United States v. Johnson
| Decision Date | 25 October 2012 |
| Docket Number | No. CR 01-3046-MWB,CR 01-3046-MWB |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. ANGELA JOHNSON, Defendant. |
| Court | U.S. District Court — Northern District of Iowa |
I. INTRODUCTION...........................................................................2
II. LEGAL ANALYSIS........................................................................3
III. CONCLUSION............................................................................37
I. INTRODUCTION
This capital case is before me on defendant Angela Johnson's first set of motions in anticipation of a resentencing hearing before a new jury, i.e., a "penalty retrial," pursuant to 21 U.S.C. § 848(i)(1)(B) (2005) and the requirements of 21 U.S.C. § 848(g)-(o) (2005). I previously granted, in part, Johnson's § 2255 Motion by vacating her four death sentences and one life sentence for murders in furtherance of a continuing criminal enterprise (CCE murder), in violation of 21 U.S.C. § 848(e), a provision of the Anti-Drug Abuse Act (ADAA). See Johnson v. United States, 860 F. Supp. 2d 663 (N.D. Iowa 2012). The prosecution then opted for a "penalty retrial," to determine the penalty for Johnson's convictions, rather than withdraw its notice of intent to seek the death penalty, filed pursuant to 21 U.S.C. § 848(h) (2005), and allow the court to set a hearing to impose sentences of life imprisonment without parole, pursuant to 21 U.S.C. § 848(p) (2005). Pursuant to a Scheduling Order (docket no. 858), I set the penalty "retrial" for June 3, 2013, and, inter alia, set a deadline ofSeptember 14, 2012, for Johnson to file any facial or as applied challenges to the use of the death penalty in this case.
Johnson filed five motions on the September 14, 2012, deadline: (1) her Omnibus Motion To Dismiss The "Special Findings" From The Second Superseding Indictment And To Strike Notice Of Intent To Seek The Death Penalty (docket no. 864); (2) her Motion To Dismiss Particular Aggravating Factors From The Second Superseding Indictment, And To Strike Particular Aggravating Factors From The Second Notice Of Intent To Seek The Death Penalty, And For Other Relief (docket no. 865); (3) her Motion To Compel Discovery Of Evidence In Support Of United States Attorney's Reasons Not To Seek The Death Penalty, Or, In The Alternative, For In-Camera Review Of The Death Penalty Evaluation Form (docket no. 867); (4) her Motion To Preclude Capital Sentencing Hearing (docket no. 868); and (5) her Motion For Discovery To Support Motion To Strike Death Penalty Based Upon Influence Of Arbitrary Factor[s] Of Race And Gender Of Victim[s] (docket no. 869). I will consider each of these motions in turn, but not in the order in which they appear on the docket. Instead, I will begin with the fourth motion, because, if a capital sentencing hearing must be precluded, any further proceedings will be very different in nature from what is currently anticipated. I will then consider the two motions to dismiss, and, finally, the two discovery motions.
II. LEGAL ANALYSIS
In her Motion To Preclude Capital Sentencing Hearing (docket no. 868), Johnson argues that, in 2006, Congress repealed the provision of the Anti-Drug Abuse Act (ADAA) for determining the penalty in capital cases under that Act, 21 U.S.C.§ 848(i), pursuant to the U.S.A. Patriot Improvement and Reauthorization Act of 2005, Pub. L. No. 109-177, § 221, 120 Stat. 192, 231 (2006). She contends that the repealed provision was merely "procedural," so that it was not "saved" by the Savings Statute, 1 U.S.C. § 109; that the Federal Death Penalty Act (FDPA), 18 U.S.C. § 3591 et seq., which now provides uniform procedures for determining the penalty for nearly all federal capital offenses, does not permit the empaneling of a new jury to consider the penalty in her ADAA case; and that application of the FDPA procedures would violate the Ex Post Facto Clause. The prosecution contends that all of the provisions for determining the penalty in ADAA capital cases are saved by the Savings Statute, because the penalty provided in § 848(e) cannot be fully preserved without also preserving the mechanisms for enforcing it in § 848(g)-(r). In reply, Johnson reiterates her contention that the Savings Statute applies to substance, not procedures, and that the repealed portions of § 848 were procedural. She also argues that cases to the contrary were "wrongly decided."
The Eighth Circuit Court of Appeals has recognized that "the general savings statute, 1 U.S.C. § 109, requires [courts] to apply the penalties in place at the time the crime was committed." United States v. Smith, 632 F.3d 1043, 1047-49 (8th Cir. 2011) ().1 The Savings Statute "'was enacted toovercome the common law rule that all pending prosecutions abate when a criminal statute is repealed.'" United States v. Orr, 636 F.3d 944, 957 (8th Cir. 2011) (quoting Martin v. United States, 989 F.2d 271, 273 (8th Cir. 1993), in turn citing Warden v. Marrero, 417 U.S. 653, 660 (1974)). The Savings Statute applies even if the prior act was not repealed in toto, but only in part or was only amended. Id. at 958. However, the Eighth Circuit Court of Appeals has recognized that the Savings Statute "'does not ordinarily preserve discarded remedies or procedures,'" but only substantive provisions. Smith, 632 F.3d at 1048 (quoting Marrero, 417 U.S. at 661).
Only two courts have squarely considered whether or not the capital sentencing provisions of the ADAA are "saved" by the Savings Statute, and the Eighth Circuit Court of Appeals is not one of them. See United States v. Stitt, 552 F.3d 345 (4th Cir. 2008); United States v. Hager, 530 F. Supp. 2d 778 (E.D. Va. 2008). Nevertheless, I agree with the Fourth Circuit Court of Appeals in Stitt that Supreme Court case law "leads inexorably to the conclusion that §§ 848(g)-(r) are saved by the Savings Statute." Stitt, 552 F.3d at 354. As the Stitt court explained, (1) sentencing provisions are "saved" as part of the "prosecution" of a "penalty," and "the repeal of §§ 848(g)-(r) would have the effect of eliminating a previously-available sentencing option, a death sentence, at the resentencing," id.; and (2) recognizing the "procedural/substantive" dichotomy under the Savings Statute also recognized by the Eighth Circuit Court of Appeals, see Smith, 632 F.3d at 1048, the court in Stitt reasoned that, "perhaps moreimportantly, . . . the penalty provided in § 848(e) cannot be fully preserved without also preserving the mechanisms for enforcing it, §§ 848(g)-(r)," noting that the existence of those mechanisms was a "constitutionally required condition precedent to imposing § 848(e)'s penalty of a death sentence," id. at 354-55. In other words, "because the 'enforcing provisions' of § 848(g)-(r) are both akin to a 'sentencing provision' and also have a constitutionally mandated 'special relation to the accrued right,' the Savings Statute operate[d] to save them against [the defendant]." Id. Thus, because "§ 848(i)(1)(B)(iv) provided for the empanelling of a sentencing jury in cases where the original death sentence was later vacated," the district court is allowed to empanel a second jury to reconsider the penalty after the original sentence has been set aside. Id.
I believe that the reasoning of the court in Stitt is sound and would be embraced by the Eighth Circuit Court of Appeals. I also find that the reasoning and conclusion of the Stitt court are plainly applicable here, where Johnson's original death sentences for § 848(e) violations were later vacated in my ruling on her § 2255 Motion. I find Hagar, 530 F. Supp. 2d at 782-85, unpersuasive, because it takes a piecemeal approach to determining which of the repealed subsections of § 848 are substantive and which are procedural. Doing so does not properly recognize that all of the repealed subdivisions of § 848 relating to determination of the sentence in capital cases under § 848(e) were constitutionally mandated and had a special relation to the accrued right, as subsequently...
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