The opinion of the court was delivered by: REENA RAGGI
Count Three of the pending indictment against Thomas Pitera charges him with violating 21 U.S.C. § 848(e)(1)(A), a crime for which the maximum possible sentence is death. Defendant's constitutional challenges to the death penalty are addressed in a separate memorandum and order filed today.
As discussed in that memorandum, the government is required by law to advise defendant in advance of trial of the statutory and non-statutory aggravating factors on which it will rely in urging a jury to recommend a death sentence. 21 U.S.C. § 848(H)(1). The government filed its original notice on February 8, 1991. Therein it identified as non-statutory aggravating factors seven homicides attributed to Mr. Pitera in addition to the two charged in the capital count. These aggravating murders allegedly occurred prior to enactment of § 848(e)(1)(A). They are listed in the indictment as predicate acts to the racketeering crime charged in Count One.
On December 18, 1991, the government moved for leave to amend its original death penalty notice to permit these seven homicides to be considered as statutory aggravating factors under 21 U.S.C. § 848(n)(2). That particular statutory aggravating factor pertains when:
the defendant has been convicted of another Federal offense, or a State offense resulting in the death of a person, for which a sentence of life imprisonment or a sentence of death was authorized by statute.
(emphasis added). The government submits that, if Mr. Pitera is found guilty of racketeering and if any of the proved predicates are these additional homicides, he will stand convicted, even before sentence, of a crime carrying a possible life sentence. See 18 U.S.C. § 1963(a).
The defendant opposes the motion on two grounds: (1) that the government has failed to establish "good cause" for amendment as required by 21 U.S.C. § 848(h)(2); and (2) that a guilty verdict is not a conviction under § 848(n)(2). The court finds the second argument persuasive and, therefore, denies the motion to amend.
Pursuant to 21 U.S.C. § 848(h)(2),"the court may permit the attorney for the Government to amend [a death penalty notice] for good cause shown." In United States v. Pretlow, 770 F. Supp. 239, 242 (D.N.J. 1991), the court held amendment appropriate if the government's application was made in good faith and the defendant was not prejudiced. In this case the court finds that the government is acting in good faith. It further finds no prejudice to defendant since he has always been on notice of the government's intent to rely on the seven additional homicides in seeking the death penalty. The amendment seeks only to recategorize that conduct within the capital statutory scheme.
This very aspect of the proposed amendment supports its serious consideration by the court. Statutory aggravating factors narrow the class of persons eligible for the death penalty. Non-statutory aggravating factors assist the jury in its individualized consideration of the character of the defendant on trial and his particular crime. See, e.g., Zant v. Stephens, 462 U.S. 862, 878-79, 77 L. Ed. 2d 235, 103 S. Ct. 2733 (1983). The difference is not without constitutional significance, as the various challenges addressed in this court's other memorandum and order of today indicate. The court and parties are dealing with one of the earliest applications of a new statute exposing a defendant to the most severe penalty tolerated by law. Under such circumstances, it is important that information be placed within its proper statutory category. Thus, if the court were persuaded that the seven additional homicides were appropriately categorized as statutory aggravating factors, it would find sufficient cause to permit amendment. Because it does not, however, leave to amend is denied.
II. The Statutory Meaning of "Has Been Convicted"
The government's amendment is appropriate only if Congress intended persons who have been "convicted" of homicides under § 848(n)(2) to include individuals found guilty of such crimes but not yet subject to a formal judgment of conviction. Questions of legislative intent must be resolved, if possible, by looking to the plain meaning of the statutory language used by Congress. E.g., West Virginia Univ. Hosps. v. Casey, U.S. , 111 S. Ct. 1138, 1147, 113 L. Ed. 2d 68 (1991) (court need not look beyond unambiguous statutory language); United States v. Turkette, 452 U.S. 576, 580, 69 L. Ed. 2d 246, 101 S. Ct. 2524 (1981). Where Congress uses terms with settled meaning under the common law, a court must conclude, unless the statute ...