The opinion of the court was delivered by: Stephen C. Robinson, United States District Judge
MEMORANDUM DECISION AND ORDER
Khalid Barnes ("Defendant"), along with two of his brothers, Dawud Barnes and Tuere Barnes, are charged with multiple crimes allegedly related to their participation in an enterprise the Government refers to as the "Barnes Brothers Organization."*fn1
Defendant is charged with, inter alia, racketeering, narcotics distribution, and murder. On January 19, 2006, the Government served a Notice of Intent to Seek the Death Penalty against Khalid Barnes (the "Notice of Intent") for his alleged involvement in the murders of Demond Vaughan and Sergio Santana.
Defendant now challenges the constitutionality of the Federal Death Penalty Act, 18 U.S.C. §§ 3591 et seq. ("FDPA") and its application to this case.*fn2 Further, the Government asks this Court to file an amended Notice of Intent. For the reasons set forth below, Defendant's motions are DENIED and the Government is granted leave to file its amended Notice of Intent.
On November 1, 2004, a federal grand jury returned a twenty-nine count superceding indictment (the "S2 Indictment"), charging thirteen individuals, including Defendant, with crimes relating to their alleged participation in the Barnes Brothers Organization. The Government alleges that the Barnes Brothers Organization is a violent narcotics distribution ring that operated in and around Peekskill, New York. The S2 Indictment added four counts of capital murder against Khalid Barnes for the murders of Demond Vaughan and Sergio Santana. The S2 Indictment also included a Notice of Special Findings, alleging the existence of certain threshold factors rendering the capital counts eligible for punishment by death.
In its January 19, 2006 Notice of Intent, the Government specifically declared its intention to seek a sentence of death in the event the jury convicts Khalid Barnes of murder. The Notice of Intent also included the particular statutory proportionality factors, see 18 U.S.C. § 3591(a)(2), the statutory aggravating factors, see 18 U.S.C. § 3592(c), and the non-statutory aggravating factors, see 18 U.S.C. § 3593(a)(2), the Government intends to prove at trial to justify a sentence of death.
On August 7, 2006, a federal grand jury returned a thirty-eight count ninth superceding indictment (the "S9 Indictment"), charging Defendant and his two brothers with multiple crimes arising out of their alleged involvement with the Barnes Brothers Organization. The S9 Indictment charges Khalid Barnes with, inter alia, racketeering, in violation of 18 U.S.C. § 1962, racketeering conspiracy, in violation of 18 U.S.C. § 1962(d), various substantive narcotics distribution charges, various gun possession charges, in violation 18 U.S.C. § 924(c), and the murders of Demond Vaughan and Sergio Santana by the use of a firearm during and in relation to, or in furtherance of, a drug trafficking crime or a crime of violence, in violation of 18 U.S.C. § 924(j). The S9 Indictment also included a Notice of Special Findings, alleging the existence of certain threshold factors rendering the capital counts eligible for punishment by death.
The Government has asked this Court for permission to file an amended Notice of Intent that relates to the S9 Indictment. The Government provided this Court and Defendant a proposed amended Notice of Intent that it wishes to file.
II. The Government's Request To File An Amended Notice Of Intent
In a letter dated September 5, 2006, the Government asked this Court to permit it to file an amended Notice of Intent. Defendant argues that the Government should not be permitted to amend its Notice of Intent because the Government does not have "good cause" for the filing of the Amended Notice of Intent and because each of the additional factors the Government wishes to add are not properly charged.
Under the FDPA, a "court may permit the attorney for the government to amend the notice upon a showing of good cause." 18 U.S.C. § 3593(a). The statute, however, does not explain what "good cause" is. Defendant asserts that the Government has not shown good cause because none of the four new non-statutory aggravating factors are premised on any information that was not already known to the Government on January 19, 2006, when it filed the initial notice. In other words, Defendant urges this Court to require the Government to show "excusable neglect." However, Defendant has not identified any instance where a court found that the government must show "excusable neglect" to amend a notice of intent. Indeed, this Court has only found cases that stand for the proposition that good cause is shown whenever the government can demonstrate that there was no deliberate delay by the government and no prejudice to the defendant. See, e.g., United States v. Taveras, 436 F. Supp.2d 493, 502 (E.D.N.Y. 2006) ("Good cause is demonstrated where 'the government's application was made in good faith and the defendant was not prejudiced.'" (quoting United States v. Pitera, 795 F. Supp. 571, 573 (E.D.N.Y. 1992)); see also United States v. Cuff, 38 F. Supp.2d 282, 285 (S.D.N.Y. 1999) ("Absent some showing of an unlawful or improper motive in the government's charging decision, or its timing, I have no authority to compel the government to prove excusable neglect."). Judge Ackerman's opinion in United States v. Pretlow, 770 F. Supp. 239, 242 (D.N.J. 1991), is particularly persuasive:
Similar to any superseding indictment, an amendment of these notices has potentially onerous consequences for the defendant. However, when evaluating whether such an amendment should be permitted, the focus should be less on the substantive content of the information being communicated which will almost always be burdensome and more on whether notice was fairly provided in sufficient time for the defendant to adequately prepare his response. Put differently, this court sees no reason to insist on the more stringent excusable neglect standard. A definition of good cause which emphasizes the good faith of the government and any resulting prejudice to the defendant is sufficient to protect the defendant's and the public's interest in adequate notice.
Accordingly, the Court concludes that the government is permitted to amend a notice of intent under 3593(a) where there is no deliberate delay by the government and no prejudice to the defendant. Because there is no evidence -- nor does Defendant allege -- any deliberate delay on the part of the Government, and because Defendant does not assert that he suffered any prejudice from the timing of the Amended Notice of Intent*fn3, the Court concludes that there is good cause for the Government to amend its Notice of Intent.
Defendant argues that the Government has not properly charged three of the non-statutory aggravating factors in its draft Amended Notice of Intent. Specifically, Defendant asserts that this Court should not permit the Government to include the non-statutory aggravating factors of Defendant's prior conviction, contemporaneous convictions, and potential to be a continuing danger.
As explained below, Defendant's request to strike these three non-statutory aggravating factors from the Amended Notice of Intent is denied. However, a "pre-trial motion such as the one under consideration here is normally not the place to test the sufficiency of the government's evidence with respect to aggravating factors because notices of intent generally need not list specific evidence." United States v. Williams, No. 00-1008, 2004 WL 2980027, at *17 (S.D.N.Y. December 22, 2004). Accordingly, Defendant may renew his objections once this Court has the benefit of a full evidentiary record, and will be in a position to better evaluate whether these factors may properly be considered by the jury during the penalty phase of the trial.
Defendant argues that this Court must strike the non-statutory aggravating factor relating to his 1999 conviction for Interstate Travel in Aid of Racketeering because it does not fall within the three categories of prior convictions that are statutory aggravating factors. See 18 U.S.C. §§ 3592(c)(2) -- (4). Simply because Congress specified that certain crimes were sufficiently serious to be statutory aggravating factors, it does not necessarily follow that it intended to forbid the introduction of other crimes as non-statutory aggravating factors. Rather, "in light of the wide agreement in the courts that a defendant's prior criminal history, including for drug violations, is a permissible non-statutory aggravating factor, we must reject [Defendant's] argument at this point." Williams, 2004 WL 2980027, at *20 (collecting cases).
2. Contemporaneous Convictions
Defendant argues that the non-statutory aggravating factor for contemporaneous (or simultaneous convictions) should be also be stricken as "more of the same". Def. Letter of September 20, 2006 at 2-3. It is unclear what Defendant's precise argument is, but to the extent that he argues (as he does with respect to his prior conviction) that the contemporaneous convictions should be stricken because they do not fall within the three categories of prior convictions that are statutory aggravating factors, see 18 U.S.C. §§ 3592(c)(2) -- (4), his argument fails for the same reason as in the case of his prior conviction. More generally, non-statutory aggravating factors based on contemporaneous or simultaneous convictions are not prohibited. Williams, 2004 WL 2980027, at *21-22 (refusing to strike a non-statutory aggravating factor of contemporaneous convictions); United States v. Sampson, 275 F. Supp.2d 49, 107-08 (D. Mass. 2003).
Defendant argues that this factor is unconstitutionally vague and overbroad. However, the Supreme Court has found that an aggravating factor of continuing danger is not unconstitutionally vague. See Jurek v. Texas, 428 U.S. 262, 274-76 (1976); Tuilaepa v. California, 512 U.S. 967, 974 (1994) (citing Jurek with approval); Williams, 2004 WL 2980027, at *19 ("The vagueness argument has been rejected by the Supreme Court, however, and we must therefore do the same."). Moreover, the Court also rejects Defendant's argument that this factor is overbroad. Defendant asserts that continuing danger "may be viewed by a jury as applying to all murderers." Def. Letter of Sept. 20, 2006 at 4. He has not, however, shown that "the sentencer fairly could conclude that [it] applies to every defendant eligible for the death penalty." Arave v. Creech, 507 U.S. 463, 474 (1993). Accordingly, the aggravating factor of continuing danger is not unconstitutionally overbroad. See Williams, 2004 WL 2980027, at *19-20 (rejecting the over breadth argument for the aggravating factor of future dangerousness); see generally United States v. Bin Laden, 126 F. Supp.2d 256, 303-04 (S.D.N.Y. 2000)(stating that "lower courts have uniformly upheld future dangerousness as a non-statutory aggravating factor in capital cases under the FDPA" and collecting cases).
Defendant also argues that the continuing danger factor as it is currently written does not account for the fact that if he is convicted of any of the capital counts in the S9 Indictment but spared the death penalty, he will spend the rest of his life in prison.
Defendant asserts that any aggravating factor of continuing danger must be put in this context. At oral argument, the Government conceded this point. Accordingly, the Government's Amended Notice of Intent should reflect this concession.
In sum, the Government may file its Amended Notice of Intent.
III. Defendant's Death Penalty Motions
A. Frequency of the Federal Death Penalty's Application
Defendant argues that this Court should strike down the FDPA because it is infrequently sought or imposed. In advancing his argument, Defendant principally relies on the Supreme Court's opinion in Furman v. Georgia, 408 U.S. 238 (1972). In Furman, the Court, in a per curiam, one paragraph opinion, held "that the imposition and carrying out of the death penalty in these cases constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments." Id. at 239-40. Several of the Justices who wrote concurring opinions concluded that the infrequency of death sentences was at least one factor that led them to find the death penalty unconstitutional. See id. at 293 (Brennan, J., concurring) ("When the punishment of death is inflicted in a trivial number of the cases in which it is legally available, the conclusion is virtually inescapable that it is being inflicted arbitrarily. Indeed, it smacks of little more than a lottery system."); id. at 309-10 (Stewart, J., concurring) ("These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual. . . . I simply conclude that the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed."); id. at 312-13 (White, J., concurring) ("A penalty with such negligible returns to the State would be patently excessive and cruel and unusual punishment violative of the Eighth Amendment. . . . I cannot avoid the conclusion that as the statutes before us are now administered, the penalty is so infrequently imposed that the threat of execution is too attenuated to be of substantial service to criminal justice."). ...