US v. Davis, 94-381.

• Decision Date: 23 October 1995
• Docket Number: No. 94-381.,94-381.
• Citation: 904 F. Supp. 554
• Parties: UNITED STATES of America v. Len DAVIS, et al.
• Court: U.S. District Court — Eastern District of Louisiana

904 F. Supp. 554

UNITED STATES of America v. Len DAVIS, et al.

No. 94-381.

United States District Court, E.D. Louisiana.

October 23, 1995.

COPYRIGHT MATERIAL OMITTED

Milton Paul Masinter, Metairie, LA, John T. Mulvehill, Federal Public Defender, New Orleans, LA, Curklin Atkins, Curklin Atkins, PLC, New Orleans, LA, for Len Davis.

Daniel J. Markey, Jr., New Orleans, LA, Patrick C. McGinity, New Orleans, LA, Bruce Wayne Harris, New Orleans, LA, for Paul Hardy.

Henry Philip Julien, Jr., Julien & Julien, New Orleans, LA, for Damon Causey.

Joseph Vincent Di Rosa, Jr., New Orleans, LA, for Richard Reeves.

Jack M. Weiss, Mark Benjamin Holton, Stone, Pigman, Walther, Wittman & Hutchinson, LLP, New Orleans, LA, for Times-Picayune Publishing Corporation.

Constantine D. Georges, U.S. Attorney's Office, New Orleans, LA, Suzanne Drouet, U.S. Department of Justice, Criminal Civil Rights Division, Washington, DC, for U.S.

ORDER & REASONS

BERRIGAN, District Judge.

Defendants DAVIS and HARDY have lodged objections to the constitutionality of the federal death penalty procedures, as enacted by Congress in 1994. 18 U.S.C § 3591, et seq.¹ All motions are considered to have been filed by both defendants. For the reasons stated below, the defense motions are DENIED.²

Failure to Narrow the Class Eligible for the Death Penalty

The defendants contend the federal death penalty provisions are unconstitutional because they fail to sufficiently narrow the class of persons eligible for capital punishment.

Since death is qualitatively different from any other penalty in criminal law, the United States Supreme Court has required that the sentencer's discretion be directed and limited to avoid arbitrary, capricious and therefore unconstitutional decisions. Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). The capital sentencing process "must genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder." Zant v. Stephens, 462 U.S. 862, 875, 103 S.Ct. 2733, 2742, 77 L.Ed.2d 235 (1983); Lowenfield v. Phelps, 484 U.S. 231, 243, 108 S.Ct. 546, 554, 98 L.Ed.2d 568 (1988). This narrowing can be done by either limiting the definition of capital crimes or by broadly defining capital crimes but requiring additional aggravating factors at the penalty phase to justify a death sentence. Lowenfield v. Phelps, 484 U.S. at 245, 108 S.Ct. at 555.

Furthermore, an aggravating circumstance may not be so generic that it could apply to all murders and it may not be so vague that it provides inadequate guidance to the sentencer. Tuilaepa v. California, ___ U.S. ___, ___, 114 S.Ct. 2630, 2634, 129 L.Ed.2d 750 (1994); Arave v. Creech, 507 U.S. 436, 113 S.Ct. 1534, 123 L.Ed.2d 188 (1993); Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988).

The defendants maintain that neither the substantive offenses charged nor the aggravating factors designated by 18 U.S.C. § 3591(a)(2) and § 3592(c) sufficiently narrow the scope of offenders eligible for the death penalty to be constitutional.

Looking first to the substantive offenses, 18 U.S.C. § 241 and § 242 on their face appear to narrow the eligible classes as capital punishment is available only when the offender's acts result in a death or if the offender's acts include various named other crimes. Under 18 U.S.C. § 1512(a)(1)(C), capital punishment is available only if the offender kills the person and does so "with malice aforethought," a definition which includes felony/murder. 18 U.S.C § 1512(a)(2)(A) and 18 USC § 1111; United States v. Flores, 63 F.3d 1342 (5th Cir.1995).

The defendants argue that these statutory definitions do not "genuinely narrow" the class of persons eligible for the death penalty under current jurisprudence. Capital punishment may not be imposed upon an offender who did not himself commit the killing and had no intention of committing or causing it to happen, unless he was a major participant in the crime who acted with reckless indifference to human life. Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982); Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987). Consequently, the class of persons eligible for the death penalty under the offenses charged here is arguably even broader than that which has been held constitutional under current caselaw and therefore the statutes do not genuinely narrow the eligible pool.

The defendants make the same argument with regard to 18 U.S.C. § 3591(a)(2)(A-D). That provision sets forth various categories of "intent" that the jury must find in order to consider the offender death penalty eligible. These categories appear to be drawn from Enmund/Tison. United States v. Flores, 63 F.3d 1342 (5th Cir.1995). The defendants contend that they do not "genuinely narrow" the category of death-eligible offenders since they constitute the minimum level of culpability necessary for the death penalty scheme to be constitutional.

Similar arguments were raised by the defendants in United States v. Flores, 63 F.3d 1342 (5th Cir.1995). While the court in that case did not deal with the substantive offenses charged here, the court did discuss the four categories of Enmund/Tison intent which virtually duplicate § 3591(a)(2)(A)-(D) and raise the same issues. The 5th Circuit concluded that even though the Enmund/Tison findings were required in every capital case, they still constituted "aggravators" because they narrowed those murderers who were death eligible from the larger class of murderers in general. Under the rationale of Flores, § 3591(a)(2)(A)-(D) likewise "narrows" the eligible class even though the (A)-(D) factors are constitutionally required in all capital cases. That being true, then § 241, § 242 and § 1512(a)(1) and (2) likewise "narrow" the eligible class even though below the threshold required by Enmund/Tison.

The defendants also challenge the constitutionality of two additional aggravating factors cited by the government and alleged in this case:

Pecuniary gain. — The defendant committed the offense as consideration for the receipt, or in the expectation of the receipt, of anything of pecuniary value. 18 U.S.C. § 3592(c)(8);

Substantial planning and premeditation. — The defendant committed the offense after substantial planning and premeditation to cause the death of a person or commit an act of terrorism. 18 U.S.C. § 3592(c)(9).³

The defendants argue that the factors are vague and overly broad. The Court finds nothing vague or overly broad about a murder-for-hire which is in essence what § 3592(c)(8) describes. As for "substantial planning and premeditation," the 5th Circuit has recently found that the terms are "sufficiently definite and objective to pass constitutional muster." United States v. Flores, supra. If further clarification is needed, the defendants can suggest a jury instruction.

Improper Grant of Authority to the Prosecutor to Define Nonstatutory Aggravating Factors

Under 18 U.S.C. § 3592, the government may present evidence of nonstatutory aggravating factors which it contends justify imposition of the death penalty. The defendants maintain that this discretion is an improper delegation of legislative authority to the executive branch. U.S. Const. art. 1, § 1; Mistretta v. United States, 488 U.S. 361, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). Several other federal courts have dealt with this issue and found that the statute does not delegate legislative power. United States v. Pitera, 795 F.Supp. 546 (E.D.N.Y.1992); United States v. Bradley, 880 F.Supp. 271 (M.D.Pa. 1994). Part of the rationale is that it is the statutory aggravating factors, which are defined by Congress and not delegated, that set the mandatory minimum requirements for the jury to consider the death penalty. If the jury finds the requisite number of statutory aggravating factors to apply, then the jury can consider the death penalty. If not, they cannot. Whether the government introduces any other aggravating evidence is irrelevant. Therefore, the nonstatutory aggravating factors are simply a means to provide the jury with additional information about the defendant, just as a defendant is free to provide with regard to information in mitigation. In that sense, the government (and the defense) are engaging in "advocacy, not legislation." United States v. Pitera, 795 F.Supp. 546, 560 (E.D.N.Y.1992); United States v. Bradley, 880 F.Supp. 271 (M.D.Pa. 1994).

The defendants, however, raise an additional concern which makes the analysis less simple. In Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983), the United States Supreme Court upheld a death sentence even though one of the aggravating factors found by the jury to apply was held by the court to be unconstitutionally vague. Significant to the decision was that the state statute at issue used aggravating factors only to narrow the class eligible for the death penalty. The jury was not additionally instructed to weigh aggravating factors against mitigating factors. The federal statute at issue here likewise uses the statutory aggravating factors as the threshold to find an offender death eligible. However, the federal procedure also calls on the jury to consider any nonstatutory aggravating factors and mitigating factors and ultimately decide whether the aggravating factors "sufficiently outweigh" the mitigating factors to justify a death sentence. 18 U.S.C. § 3593(e). Thus, while the statutory factors provide the threshold for death penalty consideration, they ultimately become indistinguishable from nonstatutory factors in the final weighing by the jury. In the same pot with the carefully crafted factors enunciated by Congress go the potential hodge-podge of other factors drawn up by the individual government prosecutors. Since this is a weighing statute and since...