MALCOLM DONLEY, PETITIONER V. UNITED STATES OF AMERICA No. 89-6108 In The Supreme Court Of The United States October Term, 1989 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Third Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals, Pet. App. 1-8, is reported at 878 F.2d 735. JURISDICTION The judgment of the court of appeals was entered on June 30, 1989. The petition for rehearing was denied on September 28, 1989. The petition for a writ of certiorari was filed on November 13, 1989. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the district court improperly admitted hearsay testimony at trial. 2. Whether the district court was required to sentence petitioner to life imprisonment for first-degree murder. STATEMENT Following a jury trial in the United States District Court for the District of New Jersey, petitioner was convicted of first-degree murder, in violation of 18 U.S.C. 1111. He was sentenced to life imprisonment. The court of appeals affirmed. 1. The evidence at trial showed that petitioner lived with his wife, Linda K. Donley, and their daughter in family housing at McGuire Air Force Base, where Linda Donley was stationed. The Donleys had been having domestic difficulties for some months, and the McGuire Housing Office was considering terminating Linda Donley's entitlement to base housing because of domestic disturbances at her residence. Wanting to separate from petitioner, Linda Donley devised a plan to convince him that they were being evicted and that she was going to move in with her parents. She hoped that petitioner would move out of their home first, after which time she would stay on in the base housing. Linda Donley told her mother, Mrs. Brown, about her plan. After Linda Donley began to pack, her mother heard her mention to petitioner the impending move and the separation. The next night, petitioner killed Linda Donley by repeatedly striking her in the head with a hatchet and a meat cleaver. He also cut her neck with a knife. Petitioner did not deny killing his wife, but claimed that he had done so in the heat of passion shortly after finding her in their bedroom with another man. Pet. App. 3. 2. On appeal, petitioner contended that the district court improperly admitted hearsay when it allowed the government to introduce certain testimony of Mrs. Brown. Mrs. Brown testified about her daughter's statement to her with respect to her daughter's plan to convince petitioner that they were being evicted and that he should move out. The court of appeals concluded that the testimony was admissible under Fed. R. Evid. 803(3), which creates an exception to the hearsay rule for statements introduced to show the declarant's then existing state of mind, such as his intent, plan or design. Pet. App. 4. The court reasoned that the purpose of the testimony was "to show the existence of the deceased's plan to move out of the base apartment and separate from her husband." Pet. App. 5. After concluding that the evidence of the deceased's plan was relevant for purposes of rebutting petitioner's claim that he killed his wife because he found her in their bedroom with another man, the court went on to determine that the district court had not abused its discretion in ruling, under Fed. R. Evid. 403, that the probative value of the evidence was not outweighed by the danger of unfair prejudice. Pet. App. 5-6. Petitioner also argued on appeal that the district court, in sentencing him to life imprisonment, incorrectly determined that it could not impose a lesser sentence under the charging statute, 18 U.S.C. 1111. Pet. App. 6, 8. Section 1111 provides that a defendant convicted of first-degree murder shall be sentenced to death unless the jury qualifies its verdict by adding "without capital punishment," in which event the defendant "shall be sentenced to imprisonment for life." Petitioner insisted that Section 1111 was superseded by 18 U.S.C. 3581, which sets the authorized term of imprisonment for Class A felonies such as petitioner's at life or "any period of time," and by Application Note 1 of Section 2A1.1 of the Sentencing Guidelines, which states that life imprisonment may be too severe for certain types of cases involving first-degree murder. The court of appeals held those provisions inapplicable to the plain language of 18 U.S.C. 1111. Pet. App. 7-8. ARGUMENT 1. In this Court, petitioner contends that the district court admitted two inadmissible hearsay statements, Pet. 6-12: first, his wife's out-of-court statements to him about the impending move and separation, Pet. App. 19-20; and second, his wife's out-of-court statement to her mother that she "had been told by her base * * * supervisors that once (petitioner) was off the premises that would rescind the eviction notice and allow her to remain in the house with the baby," Pet. App. 12. The court of appeals did not address either of those claims, and petitioner does not renew the specific hearsay claim that the court of appeals did address -- that his wife's out-of-court statements to her mother about her plan to force petitioner off the base were improperly admitted under Fed. R. Evid. 803(3) and 403. Linda Donley's statements to petitioner about the impending move and separation were not hearsay at all, and the district court explicitly admitted them on that basis. 9/16/88 Tr. 32. They were offered not for their truth, but to show that they were said to petitioner and that he therefore had knowledge that his wife was going through with the move and separation. This evidence was highly relevant to rebut petitioner's claim that he killed his wife because he had found her in their bedroom with another man. As the court of appeals observed, the motive for the murder was contested and, if petitioner's version had gone unchallenged, "the jury (might not) have returned the same verdict of first degree murder." Pet. App. 5 & n.5. Petitioner did not object in the district court to the admission of Linda Donley's statement to her mother about what her base supervisors had told her. See Pet. App. 12. Nor did petitioner raise the issue on appeal. Accordingly, he has failed to preserve his claim. In addition, because other nonhearsay evidence clearly established that Linda Donley could have remained on the base if petitioner had moved out, see 9/16/88 Tr. 130-131, any error in admitting the statement was harmless beyond a reasonable doubt. /1/ 2. Under 18 U.S.C. 1111, the federal murder statute, a defendant convicted of first-degree murder "shall suffer death unless the jury qualifies its verdict by adding thereto 'without capital punishment,' in which event he shall be sentenced to imprisonment for life." Despite the statutory prescription of a mandatory minimum life sentence for first-degree murder, petitioner contends that the district court incorrectly determined that it lacked discretion to sentence him to less than a life term of imprisonment. Pet. 13-18. In making this claim, petitioner relies on 18 U.S.C. 3581(b)(1) and on Application Note 1 of Section 2A1.1 of the Sentencing Guidelines. As the court of appeals correctly concluded, however, Pet. App. 6-7, Section 3581 does not create a new indeterminate penalty for first-degree murder. Section 3581 sets the authorized prison sentence for crimes falling within each letter grade classification established by 18 U.S.C. 3559. Under Section 3559(a)(1), first-degree murder is a Class A felony. Subsection (b)(1) of Section 3581 provides that a defendant convicted of a Class A felony may be sentenced to prison for the duration of his life or "any period of time." The statutory scheme and the legislative history of Section 3581 demonstrate that petitioner is required to serve a mandatory minimum sentence of life imprisonment. To begin with, the statutory scheme demonstrates that the terms of imprisonment set forth in Section 3581(b) were not intended to apply to offenses, such as first-degree murder, that were assigned letter grades for the first time in Section 3559. Those terms were instead meant to apply only to those offenses that were assigned letter classifications in the statute describing the offense. Consistent with this interpretation, Section 3559 carries its own subsection specifying maximum penalties, some penalties of which are incompatible with limits set in Section 3581(b). Compare, e.g., 18 U.S.C. 3559(a)(3) (classifying offenses punishable by between 10 and 20 years as Class C felonies), with, e.g., 18 U.S.C. 3581(b)(3) (setting the maximum penalty for a Class C felony at 10 years). The legislative history confirms that Section 3581 does not authorize indeterminate sentences generally or a sentence of less than life imprisonment for first degree murder in particular. The legislative history of the Sentencing Reform Act, of which Sections 3581 and 3559 were a part, indicates that Congress intended to achieve more consistent, determinate sentences and not to replaced a fixed minimum sentence for first-degree murder with an indeterminate sentence. See S. Rep. No. 225, 98th Cong., 2d Sess. 37-50 (1984). The Senate Committee's Report on Section 3581 likewise makes clear that "the terms set forth are maximum periods for which a judge is authorized to sentence an offender in each such category." Id. at 114. The statute thus does not address the question of minimum sentences. Finally, the legislative history indicates that Congress did not intend to change the sentencing provisions of existing law when it introduced the grading scheme. See id. at 87. Nor is petitioner aided by the Sentencing Guidelines. Application Note 1 of Guideline 2A1.1, on which petitioner relies, provides in pertinent part as follows: The Commission has concluded that in the absence of capital punishment life imprisonment is the appropriate punishment for the "willful, deliberate, malicious, and premeditated killing" to which 18 U.S.C. 1111 applies. However, the same statute applies when death results from certain enumerated felonies -- arson, escape, murder, kidnapping, treason, espionage, sabotage, rape, burglary, or robbery. Life imprisonment is not necessarily appropriate in all such situations. For example, if in robbing a bank, the defendant merely passed a note to the teller, as a result of which she had a heart attack and died, a sentence of life imprisonment clearly would not be appropriate. If the defendant did not cause the death intentionally or knowingly, a downward departure may be warranted. The extent of the departure should be based upon the defendant's state of mind (e.g., recklessness or negligence), the degree of risk inherent in the conduct, and the nature of the underlying offense conduct. To be sure, the above note appears to authorities less than a life sentence in certain cases involving felony murder or unintentional murder. However, the Guidelines cannot lawfully supersede the minimum and maximum penalties set by the underlying statute for any offense. Indeed, the Guidelines themselves recognize as much. Section 5G1.1 states that if the application of the Guidelines results in a sentence either above the maximum or below the minimum authorized by the charging statute, then the statutory maximum or minimum shall be the Guideline sentence. To the extent, then, that the application note seeks to authorize a sentence less than life imprisonment for first degree murder in violation of 18 U.S.C. 1111, it has no force. /2/ The Department of Justice has recently brought this matter to the attention of the Sentencing Commission and has recommended to the Commission that the incorrect language in the application note be eliminated. /3/ In any event, as the court of appeals correctly observed, Pet. App. 8 n.14, the application note plainly does not apply to the type of premeditated murder at issue here. Accordingly, the question of the legal validity of the note is not presented by this case. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General EDWARD S.G. DENNIS, JR. Assistant Attorney General JOEL M. GERSHOWITZ Attorney MARCH 1990 /1/ Petitioner's reliance on United States v. Brown, 490 F.2d 758 (D.C. Cir. 1974), is misplaced. In Brown, the district court admitted the hearsay testimony of the murder victim's wife that, before his death, the victim had stated that he was afraid that he would be murdered by the defendant. The court of appeals held that the testimony should have been excluded because of the substantial prejudice inherent in the statement and the doubtful relevance of the victim's fear to any issue in the case. Id. at 778-782. To the extent that the statements in this case were hearsay at all, they were both noninflammatory and highly relevant in establishing the motive for the murder. Because United States v. Brown is inapposite, the judgment in this case does not create a division among the courts of appeals. Cf. Pet. 10-12. /2/ The commentary following Guideline 2A1.1 attempts to justify the indeterminate prison term authorized by Application Note 1 for certain kinds of first-degree murder on the basis of 18 U.S.C. 3581(b)(1). As we have shown, however, that provision does not do away with the mandatory minimum sentence of life imprisonment prescribed by 18 U.S.C. 1111. /3/ Prior to the implementation of the Sentencing Reform Act, a defendant sentenced to life imprisonment under 18 U.S.C. 1111 could be paroled. See 18 U.S.C. 4205(a). The Act, however, abolished parole. While a life sentence without possibility of parole might be considered a harsh penalty for certain first-degree murders, the proper course for addressing that concern would be for Congress to amend Section 1111. The Sentencing Commission cannot itself revise the statute and eliminate the mandatory minimum sentence for first degree murderers.