The opinion of the court was delivered by: Royce C. Lamberth United States District Judge
This comes before the Court upon defendant Tommy Edelin's Motions to Preclude the Death Penalty, to Dismiss the Government's Notice of Intent to Seek the Death Penalty, to Strike Aggravating Factors, to Request an Evidentiary Hearing on the Sufficiency of the Statutory and Non-statutory Aggravating Factors Alleged by the Government, to Strike the Notice of Intent to Seek the Death Penalty Because of Racial Discrimination in the Government's Capital Charging Practices, and for Discovery. Defendant Edelin argues that 21 U.S.C. § 848 is unconstitutional for a variety of reasons, and challenges the statute as applied to him. Defendant Edelin also challenges the structure of the capital sentencing proceedings he will face if he is found guilty of any of the three capital charges against him.
Defendant Edelin has filed numerous challenges to the constitutionality of 21 U.S.C. § 848, including ten Motions to preclude the death penalty on the basis of the unconstitutionality of the Anti-Drug Abuse and Death Penalty Act of 1988 [hereinafter ADAA], six motions challenging the application of the death penalty and the validity of the government's Notice of Intent to Seek the Death Penalty in this case, one Motion requesting an evidentiary hearing as to the sufficiency of the evidence to support the aggravating factors listed in the government's Notice of Intent to Seek the Death Penalty, and one Motion to Strike the Notice of Intent to Seek the Death Penalty Because of Racial Discrimination. After reviewing the defendant's Motions, the Oppositions of the government, and the decisions of other courts with regards to the constitutionality of 21 U.S.C. § 848, the defendant's Motions are hereby DENIED.
Defendant Tommy Edelin is charged in a one hundred and three count Superseding Indictment. He will be tried, beginning March 26, 2001, with five co-defendants. The defendants are charged with the following crimes: conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine, fifty grams or more of cocaine base, and one kilogram or more of heroin; continuing criminal enterprise; conspiracy to participate in a racketeer influenced corrupt organization; first degree murder while armed; continuing criminal enterprise murder; assault with intent to murder while armed; assault with a dangerous weapon; use of a firearm; and possession of a firearm during a crime of violence, among other crimes.
Each of the six defendants in this case is charged with at least one count of capital murder, but the government is only seeking the death penalty against defendant Tommy Edelin. Defendant Edelin is charged with the intentional killing of three individuals while engaging in and working in furtherance of a continuing criminal enterprise, in violation of Title 21, United States Code, Section 848(e). Defendant Edelin is also charged with counseling, commanding, inducing, procuring, and/or causing the murders of eleven other individuals, and fourteen assaults with intent to murder.
These charges are in addition to five counts of solicitation of murder, one count of attempted murder, and four counts of assault with intent to murder.
On June 30, 2000, the Government filed a Notice of Intent to Seek the Death Penalty, in accordance with Section 848(h), and stated therein its intent to seek the death penalty if defendant Tommy Edelin is convicted on Counts Twelve, Fourteen, and/or Sixteen of the Superseding Indictment. The Government has also provided the defendant with a specific list of statutory and non-statutory aggravating factors it will seek to prove as the basis for the imposition of the death penalty.
II. Defendant's Motion to Preclude the Death Penalty: Constitutionality of the Anti-Drug Abuse Act
Defendant Edelin's challenges to 21 U.S.C. § 848 are substantially similar to challenges raised in this District by the defendant in United States v. Cooper, 91 F. Supp. 2d 90 (D.D.C. 2000). Although the defendant in Cooper was charged under the Federal Death Penalty Act, many of the statutory provisions, and the defendants' challenges to them, are identical. The Court finds that the defendant's arguments against the death penalty, although rooted in a sincere belief that the death penalty is cruel and unusual punishment, ignore the controlling authority of decisions by the United States Supreme Court. See Gregg v. Georgia, 428 U.S. 153 (1976); McCleskey v. Kemp, 481 U.S. 279 (1987); United States v. Jones 132 F.3d 232 (5th Cir. 1998) (upholding constitutionality of death penalty and affirming death sentence imposed under sentencing procedures of Federal Death Penalty Act of 1994, 18 U.S.C. §§ 3591-98), aff'd, 527 U.S. 373 (1999). Similarly, many of the defendant's arguments against the constitutionality of the provisions in the ADAA ignore the decisions of other courts whose decisions are based on well-reasoned analysis and legal precedent. See United States v. Frank, 8 F. Supp. 2d 253, 260-61 (S.D.N.Y 1998) (collecting "growing body" of federal cases which have considered constitutional challenges to the two federal death penalty acts and have, "without exception," upheld their constitutionality). *fn1 This Court cannot ignore the decisions of the Supreme Court, nor will it ignore the compelling decisions of other courts upholding the constitutionality and legitimacy of the ADAA and the capital sentencing procedures established by statute and case law.
The United States Supreme Court has recognized that the procedures for sentencing a person to death must be subject to "heightened standards of reliability" *fn2 and further established that "death is different" *fn3 from other penalties that can be imposed for criminal wrongdoing. Defendant Edelin argues that the safeguards implemented by various courts for procedures used during capital sentencing are not sufficient to ensure the constitutionality of the penalty. The Court finds that the safeguards established within the ADAA, combined with the procedures implemented by courts which have interpreted the ADAA, and viewed through the lens of Supreme Court jurisprudence, are sufficient to protect the constitutional rights of the defendant. The rights of the defendant must be protected when he faces the most serious of penalties, to ensure that the result of the sentencing be accurate and reliable; the proper application of 21 U.S.C. § 848 protects the constitutional rights of defendant Edelin. The death penalty cannot be constitutionally applied in an arbitrary and capricious manner. Furman v. Georgia, 408 U.S. 238 (1972). The discretion of the sentencing jury must be suitably "directed and limited so as to minimize the risk of wholly arbitrary and capricious action." Zant v. Stevens, 462 U.S. 862, 874 (1983) (internal citations omitted). It is also crucial, however, that each defendant facing the death penalty be considered as an individual, and that he receive "particularized consideration of all relevant aspects" of his character before the death penalty is imposed on him. Woodson v. North Carolina, 428 U.S. 280, 303 (1976), Roberts v. Louisiana, 428 U.S. 325 (1976).
The statute under which defendant Tommy Edelin is charged, 21 U.S.C. § 848, balances the competing interests present in a death penalty case by applying the death penalty fairly and to a narrow class of individuals while also providing for individualized sentencing of the defendant. Defendant Edelin is eligible for the death penalty because he allegedly killed, procured, or caused the intentional killing of three different individuals, while engaged in or working in furtherance of a continuing criminal enterprise. The death penalty is being sought against him because he is death-eligible and because the Attorney General made a decision to seek the death penalty in his case. Defendant Edelin's rights are further protected by the additional safeguards within the ADAA that balance his interests against the interests of the government. The Court finds that the ADAA is constitutional.
A) Narrowing of the Category of Persons Eligible for the Death Penalty
Defendant Edelin next argues that the ADAA is unconstitutional because it fails to narrow the class of persons to whom the death penalty applies. The statutory scheme of 21 U.S.C. § 848, however, specifically narrows the category of individuals who are eligible for the death penalty. *fn4 The statute uses successive steps to narrow the broad category of all murderers to those who have committed murder in the furtherance of a continuing criminal enterprise. The category is further narrowed to those murderers who killed with one of the intent factors listed in Section 848(n)(1). The intent element must be found beyond a reasonable doubt by the jury as an aggravating factor. The government must then convince the jury that at least one additional statutory aggravating factor, set forth in Sections 848(n)(2) through (n)(12), applies beyond a reasonable doubt. Unanimous findings by the jury of the two aggravating factors establishes the eligibility of the defendant to receive the death penalty.
Defendant Edelin argues that the aggravating factors discussed above fail to narrow the class of persons eligible for the death penalty from the entire category of persons convicted of crimes involving "intentional" killings. He is mistaken; 21 U.S.C. § 848 itself creates a threshold restriction on the class of persons eligible for the death penalty. Only those defendants who have engaged in a killing as described by Section 848(e) are eligible for the death penalty. *fn5 The legislature complied with the constitutional requirements of the Eighth Amendment by adding an intent element to the statute so that no defendant could be sentenced to death when he had not intended to kill. See Tison v. Arizona, 481 U.S. 137 (1986); Enmund v. Florida, 458 U.S. 782 (1982). This intent requirement, however, is not the only portion of Section 848 that serves to narrow the category of persons who are death penalty eligible. The restrictions of the statute itself narrow the class, as does the requirement that the jury find at least one aggravating factor beyond the intent element. See Lowenfield v. Phelps, 484 U.S. 231, 246 (1988); Tuilaepa v. California, 512 U.S. 967, 972 (1994). As the Fifth Circuit Court of Appeals found, the relevant analysis is to compare cases which qualify under these factors to "the larger class of all murders [including] felony murders for which the death sentence could not necessarily be imposed." United States v. Flores, 63 F.3d 1342, 1370-71 (5th Cir. 1995) cert. denied, 519 U.S. 825 (1996) (citing Lowenfield v. Phelps, 484 U.S. 231, 241-42 (1988)); see also Arave v. Creech, 507 U.S. 463, 475 (1993).
Only once the jury determines that the defendant is eligible for the death penalty would the jury begin to consider the other statutory and non-statutory aggravating factors produced by the government and the mitigating factors produced by the defendant.
Each of the aggravating factors must be found beyond a reasonable doubt by a unanimous jury for the jury to consider these factors in making its final determination. The mitigating factors presented by the defense need only be found by a preponderance of the information, and any member of the jury who finds the existence of a mitigating factor may consider that factor when making the final determination. 21 U.S.C. § 848(k). Finally, the jury must carefully weigh the aggravating and mitigating factors, in accordance with the instructions provided by this Court. The jury would then make a decision as to whether the defendant should be sentenced to death. Thus, the narrowing function served by the initial eligibility determination by the jury limits the application of the death penalty while the subsequent information submitted to the jury allows for the selection of the proper penalty.
B) Weighing Statutes in Capital Sentencings
Defendant Edelin next challenges the provision of the ADAA that a death sentence may be imposed only if the jury finds that the statutory and non-statutory aggravating factors "sufficiently outweigh and all mitigating factors which may have been found, or . . . if no mitigating factors have been found, that the aggravating factors alone are sufficient to justify a sentence of death." See 21 U.S.C. § 848(k). The Supreme Court has upheld the validity of weighing provisions in capital sentencings. In Buchanan v. Angelone, the Court held that when a capital defendant is allowed to introduce all constitutionally relevant mitigating information at sentencing, the jury need not be instructed in the manner in which it should consider that mitigating information. 522 U.S. 269, 276-79 (1998). Previously, in Tuilaepa v. California, 512 U.S. 967, 978-79 (1994), the Court held that "[a] capital sentencer need not be instructed how to weigh any particular fact in the capital sentencing decision[.]" Nevertheless, if the defendant is concerned about the jurors' ability to follow the statute in weighing the different factors accepted at sentencing, he may propose a jury instruction to assist the jurors, and the Court will take it under consideration. *fn6
C) Order of Argument at Sentencing
The Court, in considering the defendant's argument that the order of argument provision included in Section 848(j) is unconstitutional, turns to the Federal Rules of Criminal Procedure. Rule 29.1 prescribes the order of argument at trial and reinforces the standard practice of federal litigation to give the party with the burden of proof the right to open and close argument. FED. R. CRIM. P. 29.1. Although the Supreme Court has recognized that death penalty proceedings are different than other kinds of proceedings, the defendant goes beyond the Supreme Court's capital case decisions to say that the order of argument provision is unconstitutional. There is no basis for the defendant's contention. The burden of proof at sentencing remains squarely in the hands of the government, and therefore, the order of argument provision of the statute is valid. See United States v. Cooper, 91 F. Supp. 2d 90, 101 (D.D.C. 2000); United States v. Cooper, 754 F. Supp. 617, 627 n.17 (N.D. Ill. 1990).
D) Standard of Admissibility of Information at Sentencing
The inclusion of all mitigating information, in compliance with the Supreme Court's decisions in Buchanan v. Angelone, 522 U.S. 269, (1998) and Lockett v. Ohio, 438 U.S. 586 (1978) would result in a very skewed presentation of information at sentencing if the government were not also allowed to provide relevant information with regard to aggravating factors. The balance struck by the authors of Section 848 thus results in a broad grant of discretion and responsibility to the trial judge. The trial judge must carefully weigh each piece of information to be presented at sentencing and exclude information "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury." 21 U.S.C. § 848(j).
Defendant Edelin, after reviewing Section 848, concludes that the admission at sentencing of information that would not be admissible under the Federal Rules of Evidence invalidates the ADAA. By contrast, the federal courts who have reviewed the standards for admission of information at capital sentencings have determined that the relaxed evidentiary standard is constitutional. *fn7
The Supreme Court addressed a similar provision in Georgia's death penalty statute in Gregg v. Georgia, finding that the legislature had "wisely . . . chosen not to impose unnecessary restrictions on the evidence that could be offered" because it was "desirable for the jury to have as much information as possible when it makes the sentencing decision." 428 U.S. 153, 203-04 (1976). The Fifth Circuit, when addressing the ADAA, specifically found that the statute struck the proper balance between "heightened reliability" and "individualized sentencing." United States v. Jones, 132 F.3d 232, 241 (5th Cir. 1998), aff'd, 527 U.S. 373 (1999). The Court finds that the evidentiary standards of the ADAA properly protect the integrity of the capital sentencing process.
E) Mitigating Information
The legislature, in drafting Section 848, recognized the defendant's right to provide all relevant mitigating information at sentencing. *fn8 21 U.S.C. § 848 only restricts the defendant's ability to present mitigating information when the information presented is substantially more prejudicial than probative or may lead to juror confusion. See 21 U.S.C. § 848(j). This same restriction applies to the information presented by the government at sentencing. See id. Defendant Edelin advances several arguments that the ADAA unconstitutionally restricts the introduction of mitigating information by the defendant. Upon a plain reading of the statute, including Section 848(m)(10), which allows the introduction of "[o]ther factors in the defendant's background, or character that mitigate against imposition of the death sentence," the Court finds that the ADAA does not unconstitutionally limit the presentation of mitigation information at sentencing. See United States v. Cooper, 91 F. Supp. 2d 90, 100 (D.D.C. 2000) (finding that a similar provision in the Federal Death Penalty Act does not exclude mitigating information).
The Court also rejects defendant's argument that the jury would reject mitigating factors that are not specifically listed in the statute. The jury is presumed to follow instructions of the court. See Richardson v. Marsh, 481 U.S. 200, 206 (1987). If the defendant is concerned that the jurors will be confused as to the relevance of mitigating factors, he may propose appropriate corrective jury instructions and the Court will take them under consideration.
F) Inadmissibility of Race as a Mitigating Factor
Defendant Edelin asserts the unconstitutionality of the ADAA because Section 848(o) precludes the jury from considering the "race, color, religious beliefs, nation origin, or sex of the defendant or of any victim" as a mitigating factor. The defendant argues that this prevents him from presenting all mitigating information at sentencing, as is required by the Supreme Court's decisions in Lockett v. Ohio, 438 U.S. 586, 604 (1978) and Buchanan v. Angelone, 522 U.S. 269, (1998). While the Supreme Court has held that the defendant cannot be denied the opportunity to present mitigating information at sentencing, the exclusion of race as a mitigating factor does not violate the holding of Lockett, 438 U.S. at 604.
Federal courts have established that while race, gender, and religious background should not be considered by the sentencing jury, the effects and experiences of race may be admissible. If a defendant can show that his life has been marked by discrimination or some other set of experiences, irrespective of whether they result, in part, from his race, then that properly might be admissible as relevant mitigating background or character evidence. But this is a far cry from using race in and of itself as a proxy for a set of beliefs and experiences. Pigmentation does not define a person's character or background; the life that a person has led and the things that he has experienced do. United States v. Webster, 162 F.3d 308, 356-57 (5th Cir. 1998), cert. denied, 528 U.S. 829 (1999). See United States v. Cooper, 91 F. Supp. 2d 90, 101 (D.D.C. 2000).
The Court finds that defendant Edelin's objection to Section 848(o) is unfounded, the restriction on his ability to present race as a mitigating circumstance does not violate his constitutional rights.
G) ADAA's Appellate Review Procedures
Under the Anti-Drug Abuse Act, appellate review is granted upon the application of the defendant. 21 U.S.C. § 848(q). The reviewing court is permitted to grant relief from a death sentence if the death sentence was "imposed under the influence of passion, prejudice, or any other arbitrary factor," there is insufficient evidence to support the required aggravating factor, or there is some legal error in the proceedings that requires reversal of the sentence. Id. Defendant Edelin argues that this "limited" appellate review is not "meaningful" *fn9 and invalidates the statute. The Court disagrees.
The Supreme Court has not found that automatic appellate review is required in death penalty cases, nor has the Supreme Court held that the appellate review provided in 21 U.S.C. § 848 or similar statutes is inadequate. The defendant is concerned that the lack of automatic appellate review "takes fatal advantage of a condemned person at the height of his vulnerability" by requiring the defendant to file a notice of appeal. See Defendant's Motion at 25. The act of filing notice is not an onerous burden. Defendant Edelin has three defense counsel, provided pursuant to 18 U.S.C. § 3005, 21 U.S.C. § 848(q)(4)-(8), and the clerk of the court is required to file the notice upon the defendant's request. See FED. R. CRIM. P. 32(c)(5).
The defendant will not be without resources, his counsel can ensure an appeal is filed, should an appeal be needed.
A review of the plain words of the ADAA, in conjunction with an understanding of one of the most common rules of statutory construction, *fn10 yields the conclusion that appellate review under the ADAA is meaningful in the constitutional sense. While the defendant argues that the statutory language is too restrictive of the appellate court's powers, the words of the statute indicate that the appellate court maintains the ability to review the sentencing decision if it is imposed under any "arbitrary factor," a lack of evidence supporting the mandatory aggravating factor, or any other legal error properly preserved for appeal. See 21 U.S.C. § 848(q).
The defendant also reads the ADAA to unconstitutionally foreclose plain error review by appellate courts. Contrary to the position of the defendant, however, there is "no basis for thinking that [a] court of appeals will be limited in its power to fully review any sentence imposed." United States v. Pitera, 795 F. Supp. 546, 567 (E.D.N.Y. 1992). *fn11 The Court finds that the provisions of 21 U.S.C. § 848, in accordance with the United States Constitution and the applicable rules of criminal procedure, do not unconstitutionally curtail appellate review of death sentences.
Defendant Edelin identifies another flaw he considers fatal in the ADAA's appellate review provisions in the lack of a provision for proportionality review. Although the Supreme Court has relied on proportionality review as an added feature to protect the rights of capital defendants, it has never held that proportionality review is constitutionally required. Pulley v. Harris, 465 U.S. 37, 50 (1984). The Supreme Court explained in Pulley that Zant v. Stephens *fn12 had established that "[p]roportionality review was considered to be an additional safeguard against arbitrarily imposed death sentences, but . . . comparative review was [not] constitutionally required." Pulley, 465 U.S. at 50.
The death penalty statute at issue here does not provide for proportionality review, although other courts have held that the statute does not bar appellate courts from conducting proportionality review and examining the penalties imposed in similar cases. See 21 U.S.C. § 848; United States v. Cooper, 91 F. Supp. 2d 90, 99 (D.D.C. 2000). The defendant's argument that the ADAA is unconstitutional, because of a lack of a proportionality review provision, is unpersuasive against the words of the Supreme Court and the decisions of other federal courts. *fn13
Defendant Edelin next argues that the ADAA's remand provision, included in Section 848(q)(3), could be applied in violation of the Double Jeopardy Clause of the Fifth Amendment, and therefore invalidates the entire ADAA. The defendant ignores several canons of statutory instruction in coming to this conclusion. *fn14 Although the statute could be applied in an unconstitutional manner, *fn15 the statute allows for compliance with its terms in a constitutional manner. See United States v. Cooper, 91 F. Supp. 2d 90, 99 (D.D.C. 2000). The Court will not assume that the Circuit Court of Appeals will decide in a manner inconsistent with the ...