US v. Cooper, 89 CR 580.

• Decision Date: 26 December 1990
• Docket Number: No. 89 CR 580.,89 CR 580.
• Court: U.S. District Court — Northern District of Illinois
• Parties: UNITED STATES of America, Plaintiff, v. Alexander COOPER, et al., Defendants.

754 F. Supp. 617

UNITED STATES of America, Plaintiff, v. Alexander COOPER, et al., Defendants.

No. 89 CR 580.

United States District Court, N.D. Illinois, E.D.

December 26, 1990.

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Audrea Zopp, Steven Sinnott, Chicago, Ill., for plaintiff.

Jeffrey Urdangen, Cynthia Giacchetti, Diane Ruthman, Chicago, Ill., for defendants.

MEMORANDUM OPINION AND ORDER

SHADUR, District Judge.

This is the first case in the country—and so far as this Court knows it is still the only case — in which the United States seeks imposition of the death penalty under the now-two-year-old provisions of 21 U.S.C. § 848 ("Section 848"¹). Anthony Cooper ("Cooper") and Darnell Davis ("Davis," named in the indictment as "Anthony Davis") are charged in these terms in Count Three of the second superseding indictment (the "Indictment"):

The SPECIAL APRIL 1990 GRAND JURY further charges:

1. The Grand Jury realleges Count Two of this indictment as though fully set forth here.²

2. On or about February 6, 1989, at Chicago, in the Northern District of Illinois, Eastern Division,

ALEXANDER COOPER and ANTHONY DAVIS,

defendants herein, while engaged in and working in furtherance of a continuing criminal enterprise, intentionally killed and counseled, commanded, induced, procured and caused the intentional killing of Robert Parker, and such killing resulted;

In violation of Title 21, United States Code, Section 848(e)(1)(A), and Title 18, United States Code, Section 2.

Not surprisingly, both Cooper and Davis have loosed a barrage of attacks on the prosecution of that charge,³ and their numerous motions have now been fully briefed. This memorandum opinion and order deals with all the motions that speak to or implicate the constitutionality of Section 848.

At the outset it should be said that, all things considered, this opinion is shorter than it might have been. That does not of course reflect any lack of appreciation on this Court's part for the gravity of the issues involved, and it certainly does not connote less than full consideration of those issues. Every issue posed by the parties has been canvassed thoroughly — and all the authorities on which they rely (and more) have been read. What has occasioned the shorter treatment of the issues that is reflected in this opinion is not the press of other matters — other matters are always pressing — but rather the facts (1) that the parties' briefing of those issues took substantially longer than the parties had originally planned and (2) that we are dealing with a long-established and absolutely firm February 5, 1991 date for the commencement of the anticipated lengthy trial. Because the litigants need as much lead time as possible for preparation, it is important that this Court rule on the multifarious issues posed by the defendants' motions at the earliest possible date — and that has in turn forced the production of a shorter discussion than the extended essay that some of the issues might well have stimulated.⁴ In any case, what follows suffices to state this Court's conclusions and the reasons supporting them.

Constitutionality of Section 848

Cooper and Davis have launched a number of challenges to the constitutionality of the death sentence provisions (mainly but not exclusively under the Eighth Amendment's prohibition of cruel and unusual punishment).⁵ No effort will be made to sort those challenges out in their order of importance. Instead the several arguments will be dealt with seriatim.⁶

Cooper complains (without citation of supporting authority) about the absence of pretrial discovery as to the matters in aggravation that the government seeks to rely upon in order to underpin the death penalty. That complaint not only lacks any affirmative support in the case law but also ignores the a fortiori negative impact of Silagy v. Peters, 905 F.2d 986, 994-97 (7th Cir.1990). There our Court of Appeals upheld the Illinois death penalty statute against a claim that the absence of any required notice to a defendant that the State would seek the death penalty violated that defendant's federal constitutional rights (the rights to effective assistance of counsel under the Sixth Amendment and to procedural due process under the Fourteenth Amendment). Here, by contrast, Cooper and Davis have been given notice not only of the government's intention to pursue the death penalty but also of the specific aggravating factors on which the government plans to rely in that effort.⁷

As for those aggravating factors, Cooper and Davis advance a number of contentions as to asserted flaws in Section 848 or in the government's compliance with Section 848(h) in that regard. Although none proves to have substantive merit, they will be set out and discussed in turn.

First, Cooper Mem. 1 urges:

All of the aggravating factors in subparagraph (n)(1) are inherent in the underlying offense so that this factor is already determined before the death penalty and thus the sentencing body need find only one aggravating factor to impose the sentence of death.

But Lowenfield v. Phelps, 484 U.S. 231, 241-46, 108 S.Ct. 546, 552-55, 98 L.Ed.2d 568 (1988) overrode that precise argument in a situation in which the only aggravating factor found by the jury at the penalty phase "was identical to an element of the capital crime of which he was convicted" (id. at 241, 108 S.Ct. at 552) or "duplicated one of the elements of the crime" (id. at 246, 108 S.Ct. at 555). All but two Justices found that situation satisfied the "narrowing function" that the Supreme Court has held mandated by the Constitution (id. at 244-46, 108 S.Ct. at 554-55). Hence this case again follows a fortiori — for Section 848(k) expressly conditions the potential of a death sentence on the jury's finding not only one of the aggravating factors set out in Section 848(n)(1) (the statutory provision that has been targeted by Cooper's motion) but also at least one of the other aggravating factors listed in Section 848(n)(2) through (n)(12).

Cooper also contends that Section 848 impermissibly shifts the burden of the proof to a defendant by requiring him or her to establish the existence of mitigating factors by a preponderance of the evidence. But that argument too flies directly in the face of recent Supreme Court precedent, in this case less than a year old. Walton v. Arizona, ___ U.S. ___, 110 S.Ct. 3047, 3055, 111 L.Ed.2d 511 (1990) held that if the statutory "method of allocating burdens of proof at sentencing does not lessen the prosecution's burden to prove ... the existence of aggravating circumstances, a defendant's constitutional rights are not violated by placing on him the burden of proving mitigating circumstances sufficiently substantial to call for leniency."⁸ In this instance Section 848(j) expressly provides:

The burden of establishing the existence of any aggravating factors is on the Government, and is not satisfied unless established beyond a reasonable doubt.

That specifically meets the constitutional standard stated in Walton.

Next Cooper Mem. 2 attacks as "impermissibly vague" and as "affording the sentencing body no standard whatsoever" the Section 848(k) formula for sentencing — one that calls for the balancing of aggravating and mitigating circumstances. On that score Cooper misses "the fundamental difference between the nature of the guilt/innocence determination ... and the nature of the life/death choice at the penalty phase" (California v. Ramos, 463 U.S. 992, 1007, 103 S.Ct. 3446, 3456, 77 L.Ed.2d 1171 (1983)). As for the first of those determinations, the government must meet the beyond-a-reasonable-doubt standard of proof as to every element of the charged offense, and nothing in Section 848 changes that. But on the second decision, the process of weighing multiple interacting factors admits of no such single standard of proof for the balancing of aggravating and mitigating circumstances — as Justice White said for the four-Justice plurality in Franklin v. Lynaugh, 487 U.S. 164, 179, 108 S.Ct. 2320, 2329, 101 L.Ed.2d 155 (1988) (citation omitted):

And we have never held that a specific method for balancing mitigating and aggravating factors in a capital sentencing proceeding is constitutionally required.⁹

Cooper then mischaracterizes Section 848 as vesting the government with "unfettered discretion" in deciding what evidence may be introduced in aggravation. Instead Section 848(j) specifically limits the proof at the sentencing phase to (1) matters introduced at trial (but that only if the sentencer was not at the trial,¹⁰ or alternatively in the discretion of the trial judge and not the government) and (2) information that is found relevant to any mitigating or government-identified aggravating factors (again a judicial determination, with the judge being authorized to apply precisely the same exclusionary concept that is embodied in Fed.R.Evid. 403). Once more Silagy (see 905 F.2d at 996-98), though addressing the Illinois statute rather than Section 848, provides a direct precedent for upholding that entire procedure.

In similar fashion both Cooper and Davis advance a void-for-vagueness onslaught against the aggravating factor stated in Section 848(n)(12):

The defendant committed the offense in an especially heinous, cruel, or depraved manner in that it involved torture or serious physical abuse to the victim.

If the statute had placed what the British term a "full stop" — a period — after the word "manner," defendants would be right (Maynard v. Cartwright, 486 U.S. 356, 363-64, 108 S.Ct. 1853, 1858-59, 100 L.Ed.2d 372 (1988)). But the statute does not — instead it expressly limits the factor to crimes that "involved torture or serious physical abuse to the victim." And by doing so it provides a constitutionally sufficient standard (see id. at 364-65, 108 S.Ct. at 1859-60).¹¹

Davis also argues that Section 848(n)(12) is unconstitutional as applied to the facts of ...