U.S. v. Church

• Decision Date: 09 July 2001
• Docket Number: No. 1:00CR00104.,1:00CR00104.
• Parties: UNITED STATES of America v. Walter Lefight CHURCH and Samuel Stephen Ealy, Defendants.
• Court: U.S. District Court — Western District of Virginia

151 F.Supp.2d 715

UNITED STATES of America v. Walter Lefight CHURCH and Samuel Stephen Ealy, Defendants.

No. 1:00CR00104.

United States District Court, W.D. Virginia, Abingdon Division.

July 9, 2001.

Thomas J. Bondurant, Jr., and Anthony P. Giorno, Office of the United States Attorney, Roanoke, Virginia, for United States of America.

James C. Turk, Jr., Stone, Harrison & Turk, P.C., Radford, Virginia, and Beverly M. Davis, Davis, Davis & Davis, Radford, Virginia, for Defendant Walter Lefight Church.

Thomas R. Scott, Jr., Street Law Firm, Grundy, Virginia, and Thomas M. Blaylock, Roanoke, Virginia, for Defendant Samuel Stephen Ealy.

OPINION AND ORDER

JONES, District Judge.

The government seeks to impose the death penalty against the defendants under the Federal Death Penalty Act of 1994 for offenses that allegedly occurred in 1989. I find that the imposition of the death penalty under these circumstances would violate the Ex Post Facto Clause of the Constitution. On the other hand, I find that the offenses are not barred by the noncapital statute of limitations, since the limitations period depends on the capital nature of the crime, and not on whether the death penalty is in fact available for defendants in a particular case.

I

A Superceding Indictment was returned on February 15, 2001, charging the defendants, Walter Lefight Church and Samuel Steven Ealy, with various federal crimes related to the killings of Robert Davis, Una Davis, and Robert Hopewell on April 16, 1989. Counts Five, Six, and Seven of the Superceding Indictment charge both defendants with violating 18 U.S.C.A. § 1512(a)(1)(C) (West 2000), which prohibits the killing of another person with intent to prevent communication about a possible federal offense. In its Notices of Intent to Seek the Death Penalty, the government identifies the crimes charged in Counts Five, Six, and Seven as justifying the imposition of the death penalty against Church and Ealy if convicted.¹

The defendants have moved to strike the death penalty on the basis that the death penalty was not available for violations of § 1512(a)(1)(C) at the time the alleged crime occurred. The statute read on April 16, 1989, as follows: "The punishment for an offense under this subsection is (A) in the case of a killing, the punishment provided in sections 1111 and 1112 of this title ...." 18 U.S.C.A. § 1512(a)(2)(A) (West 1990). The death penalty provision relevant to § 1512(a), therefore, appears in 18 U.S.C.A. § 1111(b), which provided in 1989: "Whoever is guilty of murder in the first degree, shall suffer death unless the jury qualifies its verdict ..., in which event he shall be sentenced to imprisonment for life." 18 U.S.C.A. § 1111(b) (West 1990).

The defendants contend that despite the statutory language authorizing the imposition of the death penalty for violations of § 1512, relevant case law proves that the death penalty was not constitutionally enforceable at the time of their alleged commission of the crimes in this case. Thus, they argue that if they are convicted, the imposition of the death penalty would violate the Ex Post Facto Clause of the Constitution. See U.S. Const. art. I, § 9. I agree. For reasons discussed below, I will grant the defendants' motions to strike the death penalty.

II

A

In 1972, the Supreme Court held that the imposition of the death penalty under certain circumstances constituted cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. Furman v. Georgia, 408 U.S. 238, 239-40, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). Although the per curiam opinion is terse and does not discuss the Court's reasoning, it is generally accepted that Furman "held the discretionary imposition of a death penalty unconstitutional." United States v. Gonzalez, 922 F.2d 1044, 1048 (2d Cir.1991); see also United States v. Donley, 878 F.2d 735, 739 n. 8 (3d Cir.1989) ("[T]he discretionary imposition of the death penalty was held unconstitutional in Furman v. Georgia ...."). Therefore, the death penalty as provided for in several state and federal statutes became unenforceable following the Furman decision.

Specifically, several federal courts of appeals, including the Fourth Circuit, recognized the death penalty provision of 18 U.S.C.A. § 1111 as unconstitutional until 1994, when the Federal Death Penalty Act of 1994 was enacted with procedures that passed constitutional muster under Furman. See Pub.L. No. 103-322, tit. VI, §§ 60001-60026, 108 Stat. 1796, 1959-1982 (1994) (codified as amended at 18 U.S.C.A. §§ 3591-3598 (West 2000)). In 1973, the Fourth Circuit stated in dicta that "[s]ince the penalty provision of § 1111 is indistinguishable from those challenged in Furman, it is clear that, had the death penalty been imposed on defendant, such a sentence would have been void." United States v. Watson, 496 F.2d 1125, 1126 (4th Cir.1973). Again in 1973, the Fourth Circuit noted that the only penalty available under § 1111 after Furman was life imprisonment. See United States v. Woods, 484 F.2d 127, 138 (4th Cir.1973). In 1987, the court stated that it was "unlikely that the federal death penalty [in § 1111] can constitutionally be imposed in its current form." United States v. Juvenile Male, 819 F.2d 468, 470 (4th Cir.1987).

While the Fourth Circuit opinions addressing the issue did so in dicta, other circuits directly recognized the unconstitutionality of the death penalty in § 1111. In United States v. Kaiser, 545 F.2d 467 (5th Cir.1977), the Fifth Circuit set aside a death sentence under § 1111, stating, "We have no doubt that the Constitution has dealt this statute a lethal blow." Id. at 469. The court acknowledged the general consensus regarding the federal death penalty: "[T]he unanimous post-Furman understanding of federal courts, federal prosecutors, and Congress appears to [be] that the death penalty [cannot] constitutionally be imposed under § 1111." Id. at 470. It rejected the government's argument to the contrary as "border[ing] on the audacious." Id. at 471. Indeed, several circuits accepted as fact that the only punishment in § 1111 with continuing validity was life imprisonment. See United States v. Gonzalez, 922 F.2d at 1048; United States v. Donley, 878 F.2d at 739 n. 8.

Because 18 U.S.C.A. § 1512(a)(2) incorporates by reference the death penalty from 18 U.S.C.A. § 1111, the death penalty would have been void as to § 1512 crimes as well. While many cases addressed the unconstitutionality of the imposition of the death penalty in § 1111 standing alone, at least one court encountered a challenge to a conviction under § 1512(a)(1)(A), the same statute charged against the defendants in the present case. In an unpublished opinion, the Eastern District of Pennsylvania granted the defendant's motion to disallow the death penalty in a prosecution under § 1512(a)(1)(A). See United States v. Burke, No. 92-00268-01, 1992 WL 333578, at *1 (E.D.Pa. Nov.6, 1992). In Burke, the government argued that although § 1111 was unconstitutional standing alone, when § 1111 and § 1512(a) were read together, the Eighth Amendment was not violated. See id. at *3. The court rejected this argument, holding that the imposition of the death penalty was not constitutionally permissible under the statutes, whether read separately or together. See id. at *16-17.

B

The Ex Post Facto Clause of the Constitution "bars application of a law `that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed ....'" Johnson v. United States, 529 U.S. 694, 699, 120 S.Ct. 1795, 146 L.Ed.2d 727 (2000) (quoting Calder v. Bull, 3 Dall. 386, 390, 1 L.Ed. 648 (1798)). At the time the crimes alleged in the present case were committed, the death penalty provision of § 1111 was not constitutionally enforceable, and courts provided for the automatic substitution of life imprisonment for any death penalty imposed under that statute. See Woods, 484 F.2d at 138 ("Since the decision in Furman ..., the statute under which defendant was convicted of first degree murder, 18 U.S.C. § 1111, provides as the only possible sentence `imprisonment for life.'") (emphasis added); see also Donley, 878 F.2d at 739 n. 8 (noting that since Furman, defendants convicted under § 1111 "automatically" received life imprisonment). In 1994, however, Congress passed the Federal Death Penalty Act of 1994, 18 U.S.C.A. §§ 3591-3598, which provided constitutionally adequate procedures for the imposition of the death penalty for certain federal crimes.

The government argues that the passage of the Federal Death Penalty Act of 1994 affected a merely procedural change to the administration of the death penalty under 18 U.S.C.A. § 1512, and therefore creates no ex post facto issue. This argument finds its support in Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977). In Dobbert, the defendant was convicted of state capital crimes which were alleged to have occurred between December 1971 and April 1972. See id. at 288, 97 S.Ct. 2290. The Furman decision was dated June 22, 1972, and Florida's death penalty statute was judicially struck down in July 1972. See id. Subsequently, the Florida legislature passed a new death penalty statute in late 1972, which corrected the constitutional problems of the prior law. See id.

The Supreme Court found no problem with the application of the new death penalty procedures to the defendant, concluding that "the changes in the law are procedural, and on the whole ameliorative ...." Id. at 292, 97 S.Ct. 2290. Further explaining the procedural aspect of the change in the law, the Court noted that the new statute "simply altered the methods employed in determining whether the death penalty was to be imposed; there was no change in the quantum of punishment attached to the crime." Id. at 293-94, 97 S.Ct. 2290.

The Court also rejected the defendant's argument that there was no constitutional death penalty "in...