US v. Pitera

• Decision Date: 26 May 1992
• Docket Number: No. CR 90-0424(RR).,CR 90-0424(RR).
• Citation: 795 F. Supp. 571
• Parties: UNITED STATES of America, v. Thomas PITERA, Defendant.
• Court: U.S. District Court — Eastern District of New York

795 F. Supp. 571

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

No. CR 90-0424(RR).

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

May 26, 1992.

Andrew J. Maloney, U.S. Atty., E.D.N.Y. by David W. Shapiro, Elisa Liang, Mark S. Cohen, Asst. U.S. Attys., Brooklyn, N.Y., for the U.S.

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

MEMORANDUM AND ORDER

RAGGI, District Judge:

Count Three of the pending indictment against Thomas Pitera charges him with violating 21 U.S.C. § 848(e)(1)(A), a crime for which the maximum possible sentence is death. Defendant's constitutional challenges to the death penalty are addressed in a separate memorandum and order filed today.

As discussed in that memorandum, the government is required by law to advise defendant in advance of trial of the statutory and non-statutory aggravating factors on which it will rely in urging a jury to recommend a death sentence. 21 U.S.C. § 848(h)(1). The government filed its original notice on February 8, 1991. Therein it identified as non-statutory aggravating factors seven homicides attributed to Mr. Pitera in addition to the two charged in the capital count. These aggravating murders allegedly occurred prior to enactment of § 848(e)(1)(A). They are listed in the indictment as predicate acts to the racketeering crime charged in Count One.

On December 18, 1991, the government moved for leave to amend its original death penalty notice to permit these seven homicides to be considered as statutory aggravating factors under 21 U.S.C. § 848(n)(2). That particular statutory aggravating factor pertains when:

the defendant has been convicted of another Federal offense, or a State offense resulting in the death of a person, for which a sentence of life imprisonment or a sentence of death was authorized by statute.

(emphasis added). The government submits that, if Mr. Pitera is found guilty of racketeering and if any of the proved predicates are these additional homicides, he will stand convicted, even before sentence, of a crime carrying a possible life sentence. See 18 U.S.C. § 1963(a).

The defendant opposes the motion on two grounds: (1) that the government has failed to establish "good cause" for amendment as required by 21 U.S.C. § 848(h)(2); and (2) that a guilty verdict is not a conviction under § 848(n)(2). The court finds the second argument persuasive and, therefore, denies the motion to amend.

Discussion

I. Good Cause

Pursuant to 21 U.S.C. § 848(h)(2), "the court may permit the attorney for the Government to amend a death penalty notice for good cause shown." In United States v. Pretlow, 770 F.Supp. 239, 242 (D.N.J.1991), the court held amendment appropriate if the government's application was made in good faith and the defendant was not prejudiced. In this case the court finds that the government is acting in good faith. It further finds no prejudice to defendant since he has always been on notice of the government's intent to rely on the seven additional homicides in seeking the death penalty. The amendment seeks only to recategorize that conduct within the capital statutory scheme.

This very aspect of the proposed amendment supports its serious consideration by the court. Statutory aggravating factors narrow the class of persons eligible for the death penalty. Non-statutory aggravating factors assist the jury in its individualized consideration of the character of the defendant on trial and his particular crime. See, e.g., Zant v. Stephens, 462 U.S. 862, 878-79, 103 S.Ct. 2733, 2743-44, 77 L.Ed.2d 235 (1983). The difference is not without constitutional significance, as the various challenges addressed in this court's other memorandum and order of today indicate. The court and parties are dealing with one of the earliest applications of a new statute exposing a defendant to the most severe penalty tolerated by law. Under such circumstances, it is important that information be placed within its proper statutory category. Thus, if the court were persuaded that the seven additional homicides were appropriately categorized as statutory aggravating factors, it would find sufficient cause to permit amendment. Because it does not, however, leave to amend is denied.

II. The Statutory Meaning of "Has Been Convicted"

The government's amendment is appropriate only if Congress intended persons who have been "convicted" of homicides under § 848(n)(2) to include individuals found guilty of such crimes but not yet subject to a formal judgment of conviction. Questions of legislative intent must be resolved, if possible, by looking to the plain meaning of the statutory language used by Congress. E.g., West Virginia Univ. Hosps. v. Casey, ___ U.S. ___, 111 S.Ct. 1138, 1147, 113 L.Ed.2d 68 (1991) (court need not look beyond unambiguous statutory language); United States v. Turkette, 452 U.S. 576, 580, 101 S.Ct. 2524, 2527, 69 L.Ed.2d 246 (1981). Where Congress uses terms with settled meaning under the common law, a court must conclude, unless the statute itself dictates otherwise, that Congress so intends the terms to be understood. See Community for Creative Non-Violence v. Reid, 490 U.S. 730, 739, 109 S.Ct. 2166, 2172, 104 L.Ed.2d 811 (1989).

The difficulty with following this maxim of statutory construction in this case is that at common law "the term `conviction' has, and continues to have, one of two accepted meanings — the jury verdict or the judgment entered following the verdict." Lewis v. Exxon Corp., 716 F.2d 1398, 1400 (D.C.Cir.1983); accord United States v. Abreu, 962 F.2d 1447 (10th Cir. 1992) (en banc). Thus, "conviction" is a linguistic "chameleon," whose meaning differs from statute to statute. Harmon v. Teamsters, Chauffeurs & Helpers Local Union 371, 832 F.2d 976, 978 (7th Cir. 1987). Indeed, even when Congress has seen fit to define the term, it has not fixed on a singular meaning. Thus, in Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 112 n. 6, 103 S.Ct. 986, 991 n. 6, 74 L.Ed.2d 845 (1983), the Supreme Court noted that 15 U.S.C. § 80a-2(10), excluding certain persons from acting as investment advisers, defines "convicted" to include "a verdict, judgment, or plea of guilty, or a finding of guilt on a plea of nolo contendere, if such verdict, judgment, plea or finding has not been reversed, set aside, or withdrawn, whether or not sentence has been imposed," whereas 18 U.S.C. § 4251(e), providing for drug treatment programs, defines "conviction" and "convicted" to mean "the final judgment on a verdict or finding of guilty, a plea of guilty, or a plea of nolo contendere...."¹

Congress did not define the term "convicted" in the capital statute here at issue. Neither does the sparse legislative history shed any light on the matter. Under such circumstances, a criminal statute "must be strictly construed, and any ambiguity must be resolved in favor of lenity." United States v. Enmons, 410 U.S. 396, 411, 93 S.Ct. 1007, 1015, 35 L.Ed.2d 379 (1973); accord Bifulco v. United States, 447 U.S. 381, 387, 100 S.Ct. 2247, 2252, 65 L.Ed.2d 205 (1980) (applying rule of lenity to penalty aspects of a criminal statute); United States v. McKeithen, 822 F.2d 310, 315 (2d Cir.1987). This court therefore construes the phrase "has been convicted" according to its narrower definition at common law: a defendant "has been convicted" under § 848(n)(2) when a judgment of conviction has been entered against him, not simply when a guilty verdict has been returned.

The government's arguments opposing this narrower construction are unpersuasive. It notes, for example, that certain state courts have liberally construed capital statutes to permit guilty verdicts to qualify as aggravating convictions. E.g., Pardo v. State, 563 So.2d 77, 80 (Fla.1990), cert. denied, ___ U.S. ___, 111 S.Ct. 2043, 114 L.Ed.2d 127 (1991); Childs v. State, 257 Ga. 243, 257-58, 357 S.E.2d 48, 61, cert. denied, 484 U.S. 970, 108 S.Ct. 467, 98 L.Ed.2d 406 (1987); Hopkinson v. State, 632 P.2d 79, 171 (Wyo.1981), cert. denied, 455 U.S. 922, 102 S.Ct. 1280, 71 L.Ed.2d 463 (1982). It also candidly admits, however, that many of the states permitting contemporaneous guilty verdicts to constitute statutory aggravating factors do so pursuant to express or implied legislative directive. See, e.g., Thompson v. State, 492 N.E.2d 264, 270-71 (Ind.1986) (distinguishing between narrow aggravating factor relating to defendant who "has been convicted of another murder" and broader aggravating factor that "defendant has committed another murder, at any time, regardless of whether he has been convicted of that other murder"); Commonwealth v. Travaglia, 502 Pa. 474, 496-97, 467 A.2d 288, 298-99 (1983) (because aggravating factor identified as a "convicted" defendant both one who faced a life sentence and one who was actually serving such a sentence, it was appropriate to assume that legislature intended the former category to include those who had been found guilty but not yet sentenced), cert. denied, 467 U.S. 1256, 104 S.Ct. 3547, 82 L.Ed.2d 850 (1984); State v. Simants, 197 Neb. 549, 556, 250 N.W.2d 881, 886, cert. denied, 434 U.S. 878, 98 S.Ct. 231, 54 L.Ed.2d 158 (1977). This court finds little guidance in these decisions, turning as they do on discrete capital sentencing schemes. In any event, the meaning of words in a federal statute is, by definition, a federal question. E.g., Dickerson v. New Banner Inst., Inc., 460 U.S. at 111-12, 103 S.Ct. at 991-92.

No more helpful is the government's attempt to parse § 848 itself. For example, it contends that because § 848(n)(2) only requires that a defendant be convicted of a crime for which a sentence of life imprisonment or death was "authorized by statute"—without requiring actual imposition of such a sentence — Congress necessarily intended a conviction to occur at the time a jury verdict of guilty was returned, and not to demand entry of judgment. In fact, the...