U.S. v. Regan

• Decision Date: 25 October 2002
• Docket Number: No. CR.A. 01-405-A.,CR.A. 01-405-A.
• Citation: 228 F.Supp.2d 742
• Court: U.S. District Court — Eastern District of Virginia
• Parties: UNITED STATES of America, v. Brian Patrick REGAN, Defendant.

228 F.Supp.2d 742

UNITED STATES of America, v. Brian Patrick REGAN, Defendant.

No. CR.A. 01-405-A.

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

October 25, 2002.

COPYRIGHT MATERIAL OMITTED

Patricia M. Haynes, Asst. U.S. Atty., U.S. Atty's Office, Alexandria, VA, for Plaintiff.

James Clyde Clark, Land, Clark, Carroll & Mendelson, Alexandria, VA, Nina J. Ginsberg, Di/Muro, Ginsberg & Mook, Alexandria, VA, Joseph John McCarthy, Delaney, McCarthy & Colton, Alexandria, VA, Jonathan Shapiro, Alexandria, VA, for Defendant.

MEMORANDUM OPINION

LEE, District Judge.

THIS MATTER is before the Court on Defendant's Omnibus Motions Concerning the Federal Death Penalty Act of 1994, 18 U.S.C. § 3591 et seq.

Defendant's Omnibus Death Penalty Motions brief raises a litany of arguments attacking the Federal Death Penalty Act and the Government's Notice of Intent to Seek the Death Penalty in this capital attempted-espionage case. Defendant contends that the Government's notice of intent to seek the death penalty in this case and the Government's various statutory and non-statutory aggravating factors violate established Eighth Amendment principles. Upon review of Defendant's 109-page brief and the Government's opposition thereto, the Court concludes that many of Defendant's arguments rehash arguments previously made before and rejected by many courts on these issues. While Defendant's arguments regarding the application of Ring v. Arizona, ___ U.S. ___, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), to the Federal Death Penalty Act reflected some novelty, Defendant's Ring motion was denied in a separate memorandum opinion. The Court notes for the record that the accused's right to effective assistance of counsel includes reassertion of certain of these arguments in order to make a complete record. Therefore, the instant Memorandum Opinion addresses Defendant's particular arguments that the Federal Death Penalty Act is unconstitutional and that the Government's notice of intent to seek the death penalty is insufficient. The Court rejects all of Defendant's previously discredited arguments and adopts the reasoning of the cases cited herein to the extent the case law is not inconsistent with the Court's ruling herein.

I. BACKGROUND

A. Charges against the Defendant

On August 24, 2001, Defendant was charged in a criminal complaint with attempted espionage against the United States of America in violation of 18 U.S.C. § 794. Defendant was subsequently indicted on the charge on October 23, 2001. The charges against Defendant in the original indictment alleged that Defendant abused his position in the intelligence community by attempting to sell top secret information to Iraq, Libya, and the People's Republic of China.

Defendant served in the United States Air Force ("USAF") from August 1980 until August 31, 2000, retiring at the rank of Master Sergeant. During his tenure with the USAF, Defendant specialized in signals intelligence analysis. Specifically, from 1991 to 1994, Defendant worked at the Air Force Intelligence Support Group at the Pentagon targeting the communications systems of military adversaries of the United States and later as an Air Defense Analyst.

From July 1995 until August 31, 2000, Defendant was detailed to the headquarters of the National Reconnaissance Office ("NRO"). The NRO is responsible for building and operating the United States reconnaissance satellites. Defendant was assigned to the Signals Intelligence Applications Integration Office of the NRO, which is responsible for focusing signals intelligence support for tactically deployed military units. After leaving the USAF in August 2000, TRW Incorporated ("TRW") hired Defendant as a contract employee to the NRO. In July 2001, Defendant began his TRW assignment at the NRO.

The original indictment alleged that, beginning in mid-1999, Defendant accessed Intelink, while at the NRO, to obtain classified intelligence information relating to the military preparedness of Iran, Iraq, Libya, and China. Intelink is the United States Intelligence Community's classified version of the Internet, and it can be accessed only by persons with the appropriate security clearance. The indictment alleges that, in August 2001, Defendant again accessed Intelink and viewed classified information relating to military facilities in Iraq, Iran, Libya, and China, as well as classified documents relating to current United States intelligence collection capabilities against those nations. Defendant was subsequently arrested at Dulles International Airport on August 23, 2001, allegedly en route to Europe. Defendant was apprehended in possession of the addresses of the Chinese embassies in Bern, Switzerland, and Vienna, Austria, as well as the Iraqi embassy in Vienna and the Iraqi Interests Section in Paris, France.

On February 14, 2002, the Government filed a four-count superseding indictment against Defendant alleging three counts of Attempted Espionage under 18 U.S.C. § 794(a). The three counts charge Defendant with Attempted Espionage with the intent to injure the United States and advantage Iraq (Count One), Libya (Count Two), and China (Count Three). The fourth count charges Defendant with Gathering National Defense Information in violation of 18 U.S.C. § 793. Notably, the superseding indictment refers to the discovery of letters on Defendant's computer allegedly drafted by Defendant to high-ranking government officials of Iraq and Libya, including the countries' respective leaders, Saddam Hussein and Muammar Qadhafi. These letters offered to sell top secret information to Iraq and Libya, including information involving United States aircraft flying in the No-Fly Zone over Northern Iraq.

B. The Death Penalty Notice

On April 19, 2002, pursuant to the Federal Death Penalty Act, 18 U.S.C. §§ 3591-3598 ("FDPA"), the Government filed a notice of intent to seek the death penalty in this case. The notice alleges two statutory aggravating factors and twenty-four non-statutory aggravating factors to justify the death penalty for Count One, Attempted Espionage with the intent to injure the United States and advantage Iraq, and for Count Two, Attempted Espionage with the intent to injure the United States and advantage Libya. The two statutory aggravating factors set forth in the notice are (1) that "[i]n the commission of the offense the defendant knowingly created a grave risk of substantial danger to the national security," and (2) that "[i]n the commission of the offense the defendant knowingly created a grave risk of death to another person." 18 U.S.C. § 3592(b)(2)-(3). In light of the Supreme Court's decision in Ring, ___ U.S. ___, 122 S.Ct. 2428, 153 L.Ed.2d 556, the Government filed another superseding indictment on July 24, 2002, re-alleging Counts One through Four and including the two statutory factors set forth in the death penalty notice.

Defendant filed several motions seeking to strike the death penalty provisions of the superseding indictment and attacking the constitutionality of the FDPA on its face and as applied. This order discusses the facial and as-applied challenges to the statute raised in the motion captioned "Omnibus Motions Concerning the Federal Death Penalty Act of 1994, 18 U.S.C. § 3591 et seq. and the Government's Notice of Intent to Seek a Sentence of Death."

II. DISCUSSION

A. The Federal Death Penalty Act is Constitutional

Defendant's motion to dismiss the indictment because the Federal Death Penalty Act is unconstitutional is denied. The FDPA scheme is comprehensible and allows the jury to make a reasoned and informed choice between death and a life sentence. United States v. Llera Plaza, 179 F.Supp.2d 444, 449-50 (E.D.Pa.2001). See also Marshall v. Lonberger, 459 U.S. 422, 438 n. 6, 103 S.Ct. 843, 74 L.Ed.2d 646 (1983) (noting that the "crucial assumption underlying the system of trial by jury is that juries will follow the instructions given them by the trial judge") (quoting Parker v. Randolph, 442 U.S. 62, 73, 99 S.Ct. 2132, 60 L.Ed.2d 713 (1979)); United States v. Kee, 2000 WL 863119 (S.D.N.Y. 2000); United States v. Frank, 8 F.Supp.2d 253 (S.D.N.Y.1998).

The studies cited by Defendant "do not establish that the concepts of aggravating and mitigating factors as used in the FDPA bear such a degree of intrinsic `incomprehensibility' as to render them incapable of clarification through adequate jury instructions." Llera Plaza, 179 F.Supp.2d at 450 n. 5 (analyzing the same studies cited by Defendant Regan); see also Kee, 2000 WL 863119, *3 (noting that jury studies cited by the defendants were "not sufficient to call into question the body of modern death penalty jurisprudence"). See generally United States v. Bradley, 880 F.Supp. 271, 276-77 (M.D.Pa. 1994) (holding that statistical evidence showing that 78% of defendants charged under the FDPA statute for murders within the course of a continuing criminal enterprise were African-Americans, while only 16.7% of all defendants charged with violating continuing criminal enterprise statute were African-Americans, was insufficient to establish that the FDPA was being applied in a racially discriminatory manner in violation of the Eighth Amendment and the Equal Protection Clause); cf. McCleskey v. Kemp, 481 U.S. 279, 297, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987) (holding that a statistical study indicating that the death penalty in Georgia is more frequently imposed on black defendants was insufficient to support the inference that any of the decision makers in the case of a black defendant sentenced to death acted with a discriminatory purpose). The only case that supports Defendant's position that empirical studies demonstrating juror confusion may be relied on by district court judges was overruled by the Seventh Circuit. See Free v. Peters, 12 F.3d 700, 705 (7th Cir.1993).

Defendant's argument that allowing the Government to "play with prose" in defining non-statutory...