U.S. v. Spivey

• Decision Date: 12 March 1997
• Docket Number: Criminal No. 95-0491 LH.
• Parties: UNITED STATES of America, Plaintiff, v. Everett Edward SPIVEY, Defendant.
• Court: U.S. District Court — District of New Mexico

958 F.Supp. 1523

UNITED STATES of America, Plaintiff, v. Everett Edward SPIVEY, Defendant.

Criminal No. 95-0491 LH.

United States District Court, D. New Mexico.

March 12, 1997.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Elizabeth M. Martinez, U.S. Attorney's Office, Albuquerque, NM, for Petitioner.

Billy R. Blackburn, Paul J. Kennedy, Albuquerque, NM, for Defendant.

MEMORANDUM OPINION AND ORDER

HANSEN, District Judge.

THIS MATTER comes before the Court on three motions filed by Defendant Spivey on November 18, 1996: Motion To Dismiss Notice of Intent to Seek the Death Penalty (Docket No. 969); Motion To Strike Statutory Aggravating Factors From Government's Notice of Intent to Seek the Death Penalty (Docket No. 966); and Motion To Strike Non-statutory Aggravating Factors From Notice of Intent To Seek the Death Penalty (Docket No. 965). Having considered the parties' memoranda and argument and the applicable law, the Court finds that the motions are not well taken and they will be denied.

A. Background

Among other offenses, Defendant Spivey was indicted for intentionally killing or intentionally causing the death of another while he was engaged in a continuing criminal enterprise (CCE), in violation of 21 U.S.C. § 848(e)(1)(A). A person convicted under § 848(e) is potentially subject to the death penalty, providing the Government furnishes the defendant with notice of its intention to seek the death penalty and with notice of the aggravating factors the Government contends would warrant imposition of the death penalty.

Following conviction under § 848(e), at the penalty trial the jury hears "information" regarding aggravating and mitigating factors. The rules of evidence do not apply, except that the court may exclude information "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, or misleading the jury." 21 U.S.C. § 848(j). If the jury unanimously finds, beyond a reasonable doubt, the existence of one of the aggravating factors under § 848(n)(1),¹ the jury may then consider other statutory aggravating factors.² If the jury unanimously finds, beyond a reasonable doubt, an additional statutory aggravating factor, it may also consider and find other, non-statutory, aggravating factors.

If the jury does not find the existence of an (n)(1) factor, the death penalty cannot be imposed. If the jury finds the existence of an (n)(1) factor, but does not find the existence of an additional statutory aggravating factor from § 848(n)(2)-(12), the death penalty cannot be imposed. If the jury finds an (n)(1) factor and an additional statutory aggravating factor, then it must consider whether these factors, together with any non-statutory aggravating factors, outweigh any mitigating factors found to exist. Mitigating factors may be established by a preponderance of the evidence. Only one juror need find the existence of a mitigating factor. If no juror finds the existence of any mitigating factors, the jury must consider whether the aggravating factors are sufficient to justify imposition of the death penalty. The jury's recommendation of the death penalty must be unanimous. If even one juror does not vote in favor of the death penalty, the court must impose a lesser sentence.

B. Analysis

1. Cruel and unusual punishment

Mr. Spivey argues that the death penalty is, under all circumstances, cruel and unusual punishment prohibited by the Eighth Amendment. He cites no authority in support of this contention but instead relies on moral arguments. Although morals necessarily serve as the wellspring of law, "in a democratic society, legislatures, not courts, are constituted to respond to the will and consequently the moral values of the people." Furman v. Georgia, 408 U.S. 238, 383, 92 S.Ct. 2726, 2800-01, 33 L.Ed.2d 346 (1972) (Burger, C.J., dissenting). Congress has enacted § 848, which permits imposition of the death penalty under certain circumstances, and its law must be presumed valid. See Gregg v. Georgia, 428 U.S. 153, 175, 96 S.Ct. 2909, 2926, 49 L.Ed.2d 859 (1976) (opinion of Stewart, Powell and Stevens, JJ.). Moreover, the Supreme Court rejected Mr Spivey's argument in Gregg and McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987). This Court is compelled to follow controlling precedent.

2. Fifth Amendment indictment clause

Defendant Spivey argues that § 848 violates the indictment clause of the Fifth Amendment and Federal Rule of Criminal Procedure 7(a) because it permits the Government merely to give notice of the aggravating factors it intends to prove in support of the death penalty rather than requiring a grand jury to charge those factors by way of indictment. Mr. Spivey contends that the aggravating factors set forth at § 848(n)(1) are in fact elements of the capital offense which must be charged by indictment, and which are necessary prerequisite findings to the jury's consideration of capital punishment. Therefore, the argument continues, the Government's notice containing the (n)(1) factors is in the nature of an impermissible information.

The Government responds that the definition of the offense in § 848(e), rather than the (n)(1) aggravating factors, contains the findings which are a necessary prerequisite to the jury's consideration of the death penalty as potential punishment. The indictment in this case charged the elements of § 848(e). (Second Super. Indictment ¶ 43). Thus, the Government contends that the (n)(1) aggravating factors are sentencing facts rather than elements of the charged offense, and that sentencing facts need not be included in an indictment.

The Fifth Amendment provides that "[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury," except in certain inapplicable instances. Federal Rule of Criminal Procedure 7(a) states: "An offense which may be punished by death shall be prosecuted by indictment." The Supreme Court interpreted these legal principles in Smith v. United States, 360 U.S. 1, 79 S.Ct. 991, 3 L.Ed.2d 1041 (1959), upon which Mr. Spivey relies heavily. However, Mr. Spivey misinterprets Smith.

In Smith, decided before Furman, the defendant was rushed through a post-arrest debriefing by a government agent and brought before a judge. The defendant waived indictment and immediately pleaded guilty to an information charging him with kidnaping. The judge sentenced him to 20 years. However, because the kidnaping statute permitted a death sentence under certain circumstances, even though the circumstances were not applicable to defendant Smith, the Supreme Court held that the charge must be prosecuted by indictment pursuant to the Fifth Amendment and Rule 7(a).

Mr. Spivey argues that because Smith was decided before Furman, its holding must be extended consistent with post-Furman case law, such that the aggravating factors underlying the death penalty also must be prosecuted by indictment. In other words, before Furman, a jury could, under some statutes, impose the death penalty upon the bare conviction of an offense, without being required to consider aggravating and mitigating circumstances. Since Furman, additional facts or aggravating factors beyond conviction of the offense must be established to justify imposition of capital punishment. Sumner v. Shuman, 483 U.S. 66, 107 S.Ct. 2716, 97 L.Ed.2d 56 (1987). From this, Spivey extrapolates a requirement that these sentencing factors must be included in the indictment in order to satisfy the Fifth Amendment and Rule 7(a).

The Court is not persuaded. Section 848 satisfies the Fifth Amendment, Rule 7(a), and post-Furman jurisprudence, and the aggravating factors need not be charged by indictment. The purpose of the Fifth Amendment indictment clause is to provide "a substantial safeguard against oppressive and arbitrary proceedings" and to prevent "summary treatment [of] those accused of one of our most serious crimes." Smith, 360 U.S. at 9, 79 S.Ct. at 997. Thus, even if capital punishment is available but not sought, as was the case in Smith, the underlying offense must be prosecuted by indictment. In the present case, even if Mr. Spivey were charged with the intentional killing of another while engaging in a CCE but the Government did not intend to seek the death penalty, the charged crime would have to be prosecuted by indictment.

Furman and its progeny did not extend Smith's holding to require that capital aggravating circumstances must also be charged by indictment. The evil Furman sought to eradicate was the type of statute that mandated the death penalty upon the bare conviction of an offense, without consideration of individual mitigating and aggravating factors. See Sumner, 483 U.S. at 78, 107 S.Ct. at 2723-24. Here, even if the defendant is convicted of intentionally killing while engaged in a CCE, capital punishment is only one possible penalty, and it cannot be imposed unless the jury has considered all relevant information in mitigation and has found beyond a reasonable doubt two aggravating factors. 21 U.S.C. § 848(c). Therefore, the statute does not suffer from the infirmity condemned in Furman.

Also unpersuasive is Mr. Spivey's argument that the aggravating factors constitute elements of the offense that must be charged by indictment. The elements of the offense are set forth in § 848(e)(1)(A)—the defendant must intentionally kill or cause intentional killing while the defendant is engaged in or working in furtherance of a CCE. Pursuant to the Fifth Amendment and Rule 7(a), each of these elements must be prosecuted by indictment. Only if the evidence establishes each of these elements is the defendant potentially subject to capital punishment.

The factors listed at § 848(n) are simply sentencing factors or aggravators which need not be charged by indictment. As the Supreme Court noted in Walton v. Arizona, 497 U.S. 639, 110 S.Ct....