U.S. v. Frank

• Decision Date: 06 May 1998
• Docket Number: No. 97 CR. 269 (DLC).,97 CR. 269 (DLC).
• Citation: 8 F.Supp.2d 253
• Parties: UNITED STATES of America, Plaintiff, v. Deric FRANK, Defendant.
• Court: U.S. District Court — Southern District of New York

8 F.Supp.2d 253

UNITED STATES of America, Plaintiff, v. Deric FRANK, Defendant.

No. 97 CR. 269 (DLC).

United States District Court, S.D. New York.

May 6, 1998.

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Mary Jo White, United States Attorney, Southern District of New York, New York City, John Hillebrecht, Kerry Lawrence, Assistant United States Attorneys, for Plaintiff.

Leonard Joy, Jonathan Bach, Legal Aid Society, Federal Defender Division, New York City, Kevin McNally, McNally & Robinson, Frankfort, KY, for Defendant.

COTE, District Judge.

This is a capital case. The Grand Jury charges that, in early March 1997, the defendant, Deric Frank ("Frank"), kidnapped his girlfriend, Shaneika Price ("Price"), transported her across state lines, and murdered her by setting fire to a car after he had locked her in the trunk.¹ The Government filed a Notice of Intent to Seek the Death Penalty on November 26, 1997, pursuant to 18 U.S.C. § 3593(a), part of the Federal Death Penalty Act of 1994 (the "FDPA" or "the Act"), codified at 18 U.S.C. § 3591 et seq. Frank has pled not guilty. Trial is set for June 1998.

To provide some context for this Opinion, the Court sets forth the following brief facts about the case. According to the Government, Frank is a drug dealer in Norwalk, Connecticut. He and Price had a volatile relationship spanning many years. At the time of her death, Price had a five year old son whom she claimed was fathered by Frank, and whom Frank had, at times, recognized as his son. Price had obtained an order of protection against Frank just three weeks prior to her death. Based on these and other facts, the Government has a two-fold theory for Price's murder: (1) Frank believed that Price was cooperating with police and was going to tell them where he kept his stash of drugs; and (2) Frank's history of violence towards Price finally escalated into murder.

Frank is eligible for the death penalty on the kidnapping charge. His is the first death penalty prosecution in the Second Circuit under the FDPA.

At this juncture, Frank has filed numerous motions addressed to (1) the facial constitutionality of the FDPA; (2) the constitutionality of the Government's use of certain statutory and non-statutory aggravating factors, as applied to him; (3) the propriety of putting off proof of a murder until the penalty phase; (4) the constitutionality of the Violence Against Women Act ("VAWA"), under which Frank is in part charged; (5) the propriety of the Government's decision to seek the death penalty in this case; and (6) the admissibility of certain evidence the Government intends to offer. This Opinion will address the first five categories of Frank's challenges. A separate Opinion will address his motions addressed to the evidence in this case.²

I. BACKGROUND

Since 1994, the federal kidnapping statute has authorized the death penalty for individuals convicted of a kidnapping in which a death results. It provides, in pertinent part:

Whoever unlawfully seizes ... kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person ... when the person is willfully transported in interstate or foreign commerce ... if the death of any person results, shall be punished by death or life imprisonment.

18 U.S.C. § 1201(a) (emphasis added). The kidnapping statute does not, however, set forth procedures for the imposition of a sentence of death. These procedures are set forth in the FDPA, which effectively reinstated the death penalty for numerous crimes as to which it had formerly been authorized, and for the first time authorized the death penalty for many other crimes, such as kidnapping.³ Prior to the enactment of the FDPA, the death penalty could not be imposed even where it previously had been approved because Congress had not established procedures for its imposition that were consistent with the Supreme Court's death penalty jurisprudence. The FDPA filled this gap. See H.R.Rep. No. 103-467 (1994) (purpose of the FDPA is to "establish constitutional procedures for the imposition of the death penalty").⁴

The FDPA sets forth the following structure for the imposition of a sentence of death. First, if the Government intends to seek the death penalty for a certain defendant, it must notify him in advance of its intention to do so, and the basis for its view that death is authorized. See 18 U.S.C. § 3593(a)(1). The Government also must notify the defendant of all aggravating factors that the Government "proposes to prove as justifying a sentence of death" if the defendant is convicted of the underlying offense. Id. at 3593(a)(2).

The Act provides separate guilt and penalty phases for a death penalty prosecution. If the defendant is convicted at the guilt phase, the same jury returns to deliberate during the penalty phase. The penalty phase is an adversarial proceeding—in effect, a second trial — overseen by the court, and focused solely on the issue of whether the defendant should be put to death. During this phase, the Government must first set forth proof that the defendant had at least one of four enumerated mental states establishing the defendant's intent to kill. Id. at 3591(2).⁵ The jury must find beyond a reasonable doubt that the defendant had at least one of these four mental states before it may consider a sentence of death.

If the jury finds that the defendant acted with at least one of the requisite mental states, then it may consider the Government's proof of any aggravating factors — the same factors of which the Government has previously given the defendant notice — that the Government believes weigh in favor of a death sentence ("the aggravating factors"). These factors may include factors set forth in the FDPA itself ("the statutory factors"),⁶ and factors not set forth in the statute ("the non-statutory factors"). Id. at 3592(c). The defendant may put before the jury proof of any mitigating factors he believes weigh against a sentence of death. Id. at 3592(a). To return a death sentence, the jury must find the existence of at least one statutory aggravating factor. Id. at 3593(e). Having found the existence of at least one statutory aggravating factor, the jury then may consider all of the aggravating factors and all of the mitigating factors that have been proven. Id. The Government has the burden of establishing the existence of any aggravating factors beyond a reasonable doubt. The defendant's burden of establishing the existence of any mitigating factor is by a preponderance of the information. Id. at § 3593(c). The jury must weigh all of the aggravating factors it has found to exist against all of the mitigating factors that have been found to exist, and determine by unanimous vote whether the defendant should be sentenced to death or some lesser sentence. Id. at § 3593(e).⁷

The Act thus provides at least three hurdles that the Government must clear before it may ask a jury to impose a sentence of death. First, the Government must prove beyond a reasonable doubt that the defendant is guilty of a crime for which the death penalty is authorized. Second, it must prove beyond a reasonable doubt that the defendant acted with one of the four mental states set forth in the statute. Third, it must prove beyond a reasonable doubt the existence of at least one statutory aggravating factor. If the Government does not carry its burden as to any of these hurdles, the jury may not consider a sentence of death. If the Government does carry its burden as to all three hurdles, the jury may, but need not, impose a sentence of death.

Here, the Government has notified the defendant that it intends to seek the death penalty for the kidnapping count. The Government indicated in its Notice of Intent to Seek the Death Penalty that it believes that the defendant possessed all four of the mental states set forth in the FDPA,⁸ and that the circumstances of the crime suggest the existence of three statutory aggravating factors: (1) the death occurred during the course of another crime (kidnapping); (2) the offense was committed in an especially heinous, cruel, or depraved manner; and (3) the defendant committed the offense after substantial planning and premeditation to cause the death of a person.⁹ Finally, the Government has identified four non-statutory aggravating factors that it contends weigh in favor of a death sentence:¹⁰ (1) the victim was killed in an effort to obstruct justice; (2) the defendant presents a continuing danger to society; (3) the defendant caused severe and irreparable harm to the family of the victim; and (4) the defendant kidnapped and caused the death of his victim in violation of a judicial order of protection.¹¹

The Court will address at the outset Frank's three challenges to the FDPA, first with respect to the Act's statutory framework; second concerning the particular statutory and non-statutory aggravating factors that have been noticed in this case; and third regarding the necessity of proving murder only at the penalty phase of trial. As a fourth issue, the Court will address Frank's challenges to the Violence Against Women Act. Fifth and last, the Court will address the propriety of the Government's decision to seek the death penalty in the first instance.

II. DISCUSSION

A. The Facial Constitutionality of the FDPA

Frank makes six challenges to the facial constitutionality of the FDPA, the most significant (and first three) of which attack the use of non-statutory aggravating factors at the penalty phase.¹² First, Frank claims that the Act's incorporation of non-statutory factors violates principles of the Supreme Court's death penalty jurisprudence because the use of non-statutory factors encourages wholly arbitrary and capricious death sentences. Second, he claims that the statute's authorization of the United States Attorney to define non-statutory aggravating factors constitutes an impermissible delegation of power in violation of the...