Federal Judicial Center -- 2004
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        F     Common Legal Challenges
        F-1  Constitutional Challenges to the Federal Death-penalty Statutes
        F-2  Severance Motions
        F-3  Other Common Pretrial Motions

Because of the potential sentence involved and the relative recency and infrequency of capital cases in the federal courts, trial judges should anticipate various challenges to the federal death-penalty statutes. These challenges include constitutional challenges to the statutes, motions for severance of trials of capital defendants from those of noncapital or capital codefendants, pretrial motions for a bill of particulars, change-of-venue motions, motions to seal court files, and motions to prohibit the introduction of victim-impact evidence. Many of these issues will be raised during the pretrial, trial, and postadjudication phases. This section describes these challenges and how they were resolved in some of the cases we reviewed.

F-1    Constitutional Challenges to the Federal Death-penalty Statutes

a. Anti-Drug Abuse Act of 1988. Within two years of the Act’s inception, the constitutionality of the Anti-Drug Abuse Act was challenged. United States v. Cooper, 754 F. Supp. 617 (N.D. Ill. 1990), aff’d, 19 F.3d 1154 (7th Cir. 1994). The statute has been upheld as constitutional in several appellate and district courts. [Footnote 15] While to date no constitutional challenges have been successful, at least one case has been remanded for resentencing for misapplication of the statute. [Footnote16] A number of constitutional claims have been raised, including the following:

• The statute is unconstitutionally vague.

• The statute fails to provide for meaningful appellate review.

• The statute impermissibly delegates legislative authority to the government by permitting aggravating factors to be defined by the government in each case.

• The evidentiary standards at the sentencing hearing allow the prosecutor too much discretion in the introduction of evidence.

• The statute requires aggravating factors to be weighed by the jury at the penalty phase in every case, and some of these factors duplicate elements (such as intent) proven at the guilt phase; thus, the class of murders for which the death penalty should be imposed is not narrowed by the penalty-phase proceedings, as is constitutionally required.

• The statute allows prosecutors to assert nonstatutory aggravating factors in the penalty phase, which violates the Eighth Amendment.

b. Federal Death Penalty Act of 1994. Constitutional challenges to the Federal Death Penalty Act have included the following:

• The government’s use of nonstatutory aggravating factors in the sentencing hearing is unconstitutional.

• The statute does not provide for proportional review of death-penalty sentences, which, combined with the relaxed evidentiary standard at the sentencing hearing, may result in arbitrary decisions.

• The death penalty is unconstitutional under any circumstances.

• The statute allows for the imposition of death for non-homicide crimes.

• The statute fails to provide for meaningful appellate review.

c. Developments in 2002. In 2002, two district judges issued opinions declaring the Federal Death Penalty Act of 1994 (FDPA) unconstitutional, and the Supreme Court decided a case that is likely to engender more motions challenging the constitutionality of the federal death penalty statutes.

In United States v. Quinones, 196 F. Supp. 2d 416 (S.D.N.Y. 2002), the court found the federal death penalty unconstitutional on the grounds that, despite the procedural protections provided by our system of criminal justice, recent evidence—including that available through DNA testing—indicates that innocent people are convicted of capital crimes "with some frequency." On December 10, 2002, the Second Circuit reversed this decision, citing previous Supreme Court cases upholding the consitutionality of the death penalty and noting that "if the well-settled law on this issue is to change, that is a change that only the Supreme Court is authorized to make." United States v. Quinones, Nos. 02-1403(L), 02-1405(Con) 2002 U.S. App. LEXIS 25164 (2d Cir. Dec. 10, 2002).

Another district judge has cited Ring v. Arizona, 122 S. Ct. 2428 (June 24, 2002), and related cases [Footnote17] in declaring the FDPA unconstitutional. In Ring, the Supreme Court ruled that Arizona’s death-penalty statute was unconstitutional because it allowed a judge, rather than a jury, to find aggravating factors necessary for imposition of the death penalty. In United States v. Fell, 217 F. Supp. 2d 469 (D. Vt. 2002), the court declared the FDPA unconstitutional on the grounds that the relaxed evidentiary standard provided for at the sentencing hearing in an FDPA case to determine death eligibility factors does not satisfy due process and the Sixth Amendment rights of confrontation and cross-examination under Ring and similar cases. [Footnote 18]

Federal judges can expect many new challenges to the federal death-penalty statutes based on questions raised by the Jones-Apprendi-Ring line of cases. Motions relying on these cases have begun to appear in other federal death-penalty cases, including that of alleged terrorist Zacarias Moussaoui. [Footnote 19]

F-2    Severance Motions

In multidefendant capital cases, severance motions occur frequently. Motions for severance may attempt to sever the trials of non-capital defendants from those of capital defendants, or to sever the trials of capital defendants from those of other capital defendants.

a. Severance of capital defendants’ trials from those of non-capital defendants. As in other criminal proceedings, alleged coconspirators [Footnote 20] often have both similar and competing interests, which may affect how their defenses are presented. In one case we reviewed, as soon as the superseding indictment with the death-penalty charge was returned, the judge severed the trials of twenty or so codefendants, all of whom were charged with the major drug conspiracy offenses and related charges, but not with the death-penalty count. Then, shortly before trial, the judge severed (for other reasons) the trial of the remaining codefendant, who was charged as the actual triggerman in the murder.

One argument advanced with some frequency for severance is that a non-capital defendant will be prejudiced if tried by a death-qualified jury. [Footnote 21] In Buchanan v. Kentucky, 483 U.S. 402, 417–20 (1987), the court held that death-qualification of a jury is not, by itself, grounds for severance of the trial of a non-capital defendant. Other issues relating to severance include the following:

• Non-capital defendants have argued that they are "bit players," which in effect means that the jurors will be unable to differentiate them from the dominant capital defendant on trial. [Footnote 22] The trial judge, however, may be able to reduce potential juror prejudice by issuing limiting instructions and appropriately advising the jury. [Footnote 23]

• Non-capital defendants have argued that their defense theory is inconsistent with the theory of a capital defendant, thus creating a prejudicial process. [Footnote 24]

• At least one defendant unsuccessfully argued that a refusal of severance should afford the non-capital defendant the right to participate in the death-qualification stage of jury selection, and that not allowing such participation is unduly prejudicial. [Footnote 25]

• Some defendants have argued that when severance is not granted, a separate jury must be impaneled, in the same proceeding, for the non-capital defendant. [Footnote 26]

b. Severance of capital defendants’ trials from those of other capital defendants. While cases involving more than one capital defendant will not lead to questions of prejudice from impaneling only death-qualified jurors, courts may experience objections to having multiple capital defendants tried together, as their defense theories may differ. Defendants alleged to have been involved in the same illegal transaction or enterprise may present defenses that place blame on each other. Arguments such defendants have made for severance include the following:

• The amount and complexity of evidence in a capital trial makes the compartmentalization of particular evidence relating to each individual defendant difficult and may lead to inaccurate and inconsistent verdicts. [Footnote 27]

• The trial court’s denial of a motion to sever violates the defendant’s right to a fair trial because it precludes the codefendant’s exculpatory testimony on the defendant’s behalf. [Footnote 28]

• A codefendant may not be compelled to testify against another codefendant, thus depriving a defendant of the Sixth Amendment right to compel the testimony of a witness. [Footnote 29]

It is clear that it is within the trial court’s discretion whether to grant a motion for severance of defendants’ trials that have been properly joined. [Footnote 30] However, the Supreme Court has determined that defendants charged in the same indictment should generally be tried in a joint trial. [Footnote 31] Federal Rules of Criminal Procedure 8(b) and 14 "‘are designed to promote economy and efficiency and to avoid a multiplicity of trials, where these objectives can be achieved without substantial prejudice to the right of the defendants to a fair trial.’" Bruton v. United States, 391 U.S. 123, 131 n.6 (1968) (quoting Daley v. United States, 231 F.2d 123, 125 (1st Cir.), cert. denied, 351 U.S. 964 (1956)).

F-3    Other Common Pretrial Motions

a. Motion for a bill of particulars. Under Federal Rule of Criminal Procedure 7(f), a defendant may file a motion for a bill of particulars to clarify charges if the indictment does not sufficiently allege the nature and extent of the crime. In capital cases, these motions are generally filed when a defendant seeks to learn the strength of the government’s case in order to plan an appropriate defense, including whether to accept a plea, if offered. Most frequently, the defendant requests that the government provide specific information relating to nonstatutory aggravating factors.

In the cases we reviewed, judges often denied these types of motions, holding that they cannot be used by the defense as a way to obtain pretrial disclosure of the evidence held by the government.

b. Motion for change of venue. In capital cases, change-of-venue motions are filed generally on the premise that pretrial publicity has created an atmosphere that violates the defendant’s Sixth Amendment right to an impartial jury and Fifth Amendment right to a fair trial. The Supreme Court has set forth two tests for determining whether pretrial publicity has altered the presumption that a fair trial is possible in a jurisdiction. The "actual prejudice test" requires a showing of prejudice in the particular petit jury, and the "inherent prejudice test" requires a showing that the community of potential jurors prevents a fair trial. [Footnote 32]

In the death-penalty cases we reviewed, these motions were generally denied. Several of the judges concluded that the community where the crime had occurred had not been "inherently prejudiced" by media publicity to warrant the expense and inconvenience of a change of venue. One judge did allow a transfer to another division within the district after denying a request that the case be transferred out of the district altogether. The case involved the killing of a police officer, which was captured on tape by the video camera attached to the officer’s vehicle. Media accounts of the incident included numerous television stations’ broadcasts of the actual video recording of the incident. The community was very vocal in its outrage and, as a result, there was a petition to certify the case as a death-penalty case early in the adjudication process. These factors led the court to believe that it would be extremely difficult to select a fair and impartial jury in the city where the crime had occurred.

Several issues were raised in motions for change of venue in United States v. McVeigh, 918 F. Supp. 1467 (W.D. Okla. 1997), including the following:

• the capacity of the courthouse to hold a large public trial and the ability of marshals to provide adequate security (Id. at 1470);

• whether using the trial process to help a community heal from the crime should be a reason to maintain original venue (Id. at 1472);

• an assertion that grand jurors would be just as prejudiced and biased as potential petit jurors (United States v. McVeigh, Brief in Support of Motion to Transfer, Docket No. M-95-98-H, 1995 WL 557404 (W.D. Okla. April 24, 1995)). The government offered a number of reasons not to transfer, including the inability of the grand jury to investigate from a distant locale (United States v. McVeigh, Opposition to Motion to Transfer, Docket No. M-95-98-H, 1995 WL 559084 (W.D. Okla. April 26, 1995));

• the fact that the courthouse itself was the scene of the crime and court personnel were witnesses (United States v. McVeigh, Brief in Support of Motion to Transfer, Docket No. M-95-98-H, 1995 WL 557404 (W.D. Okla. April 24, 1995)); and

• whether victims should be able to view the proceedings (42 USC 10606(b)(4) (1990)). Victims, including family members, argued that changing venue made viewing the trial constructively impossible, and that moving the trial made presenting victim-impact statements unduly burdensome (Fed. R. Crim. P. 32(c)(3)(E) and 32(f)(1)(B)). The court found that the interests of the victims were outweighed by the obligation of the court to provide a fair trial (United States v. McVeigh, 913 F. Supp. at 1474 (W.D. Okla. 1996)).

c. Motion to seal court file. In a number of cases we reviewed, defense counsel moved to seal court file copies of the pleadings and the parties’ responses to discovery and evidentiary materials so that none of these documents would be accessible to the news media. These requests were made to ensure that the defendants would receive a fair trial untainted by adverse publicity.

d. Motion to prohibit the introduction of victim-impact evidence. The admissibility of victim-impact evidence is a controversial issue that recently has been gaining widespread attention from courts and legislatures throughout the country. A defendant may argue that by allowing the government to introduce victim-impact evidence, the court jeopardizes the defendant’s right to a fair trial, because such evidence replaces the rational process of imposing a death sentence with arbitrary and capricious jury discretion. In addition, a defendant may claim that allowing the government to introduce victim-impact statements unconstitutionally gives the government a procedural advantage. Such motions may try to exclude evidence of the effect of the incident during the victim’s testimony at the guilt phase of the trial. However, such motions are more likely to attempt to prevent the admission of victim-impact evidence during the penalty phase.

In Payne v. Tennessee, 501 U.S. 808 (1991), the Supreme Court addressed the constitutionality of victim-impact evidence and held that admission of such evidence in a capital trial does not per se violate the Eighth Amendment. In allowing the admission of victim-impact evidence, the Court overruled previous cases that excluded such evidence. [Footnote 33] The Court described victim-impact evidence as "personal characteristics of the victim, and the emotional impact of the crimes on the victim’s family." Payne, 501 U.S. at 817. This evidence may include the financial, physical, and emotional impact of the crime on the victims and their families. The Court did not directly address whether the opinions of family members about the crime and the defendant are permissible, so this type of evidence will most likely raise defense objections.

In United States v. Glover, 43 F. Supp. 2d 1217 (D. Kan. 1999), the court ruled that victim-impact evidence could be presented in the penalty phase of a capital murder

trial provided that the testimony was limited to a "quick glimpse" of the life of the victim, including a general factual profile showing family, employment, education, and interests. The testimony was to be factual in nature, not emotional, and free of inflammatory comments or references.

Defendants may argue that the admission of victim-impact evidence goes against the notion of public law, where the crime is against the state, not a particular person. Additionally, the defendant may argue that such statements provide little evidence of the blameworthiness of the defendant and highly prejudice the fact-finder in the sentencing process. However, Congress and the Supreme Court ruling in Payne endorsed a public policy for allowing the evidence to be considered in sentencing. Victim and Witness Protection Act of 1982, 18 USC 1512 (1982); Crime Control Act of 1990, 28 USC 509 (1990). At the same time, the Supreme Court has long recognized that death is a "punishment different from all other sanctions." Woodson v. North Carolina, 428 U.S. 280, 303–04 (1976). Therefore, courts have traditionally allowed a variety of evidence to be heard so that a jury may understand the complete situation and avoid the risk of a potentially arbitrary decision. In Payne, the Court noted that "criminal conduct has traditionally been categorized and penalized differently according to consequences not specifically intended." 501 U.S. at 835 (Souter, J., concurring). The admission of evidence to demonstrate blameworthiness has been allowed in capital cases, including the Oklahoma City bombing trial. United States v. McVeigh, 958 F. Supp. 512 (D. Colo. 1997).

While the Payne decision did not exclude the evidence based on the Eighth Amendment, it did state that the due process clause could be used to argue wrongful uses of victim-impact evidence. 501 U.S. at 823. One possible argument is that it is unfair to allow the government to offer victim testimony that may be potentially inflammatory. This type of argument would be raised during trial or in motions in limine.

Trial judges should anticipate defense objections to the use of victim-impact evidence, or at least motions limiting the number of victims permitted to testify and the length and detail of the statements presented to the sentencing jury.

FOOTNOTES:

15    See id.; see also United States v. Tipton, 90 F.3d 861 (4th Cir. 1996); United States v. Flores, 63 F.3d 1342, reh’g en banc denied, 77 F.3d 481 (5th Cir. 1995), cert. denied, 117 S. Ct. 87 (1996); United States v. Chandler, 996 F.2d 1073, reh’g en banc denied, 5 F.3d 1501 (11th Cir. 1993), cert. denied, 114 S. Ct. 2724 (1994); United States v. Villarreal, 963 F.2d 725 (5th Cir. 1992), cert. denied, 506 U.S. 927 (1992); United States v. DesAnges, 921 F. Supp. 349 (W.D. Va. 1996); United States v. Tidwell, No. Civ.A.94-CR-353, 1995 WL 7644077 (E.D. Pa. Dec. 22, 1995); United States v. Walker, 910 F. Supp. 837 (E.D.N.Y. 1995); United States v. Bradley, 880 F. Supp. 271 (M.D. Pa. 1994); United States v. Escobar, 803 F. Supp. 611 (E.D.N.Y. 1992); United States v. Pitera, 795 F. Supp. 546 (E.D.N.Y. 1992), aff’d, 5 F.3d 624 (2d Cir. 1993); United States v. Pretlow, 779 F. Supp. 758 (D.N.J. 1991).

16    See United States v. McCullah, 76 F.3d 1087, reh’g en banc denied, 87 F.3d 1136 (10th Cir. 1996), cert. denied, 117 S. Ct. 1699 (May 12, 1997) (vacating death sentence and remanding case for resentencing, after district court submitted duplicate and cumulative aggravating factors to the jury). Another appeals court, however, found that the jury’s weighing of duplicate factors was harmless error. See Tipton, 90 F.3d at 898–99.

17     Jones v. United States, 527 U.S. 373 (1999) ("any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt" ); Apprendi v. New Jersey, 530 U.S. 466 (2000) (any fact on which an increase in a defendant’s authorized punishment is contingent must be found by a jury beyond a reasonable doubt).

18     This decision was vacated and remanded by the Court of Appeals for the Second Circuit. U.S. v. Fell, No. 02-1638 (2d Cir. March 2, 2004).

19    See Standby Counsel’s Supplemental Memorandum in Support of Motion to Dismiss Notice of Intent to Seek Penalty of Death, United States v. Moussaoui (E.D. Va.) (No. 01-455-A) (filed July 10, 2002).

20     In addition to being charged with at least one violation of the 1988 or 1994 death-penalty statute, defendants are frequently charged with a conspiracy violation.

21     A death-qualified jury is one in which all members have been questioned extensively about their death-penalty attitudes, and on the basis of their answers to these questions, the judge has determined that they are qualified to sit on a death-penalty case. See § III.A.3 infra.

22    See United States v. Gooding, 1995 WL 538690 (4th Cir. 1995) (unpublished opinion) (upholding the policy of placing capital and non-capital defendants on trial together).

23    See Zafiro v. United States, 506 U.S. 534, 539 (1993) (citing Richardson v. Marsh, 481 U.S. 200, 211 (1987)).

24    See Gooding, 1995 WL 538690 at 5 (unpublished opinion) (citing Zafiro, 506 U.S. at 538, appellate court held that "[a]ntagonistic or mutually exclusive defenses among co-conspirators do not automatically require severance").

25    See United States v. Sanchez, 75 F.3d 603 (10th Cir. 1996) (holding that trial court did not abuse its discretion by ruling that a non-capital defendant is without right to participate in the death-qualification stage of jury selection).

26    See id. (holding that court did not abuse its discretion by denying a coconspirator a separate jury, in the same proceeding, from that of a capital defendant).

27    See United States v. Moore, 149 F.3d 773 (8th Cir. 1998) (ruling that the complexity of evidence in the case at bar did not rise to a level that required severance).

28    See United States v. Villarreal, 963 F.2d 725, 730 (5th Cir. 1992), cert. denied, 506 U.S. 927 (1992).

29    Id. at 732; see also United States v. McKinney, 53 F.3d 664 (5th Cir. 1995); United States v. Ford, 870 F.2d 729 (D.C. Cir. 1989).

30    See United States v. Flores-Rivera, 56 F.3d 319 (1st Cir. 1995); United States v. Candoli, 870 F.2d 496 (9th Cir. 1989); United States v. Ford, 870 F.2d 729 (D.C. Cir. 1989).

31    See Zarifo v. United States, 506 U.S. 534, 537 (1993); Richardson v. Marsh, 481 U.S. 200, 210 (1987).

32     See Patton v. Yount, 467 U.S. 1025 (1984); Murphy v. Florida, 421 U.S. 794 (1975); Rideau v. Louisiana, 373 U.S. 723 (1963).

33    See South Carolina v. Gathers, 490 U.S. 805 (1989); Booth v. Maryland, 482 U.S. 496 (1987).