U.S. v. Wilk, 05-12694.

Citation452 F.3d 1208
Decision Date20 June 2006
Docket NumberNo. 05-12694.,05-12694.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Kenneth WILK, a.k.a. Kenneth P. Wilk, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)

(Court-Appointed), Seiden, Alder & Matthewman, P.A., Boca Raton, FL, J. Rafael Rodriguez (Court-Appointed), Rodriguez & Fernandez, PA, Miami, FL, for Wilk.

Evelio J. Yera, Anne R. Schultz, Asst. U.S Atty., Miami, FL, for U.S.

Appeal from the United States District Court for the Southern District of Florida.

Before DUBINA and HULL, Circuit Judges, and RESTANI*, Judge.

HULL, Circuit Judge:

Appellant Kenneth Wilk ("Wilk") appeals the district court's denial of his motion to strike the government's Notice of Intent to Seek the Death Penalty (the "Death Notice") and to bar the government from seeking the death penalty in his trial for the murder of Deputy Sheriff Todd M. Fatta ("Fatta") and other charges. Wilk asserts that the Death Notice was not provided to him "a reasonable time before the trial" as required by 18 U.S.C. § 3593(a). After review and oral argument, we affirm, concluding that a Death Notice filed six months before the trial is reasonable notice under § 3593(a).

I. BACKGROUND
A. Fatta's Murder

In the summer of 2001, Wilk's domestic partner, Kelly Ray Jones ("Jones"), was arrested and convicted on child pornography charges. Jones was sentenced to twenty-eight months' imprisonment and three years of supervised release. A condition of Jones's supervised release was that he not use the Internet. During Jones's prosecution, Wilk made threats to law enforcement personnel, some of which he made online under his computer screen name "Wolfpackeines." Wilk's online profile listed hobbies such as "hunting cops" and occupations such as "cop bashing" and "alerting people about kiddy porn stings." Around this time, Wilk purchased several firearms and participated in firearm skill shooting contests throughout Florida. Wilk purchased additional firearms in 2002 and 2003, including a Winchester 30-30 rifle.

On July 12, 2004, while on supervised release, Jones sent images depicting child pornography to an undercover law enforcement officer from Wilk's Internet account on a computer at a residence shared by Jones and Wilk. On July 15, 2004, as a result of further investigation, police obtained a search warrant, searched the residence, recovered numerous child pornography images, and arrested Jones on the scene.

While Jones was incarcerated, he instructed Wilk to contact a witness whom the police told Jones not to contact. Wilk went to the witness's apartment and told him that, even if the witness cooperated, the witness would still have to serve prison time. At Jones's direction, Wilk sent derogatory emails to the witness's business associate in an attempt to discredit the witness. Further communication between Jones and Wilk suggested that Wilk planned to threaten or kill a witness against Jones. Also at Jones's instruction, Wilk deleted emails relevant to Jones's child pornography charges.

Following these events, federal agents obtained an arrest warrant for Wilk and a search warrant for his residence. Agents initially planned to use a ruse to lure Wilk from the residence, but abandoned the idea after learning that Wilk anticipated such a tactic. On August 19 2004, Fatta and Sergeant Angelo Cedeno ("Cedeno"), both of the Broward County Sheriff's Office, assisted federal agents, including Immigration and Customs Enforcement Special Agent Christopher Harvey, in the execution of the warrants. After surrounding the residence and announcing themselves, the officers forcibly entered.

Upon entry, two large caliber gunshots were heard, followed by several smaller caliber gunshots. At that point, Cedeno was injured from the shooting, and Wilk appeared at the open front door. Wilk complied with officers' demands to surrender and was arrested. A gun was found in the front doorway from which Wilk exited the residence. Inside the residence, Fatta was found shot on the floor and did not appear to be breathing. Despite attempts to revive him, Fatta subsequently died. Other than Wilk, no one else was found in the residence.

The next day, on August 20, 2004, the district court appointed J. Rafael Rodriguez, who has extensive experience in capital crimes litigation, to represent Wilk. On August 26, 2004, Wilk and Jones were indicted jointly in a five-count indictment that charged them with child pornography and witness and evidence tampering offenses.1 On September 1, 2004, Wilk was arraigned on this initial indictment, and on September 2, 2004, the district court set a trial date of November 1, 2004, on the five-count indictment. As detailed below, the capital murder charges in this case were added later.

On September 22, 2004, Wilk made a presentation to the United States Attorney's Office in Florida regarding the propriety of capital punishment in this case in connection with Fatta's murder.2 A meeting on the matter with the Capital Case Unit of the Justice Department was scheduled for October 18, 2004, in Washington, D.C.3

B. October Status Conferences

From the start, this case was considered a potential death penalty case. At a status conference on October 8, 2004, the government stated that it might seek the death penalty in a forthcoming superseding indictment. The magistrate judge suggested that a continuance of the November 1 trial date was probably necessary. On October 15, 2004, Wilk moved to continue the November 1 trial, citing outstanding discovery issues and the possibility that Wilk would be charged with a capital offense. On October 20, 2004, the district court granted Wilk's motion and continued the trial until December 13, 2004.

Also on October 20, 2004, and on the ex parte request of Wilk's counsel, the magistrate judge appointed William Matthewman, who is qualified to handle death penalty cases, as Wilk's second counsel pursuant to 18 U.S.C. § 3005 and due to the probability of this becoming a capital case. Additionally, the district court granted funds for an investigative firm and mitigation specialist so that Wilk could prepare for a death penalty trial.4

On October 21, 2004, the grand jury returned a six-count superseding indictment against only Wilk charging him with the same possession of child pornography and witness and evidence tampering offenses in the prior indictment and adding counts for: (1) the malice murder of Fatta, while he was assisting a federal officer engaged in official duties, designated as a capital count; (2) the attempted murder of Cedeno; (3) the use of a firearm during the murder and attempted murder, designated as a capital count; and (4) obstruction of justice in connection with Jones's prosecution.5 The superseding indictment also referenced 18 U.S.C. §§ 3591(a)(2)(A)-(D) and 3592(c), which set out the statutory aggravating factors required to impose the death penalty, and then listed the charged statutory aggravating factors in this case as: (1) Wilk was over the age of eighteen; (2) Wilk intentionally killed Fatta; (3) Wilk knowingly created a grave risk of death to one or more persons in addition to Fatta; (4) Wilk committed the murder after substantial planning and premeditation; and (5) Wilk intentionally killed or attempted to kill more than one person in a single criminal episode. On October 28, 2004, Wilk was arraigned on the superseding indictment.

C. October 28, 2004, Conferences

At an October 28 status conference before the district court, Wilk requested a continuance of the December 13 trial and waived his right to a speedy trial.6 Wilk stated that a continuance was necessary due to outstanding discovery issues and a December 13 meeting with the Department of Justice Capital Case Unit regarding whether the government would seek the death penalty.

The government opined that the case was not complicated, but acknowledged that Wilk's mental status was a potentially complicating matter. The government suggested a May trial date because it believed that discovery would have been complete by then and a decision would have been made about seeking the death penalty. The government estimated that it would deliver its discovery materials to the defense by the following week.

Wilk outlined the outstanding discovery issues, including access to Wilk's residence, review of conversations between Wilk and Jones, and review of police reports and 911 recordings. Wilk also expressed his need to procure experts for the guilt and penalty phases and to allow them time to analyze the evidence. Wilk then expressed his frustration with the fact that he did not have access to his residence for investigative purposes and noted that he was currently preparing for the upcoming meeting with the Department of Justice regarding the death penalty in this case. Wilk opined that the defense could not be ready by May 2005 due to its need to prepare, especially if the government opted to seek the death penalty.

The district court reset the trial date from December 13, 2004, to April 18, 2005. Wilk objected to the April 18 trial date, believing that there was no "way we can be ready for a potential death penalty case by that time." The district court overruled the objection, noting that Wilk's two counsels were qualified and experienced with trying capital cases, that an April 18 trial was over five months away, and that the case was not complex.

At a separate status conference on October 28, 2004, the magistrate judge addressed discovery deadlines. Wilk again expressed his dissatisfaction with the April 18 trial date, indicating that counsel would not be ready for trial by that time. Wilk's counsel expressly stressed that the case was a "potential capital case[.]"

D. November and December Conferences

At a November 12, 2004, status hearing, the magistrate judge addressed the status of...

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