Opinion
Criminal Action No. 94-0381, Section "C" (6).
May 1, 2005
ORDER AND REASONS
This Matter comes before the Court on Defendant Len Davis's Motion to Strike Indictment because the Fourteenth Amendment right charged does not authorize a death-related offense. (Rec. Doc. 1144). After considering Defendant's Motion and Memorandum, the Government's Opposition thereto, and the applicable law, the Court hereby DENIES the Motion.
I. Background
As a threshold matter, the Government asserts that this argument is simply a re-packaging of the Defendant's previous attack on the indictment under the Fifth Amendment. ( See, e.g., Rec. Doc. 1016, 1023, 1059, 1078). In that challenge, this Court found that the indictment met "with formidable constitutional and statutory barriers" in light of the Supreme Court's decisions in Jones v. United States, 526 U.S. 227 (1999), Apprendi v. New Jersey, 530 U.S. 466 (2000), United States v. Cotton, 535 U.S. 625 (2002), Ring v. Arizona, 536 U.S. 584 (2002), and the Federal Death Penalty Act, 18 U.S.C. § 3591 (1996) ("FDPA"), in part because it enhanced a mid-level offense under 18 U.S.C. § 242 to the maximum penalty of death, though the indictment did not allege that the Defendant had an "intent" to kill the victim. ( See generally Rec. Doc. 1080). In particular, for the purposes of this motion, the Court held that under the Fifth Amendment post- Apprendi, the Defendant was entitled to a non-waivable grand jury presentment, which included the mens rea allegation; absent such an allegation, capital punishment was foreclosed. ( Id. at 22).
The Apprendi court held that "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, 476 (2000). In Ring, the Supreme Court extended this holding to rule that the Sixth Amendment prohibited a sentencing judge, sitting without a jury, to find an aggravating circumstance necessary for imposition of the death penalty. Ring v. Arizona, 536 U.S. 584, 609 (2002).
The other serious concern was the failure of the indictment to allege the statutory aggravating factor of "substantial planning and premeditation." 18 U.S.C. § 3592(c)(9).
The Fifth Circuit disagreed with the Court's conclusion and subjected the Government's failure to allege the proper mens rea to harmless error analysis under United States v. Robinson, 367 F.3d 278 (5th Cir. 2004). See United States v. Davis, 380 F.3d 821 (5th Cir. 2004). Finding harmless error, the appeals court vacated the Court's decision and remanded on two principal grounds: 1) the Defendant had individualized notice of the Government's intent to seek the death penalty, prior to the final superseding indictment of August 1995 and in advance of the April 1996 trial; and 2) the Defendant's right to have the public determine probable cause consistent with FDPA and Apprendi was unaffected because "[c]onsidering the overt acts alleged in the indictment returned by the grand jury, there is no doubt that a rational grand jury would have found probable cause that the FDPA intent element and substantial planning and premeditation aggravating factor were present, had those elements been presented to it." Id. at 829.
On April 12, 2005, the Court held oral argument on a number of pre-trial motions, including Defendant's instant motion challenging the indictment as predicated on the Fourteenth Amendment. Initially, the undersigned and the Government both assumed that the motion only presented an attack on the indictment for an alleged failure to give fair warning, i.e. that an alleged deprivation of liberty provided no notice to the Defendant that he was being charged with life-taking conduct. While there was little question in light of the Fifth Circuit's recent reversal, 380 F.3d 821, that the indictment satisfied the fair notice requirement, Defendant emphasized at oral argument that he also disputed the soundness of the substantive constitutional deprivation itself as charged pursuant to 18 U.S.C. § 242 in Count 2 of the indictment. Accordingly, the Court took the question under submission.
The parties also addressed themselves to Judge Dennis' concurring opinion in United States v. Causey, 185 F.3d 407, 433-444 (5th Cir. 1999). While the post- Apprendi import of the Dennis concurrence in Causey is the subject of the discussion below, its rejection of any fair warning infirmity is unequivocal: "In sum, whether the `defined right' is one of liberty or of life, or both, the foregoing decisions, together with the express guarantees of due process of law of the Fifth and Fourteenth Amendments, give fair warning that a person's right to life is a protected constitutional right, and that an intentional violation of that right under color of law is proscribed criminal conduct under §§ 241 and 242." Id. at 439.
II. Law and Analysis
Defendant argues that in the present context of a capital offense charged under 18 U.S.C. § 242, the effect of Supreme Court decisions in Jones, 526 U.S. 227, Apprendi, 530 U.S. 466, and Ring, 536 U.S. 584, operates to require that an indictment include a separate and distinct element of death, which in turn means that the "Fourteenth Amendment `right' must encompass [a] specific `life taking crime.'" (Rec. Doc. 1144 at 3.). Furthermore, Defendant equates the substantive offense at issue with "homicide" due to the added "death resulting" element, which supposedly imputes a mens rea of "willful" life-taking into the overall statutory offense of § 242. ( See id. at 6). Because the indictment did not include such a mens rea allegation, Defendant contends that the key element of the charged offense — deprivation of liberty — cannot cover homicide offenses. ( Id. at 6-7). As noted above, the Government rests on the Fifth Circuit's finding of harmless error, asserting that nothing in the Apprendi-Ring authority calls into question the applicability of the Dennis concurrence in United States v. Causey, 185 F.3d 407 (5th Cir. 1999), or its treatment of United States v. Hayes, 589 F.2d 811 (5th Cir. 1979), on which it relied.
The narrow question here is whether a deprivation of liberty may include a deprivation of life such that the indictment was properly predicated on the Fourteenth Amendment.
Count 2 of the indictment alleged in pertinent part that Defendants "did willfully deprive [the victim of] the right not to be deprived of liberty without the due process of law, which includes the right to be free from the use of unreasonable force by one acting under color of law, by shooting [the victim] in the head with a firearm, resulting in her death." (Rec. Doc. 187).
In Hayes, the Fifth Circuit held that the 1968 Amendment to § 242, adding "death results" to the provision, "alter[ed] the statute only insofar as requiring the additional element that death ensued as a proximate result of the accuseds' willful violation of a victim's defined rights." Hayes, 589 F.2d at 820. In the context prior to the Apprendi-Ring authority, Judge Dennis discussed at length the Hayes decision and its relevance to the question of fair warning. See Causey, 185 F.3d at 433-39. The Fifth Circuit in Hayes faced a similar indictment where the defendant had been charged with depriving a victim's liberty when a Texas sheriff shot him during an interrogation in a manner that arguably amounted to negligent homicide. Relying on Screws v. United States, 325 U.S. 91 (1945), the Hayes court emphasized that "it [is] perfectly clear that once a due process right has been defined and made specific by court decisions, the right is encompassed by § 242," and that "to violate § 242, one must have a specific intent to willfully violate that defined right." Hayes, 589 F.2d at 820.
The Hayes court refused to hold that the 1968 "death results" amendment to § 242 required a mens rea of intent because death could result from a constitutional violation by the proximate cause of the defendant's actions rather than the stricter "intent" that the victim be killed. Hayes, 589 F.2d at 821-822.
In Screws v. United States, 325 U.S. 91 (1945), the Supreme Court considered the "intent" requirement of the then unamended version of § 242, holding that the statute was not unconstitutionally vague if read as requiring "an intent to deprive a person of a right which has been made specific either by the express terms of the Constitution or laws of the United States or by decisions interpreting them." Screws, 325 U.S. at 104.
Defendant points to the following key passage in Hayes (quoted by Judge Dennis), which he argues is affected by the Apprendi-Ring authority:
The amendment to Section 242 does not alter this as the amendment did not proscribe any additional Conduct which was not already punishable under the unamended version of Section 242. Rather, those cases of infringement with defined rights which result in death are a subset of the universe defined as those cases of infringement with defined rights. Activities which fall within the former naturally fall within the latter.
(Rec. Doc. 1144) (citing Causey, 185 F.3d at 438-439 (quoting Hayes, 589 F.2d at 821)). Specifically, Defendant claims that in the post- Apprendi context, where the Government seeks the death penalty, the "death resulting" language creates an "additional" specific intent element to be charged in the indictment. This argument presumes § 242 is transformed, contrary to Screws, as to acquire the mens rea of intent because this is required under 18 U.S.C. § 3591. Based on this unstated premise, Defendant's theory essentially makes two further leaps in logic: First, for a homicide to be charged under § 242 pursuant to a Fourteenth Amendment violation, only "deprivation of life" may be alleged, and not "deprivation of liberty," because only the former contemplates "life-taking" conduct. Second, when the Government sanctions such "life-taking" conduct with capital punishment, it must specify elements in the indictment tantamount to a homicide charge, i.e. intent to kill.
Defendant does not spell out the legal rationale for this transformation. But it is evident the Section 3591 of FDPA now requires the Government to show specific intent when seeking the death penalty under § 242:
(a) A defendant who has been found guilty of —
(1) an offense described in section 794 [ 18 USCS § 794] or section 2381 [ 18 USCS § 2381]; or
(2) any other offense for which a sentence of death is provided, if the defendant, as determined beyond a reasonable doubt at the hearing under section 3593 [ 18 USCS § 3593] —
(A) intentionally killed the victim;
(B) intentionally inflicted serious bodily injury that resulted in the death of the victim;
(C) intentionally participated in an act, contemplating that the life of a person would be taken or intending that lethal force would be used in connection with a person, other than one of the participants in the offense, and the victim died as a direct result of the act; or
(D) intentionally and specifically engaged in an act of violence, knowing that the act created a grave risk of death to a person, other than one of the participants in the offense, such that participation in the act constituted a reckless disregard for human life and the victim died as a direct result of the act. . . .18 U.S.C. § 3591 (emphasis added).
As a threshold matter, the Court rejects Defendant's argument that the Apprendi-Ring authority renders Hayes distinguishable as controlling precedent. The precise holding in Hayes applies now as it did in 1979: The added "death results" element "alters the statute only insofar as requiring the additional element that death ensued as a proximate result of the accuseds' willful violation of a victim's defined rights." Hayes, 589 F.2d at 820. As far as the element of "death resulting," this is still all that is required to find culpability for civil rights murder under § 242. The salient difference of the post- Apprendi-Ring world is that in order to impose the death penalty in compliance with 18 U.S.C. § 3591, an indictment must allege a specific intent element and the jury (not the judge) must find that element beyond a reasonable doubt. Though the indictment does not accomplish this, the Fifth Circuit decided that the Government's error was harmless in failing to make such specific allegations. Davis, 380 F.3d at 829. Accordingly, as for the Government's application of § 242, the Court rejects the Defendant's challenge to the indictment under the Fourteenth Amendment, where such a challenge should be (and has been) made based on the combined effect of the Fifth Amendment's Presentment Clause, Apprendi-Ring, and § 3591.
In regard to the narrow issue presented, the Court also disagrees with Defendant's encapsulation of the life, liberty and property interests under the Fourteen Amendment into discreet, air-tight categories. Judge Dennis' discussion of Hayes in his Causey concurrence confined itself to the fair warning implications of charging Len Davis with deprivation of liberty where the alleged constitutional violation included taking Ms. Groves' life. The concurrence is clear that Hayes stands for the proposition that "whether the victim of an assault lives or dies, the `defined right' is liberty, rather than life," even if other precedent suggested that such an overlapping constitutional violation permitted disjunctive allegations of deprivation of liberty or life. Causey, 185 F.3d at 439 (emphasis added).
See, e.g., Crews v. United States, 160 F.2d 746, 749 (5th Cir. 1947) (finding deprivation of "constitutional right to life or liberty or to a fair trial under due processes of law rather than a trial by ordeal," when white town marshal acting "under color of law" put black man in the rear seat of police car, drove him to a bridge and forced him to jump into the river with knowledge he could not swim); Brazier v. Cherry. 293 F.2d 401 (5th Cir.), cert. denied, 368 U.S. 921 (1961) ("There is a constitutional right not to be murdered by a state officer, for the state violates the Fourteenth Amendment when its officer, acting under color of state law, deprives a person of life without due process of law").
That a fatal attack on a person can be a deprivation of liberty in extremis is harmonious with other courts' characterizations of an infringed liberty interest. In United States v. Stokes, 506 F.2d 771 (5th Cir. 1979), the Fifth Circuit held that a prisoner's right to due process under § 242 is not limited to "a right not to be summarily punished or deprived of a trial by law," but also includes the right not to be deprived of liberty, encompassing right to be " free from unlawful attacks upon the physical integrity of his person"). Stokes, 506 F.2d at 773, 774 n. 2 (emphasis added). In second case cited by Judge Dennis, the court in United States v. Lebron-Gonzalez, 816 F.2d 823 (1st Cir.), cert. denied, 484 U.S. 843 (1987), affirmed a conviction under §§ 241 and 242 of a police officer who murdered a witness, finding no clear error in the following jury instruction: "One of the liberties secured to the victim involved in this case by the Constitution is the liberty to be free from unlawful attacks upon her person." Lebron-Gonzalez, 816 F.2d at 829. In United States v. Simon, 964 F.2d 1082 (11th Cir. 1992), cert. denied, 507 U.S. 1033 (1993), the Eleventh Circuit affirmed the conviction under § 241 of a police officer who murdered a drug dealer after attempting to rob him in his home, where a similar indictment defined the constitutional rights violated as the "rights to be secure in his person and property." Simon, 964 F.2d at 1085.
Such a definition of a violated liberty interest is consistent with Defendant's own characterization of a deprivation of liberty as being "an unreasonable use of force." (Rec. Doc. 1144 at 1). It is an unremarkable observation that an attack "upon the physical integrity" of a person may result in death. For instance, when a person exceeds the privilege of self-defense by killing another person when it is unwarranted under the circumstances, such force is both deadly and unreasonable. Is it any different when one violates the Fourteenth Amendment by depriving another of liberty with a mortal attack? The Hayes court and Judge Dennis had no trouble with the overlap: "[C]ases of infringement with defined rights which result in death are a subset of the universe defined as those cases of infringement with defined rights. Activities which fall within the former naturally fall within the latter." Causey, 185 F.3d at 438-439 (quoting Hayes, 589 F.2d at 821). See also Landrum v. Moats, 576 F.2d 1320, 1325 (8th Cir. 1978), cert. denied, 439 U.S. 912 (invoking property interest of Fourteenth Amendment, in addition to others, when excessive use of force by police resulted in "unreasonable takings without due process") (emphasis added); United States v. McClean, 528 F.2d 1250, 1254-55 (2d Cir. 1976) (rejecting contention that defendants should be shielded from prosecution under § 242 since they intended only to violate New York State law, and the government had not demonstrated specific intent to violate federal law). The unmistakable line of authority here holds that the effect of one's conduct is violative in addition to an ex ante specific intent to transgress a particular federal right. Cf. Hayes, 589 F.2d at 820.
It is evident that Defendant's discreet categorization of the Fourteenth Amendment interests does not withstand closer scrutiny. Accordingly, this Court holds there is no constitutional infirmity under the Fourteenth Amendment where the indictment alleges that Defendant "willfully deprive[d]" Ms. Groves of her "right not to be deprived of liberty without the due process of law, which includes the right to be free from the use of unreasonable force by one acting under color of law, by shooting [the victim] in the head with a firearm, resulting in her death." (Rec. Doc. 187). The end effect of such alleged acts was to deprive Ms. Groves of her liberty and her life. The Fourteenth Amendment, therefore, properly authorized application of 18 U.S.C. § 242 as alleged in the indictment.
III. Conclusion
For the foregoing reasons, IT IS ORDERED that Defendant's Motion be DENIED.