U.S. v. Regan

• Decision Date: 18 September 2002
• Docket Number: No. CRIM.A. 01-405-A.,CRIM.A. 01-405-A.
• Citation: 221 F.Supp.2d 672
• Court: U.S. District Court — Eastern District of Virginia
• Parties: UNITED STATES of America v. Brian Patrick REGAN, Defendant.

221 F.Supp.2d 672

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

No. CRIM.A. 01-405-A.

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

September 18, 2002.

Randy Bellows, Esquire, Assistant United States Attorney, United States Attorney Office, Patricia Haynes, Esquire, Assistant United States Attorney, United States Attorney's Office, James Gillis, Esquire, Assistant United States Attorney, United States Attorney's Office, Alexandria, VA, for Plaintiff.

Nina J. Ginsberg, Esquire, DiMuro, Ginsberg & Mook, James C. Clark, Esquire, Land, Clark, Carroll, Mendleson & Blair, Jonathan Shapiro, Esquire, Law Office of Jonathan Shapiro, Joseph J. McCarthy, Esquire, Delaney, McCarthy & Colton, Alexandria, VA, for Defendant.

MEMORANDUM OPINION

LEE, District Judge.

THIS MATTER is before the Court on Defendant's Motion to Dismiss the Government's Notice of Intent to Seek the Death Penalty. The primary issue presented in the instant Memorandum Opinion, as raised in grounds E and F of Defendant's Omnibus Motions, is whether the Federal Death Penalty Act ("the Act"), 18 U.S.C. §§ 3591-3598, is unconstitutional in light of the Supreme Court's rulings in Ring v. Arizona, ___ U.S. ___, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999).

The thrust of Defendant's argument is that Ring, Apprendi, and Jones mandate that any fact that must be found in order for Defendant to receive an increased punishment beyond that authorized by the jury verdict constitutes an element of a new greater substantive offense. Based on this proposition, Defendant maintains that the Act is unconstitutional because the statutory aggravating factors alleged in this case necessary for the imposition of capital punishment are sentencing factors, not elements, under the Act. Flowing from the premise that the Ring trilogy requires that any factor increasing punishment is tantamount to an element of a new and greater substantive offense, Defendant raises a litany of secondary arguments attacking the notice and evidentiary standards addressing the aggravating factors set forth in the Act. At bottom, Defendant insists that the Court cannot remedy these infirmities without violating basic principles of separation of powers.

For the reasons stated, the Court holds that the Act is consistent with Ring, Apprendi, and Jones. While these cases recognize additional procedural due process rights, the Supreme Court did not mandate that a fact that must be found to increase punishment beyond that authorized by the jury verdict constitutes an actual element of a new substantive crime. All Ring stands for is that any factual determination necessary to impose the death penalty must be found by a jury beyond a reasonable doubt. Therefore, because the statutory aggravating factors under the Act are not elements of an aggravated capital offense, and because the Act clearly provides that such factors be determined by a jury beyond a reasonable doubt, the Act is constitutional.

Accordingly, Defendant's contentions concerning the Act's alleged infirmities with respect to its notice and evidentiary standards fail as well. The Government's inclusion of the statutory aggravating factors in the superseding indictment remedy rather than exacerbate the constitutional concerns under the Fifth Amendment. Moreover, the Act's relaxed rules with respect to the admissibility of evidence regarding aggravating and mitigating factors in the penalty phase of a capital case are consonant with the Eighth Amendment and the Due Process Clause. The Act's evidentiary standard follows long-established precedent requiring individualized consideration of the defendant and the crime in determining whether to impose the ultimate penalty. In sum, the Act is consistent with the procedural rights recognized in Ring, and Defendant's motion seeking to dismiss the death penalty notice in this regard is DENIED.

I. BACKGROUND

A. The Charges Against the Defendant.

On August 24, 2001, the 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 basically 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, Defendant became employed by TRW Incorporated ("TRW"). In that capacity, he served 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 appropriate security clearance. In August 2001, the indictment alleges that Defendant again accessed Intelink while working for TRW on his NRO assignment. During the month of August, Defendant allegedly accessed 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. The indictment alleges that Defendant was subsequently arrested at Dulles International Airport on August 23, 2001, en route to Europe. Defendant was apprehended with 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. The superseding indictment alleges three counts of Attempted Espionage under 18 U.S.C. § 794(a). The three counts charge Attempted Espionage with the intent to injure the United States and advantage Iraq (Count One), Libya (Count Two), and China (Count Three). The superseding indictment also charges a count of Gathering National Defense Information in violation of 18 U.S.C. § 793 (Count Four). Notably, the superseding indictment refers to the discovery of letters on Defendant's computer allegedly drafted by Defendant to highranking 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 18 U.S.C. § 3593, the Government filed a Notice of Intent to Seek the Death Penalty ("Notice") in this case. The Notice alleges two statutory aggravating factors and twenty-four non-statutory aggravating factors, justifying the death penalty on Count One, Attempted Espionage with the intent to injure the United States and advantage Iraq, and 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 (a) that "[i]n the commission of the offense the defendant knowingly created a grave risk of substantial danger to the national security," and (b) 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, 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 Notice.

C. Defendant's Motion to Dismiss the Death Penalty Notice.

Defendant initially moved to dismiss the Notice on the grounds that the Act is unconstitutional because of the relaxed evidentiary standard provided during the sentencing phase, and the Act's failure to prescribe that the statutory aggravating factors be submitted to a grand jury. On July 16, 2002, Defendant filed a supplemental memorandum in support of his motion to dismiss, contending that the Act is unconstitutional in light of Ring. As stated, the Government then filed a superseding indictment on July 24, 2002, re-alleging Counts One through Four. The superseding indictment also included a section entitled "Notice of Special Findings" that alleged the statutory aggravating factors listed above. The instant Memorandum Opinion is limited to Defendant's contentions attacking the Act on constitutional grounds and Defendant's subsequent Ring arguments.

II. ANALYSIS

The primary issue presented in the instant Memorandum Opinion is whether, in light of Jones, Apprendi, and Ring, certain aspects of the Act must be deemed unconstitutional. As stated, Defendant's primary argument is that (a)...