Petitioner-Appellant Curtis Matthews pleaded guilty to an information charging him with racketeering, drug-related murder, and the use of a firearm. Matthews contends that he was unconstitutionally charged by information with a crime that could expose him to capital punishment, in violation of his Fifth Amendment right to indictment by a grand jury for a capital offense. While drug-related murder can be punishable by death if certain aggravating circumstances are specified in the charging instrument, no such aggravating factors were specified in the information. Accordingly, Matthews was not charged with a capital offense. His conviction is therefore AFFIRMED.
The opinion of the court was delivered by: Gerard E. Lynch, Circuit Judge
Before: RAGGI AND LYNCH, Circuit Judges, GARAUFIS, District Judge.*fn1
This case requires us to decide whether the Fifth Amendment guarantees an unwaivable right to indictment by grand jury if the statute under which the defendant is charged authorizes capital punishment under some circumstances. We hold that such an unwaivable right exists only where the charging instrument exposes the defendant to the risk of capital punishment.
In December 2000, a security guard was shot and robbed as he transported deposits from a North Fork Bank ATM. The FBI's investigation of the robbery ultimately led to Curtis Matthews, a member of the so-called "M&P Crew," a criminal group operating in the area of Miller and Pitkin Avenues in Brooklyn, New York. The M&P Crew distributed marijuana, MDMA, cocaine, and crack cocaine, and engaged in armed robbery, kidnaping, arson, and murder. Matthews and other members of the M&P Crew were indicted on charges of bank robbery, conspiracy to commit bank robbery, and using a firearm in furtherance of a claim of violence arising from the North Fork Bank robbery. Matthews was later named in a superseding indictment charging him with a broad range of crimes arising from the activities of the M&P Crew, including racketeering, robbery, conspiracy to distribute several drugs, murder in aid of racketeering, and several firearms counts.
The murder charge stemmed from a drug rivalry. In December 2001, Matthews was shot by a marijuana dealer named Sheldon Joehill, with whom the M&P Crew had been fighting. Joehill fired from a truck he had borrowed from Raymon Bholaisingh. Three months after he was shot, Matthews saw Bholaisingh and Lennox Bradley in the truck and mistakenly concluded that the two had been involved in the shooting. In retaliation, Matthews shot and killed Bradley, and directed another M&P crew member to shoot Bholaisingh.
Matthews's trial was scheduled to begin in June 2006. In late May, however, Matthews entered a plea agreement under which he agreed to waive indictment and plead guilty to a superseding information charging him with one count each of racketeering, 18 U.S.C. § 1962(c), drug-related murder, 21 U.S.C. § 848(e)(1)(A), and the use of a firearm in furtherance of the drug-related murder, 18 U.S.C. § 924(c)(1)(A)(iii). The plea agreement specified that the statutory maximum for both the drug-related murder and the firearm count was life imprisonment. The plea agreement estimated the applicable guidelines sentencing range to be 360 months to life, plus a consecutive 120 months on the firearms charge.
On May 30, 2006, Matthews waived indictment and pleaded guilty to all counts of the superseding information. The district court asked why the government had not obtained a superseding indictment rather than proceeding by information, as a superseding indictment would not have required an allocution waiving the right to a grand jury. The government responded that it was under a time constraint, and the court proceeded with the allocution, ultimately finding that Matthews had knowingly and voluntarily waived his right to indictment by a grand jury. In June 2007, the district court sentenced Matthews to fifty years' imprisonment, consisting of forty years for racketeering and forty years for drug-related murder, to run concurrently, and a consecutive ten years for the firearm charge. Matthews raised no objection, either at plea or sentence, to the absence of a grand jury indictment.
In June 2008, Matthews filed a pro se petition to vacate his sentence under 28 U.S.C. § 2255, arguing first, that he had received ineffective assistance of counsel, and second, that the district court lacked jurisdiction because he was charged by information rather than indictment under a statute, 21 U.S.C. § 848(e)(1)(A), which permits imposition of a death sentence under certain circumstances. The district court denied Matthews's petition. We granted a certificate of appealability, limited to the second issue.
Matthews argues that because he was charged by information with a crime that could, under some circumstances, be punishable by the death penalty, his Fifth Amendment right to indictment by a grand jury was violated. The Fifth Amendment provides that "[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury...." U.S. Const. amend. V, cl. 1. Thus, in the courts of the United States, a defendant may not be charged with a capital crime, or indeed with any felony, unless the charge is brought by a grand jury. Green v. United States, 356 U.S. 165, 183 (1958) (overruled on other grounds Bloom v. Illinois, 391 U.S. 194 (1968); Mackin v. United States, 117 U.S. 348, 350-52 (1886). This right, however, like most other rights of criminal defendants, ordinarily may be waived, if the waiver is knowing and intelligent. See Fed. R. Crim. P. 7(b) (permitting waiver of indictment and prosecution by information for non-capital felonies); see also United States v. Ferguson, 758 F.2d 843, 850-51 (2d Cir. 1985) ("Waiver of indictment is an act clothed in formality. Although no particular catechism is prescribed, the waiver must be made in open court, defendants must be informed of the nature of and the cause for the accusation, and the court must be satisfied that the defendants waive their rights, knowingly, intelligently, and voluntarily."). Such waivers are not unusual, especially in connection with plea agreements.
Matthews contends that his circumstances fall within a limited exception to the waivability of the right to grand jury indictment, carved out by the Supreme Court a half-century ago. In Smith v. United States, 360 U.S. 1 (1959), the Supreme Court reversed the conviction of Johnny Ray Smith, who had waived indictment and pleaded guilty to an information charging him with transporting a kidnaping victim across state lines. The statute under which Smith was charged provided that a person convicted of interstate kidnaping could be punished by death if the victim was harmed, but only by a maximum of life imprisonment if the victim was released unharmed. Id. at 7. The information to which Smith pleaded did not state whether Smith's victim had been released harmed. On appeal, Smith argued that he had been charged with an offense that could be punished by death if the government showed at trial that his victim was harmed. The ...