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U.S. v. PRETLOW

August 13, 1991

UNITED STATES OF AMERICA
v.
BILAL PRETLOW.



The opinion of the court was delivered by: Harold A. Ackerman, District Judge.

OPINION

Among other counts, Bilal Pretlow ("Pretlow") is charged with engaging in a continuing criminal enterprise during which he is alleged to have intentionally killed or otherwise intentionally caused the killing of two people in violation of 21 U.S.C. § 848(e)(1)(A) (1988). The government has notified Pretlow that it intends to seek the death penalty for these offenses. Today's pre-trial motions focus on two issues related to the possible penalty phase of this case. More specifically, the government has moved to amend its notices of aggravating factors. Such notices set forth the factors which the government will seek to prove as its basis for the imposition of the death penalty. It has also moved for an order directing the New Jersey Superior Court to release Pretlow's juvenile records. Not surprisingly, Pretlow opposes both motions. Having reviewed both parties' briefs as well as listened to their oral arguments, this court now finds that: 1) the government must demonstrate good cause in order to amend the notices of aggravating factors; 2) the government has shown such good cause; 3) only those sections of Pretlow's juvenile record which fall within the scope of 21 U.S.C. § 848(n)(4) (1988) are currently relevant to these proceedings; and 4) under principles of comity and federalism, this court should not order the release of that limited portion of Pretlow's record.

I.  Amending the Notices of Aggravating Factors
A.  Background

On January 18, 1991, the government filed with the court and served Pretlow with two notices of aggravating factors. The first set forth those aggravating factors the government would seek to prove in the event Pretlow was convicted of Count Four of the Indictment which involved the murder of Melanie Baker. The second detailed those factors the government would again seek to prove in the event Pretlow was convicted of Count Five which involved the murder of Mutah Sessoms. Both notices alleged that Pretlow intentionally killed these victims, see 21 U.S.C. § 848(n)(1), that these murders were committed after substantial planning and premeditation, see id. § 848(n)(8), and that Pretlow headed a continuing criminal enterprise involving the distribution of cocaine to people under age 21. See id. § 848(n)(11). In addition, the notice regarding the Baker murder alleged that she was particularly vulnerable due to her youth, see id. § 848(n)(9) while the notice regarding the Sessoms murder alleged that the murder was committed in a especially heinous, cruel, and depraved manner, see id. § 848(n)(12), and was designed to prevent Sessoms from cooperating as a government witness. See id. § 848(h)(1)(B) (permitting the government to rely on non-statutory aggravating factors).

In early June, 1991, the government sent Pretlow two superseding notices of aggravating factors. In addition to those factors I have already recounted, these new notices alleged two more. First, they charged that Pretlow "intentionally engaged in conduct intending that [Baker and Sessoms would] be killed or that lethal force would be employed against [them]" such that they were killed. See id. § 848(n)(1)(C). Second, they alleged that Pretlow previously had been convicted of two or more State or Federal offenses punishable by a term of imprisonment of more than one year, which were committed on different occasions and involved the distribution of controlled substance. See id. § 848(n)(4). The notice regarding the Sessoms murder also added the word "torture" and substituted the word "or" for "and" in the aggravating factor set forth in accordance with section 848(n)(12).

Pretlow responded by notifying the government that he considered the superseding notices to be a legal nullity. The original notices, he claimed, could only be amended by permission of this court upon a showing of good cause. Without conceding that such permission was required, the government moved to formally amend the original notices of aggravating factors as I have outlined above. As part of it motion, the government submitted an affidavit by Assistant United States Attorney Kevin McCarthy which set forth the underlying reasons for the proposed amendments.

His affidavit, however, did not address the government's reasons for the delay in making these changes.

B.  Discussion

In cases like this one where the government intends to seek the death penalty for an offense encompassed within 21 U.S.C. § 848(e), section 848(h) requires that:

  (1) . . . [T]he attorney for the government, [at]
  a reasonable time before trial . . . shall sign
  and file with the court, and serve upon the
  defendant a notice —
  (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 a basis for the
  death penalty.

It further provides that: "The court may permit the attorney for the Government to amend this notice for good cause shown." See id. § 848(h)(2).

Although the government contends that as long as a superseding notice of aggravating factors is filed within a reasonable time before trial, permission of the court is not required, I find this argument to be directly contrary to the clear meaning of the statute. By requiring the government to provide the court and defendant with a notice of aggravating factors within a reasonable time before trial, I find section 848(h)(1) to mean that the government must serve and file its original or first notice of aggravating factors ...


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