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May 3, 1994


The opinion of the court was delivered by: SYLVIA H. RAMBO

 Defendants are charged with various drug offenses and the January 28, 1992 murder of Juan Carlos-Bacallo. The government has charged Defendants pursuant to 21 U.S.C. § 848 which proscribes involvement in a continuing criminal enterprise and provides for the death penalty for certain murders occurring within the course of such an enterprise. The government is seeking the death penalty for defendant Murray. Trial is scheduled to commence on June 6, 1994. Before the court is defendant Murray's pretrial motion which includes both a facial constitutional challenge to the federal death penalty statute and a challenge to the statute as applied to him. He also seeks discovery in connection with his selective prosecution claim and dismissal of various of the aggravating factors set forth by the government. These issues will be addressed seriatim.

 I. Overview

 Title 21 U.S.C. § 848, which proscribes the act of engaging in a "continuous criminal enterprise," further provides:

Any person engaging in or working in furtherance of a continuing criminal enterprise . . . who intentionally kills or counsels, commands, induces, procures, or causes the intentional killing of an individual and such killing results, shall be sentenced to any term of imprisonment, which shall not be less than twenty years, and which may be up to life imprisonment, or may be sentenced to death . . . .

 21 U.S.C. § 848(e)(1)(A). Defendants confronted with the potential of capital punishment are entitled to notice from the government of its intent to seek the death penalty, and of the statutory and non-statutory aggravating factors it intends to introduce to support that sentence. 21 U.S.C. § 848(h). Further, a defendant is due a separate hearing, before the jury or trial judge, on the sentencing issues. 21 U.S.C. §§ 848(g), (i). At the capital sentencing hearing, the prosecution must present aggravating factors which warrant sentencing the defendant to death. Section 848(n) enumerates twelve different aggravating factors. *fn1" See 21 U.S.C. § 848(n)(1)-(12). To impose the death penalty, the jury first must unanimously find one of the factors numerated at § 848(n)(1), and then at least one factor among §§ 848(n)(2) through (n)(12) beyond a reasonable doubt. 21 U.S.C. § 848(k). The jury, after making these first two findings, may then consider non-statutory aggravating factors submitted by the government. 21 U.S.C. § 848(h)(1)(B). The jury then weighs these competing circumstances to determine the propriety of the death sentence. 21 U.S.C. § 848(k). If the jury is unable to agree on a unanimous death verdict, it returns a life sentence. If a death sentence is imposed, the defendant has a right to appellate review as set forth in § 848(q).

 II. Whether § 848 is Being Unconstitutionally Applied to Defendant Murray in a Racially Discriminatory Manner

 Defendant Murray first contends that 21 U.S.C. § 848 is unconstitutional because it arguably is being applied to him in a racially discriminatory manner. Defendant points to evidence that of the thirty-six capital prosecutions under § 848 so far authorized by the Attorney General, twenty-eight of the defendants, or 78% of the total, have been African-American. (Def. App. 19A.) In contrast, from 1987 to mid 1990, only 16.7% of all § 848 defendants -- both capital and non-capital -- were African-American. (Id. at 25A.) Defendant maintains that the chances that this result is statistically random is less than one in a million. (Id. at 26A.) Defendant argues that these statistics indicate that the decisions to seek the death penalty under § 848 are influenced by impermissible racial factors and that, consequently, the burden should shift to the government to set forth a legitimate reason for the racial disparity in these prosecutions. Defendant's position rests upon both Eighth Amendment and equal protection arguments.

 In response, the government notes that it sought the death penalty against all three Defendants, all of whom are African-American, but that its request was approved only as to defendant Murray, the member of the group who allegedly carried out the murder of Mr. Bacallo. The government also insists that several statutory aggravating factors apply, providing a legitimate basis for the death penalty prosecution against Murray.

 The penultimate case on this issue is McCleskey v. Kemp, 481 U.S. 279, 95 L. Ed. 2d 262, 107 S. Ct. 1756 (1987), which addressed both the equal protection and cruel and unusual punishment arguments which defendant Murray raises here. In McCleskey v. Kemp, 481 U.S. 279, 95 L. Ed. 2d 262, 107 S. Ct. 1756 (1986), a black capital defendant sought habeas relief alleging, inter alia, that Georgia's capital sentencing scheme was being applied in a racially discriminatory manner. The petitioner's primary evidence of the discrimination was an extensive statistical research project, the "Baldus study," that analyzed over 2,000 murder cases in Georgia and concluded that decisions to seek the death penalty were racially skewed. Defendants who had killed white victims received the death penalty in 11% of cases, but those charged with killing blacks only received the death penalty in 1% of the cases. Id. at 286. The study further demonstrated that blacks who killed whites were likely to receive a death sentence in 22% of the cases, whites who killed whites, in 8% of the cases, blacks who killed blacks, 1% of the cases, and whites who killed blacks, 3% of the cases. Id. at 286. Finally, the study found a substantial disparity between the rates at which prosecutors sought the death penalty for black defendants who had killed white victims (70% of the cases) in contrast to black defendants and black victims (15% of the cases) or white defendants and black victims (19% of the cases). Id. at 287.

 The Court first addressed the petitioner's equal protection argument *fn2" based on the statistical evidence that defendants who kill whites are more likely to receive the death penalty, and that black defendants are more likely to receive the death penalty than white defendants. Id. at 291. As a black defendant who had killed a white police officer, both facts were relevant to McCleskey's situation. The Court noted that to succeed on this claim, the petitioner would have to show both discriminatory purpose and a discriminatory effect of the sentencing scheme. Id. at 292. The Court determined that the defendant could not show the former, as applied to him. It explained that the statistics that the petitioner submitted may have shown systemic discrimination, but that they had no direct nexus to his case. The Court acknowledged that in certain actions -- such as jury venire violation and Title VII cases -- courts have permitted statistical evidence to establish the requisite intent. However, the Court concluded that the capital sentencing situation was fundamentally different. Id. For example, the idiosyncracies and uniqueness of individual juries, id. at 294, the inability to question the juries' beliefs behind capital verdicts, the vast number of factors arising from the characteristics of the defendants and offenses, which influence the capital decisions, id., the broad discretion vested in prosecutors, and the difficulty in examining, after the fact, their capital decisions, all counsel against giving much significance to mere statistics. Id. at 296.

 The Court commented:

Implementation of these [criminal] laws necessarily requires discretionary judgments. Because discretion is essential to the criminal justice process, we would demand exceptionally clear proof before we would infer that the discretion has been abused. The unique nature of the decision at issue in this case also counsel against adopting such an inference from the disparities indicated by the Baldus study.

 Id. at 297. Finally, the Court noted that the government had justified its decision to seek the death penalty against McCleskey, since one of the statutory bases for the penalty had been satisfied. Id. The Court thus concluded that the petitioner had failed to make out a meritorious equal protection argument.

 McCleskey is arguably distinguishable from the case at bar. In that case, the bias of juries and of the numerous prosecutors, practicing throughout Georgia over a length of time, were at issue. Here, Defendant does not argue that § 848 capital defendants have been convicted in a racially disparate manner, but that they have been approved as capital defendants in a racially disproportionate manner. Moreover, these capital decisions have been made by a very small number of Attorneys General who authorized federal death penalty prosecutions over a relatively short time period.

 The McCleskey Court also considered the petitioner's argument that the Georgia capital sentencing scheme violated the Eighth Amendment's protection against cruel and unusual punishment. The Court first explained that Georgia's sentencing scheme properly accommodated constitutional principles requiring a limitation on the discretion allotted to the sentencing body to impose the death penalty (via aggravating circumstances) along with room to present mitigating factors. 481 U.S. at 301-06. McCleskey argued that the sentence was arbitrary as applied to him, since it was imposed in an allegedly racially discriminatory manner. Id. at 308. The Court held that the Baldus study did not indicate so significant a possibility of racial prejudice tainting the sentencing scheme as to render Georgia's sentencing scheme unconstitutional. Id. at 313. The Court explained that while the study suggested the existence of sentencing discrepancies based on race, that disparities were inherent in any sentencing scheme and should not be presumed to be based on "invidious" factors. Id. at 312-13.

 In the case at bar, Defendant has presented only evidence such as the type rejected by the McCleskey Court. Defendant's statistics merely show the possibility that race has influenced the government's decisions to seek the death penalty under § 848. This court can not conclude that the statistics offered by Defendant warrant dismissal of the indictment in light of the Supreme Court's ruling in McCleskey.

 III. Whether the Court Should Order Discovery of Documents and Testimony, or an Evidentiary Hearing, About the Decision to Seek the Death Penalty in Order to Pursue a Claim of Racial Discrimination

 A. Standard and Application

 Defendant contends that the decision to seek the death penalty against him is tainted by racially impermissible factors. As discussed above, he seeks dismissal of the indictment on this ground but, in the alternative, requests discovery or an evidentiary hearing to support his racial discrimination argument.

 There is a presumption that prosecutions are commenced in good faith and without a discriminatory motive. Attorney General v. Irish People, Inc., 221 U.S. App. D.C. 406, 684 F.2d 928, 947 (1982), cert. denied sub nom., Irish People, Inc. v. Smith, 459 U.S. 1172, 74 L. Ed. 2d 1015, 103 S. Ct. 817 (1983) (quoting United States v. Falk, 479 F.2d 616, 620 (7th Cir. 1973)). Moreover, prosecutors retain substantial discretion to determine when and whom to prosecute. Wayte v. United States, 470 U.S. 598, 607, 84 L. Ed. 2d 547, 105 S. Ct. 1524 (1985); United States v. Berrigan, 482 F.2d 171, 180 (3d Cir. 1973). The decision to prosecute rests on a wide number of factors:

[Some of the] considerations are the likelihood of conviction, turning on the choice of a strong case to test uncertain law, the degree of criminality, the weight of the evidence, the credibility of witnesses, precedent, policy, the climate of public opinion, timing and the relative gravity of the offense. . . . Still other factors are the relative importance of the offense compared with the competing demands of other cases on the time and resources of investigation, prosection and trial. . . . All of these considerations point to the wisdom of vesting broad discretion in the United States Attorney.

 Nonetheless, the prosecutor's discretion is not unlimited. Id. at 608. For example, the choice of whom to prosecute may not be based on impermissible factors, such as race or religion. Oyler v. Boles, 368 U.S. 448, 456, 7 L. Ed. 2d 446, 82 S. Ct. 501 (1962). Defendant argues that an impermissible factor -- race -- has tainted the government's decision to seek the death penalty against him. To make out a prima facie case of selective prosecution, Defendant bears the burden of proving two elements:

(1) that, while others similarly situated have not generally been proceeded against because of conduct of the type forming the basis of the charge against him, he has been singled out for prosecution, and (2) that the government's discriminatory selection of him for prosecution has been invidious or in bad faith, i.e., based upon such impermissible considerations as race, religion, or the desire to prevent his exercise of constitutional rights.

 United States v. Berrios, 501 F.2d 1207, 1211 (2d Cir. 1974). See also Attorney General, 684 F.2d at 946-47; United States v. Eklund, 733 F.2d 1287, 1290 (8th Cir. 1984), cert. denied, 471 U.S. 1003, 85 L. Ed. 2d 158, 105 S. Ct. 1864 (1985) (citing United States v. Catlett, 584 F.2d 864, 866 (8th Cir. 1978)); United States v. Diggs, 198 U.S. App. D.C. 255, 613 F.2d 988, 1003 (D.C. Cir. 1979), cert. denied, 446 U.S. 982, 64 L. Ed. 2d 838, 100 S. Ct. 2961 (1980). In other words, the defendant must show both a discriminatory effect and discriminatory purpose. Wayte, 470 U.S. at 608. This is a heavy burden. Eklund, 733 F.2d at 1290.

 The standard for obtaining an evidentiary hearing on the matter is somewhat lower:

A hearing is necessitated only when the motion alleges sufficient facts to take the question past the frivolous state, United States v. Erne, 576 F.2d 212 (9th Cir. 1978), United States v. Oaks, 508 F.2d 1403, 1404 (9th Cir. 1974), and raises a reasonable doubt as to the prosecutor's purpose. United States v. Peskin, 527 F.2d 71, 86 (7th Cir. 1975); United States v. Falk, 479 F.2d 616, 620-21 (7th Cir. 1973) (en banc).

 Eklund, 733 F.2d at 1290-1291.

 The standard for discovery is even lower. The defendant must merely make out "a colorable entitlement to the defense of discriminatory prosecutions," Berrigan, 482 F.2d at 181 (citations omitted); United States v. Murdock, 548 F.2d 599, 600 (5th Cir. 1977); United States v. Cammisano, 546 F.2d 238, 241 (8th Cir. 1976); United States v. Berrios, 501 F.2d 1207, 1211 (2d Cir. 1974); Attorney General of the U.S., 684 F.2d at 947; United States v. Heidecke, 900 F.2d 1155, 1158 (7th Cir. 1990), or come forward with "some evidence tending to show the existence of the essential elements of the defense," United States v. Schmucker, 815 F.2d 413, 418 (6th Cir. 1987) (quoting United States v. Mitchell, 778 F.2d 1271, 1277 (7th Cir. 1985) and Berrios, 501 F.2d 1207 at 1211), or "take the question past the frivolous state." United States v. Hazel, 696 F.2d 473, 475 (6th Cir. 1983) (quoting United States v. Larson, 612 F.2d 1301, 1304-05 (8th Cir. 1980)); United States v. Erne, 576 F.2d 212, 216 (9th Cir. 1978). As Justice Marshall has remarked,

This standard . . . is consistent with our exhortation that "the need to develop all relevant facts in the adversary system is both fundamental and comprehensive. The ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts." United States v. Nixon, 418 U.S. [683,] 709, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 [(1974)]. It also recognizes that most of the relevant proof in selective prosecution cases will normally be in the Government's hands. Cf. Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 473, 7 L. Ed. 2d 458, 82 S. Ct. 486 (1962). At the same time, the standard adequately protects the Government from attempts by the defense to seek discovery as a means of harassment or of delay. See United States v. Murdock, [548 F.2d 599, 600 (5th Cir. 1977)].

 Wayte, 470 U.S. at 624 (Marshall, J. dissenting).

 This burden requires that the defendant show a colorable claim on both elements of the selective prosecution defense. Attorney General of the U.S., 684 F.2d at 947-8. Moreover, the defendant must demonstrate that the materials sought by discovery would be probative of the elements for selective prosecution. Berrios, 501 F.2d at 1211-12. However, the defense can not be used to commence a fishing expedition or to obtain discovery otherwise irrelevant to the action. If this were permitted, "the effect could be to encourage use of the defense of selective prosecution, however baseless, as a means of obtaining discovery to which the defense would not otherwise be entitled." Id. at 1211. Finally, the decision whether or not to order discovery, or an evidentiary hearing, lies substantially within the trial court's discretion. Id. at 1212.

 Defendant contends that he has come forward with sufficient evidence to meet the standard required for discovery. As previously discussed, Defendant points to evidence that from 1987 to 1990, 16.7% of all defendants convicted pursuant to § 848 have been black. (Def. App. 25A.) However, of the 36 capital defendants charged under the same statute, 78% have been black (while 11% have been white). (Id. at 19A.) Further, Defendant has submitted evidence that this disparity has only a one in one million chance of being statistically random. (Id. at 26A.)

 As explained above, Defendant must first show a colorable claim that he was singly selected for prosecution. To do so, he would have to make a threshold showing that others -- for example, white defendants -- who have been eligible for the death penalty, because of the applicability of aggravating circumstances set out in § 848, have not faced capital prosecution. Defendant has not shown this. However, Defendant may not be able to establish this if the information needed is within the sole possession of the government. The number of individuals from whom the government has sought death penalty approval from the Attorney General very likely is not publicly available, and probably requires examination of government files.

 What the defense has shown is that compared with one group of defendants -- all of those charged under § 848 -- of whom some may be eligible for the death penalty, black defendants have been disproportionately subject to capital prosecutions. This may indicate that white § 848 defendants otherwise eligible for the death penalty have not been subject to death penalty prosecutions, which could show that Defendant Murray has been selectively chosen for this punishment.

 Defendant must also make a colorable showing that the reason for his selective prosecution is an impermissible factor -- here, race. This inquiry is, in this situation, intertwined with the first, since the statistical disparity that the defense has presented indicates both that Defendant may have been singled out for the death penalty and that such a decision was motivated by race. However, this prong requires some evidence of intent to racially discriminate.

 Courts have disagreed about the import of disparate impact in an intent inquiry. At least one appellate court has reasoned that disproportionate impact on blacks as compared with whites may evidence the intent required under the subject inquiry.

 The Eleventh Circuit has stated:

In deciding if a defendant has established selective prosecution, a court must undertake "a sensitive inquiry into such circumstantial and direct evidence of intent as may be available." Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 266, 50 L. Ed. 2d 450, 97 S. Ct. 555 (1977). "Circumstantial evidence of invidious intent may include proof of disproportionate impact." Batson v. Kentucky, [476 U.S. 79,] 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986) (citing Washington v. Davis, 426 U.S. 229, 242, 48 L. Ed. 2d 597, 96 S. Ct. 2040 (1976)). Indeed, under some circumstances proof of discriminatory impact "may for all practical purposes demonstrate unconstitutionality because in various circumstances the discrimination is very difficult to explain on nonracial grounds." Washington, 426 U.S. at 242.

 Gordon, 817 F.2d 1538, 1541 (parallel citations omitted). Nonetheless, as discussed above, the Court in McCleskey held that statistical evidence of racial disparity is insufficient to establish an equal protection claim in a selective prosecution case such as this. McCleskey, 481 U.S. at 294. Nonetheless, McCleskey did not address the significance of disparate impact on the context of a discovery request. Because of the more lax standard under which a discovery request is examined, this court concludes that Defendant's evidence of disparate impact satisfies the intent prong.

 Therefore, the court will permit the discovery that Defendant seeks. The court recognizes that this result conflicts with that in United States v. Perry, Crim. No. 92-474 (D.D.C. Jan. 11, 1994), in which a similar request was made to the government but rejected by that court. Id. at 17-18. Nonetheless, the court believes that the unique statute at issue warrants this result. Section 848 explicitly indicates a concern that it not be applied in a racially discriminatory manner, since it requires the jury to return to the court a certificate verifying that, inter alia, neither the defendant's nor victim's race influenced its sentencing decision. 21 U.S.C. § 848(o)(1). Moreover, the statute mandates that the Comptroller General conduct a study of the influence of race in capital sentencing determinations. 21 U.S.C. § 848(o)(1). These provisions indicate a Congressional concern about the very real possibility that race is a key factor in whether or not a particular defendant receives the death penalty. This court can only conclude that discovery on this issue, following the showing that Defendant has already made, comports with legislative concern about racially disparate capital prosecutions.

 However, the court notes it will not permit this discovery to serve as a delaying tactic so that the trial can once again be continued. Rather, the court will allow the defense a short amount of time to obtain the discovery it seeks, and admonishes both sides to be as ...

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