U.S. v. Allen

• Decision Date: 02 February 2004
• Docket Number: No. 98-2549.,98-2549.
• Citation: 357 F.3d 745
• Parties: UNITED STATES of America, Plaintiff — Appellee, v. Billie Jerome ALLEN, Defendant — Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

357 F.3d 745

UNITED STATES of America, Plaintiff — Appellee, v. Billie Jerome ALLEN, Defendant — Appellant.

No. 98-2549.

United States Court of Appeals, Eighth Circuit.

Submitted: January 17, 2003.

Filed: February 2, 2004.

Joseph M. Landolt, Asst. U.S. Attorney, Mary Jane Lyle, U.S. Attorney's Office, St. Louis, MO, for Plaintiff-Appellee.

Billie Jerome Allen, Terre Haute, IN, Pro Se Michael A. Gross, St. Louis, MO, John William Simon, Clayton, MO, for Defendant-Appellant.

Before HANSEN,¹ Chief Judge, RICHARD S. ARNOLD and MELLOY, Circuit Judges.

MELLOY, Circuit Judge.

In United States v. Allen, 247 F.3d 741 (8th Cir.2001), we affirmed Billie Jerome Allen's death sentence, rejecting, inter alia, his argument that his sentence violated the Fifth Amendment Indictment Clause. Id. at 761-64. The Supreme Court, at 536 U.S. 953, 122 S.Ct. 2653, 153 L.Ed.2d 830 (2002), granted Allen's petition for writ of certiorari, vacated our decision, and remanded the case for reconsideration in light of Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). On reconsideration, we hold that the indictment in Allen's case failed to charge a federal capital offense, and that given Allen's timely objections this failure cannot be dismissed as harmless error. Accordingly, we vacate the death sentence and remand to the district court for imposition of a life sentence.

I.

In 1997, Billie Jerome Allen and Norris G. Holder killed security guard Richard Heflin during an armed robbery of the Lindell Bank & Trust in St. Louis. Both were charged with violating 18 U.S.C. §§ 2, 2113(a) and (e) (1994) (armed robbery by force or violence in which a killing occurs) (Count I) and 18 U.S.C. §§ 2, 924(c)(1) and (j)(1) (1994 and Supp. II 1996) (carrying or using a firearm during a crime of violence and committing murder) (Count II). In separate jury trials, Allen and Holder were convicted on both counts. The jury sentenced Allen to life in prison on Count I and death on Count II. Prior to trial, at sentencing, and on direct appeal, Allen argued that a death sentence in his case would violate the Fifth Amendment Indictment Clause. Specifically, Allen argued that the government's failure to allege in his indictment the mens rea specified in 18 U.S.C. § 3591(a)(2) and at least one aggravating factor from 18 U.S.C. § 3592(c), elements essential to a death sentence, was constitutional error in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

We rejected Allen's argument. At the time, our review of Supreme Court precedent and the Federal Death Penalty Act (FDPA) persuaded us that the mental culpability and aggravating factors were sentencing factors rather than elements of the offense. Allen, 247 F.3d at 762-64. This decision was premised on Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990), in which the Supreme Court, in upholding a state capital sentencing scheme, deemed aggravating circumstances not separate penalties or offenses but rather "`standards to guide the making of [the] choice between the alternative verdicts of death and life imprisonment.'" Id. at 648, 110 S.Ct. 3047 (quoting Poland v. Arizona, 476 U.S. 147, 156, 106 S.Ct. 1749, 90 L.Ed.2d 123 (1986)). Applying this reasoning to Allen's case, we explained that Apprendi was not implicated, and the Fifth Amendment Indictment Clause not violated, because the statutes at issue exposed Allen to either death or a life sentence, and thus the mental culpability and aggravating factors "d[id] not increase the sentencing range but rather provide[d] the particularized standards for choosing which of the alternative available sentences should be imposed." Allen, 247 F.3d at 763.

On June 24, 2002, the Supreme Court issued its decision in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556. Overturning Walton in relevant part, the Court held that any fact essential to imposition of the death penalty must be submitted to a jury and found beyond a reasonable doubt, even where the statute at issue authorizes alternative sentences of life or death. Ring, 536 U.S. at 609, 122 S.Ct. 2428. Because Arizona's death penalty could not be imposed without a finding of at least one aggravating factor, that factor operated as the functional equivalent of an essential element and could not be treated as merely a sentencing factor. Id.

The Supreme Court, at 536 U.S. 953, 122 S.Ct. 2653, 153 L.Ed.2d 830, subsequently granted Allen's petition for writ of certiorari, vacated our 2001 opinion, and remanded for reconsideration in light of Ring. On remand, we resolve the following question:

In light of Ring v. Arizona, was the indictment in this case sufficient to charge a capital offense, and, if not, must Allen's death sentence be vacated because no aggravating factors were charged in the indictment?²

II.

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[.]" U.S. Const. amend. V. The government concedes that in light of Ring, Apprendi, and Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), the Supreme Court would likely hold that at least one statutory aggravating factor specified in 18 U.S.C. § 3592(c) must be alleged in Allen's indictment. See Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987) (stating that a new rule for criminal prosecutions applies to all cases pending on direct review). We agree. Just as the aggravating factors essential to qualify a particular defendant as death eligible must be found by the jury under Apprendi and Ring, they too must be alleged in the indictment. See Ring, 536 U.S. at 609, 122 S.Ct. 2428 (concluding that where a state statute requires the finding of a statutory aggravating circumstance before imposition of the death penalty, such facts "operate as `the functional equivalent of an element of a greater offense'") (quoting Apprendi, 530 U.S. at 494 n. 19, 120 S.Ct. 2348); United States v. Cotton, 535 U.S. 625, 627, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002) ("In federal prosecutions, such facts [that increase the penalty for a crime beyond the prescribed statutory maximum] must also be charged in the indictment") (citing Apprendi, 530 U.S. at 476, 120 S.Ct. 2348, and Jones, 526 U.S. at 243 n. 6, 119 S.Ct. 1215); Apprendi, 530 U.S. at 476, 490, 120 S.Ct. 2348 (applying principles "foreshadowed" in Jones to a state prosecution, and holding, on Fourteenth Amendment due process grounds, that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt");<sup>3</sup> Jones, 526 U.S. at 243 n. 6, 119 S.Ct. 1215 (1999) ("[U]nder the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than a prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt."). See also United States v. Jackson, 327 F.3d 273, 286-87 (4th Cir.2003) (Neimeyer, J., conc.) (concluding, after Ring, that an aggravating factor necessary to the imposition of the federal death penalty must also be alleged in the indictment); United States v. Higgs, 353 F.3d 281, 297 (4th Cir.2003) ("any factor required to be submitted to the jury must be included in the indictment"); United States v. Regan, 221 F.Supp.2d 672, 679 (E.D.Va.2002) ("[I]n light of Jones's requirement that `any fact ... that increases the maximum penalty for a crime must be charged in an indictment,' it appears to be a foregone conclusion that aggravating factors that are essential to the imposition of the death penalty must appear in the indictment.") (quoting Jones, 526 U.S. at 243 n. 6, 119 S.Ct. 1215).

We start, then, from the premise that inclusion in Allen's indictment of at least one statutory aggravating factor from 18 U.S.C. § 3592(c) was constitutionally mandated. See Apprendi, 530 U.S. at 490 n. 15, 120 S.Ct. 2348 ("The indictment must contain an allegation of every fact which is legally essential to the punishment to be inflicted.") (quoting United States v. Reese, 92 U.S. 214, 232-33, 23 L.Ed. 563 (1875) (Clifford, J., dissenting) (emphasis added)). Allen argues that his indictment included no statutory aggravators and thus his death sentence cannot stand. The government defends the sentence on two grounds. First, the government argues that Allen's indictment sufficiently alleged the requisite elements for imposition of the death penalty. Second, if error is found, the government argues that the error is harmless. We find neither argument persuasive.

A. Sufficiency of the Indictment

"To be sufficient, an indictment must `contain[] the elements of the offense charged.'" United States v. Olson 262 F.3d 795, 799 (8th Cir.2001) (quoting Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974)). Where a statutory aggravating factor operates as the functional equivalent of an element, it too must be noticed in the indictment. Although the indictment "must be a plain, concise, and definite written statement of the essential facts constituting the offense," Fed.R.Crim.P. 7(c)(1), it "need not be perfect, and common sense and reason prevail over technicalities." United States v. Sabbeth, 262 F.3d 207, 218 (2d Cir.2001) (citation omitted). A challenge to the sufficiency of an indictment is reviewed de novo. United States v. White, 241 F.3d 1015, 1020 (8th Cir.2001).

The indictment at issue charged Allen and his co-defendant jointly in two counts. Count one charged a violation of 18 U.S.C. §§ 2, 2113(a) and (e), and alleged that the defendants

by force, violence, and intimidation did take from the person or presence of another, a quantity of United States currency,...