Sampson v. United StatesSampson v. United States
The judgment below is affirmed-in-part, reversed-in-part, and remanded. The parties are responsible for their own costs.
So ordered.
Mark T. Quinlivan, Assistant U.S. Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.
Before LYNCH, SELYA, and LIPEZ, Circuit Judges.
LYNCH, Circuit Judge.
Gary Lee Sampson pled guilty in September 2003 to two counts of the crime of carjacking resulting in death. In December 2003, following a penalty-phase trial, a jury sentenced Sampson to death under the Federal Death Penalty Act (“FDPA“) for those crimes. See
Sampson now both petitions for a writ of mandamus, and appeals from an order by the district court denying his motion in limine to dismiss or strike two non-statutory aggravating factors the prosecution intends to present in a second penalty-phase proceeding under the FDPA.1 Those factors, which were also included in the original notice, are: (1) future dangerousness, and (2) obstruction of justice by means of murder to conceal the theft and attempted theft of victims’ automobiles. The new penalty-phase trial is scheduled to start on September 14, 2016. We have expedited this appeal.
Sampson argues that because the jury in his first penalty-phase proceeding did not find unanimously that the government proved these two non-statutory aggravating factors beyond a reasonable doubt, their introduction at the new penalty-phase proceeding is barred by the Double Jeopardy Clause of the Constitution, including its collateral-estoppel component.
I.
The facts of the case are familiar from earlier opinions, and we recite only those relevant to this appeal. See United States v. Sampson (Sampson I), 486 F.3d 13 (1st Cir. 2007); United States v. Sampson (Sampson II), 820 F.Supp.2d 151 (D. Mass. 2011); United States v. Sampson (Sampson III), 820 F.Supp.2d 202 (D. Mass. 2011); United States v. Sampson (Sampson IV), 58 F.Supp.3d 136 (D. Mass. 2012); Sampson v. United States (Sampson V), 724 F.3d 150 (1st Cir. 2013).2
Sampson murdered three people over the course of a week in 2001. He murdered Philip McCloskey in Massachusetts on July 24, 2001, and attempted to steal McCloskey‘s car; murdered Jonathan Rizzo in Massachusetts and stole Rizzo‘s car on July 27; and murdered Robert Whitney in New Hampshire on July 30.
On August 8, 2002, a grand jury, in a second superseding indictment, indicted Sampson on two counts of carjacking resulting in death. The government then filed a notice of intent to seek the death penalty, as required by the FDPA. See
Under the FDPA, after the government has filed a notice of intent to seek the death penalty, the criminal trial divides into two phases, one focused on guilt (the “guilt phase“) and the other on sentencing (the “penalty phase“). See
If the government satisfies these prerequisites and proves that the defendant is eligible for death, the jury must decide whether death is justified by weighing any proven mitigating factors with the proven aggravating factors, including both statutory and non-statutory aggravating factors.
Sampson pled guilty to both charges of carjacking resulting in death. The first penalty-phase hearing followed. At the close of the penalty phase, the jury found unanimously for the death penalty. For each count, the jury submitted a special verdict form that contained separate findings on each alleged statutory and non-statutory aggravating factor. The jury‘s special verdict form stated that it found unanimously that the government had proven two statutory aggravating factors and a number of non-statutory aggravating factors for each charge against Sampson.
After being sentenced to death, Sampson appealed, and this panel affirmed. Sampson I, 486 F.3d at 52. Rehearing en banc was denied. United States v. Sampson, 497 F.3d 55, 56 (1st Cir. 2007).
In 2009, Sampson petitioned for a new trial under
We further held that the juror‘s lies during voir dire concealed significant evidence of bias that would have provided grounds to excuse her for cause. Id. at 168. We held that Sampson “was deprived of the right to an impartial jury and is entitled to a new penalty-phase hearing.” Id. The case returned to the district court for further proceedings in 2013.
In March 2014, the government filed an amended notice of intent to seek the death penalty. The amended notice again alleged for both counts of Sampson‘s conviction, inter alia, the two non-statutory aggravating factors—that (1) Sampson is “likely to commit criminal acts of violence in the future” and pose a danger to prison officials and inmates (“future dangerousness“); and (2) that Sampson murdered Philip McCloskey and Jonathan Rizzo “to prevent [the victims] from reporting the carjacking[s] to authorities” (“murder to obstruct justice“)—which the original sentencing jury found that the government failed to prove beyond a reasonable doubt to the satisfaction of all jurors. The amended notice also stated that the government would use new evidence from Sampson‘s conduct in prison from 2004 to the present in order to prove future dangerousness.
On May 15, 2015, Sampson moved to dismiss or strike a number of the statutory and non-statutory aggravating factors from the amended notice. He was partially successful. As to the issues on appeal, Sampson argued that the renewed allegations of the non-statutory aggravating factors of future dangerousness and obstruction of justice violated the Double Jeopardy Clause‘s retrial and collateral-estoppel components. The government opposed the motion.
The district court denied the motion to dismiss or strike the two non-statutory aggravating factors. It held that the Double Jeopardy Clause does not preclude alleging the non-statutory factors at the new penalty-phase hearing because the original penalty-phase jury‘s findings on those factors did not constitute an “acquittal.” And it held that the factors are not barred by the collateral-estoppel component of the Double Jeopardy Clause, because “the jury verdict was tainted by a juror who lied about her ability to be impartial,” and because the jury‘s rejection of the factors was “not essential to the judgment of death.”
II. Appellate Jurisdiction
Before reaching the merits of Sampson‘s appeal, we must satisfy ourselves that we have jurisdiction to hear it. The government disputes that we have jurisdiction, but argues that we may skip that analysis in favor of a merits analysis. Sampson argues, among other things, that we should exercise the mandamus power available to us under the All Writs Act,
The All Writs Act provides that “all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.”
We exercised advisory mandamus jurisdiction in the prior appeal to address the juror misconduct issue. Id. at 159-61. It is appropriate to exercise advisory mandamus here. Sampson‘s appeal meets all of the stringent requirements for its “strong medicine.” In re Sony BMG Music Entm‘t, 564 F.3d 1, 4 (1st Cir. 2009).
First, the issue, as framed, is novel.
The government essentially concedes that the appeal raises novel questions of public importance, that exercising mandamus would offer significant pragmatic benefits, and that it “undoubtedly would provide needed guidance to the district court, the lawyers, and litigants in this case.” The government rests its argument against advisory mandamus instead on an assertion that the issue raised in the appeal will not “almost certainly recur,” Green, 407 F.3d at 440, and that it will not evade review.
The government‘s point is that FDPA cases are extremely rare in this circuit—Sampson‘s was the first FDPA conviction that we reviewed, see Sampson I, 486 F.3d at 176—and the particular issue in this appeal will arise even less frequently, making it implausible to consider the question in the appeal “systemically important,” In re Sony, 564 F.3d at 4. This is too narrow a view of systemic importance. Federal courts often find error in capital cases. See Glossip v. Gross, 135 S.Ct. 2726, 2759 (2015) (Breyer, J., dissenting). Similar double-jeopardy challenges to subsidiary determinations by a sentencing jury in capital cases may well recur.
The government argues that the question presented will not evade review because Sampson can raise it after his resentencing. But this misses the point. The double-jeopardy challenge here asserts that Sampson should not have to defend once more against the two non-statutory aggravating factors at issue. Postponing review of the double-jeopardy challenge until after the second penalty-phase proceeding will frustrate the appeal‘s central assertion: that Sampson should not have
Sampson‘s appeal satisfies the stringent requirements of advisory mandamus, and we take jurisdiction.
III. Double Jeopardy and Collateral Estoppel
Where, as here, an appeal raises “constitutional questions ‘such as the district court‘s denial of a motion to dismiss ... on the grounds of double jeopardy and collateral estoppel,’ our review is de novo.” United States v. Lanoue, 137 F.3d 656, 661 (1st Cir. 1998) (quoting United States v. Aguilar-Aranceta, 957 F.2d 18, 21 (1st Cir. 1992), overruled on other grounds by Yeager v. United States, 557 U.S. 110 (2009)).
Sampson argues that the government‘s re-allegation of the non-statutory aggravating factors of future dangerousness and murder to obstruct justice violates the Double Jeopardy Clause.7 The Clause provides: “[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb.”
A. The “Acquittal” Argument
The Supreme Court has explained that “the touchstone for double-jeopardy protection in capital-sentencing proceedings is whether there has been an ‘acquittal.‘” Sattazahn v. Pennsylvania, 537 U.S. 101, 109 (2003). In the context of aggravating circumstances at sentencing, the Court “reject[s] the ... premise ... that a capital sentencer‘s failure to find a particular aggravating circumstance alleged by the prosecution always constitutes an ‘acquittal’ of that circumstance for double jeopardy purposes.” Poland v. Arizona, 476 U.S. 147, 155 (1986). Instead, an “acquittal” in the capital sentencing context turns on “whether the sentencer or reviewing court has ‘decided that the prosecution has not proved its case’ that the death penalty is appropriate.” Id. (quoting Bullington v. Missouri, 451 U.S. 430, 443 (1981)); see also Bobby v. Bies, 556 U.S. 825, 833-34 (2009). If the decision being examined does not meet the standard of an acquittal, then the “clean slate” rule applies, Bullington, 451 U.S. at 443, and the defendant “constitutionally may be subjected to whatever punishment is lawful, subject only to the limitation that he receive credit for time served,” id. at 442.
The earlier penalty-phase jury‘s decision in Sampson‘s case is not an acquittal. Quite the opposite—the jury found the death penalty justified, despite also finding that the government had not proven two non-statutory aggravating factors beyond a reasonable doubt to all members of the jury.
Double jeopardy clearly does not apply here. See Evans v. Michigan, 133 S.Ct. 1069, 1075 (2013) (contrasting substantive rulings that trigger double jeopardy, including rulings that go to insufficiency of evidence, or guilt and innocence, with procedural rulings “that ‘are unrelated to factual guilt or innocence,‘” such as “‘a legal judgment that a defendant, although criminally culpable, may not be punished’ because of some problem like an error with the indictment,” and which do not trigger double jeopardy (quoting United States v. Scott, 437 U.S. 82, 98 & n.11 (1978))). Our vacation of Sampson‘s original death-penalty sentence on Sixth Amendment grounds based on juror misconduct does not change this analysis. That decision rested on the basis that a juror had improperly withheld material information to get on the jury, and “had nothing to do with either the sufficiency of the evidence or [Sampson‘s] guilt or innocence.” United States v. Szpyt, 785 F.3d 31, 37-38 (1st Cir. 2015), cert. denied, 136 S. Ct. 800 (2016). Sampson was not acquitted, and the Double Jeopardy Clause is not triggered.
Sampson tries to marshal quotes from case law at the periphery of double-jeopardy jurisprudence in an effort to construe the original penalty-phase jury‘s determinations on the non-statutory aggravating factors as an “acquittal.” In particular, he points to Apprendi v. New Jersey, 530 U.S. 466 (2000), and cases interpreting it, to suggest an “expanding” of “the concept of ‘acquittal,‘” and to argue that “non-statutory as well as statutory aggravating factors are constitutionally significant under the FDPA.” Sampson cites various non-binding decisions from other courts, see, e.g., State v. Sawatzky, 339 Or. 689, 125 P.3d 722, 726 (2005), as well as non-precedential dicta from a Supreme Court plurality opinion, Sattazahn, 537 U.S. at 110-12, that have reasoned from Apprendi to hold or suggest that double-jeopardy protections apply to jury determinations on sentencing enhancements even if there was never an acquittal on the death penalty. And he provides various cases discussing the relationship between the FDPA and Apprendi, as well as the FDPA and the Confrontation Clause, in an attempt to demonstrate the evolving “constitutional
But Apprendi is not a double-jeopardy case; its holding concerns what must be submitted to, and found to be proven beyond a reasonable doubt by, a jury in the first instance. Apprendi, 530 U.S. at 476. Here the jury in the first instance did properly find beyond a reasonable doubt that the death penalty should be imposed.
Our question is not what Apprendi requires of the FDPA, nor whether non-statutory aggravating factors are “constitutionally significant,” but rather whether relitigating two non-statutory aggravating factors found not proven by an earlier penalty-phase jury is barred by the Double Jeopardy Clause. The Supreme Court‘s cases squarely addressing the question of what is an “acquittal” for double-jeopardy purposes control the question, and they compel rejection of Sampson‘s argument.8 Because neither the original penalty-phase jury‘s verdict nor the vacatur of Sampson‘s sentence constitutes an acquittal, double-jeopardy principles do not prevent the government from alleging again the two non-statutory aggravating factors.
B. The Collateral-Estoppel Argument
Sampson argues at greater length that collateral estoppel, which “is embodied in the Fifth Amendment guarantee against double jeopardy,” Ashe v. Swenson, 397 U.S. 436, 445 (1970), bars the relitigation of the two non-statutory aggravating factors.9 His argument again runs directly against Supreme Court precedent, and fares no better than his “acquittal” argument.10
As the Supreme Court explained in Bies, issue preclusion, also known as collateral estoppel, “bars successive litigation of ‘an issue of fact or law’ that ‘is actually litigated and determined by a valid and final judgment, and is essential to the judgment.‘” 556 U.S. at 834 (alteration in original) (quoting Restatement (Second) of Judgments § 27 (1980)). The Bies Court emphasized that “[a] determination ranks as necessary or essential only when the final outcome hinges on it.” Id. at 835 (citing 18 C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure § 4421, at 543 (2d ed. 2002)).
The Bies Court found that the issue for which collateral estoppel had been claimed—evidence of the defendant‘s “mild
The Bies Court reasoned that “it [was] clear that the [Ohio] courts’ statements regarding Bies’ mental capacity were not necessary to the judgments affirming his death sentence.” Id. at 835. The Court held that the Sixth Circuit, which found that collateral estoppel did apply to the issue of the defendant‘s retardation, erred by “conflat[ing] a determination necessary to the bottom-line judgment with a subsidiary finding that, standing alone, is not outcome determinative.” Id. The Court concluded that “[i]ssue preclusion cannot transform Bies’ loss at the sentencing phase into a partial victory.” Id. The same is true here.
The two non-statutory aggravating factors rejected by the first penalty-phase jury were not necessary to Sampson‘s death sentence. Indeed, “[f]ar from being necessary to the judgment,” the jury‘s failure to find unanimously that the government proved the two non-statutory aggravating factors beyond a reasonable doubt, like the retardation mitigating factor in Bies, “cuts against [the judgment]—making [it] quintessentially the kind[] of ruling[] not eligible for issue-preclusion treatment.” Id. (quoting Bies v. Bagley, 535 F.3d 520, 533 (6th Cir. 2008) (Sutton, J., dissenting from denial of rehearing en banc)). And at least one other federal court has come to the same conclusion: that collateral estoppel does not bar the introduction at a second penalty-phase proceeding of non-statutory aggravating factors presented to, and not found proven by, an earlier penalty-phase jury. United States v. Stitt, 760 F.Supp.2d 570, 584 (E.D. Va. 2010).
Sampson attempts unsuccessfully to distinguish Bies. He first observes that “the prior determination [in Bies] ... was made by a court in an opinion” (emphasis omitted), whereas the prior determinations in this case “were made by a jury in special findings” (emphasis omitted). He contrasts the “spare statements” reviewed in Bies, 556 U.S. at 834, with the more elaborate process of the special findings at issue here. But the collateral-estoppel principle articulated in Bies makes no distinction between judge- and jury-made determinations, nor any distinction based on the procedure for making the determination—it focuses on whether the determination was necessary to the prior judgment.
Sampson also argues that unlike here, where the issues being relitigated are legally identical to issues in the prior determination, the issue in the second proceeding in Bies—whether, under the rule announced in Atkins, the defendant‘s retardation rendered him ineligible for the death penalty—involved a legal principle that was new and different from the prior determination. He argues that the Court noted that novelty as another basis for not finding collateral estoppel. See Bies, 556 U.S. at 836-37. But the Court made the observation that this would be an alternative ground to reject the collateral-estoppel argument “even if the core requirements for issue preclusion had been met,” id. at 836;
All of Sampson‘s other purported distinctions11 share the same flaw. They do not affect the principle articulated in Bies that collateral estoppel requires a determination that is essential to the prior judgment. That principle dictates that we reject Sampson‘s collateral-estoppel argument. There is simply no way the two non-statutory aggravating factors at issue here were essential to the first jury‘s death sentence.12
Sampson further contends that a number of other decisions of federal courts provide alternative analyses that support his collateral-estoppel claim. They do not. He relies on language in this court‘s decision in United States v. Bravo-Fernandez, 790 F.3d 41 (1st Cir. 2015), cert. granted, 136 S.Ct. 1491 (2016), including that collateral-estoppel claims “must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings,” id. at 46 (quoting Ashe, 397 U.S. at 444), and that “if a review of [the record of the prior proceeding] shows that a ‘rational jury,’ as a practical matter, decided adversely to the government an issue to be relitigated in the new prosecution, then the defendant gets the benefit of collateral estoppel,” id. But that language comes from an inquiry into the preclusive effect of acquittals on an attempt to prove various facts in a retrial of vacated convictions arising from the same split verdict. See id. at 43, 48. In other words, the determinations at issue in Bravo-Fernandez were potentially necessary to the prior judgment; the determinations that Sampson attacks could not have been.
Sampson‘s reliance on Delap v. Dugger, 890 F.2d 285 (11th Cir. 1989), abrogated on other grounds by Floyd v. Sec‘y, Fla. Dep‘t of Corr., 638 Fed.Appx. 909, 924 (11th Cir. 2016), is equally misplaced. He argues that the case illustrates “that an impact on the express terms of a judgment is not an absolute prerequisite for collateral estoppel.” This proposition is simply not so, and misconstrues Delap. Delap, in any event, does not control our decision. Delap was decided in 1989, 27 years ago, and well before Sattazahn and Bies, the Supreme Court cases that dictate our holding.
Delap concerned a trial in which the prosecution pursued multiple theories of guilt on one count of murder. The defendant was convicted of murder on one theory (first-degree premeditation), and the trial judge found that there was insufficient evidence to convict the defendant on
As we explained in Manganella v. Evanston Ins. Co., 700 F.3d 585 (1st Cir. 2012), another case Sampson cites: “We do not ask whether the resolution of an issue was necessary to reach the same outcome; rather, the inquiry is whether the issue was necessary to the decision actually rendered.” Id. at 594. By that standard, his argument fails: the non-statutory aggravating factors simply could not have been “necessary to the decision actually rendered.” Id.; see Bies, 556 U.S. at 835. Because the non-statutory aggravating factors were not necessary to the determination of his original death sentence, the government may relitigate them at the new penalty-phase proceeding.
In the end, Sampson‘s argument is that there should be a more relaxed standard for collateral-estoppel claims in the context of capital sentencing. But the Supreme Court‘s scrupulous doctrinal reliance on the Second Restatement of Judgments in Bies makes clear that the core requirements of collateral estoppel apply with full force in the capital-sentencing context. Sampson‘s argument fails to meet those requirements.
Finally, Sampson makes a vague “Eighth Amendment values” argument trying to strengthen his collateral-estoppel position. He emphasizes the general principle that “[the Supreme] Court has demanded that factfinding procedures aspire to a heightened standard of reliability,” Ford v. Wainwright, 477 U.S. 399, 411 (1986) (plurality opinion), and argues from it that “[r]eliability could only be impaired by allowing prosecutors multiple opportunities to pursue particular aggravating factors.” The argument cannot save a double-jeopardy claim when the claim fails on its own terms.
The district court correctly ruled that it would not strike the government‘s notice of intended use of the non-statutory aggravating factors of future dangerousness and murder to obstruct justice because the earlier jury‘s findings were not an acquittal, nor were they essential to the jury‘s death sentence. The Double Jeopardy Clause does not bar the government from alleging those non-statutory aggravating factors again at Sampson‘s new penalty-phase proceeding.
IV.
The order of the district court is affirmed.
Notes
Do each and every one of you find that the government has proven, beyond a reasonable doubt, that the defendant, Gary Sampson, murdered Philip McCloskey for the sole or primary purpose of preventing him from reporting the attempted theft of his automobile to authorities?
Do each and every one of you find that the government has proven, beyond a reasonable doubt, that the defendant, Gary Sampson, is likely to commit criminal acts of violence in the future which would be a continuing and serious threat to the lives and safety of prison officials and inmates as demonstrated by his history of prison misconduct?