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UNITED STATES OF AMERICA v. COOPER

April 14, 2000

UNITED STATES OF AMERICA
V.
CARL COOPER, DEFENDANT.



The opinion of the court was delivered by: Joyce Hens Green, Judge.

    MEMORANDUM OPINION AND ORDER

The 48-count indictment charging defendant, Carl Cooper ("Cooper"), with various racketeering acts of robbery, murder, conspiracy and firearms offenses was filed on August 4, 1999, and a jury trial has been scheduled for May 2, 2000. The government is seeking the death penalty pursuant to 18 U.S.C. § 924(c)(1) and 924(j) for three counts of murder in the course of using a firearm during a crime of violence. Cooper has filed several motions (one of which is an omnibus motion addressing approximately 25 issues) attacking the government's decision to pursue the death penalty, as well as the constitutionality of the Federal Death Penalty Act ("FDPA"), 18 U.S.C. § 3591, et seq., both facially and as applied to him.*fn1 Addressed in this Memorandum Opinion and Order are: (1) Cooper's Motion to Compel Disclosure of the United States Attorney's Initial Recommendation to the Attorney General Regarding Decision to Seek the Death Penalty; (2) Defendant's Motion to Strike Notice of Intent to Seek the Death Penalty for a Violation of 18 U.S.C. § 3593 and for Discovery and Issuance of Subpoenas; (3) Defendant's Motion to Strike Notice of Intent to Seek the Death Penalty as Violative of the Fifth and Eighth Amendments and for Discovery and Issuance of Subpoenas; and (4) Cooper's Motion to Preclude the Death Penalty; to Dismiss the Government's Notice of Intent to Seek the Death Penalty; to Strike Aggravating Factors; and to Request an Evidentiary Hearing on the Sufficiency of the Statutory and Nonstatutory Aggravating Circumstances Alleged by the Government. The first three motions are all denied in their entirety. The fourth motion is denied for the most part, however, the government is ordered to modify the notice of intent in certain respects as indicated in this Memorandum Opinion and Order, and the Court has already scheduled a hearing on the issues left open concerning the government's use of unadjudicated criminal conduct and obstruction of justice evidence.

I. The Federal Death Penalty Act

The FDPA specifies the procedure to be followed before a defendant may be sentenced to death. At the outset, if the government elects to pursue the death penalty for any death-eligible offense, it must file with the Court and serve on the defendant within a "reasonable time before trial" a notice of intent setting forth, among other things, "the aggravating factor or factors that the government, if the defendant is convicted, proposes to prove as justifying a sentence of death." 18 U.S.C. § 3583. The government filed such a notice in this case on February 14, 2000.

Once the notice is filed and a defendant is subsequently convicted of a capital offense, the case proceeds to sentencing. Under the FDPA, a sentencing hearing is conducted either before the jury that determined the defendant's guilt, or before a jury impaneled for the purpose of the sentencing hearing if "(a) the defendant was convicted upon a plea of guilty; (b) the defendant was convicted after a trial before the court sitting without a jury; (c) the jury that determined the defendant's guilt was discharged for good cause; or (d) after initial imposition of a sentence under this section, reconsideration of the sentence under this section is necessary." 18 U.S.C. § 3593(b). The sentence may be determined by the Court alone only upon request of the defendant with the government's consent. See id.

The FDPA contains several steps the jury (or the Court if the statutory requirements are met) must go through before a sentence of death can be imposed on a defendant who is found guilty of a capital crime. First, the government must prove the defendant had the requisite intent to commit the capital offense. The jury must unanimously find beyond a reasonable doubt that the defendant did at least one of the following:

(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 direct result of the act.

18 U.S.C. § 3591(a)(2)(A)-(D).

Second, if the jury finds that the requisite intent exists (if it does not so find, the death penalty may not be imposed), it must then consider the statutory aggravating factors alleged by the government. There are sixteen statutory aggravating offenses for a crime involving homicide. See 18 U.S.C. § 3592(c). In this case, the government has noticed its intent to present two statutory aggravating factors to the jury: (1) the defendant committed the offense as consideration for the receipt, or in the expectation of the receipt, of anything of pecuniary value, see 18 U.S.C. § 3592(c)(8); and (2) the defendant intentionally killed more than one person in a single criminal episode, see 18 U.S.C. § 3592(c)(16). If the jury unanimously finds beyond a reasonable doubt the existence of one or more of the statutory aggravating factors, it then proceeds to the third step. If it does not so find, a sentence of death may not be imposed. See 18 U.S.C. § 3593(d).

If the jury finds the existence of at least one statutory aggravating factor, it then considers the statutory aggravating factor or factors, together with non-statutory aggravating factor(s) and mitigating factor(s). Non-statutory aggravating factors are defined as "any other aggravating factor for which notice has been provided." 18 U.S.C. § 3593(d). Any non-statutory aggravating factor must be found to exist beyond a reasonable doubt by a unanimous jury. See 18 U.S.C. § 3593(d) and (e). In this case, the government has identified in its notice of intent five non-statutory aggravating factors: (1) victim impact; (2) other criminal history; (3) obstruction of justice; (4) leadership role in the racketeering enterprise; and (5) future dangerousness.

Mitigating factors, for which the defendant bears the burden of proof, must be proved by a "preponderance of the information." See 18 U.S.C. § 3593(c). In addition, "a finding with respect to a mitigating factor may be made by 1 or more members of the jury, and any member of the jury who finds the existence of a mitigating factor may consider such factor established . . . regardless of the number of jurors who concur." 18 U.S.C. § 3593(d). Jurors can consider "any mitigating factor," including the defendant's impaired capacity, duress, minor participation, the existence of other equally culpable defendants who will not be punished by death, the lack of a prior criminal record, any "severe mental or emotional disturbance," the consent of the victim, and any "factor in the defendant's background, record, or character or any other circumstance of the offense that mitigate against imposition of the death sentence." 18 U.S.C. § 3592(a).

After considering all of the aggravating (statutory and non-statutory) and mitigating factors, the jury decides whether "all the aggravating factor or factors found to exist sufficiently outweigh all the mitigating factor or factors found to exist to justify a sentence of death, or, in the absence of a mitigating factor, whether the aggravating factor or factors alone are sufficient to justify a sentence of death." 18 U.S.C. § 3593(e).

II. Facial Challenges to the Constitutionality of the FDPA

Cooper argues the FDPA is facially unconstitutional for a variety of reasons, all of which are addressed below.

A. Narrowing of the Class of Persons Eligible for the Death Penalty

The Supreme Court of the United States has held that in order to survive constitutional scrutiny, a death penalty statute must "genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder." Zant v. Stephens, 462 U.S. 862, 876 (1983). The goal of narrowing the class of persons eligible can be accomplished at either the guilt phase or the sentencing phase of the trial: "[t]he legislature may itself narrow the definition of capital offenses, . . . so that the jury finding of guilt responds to this concern, or the legislature may more broadly define capital offenses and provide for narrowing by jury findings of aggravating circumstances at the penalty phase." Lowenfeld v. Phelps, 484 U.S. 231, 246 (1988).

Cooper argues the FDPA fails to narrow the class of persons eligible to receive the death penalty for two reasons. First, the requirement that the jury find an element of intent as set forth in section 3591(a)(2)(A)-(D) fails to distinguish a capital crime from other crimes involving an intentional killing. Second, the statutory aggravating factors are "so broad as to apply to essentially any of the vast range of federal offenses where death is provided by statute." Mot. at 24-25. Neither of these arguments is persuasive.

As Cooper points out, the Supreme Court of the United States has held that a defendant must have some level of intent before a sentence of death can be carried out by the government on a capital murder conviction. In Enmund, the Supreme Court ruled that the Eighth Amendment prohibits punishing persons who "[themselves] kill, attempt to kill, or intend that a killing take place or that lethal force will be employed" in the same manner as those persons who cause unintentional harm. Enmund v. Florida, 458 U.S. 782, 797-98 (1982). In Tison v. Arizona, 481 U.S. 137 (1987), the Supreme Court held that "major participation in the felony committed, combined with reckless indifference to human life, is sufficient to satisfy the Enmund culpability requirement." Id. at 158. Cooper argues that rather than narrowing the class of offenses eligible for the death penalty, the intent provision of the FDPA simply repeats what the Constitution, as interpreted in Enmund and Tison, requires.

There are three capital charges in this case, all brought under 18 U.S.C. § 924(c)(1), and § 924(j), which states "[a] person who . . . causes the death of a person through the use of a firearm shall — (1) if the killing is a murder (as defined in section 1111), be punished by death or by imprisonment. . . ." Section 1111(a) defines murder as

the unlawful killing of a human being with malice aforethought. Every murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing; or committed in the perpetration of, or attempt to perpetrate, any arson, escape, murder, kidnaping, treason, espionage, sabotage, aggravated sexual abuse or sexual abuse, burglary, or robbery; or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed, is murder in the the first degree.

18 U.S.C. § 1111(a). Murder as defined in section 1111(a) includes felony-murder. The malice aforethought requirement is satisfied by a showing of intent to commit the specified underlying felony. See United States v. Pearson, 159 F.3d 480, 485 (10th Cir. 1998); United States v. Flores, 63 F.3d 1342, 1371 (5th Cir. 1995); United States v. Chischilly, 30 F.3d 1144, 1159-60 (9th Cir. 1994); United States v. Thomas, 34 F.3d 44, 48-49 (2d Cir. 1994).

In order for a jury to impose a sentence of death for a capital crime under 18 U.S.C. § 924(c)(1) and 924(j), the prosecution must prove at a minimum that the defendant "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 direct result of the act." 18 U.S.C. § 3591(a)(2)(D). Many felony-murder crimes under 18 U.S.C. § 1111(a) would not meet that standard. As a result, the FDPA sufficiently narrows the class of persons eligible for the death penalty. See Flores, 63 F.3d at 1371; United States v. Tipton, 90 F.3d 861, 898 (4th Cir. 1996); United States v. Davis, 904 F. Supp. 554, 557 (E.D. La. 1995).

Even if the statutory intent elements did not narrow the class of persons eligible to receive the death penalty, narrowing is nonetheless accomplished by the requirement that the jury find beyond a reasonable doubt the existence of at least one statutory aggravating factor. See Zant, 462 U.S. at 878 ("Our cases indicate, then, that statutory aggravating circumstances play a constitutionally necessary function as the state of legislative definition: they circumscribe the class of persons eligible for the death penalty."). Cooper's argument that the FDPA is unconstitutional because the statutory aggravating factors are so broad they apply to all capital cases is unavailing. Under the Constitution, what is required to narrow the class of persons eligible at the sentencing stage is that the statutory aggravating factors enable a jury to make an "individualized determination on the basis of the character of the individual and circumstances of the crime." See id. As will be discussed throughout this opinion, the statutory aggravating factors comport with this requirement.

B. "Evidentiary Free for All"

The FDPA provides that information at a capital sentencing hearing

is admissible regardless of its admissibility under the rules of evidence governing admission of evidence at criminal trials 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). Cooper argues that this standard violates his right to confront the witnesses against him because it creates an "evidentiary free-for-all" and diminishes the reliability of the sentencing hearing. However, the Supreme Court of the United States has rejected the notion that stringent evidentiary rules should apply at capital sentencing hearings, stressing instead the importance of the jury or the sentencing judge having a full and complete body of information available for consideration. As the Court stated in Williams v. New York:

Highly relevant — if not essential — to [a judge's] selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant's life and characteristics. And modern concepts individualizing punishment have made it all the more necessary that a sentencing judge not be denied an opportunity to obtain pertinent information by a requirement of rigid adherence to restrictive rules of evidence properly applicable to the trial.

337 U.S. 241, 247 (1949). The Supreme Court reaffirmed this principle in Gregg v. Georgia, when it stated that "so long as the evidence introduced and the arguments made at the pre-sentence hearing do not prejudice a defendant, it is preferable not to impose restrictions. We think it desirable for the jury to have as much information before it as possible when it makes a sentencing decision." 428 U.S. 153, 203-04 (1976).

Although there exists a tension between the need for heightened reliability in death penalty cases, see Lowenfield, 484 U.S. at 238-39, and the need for the sentencing body to have as much information as possible, the FDPA meets constitutional requirements in that it excludes from jury consideration information that is outweighed by the risk of unfair prejudice to the defendant, or the risk that it would confuse or mislead the jury.

This Court agrees with the numerous other Courts that have considered and rejected the same or substantially similar arguments as those presented by Cooper here. See, e.g., United States v. Jones, 132 F.3d 232, 241-42 (5th Cir. 1998), aff'd, 119 S.Ct. 2090 (1999); United States v. Frank, 8 F. Supp.2d 253 (S.D.N.Y. 1998); United States v. Nguyen, 928 F. Supp. 1525 (D. Kan. 1996); United States v. McVeigh, 944 F. Supp. 1478 (D. Colo. 1996).*fn3

C. Appellate Review.

The FDPA provides for appellate review of a death sentence upon the filing of a notice of appeal by the defendant. See 18 U.S.C. § 3595(a). The Court of Appeals must review the entire record, including the evidence submitted during the trial, the information submitted during the sentencing hearing, the procedures employed in the sentencing hearing, and the special findings returned by the jury. See 18 U.S.C. § 3595(b).*fn4 Cooper challenges the appeal provision of the FDPA on various bases, all of which are rejected. First, he argues that rather than provide for mandatory automatic review, the statute places the burden on the defendant to file a notice of appeal. That requirement, he argues, "drastically undermines the heightened reliability standard required by the Constitution in capital cases." Mot. at 30. Although the Constitution requires meaningful appellate review in death penalty cases, see Parker v. Dugger, 498 U.S. 308, 321 (1991); Clemons v. Mississippi, 494 U.S. 738, 749 (1990), and the Supreme Court of the United States has certainly favored mandatory appellate review, Gregg, 428 U.S. at 198, there is no requirement that ...


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