United States Court of Appeals
For the First Circuit
No. 04-6001
UNITED STATES OF AMERICA,
Appellee,
v.
GARY LEE SAMPSON,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
Before
Selya, Lynch and Lipez, Circuit Judges.
David A. Ruhnke and Joshua L. Dratel, with whom Ruhnke &
Barrett, Joshua L. Dratel, P.C., Meredith S. Heller, Kristian K.
Larsen, and Erik B. Levin were on brief, for appellant
Steven L. Lane, Attorney, Appellate Section, Criminal
Division, United States Department of Justice, with whom Michael J.
Sullivan, United States Attorney, George W. Vien and John A.
Wortmann, Jr., Assistant United States Attorneys, were on brief,
for appellee.
May 7, 2007
SELYA, Circuit Judge. This is a landmark case; for the
first time in its history, this court must review a sentence of
death imposed by a federal judge. To that extent, we are writing
on a pristine page. We are guided in this pathbreaking endeavor,
however, by a variety of reliable sources, including Supreme Court
precedent, decisions of other courts of appeals in capital cases,
and legal principles of general application.
With this brief preface, we turn to the particulars of
the case at hand. Defendant-appellant Gary Lee Sampson entered a
guilty plea to two counts of carjacking resulting in death. See 18
U.S.C. § 2119(3). On January 29, 2004, the district court
sentenced Sampson to death on the recommendation of a jury of his
peers.
Sampson's appeal from his sentence raises a host of
claims. The first six include five claims that contest the
constitutionality of the Federal Death Penalty Act, 18 U.S.C. §§
3591-3598 (FDPA), pursuant to which the district court pronounced
sentence, and one that contests the constitutionality of the death
penalty in general. There follows a litany of claims concerning
alleged errors specific to Sampson's penalty-phase trial. The
district court's rulings on many of these issues are embodied in a
series of published opinions. See United States v. Sampson, 335 F.
Supp. 2d 166 (D. Mass. 2004) (Sampson IV); United States v.
Sampson, 332 F. Supp. 2d 325 (D. Mass. 2004) (Sampson III); United
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States v. Sampson, 275 F. Supp. 2d 49 (D. Mass. 2003) (Sampson II);
United States v. Sampson, 245 F. Supp. 2d 327 (D. Mass. 2003)
(Sampson I).
We begin this opinion by sketching the background of the
case. We then discuss Sampson's arguments about the
constitutionality of the FDPA and the death penalty itself.
Finally, we address the myriad claims of trial-related error. In
the end, we reject Sampson's asseverational array in its entirety
and affirm his capital sentence.
I. BACKGROUND
We briefly recount the facts underlying Sampson's claims.
Many of these facts are rehearsed in Sampson IV, 335 F. Supp. 2d at
174-75, and McCloskey v. Mueller, 446 F.3d 262, 264-65 (1st Cir.
2006), and we assume the reader's familiarity with those opinions.
Sampson committed a series of bank robberies in North
Carolina in May, June, and July of 2001. He then fled to
Massachusetts. On July 23, he called the FBI's Boston office and
offered to self-surrender. The call was disconnected and, although
he waited for the police to arrive, Sampson was not apprehended.
The next day, Phillip McCloskey, a 69-year-old retiree,
was driving his car in Weymouth, Massachusetts. He picked up
Sampson, who was hitchhiking. When McCloskey later tried to drop
Sampson off, Sampson pulled out a knife and told McCloskey to keep
driving. Once they reached Marshfield, Sampson forced McCloskey
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out of the car and attempted to restrain him with a belt. When
McCloskey resisted, Sampson stabbed him multiple times and then
slit his throat, nearly decapitating him. Sampson proceeded to
steal McCloskey's money and tried to steal his car, which would not
start.
Three days later, Jonathan Rizzo, a 19-year-old college
student, picked up Sampson (who was posing as a stranded traveler)
along a road in Plymouth. Sampson forced Rizzo at knifepoint to
drive to Abington, where Sampson maintained a makeshift campsite.
Sampson tied Rizzo to a tree, gagged him with a sock and a bandana,
stabbed him repeatedly in the neck and chest, and slit his throat.
After Rizzo was dead, Sampson stole his car and drove to New
Hampshire.
On July 29, Sampson broke into a home on Lake
Winnipesaukee. The next day, the caretaker (Robert Whitney)
arrived. Sampson tied him to a chair, gagged him with a washcloth,
and strangled him to death with a rope. Sampson then appropriated
Whitney's car and drove to Vermont.
On July 31, William Gregory picked up Sampson, who was
hitchhiking, near West Bridgewater, Vermont. Sampson attempted to
force Gregory at knifepoint onto a dirt road so that he could tie
him to a tree and steal his car. Gregory, however, pulled into a
rest area and escaped on foot. Sampson made off with Gregory's
car. Later that day, he broke into a home near the Killington ski
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area. He then called 911 and offered to turn himself in for
carjacking Gregory and for the earlier bank robberies. Vermont
state troopers arrested Sampson at that locus. Following his
detention, Sampson waived his Miranda rights, see Miranda v.
Arizona, 384 U.S. 436, 444-45 (1966), and made several detailed
confessions to the authorities.
On October 24, 2001, a federal grand jury charged Sampson
with two counts of carjacking resulting in death (namely, the
murders of McCloskey and Rizzo). Sampson offered to plead guilty
in exchange for a sentence of life imprisonment without parole but
that overture was rejected.
In short order, the government filed a superseding
indictment to comply with Ring v. Arizona, 536 U.S. 584, 609
(2002), and then served a notice of intent to seek the death
penalty, see 18 U.S.C. § 3593(a). After filing numerous pretrial
motions that unsuccessfully challenged the constitutionality of the
FDPA, Sampson eventually entered a guilty plea to both counts of
the superseding indictment.
The district court empaneled a death-qualified jury to
determine what punishment should be imposed. See id. §
3593(b)(2)(A); see also United States v. Green, 407 F.3d 434, 436-
37 (1st Cir. 2005) (discussing "death-qualified" jury requirement).
On December 23, 2003, after a six-week penalty-phase trial
conducted in accordance with the FDPA, the jury unanimously
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recommended that Sampson be sentenced to death on both counts of
the superseding indictment. The district court sentenced Sampson
to death on both counts. United States v. Sampson, 300 F. Supp. 2d
275, 276 (D. Mass. 2004). The district court denied Sampson's
ensuing motions for judgment as a matter of law, a new penalty-
phase trial, and other relief. Sampson III, 332 F. Supp. 2d at
341. This appeal followed.
II. THE CONSTITUTIONAL CLAIMS
Sampson raises six types of constitutional claims. Most
of them are attacks on the FDPA. First, Sampson argues that the
FDPA, which authorizes prosecutors to decide whether to seek the
death penalty, is unconstitutional because it does not require the
aggravating factors needed for a sentence of death to be presented
to a grand jury as mandated by Ring. Relatedly, he argues that the
presentation of aggravating factors to the grand jury in this case
was tantamount to executive and judicial redrafting of the statute
in derogation of the principles of separation of powers and
legislative authority. Second, Sampson argues that because the
federal death penalty is so rarely sought or imposed, the FDPA
operates in a fundamentally arbitrary and capricious manner (and,
thus, is invalid as violative of the Eighth Amendment). Third, he
argues that the absence of a principled basis for distinguishing
between cases in which the federal death penalty is imposed and
those in which it is not renders the FDPA unconstitutional.
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Fourth, he argues that the federal death penalty is sought on the
invidious basis of race and the irrational basis of geography (and,
thus, is unconstitutional). Fifth, he argues that continued
enforcement of the federal death penalty will lead to execution of
a significant number of innocent persons and that, therefore, the
FDPA and the death penalty itself are unconstitutional. Finally,
he argues that the death penalty is per se unconstitutional.
Sampson supports his arguments with Brandeis-brief type information
from studies about the operation in fact of the FDPA.
The district court rejected each of these claims after
careful analysis. See Sampson II, 275 F. Supp. 2d at 62-66, 71-94;
Sampson I, 245 F. Supp. 2d at 330-38. Concluding, as we do, that
nearly all of the claims are foreclosed by Supreme Court precedent,
we echo this holding.
Before addressing the issues, we confirm some basic
principles applicable to judicial review. A district court's
rulings on questions of law, including constitutional questions,
engender de novo review. See United States v. Bender, 221 F.3d
265, 268 (1st Cir. 2000); see also United States v. Marenghi, 109
F.3d 28, 31 (1st Cir. 1997). Statutes duly enacted by Congress are
presumed to be constitutional. INS v. Chadha, 462 U.S. 919, 944
(1983). Thus, the burden of proving that the FDPA is
unconstitutional is on the challenger (here, Sampson). Lujan v. G
& G Fire Sprinklers, Inc., 532 U.S. 189, 198 (2001). Last — but
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surely not least — when the Supreme Court has directly decided an
issue, we must "follow the case [that] directly controls, leaving
to [the Supreme] Court the prerogative of overruling its own
decisions." Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490
U.S. 477, 484 (1989). With these principles in mind, we turn to
Sampson's constitutional claims.
A. Ring-Related Claims.
We begin with Sampson's multi-faceted claim that the FDPA
is unconstitutional under Ring. Sampson argues that the FDPA
"suffers from a fatal flaw," Appellant's Br. at 199, in that it
provides for the prosecutor, not a grand jury, to set out by
allegation the aggravating factors necessary for a sentence of
death whereas the Constitution, as interpreted by the Ring Court,
requires that these factors be presented to a grand jury and
charged in an indictment. He further argues that allowing the
prosecutor to select the aggravating factors and present them to
the grand jury in his case constituted "improper executive and
judicial redrafting of the statute." Id. We do not agree.
The FDPA defines the circumstances under which defendants
who commit certain federal crimes may be eligible for the death
penalty. A defendant who commits a qualifying offense is death-
penalty eligible only if a jury finds beyond a reasonable doubt
that the defendant acted with the statutorily required intent, see
18 U.S.C. §§ 3591(a)(2), 3593(b), and that at least one statutorily
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defined aggravating factor exists, see id. §§ 3592, 3593(c)-(e).
It is only after these threshold findings are made that a jury,
considering both mitigating and aggravating factors, may determine
that the death penalty is appropriate. See id. § 3593(c)-(e).
Part of the statute, section 3593(a), authorizes the
Department of Justice (DOJ) to determine whether to seek the death
penalty in a particular case. If the government elects to seek the
death penalty, the statute requires it to give the defendant notice
of its election and of the aggravating factors that it plans to
prove. Id. § 3593(a).
The FDPA makes no mention of the grand jury. This
omission is understandable. Congress enacted the FDPA in 1994
against the backdrop of Walton v. Arizona, 497 U.S. 639 (1990), in
which the Supreme Court held that "the Sixth Amendment does not
require that the specific findings authorizing the imposition of
the sentence of death be made by the jury." Id. at 648 (quoting
Hildwin v. Florida, 490 U.S. 638, 640-41 (1989) (per curiam))
(internal quotation marks omitted). Essentially, the Walton Court
held that the facts necessary to render a defendant eligible for
the death penalty were not elements of the offense itself, making
inapplicable the Fifth Amendment requirement that the elements of
an offense be charged by a grand jury in an indictment. See id. at
649.
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The Supreme Court first cast doubt on Walton in Jones v.
United States, 526 U.S. 227 (1999). There, the Court considered 18
U.S.C. § 2119, the carjacking statute involved in this case, and
held that the statute created three separate offenses. See Jones,
526 U.S. at 251-52. It further held that the fact that a defendant
caused serious bodily injury to another during the commission of a
crime was an element of a greater offense that had to be both
charged in an indictment and found by a jury at trial beyond a
reasonable doubt. See id. at 232-39, 252. In reaching these
conclusions, the Jones Court distinguished the sentencing factors
upheld in Walton. See id. at 251.
The next Term, the Court held that any fact that
increases the maximum authorized statutory sentence "is the
functional equivalent of an element of a greater offense," which
must be charged in an indictment and proved beyond a reasonable
doubt. Apprendi v. New Jersey, 530 U.S. 466, 490, 494 n.19 (2000).
Finally, in 2002 the Court explicitly overruled Walton.
See Ring, 536 U.S. at 609. In the wake of Ring, Supreme Court
precedent now firmly establishes that the mental culpability and
aggravating factors required by the FDPA must — in addition to
being included in the government's notice to seek the death penalty
— be presented to a grand jury, charged in the indictment, and
proved beyond a reasonable doubt. But as we shall explain, even
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though this eliminates a background assumption against which the
FDPA was framed, it does not render the statute unconstitutional.
Sampson contends both that there is a conflict between
the FDPA and Ring, and that curing the problem would require the
rewriting of the statute, which is a legislative function. This
contention is unpersuasive. The courts that have considered this
thesis uniformly have rejected it. See United States v. Brown, 441
F.3d 1330, 1367 (11th Cir. 2006), cert. denied, 127 S. Ct. 1149
(2007); United States v. Allen, 406 F.3d 940, 949 (8th Cir. 2005),
cert. denied, 127 S. Ct. 826 (2006); United States v. Barnette, 390
F.3d 775, 788-90 (4th Cir. 2004), vacated on other grounds, 126 S.
Ct. 92 (2005); United States v. Robinson, 367 F.3d 278, 290 (5th
Cir. 2004); cf. United States v. Collazo-Aponte, 281 F.3d 320, 324-
25 (1st Cir. 2002) (rejecting a facial challenge to 21 U.S.C. § 841
because "there is nothing in the statutory language that explicitly
defies Apprendi").
We agree with this line of cases; there is no
irredeemable conflict between the FDPA and Ring. The FDPA does
not, as Sampson suggests, grant to prosecutors exclusive authority
for determining the likely existence of aggravating factors. No
provision of the FDPA prohibits a grand jury from considering those
factors necessary for imposition of a death sentence. The statute
simply is silent with respect to the function of the grand jury.
It thus is not rendered facially unconstitutional by Ring.
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Sampson also presents a variation on this theme, arguing
that the application of Ring to the FDPA requires impermissible
judicial or executive redrafting of the statute. We think not.
What is involved in the application of Ring is a matter
of procedure, not of substantive definition regarding death-penalty
eligibility. After all, in the habeas context, Apprendi and Ring
regularly have been held to announce a new rule of criminal
procedure, not a new rule of substantive law. See United States v.
Brown, 305 F.3d 304, 308-09 (5th Cir. 2002); Cannon v. Mullin, 297
F.3d 989, 994 (10th Cir. 2002); United States v. Warden, 286 F.3d
1059, 1063 (8th Cir. 2002); United States v. Sanchez-Cervantes, 282
F.3d 664, 668 (9th Cir. 2002); McCoy v. United States, 266 F.3d
1245, 1257 n.16 (11th Cir. 2001); see also Sepulveda v. United
States, 330 F.3d 55, 59 (1st Cir. 2003) (treating Apprendi as
having announced a rule of criminal procedure); United States v.
McAllister, 272 F.3d 228, 232 (4th Cir. 2001) (holding, in the
context of a constitutional challenge to 21 U.S.C. § 841, that
Apprendi announced a procedural rule). To cinch matters, the Jones
Court made pellucid that "[t]he constitutional guarantees that
g[a]ve rise to [its] concern in no way restrict the ability of
legislatures to identify the conduct they wish to characterize as
criminal or to define the facts whose proof is essential to the
establishment of criminal liability." 526 U.S. at 243 n.6.
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It follows, then, that the rule against massive judicial
rewriting of statutes simply is not implicated here. Adhering to
a court-crafted rule of criminal procedure when applying the FDPA
does not constitute impermissible statutory redrafting.
In this respect, the instant case is unlike United States
v. Jackson, 390 U.S. 570 (1968), on which Sampson relies.1 In
Jackson, the Supreme Court invalidated the death penalty provision
of the Federal Kidnaping Act, which permitted only a jury to impose
a death sentence. Id. at 591. The objection was that it infringed
on the right to a jury trial by encouraging a defendant to plead
guilty or to waive that right in order to avoid the possibility of
a death sentence. Id. at 572-73. The government encouraged the
Supreme Court to save the statute by reading it to allow a judge —
in the event of a guilty plea or bench trial — to convene a
"special jury" to determine whether the death penalty was
warranted. Id. The Court rejected this suggestion, stating that
it could not "create from whole cloth a complex and completely
novel procedure and . . . thrust it upon unwilling defendants for
the sole purpose of rescuing a statute from a charge of
unconstitutionality." Id. at 580.
This case, however, does not require us to "create from
whole cloth a complex and completely novel procedure." As the
1
As best we can tell, no court of appeals considering the
constitutionality of the FDPA post-Ring has discussed Jackson.
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district court perspicaciously noted, see Sampson I, 245 F. Supp.
2d at 337, the role of the grand jury in charging the elements of
an offense has long been established. See, e.g., Hamling v. United
States, 418 U.S. 87, 117-18 (1974) (ruling on a challenge to the
sufficiency of an indictment); Russell v. United States, 369 U.S.
749, 763-64 (1962) (same). Here, the government honored that role;
it simply presented the grand jury with evidence of possible
aggravating factors.
This case also is unlike Blount v. Rizzi, 400 U.S. 410
(1971), and United States v. Booker, 543 U.S. 220 (2005), on which
Sampson further relies. In Blount, the Supreme Court invalidated
two provisions of the Postal Reorganization Act because they did
not conform to the constitutional requirements of an administrative
censorship scheme. 400 U.S. at 421-22. The Court rejected a
proposed severing construction of the statute that itself failed to
comply with the Constitution and then noted that "it [was] for
Congress, not [the] Court, to rewrite the statute." Id. at 419.
In Booker, the Court refused to graft onto the federal sentencing
guidelines a set of procedures for presenting to a jury facts
necessary for sentence enhancements. 543 U.S. at 246. Instead,
the Court severed from the guidelines the provision making
mandatory the effect of sentencing factors not found by a jury.
Id. at 245. To do otherwise, it held, "would [have] so
transform[ed] the scheme that Congress created that Congress likely
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would not have intended the Act as so modified to stand." Id. at
249.
The statutes in question in Blount and Booker, like the
statute in Jackson, were incompatible with constitutional
requirements. See id. at 227-29; Blount, 400 U.S. at 417. Saving
either statute, as proposed by the government, while at the same
time complying with constitutional mandates, would have required
the Court to perform a complete statutory rewrite, which is a
legislative and not a judicial function. In contrast, allowing a
grand jury to consider and charge aggravating factors under the
FDPA does not have any effect either on the substantive aspects of
the statute or on the discrete roles that the statute assigns to
the judge, the prosecutor, and the jury, respectively.
To sum up, Ring does not render the FDPA unconstitutional
either on its face or as applied in this case.2
B. Arbitrary Operation.
Sampson makes two arguments in support of his claim that
the FDPA is unconstitutional because it is arbitrary in its
operation. First, he argues that because the federal death penalty
is infrequently sought and even more infrequently carried out, its
imposition is arbitrary, capricious, and therefore
2
Sampson's argument that the grand jury lacked authority to
issue so-called special findings is entirely without merit. There
is nothing in the Federal Rules of Criminal Procedure that
prohibits the grand jury from alleging all the elements of an
offense that it proposes to charge.
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unconstitutional. Sampson centers this argument around Furman v.
Georgia, 408 U.S. 238 (1972), in which the Supreme Court struck
down as unconstitutional the Georgia capital punishment statute
then in effect. In a concurring opinion, Justice Stewart stated
that the death sentences at issue were
cruel and unusual in the same way that being
struck by lightning is cruel and unusual.
For, of all the people convicted of rapes and
murders in 1967 and 1968, many just as
reprehensible as [those committed by
petitioners], the petitioners are among a
capriciously selected random handful upon whom
the sentence of death has in fact been
imposed.
Id. at 309-10 (Stewart, J., concurring) (footnote omitted).
Sampson argues that Justice Stewart's statement constitutes the
essence of Furman. See Appellant's Br. at 238 (characterizing
Furman as viewing "arbitrariness and caprice . . . as the
inevitable side-effects of a rarely-imposed punishment of death").
Given this reading, he argues that because the federal death
penalty is rarely sought or imposed, the FDPA is no different from
the Georgia statute invalidated in Furman.
This argument mistakes the nature of the arbitrariness
concern in the Supreme Court's jurisprudence. In the thirty-four
years since Furman was decided, the Court has made clear that its
decision was not based on the frequency with which the death
penalty was sought or imposed. Rather, the primary emphasis of the
Court's death penalty jurisprudence has been the requirement that
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the discretion exercised by juries be guided so as to limit the
potential for arbitrariness. Thus, in Gregg v. Georgia, 428 U.S.
153 (1976), the Court, upholding the revised Georgia capital
sentencing statute, described Furman as "mandat[ing] that where
discretion is afforded a sentencing body on a matter so grave as
the determination of whether a human life should be taken or
spared, that discretion must be suitably directed and limited so as
to minimize the risk of wholly arbitrary and capricious action."
Id. at 189 (opinion of Stewart, Powell, and Stevens, JJ.).
Together, Furman and Gregg require that a death penalty
statute "(1) rationally narrow the class of death-eligible
defendants[] and (2) permit a jury to render a reasoned,
individualized sentencing determination based on a death-eligible
defendant's record, personal characteristics, and the circumstances
of his crime." Kansas v. Marsh, 126 S. Ct. 2516, 2524-25 (2006).
As the Supreme Court recognized in a different context, these
requirements "further an essential need of the Anglo-American
criminal justice system — to balance the desirability of a high
degree of uniformity against the necessity for the exercise of
discretion." McCleskey v. Kemp, 481 U.S. 279, 312 n.35 (1987).
Like the statute upheld in Gregg, the FDPA fully meets the
requirements of guided discretion, suitably directing and limiting
the leeway afforded to the decisionmakers.
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Nor does the frequency with which the federal death
penalty is sought render the FDPA unconstitutional. To the extent
that there may be an independent constitutional concern as to the
decisional process by which the government decides if it will seek
the death penalty, that process contains numerous safeguards built
into an articulated death penalty protocol. See United States
A t t o r n e y s ' M a n u a l § 9 - 1 0 . 0 0 0 ,
http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/10m
crm.htm.3 The process, therefore, is not arbitrary. See Gregg, 428
U.S. at 195.
Sampson's second argument is that the FDPA is
unconstitutional because there is no principled basis for
distinguishing between those cases in which the federal death
penalty is imposed and those in which it is not. His argument is
premised on Eddings v. Oklahoma, 455 U.S. 104 (1982), in which the
Supreme Court stated that "capital punishment [must] be imposed
fairly, and with reasonable consistency, or not at all." Id. at
3
For example, under the protocol, in determining whether to
recommend that the Attorney General authorize the prosecutor to
seek the death penalty, the DOJ will consider "evidence of racial
bias against the defendant or evidence that the Department has
engaged in a pattern or practice of racial discrimination." United
States Attorneys' Manual § 9-10.050,
http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/10m
crm.htm#9-10.050. There is no colorable claim that the decision
whether to seek the death penalty against Sampson was motivated by
an impermissible factor such as race. Sampson conceded, as well,
that he had no evidence of purposeful or intentional discrimination
based on the race of the victim.
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112. This argument ignores the remainder of the Eddings Court's
discussion of consistency, in which the Court recognized that "a
consistency produced by ignoring individual differences is a false
consistency." Id. Indeed, the thrust of Eddings is that those who
make sentencing decisions must be permitted to focus on the
individual characteristics of the defendant and the circumstances
of the crime. Id. And, finally, the argument cannot survive
McCleskey, in which the Court stated that "[t]he Constitution is
not offended by inconsistency in results based on the objective
circumstances of the crime. Numerous legitimate factors may
influence . . . a defendant's ultimate sentence, even though they
may be irrelevant to his actual guilt." 481 U.S. at 307 n.28.
In all events, the "evidence" that Sampson submits is
wholly inadequate to prove that the death penalty has been imposed
in an arbitrary manner. The summaries on which Sampson relies to
demonstrate inconsistency are devoid of details and fail to account
for the objective circumstances of the underlying crimes. Even the
more detailed verdict sheets that he submitted to the district
court fail to establish arbitrary imposition of the death penalty.
On this record and mindful of the teachings of McCleskey, we
decline Sampson's invitation to ignore individual differences
across offenders and offenses. Consequently, there is no
principled basis for finding that similar cases are treated
differently.
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C. Other Challenges to the FDPA.
Sampson's remaining challenges to the constitutionality
of the FDPA are those related to race, geography, and innocence.
Sampson (who is white) raises no argument that he was sentenced to
death because of his race, the race of his victims, or the
geographic location in which he was sentenced. Nor does he claim
to be actually innocent.
What, then, is his claim? In essence, Sampson attempts
to assert the rights of other capital defendants. His claim is
that, although he himself was not disadvantaged by race or
geography and although he is not innocent, the FDPA is
unconstitutional because it has these untoward effects elsewhere.
And if the FDPA is unconstitutional, his thesis runs, he may not be
sentenced under it.
It is questionable whether Sampson has standing to
challenge the constitutionality of the federal death penalty on
these grounds. See County Court v. Allen, 442 U.S. 140, 155 (1979)
("As a general rule, if there is no constitutional defect in the
application of the statute to a litigant, he does not have standing
to argue that it would be unconstitutional if applied to third
parties in hypothetical situations."); see also Broadrick v.
Oklahoma, 413 U.S. 601, 610 (1973) (citing cases).
Because there is no Supreme Court precedent directly on
point and because "death is . . . different," Gardner v. Florida,
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430 U.S. 349, 357 (1977), we will assume arguendo that Sampson has
standing to pursue these arguments. He nonetheless fails to prove
the unconstitutionality of the FDPA.
1. Race-and-Geography-Related Claims. We take first
Sampson's claims that the FDPA is unconstitutional because the death
penalty is sought based on the race of the defendant and victim and
on the locale in which the defendant is charged. Sampson's race-
based claims implicate the Fifth and Eighth Amendments. His
geography-related claim implicates the Eighth Amendment.4
Sampson's challenges are based primarily on a 2000 DOJ
study of the administration of the federal death penalty from 1988
to 2000, and on a 2001 supplemental report. He reads the studies
as demonstrating a pattern of discrimination against minority
defendants and against defendants in the South. For example, he
notes that over 70% of federal defendants for whom the death penalty
was sought were non-whites. Similarly, between 1995 and 2000, only
4
Sampson also argues that he has a statutory right under 18
U.S.C. § 3593(f) to "justice without discrimination" that was
violated by the discrimination inherent in the federal capital
sentencing scheme. The district court complied with 18 U.S.C. §
3593(f), which requires a jury instruction that the race of the
defendant and victim not enter into the sentencing determination
and a certification signed by the jurors that they were not
influenced by these factors.
In addition, Sampson argues that this court should invoke its
supervisory powers "to curb charging discrimination and regional
caprice." Appellant's Br. at 275-76. There is no basis for the
exercise of supervisory power in this instance. If Sampson's
arguments have any basis in fact — a point upon which we do not
opine — he could only have benefitted by virtue of his race and the
geographic location in which his crimes were committed.
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slightly more than half of the districts in the federal system
submitted a case to the Attorney General with a recommendation for
capital prosecution. Sampson also cites evidence of a white-victim
effect, including one study showing that the death penalty
authorization rate is 37% in white-victim cases, but only 21% in
minority-victim cases.
Bare statistical discrepancies are insufficient to prove
a Fifth Amendment violation with respect to the implementation of
a statute. This principle is firmly established by McCleskey. 481
U.S. at 292 (stating that "to prevail under the Equal Protection
Clause, [a defendant] must prove that the decisionmakers in his case
acted with discriminatory purpose").5 It applies here: because
Sampson has presented no specific evidence of purposeful
discrimination either against himself or against those southern and
5
In McCleskey, the Supreme Court rejected a capital
defendant's claim that systemic statistics demonstrated
discriminatory intent in his particular case. See 481 U.S. at 297.
Sampson attempts to distinguish McCleskey by noting that the DOJ
study on which he relies provides not only systemic statistics but
also individualized statistics. He points out that while the study
at issue in McCleskey analyzed data from many different
decisionmakers, the DOJ study relies only on the decisions of the
Attorney General and primarily on the decisions of one Attorney
General (Janet Reno). This argument ignores the fact that the
statistics also reflect the decisions of countless prosecutors in
the field, who must exercise their considerable charging discretion
before a case ever reaches the Attorney General's desk (as Sampson
points out, the Attorney General followed the local prosecutors'
recommendations in the overwhelming majority of cases submitted,
Appellant's Br. at 255 n.90). See McCleskey, 481 U.S. at 295 n.15
(noting that "decisions whether to prosecute and what to charge
necessarily are individualized and involve infinite factual
variations").
-22-
minority defendants upon whom he purports to base his claim, his
Fifth Amendment challenge fails.
By like token, Sampson's Eighth Amendment claims cannot
succeed. The McCleskey Court, in rejecting an Eighth Amendment
claim based on a statistical study indicating race-based
discrepancies in capital sentencing, stated:
Apparent disparities in sentencing are an
inevitable part of our criminal justice
system. . . . [O]ur consistent rule has been
that constitutional guarantees are met when
"the mode [for determining guilt or
punishment] itself has been surrounded with
safeguards to make it as fair as possible."
Where the discretion that is fundamental to
our criminal process is involved, we decline
to assume that what is unexplained is
invidious.
481 U.S. at 312-13 (second alteration in original) (citation omitted)
(quoting Singer v. United States, 380 U.S. 24, 35 (1965)). The
statistics submitted by Sampson are no more probative than those
rejected in McCleskey. The DOJ study provides no basis for
attributing the statistical discrepancies with respect to geography
and race in FDPA prosecutions to discrimination rather than to other
factors, such as differences in the nature of the crimes involved.
McCleskey prohibits us from assuming that "what is unexplained is
invidious." Id.
2. Innocence-Related Claims. Sampson's final claims
regarding the FDPA's constitutionality concern the risk of executing
innocent defendants. Again, we assume arguendo that Sampson, who has
-23-
admitted his guilt by pleading to the charges against him, has
standing to assert the interests of the innocent.
Sampson appears to make two closely related Fifth
Amendment arguments, both of which derive from his reliance on United
States v. Quinones, 205 F. Supp. 2d 256 (S.D.N.Y.), rev'd, 313 F.3d
49 (2d Cir. 2002).6 Sampson's first argument is that because factual
studies establish that innocent defendants have been convicted and
sentenced to death, the Fifth Amendment right to procedural due
process demands that defendants be permitted to attempt to prove
their innocence throughout their natural lives. His second argument
is that the risk of executing the innocent offends Fifth Amendment
substantive due process protections.
As with Sampson's other constitutional challenges to the
FDPA, these arguments are foreclosed by Supreme Court precedent. For
years, a perennial debate has raged over the propriety of capital
punishment in view of the omnipresent risk of executing innocent
defendants. See Quinones, 313 F.3d at 63-64. Withal, the Court has
declined, for over two centuries, to hold the death penalty
unconstitutional per se. In Furman, for example, both Justices
6
To the extent that Sampson invokes the Eighth Amendment,
arguing that the risk of executing the innocent renders the federal
death penalty per se cruel and unusual, his claim is foreclosed by
Gregg. See 428 U.S. at 187 (opinion of Stewart, Powell, and
Stevens, JJ.); id. at 226 (opinion of White, J., joined by Burger,
C.J., and Rehnquist, J.); see also Marsh, 126 S. Ct. at 2529
(rejecting the proposition that "the death penalty can only be just
in a system that does not permit error").
-24-
Marshall and Brennan explicitly recognized that the risk of executing
the innocent is inherent in capital punishment. See 408 U.S. at 364,
366-68 (Marshall, J., concurring); id. at 290 (Brennan, J.,
concurring). Despite this stark reality, no majority of Justices
ever has held the death penalty unconstitutional on those grounds.
The Court squarely addressed the issue of the risk of
executing the innocent in Herrera v. Collins, 506 U.S. 390 (1993).
It affirmed the denial of a petition for a writ of habeas corpus
notwithstanding a claim by the petitioner that new evidence could
prove his actual innocence. Id. at 393. The Court noted that
"[c]laims of actual innocence based on newly discovered evidence have
never been held to state a ground for federal habeas relief absent
an independent constitutional violation occurring in the underlying
state criminal proceeding." Id. at 400. The Court continued:
We may assume, for the sake of argument in
deciding this case, that in a capital case a
truly persuasive demonstration of "actual
innocence" made after trial would render the
execution of a defendant unconstitutional, and
warrant federal habeas relief if there were no
state avenue open to process such a claim. But
. . . the threshold showing for such an assumed
right would necessarily be extraordinarily
high.
Id. at 417. We understand Herrera to leave open the possibility
that, in a particular instance of newly discovered, highly persuasive
evidence of innocence, emerging at a time when no state remedy
remains available, a federal court might be able to issue a writ of
-25-
habeas corpus under the Constitution to prohibit execution. That is
a far cry, however, from saying that the FDPA is unconstitutional.
Indeed, Herrera supports the constitutionality of the
statute. Despite the "unalterable fact that our judicial system,
like the human beings who administer it, is fallible," id. at 415,
the Herrera Court could not say that the "refusal to entertain
petitioner's newly discovered evidence eight years after his
conviction" transgressed his due process rights. Id. at 411.
This is entirely consistent with the Court's opinion in
Chapman v. United States, 500 U.S. 453 (1991), which prevents
inferior federal courts from holding capital punishment per se
violative of due process. See id. at 465. The Chapman Court held
that under the Due Process Clause,
[e]very person has a fundamental right to
liberty in the sense that the Government may
not punish him unless and until it proves his
guilt beyond a reasonable doubt at a criminal
trial conducted in accordance with the relevant
constitutional guarantees. But a person who
has been so convicted is eligible for, and the
court may impose, whatever punishment is
authorized by statute for his offense, so long
as that penalty is not cruel and unusual, and
so long as the penalty is not based on an
arbitrary distinction that would violate the
Due Process Clause of the Fifth Amendment.
Id. (citations omitted); see United States v. Inglesi, 988 F.2d 500,
503 (4th Cir. 1993) (quoting Chapman for the proposition that "the
relevant due process inquiry on [a constitutional challenge in the
sentencing context] is only whether the sentence at issue is 'based
-26-
on an arbitrary distinction,' or, instead, on 'a rational sentencing
scheme'"). The Supreme Court has held that capital punishment is not
per se cruel and unusual, see Gregg, 428 U.S. at 187 (opinion of
Stewart, Powell, and Stevens, JJ.); id. at 226 (opinion of White, J.,
joined by Burger, C.J., and Rehnquist, J.), and there is no
allegation here that the execution of innocent individuals results
from arbitrary distinctions or application of the FDPA.
We are bound by this Supreme Court precedent.
Accordingly, we join those courts of appeals that have rebuffed
similar arguments, see Robinson, 367 F.3d at 290; Quinones, 313 F.3d
at 61-69, and reject Sampson's claims that the federal death penalty
is unconstitutional because it necessarily entails a risk of
executing the innocent.
D. The Death Penalty Simpliciter.
In a final catchall argument, Sampson asks us to declare
the death penalty unconstitutional as cruel and unusual punishment
and a per se denial of due process in all cases. Sampson concedes
that under Supreme Court precedent the argument fails. Yet, he urges
this court to rule to the contrary because the death penalty is
"racist to its very core," Appellant's Br. at 291; leads to the
execution of innocent people; and vests an unacceptable level of
unreviewable discretion in prosecutors. He adds, moreover, his
belief that the American public eventually will determine that
capital punishment is wrong and immoral.
-27-
In Gregg, the Supreme Court held that "the death penalty
is not a form of punishment that may never be imposed, regardless of
the circumstances of the offense, regardless of the character of the
offender, and regardless of the procedure followed in reaching the
decision to impose it." 428 U.S. at 187 (opinion of Stewart, Powell,
and Stevens, JJ.); see id. at 226 (opinion of White, J., joined by
Burger, C.J., and Rehnquist, J.); accord Roberts v. Louisiana, 428
U.S. 325, 331 (1976) (opinion of Stewart, Powell, and Stevens, JJ.);
id. at 350-56 (White, J., joined by Burger, C.J., Blackmun, J. and
Rehnquist, J., dissenting). The Chapman Court laid out the test,
under which Sampson cannot prevail, for determining whether a
particular form of punishment violates due process. Because Gregg,
Roberts, and Chapman are binding upon us, we reject Sampson's bedrock
claim and hold that the death penalty itself is not unconstitutional.
III. CLAIMS OF TRIAL ERROR
We turn next to Sampson's manifold claims of trial error.
We begin by evaluating alleged errors in the charge and the jury
selection process. We then proceed to Sampson's evidence-related
claims, including challenges to several of the district court's
rulings and to evidentiary sufficiency. We conclude by addressing
a potpourri of other claims, including Sampson's invocation of the
cumulative error doctrine.
-28-
A. Jury Instructions.
We begin with the district court's charge to the jury.
Sampson alleges three strains of instructional error. Because each
of them presents a properly preserved question of law, we afford de
novo review, taking into account the charge as a whole and the body
of evidence presented at trial. See United States v. Woodward, 149
F.3d 46, 68-69 (1st Cir. 1998); United States v. Alzanki, 54 F.3d
994, 1001 (1st Cir. 1995).
1. Weighing. Sampson's primary complaint of
instructional error relates to the district court's charge on the
weighing of aggravating and mitigating factors. In Sampson's view,
these instructions violated the FDPA and, in the bargain, infringed
upon constitutional protections. Specifically, he argues that the
instructions (i) erroneously invited jurors to apply their own
idiosyncratic standards to the weighing process and (ii) failed to
require that they find beyond a reasonable doubt that aggravating
factors outweighed mitigating factors before voting to impose the
death penalty.
Because our assessment of Sampson's plaints must take
into account the weighing instructions as a whole, Woodward, 149 F.3d
at 69, we reprint the pertinent portions here:
[Y]ou are called upon to decide if the proven
aggravating factors or factor sufficiently
outweigh the proven mitigating factors. This
is not a matter of arithmetic. You’re not
being asked to simply count the total number of
aggravating and mitigating factors and reach a
-29-
decision based on which number is greater.
Instead, you must consider the weight and value
that you feel should be given to each factor.
Different factors may be given different
weights or values by different jurors. You
might find that a single aggravating factor is
serious enough to outweigh several mitigating
factors. Similarly, a single mitigating factor
might outweigh several aggravating factors.
If you find that the government has not proven
that the aggravating factor or factors outweigh
the mitigating factors at all, you may not vote
to impose the death penalty on the count that
you’re considering. If, however, you decide
that the prosecution has proven that the
aggravating factor or factors outweigh the
mitigating factors, you must decide if the
prosecution has also proven beyond a reasonable
doubt that those aggravating factors
sufficiently outweigh the mitigating factors to
make death the appropriate penalty for Mr.
Sampson’s crime rather than life in prison
without possibility of release.
The law does not define what is sufficient to
make death the appropriate penalty. Here, the
law relies on each of you as a representative
of our community to consult your conscience and
determine what is sufficient to justify Mr.
Sampson’s execution. Thus, your decision as to
what the appropriate sentence is will depend in
part on what is sufficient for you. If you
find that the government has proven that the
aggravating factors slightly outweigh the
mitigating factors and that is sufficient for
you to find that death is the appropriate
penalty, you may properly vote for death.
On the other hand, even if the government has
proven to you that the aggravating factors
greatly outweigh the mitigating factors, you
may properly decide that this is not sufficient
to justify a sentence of death because, for
you, even more is required for you to find that
a man should die.
-30-
However you personally define sufficiency, the
prosecution must convince you beyond a
reasonable doubt that the aggravating factor or
factors sufficiently outweigh the mitigating
factors to make death the appropriate penalty
in this case.
As I told you earlier, this is a heavy burden.
More than a strong probability is required.
You must be certain beyond any reasonable doubt
that a death sentence should be imposed before
voting for it.
Death is, of course, the ultimate irreversible
punishment. You must not sentence Gary Sampson
to die unless you are convinced beyond a
reasonable doubt that death is the appropriate
punishment.
As I’ve told you previously, the law never
requires that any or all of you find that the
death penalty is justified. Any one of you may
decline to impose a death sentence. If you
decide that the prosecution has not proven
beyond a reasonable doubt that the death
penalty is justified, you do not have to give
a reason for that decision. The law does
require that you follow the process that I’ve
explained and then make a reasoned moral
judgment.
Sampson argues initially that the sufficiency language
embedded in this part of the charge violates both the FDPA and the
Eighth Amendment. He asserts that, by inviting each juror to use his
or her own definition of sufficiency, the district court "offered its
own idiosyncratic definition of the language of the statute,"
Appellant's Br. at 62-63, and failed to provide adequate sentencing
guidance as required by the Eighth Amendment in capital cases.
To determine whether the sufficiency language comported
with the FDPA, we start by consulting the statute's text; we then
-31-
proceed, if necessary, to examine its structure and surrounding
provisions. See Green, 407 F.3d at 441-43.
The relevant section of the FDPA, 18 U.S.C. § 3593(e),
which we set out in the margin,7 provides no definition of the phrase
"sufficiently outweigh." Thus, the court's definition of sufficiency
does not explicitly contradict the statutory text. At any rate, the
court's definition is fully consistent with the immediately preceding
paragraph, which provides that "any member of the jury who finds the
existence of a mitigating factor may consider such factor
established." Id. § 3593(d). For jurors to consider different
mitigating factors, they would necessarily need to engage in the type
of individualized weighing described by the district court. Given
the statutory phrase "sufficiently outweigh," Sampson's attack under
the FDPA fails.
We hold, as well, that the sufficiency instruction does
not violate the Eighth Amendment. Sampson argues strenuously that the
Eighth Amendment, if not the statute, requires that the jury be
instructed to follow a uniform method of weighing, precluding
individual approaches. We disagree.
7
That section provides, in pertinent part, that if the jury
finds the existence of at least one of the relevant aggravating
factors enumerated in the statute, "the jury . . . shall consider
whether all the aggravating factor or factors found to exist
sufficiently outweigh all the mitigating factor or factors found to
exist to justify a sentence of death." 18 U.S.C. § 3593(e).
-32-
The Supreme Court repeatedly has emphasized that key to
harmonizing a capital sentencing scheme with the proscription against
cruel and unusual punishment is an individualized determination by
the jury of whether, taking into account all the relevant aggravating
and mitigating factors, a death sentence is appropriate in a
particular case. See, e.g., Tuilaepa v. California, 512 U.S. 967,
973 (1994); Zant v. Stephens, 462 U.S. 862, 879 (1983). Sampson
correctly points out that the jury's discretion in sentencing must
be "suitably directed and limited so as to minimize the risk of
wholly arbitrary and capricious action." Gregg, 428 U.S. at 189
(opinion of Stewart, Powell, and Stevens, JJ.). However, once a jury
has found a defendant death-eligible, it may be given unfettered
discretion in the weighing process. See Tuilaepa, 512 U.S. at 979
(explaining that "[a] capital sentencer need not be instructed how
to weigh any particular fact in the capital sentencing decision");
see also Ayers v. Belmontes, 127 S. Ct. 469, 479 (2006). Sampson's
argument that the jury needed more guidance in order to weigh
aggravators against mitigators is foreclosed by these precedents.
Sampson also alleges that the weighing instructions failed
to require jurors to find beyond a reasonable doubt that aggravating
factors outweighed mitigating factors, and thus violated the FDPA and
the Fifth and Sixth Amendments. We can readily dismiss the statutory
argument. The FDPA makes no mention of the reasonable doubt standard
in the context of weighing aggravating and mitigating factors, see
-33-
18 U.S.C. § 3593(e), but it does reference the reasonable doubt
standard in two proximate sections, see id. §§ 3591(a)(2), 3593(c).
Because the inclusion of a term in one part of a statute is
persuasive evidence that its omission elsewhere is deliberate, see
Green, 407 F.3d at 443, we hold that Congress did not intend the
reasonable doubt standard to apply to the weighing process. That
being so, Sampson cannot have been harmed by the instruction given.
Sampson's constitutional arguments on this front are no
more persuasive. Relying on a procession of Supreme Court cases,
see, e.g., Booker, 543 U.S. at 244; Blakely v. Washington, 542 U.S.
296, 305 (2004); Ring, 536 U.S. at 609; Apprendi, 530 U.S. at 490,
he contends that the balance between aggravating and mitigating
factors is a "fact" that should have been found by the jury beyond
a reasonable doubt. The district court's alleged failure to instruct
that the reasonable doubt standard applied to this "fact" was,
therefore, error.
Sampson's attempt to draw an analogy between this weighing
determination and the sentencing determinations found
unconstitutional in the Apprendi line of cases lacks force. In
Blakely, for example, the Court invalidated a sentence that had been
elevated above the statutory maximum based upon a finding of
"deliberate cruelty" because the facts supporting that finding were
found by a judge, not by the jury beyond a reasonable doubt. See 542
U.S. at 303. The case at hand is different in kind because, under
-34-
the FDPA, the jury already had found beyond a reasonable doubt the
facts needed to support a sentence of death — the presence of
aggravating factors and the requisite intent — before it reached the
weighing stage. See 18 U.S.C. §§ 3591(a)(2), 3593(c)-(e).
Sampson tries to circumvent this logic by pointing out
that the weighing determination itself is essential to imposing a
death sentence. He repeatedly refers to Justice Scalia's statement
"that all facts essential to imposition of the level of punishment
that the defendant receives - whether the statute calls them elements
of the offense, sentencing factors, or Mary Jane - must be found by
the jury beyond a reasonable doubt." Ring, 536 U.S. at 610 (Scalia
J., joined by Thomas, J., concurring). This argument founders,
however, because it assumes, without the slightest support, that the
weighing of aggravating and mitigating factors is a fact. This
assumption is incorrect. As other courts have recognized, the
requisite weighing constitutes a process, not a fact to be found.
See United States v. Purkey, 428 F.3d 738, 750 (8th Cir. 2005)
(characterizing the weighing process as "the lens through which the
jury must focus the facts that it has found" to reach its
individualized determination), cert. denied, 127 S. Ct. 433 (2006);
see also Ford v. Strickland, 696 F.2d 804, 818 (11th Cir. 1983); Gray
v. Lucas, 685 F.2d 139, 140 (5th Cir. 1982) (per curiam). The
outcome of the weighing process is not an objective truth that is
susceptible to (further) proof by either party. Hence, the weighing
-35-
of aggravators and mitigators does not need to be "found." We hold,
therefore, that the district court's instructions were free from
Apprendi error.
Sampson has a residual argument: that the district court's
simultaneous and alternating references to both a personal notion of
sufficiency and a reasonable doubt standard were confusing and
inconsistent. We evaluate this argument by determining whether there
exists a reasonable likelihood that the jury interpreted the
instructions in a way that would violate the law. See Boyde v.
California, 494 U.S. 370, 380 (1990); see also Jones v. United
States, 527 U.S. 373, 390 (1999). Under this approach, a defendant
cannot rely solely on how a single hypothetical juror might have
interpreted a challenged instruction. See Boyde, 494 U.S. at 380
(noting the "strong policy against retrials . . . where the claimed
error amounts to no more than speculation").8 After careful
assessment of the instructions as a whole, we reject Sampson's
8
Sampson urges us to apply, instead of Boyde, either the
standard formulated by the Supreme Court in Mills v. Maryland, 486
U.S. 367, 377 (1988), or that announced in Stromberg v. California,
283 U.S. 359, 367-68 (1931). Mills is obsolete; the Supreme Court
reformulated that standard in Boyde, 494 U.S. at 378-90. Stromberg
is inapposite. There, the Court stated that when a jury is
instructed on alternative theories, one of which is plainly
unconstitutional, a conviction based upon a general verdict must be
set aside. 283 U.S. at 367-68. But this principle applies only
where an instruction is "concededly erroneous." Boyde, 494 U.S. at
380. For this reason, and because the verdict sheets in this case
provide detailed evidence of the jury's decisional calculus,
Stromberg is not on point.
-36-
contention that the challenged instruction is likely to have caused
harmful juror confusion.
Sampson places great emphasis on the language telling
jurors that they could impose the death penalty if the aggravating
factors "slightly outweigh[ed]" the mitigating factors. This phrase
was followed immediately, however, by an assurance that jurors could
refuse to vote for a death sentence "even if the government ha[d]
proven to [them] that the aggravating factors greatly outweigh[ed]
the mitigating factors." The court further instructed that however
jurors defined sufficiency, the prosecution had to convince them
"beyond a reasonable doubt that the aggravating factor or factors
sufficiently outweigh the mitigating factors to make death the
appropriate penalty in [the] case." Viewed in its entirety, this
instruction clearly communicated to jurors the relatively
straightforward proposition that they, as individuals, had to be
certain that death was the appropriate punishment before imposing it.
Even if we assume (favorably to Sampson) that the
instruction might have been mildly confusing, any error was benign.
In a capital case, as in any other case, a confusing instruction may
be harmless. See Boyde, 494 U.S. at 383-84. Here, we discern no
reasonable likelihood that jurors may have interpreted the
instruction in a way that could have harmed Sampson. There are only
two possibilities: either the jurors eschewed the reasonable doubt
standard vis-à-vis the weighing process (which, as we have held,
-37-
would have comported fully with the law) or they applied the
reasonable doubt standard (which would have benefitted Sampson by
imposing a more onerous burden on the government). Any error was,
therefore, patently harmless.9
2. Vulnerable Victim. The FDPA contemplates that the
government must show the presence of at least one enumerated
aggravating factor in order to render a defendant death-eligible.
See 18 U.S.C. § 3593(e). In this case, the jury unanimously found
several statutory aggravating factors: that Sampson committed both
the McCloskey and Rizzo murders in an "especially heinous, cruel, or
depraved manner," id. § 3592(c)(6); that McCloskey was "particularly
vulnerable due to . . . infirmity," id. § 3592(c)(11); and that Rizzo
was murdered "after substantial planning and premeditation," id. §
3592(c)(9). With respect to certain of these factors, Sampson
objects to the lower court's jury instructions. We turn next to his
challenge anent the "vulnerable victim" instructions.
9
In contemplating its instructions to the jury, the district
court appears to have distinguished between applying the reasonable
doubt standard to the decision about whether aggravators outweigh
mitigators and applying the standard to the jury's ultimate
decision on the appropriateness of a capital sentence. See Sampson
IV, 335 F. Supp. 2d at 234-40. We already have held that the
reasonable doubt standard is not required in the weighing of
aggravators against mitigators. See text supra. There is no
challenge on appeal to the correctness of the district court's
application of the reasonable doubt standard to the jury's ultimate
sentencing decision and, in all events, any error in this regard
would have favored Sampson and, thus, would have been harmless.
Consequently, we take no view of the propriety of the distinction
drawn by the district court.
-38-
The FDPA permits the vulnerability of a victim to be used
as an aggravating factor and defines that quality as a showing that
the victim was "particularly vulnerable due to old age, youth, or
infirmity." Id. § 3592(c)(11). In this case, the government
contended that Phillip McCloskey was a vulnerable victim. After
finding the evidence sufficient to support a vulnerable victim
instruction vis-à-vis McCloskey, the district court instructed as
follows:
Question 3B asks whether it's been proven to
each and every one of you beyond a reasonable
doubt that Philip McCloskey was particularly
vulnerable due to infirmity. In essence, the
Federal Death Penalty statute provides that a
defendant is especially blameworthy if he
murders someone who is particularly vulnerable
to being killed because he has an infirmity
which made him less able to escape or resist
attack than most people. In this context, to
be vulnerable means to be subject to being
attacked or injured because of some weakness.
To be particularly vulnerable means to be
especially or significantly vulnerable or to be
vulnerable to a particularly high degree.
An infirmity is a physical or mental weakness
or flaw. To prove this aggravating factor, it
must also be proven beyond a reasonable doubt
to each and every one of you that there was a
connection between Mr. McCloskey's alleged
vulnerability and his death. This means that
any infirmity which you find made Mr. McCloskey
particularly vulnerable must somehow have
contributed to his death. However, the
requirement of a connection between any proven
infirmity and a person's death does not mean
that the prosecution must prove that the
defendant knew of Mr. McCloskey's alleged
vulnerability and targeted him because of it.
Rather, it means that the prosecution must
prove that, once targeted, Mr. McCloskey was
-39-
significantly more vulnerable to being killed
because he had an infirmity.
Sampson alleges that this instruction violated his Eighth
Amendment rights because it did not require the jury to find that he
knew McCloskey was particularly vulnerable due to infirmity and
targeted McCloskey on that account. To support this contention, he
argues that this aggravating factor, absent an element of scienter,
was based on the "mere happenstance" of the victim's infirmity,
Appellant's Br. at 179, and did not adequately narrow the class of
persons eligible for the death penalty. See Arave v. Creech, 507
U.S. 463, 474 (1993).
Sampson's remonstrance notwithstanding, it is clear that
the challenged instruction complies with the FDPA. The statutory
provision describing this aggravating factor does not contain a
scienter element. See 18 U.S.C. § 3592(c)(11). By contrast, other
statutory aggravating factors contain explicit scienter
requirements. See, e.g., id. § 3592(c)(5) (requiring a showing that
"[t]he defendant . . . knowingly created a grave risk of death"); id.
§ 3592(d)(4) (requiring a showing that the defendant either used a
firearm or "knowingly directed . . . another to use a firearm"); id.
§ 3592(d)(8) (requiring a showing that the defendant was aware of the
presence of a potentially lethal adulterant). Because "the
intentional inclusion of a[n] [element] in one part of the statute
persuasively indicates that the exclusion of such a[n] [element] in
another part of the same statute was intentional," Green, 407 F.3d
-40-
at 443, we conclude, without serious question, that Congress did not
intend that application of the vulnerable victim aggravating factor
would depend upon proof of scienter.
Sampson's fallback position is that any version of the
vulnerable victim aggravator that omits a scienter requirement is
unconstitutional. We think not.
The Supreme Court has stated that an aggravating factor
must satisfy two criteria in order to comport with the Eighth
Amendment. First, the statutory language must be clear and specific
enough to furnish guidance to the factfinder. Arave, 507 U.S. at
470-74. Second, the factor must provide a principled basis for
distinguishing between those who deserve capital punishment and those
who do not. Id. at 474. Viewing the FDPA's vulnerable victim factor
through the prism of these requirements, we agree with the Fifth
Circuit's conclusion that the aggravator, even without a scienter
requirement, satisfies both criteria.10 See United States v.
10
One member of the panel joins this conclusion on a limited
basis. Although Judge Lipez concludes that no constitutional error
occurred in this case with respect to use of the vulnerable victim
factor, he has reservations about the use of the factor, without
scienter, as the sole aggravating factor making a defendant
eligible for the death penalty. Given that Sampson was found
eligible in connection with the McCloskey murder based on an
additional factor (that the crime was committed in "an especially
heinous, cruel, or depraved manner") and that the evidence showed
that Sampson must have been aware of McCloskey's infirmities, see
infra Part III(D)(2), the outcome here is consistent with his
views.
-41-
Bourgeois, 423 F.3d 501, 510-11 (5th Cir. 2005), cert. denied, 126
S. Ct. 2020 (2006).
Since vulnerability and infirmity are concepts that are
easily understandable by the average juror, the plain language in
which the factor is couched supplies adequate guidance to jurors and
judges. Cf. Arave, 507 U.S. at 471-72 (concluding that the words
"cold-blooded" and "pitiless" contained adequate content to guide a
capital jury). By the same token, the factor effectively narrows the
class of persons eligible for the death penalty so that not all
victims can be considered particularly vulnerable due to age or
infirmity. See id. at 474 (explaining the importance of such a lack
of universality). This narrowing effect is well-illustrated in the
case at hand by the fact that the government did not charge the
vulnerable victim factor with respect to the Rizzo murder. In the
final analysis, then, the vulnerable victim factor provides adequate
guidance to the jury and effectively circumscribes the class of
defendants to whom it applies. Consequently, we hold that it passes
Eighth Amendment muster.
In an effort to blunt the force of this reasoning, Sampson
asks us to extrapolate from another line of death penalty cases the
additional requirement that an aggravating factor must directly
relate to a defendant's moral culpability (and, thus, his knowledge).
See Tison v. Arizona, 481 U.S. 137, 149 (1987) (explaining that a
criminal sentence must be "directly related to the personal
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culpability of the criminal offender"); Enmund v. Florida, 458 U.S.
782, 801 (1982) (stating that punishment must be must be "tailored
to . . . personal responsibility and moral guilt"). On this basis,
Sampson strives to convince us that the absence of a mental state
requirement in the vulnerable victim factor renders it
unconstitutional.
We are not persuaded. The Enmund Court invalidated, as
violative of the Eighth Amendment, the death sentence of a getaway-
car driver who, although participating in an armed robbery, did not
intend that lethal force be used. 458 U.S. at 801. The Court
reasoned that the punishment was disproportionate to the conduct and,
thus, violated the Eighth Amendment. Id. at 797-98.
In Tison, however, the Court held that death is not a
disproportionate sentence for a defendant who, while not intending
to kill his victims, is a major player in the underlying felony and
demonstrates a reckless indifference to human life. 481 U.S. at 157-
58. If the death penalty is not disproportionate for this type of
defendant, it follows inexorably that the death penalty is not
disproportionate for Sampson — a defendant who (the jury found)
intentionally murdered his victims.
In all events, neither Tison nor Enmund was concerned with
the evaluation of a specific aggravating factor. The implausibility
of Sampson's attempted application of these cases to an aggravating
factor is underscored by the fact that the Supreme Court implicitly
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has approved the use of other aggravating factors not directly
related to a capital defendant's mental state at the time of the
crime. See, e.g., Zant, 462 U.S. at 879 (recognizing the validity
of aggravating factors such as escape from confinement and prior
felony conviction). We therefore reject Sampson's claim that the
vulnerable victim factor, as limned by Congress and construed by the
district court, is unconstitutional.
3. Especially Heinous, Cruel, or Depraved Conduct. In
addition to McCloskey's vulnerability, the jury found beyond a
reasonable doubt that both the Rizzo and McCloskey murders were
committed in an especially heinous, cruel, or depraved manner. See
18 U.S.C. § 3592(c)(6). With respect to this statutory aggravating
factor, the district court instructed as follows:
As I told you earlier, as a matter of law,
premeditated murder alone is not sufficient to
make the death penalty a sentencing option.
Something more is required. More specifically,
one of those "something mores" with regard to
murder is that a murder must be committed in an
especially heinous, cruel, or depraved manner.
However, a person of ordinary sensibility could
fairly characterize almost every murder as
heinous, cruel, or depraved, the Supreme Court
has said. Therefore, something additional must
be proven to make this a truly limiting factor
and to assure reasonable consistency between
cases. In this case, the law provides that the
killing can only be especially heinous, cruel,
or depraved if it involved serious physical
abuse . . . . In this case, "especially" has
its usual meaning of highly or unusually great.
Each of the other relevant terms has a defined
meaning for the purposes of the Federal Death
Penalty statute. I'll now explain those
meanings to you.
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"Heinous" means shockingly atrocious. In this
case, a killing may be found to be especially
heinous only as a result of any serious
physical abuse that's proven.
"Cruel" means the defendant intended to inflict
a high degree of pain. In this case, a killing
may be found to be especially cruel only as a
result of any serious physical abuse that is
proven.
"Depraved" means that the defendant relished
the killing or showed indifference to the
suffering of the victim. Once again, in this
case, a killing may be found to be especially
depraved only as a result of any serious
physical abuse that is proven.
"Serious physical abuse" has a particular legal
meaning for the purpose of this case. To prove
that the killing . . . involved serious
physical abuse, the government must prove that
Mr. Sampson intended to inflict significant
damage to [the deceased's] body beyond what Mr.
Sampson thought was necessary to kill him. In
essence, the government must prove that Mr.
Sampson intended to do more than kill [the
deceased]. It must prove that he also intended
to abuse his body above and beyond what was
necessary to kill him. Serious physical abuse
can be inflicted either before or after death.
The victim does not have to be alive at the
time the serious physical abuse is inflicted.
Question 3A requires two steps. First, you
must determine whether it has been proven
beyond a reasonable doubt that the killing . .
. involved serious physical abuse, as I just
defined it for you. If you do not agree
unanimously that this has been proven, you must
answer question 3A no and proceed to question
3B. If you do agree unanimously that serious
physical abuse has been proven, you must
continue to the next step. In the second step,
you must decide whether that serious physical
abuse proves that the crime was committed in an
especially heinous, an especially cruel, or
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especially depraved manner, as I defined those
terms for you before.
You may not consider any aspect of the crime
other than proven serious physical abuse in
determining whether the killing was especially
heinous, especially cruel, or especially
depraved. However, just because an offense
involves serious physical abuse does not
necessarily mean that it was committed in an
especially heinous, cruel, or depraved manner.
Rather, you must decide whether any proven
serious physical abuse rendered the killing
especially heinous, especially cruel, or
especially depraved.
Sampson challenges this instruction on two primary
grounds. First, noting that a defendant generally is entitled to a
requested instruction on his theory of the case as long as that
theory is supported by the evidence and the proffered instruction
correctly states the law, see United States v. Victoria-Peguero, 920
F.2d 77, 86 (1st Cir. 1990), he argues that the court's words here
did not adequately communicate, as he requested, that "if the jury
found that Mr. Sampson quickly inflicted a series of stab wounds
intending . . . to kill his victims," that behavior would not meet
the "especially heinous, cruel, or depraved" criterion. Appellant's
Br. at 116-17. Second, Sampson posits that the "especially heinous,
cruel, or depraved" factor is unconstitutionally vague. We consider
these challenges one by one.
We need not linger long over the first challenge. The old
saw that a defendant is entitled to an instruction on his theory of
the case is hedged in by several qualifications. One such
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qualification is that a court "need not give instructions in the
precise form or language requested by the defendant." United States
v. Beltran, 761 F.2d 1, 11 (1st Cir. 1985). An instruction suffices
as long as it substantially covers the essence of the defendant's
request. United States v. Noone, 913 F.2d 20, 30 (1st Cir. 1990);
United States v. Morris, 700 F.2d 427, 433 (1st Cir. 1983).
Here, assuming Sampson was entitled to his request, see
infra note 11, the district court's instruction conveyed its essence.
The court repeatedly emphasized that the jury had to find serious
physical abuse, which the court defined as "significant damage to
[the deceased's] body beyond what Mr. Sampson thought was necessary
to kill him" (emphasis supplied), as a condition to finding
especially heinous, cruel, or depraved behavior. The court went on
to clarify that the government had to prove that Sampson intended to
do more than kill; it also had to prove that he "intended to abuse
[the deceased's] body above and beyond what was necessary to kill
him." We believe that this instruction accommodates Sampson's theory
that if he inflicted a series of stab wounds "intending . . . to
kill," that alone would not establish especially heinous, cruel, or
depraved behavior. Like the instruction in Noone, 913 F.2d at 31,
the instruction here provided an "appropriate legal framework for
jury consideration of [the defendant's] contention." Hence, the
court did not err in refusing to parrot Sampson's preferred wording
in its jury instructions.
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Sampson's claim of unconstitutional vagueness also
falters. As discussed above, an aggravating factor must provide
adequate guidance to the sentencer. See Arave, 507 U.S. at 470-74.
This requirement is satisfied when the factor, as expressed,
furnishes a commonsense core of meaning that a factfinder can
understand. See Jones, 527 U.S. at 400 (plurality opinion);
Tuilaepa, 512 U.S. at 973. The delineation of an aggravator is a
legislative judgment, see Tuilaepa, 512 U.S. at 974, and judicial
review of such judgments is "quite deferential." Id. at 973.
This does not mean, of course, that a reviewing court's
role is reduced to that of a rubber stamp. The Supreme Court has
found that factors similar to the "especially heinous, cruel, or
depraved" factor can present vagueness concerns. See, e.g., Maynard
v. Cartwright, 486 U.S. 356, 363-65 (1988) (analyzing Oklahoma's
"especially heinous, atrocious or cruel" aggravator); Godfrey v.
Georgia, 446 U.S. 420, 428-29 (1980) (evaluating Georgia's
"outrageously or wantonly vile, horrible and inhuman" aggravator).
But such concerns can be ameliorated by a narrowing construction.
See Maynard, 486 U.S. at 365; Godfrey, 446 U.S. at 429-32. Applying
this framework, we agree with other courts of appeals that have found
the FDPA's "especially heinous, cruel, or depraved" factor not
unconstitutionally vague when coupled with the type of limiting
instruction given by the court below. See, e.g., Bourgeois, 423 F.3d
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at 511; United States v. Chanthadara, 230 F.3d 1237, 1262 (10th Cir.
2000); United States v. Paul, 217 F.3d 989, 1001 (8th Cir. 2000).
This factor avoids facial vagueness by requiring that the
offense involve serious physical abuse or torture. See Maynard, 486
U.S. at 364-65 (approving this narrowing construction). Here,
moreover, the district court carefully defined each of the relevant
terms — heinous, cruel, depraved, and serious physical abuse — in a
manner that was easily understood and that afforded the jurors a
commonsense core of meaning. See Walton, 497 U.S. at 653 (deeming
such an effort "constitutionally significant"). The narrowing
accomplished by the statutory inclusion of the serious physical abuse
component, especially when combined with the district court's
thorough instructions, leaves no room to doubt the factor's
constitutionality.11
Sampson cites a plethora of state court cases in which
variants of the "especially heinous, cruel, or depraved" factor have
been used. See, e.g., State v. Culberth, 390 So. 2d 847, 851 (La.
1980); Domingues v. State, 917 P.2d 1364, 1377-78 (Nev. 1996); State
v. Hunt, 558 A.2d 1259, 1289-90 (N.J. 1989). These decisions do not
dictate a result favorable to Sampson in this case. While they
11
While the district court's instruction unquestionably
provided the constitutionally-mandated narrowing, we do not hold
that the limiting construction here is the only one that would be
constitutionally permissible. We leave open the question of
whether a broader definition of serious physical abuse might still
pass constitutional muster.
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illustrate the application of the legal theory discussed above — that
the enhancement requires proof of more than the harm inherent in
killing — and demonstrate the individualized evaluation that is
critical to the constitutional imposition of the death penalty, they
tell us little else.
Relatedly, Sampson argues for the first time on appeal
that, by defining each of the component terms — heinous, cruel, and
depraved — in relation to serious physical abuse, the district court
conflated the factors in a way that might have caused jury confusion.
In an apparent effort to show that such an error would not be
harmless, he offers a number of articles suggesting that capital
jurors often erroneously believe that death is mandatory once an
aggravating factor is found. Because this claim was not preserved
below, we review it for plain error. See Jones, 527 U.S. at 388-89.
The FDPA requires that the adjectives "heinous," "cruel,"
and "depraved" all be defined in terms of serious physical abuse or
torture. See 18 U.S.C. § 3592(c)(6). The district court found
torture inapposite here and instructed the jury accordingly. It
proceeded to define each adjective distinctly, in easily
understandable terms, in relation to serious physical abuse.
We do not see how painstakingly defining each term as
dictated by the applicable statute could conceivably serve to muddle
carefully crafted instructions. To cinch matters, the lower court
clearly outlined the process by which the jury was to determine the
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appropriate sentence. Jurors are normally presumed to follow the
trial court's instructions. See Jones, 527 U.S. at 394. We discern
no basis for disregarding that presumption here. Accordingly, there
was no harmful error in regard to this instruction.
B. Juror Issues.
Sampson complains about the dismissal for cause of six
jurors and about the district court's allegedly improvident refusal
to dismiss a seventh juror mid-trial. In each instance, he claims
a violation of his constitutional right to an impartial jury. We
address these plaints separately.
1. Dismissals for Cause. Sampson assails the district
court's dismissal of six prospective jurors who expressed
reservations about imposing the death penalty. The baseline rule is
that a court appropriately may excuse a juror for his views on
capital punishment if those views "would prevent or substantially
impair the performance of his duties as a juror in accordance with
his instructions and his oath." Adams v. Texas, 448 U.S. 38, 45
(1980). We normally review a trial court's for-cause dismissal of
a juror for abuse of discretion. See United States v. Gonzalez-
Soberal, 109 F.3d 64, 69-70 (1st Cir. 1997). This standard of review
applies equally in capital cases. See Wainwright v. Witt, 469 U.S.
412, 426 (1985) (noting that "deference must be paid to the trial
judge who sees and hears the juror"); see also Purkey, 428 F.3d at
750.
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Here, the record amply supports the district court's
conclusion that the six dismissed jurors would have been
substantially impaired in the performance of their duties. In
reaching this conclusion, we first examine the circumstances
surrounding three of the six dismissals and then turn to the
remaining three dismissals.
The court had prospective jurors complete questionnaires
in which the jurors, among other things, self-assessed their views
about the death penalty on a scale of 1 to 10 (with "1" meaning
"strongly favor" and "10" meaning "strongly oppose"). Three of the
six jurors whom we are considering (Jurors 19, 77, and 205) ranked
himself/herself as a "9." Another section of the questionnaire asked
responders to choose the statement that best represented their views;
Jurors 19 and 77 selected "I am opposed to the death penalty, and I
would have a difficult time voting to impose it." Juror 205
indicated even stronger opposition, stating that he "struggle[d] to
imagine a situation where [he] would vote to impose it."
To be sure, even "those who firmly believe that the death
penalty is unjust may nevertheless serve as jurors in capital cases."
Lockhart v. McCree, 476 U.S. 162, 176 (1986). But that license is
not unqualified: the ability of such jurors to serve depends upon
whether they are able to subrogate their own beliefs to the need to
follow the court's instructions. See id. In this instance, the
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district court found that none of the three jurors could satisfy that
criterion. We test the court's reasoning.
After the court inquired whether she automatically would
vote against the death penalty, Juror 19 stated: "I can't think of
what the government would prove that would make me change my opinion
on the death penalty." The court then reasonably concluded, upon
observing the prospective juror's demeanor when she made that
assertion, that her views would substantially impair her ability to
perform her duties.
Juror 77 stated during voir dire that he did not "really
believe that [the death penalty was] the appropriate sentence for
anybody." This declaration left the court with the "definite
impression" that although Juror 77 would "earnestly try to follow the
law," he would be substantially impaired in his ability to do so.
That determination was within the realm of the court's discretion.
So too the court's dismissal of Juror 205 for cause. That
juror stated during voir dire that he did not know whether he could
perform the duties required of a juror in a capital case. He added
that he would have trouble following the law if it differed from his
personal views. Given his responses to the questionnaire, no more
was required to justify dismissal for cause.
The other three dismissed jurors all recounted personal
circumstances that led the court to decide against compelling them
to serve as jurors in a capital case. Juror 119's questionnaire
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revealed that he was a Catholic and a lay member of the Franciscan
order, and that both organizations were opposed to the death penalty.
Although he stated that he would not feel obliged to vote against the
death penalty on the basis of his religion, he acknowledged that
voting for the death penalty would put him "in extremely hot water
with the church" and that he could "get kicked out" of the Franciscan
order.
Jurors 14 and 28 revealed that they had close relatives
with psychological problems and uttered repeated statements
indicating that they would be unable fairly to consider and weigh
evidence of Sampson's mental condition. For example, Juror 14 stated
that she did not know whether she could balance evidence that Sampson
had a severe emotional disturbance with other facts in deciding
whether to impose a death sentence, and that she was "very concerned"
about her ability to put her personal concerns aside. Juror 28's
questionnaire indicated that she could not find execution justified
for a mentally ill person regardless of the facts. During voir dire,
she reaffirmed that she did not think that she could impose the death
penalty were she to conclude that Sampson suffered from a serious
mental disturbance.
There is no precise formula to guide judges in juror-
qualification matters. Particularly near the margins, on-the-spot
judgment plays an important part in screening out those whose ability
to serve may be compromised. In each of the three instances we have
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just chronicled, the district court determined that the juror's
personal circumstances were such as to substantially impair his or
her ability to serve impartially in a capital case. Each of these
instances presented a judgment call. They are, therefore,
paradigmatic examples of a trial court's exercise of informed
discretion. In no instance do we discern an abuse of that
discretion.
While Sampson points out that each of these jurors may
have indicated some degree of willingness to put aside personal
biases, this fragmentary evidence is insufficient to support a
finding that the trial court abused its discretion. See Witt, 469
U.S. at 425-26 ("Despite . . . lack of clarity in the printed record,
. . . there will be situations where the trial judge is left with the
definite impression that a prospective juror would be unable to
faithfully and impartially apply the law."). Given the relevant body
of evidence, we decline to second-guess the district court's first-
hand impressions. Accordingly, Sampson's assignment of error fails.
2. Juror Misconduct. We come now to Sampson's claim that
the district court incorrectly allowed Juror 109 to remain on the
panel despite an admitted interaction with a government witness
during the trial. The pertinent facts are as follows.
On Friday, December 12, 2003, a government expert witness,
Dr. Michael Werner, departed the courthouse after completing his
testimony. As he was leaving, Juror 109 complimented him on his
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memory. Dr. Werner did not respond but, rather, reported the
interaction to the prosecutor. The prosecutor, in turn, informed
defense counsel and the district court.
When trial resumed on Monday, Sampson moved to disqualify
the juror. The court held an individual voir dire, questioned the
juror about the details of the interaction, and then queried the
remaining jurors (individually) to determine any potential spillover
effect. Satisfied that the interaction had been both brief and non-
substantive and that Juror 109 remained impartial, the court denied
Sampson's motion. Sampson contests this ruling, arguing that
allowing the juror to remain offended his Fifth and Sixth Amendment
rights to due process and an impartial jury.
Ex parte communications between a juror and a witness
during trial are presumptively prejudicial, and the trial court is
required to undertake an adequate inquiry to determine their
potential impact. See United States v. Gastón-Brito, 64 F.3d 11, 13
(1st Cir. 1995). Because the district court is "likely to have a
superior 'feel' for the nuances of the case," we grant it significant
latitude with respect to the scope and manner of its inquiry. United
States v. Paniagua-Ramos, 251 F.3d 242, 250 (1st Cir. 2001).
Consequently, we review both the district court's handling of such
allegations and its ensuing determinations for abuse of discretion.
See id. at 249.
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Here, we find no indication that the court misused its
discretion. The communication in question was terse, fortuitous, and
devoid of substantive content. We have attached significance before
to the fact that a juror's casual ex parte communication did not
concern the substance of the case, see, e.g., United States v.
Angiulo, 897 F.2d 1169, 1185 (1st Cir. 1990), and we think it is
appropriate to continue to follow that praxis.
Here, moreover, the district court's inquiry was virtually
a textbook model. The court's response was swift, its questioning
pointed, and its search for any inkling of prejudice thorough. After
making a face-to-face assessment of the juror's sincerity and of the
possibility that other jurors had been contaminated, the court
concluded that the interaction was harmless. That conclusion may not
have been inevitable, but it plainly was not an abuse of discretion.
C. Evidentiary Rulings.
Sampson disputes a number of evidentiary rulings. We
review adequately preserved objections to rulings admitting or
excluding evidence for abuse of discretion. See United States v.
Gobbi, 471 F.3d 302, 311 (1st Cir. 2006). If the admission or
exclusion of a piece of evidence occurs as a result of an error of
law, that is a per se abuse of discretion. See Rosario-Urdaz v.
Rivera-Hernandez, 350 F.3d 219, 221 (1st Cir. 2003); United States
v. Snyder, 136 F.3d 65, 67 (1st Cir. 1998).
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Where evidence is challenged on the ground that the trial
court has struck the wrong balance between probative value and
prejudicial effect, we accord great deference to the trier's first-
hand knowledge of the case and ordinarily will sustain the district
court's exercise of discretion unless its judgment is plainly
incorrect. United States v. Adams, 375 F.3d 108, 111 (1st Cir.
2004). Only unfair prejudice enters into this decisional calculus;
"[t]he fact that a piece of evidence hurts a party's chances does not
mean it should automatically be excluded." Onujiogu v. United
States, 817 F.2d 3, 6 (1st Cir. 1987). In all instances, harmless
error principles apply. And, finally, to the extent that a claim of
evidentiary error has not been preserved — that is, when no timely
and pointed objection was advanced below — our review is only for
plain error. See United States v. Flemmi, 402 F.3d 79, 86 (1st Cir.
2005).
With this framework in place, we turn to Sampson's
specific claims of error.
1. Crime Scene/Autopsy Evidence. Sampson challenges the
admission of certain crime scene and autopsy photographs and related
physical evidence pertaining to the McCloskey and Rizzo murders. The
first aspect of this challenge suggests that the district court
misapprehended the evidentiary standard prescribed by the FDPA for
sentencing hearings and that, under a correct interpretation, the
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evidence in question should have been excluded. This suggestion is
unrewarding.
The FDPA provides that, during a penalty-phase trial,
"information may be excluded if its probative value is outweighed by
the danger of creating unfair prejudice, confusing the issues, or
misleading the jury." 18 U.S.C. § 3593(c). This language is
similar, but not identical, to the language of Federal Rule of
Evidence 403.12 A direct comparison reveals two salient differences.
First, Rule 403 requires that probative value be substantially
outweighed by the danger of unfair prejudice before evidence may be
excluded, whereas the FDPA omits this substantiality requirement and
directs that exclusion may result if the scales tip, even slightly,
in favor of unfair prejudice. Second, the FDPA makes no express
mention of the factors of undue delay, waste of time, and
cumulativeness as grounds for exclusion.
The district court enunciated these differences in passing
upon the challenged evidence. Seizing on this express reference,
Sampson contends that the court failed to appreciate that
cumulativeness nevertheless can be prejudicial or, at least,
undervalued cumulativeness in its decisional calculus.
12
Rule 403 provides in pertinent part that "evidence may be
excluded if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading
the jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence."
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We begin with bedrock: the trial court, in a capital
sentencing proceeding, remains free to consider cumulativeness in
assessing evidentiary proffers. Cf. United States v. Barnette, 211
F.3d 803, 818-19 (4th Cir. 2000) (considering quantity of victim
impact evidence presented in determining whether defendant's due
process rights were violated). But Sampson's contention is
incorrect. The record makes manifest that the district court
considered the possible prejudicial effects of cumulativeness when
ruling on Sampson's evidentiary objections. There is simply no other
way to explain why the court excluded a number of photographs that
it thought "cumulative," "redundant," "duplicat[ive]," or
"repetitive." We thus discern no error in the court's understanding
of the FDPA's evidentiary standard.
A question remains as to whether the district court's
decisions that the exhibits possessed probative value outweighing any
associated bias were adequately supported by the record. We answer
that question affirmatively. The McCloskey and Rizzo crime scene
photographs and the sock used as a gag in the Rizzo murder were
significantly probative of material issues; they corroborated and
clarified testimony regarding the discovery of the bodies and the
gathering of evidence. Similarly, the autopsy photographs shed light
on the manner in which each victim was killed (an important integer
in the jury's determination of whether the murders were committed in
an especially heinous, cruel, or depraved manner).
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Sampson stresses that the government had other means of
making these points, such as by using medical examiner testimony or
diagrams. It is, however, axiomatic that "the evidentiary account
of what a defendant has thought and done can accomplish what no set
of abstract statements ever could, not just to prove a fact but to
establish its human significance." Old Chief v. United States, 519
U.S. 172, 187-88 (1997). Thus, within reasonable limits, the
prosecution — even in a capital case — is entitled to present its
case through the evidence it deems most appropriate. See id. Those
limits were not exceeded here.
Sampson also complains that decomposition is visible in
some of the photographs. While this feature obviously must be taken
into account in calibrating the balance of probative value and
unfairly prejudicial effect, the record makes clear that the district
court gave due weight to it. Indeed, the court admitted only those
photographs that "most closely depicted the condition of the victims
at the time [of the killings]." Sampson IV, 335 F. Supp. 2d at 183.
The upshot is that the district court's handling of
gruesomeness concerns, like its handling of the crime scene and
autopsy evidence generally, demonstrated a thoughtful consideration
of potential prejudice. The court excluded much evidence, redacted
other evidence, gave appropriate limiting instructions, and saw to
it that admitted photographs were displayed circumspectly to the
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jury. We are left without any principled basis for finding that the
court abused its discretion in regard to this evidence.13
2. The Whitney Murder. Sampson argues that the district
court erred in admitting evidence of the circumstances surrounding
the Whitney murder. Although he concedes that evidence of the
murder itself was admissible as a non-statutory aggravating factor,14
he contends that evidence about the details of the crime (which
included photographs, taped confessions, and testimony from crime
scene investigators and the medical examiner) was not really
relevant and, in all events, had a high potential for unfair
prejudice.
We find no abuse of discretion in the admission of the
Whitney evidence. The FDPA broadly provides that "[t]he government
may present any information relevant to an aggravating factor for
which notice has been provided." Id. Here, the government gave
adequate notice that it would introduce evidence of the Whitney
murder as a non-statutory aggravator, and the district court found
13
Although several of the photographs to which Sampson now
objects were not challenged in the district court, we need not
filter them through the plain error screen. It suffices to say
that there was no abuse of discretion in the district court's
admission of these photographs.
14
The term "non-statutory aggravating factor" is used to "refer
to any aggravating factor that is not specifically described in 18
U.S.C. § 3592." Jones, 527 U.S. at 377 n.2. While only the
finding of a statutory aggravating factor can render a defendant
death-eligible, the jury may consider non-statutory aggravating
factors in deciding whether a sentence of death is appropriate.
See 18 U.S.C. § 3593(c)-(e).
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that the evidence actually admitted would help the jury to determine
how much weight it should give this factor in its sentencing
calculus. The evidence made the murder more real, demonstrated the
evolution of Sampson's methods, and served to rebut his claims of
mental impairment and remorse.
Sampson's counter — that the prosecution could have
established the details of the Whitney murder through his confession
alone — is unavailing. After all, the prosecution is entitled to
considerable latitude in deciding how to present its case. See Old
Chief, 519 U.S. at 187-88. Here, moreover, the district court was
assiduous in its efforts to prevent unfair prejudice; for example,
it excluded all the Whitney victim impact evidence and many of the
proffered photographs. It also instructed the jury about the proper
role of the evidence admitted. Taking everything into account, we
find the district court's judgments with respect to the Whitney
evidence to be well within the encincture of its discretion.
3. Other Prosecutions. Among the compendium of
mitigating factors presented to the jury, Sampson proposed to prove
that numerous other federal defendants convicted of multiple murders
had not been sentenced to death. In support of this mitigating
factor, he sought to introduce verdict sheets and descriptive
material relating to 71 other federal capital cases. The government
opposed the admission of this evidence, arguing that it was
irrelevant as it did not bear either on Sampson's character or
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record or on the circumstances of the offenses at issue. See 18
U.S.C. § 3592(a)(8). Sampson trimmed the number of proposed
comparators to 47, and the district court determined that the
evidence was arguably relevant in mitigation. The court then ruled,
however, that the evidence's probative value was outweighed by the
likelihood of juror confusion. On appeal, Sampson contests the
exclusion of this evidence.
Sampson maintains, albeit in very general terms, that this
evidence was relevant and that, under Tennard v. Dretke, 542 U.S.
274, 284-85 (2004), a trial court may not restrict the presentation
of relevant evidence offered in mitigation of a possible death
sentence. This argument cannot be literally true; if it were, a
capital defendant would have an unrestricted license to introduce
the most confusing or misleading evidence as long as it was
marginally relevant. We reject so absolutist a view. See Purkey,
428 F.3d at 756 (explaining that the FDPA's low barriers to
admission of evidence in a capital sentencing hearing "do[] not mean
that the defense has carte blanche to introduce any and all evidence
that it wishes"); cf. Oregon v. Guzek, 126 S. Ct. 1226, 1232 (2006)
(commenting that "the Eighth Amendment does not deprive [states] of
[their] authority to set reasonable limits upon the evidence a
defendant can submit").
This does not end the matter, however, for it seems
appropriate to construe Sampson's argument as an argument that the
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district court erred in balancing probative value against likelihood
of juror confusion. Framing the issue in that manner brings the
district court's reasoning into sharp focus. The court explained
that it had found numerous omissions and inaccuracies in the case
summaries that Sampson proffered and that these defects greatly
diminished their probative worth. The court also found that the
quantity of evidence involved would saturate the record with largely
extraneous material and create a grave risk of juror confusion. The
court noted:
In order to determine which of the many other
cases are sufficiently similar to this case to
bear on the question of proportionality, the
jury would have had to hear a large amount of
evidence. In effect, the court would have had
to conduct many mini-trials of other FDPA cases,
since a jury would be unable to perform
meaningful proportionality review based on brief
summaries of other cases. Rather, in order to
fully appreciate the verdicts reached in those
cases, jurors in this case would have had to
hear substantial testimony regarding the crime
and the defendant in the other cases. The
amount of time that would have had to be spent
educating jurors regarding all other FDPA cases
in a non-prejudicial manner, which could have
been measured in weeks or months, as compared to
the amount of time spent on the mitigation case
as a whole, likely would have diverted the
jury's focus from the facts relating to Sampson
and his crimes.
Sampson IV, 335 F. Supp. 2d at 196.
On this chiaroscuro record, we are not disposed to
substitute our judgment for that of the district court. Having
supportably found that the evidence was of limited probative value
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and that its introduction would create a high risk of juror
confusion, the district court had ample reason to exclude it. See
18 U.S.C. § 3593(c).15
4. Bank Robberies. Next, Sampson contends that the
district court erred in (i) admitting evidence of the five
antecedent bank robberies that he committed in North Carolina and
(ii) submitting four of them to the jury as potential non-statutory
aggravating factors.16 He asserts that the bank robberies satisfy
neither the requirement that an aggravating factor "genuinely narrow
the class of persons eligible for the death penalty," Zant, 462 U.S.
at 877, nor the requirement that an aggravating factor rationally
distinguish "those who deserve capital punishment from those who do
not," Arave, 507 U.S. at 474.
These assertions are meritless. Under the district
court's instructions, four of the bank robberies served as potential
non-statutory aggravating factors — that is, as aggravating factors
to be considered by the jury only after it found at least one
statutory aggravating factor to be present in the case. See 18
15
This determination renders it unnecessary for us to address
the government's alternate argument that this evidence did not in
any event qualify as mitigating evidence.
16
Based on testimony that Sampson did not have a weapon during
one of the robberies, the district court ultimately submitted only
four of the robberies to the jury as potential aggravators.
Sampson makes no specific complaint about the singular handling of
the fifth (unarmed) robbery, which the court instructed the jury to
disregard.
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U.S.C. § 3593(e). A non-statutory aggravating factor need only
"direct the jury to the individual circumstances of the case."
Jones, 527 U.S. at 402 (plurality opinion); see also Tuilaepa, 512
U.S. at 972 (noting "a separate requirement for the selection
decision, where the sentencer determines whether a defendant
eligible for the death penalty should in fact receive that
sentence"). So long as it meets this requirement, a non-statutory
aggravating factor ordinarily will pass constitutional muster. See
Jones, 527 U.S. at 401-02 (plurality opinion).
The four bank robberies pass muster under this standard.
The government introduced evidence of the heists to demonstrate
Sampson's escalating criminality immediately prior to the string of
murders that he committed. Because not every capital defendant will
have exhibited such a pattern, this evidence necessarily directed
the jurors to the individualized circumstances of Sampson's case.
Cf. id. at 402 (finding victim impact and victim vulnerability
acceptable as non-statutory factors because they were "inherently
individualized"). Consequently, we hold that the district court did
not abuse its discretion either in admitting evidence anent the bank
robberies or in authorizing the jury to consider four of those
robberies as potential non-statutory aggravating factors.
5. Spectator Reactions. Sampson's final evidentiary
challenge is non-traditional in nature. It does not relate to the
admission or exclusion of evidence per se but, rather, to the
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district court's denial of his motion for a mistrial based on the
reactions of individuals in the gallery (particularly the victims'
families) to certain items of evidence.
This argument is a difficult one to make. For one thing,
victim-impact evidence, although inflammatory by nature, is
generally admissible in the sentencing phase of a capital case. See
Payne v. Tennessee, 501 U.S. 808, 827 (1991). For another thing,
Congress has embedded the right of victims' families to attend an
accused murderer's trial in federal law. See 18 U.S.C. § 3510(b);
42 U.S.C. § 10607(e)(2)(B).
Despite these obvious obstacles, Sampson asserts that, in
this case, the victims' families' ongoing reactions to the evidence
presented were unfairly prejudicial. He moved for a mistrial on
this ground, but the district court rebuffed his entreaty. He
renews the argument in this venue.
We review the denial of a motion for a mistrial under an
abuse of discretion rubric. United States v. Flecha-Maldonado, 373
F.3d 170, 177 (1st Cir. 2004). In administering that standard, we
keep in mind that "[a] mistrial is a last resort that is only
ordered if the demonstrated harm cannot be cured by less drastic
means." United States v. De Jesus Mateo, 373 F.3d 70, 72 (1st Cir.
2004).
In this case, the district court exhibited great
sensitivity to the volatility of the issues and took a number of
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steps to minimize the risk of unfair prejudice from the gallery's
reactions. The court carefully instructed the jurors at the
beginning of the trial that they were to decide the case based on
the evidence; it cautioned that "anything you see or hear or read,
even, outside of the bar that divides the lawyers and you from the
public is not evidence." The court repeated this warning when the
defense raised concerns about a particular juror who appeared to be
watching the gallery intently, and added that the jurors "should
stay focused on what's occurring inside the rail and not on the
outside of the rail."
Jurors are presumed to follow instructions. See id. at
73; see also United States v. Benedetti, 433 F.3d 111, 118 (1st Cir.
2005) (according substantial weight to such prophylactic
instructions in evidentiary claims of unfair prejudice). The
district court questioned each juror individually in response to the
defense's concerns, dismissing one juror based on his replies. The
court expressed "great confidence" in the rest of the jurors after
thorough questioning.
The court also took a variety of other prudential
measures. For example, it requested that the Rizzo family members
relocate within the courtroom when a suspicion arose that they were
seated in too prominent a place and that their seating might
influence the jury. (Indeed, the Rizzos were relocated to an
overflow room when particularly disturbing evidence was presented.)
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We need not tarry. Although this was an emotion-laden
trial, the district court appears to have gone the extra mile to
ensure that the jury remained focused on the evidence and free from
extraneous influences. Given the measures that the district court
prudently took to prevent unfair prejudice, we discern no basis for
a claim that the court abused its discretion in denying Sampson's
motion for a mistrial.17
D. Sufficiency of the Evidence.
In addition to his specific evidentiary challenges,
Sampson makes an overall claim that the evidence was insufficient to
support the jury's finding of certain aggravating factors. We
evaluate sufficiency challenges de novo, determining whether a
rational juror could have found the disputed facts beyond a
reasonable doubt. See United States v. Soler, 275 F.3d 146, 153
(1st Cir. 2002). In making this determination, we consider the
evidence in the light most favorable to the verdict, giving the
prevailing party (here, the government) the benefit of all
17
Sampson's invocation, by way of Federal Rule of Appellate
Procedure 28(j), of the concurrences in Carey v. Musladin, 127 S.
Ct. 649, 654-58 (2006) (Stevens, Kennedy, and Souter, JJ.,
concurring), does not alter our analysis. He cites the statements
contained therein as indicia of the Supreme Court's concerns over
the potential for improper influence represented by the conduct of
spectators. However, these concurrences focus on the impact that
affirmative demonstrations by spectators (there, the wearing of
buttons by spectators that featured an image of the victim) may
have during the guilt phase of a trial. The claim here is of a
materially different character: the families' reactions to
Sampson's crimes are a natural by-product of relevant evidence
properly introduced during the sentencing phase.
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reasonable inferences and resolving credibility questions in its
favor. See United States v. Lara, 181 F.3d 183, 200 (1st Cir.
1999).
Sampson suggests that we should review the sufficiency of
the evidence of especially heinous, cruel, or depraved conduct
through a less deferential glass. This suggestion derives from the
principle that review of this aggravator ordinarily calls for
assaying the evidence in light of a narrowing construction. See
Bell v. Cone, 543 U.S. 447, 453-57 (2005).
Sampson's suggestion dislodges the principle from its
contextual underpinnings. In the case at bar, this aggravating
factor was adequately narrowed by the district court's jury
instructions, see supra Part III(A)(3), which incorporated the
FDPA's "serious physical abuse" language. We therefore reject
Sampson's attempted tweaking of the standard of review and turn to
his specific challenges.
1. Especially Heinous, Cruel, or Depraved Conduct.
Sampson notes that some of his post-arrest statements demonstrate an
intent to kill his victims rapidly and that portions of the medical
examiner testimony corroborate this intent. Building on that
foundation, he contends that a rational juror could not have found
that he inflicted "serious physical abuse" on McCloskey and Rizzo
beyond what was necessary to end their lives. On this basis, he
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posits that the especially heinous, cruel, or depraved aggravating
factor was not supported by the evidence.
This view of the record completely disregards the
substantiality of the evidence supporting the jury's finding. With
respect to McCloskey, Sampson inflicted no fewer than 24 separate
stab wounds. In describing the slaying, he stated in a confession
that he "didn't want to stop." He also admitted that he slit
McCloskey's throat after McCloskey said that he was dying. This
evidence easily supported a reasonable inference that Sampson
intended to — and did — inflict serious physical abuse, well beyond
what was necessary to kill McCloskey. Although Sampson adverts to
some evidence from which the jury might have reached a different
conclusion (for example, his insistence to the police that McCloskey
"didn't suffer"), the jurors had both the right and the obligation
to weigh all the evidence, judge the sources' veracity, and
determine its significance. See United States v. Ortiz, 966 F.2d
707, 713 (1st Cir. 1992). As long as "the jury's decipherment of
the record represented a plausible choice among reasonable
alternatives," it is deserving of respect. Id.
So, too, the jury's finding of especially heinous, cruel,
or depraved conduct in relation to the Rizzo murder. Sampson first
immobilized Rizzo by tying him to a tree. Although he had learned
through his experience with McCloskey that slitting a victim's
throat would kill swiftly, he nevertheless inflicted 15 stab wounds
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on Rizzo (several of which were themselves potentially fatal). At
some point during the repetitive stabbing, he cut his victim's
throat, severing the jugular vein and trachea. We think that this
evidence, viewed in the light most favorable to the verdict,
unarguably sustains a conclusion that Sampson perpetrated serious
physical abuse (and thus, could be found guilty of especially
heinous, cruel, or depraved conduct). See United States v.
Hernández, 218 F.3d 58, 66 n.5 (1st Cir. 2000) (explaining that it
is not an appellate court's role "to resolve conflicts in the
evidence").
2. Vulnerability. Sampson next argues that the evidence
does not support the jury's characterization of McCloskey as a
particularly vulnerable victim because of the absence of any nexus
between McCloskey's vulnerability and his death. This claim is
unconvincing.
McCloskey's son-in-law testified that McCloskey had
undergone open-heart surgery (a quintuple bypass) approximately one
year prior to his encounter with Sampson; that he was overweight and
became short of breath easily; and that he had difficulty walking
fifteen feet shortly before his murder. Sampson's admission that he
had to help McCloskey up a hill to the site of the slaying
corroborated this testimony. This evidence sufficed to ground a
conclusion that McCloskey was a particularly vulnerable victim, that
is, that he would have had a more difficult time escaping from his
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assailant than the average person. See United States v. Gill, 99
F.3d 484, 486 (1st Cir. 1996) (noting that the vulnerable victim
federal sentencing guideline is "primarily concerned with the
impaired capacity of the victim to . . . prevent the crime"). And
given the circumstances of this case, McCloskey's vulnerability
easily could have contributed to his death. No more was exigible.
Cf. Paul, 217 F.3d at 1001-02 (holding vulnerable victim factor
sufficiently supported by evidence that victim was 82 and physically
unable to resist attackers).
The cases on which Sampson relies do not demand a
different result. In United States v. Johnson, 136 F. Supp. 2d 553
(W.D. Va. 2001), the victim was killed instantly by an explosion,
and the district court precluded any consideration of a vulnerable
victim aggravating factor because the victim's particular
vulnerability — her pregnancy — was not in any way related to her
death. See id. at 560. In Francis v. State, 808 So. 2d 110 (Fla.
2001), the only evidence of vulnerability was that the otherwise
healthy victims were 66 years of age. See id. at 139. Neither of
these decisions is apposite here.
By like token, Sampson's reliance on McCloskey's attempts
to fight back is misplaced. There is arguably some evidence of
self-defense (such as the fact that McCloskey suffered several
defensive wounds). However, as presented to the jury, the finding
that McCloskey was a vulnerable victim could have rested on his
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inability to resist attack or his inability to escape. The
evidence, taken in the aggregate, was sufficient to allow the jury
to find that McCloskey was a particularly vulnerable victim within
the purview of the FDPA. See 18 U.S.C. § 3592(c)(11).
E. New Trial Issues.
During the penalty-phase trial, Sampson attempted to prove
several mitigating factors involving alleged mental illness. These
included that, at the time of the killings, his "capacity to conform
his conduct to the requirements of the law was significantly
impaired," that he was functioning "under a severe mental or
emotional disturbance," and that he was "mentally ill." No juror
found that Sampson had demonstrated the existence of any of these
factors by a preponderance of the evidence. Sampson now assigns
error to the district court's rejection of his claims that the
jurors (i) should have found in his favor on one or more of these
proffered mitigating factors, and (ii) misapplied the relevant
instructions.18
Since these claims were raised by way of a motion for a
new trial, we review the district court's disposition of them under
an abuse of discretion rubric. See United States v. George, 448
18
Sampson's quest for a new trial also included a claim that
the jury exhibited unfair prejudice due to a so-called "white
victim" effect. What we have written earlier, see supra Part
II(C)(1), fully disposes of the claim that the district court erred
in denying this aspect of Sampson's motion for a new trial.
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F.3d 96, 101 (1st Cir. 2006); United States v. Wilkerson, 251 F.3d
273, 278 (1st Cir. 2001).
1. The Mental Illness Mitigators. We start with
Sampson's claim that the jury's failure to find mitigating mental
illness factors was against the weight of the credible evidence.
The record contains a plethora of mental health evidence.
The government called numerous witnesses who had interacted with
Sampson during his week-long killing spree to demonstrate that he
appeared calm, polite, and capable of normal discourse with others.
The defense offered the testimony of a social worker and several
prison officials to inform the jury about Sampson's behavioral
patterns and mental health history. Both sides presented expert
witnesses who testified about mental illness in general and
Sampson's mental health in particular.
Taken as a whole, the evidence was freighted with
contradictions. These contradictions, however, were grist for the
jury's mill. See, e.g., Blake v. Pellegrino, 329 F.3d 43, 47-48
(1st Cir. 2003). The dispositive consideration is that the record
contains more than enough evidence to warrant the conclusion that
Sampson's mental health need not be regarded as a mitigating factor.
There was, for example, expert testimony that Sampson
suffered from an antisocial personality disorder rather than from
some form of mental illness. The record likewise contains expert
testimony that, during the killing spree, Sampson was not impaired
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in his ability to conform his conduct to the requirements of the
law. The same expert vouchsafed that Sampson's crimes were not the
product of mental illness, emotional distress, or drug use. The
government supplemented and supported this testimony through lay
testimony, medical and psychiatric records, Sampson's own
statements, and effective cross-examination of defense witnesses.
In the end, a jury reasonably could have concluded — as this jury
did — that Sampson did not suffer from any mental impairments
sufficient to mitigate any need for the imposition of a death
sentence.
Sampson accurately notes that the district court expressed
some disagreement with the jury on this point. But the district
court parted ways with the jury only on a relatively narrow issue:
whether Sampson suffered from bipolar disorder (the court indicated
that it found the defense's expert more persuasive than the
government's expert on this point). The jury was entitled to find
otherwise. See Ortiz, 966 F.2d at 713.
To cinch matters, the district court, after expressing its
opinion, stated clearly that it "d[id] not . . . find that the
evidence on this issue predominate[d] heavily in favor of the
defendant being found to be bipolar" and that, therefore, "it
[would] not [be] appropriate for the court to disregard the jury's
decision on the mitigating factor of mental illness." Sampson III,
332 F. Supp. 2d at 331. In light of that finding — which is borne
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out by the record — the district court had no choice but to honor
the jury's determination. See United States v. Rothrock, 806 F.2d
318, 322 (1st Cir. 1986) (emphasizing that a trial judge "is not a
thirteenth juror" and may not "set aside a verdict merely because he
would have reached a different result"). Like the district court,
we too reject Sampson's challenge to the jury's mental illness
findings.
2. Post-Trial Juror Statements. We turn next to a
related matter. A week or so after the jury returned its verdict,
a local newspaper quoted a juror to the effect that Sampson's
ability to "know[] the difference between right and wrong" was the
"fulcrum on which everything else balanced." In a separate account,
the same juror reportedly stated that Sampson "knew right from
wrong."
Sampson interpreted these statements as evidence that the
jury had misapplied the court's "mental illness" instructions, which
explained that no one had argued that Sampson "was completely unable
to conform his conduct to the requirements of the law." Based on
this suspected misapplication, Sampson moved for a new trial or, in
the alternative, an evidentiary hearing. The district court turned
him down, reasoning in part that post-trial juror statements could
not be used to impeach a verdict. See Fed. R. Evid. 606(b).
Sampson now assigns error.
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Rule 606(b) provides in pertinent part that, after a jury
has returned its verdict, juror statements may not be considered "as
to any matter . . . occurring during the course of the jury's
deliberations or to the effect of anything upon that or any other
juror's mind . . . or concerning the juror's mental processes in
connection therewith." The statements upon which Sampson relies
ordinarily would fall squarely within this prohibition: they concern
the jurors' evaluation of the mental health evidence and the weight
that they chose to attach to that evidence.
Although conceding that Rule 606(b) would bar the
statements under most circumstances, Sampson asseverates that they
nevertheless should be admitted because, in capital sentencing
proceedings, the FDPA displaces the Federal Rules of Evidence. His
fallback position is that the heightened interest in the reliability
of capital sentencing determinations trumps Rule 606(b).
We need not decide the issue. Even if we assume, purely
for argument's sake, that the juror's statements should have been
taken into consideration, any error would have been manifestly
harmless. In that regard, we concur with the district court's
alternate holding that the statements do not indicate that the jury
necessarily misunderstood the court's instructions on mental
illness. Given the reference to a "fulcrum on which everything else
balanced," the juror's statements easily can be construed as
referring to the weighing decision rather than the special findings
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regarding the mental illness mitigators. Thus, there was no abuse
of discretion in the district court's refusal to grant either a new
trial or an evidentiary hearing based on Sampson's objections to
the jury's mental illness findings.
F. Cumulative Error.
Sampson's penultimate claim is that the errors of which he
complains, even if not mandating reversal when considered
separately, collectively require that his sentence be vacated. We do
not dispute the legal premise on which this argument rests: "a
column of errors may sometimes have a logarithmic effect, producing
a total impact greater than the arithmetic sum of its constituent
parts." United States v. Sepulveda, 15 F.3d 1161, 1196 (1st Cir.
1993). Here, however, the district court handled the case patiently
and sensitively. None of its individual rulings worked any
cognizable harm to Sampson's rights. It necessarily follows that
the cumulative error doctrine finds no foothold in this appeal.
IV. ARBITRARINESS
In the final chapter of this appeal, we must independently
evaluate, as required by the FDPA, "whether the sentence of death
was imposed under the influence of passion, prejudice, or any other
arbitrary factor." 18 U.S.C. § 3595(c)(1). Having assiduously
performed that examination, we find no sign that any such factors
contributed to Sampson's sentence.
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The results of the jury's deliberations fully support this
conclusion. In addition to finding the aggravating factors that we
have discussed, the jurors failed to find other aggravating factors
suggested by the government. Moreover, the jurors found several
mitigating factors. Viewed collectively, these findings suggest
that the jury considered the evidence in a thorough, even-handed,
and dispassionate manner. Cf. Paul, 217 F.3d at 1004-05 (finding no
arbitrariness when the jury followed "exactly the process [it] was
to complete").
V. CONCLUSION
We need go no further. For the reasons elucidated above,
we reject Sampson's principal assignments of error. To the extent
that he has raised other claims of error, none requires discussion,
and we reject them out of hand.
We add only that Sampson has been ably represented by
learned counsel. His positions have been vigorously asserted.
While we are aware that death is the ultimate punishment, we are
persuaded that the sentencing proceedings in this case were
conducted fairly and with scrupulous attention to the process
required by law. Accordingly, we affirm the sentence of death.
Affirmed.
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United States v. Sampson
Combined Opinion