The opinion of the court was delivered by: JACK WEINSTEIN, Senior District Judge
In this capital prosecution, defendant moves to strike Count
Two of the Third Superseding Indictment ("the indictment") on the
grounds that it violates the Ex Post Facto Clause of the
United States Constitution. He argues that, since the death penalty
statute under which he is charged did not exist at the time of
the alleged murder, he cannot be prosecuted on this count. The
government opposes, contending that, since the charged crime is
composed of both an underlying conspiracy and a murder, the crime
was ongoing even after the killing for as long as the conspiracy
existed. It is undisputed that the murder occurred before the
enactment of the statute at issue and that the alleged conspiracy
continued after the enactment of the statute.
For the reasons indicated below, the motion is granted. It
should be noted that the indictment charges defendant with
another capital crime for the same killing under a slightly
different theory. See Third Sup. Ind. 1. That count is not
challenged. II. Facts
The government has alleged that, as part of a conspiracy to
deal in narcotics, defendant lured Jose Rosario to defendant's
apartment with the intention of killing him and then shot him
several times. See Gov't. Response to Def.'s Mot. to Strike
Death Notice 1-2 (Docket No. 47). Count Two of the indictment
charges defendant with the firearm-related murder of Rosario, a
capital crime. The charge reads as follows:
On or about September 17, 1992, within the Southern
District of New York, the defendant HUMBERTO PEPIN
TAVERAS, known as `Tony' and `Luis Rosario,' in the
course of a violation of Title 18, United States
Code, Section 924(c), to wit: knowingly and
intentionally using and carrying a firearm during and
in relation to a drug trafficking crime, and
knowingly and intentionally possessing a firearm in
furtherance of said drug trafficking crime, did
knowingly and intentionally cause the death of a
person through the use of a firearm, which killing is
a murder as defined in Title 18, United States Code,
Section 1111 (a), in that the defendant, with malice
aforethought, did unlawfully kill Jose Rosario, also
known as `Barrigita,' willfully, deliberately,
maliciously and with premeditation.
Third Sup. Ind. 2.
While the charge does not mention a conspiracy, the government
has treated it as if it does. See Gov't. Resp. to Def.'s Mot. 1
(Docket No. 93) ("Count Two charges Pepin, under Section 924(j),
with using a firearm to kill Jose Rosario in 1992 in furtherance
of a drug conspiracy."). Defense counsel asserts that this count
charges only a crime of violence, not a drug trafficking crime.
See Def.'s Reply 3 (Docket No. 95) ("[T]he count as charged
is a crime of violence under § 924(c), and not a drug trafficking
crime. Count 1 is the drug trafficking crime."). At oral argument, the government analyzed Count Two as charging
a murder during a drug conspiracy:
MR. FREEDMAN: . . . The issue is that Mr. Pepin is
charged not with just a murder but with the murder in
furtherance of a drug conspiracy.
. . .
[T]he murder permitted the conspiracy to continue as
a necessary fact.
. . .
[T]he murder is what presumably Congress relied upon
and chose to make this a capital crime. In ex post
facto analysis there is nothing that says that you
look at one element over another element in terms of
deciding whether or not there is an ex post facto
Here the defendant hadn't stopped his conspiracy
before the enactment of the [statute]. The conspiracy
couldn't have continued but for the murder.
Tr. of Dec. 1, 2005 13:7-9, 14:12-20 ("Tr."). Defendant did not
object to the government's characterization of the charge.
For the purposes of defendant's ex post facto challenge, the
court assumes that Count Two of the indictment validly charges an
underlying drug conspiracy.
Clause 3 of Section 9 of Article I of the United States
Constitution declares, "No Bill of Attainder or ex post facto Law
shall be passed." This prohibition includes "[e]very law that
changes the punishment, and inflicts a greater punishment, than
the law annexed to the crime, when committed." Calder v. Bull,
3 U.S. 386, 390 (1798); see also, e.g., Dobbert v. Florida,
432 U.S. 282, 292, 97 S. Ct. 2290, 2298 (1977) ("It is settled, by
decisions of this Court so well known that their citation may be
dispensed with, that any statute . . . which makes more burdensome the punishment for a crime, after its commission . . .
is prohibited as ex post facto." (citing Beazell v. Ohio,
269 U.S. 167, 169-170, 46 S.Ct. 68, 68 (1925)). Even statutory
revival of a criminal prosecution after the statute of
limitations has expired threatens the harm of distraction of
quietude ex post facto rules protect against. Stogner v.
California, 539 U.S. 607, 123 S. Ct. 2446 (2003).
Some of the parties' confusion can be attributed to the many
layers of the statute under which defendant is charged. It reads
A person who, in the course of a violation of
subsection (c), causes the death of a person through
the use of a firearm, shall (1) if the killing is a
murder (as defined in section 1111), be punished by
death or by imprisonment for any term of years or
for life . . .
18 U.S.C. § 924(j)(1) (emphasis supplied). Section 1111 of Title
18 defines murder as "the unlawful killing of a human being with
malice aforethought." 18 U.S.C. § 1111(a).
The reference in section 924(j)(1) to "subsection (c)" is to
section 924(c), which provides punishment for "any person who,
during and in relation to any crime of violence or drug
trafficking crime . . . uses or carries a firearm, or who, in
furtherance of any such crime, possesses a firearm. . . ."
18 U.S.C. § 924(c)(1)(a) (emphasis supplied).
The term "drug trafficking crime" includes "any felony
punishable under the Controlled Substances Act (21 U.S.C. 801 et
seq.). . . ." 18 U.S.C. § 924(c)(2). The government has alleged
that defendant participated in a drug trafficking crime, to wit:
a conspiracy to distribute and possess with intent to distribute
cocaine and heroin. See Gov't. Resp. to Def.'s Mot. 1; Gov't.
Response to Def.'s Mot. to Strike Death Notice 2; see also
21 U.S.C. § 841(b)(1)(A); 21 U.S.C. § 963. In sum, for purposes of this motion, Count Two of the
indictment is treated as one pursuant to section 924(j)(1) of
Title 18 as a capital charge against defendant for killing
Rosario with malice aforethought using a firearm in the course of
a conspiracy to distribute drugs.
The murder of Rosario occurred on or about September 17, 1992.
Third Sup. Ind. 2. Section 924(j)(1) was added, under a different
heading, to Title 18 by the Violent Crime Control and Law
Enforcement Act of 1994, Pub.L. No. 103-322, § 60013 (1994).
Before enactment of the statute, the crime defendant is charged
with committing in Count Two would have been punishable under
Title 18 by a term of imprisonment only.
Citing recent precedent from the Court of Appeals for the
Eighth Circuit, the government contends that the duration of the
underlying drug conspiracy should determine the date the criminal
conduct was completed. See United States v. Cuervo,
354 F.3d 969, 991-2 (8th Cir.), cert. denied, 125 S. Ct. 199 (2004),
vac'd on other grounds sub nom. Norman v. United States,
125 S. Ct. 1049 (2005). According to this argument, the two elements of
firearm-related murder under section 924(j)(1) murder with a
firearm and the underlying drug trafficking crime are equally
vital in determining the duration of the offense and must be
conjoined contemporaneously. Had defendant discontinued his
alleged drug conspiracy at any point before the passage of the
1994 act, the government concedes, he would not have been subject
to its provisions. Because he continued his drug conspiracy
beyond the date of the new statute, the government avers, he can
be prosecuted for both the conspiracy and the 1992 murder
together now a capital offense. The Cuervo court, in a brief analysis, relied upon a
United States Supreme Court case on venue, United States v.
Rodriguez-Moreno, 526 U.S. 275, 281-2, 119 S. Ct. ...