U.S. v. Beckford

Decision Date06 May 1997
Docket NumberCriminal No. 3:96CR66-01.,Criminal No. 3:96CR66-05.,Criminal No. 3:96CR66-07.,Criminal No. 3:96CR66-06.
Citation964 F.Supp. 993
CourtU.S. District Court — Eastern District of Virginia
PartiesUNITED STATES of America v. Dean Anthony BECKFORD, Claude Gerald Dennis, Leonel Romeo Cazaco and Richard Anthony Thomas.

David Novak, Stephen Miller, Andrew McBridge, Asst. U.S. Attys., Richmond, VA, for Government.

Gerald T. Zerkin, Robert J. Wagner, Richmond, VA, for Dean Anthony Beckford.

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

Reginald M. Barley, Richmond, VA, Cary B. Bowen, Bowen & Bowen, Richmond, VA, for Leonel Romeo Cazaco.

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


PAYNE, District Judge.

Defendants Dean Anthony Beckford, Claude Gerald Dennis, Leonel Romeo Cazaco and Richard Anthony Thomas are charged with intentional murder in furtherance of a Continuing Criminal Enterprise in violation of 21 U.S.C. § 848(e). 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. As required, the notice sets forth the statutory and non-statutory aggravating factors upon which the Government will rely as the basis for urging imposition of the death penalty. One of the non-statutory aggravating factors delineated is the likelihood that the defendants will engage in dangerous conduct in the future. To prove this factor, the Government intends to introduce, at the penalty phase (if there is one), evidence of the defendants' unadjudicated criminal conduct. The issue for decision is the standard of proof to which the Government should be held to in proving the unadjudicated acts.1


Section 848(j) of Title 21, United States Code, provides that: "[t] he burden of establishing the existence of any aggravating factor is on the Government, and is not satisfied unless established beyond a reasonable doubt." (emphasis added). The defendants urge that, in addition to this statutory requirement, any unadjudicated criminal conduct which the Government intends to offer in support of an aggravating factor must be barred from the jury's consideration unless the Court first finds, and thereafter the jury, that the Government has proven that conduct by clear and convincing evidence.2

The defendants' position is best understood by considering a concrete example. For instance, in its notice of intent to seek a sentence of death, the Government asserted that it intends to establish Dean Beckford's "future dangerousness" as a non-statutory aggravating factor. To that end, the Government will attempt to show "the probability that the defendant would commit criminal acts of violence constituting a continuing threat to society, as evidenced by some or all of the following:"

(a) On or about January 1, 1989, in Queens County, New York, the defendant DEAN ANTHONY BECKFORD assisted in disposing of the body of George Chang after he was shot and killed by Phillip Pierre;

* * * * * *

(c) Throughout the Fall of 1989, in Richmond, Virginia, the defendant DEAN ANTHONY BECKFORD jointly possessed with the defendant CLAUDE GERALD DENNIS a Glock 9mm semi-automatic pistol with two 17-round magazines and a 9mm Baretta semiautomatic pistol with a seventeen round magazine, which firearms the defendants ... used on an "as needed" basis to protect and further their drug trafficking enterprise.

See Amended Notice of Intent to Seek a Sentence of Death (April 25, 1997). Considered in perspective of this notice, the defendants' motion would require the Court, at the pre-trial stage, and the jury, at the penalty phase, to find by clear and convincing evidence that Beckford committed each of the acts, (a) and (c), offered by the Government in support of the future dangerousness aggravating factor.3 For the reasons which follow, the Court declines to follow that course.

A. Unadjudicated Criminal Conduct is not Per Se Inadmissible

The Supreme Court has not held specifically that unadjudicated criminal conduct can be introduced in the sentencing phase of a capital trial. However, on at least four occasions, two Justices strenuously have urged the Court to resolve that serious constitutional question because it was a recurring one which had prompted conflicting decisions among the states. The same two Justices also voiced doubt that admitting unadjudicated conduct at the sentencing phase of a capital trial would be consistent with the heightened reliability required by the Eighth and Fourteenth Amendments. See Williams v. Lynaugh, 484 U.S. 935, 108 S.Ct. 311, 98 L.Ed.2d 270 (1987) (Marshall, J., joined by Brennan, J. dissenting from denial of certiorari); Robertson v. California, 493 U.S. 879, 110 S.Ct. 216, 107 L.Ed.2d 169 (1989) (same) Devier v. Kemp, 484 U.S. 948, 108 S.Ct. 338, 98 L.Ed.2d 365 (1987) (same); Miranda v. California, 486 U.S. 1038, 108 S.Ct. 2026, 100 L.Ed.2d 613 (1988) (same). Notwithstanding these promptings, the issue remains unsettled by the Supreme Court.

The states are divided over this question. For instance, when the last survey on the topic was completed, as of 1993, six states allowed introduction of unadjudicated conduct almost without limitation; ten states allowed the admission of such evidence pursuant to certain procedural safeguards; and eight states absolutely prohibited the introduction of unadjudicated conduct. See Steven Paul Smith, Unreliable and Prejudicial: The Use of Extraneous Unadjudicated Offenses in the Penalty Phase of Capital Trials, 93 Colum.L.Rev. 1249, 1250 (1993).

Arguments for excluding unadjudicated criminal conduct include the following. First, is the concern that the inflammatory nature of the unadjudicated acts might undermine the heightened reliability required in capital cases. Second, is the fundamental premise "that a person is presumed innocent until proven guilty through reliable procedures, including an impartial and untainted jury." United States v. Davis, 912 F.Supp. 938, 946 (E.D.La.1996). Under this theory, even if the government must prove the criminal conduct at the penalty phase pursuant to a high burden of proof, a finding of such conduct is unreliable because that phase does not contain the evidentiary rules which govern the guilt phase. Moreover, because the sentencing jury already would have found the defendant guilty of a serious crime (or crimes) in the guilt phase of a capital trial, there exists a perceived risk that the jury may be so biased as to preclude fair evaluation of the unadjudicated criminal conduct introduced in the penalty phase. For these reasons, several states exclude unadjudicated conduct to protect the due process right to an impartial jury. See Williams v. Lynaugh, 484 U.S. at 938, 108 S.Ct. at 313-14 (Marshall, J., Brennan, J., dissenting from denial of certiorari). The third reason used to justify exclusion of this sort of evidence is that "the introduction of other alleged crimes [could] entail[] a full blown adversarial hearing since the government must present evidence of each separate offense sufficient to prove the [aggravating factor] beyond a reasonable doubt." Davis, 912 F.Supp. at 948-49. This, it is asserted, presents the potential for unmanageable mini-trials on collateral issues.

None of these reasons provides a particularly persuasive basis upon which to impose a per se ban on the admission of unadjudicated criminal acts in the penalty phase of a capital trial. Each point will be considered in turn. A jury's punishment decision is made more reliable if the jury is fully informed about the crime and the offender. If unadjudicated conduct is relevant and reliable, then the jury should be permitted to consider it. This will underscore, not undermine, the heightened reliability of the sentencing decision. Put differently, heightened reliability does not require the exclusion of reliable, relevant evidence simply because the information may prove detrimental to the defendant. To find otherwise, would ignore the interest in ensuring the correct sentence, which ultimately is the goal of the heightened reliability requirements.

Nor does the jury's decision to convict the defendant at the guilt phase mean that its subsequent consideration of the unadjudicated conduct will be tainted in any constitutionally deficient way. To the contrary, the time-tested, constitutionally acceptable, means for assuring fair sentencing by the use of proper procedures and appropriate instructions serves to fully inform the jury as to its obligations and as to the limitations within which it must operate.

Finally, the apprehension of numerous mini-trials respecting the existence of unadjudicated conduct supplies an insufficient basis to wholly exclude such conduct in capital sentencing proceedings. Courts regularly resolve difficult and close questions about the admissibility of evidence and the offering of proofs. The procedures and trial management techniques by which this is usually accomplished will apply even though the proceeding involves capital punishment.

Virginia is one of those states which permits use of unadjudicated conduct in its capital cases. Thus, in the Eastern District of Virginia, the district courts have been called upon, on habeas corpus review, to assess whether such evidence is irrelevant, unreliable, or may be used only if found beyond a reasonable doubt. For instance, in Breard v. Netherland, 949 F.Supp. 1255, 1267 (E.D.Va. 1996) (Williams, J.), the Court explained that it previously had rejected claims that the aggravating factor, future dangerousness, is unreliable because it may be proved with unadjudicated criminal acts. Therefore, in Breard, the Court found that it was not error for the Virginia trial court to have refused a jury instruction that all alleged unadjudicated...

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