Opinion
Case No. 04-60216-CR-COHN/SNOW.
April 21, 2005
REPORT AND RECOMMENDATION
THIS CAUSE is before the Court on the following motions filed by the defendant KENNETH PAUL WILK, which were referred to United States Magistrate Judge, Lurana S. Snow, for report and recommendation.
1. Motion to Declare The Federal Death Penalty Act Unconstitutional Because of its Unconstitutional Treatment, Use and Authorization of Aggravating Factors, and for its Failure to Provide a Standard for Jurors to Employ in Balancing Aggravating and Mitigating Factors (DE 347),
2. Motion to Declare the Federal Death Penalty Act Unconstitutional in Light of Ring and its Progeny, Crawford and Booker (DE 348) and
3. Motion to Declare the Federal Death Penalty Act Unconstitutional Because (A) It is Mandatory for a Trial Judge to Adopt a Jury's Verdict, (B) It Removes Plain Error Review, (C) It is so Rarely Sought or Imposed that it Operates in an Arbitrary and Capricious Manner, (D) It Lacks a Principled Basis for Distinguishing Between Cases in Which the Death Penalty is Imposed, and it is Unconstitutionally Arbitrary, (E) It Will Lead to the Execution of Innocent People, and (F) It Constitutes Cruel and Unusual Punishment and a Per Se Denial of Due Process in All Cases (DE 349).
RECOMMENDATIONS OF LAW
The Federal Death Penalty Act (FDPA) is codified in 18 U.S.C. § 3591, et seq. It provides, in pertinent part, that a sentence of death may be imposed if a defendant has been found guilty of an offense for which a sentence of death is provided, if it is proved beyond a reasonable doubt at a hearing that the defendant:
(A) intentionally killed the victim;
(B) intentionally inflicted serious bodily injury that resulted in the death of the victim;
(C) intentionally participated in an act, contemplating that the life of a person would be taken or intending that lethal force would be used in connection with a person, other than one of the participants in the offense, and the victim died as a direct result of the act; or
(D) intentionally and specifically engaged in an act of violence, knowing that the act created a grave risk of death to a person, other than one of the participants in the offense, such that participation in the act constituted a reckless disregard for human life and the victim died as a result of the act. . . .18 U.S.C. § 3591(a)(2). A death sentence shall be imposed if, at a special hearing as described in § 3593, at which the fact finder considers the mitigating and aggravating factors set forth in § 3592, it is determined that imposition of a sentence of death is justified. 18 U.S.C. § 3592(a)(2).
The statute requires the Government, at a reasonable time before trial, to file with the court a notice stating that a sentence of death is justified and setting forth the aggravating factor or factors the Government intends to prove. Such factors may include the effect of the offense on the victim and the victim's family and "any other relevant information." 18 U.S.C. § 3593(a).
At the sentencing hearing, the Federal Rules of Evidence do not apply, "except that information may be excluded if its probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury." 18 U.S.C. § 3593(c). The Government must prove the existence of any aggravating factor beyond a reasonable doubt, while the defendant need only prove the existence of a mitigating factor by a preponderance of the evidence. Id. The fact finder is required to return special findings pertaining to the aggravating and mitigating factors. If the fact finder is a jury, a finding pertaining to an aggravating factor must be unanimous, but a finding pertaining to a mitigating factor may be made by one or more jurors. 18 U.S.C. § 3593(d).
The fact finder must then return a recommendation on whether the defendant should be sentenced to death, life imprisonment without parole or some other lesser sentence. If the fact finder is a jury, the vote on this recommendation must be unanimous. If the offense is a homicide described in § 3591(a) (2), then no recommendation on whether a death sentence is justified is made unless the fact finder has determined that an aggravating factor listed in § 3592(c) was proved beyond a reasonable doubt. 18 U.S.C. § 3593(e). A jury's recommendation of a sentence of death or life imprisonment without possibility of release is binding on the sentencing judge. 18 U.S.C. § 3594.
The imposition of a death sentence is subject to priority review by the court of appeals, although appeal is not mandatory. 18 U.S.C. § 3595(a). The court of appeals must remand the case for reconsideration under § 3593 or imposition of a sentence other than death if it finds:
(A) the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor;
(B) the admissible evidence and information adduced does not support the special finding of the existence of the required aggravating factor; or
(C) the proceedings involved any other legal error requiring reversal of the sentence that was properly preserved for appeal under the rules of criminal procedure.18 U.S.C. § 3595(c).
As noted in United States v. Nguyen, 928 F.Supp. 1525, 1532 (D. Kansas 1996), this statutory framework requires a jury to pass through several steps before it can recommend the death penalty:
First, the jury must determine whether [the defendant] had the requisite intent to commit the death-eligible offense. 18 U.S.C. § 3591(a). If the jury unanimously finds beyond a reasonable doubt that intent is established, it moves to the next step in the penalty process. If the jury does not so find, the deliberations are over and the death penalty may not be imposed.
Assuming the jury finds the requisite intent, it must then consider the statutory aggravating factors alleged by the government in its notice to seek the death penalty. The statutory aggravating factors are listed at 18 U.S.C. § 3592(c)(1)-(15). The jury must determine whether the government has proven at least one of the statutory factors alleged beyond a reasonable doubt. 18 U.S.C. § 3593(c). If the jury unanimously so finds, it moves to the next step of the penalty process. If not, the deliberations are over and the death penalty may not be imposed. 18 U.S.C. § 3593(d).
Assuming the jury finds at least one statutory aggravating factor, it must then consider that factor or factors, plus "any other aggravating factor for which notice has been provided." 18 U.S.C. 3593(d) ("non-statutory aggravating factors") and weigh them against any mitigating factors to determine whether the death penalty is appropriate. 18 U.S.C. § 3593(e).
Non-statutory aggravating factors, like their statutory counterparts, must be unanimously found by the jury beyond a reasonable doubt, while mitigating factors need only be established by a preponderance of the evidence. Further, any juror persuaded that a mitigating factor exists may consider it in reaching a sentencing decision; unanimity is not required. 18 U.S.C. § 3593(c), (d).
1. Motion to Declare The Federal Death Penalty Act Unconstitutional Because of its Unconstitutional Treatment, Use and Authorization Aggravating Factors, and for its Failure to Provide a Standard for Jurors to Employ in Balancing Aggravating and Mitigating Factors
The defendant first contends that the FDPA, by its terms, does not authorize consideration of any non-statutory aggravating factors except victim impact. As noted above, § 3593(a) states that the Government's notice of intent to seek the death penalty may include factors relating to victim impact and "any other relevant information." Also, § 3593(c) provides that information to be presented at the sentencing hearing may relate to any "aggravating factor permitted or required to be considered under section 3592."
The courts which have considered the argument advanced by the defendant have concluded that this section authorizes the consideration of aggravating factors in addition to victim impact, based on the rule which directs that a statute should be construed so that all its provisions can be given effect, and no provision rendered inoperative or superfluous. Nguyen, 928 F.Supp. at 1536; United States v. Llera Plaza, 179 F.Supp.2d 444, 459 (E.D. Pa. 2001); United States v. Gilbert, 120 F.Supp.2d 147, 152 (D. Mass. 2000). The defendant has cited no viable reason why this court should depart from the reasoning of those cases.
The defendant next argues that the Government's ability to articulate non-statutory aggravating circumstances after the crime, but prior to trial, violates the ex post facto clause of the United States Constitution by creating a new crime of capital murder. This argument likewise has been rejected by the courts. In United States v. Allen, 247 F.3d 741, 759 (8th Cir. 2001), the court pointed out that non-statutory aggravating factors are not used to determine eligibility for the death penalty. "Thus, proposing nonstatutory aggravating factors to the jury does not in any way alter the definition of the underlying crime for which Allen was convicted, nor does it increase the punishment to which Allen is subjected." Id. See, also, United States v. Minerd, 176 F.Supp.2d 424, 433-34 (W.D. Pa. 2001); United States v. Edelin, 134 F.Supp.2d 59, 74-75 (D.D.C. 2001); United States v. McVeigh, 944 F.Supp. 1478, 1485-86 (D.C. Colo. 1996).
These cases were decided before the Supreme Court's decision in Ring v. Arizona, 536 U.S. 584 (2002), which held that aggravating factors on which a death sentence is based must be submitted to a jury. However, the defendant has failed show that the holding of Ring undermines the reasoning of these cases.
The defendant also asserts that the FDPA authorization of non-statutory aggravating factors constitutes an impermissible delegation of authority by the legislature to the executive branch. This argument was raised by the appellant in United States v. Jones, 132 F.3d 232 (5th Cir. 1998). The court pointed out that while "Congress may not constitutionally delegate its legislative power to another branch of government," it "may seek assistance, within limits, from coordinate branches of government." Id. at 239. The only requirement is that Congress formulates "'an intelligible principle to which the person or body authorized to exercise the delegated authority is directed to conform.'" Id., quoting United States v. Mistretta, 488 U.S. 361, 372 (1989). The Fifth Circuit found that at least four limitations in the FDPA guide the Government in exercising its delegated authority:
First, the statute limits the scope of aggravating factors to those for which prior notice has been given by the prosecution. Second, the death penalty jurisprudence devised by the Supreme Court guides the prosecution in formulating nonstatutory aggravating factors. Third, the district court functions as a gatekeeper to limit the admission of useless and impermissibly prejudicial information. And fourth, the requirement that the jury find at least one statutory aggravating factor beyond a reasonable doubt before it may consider the non-statutory factors further limits the delegated authority.Jones, 132 F.3d at 240 (citations omitted). Other circuits have reached the same conclusions. Allen, 247 F.3d at 758-59;United States v. Tipton, 90 F.3d 861, 895 (4th Cir. 1996);United States v. McCullah, 76 F.3d 1087, 1106 (10th Cir. 1996).
Next, the defendant argues that the FDPA is unconstitutional because it fails to provide for mandatory "proportionality review," that is, an appellate determination of whether the death sentence imposed in a particular case is disproportionate to the punishment imposed on others convicted of the same crime. InPulley v. Harris, 465 U.S. 37, 50 (1984), the Supreme Court held that such review is not required in every case in which the death penalty is imposed. Based on Pulley, courts have upheld the constitutionality of the FDPA despite its lack of provision for proportionality review. Jones, 132 F.3d at 240-41; Allen, 247 F.3d at 760; Llera-Plaza, 179 F.Supp.2d at 456; United States v. Cooper, 91 F.Supp.2d 90, 99 (D.D.C. 2000).
The defendant's next contention is that the inclusion of victim impact as an aggravating factor is unconstitutional because it is applicable to every defendant. Again, this argument consistently has been rejected, as a general proposition and in specific instances. Payne v. Tennessee, 501 U.S. 808 (1991); Jones v. United States, 527 U.S. 373, 395 (1999); United States v. Barnette, 211 F.3d 803, 811-18 (4th Cir. 2000); United States v. Chanthadara, 230 F.3d 1237, 1273-74 (10th Cir. 2000); McVeigh, 944 F.Supp. at 1491; Minerd, 176 F.Supp.2d at 448.
Finally, the defendant argues that the FDPA is unconstitutional because it contains no standard of proof by which a jury must decide whether a death sentence is warranted. The statute provides that before imposing a death sentence, the fact finder must determine that the aggravating factors "sufficiently outweigh" the mitigating factors. 18 U.S.C. § 3593(e). In Boyde v. California, 494 U.S. 370, 377 (1990), the Supreme Court held that a statute which mandated imposition of the death penalty when the aggravating factors "outweigh" the mitigating factors passed constitutional muster. See, also, Angelone v. Buchanan, 522 U.S. 269, 276-77 (1988) (no requirement to instruct jury on how to consider mitigating evidence); Tuilaepa v. California, 512 U.S. 967, 978-79 (1994) (no need to instruct fact finder on how to weigh any particular fact in capital sentencing decision). Clearly, then, the FDPA is not constitutionally deficient on this or any ground asserted in the instant motion, and the motion should be denied.
2. Motion to Declare the Federal Death Penalty Act Unconstitutional in Light of Ring and its Progeny, Crawford and Booker
In this motion, the defendant advances six interrelated arguments: (1) the Supreme Court's decision in Ring v. Arizona, 536 U.S. 584 (2002), has rendered the FDPA unconstitutional; (2) in light of Ring, the reduced evidentiary standards for capital sentencing hearings are unconstitutional; (3) the Government's ability to present evidence of aggravating factors must be curtailed in light of United States v. Booker, U.S., 125 S.Ct. 738 (2005); (4) the FDPA is unconstitutional in light ofCrawford v. Washington, 541 U.S. 36 (2004) (5) the FDPA is unconstitutional because it violates the presumption of innocence, and (6) the Government's Notice of Intent to Seek the Death Penalty constitutes an unconstitutional amendment to the superseding indictment.
In Ring, supra, the Supreme Court struck down Arizona's capital sentencing scheme, which provided that the presiding judge, rather than the jury, made findings on the existence of aggravating factors necessary for imposition of the death penalty. This conclusion was dictated by the Court's earlier decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), "which held that the Sixth Amendment does not permit a defendant to be 'exposed[d] . . . to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone'. . . . even if the State characterizes the additional findings made by the judge as 'sentencing factor [s].'" Ring, 536 U.S. at 588-89, quoting Apprendi, 530 U.S. at 483, 492. The Ring Court held, "Because Arizona's enumerated aggravating factors operate as 'the functional equivalent of an element of a greater offense,' Apprendi, 530 U.S., at 494, n. 19, 120 S.Ct. 2348, the Sixth Amendment requires that they be found by a jury." Ring, 536 U.S. at 609.
In the instant case, the defendant argues that the FDPA's intent requirements set forth in 18 U.S.C. § 3591(a) (2) and the statutory aggravating factors listed in 18 U.S.C. § 3592(c) are characterized as sentencing factors, but under Ring such factors are elements of the offense of capital murder. Accordingly, the defendant reasons, it is necessary to rewrite the FDPA to properly set forth the elements of the offense.
This argument ignores two important points: (1) Ring characterizes such factors as the functional equivalent of elements of the underlying offense for Sixth Amendment purposes, not as actual elements which must be written into the statute defining the offense and (2) the FDPA requires that these factors be submitted to the jury. The basis for the Apprendi line of cases was the adequacy of the procedure employed in imposing sentence, not the definition of the offense involved. Apprendi, 530 U.S. at 475; Jones v. United States, 526 U.S. 227, 243 n. 6 (1999). For this reason, the Supreme Court has held that its decision in Ring was procedural and therefore could not be applied retroactively to a death penalty case already final on direct review:
A decision that modifies the elements of an offense is normally substantive rather than procedural. New elements alter the range of conduct the statute punishes, rendering some formerly unlawful conduct lawful or vice versa. But that is not what Ring did; the range of conduct punished by death in Arizona was the same before Ring as after. Ring held that, because Arizona's statutory aggravators effectively were elements for federal constitutional purposes, and so were subject to the procedural requirements the Constitution attaches to trial of elements.Schriro v. Summerlin, ___ U.S. ___, 124 S.Ct. 2519 (2004) (citations omitted). Courts which have considered the issue have held that Ring did not invalidate the FDPA on the ground advanced by the defendant here. United States v. Lee, 374 F.2d 637, 649 (8th Cir. 2004); United States v. Lentz, 225 F.Supp.2d 672, 679-80 (E.D.Va. 2004); United States v. Regan, 221 F.Supp.2d 672, 678-79 (W.D.Va. 2002).
Moreover, in the instant case, the intent and aggravating factors have been charged in the indictment, thereby complying with a requirement of Jones and Apprendi that was not explicitly addressed in Ring. Inclusion of sentencing factors in an indictment has been upheld in drug cases followingApprendi. See, United States v. Collazo-Aponte, 281 F.3d 320, 325 (1st Cir. 2002) (after Apprendi, drug quantities must be included in the indictment and proven to a jury beyond a reasonable doubt); United States v. Candelario, 240 F.3d 1300, 1311 n. 16 (11th Cir.), cert. denied, 533 U.S. 922 (2001) (rejecting facial challenge to 21 U.S.C. §§ 841 and 846 based onApprendi). As the Government points out, the argument that the FDPA is constitutional in the wake of Apprendi is even stronger than the argument supporting the drug penalty statutes, since the FDPA specifically provides for submission of the intent and aggravating factors to the jury.
The Ring court did, however, refer to the indictment requirement of Jones: "'[U]nder the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.'" Ring, 536 U.S. at 600, quoting Jones, 526 U.S. at 243 n. 6. The Fourth Circuit has held that Ring and Jones, taken together, require that an indictment allege at least one statutory aggravating factor. United States v. Barnette, 390 F.3d 775, 784 (4th Cir. 2004), citing United States v. Higgs, 353 F.3d 281, 299 (4th Cir. 2003).
The fact that the FDPA is silent on the issue of whether these factors should be included in an indictment does not preclude the grand jury from doing so. United States v. Sampson, 245 F.Supp.2d 327, 333-37 (D.Mass. 2003); United States v. Church, 218 F.Supp.2d 813, 815 (W.D. Va. 2002); Lentz, 225 F.Supp.2d at 681; Regan, 221 F.Supp.2d at 680. Therefore, there is no basis for the Court to strike the Notice of Special Findings in the second superseding indictment, as the defendant requests.Lentz, supra, at 681; Regan, supra, at 680.
Finally, there is no requirement that the non-statutory aggravating factors be alleged in the indictment, since these factors do not increase the punishment to which a defendant might be subjected, but serve the purpose of aiding the fact finder in selecting the appropriate sentence from the available options.United States v. Higgs, 353 F.3d 281 (4th Cir. 2003);Lentz, 225 F.Supp.2d at 682. Accordingly, the defendant's argument that the FDPA is unconstitutional in light of Ring is devoid of merit.
The defendant next contends that based on Ring, the FDPA's reduced evidentiary standards in the sentencing hearing are unconstitutional. He relies on the district court opinion in United States v. Fell, 217 F.Supp.2d 469 (D.Vt. 2002), reversed in an opinion by the Second Circuit which held:
While it is true that the FRE are inapplicable to death penalty sentencing proceedings under the FDPA, the FRE are not constitutionally mandated. Indeed, the FRE are inapplicable in numerous contexts, including ordinary sentencing proceedings before a trial judge. Moreover, the FDPA does not alter a district court's inherent obligation to exclude evidence the admission of which would violate a defendant's Constitutional Rights. The admissibility standard set forth in § 3593(c) of the FDPA provides one means of complying with this responsibility.United States v. Fell, 360 F.3d 135, 137-138 (2nd Cir. 2004). The court went on to point out that the Supreme Court has consistently emphasized the importance of individualizing punishment and the need to dispense with the restrictive rules of evidence applicable to the trial. Id. at 143, citing Williams v. New York, 337 U.S. 241, 247 (1949). The court found:
The FDPA Standard comports with the reasoning of Williams and its progeny by excluding only evidence whose probative value is outweighed by the danger of unfair prejudice to the defendant. This prescription permits the admission of evidence that might be excludable under the FRE but is nevertheless both constitutionally permissible and relevant to the determination of whether the death penalty should be imposed in a given case. This standard permits "the jury [to] have before it all possible relevant information about the individual defendant whose fate it must determine." Jurek v. Texas, 428 U.S. 262, 276, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976). As a result, the FDPA does not undermine "heightened reliability," it promotes it.Fell, 360 F.3d at 144.
The reasoning of the Second Circuit is persuasive and should be followed. Therefore, the defendant should not prevail on his second asserted ground.
The defendant next argues that the Supreme Court's refusal, inUnited States v. Booker, ___ U.S. ___, 125 S.Ct. 738 (2005), to engraft a jury trial requirement onto the United States Sentencing Guidelines, compels a finding that a grand jury requirement should not be read into the FDPA. The simple response to this argument is that Booker did not pertain to either the FDPA or the grand jury. As discussed above, courts have approved the inclusion of aggravating factors in a grand jury indictment under the FDPA, and no court holds that Booker invalidates such a procedure.
The defendant also argues that the FDPA is unconstitutional in light of the Supreme Court's recent decision of Crawford v. Washington, 541 U.S. 36 (2004), which held that the Confrontation Clause precludes the admission of testimonial statements of a witness who does not appear at trial unless the witness is unavailable to testify and the defendant has had a prior opportunity for cross-examination. The defendant reasons that the FDPA conflicts with this decision because it suspends the applicability of the Federal Rules of Evidence at a capital sentencing hearing. However, there is no reason to assume that a trial judge would not comply with the dictates of Crawford at a hearing under 18 U.S.C. § 3593, and Crawford provides no basis for a finding that the FDPA is facially unconstitutional.
The defendant's fifth contention is that the FDPA violates the presumption of innocence because after a defendant is found guilty, a jury must still find the existence of two elements beyond a reasonable doubt at a hearing which also involves other evidence related to punishment. The defendant contends that this procedure violates due process, but fails to articulate his reasoning. In any event, this argument was squarely rejected inUnited States v. Perez, 2004 WL 935260*18-19 (D.Conn. 2004).
Finally, the defendant asserts that the Government's Notice of Intent to Seek the Death Penalty constitutes an unconstitutional amendment of the indictment against him. As the Government points out, the Notice contains the same intent and statutory aggravating factors that are set forth in the indictment. The only difference between the two documents is that the Notice also lists the non-statutory aggravating factors. Since these factors do not alter the definition of the underlying offenses with which the defendant is charged or increase the punishment to which he is subjected, they cannot constitute a constructive amendment to the indictment. See, United States v. Allen, 247 F.3d 741, 759 (8th Cir. 2001).
For the foregoing reasons, there is no basis in the cases cited by the defendant to find that the FDPA is unconstitutional, and this motion should be denied.
3. Motion to Declare the Federal Death Penalty Act Unconstitutional Because (A) It is Mandatory for a Trial Judge to Adopt a Jury's Verdict, (B) It Removes Plain Error Review, (C) It is so Rarely Sought or Imposed that it Operates in an Arbitrary and Capricious Manner, (D) It Lacks a Principled Basis for Distinguishing Between Cases in Which the Death Penalty is Imposed, and it is Unconstitutionally Arbitrary, (E) It Will Lead to the Execution of Innocent People, and (F) It Constitutes Cruel and Unusual Punishment and a Per Se Denial of Due Process in All Cases
The defendant first contends that the FDPA is unconstitutional because the trial judge is bound by the jury's conclusion on whether the death penalty should be imposed. He cites no authority for the proposition that vesting this decision with a jury is a violation of the Constitution. As the Government points out, the Supreme Court struck down a statute which mandated a death sentence for every defendant convicted first-degree murder in Woodson v. North Carolina, 428 U.S. 280 (1976), but has never held that the final sentence must be made by the trial judge rather than a jury. As discussed below, the FDPA contains ample protection against jury error in its appeal provisions.
The defendant next asserts that the statute is unconstitutional because it fails to provide for appellate review for plain error. Again, the defendant has cited no case which has held that the FDPA (or any other death penalty statute) has been invalidated on this ground. The appeal provisions of the FDPA detail specific and expansive procedures for appellate review of a sentence of death, and do not in any way limit the scope of review of a defendant's conviction. Nothing in the statute suggests that traditional principles of plain error review do not apply. Appellate review procedures in death cases must be "meaningful," in that they are to sufficient to promote reliability and consistency. Clemons v. Mississippi, 494 U.S. 738, 749 (1990). The procedures set forth in the FDPA have been described as "exhaustive," United States v. Davis, 904 F.Supp. 554, 563 (E.D.La. 1995), and no court has found any aspect of these provisions to be deficient.
The defendant also argues that the FDPA must be held unconstitutional because it is sought and imposed in comparatively few cases. This argument has been rejected in the cases in which it has been raised. United States v. Hammer, 25 F. Supp. 2d 518 (M.D.Pa. 1998) United States v. O'Driscoll, 203 F.Supp.2d 334, 341 (M.D.Pa. 2002); United States v. Sampson, 275 F.Supp.2d 49, 88 (D.Mass. 2003). As one court stated,
The mere fact that the government has only sought the death penalty in a de minimis number of murder cases involving federal inmates is not sufficient. . . . [The defendant] must show that the government is seeking the death penalty for an impermissible reason, such as race, religion, or in retaliation for his exercising his right to trial by jury.Hammer, supra, at 547.
Similarly, there is no basis for the defendant's claim that the FDPA is unconstitutional because it lacks a principled basis for distinguishing those cases in which the death penalty will be sought and imposed. Once again, the defendant has cited no case in support of his argument. Instead, he provides a list of cases offered to demonstrate inconsistency in federal sentences for heinous crimes. In McCleseky v. Kemp, 481 U.S. 279, 307 n. 28 (1987), the Supreme Court stated:
The Constitution is not offended by inconsistency in results based on the objective circumstances of the crime. Numerous legitimate factors may influence the outcome of a trial and a defendant's ultimate sentence, even though they may be irrelevant to his actual guilt.
Indeed, the Court repeatedly has emphasized that sentencing decisions must be individualized. Gregg v. Georgia, 428 U.S. 153, 189 (1976); Jurek v. Texas, 428 U.S. 262, 276 (1976).
The defendant also asserts that the FDPA is unconstitutional because it will lead to the execution of innocent people. The defendant relies on United States v. Quinones, 205 F.Supp.2d 256 (S.D.N.Y. 2002), a decision which was reversed by the Second Circuit in United States v. Quinones, 313 F.3d 49 (2nd Cir. 2002), hearing denied, 317 F.3d 86 (2nd Cir. 2003). The appellate court relied on Herrera v. Collins, 506 U.S. 390 (1993) for the proposition that even in capital cases, "it is lawful under the Due Process Clause to end the judicial review process at some point, despite the purely theoretical possibility that the defendant might have been able to demonstrate his innocence in the future."Quinones, 313 F.3d at 68. Other courts have reached the same conclusion. United States v. Davis, 2003 WL 1837701 (E.D. La. 2003); United States v. Denis, 246 F.Supp.2d 1250, 1253-54 (S.D.Fla. 2002); United States v. Church, 217 F.Supp.2d 700, 702 (W.D.Va. 2002); United States v. O'Driscoll, 203 F. Supp.2d 334, 342 (E.D.Pa. 2002); United States v. Sampson, 275 F.Supp.2d 49, 60 (D.Mass. 2003).
Finally, the defendant argues that the FDPA is unconstitutional on the ground that capital punishment is a per se violation of the Eighth Amendment prohibition against cruel and unusual punishment and a denial of due process. In Gregg v. Georgia, 428 U.S. 153, 187 (1976), the Court held that "the death penalty is not a form of punishment that may never be imposed, regardless of the circumstances of the offense, regardless of the character of the offender, and regardless of the procedure followed in reaching the decision to impose it." In so holding, the Court squarely rejected an argument that the death penalty was a per se violation of the Eighth Amendment, and upheld the procedures employed by the state of Georgia for imposing a death sentence. No case suggests that the Supreme Court would deviate from this holding or find that the death penalty is a per se denial of due process.
As the defendant's arguments in this motion are without legal support, the motion should be denied.
CONCLUSION
This Court having considered carefully the pleadings, arguments of counsel, and the applicable case law, it is hereby
RECOMMENDED that the defendant's:
1. Motion to Declare The Federal Death Penalty Act Unconstitutional Because of its Unconstitutional Treatment, use and Authorization of Aggravating Factors, and for its Failure to Provide a Standard for Jurors to Employ in Balancing Aggravating and Mitigating Factors (DE 347) be DENIED,
2. Motion to Declare the Federal Death Penalty Act Unconstitutional in Light of Ring and its Progeny, Crawford and Booker (DE 348) be DENIED and
3. Motion to Declare the Federal Death Penalty Act Unconstitutional Because (A) It is Mandatory for a Trial Judge to Adopt a Jury's Verdict, (B) It Removes Plain Error Review, (C) It is so Rarely Sought or Imposed that it Operates in an Arbitrary and Capricious Manner, (D) It Lacks a Principled Basis for Distinguishing Between Cases in Which the Death Penalty is Imposed, and it is Unconstitutionally Arbitrary, (E) It Will Lead to the Execution of Innocent People, and (F) It Constitutes Cruel and Unusual Punishment and a Per Se Denial of Due Process in All Cases (DE 349) be DENIED.
The parties will have ten days from the date of being served with a copy of this Report and Recommendation within which to file written objections, if any, with The Honorable James I. Cohn, United States District Judge. Failure to file objections timely shall bar the parties from attacking on appeal factual findings contained herein. LoConte v. Dugger, 847 F.2d 745 (11th Cir. 1998), cert. denied, 488 U.S. 958 (1988); RTC v. Hallmark Builders, Inc., 996 F.2d 1144, 1149 (11th Cir. 1993).
DONE AND SUBMITTED.