US v. DesAnges

• Citation: 921 F. Supp. 349
• Decision Date: 22 March 1996
• Docket Number: No. 95-00046-H.,95-00046-H.
• Parties: UNITED STATES of America, v. Omar Yusuf DesANGES, Defendant.
• Court: U.S. District Court — Western District of Virginia

921 F. Supp. 349

UNITED STATES of America, v. Omar Yusuf DesANGES, Defendant.

No. 95-00046-H.

United States District Court, W.D. Virginia, Harrisonburg Division.

March 22, 1996.

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John Lloyd Snook, III, Snook & Haughey, P.C., Charlottesville, VA, John S. Hart, Jr., Green & O'Donnell, Harrisonburg, VA, for defendant.

Thomas Jack Bondurant, Jr., Anthony Paul Giorno, U.S. Attorney's Office, Roanoke, VA, for U.S.

MEMORANDUM OPINION AND ORDER

WILSON, District Judge.

Omar Yusuf DesAnges, a black male, is charged in a three count indictment with intentionally killing Sanford Datcher in the course of a conspiracy to distribute 50 or more grams of crack cocaine in violation of 21 U.S.C. § 848(e)(1)(A); conspiracy to possess with the intent to distribute crack cocaine in violation of 21 U.S.C. § 841(a)(1); and using or carrying a firearm during and in relation to the conspiracy to distribute crack cocaine in violation of 18 U.S.C. § 924(c). The first count carries a possible death sentence. DesAnges has moved to declare the death penalty under 21 U.S.C. § 848 facially unconstitutional on various grounds, and has moved to dismiss the indictment as racially motivated or, in the alternative, for discovery concerning selective prosecution. The United States defends the constitutionality of the statute authorizing the death penalty and denies that DesAnges' race motivated its decision to prosecute him. The United States also has moved for a pretrial ruling on the admissibility at trial of a statement made by the murder victim shortly before his death. For the reasons stated below, the court denies DesAnges' motions to declare § 848 unconstitutional and to dismiss the indictment. The court also grants the United States' motion in limine and finds the statement admissible.

I. Defendant's Motion to Declare 21 U.S.C. § 848 Unconstitutional

DesAnges has moved to declare 21 U.S.C. § 848 unconstitutional because it fails to afford meaningful appellate review, allows the government to identify non-statutory aggravating factors, uses a relaxed evidentiary standard at sentencing, fails to generally narrow the class of persons eligible for the death penalty, and impermissibly permits the jury to weigh a statutory aggravating factor that duplicates an element of the crime. The court finds none of these arguments persuasive and will deny the motion. The court will address DesAnges' contentions in turn.

A. Meaningful Appellate Review

The Constitution requires meaningful appellate review of death sentences. Parker v. Dugger, 498 U.S. 308, 312, 111 S.Ct. 731, 734-35, 112 L.Ed.2d 812 (1991). "Meaningful appellate review ... ensures that the death penalty is not imposed arbitrarily or irrationally ... and minimizes the risk of constitutional error." Id. at 321, 111 S.Ct. at 739 (citations omitted). DesAnges maintains that 21 U.S.C. § 848 is unconstitutional because § 848(q)(3)(A) impermissibly restricts appellate review of error at sentencing. DesAnges construes § 848(q) to limit appellate review to the "(1) evidentiary sufficiency of aggravating and mitigating factors and (2) whether arbitrary factors were in play" in the jury's decision. According to DesAnges' construction of 848(q), a wide range of legal error, such as error in instructing the jury, is not reviewable on appeal. The court concludes that DesAnges' argument is premised on a hypertechnical, overly-narrow construction of the appellate review provisions of § 848(q), a construction that conflicts with the "elementary principle of statutory construction that a statute not be given an unconstitutional interpretation unless clearly so indicated." Tomai-Minogue v. State Farm Mut. Auto. Ins. Co., 770 F.2d 1228, 1233 n. 8 (4th Cir.1985).

Rather than narrowly channeling appellate review of death sentences, § 848(q) broadly instructs the court of appeals to "consider the record, the evidence submitted during the trial, the information submitted during the sentencing hearing, the procedures employed in the sentencing hearing, and the special findings returned under § 848." § 848(q)(2). The court of appeals must then affirm only if "the sentence of death was not imposed under the influence of passion, prejudice, or any other arbitrary factor," and if the evidence supports the necessary "special findings." § 848(q)(3)(A)-(B) (emphasis added). Although § 848(q) does not specifically catalogue "legal error," the court concludes that a death sentence based on substantial legal error is a decision based on an "arbitrary factor" that is subject to appellate review. See United States v. Walker, 910 F.Supp. 837 (N.D.N.Y.1995). So construed, a death sentence under § 848 is subject to meaningful appellate review, and DesAnges' challenge fails.

B. Identification of Non-Statutory Aggravating Factors

DesAnges next maintains that 21 U.S.C. § 848 is unconstitutional because it permits the United States to identify the "non-statutory aggravating factors" that are submitted to the jury during the penalty hearing.¹ The jury weighs these non-statutory aggravating factors only if it first finds at least two statutory aggravating factors.² DesAnges argues that the wide latitude afforded the government in identifying and presenting evidence concerning non-statutory aggravating factors during the penalty hearing is an unconstitutional delegation of legislative power and violates the constitutional bans on ex post facto laws and bills of attainder. The court disagrees.

(1) Non-delegation Doctrine

The non-delegation doctrine flows from Article I, Section 1 of the United States Constitution. According to this doctrine, Congress may not delegate its legislative authority to the other branches of the federal government. Mistretta v. United States, 488 U.S. 361, 371, 109 S.Ct. 647, 654, 102 L.Ed.2d 714 (1989). However, Congress may "legislate in broad terms, leaving a certain degree of discretion to executive or judicial actors" if Congress articulates an "intelligible principle" to guide the other branches of government. Touby v. United States, 500 U.S. 160, 165, 111 S.Ct. 1752, 1756, 114 L.Ed.2d 219 (1991), citing, J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 409, 48 S.Ct. 348, 352, 72 L.Ed. 624 (1928). DesAnges alleges that by allowing prosecutors to identify the non-statutory aggravating factors presented to the jury, Congress has unconstitutionally delegated its legislative power to the executive branch.

DesAnges' argument fails because he misinterprets and overstates the role of the non-statutory aggravating factors. The non-statutory aggravating factors do not narrow, limit, or affect either the class of capital crimes or the class of defendants eligible for the death penalty. That winnowing process begins with the definition of the crime itself and ends with the objective statutory aggravating factors. However, when a jury finds that the defendant committed a capital crime and that the required statutory aggravating factors exist, it should be informed fully before it decides whether the defendant will live or die. The requirement that the government notify the defendant of the "non-statutory" aggravating factors it will "seek to prove as the basis for the death penalty," 21 U.S.C. § 848(h)(1)(B), simply protects the defendant from unfair surprise at sentencing and facilitates a thorough airing of information that will guide the jury's decision.³ The court finds that the non-statutory aggravating factors neither limit nor define the classes of crimes and defendants subject to the penalty of death, and thus, the non-delegation doctrine is not implicated.

(2) Ex Post Facto Clause

DesAnges next asserts that § 848 violates the Ex Post Facto Clause in Article I, Section 9 of the Constitution. He argues that by allowing the prosecutor to identify non-statutory aggravating factors, the statute punishes prior innocent conduct. Again, DesAnges' argument fails. Legislation violates the Ex Post Facto Clause if it: (1) makes criminal an act that was innocent when done; (2) makes the punishment for the crime more burdensome than before; or (3) deprives the defendant of any defense available when the crime was committed. See Beazell v. Ohio, 269 U.S. 167, 169-70, 46 S.Ct. 68, 68-69, 70 L.Ed. 216 (1925); Dobbert v. Florida, 432 U.S. 282, 292-93, 97 S.Ct. 2290, 2297-98, 53 L.Ed.2d 344 (1977). The use of non-statutory aggravating factors does not violate any of these three prohibitions.

As previously stated, the statute itself defines the crimes and possible range of punishments. The crime for which DesAnges has been charged is defined in § 848, and the death penalty is unambiguously within the range of possible punishments. See 21 U.S.C. § 848(e)(1)(A). The conduct was prohibited and the possible punishment was established before DesAnges allegedly killed Datcher. The non-statutory factors alter neither the elements of the crime itself nor the range of punishments; rather, they help the jury determine the proper punishment within the statutory range. They are not separate offenses or penalties by themselves and do not deprive DesAnges of any available defense. Accordingly, the court finds that § 848 does not implicate ex post facto concerns.

(3) Bill of Attainder

Similarly, the court rejects DesAnges' contention that allowing the government to identify and prove non-statutory aggravating factors constitutes a bill of attainder in violation of Article I, Section 9 of the Constitution. A bill of attainder is a "law that legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial." Selective Serv. Sys. v. Minnesota Public Interest Research Group, 468 U.S. 841, 846-47, 104 S.Ct. 3348, 3351-52, 82 L.Ed.2d 632 (1984). The identification of non-statutory aggravating factors bears no resemblance to a bill of attainder. The defendant receives a judicial trial to...