US v. Walker

• Citation: 910 F. Supp. 837
• Decision Date: 26 September 1995
• Docket Number: No. 3-94-CR-328.,3-94-CR-328.
• Parties: UNITED STATES of America v. Tyrone WALKER, Walter Diaz, Anthony Walker aka Tony Walker.
• Court: U.S. District Court — Northern District of New York

910 F. Supp. 837

UNITED STATES of America v. Tyrone WALKER, Walter Diaz, Anthony Walker aka Tony Walker.

No. 3-94-CR-328.

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

September 26, 1995.

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U.S. Attorney (Miroslav Lovric, Bernard J. Malone, Jr., Asst. U.S. Attys., of counsel), Binghamton, NY, for Government.

Hinman, Howard & Kattel (Albert Millus, of counsel), Binghamton, NY, Ruhnke & Barret (David A. Ruhnke, of counsel), West Orange, NJ, for Defendant Tyrone Walker.

Peter Orville, P.C., Vestal, NY, Carl J. Herman, Livingston, NJ, for Defendant Walter Diaz.

Richard Allen, Binghamton, NY, for Defendant Anthony Walker.

MEMORANDUM DECISION & ORDER

McAVOY, Chief Judge.

On September 12, 1995, the Court heard oral argument on and addressed and decided from the bench the numerous discovery requests of all parties. Herein the Court addresses the defendants'¹ remaining motions, "death penalty" and otherwise, seeking variously: a decision from this Court holding 21 U.S.C. § 848 et seq. and § 848(e) in particular unconstitutional; dismissal of various indictment counts and portions of the government's Notice of Intent to Seek the Death Penalty; and dismissal of the death penalty request against Tyrone Walker because the Department of Justice has engaged in systematic racial discrimination, or alternatively, discovery and a hearing on that issue. Also before the Court are the parties' opposing motions concerning disclosure of the government's witness list.

I. BACKGROUND:

All three of the above-captioned defendants stand accused in each count of a nine-count superseding indictment filed on September 19, 1994.² On May 31, 1995, the government filed Notices of Intent to Seek the Death Penalty under 21 U.S.C. § 848(e)(1)(A)³ against defendants Tyrone Walker and Walter Diaz, if they are convicted of Counts Two or Three of the indictment.

A. The Government's Allegations:

The government alleges that between approximately January of 1989 and September of 1993, defendants Tyrone Walker, Walter Diaz and Anthony Walker conspired with each other and over a dozen others to possess cocaine, crack, and heroin, with intent to distribute in various locations within the Northern District of New York. It is alleged that this conspiracy was maintained throughout that entire period and that between November of 1992 and March of 1993 the three defendants' roles in the conspiracy had evolved to a point where they were operating a Continuing Criminal Enterprise ("CCE"). On February 18, 1993, the three defendants allegedly caused the murder of Michael Monsour while attempting to rob Monsour of cocaine and narcotics proceeds.

II. DISCUSSION

The Court will address defendants' motions under the Commerce Clause first, followed by seriatim disposition of the defendants' death-penalty motions and all parties' motions as to the witness list.

A. The Commerce Clause:

All the defendants seek an order dismissing Counts One through Seven of the superseding indictment on the basis that the relevant provisions of Title 18 and Title 21 are beyond Congress' power under the Commerce Clause, or, in the alternative, an order dismissing all the superseding indictment Counts because the government cannot show a nexus between these charges and interstate commerce.

Under Article I, § 8 of the United States Constitution, the Commerce Clause, Congress has the power to "regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." U.S. Constitution, Art. I, § 8, cl. 3. The Supreme Court has long held that the commerce power "is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution." Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 196, 6 L.Ed. 23 (1824).

Commerce Clause jurisprudence originally developed through a line of cases which sought to limit state legislation that was perceived as discriminatory against interstate commerce. See generally Wickard v. Filburn, 317 U.S. 111, 121, 63 S.Ct. 82, 87, 87 L.Ed. 122 (1942) (tracing the line of cases that delineated, as beyond Congress' reach under the Commerce Clause, categories of state legislation). In 1935, the Supreme Court set forth a new test for Commerce Clause analysis: whether the activities had a "direct" or "indirect" effect on interstate commerce. A.L.A. Schechter Poultry Corp. v. U.S., 295 U.S. 495, 548, 55 S.Ct. 837, 851, 79 L.Ed. 1570 (1935). Just two years later the Court introduced a new "close and substantial relation to interstate commerce" test. NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37, 57 S.Ct. 615, 624, 81 L.Ed. 893 (1937).

Jones & Laughlin Steel and its progeny significantly expanded the scope of the Commerce Clause to any activity that had a substantial effect on interstate commerce. See, e.g., Wickard, supra, (expanding congressional power under the Commerce Clause to completely home-grown and home-consumed wheat). The only check on the scope of the Commerce Clause appeared to be whether there was a rational basis for the federal legislation. See, e.g., Heart of Atlanta Motel, Inc. v. U.S., 379 U.S. 241, 252-53, 85 S.Ct. 348, 355, 13 L.Ed.2d 258 (1964). Recently, however, the Supreme Court has sought to check the long-standing trend of expanding the authority of Congress under the Commerce Clause, and placed a limit on its reach. See United States v. Lopez, ___ U.S. ___, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995).

1. United States v. Lopez and the Commerce Clause:

In Lopez, the Supreme Court affirmed a lower court's decision to overturn a defendant's conviction for possession of a firearm in a school zone in violation of the Gun-Free School Zones Act, 18 U.S.C. § 922(q)(2)(A). Id., ___ U.S. at ___, 115 S.Ct. at 1633. The statute made it a crime for "any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone." 18 U.S.C. § 922(q)(2)(A). The Lopez Court held that the statute exceeded Congress' Commerce Clause authority, because possession of a gun in a school zone was not economic activity that substantially affected interstate commerce. Id.

The Lopez Court traced the history of Commerce Clause jurisprudence in detail and determined that there were only three categories of activities that Congress had the power to regulate under the authority of the Commerce Clause.

First, Congress may regulate the use of the channels of interstate commerce ... Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities ... Finally, Congress' commerce authority includes the power to regulate those activities having a substantial relation to substantially affects interstate commerce.

___ U.S. at ___, 115 S.Ct. at 1629 (citations omitted). In addition, the Lopez Court reiterated that in the absence of a jurisdictional element in the subject statute, there must be a showing of "the requisite nexus with interstate commerce." Id., at ___, 115 S.Ct. at 1631 (citing United States v. Bass, 404 U.S. 336, 347, 92 S.Ct. 515, 522, 30 L.Ed.2d 488 (1971)). Thus, under Lopez, the activity, the subject of the statute, must first be shown to fall within one or more of the categories in which Congress may exercise its Commerce Clause power, and then the activity must be shown to have a substantial effect on, or nexus with, interstate commerce.

It should be noted at the outset, however, that contrary to defendants' counsel's earnest and thoughtful arguments, Lopez does not signal a "reversal of Supreme Court tolerance for Congressional activity under the Commerce Power." Nor, in this Court's view, does it "open to reanalysis" (Tyrone Walker's Omnibus Brief, Pt. I), all pre-Lopez Commerce Clause cases. The test applied in Lopez is "consistent with the great weight of prior Supreme Court case law." Lopez, ___ U.S. at ___, 115 S.Ct. at 1629 (emphasis added). The Lopez Court simply determined that under the existing standards of Commerce Clause jurisprudence, the statute at issue did not pass constitutional muster. This Court finds that the statutory provisions at issue in this case do.

2. 21 U.S.C. §§ 841, 846, & 848, and 18 U.S.C. § 924, and the Commerce Clause⁴

a. The Activities Regulated by the Statutory Provisions at Issue are Within the Category Of Activities that Congress May Regulate Under the Commerce Clause:

The defendants contend that the counts pending against them⁵ should be dismissed because they were enacted by a Congress that was acting beyond the scope of its Commerce Power. The Court must first determine whether the statutes concern activities that may properly be placed within any of the categories set forth in Lopez—categories within which Congress may act pursuant to its Commerce Power.

The activity that is sought to be "regulated" by the statutory provisions challenged herein fall within the second and third categories set forth in Lopez. The activities, as a general category, concern the sale of narcotics and related activities. Thus, although a criminal enterprise, the narcotics themselves are both commodities and "things in interstate commerce," as set forth in the second Lopez category. See Lopez, ___ U.S. at ___, 115 S.Ct. at 1629. The Court makes no exception for illicit commerce. See also United States v. Montes-Zarate, 552 F.2d 1330, 1331 (7th Cir.1977) ("intrastate possession, distribution and sale of drugs such as heroin directly and injuriously effected the introduction of them into other States to the injury of the public health and welfare there.") (citations omitted); cf. Heart of Atlanta Motel 379 U.S. at 256, 85 S.Ct. at 356-57 ("the authority of Congress to keep the channels of interstate commerce free from immoral and injurious uses has been frequently sustained, and is no...