U.S. v. Fell, 2:01-CR-12-01.
| Decision Date | 24 September 2002 |
| Docket Number | No. 2:01-CR-12-01.,2:01-CR-12-01. |
| Citation | 217 F.Supp.2d 469 |
| Court | U.S. District Court — District of Vermont |
| Parties | UNITED STATES of America v. Donald FELL |
William B. Darrow, Asst. U.S. Attorney, Gregory Lane Waples, Office of the United States Attorney, District of Vermont, Burlington, VT, for U.S.
Alexander Bunin, Gene Primono, AFPD, Office of the Federal Public Defender, Albany, NY, for Donald Fell.
In two motions Defendant Donald Fell has moved this Court to declare the Federal Death Penalty Act of 1994 ("FDPA" or the "Act") unconstitutional. For the reasons that follow, Fell's motions (Docs. 44 and 65) are granted on the ground that the FDPA's § 3593(c)'s direction to ignore the rules of evidence when considering information relevant to death penalty eligibility is a violation of the Due Process Clause of the Fifth Amendment and the rights of confrontation and cross-examination guaranteed by the Sixth Amendment.
Donald Fell was indicted on four counts arising out of the abduction and murder of Teresca King in late November 2000. Counts 1 and 2 charge Fell with carjacking and kidnapping, both with death resulting. These two counts are charged as capital crimes. On January 30, 2002, the government filed a Notice of Intent to Seek Death Penalty.
On July 8, 2002 the grand jury returned a superseding indictment charging the same four offenses as the original indictment. In addition, however, the superseding indictment contained a "Notice of Special Findings" alleging that Fell's conduct met the threshold culpability factors specified in 18 U.S.C.A. § 3591(a)(2) (West 2000), and that three statutory aggravating factors, §§ 3592(c)(1), (6) and (16), also applied to the crimes charged. The statutory aggravating factors described in the superseding indictment are (1) that Fell caused the death of King during the commission of the crime of kidnapping, § 3592(c)(1); (2) that Fell's behavior was especially heinous, cruel or depraved in that it involved serious physical abuse to King, § 3592(c)(6); and (3) that Fell intentionally killed or attempted to kill more than one person in a single criminal episode, § 3592(c)(16).
Also on July 8, 2002, the government filed a Supplemental Notice of Intent to Seek Death Penalty, giving notice of four non-statutory aggravating factors that it proposes to prove as justifying a sentence of death in this case. These factors are (1) that Fell participated in King's abduction to facilitate his escape from the area in which he and an accomplice had committed a double murder; (2) that he participated in King's murder to prevent her from reporting the kidnapping and carjacking; (3) that King's murder was part of substantial premeditation involved in committing the crime of carjacking; and (4) that Fell caused loss, injury and harm to King and her family. These non-statutory aggravating factors were not submitted to the grand jury.
Fell's first motion seeks a declaration that the FDPA is unconstitutional because (1) it fails to avoid sentences of death for the factually and legally innocent; (2) the FDPA's sentencing scheme is incomprehensible to a jury, in violation of the Fifth and Sixth Amendments; (3) the FDPA fails to narrow adequately the class of persons eligible for the death penalty, in violation of the Eighth Amendment; (4) the relaxed evidentiary standard applicable to the penalty phase of trial renders any findings unconstitutional; (5) the indictment fails to charge a capital crime (6) a jury's consideration of non-statutory aggravating factors permits the arbitrary and capricious imposition of a sentence of death, in violation of the Eighth and Fourteenth Amendments; (7) the FDPA's delegation to the government of the power to define aggravating factors violates separation of powers principles and the nondelegation doctrine, in violation of Article I, § 1; (8) its delegation to the government of the power to define non-statutory aggravating factors after the crime but before trial violates the ex post facto clause; (9) the FDPA is internally inconsistent, precluding the use of non-statutory aggravating factors; (10) the use of nonstatutory aggravating factors without providing for proportionality review is unconstitutional; (11) the death penalty is under all circumstances cruel and unusual punishment in violation of the Eighth Amendment; (12) the death penalty violates binding international law.
In Fell's supplemental motion, filed July 23, 2002, he argues that the reasoning of the United States Supreme Court in the recently decided Ring v. Arizona, 536 U.S. ___, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), mandates a finding that the FDPA is unconstitutional, and that the special findings be struck from the superseding indictment.
This Court concludes that the FDPA cannot withstand constitutional scrutiny through the lens of the Jones, Apprendi, Ring line of decisions. The issues raised by the application of these decisions' reasoning to the FDPA are discussed more fully below. Although some of the other issues raised by the defense may have legal merit, see, e.g., United States v. Quinones, 205 F.Supp.2d 256 (S.D.N.Y.2002) (), in view of the disposition of the Ring issues, the Court does not address them at this time.
Capital punishment as the penalty for the commission of certain federal crimes is as old as the nation itself. That the government could, under certain circumstances, deprive an individual of life was recognized when the Bill of Rights was drafted, in the language of the Fifth Amendment: "[n]o person shall be held to answer for a capital ... crime, unless on ... indictment of a Grand Jury, ... nor shall any person ... be deprived of life, ... without due process of law." U.S. Const. Amend. 5. In 1790 the First Congress enacted a comprehensive Act for the Punishment of certain Crimes Against the United States that among other things defined the crimes of treason, murder, piracy and forgery, and specified that the penalty upon conviction was death. Act of April 30, 1790, ch. 9, §§ 1-14, 1 Stat. 112-115; see also Furman v. Georgia, 408 U.S. 238, 304, 92 S.Ct. 2726, 33 L.Ed.2d 346 (Brennan, J. concurring).
Also as old as the nation is the recognition that "death is a different kind of punishment from any other which may be imposed in this country." Gardner v. Florida, 430 U.S. 349, 357, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977); see Furman, 408 U.S. at 306, 92 S.Ct. 2726 (Stewart, J. concurring) (). The need for more rigorous or scrupulous procedure when considering the imposition of a sentence of death has accompanied that recognition. See Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976) (plurality op.). For example, the First Congress specified that in cases of treason or other capital crimes an accused receive a copy of the indictment and a list of the jurors and witnesses, have the benefit of compulsory process, and have the assistance of and free access to up to two counsel "learned in the law." Act of April 30, 1790, ch. 9, § 29, 1 Stat. 1181; see also Murray v. Giarratano, 492 U.S. 1, 20, 109 S.Ct. 2765, 106 L.Ed.2d 1 (1989). Although the rights to counsel and to compulsory process may be thought of today as traditional components of the panoply of rights afforded any criminal defendant facing a jail sentence, in the late eighteenth century they marked an acknowledgment that heightened reliability was required when the mandatory punishment upon conviction was death. See Reid v. Covert, 354 U.S. 1, 77, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957) (Harlan, J. concurring) (); Williams v. Georgia, 349 U.S. 375, 391, 75 S.Ct. 814, 99 L.Ed. 1161 (1955) ().
The nation's first century witnessed debate over the imposition of the death penalty at the state and federal levels. See Furman, 408 U.S. at 336-337, 92 S.Ct. 2726 (Marshall, J. concurring). Juries and legislatures alike reacted to the inflexibility of the mandatory imposition of the death penalty, leading some juries to acquit capital defendants in situations where they felt the death penalty was not warranted, and some state legislatures to abolish the death penalty entirely or to significantly reduce its scope. See id., 408 U.S. at 338-39, 92 S.Ct. 2726; see also Furman, 408 U.S. at 297-98, 92 S.Ct. 2726 (Brennan, J., concurring). In 1897 Congress enacted a statute entitled "An act to reduce the cases in which the penalty of death may be inflicted," that provided juries in federal murder cases with unlimited discretion to qualify a verdict of guilty by adding the phrase "without capital punishment." Act of January 15, 1897, 29 Stat. 487; see Winston v. United States, 172 U.S. 303, 312-13, 19 S.Ct. 212, 43 L.Ed. 456 (1899); see also Rory K. Little, The Federal Death Penalty: History and Some Thoughts About the Department of Justice's Role, 26 Fordham Urb. L.J. 347, 366-68 (1999). The movement away from mandatory death sentences was heralded as an "enlightened introduction of flexibility into the sentencing process." Furman, 408 U.S. at 402, 92 S.Ct. 2726 (Burger, J. dissenting).
Federal juries retained unlimited and unguided discretion over the imposition of the death penalty in murder cases for three quarters of a century, until the Supreme Court decided Furman in 1972. Certiorari was granted in Furman to determine whether imposition of the death penalty in the cases of three defendants who were...
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