U.S. v. McGriff, 04-CR-966 (S-5).

• Decision Date: 13 April 2006
• Docket Number: No. 04-CR-966 (S-5).,04-CR-966 (S-5).
• Citation: 427 F.Supp.2d 253
• Parties: UNITED STATES of America, v. Kenneth McGRIFF, Emanuel Mosley, Dennis Crosby, Victor Wright, Nicole Brown, and Vash-Ti Paylor, Defendants.
• Court: U.S. District Court — Eastern District of New York

427 F.Supp.2d 253

UNITED STATES of America, v. Kenneth McGRIFF, Emanuel Mosley, Dennis Crosby, Victor Wright, Nicole Brown, and Vash-Ti Paylor, Defendants.

No. 04-CR-966 (S-5).

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

April 13, 2006.

COPYRIGHT MATERIAL OMITTED

Carolyn Pokorny, Criminal Division, Linda A. Lacewell, United States Attorney's Office, Brooklyn, NY, for Plaintiff.

Mitchell J. Dinnerstein, Mitchell J. Dinnerstein, Esq., Paul Brenner, Frederick H. Cohn, Gould, Reimer, Walsh, Coffin & Cohn, LLP, Neil Bruce Checkman, Law Office of Neil Checkman, Jason L. Solotaroff, Giskan & Solotaroff, Janeanne Murray, Law Office of Janeanne Murray, Kelley J. Sharkey, Attorney at Law, Brooklyn, NY, Stuart J. Grossman, Grossman & Rinaldo, Forest Hills, NY, for Defendants.

AMENDED MEMORANDUM AND ORDER

BLOCK, Senior District Judge.

In this multi-defendant prosecution, the Government alleges that defendants Kenneth McGriff ("McGriff'), Dennis Crosby ("Crosby"), Victor Wright ("Wright"), Nicole Brown ("Brown") and Emanuel Mosley ("Mosley") were all part of "a criminal organization . . . whose members and associates engaged in acts of murder, narcotics trafficking and money laundering." [Fifth] Superseding Indictment ¶ 1. Based on their alleged roles in the organization, they are statutorily eligible for the death penalty.¹ On March 22, 2006, the Government gave each of them a notice of its intent to seek the death penalty ("death-penalty notice"). The death-penalty notices came on the eve of trial, which was scheduled to begin on April 3, 2006; Chief Judge Korman set this trial date on January 26, 2006, and I adhered to it after the case was reassigned to me.

On March 23rd, the defendants jointly moved to strike the death-penalty notices because they were not filed "a reasonable time before the trial," as required by 18 U.S.C. § 3593(a). The Court adjourned the trial date to April 17th for the sole purpose of allowing the parties time to brief the motion and for the Court to render its decision. On April 4th, the Government withdrew its death-penalty notices against all defendants except McGriff, who consequently remains the sole movant. At oral argument on April 7th, the Court denied McGriff's motion and stated that a written opinion would follow.

BACKGROUND

A. Anatomy of a Death-Penalty Case

1. The Statutory Framework

The Federal Death Penalty Act of 1994, 18 U.S.C. §§ 3591-98 ("the Act"), authorizes the death penalty for treason, espionage, and "any other offense for which a sentence of death is provided [by statute]." Id. § 3591(a).² Before the death penalty can be imposed, however, a jury must find, beyond a reasonable doubt, that one or more of 16 aggravating factors listed in the statute is present. See id. § 3592(c). In making its death-penalty decision, the jury may also consider "any other aggravating factor for which notice has been given," id., and must consider "any mitigating factor." Id. § 3592(a).

The Act contains the following notice provision:

If, in a case involving an offense [eligible for the death penalty], the attorney for the government believes that the circumstances of the offense are such that a sentence of death is justified under this chapter, the attorney 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 —

(1) stating that the government believes that the circumstances of the offense are such that, if the defendant is convicted, a sentence of death is justified under this chapter and that the government will seek the sentence of death; and

(2) setting forth the aggravating factor or factors that the government, if the defendant is convicted, proposes to prove as justifying a sentence of death.

Id. § 3593(a) (emphasis added).

2. The Decision-Making Process

The decision whether to seek the federal death penalty unfolds in two stages. At the first stage, the United States Attorney ("U.S.Attorney") initiating the prosecution makes a recommendation to the Attorney General as to whether or not the Attorney General should authorize a death-penalty prosecution. At the second stage, the Attorney General processes the recommendation and makes the ultimate decision. The Attorney General has established protocols to be followed at both stages. See United States Department of Justice ("DOJ"), United States Attorneys' Manual ("USAM"), §§ 9-10.010 to 9-10.120, available at http://www.usdoj.gov/usao/eousa/foia — reading — room/usam/index.html (last visited Apr. 11, 2006).

a. First Stage

The first stage begins pre-indictment; the U.S. Attorney should, "whenever possible, make a preliminary decision whether to request authorization to seek the death penalty before obtaining an indictment charging a capital offense." Id. § 9-10.020. Moreover, if the indictment, once obtained, charges a violation of 18 U.S.C. § 1959 (which makes murder in aid of racketeering a capital offense), it must be submitted for review to DOJ's Criminal Division before it is filed, see id.; for all other death-eligible offenses, the U.S. Attorney is "encouraged, but not required, to consult with DOJ's Capital Case Unit and other appropriate sections of the Criminal Division" before filing the indictment. Id.

The Attorney General's protocols further require that before the U.S. Attorney makes his or her final decision, the defendant shall have "a reasonable opportunity to present any facts, including any mitigating factors, to the United States Attorney for consideration." Id. § 9-10.030.³ The protocols do not otherwise instruct the U.S. Attorney how to proceed. According to the Assistant United States Attorney ("AUSA") assigned to this case, the U.S. Attorney's Office for the Eastern District of New York presents the facts underlying a death-eligible case to a Death Penalty Committee, and defense counsel is invited to submit mitigation statements to this committee.

Whether the Death Penalty Committee makes a recommendation to the U.S. Attorney or simply works up the case is unclear, but the fruits of its efforts are submitted to the U.S. Attorney, after which she makes her recommendation to the Attorney General. Neither the work-product of the Death Penalty Committee nor the U.S. Attorney's recommendation is disclosed to the defendants or the Court.

If the U.S. Attorney recommends the death penalty, the Attorney General's protocols require submission of a "Death Penalty Evaluation" form and a memorandum outlining the prosecution, along with "copies of all existing, proposed, and superseding indictments, a draft notice of intention to seek the death penalty, any information concerning the impact on the victim's family, and any written material submitted by counsel for the defendant in opposition." Id. § 9-10.040. These materials are to be submitted "[no] later than 45 days prior to the date on which the Government is required, by an order of the court or otherwise, to file notice that it intends to seek the death penalty." Id.

If the U.S. Attorney's recommendation is that the death penalty should not be sought, the protocols require only "a Death Penalty Evaluation form that contains a brief statement of the reason the United States Attorney decided not to seek the death penalty," id.; it "should be completed and forwarded to the Criminal Division before or as soon as possible after indictment." Id.

b. Second Stage

The second stage of the decision-making process begins upon receipt of the U.S. Attorney's recommendation. The Attorney General's Review Committee on Capital Cases ("Attorney General's Committee") reviews the U.S. Attorney's submissions. See id. § 9-10.050. The defendant's attorney is "provided an opportunity to present to the committee the reasons why the death penalty should not be sought." Id.

"After considering all information submitted to it, the [Attorney General's] Committee . . . make[s] a recommendation to the Attorney General," who then renders "the final decision." Id. If the decision is to seek the death penalty, the U.S. Attorney then files a death-penalty notice, which must identify (1) the charges for which the death penalty is sought, and (2) the factors, both statutory and non-statutory, that the Government intends to prove at trial to warrant the imposition of the death penalty. See 18 U.S.C. § 3593(a).

As evidenced by the Government's decision to withdraw the death-penalty notices against McGriff's co-defendants, the decision to seek the death penalty is subject to reconsideration. See USAM §§ 9-10.055 ("Subsequent to the initial Department of Justice review, the United States Attorney and the Attorney General's Committee shall review any submission defense counsel chooses to make.") & 9-10.090 (providing procedures for withdrawal of notice of intent). By the same token, the protocols do not foreclose the Attorney General from revisiting a decision not to seek the death penalty; the only apparent limitation is the notice provision of 18 U.S.C. § 3593(a).

B. Nature of the Charges

Both capital and non-capital charges are contained in the indictment. The capital charges stem from the alleged murders of (1) Eric Smith ("Smith"), (2) Karon Clarrett ("Clarrett"), (3) Dwayne Thomas ("Thomas"), and (4) Troy Singleton ("Singleton").⁴ On November 2, 2004, the grand jury indicted Brown and Crosby for Smith's murder; the crime was charged as a murder in aid of racketeering under 18 U.S.C. § 1959. In respect to Brown, the Government's theory, though not alleged in the indictment, is that she is guilty as an alder and abettor because she conducted surveillance in connection with the murder. See Government's Mem. of Law in Opp. to Defs.' Pretrial Mot. at 14 ("BROWN is liable as an accomplice."); Letter from JaneAnne Murray (Mar. 23, 2005), at 1 ("According to the government, Ms. Brown's role consisted of her surveillance efforts of the victim in the days and minutes leading...