to any case where a death penalty notice was dismissed on the grounds Green alleges in his motion. Second, Green claims the United States has improperly alleged four mental states in its notice of intent to seek the death penalty. This claim, too, is unsupported by any relevant case citation or legal authority. Consequently, Green’s motion should be denied. […]”

 

March 21st, 2008 - US’ Response to Defendant’s Motion to Declare Federal Death Penalty Act Unconstitutional (III)

 

“[…] Green argues that sentencing procedure in capital cases is inherently unconstitutional. In support, he has cited a handful of cases which set forth well-established principles of capital jurisprudence and attempts to connect those principles to various findings from the CJP. He fails, however, to make any link between the Federal Death Penalty Act and the cases he cited. In fact, absent from the entire thirty-page motion is a single citation to any case, at any level, declaring the death penalty unconstitutional based on CJP findings.

 

“Because the motion is devoid of pertinent case authority, the United States will not respond further, other than to note that Green’s arguments are of a type which should be directed to a different audience. The type of information he supplies is most suitable for consideration by a legislative body. […]”

 

March 21st, 2008 - US’ Response to Defendant’s Motion to Declare Federal Death Penalty Act Unconstitutional (II)

 

“[…] Comes the United States, by counsel, for its response to the motion of the Defendant, Steven D. Green, to declare the Federal Death Penalty Act (FDPA), 18 U.S.C. § 3591 et. seq., unconstitutional, to dismiss the statutory aggravating factors alleged in the indictment, and to dismiss the United States’ notice of intent to seek the death penalty. Green’s motion is without merit. A review of the defendant’s motion reveals no cite to any case declaring the FDPA to be unconstitutional on any basis, including those alleged in Green’s motion; no cite to any case dismissing aggravating factors for the reasons alleged by the defendant; and no cite to any case dismissing a notice by the United States of intent to seek the death penalty for the reasons alleged by the defendant. Consequently, Green’s motion should be denied. […]”

 

March 21st, 2008 - US’ Response to Defendant’s Motion to Declare Federal Death Penalty Act Unconstitutional (I)

 

March 6th, 2008 - United States’ Motion for Extension of Time

 

“[…] Comes the United States of America, by counsel, and moves the Court for an extension of time in which the United States must files its responses to Green’s motions raising various Constitutional challenges to jurisdiction, charges, and penalty in this case. Green’s eight motions were filed on February 15, 2008, and are voluminous.

 

“By Order of the Court entered December 18, 2007, the United States was given until Friday, March 7, 2008, in which to file its responses to Defendant’s motions. The United States respectfully requests an extension of time of two weeks, until Friday, March 21, 2008, in which to file its responses. Counsel for the United States has discussed this matter with counsel for Defendant Green and been advised that there is no objection to this request. […]”

 

February 15th, 2008 - Motion to Dismiss for Lack of Jurisdiction

 

“[…] Comes the defendant, by counsel, and moves the Court to dismiss the indictment for lack of jurisdiction. In support, the defense states as follows: The Defendant Is Subject to Prosecution under the UCMJ, Thus the Instant Prosecution under the MEJA Is Without Jurisdiction and Inappropriate[.]

 

“The charges herein arise out of alleged crimes committed on March 12, 2006, by five members of the United States armed forces while in an active combat zone in Yousifiyah, Iraq. Four of the defendants were still in the military when charges were brought. One, the defendant herein, had been discharged, according to the government, six weeks prior to being charged. […]”

 

February 15th, 2008 - Motion to Declare the Federal Death Penalty Act Unconstitutional (Arbitrary)

 

“[…] Comes the defendant, Steven Dale Green, by counsel, and moves the Court pursuant to the Fifth, Sixth, Eighth, and Fourteenth Amendments to the Constitution of the United States to declare the Federal Death Penalty Act (FDPA) unconstitutional because it is arbitrary; violates evolving standards of decency; and is applied in a fundamentally unfair manner. […]”

 

February 15th, 2008 - Motion to Declare the Federal Death Penalty Act Unconstitutional (Improper)

 

“[…] Comes the defendant, Steven Dale Green, by counsel, and moves the Court pursuant to the Fifth, Sixth, Eighth, and Fourteenth Amendments to the Constitution of the United States to declare the Federal Death Penalty Act (FDPA) unconstitutional and to strike the government’s notice of intent to seek the death penalty herein as improper and inadequate. […]”

 

February 15th, 2008 - Motion to Declare the Federal Death Penalty Act Unconstitutional (“Special Findings”)

 

“[…] Comes the defendant, Steven Dale Green, by counsel, and moves the Court pursuant to the Fifth, Sixth, Eighth, and Fourteenth Amendments to the Constitution of the United States, and Ring v. Arizona, 536 U.S. 584 (2002), to declare the Federal Death Penalty Act (FDPA) unconstitutional; dismiss the ‘special findings’ from the indictment herein; and strike the government’s notice of intent to seek the death penalty. […]”

 

February 15th, 2008 - Motion to Declare the Federal Death Penalty Act Unconstitutional (Irreconcilable)

 

“[…] Comes the defendant, Steven Dale Green, by counsel, and moves the Court pursuant to the Fifth, Sixth, Eighth, and Fourteenth Amendments to the Constitution of the United States to declare the Federal Death Penalty Act (FDPA) unconstitutional because the findings of the Capital Jury Project (CJP) are irreconcilable with death penalty jurisprudence since the decision in Furman v. Georgia, 408 U.S. 238 (1972). […]”

 

February 15th, 2008 - Motion to Declare Lethal Injection Unconstitutional

 

“[…] Comes the defendant, Steven Dale Green, by counsel, and moves the Court pursuant to the Eighth and Fourteenth Amendments to the Constitution of the United States to declare unconstitutional lethal injection as a means of execution because it amounts to cruel and unusual punishment. […]”

 

February 15th, 2008 - Motion to Declare the Federal Death Penalty Act Unconstitutional (Aggravators)

 

“[…] Comes the defendant, Steven Dale Green, by counsel, and moves the Court pursuant to the Fifth, Sixth, Eighth, and Fourteenth Amendments to the Constitution of the United States to declare the Federal Death Penalty Act (FDPA) unconstitutional; dismiss the statutory aggravators herein; and strike the government’s notice of intent to seek the death penalty. […]”

 

February 15th, 2008 - Motion to Dismiss

 

“[…] Comes the defendant, by counsel, and moves the Court pursuant to Article I, § 1; Article II, § 1, and Article III, § 1 of and the Fifth Amendment to the Constitution of the United States to dismiss the indictment herein on the ground that 18 U.S.C. § 3261, on its face and as applied by the United States in this case, is violative of the separation-of-powers principle; the nondelegation doctrine; and the Due Process Clause of the Fifth Amendment. […]”

 

The 2007 Steven Green Case File

 

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