Opinion
Case No. CR-00-S-422-S.
February 7, 2005
MEMORANDUM OPINION AND ORDER
This opinion and order address defendant's "Motion to Dismiss Notice of Special Findings and Government's Notice of Intent to Seek the Death Penalty for Untimely Filing of the Death Notice." The motion turns on the following provision of the Federal Death Penalty Act:
Doc. no. 179.
(a) 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 supplied). The construction of this statute, and particularly its pivotal phrase, "a reasonable time before the trial," is an issue of first impression within the Eleventh Circuit.
Indeed, the Fourth Circuit appears to be the only circuit court of appeals to have dealt with the meaning of § 3593(a) as it relates to the reasonableness and timing of the government's Death Notice. See United States v. Ferebe, 332 F.3d 722 (4th Cir. 2003). While other circuits have considered such issues as how and when a Death Notice may be amended, whether it must include a statement of specific evidence the government will rely upon, and the adequacy of the notice's description of aggravating circumstances, no other circuit has considered the issue of timeliness of the Death Notice. Further, virtually all of the district courts that have applied Ferebe are within the Fourth Circuit, and therefore obligated to follow circuit precedent. See, e.g., United States v. Ponder, 347 F. Supp. 2d 256 (E.D. Va. 2004); United States v. Le, 311 F. Supp. 2d 527 (E.D. Va. 2004); United States v. Hatten, 276 F. Supp. 2d 574 (S.D. W.Va. 2003).
Relying upon the Fourth Circuit's split decision in United States v. Ferebe, 332 F.3d 722 (4th Cir. 2003), defendant argues that § 3593(a) mandates striking the government's notice of intent to seek the death penalty filed on December 11, 2003, because it was not filed a reasonable time before trial. The Magistrate Judge rejected this argument, and issued a report recommending that defendant's motion be denied. The parties were allowed fifteen days to submit written objections. None were filed.
See doc. no. 179 (Motion to Dismiss); see also doc. no. 79 (Notice of Intent to Seek the Death Penalty); doc. no. 17 (Superseding Indictment) (including Notice of Special Findings).
Doc. no. 430 (Report and Recommendation filed Jan. 18, 2005), at 10.
I. PROCEDURAL HISTORY
Defendant was indicted on November 11, 2000, for the 1998 bombing of an abortion clinic in Birmingham, Alabama, which caused the death of an off-duty police officer and severe injuries to a nurse employed at the clinic. The indictment charged defendant with two offenses: using an explosive to damage a building used in an activity affecting interstate commerce, which resulted in a death and personal injury to another person, in violation of 18 U.S.C. § 844(i); and, using a firearm (a destructive device) during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1). On the date that indictment was returned, defendant was a fugitive, and remained so until his capture in Murphy, North Carolina, on May 30, 2003. Following an initial appearance in the Western District of North Carolina on June 2, 2003, defendant was transferred to this district and made his first appearance in this court on June 3, 2003, when he was arraigned on the November 2000 indictment. Pursuant to this court's standard procedures under the Speedy Trial Act, a trial date of August 2, 2003 was set at the arraignment.Following defendant's arraignment on the November 2000 indictment, the government returned to the grand jury and obtained a superseding indictment on June 26, 2003. The superseding indictment was identical to the original, but added a section entitled "Notice of Special Findings," in which the grand jury alleged that defendant committed the crimes with one or more of four culpable mental states specified in the Notice, and, that five statutory aggravating circumstances existed. These allegations were added to set forth matters required to be proven under the Federal Death Penalty Act, 18 U.S.C. §§ 3591- 3598, and to ensure compliance with the implications of the Supreme Court's holdings in Apprendi v. New Jersey, 530 U.S. 466 (2000), Jones v. United States, 526 U.S. 227 (1999), and Lankford v. Idaho, 500 U.S. 110 (1991). Defendant was arraigned on the superseding indictment on July 11, 2003.
See doc. no. 17.
Apprendi and Jones stand for the proposition that any fact, other than the fact of a prior conviction, that increases the punishment for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proven beyond a reasonable doubt. See Apprendi, 530 U.S. at 490 (addressing state hate crime statute); Jones, 526 U.S. at 243 n. 6 (construing federal car jacking statute, 18 U.S.C. § 2119).
Lankford requires that a defendant subject to the imposition of a death sentence receive sufficient notice of aggravating factors to enable defendant to prepare his or her case. See 500 U.S. at 126-28.
By order entered seventeen days after defendant's arraignment on the superseding indictment, i.e., July 28, 2003, the original trial setting of August 2, 2003 was continued generally. This was done because it was not then known when the Attorney General would rule upon the request of the United States Attorney for the Northern District of Alabama for authorization to seek the death penalty in this case.
Doc. no. 26 (Order Continuing Trial Setting), at 10.
In January 1995, the U.S. Department of Justice adopted a formal "Protocol for Federal Prosecutions in Which the Death Penalty May Be Sought." See UNITED STATES ATTORNEYS' MANUAL, Title 9-10.000 et seq. See generally I Molly Treadway Johnson Laural L. Hooper, RESOURCE GUIDE FOR MANAGING CAPITAL CASES 10-12 (Federal Judicial Center, April 2004).
The government filed notice of its intent to seek the death penalty ("Death Notice") on December 11, 2003, asserting the same four culpable mental states alleged in the grand jury's superseding indictment, and, the same five statutory aggravating circumstances. Additionally, the government alleged two non-statutory aggravating circumstances: the future dangerousness of the defendant; and the impact of his crime on the victims and their families. On the date this Death Notice was filed, there was no trial setting.
See doc. no. 79 (Notice of Intent to Seek the Death Penalty).
See the text accompanying note 10 supra.
The following day, however, December 12, 2003, the court entered a scheduling order which, among other dates specified for the occurrence of events necessary to prepare the case for trial, established August 2, 2004 as the date upon which trial would commence: i.e., seven months and twenty-two days after the Death Notice was filed. The trial setting subsequently was continued to the Spring of 2005 for reasons unrelated to the filing of the Death Notice.
See doc. no. 81 (Scheduling Order). The scheduling order was amended on December 30, 2003, but the August 2, 2004, trial date remained unchanged ( see doc. no. 87).
Although the process of issuing summons to jurors begins in March 2005, a jury will not be seated until May of 2005. See doc. no. 255 (Order granting motion to reconsider trial date).
II. DISCUSSION
The majority opinion in United States v. Ferebe, 332 F.3d 722 (4th Cir. 2003), held that the plain language of § 3593(a) created a substantive right, described as "the right . . . to avoid sufferance of trial for [a] capital offense except upon adequate notice." Id. at 727.The right requires, as a prophylactic, reasonable notice before trial. And its indisputable purpose is to ensure that the accused will not be required to stand trial for his life without having received adequate notice before that trial that he is to stand trial for [a] capital offense (in addition to ensuring that an accused will not receive the death penalty without having received such notice). That Congress intended to protect the accused from having to endure a capital trial for which he was provided inadequate notice to prepare his defense is plain from the fact that it required the Death Notice be given a "reasonable time" before the trial, not merely "before" trial.
As a prophylactic statute, one of the chief aims of which is to protect the accused from having to endure a trial for his life for which he was not on reasonable notice, the statute must be interpreted to require an inquiry into the objective reasonableness of the time between issuance of the Death Notice and the trial itself, in light of the particulars of the charged offense and the anticipated nature of the defense.Id. (emphasis in original). According to the Ferebe majority, the substantive right created by § 3593(a) is absolute, and comparable to a defendant's right to not be twice subjected to trial for the same offense, protected by the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution. Ferebe, 332 F.3d at 728 ("[T]he right guaranteed to the accused by section 3593(a) not to stand trial for [a] capital offense except upon adequate notice, like the right not to be tried twice for the same offense, is denied if it is recognized only after the trial that the accused is assured by section 3593(a) he will not be required to endure.") (emphasis in original). Under that construction of the statute, a defendant has the right to an interlocutory appeal to determine, prior to being required to endure the anxiety of a trial for his life, whether the government's notice was filed a "reasonable time before the trial."
The dissent in Ferebe argued that the district court's order regarding the timeliness of the Death Notice was not immediately appealable, because the reasonableness of the time allowed a defendant to prepare for a capital trial would depend "in large part on the nature and complexity of the case and an evaluation of the preparation the defendant was able to undertake" prior to commencement of trial. 332 F.3d at 748 (Niemeyer, J., dissenting). According to the dissent, therefore, the question of whether the government's Death Notice was filed "a reasonable time before the trial" can only be answered after trial, and turns upon whether the defendant actually was prejudiced by the allegedly tardy notice.
The Magistrate Judge also concluded that the timeliness of a Death Notice must be gauged retrospectively, saying that
a violation [of § 3593(a)'s timeliness requirements] occurs at the commencement of trial, or at a time so close to the commencement of trial that the reasonableness of the death notice can really be gauged. Only at the eve of trial, looking back at when the notice was filed and the preparation that has occurred since, can the court truly determine whether the timing of the notice was "reasonable."
Doc. no. 430 (Report and Recommendation), at 7.
Under the Ferebe majority's construction of the statute, however, actual prejudice to a defendant is not relevant.
Because an accused is assured by section 3593(a) that, a reasonable time before trial, he will receive adequate notice that he is to be tried for [a] capital offense, and consequently that he will not be required to stand trial for such [an] offense absent that notice, his 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). In other words, if the government's Death Notice is filed on a date before trial that is deemed to be "unreasonable," it must be stricken, and the government cannot be allowed to pursue a death sentence, regardless of whether it is retrospectively determined on direct appeal that a defendant was (or was not) actually harmed by the "unreasonable" timing of the filing. Id. at 726-37. Therefore, under the majority opinion in Ferebe, the timeliness of a death penalty notice is determined as of the instant the Death Notice is filed, looking prospectively to the scheduled trial date. 332 F.3d at 737 n. 6; see also United States v. Breeden, 366 F.3d 369, 374 (4th Cir. 2004) (" Ferebe is quite explicit that the time frame for determining the objective reasonableness of a death notice begins on the date the death notice is filed.").
See, e.g., Ferebe, 332 F.3d at 730 (observing that "vacature of sentence and remand after trial and sentencing does not protect (nor, for that matter, even remedy the denial of) the right not to be forced to endure a capital trial except upon reasonable notice," and that the dissent's reliance upon "a prejudice inquiry to vindicate the right created by section 3593(a) . . . incorrectly substitutes a post-trial, harmless error inquiry for the inquiry into pre-trial, objective reasonableness mandated by the statute. And thereby it fails to protect fully the right created by section 3593(a).") (emphasis in original) (footnote omitted); id. at 731 ("This statutorily-created right not to be tried for a capital sentence without having received reasonable notice can only be effectuated by an interpretation that the statute imposes a prophylactic requirement which, in turn, necessitates a pretrial inquiry into the objective reasonableness of the notice provided.") (emphasis in original).
The Magistrate Judge embraced the position advocated in Ferebe's dissenting opinion. This court need not decide which Ferebe opinion should control because, even applying the majority rationale, as defendant urges the court to do, he cannot prevail.
Although the Magistrate Judge recommended that the rationale of the Ferebe dissent be followed, the report and recommendation alternatively conducted an analysis under the majority rationale of Ferebe, and reached the same result.
A. The Ferebe Factors
The Ferebe majority identified four, non-exhaustive factors to consider when determining whether a Death Notice is filed an "objectively reasonable" time before trial:
To judge an accused's challenge to the reasonable timeliness of a Death Notice requires evaluation of, among other factors that may appear relevant, (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, in addition, (4) the status of discovery in the proceedings. It should be determined 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 (footnote omitted); see also United States v. Breeden, 366 F.3d 369, 374 (4th Cir. 2004) (same). Further, with respect to the third factor — "the period of time remaining before trial, measured at the instant the Death Notice was filed and irrespective of the filing's effects" — the Ferebe majority added a footnote stating that:
To quantify this interval, a court naturally must have reference to two dates: the first, obviously, being the date the Death Notice is filed, and the second, obviously, being the trial date. Less obvious is that the scheduled trial date may constitute the trial date for purposes of analysis under section 3593(a) because of the prophylactic nature of the statutory right.
This latter conclusion is necessitated by the twin facts that the right guarded by section 3593(a) is violated at the time that a defendant is required to proceed to trial for his life with insufficient time to prepare, and that, like all rights, . . . violation of the section 3593(a) right may be vindicated by objection at the moment of the violation. The only other possible analytical framework for vindicating the section 3593(a) right, one based on an after-the-fact review for prejudice, would allow notice never to be given and the notice requirement still to be satisfied. The statutory language simply does not countenance such a result. And so, we must prefer the pre-trial objective reasonableness analysis, which by its character, for purposes of pre-trial Death Notice challenges, references the set trial date as the date of trial.Ferebe, 332 F.3d at 737 n. 6 (italicized emphasis in original, boldface emphasis added).
1. The nature of the charges
The first factor requires the court to consider the "nature of the charges presented in the indictment." Ferebe, 332 F.3d at 737. The superseding indictment filed on June 26, 2003 reads, in part, as follows:
COUNT ONE: [( 18 U.S.C. § 844(i)]
The Grand Jury charges that:
On or about the 29th day of January, 1998, in Jefferson County, within the Northern District of Alabama, the defendant,
ERIC ROBERT RUDOLPH,
did maliciously damage, by means of an explosive, a building and property used in an activity affecting interstate and foreign commerce, namely the New Woman All Women Health Care Clinic located at 1001 17th Street South in Birmingham, Alabama, which prohibited conduct resulted in the death of Robert D. Sanderson and personal injury to Emily Lyons, in violation of Title 18, United States Code, Section 844(i).COUNT TWO: [( 18 U.S.C. § 924(c)(1)]
The Grand Jury charges that:
On or about the 29th day of January, 1998, in Jefferson County, within the Northern District of Alabama, the defendant,
ERIC ROBERT RUDOLPH,
knowingly used a firearm, that is a destructive device, during and in relation to a crime of violence for which he may be prosecuted in a Court of the United States, that is the damage to a building and property used in an activity affecting interstate and foreign commerce, as described above in Count One, and in the course of such conduct caused the death of Robert D. Sanderson through the use of said firearm, in violation of Title 18, United States Code, Sections 924(c)(1).
Doc. no. 17 (Superseding Indictment), at 1-2.
The superseding indictment also includes a "Notice of Special Findings," in which the grand jury made the following, additional findings of fact with regard to Count One of the indictment: (1) defendant intentionally killed the victim; (2) defendant inflicted serious bodily injury that resulted in the death of the victim; (3) defendant intentionally participated in an act contemplating that the act could take the life of another; (4) defendant intentionally engaged in an act of violence with reckless disregard for human life; (5) defendant caused the death of the victim during the commission of another crime; (6) defendant knowingly created a grave risk of death to the victims and other persons; (7) defendant committed an offense in an especially heinous and cruel manner; (8) defendant committed an offense after substantial planning and premeditation to cause the death of another person and to commit an act of terrorism; and (9) defendant intentionally attempted to kill more than one person in a single criminal episode.
This finding has been withdrawn by the government. See doc. no. 449 (Report and Recommendation filed February 4, 2005), at 51.
Id. at 2.
The factual issues presented by both counts of the superseding indictment are not complex. The grand jury accuses defendant of using an explosive to maliciously damage an abortion clinic located in Birmingham, Alabama, on January 29, 1998, and alleges that defendant's conduct resulted in the death of one person and bodily injuries to another. Both counts therefore relate to one event, occurring on the same day, in the same place, at the same time, involving two victims. Accordingly, the factual issues are not complex. See United States v. Le, 311 F. Supp. 2d 527, 534 (E.D. Va. 2004) (observing that, "while Le is charged with four capital offenses, they relate to the same two murders that occurred on the same day, in the same place, and at the same time. As such, the legal and factual issues presented by these charges do not appear `so complex or atypical'") (citation omitted).
Even so, the grand jury's "Notice of Special Findings" clearly signaled that this case possessed death penalty implications. As early as July 28, 2003, this court recognized that, "because this case is one in which the government is likely to seek the death penalty, the trial will be legally complex, and one in which numerous pretrial motions will be necessary to prepare the case for trial." That defendant was charged with a bombing also heightened the complexity of the case. Opinion testimony elicited from witnesses with expertise in the chemical properties of explosive materials and forensic investigative techniques will be required, and complex legal disputes regarding the admissibility of such testimony inevitably follow.
Doc. no. 26 (Order Continuing Trial Setting and Making Findings Under the Speedy Trial Act), at 7 (emphasis supplied).
See doc. no. 26 (Order Continuing Trial) at 8 n. 8.
Therefore, while the factual underpinnings of the superseding indictment are straightforward, the legal issues promise to be complex. The first Ferebe factor, "the nature of the charges in the indictment," accordingly weighs in favor of defendant.
According to defendant, there is yet another reason why the first Ferebe factor should weigh in his favor. Defendant argues that the government delayed its decision to issue the Death Notice, even though the government recognized that defendant faced a difficult task in preparing his defense because of the "sheer size and scope of this case." Doc. no. 179 (Motion to Dismiss), at 7-9. According to defendant, the government's "unjustified failure" to file its Death Notice sooner placed him "`against the wall in an uncomfortable, rushed procedural scenario.'" Id. (quoting United States v. Colon-Miranda, 985 F. Supp. 31, 35 (D.P.R. 1997)).
Defendant's argument does not intuitively address the first factor under Ferebe: i.e., whether the "nature of the charge in the indictment" warrants more time for defendant to prepare his case. Even so, defendant argues that the decision in United States v. Hatten, 276 F. Supp. 2d 574 (S.D.W. Va. 2003), is directly on point ( see doc. no. 179 (Motion to Dismiss) at 6). This court disagrees.
In Hatten, the government charged the defendant with involvement in a drug conspiracy and murder. On May 1, 2003, the court set a trial date for August 12, 2003. The government knew, soon after the trial date was set, that it could swiftly issue a Death Notice against defendant. Nevertheless, it chose to "defer" the Death Notice until July 7, 2003, just 36 days before trial. Id. at 576, 578.
The Hatten Court reasoned that the government's conduct tilted the first two factors under Ferebe in favor of the defendant.
In short, by the time this Court set the August trial date, the Government had all the information it relied upon in filing the Death Notice. Despite this fact, the Death Notice was not filed until July 7. Considering that the Government had this information and chose to defer the Notice until July 7, the "nature of the charges" factor weighs in favor of Defendant.". . . . For the same reasons, the "nature of the aggravating factors provided in the Death Notice[, the second factor under Ferebe,]" tilts toward Defendant's position. . . . . In short, despite a trial date of August 12, the Government took more than three months after the Superseding Indictment to provide the formal Death Notice.Hatten, 276 F. Supp. 2d at 578-579. Hatten is distinguishable from the facts of this case. Here, there was no established trial date when the government issued its Death Notice on December 11, 2003. Contrary to defendant's suggestion, the government did not delay the Death Notice in order to pin him against a pending trial date. The court declines to penalize the government under the circumstances of this case.
2. Nature of the aggravating factors
The second Ferebe factor is the "nature of the aggravating factors provided in the Death Notice." Ferebe, 332 F.3d at 737. Here, the Death Notice identified statutory and non-statutory aggravating factors which, according to the government, justified a sentence of death. The statutory factors generally restated the factors identified in the grand jury's "Notice of Special Findings." The non-statutory factors alleged the future dangerousness of defendant and the impact of the Birmingham bombing on the victims and their families.
See doc. no. 79 (Notice of Intent to Seek the Death Penalty), at 2-4.
Defendant does not argue that the aggravating factors identified in the Death Notice inherently weigh in his favor. Instead, relying on the decision in United States v. Hatten, 276 F. Supp. 2d 574 (S.D. W.Va. 2003), he claims that the government delayed its decision to issue the Death Notice, and this should be considered. Defendant's argument is unavailing for the reasons discussed in note 27 supra.
The court notes that the statutory aggravating factors cited in the Death Notice relate back, almost verbatim, to the Notice of Special Findings in the superseding indictment. "As a result, these aggravating factors require[d] no additional investigation on the part of the defense . . . as an investigation into the facts and circumstances of charges in the indictment would undoubtedly take place in any event." United States v. Le, 311 F. Supp. 2d 527, 535 (E.D. Va. 2004).
See doc. no. 179 (Motion to Dismiss), at 9.
3. The interval between the filing of the Death Notice and the trial date
The third Ferebe factor is "the period of time remaining before trial, measured at the instant the Death Notice was filed and irrespective of the filing's effects." Ferebe, 332 F. 3d at 737. As previously mentioned, the Death Notice was filed on December 11, 2003, and the following day this court scheduled a trial date of August 2, 2004. In setting the trial date, this court was aware of the filing of the government's notice of intent to seek the death penalty, and attempted to establish a trial date that allowed a reasonable period for preparation, based on the information known at that time. The court chose a date that provided defendant seven months and twenty-two days from the date of the Death Notice to prepare for trial.
Ferebe endorses a case-by-case inquiry; indeed, it would be problematic for courts to adopt per se rules regarding temporal intervals that constitute "reasonable" notice, and those that are "unreasonable," in all circumstances. Even so, "[g]iven the implications inherent to capital punishment, notice [filed] only thirty-six days before trial [unquestionably] falls in the low end of timeliness." Hatten, 276 F. Supp. 2d at 579. On the other hand, "no court has suggested that a period of nearly seven months is unreasonable." United States v. Breeden, No. CR-03-00013, 2003 WL 22019060, at *3 (W.D. Va. Aug. 22, 2003), aff'd, 366 F.3d 369, 374-75 (4th Cir. 2004).
The Ferebe majority noted that the defendant in that case "presents some evidence, and the prosecution does not challenge it, that, nation-wide, federal prosecutors file Death Notices, upon authorization by the Attorney General, with an average of 8.4 months remaining before trial." Ferebe, 332 F.3d at 725. Subsequent district court decisions within the Fourth Circuit have not rigidly followed this 8.4 month period as a barometer of reasonableness, but have conducted a review of reasonableness based on the facts of each case. See United States v. Breeden, No. CR-03-00013, 2003 WL 22019060 (W.D. Va. Aug. 22, 2003) (finding six month, twenty-five day interval reasonable), aff'd, 366 F.3d 369, 374-75 (4th Cir. 2004); United States v. Ponder, 347 F. Supp. 2d 256 (E.D. Va. 2004) (finding six and one-half month interval reasonable); United States v. Le, 311 F. Supp. 2d 527 (E.D. Va. 2004) (finding 113-day interval reasonable); United States v. Hatten, 276 F. Supp. 2d 574 (S.D. W.Va. 2003) (finding thirty-six day interval unreasonable). The seven month and twenty-two-day interval in this case falls within the range recognized as acceptable by other courts.
4. The status of discovery
The final factor enumerated in Ferebe is the "status of discovery in the proceedings." Ferebe, 332 F.3d at 737. On July 1, 2003, approximately five months before the government filed a Death Notice in this case, the parties informed the court that they already had commenced discovery. Even so, the court observed on July 28, 2003, that "discovery will be a laborious and time-consuming process," involving "massive amounts of documents and investigative materials."
See doc. no. 26 (Order Continuing Trial Setting), at 7-8.
Id.
Further, the government informed the court on October 31, 2003, that it "st[ood] ready to produce the Birmingham discovery to defendant," but that defendant had not yet filed a written request for the material. Defendant filed his "Initial Request for Disclosure" three days later, on November 3, 2003. That same day, defense counsel informed the court that they were faced with an overwhelming number of documents and investigative materials, and that it would not be possible to proceed to trial by June 1, 2004 — the trial date proposed by the government. The government responded ten days later, on November 13, 2003, saying that it had satisfied defendant's Initial Request for Disclosure, and would continue to satisfy its discovery obligations. Defendant did not file any further motions to compel discovery prior to the date on which the government filed the Death Notice.
Doc. no. 51 (Government's Discovery Notice).
Doc. no. 53.
Doc. no. 52 (Defendant's Response to Government's Motion for a Scheduling Order), at 1-9, 12.
Doc. no. 58 (Response to Discovery Request).
The government did file a motion for the issuance of a subpoena on November 25, 2003 (doc. no. 67). The government sought copies of recordings of telephone calls made by defendant while detained in the Jefferson County, Alabama, Jail pending trial. Defendant opposed the motion on December 10, 2003 (doc. no. 72). The government withdrew its motion on December 30, 2003.
Defendant does not argue that the volume of discovery was too great to undertake in the seven month and twenty-two-day interval between the government's December 11, 2003 Death Notice and the August 2, 2004 trial date scheduled by this court in the order entered on December 12, 2003. Rather, in defendant's brief filed on April 8, 2004, approximately four months after the Death Notice was served on him, defendant claimed:
Among other things, the government has taken the unjustified position that the defense is not entitled to discovery of laboratory bench notes and other items crucial to a fair assessment of the government's scientific evidence. Defendant has filed a motion challenging that position, but it is clear that by the time the issue is litigated and the defense is finally given access to this material and an opportunity to discuss it with its own experts, the date of the current trial will have passed.
Defendant does not specify the date on which he filed this motion, nor does he specify the document number. However, defendant filed a Motion for Discovery of Rule 16(a)(1)(G) Materials on January 30, 2004, nineteen days after he received his Death Notice (doc. no. 108). Federal Rule of Criminal Procedure 16(a)(1)(G) entitles defendants "to summaries of all expert testimony, which must include `the witness's opinions, the bases and reasons for those opinions, and the witness's qualifications.'" United States v. Soto-Beniquez, 356 F.3d 1, 37 (1st Cir. 2004) (quoting Fed.R.Crim.P. 16(a)(1)(G)).
Doc. no. 179 (Motion to Dismiss), at 11.
This argument is not persuasive. Under the majority rationale in Ferebe, the court may not uphold (or presumably strike) a Death Notice based on events that occur after the Death Notice is filed; instead, a violation of 18 U.S.C. § 3593(a) is determined at the instant the notice is filed, and a retrospective inquiry as to the reasonableness of notice is prohibited. As of December 12, 2003, when this court set defendant's trial date for August 2, 2004, defendant had not filed any motion concerning discovery beyond his "Initial Request for Disclosure." Furthermore, the government had informed the court that it had completed its initial disclosures, and that it intended to comply with all future discovery requirements. Thus, there then was no compelling reason to believe that future discovery disputes would derail the scheduled trial date.
Defendant also argues, relying on United States v. Hatten, 276 F. Supp. 2d 574 (S.D. W.Va. 2003), that the government should have filed its Death Notice sooner, as evidenced by the fact that "the government ha[d] been sitting on the discovery material in this case for years." Again, defendant misconstrues the meaning of Hatten. In that case, the court penalized the government because it waited until a mere thirty-six days before the scheduled trial date to file a Death Notice. The Hatten Court noted that discovery had progressed smoothly, and "neither the information provided in the ongoing disclosures nor any procedural issue [had] affected the ability of the Government to issue its Death Notice." Hatten, 276 F. Supp. 2d at 579. In other words, the government could not rely on the "status of discovery" to excuse its strategy of pinning the defendant's preparation against a pending trial date. Here, in contrast, there was no scheduled trial date when the government filed its Death Notice. Defendant's suggestion that the government delayed the Death Notice for the purpose of hindering his preparation for trial is not convincing under these circumstances. Defendant has failed to articulate why the fourth factor, "the status of discovery," should be weighed in his favor when viewed from the perspective of the date on which this court set the August 2, 2004 trial date.
Id.
See supra note 27.
B. Additional Factors
The four factors enumerated by Ferebe's majority are not exhaustive; "consideration of other factors is not foreclosed." Ferebe, 332 F.3d at 737. In that regard, defendant knew, as early as June 26, 2003, when the grand jury issued the superseding indictment containing a "Notice of Special Findings," that his case carried death penalty implications. On December 11, 2003, the date on which the government filed notice of its intent to seek the death penalty, defendant had five attorneys, one paralegal, and an investigator assisting with his defense. Defendant's lead attorney at that time, Richard S. Jaffe, had previously "handled over fifty capital cases, including two federal death penalty cases." Judy Clarke, who also represented defendant, had "represented a number of clients accused of capital offenses, including serving as appointed co-counsel for Susan Smith in Union, South Carolina, and for Theodore Kaczynski, charged as the `Unabomber' in federal court in Sacramento, California." Ms. Clarke was selected by the National Law Journal in 1998 as one of the fifty most talented female attorneys in the United States. Defendant thus was well-represented early in the proceedings.
The court appointed Richard S. Jaffe and William M. Bowen, Jr., as counsel for defendant on June 3, 2003 (doc. no. 4). Approximately two weeks later, on June 13, 2006, the court granted the motion by Jaffe and Bowen to appoint James Drennan and H. Hube Dodd, Jr., as associate counsel, and to authorize the hiring of a paralegal and an investigator to assist the defense (doc. no. 16 at 9). The court appointed Judy Clarke as additional counsel to defendant on November 24, 2003 (doc. no. 64).
Doc. no. 16, Appendix A, Resume of Richard S. Jaffe.
Doc. no. 64 (Amendment of Prior Orders Appointing Counsel), at attached resume.
Id.
Although defendant claims that this court set the August 2, 2004 trial date "over [his] objection," that assertion is not entirely accurate. On November 3, 2003, defendant stated that "it will be impossible for the defense to be prepared to adequately and effectively represent Mr. Rudolph at a trial beginning on June 1, 2004 [the trial date requested by the government]." The court carefully considered defendant's objection to a June 1st trial date, and scheduled the trial to begin on August 2, 2004.
Doc. no. 179 (Motion to Dismiss), at 1 (citing doc. no. 52, Defendant's Response to Government's Motion for a Scheduling Order).
Doc. no. 52 (Defendant's Response to Government's Motion for a Scheduling Order), at 12 (emphasis supplied) (bold text omitted). Defendant did state the following in a November 3, 2003 filing: "The government has not yet provided the production to which the government believes the defense is entitled. Given that undisputed fact, it is respectfully submitted that it is premature for this Court in this case to set a deadline for anything other than those motions which are purely legal in nature, which attack, address, or concern statutes or constitutional provisions and which require no detailed factual investigation." Id. at 8-9 (emphasis in original). The government informed the court on November 13, 2003, that it had produced the material cited by defendant in his November 3 filing.
C. Consideration Of All Relevant Factors
Even applying the factors and test urged by defendant, this court reaches the same conclusion as the Magistrate Judge: the period of time between the date on which the government filed notice of its intent to seek the death penalty (December 11, 2003) and the subsequently-scheduled trial date (August 2, 2004) was reasonable. Consideration of the four factors enumerated in Ferebe, and the additional factors identified by this court, may be summarized as follows: (1) the superseding indictment presents complex legal issues; (2) the aggravating factors identified in the government's Death Notice did not significantly impact the preparation of defendant's defense; (3) defendant had seven months and twenty-two days to prepare his defense; (4) defendant does not argue that the volume of discovery was too great to complete within that period; and (5) defendant was represented by experienced, and extraordinarily competent, federal death penalty counsel well before the government's Death Notice was filed.
The court finds that defendant's counsel were sufficiently skilled to address the complex legal issues implicated by defendant's indictment, particularly when given seven months and twenty-two days to do so. Defendant also does not claim that the volume of discovery was too great to complete within this time period; instead, he argues that discovery was slowed by disputes which intensified after a trial date had been set. Of course, if defendant desires to look retrospectively at the reasonableness of his trial date (which he may not, under the majority decision in Ferebe), he must also recognize that his trial has since been continued until late Spring of 2005, for reasons unrelated to the timing of the government's Death Notice. Consideration of all of these factors establishes that defendant was afforded notice of the government's intent to seek the death penalty within a reasonable period of time before the trial, as required by 18 U.S.C. § 3593(a).
See Ponder, 347 F. Supp. 2d at 265, 269-70.