U.S. v. Rodriguez
| Citation | 389 F.Supp.2d 1135 |
| Decision Date | 27 September 2005 |
| Docket Number | Criminal Case No. C2-04-55. |
| Parties | UNITED STATES of America, Plaintiff, v. Alfonso RODRIGUEZ, Jr., Defendant. |
| Court | U.S. District Court — District of North Dakota |
Drew H. Wrigley, U.S. Attorneys, Fargo, ND, for Plaintiff.
Richard Ney, Richard Ney Law Office, Wichita, KS, Robert G. Hoy, Ohnstad Twichell, West Fargo, ND, for Defendant.
ORDER ON SECOND ROUND OF PRETRIAL MOTIONS
The Court has before it several pretrial motions filed by Defendant (doc. 88, 90, 92, and 94) and a motion to reconsider from the government (doc. # 126). A hearing was held on August 19, 2005, during which the Court took these motions under advisement. The Court has carefully considered the briefs submitted by the parties along with the arguments and statements of counsel at the hearing and now issues this memorandum opinion and order.
I. Because the first statutory aggravating factor in the government's "Notice of Intent to Seek a Sentence of Death" does not duplicate an element of the crime and striking this factor would prevent the jury from considering a circumstance of the crime when deciding whether to impose the death penalty, Defendant's Motion to Strike this factor from the notice is DENIED.
II. Because Defendant's conviction in Polk County case # 6192 has not been vacated, Defendant's Motion to Strike this conviction from the aggravating factors is DENIED.
III. Because the issue of whether Defendant's convictions in Polk County case 5447 and 5438 involved the infliction of, or the attempted infliction of, serious bodily injury is a question of fact, the Motion to Strike these convictions is DENIED.
IV. Because the United States Supreme Court has upheld the use of psychiatric testimony on the issue of future dangerousness, Defendant's Motion to Strike the non-statutory aggravating factor of future dangerousness is DENIED.
V. Because the government has not identified any exceptional circumstances requiring the Court to vacate its previous order regarding the clarification of the Notice of Intent to Seek a Sentence of Death, Plaintiff's Motion to Reconsider is DENIED.
Defendant is charged with knowingly kidnapping Dru Sjodin and willfully transporting her in interstate commerce. Among other things, the indictment also alleges that this kidnapping resulted in her death. In the government's "Notice of Intent to Seek a Sentence of Death," the first statutory aggravating factor states that the defendant "caused the death of Dru Katrina Sjodin during the commission of a violation of 18 U.S.C. § 1201 (kidnapping)...." Defendant alleges that this statutory aggravating factor merely duplicates an element of the crime. Based on this allegation, Defendant argues that this aggravating factor should be struck from the notice because it does not narrow the class of persons eligible for the death penalty.
In United States v. Jones, 132 F.3d 232, 237 (5th Cir.1998), the defendant was charged with kidnapping resulting in the victim's death. Just as in the present case, one of the statutory aggravating factors was that "the defendant caused the death or injury resulting in the death of [the victim] during the commission of the offense of kidnapping." Id. at 238 n. 1. The Jones court held that this aggravating factor was not an unconstitutional duplication of an element of the crime. Id. at 249. The court explained that during the guilt phase of the trial, the jury only determined whether the defendant was guilty of kidnapping with death resulting. Id. Only at the penalty phase did the jury then determine whether the defendant had actually caused the death of the victim during the commission of the crime of kidnapping. Id.
Defendant argues that only when there are multiple defendants charged with kidnapping could it be possible that the "causing the death" aggravating factor would not duplicate an element of the crime. However, there are any number of factual scenarios with a sole defendant where the defendant would not have caused the death of his kidnapping victim. For example, the victim could die as a result of a risky escape, such as jumping out of a moving vehicle. In that situation, the kidnapper would not have "caused" the death. Therefore, the government's first statutory aggravating factor is not an unconstitutional duplication of an element of the crime. Jones, 132 F.3d at 249.
Defendant argues that the reasoning in United States v. Kaczynski, No. CR-S-96-259GEB GGH, 1997 WL 716487 (E.D.Cal. Nov. 7, 1997) and United States v. McVeigh, 944 F.Supp. 1478 (D.Colo.1996) supports his argument. In Kaczynski, the first statutory aggravating factor alleged that "[t]he death, or injury resulting in death, occurred during the commission or attempted commission of an offense under 18 U.S.C. § 844(d) which prohibits transportation of an explosive device in interstate commerce with intent to kill." 1997 WL 716487, at *1. In McVeigh, two of the statutory aggravating factors alleged "[t]hat the deaths or injuries resulting in death occurred during the commission of an offense under ... 18 U.S.C. § 844(f) () ... and 18 U.S.C. § 2332a ()." 944 F.Supp. at 1488-89. In both of these cases, the district courts struck these statutory aggravating factors because they were identical to counts in the indictments. Kaczynski, 1997 WL 716487, at *22-23; McVeigh, 944 F.Supp. at 1489-90. Unlike the present case, these aggravating factors did not narrow the class of defendants that are eligible for the death penalty by alleging that the defendants had been the ones who actually caused the deaths.
Furthermore, the reasoning of the Kaczynski and McVeigh courts has been called into question by numerous other courts.1 As one district court observed, the McVeigh reasoning appears to come right out of the dissent from Lowenfield v. Phelps, 484 U.S. 231, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988). Llera Plaza, 179 F.Supp.2d at 484. The flaw in the Kacyznski reasoning is that it starts from the assumption that the class of death-eligible defendants that must be narrowed is the class of all defendants that have committed the same offense as the defendant before the court. Id. However, the Supreme Court cases of Tuilaepa v. California, 512 U.S. 967, 114 S.Ct. 2630, 129 L.Ed.2d 750 (1994) and Arave v. Creech, 507 U.S. 463, 113 S.Ct. 1534, 123 L.Ed.2d 188 (1993) explain that the class of defendants that must be narrowed is that class of defendants that have been convicted of any capital crime. Id.
As the Court stated in Tuilaepa, "the sentencer should consider the circumstances of the crime in deciding whether to impose the death penalty." 512 U.S. at 976, 114 S.Ct. 2630. Defendant argues that the jury will be able to consider the circumstances of the crime through the use of other factors included in the Notice of Intent to Seek a Sentence of Death such as the allegation that the defendant "intentionally inflicted serious bodily injury that resulted in the death of Dru Katrina Sjodin." However, if the Court were to remove the statutory aggravating factor under II.(a), the jury would no longer be considering one circumstance of the crime: that the defendant allegedly caused her death during a kidnapping. The fact that the death occurred during the commission of another crime appears nowhere else in the Notice. Removing this aggravating factor would violate the Supreme Court's holding that the sentencer must consider the circumstances of the crime when deciding whether to impose the death penalty. Tuilaepa, 512 U.S. at 976, 114 S.Ct. 2630. Therefore, Defendant's motion to strike the statutory aggravating factor under II.(a) is DENIED.
The relevant facts from the conviction in Polk County criminal case # 6192 are as follows: On April 13, 1980, Rodriguez tried to kidnap a woman in Crookston, Minnesota. Rodriguez v. State, 345 N.W.2d 781, 784 (Minn.Ct.App.1984). She fought him off and escaped with minor stab wounds. Id. It turned out that she was a portrait artist, so she drew a sketch of her attacker, but she was unable to pick Rodriguez' picture out of a lineup. Id. When the police showed her a second photographic lineup, she picked Rodriguez' picture as looking the most like her attacker, but she also thought the eyes of a man in another photograph looked familiar. Id. Following this second photo lineup, she drew a second sketch of her assailant, and this sketch "closely resembled" Rodriguez. Id.
The police then hypnotized the victim, and during hypnosis, she positively identified Rodriguez as her assailant. Rodriguez, 345 N.W.2d at 784. At trial, the court limited her testimony to her pre-hypnosis recollections. Id. at 785. Following Rodriguez' trial, the Minnesota Supreme Court held that testimony derived through the use of hypnosis may not be admitted at a criminal trial. State v. Mack, 292 N.W.2d 764, 772 (Minn.1980).
While the trial judge did exclude all testimony elicited through hypnosis, Rodriguez, 345 N.W.2d at 785, Defendant argues that a violation of Mack occurred when the victim was allowed to identify Rodriguez at trial. It is not clear from the case how this occurred. The court only states: "During trial, Mrs. Whalen identified appellant as her assailant." Id. at 784. Did she simply repeat all of her pre-hypnosis recollections that identified Rodriguez as her attacker? Or did she actually point to Rodriguez in open court and identify him as her attacker? If the latter occurred, it is possible that the trial court had some procedural safeguards in place that required her to make this identification based solely on pre-hypnotic...
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