UNITED STATES OF AMERICA WILLIAM MERRIWEATHER, JR....

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

UNITED STATES OF AMERICA )

v. ) CASE NO. 2:07-CR-243-RDP-JEO

WILLIAM MERRIWEATHER, JR. )

GOVERNMENT’S TRIAL MEMORANDUM

COMES NOW the United States of America, by and through its counsel,

Joyce White Vance, United States Attorney for the Northern District of Alabama,

and William G. Simpson, William R. Chambers, Jr., and Michael B. Billingsley,

Assistant United States Attorneys, and provides the Court with this trial

memorandum pertaining to the above-entitled and numbered case. This

memorandum is intended for the convenience of the Court and in no way binds or

limits the United States’ proof or arguments at trial or sentencing.

a. Procedural History

On June 27, 2007, a federal grand jury empaneled in Birmingham, Alabama,

returned a five-count indictment against William Merriweather, Jr., charging him

in Count One with Armed Bank Robbery with Death Resulting (18 U.S.C.

§§ 2113(a), (d), and (e)), in Count Two with Bank Robbery with Forced

FILED 2013 Dec-02 PM 02:48U.S. DISTRICT COURT

N.D. OF ALABAMA

Case 2:07-cr-00243-RDP-JEO Document 225 Filed 12/02/13 of 45

2

Accompaniment (18 U.S.C. §§ 2113 (a) and (e)), in Count Three with Using/

Carrying a Firearm During and in Relation to a Crime of Violence (18 U.S.C.

§ 924(c)(1)(A)), and in each of Counts Four and Five with Using/Carrying a

Firearm During a Crime of Violence with Death Resulting (18 U.S.C. §924(j)).

On July 13, 2007, Merriweather, accompanied by defense counsel Emory

Anthony, Jr., appeared at arraignment and entered a plea of not guilty. That same

day, the United States filed a motion requesting that the Court order Merriweather

to undergo an evaluation to determine both his competency to stand trial and his

mental state at the time of the offense. Doc. 4. At the direction of Magistrate Judge

John E. Ott, Merriweather was referred to the Bureau of Prisons for a mental

exam.1 Defense counsel did not object to the evaluation.

2

The defendant was designated to the U.S. Medical Center for Federal

Prisoners at Springfield, Missouri (FMC Springfield), arriving on November 2,

2007. He was evaluated there until January 14, 2008, after which Christina Pietz,

Ph.D., a staff psychologist and Merriweather’s chief evaluator, issued a formal

report and addendum. Dr. Pietz’s report set forth numerous observations

concerning Merriweather, all supporting her opinion that, notwithstanding his prior

extensive drug use and apparent anti-social personality, William Merriweather, Jr.,

1 Merriweather was first seen in September 2007 by Kimberly Svec Ackerson, Ph.D., a local forensic psychologist

retained by defense counsel. In a letter dated September 24, 2007, Dr. Ackerson related that she perceived indicators

of possible mental illness, but could not render a definite opinion regarding the defendant’s mental status at the time

because Merriweather refused to participate in psychological testing. She recommended a further evaluation be

conducted on an in-patient basis and at a facility where Merriweather could be observed twenty-four hours a day. 2 At the time, attorneys Emory Anthony, Jr., and Derrick K. Collins were serving as counsel for Merriweather.


3

was “competent to stand trial and make other decisions regarding his case.”

Forensic Report of Dr. Pietz at 15. In addition, Dr. Pietz opined that, at the time of

the offense, Merriweather “was not suffering from a mental illness such that he

was unable to appreciate the nature and quality or the wrongfulness of his acts.”

Forensic Addendum at 10. At the conclusion of the evaluation, Merriweather was

returned to the Northern District on February 19, 2008, and secured at the Jefferson

County Jail.

On June 3, 2008, the United States filed notice of intent to seek the death

penalty. Doc. 29.

No further reports concerning Merriweather’s mental status were made until

November 10, 2008, when defense counsel Richard S. Jaffe3 expressed his belief

that his client had significant mental issues, was psychologically

“decompensating,”4 and was not competent to assist in his defense. Mr. Jaffe

repeated his concerns on May 14, 2009, when he again informed counsel for the

government that Merriweather was “decompensating,” and having “conversations

in his head.”

3 In July 2008, seven months after the Springfield evaluation was complete, attorney Anthony sought to have

attorney Richard Jaffe appointed as “learned counsel” and to have himself designated as co-counsel. Doc. 32. In

August 2008, the Court granted a motion to appoint attorneys J. Derek Drennan and Derrick K. Collins as associate

counsel. Doc. 35. However, it was not until January 2009 that Messrs. Jaffe and Drennan were actually appointed by

the Court to represent Merriweather. That same day, Messrs. Anthony and Collins were designated as court-

appointed counsel. 4 “Decomposition” is a breakdown in the psychological defense mechanisms that help individuals maintain good

mental functioning. It may occur under stress or in mental disorders such as anxiety, depression, or psychoses with

hallucinations or delusions. THE ENCYCLOPEDIA OF MENTAL HEALTH 127 (1993).


4

On August 5, 2009, defense counsel filed a sealed, ex parte motion seeking

an order (1) declaring Merriweather currently incompetent to stand trial,

(2) requesting that Merriweather be remanded into the custody of the Attorney

General for placement at a federal health facility until competency was restored,

and (3) requiring that Merriweather be forcibly administered anti-psychotic and

mood-stabilizing medication if needed.5 Doc. 65. The motion, which essentially

sought a declaratory judgment under 18 U.S.C. § 4241 et seq., was premised

mainly on observations and recommendations gathered from various individuals,

including members of the defense team and two psychiatrists. This information,

counsel insisted, was sufficient by itself to warrant a finding that Merriweather

was, in fact, legally incompetent and in need of restorative care.

Five days later, during a telephone conference on August 10, 2009, the

United States requested that Merriweather undergo another mental evaluation by

the Bureau of Prisons, so that a more current, even-handed opinion could be

obtained before the Court rendered its decision regarding the defendant’s mental

status. The Court convened a hearing on the matter on August 20, 2009, and the

parties later submitted briefs. After considering the respective arguments and

applicable law, the magistrate judge issued an order on November 16, 2009,

directing that Merriweather be re-evaluated at the Federal Medical Center at

5 The request to force-medicate was not included in Merriweather’s motion, but was expressed by defense counsel

during an August 10, 2009, telephone conference with the court. This request was subsequently withdrawn.


5

Butner, North Carolina (FMC Butner). Doc. 79. At the insistence of defense

counsel, the Court also ordered that all interviews with Merriweather be

videotaped, and that the final report include input by a neuropsychiatrist and/or

neuropsychologist. In fulfilling the second requirement, Bureau of Prisons

personnel secured the services of two outside consultants - Thomas Gualtieri,

M.D., and Allan Mirsky, Ph.D.

Merriweather was admitted to FMC Butner on December 9, 2009, and

remained there for a period of 496 days until released on April 18, 2011. During

the intervening months, the defendant was subjected to a variety of psychological

testing and participated in a number of videotaped interviews. On April 1, 2011,

Dr. Bruce Berger, a staff psychiatrist and Merriweather’s lead evaluator, issued a

report in which he concluded that Merriweather “does currently possess the

capacity to understand his current charges, understands courtroom functioning, and

could, should he so choose, work affirmatively with his attorney in a rational

way…[and that] he is competent to proceed.” Berger Forensic Report at 10

(emphasis added).

On July 25, 2011, the District Court convened a hearing, pursuant to 18

U.S.C. §§ 4241(a) and (c), to take testimony on the issues surrounding

Merriweather’s competency to stand trial. Over the course of eight days, the Court

heard from several government witnesses, including four mental health experts


6

(Drs. Pietz, Berger, Gualtieri, and Landis), two nurses (Diana Shirley and Kelly

Hammonds), and two corrections officers (Tim Laatsch and Eugene Singleton).

The defense countered with seven witnesses, including three mental health experts

(Drs. Merikangas, Mirsky, and Dudley), a legal “expert” (Mr. Jack Earley), a jail

psychiatrist (Dr. Robert Hunter),6 Merriweather’s sister (Kim Patton), and

Merriweather’s former girlfriend (Latisha Simpson). Merriweather did not testify.

In addition, the Court received a total of 106 exhibits from the parties. Briefs and

proposed findings of fact were subsequently filed the United States, Docs. 152,

153, 157, and by the defense, Docs.155, 156.

On February 5, 2013, the Court issued an order, Doc. 161, supported by a

comprehensive memorandum opinion, Doc. 160, finding Merriweather competent

to stand trial and denying the defendant’s August 5, 2009, ex parte motion (Doc.

65).7

On August 2, 2013, the Court issued an order setting Merriweather’s trial to

commence January 13, 2014. Doc. 173. This was followed by two additional

orders on September 17 and September 23, 2013, setting pretrial deadlines for

various matters, including, but not limited to, motions in limine, jury instructions,

and trial memoranda. Docs. 179, 180.

6 Dr. Hunter did not testify as an expert witness.

7 On September 24, 2013, Merriweather filed a motion asking the Court to reconsider its ruling on competency. Doc.

181. The motion was subsequently denied without prejudice. Doc. 185.


7

Immediately following the announcement of the pretrial schedule, defense

counsel began filing a series of motions, attacking Dr. Peitz and Dr. Berger and

demanding that the Court’s competency determination be set aside and a new

competency hearing be ordered.

The first of these motions was filed on September 24, 2013, when counsel

for Merriweather requested, inter alia, that the Court set aside its February 2013

competency finding (Doc. 160) and reopen the competency (“Pate”) hearing,

based on recently (and belatedly) disclosed documents received from FMC Butner,

which the defense contended called into question the opinions previously

expressed by Dr. Berger in 2011 (“Berger I”). Two days later, following an in-

chambers status conference, the Court issued an Order (Doc. 185) directing the

United States to provide Dr. Berger with copies of the documents at issue and to

obtain from him an affidavit outlining how, if at all, the newly-disclosed records

would impact his opinion regarding Merriweather’s competency to stand trial. On

October 4, 2013, the government complied with the Court’s Order (Doc. 189);

hours later, defense counsel responded with a motion urging the Court to exclude

Dr. Berger’s affidavit from consideration. Doc. 190. On October 21, 2013, the

Court denied in toto defendant’s requests for relief. Doc. 201.

While the parties were addressing the Berger I motion, defense counsel, on

September 30, 2013, filed notice, pursuant to Rule 12.2(a) and (b), of


8

Merriweather’s intent to rely upon the defense of insanity at the time of the offense

and his intent to introduce expert testimony relating to a mental disease or defect or

mental condition of the defendant that bears upon the issue of guilt. Doc. 183.

The following day (October 1, 2013), Merriweather filed another motion,

seeking to suppress the mental evaluation conducted by Dr. Pietz at FMC

Springfield. Doc. 186. The government filed a written response (Doc. 194), and a

hearing was convened on October 15, 2013. At the conclusion of the proceedings,

the Court orally denied Merriweather’s motion to suppress, reserving evidentiary

rulings until trial and directing that Dr. Pietz refrain from offering her opinion

regarding Merriweather’s state of mind based solely on her initial findings in 2008.

Hearing Tr. at 51.8

In response, the United States filed a motion, pursuant to Rule 12.2, to have

Merriweather reexamined by Dr. Pietz. Doc. 196. On October 19, 2013, the

magistrate judge issued an order granting the government’s motion without

opposition from the defense. Doc. 198 (emphasis added).

Two days later, Merriweather responded with a motion asking the magistrate

judge to reconsider his ruling granting the government’s motion for reevaluation,

and advising the court of his intent to withdraw his notice under Rule 12.2(b) and

8 In explaining this ruling, the Court stated, in part, “there won’t be any evidence from Dr. Pietz that she reached an

opinion in January of 2008 that the Defendant was sane.” Hearing Tr. at 51. The Court added, “I’m saying that she

can rely on information that she garnered in the competency portion of her examination but [cannot] bolster her

opinion by saying I’ve already reached this opinion before…. [S]he cannot reference the fact that she expressed an

opinion before that is consistent with her opinion now.” Id. at 53.


9

to proceed only under Rule 12.2(a). Doc. 199. On October 30, 2013, the District

Court affirmed the magistrate judge’s ruling granting the government’s request for

reevaluation, but modified the order deleting any reference to a specific facility

designation. Doc. 204. On November 1, 2013, Merriweather arrived at FMC

Springfield so that Dr. Pietz could update Merriweather’s sanity assessment.

Meanwhile, on October 28, 2013, in a further bid to set aside the court’s

finding of competency, defense counsel filed a second motion9 attacking the

testimony of Dr. Bruce Berger (“Berger II”), based on the receipt of even more

documents that had not been timely disclosed by FMC Butner, which, in counsels’

view, further undercut Dr. Berger’s assessment of Merriweather’s competency to

stand trial. Doc. 203. The government, at the Court’s direction, filed a responsive

pleading on November 6, 2013. Doc. 208. Six days later, counsel for Merriweather

filed a reply to the government’s response. Doc. 209. The ruling on defendant’s

motion remains pending as of this date.

Pursuant to the Court’s pretrial scheduling Order, defense counsel filed a

notice of intent to offer expert evidence of mental condition at sentencing on

November 15, 2013. Doc. 211. Documents supporting this notice were received

subsequently by the government’s “taint” team headed by AUSA Brad Felton.10

9 Merriweather’s filing actually sets out eight separate, though interrelated, motions.

10 AUSA Felton filed notice of appearance on November 13, 2013.


10

Three days later, on November 18, 2013, the government filed a motion,

asking that the Court release a transcript and recording of an ex parte hearing

previously held with the defendant to Dr. Pietz to be used as part of her ongoing re-

evaluation of Merriweather at FMC Springfield. Doc. 214. The following day,

defense counsel filed a response, objecting to the government’s request. Doc. 216.

Then, on November 22, 2013, Magistrate Judge Ott held an in-chambers

conference with counsel, along with Dr. Pietz, who participated via telephone.

Because of concerns expressed by Dr. Pietz regarding Merriweather’s current

manner of presentation, defense counsel subsequently filed a motion on November

27, 2013, asking that the Court prohibit Dr. Pietz from conducting any further

criminal responsibility evaluation, and that Merriweather be immediately re-

assessed for competency to stand trial. Doc. 222. At this time, the issue remains

unresolved.

On December 2, 2013, the United States filed its Trial Memorandum, in

accordance with the Court’s scheduling order. In addition, the government filed a

motion seeking to amend its Notice of Intent to Seek the Death Penalty. Doc. 224.

b. Pending Charges

In Count One of the Indictment, Merriweather is charged with Armed Bank


11

Robbery with Death Resulting, in violation of Title 18, United States Code,

Sections 2113(a), (d), and (e), which provide, in part:

(a) Whoever, by force and violence, or by intimidation takes, or

attempts to take, from the person or presence of another…any

money…belonging to or in the care, custody, control,

management, or possession of, any bank11

…shall be fined

[$250,000] or imprisoned no more than twenty years, or both.

(d) Whoever, in committing, or in attempting to commit, any

offense defined in subsection[] a…of this section, assaults any

person, or puts in jeopardy the life of any person by use of a

dangerous weapon or device, shall be fined [not more than

$250,000] or imprisoned not more than twenty-five years, or

both.

(e) Whoever, in committing any offense defined in this

section,…kills any person,…shall be punished by death or life

imprisonment.

To convict Merriweather of this charge, the United States must prove

beyond a reasonable doubt each of the following elements:

1. Merriweather knowingly took money possessed by a federally insured

bank from or in the presence of a person;

2. Merriweather did so by means or force and violence or by means of

intimidation;12

11

The term “bank” includes any institution the deposits of which are insured by the Federal Deposit Insurance

Corporation. 18 U.S.C. § 2113(f). 12

Where an indictment charges in the conjunctive several means of violating a statute, a conviction may be obtained

on proof of only one of the means, and the jury instruction may properly be framed in the disjunctive. See United

States v. Cornillie, 92 F.2d 1108, 1110 (11th Cir. 1996) (court properly charged force and violence or intimidation,

though indictment alleged force and violence and intimidation.


12

3. Merriweather assaulted someone and/or put someone’s life in jeopardy

by using a dangerous weapon while stealing the money; and

4. In committing the armed robbery, Merriweather killed another person.

A “federally insured bank” means any bank whose deposits are insured by

the Federal Deposit Insurance Corporation.

To take “by means of intimidation” is to say or do something in a way that

would make an ordinary person fear bodily harm. The heart of the crime is taking

money or property by using intimidation. It does not matter whether the victim was

actually scared or whether the defendant’s behavior was violent enough to cause

terror, panic, or hysteria as long as an ordinary person in the victim’s position

would have felt a threat of bodily harm by the defendant’s conduct.

An “assault” may be committed without actually touching or hurting

another person. An assault occurs when a person intentionally attempts or threatens

to hurt someone else, and has an apparent and immediate ability to carry out the

threat, such as by pointing or brandishing a dangerous weapon.

A “dangerous weapon” includes any object that a person can use to inflict

serious harm on someone else.

To “put someone’s life in jeopardy by using a dangerous weapon” means

to expose someone else to a risk of death by using a dangerous weapon.


13

Count Two charges Merriweather with committing the crime of Bank

Robbery with Forced Accompaniment, in violation of Title 18, United States Code,

Sections 2113(a) and (e), which provide, in part:

(a) Whoever, by force and violence, or by intimidation, takes, or

attempts to take, from the person or presence of

another…money belonging to, or in the care, custody, control,

management, or possession of, any bank…shall be fined [not

more than $250,000] or imprisoned not more than twenty years,

or both.

(e) Whoever,…in avoiding or attempting to avoid apprehension for

the commission [of any offense in this section], forces any

person to accompany him without the consent of such person,

shall be imprisoned not less than ten years.13

To sustain its burden, the United States must prove beyond a reasonable

doubt each of the following elements:

1. While attempting to avoid being arrested for committing the bank

robbery charged in Count One of the Indictment, Merriweather forced at

least one person, Myron Gooding, to accompany him; and

2. The other person, Myron Gooding, did not voluntarily consent to

accompany Merriweather.

To force another person to do something without “voluntary consent” is to

compel the person to act against his will through the use of intimidation or threats

of harm.

13

Although Merriweather may be convicted under multiple subsections of § 2113 (e.g., Armed Bank Robbery and

Bank Robbery with Forced Accompaniment), he may be sentenced on only one. United States v. Lail, 814 F.2d 1529

(11th Cir. 1987); Sullivan v. United States, 485 F.2d 1352, 1352-54 (5th Cir. 1973).


14

To force a victim to “accompany” Merriweather means to force the victim

to move with the defendant from one place to another rather than being forced to

move alone or with someone other than the defendant.

The crime requires a forced movement of some substance or significance in

the company of the defendant, more than some small or trivial movement. But a

substantial or significant movement does not have to involve leaving the premises,

covering a particular distance, lasting a particular amount of time, or producing

any particular level of fear in the victim. What the government must prove beyond

a reasonable doubt is that the victim’s forced movement in the defendant’s

company was of some substance or significance and a trivial or insignificant

movement. Eleventh Circuit Pattern Jury Instructions, Criminal, Offense

Instruction No. 76.4 (2010); see also United States v. Bauer, 956 F.2d 239, 241–

42 (11th Cir. 1992) (To sustain a conviction under §2113(e), government does not

have to show that the defendant and hostage crossed a property line or traversed a

particular number of feet, or that the hostage was placed in a certain quantum of

danger or was held against his will for a particular time).

In Count Three, the indictment charges Merriweather with Using and

Carrying a Firearm During and in Relation to a Crime of Violence, in violation of

Title 18, United States Code, Section 924(c)(1)(A), which, in part, states:

[A]ny person who, during and in relation to any crime of

violence…for which the person may be prosecuted in a court of the


15

United States, uses or carries a firearm,…shall, in addition to the

punishment provided for such crime of violence…- (i) be sentenced to

a term of imprisonment of not less than 5 years.14

To sustain a conviction, the United States must prove beyond a reasonable

doubt the following elements:

1. Merriweather committed the crime of violence charged in Count One of

the indictment;

2. Merriweather knowingly used or carried a firearm;15

and

3. Merriweather used or carried the firearm in relation to the crime of

violence.

A “firearm” is any weapon designed to or readily convertible to expel a

projectile by the action of an explosive. The term includes the frame or receiver of

any such weapon or any firearm muffler or silencer.

To “use” a firearm means more than a mere possession and more than

proximity and accessibility; it requires active employment of the weapon as by

brandishing or displaying it in some fashion.

14

Merriweather’s indictment was returned in 2007, long before the Supreme Court rendered its decision in United

States v. Alleyne, 133 S. Ct. 2151 (2013), which deems any fact that increases the mandatory minimum punishment

for an offense under § 924(c) to be an element that must be submitted to the jury and proven beyond a reasonable

doubt. Because the indictment charges Merriweather with “using and carrying,” his punishment under Count Three

is capped at five years, which, in accordance with 18 U.S.C. § 924(c)(1)(D)(ii), shall run consecutively to any other

sentence imposed. 15

See United States v. Rolon, 334 Fed. App’x. 314, 326–27 (11th Cir. 2011) (court properly charged use or carry,

though indictment alleged use and carry); United States v. Simpson, 228 F.3d 1294, 1300 (11th Cir. 2000) (same).


16

To “carry” a firearm is to have a firearm on one’s person or control a

firearm in a way that makes it available for immediate use while committing the

violent crime.

To use or carry a firearm “in relation to” a crime means that there must be a

firm connection between the defendant, the firearm, and the violent crime. The

firearm must have helped with some important function or purpose of the crime,

and not simply have been there accidentally or coincidentally. Eleventh Circuit

Pattern Jury Instructions, Criminal, Offense Instruction No. 35.2 (2010).

Finally, in Counts Four and Five, Merriweather is charged with Using or

Carrying a Firearm During and in Relation to a Crime of Violence with Death

Resulting, in violation of Title 18, United States Code, Section 924(j), which, in

part, states:

A person who, in the course of a violation of subsection (c), causes

the death of a person through the use of a firearm, shall - (1) if the

killing is a murder (as defined in section 1111), be punished by death

or by imprisonment for any term of years or for life;…16

For Merriweather to be convicted of this offense, the United States must

prove beyond a reasonable doubt the following elements:

1. Merriweather committed the crime of violence charged in Count One of

the indictment, bank robbery;

16

18 U.S.C. § 924(j) is a separate offense, not just a sentencing factor; consequently, it is not governed by the

prohibition of concurrent sentences found in § 924(c)(1)(D)(ii). United States v. Julian, 633 F.3d 1250, 1251 (11th

Cir. 2011).


17

2. Merriweather used or carried a firearm during and in relation to the said

bank robbery;

3. In the course of committing the bank robbery, Merriweather caused the

death of the named victim by the use of the firearm;

4. Merriweather caused the death with malice aforethought; and

5. Merriweather did so with premeditated intent.17

See generally 18 U.S.C. §§ 924(j), 1111(a); United States v. Foster, 507 F.3d 233,

245 (4th Cir. 2007) (death resulting in drug trafficking offense); United States v.

Winston, 55 Fed. App’x. 289, 300–01 (6th Cir. 2003) (death resulting in drug

trafficking offense).

An offense under § 924(j) incorporates only those definitions contained in

subsection (a) of § 1111, and not the additional matters set out in subsection (b).

Thus, the government is not required to prove under § 1111(b) that the murder

occurred “within the special maritime and territorial jurisdiction of the United

States.” Instead, the jurisdictional requirement for a § 924(j) offense is found in

and incorporated from § 924(c) (“[A]ny person who, during and in relation to a

crime of violence or drug trafficking crime...for which the person may be

prosecuted in a court of the United States…”). United States v. Young, 248 F.3d

260, 274–75 (4th Cir. 2001).

17

Because of the specific wording used in Counts Four and Five of the indictment, the government believes that in

proving the two 924(j) offenses, it is obliged to establish, under 18 U.S.C. § 1111(a), the elements of premeditated

murder rather than felony murder.


18

To kill with “malice aforethought” is to intend to take someone else’s life

deliberately and intentionally, or to willfully act with callous and wanton disregard

for human life. It does not matter whether the defendant hated the victim or felt

any ill will toward the victim at the time. But the government must prove beyond a

reasonable doubt that the defendant intended to kill or willfully acted with callous

and wanton disregard for the consequences, knowing that a serious risk of serious

bodily harm or death would result. Eleventh Circuit Pattern Instructions, Criminal,

Offense Instruction No. 45.1 (2010). Malice aforethought is defined as “an intent,

at the time of the killing, willfully to take the life of a human being, or an intent

willfully to act in callous and wanton disregard to the consequences of human

life.” United States v. Jaimes-Santibanez, 349 Fed. App’x. 462, 464 (11th Cir.

2009) (quoting United States v. McRae, 593 F.2d 700, 703–04 (5th Cir. 1979)).

The jury, in determining the presence of malice, “should consider all of the facts

and circumstances preceding, surrounding, and following the killing as shown by

the evidence of the case.” McRae, 593 F.2d at 704. Furthermore, the law permits

the jury to find malice aforethought, in the absence of explanatory or mitigating

circumstances, simply from the use of a gun, which is a deadly weapon per se. Id.

at 704–05.

To kill with “premeditated intent” is to kill in cold blood after the accused

has had time to think over the matter and formed the intent to kill. There is no


19

exact amount of time that must pass between forming the intent to kill and the

killing itself, but it must be enough for the killer to be fully conscious of having the

intent to kill. Id. Whether the defendant commits the murder with premeditation is

a jury question. United States v. Blue Thunder, 604 F.2d 550, 553 (8th Cir. 1979).

Relevant evidentiary factors to be considered in determining the existence of

premeditation can be summarized as follows:

On the basis of events before and at the time of the killing, the trier of

fact will sometimes be entitled to infer that the defendant actually

premeditated and deliberated his intentional killing. Three categories

are important for this purpose: (1) facts about how and what the

defendant did prior to the actual killing which showed he was engaged

in activity directed toward the killing, that is planning activity; (2)

facts about the defendant’s prior relationship and conduct with the

victim from which motive may be inferred; and (3) facts about the

nature of the killing from which it may be inferred that the manner of

killing was so particular and exacting that the defendant must have

intentionally killed according to a preconceived design.

Id. (citing W. LAFAVE & A. SCOTT, JR., CRIMINAL LAWS § 73 at 564 (1972)).

Even where there is no proof of motive, a jury generally is permitted to infer

premeditation from the fact that the defendant brought the deadly weapon to the

scene of the murder. Id. at 554.

c. Overview of the Federal Death Penalty Act

The Federal Death Penalty Act (FDPA) is codified in 18 U.S.C. §§ 3591-

3598. To be eligible for the death penalty under the Act, a defendant must first be

found guilty of a death-penalty-eligible crime beyond a reasonable doubt by a


20

unanimous jury. 18 U.S.C. §3591(a)(2). Bank Robbery with Death Resulting and

Using/Carrying a Firearm During the Course of a Violent Crime with Death

Resulting are death-penalty-eligible crimes. See 18 U.S.C. §§ 2113(a), (d), (e); 18

U.S.C. §§ 924(c), (j).

After finding a defendant guilty of a death-eligible crime, the jury must

make several findings before it may consider imposing the death penalty. First, it

must find the existence of at least one of four statutory mens rea requirements. 18

U.S.C. § 3591(a)(2). The law provides, in part, that the death penalty may be

imposed if it is proved beyond a reasonable doubt at a hearing that the defendant

(A) intentionally killed the victim;

(B) intentionally inflicted serious bodily 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 for human life and the victim died as a

result of the act.

Id.

If the jury finds one of the mens rea requirements beyond a reasonable

doubt, it must then find at least one of sixteen statutory aggravating factors exists


21

beyond a reasonable doubt. See 18 U.S.C. § 3592(c). At the conclusion of the list,

the FDPA provides that the jury “may consider whether any other aggravating

factor for which notice has been given exists.” Id. These “other” factors are

generally referred to as “non-statutory” aggravating factors. The Act requires the

government, at a reasonable time before trial, to file a notice stating that a sentence

of death is justified and setting forth the aggravating factor or factors it intends to

rely on to justify a death sentence. 18 U.S.C. § 3592(a). Thus, a defendant is

subject to a death sentence only if the jury finds beyond a reasonable doubt that

(1) the defendant is guilty of a death-penalty-eligible crime, (2) the defendant

possessed the necessary mens rea, and (3) at least one statutory aggravating factor

exists. 18 U.S.C. § 3591(a).

The next phase in a capital proceeding is the sentencing hearing. This

hearing is conducted either before a jury or, with the consent of the parties, before

the court. 18 U.S.C. § 3593(b). At the sentencing hearing, the Federal Rules of

Evidence do not apply; however, the court may exclude information if its probative

value is outweighed by the danger of creating unfair prejudice, confusing the

issues, or misleading the jury. 18 U.S.C. § 3593(c). The government bears the

burden of proving any aggravating factor beyond a reasonable doubt. Id. The

defendant, on the other hand, is only required to prove the existence of any


22

mitigating factor by a preponderance of the evidence. Id. The FDPA further

provides

[a] finding with respect to a mitigating factor may be made by 1 or

members of the jury, and any member of the jury who finds the

existence of a mitigating factor may consider such factor established

for purposes of this section regardless of the number of jurors who

concur that the factor has been established. A finding with respect to

any aggravating factor must be unanimous.

Id.

While it is necessary that the aggravating factors be proven beyond a

reasonable doubt, the FDPA provides no guidance as to whether the jury must find

beyond a reasonable doubt that the aggravating factors outweigh the mitigating

factors. 18 U.S.C. § 3593(e). The Act merely states that

the jury…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.

Id.

Based on this consideration, the FDPA requires the jury to return a

recommendation as to “whether the defendant should be sentenced to death, life

imprisonment without possibility of release, or some lesser sentence. Id. A jury’s

recommendation of a sentence of death or life without release is binding on the

court. 18 U.S.C. § 3594; see United States v. Mayhew, 380 F. Supp. 2d 936, 941

(S.D. Ohio 2005) (noting that although § 3593(e) uses the word “recommend” in


23

describing the jury’s decision to impose a death sentence, § 3594 indicates that the

court “shall” sentence in accordance with the jury’s verdict).

d. The Government’s Statutory Aggravating Factors

The government has alleged, both in the Indictment and in its Notice of

Intent to Seek the Death Penalty (NOI),18

four statutory aggravating factors, in

accordance with 18 U.S.C. § 3592. See Doc. 1 at 6; Doc. 29 at 3 - 4.19

These

include:

(1) Grave Risk of Death to Additional Persons: 18 U.S.C. § 3592(c)(5)

provides that a jury may consider as an aggravating factor whether “[t]he

defendant, in the commission of the offense, or in escaping apprehension for the

violation of the offense, knowingly created a grave risk of death to 1 or more

persons in addition to the victim[s] of the offense.” This aggravator applies, for

example, to bystanders who were not shot, but were nearby and within the zone of

danger created by the shooting. See, e.g., United States v. Le, 327 F. Supp. 2d 601,

613 (E.D. Va. 2004) (denying defendant’s motion to strike aggravator where

government intended to show shooting occurred in the presence of a large crowd in

a public place). A “grave risk of death” means a “significant and considerable

possibility under the circumstances that existed at the time that another person

18

On December 2, 2013, the government filed a motion seeking to amend its original NOI, by including the phrase

“or attempted to kill” after the word “killed” in the sentence appearing directly below the heading “Multiple Killings

and Attempting Killings,” and by deleting the non-statutory aggravating factor of Contemporaneous Convictions. 19

The FDPA and the Constitution require that the defendant receive notice of the aggravating factors the

government intends to rely on to justify the death penalty, not notice of the specific evidence that will be used to

support it. United States v. LeCroy, 441 F.3d 914, 930 (11th Cir. 2006).


24

could be killed.” United States v. Allen, 247 F.3d 741, 786–87 (8th Cir. 2001),

vacated on other grounds, 536 U.S. 953 (2002); United States v. Barnette, 211 F.3d

803, 819 (4th Cir. 2000) (defining “grave risk of death” as a “significant and

considerable possibility” of placing others in a “zone of danger”). In the case at

bar, the United States intends to establish that the “risk of death” aggravator

applies both in relation to Myron Gooding, whom Merriweather used as a human

shield while attempting to escape from the bank, and to customers, workmen, and

bank employees (other than those who were shot) who were inside the bank and in

close proximity to Merriweather during the period of time the defendant repeatedly

fired his pistol.

(2) Pecuniary Gain: 18 U.S.C. § 3592(c)(8) provides that a jury may

consider as an aggravating factor whether “[t]he defendant committed the offense

as consideration for the receipt, or in the expectation of the receipt, of anything of

pecuniary value.” This aggravating factor contains two separate prongs, as the

“consideration” and “expectation” clauses are different ways by which the

pecuniary gain factor may be satisfied. United States v. Brown, 441 F.3d 1330,

1370 (11th Cir. 2006). The first clause covers killings committed “as consideration

for the receipt” of anything of pecuniary value, such as in a case of murder-for-

hire. Id. The second clause covers cases including robbery, where the defendant

commits a concomitant murder “in expectation of the receipt of anything of


25

pecuniary value.” Id. The expectation of pecuniary gain must arise from the

murder itself, and not from the robbery. Id. at 1372. The United States submits that

this factor is applicable in Merriweather’s case, as the jury can reasonably find that

the killings the defendant perpetrated were necessary so that he could complete the

robbery of the bank, which, obviously, carried with it the expectation of pecuniary

gain. Id. at 1371.

(3) Substantial Planning and Premeditation: Section 3592(c)(9)

authorizes the jury to consider as an aggravating factor whether “[t]he defendant

committed the offense after substantial planning and premeditation to cause the

death of a person….” The phrase “substantial planning and premeditation” refers

to the murder, not to any other offenses that accompanied or preceded the murder.

United States v. Taylor, No. 1:04-CR-160, 2009 WL 311138 (E.D. Tenn. Feb. 6

2009) (citing United States v. Webster, 162 F.3d 308, 325 (5th Cir. 1998)).

“Substantial planning” does not require “considerably more planning than is

typical,” but rather it means “considerable” or “ample” for the commission of the

crime. United States v. McCullah, 76 F.3d 1087, 1110–11 (10th Cir. 1996); see

also United States v. Matthews, 246 F. Supp. 2d 137, 148 (N.D.N.Y. 2002) (to fall

within § 3592(c)(9), the jury must find a considerable amount of planning and

premeditation as opposed to little planning and premeditation). It is the

government’s theory that Merriweather intended to kill one or more tellers in an


26

effort to obtain immediate control of the bank, and, thereby, facilitate the robbery.

Thus, a rational jury can conclude that all of the planning Merriweather undertook

before the robbery (e.g., obtaining a firearm, secreting his vehicle away from the

bank, devising a route to take to avoid detection and aid escape, and changing his

appearance) was done, in part, to facilitate the murders of Eva Hudson and Sheila

Prevo.

(4) Multiple Killings or Attempted Killings: In § 3592(c)(16), the

FDPA authorizes the jury to consider as an aggravating factor the fact that “[t]he

defendant intentionally killed or attempted to kill more than one person in a single

criminal episode.” Unlike the “grave risk” factor, which covers individuals who

were not the victims, but were within the zone of danger, the “multiple killings”

factor relates to actual victims of the offense. United States v. Mayhew, 380 F.

Supp. 2d 936, 948 n.15 (S.D. Ohio 2005); Le, 327 F. Supp. 2d at 613. Thus,

despite the fact that these two factors are based on the same criminal episode, they

are not duplicative. Le, 327 F. Supp. 2d at 613. Moreover, there is nothing wrong

with allowing the jury during the sentencing phase to consider crimes for which the

defendant has been found guilty beyond a reasonable doubt. United States v. Lentz,

225 F. Supp. 2d 666, 669 (E.D. Va. 2002). “[T]he jury may take into account as an

aggravating factor the circumstances of the crime, even if such information

necessarily duplicates elements of the underlying offense, so long as that factor is


27

not duplicative of another aggravating factor.” Id. (quoting United States v.

Johnson, 136 F. Supp. 2d 553, 559 (W.D. Va. 2001)). This factor, the government

submits, is applicable in the instant case, for the evidence will show that

Merriweather sought to murder four bank tellers on the day of the robbery by

aiming his pistol at the head of each teller and firing it at point-blank range. In the

event, he killed two of his victims and seriously wounded the other two. His

conduct, therefore, resulted in multiple killings or attempted killings.

e. The Government’s Non-Statutory Aggravating Factors

In addition to the foregoing statutory factors, the United States, in its

amended NOI,20

lists two non-statutory factors, in accordance with 18 U.S.C §

3593(a)(2). They include the following:

(1) Future Dangerousness of the Defendant: The United States has

alleged as an aggravating factor the future dangerousness of the defendant, in

accordance with 18 U.S.C. § 3593(a)(2). The jury’s consideration of future

dangerousness has been approved by the Supreme Court, which has recognized

that a defendant’s future dangerousness “bears on all sentencing determinations

made in our criminal justice system.” Simmons v. South Carolina, 512 U.S. 154,

162 (1994). In Merriweather’s case, the government has provided some added

20

Because non-statutory aggravating factors do not increase the available punishment to which a defendant might be

subjected, they are not required to be alleged in the indictment. Le, 327 F.Supp.2d at 615 (citing United States v.

Higgs, 353 F.3d 281, 299 (4th

Cir. 2003)).


28

specificity with regard to this factor, although it is not required to,21

referencing in

its Notice certain criminal acts perpetrated by the defendant following his arrest in

the instant case. This includes acts of violence committed by Merriweather since

being incarcerated for the instant offenses, and his attempted escape from custody

on at least one occasion. See Notice of Intent, p. 5. Much of the defendant’s

conduct supporting these allegations was captured on video tape at two Jefferson

County jail facilities. The evidence, therefore, possesses a high degree of

reliability. Furthermore, when it comes to admissibility, it is of no consequence

that Merriweather has not been convicted of these criminal acts. Conduct for which

a defendant has not been adjudicated may be considered in support of aggravating

factors, such as future dangerousness. United States v. Williams, No. 4:08-cr-

00070, 2013 WL 1335599 at *35 (M.D. Pa. Mar. 29, 2013). Because the evidence

here is factually straightforward and easily understood, it is unlikely to confuse the

issues, mislead the jury, or result in unfair prejudice to the defendant. See 18

U.S.C. § 3593(c)(authorizing the court to utilize a balancing test when determining

admissibility of evidence during sentencing phase).

(2) Victim Impact Evidence: The United States will also offer as an

aggravating factor information bearing on victim impact. The FDPA expressly

authorizes the use of this type of evidence in the sentencing phase. 18 U.S.C. §

21

See LeCroy, 441 F.3d at 930.


29

3593(a). The Supreme Court has determined that there is no per se constitutional

bar on victim impact evidence in capital sentencing. Payne v. Tennessee, 501 U.S.

808, 827 (1991). The High Court expanded this holding in Jones v. United States,

527 U.S. 373 (1999), which held that victim impact evidence, presented in a

federal capital case, is not overly broad if it effectively narrows the class of murder

defendants eligible for the death penalty by “direct[ing] the jury to the individual

circumstances of the case. Id. at 402. Although the Supreme Court in Jones

conceded that “every murder will have an impact on the victim’s family and

friends,” it found that “even though the concepts of victim impact and victim

vulnerability may be relevant in every case, evidence of victim vulnerability and

victim impact in a particular case is inherently individualized.” Id. at 401-02.

Thus, it concluded that “such evidence is surely relevant to the selection phase

decision, given that the sentence should consider all of the circumstances of the

crime in deciding whether to impose the death penalty.” Id.

In Merriweather’s case, the government’s NOI indicates that it will present

evidence concerning, inter alia, the victims’ personal characteristics, as well as the

loss, injury, and harm Merriweather caused the victims, the victims’ families, and

the victims’ employer and colleagues. Because this evidence will help inform the

jury about the individual circumstances of this case, it is constitutionally

permissible and should be admitted.


30

f. Summary of the Facts

On Monday, May 14, 2007, the West Bessemer branch of Wachovia Bank,

located at 1094 9th Avenue Southwest, Bessemer, Alabama, opened at

approximately 9:00 a.m. That day, the following employees were working in the

locations shown below in the diagram of the bank’s interior:

Employee Position Location

Latressa Bonner teller window # 1

Eva Hudson teller window # 2

Sheila Prevo teller window # 3

Anita Gordon teller window # 4

Tamanuel Eaton teller window # 5

Latoya Freeman teller drive-thru window

Myron Gooding branch manager kiosk at end of teller line

Regina McGuire lending officer corner office


31

Shortly after the front doors opened, several regular customers entered the bank.

As depicted in the diagram, customer Chris Chappell22

was at Latressa Bonner’s

window (# 1) getting change, customer Tracey Oliver was at Eva Hudson’s

window (#2) making a deposit, and customer Rosie Kelley was at Tamanuel

Eaton’s window (# 5) addressing an issue concerning her account. Also in the bank

at the time were Central Lighting Services employees Mario Moore and Angel

Sanchez, who were there to work on the bank’s lights.

According to Mr. Moore, moments after he and Mr. Sanchez arrived at the

bank, he noticed a man, later identified as William Merriweather, Jr., wearing a

green baseball-style cap, white shirt,23

tie, and slacks, walking in the direction of

the bank down an embankment on a dirt path from a wooded area near a cell tower.

Mr. Moore stated that he held the door open for Merriweather as they walked

inside the branch. Upon entering, Mr. Moore and Mr. Sanchez immediately

proceeded to Myron Gooding’s desk to discuss the work they were to perform.

When Merriweather entered the bank, he proceeded in the general direction

of the customer waiting line in front of the teller windows, holding a cell phone to

his ear as though he were engaged in a conversation. Shortly thereafter, and

without saying a word, Merriweather walked up behind Tracey Oliver, brandished

a 9mm pistol, and shot two tellers, Eva Hudson and Sheila Prevo, in the head. Ms.

22

On August 4, 2007, Chris Chappell was killed in a bulldozer accident. 23

Merriweather’s shirt, in fact, was light blue, not white.


32

Prevo died instantly; Ms. Hudson died shortly thereafter due to exsanguination.24

Moving steadily to his right, Merriweather eventually got behind the teller line,25

grabbed Latoya Freeman, and proceeded down the inside of the teller line toward

the drive-thru window, looking for the vault and demanding the vault key and

money.26

Merriweather and Ms. Freeman eventually returned to the teller line,

stopping a few feet from the vault. As Merriweather stood there repeating his

demands, Anita Gordon stood up, produced a set of keys, and attempted to hand

them to him. When she did, Merriweather shot her in the face at point-blank range.

He then turned his gun on Ms. Freeman, who was standing close by with her hands

held in a defensive posture, and fired one shot at her head. The bullet was deflected

when it struck Ms. Freeman in the hand, taking off part of her right index finger.

Though seriously wounded, both women survived Merriweather’s attack. With two

tellers dead and two others in immediate need of medical assistance, Merriweather

24

When the shooting began, customers Chris Chappell and Tracey Oliver ran out the front door; a third customer,

Rosie Kelley, fell to the floor near the vault and played dead; lending officer Regina McGuire, who was in her office

talking on the phone, slid down under her desk; tellers Anita Gordon and Latoya Freeman crouched under Gordon’s

work station; two other tellers, Latressa Bonner and Tamanuel Eaton, ran into separate bathrooms and locked the

doors; bank manager Myron Gooding got down behind his desk; Mario Moore secreted himself inside a utility

closet; and his partner, Angel Sanchez, hid behind a tall shred bin. 25

How Merriweather got behind the teller line remains in question. He either vaulted over a teller’s work station (as

recalled by Mario Moore) or rounded the counter and entered from the far right-hand side through a gate that was

most likely closed at the time. 26

According to some eyewitness accounts, Merriweather fired his pistol three times before getting inside the teller

line.


33

turned his attention from killing to stealing, as he walked past the teller windows,

grabbing approximately $11,255 in cash and stuffing it inside a plastic bag.27

With the money in hand, Merriweather then attempted to leave the bank.

However, as he approached the front door, Chris Chappell immediately confronted

him. Mr. Chappell had darted out the door when the shooting began, and had run to

the side of his car, where he removed a pistol from his pocket and awaited

Merriweather’s exit. Also waiting for Merriweather to emerge from the bank were

several deputy sheriffs, including Deputies Rhea and Sorenson, who had just

arrived on the scene and taken up covered positions in the parking lot. Seeing Mr.

Chappell and the deputies, the defendant immediately moved away from the door

and returned to the lobby.

He then walked over to the right side of the bank, where he found Myron

Gooding, the manager, crouched down on the floor behind his desk. Merriweather

grabbed Mr. Gooding and forced him to the front door. The two then emerged

from the bank, with Merriweather using Mr. Gooding as a human shield.

Holding his gun to Mr. Gooding’s head, Merriweather forced his hostage

into the parking lot, turned left, and began to inch his way down the side of the

building heading in the direction from which he had originally come. After getting

to the northwest corner of the building, the defendant tripped, allowing

27

At the time of the robbery, there were thousands of dollars laying in plain view on the counters at some of the

teller windows. Merriweather could easily have taken this money without injuring anyone simply by demanding it or

grabbing the cash himself.


34

Mr. Gooding to separate from him and run away. Then, as Merriweather attempted

to regain his footing, Deputy Rhea fired one shot, striking the defendant in the leg

and groin area and putting him on the ground. Merriweather was immediately

handcuffed and searched. Deputies took from the defendant’s pockets a cell phone,

a box cutter, and a large amount of U.S. currency. The bag containing other money

Merriweather had stolen from the bank was found a short distance from where he

fell. Also recovered in close proximity were other items belonging to the

defendant, including his pistol (which had been kicked several feet away by

police), the green ball cap he had been wearing, a pair of sunglasses, and a tracking

device Merriweather had inadvertently taken from the bank. As the defendant was

being secured, police noticed that Merriweather had wrapped electrical tape around

portions of his shoes.

Merriweather was transported to UAB Hospital for treatment. About three

hours later, he was released and taken to jail. The defendant was subsequently

interrogated by police and the FBI. During a lengthy, tape-recorded interview,

Merriweather made some incriminating statements, but did not fully confess his

crimes.28

Subsequent investigation revealed that shortly before nine o’clock on the

morning of the robbery, Merriweather drove his father’s pickup truck to a business

28

The government does not intend to offer this statement, which was played during Merriweather’s 2011

competency hearing.


35

located about three-tenths of a mile from the bank. After backing into a parking

space, the defendant exited the vehicle and walked to the bank by way of a

partially secluded and densely forested path. Police later recovered the pickup

truck with the assistance of Merriweather’s father, who had lent his truck to the

defendant about four or five weeks before the robbery. After obtaining the father’s

verbal consent, agents searched the truck before having it towed to police

headquarters. Inside they found a number of items, including a shirt bearing the

word “security” printed on the front, back, and sleeves, a black and green baseball-

style cap, and two empty holsters.

According to reports obtained from family members and others,

Merriweather had shaved his head and eyebrows just days before the robbery,

thereby substantially altering his appearance.

At the time of the offense, Wachovia was insured by the FDIC.

g. Evidentiary Issues

(i) Photographs

During the investigation of this case, federal agents, local law enforcement

officials, and others took a number of photographs, including, but not limited to,

post-robbery color photos of victims Eva Hudson, Sheila Prevo, and Anita Gordon,

pictures taken during the course of two autopsies, and images of the defendant

being treated by paramedics following his arrest. A number of these photographs


36

will be offered by the government during the course of the guilt and/or sentencing

phases of the trial. While some of the photos show depictions that are somewhat

graphic, the government submits that these images are not so disturbing as to be

unduly prejudicial, and that the Court should allow these photos to be seen and

considered by the jury. See United States v. DeParias, 805 F.2d 1447, 1453–54

(11th Cir. 1986) (rejecting a Rule 403 challenge to photographs of the “badly

decomposed corpse” of the homicide victim) (overruled on other grounds); United

States v. McRae, 593 F.2d 700, 707 (5th Cir. 1979) (rejecting a Rule 403 challenge

to “gross, distasteful, and disturbing” photographs of a murder victim and death

scene because the photographs were not “flagrantly or deliberately gruesome

depictions” of the crime).

As with other evidentiary issues, the admission of photographs is a matter

committed to the sound discretion of the court. United States v. Brown, 441 F.3d

1330, 1362 (11th Cir. 2006). The trial court’s ruling will not be disturbed unless

there is an abuse of discretion shown. United States v. Smith, 459 F.3d 1276, 1295

(11th Cir. 2006). In determining admissibility of photographic evidence, the court

is to employ a balancing test - one that weighs relevancy with against unfair

prejudice. DeParias, 805 F.2d at 1453–54. Evidence is considered relevant if it has

“any tendency to make the existence of any fact that is of consequence to the


37

determination of the action more probable or less probable than it would be

without the evidence.” FED. R. EVID. 401.

In cases involving homicide, photographs of victims are relevant in showing

the identity of the victim, the manner of death, the murder weapon, or any other

element of the crime. DeParias, 805 F.2d at 1453. Furthermore, admission of

photographic evidence is proper even though the government has introduced other

evidence, such as the testimony of the medical examiner, to establish cause of

death. The law “does not mandate exclusion merely because some overlap exists

between the photographs and other evidence. The admission of [ ] photographs in

addition to the testimony of the coroner hardly constitutes such a needless

accumulation of evidence as to amount to an abuse of discretion.” Brown, 441 F.3d

at 1363 (quoting DeParias, 805 F.2d at 1454). A defendant’s willingness to

concede certain facts does not render the government’s photographic evidence

irrelevant. United States v. Patrick, 513 Fed. App’x. 882, 887 (11th Cir. 2013).

Absent exceptional circumstances, “the prosecution is entitled to prove its case by

evidence of its own choice” and a “criminal defendant may not stipulate or admit

his way out of the full evidentiary force of the case as the Government chooses to

present it.” United States v. Old Chief, 519 U.S. 172, 186 - 87 (1997); United

States v. Bowers, 660 F.2d 527, 530 (5th Cir. Unit B 1981) (that defendant


38

stipulated to cause of death does not preclude offering photographic evidence

showing same).

Although relevant, photographs of murder victims can be extremely

prejudicial. DeParias, 805 F.2d at 1453. Under Rule 403 of the Federal Rules of

Evidence, evidence that is otherwise relevant may be properly excluded if “its

probative value is substantially outweighed by the danger of unfair prejudice. Rule

403, however, is an extraordinary remedy; the district court should invoke it

sparingly, with the balance struck in favor of admissibility. Patrick, 513 Fed.

App’x. at 886; Brown, 441 F.3d at 1362; DeParias, 805 F.2d at 1454.

As applied to criminal defendants, the term unfair prejudice “speaks to the

capacity of some concededly relevant evidence to lure the fact-finder into declaring

guilt on a ground different from proof specific to the offense charged.” Old Chief,

519 U.S. at 180. Rule 403 acts to exclude evidence of “scant or cumulative

probative force, dragged in by the heels for the sake of its prejudicial effect.”

United States v. King, 713 F.2d 627, 631 (11th Cir. 1983) (citing McRae, 593 F.2d

at 707). “It is not designed to permit the court to ‘even out’ the weight of the

evidence, to mitigate a crime, or to make a contest where there is little or none.” Id.

Thus, Rule 403 obligates the trial judge to “look at the evidence in a light most

favorable to admission, maximizing its probative value and minimizing its undue

prejudicial impact.” United States v. Lopez, 649 F.3d 1222, 1247 (11th Cir.


39

2011).29

The court’s discretion to exclude evidence under Rule 403 is narrowly

circumscribed. Smith, 459 F.3d at 1295; see also McRae, 593 F.2d at 707 (“Unless

trials are to be conducted on scenarios, on unreal facts tailored and sanitized for the

occasion, the application of Rule 403 must be cautious and sparing.”).

(ii) Surveillance Camera Recording

The United States intends to offer a portion of a video recording taken by an

ADT surveillance camera mounted on the side of the Bessemer Business Center,

where Merriweather parked his father’s truck minutes before perpetrating his

crimes. The images show a blue-green Ford Ranger pickup truck pulling up to the

side of the building at approximately 8:46 a.m. and backing into a parking space

located in close proximity to the wooded trail Merriweather is believed to have

taken on his way to the bank. The truck, with its keys still in the ignition, was

found in the same location one week later, and was recovered by law enforcement

agents with the assistance of Mr. Merriweather, Sr.

Although the defendant’s face was not captured on the recording, additional

evidence will establish that the truck belonged to the defendant’s father and that

the defendant was in possession of it on the morning in question. Evidence

contained on the recording is relevant for a myriad of reasons, including, but not

29

The Court may wish to utilize a limiting instruction when admitting some of the more vivid images. A sample

instruction can be found in Baxter v. Thomas, 45 F.3d 1501, 1509 n.18 (11th Cir. 1995) (“Certain photos were

admitted for the purpose of showing the injuries which were inflicted upon the victim as part of the offense charged

and to show the manner in which the victim was bound. And anything in the photographs that appear[s] not to

illustrate any issue in this case should not inflame you or cause prejudice against the defendant.”).


40

limited to, (1) demonstrating the means by which Merriweather facilitated his

transportation to the bank and his anticipated means by which to flee the area after

the murders and robbery; (2) pinpointing the approximate time of his arrival in the

area; (3) providing circumstantial evidence that Merriweather used a secluded trail

situated next to the parking lot by which to approach the bank unobserved; and

(4) establishing evidence of Merriweather’s planning, premeditation, and absence

of cognitive infirmity.

The authentication of recorded evidence is governed by the Federal Rules of

Evidence, which, in part, provide that “to satisfy the requirement of

authentication…, the proponent must produce evidence sufficient to support a

finding that the item is what the proponent claims it is.” FED. R. EVID. 901(a). The

preferred method for admitting tapes requires proof of the competence of the tape

machine operator, the fidelity of the equipment, the absence of any alterations to

the tape, and the identity of the speakers. United States v. Richardson, 764 F.2d

1514, 1524 (11th Cir. 1985); United States v. Biggins, 551 F.2d 64, 66 (5th Cir.

1977). This evidentiary foundation, however, is not a rigid foundation for

admission; the trial court has broad discretion in determining whether to allow a

recording to be played before the jury. Richardson, 764 F.2d at 1524; Biggins, 551

F.2d at 66. The trial judge’s decision to admit the evidence is not to be sacrificed to

a formalistic adherence of the [Biggins] standard. Biggins, 551 F.2d at 67. Indeed,


41

“‘the presentation of independent evidence of the accuracy of the…recordings

admitted at trial,’ or circumstantial proof of reliability, can satisfy Biggins.” United

States v. Stephens, 202 F. Supp. 2d 1361, 1367 (N.D. Ga. 2002) (citing Biggins,

551 F.2d at 67).

Federal decisions indicate that recordings made by surveillance equipment

that functions automatically - in that no human being actually witnessed what the

camera recorded while the camera was recording it - may satisfy the requirements

of the rules of evidence, provided a witness testifies as to the type of equipment or

camera used, its general reliability, the quality of the recorded product, the process

by which it was focused, or the general reliability of the entire system. Stephens,

202 F. Supp. 2d at 1367. Under this type of authentication, sometimes referred to

as the “silent witness” model, the admissibility of a video is based on the reliability

of the process by which it is made. See FED. R. EVID. 901(b)(9) (evidence

describing a process or system and showing that it produces an accurate result).

For example, in United States v. Taylor, 530 F.2d 639 (5th Cir. 1976), the appeals

court upheld the trial judge’s authenticity determination in a bank robbery case,

even though the evidence at issue, captured by a bank camera after all of the

potential witnesses were locked in a vault, could not be independently verified by

any of the witnesses present at the scene of the crime. Rather than using these

witnesses, the government instead offered the testimony of witnesses not present at


42

the crime scene, who testified as to the installation of the film, the operation of the

camera, and the chain of custody. Id. at 641–42. Similarly, in United States v.

Rembert, 863 F.2d 1023 (D.C. Cir. 1988), the appellate court affirmed the lower

court’s ruling admitting a series of surveillance photographs taken by a closed-

circuit video camera at an ATM, despite the inability of the government to offer a

witness who could personally verify that the pictures fairly and accurately depicted

the scene and events at the time of the crime. Id. at 1028–29.

In this case, the government will authenticate the video tape recording

through an ADT employee, who will provide testimony concerning the type of

recording equipment used and its general reliability, in accordance with Rule

901(b)(9).

(iii) Chain of Custody

Some of the physical evidence the government will offer was handled by a

number of individuals, including police officers, federal agents, and laboratory

technicians. The government submits that calling to the witness stand each and

every person associated with each and every item of evidence offered would be an

unnecessarily time-consuming and inefficient exercise. Accordingly, the United

States will endeavor to establish a sufficient, albeit not complete, chain of custody

for each piece of evidence presented. This, however, should not affect

authentication. Gaps in the chain of custody affect only the weight of the evidence,


43

not its admissibility. United States v. Ramirez, 491 Fed. App’x. 65, 73 (11th Cir.

2012); United States v. Roberson, 897 F.2d 1092, 1096 (11th Cir. 1990).

(iv) Demonstrative Aid

With the Court’s permission, the United States intends to use throughout the

trial a scale model of the West Bessemer branch of Wachovia Bank, where

Merriweather perpetrated his crimes on May 14, 2007. The model, which depicts

both interior and exterior aspects of the building and measures approximately 4 ½

feet long by 4 feet wide, will be used to assist witnesses in describing and

demonstrating to the jury the witnesses’ locations and movements throughout the

bank during the course of the robbery; the locations and movements of other

individuals they observed at or about the same time; the route Merriweather took

as he attempted to elude capture; and the locations and movements of individuals

discovered by law enforcement officials immediately following the robbery. The

government plans to identify this replica with an exhibit label and use it only as a

demonstrative aid. The exhibit will not be offered into evidence unless agreed upon

by the defense.

The use of demonstrative aids throughout a trial is becoming increasingly

common. United States v. Burt, 495 F.3d 733, 740 (7th Cir. 2007). “Demonstrative

aids take many forms, including duplicates, models, maps, sketches and diagrams,

and computer-generated pedagogic aids.” Id. (citing KENNETH S. BROUN,


44

MCCOMICK ON EVIDENCE § 212 (2006)). Unless admitted under Rule 1006 of the

Federal Rules of Evidence, pedagogical aids may be presented to the jury, though

not admitted into evidence, under Rule 61130

if they are consistent with the

evidence and not misleading.31

United States v. Buck, 324 F.3d 786, 791 (5th Cir.

2003). The jury should be instructed that the exhibit is not to be considered as

evidence, but only as an aid in evaluating the evidence. Id. The decision to allow

demonstrative aids rests in the sound discretion of the court. Burt, 495 F.3d at 740.

The government anticipates its case-in-chief lasting approximately 3½ to 4

days.

Respectfully submitted on this the 2nd

day of December, 2013.

JOYCE WHITE VANCE

United States Attorney

/s/ William G. Simpson

WILLIAM G. SIMPSON

Assistant United States Attorney

/s/ William R. Chambers, Jr.

WILLIAM R. CHAMBERS, JR.


/s/ Michael Billingsley

MICHAEL B. BILLINGSLEY


30

Fed.R.Evid. 611(a) provides, in part, that “[t]he court should exercise reasonable control over the mode and order

of examining witnesses and presenting evidence so as to: (1) make those procedures effective for determining the

truth.” 31

See Fed.R.Evid. 403.


45

CERTIFICATE OF SERVICE

This is to certify that a copy of the foregoing has been electronically filed

with the Clerk of Court, Northern District of Alabama, on this the 2nd

day of

December, 2013, using the CM/ECF filing system, which will send notification of

said filing to all counsel of record.

/s/ William G. Simpson

WILLIAM G. SIMPSON



UNITED STATES OF AMERICA WILLIAM MERRIWEATHER, JR....

Documents

Transcript of UNITED STATES OF AMERICA WILLIAM MERRIWEATHER, JR....