United States v. Peter Gaston Kaiser

facts this particular the basis petitioner raises

case,23we conclude that claim of ineffective assistance

substantial Beto, Cf., 379 F.2d 937 Hintz v.

by counsel. right 1967) (with expanding

(5th Cir. counsel, should have continuance

effective attorney prepare to allow granted

been Yet, the district court adequately).

his case without this contention

dismissed hearing. No full and fair evidentiary

an having been this matter held in

hearing court, requirement Townsend’s

state applies. the district court

hearing in Wainwright, (5th 459 F.2d 8 Barker

also 1972)(where petitioner alleges de

Cir. investigate refused to his case

fense counsel preparation, to its little time

and devoted of ineffective assistance coun

allegations evidentiary hearing an are require

sel that Accord, Henderson,

raised). Mitchell v. 1970); Hollingshead v. (5th Cir.

F.2d 435 (5th 1970).

Wainwright, 423 Cir. F.2d part this

Accordingly, we remand to determine to the district court

complaint deprived peti

if сontinuance denial of his counsel. effective assistance

tioner of part, part. reversed

Affirmed America, STATES

UNITED

Plaintiff-Appellee, KAISER,

Peter Gaston

Defendant-Appellant.

No. 74-4128. Appeals, States Court of

Fifth Circuit.

Jan. 1977. testimony only particular, called one witness defense whose indi- trial counsel re- peatedly they appeared had not had only asserted time to to have cated that defendant Indeed, although prepare asserting drinking a defense. when been he was arrested for the defense, attorney produced insanity defense instant crime. testimony. psychiatric They medical or no

469 trade executioner’s in the federal

enclave after its demise in many states at Although Court order. that Court signs up set vital has some for the death appear of them penalty, none capital punishment provision before us absolutely of sentencing barren stan- dards, open capricious an invitation arbitrary execution. We have no doubt has Constitution dealt this statute judg- Hence we a lethal blоw. reverse the imposes as it ment below insofar a sentence Finding appellant’s of death. other assert- merit, however, points ed of error without judgment we affirm the conviction and remand for substitution sentence of life imprisonment. require only facts here brief state- 28, 1973, August

ment. On two hitchhikers directed to an Fort their driver area on the Benning, Georgia, military reservation they fatally where shot his him and stole personal effects and his ear. Little over a codefendant, later, appellant week and his Fortune, Larry kidnapped Hoo- Fate James Columbus, Georgia ver of him to and forced drive them to Texas in Police Hoover’scar. Texas, car, City, stopped Colorado seat, Fortune in with Kaiser and the front for traffic violations. roadside deten- Jr., Ga., Bryan, Columbus, R. Thomas produced the murder tion victim’s driver’s defendant-appellant. (Court appointed), for pistols that license and two Kaiser and For- Knight, Atty., T. C. Ronald U. S. Nathan near purchased tune had the date Macon, Ga., Davis, Atty., U. Asst. S. shooting, pistols subsequently identified as plaintiff-appellee. possibly having fired bullets taken from body.

the victim’s At trial in the Kaiser’s United States District Court Middle District CLARK, Justice,* Associate Georgia, Before numerous witnesses related admis- AINSWORTH, Circuit by GOLDBERG them These ad- sions made to Kaiser. Judges. abundance plus missions of circumstan- linked Kaiser and tial evidence codefendant

GOLDBERG, Judge. Circuit shooting. day of Fortune to the After one trial, appeals de- pleaded guilty Kaiser from his Fortune to second Peter Gaston murder; degree first murder gree subsequently within the testified conviction jurisdiction guilty A special territorial United Kaiser’s behalf. found Kaiser murder, States, (1970), im- degree 18 U.S.C. first and the court § by posed sentence of deаth under 18 U.S.C. ensuing of death electrocution. sentence § to address the survival mi. causes appeal His us * (Retired), by sitting designation. Court of United States Of principle; the sentence of constitutionality to the electro- turn first We be set of Kaiser’s cution shall aside. Consideration that sentence. error follows. claims of

other A. Furman three cases In the consolidated under the Punishment 18 U.S.C. Capital I. Furman, supra, name the court issued announcement, per accompa- curiam terse The court convicted Kaiser of first individual, quite disparate nied five con- special degree within territorial murder currences, to the effect that capital punish- States, the United ‍‌‌​‌‌‌‌​​‌​​‌​​​​​​‌‌​​​​​​‌‌‌‌‌​​‌‌‌​‌‌‌​‌​​​‌​‍codified at jurisdiction of imposed pro- under statutes that (b) of the 1111. Subsection U.S.C. § complete discretion to vided prescribes as fol statute authority constituted сruel and unusual lows: punishment.2 Justices Brennan and Mar- guilty murder in the Whoever shall concluded that the death penalty could suffer death degree, shall unless the constitutionally imposed. never be See by adding verdict jury qualifies its there- Furman, supra, (Brennan, 92 S.Ct. at 2736 capital punishment”, in which to “without J., concurring); J., (Marshall, id. at 2765 imprison- sentenced to event he shall be concurring). Stewart, Douglas, Justices ment for life . and White concurred on the more narrow is cut from the same provision This die arbitrariness, ground that the if not dis- crimination, condemned as cruel and unusual in that they perceived that in oper- the 238, Georgia, 408 92 Furman v. U.S. S.Ct. discretionary capital punish- ation 2726, (1972).1 Prior to the 33 L.Ed.2d 346 systems ment before the Court violated hand, assumption Furman, the unbroken case at of amendment eighth strictures. See J., and courts has been that the prosecutors supra, (Douglas, 92 S.Ct. at 2727 concur- longеr applied (Stewart, J., could no be penalty ring); concurring); death id. at 2760 J., consistently (White, with eighth concurring). under the id. at 2763 § amendment. The Court’s most Responses: B. 1111 Considered § executioner, struggle with the recent for all confusion, its attendant bore out this as- precise While the rationales for the vari- sumption ignored by which was the court opinions unclear, ous Furman were most penalty below. The Court’s five death deci- practical impact was not. The decisions principle system sions confirmed the that a capital punishment invalidated the of laws capital punishment clearly that does not thirty-nine states and the District of Co- guide define standards to the exercise of Furman, lumbia. supra, See 92 S.Ct. at sentencing discretion is constitutionally (Blackmun, J., in- dissenting).3 Most im- fully tolerable. This statute purposes violates that portant appeal, for оf this Justice eighth (Supp.1971): 1. See 2. The amendment’s cruel Ga.Code Ann. 26-1005 and unusual § punishment applicable clause is made to the persons for convicted of through the states fourteenth amendment. See death, may murder shall be but be confine- California, 660, Robinson v. 370 U.S. 82 S.Ct. penitentiary ment in the for life in the follow- 1417, (1962). 8 L.Ed.2d 758 But see Woodson ing jury trying If the cases: the case shall so Carolina, 280, v. North U.S. 96 S.Ct. recommend, or if the conviction is founded (1976) J., (Rehnquist, 49 L.Ed.2d 944 solely testimony, pre- on circumstantial dissenting). siding judge may sentence to confinement penitentiary life. wishing for the former case capital punish- 3. States to maintain discretionary judge; signifi- it is not with the in understood that Furman called for ment redrafting. responded by making cant Some latter it is. . . mandatory penalty the death for narrow cate- jury, capital Whenever a in a case of homi- murder, gories felony such as murder or cide, guilty, shall find a verdict of with a murder of a law officer. enforcement Others mercy, recommendation instead of a rec- penalty larger made crimes, available for a class of imprisonment life, ommendation for . attempted aggravating but define imprison- such verdict shall be held to mean mitigating guide circumstances that would ment for life. sentencing authority’s decision whether (D.P.R.1973) F.Supp. (rape: Furman acknowl U.S.C. dissent Blackmun’s Bohle, United States v. 2031); provisions of fed § “all those edged that (N.D.N.Y.1972) (former F.Supp. 577 federal permit that statutory structure eral statute). Fur piracy are air apparently voided.” penalty death man, supra, at 2815.4 Until prosecutors recognized have also Federal post arose, the unanimous before us case punish- readily invalidity courts, understanding of federal Furman Congressional 1111. A § appears Congress prosecutors, federal considering post-Furman committee federal penalty death could have been penalty legislation fed- death observed that constitutionally imposed under not attorneys asking eral had ceased § penalty generally. death U.S. tan- Congressional courts have been confronted

Federal Administrative Code provisions penalty have gentially reported News 3980. We found no Furman in which a United federal criminal stat- 1111 and other case since States § utes; sought that the conferral Attorney concluded in a all have degree on the discretion murder prosecution unfettered under rendered provisions contrary, these authority under this statute. On Watson, supra, of Furman. light n. unconstitutional 496 F.2d them Watson, 496 F.2d 1125 In United States government conceded that 1973), imposed 1111 defendant com- penalty ‍‌‌​‌‌‌‌​​‌​​‌​​​​​​‌‌​​​​​​‌‌‌‌‌​​‌‌‌​‌‌‌​‌​​​‌​‍1111 would be (4th § Cir. at trial to hаd been entitled void. plained attorneys of which 18 appointment two

the legislative history the of the An- Finally, for a in a provides defendant 3005 § U.S.C. tihijacking Congress’ Act of 1974 reveals accepted capital case. The Fourth Circuit Furman had understanding that invalidated that Furman government’s argument the discretionary penalty pro- death the various of provision had invalidated code, of the federal criminal includ- visions 1111: § 1111. See 1974 ing of specifically that § of 1111 is penalty provision the § Since Congressional and Administrative U.S.Code challenged indistinguishable from those Congress attempted to News 3980. The Furman, it is that, the clear had death the demands of Furman Antihi- meet defendant, imposed on such penalty been Act, see 49 U.S.C. 1473(c), jaeking but § would have been void. a sentence oxygenate effort to 1111. § made no similar also United v. See States sum, 1126.5 parts machinery 496 F.2d at all of the federal In Woods, (4th 1111 since Fur- 127, 1973) against F.2d 138 Cir. 484 have brushed § that punishment under 1111 fell man have concluded (only available that the statute § Furman United imprisonment); life within the area condemned that squarely after Freeman, (D.N. v. F.Supp. contrary pro- 380 1004 of States The assertion decision. D.1974) (death penalty provision continuing vitality of 1111 on the § borders vision’s unconstitutional; procedural safeguards at audacious. capital charges inapplicable). upon tendant Cases: Furman Penalty C. 1976 Death conferring statutes discre- Other federal Reaffirmed between judge choose

tion post-Furman regard- have no consensus imprisonment and death fared bet- While Quinones, pro- ing invalidity penalty of death ter. See 353 impose ap- particular which find in a list numerous others from we death case. Other did Note, generally, indistinguishable. proaches § were also taken. 1111 Constitutionality Discretion and the of New Statutes, that, Penalty although 87 Death Harv.L.Rev. 1690 to rule court went on 5. The unavailable, (1974). § 1111 re- was death “capital purposes crime” for of the a mained protections procedural 18 specifical- special U.S.C. Although Justice Blackmun did not 4. provisions, ly among § the condemned § list 1111 that condemn eighth amendment review caution and compelling, was lili vision § eliminating the need to rest 1111, thus § await the results us to required deference solely similarity on the be- our decision further considera Supreme Court’s of the us and the stat- before tween subject that punishment, tion When that com- in 1972. utes condemned pend to remain delay caused unforseeable considered, be authority is there can bined the time of oral ing in the Court majority Supreme of the doubt that no appeal to the close in the instant argument Cоurt, they how attained their no matter term of the recent most alliance, being would strike 1111 as within again fragmented time an At that Court.6 pall. Furman’s consideration to the plenary gave Court passed by five statutes capital punishment First, cases do demonstrate the 1976 Gregg v. Furman. See response to states in Furman acquiescence at least 153, 2909, S.Ct. Georgia, 428 U.S. quarters from almost all Texas, (1976); Jurek v. L.Ed.2d commenced its discus Court. 2950, 262, 49 L.Ed.2d 96 S.Ct. U.S. comprehensive most of Furman sion Florida, (1976); 242, Proffitt v. 428 U.S. Gregg, supra, 96 opinions, of its five (1976); L.Ed.2d 913 96 S.Ct. 2932, with this observation: Carolina, 428 U.S. v. North Woodson uniqueness of the death Because of (1976); Rob 49 L.Ed.2d 96 S.Ct. held that it could not be penalty, Furman Louisiana, 96 S.Ct. 428 U.S. erts sentencing procedures imposed (1976). 3001, 49 L.Ed.2d risk that it created a substantial that interplay opinions and rationales arbitrary inflicted in an uphold three of those leading the Court manner. capricious complex void two is if not statutes discussion, plurali- of that conclusion confounding; attempt not here we do ty announced exegesis. treat- Such exhaustive definitive determination we adhere to Furman's unnecessary, opinions, for the 1976 where the ultimate pivotal plurality,7 those particular system of standardless is at issue a post-Furman as- easily vindicate do Eighth violates the and jury discretion unconstitutionality sumptions regarding the Amendments. Fourteenth 1111 and mandate our of statutes such 2936, equivocally, Justice at n.47. More Id. unconstitutionality make that decision to White, Burger, speaking for Chief Justice exception single With the of a explicit.' himself, Rehnquist, and characteriz- Justice

Justice, recognized continuing the the Court ed the 1972 decision: validity vitality and of Furman. More fun- Furman, damentally, plurality opinions, judgment oper- the read in this Court’s preclude practice giving conjunction with the concurrences of Jus- to the ated Marshall, unguided to im- yield principles sentencer discretion tices Brennan and the -, Carolina, penalty - U.S. 96 6. Fowler v. North is unconstitu- Brennan that the death 3212, (1976), placed the 49 L.Ed.2d 1212 se, per plurality supplied S.Ct. the critical tional this penalty before the Court at the time of death strike the statutes of North Carolina votes to argument appeal. in the instant The ill oral Woodson, supra, See 96 S.Ct. and Louisiana. Douglas that to of Mr. Justice caused case ness 2981; Roberts, supra, Be- 96 S.Ct. at 3003. at reargument. See Fowler v. North be set scrutiny greater Mar- that Justices cause the Carolina, 1039, 2652, 95 45 422 U.S. S.Ct. com; eighth find lied Brennan shall and (1975). The case received summa L.Ed.2d amendment, general applied to both in ~nd as ry disposition in connection with the Court’s capital punishment, would lead them to invali- capital punishment in June 1976. decisions plurality’s any penal which the sanction date Powell, Stewart, joined condemn, positions approach and Stevens Justices opinion majority of the five cases announc- may in an in each plurality read as those of a be ing the con- the decision of the Court. Given the court. tinuing and conclusions of Justices Marshall Roberts, Similarly, supra, in Justice Ste- impose penalty not to or pose plurality opinion condemned vens’s critical . for murder mandatory death sentence Louisiana at 2947.8 Id. any without consideration of the statute conclusively, opinions Although less the new sentencing results of under actual neither that Furman was demonstrate also it because failed provision, containing to cases on nor limited founded requirement with comply Furman’s arbitrariness, discrim- evidence empirical jury be re- standardless discretion that imposition of ination, infrequency in the by procedures safeguard that placed Rather, recent penalty.9 arbitrary capricious im- and against the con- majority support for reveal cases of death sentences. position upon grounded Furman was that clusion Finally, plurality 3007.10 in Id. at in potential for arbitrariness inherent “the recognized that Gregg the Furman conclu- uncontrolled discretion sentencers granting impose untrammeled sion that discretion capital punish- deciding impose when in penalty eighth violated the Note, Discretion and the Constitu- ment.” was in amendment “substantial tension” Penalty New Death tionality of the Stat- California, in McGautha 1690, (1974). utes, Harv.L.Rev. 183, 1454, S.Ct. 28 L.Ed.2d U.S. through- of this conclusion runs Evidence in (1971). The Court McGautha had found opinions. In the above- plurality out the jury capital that standardless discretion opin- passage Justice Stewart’s quoted process did not violate the due Gregg, supra, at 96 S.Ct. ion clause fourteenth amendment. Furman condemned statutes that specified Nonetheless, the adher- plurality announced arbitrary creating “substantial risk” of reading Gregg, to its of Furman. ence Writing capricious punishment. 96 S.Ct. at n.47. supra, Woodson, supra, plurality again for attempted to set also reiterated at Justice Stewart S.Ct. guide judicial which tle the standards are to the existence unbridled discretion that the cruel and review intolerable, penalty scheme was a death punishments unusual clause. constitu intimating showing of ac- without contempo prohibition comprehends tional required: was tual arbitrariness decency, Gregg, see rary public standards of holding in Fur- to the limited Central re may at which supra, vesting man was the conviction legislatures the actions flected in sentencing power in the of standardless juries society’s history as well as Eighth Fourteenth eighth violated Id. 2928-29. The traditions. amendment, however, incorporates a Amendments. also penalty guide their view that 8. Given dards to the choice between life and se, per Justices Brennan and unconstitutional death. accept more limited Marshall also the opinion White’s the four dissen- 10. Justice for however, Rehnquist, Justice con- of Furman. Roberts, 3012-13, supra, 96 S.Ct. at ters be of the view that Furman violated tinues to recognized that Woodson, precedent principle. See both supra, J., (Rehnquist, dissent- unfettered discre- 96 S.Ct. at 2998 is undeniable that the [i]t ing). jury to defendant from save the tion major contributing factor in the death was argued docu- 9. One observer has that the scant developments invalidate the which led us to in some of Furman concurrences mеntation the Georgia. penalty in Furman v. interpreting decision militates for the Court’s cases, throughout opinions five how- the His ever, empirical resting demonstration. as not capi- of a belief that invalidation evidence Note, supra note at 1694—96. only provisions punishment follow tal necessary beyond a statute If were to look it sig- empirical upon of some demonstration ‍‌‌​‌‌‌‌​​‌​​‌​​​​​​‌‌​​​​​​‌‌‌‌‌​​‌‌‌​‌‌‌​‌​​​‌​‍to see if the sentencer’s discretion received discriminatory, arbitrary, probability of nificant inquiry unnecessary, guidance, an one we think application of ultimate sanction. rare the or explicit no further instruc- would look than the supra, See, g., Gregg, at 2948. 96 S.Ct. e. jury below no stan- tion to the that there were subject applied by stood dignity sentencing not the au- human standard of thority, appear id. at 2925. That whim. See be tasks which are be- majoritarian unneсessary and present the human prohibits yond ability. standard pain, gross as well as wanton infliction McGautha, supra, 91 S.Ct. at 1466. In 1972 punishment and between disproportion eighth Furman condemned under the clearly re- the crime. Id. While discretionary capital punish- amendment alternative” anal- jected a “least restrictive identical to the ment schemes one before us. unnecessary severity defi- ysis, its notion perceived the Court In 1976 that those stat- any pun- principle embraced the nitely they utes had been intolerable not because demonstrably serve some val- must ishment discretion, they but because granted failed justification in order to with- penological id guide it. Whether the results are labeled scrutiny. constitutional See id. stand refinement,, the vacillation tortures of 2929-30. most solemn and deliberate the Court’s light general struggle subject may suggest of this statement of with the the In principles the reaffirma- of human when faced eighth amendment limits wisdom may systems be read as a determi- justifying tion of Furman task of for the ex- in the beings. that standardless discretion of fellow human The true nation tinction constitutes, penalty imposition of may recognizing of wisdom lie in course terms of Justice White’s concurrence abandoning in the limits and those mortal decision, trade; in the hangman’s Supreme Court has emphatically reminded us that wisdom is extinction of pointless needless application by judici- only marginal not standard life with contributions to legislature. public purposes. ary, social or but any discernible murky from at 2764.11 route self-imposed Even this restricted to the Court’s ultimate con- these standards perspective has not obscured Court’s prohibition against cruel clusion that insight: imposition capital earlier punishment, requir- and unusual far from even punishment categories for narrow ing the elimination discretion murder, clearly absent defined channels of laws, only by is in fact satisfied sentencing focusing discretion partic on the presence guided of some discretion. circumstances of the crime ularized and the Moreover, application the Court’s of that offender, violates contemporary both the conclusion to the statutes before it raises and, decency serving no demon index Nevertheless, many questions. the Consti- penological purpose, the strable transcend disapproval tution’s of standardless discre- dignity of human that inhere ent standard imposition penalty tion of the death proscription in the of cruel unusual emerges untainted. us, The anachronism before punishment. ample discretion, conferring In 1971 Court found absolute reject process challenge reason to due to easily falls before both of those still vital imposition least, unfettered discretion instance at standards. this capital punishment: prohibits society adding Constitution barbarous, degrading act to the identify another To before the fact those char- horrible deed of which the defendant before acteristics of criminal homicides and their The death perpetrators pen- which call for the death us stands convicted. void, alty, express being and to these characteristics of 18 we U.S.C. § language fairly which can be under- judgment must vacate the below to allow eighth plurality’s 11. While the stated its amend at S.Ct. 2932. The conclusion that general propositions principles as particularized eighth requires amendment judicial punishments, review of it did stress by the sentencer of the individual consideration that re that its conclusion the amendment clearly and his offense rested on the offender quires guidance in the exercise of discretion to capital punishment. unique nature of See impose unique rested on the Woodson, supra, 96 S.Ct. 2991-92. Gregg, supra, nature of that sanction. See 96

475 alternative 3432. We have found no compelling § substitution dis- statute, imprisonment. life under the tinction between the instant issue and that case, Hoyt. judicial As in that excision 11. Trial Errors penalty provision renders non-capital purposes. 1111 for all § separate five advances claims of Kaiser States, Carter F.Supp. also v. United 388 seeks reversal of the error and conviction (W.D.Pa.1975) (same Hoyt); 1334 result as each ultimately each. We find wide of on Freeman, F.Supp. United States 380 1004 the mark. (D.N.D.1974) (extra peremptory challenges List A. Witness 18 3432 unavailable under § U.S.C. ). prosecution after Furman But 1111 see § complains Appellant of the tes Watson, (4th 496 1125 States v. F.2d United timony prosecution witness whose 1973) (18 1111 still defines Cir. U.S.C. § name not been furnished Kaiser had to although Furman “capital crime” invali- required capital by prior to trial as cases sentencing provision; defendant’s dates 18 3432. U.S.C. § attorneys to two right U.S.C. performed doctor who the au- When the survives). Because 18 U.S.C. § § identified topsy of the victim four bullets apply prosecution, not to Kaiser’s did removed, objected the defense to had provided to list Denk as a witness no failure into Al- of the bullets evidence. admission testimony. his objecting to basis though independently doctor had identi- bullets, government offered to fied the Kidnap Testimony B. custody. chain of court left prove the witness prosecution Another was prosecution rul- the decision to the without Hoover, resident the Columbus kid set Mr. ing, government prove out to and the by Kaiser and Fortune. Hoover napped In- precautionary the chain as a measure. to the of admissions relevant mur Denk, testified was Leslie cluded in the chain during the charge trip made Kaiser der custody had of the exhibits for official who following kidnapping. In to Texas an day. one preliminary questions regarding swer appear did not wit- Denk’s name on the with appel into contact how he had come 3432 requires ness list which 18 U.S.C. § lant, kidnapping Hoover disclosed the capital prosecution to furnish in cases. In surrounding circumstances. some capital pun- view of our decisions that Appellant complains that Hoover’s testimo ishment U.S.C. 1111 is § ny about the and circumstances fact void, however, unconstitutional kidnapping evidence of other constituted guarantees of рrocedural strict 3432 were § only impugn Kaiser’s serving crimes applicable not to this properly trial. In character.12 Hoyt, (5th F.2d 570 States 1971), complain not Appellant Cir. we confronted a cannot and does similar Kaiser’s kidnap- claim in connection with the Hoover’s recollections of state- federal men and ping statute. that he killed three was Court had held ment had capital punishment provision properly were not that the run the FBI on the testimony unconstitutionally predicate statute burdened the admitted. Some was right jury trial. with Kaiser neces- See United v. Hoover’s association Jackson, witness had actu- 390 U.S. that the sary to establish (1968). L.Ed.2d ally position On that basis in a to be addressed this court been Hoyt any to make concluded that federal and to enable the kidnapping Kaiser longer regarding was no Hoover’s triggering intelligent judgment оffense counsel, Kaiser’s for both Kaiser and is confused to whether Counsel Fortune offered Fortune’s, pretrial objections, properly preserved this motions and trial a vari- rather than case, ety regarding objection. grounds, testimony we specific conclude Hoover’s specifics. as a and in certain on its merits. whole The record the claim fails necessarily predicate intent, That included the issue of story. probative had value. bare fact of the kidnapping. least See United States v. Delay, 500 F.2d 1360 Bloom, v. 1974); United 538 F.2d 704 (8th Cf. States Cir. States, Maxwell v. United 1976). (5th (9th Cir. 1966); F.2d 735 Cir. cf. United Hurt, U.S.App.D.C. evidence of other Admitting crimes for (1973). F.2d 1164 Consequently the deter- reason, however, proper only genu- if any admissibility mination of required a balanc- evidence, light need for that of the ine ing probative against value prejudicial other issues and availa- contested evidеnce impact, reviewable in this court for abuse outweighs prosecution, to the the dan- ble of discretion. See United Bailey, States v. will be that the inclined to convict ger (5th 1976); 537 F.2d 845 Cir. United States the other crimes show a because defendant Moton, (5th 493 F.2d 1974). Cir. We person.” to be a “bad States v. and, have viewed photographs although Miller, (5th 1974), 500 F.2d 751 Cir. reversed they upsetting, are say we cannot they grounds, on other U.S. any respect gruesome are in more or shock- (1976); 48 L.Ed.2d 71 United States v. ing than is any inherent in visual record of Goodwin, (5th F.2d 1141 1974). Cir. they a murder. Because important were we insist on careful application While establishing offense, elements of the we the inevitably great that balance because of cannot conclude that the admission of such danger we prejudice, cannot find fault photographs constituted an abuse of discre- admitting thе ‍‌‌​‌‌‌‌​​‌​​‌​​​​​​‌‌​​​​​​‌‌‌‌‌​​‌‌‌​‌‌‌​‌​​​‌​‍fact of the kidnapping tion, at least where prejudicial no less alter- here. That fact was the bare minimum native evidence was available. necessary to establish Hoover’s opportunity admissions, to hear Kaiser’s which were D. Motion Suppress to important, themselves relevant evidence. The Texas roadside detention of setting alternative for Hoover’s No testimo- occupied the car by Kaiser and Fortune

ny existed. in the discovery resulted and seizure of the permit go The court did Hoover to into murder victim’s driver’s license and two regarding greater detail the circumstances pistols. pistols purchased had been kidnapping necessary than was to shortly and, before the murder according to testimony make his to Kaiser’s admissions expert testimony, possibly had been em comprehensible jury. to the Nоnetheless ployed shooting. Appellant moved find flowing we are unable to harm unsuccessfully suppress to this evidence as improper from the failure to limit predi- obtained in violation of his fourth amend testimony narrowly. cate more The details rights. kidnapping greater reflected no force police Two officers testified depravity indepen- than ordinarily be com- dent observation of traffic prehended by prior the mere violations fact of kidnapping. ear. The officer highly ap- Given the who incriminating nature of stopping^the the driver’s j»Oached side the admissions testified that themselves and the abun- him, Fortune handed apparently of evidence implicating dance inadvert- Kaiser in thé' ently, the license that murder, proved later we can possible find no be- prejudice long to the murder victim. The po- other failure to exclude those details. that,

liceman testified on approaching the Photographs of C. Victim side, passenger’s the two pistol distinctive plainly handles were visible in the seat next Appellant complains also to Kaiser. trial court’s allowing decision the jury to photographs view of the victim as left at Appellant contradicted the story officers’ the scene of the murder and at the morgue. suppression below. This motion thus These black and white photographs, determination; used to hinged credibility on a we identity demonstrate the of the victim sa; cannot the trial court’s resolution death, the manner of the latter bearing on against appellant was erroneous. With the AINSWORTH, Judge favor, dissenting: Circuit their in the officers’ resolved facts transgress the fourth did not actions judgment in the of the court I concur plain Evidence discovered in amendment. conviction; affirming defendant Kaiser’s view, where officers are enti- place a from however, part of I dissent from and where their claim to stand to stand tled which reverses the opinion sentence court’s pretext solely legiti- a not created as is substitutes by electrocution and a of death intrusions, impermissible otherwise mate imprisonment. of life sentence within the subject of a “search” not the along Kaiser was indicted Peter Gaston amendment; seizing such meaning of that having “with Larry Fate Fortune for with the warrant re- trigger not does evidence deliberately aforethought, wilfully, malice quirement. premeditation” maliciously and and White, by Jr. means of Charles James killed Custody Receipts; Chain of Firearms E. firearm, Georgia, in Benning, at Fort a Kaiser claims that firearms Finally, statute, of the federal 18 U.S.C. violation aрartment seized from an receipts purchase 1111, within the pertaining to murder § immedi during period stayed where jurisdiction special maritime and territorial shooting should not following ately Kaiser was convict- United States.1 govern because the admitted have been degree first murder of and ed adequate chain establish an failed to death.2 sentenced court found such a custody. The trial of full text of 18 U.S.C. 1111reads as § in that determination was Any chain. error follows: harmless; adequate independent evidence Murder 1111. pistols Kaiser to the and time connected killing (a) unlawful of receipts. indicated on the Murder is the purchase aforethought. being with malice human by poison, ly- perpetrated murder Every CONCLUSION willful, wait, or other kind of ing in alleged trial None of the errors mandate malicious, deliberate, premeditated judgment reversal of the of сonviction for perpetration or committed in the killing; degree first murder. The anachronistic arson, of, attempt perpetrate, any or under which Kaiser was sen- robbery; perpetrat- burglary, or rape, tenced, however, support cannot the ulti- design unlawful- premeditated ed suggestion punishment. mate maliciously to effect the death ly and government might salvage its death federal than him who is being other any human penalty statute while state statutes of the killed, degree. in the first is murder grave uncon- genre same are sent to in the murder is murder Any other will stitutionality not be countenanced. degree. second Accordingly, judgment below is RE- special maritime and (b) Within permit PART to substitution VERSED IN the United jurisdiction imprisonment; other- territorial of life of a sentence States, it is AFFIRMED. wise in the United KAISER The indictment was returned PETER GASTON Middle District of District States Court LARRY FATE FORTUNE Division, perti- Georgia, аnd reads deliberately wilfully, Columbus aforethought, with malice part nent as follows: premeditation maliciously did kill and with Jr., White, a fire- means of THE GRAND JURY CHARGES: James Charles arm; ONE States COUNT Title United all violation August, day That the 28th Code, on or about Title i/c/w/ Section Middle Division of the in the Columbus Code, Section 2. jurisdiction Georgia, and within District pled guilty trial started after the 2. Fortune court, Benning, Georgia, within of this at Fort , life sentence. received a upon acquired the use of the lands jurisdic- under the exclusive United States and thereof, tion ground and made to of murder car lie on the guilty

Whoever suffer death unless shall and then defendants Kaiser and Fortune degree, by adding there- verdict shooting him, killing its jury qualifies finally took turns which punishment”, in to “without in the him with bullets head. The defend- to imprison- he be sentenced shall killing event ants admitted to friends immedi- life; ment for afterwards, ately prosecution one witness of in the guilty murder testifying (Kaiser) Whoever is that Pete him that told imprisoned degree, shall “They second “They nigger,” shot a and that had 25, of or for life. June any years term shooting they had turns taken him and then 645, 1948, c. 62 Stat. (Kaiser) Larry He joked it. told about (Fortune) something Larry kept on about in U.S.C.A. to the The Note Reviser’s Larry missing him and said at least article above states: watch, They robbed of his tried.” White U.S.C., 18, ed., Based on Title wallet, license his automobile. driver’s and 4, 452, 454, 1909, 321, (Mar. c. §§ morning they went out to The next 275, 1143, 273, 330, 35 Stat. §§ [De- victim place the murder be sure the of 5339; 15, 1897, Jan. c. rived R.S. § they kidnapped thereafter was dead. Soon 1, 487].) 29 Stat. Hoover, Columbus, Georgia, and Mr. at a research discloses that section Further they into Texas where were fled with him origin Congress has its in the First two possession in the of the apprehended United virtue the Act of victim, White, killing the and pistols used in II, 30, 1790, 1st IX, Cong. April Sess. ch. sec. mur- also driver’s licеnse. The of White’s (1790)) (1 which reads as Stat. in and der was committed the most wilful follows: perpetration fashion and in deliberate enacted, any And be it That if [further] robbery. It is difficult to conceive shall, fort, persons within person any or premeditated and killing. more heinous arsenal, magazine, dock-yard, or in place country, other or district holding of majority opinion The bases its jurisdiction and the sole exclusive unconstitutionality penalty of the death States, the crime commit of wilful first on in section 1111 Court’s murder, persons person being such Georgia, supra, in Furman decision thereof convicted shall suffer death. Georgia wherein the death penalty under in (Emphasis original.) was set criminal statutes as unconsti- aside opinion tutional. The that the fed- asserts Thus, from of this the dawn Nation’s eral murder statute here is “cut involved history, there has been federal statutе from the same die as that condemned as condemning enacted the crime Congress, in Georgia cruel and unusual” cases. of murder the sole and within exclusive majority The then states that the federal jurisdiction (such the United States Benning, present case) prosecutors Georgia, Fort courts and federal since Fur- penalty the death on con- prescribing generally capi- man have that the concluded penalty viction. For years provision tal 1111 is of section (as amended) provision of now the statute course, unconstitutional. Of all federal constitutionality until the ma- has survived prosecutors not so have concluded since striking it down. jority decision here Attorney the instant case the United States (Mr. District Georgia for the Middle murder involved The circumstances of the Knight) in his contends brief to this court aggravated. Two espeсially in this case are penalty provision that of section Fortune, men, ab- Kaiser defendants constitutional. majority 1111 is con- White, Columbus, victim, their ducted cases, that the 1976 penalty cludes death his car to Georgia, and took him Gregg Georgia, supra, companion isolated, undeveloped area of wooded cases, together with of Fort those decided portion military reservation holding was out basis for its Benning, provide White ordered Georgia. al statute is unconstitutional for standard- of the federal stat- jury be- less discretion remains to be seen. ute, is unconstitutional section vests in the “stan- statute cause contains detailed state- Section sentencing power.” dardless components ment of the which constitute supra, companion Gregg, opinion degree. The murder in the first facts and Stewart, Powell and Ste- cases, of Justices fully jury’s here warrant the circumstances new constitutionality of the upheld vens finding guilty of murder in the capital punish- Texas Georgia, Florida and definition, statutory degree within as to basis, with its on that statutes There were no extenu- Kaiser. defendant provide adequate statutes these state in this case that could ating circumstances jury guidelines for standards category taken it out of the have capital punish- requiring verdict reaching a in the statute. It degree murder as defined and Louisiana North Carolina ment. cold-blooded, deliberate, malicious, was a however, statutes, were struck down in the victim, White, killing of the premeditated (in Woodson v. North Caroli- decisions ground the prostrate he was dur- while Louisiana, supra) be- Roberts v. na and ing perpetration robbery. the mandatory death sen- they provided cause Perhaps majоrity may of the court ulti range of homicides. for a broad tences adopt of Justice Rehn mately the views plurality to that the important note It expressed in his dissent in Wood quist well White, Justice of Justice Chief opinion Carolina, 428 at U.S. son v. North Rehnquist, in the Burger and Justice Geor- 2998-3000, at 96 S.Ct. cases, and Texas did not concur gia, Florida (1976),as follows: L.Ed.2d Stewart, opinion of Justices plurality in the The Court’s insistence on “standards” Stevens, judg- only but in the Powell and “guide jury the in its inevitable exer- Blackmun de- ments of the Court. Justice power to decide which murder- cise of the join clined in either of the two which shall live and die” er shall opinions, judgments. but concurred in the opinion the contrary to Court’s squarely reasoning, majority By process of McGautha, supra, by authored Mr. Jus- opinion by uses an arithmetic calculation tice Harlan and subscribed to five adding the votes of the three Justices only of the Court five other Members Stevens) (Stewart, Powell and who assert in ago. latter-day is the Court’s years So jury the 1976 cases the standardless discre- recognition, years some four after the Eighth tion rule as a violation of the case, that Furman re- decision of the Amendments, Fourteenth with the two Jus- “objective guide, quires reg- standards to Marshall) (Brennan op- tices who are ularize, rationally and make reviewable posed cir- process imposing for a sentence of cumstances, thereby arriving majority at a death.” Its abandonment of stare decisis majority opinion of five Justices which repudiation in this of McGautha is a far for concludes forms the basis its mistake than its substitution of a lesser penalty provision of section superficial and contrived constitutional is unconstitutional. genuine con- doctrine wisdom tained in McGautha. There the Court pre- I cannot subscribe to this method of addressed the “standardless discretion” dicting what the individual members of the language: contention this Supreme Court will do under the circum- clear, course, view, case. It is argu- stances of this our force this “In such as present largely gen- that seven of the nine members of derives ment has from its capital pun- erality. grips have concluded that the Court Those who have come to punish- attempt- ishment is not cruel and unusual the hard actually task of per ing channeling capi- ment and is not unconstitutional to draft means for se. majority ultimately sentencing will have con- Whether hold tal discretion present taught by history feder- firmed the lesson expand scope consideration, than identify To before recounted above. of crimi- for no list of circumstances would ever fact those characteristics perpetrators really complete. The varie- and their infinite nal homicides penalty, and to cases and facets to each case ty for the death which call general standards either characteristics in lan- make express these would meaningless ‘boiler-plate’ or a state- fairly can be understood guage which no authori- ment of the obvious that applied U.S., S.Ct., 207-208, beyond which are at appear to be tasks need.” ty, (citation omitted). ability. present human at 1467 Office, “Thus the British Home noting plurali- It is also worth that the the recent abolition of which before repudiates ty opinion only not the view country in that capital punishment had McGautha, expressed by the Court but selecting responsibility also, McGautha, noted in view England and Wales which cases by every had been adhered to оther which Royal receive the benefit should jurisdiction which had con- American Prerogative Mercy, observed: U.S., question. at 196 sidered “ S.Ct., defining by any difficulty ‘The n. statutory provision types of murder penal- unable to hold that the death I am ought ought pun- which or not to be of the federal ty provision murder statute may by ished illustrated existing unconstitutional the basis of many to the diverse consider- reference Supreme Court since it is precedent Secretary which the Home ations to highest clear that our court far from regard deciding has in whether to rec- penalty provision nullify the death in sec- clemency. simple No formula ommend of three Justices tion 1111. The of the innumerable can take account Stevens) re- (Stewart, Powell and have degrees culpability, and no formula guidelines standards and quired just do so can claim to be which fails to assessing jury to use opinion.’ 1-2 satisfy Royal public will Whether this view continue penalty. Punishment, Capital Commission on applicable here is some- prevail to (1949).” of Evidence 13 Minutes thing that will have to be left for another S.Ct., U.S., 204-205, 91 at 1466. the wisdom of the day to Court. long history of the death

Given involved in the federal murder statute light history, experience, “In case, aggravated cir- the serious and this present limitations of human killing which the was cumstances under quite impossible it knowledge, we find fully justified which the unani- committed committing to the untram- say to jury degree mous verdict of power discretion of meled ‍‌‌​‌‌‌‌​​‌​​‌​​​​​​‌‌​​​​​​‌‌‌‌‌​​‌‌‌​‌‌‌​‌​​​‌​‍penalty, carrying with it the death murder pronounce life or death Congress I would defer to will anything cases is offensive present uphold reflected statute are entitled Constitution. penalty. constitutionality of the death jurors confronted to assume responsibility of de- truly awesome for a fellow human will creeing death for the conse- regard due

act with decision and will con-

quences of their factors, many of variety

sider suggested by the will have been

which arguments of de-

evidence or attempt For a court to

fense counsel. catalog appropriate factors in inhibit rather area could

this elusive

Case Details

Case Name: United States v. Peter Gaston Kaiser

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jan 14, 1977

Citation: 545 F.2d 467

Docket Number: 74-4128

Court Abbreviation: 5th Cir.