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September 26, 1995


The opinion of the court was delivered by: MCAVOY

 On September 12, 1995, the Court heard oral argument on and addressed and decided from the bench the numerous discovery requests of all parties. Herein the Court addresses the defendants' *fn1" remaining motions, "death penalty" and otherwise, seeking variously: a decision from this Court holding 21 U.S.C. § 848 et seq. and § 848(e) in particular unconstitutional; dismissal of various indictment counts and portions of the government's Notice of Intent to Seek the Death Penalty; and dismissal of the death penalty request against Tyrone Walker because the Department of Justice has engaged in systematic racial discrimination, or alternatively, discovery and a hearing on that issue. Also before the Court are the parties' opposing motions concerning disclosure of the government's witness list.

 All three of the above-captioned defendants stand accused in each count of a nine-count superseding indictment filed on September 19, 1994. *fn2" On May 31, 1995, the government filed Notices of Intent to Seek the Death Penalty under 21 U.S.C. § 848(e)(1)(A) *fn3" 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.

 115 S. Ct. at 1629 (citations omitted). In addition, the Lopez Court reiterated that in the absence of a jurisdictional element in the subject statute, there must be a showing of "the requisite nexus with interstate commerce." Id., at 1631 (citing United States v. Bass, 404 U.S. 336, 347, 30 L. Ed. 2d 488, 92 S. Ct. 515 (1971)). Thus, under Lopez, the activity, the subject of the statute, must first be shown to fall within one or more of the categories in which Congress may exercise its Commerce Clause power, and then the activity must be shown to have a substantial effect on, or nexus with, interstate commerce.

 It should be noted at the outset, however, that contrary to defendants' counsel's earnest and thoughtful arguments, Lopez does not signal a "reversal of Supreme Court tolerance for Congressional activity under the Commerce Power." Nor, in this Court's view, does it "open to reanalysis" (Tyrone Walker's Omnibus Brief, Pt. I), all pre-Lopez Commerce Clause cases. The test applied in Lopez is "consistent with the great weight of [prior Supreme Court] case law." Lopez, 115 S. Ct. at 1629 (emphasis added). The Lopez Court simply determined that under the existing standards of Commerce Clause jurisprudence, the statute at issue did not pass constitutional muster. This Court finds that the statutory provisions at issue in this case do.

 a. The Activities Regulated by the Statutory Provisions at Issue are Within the Category Of Activities that Congress May Regulate Under the Commerce Clause:

 The defendants contend that the counts pending against them *fn5" should be dismissed because they were enacted by a Congress that was acting beyond the scope of its Commerce Power. The Court must first determine whether the statutes concern activities that may properly be placed within any of the categories set forth in Lopez--categories within which Congress may act pursuant to its Commerce Power.

 The activity that is sought to be "regulated" by the statutory provisions challenged herein fall within the second and third categories set forth in Lopez. The activities, as a general category, concern the sale of narcotics and related activities. Thus, although a criminal enterprise, the narcotics themselves are both commodities and "things in interstate commerce," as set forth in the second Lopez category. See Lopez, 115 S. Ct. at 1629. The Court makes no exception for illicit commerce. See also United States v. Montes-Zarate, 552 F.2d 1330, 1331 (7th Cir. 1977) ("intrastate possession, distribution and sale of drugs such as heroin directly and injuriously effected the introduction of them into other States to the injury of the public health and welfare there.") (citations omitted); cf. Heart of Atlanta Motel 379 U.S. at 256 ("the authority of Congress to keep the channels of interstate commerce free from immoral and injurious uses has been frequently sustained, and is no longer open to question.")(citations omitted). In addition, as established by the following discussion, the activities have a "substantial relation to interstate commerce," and thus fit within the third category in Lopez, 115 S. Ct. at 1629.

 b. The Activities Regulated By the Subject Statutory Provisions Substantially Affect Interstate Commerce:

 Since the statutes at issue do not have a jurisdictional component, the Court must next determine whether these activities have a substantial nexus with interstate commerce. Lopez, 115 S. Ct. at 1631.

 As the Supreme Court has previously held, such a nexus may be shown by reference to Congress' findings as to the "class of activities regulated" assuming consideration of "the 'total incidence' of the practice on commerce." Perez v. United States, 402 U.S. 146, 154, 28 L. Ed. 2d 686, 91 S. Ct. 1357 (1971) (emphasis in original). Moreover, "where the class of activities is regulated and that class is within the reach of federal power, the courts have no power 'to excise, as trivial, individual instances' of the class." Id. (citing, Maryland v. Wirtz, 392 U.S. 183, 193, 20 L. Ed. 2d 1020, 88 S. Ct. 2017 (1968) (emphasis in original)). Although "Congress normally is not required to make formal findings as to the substantial burdens that an activity has on interstate commerce," the Court notes that express findings "would enable [the Court] to evaluate the legislative judgment that the activity in question substantially affected interstate commerce." Lopez, 115 S. Ct. at 1631.

 Title 21 U.S.C. § 801 sets forth the congressional "Findings and declarations" relating to the statutory provisions challenged herein. *fn6" As to the control and enforcement of illicit drugs and drug trafficking as a class of activity, Congress has expressly found that "the illegal importation, manufacture, distribution, and possession and improper use of controlled substances have a substantial and detrimental effect on the health and general welfare of the American people." 21 U.S.C. § 801(2). Congress has also found that a "major portion of the traffic in controlled substances flows through ... interstate commerce" and that "incidents of the traffic which are not an integral part of the interstate ... flow ... have a substantial and direct effect upon interstate commerce." 21 U.S.C. § 801(3)(reasons set forth include prior and subsequent interstate transport).

 Neither the statute at issue in Lopez, nor its legislative history, contained any legislative findings so as to guide the courts in analyzing any effect on interstate commerce. Lopez, 115 S. Ct. at 1631. Moreover, the government's attempt in Lopez to "import" Congress' findings as to other statutory provisions was found to be inappropriate "because the 'prior federal enactments ... [did not] speak to the subject matter of [the statute] or its relationship to interstate commerce." Id. (quoting U.S. v. Lopez, 2 F.3d 1342, 1366 (5th Cir. 1993)). Furthermore, the Supreme Court concluded after examining the government's contentions regarding substantial effect on interstate commerce, that to uphold such findings, it "would have to pile inference upon inference" to such an extent that Congress would be granted a virtual police power, in clear contravention of long-standing notions of federalism. Id., at 1633. In this case, however, the Court need not leap the inferential hurdles that ultimately led to the invalidation of the statue in Lopez.

 These defendants are charged under statutes that regulate activities that clearly fall within the broad categories described in Lopez and prior case precedent. Moreover, Congress has set forth clear findings and declarations with respect to the illegal sale and trafficking of illicit drugs and related activities. The Court holds that there is a substantial nexus between the class of activities at issue and interstate commerce. *fn7" Therefore, Congress properly enacted the subject statutory provisions of Title 21 and Title 18 pursuant to its power under the Commerce Clause. Accordingly, the Court denies all of the defendants' motions to dismiss each count of the superseding indictment on Commerce Clause grounds.

 B. 21 U.S.C. § 848 et seq.:

 Defendants Tyrone Walker and Walter Diaz join together in mounting numerous constitutional and statutory attacks on § 848 and the superseding indictment.

 1. Appellate Review under § 848:

 Tyrone Walker, joined by Walter Diaz, seeks an order declaring the § 848 death penalty unconstitutional for failing to provide meaningful appellate review. The defendants characterize § 848's appeal provisions, set out at 21 U.S.C. § 848(q), *fn8" as sharply curtailing appellate review, thereby rendering the statute unconstitutional.

 The inquiry's starting point is the well established requirement that any statutory scheme in which death is an available penalty must afford meaningful appellate review: "meaningful appellate review . . . ensur[es] that the death penalty is not imposed arbitrarily or irrationally . . . [and] minimizes the risk of constitutional error." Parker v. Dugger, 498 U.S. 308, 321, 112 L. Ed. 2d 812, 111 S. Ct. 731 (1991) (citations omitted); Gregg v. Georgia, 428 U.S. 153, 49 L. Ed. 2d 859, 96 S. Ct. 2909 (1976).

 The Court first observes that the statute places no limitation on the bases over which appellate review of a death sentence may be undertaken. Section 848(q)(2) makes clear that the entire record is amenable to review when the court of appeals scrutinizes a sentence of death. The Court also notes that the statute places no limitation on, and indeed expressly contemplates the existence, of conventional appeal of the judgment of conviction.

 The defendants point to § 848(q)(3)(A) & (b)'s requirement that the court of appeals affirm the sentence unless it determines that the sentence was imposed under the influence of passion, prejudice, or any other arbitrary factor, or that the aggravating and mitigating findings are unsupported, and argue that these provisions limit the scope of appellate review. While the "arbitrary factor" language is subject to varying interpretation, that ambiguity itself militates for a construction that avoids the conclusion that the statute is unconstitutional. See Rust v. Sullivan, 500 U.S. 173, 189, 114 L. Ed. 2d 233, 111 S. Ct. 1759 (1991); see also, Hooper v. California, 155 U.S. 648, 657, 39 L. Ed. 297, 15 S. Ct. 207 (1895) (every reasonable construction must be resorted to in order to save a statute from unconstitutionality).

 Other district courts called upon to construe this language have applied the foregoing canon of construction and concluded that the phrase "any other arbitrary factor" is broad enough to encompass the essential elements of meaningful appellate review. See United States v. Pretlow, 779 F. Supp. 758, 763-64 (D.N.J. 1991) (construing § 848(q)(3)(A) & (B) as permitting appellate review of harmful errors of law); United States v. Pitera, 795 F. Supp. 546, 566-67 (E.D.N.Y. 1992) ("Pitera I") (statute fairly interpreted to permit whatever review is reasonably necessary to ensure against arbitrary decision-making), affirmed w'out opinion, 986 F.2d 499 (2d Cir. 1992).

 This Court is likewise of the opinion that were an appellate court to detect any of the potential horribles paraded by the defendants (i.e. error of law, improper summation, improper instruction of the jury, outside influence on the jury) it would be free under the statute to conclude that the sentence was infected with an "arbitrary factor," thereby requiring remand of the case for reconsideration. See § 848(q)(3). It follows then, that § 848 affords meaningful appellate review and as such, defendants' motion for a declaration that the 21 U.S.C. § 848(e) death penalty provision is unconstitutional for failing to provide meaningful appellate review is DENIED.

 2. Statutory Aggravating Factors:

 The defendants are then afforded the opportunity to rebut the government's showing and to establish mitigating factors, which must be established by a preponderance of the evidence and may be found by any individual juror or any number of jurors. § 848(j) & (k). The government is then permitted to reply in rebuttal. § 848(k).

 Under the statutory structure enumerating the aggravating factors, § 848 establishes two categories of statutory aggravating factors: one category is listed in § 848(n)(1) and the other category is listed in § 848(n)(2)-(12). The jury must find at least one of the enumerated statutory aggravating factors from each category before the death penalty may be considered. § 848(k). After finding at least one statutory factor from each category, the jury may go on to consider non-statutory aggravating factors ("any other aggravating factors which the government will seek to prove as the basis of the death penalty") as to which the government has previously given notice as required under § 848(h)(1)(B). The death penalty may be considered only if the jury has found one aggravating factor from each category. The death penalty may be imposed only if the jury goes on to find that the two required statutory factors, plus any other statutory and/or non-statutory aggravating factors it has found, sufficiently outweigh any and all mitigating factors that it may have found. *fn9" If no mitigating factors have been found the jury must determine whether the aggravating factors themselves are sufficient to justify a sentence of death. § 848(k).

 Defendants Tyrone Walker and Walter Diaz posit numerous constitutional infirmities in the aggravating ...

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