US v. Pitera

• Decision Date: 26 May 1992
• Docket Number: No. CR 90-0424 (RR).,CR 90-0424 (RR).
• Citation: 795 F. Supp. 546
• Parties: UNITED STATES of America, v. Thomas PITERA, Defendant.
• Court: U.S. District Court — Eastern District of New York

795 F. Supp. 546

UNITED STATES of America, v. Thomas PITERA, Defendant.

No. CR 90-0424 (RR).

United States District Court, E.D. New York.

May 26, 1992.

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Andrew J. Maloney, U.S. Atty., E.D. New York, Brooklyn, N.Y. by David W. Shapiro, Linda B. Lakhdir, Asst. U.S. Attys., for U.S.

Mathew J. Mari, New York City, Ruhnke & Barrett, West Orange, N.J. by David A. Ruhnke, Cheryl Hamer Mackell, New York City, for Thomas Pitera.

Ass'n of the Bar of City of New York, New York State Defenders Ass'n, Nat. Ass'n of Criminal Defense Lawyers, New York State Ass'n of Criminal Defense Lawyers, Nat. Legal Aid and Defender Ass'n, and New York Criminal Bar Ass'n, Cravath, Swaine & Moore, New York City by Paul M. Dodyk, Patricia Perlmutter, for amici curiae.

MEMORANDUM AND ORDER

RAGGI, District Judge:

Thomas Pitera stands before the court charged in a twenty count indictment with racketeering, drug trafficking, and various firearms violations. Count Three of the indictment accuses Mr. Pitera of killing two persons, Richard Leone and Solomon Stern, while engaging in or working in furtherance of a continuing criminal enterprise. Such conduct carries a possible sentence of death. 21 U.S.C. § 848(e)(1)(A). The government has served notice of its intent to seek the death penalty if Mr. Pitera is found guilty of Count Three.¹

Mr. Pitera challenges the constitutionality of § 848(e)(1)(A)'s death penalty provision. Joining in the attack as amici curiae are the Association of the Bar of the City of New York, the New York State Defenders Association, the National Association of Criminal Defense Lawyers, the New York State Association of Criminal Defense Lawyers, the National Legal Aid and Defender Association, and the New York Criminal Bar Association. Defendant and/or amici advance the following arguments:

I. any form of capital punishment violates the eighth amendment's prohibition of cruel and unusual punishment;

II. the particular federal statute at issue fails adequately to ensure that the death penalty will not be imposed in an arbitrary and capricious manner in that:

A. the capital crime itself is both vague and irrational B. the sentencing scheme relies on duplicative and vague statutory aggravating factors,

C. the sentencing scheme permits reliance on unlimited non-statutory aggravating factors,

D. the sentencing scheme impermissibly limits consideration of mitigating factors,

E. the sentencing hearing is not governed by the Federal Rules of Evidence, and

F. meaningful appellate review is not ensured;

III. Mr. Pitera was singled out for arbitrary and vindicative prosecution; and

IV. Congress's failure to provide a means of execution is inevitably cruel and unusual and violative of the ex post facto clause.

Defendant asks the court to address these constitutionality challenges before trial since jury selection as well as defense trial strategy may differ considerably in a capital versus a non-capital case. See, e.g., Fed.R.Crim.P. 24(b) (providing twenty peremptory challenges per side if a defendant is charged with a crime punishable by death); 18 U.S.C. § 3432 (capital charge requires disclosure to defendant of a list of veniremen and place of abode three days before commencement of trial). This court has therefore carefully considered all arguments advanced by the parties and amici. It rejects the constitutional attack on 21 U.S.C. § 848(e)(1)(A). The parties were advised orally of this ruling on April 27, 1992. This memorandum details the reasons for the court's decision.

Statutory Background: The Anti-Drug Abuse Act of 1988

The Anti-Drug Abuse Act of 1988 makes it a capital offense intentionally to kill another person in connection with the commission of serious federal drug crimes. Specifically, 21 U.S.C. § 848(e)(1)(A) provides:

Any person engaging in or working in furtherance of a continuing criminal enterprise, or any person engaging in an offense punishable under section 841(b)(1)(A) of this title or section 960(b)(1) who intentionally kills or counsels, commands, induces, procures, or causes the intentional killing of an individual and such killing results, shall be sentenced to any term of imprisonment, which shall not be less than 20 years and which may be up to life imprisonment, or may be sentenced to death....²

The Act details procedures to be followed before a defendant can be executed. Initially, the government must serve notice "a reasonable time before trial" of its intent to seek the death penalty. 21 U.S.C. § 848(h)(1). If a defendant is found guilty of violating § 848(e)(1)(A), a separate sentencing hearing must be conducted, generally before the same jury that determined guilt. 21 U.S.C. § 848(i)(1)(A). The purpose of the hearing is to permit consideration of any "aggravating" and "mitigating" factors relevant to whether or not the defendant should be sentenced to death. 21 U.S.C. § 841(j). The information adduced need not conform to the Federal Rules of Evidence, so long as the court is convinced that its "probative value is not substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury." 21 U.S.C. § 848(j).

The process by which a jury is to consider sentencing factors is specific. Preliminarily, the government must prove beyond a reasonable doubt and to the unanimous satisfaction of the jury at least two of the aggravating factors expressly set forth in the statute (hereinafter referred to as "statutory aggravating factors"). 21 U.S.C. § 848(j) and (k). Moreover, it must advise the defendant a reasonable time before trial of which statutory aggravating factors it intends to prove. 21 U.S.C. § 848(h)(1). One of these must be from among the four listed in § 848(h)(1). The other must be from among those listed in § 848(n)(2)-(12). Absent proof of these statutory aggravating factors, a jury cannot vote to impose the death penalty. 21 U.S.C. § 848(k).

If a jury is satisfied that at least two such statutory aggravating factors have been proved, it may then consider any mitigating factors established by the defendant, whether from among those listed in § 848(m) or not, and any other aggravating factors of which the government gives notice in advance of trial (hereinafter referred to as "non-statutory aggravating factors"). 21 U.S.C. § 848(h)(1)(B), (j), and (k). Although non-statutory aggravating factors must be proved to the jury's unanimous satisfaction beyond a reasonable doubt, mitigating factors need only be established by a preponderance of the evidence. Moreover, any juror persuaded of a mitigating factors may consider it in reaching a sentencing decision; unanimity is not required. 21 U.S.C. § 848(j) and (k).

A jury that finds the required statutory aggravating factors proved must consider whether these factors, along with any non-statutory aggravating ones, so outweigh any mitigating factors as to justify a sentence of death in the discrete case. 21 U.S.C. § 848(k). Even absent any mitigating factors, a jury must still be unanimously satisfied beyond a reasonable doubt that the proved aggravating factors are themselves sufficient to justify capital punishment before a sentence of death can be imposed. Id.

Invidious factors cannot influence a jury's determination as to the death penalty. Indeed, each juror must sign a certificate attesting that neither the defendant's nor the victim's "race, color, religious beliefs, national origin, or sex" played any part in the deliberations. 21 U.S.C. § 848(o)(1).

Although a jury cannot vote for the death penalty absent the required findings and certifications just detailed, a jury is never required to impose a death sentence even if it finds sufficient grounds to do so under the applicable law. Indeed, a court must specifically so instruct the jury. 21 U.S.C. § 848(k).

The statute labels a jury's finding in favor of the death penalty a "recommendation." 21 U.S.C. § 848(l). In fact, it is determinative, for upon such a "recommendation" the trial court "shall sentence the defendant to death." Id. Absent a recommendation of death, the court must sentence a defendant to a minimum of 20 years and a maximum of life imprisonment. Id.; 21 U.S.C. § 848(e)(1)(A).

Appellate review of a death sentence is expressly provided by the law. 21 U.S.C. § 848(q)(1). Such appeal may be consolidated with a challenge to the judgment of conviction, and the case is to be given priority on the appellate docket. Id.

Discussion

I. The Death Penalty as Cruel and Unusual Punishment

Mr. Pitera contends that the death penalty is, under all circumstances, cruel and unusual punishment violative of the eighth amendment. He concedes, however, that this argument has been rejected by all current members of the Supreme Court who have had occasion to consider the issue. See, e.g., Gregg v. Georgia, 428 U.S. 153, 178, 96 S.Ct. 2909, 2927, 49 L.Ed.2d 859 (1976) (opinion of Stewart, Powell, and Stevens, JJ.) (citing to two centuries of case law upholding the constitutionality of capital punishment); accord McCleskey v. Kemp, 481 U.S. 279, 300-01, 107 S.Ct. 1756, 1771-72, 95 L.Ed.2d 262 (1987). Moreover, he cites no objective indicia of any change in public opinion about this punishment that might warrant reconsideration of its constitutionality. See Gregg v. Georgia, 428 U.S. at 173, 96 S.Ct. at 2925 (opinion of Stewart, Powell, and Stevens, JJ.); Weems v. United States, 217 U.S. 349, 378, 30 S.Ct. 544, 553, 54 L.Ed. 793 (1910). This court is, therefore, compelled to follow controlling case law and to reject the broad constitutional attack on the death penalty. See United States v. Pretlow, 779 F.Supp. at 777-78 (rejecting similar challenge to § 848(e)(1)(A)).

Instead, the court considers the specific challenges made to the capital statute here at issue. In so doing, it is mindful of Justice Holmes's admonition that constitutionality challenges to an act...