NINTH CIRCUIT CAPITAL PUNISHMENT HANDBOOK - 2006
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Chapter 5: Capital Punishment Handbook: Federal Death Penalty

        5.1 Federal Death Penalty Crimes

 NINTH CIRCUIT CAPITAL PUNISHMENT HANDBOOK - 2006

Before 1988, there was a limited number of federal death penalty crimes and relatively little procedural guidance for processing these cases or for carrying out a federal death sentence. Then, beginning in 1988 with the Anti-Drug Abuse Act and then in 1994 with the Violent Crime Control and Law Enforcement Act, there was a significantly increased possibility of charging federal defendants with the death penalty. The Anti-Drug Abuse Act of 1988, 21 USC 848(e), created capital punishment for drug related killings. The 1994 Act created several new federal capital offenses and added procedural clarifications to executing these sentences. Prior to the 1994 Act, some federal courts had found some federal death penalty statutes unconstitutionally arbitrary under Furman v. Georgia, 408 U.S. 238 (1972). The 1994 Act attempted to remedy this by including several sections on procedure, statutory aggravating and mitigating circumstances, and appointment of counsel.

Loving v. United States, 517 U.S. 748 (1996) (upholding constitutionality of military death penalty; President’s prescription of aggravating factors does not violate separation of powers).

United States v. Cheely, 36 F.3d 1439 (9th Cir. 1994) (holding that 18 USC§ 844(d) and 1716(a), providing federal death penalty for mail bombing, unconstitutionally allow disparate and arbitrary sentencing, do not “genuinely narrow class of persons eligible for death penalty,” and thus violate Furman v. Georgia).

United States v. Quinones, 313 F.3d 49 (2nd Cir. 2002) (holding that the Federal Death Penalty Act does not violate the Due Process Clause; also holding, relying on Herrera v. Collins (see § 6.3.2.5), that the district court erred in recognizing a fundamental right of an innocent person not to be deprived, by execution, of the opportunity to  demonstrate that person’s actual innocence), cert. denied, 540 U.S. 1051 (2003).

United States v. Battle, 173 F.3d 1343, 1350 (11th Cir. 1999) (holding that 18 USC 3596 is a constitutional delegation of federal power), cert. denied, 529 U.S. 1022 (2000).

United States v. Webster, 162 F.3d 308 (5th Cir) (upholding constitutionality of the Federal Death Penalty Act of 1994), cert. denied, 528 U.S. 829 (1999).

United States v. Moore, 149 F.3d 773, 778 n.2 (8th Cir.) (finding nothing unconstitutionally vague in § 848(e)), cert. denied, 525 U.S. 1030 (1998).

United States v. Walker, 142 F.3d 103 (2d Cir.) (finding § 848(e) a valid exercise of Congress under the Commerce Clause), cert. denied, 525 U.S. 896 (1998).

United States v. Tipton, 90 F.3d 861 (4th Cir. 1996) (upholding constitutionality of § 848; Congress’ power to legislate means of executing death sentence not exclusive power of executive branch), cert. denied, 520 U.S. 1253 (1997).

United States v. McCullah, 76 F.3d 1087 (10th Cir. 1996) (holding statutory and nonstatutory aggravating factors in § 848(e) prosecution constitutionally valid), cert. denied, 520 U.S. 1213 (1997).

United States v. Chandler, 996 F.2d 1073 (11th Cir. 1993) (affirming conviction and death sentence; holding that the sentencing procedures under 21 USC 848 do not violate the Eighth Amendment), cert. denied, 512 U.S. 1227 (1994).

United States v. Woolard, 981 F.2d 756 (5th Cir. 1993) (finding federal statute providing for death penalty for first degree murder of various federal employees unconstitutional because does not require weighing of mitigating evidence).

United States v. Villareal, 963 F.2d 725 (5th Cir.) (holding § 848(e) constitutional; states a crime, not merely a sentencing provision), cert. denied, 506 U.S. 927 (1992).

United States v. Holloway, 29 F. Supp. 2d 435 (M.D. Tenn. 1998) (denying defendant’s motion to dismiss request for death penalty and request for discovery from Department of Justice because defendant failed to present “clear evidence” of discriminatory effect and intent).

United States v. Beckford, 966 F. Supp. 1415 (E.D. Va. 1997) (holding that 21 U.S.C. 848(e)(1)(A) is neither unconstitutional on its face nor as applied since jury could convict on drug conspiracy charge without convicting on murder charge).

United States v. Boyd, 931 F. Supp. 968 (D.R.I. 1996) (holding Department of Justice death penalty authorization procedure not critical stage of prosecution and thus denial of defendant’s requested discovery did not violate Sixth Amendment).

Nichols v. Reno, 931 F. Supp. 748 (D. Colo. 1996) (holding Attorney General’s public statements in aftermath of Oklahoma City bombing that prosecutors would seek death penalty was insufficient charge of bias to support constitutional challenge to notice; death penalty protocol in U.S. Attorney’s Manual does not provide defendant with judicially enforceable substantive or procedural rights), aff’d, 124 F.3d 1376 (10th Cir.1997).

United States v. Nguyen, 928 F. Supp. 1525 (D. Kan. 1996) (upholding constitutionality of 18 USC 924; holding statutory definition of capital offense under § 924 constitutional; statutory aggravating factors constitutional; federal death penalty statute provided meaningful review, proportionality review not required), aff’d, 155 F.3d 1219 (10th Cir. 1998), and cert. denied, 525 U.S. 1167 (1999).

Walker v. Reno, 925 F. Supp. 124 (N.D.N.Y. 1995) (finding Attorney General’s determination to seek death penalty is action committed to agency discretion as mater of law; Attorney General Protocol is improper and insufficient source from which district court can draw law and apply it to review Attorney General’s determination).

United States v. DesAnges, 921 F. Supp. 349 (W.D. Va. 1996) (holding § 848 does not unconstitutionally delegate legislative power to executive branch by allowing prosecutors to identify nonstatutory aggravating factors; § 848 adequately narrows death eligible class; no showing of racial bias in government’s seeking of death penalty), aff’d, 134 F.3d 364 (4th Cir. 1997), cert. denied, 524 U.S. 911 (1998).

United States v. Nelson, 920 F. Supp. 825 (M.D. Tenn. 1996) (upholding constitutionality of 18 USC 2113(c); concluding that “if death results” clause merely enhances penalty and does not create new offense).

United States v. Tidwell, No. 94-CR-353, 1995 WL 764077 (E.D. Pa. Dec. 22, 1995) (upholding constitutionality of 21 USC 848(e); § 848(e) is a substantive offense, not just sentencing provision; language of § 848(e) not ambiguous–sufficient nexus between murder and continuing criminal enterprise).

United States v. Walker, 910 F. Supp. 837 (N.D.N.Y. 1995) (holding § 848(e) does not unconstitutionally limit scope of appellate review).

United States v. Davis, 904 F. Supp. 554 (E.D. La. 1995) (upholding constitutionality of 18 USC 3591, § 241 and § 1512, following Flores; finding aggravating circumstances sufficiently narrowed class of eligible defendants, even though required in all capital cases; § 3592 not vague or overly broad; § 3592's discretion to prosecutor to argue nonstatutory aggravating factors is proper delegation of legislative authority to executive because statutory factors designate minimum requirements).

United States v. Bradley, 880 F. Supp. 271 (M.D. Pa. 1994) (rejecting statistical evidence as basis for claim that federal death penalty applied in racially discriminatory manner; upholding constitutionality of § 848; government’s reliance on nonstatutory aggravating circumstances did not violate nondelegation doctrine).

United States v. Menzer, 817 F. Supp. 64 (E.D. Wis. 1993) (holding 18 USC 34, which provides for death penalty for death caused by aircraft or motor vehicle felony, unconstitutional).

United States v. Pitera, 795 F. Supp. 546 (E.D.N.Y.) (upholding constitutionality of § 848(e)), aff’d, 986 F.2d 499 (2d Cir. 1992).

United States v. Pretlow, 779 F. Supp. 758 (D.N.J. 1991) (upholding constitutionality of § 848(e)).

United States v. Cooper, 754 F. Supp. 617 (N.D. Ill. 1990) (denying defendant’s motion to prevent government from seeking death penalty under 21 USC 848(e)), aff’d, 19 F.3d 1154 (7th Cir. 1994).

8 USC 1324(a)(1)(B) (2000) (providing death penalty for illegal transportation of alien resulting in death).

18 USC 32 (2000) (defining crime of destruction of aircraft or aircraft facilities).

18 USC 33 (2000) (defining crime of destruction of motor vehicles or motor vehicle facilities).

18 USC 34 (2000) (providing death penalty for violation of § 32 and § 33 resulting in death).

18 USC 36(b)(2) (2000) (providing death penalty for drive-by shooting resulting in death).

18 USC 37(a) (2000) (providing death penalty for fatal violence in international airports).

18 USC 241 (2000) (providing death penalty for conspiracy to violate civil rights resulting in death).

18 USC 242 (2000) (providing death penalty for willful deprivation of federal rights resulting in death).

18 USC 245(b) (2000) (providing death penalty for interference with federallyprotected activities resulting in death).

18 USC 247(a), (d)(1) (2000) (providing death penalty for obstruction of free exercise of religious rights resulting in death).

18 USC 351 (2000) (providing death penalty for murder of members of Congress, cabinet officers, Supreme Court justices, federal judges, families of federal officials with intent to impede or retaliate).

18 USC 794 (2000) (providing death penalty for espionage offenses involving identification of U.S. agent to a foreign power).

18 USC 844(d) (2000) (providing death penalty for interstate explosives offense resulting in death).

18 USC 844(f)(3) (2000) (providing death penalty for damage of federal property by fire or explosives resulting in death).

18 USC 844(i) (2000) (providing death penalty for damage of federal property affecting commerce by fire or explosives resulting in death)

18 USC 924(j)(1) (2000) (providing death penalty for murder with firearm in course of federal violent crime or drug crime).

18 USC 930(c) (2000), as amended by Act of Oct. 26, 2001, Pub. L. No. 107-56, 115 Stat. 381 (providing death penalty for murder during firearms attack in or on federal facility).

18 USC 1091(b)(1) (2000) (providing death penalty for genocide).

18 USC 1111(b) (2000) (providing death penalty for murder in special maritime and territorial jurisdiction).

18 USC 1114 (2000) (providing death penalty for murder of federal employees and law enforcement officers).

18 USC 1116(a) (2000) (providing death penalty for murder of diplomats or certain foreign officials).

18 USC 1118 (2000) (providing death penalty for murder by lifetime federal prisoner).

18 USC 1119 (2000) (providing death penalty for murder of U.S. national in foreign country).

18 USC 1120 (2000) (providing death penalty for murder by escaped federal prisoner).

18 USC 1121 (2000) (providing death penalty for murder of state employees, officials, or law enforcement officers assisting in federal investigation).

18 USC 1201(a) (2000) (providing death penalty for kidnaping resulting in death).

18 USC 1203(a) (2000) (providing death penalty for hostage-taking resulting in death).

18 USC 1503(b)(1) (2000) (providing death penalty for murder of court officer, juror).

18 USC 1512(a)(3)(A) (2000) (providing death penalty for killing with intent to tamper with witness, victim, or informant).

18 USC 1513 (2000) (providing death penalty for retaliatory murders of witnesses).

18 USC 1716(j)(3) (2000) (providing death penalty for mailing dangerous articles where death results).

18 USC 1751 (2000) (providing death penalty for murder of president, vice president, high-level members of president’s or vice president’s staffs).

18 USC 1958 (2000), as amended by Pub. L. No. 108-458, Title VI, § 6704, 118 Stat. 3766 (providing death penalty for use of interstate or foreign commerce facilities in commission of murder for hire).

18 USC 1959(a)(1) (2000) (providing death penalty for murder in aid of racketeering).

18 USC 1992 (2000) (providing death penalty for wrecking trains where death results).

18 USC 2113(e) (2000) (providing death penalty for murder in course of bank robbery).

18 USC 2119(3) (2000) (providing death penalty for carjacking resulting in death).

18 USC 2245 (2000) (providing death penalty for sexual abuse offenses resulting in death).

18 USC 2251(e) (2000), as amended by Pub. L. No. 108-21, Title V, § 506, 117 Stat. 652 (providing death penalty for child sexual exploitation resulting in death).

18 USC 2280 (2000) (providing death penalty for acts of violence against maritime navigation resulting in death).

18 USC 2281 (2000) (providing death penalty for violence against maritime fixed platforms).

18 USC 2332(a)(1) (2000) (providing death penalty for terrorism outside the U.S. resulting in death).

18 USC 2332a (2000), as amended by Pub. L. No. 108-48, Title VI, § 6802, 118 Stat. 3766 (providing death penalty for use of weapons of mass destruction resulting in death).

18 USC 2332b (2000), as amended by Pub. L. No. 108-48, Title VI, §§ 6603, 6803, 6908, 118 Stat. 3762, 3769, 3774 (providing death penalty for terrorist act, which transcended national boundaries, resulting in death).

18 USC 2340A (2000) (providing death penalty for torture resulting in death).

18 USC 2441 (2000) (providing death penalty for breaches of Geneva Convention resulting in death).

21 USC 848(e) (2000) (providing death penalty for drug kingpins and leaders of major drug trafficking enterprises who murder or direct another to murder in order to obstruct justice or further the enterprise).

49 USC 46502 (1994 & Supp. V 1999) (providing death penalty for aircraft piracy where death results).

U.S. Department of Justice, Survey of the Federal Death Penalty System (1988-2000), www.usdoj.gov/dag/pubdoc/dpsurvey.html (2000) (providing statistical compilation of death penalty cases in the United States, broken down by region, race/ethnicity of defendant and race/ethnicity of victim).

John P. Cunningham, Death in Federal Courts: Expectations and Realities of the Federal Death Penalty Act of 1994, 32 U. Rich. L. Rev. 939 (1998).

Alex Kozinski & Sean Gallagher, Death: The Ultimate Run-On Sentence, 46 Case W. Res. L. Rev. 1 (1995) (summarizing capital procedure and current status of death penalty cases in U.S.; arguing that public should realize that increasing number of crimes eligible for death penalty is self-defeating tactic; differentiating most depraved killers for capital punishment is more effective use of judicial and public resources currently drained by capital caseload).

Jeffrey C. Matura, When Will It Stop? The Use of the Death Penalty for Non-Homicide Crimes, 24 J. Legis. 249 (1998).

David J. Novak, Anatomy of the Federal Death Penalty Prosecution: A Primer for Prosecutors, 50 S.C. L. Rev. 645 (1999).

Peyton Robinson, Judge Over Jury: Judicial Discretion In The Federal Death Penalty Under the Drug Kingpin Act, 45 U. Kan. L. Rev. 1491 (1997).