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United States v. Arnold

United States District Court, E.D. Michigan, Southern Division

August 13, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
BILLY ARNOLD, D-1, Defendant.

          ORDER DENYING DEFENDANT'S MOTION TO DECLARE THE DEATH PENALTY UNCONSTITUTIONAL AND TO STRIKE THE NOTICE OF INTENT [ECF NO. 1399]

          GEORGE CARAM STEEH UNITED STATES DISTRICT JUDGE.

         This matter is before the court on defendant Billy Arnold's motion to declare the death penalty unconstitutional and to strike the notice of intent. ECF No. 1399. The government filed a response brief, ECF No. 1425, and defendant did not file a reply. Neither party has requested oral argument or an evidentiary hearing and the court agrees that the motion can be resolved on the briefs. For the reasons stated below, the court denies defendant's motion.

         I. BACKGROUND

         On January 3, 2018, a federal grand jury returned a sixth superseding indictment charging 21 defendants with various crimes, including violating the Racketeering Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961 et seq. Defendant Arnold is charged with two counts of murder in aid of racketeering, two counts of using and carrying a firearm during and in relation to a crime of violence causing death, RICO conspiracy, numerous VICAR counts, possession of a firearm during and in relation to a crime of violence (RICO conspiracy), and felon in possession of a firearm. ECF No. 812. On January 8, 2018, the government filed its notice of intent to seek the death penalty against Arnold. ECF No. 817.

         Defendant raises three per se challenges to the federal death penalty based on the Eighth Amendment and the Fifth Amendment Due Process Clause, including the guarantee of equal protection under the clause. Defendant asks the court to strike the notice of intent to seek the death penalty because (1) the death penalty is imposed in an arbitrary and capricious manner, and is infected by geographic disparities and racial discrimination; (2) the death penalty is cruel and unusual punishment based on evolving standards of decency; and (3) applying the death penalty has resulted and will continue to result in the execution of innocent individuals.

         II. DISCUSSION

         A. Background of Modern Federal Death Penalty

         In 1972, the Supreme Court held that all then-existing death penalty statutes were unconstitutional in violation of the Eighth and Fourteenth Amendments because those statutes gave juries unhindered discretion to impose or withhold the death penalty. Furman v. Georgia, 408 U.S. 238 (1972). Each of the justices filed a separate opinion in the 5-4 decision. In his concurring opinion, Justice Douglas recognized that our nation is committed to equal protection of the laws, “[y]et we know that the discretion of judges and juries in imposing the death penalty enables the penalty to be selectively applied, feeding prejudices against the accused if he is poor and despised, and lacking political clout, or if he is a member of a suspect or unpopular minority, and saving those who by social position may be in a more protected position.” Id. at 255 (Douglas, J., concurring). Justice White highlighted the infrequent utilization of the death penalty, which “is exacted with great infrequency even for the most atrocious crimes and that there is no meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not.” Id. at 313 (White, J., concurring). The infrequency with which defendants were targeted for capital punishment was noted by each of the five justices who concurred in the majority. See id. at 248 n. 11 (Douglas, J. concurring); id. at 291-95 (Brennan, J., concurring); id. at 309-10 (Stewart, J., concurring); and id. at 354 n. 124 and 362-63 (Marshall, J., concurring).

         Following the decision in Furman, many states reinstated revised death penalty statutes that addressed and sought to correct the Supreme Court's concerns. In 1976, the Court heard challenges from five men who had been prosecuted and sentenced to death under newly-enacted post-Furman statutes. In three of the cases the Court concluded that the states had successfully met the constitutional concerns raised in Furman. Gregg v. Georgia, 428 U.S. 153 (1976); Jurek v. Texas, 428 U.S. 262 (1976); Proffitt v. Florida, 428 U.S. 242 (1976). The Court struck down the sentencing schemes in the other two statutes because they provided for a mandatory death penalty and did not allow for juror discretion and the consideration of mitigation information about a defendant's background and character. Woodson v. North Carolina, 428 U.S. 280 (1976); Roberts v. Louisiana, 428 U.S. 325 (1976).

         In 1988, Congress enacted a federal death penalty as part of the Anti-Drug Abuse Amendments (“ADAA”), authorizing capital punishment for a defendant convicted of a murder committed while engaging in a continuing criminal enterprise. 21 U.S.C. § 848(e). In 1994, the Federal Death Penalty Act (“FDPA”) was signed into law, 18 U.S.C. § 3591 et seq. The FDPA expanded the application of the federal death penalty by making 60 crimes death-eligible. This includes murder of designated government officials, kidnapping resulting in death of the victim, murder for hire, fatal drive-by shootings, car-jacking resulting in death, and certain crimes not necessarily resulting in death such as the running of a large-scale drug enterprise. 18 U.S.C. § 3591 (incorporating other statutes). The prosecution of Billy Arnold is brought pursuant to the FDPA for the offenses of: (1) murder in aid of racketeering activity, aiding and abetting, which resulted in the deaths of two individuals, in violation of 18 U.S.C. §§ 1959(a)(1) and 2 (Counts 4 and 16); and (2) use and carry of a firearm during and in relation to a crime of violence causing death, aiding and abetting, which resulted in the deaths of the two individuals, in violation of 19 U.S.C. §§ 924(c); 924(j); and 2 (Counts 5 and 17).

         The FDPA sets forth the mechanics of a federal death penalty trial. First, the jury must decide whether the defendant had the requisite intent to commit the death eligible offense. 18 U.S.C. § 3591(a). The jury must unanimously find that intent was established beyond a reasonable doubt to move to the penalty phase. At that point, the jury considers the statutory aggravating factors alleged by the government in the notice of intent to seek the death penalty. 18 U.S.C. § 3592 (b)-(d). The jury must unanimously determine that the government has proven at least one of the statutory aggravating factors beyond a reasonable doubt to move to the next step of the penalty process. § 3593(c). The next step in determining whether the death penalty is appropriate is for the jury to consider the statutory aggravating factor or factors, plus the non-statutory aggravating factors for which notice has been given, and to weigh them against any mitigating factors. Non-statutory aggravating factors must be unanimously found beyond a reasonable doubt, while mitigating factors need only be established by a preponderance of the evidence. Furthermore, unanimity is not required when it comes to mitigating factors; any juror persuaded that a mitigating factor exists may consider it in reaching a sentencing decision. § 3593(c), (d). See United States v. Nguyen, 928 F.Supp. 1525, 1532 (D. Kan. 1996).

         The government points out that defendant's challenges are not ripe as a sentence of death has not been imposed in this case. The government indicates it has no objection to the court considering the motion at this time and applying its decision later as law of the case. ECF No. 1425, PageID 18815-18816, n. 1. This is the course the court will take.

         B. Arbitrary and Capricious

         1. Infrequently Sought, ...


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