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U.S. v. LLERA PLAZA

December 21, 2001

UNITED STATES OF AMERICA
V.
CARLOS IVAN LLERA PLAZA, WILFREDO MARTINEZ ACOSTA AND VICTOR RODRIGUEZ, DEFENDANTS.



The opinion of the court was delivered by: Pollak, District Judge.

  OPINION

Defendants Carlos Ivan Llera Plaza, Wilfredo Martinez Acosta, and Victor Rodriguez have been charged with various counts relating to the alleged murders of Ricky Guevara-Velez, Jorge Martinez, and Luis Garcia. Further, defendants Llera Plaza and Rodriguez have been charged with various counts relating to (a) the alleged murder of Jose Hernandez and (b) the alleged distribution of controlled substances. Pursuant to the Federal Death Penalty Act, 18 U.S.C. § 3591 et seq. ("the FDPA"), the government has filed Notices of Intent to Seek the Death Penalty ("NOIs") in the event that the defendants are found guilty of any of certain murder counts.*fn1 The defendants have filed several pretrial motions challenging the constitutionality of the FDPA on its face, and its constitutionality as applied in this case through the NOIs. In this opinion, the court will discuss the facial challenges to the statute raised in the joint defense motion captioned "Motion To Preclude a Penalty Phase Hearing and/or Imposition of the Death Penalty because the 1994 Federal Death Penalty Act is Unconstitutional."

The Federal Death Penalty Act, 18 U.S.C. § 3591, et seq.

The government may invoke the FDPA by filing, as it has done in this case for each of the three defendants, a notice of intent to seek the death penalty within "a reasonable time before the trial." 18 U.S.C. § 3593(a). The filing of such a notice embodies the government's intention to seek the death sentence for a defendant found guilty of an offense punishable by death. § 3591(a)(2). The notice specifies "the aggravating factor or factors that the government, if the defendant is convicted, proposes to prove as justifying a sentence of death." Id.

The FDPA bifurcates criminal proceedings into distinct trial and sentencing phases; a sentencing phase is required only in the event that a guilty verdict is returned at trial, or a guilty plea is entered. § 3593(b). At the sentencing phase a hearing takes place at which there is presented information supplementary to the evidence presented at trial. The information is heard by the trial jury and sentence is determined by that jury unless the defendant moves to have the sentencing phase conducted by the court alone and the government consents. § 3593(b)(3). The sentencing hearing presents an opportunity for both sides to present information "as to any matter relevant to the sentence. . . ." § 3593(c). "The defendant may present any information relevant to a mitigating factor," and "[t]he government may present any information relevant to an aggravating factor" set forth in its § 3593(a) notice. § 3593(c). "Information is admissible 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.

Several steps must be taken by the sentencer — whether a jury or the court without a jury — before it may return a sentence of death. Where the crime of which the defendant was convicted was a homicide, the sentencer must determine whether, in committing the crime, the defendant had the requisite mental state — specifically, whether the defendant, beyond a reasonable doubt,

(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. . . .

§ 3591(a)(2). The sentencer must find the presence of the requisite mental state beyond a reasonable doubt. Id. If the sentencer is a jury, the finding of requisite mental state must be unanimous. See United States v. Webster, 162 F.3d 308, 323 (5th Cir. 1998); United States v. Nguyen, 928 F. Supp. 1525, 1532 (Kan. 1996). If the sentencer does not conclude that the defendant acted with the requisite mental state, it may not impose the death penalty.

Assuming the sentencer finds the requisite mental state, it must then consider information received during the sentencing hearing regarding aggravating factors alleged by the government and mitigating factors alleged by the defendant. Aggravating factors, whether statutory — i.e., listed at § 3592(c)(1)-(16)*fn2 — or non-statutory, must be found beyond a reasonable doubt; if the jury is the sentencer, unanimity is required to support a finding of the existence of an aggravating factor. § 3593(d). If the sentencer does not find the existence of at least one statutory aggravating factor, it may not impose the death penalty. Id.

By contrast with aggravating factors, mitigating factors may be "established by a preponderance of the information." § 3593(c). Furthermore, "[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 for the purposes of this section regardless of the number of jurors who concur that the factor has been established." § 3593(d).

The sentencer is then required to "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, or, in the absence of a mitigating factor, whether the aggravating factor or factors alone are sufficient to justify a sentence of death." § 3593(e). As noted above, if the sentencing is conducted by a jury, only aggravating factors found to exist by a unanimous jury may be considered; on the other hand, "the jury may consider a mitigating factor in its weighing process so long as one juror finds that the defendant established its existence by preponderance of the evidence." Jones v. United States, 527 U.S. 373, 377, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999).

The sentencer will make a recommendation as to sentencing based on the results of this weighing process. § 3593(e). If the sentencing is conducted by a jury, each juror must certify to the court that his or her share of the composite jury decision was arrived at without regard to "the race, color, religious beliefs, national origin, or sex of the defendant or any victim." § 3593(f).

The sentence recommended by the sentencer mdash; whether death or life imprisonment without the possibility of release or parole mdash; is binding on the court. § 3594. On appeal from a death sentence, the court of appeals is obligated to "review the entire record in the case," § 3595(b), including "all substantive and procedural issues," § 3595(c)(1). In its disposition of the appeal, the reviewing court is subject to the following guidelines:

Whenever the court of appeals finds that —

(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,
the court shall remand the case for reconsideration under section 3593 or imposition of a sentence other than death. The court of appeals shall not reverse or vacate a sentence of death on account of any error which can be harmless, including any erroneous special finding of an aggravating factor, where the Government establishes beyond a reasonable doubt that the error was harmless.

§ 3595(c)(2). The court of appeals is required to state the reasons for its decision in writing. § 3595(c)(3).

Defendants' Motion To Preclude a Penalty Phase Hearing and/or Imposition of the Death Penalty because the 1994 Federal Death Penalty Act is Unconstitutional

The defendants make ten arguments in support of their contention that the FDPA is facially unconstitutional. The following captions are taken directly from their motion.

I. "The FDPA violates the Fifth, Sixth, and Eighth Amendments because the sentencing scheme is so incomprehensible that it deprives the jury of the ability to make a reasoned and informed choice between a death and life sentence."

The defendants argue "that [the Due Process Clause and the Eighth Amendment] prohibit a statutory scheme, or an instruction based thereon, which is so incomprehensible that it deprives the factfinder of the ability to make a reasoned and informed choice between a death sentence and a life sentence without possibility of parole." Def.'s Mot. at 14. The defendants contend that the FDPA is just such an "incomprehensible" statutory scheme — more specifically, that the concepts of aggravating and mitigating factors as used in capital sentencing schemes such as the FDPA are routinely misunderstood by capital jurors.

Although the defendants do not cite legal authority which expressly states the proposition that capital sentencing schemes are only constitutional if they are "comprehensible" to the sentencer, the principle involved seems axiomatic. The Supreme Court has remarked: "It is certainly not a novel proposition that discretion in the area of sentencing be exercised in an informed manner." Gregg v. Georgia, 428 U.S. 153, 189, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976).

Statutory aggravating factors have been crafted by Congress. Some are reasonably precise*fn3; some are cast in rather general terms*fn4; all are susceptible of focused delineation in carefully drawn jury instructions. With respect to non-statutory aggravating factors and mitigating factors, Congress has, in effect, delegated authorship to government counsel and defense counsel, respectively — subject, in both instances, to the oversight of the trial judge. Here again, the key to clarity, and hence to comprehensibility, lies in the jury instructions.

If the case at bar proceeds to a sentencing phase, counsel for the defendants and counsel for the government will have the opportunity to participate fully in the process of formulating the instructions which will frame the jury's deliberations. There is no reason to believe that the jury will find the collaborative handiwork of court and counsel to be incomprehensible.*fn5

II. "The FDPA violates the Eighth Amendment because it fails to constitutionally narrow the class of persons ...

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