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December 26, 1990

ALEXANDER COOPER, et al., Defendants

The opinion of the court was delivered by: SHADUR


 This is the first case in the country -- and so far as this Court knows it is still the only case -- in which the United States seeks imposition of the death penalty under the now-two-year-old provisions of 21 U.S.C. § 848 ("Section 848"). *fn1" Anthony Cooper ("Cooper") and Darnell Davis ("Davis," named in the indictment as "Anthony Davis") are charged in these terms in Count Three of the second superseding indictment (the "Indictment"):

 The SPECIAL APRIL 1990 GRAND JURY further charges:

1. The Grand Jury realleges Count Two of this indictment as though fully set forth here. *fn2"
2. On or about February 6, 1989, at Chicago, in the Northern District of Illinois, Eastern Division,
defendants herein, while engaged in and working in furtherance of a continuing criminal enterprise, intentionally killed and counseled, commanded, induced, procured and caused the intentional killing of Robert Parker, and such killing resulted;
In violation of Title 21, United States Code, Section 848(e)(1)(A), and Title 18, United States Code, Section 2.

 Not surprisingly, both Cooper and Davis have loosed a barrage of attacks on the prosecution of that charge, *fn3" and their numerous motions have now been fully briefed. This memorandum opinion and order deals with all the motions that speak to or implicate the constitutionality of Section 848.

 At the outset it should be said that, all things considered, this opinion is shorter than it might have been. That does not of course reflect any lack of appreciation on this Court's part for the gravity of the issues involved, and it certainly does not connote less than full consideration of those issues. Every issue posed by the parties has been canvassed thoroughly -- and all the authorities on which they rely (and more) have been read. What has occasioned the shorter treatment of the issues that is reflected in this opinion is not the press of other matters -- other matters are always pressing -- but rather the facts (1) that the parties' briefing of those issues took substantially longer than the parties had originally planned and (2) that we are dealing with a long-established and absolutely firm February 5, 1991 date for the commencement of the anticipated lengthy trial. Because the litigants need as much lead time as possible for preparation, it is important that this Court rule on the multifarious issues posed by the defendants' motions at the earliest possible date -- and that has in turn forced the production of a shorter discussion than the extended essay that some of the issues might well have stimulated. *fn4" In any case, what follows suffices to state this Court's conclusions and the reasons supporting them.

 Constitutionality of Section 848

 Cooper and Davis have launched a number of challenges to the constitutionality of the death sentence provisions (mainly but not exclusively under the Eighth Amendment's prohibition of cruel and unusual punishment). *fn5" No effort will be made to sort those challenges out in their order of importance. Instead the several arguments will be dealt with seriatim. *fn6"

 Cooper complains (without citation of supporting authority) about the absence of pretrial discovery as to the matters in aggravation that the government seeks to rely upon in order to underpin the death penalty. That complaint not only lacks any affirmative support in the case law but also ignores the a fortiori negative impact of Silagy v. Peters, 905 F.2d 986, 994-97 (7th Cir. 1990). There our Court of Appeals upheld the Illinois death penalty statute against a claim that the absence of any required notice to a defendant that the State would seek the death penalty violated that defendant's federal constitutional rights (the rights to effective assistance of counsel under the Sixth Amendment and to procedural due process under the Fourteenth Amendment). Here, by contrast, Cooper and Davis have been given notice not only of the government's intention to pursue the death penalty but also of the specific aggravating factors on which the government plans to rely in that effort. *fn7"

 As for those aggravating factors, Cooper and Davis advance a number of contentions as to asserted flaws in Section 848 or in the government's compliance with Section 848(h) in that regard. Although none proves to have substantive merit, they will be set out and discussed in turn.

 First, Cooper Mem. 1 urges:

All of the aggravating factors in subparagraph (n)(1) are inherent in the underlying offense so that this factor is already determined before the death penalty and thus the sentencing body need find only one aggravating factor to impose the sentence of death.

 But Lowenfield v. Phelps, 484 U.S. 231, 241-46, 98 L. Ed. 2d 568, 108 S. Ct. 546 (1988) overrode that precise argument in a situation in which the only aggravating factor found by the jury at the penalty phase "was identical to an element of the capital crime of which he was convicted" ( id. at 241) or "duplicated one of the elements of the crime" ( id. at 246). All but two Justices found that situation satisfied the "narrowing function" that the Supreme Court has held mandated by the Constitution ( id. at 244-46). Hence this case again follows a fortiori -- for Section 848(k) expressly conditions the potential of a death sentence on the jury's finding not only one of the aggravating factors set out in Section 848(n)(1) (the statutory provision that has been targeted by Cooper's motion) but also at least one of the other aggravating factors listed in Section 848(n)(2) through (n)(12).

 Cooper also contends that Section 848 impermissibly shifts the burden of the proof to a defendant by requiring him or her to establish the existence of mitigating factors by a preponderance of the evidence. But that argument too flies directly in the face of recent Supreme Court precedent, in this case less than a year old. Walton v. Arizona, 497 U.S. 639, 111 L. Ed. 2d 511, 110 S. Ct. 3047, 3055 (1990) held that if the statutory "method of allocating burdens of proof [at sentencing] does not lessen the [prosecution's] burden to prove . . . the existence of aggravating circumstances, a defendant's constitutional rights are not violated by placing on him the burden of proving mitigating circumstances sufficiently substantial to call for leniency." *fn8" In this instance Section 848(j) expressly provides:

The burden of establishing the existence of any aggravating factors is on the Government, and is not satisfied unless established beyond a reasonable doubt.

 That specifically meets the constitutional standard stated in Walton.

 Next Cooper Mem. 2 attacks as "impermissibly vague" and as "afford[ing] the sentencing body no standard whatsoever" the Section 848(k) formula for sentencing -- one that calls for the balancing of aggravating and mitigating circumstances. On that score Cooper misses "the fundamental difference between the nature of the guilt/innocence determination . . . and the nature of the life/death choice at the penalty phase" ( California v. Ramos, 463 U.S. 992, 1007, 77 L. Ed. 2d 1171, 103 S. Ct. 3446 (1983)). As for the first of those determinations, the government must meet the beyond-a-reasonable-doubt standard of proof as to every element of the charged offense, and nothing in Section 848 changes that. But on the second decision, the process of weighing multiple interacting factors admits of no such single standard of proof for the balancing of aggravating and mitigating circumstances -- as Justice White said for the four-Justice plurality in Franklin v. Lynaugh, 487 U.S. 164, 179, 101 L. Ed. 2d 155, 108 S. Ct. 2320 (1988) (citation omitted):

And we have never held that a specific method for balancing mitigating and aggravating factors in a capital sentencing proceeding is constitutionally required. *fn9"

 Cooper then mischaracterizes Section 848 as vesting the government with "unfettered discretion" in deciding what evidence may be introduced in aggravation. Instead Section 848(j) specifically limits the proof at the sentencing phase to (1) matters introduced at trial (but that only if the sentencer was not at the trial, *fn10" or alternatively in the discretion of the trial judge and not the government) and (2) information that is found relevant to any mitigating or government-identified aggravating factors (again a judicial determination, with the judge being authorized to apply precisely the same exclusionary concept that is embodied in Fed. R. Evid. 403). Once more Silagy (see 905 F.2d at 996-98), though addressing the Illinois statute rather than Section 848, provides a direct precedent for upholding that entire procedure.

 In similar fashion both Cooper and Davis advance a void-for-vagueness onslaught against the aggravating factor stated in Section 848(n)(12):

The defendant committed the offense in an especially heinous, cruel, or depraved manner in that it involved torture or serious physical abuse to the victim.

 If the statute had placed what the British term a "full stop" -- a period -- after the word "manner," defendants would be right ( Maynard v. Cartwright, 486 U.S. 356, 363-64, 100 L. Ed. 2d 372, 108 S. Ct. 1853 (1988)). But the statute does not -- instead it expressly limits the factor to crimes that "involved torture or serious physical abuse to the victim." And by doing so it provides a constitutionally sufficient standard (see id. at 364-65). *fn11"

 Davis also argues that Section 848(n)(12) is unconstitutional as applied to the facts of this case. That argument is of course premature -- and although it is rejected now for that reason, it may be re-raised based on the proof at trial. In reply Davis contends that any such deferral operates to his prejudice by providing a "death-qualified" jury and by potentially forcing tactical defense decisions because of the potential of a death sentence. But those arguments are unpersuasive, because they ignore the fact that those considerations are simply not ascribable to Section 848(n)(12) under the circumstances of this case -- for here the government is asserting various other aggravating factors as well. That means that a death-qualified jury will have to be selected in any event, and defense counsel must plan against the eventuality of a death sentence whether or not the evidence at trial turns out to support the arguable applicability of Section 848(n)(12).

 Next, Davis alone urges that the aggravating factor in Section 848(n)(8) -- that defendant committed the offense "after substantial planning and premeditation" -- is both impermissibly vague and also (in its "premeditation" requirement) impermissibly duplicates an element of the underlying offense. Neither argument is persuasive. As for the first of them:

1. "Premeditation" is a term commonly employed and universally understood in the first degree murder context (see, e.g., United States v. Brown, 518 F.2d 821, 825 (7th Cir. 1975), approving a jury instruction as to the meaning of "premeditated" in Section 1111, defining the federal statutory crime of first degree murder). Indeed, the existence of first-degree murder charges with that invariable requirement in every jurisdiction really forms the thrust of Davis' second argument.
2. "Planning" is a commonly understood term, and the "substantiality" requirement is frequently encountered and readily understood in a number of contexts in criminal law (see such cases as Blystone v. Pennsylvania, 494 U.S. 299, 108 L. Ed. 2d 255, 110 S. Ct. 1078, 1084 (1990) and United States v. Rovetuso, 768 F.2d 809, 821 (7th Cir. 1985)).

 To turn from the aggravating to the mitigating factors, it is really a complete answer to the constitutional challenges mounted by both Cooper and Davis that the Section 848(m) listing is purely exemplary and not at all restrictive: Each defendant has the wholly unfettered power to offer whatever he wishes to make certain that the "capital-sentencing jury be allowed to consider and give effect to all relevant mitigating evidence" ( Blystone, 110 S. Ct. at 1082 (emphasis added)). That power totally takes the wind out of the sails of such arguments as any claimed absence of precision in the statutory terms that speak to whether defendant was "youthful" (Section 848(m)(5)) or had a "significant" prior criminal record (Section 848(m)(6)) or committed the offense under "severe mental or emotional disturbance" (Section 848(m)(7)). *fn12" And Cooper's other related argument -- that the difference between the mitigating factors specifically referred to in the Illinois death-penalty statute and the nonexclusive, nonrestrictive enumeration in Section 848 creates "arbitrary distinctions between Federal and State death penalty defendants" (Mem. 3) -- voices a bizarre notion of equal protection unknown to the law.

 Davis then separately attempts to turn the anti-discrimination directive of Section 848(o)(1) on its head. Congress there provided:

In any hearing held before a jury under this section, the court shall instruct the jury that in its consideration of whether the sentence of death is justified it shall not consider the race, color, religious beliefs, national origin, or sex of the defendant or the victim, and that the jury is not to recommend a sentence of death unless it has concluded that it would recommend a sentence of death for the crime in question no matter what the race, color, religious beliefs, national origin, or sex of the defendant, or the victim, may be. The jury shall return to the court a certificate signed by each juror that consideration of the race, color, religious beliefs, national origin, or sex of the defendant or the victim was not involved in reaching his or her individual decision, and that the individual juror would have made the same recommendation regarding a sentence for the crime in question no matter what the race, color, religious beliefs, national origin, or sex of the defendant, or the victim, may be.

 It is a total misreading of that provision to say, as Davis does, that he might be barred from presenting potentially mitigating evidence to the jury on any of the subjects referred to in that provision. There is certainly no point in speculating now in abstract terms -- instead, if the possibility of mitigation based on any of those factors were to eventuate at the sentencing hearing, this Court would deal with it appropriately on Davis' request at that time.

 Next both Cooper and Davis argue (without any citation to authority except for Davis' footnote citation to Justice Stevens' dissent in Spaziano v. Florida, 468 U.S. 447, 476, 82 L. Ed. 2d 340, 104 S. Ct. 3154 (1984)) a constitutional right to a bench sentencing rather than jury sentencing (Section 848(i)(1)(C) gives the government an effective veto power over any defendant's request in that respect). Davis' effort to rely on that dissent is truly mysterious. In fact Justice Stevens (joined by Justices Brennan and Marshall) there expressed serious reservations about assigning that function to a judge at all:

 If anything, that would provide powerful support for an argument that a statute mandating the opposite of what Section 848 provides -- that is, a requirement for judicial death sentencing -- might suffer constitutional infirmity. It surely does not suggest the unconstitutionality of a statute withholding that option from a defendant. It is worth observing that defendants' position really reverses the preference for jury sentencing voiced not only in Justice Stevens' just-quoted opinion but also in such cases as Witherspoon v. Illinois, 391 U.S. 510, 519 n.15, 20 L. Ed. 2d 776, 88 S. Ct. 1770 (1968) *fn13" and Gregg v. Georgia, 428 U.S. 153, 190, 49 L. Ed. 2d 859, 96 S. Ct. 2909 (1976). More important, it is difficult to accept defendants' contention in light of the nonexistence of any constitutional right of a defendant to waive a jury trial and insist upon a bench trial as to his or her guilt ( Singer v. United States, 380 U.S. 24, 36, 13 L. Ed. 2d 630, 85 S. Ct. 783 (1965); United States ex rel. Williams v. DeRobertis, 715 F.2d 1174, 1178 (7th Cir. 1983)). *fn14"

 Nor does this Court find any persuasiveness in the next set of arguments advanced by Cooper: the grab-bag that his memorandum labels "Miscellaneous." Those contentions merit no more than short shrift:

1. It cannot fairly be said that the existence of prosecutorial discretion in asking for the death penalty "virtually guarantees" that it will be imposed in an arbitrary and capricious manner. That argument is effectively scotched by the numerous cases upholding the constitutionality of statutes conferring such discretion (see, e.g., Gregg, 428 U.S. at 199; Proffitt, 428 U.S. at 254; Jurek v. Texas, 428 U.S. 262, 274, 49 L. Ed. 2d 929, 96 S. Ct. 2950 (1976); Silagy, 905 F.2d at 990-94).
2. Except for the consistent statements to the contrary by Justice Marshall and former Justice Brennan, the Supreme Court and its Justices have not found the death penalty unconstitutional as such. Nor has Cooper suggested any anti-black motivation on the part of Congress in enacting Section 848 or on the part of the prosecutor in seeking the death penalty here.
3. Section 848(j) eliminates a presentence investigation report for any defendant found guilty under Section 848(e) -- but it obviously does so because the hearing provided for under Section 848(j) and the determination under Section 848(k) supplant the judicial sentencing that takes place in all other classes of cases. No constitutional right is implicated in that elimination.

  Both Cooper and Davis also complain of the absence of a provision for "comparative proportionality review" *fn15" in Section 848. But Pulley, 465 U.S. 37, 50-51, 79 L. Ed. 2d 29, 104 S. Ct. 871 has expressly rejected the notion that such absence is a constitutional flaw:

There is thus no basis in our cases for holding that comparative proportionality review by an appellate court is required in every case in which the death penalty is imposed and the defendant requests it. Indeed, to so hold would effectively overrule Jurek and would substantially depart from the sense of Gregg and Proffitt. We are not persuaded that the Eighth Amendment requires us to take that course.

 Accord, Silagy, 905 F.2d at 1000.

 In a separate motion Cooper seeks to strike the government's non-statutory aggravating factors identified in its notice to Cooper under Section 848(h)(1)(B) (those are factors 5 through 8 specified in the notice). There are really two facets of the answer to that effort. Either alone would suffice to defeat it, and combined they certainly assure that result.

 First of all, because the government's inclusion of additional factors does not relieve it of the burden to prove -- beyond a reasonable doubt -- both statutory factor Section 848(n)(1) and at least one other statutory factor among those listed in Section 848(n)(2) through (n)(12), Cooper cannot complain that the government may thus have undertaken an added burden. For that purpose the only question is whether the additional "information is relevant to the character of the defendant or the circumstances of the crime" ( Barclay v. Florida, 463 U.S. 939, 967, 77 L. Ed. 2d 1134, 103 S. Ct. 3418 (1983) (Stevens, J., concurring)) -- a test readily met here. Second, the particular added factors that have been included by the government may not be stricken just because another non-capital criminal statute (Section 1512) proscribes the murder of a witness -- where the same act violates more than one criminal statute, the government may choose to proceed under any of them (or all if it chooses) ( United States v. Hermon, 817 F.2d 1300, 1302 (7th Cir. 1987)). *fn16"

 Cooper also urges that Section 848(k) and 848(l) are internally inconsistent and void for vagueness. In candor, that notion is simply based on a misreading of the provisions -- and the same is true of Cooper's contention that Section 848(e)(1) requires mandatory imposition of the death penalty and is hence violative of the Fifth Amendment. That is either based on a misunderstanding of the statutory language or is another way of attacking its provision for jury sentencing (an issue already dealt with in this opinion).

 As for Davis, by separate motion he seeks dismissal of Count Three based on the claimed unconstitutionality of Section 848(e)(1)(A). That motion is predicated on the fact that Davis, unlike Cooper, is not charged with having substantively violated the "continuing criminal enterprise" provisions of Section 848(a) (Count Two of the indictment names Cooper alone as the defendant there). According to Davis, his inclusion in Count Three for the intentional killing of Robert Parker "while engaged in and working in furtherance of a continuing criminal enterprise" invokes a statute that (1) does not give him adequate notice of the proscribed conduct and (2) is unconstitutionally vague and (3) fails to except killings that are justified or are mitigated by circumstances that lessen a defendant's culpability. There is simply nothing to the "in-furtherance-related" argument (see the familiar and often-interpreted provision of Fed. R. Evid. 801(d)(2)(E)), while "continuing criminal enterprise" is defined with adequate precision in Section 848(e). And the final contention ignores the teaching of Lowenfield, 484 U.S. at 246 that the necessary narrowing function for any possibility of capital punishment may be provided by a more-broadly-defined set of capital offenses coupled with the statutory requirement (as here) for jury findings of aggravating circumstances at the penalty phase.


 This opinion has been necessarily discursive in nature, because it has been forced to deal with such a broad congeries of arguments advanced by one or both of the defendants here. None of them has prevailed, however -- and the end result is that Section 848 is constitutional in all the respects challenged by either Cooper or Davis or both. *fn17" This trial will proceed as one potentially involving the death penalty for either or both of them. *fn18"



 (b) Any person who violates subsection (a) of this section is punishable by a term of imprisonment up to twice that otherwise authorized, or up to twice the fine otherwise authorized, or both, and at least twice any term of supervised release otherwise authorized for a first offense. Except to the extent a greater minimum sentence is otherwise provided, a term of imprisonment under this subsection shall not be less than one year.

 Penalty for second offenses

 (c) Any person who violates subsection (a) of this section after a prior conviction under subsection (a) of this section have become final, is punishable by a term of imprisonment up to three times that otherwise authorized, or up to three times the fine otherwise authorized, or both, and at least three times any term of supervised release otherwise authorized for a first offense. Except to the extent a greater minimum sentence is otherwise provided, a term of imprisonment under this subsection shall not be less than one year. Penalties for third and subsequent convictions shall be governed by section 841(b)(1)(A) of this title.

 Penalty for providing or distributing controlled substance to underage person

 (d) Any person who violates subsection (a)(1) or (2) of this section

(1) by knowingly providing or distributing a controlled substance or a controlled substance analogue to any person under eighteen years of age; or
(2) if the person employed, hired, or used is fourteen years of age or younger,

 shall be subject to a term of imprisonment for not more than five years or a fine of not more than $ 50,000, or both, in addition to any other punishment authorized by this section.

 Suspension of sentence; probation; parole

 (e) In any case of any sentence imposed under this section, imposition or execution of such sentence shall not be suspended and probation shall not be granted. An individual convicted under this section of an offense for which a mandatory minimum term of imprisonment is applicable shall not be eligible for parole under section 4202 of Title 18 until the individual has served the mandatory term of imprisonment as enhanced by this section.

 Distribution of controlled substance to pregnant individual

 (f) Except as authorized by this subchapter, it shall be unlawful for any person to knowingly or intentionally provide or distribute any controlled substance to a pregnant individual in violation of any provision of this subchapter. Any person who violates this subsection shall be subject to the provisions of subsections (b), (c), and (e) of this section.

 (Pub.L. 91-513, Title II, § 405B, as added Pub.L. 99-570, Title I, § 1102, Oct. 27, 1986, 100 Stat. 3207-10, and amended Pub.L. 100-690, Title VI, §§ 6452(b)(1), 6459, 6470(d), Nov. 18, 1988, 102 Stat. 4371, 4373, 4378.)


 References in Text. "This subchapter", referred to in subsecs. (a) and (f), was in the original "this title" which is Title II of Pub.L. 91-513, Oct. 27, 1970, 84 Stat. 1242, and is popularly known as the "Controlled Substances Act". For complete classification of Title II to the Code, see Short Title note set out under section 801 of this title and Tables volume.

 "Subchapter II of this chapter", referred to in subsec. (a), was in the original "title III", meaning Title III of Pub.L. 91-513, Oct. 27, 1970, 84 Stat. 1285. Part A of Title III comprises subchapter II of this chapter. For classification of Part B, consisting of sections 1101 to 1105 of Title III, see Tables volume.

 § 846. Attempt and conspiracy

 Any person who attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.

 (Pub.L. 91-513, Title II, § 406, Oct. 27, 1970, 84 Stat. 1265, amended Pub.L. 100-690, Title VI, § 6470(a), ...

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