Sampson v. United States

• Decision Date: 04 August 2016
• Docket Number: No. 16-1727,16-1727
• Parties: Gary Lee Sampson, Petitioner, Appellant, v. United States of America, Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

832 F.3d 37

Gary Lee Sampson, Petitioner, Appellant,

v.United States of America, Respondent, Appellee.

No. 16-1727

United States Court of Appeals, First Circuit.

August 4, 2016

Paul Mogin , with whom William E. McDaniels , Jennifer G. Wicht , Williams & Connolly LLP , Washington, DC, Michael Burt , Law Office of Michael Burt , San Francisco, CA, Danalynn Recer , Austin, TX, and Gulf Region Advocacy Center were on brief, for appellant.

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 18 U.S.C. §§ 3591

–3599. His death sentence was later vacated due to jury taint, and his case returned to the district court for further proceedings. The government filed an amended notice that it sought the death penalty. That notice listed the factors that in its view justified the death penalty, largely tracking the original notice. Sampson challenged several aspects of that notice.

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.

Under Supreme Court precedent, Sampson's claims must be rejected. We affirm the district court's order.

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 18 U.S.C. § 3593(a)

.

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 id.§ 3593(b)

. If the defendant is convicted of a predicate capital offense in the guilt phase, the government then must prove beyond a reasonable doubt in the penalty phase that the defendant was at least 18 years old, committed one of four acts with the requisite mental state,³ and committed at least one of sixteen statutory aggravating factors. Id.§§ 3591(a), 3592(c), 3593(c)–(d).

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. Id.§ 3593(e). “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

.’ ” Sampson I, 486 F.3d at 44 n.14 (quoting Jones v. United States, 527 U.S. 373, 378 n.2, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999) ). The jury must submit special findings on any aggravating factors, 18 U.S.C. § 3593(d), and must find unanimously that the government has proven any aggravating factors, statutory or non-statutory, beyond a reasonable doubt, id.§ 3593(c) –(d).

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.

Pertinent to this appeal, the jury did not find unanimously that the government had proven beyond a reasonable doubt two alleged non-statutory aggravating factors, future dangerousness and murder to obstruct justice, for either charge.⁴ That is, the unanimity requirement had not been met as to those two factors. It is from this circumstance that Sampson constructs his argument in this appeal.

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 28 U.S.C. § 2255

. The district court, finding that a juror had lied during the voir dire process in answering questions about her ability to be impartial, Sampson II, 820 F.Supp.2d at 192–97, vacated Sampson's sentence, id. at 202. The government appealed, and we took jurisdiction and affirmed on the basis of juror misconduct. Sampson V, 724 F.3d at 170.

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.”

Sampson then moved for a certificate of appealability under 28 U.S.C. § 2253(c)

. The district court, citing Abney v. United States, 431 U.S. 651, 662, 659, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977), reasoned that its rejection of Sampson's motion to dismiss or strike the two non-statutory aggravating factors was a “pretrial order[ ] rejecting [a] claim[ ] of former jeopardy,” and so was one of the “small class of cases that [are] beyond the confines of the final-judgment rule.” The district court granted Sampson's motion and issued a certificate of appealability on the following question: “Whether the Double Jeopardy Clause bars the government, at Sampson's new penalty phase hearing, from seeking to prove two non-statutory aggravating factors which the jury at Sampson's first penalty phase hearing found had not been proven beyond a reasonable doubt.” Sampson then filed this timely appeal.

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, 28 U.S.C. § 1651(a)

. We conclude that, whether or not we have...