U.S. v. Fell, No. 2:01CR1201.

• Decision Date: 07 April 2005
• Docket Number: No. 2:01CR1201.
• Citation: 372 F.Supp.2d 753
• Parties: UNITED STATES of America v. Donald FELL.
• Court: U.S. District Court — District of Vermont

372 F.Supp.2d 753

UNITED STATES of America v. Donald FELL.

No. 2:01CR1201.

United States District Court, D. Vermont.

April 7, 2005.

Wiliam B. Darrow, AUSA and Stephen D. Kelley, AUSA, for plaintiff.

Alexander Bunin, Burlington, VT, Gene Primomo, Paul Volk, Burlington, VT, for defendant.

OPINION AND ORDER

SESSIONS, Chief Judge.

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. This Opinion and Order explains the decision of the Court on three outstanding issues. First, the Court considers, and rejects, Fell's remaining challenges to the constitutionality of the Federal Death Penalty Act (FDPA). Second, the Court examines the government's Motion for Discovery of Mental Health Evidence (Doc. 34). That motion is granted in part and denied in part. Finally, the Court denies Fell's Motion to Dismiss Non-Statutory Aggravating Factors (Doc. 81).

I. The Constitutionality of the FDPA

A. Fell's Original Motion

On May 28, 2002, Fell filed a motion to declare the federal death penalty unconstitutional (Doc. 44). In that motion, Fell raised twelve different challenges to the FDPA. These were: (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 non-delegation 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 non-statutory 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; and (12) the death penalty violates binding international law.

On September 24, 2002, the Court considered the fourth and fifth of these arguments. The Court denied Fell's claim that the FDPA violated his Fifth Amendment right to grand jury indictment. United States v. Fell, 217 F.Supp.2d 469, 483-84 (D.Vt.2002) ("Fell I"). However, the Court granted Fell's motion 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." Id. at 473. This decision was overruled by the Second Circuit. United States v. Fell, 360 F.3d 135 (2d Cir.2004) ("Fell II"). As a result, the Court must address the other ten challenges raised in Fell's original motion.

This Court has carefully reviewed Fell's memorandum of law and the government's opposition. The Court is satisfied that, in light of current Supreme Court authority, none of Fell's remaining arguments have merit. Moreover, all of Fell's contentions have been considered and rejected by a large number of federal courts. Thus, the Court does not need to repeat the detailed analysis that is already found in other decisions.

Fell's first argument, that the FDPA fails to avoid sentences of death for the factually and legally innocent, raises a fundamental challenge to the legality of the death penalty under the Due Process Clause of the Fifth Amendment. The argument raises profound questions about the finality of the death penalty in a system of justice that, like any human endeavor, is less than perfect. Nevertheless, Fell's challenge has been squarely rejected by the Second Circuit. See United States v. Quinones, 313 F.3d 49 (2d Cir.2002).

Fell's second argument is that the FDPA's sentencing scheme is incomprehensible to a jury. This claim is well analyzed, and rejected, by Judge Pollack in United States v. Llera Plaza, 179 F.Supp.2d 444, 449-50 (E.D.Pa.2001). See also United States v. Perez, No. 3:02CR7, 2004 WL 935260, at *2-*3 (D.Conn. Apr.29, 2004). The Court adopts Judge Pollack's reasoning. Fell's third argument, that the FDPA fails to narrow adequately the class of persons eligible for the death penalty, has also been considered and rejected on many occasions. See, e.g., United States v. Quinones, No. 00 CR.761, 2004 WL 1234044, at *2 (S.D.N.Y. June 3, 2004); Perez, 2004 WL 935260, at *4-*5; Llera Plaza, 179 F.Supp.2d at 451-52. As these decisions explain, this challenge is precluded by settled Supreme Court authority. See Lowenfield v. Phelps, 484 U.S. 231, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988).

Fell presents five arguments (numbered six through ten above) contesting the legality of the use of non-statutory aggravating factors under the FDPA. Once again, these arguments have been considered in detail and rejected by many other federal courts. See, e.g., Quinones, 2004 WL 1234044, at *2; Perez, 2004 WL 935260, at *11-*16; Llera Plaza, 179 F.Supp.2d at 453-59 (E.D.Pa.2001); United States v. Frank, 8 F.Supp.2d 253, 267 (S.D.N.Y.1998); United States v. Nguyen, 928 F.Supp. 1525, 1536-38 (D.Kan.1996); United States v. Pitera, 795 F.Supp. 546, 562 (E.D.N.Y.1992). Upon review of these decisions, and the Supreme Court authority on which they are based, the Court is satisfied that the FDPA is internally consistent and that the use of non-statutory aggravating factors is constitutional.

Fell's final two arguments are also contrary to settled precedent and are likely presented solely to preserve the issues for eventual Supreme Court review. See, e.g., Quinones, 2004 WL 1234044, at *2. Thus, the Court must deny Fell's Motion to Declare Federal Death Penalty Unconstitutional (Doc. 44).

B. Fell's Supplemental Motion

In addition to the issues discussed above, the Court must address three new challenges to the constitutionality of the death penalty. In his supplemental motion (Doc. 80), Fell argues that (1) that Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) upset the basis for the Second Circuit's decision in Fell II; (2) the FDPA's bifurcated guilt and penalty phases violate the presumption of innocence; and (3) the FDPA is unconstitutional for allowing the introduction of character and victim impact evidence to prove elements of capital murder.

In Crawford, the Supreme Court held that out-of-court statements by witnesses that are testimonial are barred, under the Confrontation Clause, unless witnesses are unavailable and the defendant had prior opportunity to cross-examine witnesses. 541 U.S. at 68, 124 S.Ct. at 1374. The Crawford Court overruled Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), which held that the Confrontation Clause does not bar admission of an unavailable witness's statement if the statement bears adequate indicia of reliability.

The FDPA provides that during the sentencing phase evidence "is admissible regardless of its admissibility under the [Federal Rules of Evidence] except that information may be excluded 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). Fell suggests that this is inconsistent with Crawford because it directs the judge to determine admissibility on the basis of reliability. Essentially, Fell's position is that the FDPA mandates the Roberts approach rather than the Crawford approach to out-of-court testimonial statements.

Fell's argument is squarely addressed by Fell II. In that opinion, the Second Circuit specifically noted that, "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." Fell II, 360 F.3d at 138. The court stated:

[A]s was true before the FRE were promulgated in 1972 and is true under the FRE, it remains for the court, in the exercise of its judgment and discretion, to ensure that unconstitutional evidence otherwise admissible under applicable evidentiary rules is excluded from trial. The FDPA does not eliminate this function of the judge as gatekeeper of constitutionally permissible evidence; nor does it alter or eliminate the constitutional baseline for the admissibility of evidence in a criminal trial.

Id. at 145 (quotation marks and citation omitted) (emphasis added). Thus, the FDPA does not prevent a district court from applying Crawford at the sentencing phase of the trial. In fact, the district court must ensure that the defendant's constitutional rights are not violated under Crawford.

Fell's other evidence-based argument has the same defect. Fell claims that the FDPA is unconstitutional under the Due Process Clause because it allows the introduction of evidence of character, propensity, prior uncharged conduct, and victim impact to prove elements of capital murder. However, as noted above, the district court retains the authority, and the responsibility, to ensure that only constitutionally permissible evidence is admitted.

Fell's remaining claim is that the FDPA's bifurcated procedure violates the presumption of innocence. The FDPA bifurcates the guilt and the penalty phases of the...