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May 26, 1992


The opinion of the court was delivered by: REENA RAGGI

 RAGGI, District Judge:

 Thomas Pitera stands before the court charged in a twenty count indictment with racketeering, drug trafficking, and various firearms violations. Count Three of the indictment accuses Mr. Pitera of killing two persons, Richard Leone and Solomon Stern, while engaging in or working in furtherance of a continuing criminal enterprise. Such conduct carries a possible sentence of death. 21 U.S.C. § 848(e)(1)(A). The government has served notice of its intent to seek the death penalty if Mr. Pitera is found guilty of Count Three. *fn1"

 Mr. Pitera challenges the constitutionality of § 848(e)(1)(A)'s death penalty provision. Joining in the attack as amici curiae are the Association of the Bar of the City of New York, the New York State Defenders Association, the National Association of Criminal Defense Lawyers, the New York State Association of Criminal Defense Lawyers, the National Legal Aid and Defender Association, and the New York Criminal Bar Association. Defendant and/or amici advance the following arguments:

I. any form of capital punishment violates the eighth amendment's prohibition of cruel and unusual punishment;
II. the particular federal statute at issue fails adequately to ensure that the death penalty will not be imposed in an arbitrary and capricious manner in that:
A. the capital crime itself is both vague and irrational,
C. the sentencing scheme permits reliance on unlimited non-statutory aggravating factors,
D. the sentencing scheme impermissibly limits consideration of mitigating factors,
E. the sentencing hearing is not governed by the Federal Rules of Evidence, and
F. meaningful appellate review is not ensured;
III. Mr. Pitera was singled out for arbitrary and vindicative prosecution; and
IV. Congress's failure to provide a means of execution is inevitably cruel and unusual and violative of the ex post facto clause.

 Defendant asks the court to address these constitutionality challenges before trial since jury selection as well as defense trial strategy may differ considerably in a capital versus a non-capital case. See, e.g., Fed. R. Crim. P. 24(b) (providing twenty peremptory challenges per side if a defendant is charged with a crime punishable by death); 18 U.S.C. § 3432 (capital charge requires disclosure to defendant of a list of veniremen and place of abode three days before commencement of trial). This court has therefore carefully considered all arguments advanced by the parties and amici. It rejects the constitutional attack on 21 U.S.C. § 848(e)(1)(A). The parties were advised orally of this ruling on April 27, 1992. This memorandum details the reasons for the court's decision.

 Statutory Background :

 The Anti-Drug Abuse Act of 1988

 The Anti-Drug Abuse Act of 1988 makes it a capital offense intentionally to kill another person in connection with the commission of serious federal drug crimes. Specifically, 21 U.S.C. § 848(e)(1)(A) provides:

Any person engaging in or working in furtherance of a continuing criminal enterprise, or any person engaging in an offense punishable under section 841(b)(1)(A) of this title or section 960(b)(1) 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 20 years and which may be up to life imprisonment, or may be sentenced to death. . . .


 The Act details procedures to be followed before a defendant can be executed. Initially, the government must serve notice "a reasonable time before trial" of its intent to seek the death penalty. 21 U.S.C. § 848(h)(1). If a defendant is found guilty of violating § 848(e)(1)(A), a separate sentencing hearing must be conducted, generally before the same jury that determined guilt. 21 U.S.C. § 848(i)(1)(A). The purpose of the hearing is to permit consideration of any "aggravating" and "mitigating" factors relevant to whether or not the defendant should be sentenced to death. 21 U.S.C. § 841(j). The information adduced need not conform to the Federal Rules of Evidence, so long as the court is convinced that its "probative value is [not] substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury." 21 U.S.C. § 848(j).

 The process by which a jury is to consider sentencing factors is specific. Preliminarily, the government must prove beyond a reasonable doubt and to the unanimous satisfaction of the jury at least two of the aggravating factors expressly set forth in the statute (hereinafter referred to as "statutory aggravating factors"). 21 U.S.C. § 848(j) and (k). Moreover, it must advise the defendant a reasonable time before trial of which statutory aggravating factors it intends to prove. 21 U.S.C. § 848(h)(1). One of these must be from among the four listed in § 848(n)(1). The other must be from among those listed in § 848(n)(2)-(12). Absent proof of these statutory aggravating factors, a jury cannot vote to impose the death penalty. 21 U.S.C. § 848(k).

 If a jury is satisfied that at least two such statutory aggravating factors have been proved, it may then consider any mitigating factors established by the defendant, whether from among those listed in § 848(m) or not, and any other aggravating factors of which the government gives notice in advance of trial (hereinafter referred to as "non-statutory aggravating factors"). 21 U.S.C. § 848(h)(1)(B), (j), and (k). Although non-statutory aggravating factors must be proved to the jury's unanimous satisfaction beyond a reasonable doubt, mitigating factors need only be established by a preponderance of the evidence. Moreover, any juror persuaded of a mitigating factor may consider it in reaching a sentencing decision; unanimity is not required. 21 U.S.C. § 848(j) and (k).

 A jury that finds the required statutory aggravating factors proved must consider whether these factors, along with any non-statutory aggravating ones, so outweigh any mitigating factors as to justify a sentence of death in the discrete case. 21 U.S.C. § 848(k). Even absent any mitigating factors, a jury must still be unanimously satisfied beyond a reasonable doubt that the proved aggravating factors are themselves sufficient to justify capital punishment before a sentence of death can be imposed. Id.

 Invidious factors cannot influence a jury's determination as to the death penalty. Indeed, each juror must sign a certificate attesting that neither the defendant's nor the victim's "race, color, religious beliefs, national origin, or sex" played any part in the deliberations. 21 U.S.C. § 848(o)(1).

 Although a jury cannot vote for the death penalty absent the required findings and certifications just detailed, a jury is never required to impose a death sentence even if it finds sufficient grounds to do so under the applicable law. Indeed, a court must specifically so instruct the jury. 21 U.S.C. § 848(k).

 The statute labels a jury's finding in favor of the death penalty a "recommendation." 21 U.S.C. § 848(l). In fact, it is determinative, for upon such a "recommendation" the trial court "shall sentence the defendant to death." Id. Absent a recommendation of death, the court must sentence a defendant to a minimum of 20 years and a maximum of life imprisonment. Id. ; 21 U.S.C. § 848(e)(1)(A).

 Appellate review of a death sentence is expressly provided by the law. 21 U.S.C. § 848(q)(1). Such appeal may be consolidated with a challenge to the judgment of conviction, and the case is to be given priority on the appellate docket. Id.


 I. The Death Penalty as Cruel and Unusual Punishment

 Mr. Pitera contends that the death penalty is, under all circumstances, cruel and unusual punishment violative of the eighth amendment. He concedes, however, that this argument has been rejected by all current members of the Supreme Court who have had occasion to consider the issue. See, e.g., Gregg v. Georgia, 428 U.S. 153, 178, 49 L. Ed. 2d 859, 96 S. Ct. 2909 (1976) (opinion of Stewart, Powell, and Stevens, JJ.) (citing to two centuries of case law upholding the constitutionality of capital punishment); accord McCleskey v. Kemp, 481 U.S. 279, 300-01, 95 L. Ed. 2d 262, 107 S. Ct. 1756 (1987). Moreover, he cites no objective indicia of any change in public opinion about this punishment that might warrant reconsideration of its constitutionality. See Gregg v. Georgia, 428 U.S. at 173 (opinion of Stewart, Powell, and Stevens, JJ.); Weems v. United States, 217 U.S. 349, 378, 54 L. Ed. 793, 30 S. Ct. 544 (1910). This court is, therefore, compelled to follow controlling case law and to reject the broad constitutional attack on the death penalty. See United States v. Pretlow, 779 F. Supp. at 777-78 (rejecting similar challenge to § 848(e)(1)(A)).

  Instead, the court considers the specific challenges made to the capital statute here at issue. In so doing, it is mindful of Justice Holmes's admonition that constitutionality challenges to an act of Congress engage a court in "the gravest and most delicate duty" of the judicial branch. See Blodgett v. Holden, 275 U.S. 142, 148, 72 L. Ed. 206, 48 S. Ct. 105 (1927). A due respect both for the magnitude of the task and for the independence of Congress, which presumably "legislates in the light of constitutional limitations," makes it appropriate to construe a challenged statute so as to avoid a conflict with the Constitution if reasonably possible. Rust v. Sullivan, U.S. , 111 S. Ct. 1759, 1771, 114 L. Ed. 2d 233 (1991); Communication Workers v. Beck, 487 U.S. 735, 762, 101 L. Ed. 2d 634, 108 S. Ct. 2641 (1988); Edward J. Debartolo Corp. v. Florida Gulf Coast Bldg. and Const. Trades Council, 485 U.S. 568, 575, 99 L. Ed. 2d 645, 108 S. Ct. 1392 (1988). These principles guide the court's analysis.

 II. Arbitrary and Capricious Sentencing

 The majority of the arguments advanced by defendant and amici contend that the statute at issue fails to ensure that the death penalty is imposed in a consistently reasoned manner. The single most important principle to be derived from the Supreme Court's recent death penalty jurisprudence, beginning with the various opinions in Furman v. Georgia, 408 U.S. 238, 33 L. Ed. 2d 346, 92 S. Ct. 2726 (1972), is that capital punishment is unconstitutionally cruel and unusual if it is imposed arbitrarily or capriciously. Thus, statutes must "genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder." Zant v. Stephens, 462 U.S. 862, 877, 77 L. Ed. 2d 235, 103 S. Ct. 2733 (1983). "Rational criteria" must be articulated "that narrow the decisionmaker's judgment as to whether the circumstances of a particular defendant's case" meet the "threshold below which the death penalty cannot be imposed." Payne v. Tennessee, 115 L. Ed. 2d 720, U.S. , 111 S. Ct. 2597, 2608 (1991) (quoting McCleskey v. Kemp, 481 U.S. at 305). Moreover, when, as in this case, a jury generally inexperienced in sentencing decisions is entrusted with "so grave [a] determination" as "whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action." Gregg v. Georgia, 428 U.S. at 189 (opinion of Stewart, Powell, and Stevens, JJ.).

 The means by which sentencing discretion can be narrowed and directed are varied. See id. at 195 (opinion of Stewart, Powell, and Stevens, JJ.). For example, a legislature can limit the types of murders for which capital punishment may be imposed. See Lowenfield v. Phelps, 484 U.S. 231, 244-45, 98 L. Ed. 2d 568, 108 S. Ct. 546 (1988). Alternatively, it can require proof of specific aggravating factors. Id. In this case, Congress appears to have done both: limiting the type of homicide for which the death penalty can be imposed to intentional murders committed in relation to a serious drug crime, and providing for specific aggravating factors that must be found before a sentence of death can be considered. See United States v. Pretlow, 779 F. Supp. at 772. Nevertheless, Mr. Pitera and amici contend that the statutory scheme is constitutionally inadequate. The court addresses in turn the particular cited deficiencies.

 A. Vagueness of the Crime

 Amici submit that the crime outlined in 21 U.S.C. § 848(e)(1)(A) is unconstitutionally vague. Specifically, they argue that the statute, in failing to specify the relationship to be proved between the defendant and the killing, between the enterprise and the killing, and between the defendant and the enterprise, risks arbitrary imposition of the death penalty. Amici further suggest that the statute violates due process in singling out certain drug-related murders for capital punishment when other equally or more heinous murders are not so punished. Neither argument has merit.

 Generally, a vagueness challenge to a criminal statute invokes due process and focuses on the adequacy of notice to a defendant that certain conduct is prohibited. See, e.g., Grayned v. City of Rockford, 408 U.S. 104, 108, 33 L. Ed. 2d 222, 92 S. Ct. 2294 (1972). An eighth amendment vagueness challenge to a capital punishment statute has a different focus. The critical inquiry is whether the statute so poorly informs the jury as to what it "must find to impose the death penalty" that there is a risk that it is left "with the kind of open-ended discretion that was held invalid in Furman v. Georgia." See Maynard v. Cartwright, 486 U.S. 356, 361-62, 108 S. Ct. 1853, 100 L. Ed. 2d 372 (1988) (citations omitted).

 This case presents no such risk. The statute plainly states the relationship that must be established between a defendant and the charged murder: a defendant must have himself "intentionally killed the victim or he must have "counseled, commanded, induced, procured, or caused the intentional killing." The latter clause, far from being ambiguous, as amici argue, parallels 18 U.S.C. § 2 and states principles on which juries are routinely instructed. In any event, the court understands the government's position to be that Mr. Pitera himself committed the two murders charged in Count Three. Thus, no jury confusion about his alleged involvement will arise.

 The court further rejects amici 's suggestion that § 848(e)(1)(A) is fatally vague in failing to define the relationship that must be proved between a defendant's efforts on behalf of a continuing criminal enterprise and the alleged killing. A common sense reading of the statute supports the conclusion that a defendant faces federal prosecution only for homicidal acts committed "[while he was] engaging in or working in furtherance of a continuing criminal enterprise. . . ." Amici 's speculation that the statute would permit federal prosecution of a drug kingpin who killed his spouse in a domestic dispute unrelated to his drug dealing is not only fanciful, it is jurisdictionally suspect. As between two possible interpretations of a statute, a court is, quite simply, obliged to adopt that which is not constitutionally defective. See Rust v. Sullivan, supra. The government, moreover, concedes that it must prove a relationship between the murders alleged and Mr. Pitera's involvement in the charged enterprise. The court understands this to be akin to that "vertical" relationship that must be proved between predicate acts and enterprises in racketeering cases. See, e.g., United States v. Minicone, 960 F.2d 1099, 1992 U.S. App. LEXIS 1360 (2d Cir. 1992), reh'g granted in part, denied in part, 1992 U.S. App. LEXIS 7630 (Apr. 13, 1992). It will charge the jury accordingly.

 Finally, the court finds no impermissible vagueness in the statute's description of the involvement a defendant must have in the charged enterprise. The government must prove that defendant was "engaging in or working in furtherance of a continuing criminal enterprise." How one "engages in" a continuing criminal enterprise is expressly defined in § 848(c). Moreover, courts routinely consider whether a defendant's actions are "in furtherance" of other criminal activity when applying Fed. R. Evid. 801(d)(2)(E) (co-conspirator hearsay exception). See United States v. Cooper, 754 F. Supp. at 627 (rejecting vagueness challenge to this aspect of § 848(e)(1)(A)).

 Amici contend that "working in furtherance of a continuing criminal enterprise" can mean aiding and abetting it. They note that the Second Circuit has rejected aiding and abetting as a basis for finding a defendant guilty of violating 21 U.S.C. § 848(a) and (b). See United States v. Amen, 831 F.2d 373, 381-82 (2d Cir. 1987), cert. denied, 485 U.S. 1021, 108 S. Ct. 1573, 99 L. Ed. 2d 889 (1988); cf. United States v. Pino-Perez, 870 F.2d 1230 (7th Cir.) (en banc), cert. denied, 493 U.S. 901, 110 S. Ct. 260, 107 L. Ed. 2d 209 (1989) (person supervised by drug kingpin cannot be guilty as aider and abettor of § 848(a) charge; but person not under kingpin's supervision who aids and abets the enterprise may be guilty pursuant to 18 U.S.C. § 2). This argument ignores the different concerns addressed by § 848(a) and (b) on the one hand, and § 848(e)(1)(A) on the other. The former sections focus on individuals who head significant continuing drug enterprises. Section 848(e)(1)(A) focuses on individuals who commit murders in connection with the most serious drug crimes, specifically, in connection with continuing drug enterprises or in connection with the importation or distribution of significant quantities of drugs. While, as the Second Circuit noted in Amen, there is something illogical about convicting an aider and abettor for criminal conduct that focuses directly on the leadership role a defendant plays in a continuing criminal enterprise, that incongruity is not present in Congress's express decision to punish severely anyone who actually kills or who counsels, commands, induces, procures, or causes the intentional killing of a human being in connection with large-scale drug trafficking.

 In any event, this case does not require the court to resolve the scope of a defendant's liability under § 848(e)(1)(A) for homicides committed while "working in furtherance of a continuing criminal enterprise." The government here contends that Mr. Pitera did, indeed, head the drug enterprise. In short, this case will be presented to the jury on the theory that Mr. Pitera committed the charged homicides while "engaging in" a continuing ...

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