U.S. v. Cheever, CRIM.A. 05-10050-01.

• Citation: 423 F.Supp.2d 1181
• Decision Date: 29 March 2006
• Docket Number: No. CRIM.A. 05-10050-01.,CRIM.A. 05-10050-01.
• Parties: UNITED STATES of America, Plaintiff, v. Scott D. CHEEVER, Defendant.
• Court: U.S. District Court — District of Kansas

423 F.Supp.2d 1181

UNITED STATES of America, Plaintiff, v. Scott D. CHEEVER, Defendant.

No. CRIM.A. 05-10050-01.

United States District Court, D. Kansas.

March 29, 2006.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

David M. Lind, Lanny D. Welch, Office of United States Attorney, Wichita, KS, Stephen D. Maxwell, Office of Attorney General, Topeka, KS, for Plaintiff.

MEMORANDUM AND ORDER

BELOT, District Judge.

This case comes before the court on two motions filed by defendant that attack the constitutionality of the Federal Death Penalty Act, 18 U.S.C. §§ 3591 to 3598, and the constitutionality of these proceedings as they relate to the government's efforts to seek the death penalty against him. (Docs. 145, 146.) The government has filed a consolidated response to both motions. (Doc. 191.) No reply has been filed.

I. INTRODUCTION

Defendant is charged in a thirteen-count third superseding indictment with crimes arising out of an altercation with law enforcement on or about January 19, 2005. (Doc. 200.) The government claims that defendant and a number of former co-defendants were manufacturing methamphetamine at a rural home in Greenwood County, Kansas. Responding to a tip that defendant was at this residence, Greenwood County Sheriff Matthew Samuels and two deputies went to the house to investigate. Sheriff Samuels entered the house. Shortly thereafter, the government alleges that defendant shot the sheriff twice with a .44 magnum revolver at close range. Sheriff Samuels died as a result of those wounds. (Doc. 200.)

Among other offenses, Count Five of the indictment charges defendant with murder through the use of a firearm during the commission of a drug trafficking crime, in violation of 18 U.S.C. §§ 924(c)(1), (j)(1). Count Six charges defendant with murder to prevent a witness from communicating to federal officials information relating to the commission of federal crimes, in violation of 18 U.S.C. § 1512(a)(1)(C). The government's theory on Count Six is that defendant killed Sheriff Samuels to prevent him from informing federal officials that defendant was a felon in possession of firearms, that he knowingly possessed stolen firearms, and that defendant may have been involved in a bank robbery. (Doc. 200 at 6.) The crimes charged in Counts Five and Six each carry a maximum sentence of death.

The government also included in the indictment a section labeled "Notice of Special Findings." (Doc. 200 at 10.) In this portion of the indictment, the grand jury returned findings related to the factors set forth in 18 U.S.C. §§ 3591(a) and 3592(c). These sections are contained in Chapter 228 of Title 18, which prescribes procedures for determining whether a defendant should be sentenced to death. The indictment states that defendant was over 18 years of age at the time of the charged offenses. This fact is an absolute prerequisite to imposing a death sentence under section 3591(a). The indictment also charges that defendant had all four of the requisite mental states specified under section 3591(a)(2). These mental states are often referred to as "gateway intent factors" because a petit jury must find that a defendant had at least one of these four mental states before it may consider whether to recommend a death sentence.¹ Finally, the Notice of Special Findings charges three of the statutory aggravating factors listed in section 3592(c): 1) Grave risk of death to additional persons; 2) substantial planning and premeditation; and 3) multiple killings or attempted killings.

Defendant filed a number of motions attacking the_ procedure followed by the government. (Does. 140 through 146.) This memorandum and order addresses two of those motions, (Does. 145, 146), which focus sharply on the constitutionality of the Federal Death Penalty Act and on the government's procedure in this case.

II. THE FEDERAL DEATH PENALTY ACT

Capital punishment has been an accepted penalty for the most severe crimes since the founding of the Republic. See generally McGautha v. California, 402 U.S. 183, 197-203, 91 S.Ct. 1454, 1462-65, 28 L.Ed.2d 711 (1971) (reviewing history of capital punishment from 13th century England through modern era in America); see also Trop v. Dulles, 356 U.S. 86, 99, 78 S.Ct. 590, 597, 2 L.Ed.2d 630 (1958) ("[T]he death penalty has been employed throughout our history, and, in a day when it is still widely accepted, it cannot be said to violate the constitutional concept of cruelty."). Nevertheless, in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), the Supreme Court upended almost two centuries of death penalty jurisprudence by effectively putting a halt to capital punishment in America. The Court did not find the death penalty categorically unconstitutional; rather, in a series of concurring opinions in which no two justices joined together, the Court found that the procedures employed to impose the death penalty lacked the standards necessary to guide the sentencing body (whether judge or jury) toward a principled judgment regarding who should be put to death and who should be spared. See id. at 240 (Douglas, J., concurring); id. at 295, 92 S.Ct. 2726 (Brennan, J., concurring); id. at 309-10, 92 S.Ct. 2726 (Stewart, J., concurring); id. at 314, 92 S.Ct. 2726 (White, J., concurring); id. at 37, 92 S.Ct. 27261 (Marshall, J., concurring).² This unbridled discretion allowed capital juries to set their own standards for making this solemn decision, thus rendering the entire process so arbitrary and capricious as to violate the Eighth Amendment. See Gregg v. Georgia, 428 U.S. 153, 188-89, 96 S.Ct. 2909, 2932, 49 L.Ed.2d 859 (1976) (plurality opinion) (describing the basis for the decision in Furman).

In response to Furman, many states modified their procedures for administering the death penalty. In 1976, the Supreme Court reviewed the responses from the states of Georgia, Florida, and Texas. See id.; Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976). These cases reaffirmed the Court's abhorrence of capital punishment schemes that permit a death sentence to be imposed in an arbitrary standardless fashion. See Godfrey v. Georgia, 446 U.S. 420, 428, 100 S.Ct. 1759, 1764-65, 64 L.Ed.2d 398 (1980) (plurality opinion). Accordingly, even sentencing procedures purporting to have standards that were responsive to Furman could be unconstitutional if they failed to

channel the sentencer's discretion by "clear and objective standards" that provide "specific and detailed guidance," and that "make rationally reviewable the process for imposing a sentence of death." As was made clear in Gregg, a death penalty "system could have standards so vague that they would fail adequately to channel the sentencing decision patterns of juries with the result that a pattern of arbitrary and capricious sentencing like that found unconstitutional in Furman could occur." 428 U.S. at 195, n. 46, 96 S.Ct. at 2935, n. 46.

Id. (quoting Gregg, 428 U.S. at 198, 96 S.Ct. at 2936; Proffitt, 428 U.S. at 253, 96 S.Ct. at 2967; Woodson v. North Carolina, 428 U.S. 280, 303, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976)) (footnotes omitted). Although the Supreme Court concluded that the sentencing procedures employed by Texas, Florida, and Georgia were constitutional, during that same term, the Court also found that mandatory death sentences for certain crimes were unconstitutional, and that the Eighth Amendment required individualized sentencing that considers facts peculiar to the specific defendant and the specific crime under consideration. See Woodson, 428 U.S. at 303-04, 96 S.Ct. at 2991 (plurality opinion); Roberts v. Louisiana, 428 U.S. 325, 333, 96 S.Ct. 3001, 3006, 49 L.Ed.2d 974 (1976) (plurality opinion).

In the years since Furman and the five capital cases from the 1976 term, the Supreme Court has revisited its death penalty jurisprudence numerous times. Although its purpose was undoubtedly to refine and clarify the law in this area, the Supreme Court's perpetual tinkering and splintered decisions regarding death penalty law has created a moving target that often changes term-by-term. Sometimes the decisions flow from one another; but on other occasions, what was a well settled rule of law in one decade is found repugnant to the Constitution in the next. Compare Walton v. Arizona, 497 U.S. 639, 647-49, 110 S.Ct. 3047, 3054-55, 111 L.Ed.2d 511 (1990) (permitting a judge to decide facts that make a defendant eligible for the death penalty), with Ring v. Arizona, 536 U.S. 584, 609, 122 S.Ct. 2428, 2443, 153 L.Ed.2d 556 (2002) (overruling Walton on this same point); compare South Carolina v. Gathers, 490 U.S. 805, 810-11, 109 S.Ct. 2207, 2210-11, 104 L.Ed.2d 876 (1989) (holding it unconstitutional to admit evidence of a victim's personal characteristics at the penalty phase of a capital trial), and Booth v. Maryland, 482 U.S. 496, 509, 107 S.Ct. 2529, 2536, 96 L.Ed.2d 440 (1987) (same), with Payne v. Tennessee, 501 U.S. 808, 828-30, 111 S.Ct. 2597, 2610-11, 115 L.Ed.2d 720 (1991) (expressly overruling Booth and Gathers on this point). Lower courts administering capital cases are severely burdened with not only understanding the present state of the law, but also divining what it will be next week, next term, or ten years from now when cases presently being tried may still be in the throes of appellate review. Any uncertainty in death penalty cases magnifies the already considerable expenditure of time and resources, not to mention the emotional toll on those involved, particularly at the trial level.

Amidst this sea of constant change, Congress permitted the death penalty laws in federal cases to remain largely unenforceable for over twenty years following Furman. See H.R.Rep. No. 103-467 (1994). Nevertheless, in 1974, Congress did pass an amendment to the Federal Aviation Act of 1958 that authorized the death...