US v. Nguyen
| Decision Date | 09 May 1996 |
| Docket Number | Criminal Action No. 94-10129-01. |
| Citation | 928 F. Supp. 1525 |
| Parties | UNITED STATES of America, Plaintiff, v. Phouc H. NGUYEN, Defendant. |
| Court | U.S. District Court — District of Kansas |
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E. Jay Greeno, Greeno & Boohar, Wichita, KS, David Autry, Oklahoma City, OK, for defendant.
David M. Lind, Office of United States Attorney, Wichita, KS, for the U.S.
Before the court are the following:
(1) Defendant Nguyen's motion for pretrial production of statements of individuals not to be called as witnesses (Doc. 63);
(2) omnibus motion to strike notice of intent to seek the death penalty (Docs. 64, 65);
(3) Motion for adoption of jury selection procedures (Docs. 66, 67);1
(4) motion for discovery and inspection of information and evidence in aggravation (Doc. 68);
(5) motion for bill of particulars with respect to notice of intent to seek the death penalty (Docs. 69, 70);
(6) motion for discovery of evidence in mitigation (Docs. 71, 72);
(7) motion for immediate production of Government's witness list (Docs. 73, 74);
(8) motion to compel disclosure of United States Attorney's initial recommendation regarding intent to seek the death penalty (Docs. 75, 76);
(9) supplemental authority and argument RE: brief in support of motion to strike the death notice (Doc. 106); and
(10) Government's responses to Nguyen's motions (Docs. 90-97).
INDEX
BACKGROUND ............................................................................ 1531
DISCUSSION ............................................................................ 1531
SUBSTANTIVE DEATH PENALTY CHALLENGES .................................................. 1531
I. Overview of the Death Penalty Statute, 18 U.S.C. § 3591, Et Seq. ............ 1532
II. Constitutionality of the Statutory Definition of the Capital Offense ............. 1532
III. Constitutionality of Particular Statutory Aggravating Factors .................... 1533
A. The "Especially Heinous, Cruel, or Depraved Manner" Aggravating
Factor ...................................................................... 1533
1. Facial Unconstitutionality ................................................. 1533
2. Particularized Unconstitutionality ......................................... 1534
B. The "Pecuniary Gain" Aggravating Factor ....................................... 1534
IV. Constitutionality of Non-Statutory Aggravating Factors ........................... 1536
A. Statutory Authority for Non-Statutory Aggravating Factors ..................... 1536
B. Non-Delegation Doctrine, Proportionality Review and Ex Post Facto
Challenges to Government's Identification of Non-Statutory Aggravating
Factors ...................................................................... 1536
1. Non-Delegation Doctrine .................................................... 1536
2. Proportionality Review ..................................................... 1537
3. Ex Post Facto Clause ....................................................... 1537
4. Eighth Amendment ........................................................... 1538
V. Constitutionality and Propriety of Specially Alleged Non-Statutory Aggravating
Factors ......................................................................... 1538
A. The "Mental State" Factor ..................................................... 1538
1. Defendant's Pre-McCullah Contentions ....................................... 1538
2. Defendant's Post-McCullah Contentions (Doc. 106) ........................... 1539
B. "Lack of Remorse" Factor ...................................................... 1541
C. "Continuing Danger" Factor .................................................... 1542
D. "Victim Impact Evidence" Factor ............................................... 1542
E. "Low Potential for Rehabilitation" Factor ..................................... 1543
VI. Arbitrary Selection for Death Penalty Prosecution ................................ 1544
VII. Fifth Amendment Indictment Clause ................................................ 1545
VIII. Specificity of Notice of Intent to Seek the Death Penalty ........................ 1545
IX. Evidentiary Standard for the Sentencing Hearing .................................. 1546
X. Mitigating Evidence .............................................................. 1547
XI. Cruel and Unusual Punishment ..................................................... 1547
XII. Meaningful Appellate Review ...................................................... 1548
DISCOVERY AND RELATED MOTIONS .......................................................... 1548
I. Interviews of Those Persons That the Government Will Not Call as Witnesses ....... 1549
II. Discovery and Bill of Particulars Regarding the Government's Evidence in
Support of the Aggravating Factors ............................................. 1549
III. Discovery of Evidence in Mitigation .............................................. 1552
IV. Discovery Regarding Government's Initial Recommendation to Seek the
Death Penalty .................................................................. 1552
Nguyen is charged by indictment with a violation of the Hobbs Act, 18 U.S.C. § 1951 (Doc. 78, Count 1). Nguyen is also charged with using a firearm in the commission of specified crimes, including the Hobbs Act, pursuant to 18 U.S.C. § 924(c) (Doc. 78, Count 2). These charges arise from a robbery of the Mandarin Restaurant and Club in Wichita, Kansas on November 8, 1994, during which one of the co-owners, Barbara Sun, was killed. The government is seeking the death penalty pursuant to 18 U.S.C. § 924(i)(1), which prohibits murder during the course of a violation of 18 U.S.C. § 924(c).
The court will first discuss the substantive motions attacking the constitutionality of the death penalty statute, then Nguyen's discovery requests.
Nguyen moves to strike the death penalty notice, claiming the death penalty statute is facially unconstitutional and unconstitutional as applied to his case (Docs. 64, 65). The government has responded to the motion (Doc. 97). The court will provide a general overview of the death penalty statute, then address each of Nguyen's substantive arguments in turn.
If Nguyen is convicted of the offenses charged in the indictment, there are several steps that the jury must pass through before it can impose the death penalty. First, the jury must determine whether Nguyen had the requisite intent to commit the death-eligible offense. 18 U.S.C. § 3591(a). If the jury unanimously finds beyond a reasonable doubt that intent is established, it moves to the next step in the penalty process. If the jury does not so find, the deliberations are over and the death penalty may not be imposed.
Assuming the jury finds the requisite intent, it must then consider the statutory aggravating factors alleged by the government in its notice to seek the death penalty. The statutory aggravating factors from which the government may choose are listed at 18 U.S.C. § 3592(c)(1)-(15). The jury must determine whether the government has proven at least one of the statutory factors alleged beyond a reasonable doubt. 18 U.S.C. § 3593(c). If the jury unanimously so finds, it moves to the next step of the penalty process. If not, the deliberations are over and the death penalty may not be imposed. 18 U.S.C. § 3593(d).
Assuming the jury finds at least one statutory aggravating factor, it must then consider that factor or factors, plus "any other aggravating factor for which notice has been provided," 18 U.S.C. § 3593(d) ("non-statutory aggravating factors"), and weigh them against any mitigating factors to determine whether the death penalty is appropriate. 18 U.S.C. § 3593(e).
Non-statutory aggravating factors, like their statutory counterparts, must be unanimously found by the jury beyond a reasonable doubt, while mitigating factors need only be established by a preponderance of the evidence. Further, any juror persuaded that a mitigating factor exists may consider it in reaching a sentencing decision; unanimity is not required. 18 U.S.C. § 3593(c), (d).
Nguyen notes that he has been charged with the death-eligible offense of 18 U.S.C. § 924(i)(1), which prohibits murders caused by a firearm during the course of a violation of 18 U.S.C. § 924(c). The § 924(c) charge stems from the robbery of the Mandarin Restaurant.2 Nguyen argues that the sine qua non of death penalty eligibility under the section is the fact that a firearm was used to kill Barbara Sun; a murder by any other means would not be death-eligible (Doc. 65 at 22). Thus, Nguyen contends that use of a firearm qualifies as a "built-in aggravating circumstance" (Id. at 22-23) and, as such, it must (1) "genuinely narrow" the class of individuals eligible for the death penalty and (2) "justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder." (Id. at 23) (quoting Zant v. Stephens, 462 U.S. 862, 877, 103 S.Ct. 2733, 2742, 77 L.Ed.2d 235 (1983)). Nguyen contends that the firearm element fails the second Zant requirement because it fails to "reasonably justify" differing treatment between firearm and non-firearm murders. He argues that there is nothing about the nature of firearms or the way that they inflict death that justifies singling out firearm murders for the death penalty, i.e., to the exclusion of more brutal forms of non-firearm inflicted murder. He cites no...
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