United States v. McCluskey

• Decision Date: 24 September 2012
• Docket Number: CR. No. 10-2734 JCH
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. JOHN CHARLES McCLUSKEY, Defendant.
• Court: U.S. District Court — District of New Mexico

UNITED STATES OF AMERICA, Plaintiff,

v.JOHN CHARLES McCLUSKEY, Defendant.

CR. No. 10-2734 JCH

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

Dated: September 24, 2012

MEMORANDUM OPINION AND ORDER

This matter is before the Court on Defendant John Charles McCluskey's (Corrected) Defendant's Omnibus Motion to Dismiss the "Special Findings" From the Third Superceding Indictment, and to Strike the Notice of Intent to Seek the Death Penalty [Doc. No. 397]. In that motion, which is 135 pages in length (not counting the Table of Contents and Table of Authorities), McCluskey offers seven main arguments in support of his request that the Court dismiss the special findings from the Third Superceding Indictment and striking the Notice of Intent to Seek the Death Penalty on the grounds that the Federal Death Penalty Act is unconstitutional either on its face or as applied to him. The motion will be denied in its entirety.¹

DISCUSSION

I. WHETHER THE FDPA OPERATES IN AN ARBITRARY, CAPRICIOUS, IRRATIONAL, OR DISCRIMINATORY MANNER

A. Infrequency of Application

McCluskey argues that because the federal death penalty is infrequently sought and even more infrequently carried out, its imposition is arbitrary, capricious, and therefore unconstitutional. In support of his argument, McCluskey relies upon Furman v. Georgia, 408 U.S. 238 (1972), in which the Supreme Court struck down as unconstitutional the Georgia capital punishment statute then in effect. In a concurring opinion, Justice Stewart stated that the death sentences at issue were

cruel and unusual in the same way that being struck by lightning is cruel and unusual. For, of all the people convicted of rapes and murders in 1967 and 1968, many just as reprehensible as [those committed by petitioners], the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed. My concurring Brothers have demonstrated that, if any basis can be discerned for the selection of these few to be sentenced to die, it is the constitutionality impermissible basis of race . . . I simply conclude that the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed.

Id. at 309-10 (Stewart, J., concurring) (citations and footnote omitted). McCluskey argues that Justice Stewart's statement constitutes the "essence" of Furman. Doc. 397 at 29, 31 (characterizing Furman as viewing "arbitrariness and caprice ... as the inevitable side-effects of a rarely-imposed punishment of death"). Given this reading, he argues that because the federal death penalty is rarely sought or imposed, the FDPA is no different from the Georgia statute invalidated in Furman.

In his well-reasoned opinion in United States v. Taylor, 648 F. Supp. 2d 1237, 1239-41 (D.N.M. 2008), Judge William Johnson rejected the argument that McCluskey advances here. Otherfederal courts have considered and rejected the argument as well; none has concluded that the FDPA is unconstitutional. See, e.g. United States v. Sampson, 486 F.3d 13, 23-24 (1st Cir. 2007); United States v. Mitchell, 502 F.3d 931, 983 (9th Cir. 2007); United States v. Jacques, 2011 WL 1675417 at*2-3 (D. Vt. May 4, 2011); United States v. Barnes, 532 F. Supp. 2d 625, 631-33 (S.D.N.Y. 2008); United States v. Hammer, 25 F. Supp. 2d 518, 546-47 (M.D. Pa. 1998); United States v. O'Driscoll, 203 F. Supp. 2d 334, 341 (M.D. Pa. 2002). Many of these courts have pointed out that, in its post-Furman decisions, the Supreme Court has indicated that the problem of arbitrariness may be addressed by a capital punishment scheme that guides the discretion of the decision-makers responsible for imposing the death penalty. In particular, the Supreme Court has indicated that, "[t]ogether . . . Furman . . . and Gregg ... establish that a[ ]capital sentencing system must: (1) rationally narrow the class of death-eligible defendants; and (2) permit a jury to render a reasoned, individualized sentencing determination based on a death-eligible defendant's record, personal characteristics, and the circumstances of his crime." Kansas v. Marsh, 548 U.S. 163, 173-74 (2006) (citations omitted).

This Court joins these other federal courts in disagreeing with McCluskey's argument. The Furman Court did not hold that the infliction of the death penalty per se violated the Constitution, but instead that "where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action." Gregg v. Georgia, 428 U.S. 153, 189 (1976) (discussing Supreme Court's holding in Furman). The FDPA accomplishes this through the strict procedural requirements that enable the Court and the jury to direct and limit the application of the death penalty in a way that is not arbitrary or capricious. As discussed here and elsewhere (see Docs. 590 and 645), the FDPA first narrows the class ofdeath-eligible defendants by using statutory and non-statutory aggravating factors and then permitting the jury to make an individualized sentencing determination. More specifically, the statute first requires that the jury unanimously find the existence of an intent factor and at least one statutory aggravating factor beyond a reasonable doubt before a defendant is considered eligible for the death penalty. 18 U.S.C. §§ 3591-3593; see Zant v. Stephens, 462 U.S. 862, 878-79 (1983) ("statutory aggravating circumstances play a constitutionally necessary function at the stage of legislative definition: they circumscribe the class of persons eligible for the death penalty. . . . What is important at the selection stage is an individualized determination on the basis of the character of the individual and the circumstances of the crime."); United States v. Cooper, 91 F. Supp. 2d 90, 96-97 (D.D.C. 2000). Then, at the selection phase, jurors must make an individualized determination regarding whether the defendant should be selected for the death penalty. The jurors must balance the statutory and non-statutory aggravating factors that it finds the Government has proved beyond a reasonable doubt against the mitigating factors it finds the defendant proved by a preponderance of the evidence. 18 U.S.C. § 3593(c), (e); see United States v. Sablan, No. 00-00531-WYD, 2006 WL 1028780, at *1 (D. Colo. Apr. 18, 2006). The aggravating factors must sufficiently outweigh the mitigating factors. 18 U.S.C. § 3593(e). This detailed process, which includes consideration of evidence and factors specific to the defendant, minimizes the risk of wholly arbitrary and capricious action. Accordingly, for these reasons and for the reasons set forth in the other district court opinions cited above, this portion of McCluskey's motion will be denied.

B. Principled Basis for Distinguishing Between Cases

McCluskey next argues that the absence of a principled basis for distinguishing between cases where the federal death penalty is imposed from cases where it is not imposed renders the federal death penalty unconstitutional. In support of this argument, McCluskey has provided theCourt with case summaries of every completed authorized federal death penalty case since 1988 as well as 193 verdict sheets reflecting findings with regard to aggravating and mitigating factors for cases that reached the penalty phase. All describe terrible crimes, though in only some of these cases were the defendants sentenced to death. McCluskey asserts that this data illustrates that "[t]here is no rhyme, reason, or predictability to who is sentenced to death and who is not" and that the verdict sheets and compilations therefore "provide valuable insight into the hopelessly irremediable problem of arbitrariness and caprice that marks the administration of the federal death penalty system." Doc. 397 at 36.

Again, the Court finds itself in agreement with Judge Johnson in Taylor, 648 F. Supp. 2d at 1241-42, as well as the other courts that have considered this argument. As Judge Johnson stated:

These case summaries certainly paint a vivid picture, however, they are ultimately not persuasive. The summaries are very short—almost all of them are between one and three sentences long. In many cases they do not provide enough detail to allow the reader to determine whether or not the crimes they describe are comparable to each other. Moreover, they do not provide any information about the various aggravating or mitigating factors that existed in those cases and that the juries would have considered under the FDPA when deciding whether or not to impose the death penalty. This was exactly the concern expressed by the First Circuit in United States v. Sampson, 486 F.3d 13 (1st Cir. 2007), a case in which the defendant apparently provided similar summaries in support of a similar argument. The Sampson court stated, "The summaries on which Sampson relies to demonstrate inconsistency are devoid of details and fail to account for the objective circumstances of the underlying crimes. . . . [W]e decline Sampson's invitation to ignore individual differences across offenders and offenses." Id. at 25. While the case summaries are compelling, they simply do not constitute evidence of the arbitrary imposition of the death penalty.

Id. at 1242. See also United States v. Hammer, 2011 WL 6020577 at *4-5 (M.D. Pa. Dec. 1, 2011) (unpublished); United States v. Johnson, 2009 WL 1856240 at*3-5 (E.D. Mich. June 29, 2009)(unpublished); United States v. Barnes, 532 F. Supp. 2d 625, 633-34 (S.D.N.Y. 2008); United States v. Le, 327 F. Supp. 2d 601, 608-09 (E.D. Va. 2004) (finding that the FDPA aggravating factors "apply to a narrow range of homicides and provide a principled basis for distinguishing between those homicides that warrant imposition of the death penalty from...