U.S. v. Cuff, S11 96 CR. 515(MBM).

• Decision Date: 04 March 1999
• Docket Number: No. S11 96 CR. 515(MBM).,S11 96 CR. 515(MBM).
• Citation: 38 F.Supp.2d 282
• Parties: UNITED STATES of America, v. John CUFF, Defendant.
• Court: U.S. District Court — Southern District of New York

38 F.Supp.2d 282

UNITED STATES of America, v. John CUFF, Defendant.

No. S11 96 CR. 515(MBM).

United States District Court, S.D. New York.

March 4, 1999.

Mary Jo White, United States Attorney for the Southern District of New York, Christine Y. Chi, Andrew S. Dember, Sharon L. McCarthy, Assistant U.S. Attorneys, New York City, for U.S.

Irving Cohen, New York City, Carl J. Herman, Livingston, NJ, for John Cuff.

OPINION AND ORDER

MUKASEY, District Judge.

John Cuff is charged in the captioned indictment with, among other crimes, the murders of nine persons. He objects to the government's Amended Notice of Intent to Seek the Death Penalty, dated August 6, 1998 (the "Amended Notice"), both for reasons that go to the particulars of that notice and for reasons that relate generally to the imposition of the death penalty. He moves to preclude the government from seeking the death penalty on some of the bases contained in the Amended Notice and, more broadly, from seeking that penalty at all.

For the reasons set forth below, Cuff's motion is denied in all respects save one: the government will be barred from arguing to the jury that use of a firearm is an aggravating factor warranting imposition of the death penalty.

I.

The sequence of events that led to the filing of the Amended Notice is as follows. The first of the several superseding indictments in this case under which the government sought the death penalty against Cuff was S3 96 Cr. 515, filed on February 9, 1997, which charged Cuff with participating in six intentional killings as part of a continuing criminal enterprise that included the sale of narcotics ("CCE"), in violation of 21 U.S.C. § 848. On December 16, 1997, the Attorney General authorized prosecutors to seek the death penalty in connection with five of those six killings. The government filed its initial notice of intent to seek the death penalty against Cuff for those five killings on January 8, 1998. The CCE statute lists certain aggravating factors the government may rely on in seeking the death penalty. See 21 U.S.C. § 848(n). The statute also permits the government to rely on other factors not specifically listed, provided that it gives notice of those nonstatutory factors along with the statutory factors it intends to rely on in seeking the death penalty, such notice to be provided a reasonable time before trial. See id. § 848(h)(1)(B).

Just after the authorization referred to above was issued by the Attorney General, but before the government filed its initial notice, the current superseding indictment was returned, designated S11 96 Cr. 515. The new indictment charged Cuff with four additional death-eligible CCE murders. Two of those murders occurred after passage of the Federal Death Penalty Act, 18 U.S.C. § 3591 et seq. ("FDPA"), which made Cuff eligible for the death penalty under that statute as well as under the CCE statute. On June 8, 1998, the Attorney General authorized prosecutors to seek the death penalty with respect to the four additional murders. The government sought leave of court on June 16, 1998 to file its Amended Notice, and filed the Amended Notice on August 7, 1998. The Amended Notice declares the government's intention to seek the death penalty as to nine murders — the five authorized initially and the four added in the S11 superseding indictment.

The FDPA contains a sentencing scheme similar to the one in the CCE statute in that it specifies certain aggravating factors that the government may rely on, adds a more general aggravating category of impact on a victim or the victim's family, and permits consideration of non-statutory aggravating factors. See id. § 3592(c)-(d). Again, the government is required to provide notice to the defendant a reasonable time before trial of the decision to seek the death penalty, and of the aggravating factors to be relied upon. See id. § 3593(a).

The Amended Notice lists the same CCE statutory factors, and non-statutory factors, for the four additional murders in the S11 indictment as the initial notice did for the five covered murders in the S3 indictment, and repeats those factors for the earlier murders. The statutory factors are: (1) pecuniary gain; (2) substantial premeditation; and (3) heinous, depraved or cruel manner of killing. The non-statutory factors are: (1) future dangerousness; (2) multiple intentional killings; and (3) victim impact. In addition, for the two murders covered by the FDPA, the Amended Notice reiterates the same three statutory aggravating factors listed as CCE aggravating factors, which appear also in the FDPA — (1) pecuniary gain; (2) substantial planning and premeditation; and (3) heinous, depraved or cruel manner of killing — as well as the factor of victim impact. The Amended Notice adds a fourth statutory aggravating factor for the two murders covered by the FDPA that is provided for under that statute but not under the CCE statute: (4) continuing criminal enterprise involving drug sales to minors. See id. § 3592(d)(5). Finally, the Amended Notice adds as a nonstatutory aggravating factor, for the two murders covered by the FDPA, the use of a firearm during the commission of the offense.

II.

Cuff challenges both the timing and the content of the Amended Notice, arguing that the government's delay in filing it was improper and that the Amended Notice should not be permitted to contain aggravating factors under the FDPA.

Both the CCE statute and the FDPA permit the government to amend its notice of intent to seek the death penalty upon a showing of "good cause." 21 U.S.C. § 848(h)(2); 18 U.S.C. § 3593(2). Cuff would have me amend both statutes to require the government to prove excusable neglect in not charging additional murders earlier, and in failing to include in the first notice of intent to seek the death penalty the murders later included as well as reliance on the FDPA. Cuff's position offends the language of both statutes, and long-standing case law that attaches "`[t]he presumption of regularity'" to a prosecutor's charging decisions and holds that, "`in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties.'" United States v. Armstrong, 517 U.S. 456, 464, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996) (quoting United States v. Chemical Found., Inc., 272 U.S. 1, 14-15, 47 S.Ct. 1, 71 L.Ed. 131 (1926)). Absent some showing of an unlawful or improper motive in the government's charging decision, or its timing, I have no authority to compel the government to prove excusable neglect. See United States v. Batchelder, 442 U.S. 114, 123-24, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979).

It is obvious from the chronology set forth above that the government could not have given notice of its intent to seek the death penalty with respect to the additional murders in the S11 indictment before June 1998 because it had not yet received authorization from the Attorney General to seek the death penalty in connection with those additional murders. Cuff has shown no prejudice in permitting the Amended Notice in that he has had ample time to prepare to meet the additional charges in the S11 indictment, and all aggravating factors in the Amended Notice. There was no impermissible delay here.

Further, to the extent that Cuff argues there will be undue confusion at the penalty phase if the jury is asked to make findings under both the CCE statute and the FDPA with respect to the same murders, that argument is mooted by the government's representation, to which it will be held, that it will elect following the guilt phase to proceed as to Cuff only under either the CCE statute or the FDPA, depending on the jury's verdict.

III.

Cuff attacks both the CCE statute and the FDPA as unconstitutional for failing to provide for meaningful appellate review in three respects: (1) by failing to provide for mandatory appellate review; (2) by limiting the scope of review to certain specified errors, thereby requiring affirmance even in the presence of other and otherwise sufficient errors; and (3) by denying equal protection in that inmates covered by the statute are singled out for diminished appellate review. Whatever the merits of these arguments, I find that they are not properly raised at this time and, to the extent they relate to the scope of appellate review, should not be raised in this forum.

Cuff's arguments are all directed at the availability and scope of appellate review for the imposition of a sentence of death. At the moment, however, Cuff has not even been tried — let alone sentenced to death. Thus, he has not yet suffered any harm as a result of the lack of mandatory appellate review or that review's allegedly restricted scope. Any harm to Cuff that would be attributable to the nature and extent of the appellate review process "is simply too speculative at this time for the Court to reach the question on the merits." United States v. Frank, 8 F.Supp.2d 253, 271 (S.D.N.Y.1998). Whether the problem is framed as an issue of ripeness or an issue of standing, therefore, Cuff's arguments are not properly raised at this time.

Further, to the extent that Cuff seeks to challenge the statutes on the ground that they unconstitutionally restrict the scope of appellate review, his arguments should not be raised in this forum. I am aware that several other district courts have entertained challenges of this nature — in each instance, I note, rejecting them. See Frank, 8 F.Supp.2d at 271-73; United States v. McVeigh, 944 F.Supp. 1478, 1484-85 (D.Colo.1996); United States v. Walker, 910 F.Supp. 837, 844-45 (N.D.N.Y.1995); United States v. Pitera, 795 F.Supp. 546, 566-67 (E.D.N.Y.1992); United States v. Pretlow, 779 F.Supp. 758, 761-64 (D.N.J. 1991); cf. United States v. Nguyen, 928 F.Supp. 1525, 1548 & n. 23 (D.Kan.1996) (considering and rejecting the defendant's argument with respect to the availability of meaningful appellate review, albeit noting that ...