U.S. v. Beckford

• Citation: 966 F.Supp. 1415
• Decision Date: 03 June 1997
• Docket Number: Criminal Action No. 3:96CR66-(05).,Criminal Action No. 3:96CR66-(07).,Criminal Action No. 3:96CR66-(06).,Criminal Action No. 3:96CR66-(01).
• Court: U.S. District Court — Eastern District of Virginia
• Parties: UNITED STATES of America v. Dean Anthony BECKFORD, Claude Gerald Dennis, Leonel Romeo Cazaco, Richard Anthony Thomas.

966 F.Supp. 1415

UNITED STATES of America v. Dean Anthony BECKFORD, Claude Gerald Dennis, Leonel Romeo Cazaco, Richard Anthony Thomas.

Criminal Action No. 3:96CR66-(01).

Criminal Action No. 3:96CR66-(05).

Criminal Action No. 3:96CR66-(06).

Criminal Action No. 3:96CR66-(07).

United States District Court, E.D. Virginia, Richmond Division.

June 3, 1997.

COPYRIGHT MATERIAL OMITTED

David Novak, Stephen Miller, Andrew McBridge, Asst. U.S. Attorney's, Office of U.S. Atty., Richmond, VA, for Government.

Gerald T. Zerkin, Richmond, VA, for Mr. Beckford.

John C. Jones, Quinton, VA, Scott Brettschneider, Kew Gardens, NY, for Mr. Dennis.

David P. Baugh, Richmond, VA, Elizabeth D. Scher, Morchower, Luxton & Whaley, Richmond, VA, for Mr. Thomas.

MEMORANDUM OPINION

PAYNE, District Judge.

Defendants Dean Anthony Beckford, Claude Gerald Dennis, Leonel Romeo Cazaco and Richard Anthony Thomas ("the defendants") are charged in a thirty-seven count indictment with offenses including, intentional murder in furtherance of a Continuing Criminal Enterprise in violation of 21 U.S.C. § 848(e)(1)(A). Pursuant to 21 U.S.C. § 848(h), the Government notified each defendant that it intends to seek a penalty of death in the event of conviction. The defendants have filed a motion to dismiss Counts 5, 6, 10, 11, and 12 of the Superseding Indictment and to quash the applicable provisions in the Government's notice of intent to seek a penalty of death on the basis that 21 U.S.C. § 848(e)(1)(A), murder in furtherance of a continuing criminal enterprise ("CCE"), is unconstitutional, both on its face and as applied.¹

According to the defendants, Section 848(e)(1)(A) violates the Fifth Amendment Due Process Clause and the Eighth Amendment of the United States Constitution because it prevents the Court from instructing the jury on lesser included homicide offenses. The defendants further assert that Section 848(e)(1)(A) violates the Equal Protection Clause of the Fourteenth Amendment because the right to a lesser included homicide offense instruction in a capital case is a fundamental right. In particular, the defendants contend that, because Congress drafted other federal, capital crimes to contain lesser included homicide offenses, the failure of Congress to provide a lesser included homicide offense in Section 848(e)(1)(A) creates a classification which affects a fundamental right. For the following reasons, the Court finds that Section 848(e)(1)(A) is constitutional on its face and as-applied, and therefore denies the defendants' motion.

DISCUSSION

I. SECTION 848(E)(1)(A) DOES NOT VIOLATE THE FIFTH OR EIGHTH AMENDMENTS

A. Section 848 Contains No Lesser Included Homicide Offense Nor Can Such Offenses be Implied

To prove murder in furtherance of a continuing criminal enterprise, the Government must show that the defendants "engag[ed] in or work[ed] in furtherance of a continuing criminal enterprise, or ... engag[ed] in an offense punishable under section 841(b)(1)(A) of ... title [21] ... [and] intentionally kill[ed] or counsel[ed], command[ed], induc[ed], procur[ed] or caus[ed] the intentional killing of an individual and such killing result[ed]." 21 U.S.C. § 848(e)(1)(A). In addition, the Fourth Circuit has held that the Government must show a substantive connection between the murder and the predicate offense; that is, proof of temporal coincidence will not support a conviction. United States v. Tipton, 90 F.3d 861, 887 (4th Cir. 1996) (finding that jury instructions sufficiently required proof of substantive connection between the murder and the continuing criminal enterprise offense), cert. denied, ___ U.S. ___, 117 S.Ct. 2414, 138 L.Ed.2d 179 (1997).

The text of Section 848(e) confirms the defendants' claim that the statute neither substantively defines, nor contains penalties for, grades of homicide lesser than intentional killing which may be committed in furtherance of a CCE or a drug crime, as defined by the statute. In addition, an examination of Title 18 homicide offenses verifies that other, federal homicide statutes, such as voluntary manslaughter and second degree murder, 18 U.S.C. §§ 1111, 1112, cannot serve as lesser included offenses because offenses such as those must be committed within the maritime or territorial jurisdiction of the United States in order to be federally prosecuted. By way of contrast, a Section 848(e)(1)(A) killing need not occur within federal territorial jurisdiction. Rather, to satisfy the federal jurisdictional nexus of that statute, the killing must be committed in furtherance of the CCE or while the defendant is engaged in certain, enumerated federal drug crimes.

Finally, the courts cannot imply lesser included homicide offenses to Section 848(e)(1)(A) because there are no common law federal crimes. And, of course, only Congress can "make an act a crime, affix a punishment to it, and declare the Court that shall have jurisdiction ..." Keeble v. United States, 412 U.S. 205, 215, 93 S.Ct. 1993, 1999, 36 L.Ed.2d 844 (1973) (Stewart, J. Dissenting, joined by Powell, J. and Rehnquist, J.) (quoting United States v. Hudson, 7 Cranch 32, 11 U.S. 32, 3 L.Ed. 259 (1812)); see generally United States v. Harrelson, 754 F.2d 1153 (5th Cir.), reh'g denied 766 F.2d 186 ("there are no federal common law crimes only statutory ones"; jury cannot convict for conspiring to commit non-existent offense), cert. denied, 474 U.S. 908, 106 S.Ct. 277, 88 L.Ed.2d 241 (1985). Even if a court had the power to imply a lesser homicide offense upon discerning Congressional intent to do so, Section 848 provides no indication that Congress harbored such an intent. Therefore, it is necessary to address the defendants' contention that the absence of lesser included homicide offenses renders Section 848 unconstitutional.

B. The Lesser Included Offense Doctrine

The constitutional analysis of Section 848 begins with Keeble v. United States, 412 U.S. 205, 93 S.Ct. 1993, 36 L.Ed.2d 844, wherein the Supreme Court explained the origins of the lesser included offense doctrine, remarking that,

Although the lesser included offense doctrine developed at common law to assist the prosecution in cases where the evidence failed to establish some element of the offense originally charged, it is now beyond dispute that the defendant is entitled to an instruction on a lesser included offense if the evidence would permit a jury rationally to find him guilty of the lesser offense and acquit him of the greater. The Federal Rules of Criminal Procedure deal with lesser included offenses, see Rule 31(c), and the defendant's right to such an instruction has been recognized in numerous decisions of this Court.

Id. at 208, 93 S.Ct. at 1995 (emphasis added) (citations omitted). In Keeble, the Supreme Court found a statutory basis for implying a lesser included offense of simple assault within the greater crime of assault with intent to commit serious bodily injury as charged under the Major Crimes Act, 18 U.S.C. §§ 1153, 3242. However, in dicta, which has since taken greater significance the Court examined the constitutional underpinnings on the need for instructions on lesser included offenses. In so doing, the Court observed that it had never "explicitly held that the Due Process Clause of the Fifth Amendment guarantees the right of a defendant to have the jury instructed on a lesser included offense." Id. at 213, 93 S.Ct. at 1998. It was "nevertheless clear" to the Court that "a construction of the Major Crimes Act to preclude such an instruction would raise difficult constitutional questions." Id. That remark was preceded by the observation that:

... it is no answer to petitioner's demand for a jury instruction on a lesser offense to argue that a defendant may be better off without such an instruction. True, if the prosecution has not established beyond a reasonable doubt every element of the offense charged, and if no lesser offense is offered, the jury must, as a theoretical matter, return a verdict of acquittal. But a defendant is entitled to a lesser offense instruction in this context or any other — precisely because he should not be exposed to the substantial risk that the jury's practice will diverge from theory. Where one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction. In the case before us, for example, an intent to commit serious bodily injury is a necessary element of the crime with which petitioner was charged, but not of the crime of simple assault. Since the nature of petitioner's intent was very much in dispute at trial, the jury could rationally have convicted him of simple assault if that option had been presented. But the jury was presented with only two options: convicting the defendant of assault with intent to commit great bodily injury, or acquitting him outright. We cannot say that the availability of a third option — convicting the defendant of simple assault — could not have resulted in a different verdict.

Id. at 212-13, 93 S.Ct. at 1997-98 (emphasis added).

Seven years later, the dicta from Keeble assumed a place of prominence in Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), wherein the Supreme Court had occasion to examine the constitutional implications of a failure to give lesser included offense instructions to a jury in the context of a capital trial. As will be explained below, Beck's status as the seminal case on the lesser included offense doctrine and the confusion that surrounds the scope of that doctrine necessitates a fulsome exposition of its facts, reasoning, and holding.

In Beck, the Supreme Court granted certiorari to decide whether:

[A] sentence of death constitutionally [may] be imposed after a jury verdict of guilt of a capital offense, when the jury was not permitted to consider a verdict of guilt of a lesser included non-capital offense,...