The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge
MEMORANDUM OPINION AND ORDER
Before the Court for disposition are the following:
* MOTION TO PRECLUDE THE DEATH PENALTY AS A SENTENCING OPTION BECAUSE THE 1994 FEDERAL DEATH PENALTY ACT IS UNCONSTITUTIONAL, with brief in support, filed by Defendant, Claron Hanner (Document Nos. 330), which Defendant Jelani Solomon has joined (Document No. 377);
* MOTION TO DECLARE FEDERAL DEATH PENALTY UNCONSTITUTIONAL, with brief in support, filed by Defendant Jelani Solomon (Document Nos. 351 and 352); and
* the Government's Joint RESPONSE in opposition (Document No. 374). Defendants have argued that the Federal Death Penalty Act ("FDPA") is facially unconstitutional for a variety of reasons. At the outset, the Court notes that near identical challenges have been raised in other federal capital cases and the arguments have been uniformly rejected by either the United States Supreme Court and/or various courts of appeals and district courts.
For the reasons set forth below, Defendants' motions will be DENIED in all respects.
On March 28, 2006, a grand jury sitting in the Western District of Pennsylvania returned a nine-count Superseding Indictment in which Defendants Jelani Solomon and Claron Hanner were charged, inter alia, with using a firearm in furtherance of a drug trafficking crime and causing the death of a person through the use of said firearm, on or about January 19, 2004, in violation of Title 18, United States Code, § 924(c)(1)(a), 924(j)(1), and 2. (See Count Six of the Superseding Indictment).*fn1 Essentially, the charges contained in the Superseding Indictment arise from the allegations that Defendant Jelani Solomon paid his co-defendant, Claron Hanner, drugs and money to kill Frank Helisek, Jr., who was the father of Shawn Helisek, a person who was purportedly going to testify against Defendant Solomon at a state court trial on January 20, 2004. On the eve of trial, January 19, 2004, Frank Helisek, Jr., was murdered in his home. The government alleges that Defendant Solomon solicited this murder to retaliate against and intimidate Shawn Helisek.
The government has served notice that it intends to seek the death penalty if the defendants are convicted of Count Six of the Superseding Indictment.
A criminal defendant has the burden of proving that a federal statute is unconstitutional. See e.g., Lujan v. G & G Fire Sprinklers, Inc., 532 U.S. 189, 198 (2001). A defendant challenging the constitutionality of a federal statute "must establish that no set of circumstances exists under which the act would be valid." United States v. Salerno, 481 U.S. 739, 745 (1987). Further, any court which considers the constitutionality of a federal statute has a duty to construe statutes to avoid "constitutional infirmity." Salinas v. United States, 522 U.S. 52, 59-60 (1997). It is well established that if one interpretation yields serious constitutional questions while another is reasonable and ameliorates constitutional problems, courts must side with the argument that avoids such problems. See Hooper v. California, 155 U.S. 649, 657 (1895).
I. The FDPA Does Not Violate Defendants' Eighth Amendment Rights
Defendants argue that the imposition of the death penalty is unconstitutional and is a violation of their Eighth Amendment rights because: (i) the infrequency with which the death penalty is sought violates Furman v. Georgia, 408 U.S. 238 (1972); (ii) the death penalty is applied in an arbitrary and capricious manner as there is no intelligible difference between the cases in which the death penalty is sought and/or imposed and those in which it is not; and (iii) the death penalty is imposed on the invidious basis of race.
A. Infrequency and Arbitrariness in the Application of the FDPA
Initially, the Court notes that it is not for this Court to determine whether the government's decisions to seek the death penalty are consistent. Rather, this Court can only judge the constitutionality of the statute that allows for the death penalty.
The decision to prosecute, including the decision to seek the death penalty, rests with the prosecutor. See McClesky v. Kemp, 481 U.S. 279, 296-97 (1987); United States v. O'Driscoll, 203 F. Supp. 2d 334, 341 (M.D. Pa. 2002). The mere fact that the death penalty is rarely sought, or even more rarely imposed, does not of itself render the FDPA unconstitutional. United States v. Sampson, 275 F. Supp. 2d 49, 88 (D. Mass. 2003); O'Driscoll, 203 F. Supp. 2d 334. Constitutional questions arise only when the risk of arbitrariness becomes "sufficiently substantial." Furman, 408 U.S. at 295.
As noted in the government's response, Defendants' argument has been explicitly rejected previously by a number of courts. See, e.g., United States v. Sampson, 275 F. Supp.2d 49 (D. Mass. 2003); United States v. O'Driscoll, 203 F. Supp.2d 334 (M.D. Pa. 2002); United States v. Hammer, 25 F. Supp.2d 518 (M.D. Pa. 1998). This Court agrees with the decision of these courts and finds that the FDPA scheme is not unconstitutional on this basis.
B. No Principled Basis for Distinguishing Between Cases In Which The Federal Death Penalty is Imposed ...