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United States v. Gooch

December 20, 2006


The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge


Larry Gooch faces a possible death sentence for the alleged murders of Yolanda Miller and Calvin Cooper, which are Counts 126 and 128 of the Second Superceding Indictment ("Indictment") filed against him and his various co-defendants. Mr. Gooch, through counsel, has filed a comprehensive memorandum challenging the constitutionality of the Federal Death Penalty Act of 1994 ("FDPA"), 18 U.S.C. §§ 3591-3598, both facially and as applied to him. The Court has considered these arguments most carefully; while some cause greater pause than others, they are ultimately without merit, with two exceptions: the Court will order the Government to elaborate on the nature of its victim impact information, and will limit such information to the family and friends of the victims of the alleged capital murders.


According to the Government, its evidence will show that Yolanda Miller, age 32, and Calvin Cooper, age 40, were romantically involved and shared an addiction to phencyclidine ("PCP"), which they used and sold in the area of 18th and M Streets NE in Washington, D.C. On Friday, February 21, 2003, at approximately 12:26 a.m., a Metropolitan Police Department officer was patrolling on foot in the 1200 block of 17th Street NE when shots rang out. The officer ran in the direction of the sounds and saw Mr. Cooper stagger out of an alley off 17th Street. Mr. Cooper collapsed on the sidewalk within sight of the officer and died at the scene.

The officer saw a second man emerge from the alley and flee. This second man was not apprehended, but a handgun, specifically, a Taurus 9 mm semi-automatic pistol, was recovered along the path of his flight. Back in the alley, Mobile Crime Scene officers found four 9 mm shell casings, which ballistics testing later linked to the recovered weapon.

Nine hours later, after daybreak, a citizen reported the discovery of a body at the rear of a home off the same alley. When summoned, officers learned that the occupants of the home had backed their car out of a driveway and discovered a body in the snow drift near where the car had been. Police determined the body to be that of Yolanda Miller. Five 9 mm shell casings found beside her body were matched to the recovered gun, as were two bullets removed from her body.

Additional investigation allegedly revealed that Mr. Cooper and Ms. Miller were members of a drug-trafficking gang known as the M Street Crew.*fn1 According to the Government, its evidence will show that Ms. Miller was erroneously suspected of cooperating with police and that she and Mr. Cooper were suspected of stealing from other Crew members' drug stashes. Mr. Gooch is alleged to be the shooter, to have acknowledged his role in the crime, and to have said that the deaths were intended to "punish them both." Counts 126 and 128 of the Indictment charge that he shot Mr. Cooper and Ms. Miller to maintain and increase his position in a racketeering enterprise, and that the murders constitute violent crimes in aid of racketeering ("VICAR") activity in violation of 18 U.S.C. § 1959(a)(1).


Imposition of a death sentence is a matter of grave constitutional concern. The Eighth Amendment prohibits cruel and unusual punishment and is violated when a death sentence is recommended by a jury whose discretion is not "suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action." Zant v. Stephens, 462 U.S. 862, 874 (1983) (quoting Gregg v. Georgia, 428 U.S. 153, 189 (1976) (plurality opinion)). The absence of suitable directions caused the Supreme Court to strike down Georgia's death penalty statute in Furman v. Georgia, 408 U.S. 238 (1972), invalidating by implication similarly unguided regimes throughout the nation.

Reacting to Furman, a majority of states enacted new capital punishment schemes. On July 2, 1976, the Supreme Court issued opinions in five cases addressing these new statutes. The Court concluded that those states that had carefully tailored the process of selecting those persons who might be sentenced to die, while providing the sentencing body with authority to consider the unique characteristics of each defendant and the circumstances of his offense, had satisfied Furman's constitutional concerns. Gregg v. Georgia, 428 U.S. 153 (1976); Proffitt v. Florida, 428 U.S. 242 (1976); Jurek v. Texas, 428 U.S. 262 (1976). The Court struck down those schemes that prescribed automatic death sentences for particular classes of convicted murderers without requiring "particularized consideration of relevant aspects of the character and record of each convicted defendant before the imposition upon him of a sentence of death." Woodson v. North Carolina, 428 U.S. 280, 303 (1976) (plurality opinion); see also Roberts v. Louisiana, 428 U.S. 325 (1976).

Guided by these and later decisions, in 1994 Congress adopted and President Clinton signed the FDPA. In capital prosecutions under the FDPA, as under analogous state regimes, a death penalty trial is typically divided into two major phases: the guilt phase and the penalty phase. Of course, if the defendant is acquitted of the charge for which the Government seeks death, the question of sentencing never reaches the jury. If, however, the jury finds the defendant guilty of the capital crime, it must then move to the penalty phase.

The penalty phase itself has two parts: the jury first decides whether the defendant is eligible for the death penalty, and then it selects the appropriate punishment. During the eligibility phase, the jury must make two preliminary findings: that the Government has proved, beyond a reasonable doubt, that the defendant possessed one of four requisite "intents" at the time of the crime, 18 U.S.C. § 3591(a)(2), and that the Government has proved, beyond a reasonable doubt, that one or more of the aggravating factors enumerated in the statute is present, id. § 3592(c)(1)-(16). These two findings must be unanimous. If the jury does not agree unanimously that the Government proved both intent and at least one statutory aggravating factor beyond a reasonable doubt, its work is done; the defendant cannot be sentenced to death, and the Court must impose "a sentence other than death authorized by law." Id. § 3593(d). In this case, in the event that Mr. Gooch has been convicted on Counts 126 and 128, such sentence would necessarily be life imprisonment. See 18 U.S.C. § 1959(a)(1).

If, however, the jury unanimously agrees that these "gateway" facts - intent and at least one statutory aggravating factor - have been proved beyond a reasonable doubt, the defendant becomes eligible for a death sentence, and the jury moves to the selection of either death or incarceration. In making this decision, the jury considers additional, non-statutory aggravating factors for which the Government has provided notice, id. § 3592(c), and mitigating factors presented by the defendant.*fn2 Factors in mitigation need be established by the defendant by only a preponderance of the evidence, not beyond a reasonable doubt, id. § 3593(c), and need not be found unanimously; any juror who finds the existence of a mitigating factor may consider that factor in his deliberations, id. § 3593(d); Jones, 527 U.S. at 377.

Once the jury has completed its fact finding, it "shall consider 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." 18 U.S.C. §3593(e); Jones, 527 U.S. at 377.*fn3 Unless the jury unanimously recommends death, the court must impose a lesser sentence. Should the jury recommend death, that judgment is binding upon the court. 18 U.S.C. § 3594.

In this case, pursuant to its obligations under 18 U.S.C. § 3593(a), the Government filed a Notice of Intent to Seek the Death Penalty against Mr. Gooch on October 19, 2005 [Dkt. #378]. The Notice ascribed four potential mental states to Mr. Gooch's alleged crimes, asserting that he: (1) intentionally killed Mr. Cooper and Ms. Miller; (2) intentionally inflicted serious bodily injury that resulted in their deaths; (3) intentionally participated in acts, contemplating that the lives of people would be taken or intending that lethal force would be used, and Mr. Cooper and Ms. Miller died as a direct result; and (4) intentionally and specifically engaged in acts of violence, knowing that the acts created grave risks of death, and his actions constituted a reckless disregard for human life and Mr. Cooper and Ms. Miller died as a direct result. See 18 U.S.C. § 3591(a)(2).

The Notice further identified one statutory aggravating factor: "The defendant intentionally killed more than one person in a single criminal episode." 18 U.S.C. § 3592(c)(16). It also listed three non-statutory aggravating factors: (1) contemporaneous convictions for multiple murders and other serious acts of violence (which assumes, of course, that Mr. Gooch will be found guilty of such at trial); (2) future dangerousness, as evidenced by a continuing pattern of violence, low rehabilitative potential, and membership in a criminal street gang; and (3) the impact of the murders on the victims and their families.


Mr. Gooch raises a host of issues, broadly segregated into facial and as-applied challenges, which the Court will address seriatim.

A. Facial Challenges to the FDPA

1. Does the FDPA Adequately Narrow the Class of Persons Eligible for the Death Penalty as Required by the Eighth Amendment?

"[W]here discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action." Zant, 462 U.S. at 874 (quoting Gregg, 428 U.S. at 189 (plurality opinion). The jury's discretion may suitably be curbed in two ways: "The 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." Lowenfield v. Phelps, 484 U.S. 231, 246 (1988); see also Gregg, 428 U.S. at 196 (plurality opinion). The FDPA, like most state capital punishment schemes, takes the latter tack, specifying a limited number of aggravating circumstances that make the death penalty appropriate. Such statutory aggravating circumstances 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, 462 U.S. at 877.

Mr. Gooch argues that, on its face, the FDPA fails to narrow the broad category of defendants convicted of intentional murder to a smaller class of murderers subject to capital punishment. He suggests that the mental state finding required by § 3591(a)(2) "does not narrow the class of persons eligible for the death sentence" and is merely "a congressional attempt to comply with the Supreme Court's decision[s] by adding an 'intent' element." Gooch Mem. at 22. He also asserts that the list of statutory aggravating factors in § 3592 "is so broad as to apply to essentially any of the vast range of federal offenses where death is provided by statute." Id. Accordingly, he submits, the FDPA "is unconstitutional on its face requiring the striking of the Notice of Intent to Seek the Death Penalty." Id.

The Court cannot agree. As to intent, the Supreme Court has instructed that the death penalty may be imposed only on those who possess a sufficiently culpable mental state. Edmund v. Florida, 458 U.S. 782, 797 (1982) (holding that the Eighth Amendment bars imposition of the death penalty upon a felony-murder defendant absent a finding that he personally killed, attempted to kill, or intended that a killing take place or that lethal force would be employed); Tison v. Arizona, 481 U.S. 137, 158 (1986) (qualifying Edmund and holding that major participation in the felony offense, combined with reckless indifference to human life, is sufficient). It is unsurprising, then, that in the FDPA Congress provided for a gateway intent factor that limits the universe of defendants otherwise eligible for the death penalty. The requisite intent must meet one of four degrees of culpability: (1) intentional killing; (2) intentional infliction of serious bodily injury leading to death; (3) intentional acts contemplating that life would be taken or intending that lethal force would be used, leading to death; or (4) intentional acts of violence, with knowledge of a grave risk of death and with reckless disregard for human life, leading to death. By so limiting the range of mental states that qualifies a murder defendant for capital punishment, the intent factor at once satisfies the mandates of Edmund and Tison and narrows the field of death penalty candidates, ensuring that only those who act with direct intention to take a life or who use violence with reckless disregard of its consequences are eligible for a capital sentence. See United States v. Flores, 63 F.3d 1342, 1371-72 (5th Cir. 1995); United States v. Cooper, 91 F. Supp. 2d 90, 96-97 (D.D.C. 2000); United States v. Kaczynski, No. 96-259, 1997 WL 716487, at *17 (E.D. Cal. Nov. 7, 1997); United States v. Nguyen, 328 F. Supp. 1525, 1539 (D. Kan. 1996).

As to the statutory aggravating factors, Mr. Gooch's characterization of the FDPA as encompassing essentially all federal capital crimes, no matter the circumstances, is unreasonable. His argument appears to be that each individual aggravating factor is so broad that, taken together, the factors reach all federal capital crimes. He homes in on factors (c)(1), (c)(8), and (c)(16) as unusually broad, without addressing the others. Factor (c)(1) covers homicide that occurs during the commission of twenty other enumerated federal crimes, including the destruction of various transportation equipment and facilities, destruction of property using explosives, hostage taking, terrorism, and treason. Factor (c)(8) covers homicide committed for pecuniary gain. Factor (c)(16) covers multiple homicides in a single criminal episode. Although Mr. Gooch suggests that these factors "apply to a huge spectrum of killings," Gooch Mem. at 22, this proposition is hardly self-evident, and he offers no empirical data supporting it. Cf. United States v. Mikos, No. 02-137, 2003 WL 22110948, at *20 (N.D. Ill. Sept. 11, 2003) (discussing statistical evidence). The Court is satisfied that, as a whole, the FDPA's statutory aggravating factors perform their required function; that is, they apply "not . . . to every defendant convicted of a murder" but "only to a subclass of defendants convicted of murder," Tuilaepa v. California, 512 U.S. 967, 972 (1994), and thereby provide a principled way to distinguish those deserving of death from those who are not. They elevate an offense of murder above the single fact of death to a truly "aggravated" level. Mr. Gooch's facial challenge therefore fails.*fn4 The weight of authority is in accord with this conclusion.*fn5

2. Does the FDPA Meet the Requirements of the Sixth Amendment?

In federal sentencing, the Sixth Amendment requires that "any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). How such a fact is labeled - for example, as an "element" of the crime or a "sentencing factor" - is immaterial; when "an increase in a defendant's authorized punishment [is] contingent on the finding of a fact, that fact . . . must be found by the jury beyond a reasonable doubt." Ring v. Arizona, 536 U.S. 584, 602 (2002). This rule applies with equal force to the factfinding necessary for imposition of the death penalty, including the determination whether an aggravating factor exists. Id. at 609.

To recommend a sentence of death under the FDPA, the jury must: (1) determine that the defendant acted with the requisite intent; (2) determine that at least one statutory aggravating factor exists; and, in view of all the relevant information received in aggravation or mitigation, (3) "consider 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." 18 U.S.C. § 3593(e). Each of these decisions must be unanimous; the first two must, by the FDPA's own terms, be found beyond a reasonable doubt. Id. §§ 3591(a)(2), 3593(c). Mr. Gooch argues that, under Apprendi and its progeny, the third consideration amounts to a predicate "fact" necessary to expose a defendant to death, and must therefore be proved by the Government beyond a reasonable doubt.

Although this argument has yet to find traction in the federal courts, Mr. Gooch argues that it finds support in four state court decisions. Whitfield v. State, 107 S.W.2d 253, 259 (Mo. 2003); Woldt v. People, 64 P.3d 256, 265 (Colo. 2003); Johnson v. State, 59 P.3d 450, 460 (Nev. 2002); State v. Ring, 65 P.3d 915, 943 (Ariz. 2003). The Missouri Supreme Court's decision in Whitfield is illustrative. In that case, the Missouri court rejected the state's contention that a similar "weighing" step "merely calls for the jury to offer its subjective and discretionary opinion rather than to make a factual finding." Id. at 259. The scheme at issue consisted of a four-step process that required the jury to find: first, the existence of a statutory aggravating factor; second, that all evidence in aggravation was sufficient to warrant death; third, that any evidence of mitigation was insufficient to outweigh the evidence in aggravation; and fourth, that "under all of the circumstances" a sentence of death was appropriate. See id. at 258 (quoting Mo. Rev. Stat. § 565.030.4 (1994)).

In Whitfield, although the state agreed that the first step constituted a factual finding, it argued that steps two and three called for the exercise of discretion. The court disagreed, finding that the determinations were factual ones, in part because the statute "required . . . a case-by-case factual determination based on all the aggravating facts the trier of fact finds are present in the case." Id. at 259. As construed by the court, the scheme's first three steps instruct the jury "to find whether there are mitigating and aggravating circumstances and to weigh them to decide whether the defendant is eligible for the death penalty." Id. at 261 (emphasis added). It is "not until th[e] fourth step that the trier of fact is given discretion . . . to give a life sentence even if . . . the aggravators and mitigators would qualify defendant for imposition of the death penalty." Id. By analogy, Mr. Gooch argues that the third and final step under the FDPA, under which the jury weighs the aggravating circumstances against the mitigating ones, is likewise a factual finding requiring application of the reasonable doubt standard.

The Court disagrees. The final weighing step under the FDPA does not "increase[] the penalty for a crime beyond the prescribed statutory maximum." Apprendi, 530 U.S. at 490. Unlike the Missouri scheme, in which the weighing steps are predicates to a defendant's eligibility for the death sentence, under the FDPA the weighing takes place after the jury has confirmed the defendant's death eligibility by finding the requisite intent and the presence of one or more statutory aggravating factors. See Jones, 527 U.S. at 377 ("Once petitioner became death-eligible, the jury had to decide whether he should receive a death sentence."). It is at that point that a capital defendant's statutory maximum sentence is established. Subsequent findings as to non-statutory aggravating factors - which, in any event, are made by a jury beyond a reasonable doubt - do not increase the range of possible punishment; indeed, under the FDPA, the existence of a single statutory aggravating factor is a sufficient basis for a death sentence. See 18 U.S.C. § 3593(e) (instructing the jury to consider, "in the absence of a mitigating factor, whether the aggravating factor . . . alone [is] sufficient to justify a sentence of death"); United States v. Purkey, 428 F.3d 738, 749 (8th Cir. 2005) ("Non-statutory aggravating factors do not increase the maximum punishment to which a defendant is subject.").

Moreover, the weighing envisioned by the FDPA is less a factual determination than an exercise of judgment. The statute provides that, at this final step, the jury

shall consider whether all the aggravating . . . factors found to exist sufficiently outweigh all the mitigating . . . factors found to exist to justify a sentence of death . . . . Based upon this consideration, the jury by unanimous vote . . . shall recommend whether the defendant should be sentenced to death, to life imprisonment without possibility of release or some other lesser sentence.

18 U.S.C. § 3593(e). This framework does not introduce another factfinding step into the calculus; it simply "channel[s] the jury's discretion by enunciating specific standards to guide the jury's consideration of aggravating and mitigating circumstances," Zant, 462 U.S. at 875, thus ensuring that the jury's recommendation is not the outcome of arbitrary thinking. Such directions, at this final stage, are not constitutionally required. In fact,

[o]nce the jury finds that the defendant falls within the legislatively defined category of persons eligible for the death penalty, [it] then is free to consider a myriad of factors to determine whether death is the appropriate punishment. Indeed, the sentencer may be given unbridled discretion in determining whether the death penalty should be imposed after it has found that the defendant is a member of the class made eligible for that penalty.

Tuilaepa, 512 U.S. at 979 (citations and internal quotation marks omitted). That the FDPA guides, in this limited way, the ultimate weighing of aggravating and mitigating factors does not transform the jury's exercise of judgment into a finding of fact.

Should the jury reach the point of weighing aggravating and mitigating factors, it will have already found the gateway factors to exist and, thus, established the statutory maximum sentence. A wide range of relevant information will then be available to it, including any "other factors 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)(8); see also Gregg, 428 U.S. at 204 (plurality opinion) ("We think it desirable for the jury to have as much information before it as possible when it makes the sentencing decision."). The life or death decision having been committed to the jury, the prescribed weighing is simply the mechanism by which it exercises its discretion to select an appropriate sentence within that range. See Purkey, 428 F.3d at 750 ("[I]t makes no sense to speak of the weighing process . . . as an elemental fact . . . . [I]t is . . . the lens through which the jury must focus the facts that it has found . . . ."). In this sense, the jury's role is much like that of a sentencing judge in a non-capital case. There, the sentencing range is bounded on the upper end, and sometimes the lower end, by statute, and the judge exercises her discretion within those confines, guided by all relevant factors, with an eye toward selecting a sentence that is "sufficient, but not greater than necessary" to achieve the goals of federal sentencing. 18 U.S.C. § 3553(a). This is not a determination of fact but a judgment made in light of facts.

Accordingly, the Court concludes that the jury's weighing of aggravating and mitigating circumstances pursuant to 18 U.S.C. § 3593(e) does not constitute a factual finding that elevates the penalty beyond the statutory maximum sentence and, thus, is not subject to the reasonable doubt standard. See Apprendi, 530 U.S. at 490.

3. Do the Relaxed Evidentiary Standards at the Penalty Hearing Render Any Findings Unreliable and, Therefore, Unconstitutional?

The penalty hearing is, for all intents and purposes, a separate trial at which both sides may call witnesses and present "information" concerning "any matter relevant to the sentence." 18 U.S.C. § 3593(c). Information may be presented "regardless of its admissibility under the rules 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." Id.*fn6 Mr. Gooch assails this looser evidentiary standard as failing to ensure the "heightened 'need for reliability'" required in capital cases. See Caldwell v. Mississippi, 472 U.S. 320, 323 (1985) (quoting Woodson, 428 U.S. at 305 (plurality opinion)). He describes "an evidentiary free-for-all" that "would allow a jury to sentence a defendant to death without permitting him to confront the witnesses against him and without even the presence of circumstantial guarantees of accuracy embodied in the hearsay rules." Gooch Mem. at 27.

While the FDPA dispenses with the Federal Rules of Evidence during the penalty phase, it will hardly yield the tumult that Mr. Gooch fears. Not just any information is permitted; admissible information must, at a minimum, concern a "matter relevant to the sentence." 18 U.S.C. § 3593(c) (emphasis added).*fn7 Indeed, the FDPA's analog to the traditional Rule 403 balancing test in fact strengthens the Court's gatekeeping role, as it permits the exclusion of information whose probative value is merely "outweighed" - not "substantially outweighed" - by prejudicial concerns. Compare 18 U.S.C. § 3593(c) with Fed. R. Evid. 403; United States v. Jones, 132 F.3d 232, 241 n.7 (5th Cir. 1998), aff'd, 527 U.S. 373 (1999); United States v. Regan, 221 F. Supp. 2d 672, 682 (E.D. Va. 2002). Thus, there is no merit to the contention that the FDPA impinges on a defendant's Confrontation Clause or other constitutional rights. The FDPA "expressly supplants only the rules of evidence, not constitutional standards." United States v. Johnson, 239 F. Supp. 2d 924, 946 (N.D. Iowa 2003). "[I]t remains for the court, in the exercise of its judgment and discretion, to ensure that unconstitutional evidence otherwise admissible under applicable evidentiary rules is excluded from trial. The FDPA does not eliminate this function of the judge as gatekeeper of constitutionally permissible evidence; nor does it alter or eliminate the constitutional baseline for the admissibility of evidence in a criminal trial." United States v. Fell, 360 F.3d 135, 145 (2d Cir. 2004).

This Court agrees that the evidentiary standard prescribed by the FDPA for the penalty phase of a capital trial is consistent with constitutional requirements. It places before the jury "all possible relevant information about the individual defendant whose fate it must determine," California v. Ramos, 463 U.S. 992, 1006 (1983) (quoting Jurek, 428 U.S. at 276 (plurality opinion)), and "helps to accomplish the individualized sentencing" the Constitution requires, Jones, 132 F.3d at 242.

4. Does the FDPA Fail to Provide for Meaningful Appellate Review?

The FDPA's appellate review provisions provide that, upon a condemned defendant's filing of a timely notice of appeal, the Court of Appeals "shall review the entire record in the case" and "address all substantive and procedural issues raised on the appeal." 18 U.S.C. § 3595. The Court of Appeals is directed to remand the case for reconsideration when:

(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)(2).

Mr. Gooch argues that because the FDPA does not provide for mandatory, automatic appellate review, it neglects to "'ensur[e] that the death penalty is not imposed arbitrarily or irrationally.'" Gooch Mem. at 29-30 (quoting Parker v. Dugger, 498 U.S. 308, 321 (1990)). Specifically, he objects to the FDPA's provision for appellate review "if - and only if - a capital defendant exercises his right and files a timely notice of appeal." Id. at 30. Requiring a condemned defendant to file a notice of appeal within ten days of the entry of judgment, at a time when he may be depressed or suicidal, he contends, risks extinguishing prematurely any right to a meaningful appeal and is "incompatible with 'evolving stand[ards] of decency that mark the progress of a maturing society.'" Id. at 31 (quoting Trop v. Dulles, 356 U.S. 86, 100 (1958)).

The Supreme Court has "emphasized repeatedly the crucial role of meaningful appellate review in ensuring that the death penalty is not imposed arbitrarily or irrationally." Parker, 498 U.S. at 321 (citing Clemons v. Mississippi, 494 U.S. 738, 749 (1990)). Although the Court has never definitively specified the components of such review, it has explained that, in the Eighth Amendment context, "the primary concern . . . [is] that the sentencing decision be based on the facts and circumstances of the defendant, his background, and his crime." Clemons, 494 U.S. at 748. As such, "[i]n scrutinizing death penalty procedures . . . the Court has emphasized the 'twin objectives' of 'measured consistent application and fairness to the accused,'" id. (quoting Eddings v. Oklahoma, 455 U.S. 104, 110-11 (1982)), and the importance of "promot[ing] reliability and consistency" in capital sentencing, Clemons, 494 U.S. at 749. The FDPA directs the Court of Appeals to review the entire record, with particular attention to whether the requisite statutory aggravating factor was adequately proved; whether passion, prejudice, or other arbitrariness infected the sentence; and whether other nonharmless legal error warrants reversal. 18 U.S.C. § 3595(c)(2). Mr. Gooch's chief complaint is that this review is available only to defendants who seek it.

Although most states provide for the automatic appeal of death sentences, Pulley, 465 U.S. at 44, and the Supreme Court has certainly looked with favor on such procedural protections, Gregg, 428 U.S. at 198 (characterizing an automatic appeal as an "important additional safeguard"), it has never held that automatic appeals are constitutionally required, Cooper, 91 F. Supp. 2d at 99. Much to the contrary, criminal defendants are permitted to waive constitutional safeguards in a number of weighty contexts; so long as a waiver is knowing and voluntary, it is accorded respect. See Iowa v. Tovar, 541 U.S. 77, 81 (2004); Jones v. Barnes, 463 U.S. 745, 751 (1983). While, to be sure, "death is different," Gregg, 428 U.S. at 188 (plurality opinion), the rationale Mr. Gooch offers for requiring automatic appeals - that a defendant might abandon his appellate rights during a temporary bout of depression or suicidal ideation - is nothing more than unsupported speculation about hypothetical situations, and is no basis to invalidate the statute. These fears can be assuaged in an individual case, should they materialize, by careful scrutiny of a defendant's competence to waive his appellate rights. See United States v. McVeigh, 944 F. Supp. 1478, 1484 (D. Colo. 1996).*fn8 Moreover, a capital defendant is afforded at least two counsel, 18 U.S.C. § 3005, who are obligated to advise a defendant on his appellate rights when "there is reason to think . . . that a rational defendant would want to appeal." Roe v. Flores-Ortega, 528 U.S. 470, 480 (2000). And filing a notice of appeal is a simple, ministerial task, easily undertaken by counsel on a defendant's behalf. Accordingly, the Court finds the appellate review provisions of the FDPA constitutionally sufficient, notwithstanding that appeal is not automatic.

Mr. Gooch next argues that the FDPA impermissibly limits the scope of appellate review by interfering with the operation of the plain error doctrine. Specifically, he interprets 18 U.S.C. § 3595(c)(2)(C), which mandates remand when "the proceedings involved any other legal error requiring reversal of the sentence that was properly preserved for appeal under the rules of criminal procedure," to mean that unpreserved error, even when plain, will go unremedied unless it warrants remand under § 3595(c)(2)(A) or § 3595(c)(2)(B). Gooch Mem. at 31-32.

This argument is foreclosed by the Supreme Court's opinion in Jones - its first, in fact, to review a death sentence imposed under the FDPA. In Jones, the defendant assigned error to a penalty phase jury instruction to which he did not object at trial. The Court explained that, although Federal Rule of Criminal Procedure 30, which requires the parties to raise any objections to jury instructions before the jury retires to deliberate, "could be read literally to bar any review of petitioner's claims of error, our decisions have held that an appellate court may conduct a limited review for plain error." Jones, 527 U.S. at 388.*fn9 Thus, the failure to object at trial did not bar plain error review, despite the text of Rule 30. Unsatisfied, the defendant pressed on, arguing that the jury instruction should be reviewed for arbitrariness under § 3595(c)(2)(A), which, he contended, was exempt from plain error review. The Supreme Court rejected this reading as "untenable," stating that "[t]he statute does not explicitly announce an exception to plain-error review, and a congressional intent to create such an exception cannot be inferred from the overall scheme." Jones, 527 U.S. at 388-89. Noting that § 3595(c)(2)(C) requires errors to be "properly preserved," the Court read this "timely objection requirement" to apply to § 3595(c)(2) as a whole, and reviewed the jury instruction for plain error. Id. at 389. Thus, although the text of § 3595(c)(2)(C) might seem, at first blush, to bar even plain error review of unpreserved error, Jones clarifies that unpreserved error falling within any subsection of § 3595(c)(2) is subject to plain error review.

Moreover, similar language in the Anti-Drug Abuse Act ("ADAA"), 21 U.S.C. § 848(q)(3), has been found sufficiently broad to "provide for conventional appellate review, including review of all errors of law." United States v. Pretlow, 779 F. Supp. 758, 764 (D.N.J. 1991); see also United States v. Walker, 910 F. Supp. 837, 845 (N.D.N.Y. 1995) (concluding that "the phrase 'any other arbitrary factor' is broad enough to encompass the essential elements of meaningful appellate review"); United States v. Chandler, 996 F.2d 1073, 1097 (11th Cir. 1993) ...

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