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.