that is considering 18 U.S.C. § 3592(c), in performing one of the most important legislative tasks related to the enactment of a capital punishment statute, i.e., the narrowing of the class of persons eligible for the death penalty, provides so much as a clue as to why it omitted an adverb on one occasion only to include it in another. Under such circumstances, this court fails to find from the absence of the word "previously" in § 848(n)(2) any evidence of Congress's intent to have convictions include contemporaneous jury findings of guilty.
Finally, the government points this court to various federal decisions that, in other contexts, interpret the word "convicted" or "conviction" to include pleas of guilty or verdicts of guilty. For example, in Dickerson v. New Banner Inst., supra, the Supreme Court equated "a plea of guilty and its notation by the state court, followed by a sentence of probation, with being 'convicted'" for purposes of prosecution under 18 U.S.C. § 922(g), a statute prohibiting gun trafficking by a convicted felon. 460 U.S. at 114. The case did not, in fact, confront the question here presented, for as the quoted passage makes clear, the state court defendant was sentenced prior to receiving his firearms license. At issue was not whether his guilty plea alone constituted a conviction, but whether the state court's subsequent expunction of his conviction was relevant for purposes of § 922(g). The court concluded it was not, since "expunction does not alter the legality of the previous conviction and does not signify that the defendant was innocent of the crime to which he pleaded guilty." Id. at 115. The broad reading of § 922(g) was, moreover, supported by the statute's specific inclusion of indicted defendants -- as well as convicted ones -- within its scope, making plain Congress's intent "to keep firearms out of the hands of presumptively risky people." Id. at 112 n.6.
Relying on Dickerson, the Third Circuit, in United States v. Balascsak, 873 F.2d 673 (3rd Cir. 1989), held that a defendant stood convicted of a prior crime for purposes of yet another firearms statute even though his motion for resentencing had been granted. The court observed that, "since expunging the record does not nullify a conviction, it is difficult to see why vacating a sentence with the intention of resentencing should nullify the conviction." Id. at 677. Here again, the court was not addressing whether a plea or finding of guilty absent sentence constitutes a conviction.
In United States v. Vanderbosch, 610 F.2d 95 (2d Cir. 1979), the Second Circuit did find a guilty verdict for which no sentence had yet been imposed or judgment entered sufficient to constitute a conviction for purposes of impeachment pursuant to Fed. R. Evid. 609(a). It reasoned that, since a jury verdict could not be withdrawn and was rarely overturned, the entry of "judgment, as a procedural formality, has little effect on the probative value of the conviction for purposes of attacking credibility." Id. at 97. The holding must be viewed with due regard for the factors underlying Rule 609(a): providing the jury with information that may be helpful in evaluating the credibility of witnesses without unduly risking conviction based on evidence of bad character. See 3 J. Weinstein & M. Berger, Weinstein's Evidence, § 609 at 609-28 (1991). In this context, the entry of formal judgment "has little effect." But, as will be discussed below, the purpose of § 848(n)(2) is very different.
The court finally considers the government's reliance on United States v. Adams, 771 F.2d 783 (3d Cir.), cert. denied, 474 U.S. 1013, 88 L. Ed. 2d 474, 106 S. Ct. 545 (1985), in which the phrase "has previously been convicted," as used in 18 U.S.C. § 3575(e)(1), the special offender enhancement provision of the Organized Crime Control Act of 1970 (repealed 1984), was held to include a verdict of guilty before sentence and entry of judgment. In reaching this result, the Third Circuit noted that, in the relevant legislative history, Congress sometimes referred to a conviction in its broad sense to include a plea or finding of guilty, and at other times seemed to be referring only to a formal judgment. The "primary purpose" of the law, however, was to ensure that those "prone to engage in further crimes are imprisoned long enough to give to society reasonable protection." Id. at 789 (quoting S. Rep. 617, 91st Cong., 1st Sess. 164 (1970)). Because this purpose was better served by liberally construing convictions to include verdicts and pleas of guilty, the court, without discussing the rule of lenity, adopted this expansive definition.
In this case, there is no Senate or House Report for the capital statute under consideration. The floor debates are silent as to Congress's reasons for enacting § 848(n)(2). But this much is clear: the purpose of statutory aggravating factors in a capital sentencing scheme is primarily to ensure the constitutionally-mandated narrowing of the class of persons eligible for the death penalty. See Zant v. Stephens, 462 U.S. at 878. Although the legislature may choose from various factors those that most precisely identify the class it has in mind, neither it, nor the court, can ignore the magnitude of the task. Specificity and precision are, of course, the ideal. But where a statutory aggravating factor is not drawn with precision, where it is subject to two possible interpretations, caution mandates selection of the narrower, lest classes of individuals not specifically identified by Congress be subject to irrevocable punishment. This principle has informed judicial interpretation of deportation statutes. See, e.g., Lennon v. I.N.S., 527 F.2d 187 (2d Cir. 1975). Therein, the court explained that since deportation surpasses in severity "all but the most Draconian criminal penalties," the statutory criteria for deportation must be given the narrowest of readings consistent with Congress's purpose. Id. at 193. Obviously this case involves a potential sentence even more severe than deportation and, thus, strict adherence to the rule of lenity is appropriate.
The government finally contends that limiting the "has been convicted" factor in § 848(n)(2) to formal judgments of conviction exalts form over substance and thereby unduly hampers the full consideration of a defendant's character that is the goal of individualized sentencing. Since the government remains free to proffer evidence of the additional homicides as non-statutory aggravating factors, the court's ruling in no way limits individualized sentencing. See Zant v. Stephens, 462 U.S. at 878-79. It only ensures that the class of persons eligible for death penalty consideration is no broader than clearly intended by Congress.
Because Congress has failed to indicate which of two common meanings it intended for the phrase "has been convicted" as used in the statutory aggravating factor listed in § 848(n)(2), and because statutory aggravating factors serve to narrow the class of persons eligible for capital punishment, the rule of lenity compels this court to interpret the phrase in its strictest sense to require a judgment of conviction and not simply a plea or verdict of guilty. Since the government's proposed amendment of its notice of statutory aggravating factors does not come within this narrow definition, the motion to amend the capital notice is denied.
Dated: Brooklyn, New York
May 26, 1992
UNITED STATES DISTRICT JUDGE