Appendix — Chandler v. United States

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APPENDIX

IABLE OF CONTENTS

OPINION OF THE COURT OF APPEALS FOR

THE ELEVENTH CIRCUIT DATED JULY

\S MODIFIED SEPT. 30, 1992

ORDER OF ELEVENTH CIRCUIT DATED

SEPT. 30, 1993 GRANTING THE MOTION Of}

THE UNITED STATES FOR MODIFICATION O}

PANEL'S OPINION

ORDER OF ELEVENTH CIRCUIT DENYIN¢

MR. CHANDLER'S MOTION FOR REHEARIN(

\ND SUGGESTION OF REHEARING EN BAN

DATED SEPT. 30, 19

IUDGMENT Of} THE UNITED STATES

DISTRICT COURT FOR THE NORTHERN

DISTRICT OF ALABAMA AS TO COUNT 3 O]

THE INDICTMENT DATED MAY 14, 199

JUDGMENT OF THE DISTRICT COURT AS TO

COUNTS | > §, 9 DATED MAY 14

ss

ORDER OF THE DISTRICT COURT DENYIN«

MR. CHANDLER'S MOTION FOR NEW TRIAI

ON GUILT AND PENALTY PHASES DATED

MAY 30, 199]

| ‘s { S K4*

DAVID BRUCK, FEDERAL DEATH PENALTY

PROSECUTIONS. 1988-93 (DE¢

WITH CON LD SESS K

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Sentence n in inital nary d We} is Nil

sentenc I ther related count We VACATE Chand

convicuion and sentence for conspiracy. We AFFIRM a

convictions and ntences, including Chandler

l. BACKGROUND

On May * M(), Charles Ray Jart Sr. and Marlin S!

drove t sNnov i} in P Imont, Alabama. Attl i}

and Shuler engaged in target practi with two pistols that Jas

had brought along irl turned nil run at snu

and killed hit

Later that ir u ytal ft Alabama indicted Jart art

son Billy J ind Chandler for the murder of S|]

indictments were ultimately dismissed. but the stat

handling t

States Attorney and assisted in this prosecution

The United States issued a superseding indictment

January Y¥, 1991. Count One of the indictment charged Chand

Jarrell and 14 other individuals with conspiracy to pi

Intent to distribute and with distribution of over 1,000 kilogran

of marijuana and 1,000 marijuana plants, in violation of 21 U.S.

S$ 846 and 841(a)(1). Chandler was also indicted on

counts: Count Two, engaging in a continuing criminal enterpri

in violation Of 21 U.S.C. § 848(a); Count Three. murder whi

engaged in and working in furtherance of a continuing crimit

enterprise, in violation of 21 U.S.C. 848(e); Counts Four and

Five, aiding and abetting the use or carrying of a firearn

relation to a drug trafficking crime, in violation of 18 U.S.

S 924(c); and Counts Six, Seven, Eight. and Nin

laundering in violation of 18 U.S.C. § 1956

On January 17, 1991, Jarrell entered into a plea a

with the government. Jarrell pleaded guilty to the conspira

charge in Count One of the indictment and agreed to testify

behalf of the government at Chandler's trial. In exchange, Jar

received immunity from prosecution for Shuler’s murder fron

State of Alabama and the United Sta

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the morning of May &, 1990, Chandler arrived at Jarre]!

\ pr nt at the house was Shuler. Upon seeing Shuiet

irned Jarrell He s going to cause me and you a

{ trouble,” and “You need to go on and take care of

till got that SSOO.O RVII- | Jarrell understood

‘r to be reterring to a conversation Jarrell had with

in January, 1990. In that conversation, which occurred

the search of Donna Shuler’ s home, Chandler announced

rell should eliminate Shuler due to all of the problems that

had caused for Jarrell and his tamily, declaring that he

Jarrell $500 if Jarrell accomplished the task. At that

idler then left Jarrell’s house and Jarrell and Shuler spent

rning drinking heavily. The two then drove to Snow s Lak

ngaged in target practice with two guns Jarrell had

S80 pistol owned by Jarrell and a nine millimeter

iat Chandler had placed in Jarrell’s car the previous

Jarrell then turned the nine millimeter pistol on Shulet

ind killed him. Jarrell drove directly to Chandler

id advised Chandler that he had killed Shuler. Jarrell then

to Snow's Lake accompanied by Chandler, carried

body to the other side of the mountain bordering Snow s

;

nd buried the body near an abandoned moonshine still

isked for the $500, but Chandler did not pay him

\t approximately the same time that Shuler was murdered

indier was also attempting to protect his operation trom

duals who were stealing his marijuana crop. Chandler

sal

‘d that two individuals, Patrick Burrows and Jeffrey

[

were Stealing his marijuana. Chandler warned several

lat he would kill McFry and Burrows if they continued

narijuana. Chandler later announced to one of his dealer

that Burrows was dead and that McFry would be next if McFry

quit stealing Chandler's marijuana. Neither Burrows not

A

[ ‘en alte! September 1QQ()

74

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{ Shuler and (2) Chandler procured the murder by promising the

ayment of money. The jury unanimously recommended that

handler be sentenced to death. On May 14, 1991, the district

ourt sentenced Chandler to life imprisonment on Counts One and

two consecutive five year sentences on Counts Four and

ind six years Of imprisonment on Counts Six, Seven, Eight

1 Nine. Based on the jury recommendation, the district court

ntenced Chandler to death on Count Three as mandated by

|

| S ( > 848(G)(1)

Chandler moved for a new trial as to both phases of his trial

[hese mouions assigned numerous errors to both the guilt and

‘ntencing phases of the trial. Some arguments renewed previous

ittacks and others were made for the first time. The district court

lenied the motions, but stayed enforcement of the capital

ntence pending appeal. Chandler filed two appeals to this court

rhe first challenged the capital sentence under Count Three. The

nd contested his conviction on Count Three and his

vicuions and sentences on the non-capital counts. We

idated the two appeals under 21 U.S.C. § 848(q)(1)

ll. THE STATUTORY SCHEME

A. Overview Of Section 848

Ihe Anti-Drug Abuse Act of 1988 establishes as a capital

ffense the intentional killing of a person in connection with the

mmission of a continuing criminal enterprise. The Act details

wrocedures to be followed hdefore a defendant may be sentenced

Initially, the government must serve notice “a reasonable ume

before trial” of its intent to seek the death penalty ra Bie ft &

S48(h)(1). If a defendant is found guilty of violating

section 848(e)(1)(A), a separate sentencing hearing must be

nducted, generally before the same jury that determined guilt

| U.S.C. § 848(1)(1)(A). The purpose of the hearing is to permit

nsideration of any aggravating and mitigating factors relevant

whether the defendant should be sentenced to death. 21 U.S.C

44%(j). The information presented at sentencing need not

niorm to the Federal Rules of Evidence, so long as the district

AS

court is convinced that its probative value is not substantially

outweighed by the danger of unfair prejudice, confusion of the

issues, or misleading to the jury. /d

rhe process by which a jury is to consider sentencing factors

is specific. The government must prove beyond a reasonable

doubt and to the unanimous satisfaction of the jury at least two

of the aggravating factors expressly set forth in the statute

»] U.S.C. § &848(j), (k). It must advise the defendant a reasonable

time before trial of those aggravating factors it intends to prove

21 U.S.C. § 848(h)(1). One of these must be from among the four

listed in Section $48(n)(1). The other must be from among those

listed in Section 848(n)(2)-(12). Absent a finding of these

aggravating factors, a jury cannot impose the death penalty

21 U.S.C. §§ 848(k)

lt a jury makes the required findings of aggravating factors

it then considers any mitigating factors established by the

defendant. 21 U.S.C. § 848(k),(m). Mitigating factors need only

be established by a preponderance of the evidence, and any juror

persuaded of a mitigating factor may consider it in reaching a

sentencing decision; unanimity as to what factors are mitigating

is not required. 21 U.S.C. § 848(j),(k).

A jury that finds the required aggravating factors must

consider whether these factors so outweigh any mitigating factors

as to justify a sentence of death. 21 U.S.C. § 848(k). Absent any

mitigating factors, a jury must still unanimously find that the

aggravating factors are themselves sufficient to justify a sentence

of death. /d. Invidious factors, such as race or sex, cannot

influence a jury's recommendation of the death penalty. Each

juror must sign a certificate attesting that neither the defendant's

nor the victim's “race, color, religious beliefs, national origin, or

sex” played any part in the deliberations. 21 U.S.C. § 848(0)(1)

Although a jury cannot vote for the death penalty absent the

required findings just detailed, a jury is never required to impose

a death sentence even if it finds sufficient grounds to do so under

the applicable law. Indeed, a court must specifically so instruct

the jury. 21 U.S.C. § 848(k). Although the statute denominates

a jury's finding in favor of the death penalty a “recommendation, ”

AY

it 1s determinative, for upon such a “recommendation” the trial

court “shall sentence the defendant to death.” 21 U.S.C. § 848(1)

Appellate review of a death sentence is expressly provided by

the statute. 21 U.S.C. § 848(q)(1). Such appeal may bi

consolidated with a challenge to the judgment of conviction, and

the case is to be given priority on the appellate docket. /d

KB. Standard Of Review

Section 848 contains two provisions that address our review

Of death sentences imposed under Section 848

Section $48(q)(2) states:

On review of the sentence, the court of appeals shall consider

the record, the evidence submitted during trial. the

information submitted during the sentencing hearing. the

procedures employed in the sentencing hearing, and th

special findings returned under this section

Section 848(q)(3) provides:

The court shall affirm the sentence if it determines th;

(A) the sentence of death was not imposed em the

influence of passion, prejudice, or any other arbitrary factor

and

(B) the information supports the special finding of the

existence of every aggravating factor upon which the sentence

was based, together with, or the failure to find. any mitigating

factors as set forth or allowed in this section

There is nothing in these sections altering our ordinary standards

of review. Instead, these sections serve to emphasize the serious

nature of capital cases and the importance of careful review

III. DISCUSSION

A. Challenges To The Death Sentence

|. Jury power to recommend a sentence other than death

Section 848(k) provides that if the jury finds certain

aggravating factors, the jury must then weigh the aggravating

lactOrs against any mitigating factors to determine whether to

recommend “that a sentence of death shall be imposed rather than

Al

a sentence of life imprisonment without possibility of release

some other lesser sentence. At Chandler's sentencing, the district

ourt instructed the jury that in the event that it did no

recommend a sentence of death, it should not be concerned wit!

the question of what sentence he might receive. The district court

ilso stated that the judge alone would decide Chandler s senten

if the jury did not recommend death

Chandler contends that the district court violate

withholding from the jury the authority to impose a sentet

Other than death. However, at a pre-sentencing hearing

Chandler's counsel asserted that “I don't think they [the jurors

make a recommendation of a sentence if they don t recommend

death.” XIV-40. The proposed jury instructions submitted b

Chandler advised that if the jury did not recommend a deat!

sentence, the responsibility for imposition of a non-death sentem

rested with the district court. Beeause Chandler both argued !

and submitted jury instructions stating that the district court alone

was responsible for sentencing Chandler if the jury did

recommend death, Chandler invited the alleged error and cann

now, on appeal, complain that the instruction was errone

Leverett \ spear 877 F.2d 921, 924 (11th Cir. 1989)

Had Chandler not invited the instruction, the district

properly construed Section &48(k). When the language of a statut

is clear, the language controls any interpretation of the statute

absent a legislative intent to the contrary. United Stat

Turkette, 452 U.S. 576, 580, 101 S.Ct. 2524, 2527, 69 L.Ed.2d

246 (1981); Harper v. Better Business Servs., Inc., 961 F.2d 1561

1563 (ilth Cir. 1992). We must look to the language and design

of the statute as a whole in interpreting the language at issu

McCarthy v. Bronson, U.S 111 S.Ct. 1737, 174

114 L.Ed.2d 194 (1991)

The language of Section 848(k) is not perfectly clear, and the

legislative history of the Anti-Drug Abuse Act of 1988 consists

of only a few debates on the Senate floor. Nevertheless

Section 848(k) can be confidently interpreted when it is read in

the context of the statute as a whole. Several provisions of

All

section 848 suggest that Chandler's interpretation 1s flawed

Upon the recommendation that the sentence of death be

imposed, the court shall sentence the defendant to death

Otnerwise the court shall impose a sentence, other than death

iuthorized by law

[he second sentence of this section instruct that the district court

ne sentence if the jury does not recommend death

Similarly, Section S48(p) provides

If a person is convicted for an offense under subsection |

I this section and the court does not impose the penalty of

cath, the court may impose a sentence of life Imprisonment

without the possibility of parole

lhus, the statute grants the district court the discretion to sentence

defendant to life without parole if a death sentence is not

ommended. These sections preclude an interpretation of

4

section 848(k) that gives the jury the authority to impose a non

jleath sentence. Correspondingly, the responsibility for sentencing

nas historically resided with the trial court. In the absence of clear

language in a Statute to lodge the sentencing responsibility with

ihe jury, we are reluctant to interpret the statute in a strained

manner to reach that result. Hence, we find that Section 848

‘rants the district court the power to sentence the defendant

where the jury does not recommend death.

Chandler next insists that our interpretation of Section 848(k)

violates the Fifth and Eighth Amendments. Chandler relies on

Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392

1980). In Beck, the Court held that a jury in a Capital case must

be permitted to consider a verdict of guilty on a lesser included

non-capital offense where the evidence would Support such a

verdict. The jury will thus not be put in a position of choosing

between guilt on a capital offense and acquittal. Chandler argues

that the jury at his sentencing was put in a similar position

However, Beck is not directly applicable in Capital sentencing

hearings. California v. Ramos, 463 U.S. 992, 1007-09. 103 S.Ct

3446, 3457, 77 L.Ed.2d 1171 (1983). In Chandler’s case. prior

mnnection with a continuing criminal enterprise. Therefore, the

jury was not choosing between guilt of a capital crime and

acquittal. It was choosing between a penalty of death and

her sentence yet to be determined by the trial judg

Chandler also invokes Hick Oklahoma, 447 U.S. 343

lOO S.Ct. 2227, 65 L.Ed.2d 175 (1980). In Hicks, the Court held

that due process requires that a jury must be informed of al

‘ntences that the statute allows it to impose when exercising

entencing power. /d. at 346, LOO S.Ct. at 2229. In Hicks, the jury

was vested with the power to determine the defendant's senten

capital or otherwise. In this case, Hicks provides no guidance. Th

issue before us 1s whether Section 848 gives the jury the power

to recommend a sentence other than death. Unless that questi

is answered in the affirmative, Hicks provides no guidance

The Court has ruled that there is no single correct way to

Structure a death sentencing procedure. Morgan v. Illinot

U.S , 112 S.Ct. 2222, 2228, 119 L.Ed.2d 492 (1992):

Spaziano v. Florida, 46% U.S. 447, 464, 104 S.Ct. 3154, 3164, 82

L.Ed.2d 340 (1984). Indeed, there is also no constitutional

requirement that juries be allowed to participate in capital

sentencing. /d. at 459, 104 S.Ct. at 3161-62. Accordingly, there

is nothing unconstitutional with the procedure Congres:

established in Section 848. The jury has the sole power to

recommend a sentence of death. If the jury does not recommend

a death sentence, the trial judge has the responsibility to impx

a sentence other than death. Hicks is inapplicable to Chandle

case because the jury, in this case, was instructed on the ful

range of its sentencing power; that is, the power to recomme:

a death sentence

2. Jury should have been informed of other sentences

Chandler contends that even if the jury did not have the p

to recommend a sentence other than death, under Section &48(}

and applicable precedent, the jury should have been informe

the possible sentences Chandler would face if the jury did n

recommend death. We review jury instructions de novo |

determine whether they misstate the law or mislead the jury to u

1i“¢

RX V-X (hand met [ tfect, 1s that th Str

u nstructior iS Inadequate | iu it did not inform t

iry that tl nten han deat ncluded the possibilit

f without par

*," find tha i! Instruction idequa

formed the jury under Section 848(k). The statutory schem

reated by Section 848 provides that the jury alone has the pi I

mmend a sentence of death. If the jury does not make su

ndatior | listrict Court sentences the defenda

Not In Section 848 requires the jury to be informed of wh

he defendant mightr in the abser { death. |

{ ul Instrucuhions were propel

jandler also suggests that applicable | let ind

i defendant be allowed to introdu viden relatin

nitigating factors quil that the jury be informed of t

| sibility that Chandler would receive a lif entence with

parole if death was not 1 mmended. The Suprem urt |

lefined mitigating factors as “any aspect of a defendar

naracter record and a! {th ircumstances of the offen

Lock Ol 438 U.S. 586, 604, 98 S.Ct. 2954, 2965

L.Ed } 4 1/8 ee Skipper South Carolina. 476 U.S

+, 106 S.Ct. 1669, 1670-71, 90 L.Ed.2d 1 (1986). The range

possible sentences that Chandler might receive in the event tl

iry did not recommend death does not fall within this definiti

\ rdingly, the district court was not required to inform the jury

{ the possible sentences Chandler might fac

4. Return of mitigating findings

(handler urges us to rule that the district court should |

ing factor

|

t that the jury be instructed to return written findir

-GQUCSI

mitigating factors or object to the lack of such an instructi

r

Chandler did submit proposed jury charges that instructed the jury

that they should find two mitigating factors: (1) that Chandler

lacked a criminal record, and (2) that an equally culpable

defendant would not receive the death penalty These requested

instructions did not adequately bring to the district court's

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ittention the issue now presented on appeal. Thus, we review for

lain error. Fed. R. Crim. P. $2(h)

The finding of plain error is a three Step process: (1) there

ist be an error, (2) the error must be plain, i.e. clear or obvious

ihe error must affect substantial rights. United State

lano U.S 113 S.Ct. 1770, 1777-78, 123 L.Ed.2d

5 (1993). In most cases, the third prong of this test Is met only

lien the defendant demonstrates that the error affected the

itcome of the proceedings before the district court. Jd. at 177%

however, the error affects the basic protections of a criminal

without which a criminal trial canpot reliably serve its

function, an effect on the outcome will be presumed. /d.: see

ona Vv. Fulimante U.S lll S.Ct. 1246, 1264

13 L.Ed.2d 302 (1991) (distinguishing between trial type

and errors which undermine the entire trial). If the

satisties all three prongs, then we have the

Lrcuonary power to correct an error which seriously affects the

integrity or public reputation of judicial proceedings

Nano U.S. at 113 S.Ct. at 1778-79

We first determine whether an error occurred. We disagree

Chandler's interpretation of Section 848 that the jury is

juired to return written findings of mitigating factors that the

iry Nas either found to exist or found not to exist. Instead we

rpret Section 848 as providing the jury with the option of

returning written findings of mitigating factors. Because the

trict court Ss Instructions and verdict form foreclosed the jury

‘xercise Of this option, the district court committed error

Secuion 848(k) is entitled “Return of Findings.” It provide

it the jury “shall return special findings identifying any

ravating factors set forth in subsection (n) of this section

|

Ing tO exist The Section also States

\ finding with respect to a mitigating factor may be made by

ne Or more of the members of the jury, and any member of

the jury who finds the existence of a mitigating factor may

sider such a factor established for purposes of this

subsection, regardless of the number of jurors who concur

that the factor has been established

[The statute mentions special findings only in relation

aggravating factors. Also, the permissive language concerning the

return of written mitigating findings, “may be made,” contrast:

with the mandatory language concerning the return of written

aggravating findings, “shall.” The jury is required to return

aggravating findings and is permitted to return mitigating

findings. Therefore, we find that Section 848 requires that th

jury be instructed that it has the option to return written finding

Of mitigating factors if 1t so Chooses, but that it does not requil

the return of such findings

Section §48(q) does not require a different result. This sect

states that on review of a death sentence, “the court of appeal

shall consider the special findings returned under thi

section.” 21 U.S.C. § 848(q)(2). The section also instructs

pertinent part, that we shall affirm a death sentence 1

the information supports the special finding of the exister

Ol every aggravating factor upon which the sentence w

based, together with, or the failure to find, any mitigatin

factors as set forth or allowed in this section

21 U.S.C. § 848(q)(3)(B). Neither of these subsections mandat

the written findings of mitigating factors. They require only that

we review any findings which are returned to ensure that the

information presented during sentencing supports those findings

We hold that Section 848(k) requires that the jury be given the

option to return written findings of mitigating factors

Section §48(q)(3) requires that if the jury exercises its option, we

must review those findings

This interpretation comports with the law as it stood

time Congress drafted the Anti-Drug Abuse Act of 1988. The

finding of mitigating circumstances is individualized; a juror is

free to find a mitigating factor even if no other juror agrees with

that finding. See Mills v. Maryland, 486 U.S. 367, 373-74, 108

S.Ct. 1860, 1865, 100 L.Ed.2d 384 (1988). Congress may well

have determined that forcing jurors to write down mitigating

factors would discourage a lone juror from finding mitigating

circumstances that the rest of the jury had rejected or disparaged

More significantly, by not requiring a juror to inform his or het

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i if) i ui [ [ I] i id 17e¢d | IT nati [ |

mitigating fa ind ippropriatel | a deatl

IS prot

I} istrict rt in thi ise did not inform tl iry tl

id ption return written findings of mitigating fact ind

lorm did f ntain space for th puional find

| rror. Mor r. tl rror was fia I} tatu

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} , is p7aa U i J

I Nn mitigating findir

\ rditr ve must determine wheth iff

er Ss substantial rights. We n imiually that this error d

indermine the ha pre CUuiONS OF a criminal trial wit

nh a criminal tria innot reliaply sey Its Tuncuon

1d 1 (rial type error. Chandler must therefore demonstra

it the error alfected the outcome of the proceedings before tl

{ court. Chandler argues that h was prejudiced b iu

pellate court 1 review cannot determine whether th

} tw mi la [ vhich Chandler ntends yv

yond disput |!) that Chandler had no criminal 1 rd

hat Jas il Wa i Jud! padi pet n wn \ ]

tl deatl penait

We a persuaded that the lack of written mitigating finds

not alfect the outcome of Chandler's sentenc ing hearing. The

iment and Chandler stipulated that Chandler had no pri

le

HVICctION

on any felony or drug charge and that Jarrell would

1Ve the death pe

lalty. These stipulations were presented

‘Mtencing to the jury, and the jury was informed that the

were Supulations. Moreover, the jury was properly instructed o1

tO find mitigating factors and the role of mitigating factors

(heir decision making process. The jury is presumed to foi

instrucwtions they are given. See Richardson \ Marsh, 48

U.S. 200. 206. } S.Ct. 1702, 1707, 95 L.Ed.2d 176 (198

} . ¢ > = , > . ‘ > ‘? ¢

Thus, Chandler has not demonstrated that the lack of Wl

ating findings affected the outcome of his cas

In conclusion, the district « urt erred Dy not allowine ti }

ption ft retur Written findings i mitigating factors

4.

Jury unanimity at sentencing

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ntaining the jury's recommendation for or against a death

‘ntence, the form provided

We the jury unanimously vote to recommend, and do

unanimously recommend that .

a sentence of death he IMPose d

a sentence of death not be imposed

pon defendant David Ronald Chandler

Ril-221-3. Chandler argues that Section 848 along with the

Mstituuonal requirement that the jury not be misinformed o1

rced during a capital sentencing require that the jury be

instructed that the failure to reach unanimity would result in

handler receiving some non-death sentence as determined by the

several courts have held that a trial court must instruct the

ury on the consequences of a lack of unanimity at the sentencing

lage (a “hung” jury). The Delaware Supreme Court held that,

because Delaware's capital statute provides that the failure to

ach unanimity results in a life sentence. the jury must clearly

and explicitly be instructed that the jury need not be unanimous

lor a life sentence to be imposed. Whalen v. State, 492 A.2d 55?

562 (Del. 1985). The New Jersey Supreme Court, in construing

a similar Capital statute, held that the statute and the unique nature

Of a death case require that the trial court inform the jury of the

consequences Of a non-unanimous decision. State v. Ramseur. 524

2d 188, 283-84 (N.J. 1987). Louisiana has reached the same

conclusion. State v. Williams, 392 So.2d 619, 633-34 (La. 1980)

Chandler points out that in other Section 848(e) prosecutions, the

district courts have instructed the jury on the consequences of a

hung jury and provided a verdict form that allowed the jury to

State that they were unable to reach a unanimous verdict.

Other courts, however, have held that a defendant is not

entitled to an instruction informing the jury of the consequences

of a lack of unanimity. The Fourth Circuit held that even though

the Virginia capital statute requires that the defendant receive a

life sentence if the jury is unable to reach unanimity, the

defendant is not entitled to a hung jury instruction. Evans \

Thompson, 881 F.2d 117, 123-124 (4th Cir. 1989), cert. denied

4

at sentencin

evidence

of the

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A) 2

\t the guilt phase, the government introduced evidence that

Chandler had made threats against McFry and Burrows because

he thought they were stealiag his marijuana and that the two had

not been seen since the threats were made. Prior to the sentencing

hearing, Chandler submitted proposed jury instructions. Proposed

Instruction 14 stated that 1t would be inappropriate for the jury

to speculate on what may have happened to McFry and Burrows

what connection Chandler may have had with them. Proposed

Instruction 15 stated that the jury may consider evidence relating

niy to Marlin Shuler and to Count Three of the indictment. Prior

» the hearing, the district court, the prosecution, and Chandler!

attorney discussed these proposed charges. The district court

indicated that it thought that the charges unduly limited th

‘vidence that the jury could consider because most of th

‘vidence presented at the guilt phase was relevant to cithe

Chandler s intent or to the planning or scheming of Shuler

murder. Then, in response to a question trom the prosecution, the

court opined that any evidence concerning the disappearance of

ither McFry or Burrows was relevant to planning, if nothing else

Later, the court advised that although he would not giv

Chandler's proposed instructions, he thought they were fair

arguments tor Chandler s counsel to make in closing

At the hearing, the district court received, upon th

‘rmment s submission, all of the testimony, evidence, and

*xhibits presented at the guilt phase that were relevant to the

murder of Shuler or to the presence of aggravating or mitigating

factors. Chandler's counsel, in his closing argument to the jury

requested that it should not speculate about any connection

between Chandler and the disappearances of McFry and Burrows

lhe prosecution replied in rebuttal that the threats made against

McFry and Burrows demonstrated planning in the protection of

Chandler's marijuana operation. Following closing arguments, the

court instructed the jury that it could consider any evidence

relevant to the Shuler murder and to the existence of aggravating

and mitigating factors. The court identified the specific factor:

that the government was attempting to prove and admonished the

jury to consider no other aggravating factor

AD3

On appeal, Chandler argues that the introduction of all the

evidence from the guilt stage of the proceedings « oupled with the

argument made in closing by the government relating to McFry

and Burrows constituted an attempt by the government to use the

apparent murders of McFry and Burrows as aggravating factor

Since these putative murders were not included in the list

provided under Section 848(h)(1)(B), Chandler insists that th

sentence of death should be vacated

Ihe evidence relating to McFry and Burrows was 1

improperly admitted during sentencing because it related to the

aggravating factors the prosecution was responsible for proving

Sccuon 848(j) allows the presentation of any information relevant

(0 aggravating circumstances provided the probative value is n

substantially outweighed by the danger of unfair prejudi

confusion of the issues or misleading the jury. Although t

Federal Rules of Evidence do not govern the admissibility of

‘vidence during a Section &48(e) sentencing hearing it is h ‘Ipful

lo refer to the definition of relevant evidence from the Federal

Rules, to wit: evidence having any tendency to make the existen

Ol a material fact more probable or less probable than it would

he without the evidence. Fed. R. Evid. 40]

"he evidence concerning McFry and Burrows has a tenden

to prove Chandler's intent to kill Shuler and his substar.tiai

planning in the murder. The fact that Chandler threatened t

eliminate two individuals who he believed were stealing hi

Marijuana tends to prove that Chandler was willing to harm

someone who threatened his marijuana enterprise. Since Shuler

threatened Chandler's operation by informing on Donna Shuler

Chandler's prior threats and the disappearances have a tendency

lo prove that Chandler would also respond to Shuler’s actions t

protect his operation. This has a tendency to prove that Chandler

intended to harm Shuler

The evidence also demonstrates that Chandler planned the

protection of his marijuana operation. Public statements indi ating

that Burrows is dead and McFry will be next, reveal Chandler's

CONSCIOUS achlons Over tme to protect his operation. That

Chandler planned the protection of his Operation against those

f

Instruction on the weighing process

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utweigh the mitigating factors. The district court also gave the

jury a verdict form. The form was to be signed by each juror and

ynfirmed that the jury had tound that the aggravating factors

itfticiently outweighed the mitigating factors

We review jury instructions under the standard discussed

ihove.” In context, the instructions sufficiently charged the jury

n the weighing process. The instructions communicated to th

jury that it must find that the aggravating factors when balanced

iwainst the mitigating factors justified a sentence of death. The

fact that the district court omitted the word “sufficiently” two

times does not render the instructions inadequate or erroneou:

Moreover, the jury form that each juror signed stated that “the

iweravating factors unanimously found by us to exist sufficient

utweigh any mitigating factor or factors found to exist to justi

‘ntence of death.” RII221-3 (emphasis added

_

The weighing process

\ death penalty statute is constitutional only if the statue

nuinely narrows the class of persons eligible for the death

penalty and reasonably jusufies the imposition of a more severe

‘ntence on the defendant compared to others found guilty ol

murder. Lowenfield v. Phelps, 484 U.S. 231, 244, 108 S.Ct. 546

554, 9S L.Ed.2d 568 (1988) (citing Zant v. Stephens, 462 U.S

862, 877, 103 S.Ct. 2733, 2742, 77 L.Ed.2d 235 (1983

Chandler argues that due to the breadth of 848(e), the finding

Of guilt under Section 84&(e) does not satisfy the constituuional

requirement that a capital statute must genuinely narrow the class

f defendants eligible for the death penalty. Instead, Chandler

ontends that the narrowing function occurs during the sentencing

phase when the jury finds aggravating factors. Chandler further

ontends that because one of the aggravating factors duplicate:

i jury finding at the guilt phase, the jury's weighing process 1

kewed in favor of imposing the death penalty. He submits that

the jury deliberations are skewed because the jury will

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d. Argument against sympathy

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pecific criminal activity, the jury

of whether to ntence Chand!

might feel towards Chandlet

improper

IS NO federal Statute prescribin

federal death sentences. Chandler

ngressional legislation specifying

hav ‘troactive effect in violation of

S. | rt. | » ¥, cl. 3. In effect

I le imprisonment

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mmitted, which was innocent wher

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ich deprives one charged with crim

rding to law at the time when t!

, roungblood, 497 U.S. 3

Ed.2d 30 (1990) (quoting Bea

+6 S.Ct. 68, 68-69, 70 L.Ed. 21¢

not prohibit a law that change

not alfect matter f substan

82 5,97 S.Ct. 2290, 2298 }

Florida capital statute that cured

ipital Statute by amending the death

not tl quantum OF punishment

nol ile @x post facto Clause)

gd by Dobbert. The statute undet

} to death clearly provided for such

lear not (nat a violator of the law

Future | lauion would not increa

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Kk. Challenges To The Conviction On Count Three

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Connection between the « ntinuinyg criminal entert St

ind the murder

A36

themselves fully, directly, and expressly, without any uncertainty

ir ambiguity, set forth all the elements necessary to constitute the

offense intended to be punished.’” Hamiling v. United States, 41%

U.S. 87, 117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590 (1974); United

States v. Ramos, 666 F.2d 469, 474 (11th Cir. 1982)

The language of the indictment is sufficient. The indictment

tracks the language of the statute as written by Congress

Moreover, any reasonable reading of the indictment makes it clear

that the government was charging Chandler with a murder in

connection with, and not just contemporaneous to, the ongoing

continuing criminal enterprise. The necessary connection between

the murder and the enterprise was thus present in the indictment

b. Jury charge

Phe instruction gi iry stated

So count 3 1s built upor int vhich it is Dulit upon count

1. Then goes on and charges on or about May &, 1990 In of

about an area known as Snow's Lake near Piedmont, Alabama

inthe Northern District of Alabama, the defendant while

engaged in and working in furtherance of a Continuing

Criminal Enterprise, intenuonally killed and counseled

commanded, induced, procured and caused the intentional

killing of Marlin Shuler

RXIII-186. The district court further instructed that

‘Section 848(e)(1) make|s] 1t a separate Federal crime or offense

for anyone, while engaging [in] a Continuing Criminal Enterprise

such as the one charged in count 2, to kill an individual or to

command or cause the intentional killing of an individual.” /d

at 187. The court then enumerated the elements in a

Section 848(e)(1) offense:

First, that while engaging in or working in furtherance of the

Continuing Criminal Enterprise charged in court [sic] 2, the

defendant either killed Marlin Shuler or commanded, induced,

procured or caused the intentional killing of Marlin Shuler,

as charged in count 3 and (2), that the death of Marlin Shuler

resulted from such activity of the defendant and, (3), that

A37

such activity of the defendant was done knowi:

willfully

ld. Again, Chandler argues that these instructions allow

lO return a guilty verdict even if they found n

between the enterprise and Chandler's solicitation of S

murder.

Chandler failed to request a jury instruction con

charge he now claims was erroneous nor did he ob

charge that was given. Thus, we review the charge for plais

Fed. R. Crim. P. 52(b). The instructions are reviewed

5

Standard discussed above.

The instructions informed the jury that Count Three, th

murder charge, was “built upon” Count Two, the continuine

criminal enterprise charge. The district court also instructed the

jury that there must be a connection between the murder and the

continuing criminal enterprise. The connection was described

once as “while engaged in and in furtherance of” the enterprise

and later stated as “while engaged in or in furtherance of” the

enterprise. RXIII-186, 187. There is nothing vague about this

clear and direct expression. Additionally, the prosecution

introduced evidence and argued repeatedly that Chandler had

solicited the murder of Shuler because Shuler had informed on

one of Chandler’s dealers.

There is no reasonable likelihood that the jury believed that

it could find Chandler guilty even if it found that he solicited

Shuler’s murder for reasons not connected to the continuing

criminal enterprise. The instructions clearly conveyed to the jury

(hat it must find a connection between Shuler’s murder and the

enterprise. The mere use of the word “or” by the district court

once during the jury instructions is exactly the type of “artificial

isolation” that the Supreme Court rejected in Cupp v. Naughten

414 U.S. at 147, 94 S.Ct. at 400.

See supra part HIL.A.2

A 3

2. Violation of 18 U.S.C. § 3432

In any case in which a federal defendant is charged with a

Capital offense, at least three days before the commencement of

trial, the prosecution must furnish the defendant with a copy of

the indictment, a list of the veniremen and a list of the witnesses

to be produced at the trial. 18 U.S.C. § 3432. On March 5, 1991

the government provided Chandler with a witness list. The list

was supplemented on March 15, 199]

The list did not include the name of Tim Whatley, a witness

called by the prosecution. Whatley, an Anniston, Alabama, police

fficer, testified that in a search of Chandler's home he seized a

piece of paper with the words “Bill Broome” and “copy of police

report” on it

Chandler contends that Whatley was improperly allowed to

testify in violation of Section 3432. Chandler did not object when

the government called Whatley as a witness, and objected to the

admission of the piece of paper only on the grounds of

“relevancy, materiality, and identification.” RXI-36. Therefore

we review for plain error

We first determine whether an error occurred and whether it

was plain. The failure to include Whatley on the witness list was

a technical violation of Section 3432, and it was an obvious error

Because this is an error that does not undermine the basic

reliability of the trial process, Chandler must demonstrate that the

error affected the outcome of the case.

Chandler cites United States v. Crowell, 442 F.2d 346, 34%

(Sth Cir. 1971). In Crowell, the prosecution in a capital case did

not provide the defendant with a list of the veniremen. The court

held that “Section 3432 is mandatory, and a defendant indicted

for a capital offense must be given the benefits of its provisions,

and the failure to allow defendant its benefits would be plain

error.” /d. at 348 (citation omitted).®

The Crowell court relied on two cases: Amsler v. United

States, 381 F.2d 37 (9th Cir. 1967), and Logan V. United States.

A439

We find that Crowell is distinguishable and that Chandler has

not demonstrated that the error affected the outcome of his case

Chandler assigns as error the tesumony Of one police officer that

the prosecution used to establish the chain of custody for the

introduction of a piece of evidence. The officer's testimony was

in no other respect important. Chandler makes no claim that his

Gelense was in any way prejudiced by the failure to include

Whatley’s name on the government's witness list or that he was

unaware that the government would attempt to introduce the piece

Ol paper as evidence. Indeed, the government made the piece of

paper available to Chandler pursuant to Fed. R. Crim. P

16(a)(1)(C). Whatley had also written his name on the paper when

it was seized. Thus, the purpose of Section 3432 as described in

Logan was fulfilled because the defense was made aware that the

the murder of

government would attempt to link Chandler t

Shuler in part through the piece of paper. Under the

circumstances Of this case, we find that the calling of W hatley as

a4 witness for the government did not affect the outcome of

Chandler's case

144 U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429 (1892). overruled by

Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d

776 (1968). In Amsler, the prosecution in a Capital case failed to

provide the defendant with a list of either the veniremen or the

prosecution's witnesses. In Logan, the government failed to

provide the defendant with a list of witnesses. The Supreme Court

in Logan stated that the predecessor statute to Section 3432 was

“mandatory” and that “its purpose is to inform the defendant of

the testimony which he will have to meet, and to enable him to

prepare his defense.” 144 U.S. at 304, 94 S.Ct. at 630.

We further note that even had this error affected the

outcome, the error does not seriously affect the fairness, integrity

or public reputation of judicial proceedings, and we would not

exercise Our discretionary power to correct it. See Olano.

U.S. at , 113 S.Ct. at 1779

A40)

3. Lesser included offense

Chandler challenges the absence of an instruction to the jury

that it could find Chandler guilty of the lesser included offense

of the use of interstate commerce facilities in the commission of

a murder for hire, 18 U.S.C. § 1958, an offense that does not

carry the possibility of a death sentence. Chandler did not request

the lesser included offense instruction and did not object to the

district court’s omission of such an instruction

The government may not statutorily preclude a defendant

from seeking a lesser included offense instruction, if the evidence

could support a finding of guilt on the lesser offense. Bech

v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980)

We have interpreted Beck as granting a defendant, who faces the

possibility of a death sentence, the constitutional right to have a

lesser included instruction read to the jury. Rembert v. Dugger,

842 F.2d 301, 303 (llth Cir.), cert. denied, 488 U.S. 969, 109

S.Ct. 500, 102 L.Ed.2d 536 (1988). In both Beck and Rembert,

the defendant requested that the district court give a lesser

included offense instruction. Here no such request was made

The Court has also held that “{ajlthough the Beck rule rests

on the premise that a lesser included offense instruction in a

capital case is of benefit to the defendant, there may well be cases

in which the defendant will be confident enough that the State has

not proved capital murder that he will want to take his chances

with the jury.” Spaziano, 468 U.S. at 456, 104 S.Ct. at 3160

Other circuits have held that when a defendant fails to request a

lesser included offense instruction in a capital case, the district

court does not err in failing to instruct on the lesser included

offense. Kubat v. Thieret, 867 F.2d 351, 365-66 (7th Cir.), cert

denied, 493 U.S. 874, 110 S.Ct. 206, 107 L.Ed.2d 159 (1989)

Look vy. Amaral, 725 F.2d 4, 8-9 (1st Cir. 1984).

We agree with the holding in Kubat that requiring a district

court to give a lesser included offense instruction might be at

odds with the trial strategy of defense counsel. Trial judges

should be sensitive to and respectful of such difficult decisions

made by counsel. Accordingly, we find that because Chandler did

not request an instruction or object to the omission of an

A4]

instruction for the lesser included offense of murder for hire. 1

istrict court did not err by failing to give such an instruction su

;

4. The offense in Count Three of the indictment

Chandler argues that his conviction under Count Three « f tl

ndictment 1s invalid because Section &4&(e) does not define ar

llense. instead, Chandler submits that Section 848(e) is mere!

A senmlencing provision that authorizes the death penalty wit!

cribing conduct

The Fifth Circuit has squarely rejected this argument. and th

asoning of that court is persuasive. United State Villarrea

63 F.2d »S »7-2%8 Sth Cir rejectin claim tha

section 848(e)(1)(B) does not define an offense). cert. denied

U.S , 113 S.Ct. 353, 121 L.Ed.2d 267 (1997

secuion 848 (e) sets forth the elements of the crime (any person

‘Neaged in a conunuing criminal enterprise who procures the

intenuonal killing of an individual), the mens rea (intent), and

separate penalty (20 years imprisonment to life, or the deat!

penalty). similarly, the conduct proscribed in Section &48(e) is

referred to as an offense in subsections (g), (h), (i), (j), (n), and

p). We tind Chandler's argument without merit

5. Appointment of additional counsel

Chandler challenges the district court's failure to inform him

of his right to have a second attorney appointed on his behalt

pursuant to either 18 U.S.C. § 3005 or 21 U.S.C. & $48(q)(4). The

lime sequence of events in this case foreclose Chandler's claims

On December 13, 1990, the original indictment. which did not

contain a capital charge against chandler, was returned. On

December 20, 1990, the district court appointed counsel to

represent Chandler. On January 7, 1991, L. Drew Redden entered

his appearance as retained attorney of record for Chandler. The

We do not reach the issue of whether a vi Nation of

IS U.S.C. § 1958 is a lesser included offens: of t& U.S.(

} B ’ (Char i j

; 7

C. Guilt Phase Challenges

I Admission of evidence concerning threats towards, a

disappearance of, Burrows and McFry

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2. Batson challenge

Ad]

Inclined to disturD a trial judge's exercise of discretion

; ?’ad Slale if Git .

1S F.2d 505, 509 (11th Cir. 1983)

hallenging a juror for cause must demonstrate that

tion exhibited actual bias by showing either an

Kpre igmission Of bias or facts demonstrating such a clos«

nection to the present case that bias must be presumed. United

Khour 901 F.2d 948, 955 modified, 910 F.2d 7]

h Cir, 199 A juror who would automatically vote for the

th penalty i T i must be removed for cause hecau

fail ymsider the aggravating and mitigating

ic} require her to do. Morgan

a. Jurors Frye and Landers

vu that jurors Fry ind Lander hould ha

It use both indicated that they would impose th

nenalty if Chand] Vas found guilty. Reading the entirety

if responses at voir dire, it does not appear that the distri

inused its discretion t Ot Striking these jurors for cau

make it Clear that while Frye and Landers wer

ne death penaity, they would not automaticall

for tl leath penalt f th found Chandler guilty of

j that Lander noulid Nia b nrem ]

iuse | j Va rheard telling other jurors that “/t}he

t off thi is to Say the defendant looks guilty

RIV \ithougnh informed of Landers’s remark by the district

lefen unsel did not explore the statement during vo

re questioning of Landers. The district court held that thi

ident did not make it “totally improper” for Landers to ser\

ihe jury and rejected Chandler’s motion to strike Landers for

Most jurors are aware that they can avoid jury duty by

1 lacK OF impartiality. The statement does n

| mcd ’ wa al '

id }against Chandler. Thus. tl

A48

district court did not abuse its discretion in refusing to remove

Landers tor cause.

b. Juror Tuggle

Chandler argues that juror Tuggle should have been excused

because he was biased against drug activity. During vor dire,

Tuggle stated that he had a son-in-law who was in jail because

marijuana and possibly some other articles were found in his son-

in-law’s car. The juror’s response to the district court’s questions

do not demonstrate that the [sic] Tuggle would be biased against

a defendant prosecuted fer marijuana distribution. Therefore, the

district court did not abuse its discretion refusing to remove

Tuggle for cause.

c. Juror Grimes

Chandler argues that juror Grimes should have been excused

because she would not consider some of the statutory mitigating

factors in reaching her conclusion on the appropriateness of

sentencing Chandler to death. During voir dire, Grimes stated that

she did not have strong feelings towards the death penalty one

way or the other. However, she also stated that she did not

believe that the defendant's age and past criminal history would

affect her recommendation for or against a death sentence. Both

of these factors are mitigating factors as defined in

Section 848(m).

In Morgan, the Supreme Court asserted that:

ja]ny juror to whom mitigating factors are likewise irrelevant

should be disqualified for cause, for that juror has formed an

opinion concerning the merits of the case without basis in the

evidence developed at trial.

__ U.S. at___, 112 S.Ct. at 2235. Grimes’s answers do not raise

the primary concern of Morgan; that a juror who would

automatically recommend a penalty of death regardless of any

mitigating evidence. The statement that she would not consider

two of the statutory mitigating factors was made in response to

defense counsel's questions and in ignorance of the mandates of

Section 848. Jurors are not expected to know the law prior to

A49

being properly instructed, More important, Grimes stated that she

would follow the district court’s instructions in arriving at her

decision. The district court thus did not abuse its discretion in

finding that Grimes would be able to follow the court's

instructions.

In conclusion, we find that the district court did not abuse its

discretion in refusing to excuse for cause these four jurors.

4. Recusal denied

Chandler argues that the district court erred in denying

chandler’s motion for recusal. In an order denying Chandler's

pretrial motion to strike the death penalty from the indictment,

the district court stated

[bjased on the evidence the court has heard during the trial

of [Chandler's] codefendants, this court is satisfied that the

government has properly exercised prosecutorial discretion

in not also seeking the death penalty for [Jarrell]. Jarrell was

an alcohoiic lackey for Chandler who for $500, or maybe

simply a fifth of liquor, likely would have done anything

Chandler directed him to do.

RI-201-3.,

Chandler suggests that this holding demonstrates that the

district court’s lack of impartiality and the necessity of recusal.

We review the district court’s denial of a motion to recuse for an

abuse of discretion. McWhorter v. City of Birmingham, 906 F.2d

674, 678 (Ilth Cir. 1990) (per curiam).

A judge “shall disqualify himself in any proceeding in which

his impartiality might reasonably be questioned.” 28 U.S.C.

§ 455(a). The test under Section 455(a) is whether an objective,

disinterested, lay observer fully informed of the facts on which

recusal was sought would entertain a significant doubt about the

judge's impartiality. Parker v. Connors Steel Co., 855 F.2d 1510,

1524 (llth Cir. 1988), cert. denied, 490 U.S. 1066, 109 S.Ct.

2066, 104 L.Ed.2d 631 (1989). However, we have held that a

“judge's bias must be personal and extrajudicial; it must derive

from something other than that which the judge learned by

ASO

participating in the case.” McWhorter, 906 F.2d at 678. Likewise,

a judge's rulings in a related case may not ordinarily serve as the

basis for recusal. /d. There is an exception to this general rule

when the movant demonstrates pervasive bias and prejudice. /d.

In his order denying Chandler's motion, the district judge

articulated that his comment concerning the relative culpabilities

of Jarrell and Chandler was based on the evidence the court had

heard during the trials of Chandler's codefendants. This is the

only comment cited by Chandler, and the comment was not

extrajudicial. Moreover, although Chandler argues that the district

judge’s pervasive bias is demonstrated by the admission of

evidence of uncharged and unproven crimes, his repeated denials

of the defense’s jury instructions, and his imposition of the

maximum sentences possible for the non-capital convictions,

these decisions are just a few of the many decisions that a district

judge is called upon to make in the course of a trial and fail to

demonstrate pervasive bias and prejudice. Thus, the district judge

did not abuse his discretion in denying Chandler’s motion for

recusal.

5. Change of venue and sequestration of the jury

Chandler claims that the widespread publicity before the trial

prejudiced the jurors in his case. There were 64 articles in five

different newspapers during the five months prior to trial. Some

of the coverage suggested that Chandler was responsible for the

deaths of McFry and Burrows. During voir dire, seven

venirepersons stated that they had some knowledge of the case.

Of the seven, six said that they would still afford Chandler a fair

trial and the seventh did not remember what he had heard about

the case. None of the seven were empaneled.

The district court’s denial of the motion for change of venue

and for sequestration of the jury is reviewed for an abuse of

discretion. United States v. Lehder-Rivas, 955 F.2d 1510, 1524

(llth Cir.), cert. denied, ___— U.S. __, 113 S.Ct. 347, 121

L.Ed.2d 262 (1992). Chandler alleges no facts, outside the press

coverage mentioned above, showing that any of the jurors had

been prejudiced by the pretrial publicity. Regarding the

sequestration motion, the district court found that the publicity

AS]

at that point was limited, but reserved the right to reconsider the

motion if publicity increased later in the trial. We find that

Chandler has not demonstrated that the publicity surrounding the

trial was such that the district court abused its discretion in

denying Chandler's motions for change of venue and for

sequestration of the jury.

D. Challenges To Convictions And Sentences On Other

Counts

1. Continuing criminal enterprise conviction, Count Two

Count Two of the indictment charged Chandler with engaging

in a continuing criminal enterprise in violation of Section 848(a)

by committing a series of violations of 21 U.S.C. §§ 841, $43(b)

and 846. Chandler argues that the district court's instruction

erroneously suggested that district court had already determined

Chandler's guilt on these charges. Upon review of the district

court's charge, we disagree and find that the district court

properly instructed the jury as to Count Two.

2. Conspiracy conviction, Count One

Chandler argues, and the government concedes, that his

conspiracy conviction should be vacated. When a defendant is

convicted and sentenced on a Section 846 conspiracy count and

a Section 848 continuing criminal enterprise count, the two

offenses are merged by vacating the conviction and sentence of

the lesser included Section 846 conspiracy. United States v.

Nixon, 918 F.2d 895, 908 (11th Cir. 1990). We have sustained

Chandler’s continuing criminal enterprise conviction and,

therefore, vacate Chandler's conspiracy conviction and sentence.

3. Firearms conviction, Count Four

Count Four charged Chandler with aiding and abetting the use

or Carrying of a firearm during a drug trafficking offense in

violation of 18 U.S.C. § 924(c). Chandler argues that there was

insufficient evidence to support the jury’s guilty verdict.

Sufficiency of the evidence is a question of law subject to de

novo review. United States v. Poole, 878 F.2d 1389, 1391 (11th

Cir. 1989) (per curiam). This court must view the evidence in the

AS2

light most favorable to the government and determine whether a

reasonable jury could have found defendant guilty beyond a

reasonable doubt. United States v. Crawford, 906 F.2d 1531, 1535

(11th Cir. 1990).

To prove a 18 U.S.C. § 924(c) violation, possession of the

firearm must be an integral part of, and facilitate the commission

of, the drug trafficking offense. Poole, 878 F.2d at 1393. At trial

the government introduced evidence that Chandler recruited

Raymond Pointer to transport marijuana from Piedmont,

Alabama, to Anniston, Alabama, and provided Pointer with a car

for that purpose. Pointer made three or four trips to Anniston. The

prosecution then engaged in the following examination:

Q. Okay. And did you after you picked up this Oldsmobile,

did you make any runs from Piedmont to Anniston with this

Oldsmobile?

A. Yes, sir.

Q. Okay. Now, did you have an occasion on these runs to

receive anything else from Ronald Chandler to keep with you

on these runs?

A. Just that gun.

Q. Did he give you a gun?

A. Yes, Sir.

Q. When did he give you a gun, as best you can recall?

A. I think it was two, maybe three days after he give me the

Car.

RVII-71-72.

Considering the testimony in its context, we find that there

was sufficient evidence to support the Chandler's conviction on

the firearm charge. The evidence, viewed in a light most

favorable to the government, shows that Chandler gave Pointer

a gun when Pointer was given the marijuana to transport to

Anniston. A reasonable jury could have found beyond a

reasonable doubt that the possession of the firearm was an

integral part of, and facilitated, the drug trafficking, particularly

AS3

in the context of other, substantial testimony at trial regarding the

on-going criminal enterprise.

4. Money laundering, Count Seven

Chandler challenges the district court's instruction to the jury

on Count Seven and seeks the reversal of his conviction. Count

Seven charged Chandler with money laundering through the

purchase of real estate in Cleburne County, Alabama. Count Eighi

charged Chandler with money laundering through the purchase

of real estate in Calhoun County, Alabama. Chandler argues that

the court charged the jury twice on Count Eight and did not

charge the jury on Count Seven.

During the jury instructions, the district court incorrectly

Stated that the property charged in Count Seven was located in

Calhoun County, Alabama. Shortly thereafter, the court correctly

Stated that the property was located in Cleburne County. The

district court also instructed the jury that Count Eight was “an

identical-type offense as Count Seven” except that the date was

different and the property in Count Eight was “in Calhoun County

rather than Cleburne County.” Significantly, the district court

gave the jury a copy of the indictment, which accurately

identified the property locations.

Chandler failed to object to the district court’s instruction.

Hence, the district court’s error is reviewed for plain error. Given

the district court’s subsequent correct statement of the property's

location and the fact that the jury received a copy of the

indictment, the district court's instruction was not erroneous.

5. Money laundering, Counts Eight and Nine

Chandler contends that the evidence was insufficient to

support the money laundering charges in Counts Eight and Nine.

Counts Eight and Nine charged Chandler with money laundering

through the purchases of two pieces of real estate. Both

convictions are reviewed for sufficiency of the evidence under the

Standard set forth above.

The evidence at trial showed that Chandler’s parents held the

titles to both parcels. With respect to Count Eight, the

AS4

government introduced evidence that Chandler paid taxes on the

property and discussed drainage problems with municipal officials

concerning the land. With respect to Count Nine, the government

introduced evidence that, although his father paid the money to

the sellers and received title to the land, Chandler stated that he

had purchased the 120 acres. The evidence also showed that

Chandler exercised control over the two properties by growing

and cultivating marijuana on the properties and by having others

guard the tracts. Viewed in the light most favorable to the

government, there was sufficient evidence to support the jury's

finding, beyond a reasonable doubt, that Chandler laundered

money through purchasing the two real estate parcels.

6. Sentencing on the non-capital counts

Chandler first argues that we must remand the case to the

district court for resentencing because the district court failed to

afford him a sufficient opportunity to object to the sentence as

required under United States v. Jones, 899 F.2d 1097, 1102-03

(lith Cir.), cert. denied, 498 U.S. 906, 111 S.Ct. 275, 112

L.Ed.2d 230 (1990). However, after imposing the sentences, the

district court specifically asked counsel if there were any

Objections other than those that had been raised during the

sentencing hearing. Chandler's claim is without merit.

Chandler also argues that the district court improperly

calculated his offense level on the conspiracy and continuing

criminal enterprise counts. Since we have vacated Chandler's

conviction on the conspiracy count, we address only the challenge

to the criminal enterprise sentence. At sentencing, the district

court adopted the presentence report’s recommendation for the

offense level on the continuing criminal enterprise counts. The

report noted that the offense level for these counts is 38. U.S.S.G.

§ 2D1.5. However, the report stated that the offense level should

be adjusted to take into account relevant conduct with respect to

the enterprise pursuant to Section 1B1.3. The relevant conduct was

the murder of Shuler. Thus, as Section 2Al.1(a) assigns an offense

level of 43 to first degree murder, Chandler’s offense level was

fixed at 43, resulting in a life sentence.

insects

ASS

Chandler contends that the district court's computation

resulted in the double counting of Shuler’s murder, once in the

continuing criminal enterprise count and again as the basis for the

death sentence under the Section 848(e) count, Count Three.

Under the circumstances of this case, we do not reach the merits

of Chandler's claim. He faces a sentence of death on Count

Three, and the life sentence on Count Two adds no further

punishment.

Finally, Chandler argues that the district court erred in

holding that the drug activity encompassed in the conspiracy and

continuing criminal enterprise counts included more than 3,000

but less than 10,000 marijuana plants. We review the district

court's findings of fact under the clearly erroneous standard.

United v. Howard, 923 F.2d 1500, 1503 (11th Cir. 1991). During

the trial, witnesses testified that Chandler planted several

thousand marijuana plants. A notebook seized from a co-

conspirator and Chandler's own statement also supported the

finding that Chandler planted more than 3,000 marijuana plants.

Thus, the district court's finding that Chandler cultivated more

than 3,000 marijuana plants was not clearly erroneous.

IV. CONCLUSION

We VACATE Chandler's conviction and sentence for

conspiracy, Count One, because the count merges into the

continuing criminal enterprise conviction, Count Two. We

AFFIRM Chandter’s convictions and sentences on Counts Two

through Nine, including his death sentence.

EDMONDSON, Circuit Judge, concurs in the result.

UNITED STATES of America,

Plaintiff-A ppellee,

David Ronald CHANDLER, a/k/a Ronnie

Chandler, Defendant-Appellant.

Nos. 91-7466, 91-7577.

United States Court of Appeals,

Eleventh Circuit.

Sept. 30, 1993.

Appeal from the United States District Court for the Northern

District of Alabama; James Hughes Hancock, Judge.

Betore FAY, EDMONDSON and BIRCH, Circuit Judges.

BY THE COURT:

Appellee’s, United States of America, motion for modification

of the panel’s opinion is GRANTED. On page 2720 of the slip

Opinion, the second sentence of the first full paragraph of the

second column [996 F.2d 1073, on page 1095, the second

sentence of the last paragraph of the second column]: “Thus,

Congress must enact such a statute before Chandler may be

executed” is hereby stricken.

Adm. Office, U.S. Courts--West Publishing Company, Saint Paul, Minn

AS7

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

Nos. 91-7466 and 91-7577

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DAVID RONALD CHANDLER,

a/k/a Ronnie Chandler,

Defendant-Appellant.

On Appeal from the United States District Court for the

Northern District of Alabama

ON PETITION(S) FOR REHEARING AND

SUGGESTION(S) OF REHEARING EN BANC

Before: FAY, EDMONDSON and BIRCH, Circuit Judges.

PER CURIAM:

(%) The Petition(s) for Rehearing are DENIED and no

member of this panel nor other Judge in regular active service on

the Court having requested that the Court be polled on rehearing

en banc (Rule 35, Federal Rules of Appellate Procedure; Eleventh

Circuit Rule 35-5), the Suggestion(s) of Rehearing En Banc are

DENIED.

( ) The Petition(s) for Rehearing are DENIED and the Court

having been polled at the request of one of the members of the

Court and a majority of the Circuit Judges who are in regular

active service not having voted in favor of it (Rule 35, Federal

Rules of Appellate Procedure; Eleventh Circuit Rule 35-5), the

Suggestion(s) of Rehearing En Banc are also DENIED.

AS

( ) Amember of the Court in active service having requested

a poll on the reconsideration of this cause en banc, and a majority

of the judges in active service not having voted in favor of it,

Rehearing En Banc is DENIED.

ENTERED FOR THE COURT:

UNITED STATES CIRCUIT JUDGE

ORD-42

(9/91)

[Filed Sept. 30, 1993]

AS9

UNITED STATES DISTRICT COURT

Northern District of Alabama

UNITED STATES OF AMERICA

v. Case Number CR 90-H-266-E

DAVID RONALD CHANDLER a/k/a RONNIE CHANDLER

Defendant.

JUDGMENT IN A CRIMINAL CASE

(For Offenses Committed On or After November 1, 1987)

The defendant, DAVID RONALD CHANDLER a/k/a

RONNIE CHANDLER, was represented by L. Drew Redden.

The defendant was found guilty on count three after a plea of

not guilty. Accordingly, the defendant is adjudged guilty of such

count, involving the following offense:

Date Offense Count

Tile & Section Nature of Offense Concluded Number(s)

21 USC 848/e)(1)(A) Continuing criminal enterprise embracing procurement 10/1/90 3

of the killing of an individual

As pronounced on May 14, 1991, the defendant is sentenced

as provided in page 2 of the Judgment. The sentence is imposed

pursuant to the Sentencing Reform Act of 1984.

The sentence is also imposed pursuant to 21 USC 84x.

including particularly 848(1).

It is ordered that the defendant shall pay to the United States

a special assessment of $50.00 for count three, which shall be due

immediately.

Signed this the 14th day of May, 1991.

United States District Judge

Defendant's SSAN: 423-80-9130

Defendant's Date of Birth: 12/19/52

Defendant's address: Route 2, Box 473-E, Piedmont, AL 36272

A60)

Judgment ~— Page 2 of 2

Defendant: DAVID RONALD CHANDLER a/k/a RONNIE CHANDLER

Case Number: CR 90-H-266-E

SENTENCE

Based upon the Special Findings and Recommendations of the jury

on April 3, 1991, under Count 3, the court hereby imposes upon the

defendant a sentence of death. The defendant will be remanded to the

custody of the Bureau of Prisons with directions to cause such death

sentence to be implemented.

Implementation of such sentence 1s hereby STAYED unul such stay

is lifted by an order of this court, or by the United States Court of

Appeals for the Eleventh Circuit or by the United States Supreme Court.

The filing of a nouce of appeal shall also terminate such stay, but

the stay provided for in F.R.Cr.P. Rule 38(a) shall become effective.

The court declines to impose a fine due to the defendant's inability

to pay.

RETURN

I have executed this Judgment as follows:

Defendant delivered on to

al , with a certified copy of this Judgment.

United States Marshal

By

Deputy Marshal

A6ol

UNITED STATES DISTRICT COURT

Northern District of Alabama

UNITED STATES OF AMERICA

v. Case Number CR 90-H-266-E

DAVID RONALD CHANDLER a/k/a RONNIE CHANDLER

Defendant.

JUDGMENT IN A CRIMINAL CASE

(For Offenses Committed On or After November 1, 1987)

The defendant, DAVID RONALD CHANDLER a/k/a

RONNIE CHANDLER, was represented by L. Drew Redden.

The defendant was found guilty on count(s) 1, 2, 4, 5, 6, 7,

8 and 9 after a plea of not guilty. Accordingly, the defendant is

adjudged guilty of such count(s), involving the following offense(s):

Date Offense Count

Title & Section Nature of Offense Concluded Number(s)

21 USC 846 Drug conspiracy or attempt to distribute controlled 10/90 1

substance

21 USC 841(a)(1) ~ Schedule | (manjuana). controlied substance

- Schedule! (marjuana)

21 USC 848 Controlled sub. - Sch. | (manjuana), continuing cnminal 10/90 2

enterprise

18 USC 924(c)(1) Firearms - used to commit offense 5/90 4&5

18 USC 1956(a)(1)(A) Laundering of monetary instruments 3/90 6

18 USC 1956(a)(1)(B)(i) | Laundering of monetary instruments 10/89 7,889

As pronounced on May 14, 1991, the defendant is sentenced

as provided in pages 2 through 4 of this Judgment. The sentence

is imposed pursuant to the Sentencing Reform Act of 1984.

It is ordered that the defendant shall pay to the United States

a special assessment of $50.00 for each of count(s) 1, 2, 4, 5, 6,

7,8 and 9, for a total of $400.00, which shall be due immediately.

It is further ordered that the defendant shall notify the United

States Attorney for this district within 30 days of any change of

name, residence, or mailing address until all fines, restitution, costs,

and special assessments imposed by this Judgment are fully paid.

Signed this the 14th day of May, 1991.

United States District Judge

Defendant’s SSAN: 423-80-9130

Defendant's Date of Birth: 12/19/52

Defendant's address: Route 2, Box 473-E, Piedmont, AL 36272

A62

Judgment — Page 2 of 4

Defendant: DAVID RONALD CHANDLER a/k/a RONNIE CHANDLER

Case Number: CR 90-H-266-E

IMPRISONMENT

The defendant is hereby committed to the custedy of the United

States Bureau of Prisons to be imprisoned for “ne balance of the

defendant's life, under Count 2; said sentence to run CONCURRENTLY

with any custody served under, or in connection with the separate

sentence imposed under Count 3.

Under Count |, the defendant is to be imprisoned for the balance

of the defendant's life; said sentence to run CONCURRENTLY with

any custody served under, or in connection with the sentences imposed

under Counts 2 and 3.

Under Counts 6, 7, %, and 9, SIX (6) YEARS custody, to run

CONCURRENTLY with any custody served under, or in connection

with the sentences imposed under Counts |, 2 and 3.

Under Count 4, FIVE (5) YEARS custody, to run

CONSECUTIVELY to any custody served under, or in connection with

the sentences imposed under Counts 1, 2, 3, 6, 7, 8 and 9.

Under Count 5, FIVE (5) YEARS custody, to run

CONSECUTIVELY to any custody served under, or in connection with

the sentences imposed under Counts 1, 2, 3, 4, 6, 7, 8 and 9.

RETURN

I have executed this Judgment as follows:

Detendant delivered on to

al , with a certified copy of this Judgment.

United States Marshal

By

Deputy Marshal

A63

Judgment — Page 3 of 4

Defendant: DAVID RONALD CHANDLER a/k/a RONNIE CHANDLER

Case Number: CR 90-H-266-E

SUPERVISED RELEASE

Upon release from the custodial portion of the sentences

imposed under Counts 1, 2, 4, 5, 6, 7, 8 and 9, the defendant shall

be on supervised release for a term of FIVE (5) YEARS.

While on supervised release, the defendant shall not commit

another federal, state, or local crime; shall not illegally possess

a controlled substance; shall comply with the standard conditions

that have been adopted by this court (set forth below); and shall

comply with the following additional conditions:

|. If ordered to the custody of the Bureau of Prisons, the

defendant shall report in person to the probation office in

which the defendant is released within 72 hours of release

from the custody of the Bureau of Prisons.

2. If this judgment imposes a fine, special assessment, costs, or

restitution obligation, it shall be a condition of supervised

release that the defendant pay any such fine, assessments,

costs, and restitution that remain unpaid at the

commencement of the term of supervised release.

3. The defendant shall not own or possess a tirearm or

destructive device.

- CONTINUED -

A64

Judgment — Page 3 of 4

Defendant: DAVID RONALD CHANDLER a/k/a RONNIE CHANDLER

Case Number: CR 90-H-266-E

10.

STANDARD CONDITIONS OF SUPERVISION

While the defendant is on supervised release pursuant to this Judgment:

The defendant shall not leave the judicial district without the permission

of the court or probation officer.

The defendant shall report to the probation officer as directed by the court

or probation officer and shall submit a truthful and complete written report

within the first five days of each month.

The defendant shall answer truthfully all inquiries by the probation officer

and follow the instructions of the probation officer.

The defendant shall support his or her dependents and meet other family

responsibilities.

The defendant shall work regularly at a lawful occupation unless excused

by the probation officer for schooling, training, or other acceptable reasons.

The defendant shall notify the probation officer within seventy-two hours

of any change in residence or employment.

The defendant shall refrain from excessive use of alcohol and shall not

purchase, possess, use, distribute or administer any narcotic or other

controlled substance, or any paraphernalia related to such substances.

The defendant shall not frequent places where controlled substances are

illegally sold, used, distributed, or administered.

The defendant shall not associate with any persons engaged in criminal

activity, and shall not associate with any person convicted of a felony

unless granted permission to do so by the probation officer.

The defendant shall permit a probation officer to visit him or her at any

time at home or eisewhere and shall permit confiscation of any contraband

observed in plain view by the probation officer.

The defendant shall notify the probation officer within seventy-two hours

of being arrested or questioned by a law enforcement officer.

The defendant shall not enter into any agreement to act as an informer or

a special agent of a law enforcement agency without the permission of the

court,

As directed by the probation officer, the defendant shall notify third parties

of risks that may be occasioned by the defendant's criminal record or

personal history or characteristics, and shall permit the probation officer

to make such notufications and to confirm the defendant's compliance with

such notification requirement.

A65

Judgment — Page 4 of 4

Defendant: DAVID RONALD CHANDLER a/k/a RONNIE CHANDLER

Case Number: CR 90-H-266-E

STATEMENT OF REASONS

The court adopts the factual findings and guideline

application in the presentence report.

Guideline Range Determined by the Court:

To Offense Level: 43

Criminal History Category:

Imprisonment Range: Life

Supervised Release Range: 5 years

Fine Range: $ 25,000.00 to $ 4,000,000,00

Restitution: $ 0

The court declines to impose a fine due to the defendant's

inability to pay.

The sentence imposed under Counts 1, 2, 4, and 5 is the

guideline sentence.

The sentence imposed under Counts 6, 7, 8 and 9 is within

the guideline range.

=

A66

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF ALABAMA

EASTERN DIVISION

UNITED STATES OF AMERICA )

VS. CRYO-H-266-E

DAVID RONALD CHANDLER, A/K/A_)

RONNIE CHANDLER

ORDER

Pursuant to the April 19, 1991 order the April 8, 199]

motions of David Ronald Chandler for a new trial and for a new

trial on the penalty phase under Count Three are now under

submission.

The motion for new trial raises numerous grounds in twenty-

six separately numbered paragraphs. Only the grounds embodied

in paragraphs 10, 11, 12 and 26 need be discussed. The remaining

grounds either raise matters which have earlier been argued to and

rejected by the court or raise matters which have no merit and the

reasons for rejecting them are self-evident.! Those four grounds

are bottomed upon Batson v. Kentucky, 476 U.S. 74 (1986) and

Powers v. Ohio, ___ U.S. ___ (No. 89-5011, April 1, 1991).

Batson teaches that a defendant's right to equal protection

proscribes purposeful racial discrimination in jury selection. And

Powers teaches that this right belongs to a defendant even though

the defendant and the excluded juror do not share the same race.

A trial court is not required to demand ex mero motu from the

government a nondiscriminatory explanation for the exercise of

each peremptory challenge. Rather a defendant is required to raise

the issue and establish a prima facie case of purposeful

discrimination before the prosecution is required to provide a

Paragraph 22 adopts all grounds embraced in the separate

mouon for new trial on the penalty phase under Count Three.

That motion will be treated separately in this order.

A67

racially neutral explanation for the allegedly discriminatory

challenge. In this case the defendant never raised a Batson issue

at any time prior to the filing of his motion for new trial and

certainly never established a prima facie case of purposeful

discrimination during the jury selection process. The holding in

Powers is not novel and is, at most, a logical extension of Batson

and Swain v. Alabama, 380 U.S. 202 (1965). The concept has

heen the subject of a number of decisions of federal appeals

courts, and the January 22, 1990 opinion in Holland v. Illinois,

493 U.S. 474 (1990), certainly suggests that the question which

Powers answered was a viable, unresolved question as viewed by

some of the justices on January 22, 1990. See United States v.

Rodriguez, 917 F.2d 1286, 1288 (f.n. 5) (Lith Cir. 1990). Any

error associated with the exercise of peremptory challenges in this

case does not rise to the level of “plain error” so as to be within

the purview of F.R.Cr.P. Rule 52(b). See United States v. Young,

470 U.S. 1 (1985). Defendant has thus waived any objection to

the government's exercise of peremptory challenges. United

States v. Romero-Reyna, 867 F.2d 834, 836-37 (Sth Cir. 1989) (to

he timely a Batson objection must be raised before venire is

dismissed and before the trial begins); United States v. Erwin, 793

F.2d 656, 667 (Sth Cir. 1986), cert. denied, 479 U.S. 991 (1986).

Also see United States v. Rodriguez, supra.

While the striking of any black person for racial reasons

violates the Equal Protection Clause even though other blacks are

seated as jurors, where, as here, a defendant has waived any

Batson challenge it is at least comforting to observe that the

twelve seated jurors who decided this case included two black

persons. Thus, 16.6% of the jury was black, which is slightly

greater than the black-white ratio of this court's pool of qualified

jurors from which subject jurors were called. That pool is 15.9%

black, 83.0% white and 1.1% other.’ Further the government

failed to utilize all its peremptory challenges. Certainly these facts

negate any arguable inference that the prosecutor used peremptory

challenges to exclude a venire member from the jury on account

2 See the certification of the jury clerk filed April 22, 1991.

A68

of his or her race. Without such an inference from the totality of

the circumstances surrounding the jury selection, there is no

prima facie case of purposeful discrimination. While the court is

not required at this time to consider the explanation of the

prosecutor contained in his April 29, 1991 affidavit setting forth

the reasons for each peremptory challenge of a black venire

member,* each reason given certainly reflects a racially neutral

explanation of each challenge. Where, as here, it is not shown and

cannot fairly be said that racial considerations infected the jury,

“it is incumbent upon (a reviewing court) to disregard errors

which cannot ultimately affect the outcome of the case.” United

States v. Bennett, 928 F.2d 1548, 1553 (f.n. 8) (11th Cir. 1991).

In Bennett the court held as harmless error the seating of a juror

where the trial court had incorrectly found legitimate the

government's articulated reason for exercising a peremptory

challenge of a black venire member.

Having considered the April 8, 1991 motion for 2 ®e* trial,

the motion is DENIED.

In the April 8, 1991 separate motion for a new trial on the

penalty phase under Count Three, defendant raises several

additional grounds, most of which have heretofore been argued

to the court either prior to trial (e.g., the March 4, 1991 order

addressing the motions to strike and to dismiss) or during the trial

and on the record (e.g. during charge conferences and while

hearing objections to the court’s charges). Defendant does

introduce a new, and rather novel ground. Defendant argues that

the mode of implementing a death penalty is an integral

component of the sentence itself, and since Congress authorized

the imposition of a death penalty without providing the guo modo,

there is a “statutory gap” in the legislation authorizing a sentence

of death. The court disagrees. Quite clearly, unless and until

Congress does provide the quo modo for implementation of the

sentence of death, it cannot be implemented. But future

legislation bridging the “statutory gap” cannot seriously be argued

3

Defendant is not questioning challenges of white members

of the venire based upon their race.

A69

as increasing the penalty and will not violate the constitutional

prohibition against ex post facto laws. Having also considered the

April 8, 1991 motion for a new trial on the penalty phase under

Count Three, the motion is DENIED

DONE this 30th day of May, 1991

UNITED STATES DISTRICT JUDGI

A70

TEXT OF 21 U.S.C. § 848

§ 848. Continuing criminal enterprise

(a) Penalties; forfeitures

Any person who engages in a continuing criminal enterprise

shall be sentenced to a term of imprisonment which may not be

less than 20 years and which may be up to life imprisonment, to

a fine not to exceed the greater of that authorized in accordance

with the provisions of Title 18, or $2,000,000 if the defendant is

an individual or $5,000,000 if the defendant is other than an

individual, and to the forfeiture prescribed in section 853 of this

chapter; except that if any person engages in such activity after

One or more prior convictions of him under this section have

become final, he shall be sentenced to a term of imprisonment

which may not be less than 30 years and which may be up to life

imprisonment. to a fine not to exceed the greater of twice the

amount authcrized in accordance with the provisions of Title 18,

or $4,000,000 if the defendant is an individual or $10,000,000 if

the defendant is other than an individual, and to the forfeiture

prescribed in section 853 of this chapter.

(b) Conditions for life imprisonment for engaging in

continuing criminal enterprise

Any person who engages in a continuing criminal enterprise

shall be imprisoned for life and fined in accordance with

subsection (a) of this section if-

(1) such person is the principal administrator, organizer,

or leader of the enterprise or is one of several such principal

administrators, organizers, or leaders; and

(2)(A) the violation referred to in subsection (d)(1) of this

section involved at least 300 times the quantity of a substance

described in subsection 841(b)(1)(B) of this title, or

(B) the enterprise, or any other enterprise in which the

defendant was the principal or one of several principal

administrators, organizers, or leaders, received $10 million

doliars in gross receipts during any twelve-month period of

A7l

its existence for the manufacture, importation, or distribution

of a substance described in section 841(b)(1)(B) of this title.

(c) Continuing criminal enterprise defined

For purposes of subsection (a) of this section, a person is

engaged in a continuing criminal enterprise if-

(1) he violates any provision of this subchapter or

subchapter II of this chapter the punishment for which is a

felony, and

(2) such violation is a part of a continuing series of

violations of this subchapter or subchapter II of this chapter-

(A) which are undertaken by such person in concert

with five or more other persons with respect to whom such

person occupies a position of organizer, a supervisory

position, or any other position of management, and

(B) from which such person obtains substantial

income or resources.

(d) Suspension of sentence and probation prohibited

In the case of any sentence imposed under this section,

imposition or execution of such sentence shall not be suspended,

probation shall not be granted, and the Act of July 15, 1932

(D.C.Code, secs. 24-203 to 24-207), shall not apply.

(e) Death penalty

(1) In addition to the other penalties set forth in this section-

(A) any person engaging in or working in furtherance

of a continuing criminal enterprise, or any person engaging

in an offense punishable under section 841(b)(1)(A) or

section 960(b)(1) who intentionally kills or counsels,

commands, induces, procures, or causes the intentional killing

of an individual and such killing results, shall be sentenced

to any term of imprisonment, which shall not be less than 20

years, and which may be up to life imprisonment, or may be

sentenced to death; and

A72

(B) any person, during the commission of, in

furtherance of, or while attempting to avoid apprehension,

prosection or service of a prison sentence for, a felony

violation of this subchapter or subchapter II of this chapter

who intentionally kills or counsels, commands, induces,

procures, or causes the intentional killing of any Federal,

State, or local law enforcement officer engaged in, or on

account of, the performance of such officer's official duties

and such killing results, shall be sentenced to any term of

imprisonment, which shall not be less than 20 years, and

which may be up to life imprisonment, or may be sentenced

to death.

(2) As used in paragraph (1)(b), the term “law enforcement

Officer” means a public servant authorized by law or by a

Government agency or Congress to conduct or engage in the

prevention, investigation, prosecution or adjudication of an

offense and includes those engaged in corrections, probation, or

parole functions.

(g)' Hearing required with respect to the death penalty

A person shall be subjected to the penalty of death for any

offense under this section only if a hearing is held in accordance

with this section.

(h) Notice by the Government in death penalty cases

(1) Whenever the Government intends to seek the death

penalty for an offense under this section for which one of the

sentences provided is death, the attorney for the Government, a

reasonable time before trial or acceptance by the court of a plea

of guilty, shall sign and file with the court, and serve upon the

defendant, a notice-

(A) that the Government in the event of conviction will

seek the sentence of death; and

(B) setting forth the aggravating factors enumerated in

subsection (n) of this section and any other aggravating

factors which the Government will seek to prove as the basis

for the death penalty.

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(2) The court may permit the attorney for the Government to

amend this notice for good cause shown,

(i) Hearing before court or jury

(1) When the attorney for the Government has filed a notice

as required under subsection (h) of this section and the defendant

is found guilty of or pleads guilty to an offense under

subsection (¢) of this section, the judge who presided at the trial

or before whom the guilty plea was entered, or any other judge

if the judge who presided at the trial or before whom the guilty

plea was entered is unavailable, shall conduct a separate

sentencing hearing to determine the punishment to be imposed.

The hearing shall be conducted-

(A) before the jury which determined the defendant's

guilt;

(B) before a jury impaneled for the purpose of the hearing

(i) the defendant was convicted upon a plea of guilty;

(ii) the defendant was convicted after a trial before

the court sitting without a jury;

(iii) the jury which determined the defendant's guilt

has been discharged for good cause; or

(iv) after initial imposition of a sentence under this

section, redetermination of the sentence under this section

is Necessary; OF

(C) before the court alone, upon the motion of the

defendant and with the approval of the Government.

(2) A jury impaneled under paragraph (1)(B) shall consist of

12 members, unless, at any time before the conclusion of the

hearing, the parties stipulate with the approval of the court that

it shall consist of any number less than 12.

(j) Proof -f aggravating and mitigating factors

Notwithstanding rule 32(c) of the Federal Rules of Criminal

Procedure, when a defendant is found guilty of or pleads guilty

A74

to an offense under subsection (c) of this section, no presentence

report shall be prepared. In the sentencing hearing, information

may be presented as to matters relating to any of the aggravating

or mitigating factors set forth in subsections (m) and (n) of this

section, or any other mitigating factor or any other aggravating

factor for which notice has been provided under

subsection (h)(1)(B) of this section. Where information is

presented relating to any of the aggravating factors set forth in

subsection (n) of this section, information may be presented

relating to any other aggravating factor for which notice has been

provided under subsection (h)(1)(B) of this section. Information

presented may include the trial transcript and exhibits if the

hearing is held before a jury or judge not present during the trial,

or at the trial judge's discretion. Any other information relevant

to such mitigating or aggravating factors may be presented by

either the Government or the defendant, regardless of its

admissibility under the rules governing admission of evidence at

criminal trials, except that information may be excluded if its

probative value is substantially outweighed by the danger of

unfair prejudice, confusion of the issues, or misleading the jury.

The Government and the defendant shall be permitted to rebut

any information received at the hearing and shall be given fair

opportunity to present argument as to the adequacy of the

information to establish the existence of any of the aggravating

Or mitigating factors and as to appropriateness in that case of

imposing a sentence of death. The Government shall open the

argument. The Defendant shall be permitted to reply. The

Government shall then be permitted to reply in rebuttal. The

burden of establishing the existence of any aggravating factor is

on the Government, and is not satisfied unless established beyond

a reasonable doubt. The burden of establishing the existence of

any mitigating factor is on the defendant, and is not satistied

unless established by a preponderance of the evidence.

(k) Return of findings

The jury, or if there is no jury, the court, shall consider all the

information received during the hearing. It shall return special

findings identifying any aggravating factors set forth in

subsection (n) of this section, found to exist. If one of the

A75

aggravating factors set forth in subsection (n)(1) of this section

and another of the aggravating factors set forth in paragraphs (2)

through (12) of subsection (n) of this section is found to exist, a

special finding identifying any other aggravating factor for which

notice has been provided under subsection (h)(1)(B) of this

section, may be returned. A finding with respect to a mitigating

factor may be made by one or more of the members of the jury,

and any member of the jury who finds the existence of a

mitigating factor may consider such a factor established for

purposes of this subsection, regardless of the number of jurors

who concur that the factor has been established. A finding with

respect to any aggravating factor must be unanimous. If an

gravating factor set forth in subsection (n)(1) of this section 1s

found to exist or an aggravating factor set forth in

subsection (n)(1) of this section is found to exist but no other

aggravating factor set forth in subsection (n) of this section is

found to exist, the court shall impose a sentence, other than death,

authorized by law. If an aggravating factor set forth in

subsection (n)(1) of this section and one or more of the other

aggravating factors set forth in section (n) of this section are

found to exist, the jury, or it there is no jury, the court, shall then

consider whether the aggravating factors found to exist

sufficiently outweigh any mitigating factor or factors found to

exist, or in the absence of mitigating factors, whether the

aggravating factors are themselves sufficient to justify a sentence

of death. Based upon this consideration, the jury by unanimous

vote, or if there is no jury, the court, shall recommend that a

sentence of death shall be imposed rather than a sentence of life

imprisonment without possibility of release or some other lesser

sentence. The jury or the court, regardless of its findings with

respect to aggravating and mitigating factors, is never required

to impose a death sentence and the jury shall be so instructed.

ag

L

no

(1) Imposition of sentence

Upon the recommendation that the sentence of death be

imposed, the court shall sentence the defendant to death.

Otherwise the court shall impose a sentence, other than death,

authorized by law. A sentence of death shall not be carried out

upon a person who is under 18 years of age at the time the crime

A76

was committed. A sentence of death shall not be carried out upon

a person who is mentally retarded. A sentence of death shall not

be carried out upon a person who, as a result of mental disability-

(1) cannot understand the nature of the pending

proceedings, what such person was tried for, the reason for

the punishment, or the nature of the punishment; or

(2) lacks the capacity to recognize or understand facts

which would make the punishment unjust or unlawful, or

lacks the ability to convey such information to counsel or to

the court.

(m) Mitigating factors

In determining whether a sentence of death is to be imposed

on a defendant, the finder of fact shall consider mitigating factors,

including the following:

(1) The defendant’s capacity to appreciate the

wrongfulness of the defendant's conduct or to conform

conduct to the requirements of law was. significantly

impaired, regardless of whether the capacity was so impaired

as to constitute a defense to the charge.

(2) The defendant was under unusual and substantial

duress, regardless of whether the duress was of such a degree

as to constitute a defense to the charge.

(3) The defendant is punishable as a principal (as defined

in section 2 of Title 18) in the offense, which was committed

by another, but the defendant's participation was relatively

minor, regardless of whether the participation was so minor

as to constitute a defense to the charge.

(4) The defendant could not reasonably have foreseen that

the defendant's conduct in the course of the commission of

murder, or other offense resulting in death for which the

defendant was convicted, would cause, or would create a

grave risk of causing, death to any person.

(5) The defendant was youthful, although not under the

age of 18.

A77

(6) The defendant did not have a significant prior criminal

record.

(7) The defendant committed the offense under severe

mental or emotional disturbance.

(8) Another defendant or defendants, equally culpable in

the crime, will not be punished by death.

(9) The victim consented to the criminal conduct that

resulted in the victim’s death.

(10) That other factors in the defendant's background or

character mitigate against imposition of the death sentence.

(n) Aggravating factors for homicide

If the defendant is found guilty of or pleads guilty to an

offense under subsection (e) of this section, the following

aggravating factors are the only aggravating factors that shall be

considered, unless notice of additional aggravating factors is

provided under subsection (h)(1)(B) of this section:

(1) The defendant-

(A) intentionally killed the victim;

(B) intentionally inflicted serious bodily injury which

resulted in the death of the victim,

(C) intentionally engaged in conduct intending that

the victim be killed or that lethal force be employed

against the victim, which resulted in the death of the

victim;

(D) intentionally engaged in conduct which-

(i) the defendant knew would create a grave risk

of death to a person, other than one of the participants

in the offense; and

(ii) resulted in the death of the victim.

(2) The defendant Tas been convicted of another Federal

offense, or a State offense resulting in the death of a person, for

A78

which a sentence of life imprisonment or a sentence of death was

authorized by statute.

(3) The defendant has previously been convicted of two or

more State or Federal offenses punishable by a term of

imprisonment of more than one year, committed on different

occasions, involving the infliction of, or attempted infliction of,

serious bodily injury upon another person.

(4) The defendant has previously been convicted of two or

more State or Federal offenses punishable by a term of

imprisonment of more than one year, committed on different

occasions, involving the distribution of a controlled substance.

(5) In the commission of the offense or in escaping

apprehension for a violation of subsection (e) of this section, the

defendant knowingly created a grave risk of death to one or more

persons in addition to the victims of the offense.

(6) The defendant procured the commission of the offense by

payment, or promise of payment, of anything of pecuniary value.

(7) The defendant committed the offense as consideration tor

the receipt, or in the expectation of the receipt, of anything of

pecuniary value.

($8) The defendant committed the offense after substantial

planning and premeditation.

(9) The victim was particularly vulnerable due to old age,

youth, or infirmity.

(10) The defendant had previously been convicted of violating

this subchapter or subchapter II of this chapter for which a

sentence of five or more years may be imposed or had previously

been convicted of engaging in a continuing criminal enterprise.

(11) The violation of this title in relation to which the conduct

described in subsection (e) of this section occurred was a

violation of section 845 of this title.

(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.

A79

(o) Right of the defendant to justice without discrimination

(1) In any hearing held before 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 belicts,

national origin, or sex of the defendant, or the victim, may be.

(2) Not later than one year from November 18, 1988, the

Comptroller General shall conduct a study of the various

procedures used by the several States for determining whether or

not to impose the death penalty in particular cases, and shall

report to the Congress on whether or not any or all of the various

procedures create a significant risk that the race of a defendant,

or the race of a victim against whom a crime was committed,

influence the likelihood that defendants in those States will be

sentenced to death. In conducting the study required by this

paragraph, the General Accounting Office shall-

(A) use ordinary methods of statistical analysis, including

methods comparable to those rule admissible by the courts in

race discrimination cases under title VII of the Civil Rights

Act of 1964 [42 U.S.C.A. § 2000e et seq. ];

(B) study only crimes occurring after January 1, 1976;

and

(C) determine what, if any, other factors, including any

relation between any aggravating or mitigating factors and the

race of the victim or the defendant, may account for any

A&O

evidence that the race of the defendant, or the race of the

victim, influences the likelihood that defendants will be

sentenced to death. In addition, the General Accounting

Office shall examine separately and include in the report,

death penalty cases involving crimes similar to those covered

under this section.

(p) Sentencing in capital cases in which death penalty is not

sought or imposed

If a person is convicted for an offense under subsection (c)

of this section and the court does not impose the penalty of death,

the court may impose a sentence of life imprisonment without the

possibility of parole.

(q) Appeal in capital cases; counsel for financially unable

defendants

(1) In any case in which the sentence of death is imposed

under this section, the sentence of death shall be subject to review

by the court of appeals upon appeal by the defendant. Notice of

appeal must be filed within the time prescribed for appeal of

judgment in section 2107 of Title 28. An appeal under this section

may be consolidated with an appeal of the judgment of

conviction. Such review shall have priority over all other cases.

(2) On review of the sentence, the court of appeals shall

consider the record, the evidence submitted during the trial, the

information submitted during the sentencing hearing, the

procedures employed in the sentencing hearing, and the special

findings returned under this section.

(3) The court shall affirm the sentence if it determines that-

(A) the sentence of death was not imposed under the

influence of passion, prejudice, or any other arbitrary factor;

and

(B) the information supports the special finding of the

existence of every aggravating factor upon which the sentence

was based, together with, or the failure to find, any mitigating

factors as set forth or allowed in this section.

AS]

In all other cases the court shall remand the case for

reconsideration under this section. The court of appeals shall state

in writing the reasons for its disposition of the review of the

sentence.

(4)(A) Notwithstanding any other provision of law to the

contrary, in every criminal action in which a defendant is charged

with a crime which may be punishable by death, a defendant who

is or become financially unable to obtain adequate representation

or investigative, expert, or other reasonably necessary services al

any time either-

(i) before judgment, or

(ii) after the entry of a judgment imposing a sentence ol

death but before the execution of that judgment;

shall be entitled to the appointment of one or more attorneys and

the furnishing of such other services in accordance with

paragraphs (5), (6), (7), (8), and (9).

(B) In any post conviction proceeding under section 2254 or

2255 of Title 28, seeking to vacate or set aside a death sentence,

any defendant who is or becomes financially unable to obtain

adequate representation or investigative, expert, or other

reasonably necessary services shall be entitled to the appointment

of one or more attorneys and the furnishing of such other services

in accordance with paragraphs (5), (6), (7), (8), and (9).

(5) If the appointment is made before judgment, at least one

attorney so appointed must have been admitted to practice in the

court in which the prosecution is to be tried for not less than five

years, and must have had not less than three years experience in

the actual trial of felony prosecutions in that court.

(6) If the appointment is made after judgment, at least one

attorney so appointed must have been admitted to practice in the

court of appeals for not less than five years, and must have had

not less than three years experience in the handling of appeals in

that court in felony cases.

(7) With respect to paragraphs (5) and (6), the court, for good

cause, may appoint another attorney whose background,

A&2

knowledge, or experience would otherwise enable him or her to

properly represent the defendant, with due consideration to the

seriousness of the possible penalty and to the unique and complex

nature of the litigation.

(8) Unless replaced by similarly qualified counsel upon the

attorney's Own motion or upon motion of the defendant, each

attorney so appointed shall represent the defendant throughout

every subsequent stage of available judicial proceedings,

including pretrial proceedings, trial, sentencing, motions for new

trial, appeals, applications,” for writ of certiorari to the Supreme

Court of the United States, and all available post-conviction

process, together with applications for stays of execution and

other appropriate mouons and procedures, and shall also represent

the defendant in such competency proceedings and proceedings

for executive or other clemency as may be available to the

defendant.

(9) Upon a finding in ex parte proceedings that investigative,

expert or other services are reasonably necessary for the

representation of the defendant, whether in connection with issues

relating to guilt or sentence, the court shall authorize the

defendant's attorneys to obtain such services on behalf of the

defendant and shall order the payment of fees and expenses

therefore, under paragraph (10). Upon a finding that timely

procurement of such services could not practicably await prior

authorization, the court may authorize the provision of and

payment for such services nunc pro tunc.

(10) Notwithstanding the rates and maximum limits generally

applicable to criminal cases and any other provision of law to the

contrary, the court shall fix the compensation to be paid to

attorneys appointed under this subsection and the fees and

expenses to be paid for investigative, expert, and other reasonably

necessary services authorized under paragraph (9), at such rates

Or amounts as the court determines to be reasonably necessary to

carry out the requirements of paragraphs (4) through (9).

A83

(r) Refusal to participate by State and Federal correctional

employees

No employee of any State department of corrections or the

Federal Bureau of Prisons and no employee providing services

to that department or bureau under contract shall be required, as

a condition of that employment, or contractual obligation to be

in attendance at or to participate in any execution carried out

under this section if such participation is contrary to the moral or

religious convictions of the employee. For purposes of this

subsection, the term “participation in executions” includes

personal preparation of the condemned individual and the

apparatus used for execution and supervision of the activities of

other personnel in carrying out such activilies.

(Pub. L. 91-513, Title Il, § 408, Oct. 27, 1970, 84 Stat. 1265;

Pub. L. 98-473, Title II, §§ 224(b), 305, Oct. 12, 1984, 98 Stat.

2030, 2050; Pub. L. 98-473, § 224(b), formerly § 224(c), as

amended Pub. L. 99-570, Title I, § 1005(b)(2), Oct. 27, 1987, 100

Stat. 3207-6; Pub. L. 99-570, Title I, §§ 1252, 1253, Oct. 27,

1986, 100 Stat. 3207-14, 3207-15; Pub. L. 100-690, Titles VI,

VII, §§ 6481, 7001, Nov. 18, 1988, 102 Stat. 4382, 4387, 4388.)

' So in original.

., ~ . . .

“ So in original. The comma probably should not appear here.

A&4

FEDERAL DEATH PENALTY PROSECUTIONS, 1988-93

David Bruck

Federal Death Penalty Resource Counsel Project

(803) 765-1044

December 8, 1993

Following enactment of the first modern federal death penalty

statute on November 18, 1988, 21 U.S.C. § 848(e)-(q) (the so-

called “drug kingpin” murder provision), the Bush and Clinton

Administrations have approved death penalty prosecutions under

§ 848 against 30 defendants. Of these, four defendants were

white, four were Hispanic, and twenty-two were black. All nine

of the prosecutions approved or announced as capital cases since

Attorney General Reno took office involve African-American

defendants.

Federal capital cases tried to date

Thus far, the Government has brought to trial a total of eight

capital prosecutions, involving fourteen defendants, throughout

the nation. Another seven cases (and a total of eleven defendants)

are currently awaiting trial, and the death penalty has been

dropped prior to trial against five defendants.

The federal death penalty cases brought to trial during

1989-1993 by the Bush and Clinton Administrations are listed

below:

* A white Alabama marijuana grower named Ronald

Chandler, was sentenced to death for the murder for hire

of a subordinate in his drug ring. Chandler’s convictions

and death sentence were affirmed by a panel of the

Eleventh Circuit July 19, 1993: a petition for rehearing

to the full court of appeals is pending. Claiming

innocence, Chandler refused a pretrial plea bargain offer

for life without possibility of parole. United States v.

David Ronald Chandler, Nos. 91-7466 & 7577 (11th Cir.

July 19, 1993).

A85

Three of four young black inner-city gang members in

Richmond, Virginia, were sentenced to death on

February 16, 1993, for their roles in eleven crack-related

murders. United States v. Tipton et al., 3-92-CR68 (E.D.

Va.). The trial of a fourth defendant, Vernon Thomas,

was severed. On April 23, 1993, moments before a

scheduled hearing on Mr. Thomas’s motion to bar the

death penalty due to his mental retardation, the

government withdrew its request for the death penalty.

Mr. Thomas was ultimately convicted and sentenced to

life imprisonment.

A Hispanic drug distributor was sentenced to death by a

jury on August 2, 1993 in Brownsville, Texas, in

connection with the murders of three other drug

traffickers in the Brownsville area. United States v. Juan

Raul Garza, No. CR 93-0009 (S.D. Tex.). Attorney

General Barr authorized the prosecution to seek the death

penalty in December, 1992.

Two Hispanic defendants in Texas were sentenced to life

imprisonment and forty years, respectively, for the

marijuana-related murder of a state police officer after a

joint trial. The sentencing jury found no facts legally

warranting the death penalty. United States v. Reynaldo

& Baldemar Villarreal No. 9:91CR4 (E.D. Tex. 1991),

aff'd, 963 F. 2d 725 (Sth Cir.), cert. denied, 113 S. Ct.

353 (1992).

Two black Chicago gang members received life sentences

for cocaine-related murders after separate trials. The

Government had offered one defendant, but not the other,

a plea bargain prior to trial. United States v. Alexander

Cooper & Anthony Davis, No. 89-CR-O580 (N.D. Il.

1991).

A white Mafia contract killer received a life sentence

from a Brooklyn, New York jury after being convicted of

eight murders, three of which qualified as capital crimes

under 21 U.S.C. § 848. United States v. Pitera, 795

F. Supp. 546 (E.D.N.Y. 1992).

A&6

* A young black New Jersey gang member committed

suicide during his federal capital trial. United States v.

Bilal Pretlow, No. 90-CR-238 (D.N.J.).

* Two white and one Hispanic defendants were tried jointly

in connection with the drug-related kidnap/murder of a

Muskogee, Oklahoma auto dealership employee. United

States v. Hutching et al., No. CR-032-S (E.D. Okl.). The

two capitally-charged “managers” of the drug enterprise

received life sentences from the jury, while the lowest-

level defendant, John McCullah (who, unlike the bosses,

had been present at the killing) was sentenced to death on

March 23, 1993,

The 1992 upsurge in federal death cases

Between the beginning of 1992 and January 20, 1993, seven

new prosecutions involving fourteen capital defendants were

authorized by Attorney General Barr. This amounts, in one

(Presidential campaign) year, to a six-fold increase over the

1989-1991 rate of federal capital authorizations under § 848.

Federal capital prosecutions still awaiting trial

In addition to the tour-defendant Virginia case, the three-

defendant Oklahoma case, and the single-defendant Texas case

mentioned above, the capital prosecutions initiated since early

1992 involve indictments charging:

* two black New Orleans inner-city gang members, in

connection with an allegedly drug-related murder. United

States v. Green & Brown, E.D. La. No. 92-46. On

November 24, 1992, the Government dropped its request

for the death penalty in this case.

* one black Tampa, Florida drug distributor, for having

allegedly ordered a murder in retaliation for the theft of

drugs. United States v. Mathis, (M.D. Fla. No. 91-301-

CR-T-17(A)). Trial is set in this case for February, 1994.

* one black Atlanta drug distributor in connection with

three murders. United States v. Williams, No. 1:92-CR-

142 (N.D. Ga.). No trial date is set as yet.

A&7

* two black crack cocaine dealers in Macon Georgia, in

connection with the murders of two other crack dealers.

United States v. Tony Chatfield and Arleigh Carrington,

(M.D. Ga. No. 92-82MAC-WDO). Attorney General Barr

authorized this death prosecution in his last week in

office. On December 6, 1993, the government dropped its

request for the death penalty against these two

defendants.

The Federal Death Penalty Resource Counsel Project is aware

of four cases, involving nine defendants, in which the death

penalty is reported to have been authorized by Attorney General

Reno, of announced since she took office. All nine defendants

are African-American, and three of the four cases have been

e ‘ ‘ . ; ’ . : ‘ .

~~ ath brought in jurisdictions (New York, Michigan, and the District

a of Columbia) which do not have capital punishment statutes. The

cS Cases are:

© United States v. Darrvl Johnson, (W.D.N.Y. Cr. No.

92-159-C-S), involving two alleged cocaine-related

killings by a Buffalo, New York group.

¢ United States v. Wayne Anthony Perry (D.C.D.C.

No. 92-CR-474), an alleged hitman for a D.C. cocaine

distribution ring; eight homicide counts.

* United States v. Reginald Brown et al., (E.D. Mich. Cr.

No. 92-81127). This case reportedly involves six death

authorizations against members of a cocaine distribution

organization alleged to be responsible for a total of

twelve murders over a 4-year period. The initial

authorization occurred during the Bush Administration,

but the authorizations were not announced until June,

1993. Only three of the six defendants against whom the

death penalty has been authorized are currently in

custody. One defendant, Terrence Brown, has been found

dead, apparently a homicide victim.

¢ United States v. Michael Murray, (M.D. Pa. Cr.

No. 1:CR-92-200), involves the killing of a Harrisburg

drug dealer by a gang headed by one Jonathan Bradley.

ASS

DOJ reportedly declined to approve the U.S. Attorney's

request to authorize the death penalty against Bradley,

who allegedly ordered the killing, and against another

participant in the shooting, Emmanuel S. Harrison

A&9

June 10, 1988 CONGRESSIONAL RECORD— S 2455

SENATE

“Return of Findings

“(k) The jury, or if there is no jury, the court, shall consider

all the information received during the hearing. It shall return

special findings identifying any aggravating factors set forth in

subsection (n), found to exist. If one of the aggravating factors

set forth in subsection (n)(1) and another of the aggravating

factors set forth in paragraphs (2) through (12) of subsection (n)

is found to exist, a special finding identifying any other

aggravating factor may be rurned [sic]. A fiing [sic] with respect

to a mitigating factor may be made by one or more members of

the jury, and any member of the jury who finds the existence of

4 mitigating factor may consider such a factor established for

purposes of this subsection, regardless of the number Of jurors

who concur that the factor has been established. A finding with

respect to any aggravating factor must be unanimous. If an

aggravating factor set forth in subsection (n)(1) is not found to

exist or an aggravating factor set forth in subsection (n)(1) is

found to exist but no other aggravating factor set forth in

subsection (n) is found to exist, the court shall impose a sentence,

other than death, authorized by law. If an aggravating factor set

forth in subsection (n)(1) and one or more of the other

aggravating factors set forth in subsection (n) are found to exist,

the jury, or if there is no jury, the court, shall then consider

whether the aggravating factor or factors found to exist

sufficiently outweigh any mitigating factor or factors found to

exist, or in the absence of mitigating factors, whether the

aggravating factors are themselves sufficient to justify a sentence

of death. Based upon this consideration, the jury by unanimous

vote, or if there is no jury, the court, shall return a finding as to

whether a sentence of death is justified.”