Opinion
Criminal No. L-97-0329.
June 16, 2005
MEMORANDUM
By statute, the government must file a Notice of Intention to Seek the Death Penalty within a "reasonable time" before trial. 18 U.S.C. § 3593(a). On August 15, 2001, Defendant Donald Lee Ferebe ("Ferebe") moved to strike the "Death Notice" that the prosecution had filed in his case, arguing that it was untimely. On September 12, 2001, the Court denied the motion, finding that any prejudice to Ferebe could be cured by a brief postponement of the trial date. In making this ruling, the Court followed the analytical framework that applies to speedy trial claims.
In post-remand filings, counsel spell defendant's last name as "Ferebee." The docket, this Court's orders, and the Fourth Circuit's opinion, however, all spell his last name as "Ferebe." To maintain consistency, the Court will continue to refer to defendant as "Ferebe" and will use that spelling in this Memorandum.
In the absence of Supreme Court or Fourth Circuit precedent, the Court adopted the test set out in United States v. Colon-Miranda, 985 F. Supp. 31 (D.P.R. 1997).
Ferebe took an interlocutory appeal to the Fourth Circuit Court of Appeals. The appeals court ruled that it had jurisdiction; the denial of Ferebe's motion was an immediately appealable collateral order. The Fourth Circuit next found that this Court had erred in applying a test that considered whether the late filing of the Death Notice had prejudiced Ferebe. The appropriate pretrial inquiry must examine the objective reasonableness of the notice provided rather than its prejudicial effect, stated the appeals court. United States v. Ferebe, 332 F.3d 722, 730 (4th Cir. 2003). The Fourth Circuit reversed and remanded, instructing this Court to apply a four-factor test to determine "on the basis of these factors whether sufficient time exists following notice and before trial for a defendant to prepare his death defense." Id. at 737.
On remand, the parties briefed the issues, which were further explored at a hearing on February 10, 2005. Having considered the evidence and the arguments of counsel, this Court finds that the Death Notice, which was filed on August 1, 2001, was untimely. At that time, the trial date of September 10, 2001 remained on the calendar. Thus, as of the Death Notice date, only thirty-nine days remained before trial. Thirty-nine days was ample time for the parties to have completed preparations for a routine felony trial. Thirty-nine days was, however, insufficient time for Ferebe's counsel to have prepared a death defense.
Accordingly, the Death Notice was untimely, and the Court will, in a separate Order, GRANT Ferebe's motion to strike it. The case will proceed as a non-death case.
I. Background
A. September 1997: The Indictment
On September 16, 1997, a grand jury indicted Ferebe and a co-defendant, Haywood Carmichael, on federal drug, gun, and murder charges. (Docket No. 1.) Count One alleged a drug conspiracy, and listed the following two murders as overt acts in furtherance thereof: (i) in July 1994, Ferebe shot and killed Richard Thomas, Jr., who owed Ferebe a drug debt; and (ii) in August 1995, at Ferebe's request, Carmichael shot and killed Benjamin Harvey Page, a witness to the Thomas murder, to prevent him from testifying against Ferebe.
Count One charged a conspiracy to distribute and possess with intent to distribute cocaine, cocaine base, and marijuana in violation of 21 U.S.C. § 841(a).
The Thomas murder had been the subject of an earlier federal indictment against Ferebe. United States v. Ferebe, Criminal No. 96-401 (D. Md.). In February 1997, a jury convicted Ferebe, and Judge Walter E. Black, Jr. (now retired) sentenced Ferebe to life imprisonment.
Count Two charged Ferebe and Carmichael with Page's murder. Count Three charged Ferebe and Carmichael with the murder of Yolanda Evans, a high school student who had been tragically struck by a stray bullet during the Page shooting. Count Four alleged the use and carrying of firearms during and in relation to a drug trafficking crime.
Counts Two and Three each charged Ferebe and Carmichael with a firearm murder during or in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(j)(1).
Count Four charged a violation of 18 U.S.C. § 924(c).
B. May 1998: The Attorney General Authorized the Death Penalty Against Ferebe for the Page Murder
The prosecution sought authorization from the Attorney General of the United States ("AG") to seek the death penalty for the Page and Evans murders. On May 28, 1998, the AG authorized the death penalty against Ferebe for the Page murder, but not for the Evans murder. The AG did not authorize the death penalty against Carmichael for either murder.
Because only Ferebe was eligible for the death penalty, the Court severed the defendants, with Carmichael's trial to proceed first. In November 1998, a jury convicted Carmichael of both murders, and the Court sentenced Carmichael to life imprisonment. In federal sentencing, a life sentence is without the possibility of parole.
C. September 1999: The Fourth Circuit Affirmed Ferebe's Conviction for the Thomas Murder
In early 1999, the Court, at the request of both sides, postponed Ferebe's trial pending his appeal of his conviction for the Thomas murder. In September 1999, the Fourth Circuit affirmed Ferebe's conviction and sentence. United States v. Ferebe, 1999 WL 753993, at *1 (4th Cir. Sept. 23, 1999). The United States Supreme Court denied certiorari in early 2000, thereby rendering Ferebe's earlier conviction and resulting life sentence virtually unassailable.
D. June 2000: The Government Offered a Plea Deal to Ferebe in the Instant Case
In June 2000, the government offered Ferebe a plea agreement under which he would plead guilty to the charges in the instant case in exchange for two life sentences that would run concurrently with the life sentence that he was already serving for the Thomas murder. The prosecutor and Ferebe's counsel were hopeful that Ferebe would accept the deal, which would have removed the possibility of a death sentence. Ferebe was resistant, however, and in the ensuing months defense counsel actively worked to changed Ferebe's mind, while at the same time they prepared for trial. In October 2000, after several months of contemplating the proposed deal, Ferebe declined the government's offer.
E. December 15, 2000: The Court Scheduled a September 10, 2001 Trial
In light of Ferebe's rejection of the plea deal, the Court held a hearing on December 15, 2000. At the hearing, the government formally withdrew its plea offer and clearly stated on the record that this case would proceed as a death trial (for the Page murder). Unofficially, however, the offer remained on the table. Even after December 2000, the government and defense counsel had conversations about a possible plea, and the attorneys continued to be optimistic that the case could be resolved short of trial.
At the December 15th hearing, the Court set the following schedule: (i) July 6, 2001 — pretrial conference to make final changes to the death penalty juror questionnaire; (ii) July 20, 2001 — motions hearing; (iii) September 7, 2001 — pretrial conference, and (iv) September 10, 2001 — trial. (Docket No. 76.) The Court established this schedule with the understanding that the September 10, 2001 trial would be a death penalty trial for the Page murder. As of December 15th, however, the government had not yet filed a Death Notice.
F. December 15, 2000 — Spring 2001: The Parties Prepared for Trial
From December 15, 2000 to the spring of 2001, counsel were actively engaged in trial preparation. Among other tasks, counsel fully briefed Ferebe's pretrial motions in anticipation of a July 20, 2001 hearing. Counsel also filed their objections and proposed additions to the juror questionnaire. Under the schedule, the questionnaire, which is a required feature of death penalty cases, was to have been taken up and made final at a July 6, 2001 hearing. Between six and eight weeks is the lead time required for such a questionnaire to be distributed, filled out by the prospective jurors, mailed back to court, and forwarded to counsel. In anticipation of a September trial date, the questionnaire was to have been mailed out shortly after the hearing. As of the spring of 2001, the case was on schedule for a death penalty trial that September.
In late May 2001, Ferebe filed the following motions: (i) Motion to Suppress In-Court and Out-of-Court Identification; (ii) Motion for Exculpatory Evidence, and (iii) Motion to Suppress Evidence.
G. June 2001: Ferebe Decided To Plead Guilty and the Parties Suspended Trial Preparation
In May 2001, the prosecution asked the AG to reconsider the earlier decision not to pursue the death penalty for the Evans murder. While that request was pending, Ferebe's counsel told the government that Ferebe had changed his mind and wanted to plead guilty. On June 20, 2001, Ferebe and the government signed a plea agreement, which, pursuant to a new Department of Justice ("DOJ") policy, was conditioned on approval by the AG. Before June 7, 2001, local prosecutors had the authority to negotiate away the death penalty in a death-eligible case. Effective June 7th, however, the policy changed and approval from Main Justice was required.
The parties, fully expecting the AG to accept the proposed plea agreement, suspended their trial preparation as of June 20th. At counsels' request, the Court postponed the July 6, 2001 hearing (to finalize the juror questionnaire), and the July 20th motions hearing. On July 6th, while the parties were awaiting approval of the plea agreement, the AG authorized the death penalty for the Evans murder.
H. July 2001: The AG Rejected the Plea Agreement
On July 26, 2001, the AG's office, to the surprise of counsel, rejected the conditional plea agreement. On July 31st, the Court held a conference with counsel to discuss the ramifications of the AG's decision. During the conference, the prosecutor informed Ferebe's counsel that the AG had also authorized the death penalty for the Evans murder. Ferebe's counsel noted that the government had yet to file a Death Notice. The government responded that such a filing was simply a formality because all parties had long known that this was a death penalty case.
The parties do not dispute that (i) the government and defense counsel never agreed that the government could postpone the filing of the Death Notice; (ii) the July 31st conference was the first time that the government and defense counsel had ever discussed the Death Notice, and (iii) at no time was defense counsel obligated to notify the government either that the prosecution had failed to file a Death Notice or that the defense might contest a late filing.
I. August 1, 2001: The Government Filed the Death Notice
On August 1st, only thirty-nine days before the September 10th trial date, the government filed a Death Notice formally stating that it was seeking the death penalty for both the Page and Evans murders. That same day, the Court held an in-chambers conference to inquire whether counsel could be ready for trial on September 10th.
Defense Counsel took the position that the Death Notice was untimely, that they were working on a motion to strike it, that they objected to a continuance of the September 10th trial date, and that they would be ready to select a jury in a non-death trial on that date. The Court set a schedule for briefing the anticipated motion to strike.
On August 1st, the same date on which the government filed the Death Notice, government counsel sent a letter to Ferebe's attorney stating, inter alia: "I suggest we seek a continuance of the September 10, 2001 trial date. This continuance will facilitate your discussions with Assistant Attorney General Chertoff and, if no resolution is authorized by the Department of Justice, will allow all of us to prepare for trial." (Def's Post-Appeal Opening Brief, Ex. A.)
On August 13th, at the request of the Court, defense counsel clarified their position in writing. They would be prepared to try the case "as an ordinary felony trial" (but not as a death case) in September.
The letter to the Court stated Ferebe's position regarding the September trial date:
I understand that your chambers has requested that we provide you, in writing, with Mr. Ferebe's position on a continuance of the September 10, 2001 trial date. We remain, as we advised you in chambers on August 1, 2001, opposed to a continuance.
We are prepared to try this case as an ordinary felony trial on September 10, 2001, assuming, as we do, that you will grant our motion to strike the death penalty. That motion will be filed on or before its due date, this Wednesday, August 15, 2001.
(Def's Post-Appeal Opening Brief, Ex. B.)
J. September 2001: The Court Denied Ferebe's Motion to Strike the Death Notice
On August 15, 2001, Ferebe filed his motion to strike the Death Notice, arguing that the government had failed to file the Notice within a reasonable time before trial as is required by 18 U.S.C. § 3593(a). On September 7, 2001, after the parties had fully briefed the issues, the Court held a hearing. On September 12th, the Court issued an oral opinion denying the motion.
The statute, 18 U.S.C. § 3593(a), does not define what constitutes a "reasonable time" before trial. There were no Supreme Court or Fourth Circuit cases on point. Adopting the reasoning of the District of Puerto Rico in United States v. Colon-Miranda, 985 F. Supp. 31 (D.P.R. 1997), the Court evaluated the timeliness of the Death Notice under the test that applies to Speedy Trial claims. The Court considered prejudice to Ferebe as the most important factor in the analysis.
The statute provides:
Notice by the government. — If, in a case involving an offense described in section 3591, the attorney for the government believes that the circumstances of the offense are such that a sentence of death is justified under this chapter, the attorney shall, a reasonable time before the trial or before acceptance by the court of a plea of guilty, sign and file with the court, and serve on the defendant, a notice —
(1) stating that the government believes that the circumstances of the offense are such that, if the defendant is convicted, a sentence of death is justified under this chapter and that the government will seek the sentence of death; and
(2) setting forth the aggravating factor or factors that the government, if the defendant is convicted, proposes to prove as justifying a sentence of death.
The factors for which notice is provided under this subsection may include factors concerning the effect of the offense on the victim and the victim's family, and may include oral testimony, a victim impact statement that identifies the victim of the offense and the extent and scope of the injury and loss suffered by the victim and the victim's family, and any other relevant information. The court may permit the attorney for the government to amend the notice upon a showing of good cause.18 U.S.C. § 3593(a) (emphasis added).
The Court concluded that the late filing of the Death Notice had not prejudiced Ferebe with respect to the guilt phase of the trial. As of August 1st, Ferebe's counsel had already received full discovery from the government, including a transcript of the Carmichael trial. The Carmichael trial had been a dress rehearsal for the Ferebe trial, and the transcript laid out the government's case in detail with respect to both the Evans and the Page murders. As of August 1st, the substantive motions had been fully briefed and only argument remained. Because the case had originally been budgeted as a death case, the defense had long since received ample financial resources and adequate staffing.
As to the sentencing phase, the Court found that defense counsel, who always knew that they had to prepare for a potential death trial for the Page murder, could have anticipated the factors set out in the Death Notice. To the extent that Ferebe might suffer prejudice from the late filing of the Evans Death Notice, the Court found that it could cure such prejudice by postponing the trial date for four to six weeks.
For the foregoing reasons, the Court denied Ferebe's motion to strike.
II. The Fourth Circuit's Ruling
Ferebe appealed this Court's ruling to the United States Court of Appeals for the Fourth Circuit. In a 2003 decision, the appeals court laid out an analytical framework for determining whether a Death Notice is timely or not. United States v. Ferebe, 332 F.3d 722, 726 (4th Cir. 2003). The test focuses not on prejudice but on the objective reasonableness of the notice.
As the Fourth Circuit stated, 18 U.S.C. § 3593(a) "guarantees all who are accused of a capital offense the right not to stand trial for their lives unless they have been provided notice a reasonable time before trial that in fact they are to stand trial for their lives." Id. at 730. The statute is, therefore, prophylactic in nature, and a defendant's "rights are denied at the point when he proceeds toward trial, or actually to trial, in the absence of a reasonable time between his receipt of the Death Notice and his capital trial. And this is so, regardless of whether he will or will not be, or was or was not, prejudiced by an unreasonably delayed Death Notice." Id. at 732 (emphasis in original). Thus, courts must conduct "a pretrial inquiry into the objective reasonableness of the notice provided," rather than the prejudice inquiry that this Court had adopted. Id. at 731.
The Fourth Circuit directed lower courts to consider the following four non-exclusive factors:
(1) the nature of the charges presented in the indictment;
(2) the nature of the aggravating factors provided in the Death Notice;
(3) the period of time remaining before trial, measured at the instant the Death Notice was filed and irrespective of the filing's effects, and
(4) the status of discovery in the proceedings. Id. at 737. District courts shall determine "on the basis of these factors whether sufficient time exists following notice and before trial for a defendant to prepare his death defense." Id.
The Fourth Circuit explained that it could not apply the third factor (interval between death notice and trial) because the record was unclear whether a trial date existed as of August 1st. In December 2000, the Court had set a trial date of September 10, 2001. As of August 1st, had that date been abandoned, or did it continue in force?
Accordingly, the appeals court, without addressing the other three factors of the four-factor test, remanded the case to allow this Court to address Ferebe's motion under the proper analytical framework. That framework tests "whether sufficient time exists following notice and before trial for a defendant to prepare his death defense." Id.
III. Analysis
On February 10, 2005, the Court held a post-remand hearing. The hearing centered on a list of twenty-two written questions that the Court requested counsel to address. (See Docket No. 143.) Having carefully considered the evidence and the arguments of counsel, the Court turns its attention to the Fourth Circuit's test.
In response to the Fourth Circuit's ruling, the Court ordered counsel to brief the application of the four-factor test and scheduled a post-remand hearing. The briefing schedule and hearing date were repeatedly postponed because the government was considering petitioning the Supreme Court for certiorari, and the parties were attempting to resolve this matter through a new plea agreement. The government ultimately chose not to seek leave to appeal to the Supreme Court, and counsel were unable to resolve the matter on their own.
A. Factor Three: The Period of Time Remaining Before Trial, Measured at the Instant the Death Notice was Filed and Irrespective of the Filing's Effects
Because of the complexities inherent in a death penalty case, the September 10, 2001 trial date was set in on a "right of way" basis, meaning that it had precedence over other matters. The schedule was sequenced to ensure that the considerable body of pretrial work that attends a death trial would be completed on time.
When the conditional plea agreement was signed on June 20th, preparation for a death trial was on schedule. Fully expecting DOJ approval, both sides ceased trial preparation at that point. As the weeks passed without an answer from the DOJ, deadlines slipped. When on July 26th the AG's office rejected the plea agreement, there was not enough time remaining to mount a death trial by September 10th. Ample time remained, however, to mount a non-death felony trial. In early August, defense counsel, in response to an inquiry from the Court, stated that they would be ready for a non-death trial on the scheduled date, assuming that the Court struck the death notice.
The defense position was not mere idle posturing. The government agrees that both the prosecution and the defense had ample time to prepare. Both sides were represented by experienced, able counsel. As of July 26th, the pretrial motions had been filed and fully briefed. Government counsel had completed his investigation, prepared his exhibit lists, and provided full discovery.
As of July 26th, the September 10th trial date was still officially on the calendar. Despite the slipped pre-trial dates, counsel never filed a formal request for a postponement, the Court never entered an order postponing the trial, and the trial remained on the docket.
Communications between counsel and the Court in early August evidence the parties' shared assumption that the September trial date remained in effect. After the Death Notice was filed on August 1st, the Court inquired whether counsel would still be ready for trial on September 10th. On August 1st, the prosecutor sent a letter to Ferebe's attorney stating, inter alia, "I suggest we seek a continuance of the September 10, 2001 trial date." On August 13th, defense counsel wrote the Court that they would be prepared to try the case as an ordinary felony trial on September 10, 2001.
During the September 7, 2001 hearing on Ferebe's motion to strike, the Court mentioned that other proceedings had been scheduled for September 10th and the weeks following. Once the conditional plea agreement had been reached on June 20th, the Court began scheduling other proceedings for the period reserved for the Ferebe trial. This "double booking," however, did not effect a de facto postponement of the trial. Like many busy trial courts, the frequent practice in this district is to schedule two or three trials per week. This can be done because most cases are resolved short of trial through a civil settlement or plea agreement. In those instances when two trials remain, another judge can almost invariably be found to take one of them. As a result of this "trade of assignment" system, last minute postponements caused by double booking are rare. Moreover, as a "specially set" trial, Ferebe had a "right-of-way." Had there been an unresolved conflict between the Ferebe trial and another matter, the Ferebe trial would have taken precedence.
The Court's comments were made with reference to the prejudice standard that the Fourth Circuit subsequently rejected. Applying a balancing test, the Court concluded that (i) any prejudice to Ferebe caused by the late filing of the Death Notice could be cured by a trial postponement of six to eight weeks, (ii) the parties had voluntarily stayed the case for two years while awaiting the outcome of Ferebe's appeal of the Thomas murder conviction, and waiting a few extra weeks would not prejudice the defense, and (iii) a brief postponement would accommodate the other litigants whose matters had been double booked for late September and early October. The Court's comments did not, therefore, mean that the trial date had been lost.
For the foregoing reasons, the Court concludes that it never cancelled the September 10th trial date. As of August 1, 2001, thirty-nine days remained before trial.
B. Factors One and Two: The Nature of the Charges Presented in the Indictment, and the Nature of the Aggravating Factors Provided in the Death Notice
The Indictment charges a drug conspiracy and the murders of Page and Evans. Among other aggravating factors, the Death Notice listed the following two non-statutory ones: (i) future dangerousness, and (ii) victim impact evidence. As of August 1st, the prosecution had not yet provided victim impact statements to defense counsel, and it is unclear whether such statements had even been written. Ferebe's attorneys needed time to (i) review the statements; (ii) attempt to speak to the friends and families of Page and Evans; (iii) investigate how the deaths had affected them, and (iv) speak to other individuals who knew Page and Evans. The government does not dispute that these tasks were necessary.
Defense counsel also needed time to digest the information and decide how to deal with it at trial. The addition of the Evans murder made the defense's job much more difficult. Page was a member of the drug world, but Evans was an innocent high school student. The defense needed time to decide if the best course, given such a sympathetic victim and a prior jury's willingness to convict Carmichael, was to acknowledge guilt and put all of its efforts into mitigation. All of this would have required more than thirty-nine days.
The Death Notice also alleged that Ferebe presents a continuing, serious threat to the lives and safety of others. This contention called expert testimony into play. Defense counsel argued (without opposition) that to counter the contention they would need testimony from psychiatric and prison experts. Defense counsel proffered, and the government did not disagree, that thirty-nine days was simply too short a time to locate experts on these subjects, have them evaluate Ferebe, prepare reports, and provide discovery to the government. Compounding the problem, the government conceded that it may well have decided to produce its own experts, thereby prolonging the discovery period.
C. Factor Four: The Status of Discovery
Although the government had already turned over all discovery relevant to the guilt phase of the trial, discovery pertinent to the sentencing phase had not yet begun.
D. Additional Factor: The Status of the Juror Questionnaire
Although not listed as one of the four factors, the Court considers the status of the juror questionnaire to be an important consideration in evaluating the timeliness of the government's Death Notice. As of August 1st, the proposed questionnaire was incomplete, and a hearing was required to iron out the differences between the prosecution and the defense as to its wording.
As explained above, once a juror questionnaire is finalized, it takes at least six to eight weeks for the Clerk's Office to mail the questionnaires to potential jurors, for potential jurors to complete and return them, for the Court and counsel to evaluate the responses, and for the Clerk's Office to followup with jurors who failed to complete the form. As the government conceded during the post-remand hearing, the entire jury questionnaire process would have consumed more than thirty-nine days.
The parties do not dispute the Clerk's Office's estimate of six to eight weeks.
The government recognized in its post-remand brief that "no screening of the jury panel was possible for a September 10, 2001 trial date." (Gov't Post-Remand Brief at 9, n. 5.)
Thirty-nine days was not enough time for Ferebe to have prepared his death defense. The government does not contend otherwise. The thrust of the government's argument is that the trial date had been constructively removed from the calendar. As stated above, the Court finds otherwise. Accordingly, the government did not file the Death Notice a reasonable time before trial as is required by 18 U.S.C. § 3593(a).
The Court does not fault the prosecutor for the late filing of the Death Notice. The prosecutor and defense counsel were working in good faith to achieve a plea deal whereby Ferebe would plead guilty and receive life sentences concurrent to the one that he was already serving. Because of counsels' continuing dialogue and hopes for a resolution short of trial, the government refrained from filing the Death Notice.
It was not until June 2001, a year after the government first offered a plea, that Ferebe was finally persuaded to accept it. By that time, the DOJ had altered its policy, and the parties' agreement was now conditioned on approval of the AG. When the DOJ unexpectedly rejected the plea agreement, and it became clear that a death trial was inevitable, the prosecutor promptly filed the Death Notice. The prosecutor had legitimate reasons for delaying the filing of the Death Notice. Ferebe waited approximately one year before accepting the government's plea offer. These facts would be relevant to a prejudice test, but they are irrelevant to the objective analysis subsequently announced by the appeals court.
IV. Conclusion
For the foregoing reasons, the Court will, by separate Order,
(i) GRANT Ferebe's motion to strike the Death Notice;
(ii) STRIKE the government's Death Notice, and
(iii) DIRECT the parties to submit a status report within two weeks of the date of the accompanying Order.
ORDER
For the reasons stated in the Memorandum of even date, the Court hereby:
(i) GRANTS Ferebe's motion to strike the Death Notice;
(ii) STRIKES the government's Death Notice, and
(iii) DIRECTS the parties to submit a status report within two weeks of the date of the accompanying Order.
It is so ORDERED.