U.S. v. Jordan

• Decision Date: 09 February 2005
• Docket Number: No. CRIM. 3:04CR58.,CRIM. 3:04CR58.
• Citation: 357 F.Supp.2d 889
• Parties: UNITED STATES of America, v. Peter Robert JORDAN and Arthur Lorenzo Gordon, Defendants.
• Court: U.S. District Court — Eastern District of Virginia

357 F.Supp.2d 889

UNITED STATES of America, v. Peter Robert JORDAN and Arthur Lorenzo Gordon, Defendants.

No. CRIM. 3:04CR58.

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

January 28, 2005.

Order Denying Reconsideration February 9, 2005.

COPYRIGHT MATERIAL OMITTED

Roderick C. Young and David John Novak, United States Attorney's Office, Richmond, VA, for Plaintiff.

Cary Breckinbridge Bowen, Bowen Champlin Carr & Rockecharlie, Claire Grimmer Cardwell, Stone & Cardwell PLC, Michael N. Herring, Bricker & Herring PC, Gerald Thomas Zerkin, and Frank W. Dunham, Jr., Office of the Public Defender, Richmond, VA, for Defendants.

MEMORANDUM OPINION

(Defendants' Motions

In Limine

)

HUDSON, District Judge.

This matter is before the Court on a series of motions in limine filed by one or both Defendants. All parties have submitted memoranda of law in support of their respective positions. The Court heard oral argument on January 14, 2005. The pertinent facts affecting the disposition of these various motions are relatively complex and bear considerable recitation for ample understanding.

I. Background

This case stems from the brutal murder of Dwayne Tabon ("Tabon") in Richmond, Virginia on September 14, 2001. The Government contends that, during the consummation of a drug transaction at 1714 Clarkson Road, Apartment F, Tabon was forcibly abducted. He was taken to 5003 Walmsley Boulevard where he was set on fire. Although he was burned over ninety (90%) of his body, Tabon freed himself and went to a neighbor's house to call for help. When Officer Anthony Coates of the Richmond City Police Department ("RPD") arrived at 5000 Walmsley Boulevard at approximately 1:17 AM, the rescue squad was already tending to Tabon. When the officer questioned Tabon, he was uncooperative, stating, "Don't worry about it. I'll take care of it myself." When told by Officer Coates that he was going to die, Tabon stated merely that four unknown black males grabbed him while he was walking from his girlfriend's house and set him on fire. Tabon refused to give any further information and was subsequently taken to the Medical College of Virginia Hospital for treatment. He was hospitalized for ten days before dying on September 24, 2001.

For almost three weeks, the RPD had no suspects and no physical evidence relating to the Tabon Murder.¹ On October 16, 2001, however, at the urging of a friend, Paul Adams ("Adams"), Octavia Brown ("Brown") voluntarily walked into the RPD and admitted her role in the Tabon murder.² The entire conversation between Brown and the RPD officers was recorded.³ Upon entering the interview room where Adams and Brown were seated, Detective Conrad Simms, who had been assigned to the Tabon case, asked Brown, "You're looking to come forward and speak with us on this case?" Immediately upon her affirmative response, Detective Simms next asked her, "If you're needed in court, are you willing to testify in court?" Brown nodded in the affirmative and responded, "As long as you all make sure I get there." For the ensuing twenty (20) minutes, Brown proceeded to extemporaneously tell the officers of her involvement in the Tabon affair. The videotape of the interview demonstrates that, for at least the first twenty (20) minutes, with the exception of a few ministerial questions, Brown volunteered information to the officers about the events leading to the death of Tabon. Approximately twenty minutes into the monologue, her statement became more of a response to questions from Detectives Simms and Fulz.

On December 6, 2001, Brown testified before a federal Grand Jury ("Grand Jury") at the United States District Court for the Eastern District of Virginia, Richmond Division. During her testimony, Brown repeated the allegations made to the RPD in further detail. On October 10, 2002, Brown committed suicide in the lockup of the Richmond City Circuit Court, Manchester Division. On March 2, 2004, the Grand Jury returned a two-count Indictment charging Peter Robert Jordan ("Defendant Jordan") with (1) Conspiracy to Distribute Crack Cocaine and (2) Possession of a Firearm in Furtherance of a Drug Trafficking Crime.

On March 3, 2004, a warrant was issued for the arrest of Defendant Jordan on the charges in the Indictment. On June 16, 2004 at approximately 7:00 PM, Defendant Jordan was apprehended by Deputy United States Marshal Marko Anticev at the home of Cheryl Bressant-Overton ("Bressant-Overton"), 161-15 118th Avenue, Jamaica, New York 11434. Bressant-Overton was summoned to testify before the Grand Jury about her relationship with Defendant Jordan. During her testimony before the Grand Jury on July 6, 2004, Bressant-Overton gave false statements concerning the nature of her relationship with Defendant Jordan. She was ultimately indicted on a two-count Indictment charging her with (1) False Declarations Before a Grand Jury and (2) Obstruction of Justice.⁴

At the close of their session on July 6, 2004, the Grand Jury returned a four-count Superseding Indictment charging Defendant Jordan with: (1) Murder While Engaged in Drug Trafficking; (2) Conspiracy to Use and Carry Firearms; (3) Possession of a Firearm in Furtherance of Drug Trafficking; and (4) Conspiracy to Distribute Crack Cocaine and Heroin. The Superseding Indictment also charged Arthur Lorenzo Gordon ("Defendant Gordon"), an alleged co-conspirator, on the first three counts. In addition, the Superseding Indictment contained a section entitled "Notice of Special Findings." In that section, the Grand Jury made seven (7) special factual findings each implicating a provision of 21 U.S.C. § 848 ("§ 848"), the statute under which the Government is seeking the penalty of death.

On September 7, 2004, the Grand Jury returned a Second Superseding Indictment which is the current charging document. The only difference between the July 6, 2004 Superseding Indictment and the Second Superseding Indictment ("the current Indictment") was an additional factual finding in the Notice of Special Findings section. Shortly thereafter, on September 30, 2004, the Government served both Defendant Jordan and Defendant Gordon with a Notice of Intent to Seek a Sentence of Death pursuant to 21 U.S.C. § 848(e)(1)(A), in which the Government listed the specific aggravating factors that it intended to prove in seeking a sentence of death. Defendants were arraigned on the current Indictment, and a trial date was set for February 22, 2005. Defendants have filed the following motions in limine to which the Government has responded: Motion to Strike the Notice of Intent to Seek the Death Penalty and Bar the Death Penalty; Motion to Strike Nonstatutory Aggravating Factors with Respect to Defendant Gordon; Joint Motion to Exclude the Grand Jury Testimony and Other "Testimonial Statements" of Octavia Brown; Defendant Jordan's Motion to Exclude Testimony of Cheryl Bressant-Overton; Motion for a Witness List; Motion for Court's Preview of Victim Impact Evidence; Motion for Disclosure of Exculpatory, Impeachment, and Mitigation Evidence and Information; Motion for Disclosure of Inculpatory Statements to Non-law Enforcement Witnesses; and Motion to Require the Government to Divulge Criminal Record Check of Jury Panel in Advance of Trial. A hearing was held on Friday, January 14, 2005.⁵ The Court will address the motions in turn.

II. Legal Analysis

A. Defendants' Joint Motion to Strike Notice of Intent to Seek Death Penalty and Bar Death Penalty

In this motion, Defendants move the Court to (1) strike the Notice of Intent to Seek the Death Penalty; (2) strike from the Second Superseding Indictment the Notice of Special Findings; and (3) bar the death penalty in this case. Defendants base their challenge on the United States Supreme Court's decision in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), which held that a sentence enhancement that increased the maximum authorized statutory sentence beyond that covered by the jury's guilty verdict, is the functional equivalent of an element of a greater offense. Defendants argue that Ring renders 21 U.S.C. § 848, the charging statute in Count One of the current Indictment, unconstitutional in its current form. Defendants contend that the deficiency cannot be cured simply by the executive or judicial branch adopting a constitutionally sound procedure without offending the separation of powers doctrine.

Defendants argue that when Congress passed § 848, it was operating within the context of then prevailing jurisprudence, enunciated by the Supreme Court in Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990), which treated death eligibility as a sentencing issue, rather than an offense element. Defendants assert that the actual text of § 848 bolsters their claim. In support of their claim, Defendants contend that, in enacting § 848, Congress "distinguished between `any offense' under § 848, and the procedure for `subjecting the person to the penalty of death' for that `offense,'" Congress "abandoned [the] application of the Federal Rules of Evidence" in the sentencing phase of the proceeding, and Congress "substituted for grand jury indictment a notice fashioned by the prosecutor." See Def.'s Joint Mot. to Strike the Notice of Intent to Seek the Death Penalty and Bar the Death Penalty at 3-4. This evidences, in Defendants' view, a clear intent by Congress to create purely a sentencing statute. Thus, according to Defendants, when Ring altered the definition of "elements of the offense" in the capital sentencing context, it rendered the statute constitutionally infirm. The heart of Defendants' argument is that Congress, not the executive or the judiciary, has the sole authority to remedy an unconstitutional statute. Moreover, the infirmity is not cured by simply adopting a constitutionally sound procedure. In Defendants' view, such action is purely the prerogative of Congress.

While Defendants present a cogent...