U.S. v. Gia Le, CRIM. 03-048-A.

• Decision Date: 29 March 2004
• Docket Number: No. CRIM. 03-048-A.,CRIM. 03-048-A.
• Court: U.S. District Court — Eastern District of Virginia
• Parties: UNITED STATES of America v. Cuong GIA LE

311 F.Supp.2d 527

UNITED STATES of America v. Cuong GIA LE

No. CRIM. 03-048-A.

United States District Court, E.D. Virginia, Alexandria Division.

March 29, 2004.

James Trump, Assistant United States Attorney, United States Attorney's Office, Alexandria, VA, for Plaintiff.

Frank Salvato, Alexandria, VA, James Goodman Connell, III, Devine & Connell PLC, Fairfax, VA, for Defendant.

MEMORANDUM OPINION

ELLIS, District Judge.

Defendant Cuong Gia Le, one of seven defendants in this multi-count RICO¹ indictment, is charged, inter alia, with four capital offenses: Two counts of murder in aid of racketeering activity in violation of 18 U.S.C. § 1959(a)(1) and two counts of murder in the course of a firearms offense in violation of 18 U.S.C. § 924(c)(1) and 924(j). After filing a series of superseding indictments, on February 27, 2004, the government filed its Notice of Intent to Seek the Death Penalty ("Death Notice"). Le now seeks to strike the government's Death Notice as untimely.

I.

Because the motion at bar concerns the timeliness of a Death Notice, it is important to set forth the principal procedural events in this case:

• Le was originally charged on January 30, 2003 on a two-count indictment with conspiracy to affect commerce by robbery in violation of 18 U.S.C. § 1951 and unlawful use and carrying of firearms in violation of 18 U.S.C. §§ 2 and 924(c). He was arraigned on this original indictment on August 4, 2003.²

• Trial on the original indictment was set for October 14, 2003.

• On September 25, 2003, the government filed its First Superseding Indictment, adding four defendants, but no new charges against Le.³ Le's arraignment on the First Superseding Indictment took place on October 7, 2003 and a trial date was then scheduled for December 15, 2003.

• On December 4, 2003, the government filed a Second Superseding Indictment adding various counts and defendants. With respect to Le, the Second Superseding Indictment charged him with various RICO and firearms offenses and, for the first time, charged Le with four capital offenses: Two counts of murder in aid of racketeering activity and two counts of murder in the course of a firearms offense.

• Le was arraigned on the Second Superseding Indictment on December 19, 2003 and trial was scheduled to commence on March 1, 2004.

• Also on December 19, 2003, Le's oral motion for appointment of second capital-qualified counsel was granted and on December 22, 2003, second counsel was appointed.

• On January 2, 2004, Le filed a Motion for Immediate Production of Exculpatory Evidence Relevant to the Department of Justice's Death Penalty Authorization Process, which was denied from the Bench on January 23, 2004.⁴

• [EX PARTE and UNDER SEAL]

• On February 5, 2004, the government filed a Third Superseding Indictment. This indictment differed from the Second Superseding Indictment in that it alleged aggravating factors supporting imposition of the death penalty with respect to Le pursuant to 18 U.S.C. § 3592(c).

• On February 19, 2004, Le filed a Motion to Bar and/or Strike the Government's Notice of Intent to Seek the Death Penalty.

• On February 20, 2004, Le was arraigned on the Third Superseding Indictment. At this arraignment, the government made an oral motion to continue the trial date, to which all defendants objected. It was indicated from the bench that the government's motion would be granted and the trial would be rescheduled for either April 5, 2004 or April 26, 2004.

• By Order dated February 20, 2004, the March 1, 2004 trial date was cancelled because (i) the Third Superseding Indictment was just filed February 5, 2004, (ii) arraignment on the Third Superseding Indictment was just held on February 20, 2004, (iii) the government has not yet decided whether it intends to seek the death penalty against defendant Cuong Gia Le, (iv) seven defendants remain to be tried in this matter and (v) more than thirty pre-trial motions have been filed by the seven remaining defendants, several of which involve complex issues of law and fact and require the presentation of testimony.

See United States v. Cuong Gia Le, et al., Criminal No. 03-48-A (E.D.Va. Feb. 20, 2004) (Order). A motions hearing was instead set for March 1, 2004, at which time a new trial date would be set. Id. As of February 20, 2004, therefore, no trial date existed.

• On February 23, 2004, the government filed its opposition to Le's Motion to Bar and/or Strike the Government's Notice of Intent to Seek the Death Penalty, arguing that because the government had not yet filed a Death Notice and because there was no currently scheduled trial date, Le's motion should be denied as premature.

• By Order dated February 24, 2004, Le's Motion to Bar and/or Strike the government's Notice of Intent to Seek the Death Penalty was denied as premature for the reasons stated by the government. See United States v. Cuong Gia Le, Criminal No. 03-48-A (E.D.Va. Feb. 24, 2004) (Order).

• On February 27, 2004, the government filed its Notice of Intent to Seek the Death Penalty against Le.⁵

• On March 1, 2004, Le again filed a Motion to Strike the Government's Notice of Intent to Seek the Death Penalty.

• Among the matters discussed at the March 1, 2004 motions hearing was scheduling. The Court reiterated that it had previously, on February 20, 2004, offered the parties two potential trial dates in April — April 5, 2004 and April 26, 2004 — but indicated that, for reasons unrelated to this case, the April 26, 2004 trial date was no longer available.⁶ The Court, therefore, orally set trial for April 5, 2004. At this point, counsel for the government noted that an April 5, 2004 trial date might raise a "Ferebe issue" of "whether essentially 30 days is adequate notice [of intent to seek the death penalty] under the dictates of" United States v. Ferebe, 332 F.3d 722 (4th Cir.2003). The Court then offered two other potential trial dates — June 21, 2004 or July 6, 2004 — as, for reasons unrelated to the case, a trial date in May or early June was not available.⁷ The parties were given the luncheon recess to think about these potential trial dates.

• After wrestling with these scheduling matters over the luncheon recess, the Court determined that "it would be more appropriate to begin the matter after May, rather than before May" and set the case for trial on June 22, 2004. This was due not only to the possible lack of reasonable notice of the government's formal decision to seek the death penalty, but also due to the Court's realization that personal issues would make commencing the trial any time in April or indeed any time prior to late June quite impossible.

• On March 3, 2004, the government filed a Fourth Superseding Indictment that, with respect to Le, made a few minor changes to the alleged aggravating factors supporting imposition of the death penalty.

• Finally, on March 19, 2004, the government filed an Amended Notice of Intent to Seek the Death Penalty against Le, which added four non-statutory aggravating factors identified under 18 U.S.C. § 3593(a)(2), namely (1) gang affiliation; (2) history of violence;⁸ (3) evidence from guilt phase; and (4) lack of remorse.

II.

The timeliness of the government's Death Notice is governed by 18 U.S.C. § 3592(a) and, in this circuit, by the majority's decision in United States v. Ferebe, 332 F.3d 722 (4th Cir.2003). On the issue of timeliness, the statutory provision is quite brief, stating simply that in cases where the government decides to seek the death penalty, the attorney for the government "shall, a reasonable time before the trial or before acceptance by the court of a plea of guilty, sign and file with the court, and serve on the defendant, a notice." 18 U.S.C. § 3593(a) (emphasis added). The statute is more expansive on the required contents of a notice. This notice must (1) state that the government believes that the circumstances of the offense are such that, if the defendant is convicted, a sentence of death is justified and that the government will seek such a sentence; and (2) set forth the aggravating factor or factors that the government proposes to prove as justifying a sentence of death in the event that the defendant is convicted. Id.

Significantly, nothing in the statute definitively answers how much time is a "reasonable time;" what factors must be addressed to determine whether a particular time interval from Death Notice to trial is reasonable; whether the adequacy of the time period is measured by an actual prejudice or objective reasonableness standard; whether the standard should be applied ex ante or post hoc; or whether an untimely-filed Death Notice can be the basis for a continuance of the trial date. Some of these questions, it appears, are answered by the majority opinion in Ferebe, which provides an elucidation, or more precisely, an elaboration of the statute.

While much of the Ferebe majority opinion reflects the important debate between the majority and the dissent, the following principles emerge as the law of this circuit with respect to § 3593(a).

• First, "district court orders denying motions to strike Death Notices as untimely filed are immediately appealable" to the Fourth Circuit. Ferebe, 332 F.3d at 726.

• Second, § 3593(a) must be regarded as a prophylactic statute that "creates for defendants not merely the right not to be convicted and sentenced without adequate time to prepare, but also the right not to stand trial for one's life absent the same." Id. at 730.⁹ As a result, the statute "must be interpreted to require an inquiry [in advance of the trial] into the objective reasonableness of the time between issuance of the Death Notice and the trial itself, in light of the particulars of the charged offense and the anticipated nature of the defense." Id. at 727. Actual prejudice is not a factor. Id. at 732.

• Third, evaluation of the following factors, among others that may appear relevant, is necessary...