The opinion of the court was delivered by: Emmet G. Sullivan, United States District Judge
MEMORANDUM OPINION AND ORDER
Pending before the Court is defendant's Motion for Order Barring the Government from Seeking the Death Penalty. The issue presented to the Court is whether the government may seek Mr. Safarini's execution pursuant to a judicially-fashioned amalgam of the Anti-Hijacking Act of 1974 ("Title 49" or "air piracy statute"), which in 1986 was codified at 49 U.S.C. § 1472 and 1473, and the Federal Death Penalty Act of 1994 ("FDPA"), 18 U.S.C. § 3591 et seq.
The defendant argues that the FDPA does not apply to homicides committed before its effective date and that retroactively applying the statute to him in connection with a crime he allegedly committed in 1986 would violate the Ex Post Facto Clause, art. I, § 9, cl. 3, of the United States Constitution. The government concedes that, as written, the FDPA would run afoul of Ex Post Facto principles if applied to defendant. Nevertheless, it counters that, because the provisions of the FDPA, viewed in toto, are ameliorative, and because the FDPA can be rendered entirely ameliorative by means of certain judicially-fashioned adjustments, application of the Act is constitutionally permissible.
The Court has considered the parties' motions, oppositions, replies and oral arguments, as well as the statutory and case law governing the issues. For the following reasons, the Court concludes that defendant's Motion for Order Barring the Government from Seeking the Death Penalty is GRANTED.
Summary of Government Allegations
This prosecution arises from the hijacking of Pan Am flight 73 in Karachi, Pakistan, on September 5, 1986, by four gunmen allegedly led by Mr. Safarini. The plane was hijacked while it was still on the tarmac boarding passengers. There were approximately 379 passengers and crew members aboard the plane, including an estimated 78 U.S. citizens. The pilot, co-pilot and engineer escaped while the hijackers were taking control of the aircraft, thereby grounding the plane. While dictating the movements of the passengers and crew, defendant allegedly instructed flight attendants to procure the passports of those aboard the plane in an effort to identify American citizens. The defendant allegedly demanded that the plane be flown to Larnaca, Cyprus and, to emphasize the seriousness of his request, held Mr. Rajesh Kumar, an American citizen, at gunpoint. Mr. Kumar was shot in the head, and his body thrown out of the plane and onto the tarmac.
Following Mr. Kumar's murder, radio communications were established between the plane and the control tower. The defendant allegedly began negotiations on behalf of the hijackers with Pakistani authorities.
When the auxiliary power unit supplying power to the plane failed, the hijackers herded the passengers and crew members into the center of the aircraft, causing some passengers to land on top of others. Allegedly at Mr. Safarini's signal, the hijackers opened fire on the passengers by tossing hand grenades into the crowd and spraying it with automatic weapons fire. Nineteen passengers were killed during the course of the assault, including a second American citizen, Surendra Patel. More than one hundred other passengers were injured.
The defendant was shot in the crossfire during the final assault and, as a consequence, taken to a hospital. He was later found wearing a belt laden with explosives.
__Mr. Safarini was tried jointly with his four co-defendants in Pakistan in 1987 for charges arising from the detailed events. Each defendant was convicted and sentenced to death, though each sentence was subsequently commuted to a life sentence. On August 29, 1991, a one-hundred and twenty-six count indictment against Mr. Safarini was returned under seal by a grand jury in the United States District Court for the District of Columbia. The defendant was released from Pakistani custody on September 27, 2001 and captured by the FBI en route to Jordan.
The defendant has remained in custody in the District of Columbia since October 2001. On August 28, 2002, a grand jury in the U.S. District Court for the District of Columbia returned a superceding indictment charging Mr. Safarini and his four co-defendants with ninety-five federal offenses. The indictment identified five potential capital counts alleging violations of Title 18 (Counts Five, Six and Seven) and Title 49 (Count Eight)
On September 18, 2002, defendant filed the pending Motion for Order Barring the Government from Seeking the Death Penalty on Ex Post Facto Grounds. On December 12, 2002, the government filed both a Notice of Intent to Seek the Death Penalty relating solely to Count Eight of the superceding indictment and a response to defendant's motion. A hearing on the pending motion was held on February 12, 2003.
At the time of the crime charged, 49 U.S.C. § 1472, defining the offense of "air piracy," required that the offender be punished "by death if the verdict of the jury shall so recommend." (emphasis added.) The sentencing procedures for imposing the death penalty under § 1472, codified at § 1473(c), provided that "the court shall sentence the defendant to death" if the prosecution established one or more statutory aggravating factors and if the defendant failed to establish one of a list of five possible mitigating factors. Def.'s Mot. at 25. The role of the jury pursuant to Title 49's sentencing scheme was limited to determining, by a preponderance of the evidence, whether the specified aggravating and mitigating factors existed. If the jury found a statutory aggravating factor, death followed automatically. See 49 U.S.C. App. § 1473(c)(7) (1982). If a statutory mitigating factor ...