All three of the above-captioned defendants stand accused in each count of a nine-count superseding indictment filed on September 19, 1994.
On May 31, 1995, the government filed Notices of Intent to Seek the Death Penalty under 21 U.S.C. § 848(e)(1)(A)
against defendants Tyrone Walker and Walter Diaz, if they are convicted of Counts Two or Three of the indictment.
A. The Government's Allegations:
The government alleges that between approximately January of 1989 and September of 1993, defendants Tyrone Walker, Walter Diaz and Anthony Walker conspired with each other and over a dozen others to possess cocaine, crack, and heroin, with intent to distribute in various locations within the Northern District of New York. It is alleged that this conspiracy was maintained throughout that entire period and that between November of 1992 and March of 1993 the three defendants' roles in the conspiracy had evolved to a point where they were operating a Continuing Criminal Enterprise ("CCE"). On February 18, 1993, the three defendants allegedly caused the murder of Michael Monsour while attempting to rob Monsour of cocaine and narcotics proceeds.
The Court will address defendants' motions under the Commerce Clause first, followed by seriatim disposition of the defendants' death-penalty motions and all parties' motions as to the witness list.
A. The Commerce Clause:
All the defendants seek an order dismissing Counts One through Seven of the superseding indictment on the basis that the relevant provisions of Title 18 and Title 21 are beyond Congress' power under the Commerce Clause, or, in the alternative, an order dismissing all the superseding indictment Counts because the government cannot show a nexus between these charges and interstate commerce.
Under Article I, § 8 of the United States Constitution, the Commerce Clause, Congress has the power to "regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." U.S. Constitution, Art. I, § 8, cl. 3. The Supreme Court has long held that the commerce power is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution." Gibbons v. Ogden, 22 U.S. 1, 9 Wheat. 1, 196, 6 L. Ed. 23 (1824).
Commerce Clause jurisprudence originally developed through a line of cases which sought to limit state legislation that was perceived as discriminatory against interstate commerce. See generally Wickard v. Filburn, 317 U.S. 111, 121, 87 L. Ed. 122, 63 S. Ct. 82 (1942)(tracing the line of cases that delineated, as beyond Congress' reach under the Commerce Clause, categories of state legislation). In 1935, the Supreme Court set forth a new test for Commerce Clause analysis: whether the activities had a "direct" or "indirect" effect on interstate commerce. A.L.A. Schechter Poultry Corp. v. U.S., 295 U.S. 495, 548, 79 L. Ed. 1570, 55 S. Ct. 837 (1935). Just two years later the Court introduced a new "close and substantial relation to interstate commerce" test. NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37, 81 L. Ed. 893, 57 S. Ct. 615, (1937).
Jones & Laughlin Steel and its progeny significantly expanded the scope of the Commerce Clause to any activity that had a substantial effect on interstate commerce. See, e.g., Wickard, supra, (expanding congressional power under the Commerce Clause to completely home-grown and home-consumed wheat). The only check on the scope of the Commerce Clause appeared to be whether there was a rational basis for the federal legislation. See, e.g., Heart of Atlanta Motel, Inc. v. U.S., 379 U.S. 241, 252-53, 13 L. Ed. 2d 258, 85 S. Ct. 348 (1964). Recently, however, the Supreme Court has sought to check the long-standing trend of expanding the authority of Congress under the Commerce Clause, and placed a limit on its reach. See United States v. Lopez, U.S. , 115 S. Ct. 1624 (1995).
1. United States v. Lopez and the Commerce Clause:
In Lopez, the Supreme Court affirmed a lower court's decision to overturn a defendant's conviction for possession of a firearm in a school zone in violation of the Gun-Free School Zones Act, 18 U.S.C. § 922(q)(2)(A). Id., 115 S. Ct. at 1633. The statute made it a crime for "any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone." 18 U.S.C. § 922(q)(2)(A). The Lopez Court held that the statute exceeded Congress' Commerce Clause authority, because possession of a gun in a school zone was not economic activity that substantially affected interstate commerce. Id.
The Lopez Court traced the history of Commerce Clause jurisprudence in detail and determined that there were only three categories of activities that Congress had the power to regulate under the authority of the Commerce Clause.
First, Congress may regulate the use of the channels of interstate commerce ... Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities ... Finally, Congress' commerce authority includes the power to regulate those activities having a substantial relation to [substantially affects] interstate commerce.