360 F.3d 135 (2nd Cir. 2004), 02-1638, United States v. Fell

Docket Nº:02-1638.
Citation:360 F.3d 135
Party Name:UNITED STATES of America, Appellant, v. Donald FELL, Defendant-Appellee.
Case Date:March 02, 2004
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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360 F.3d 135 (2nd Cir. 2004)

UNITED STATES of America, Appellant,


Donald FELL, Defendant-Appellee.

No. 02-1638.

United States Court of Appeals, Second Circuit

March 2, 2004

Argued April 8, 2003.

Feb. 3, 2004.

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Robert J. Erickson, Deputy Chief, Appellate Section, Criminal Division, United States Department of Justice, Washington, D.C. (Peter W. Hall, United States Attorney for the District of Vermont, Burlington, VT, on the brief), for Appellant.

Alexander Bunin, Federal Public Defender, Albany, N.Y. (Gene V. Primomo, Assistant Federal Public Defender, Albany, NY, Paul S. Volk, Blodgett, Watts & Volk, Burlington, VT, and Adam Thurschwell, of counsel, on the brief), for Defendant-Appellee.

Before: WALKER, Chief Judge, WINTER, Circuit Judge, and CARMAN, Judge.1

JOHN M. WALKER, Jr., Chief Judge.

At issue in this case is whether the Federal Death Penalty Act of 1994 (the "FDPA"), Pub.L. No. 103-322, Title VI, §§ 60002(a), 108 Stat.1959 (Sept. 13, 1994) (codified at 18 U.S.C. §§ 3591 et seq.), is unconstitutional because § 3593(c) of the FDPA permits the admission of evidence at the penalty phase of a capital trial that would not be admissible under the Federal Rules of Evidence ("FRE"). Under the FDPA, evidence may be excluded where "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). In a September 24, 2002 Opinion and Order, the United States District Court for the District of Vermont (William K. Sessions, III, District Judge), held that this provision of the FDPA was unconstitutional 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 ['Constitutional Rights']." United States v. Fell, 217 F.Supp.2d 469, 473 (D.Vt.2002). We disagree.

While it is true that the FRE are inapplicable to death penalty sentencing proceedings under the FDPA, the FRE are

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not constitutionally mandated. Indeed, the FRE are inapplicable in numerous contexts, including ordinary sentencing proceedings before a trial judge. See Fed.R.Evid. 1101(d).2 Moreover, the FDPA does not alter a district court's inherent obligation to exclude evidence the admission of which would violate a defendant's Constitutional Rights. The admissibility standard set forth in § 3593(c) of the FDPA provides one means of complying with this responsibility. Accordingly, the judgment of the district court is vacated and the case is remanded for further proceedings.


Donald Fell was indicted on four counts relating to the abduction and murder of Teresca King in late November 2000. Counts 1 and 2 charged Fell with carjacking and kidnapping. Because the charged crimes resulted in death, both counts were charged as capital crimes. On January 30, 2002, the government filed a Notice of Intent to Seek the Death Penalty, which set forth certain statutorily defined aggravating factors the government believed to be implicated in the case. In the summer of 2002, following the Supreme Court's decision in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), the grand jury issued a superseding indictment that included a Notice of Special Findings reiterating the same aggravating factors noticed by the government six months earlier. In addition, the government issued a Supplemental Notice of Intent to Seek the Death Penalty, in which it identified several non-statutory aggravating factors it believed to also be applicable to the case, as permitted by the FDPA. See 18 U.S.C. § 3592(c) (permitting jury to consider any non-statutory aggravating factor for which notice was given); United States v. Jones, 132 F.3d 232, 239-40 (5th Cir. 1998) (holding that government's authority to define non-statutory aggravating factors is not an unconstitutional delegation), aff'd on other grounds, 527 U.S. 373, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999).

The defendant moved pre-trial to have the FDPA declared unconstitutional on numerous grounds. See Fell, 217 F.Supp.2d at 473-74 (listing claims). The district court addressed only two of them. It first held that nothing in the FDPA precluded the government from having the grand jury issue an indictment concerning the existence of aggravating factors. This ruling is not a subject of this appeal.

The district court next addressed the defendant's claim that the assertedly relaxed evidentiary standard applicable during the penalty phase of trial pursuant to § 3593(c) (the "FDPA Standard") renders unconstitutional any jury findings as to the existence of one or more of the aggravating factors necessary to impose a sentence of death. The defendant asserted that the FDPA Standard would permit the government to introduce statements made by the defendant's now-deceased co-defendant that inculpated the defendant with respect to one or more of these aggravating factors, but that these statements would not be admissible under the FRE. The district court agreed that the FDPA Standard was unconstitutional and struck

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the grand jury's Notice of Special Findings from the indictment as well as the government's Supplemental Notice of Intent to Seek the Death Penalty. This appeal followed.


I. Appellate Jurisdiction

We have jurisdiction to entertain this interlocutory appeal pursuant to 18 U.S.C. § 3731,3 which permits an immediate appeal of any district court decision that, inter alia, dismisses any part of a criminal indictment. See United States v. Quinones, 313 F.3d 49, 56-57 (2d Cir. 2002) (holding that courts of appeals have "jurisdiction [under § 3731] to entertain appeals by the Government where a district court has stricken a death penalty notice" and collecting similar cases); see also United States v. Wilson, 420 U.S. 332, 337, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975) (holding that § 3731 is to be construed broadly "to allow [government] appeals whenever the Constitution would permit").

II. Ripeness

Although neither the district court nor any of the parties has addressed the question, as a threshold matter we must determine whether the defendant's challenge to the FDPA Standard is ripe for consideration, or whether, instead, the district court properly should have dismissed the claim as premature. See United States v. Sampson, 245 F.Supp.2d 327, 338-39 (D.Mass.2003) (discussing ripeness of constitutional challenge to FDPA Standard when raised before trial); see also Quinones, 313 F.3d at 57-60 (discussing ripeness of different constitutional challenge to the FDPA).

"Ripeness is a constitutional prerequisite to exercise of jurisdiction by federal courts. The Court, therefore, can raise the issue sua sponte. " Nutritional Health Alliance v. Shalala, 144 F.3d 220, 225 (2d Cir. 1998) (internal citations omitted); see also Quinones, 313 F.3d at 57-58. At the core of the ripeness doctrine is the necessity of "ensur[ing] that a dispute has generated injury significant enough to satisfy the case or controversy requirement of Article III of the U.S. Constitution" by "prevent [ing] a federal court from entangling itself in abstract disagreements over matters that are premature for review because the injury is merely speculative and may never occur." Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 90 (2d Cir. 2002). Here, of course, the defendant has not been tried, let alone convicted; thus, he may never be subjected to a penalty phase in which the government has sought to introduce the challenged evidence.

In order to determine whether an issue is ripe for adjudication, a court must make a fact-specific evaluation of "both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration." Abbott Labs. v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), overruled on other grounds, Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). In

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Quinones, a case also involving a pre-trial ruling that the FDPA was unconstitutional, we applied the Abbott Laboratories test, and, in words that apply equally to this appeal, held that

due regard for the rights of criminal defendants compels the conclusion that ... the defendant['s] constitutional challenge to the FDPA was ripe for consideration by the District Court and is ripe for our review. First, the defendant['s] argument clearly was fit for adjudication. A challenge to the facial constitutionality of a criminal statute is a pure question of law [that] ... ["]is eminently fit for judicial review."

.. [A] defendant suffers practical and legally cognizable disadvantages by postponing a facial challenge to the death penalty until after trial. Quite...

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