U.S. v. Friend, No. Crim.A. 3:99CR201-01.

CourtUnited States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
Writing for the CourtPayne
Citation92 F.Supp.2d 534
PartiesUNITED STATES of America v. Eugene Lamont FRIEND and Travis McKinnley Friend.
Docket NumberNo. Crim.A. 3:99CR201-01.,No. 3:99CR201-02.
Decision Date19 April 2000

Page 534

92 F.Supp.2d 534
UNITED STATES of America
v.
Eugene Lamont FRIEND and Travis McKinnley Friend.
No. Crim.A. 3:99CR201-01.
No. 3:99CR201-02.
United States District Court, E.D. Virginia, Richmond Division.
April 19, 2000.

Page 535

David Novak, Assistant United States Attorney, United States Attorney's Office, Richmond, VA, for Government.

Gerald T. Zerkin, Richmond, VA, David P. Baugh, Richmond, VA, for Eugene Friend.

Jeffrey Everhart, Rice, Everhart & Baber, Richmond, VA, Aubrey E. Hammond, Jr., Richmond, VA, for Travis Friend.

MEMORANDUM OPINION

PAYNE, District Judge.


Eugene Lamont Friend ("Friend"), along with his mother, Vallia Friend, his brother, Travis Friend, and John Doe, were indicted on one count of conspiracy to interfere with interstate commerce by violence, and two counts of carjacking, one of which resulted in the death of the victim.1 On October 21, 1999, the United States filed a Notice of Intent to Seek a Sentence of Death for Eugene Friend and his brother, Travis, if either were convicted of Count Three of the Superseding Indictment, which alleged carjacking that resulted in the death of Samuel Lam. In so doing, the United States gave notice, as required by 18 U.S.C. § 3593(a), of its intention to argue several statutory and nonstatutory aggravating factors considered by the United States to warrant imposition of a sentence of death.

Eugene Friend moved to strike certain of the nonstatutory aggravating factors listed in the Government's Notice of Intent to Seek a Sentence of Death. A hearing was held on that and other motions. At the conclusion of that hearing, Friend's motion was granted in part and denied in part and the motion to strike nonstatutory aggravating factor 10 ("Factor 10") was taken under advisement.

Factor 10 alleged that "Defendant EUGENE LAMONT FRIEND and co-defendant Travis McKinnley Friend discussed killing Charlene Thomas after the murder of Samuel Lam because she was a potential witness against them." Notice of Intent to Seek a Sentence of Death, at 4. To further understand the "discussion" which is asserted as the predicate for Factor 10, the Court instructed the United States to file a proffer of the evidentiary basis for the factor. In response, the United States explained that, while Eugene and Travis Friend were incarcerated, another inmate overheard the "discussion," which went like this:

Travis Friend told Eugene Friend that their mother had been arrested. Eugene Friend told his brother that they had to "stick together." Travis Friend stated, "You know it was that whore" (referring to Charlene Thomas). Travis Friend then said, "they should have gotten rid of her in Texas like I told you." Eugene Friend responded: "Man, that was my woman." Travis Friend replied: "Yeah, but this is our mother." Eugene Friend told Travis Friend that he knew what they had to do now. He told Travis that they had to turn this around.

Page 536

Travis Friend got very upset and began crying about his mother. Eugene Friend repeatedly told Travis Friend that they had to "stick together."

Government's Proffer in Support of Non-statutory Aggravating Factor 10.

For the reasons which follow, the motion to strike Factor 10 is granted.

DISCUSSION

To assess whether Factor 10 qualifies for the important role assigned to an aggravating factor in the death penalty calculus established by the federal death penalty statute, 18 U.S.C. § 3591 et seq., (hereinafter referred to as the statute or as the "FDPA"), it is necessary to consider Factor 10 in the context of the statutory scheme which controls imposition of the death penalty and in perspective of the death penalty jurisprudence reflected in the decisions of the Supreme Court of the United States. When thusly assessed, Factor 10 does not qualify for the constitutionally significant role assigned to aggravating factors by the statute and the controlling decisional law.

The Statutory Framework and the Role Assigned by Statute to Nonstatutory Aggravating Factors

If Eugene and Travis Friend are convicted of Count Three, the task of determining whether the death penalty will be imposed falls upon the jury. To make this determination, the jury must complete several sequential procedures which are prescribed by statute. See 18 U.S.C. § 3591, et seq.; United States v. Davis, 912 F.Supp. 938, 943 (E.D.La.1996). First, the jury must decide the threshold issue whether the homicide was committed with the requisite "intent." See 18 U.S.C. § 3591(a)(2)(A)-(D).

A death penalty will be imposed only if the defendant "intentionally killed the victim or intentionally engaged in other specifically defined conduct which resulted in the death of the victim." Thus, only if the jurors unanimously conclude that one of those circumstances has been established beyond a reasonable doubt, can they move to the next stage of the statutory assessment procedure. In that respect, the statute provides that a defendant whose conduct has been found to fit within one of the intent criteria set by § 3591(2)(A)-(D) "shall be sentenced to death if, after consideration of the factors set forth in section 3592 in the course of a hearing held pursuant to section 3593, it is determined that imposition of a sentence of death is justified." 18 U.S.C. § 3591(a).

At the second step of the death penalty assessment scheme, the jury "shall consider each of [any of the specifically enumerated sixteen] aggravating factors for which notice has been given and determine which, if any, exist." 18 U.S.C. § 3592(c). Also, the jury "may consider whether any other aggravating factor for which notice has been given exists." Id. The sixteen enumerated aggravating factors often are referred to as statutory aggravating factors and they must be considered if notice of them is given. Any other factor thought by the United States to warrant imposition of the death penalty may be considered under the last sentence in the statute. Also, the jury "shall consider any mitigating factor, including [eight enumerated factors]." 18 U.S.C. § 3592(a).

At the sentencing hearing, "information may be presented as to any matter relevant to the sentence, including any mitigating or aggravating factor permitted or required to be considered under section 3593." 18 U.S.C. § 3593(c). That "[i]nformation is admissible regardless of its admissibility under the rules governing admission of evidence at criminal trials except that information may be excluded if its probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury." Id. The United States is required to prove the existence of an aggravating factor beyond a reasonable doubt whereas the defendant is required to establish the existence of a mitigating factor "by a preponderance of the information." Id.

Page 537

After the presentation of evidence and argument, the order of which is statutorily prescribed, the jury is required to consider all the information received during the hearing and then is required to "return special findings identifying any aggravating factor or factors set forth in section 3592 found to exist and any other aggravating factor for which notice has been provided.... If no aggravating factor set forth in section 3592 is found to exist, the Court shall impose a sentence other than death authorized by law." 18 U.S.C. § 3593(d) (emphasis added).

Thereafter, if, for an offense of the type charged in Count Three, "an aggravating factor required to be considered under section 3592(c) is found to exist," then the jury "shall consider whether all the aggravating factor or factors found to exist sufficiently outweigh all the mitigating factor or factors found to exist to justify a sentence of death or, in the absence of a mitigating factor, whether the aggravating factor or factors alone are sufficient to justify a sentence of death." 18 U.S.C. § 3593(e)(2). When the weighing of factors is concluded, the jury is required to recommend whether the defendant should be sentenced to death. See id.

Read together, the provisions of 18 U.S.C. §§ 3593(d) and (e) permit a recommendation of a death sentence only if one of the statutory aggravating factors has been found to exist beyond a reasonable doubt.2 And, 18 U.S.C. § 3593(e) permits the weighing process to occur only if (for an offense of the type alleged in Count Three) an aggravating factor "required to be considered under section 3592(c) is found to exist." 18 U.S.C. § 3593(e)(2). Moreover, the aggravating factors which the jury are required to consider ("shall consider" in section 3592(c)) are the sixteen specifically enumerated factors. The other nonstatutory aggravating factors for which notice, of course, also must be given, are factors that the jury "may consider." 18 U.S.C. § 3592(c) (last paragraph).

From the foregoing, it is apparent that a statutory aggravating factor must be found to exist before the jury is directed to consider any other aggravating factors or any mitigating factors.3 Once the defendant has been convicted, the threshold finding of intent has been made, and a statutory aggravating factor has been proved beyond a reasonable doubt, the jury is required to consider whether all the aggravating factors, statutory or nonstatutory, outweigh all the mitigating factors. Of course, if there are no mitigating factors, then the jury must decide whether the aggravating factors, statutory and nonstatutory, should result in the imposition of a sentence of death.4

General Principles of Death Penalty Jurisprudence

The FDPA, of course, was enacted against a substantial jurisprudential base of Supreme Court decisions respecting the

Page 538

requirements for a constitutionally acceptable death penalty statute. Congress was no doubt aware of that significant jurisprudential base when, in 1994, it enacted the FDPA. In any event, Congress is presumed to have been aware of those decisions. Hence, it is necessary to...

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    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
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    ...States v. Davis, 912 F.Supp. 938 (E.D.La.1996), United States v. Beckford, 964 F.Supp. 993 (E.D.Va.1997), United States v. Friend, 92 F.Supp.2d 534 (E.D.Va.2000), and United States v. Gilbert, 120 F.Supp.2d 147 (D.Mass.2000)). Judge Pollack then stated, The foregoing cases indicate that thi......
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    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
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    ...factor under the FDPA and the Supreme Court's death penalty jurisprudence." (Def. Pretrial Mem. at 45 (quoting United States v. Friend, 92 F. Supp. 2d 534, 545 (E.D. Va.Page 78 2000).)39 He asks that, should this Factor not be stricken, the court conduct a reliability hearing with respect t......
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    ...at the penalty phase of the trial for being too minor. (U.S. v. Gilbert (D.Mass.2000) 120 F.Supp.2d 147; U.S. v. Friend (E.D.Va.2000) 92 F.Supp.2d 534.) These cases are distinguishable. Under the federal death penalty statute, a defendant can only be sentenced to death for first degree murd......
  • U.S. v. Illera Plaza, Nos. CR.A. 98-362-10, CR.A. 98-362-11, CR.A. 98-362-12.
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    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • December 21, 2001
    ...11 (proceeding under death penalty provisions of Anti Drug Abuse Act ("ADAA"), 18 U.S.C. § 848). The court in United States v. Friend, 92 F.Supp.2d 534 (E.D.Va.2000), did the same, requiring the government to "file a proffer of the evidentiary basis" for a non-statutory factor that the cour......
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30 cases
  • United States v. Johnson, No. CR 01–3046–MWB.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • March 5, 2013
    ...States v. Davis, 912 F.Supp. 938 (E.D.La.1996), United States v. Beckford, 964 F.Supp. 993 (E.D.Va.1997), United States v. Friend, 92 F.Supp.2d 534 (E.D.Va.2000), and United States v. Gilbert, 120 F.Supp.2d 147 (D.Mass.2000)). Judge Pollack then stated, The foregoing cases indicate that thi......
  • U.S.A v. Basciano, No. 05-CR-060 (NGG)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • January 12, 2011
    ...factor under the FDPA and the Supreme Court's death penalty jurisprudence." (Def. Pretrial Mem. at 45 (quoting United States v. Friend, 92 F. Supp. 2d 534, 545 (E.D. Va.Page 78 2000).)39 He asks that, should this Factor not be stricken, the court conduct a reliability hearing with respect t......
  • People v. Bunyard, No. S023421.
    • United States
    • United States State Supreme Court (California)
    • February 23, 2009
    ...at the penalty phase of the trial for being too minor. (U.S. v. Gilbert (D.Mass.2000) 120 F.Supp.2d 147; U.S. v. Friend (E.D.Va.2000) 92 F.Supp.2d 534.) These cases are distinguishable. Under the federal death penalty statute, a defendant can only be sentenced to death for first degree murd......
  • U.S. v. Illera Plaza, Nos. CR.A. 98-362-10, CR.A. 98-362-11, CR.A. 98-362-12.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • December 21, 2001
    ...11 (proceeding under death penalty provisions of Anti Drug Abuse Act ("ADAA"), 18 U.S.C. § 848). The court in United States v. Friend, 92 F.Supp.2d 534 (E.D.Va.2000), did the same, requiring the government to "file a proffer of the evidentiary basis" for a non-statutory factor that the cour......
  • Request a trial to view additional results

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