U.S. v. Peoples, 98-00149-01/02-CR-W-6.

• Decision Date: 08 November 1999
• Docket Number: No. 98-00149-01/02-CR-W-6.,98-00149-01/02-CR-W-6.
• Citation: 74 F.Supp.2d 930
• Parties: UNITED STATES of America, Plaintiff, v. Cornelius PEOPLES and Xavier Lightfoot, Defendants.
• Court: U.S. District Court — Western District of Missouri

Page 930

74 F.Supp.2d 930

UNITED STATES of America, Plaintiff, v. Cornelius PEOPLES and Xavier Lightfoot, Defendants.

No. 98-00149-01/02-CR-W-6.

United States District Court, W.D. Missouri, Western Division.

November 8, 1999.

Matt Whitworth, Mark Miller, Assistant U.S. Attorneys, Kansas City, MO, for plaintiff.

Jay D. DeHardt, McQuain, Block, DeHardt & Rosenbloom, P.C., Kansas City, MO, William C. Odle, Lathrop & Gage L.C., Kansas City, MO, for defendant Peoples.

Charles M. Rogers, Wyrsch Hobbs Mirakian & Lee, P.C., Kansas City, MO, Susan McCarthy Elliott, Kansas City, MO, for defendant Lightfoot.

SACHS, District Judge.

PENALTY PHASE MEMORANDUM TO COUNSEL

This memorandum is filed subsequent to the Government's concluding evidence in the guilt-innocence phase of this death penalty prosecution. 18 U.S.C. §§ 3591 et seq. The allegation is that while defendant Lightfoot was in custody on a credit union robbery charge pending in federal court in Omaha he and defendant Peoples arranged for the contract murder of a prospective Government witness, Jovan Ross. Defendants had been alerted to the informant activities of Ross when a notice was filed of other chronologically related robberies on which evidence would be offered and prospective witness information was supplied to Omaha counsel for defendant Lightfoot.

At the time of the alleged murder, Ross was living in a house in Kansas City originally rented by Lightfoot; he declined witness protection after some minimal consideration. The killing occurred on or about June 8, 1998.

Assuming arguendo that a conviction will occur, possibly during the present week, this memorandum is intended to advise counsel of the court's general view on admissibility of nonstatutory aggravators asserted by the Government under 18 U.S.C. § 3592(c). After specifying certain statutory aggravators the statute simply provides that jury consideration may then be given to "any other aggravating factor for which notice had been given...."

Defendant Lightfoot has requested and the court has granted severance of individualized issues at the penalty phase. I have advanced consideration of Lightfoot's penalty. This analysis will be limited to the notice of factors supplied as to Lightfoot.

Early in the proceeding the Government gave notice that, in addition to presenting evidence of victim impact on the Ross family, particularly his mother, and the circumstances of the crime (obstruction of justice and retaliation for witness cooperation) it would seek consideration of "future dangerousness" (to be inferred from past criminal conduct, charged and uncharged) and Lightfoot's felony criminal record, to the extent not admissible as statutory aggravators.

The court's consideration will be limited to the scope of "future dangerousness" evidence and the nonstatutory criminal record. My present view is that the statutory criminal record is exhaustive and that the nonstatutory criminal record is inadmissible under the structure and wording of 18 U.S.C. § 3592(c). I further conclude that "future dangerousness" is to be confined to analysis of past activities and propensities for danger to inmates and prison staff, under a realistic and careful approach well articulated in United States v. Davis, 912 F.Supp. 938 (E.D.La.1996).

Although briefing by the parties has been filed, it deals largely with issues of policy, past practice in state and federal court and constitutionality, none of which is particularly helpful to consideration of the structure and effect of the statute that Congress enacted in 1994. The Government's citation of the Davis case has been helpful, although the Government fails to deal with the Davis rulings adverse to its approach other than to concede that there is a "threshold test of heightened reliability needed in death penalty sentencing hearings." It goes on, however, to note that "relaxed evidentiary standards" are used at sentencing. But see United States v. Beckford, 964 F.Supp. 993, 1002, 1005 (E.D.Va.1997) ("firm evidentiary support" may be demanded to provide "further indicia of reliability before a court can say that the probative value of any such hearsay outweighs its prejudicial potential").

It seems to be the Government's view that sentencing practices in ordinary federal criminal cases should be generally used, with some broadening of approach authorized by "future dangerousness" analysis. This is not what Congress specified.

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Dealing first with criminal records as such, it is quite clear that Congress intended the jury to consider a limited range of "deathworthy" criminal convictions. For example, a statutory aggravator may be asserted when a defendant has been twice convicted of felonies charging infliction or attempted infliction of serious bodily injury or death. 18 U.S.C. § 3592(c)(4). Under the prosecution's theory, a single such conviction could be asserted as part of a nonstatutory criminal history record. The jury would not be informed that the statutory convictions are more significant than the nonstatutory convictions. In jury deliberations, therefore, a single conviction that does not qualify under the statute could be weighed as heavily as one of the statutory convictions that Congress deemed a deathworthy factor.

This contention cannot reflect the intent of Congress. Nonstatutory criminal records must therefore be excluded, except insofar as they may support some other theory of aggravation.

Six convictions are asserted for defendant Lightfoot under a category unrelated to future dangerousness. These include stealing, tampering and burglary convictions, receiving stolen property and unlawful possession of a weapon. The court does not expect to allow this record to be presented to the jury at any penalty phase proceeding.

In this ruling the court is mindful of footnote 25 in the Davis case, where Judge Berrigan rejected a similar contention from the defendants in Louisiana. In order to give some realistic meaning to the careful selection by Congress of deathworthy criminal history factors, I must respectfully disagree with that conclusion. Apart from the Davis case I have found no judicial consideration of the Congressional selectivity exercised in listing criminal history factors that may be presented as aggravators to a death penalty jury.

What may have been widely accepted as a matter of past practice in federal criminal sentencing is plainly unlike what a death penalty jury may appropriately consider. Tampering and dealing in stolen goods may well alter judicial views as to the number of months a defendant should serve in federal prison. They are pernicious distractions, however, in considering whether a defendant shall live or die. For evidence to be relevant, the statute must mean that the evidence tendered bears on "the consideration of who should live and who should die." Davis, 912 F.Supp. at 943.

I am mindful that defendants are allowed to offer what many would consider frivolous issues in mitigation. When empaneling the jury it was clear that some members of the public are put off by socalled mitigators that offend the sense of moral responsibility for a grave crime. Whether such mitigators are presented, however, is left to the tactical sense of defense counsel. In this and other respects, procedural mutuality does not occur when a sentence of death is requested.¹

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On the future dangerousness issue, I find the Davis decision to offer excellent guidance, both in rejecting and accepting certain alleged...