87 F.3d 1136 (10th Cir. 1996), 93-7118, United States v. McCullah

Docket Nº:93-7118.
Citation:87 F.3d 1136
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. John Javilo McCULLAH, Defendant-Appellant.
Case Date:June 26, 1996
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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87 F.3d 1136 (10th Cir. 1996)

UNITED STATES of America, Plaintiff-Appellee,


John Javilo McCULLAH, Defendant-Appellant.

No. 93-7118.

United States Court of Appeals, Tenth Circuit

June 26, 1996

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Gary Peterson, Oklahoma City, Oklahoma (Stephen J. Greubel and Stephen J. Knorr of the Office of the Federal Public Defender, Tulsa, Oklahoma, with him on the brief), for Defendant-Appellant.

Robert J. Erickson, Department of Justice, Washington, DC (John Raley, United States Attorney, Sheldon J. Sperling and Paul G. Hess, Assistant United States Attorneys, Muskogee, Oklahoma, with him on the brief), for Plaintiff-Appellee.

Before SEYMOUR, Chief Judge, ANDERSON and KELLY, Circuit Judges.


PAUL KELLY, Jr., Circuit Judge.

This matter comes on for consideration of Defendant McCullah's petition for rehearing and the government's petition for rehearing with en banc suggestion in United States v. McCullah, 76 F.3d 1087 (10th Cir.1996). Relying upon Lowenfield v. Phelps, 484 U.S. 231, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988) and United States v. Flores, 63 F.3d 1342 (5th Cir.1995), petition for cert. filed, No. 95-8346 (Mar. 14, 1996), the government argues that the panel incorrectly decided that aggravating factors which overlap are impermissible. The government also argues that the panel misapplied Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991), in finding that Mr. McCullah's statements to Lozano were coerced. The panel concludes that original disposition is correct; although Judge Anderson concurred in the panel disposition, he now dissents from the denial of the government's rehearing petition and the denial of the en banc suggestion.


We disagree with the dissent's analysis of the aggravating factors and reject the government's argument that Flores is on point and that the factors do not overlap in this case. Flores involved multiple murders--the defendant personally killed one victim and hired others to kill the other two victims. For two of the victims, the jury found multiple (n)(1) aggravating factors, namely that the defendant "intentionally killed the victims" and that the defendant "intentionally engaged in conduct intending that the victims be killed or that lethal force be employed against the victims." Flores, 63 F.3d at 1372.

The Fifth Circuit found that these factors were not duplicative under the facts in Flores stating:

[I]ntentionally killing and intentionally engaging in conduct intending that the victim be killed are not necessarily identical conduct. A defendant who personally murders a victim has a different mental state than one who pays others to kill. Similarly, a defendant who personally kills and hires others to assist him during the killing has more than one blameworthy intention. Although the ultimate goal is the same--the victim's death--the defendant's intentions as to how he will achieve that goal are not singular. It is not irrational for Congress to decide that a defendant with such a dual intent should be treated as more deserving of death than a defendant with only one.


At a glance it may seem that the same reasoning might apply to Defendant McCullah, but a closer examination of the facts of Flores reveals the crucial distinctions. In Flores, the defendant attempted to have one of the victims killed on prior occasions before finally succeeding. Id. at 1351-52. These prior attempts supported the "engaging in conduct intending that the victims be killed" aggravating factor, which was separate and distinct from the "intentional killing" factor which pertained to the actual murder. Similarly, the other victim was tracked down by the defendant and his henchmen and interrogated by one of the defendant's accomplices in the defendant's armed presence. Then the defendant ordered the victim away, but evidently changed his mind and decided to kill him, shooting him numerous times. The jury may have found that the tracking down and the armed interrogation by the accomplice supported the lethal conduct aggravating factor, separate from the actual shooting which supported the intentional killing factor. The Fifth Circuit's reasoning endorses this

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idea, stating "a defendant who personally kills and hires others to assist him during the killing has more than one blameworthy intention." Flores, 63 F.3d at 1372. Simply put, the defendant in Flores engaged in separate acts which supported different aggravating factors.

By contrast, the aggravating factors alleged in this case, which are different than those in Flores, overlapped because they were predicated upon the same acts by McCullah--namely, that McCullah identified the victim and drove him to the ambush site. First, the jury found as aggravating factors that McCullah "intentionally engaged in conduct intending that the victim be killed or that lethal force be employed against the victim, which resulted in the death of the victim" and that McCullah "committed the offenses as to which he is charged in the indictment." One of the offenses charged in the indictment was that McCullah "did intentionally kill an individual, or did intentionally counsel, command, induce, procure, or cause the killing of an individual, and such killing did result or happen." The latter aggravating factor--"committed the offenses ..."--necessarily includes the acts which support the first aggravating factor, which consisted primarily of driving the victim to the ambush site. The latter factor may be broader than the former, but the fact remains that the former is subsumed by the latter and thus is redundant.

Second, the jury in this case found as an aggravating factor that McCullah "intentionally engaged in conduct which he knows creates a grave risk of death and that such death results." This factor largely duplicates the first aggravating factor, "intentionally engaged in conduct intending that the victim be killed...." The same underlying conduct by McCullah--again the act of driving the victim to the ambush site--is used to support both factors.

Additionally, although ingenious, the government never suggested that "scouting the intended victim and rehearsing the plan ... and actually bringing the particular murder victim to the planned murder site," were separate acts supporting the various aggravators. See Dissent at 1142. Driving the victim to the murder site (intentionally engaging in conduct intending the victim be killed) and driving the victim to the murder site (engaging in conduct which creates a grave risk of death) is still the same conduct. Likewise, driving the victim to the murder site (intentionally engaging in conduct intending the victim be killed) and driving the victim to the murder site (intentionally killing in furtherance of a continuing criminal enterprise) overlap. The same act can be described several ways, but it is still the same act.

As to the effect of duplicative factors, the dissent acknowledges that Lowenfield, 484 U.S. 231, 108 S.Ct. 546, 98 L.Ed.2d 568, does not directly address this situation. See Dissent at 1142. However, unlike the dissent, we cannot conclude that Lowenfield lends any support to the contention that duplicative factors are acceptable. First, it should be noted that Lowenfield did not involve a "weighing" statute but rather a threshold death-eligibility question, and the only duplication at issue was the duplication of an aggravating factor with an element of the offense itself. Lowenfield essentially held that it is constitutional for a state to legislatively define a crime in such a way that an element of the crime is also a threshold aggravating factor, making any defendant convicted of the crime death-eligible. Id. at 246, 108 S.Ct. at 555. It is too much of a stretch to say that Lowenfield supports the idea that the use of duplicative factors in a weighing statute is acceptable, especially in light of the critical distinction between weighing and nonweighing jurisdictions recognized by the Supreme Court in Stringer v. Black, 503 U.S. 222, 231-32, 112 S.Ct. 1130, 1137-38, 117 L.Ed.2d 367 (1992).

It should also be noted that Flores, which the dissent endorses, recognized the invalidity of duplicative factors, relying upon Randolph v. State, 463 So.2d 186, 193 (Fla.1984) (separate aggravators "committed during the commission of a robbery" and "committed for pecuniary gain" found invalid), cert. denied, 473 U.S. 907, 105 S.Ct. 3533, 87 L.Ed.2d 656 (1985). The Fifth Circuit explained: "In cases like Randolph, the aggravators simply described the same conduct or motive in two

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different ways (i.e., a defendant who robs is usually seeking pecuniary gain)," Flores, 63 F.3d at 1372, implying that such duplicative factors are indeed invalid.


As to the Fulminante issue, unless we are prepared to elevate "form over substance," the defense adequately alerted the trial court to the problem based upon its allegation of "outrageous," i.e. improper, governmental conduct. This is a capital case--failure to say the "magic words" should not result in the affirmance of a death sentence which might not otherwise have been imposed.

On the merits, the government ignores the clear language of Fulminante and suggests that the key to that case is "the imminency of the threat of physical injury and the lack of means to avoid physical harm." Aplee. Reh'g Petition at 14. However, the Supreme Court language is to the contrary:

Our cases have made clear that a finding of coercion need not depend upon actual violence by a government agent; a credible threat is sufficient. As we have said, "coercion can be mental as well as physical, and ... the blood of the accused is not the only hallmark of an unconstitutional inquisition."

Fulminante, 499 U.S. at 287, 111 S.Ct. at 1253 (quoting Blackburn v. Alabama, 361 U.S. 199, 206, 80 S.Ct. 274, 279-80, 4 L.Ed.2d 242 (1960)). In this case there is no dispute...

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