313 F.3d 49 (2nd Cir. 2002), 02-1403, U.S. v. Quinones

Docket Nº:02-1403(L), 02-1405(Con).
Citation:313 F.3d 49
Party Name:UNITED STATES of America, Appellant, v. Alan QUINONES and Diego B. Rodriguez, Defendants Appellees, Hector Vega, a/k/a Jimbo; Janet Soto; Milton Rivera; Joseph C. Brown; Johnny Rodriguez, a/k/a Blaze; Saul Hernandez; Raul Hernandez, a/k/a
Case Date:December 10, 2002
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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313 F.3d 49 (2nd Cir. 2002)

UNITED STATES of America, Appellant,

v.

Alan QUINONES and Diego B. Rodriguez, Defendants Appellees,

Hector Vega, a/k/a Jimbo; Janet Soto; Milton Rivera; Joseph C. Brown; Johnny Rodriguez, a/k/a Blaze; Saul Hernandez; Raul Hernandez, a/k/a "Twin", a/k/a Carlos P. Luis; and Robert Veve, Defendants.

Nos. 02-1403(L), 02-1405(Con).

United States Court of Appeals, Second Circuit

December 10, 2002

Argued: Oct. 21, 2002.

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Meir Feder, Assistant United States Attorney (David B. Anders and David Rody, Assistant United States Attorneys, on the brief), for James B. Comey, United States Attorney for the Southern District of New York, New York, NY, for Appellant.

Samuel R. Gross, University of Michigan Law School, Ann Arbor, MI (Don D. Buchwald, Buchwald & Kaufman, New York, NY; Lee Ginsberg, Freeman, Nooter & Ginsberg, New York, NY; Jean Barrett, Ruhnke & Barrett, Montclair, NJ; Kevin McNally, Frankfort, KY; Avraham Moskowitz, Moskowitz & Book, New York, NY, on the brief), for Defendants-Appellees.

Barry C Scheck, Innocence Project, Cardozo School of Law (Joshua L. Dratel, Peter Neufeld, on the brief), New York, NY, for Innocence Project, the National Association of Criminal Defense Attorneys, and New York Association of Criminal Defense Lawyers, Amicus Curiae.

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Christopher Dunn, Arthur Eisenberg, and Donna Lieberman, New York Civil Liberties Union, New York, NY; Diann Rust-Tierney, American Civil Liberties Union Capital Punishment Project, Washington, DC; and Ursula Bentele, Brooklyn, NY, for New York Civil Liberties Union and American Civil Liberties Union Capital Punishment Project, Amicus Curiae.

Before: WINTER, McLAUGHLIN, and CABRANES, Circuit Judges.

JOSE A. CABRANES, Circuit Judge

We consider here a challenge to the constitutionality of the Federal Death Penalty Act of 1994 ("FDPA"), Pub.L. No. 103-322, Title VI, §§ 60001-60026, 108 Stat.1959 (Sept. 13, 1994) (codified at 18 U.S.C. §§ 3591-3598).

Defendants Alan Quinones and Diego Rodriguez were indicted for, inter alia, murder in aid of racketeering, in violation of 18 U.S.C. §§ 1959(a)(1) and 2. Shortly thereafter, the Government filed notices of its intention to seek the death penalty against them. In response, Quinones and Rodriguez filed a motion to strike the death penalty notices on the ground that the FDPA is unconstitutional. In a preliminary Opinion and Order entered on April 25, 2002, the United States District Court for the Southern District of New York (Jed S. Rakoff, Judge) indicated its intention to hold that the FDPA violates the Due Process Clause of the Fifth Amendment because DNA testing has demonstrated that "innocent people are convicted of capital crimes with some frequency." United States v. Quinones, 196 F.Supp.2d 416, 420 (S.D.N.Y.2002) ("Quinones I"). After affording the Government an opportunity to submit additional briefing on this issue, the District Court reaffirmed its preliminary views in an Opinion and Order entered on July 1, 2002. United States v. Quinones, 205 F.Supp.2d 256 (S.D.N.Y.2002) (Quinones II"). It held that (1) the constitutionality of the FDPA was ripe for adjudication prior to trial and (2) the FDPA violates substantive and procedural due process rights guaranteed by the Fifth Amendment. The Government timely filed this appeal. Id.

As an initial matter, we hold that (1) we have jurisdiction to entertain this appeal and (2) the constitutional challenge was ripe for consideration prior to trial. Accordingly, we must address the appellant's substantive claim and the District Court's holding that the FDPA is unconstitutional on its face. We hold that, to the extent the defendants' arguments rely upon the Eighth Amendment, their argument is foreclosed by the Supreme Court's decision in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). With respect to the defendants' Fifth Amendment due process claim, we observe that the language of the Due Process Clause itself recognizes the possibility of capital punishment. Moreover, the defendants' argument that execution deprives individuals of the opportunity for exoneration is not new at all—it repeatedly has been made to the Supreme Court and rejected by the Supreme Court. Most notably, the Supreme Court expressly held in Herrera v. Collins, 506 U.S. 390, 407-08, 411, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993), that, while the Due Process Clause protects against government infringement upon rights that are "so rooted in the traditions and conscience of our people as to be ranked as fundamental," there is no fundamental right to a continued opportunity for exoneration throughout the course of one's natural life. Because neither we nor the District Court is authorized to disregard or overturn the Supreme Court's holding in Herrera, see, e.g., Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484,

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109 S.Ct. 1917, 104 L.Ed.2d 526 (1989), we reverse the order of the District Court.

I.

On July 20, 2000, a grand jury sitting in the Southern District of New York returned Indictment 00 CR. 761(JSR), charging ten defendants, including Alan Quinones and Diego Rodriguez, with, inter alia, the murder of Edwin Santiago in aid of racketeering activity. Specifically, Counts One and Two charged Quinones, Rodriguez, and two others with racketeering and racketeering conspiracy, in violation of 18 U.S.C. § 1962(c), (d). Count Three charged Quinones, Rodriguez, and others with conspiracy to murder in aid of racketeering in violation of 18 U.S.C. §§ 1959(a)(5) and 2, and Count Four charged the same defendants with murder in aid of racketeering in violation of 18 U.S.C. §§ 1959(a)(1) and 2. Count Five charged Quinones and Rodriguez, among others, with conspiracy to distribute heroin and cocaine in violation of 21 U.S.C. § 846.

On January 16, 2001, the grand jury-returned a superseding indictment adding Counts Six and Seven. Count Six charged Quinones with unlawfully distributing a controlled substance in violation of 21 U.S.C. §§ 812, 841(a)(1), (b)(1)(C) and 18 U.S.C. § 2, and Count Seven charged another defendant with the same offense. On April 19, 2002, the grand jury returned a second superseding indictment, adding Count Eight, which charged Quinones, Rodriguez, and others with murder in connection with a drug trafficking crime, in violation of 21 U.S.C. § 848(e)(1)(A). Counts Four and Eight of the second superseding indictment are death-eligible offenses. See 18 U.S.C. §§ 848(e)(1)(A) and 1959(a)(1).1

On October 26, 2001, the Government filed notices of its intention to seek the death penalty against defendants Quinones and Rodriguez. That same day the District Court held a pre-trial conference to discuss, inter alia, a motions schedule for death-penalty-related motions. During the conference, the Court, acting sua sponte, raised the issue of whether the FDPA might be unconstitutional:

I will tell you one issue that I would think might be helpful to the court to have briefed. I am not suggesting that, because it is not my place to suggest any particular motion for either side. That is why we have an adversary system. And I do not claim any great expertise in prior decisions relating to the death penalty, but I am aware just from common knowledge that there have been a large number of cases, large may be not quite the right word, but certainly a number of reported cases recently, chiefly as a result of DNA testing, that have indicated that an innocent person was convicted and not so completely rarely as to make it appear totally aberrational.

So I guess the question that that would lead any reasonable person to ask is[:] is a form of penalty that precludes forever rectification of err[or]s that go to actual innocence a form of penalty that accords with the Constitution? It seems to me this is different from how things might have appeared three, four, five years ago or when earlier litigation under the death penalty statute may have arisen, because at that time, while everyone knows that no system of law is

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perfect and no system or procedure is perfect, and therefore there will be mistakes made even in the very best of all systems, that was essentially viewed, I think it's fair to say, as a fairly remote hypothetical. Now it would appear that it's neither a hypothetical nor so remote. And I wonder if that changes the legal framework in which such an argument would have to be addressed.

I want to stress again, I am not inviting any motion, and I am certainly not indicating any view of the court as to any particular point of view or argument. I just simply raised that because the court, like counsel, would benefit from being educated as to everything that is relevant to a death penalty case.

Tr. of Pre-Trial Conference, Oct. 26, 2001, at 9-10. Not surprisingly, on March 22, 2002, Quinones and Rodriguez each moved for an order striking the death penalty notices based, in part, on the argument that the FDPA is unconstitutional on its face.

On March 15, 2002, the District Court heard oral argument on the defendants' motion, and on April 25, 2002, the Court filed a preliminary opinion indicating its intention to declare the FDPA unconstitutional. Quinones I, 196 F.Supp.2d 416. Based upon information obtained from a death-penalty-related internet site, the District Court proposed to take notice that 12 defendants sentenced to death in state courts have been exonerated by DNA evidence in the past decade. Id. at 417.2 It therefore concluded that "[w]e now know, in a way almost unthinkable even a decade ago, that our system of criminal justice, for all its protections, is sufficiently fallible that innocent people are convicted of capital crimes with some frequency." I...

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