U.S. v. Fell

• Decision Date: 17 June 2009
• Docket Number: No. 06-2882-cr.,06-2882-cr.
• Parties: UNITED STATES of America, Appellee, v. Donald FELL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

571 F.3d 264

UNITED STATES of America, Appellee, v. Donald FELL, Defendant-Appellant.

No. 06-2882-cr.

United States Court of Appeals, Second Circuit.

June 17, 2009.

William B. Darrow, Assistant United States Attorney, Burlington VT, for Appellee.

John Blume, Cornell Law School (Christopher Seeds, Sheri Lynn Johnson, on the brief), Ithaca, NY; Alexander Bunin, Federal Public Defender, Albany, NY, for Appellant.

ORDER

Defendant-Appellant Donald Fell, having filed a petition for panel rehearing or, in the alternative, for rehearing en banc, and the panel that determined the appeal having considered the request for panel rehearing, and the active members¹ of the Court having considered the request for rehearing en banc, IT IS HEREBY ORDERED that the petition is DENIED. See Fed. R.App. P. 35(a).

Pursuant to Second Circuit Local Rule 0.28(7)(d), an automatic stay of execution of the sentence of death has been in place as of the date of the filing of the notice of appeal from the judgment of conviction, and remains in effect (unless vacated or modified) until the expiration of all proceedings available to the Defendant-Appellant (including review by the United States Supreme Court) as part of the direct review of the judgment of conviction.

Accordingly, the issuance of the mandate is held until the expiration of all proceedings available to the Defendant-Appellant (including review by the United States Supreme Court) as part of the direct review of the judgment of conviction.

With this Order, Judge RAGGI is filing a concurring opinion, in which Chief Judge JACOBS and Judges CABRANES, B.D. PARKER, WESLEY, and LIVINGSTON join; Judge CALABRESI is filing a dissenting opinion; Judge POOLER is filing a dissenting opinion; and Judge SACK is filing a dissenting opinion.

REENA RAGGI, Circuit Judge, with whom Chief Judge JACOBS, Judge CABRANES, Judge PARKER, Judge WESLEY, and Judge LIVINGSTON join,

concurring:¹

On November 26, 2000, in Rutland, Vermont, Donald Fell and Robert Lee viciously stabbed to death Fell's mother Debra and her companion Charles Conway. Early the next morning, the killers went to a local mall where they kidnapped Teresca King, a 53-year old convenience store clerk arriving for work, and stole her car to make their escape from the state. After driving several hours and crossing into New York State, Fell and Lee stopped in a wooded area where they forced King out of the car and brutally beat her to death.

Of the three murders committed by Fell on November 26-27, 2000—two in Vermont and one in New York—only the New York murder qualified as a capital crime under federal law because it originated with an interstate kidnapping and carjacking. See 18 U.S.C. §§ 1201(a)(1) (capital kidnapping), 2119(3) (capital carjacking). In short, Teresca King's murder was no local crime. It implicated real and significant federal interests because it was achieved by transporting the victim across state lines.² Accordingly, Fell was indicted by a federal grand jury sitting in the District of Vermont for the capital crimes of kidnapping and carjacking resulting in Teresca King's death in New York. In June 2005, a federal petit jury in Vermont found Fell guilty of these crimes and, in July, the same jury unanimously voted that he should be sentenced to death.

In a detailed opinion, a panel of this court rejected Fell's challenge to that sentence and affirmed the judgment of conviction. See United States v. Fell, 531 F.3d 197 (2d Cir.2008). Today, the court denies en banc review of this appeal. I join in that decision, and I write now only to respond to certain points raised by my colleague Judge Calabresi in his dissent from the denial of rehearing en banc.

At the outset, I note my agreement with the dissent's characterization of the trial court's conduct in this difficult case as "nothing short of exemplary" and of the panel opinion as "exceedingly careful" in its discussion of the various sentencing challenges raised by Fell. Post at 283. Similarly, I agree that Fell's specific claims of error in the district court's (1) removal for cause of Juror 64, and (2) refusal to admit a draft plea agreement at the penalty phase of the trial, fail under the "traditional rules" established by Supreme Court precedent. Post at 283, 286. Where I cannot agree with the dissent is in its suggestion that en banc review is needed to consider the possibility that something more than these traditional rules is necessary to address "federalism" concerns not raised by Fell either in the district court or on direct appeal: specifically, (1) whether a district court selecting a federal capital jury in a state—such as Vermont—that does not itself provide for the death penalty, must somehow take that fact into account in deciding whether to excuse jurors who express opposition to the death penalty; and (2) whether, in mitigation of sentence, a jury must be allowed to hear that the United States Attorney in the venue state had, at one point, been willing to enter into a plea agreement that provided for a non-capital disposition of the case. I respectfully submit that these "federalism" concerns are more imaginary than real and do not warrant our en banc consideration.

I. The Dissent's Jury Selection Concern

The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed." U.S. Const, amend VI. In Fell's case, there is no question that each and every juror who voted to impose the death penalty was a resident of the State and District of Vermont. Nor is there any question as to the impartiality of these jurors.

The dissent nevertheless urges us to consider en banc whether federalism principles require us to construe the Sixth Amendment vicinage requirement to demand not only that a federal criminal jury be drawn from the relevant state and district, but also that its members somehow represent the local "values" of that vicinage. Specifically, the dissent interprets Vermont's lack of death penalty legislation as evidence that "presumably a large portion of the population . . . is opposed to the death penalty." Post at 283. It submits that a proper respect for federalism might require a federal judge, in selecting a capital jury in such a state, to be "attuned to whether the jury members (and not just the jury pool . . .)—though willing to follow the law—are also representative of a state's overall opposition to the death penalty." Post at 284. The dissent suggests that we consider en banc whether to remand this case "to ask the able District Judge whether, in striking Juror 64, he fully considered the constitutional relevance of the values of Vermonters, the values of the jurisdiction in which he sat." Post at 285. Respectfully, I think no such en banc review, much less such a remand, is warranted in this case.

A. Juror 64's Voir Dire Responses Made It Appropriate To Remove Her Regardless of Vicinage

The above-quoted issue that the dissent proposes for en banc review relies on a critical assumption: that the juror under consideration, though opposed to the death penalty, was nevertheless "willing to follow the law." Post at 284. If that were true, we would hardly need to convene en banc to address the dissent's federalism theory because the Supreme Court has already made clear that the removal of such a juror constitutes reversible error. See Gray v. Mississippi, 481 U.S. 648, 668, 107 S.Ct. 2045, 95 L.Ed.2d 622 (1987). In Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), the Court ruled that opposition to the death penalty is not enough, by itself, to support a prospective juror's removal for cause. See id. at 522, 88 S.Ct. 1770. Thereafter, in Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985), the Court held that, in a capital case, removal for cause based on a prospective juror's views about the death penalty is warranted only where the court forms "a definite impression" that "the juror's views would prevent or substantially impair" the juror's "performance of his duties . . . in accordance with his instructions and his oath." Id at 424-26, 105 S.Ct. 844 (internal quotation marks omitted); see United States v. Fell, 531 F.3d at 210 (discussing Supreme Court precedent regarding capital jury selection).

This case, however, does not fall within the dissent's paradigm. The juror referred to by the dissent—Juror 64—failed to demonstrate under Witt-Witherspoon and their progeny that she was willing to follow the law despite her personal objection to the death penalty. As the Supreme Court explained in Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986), "those who firmly believe that the death penalty is unjust may nevertheless serve as jurors in capital cases so long as they state clearly that they are willing to temporarily set aside their own beliefs in deference to the rule of law." Id. at 176, 106 S.Ct. 1758 (emphasis added). The panel opinion demonstrates that Juror 64 made no such clear statement: "[t]hroughout the district court's painstaking and thoughtful voir dire, Juror 64 walked a fine line between her opposition to the death penalty and her willingness to follow the district court's instructions." United States v. Fell, 531 F.3d at 213. This is not to fault the juror. A juror's experiences, beliefs, and values may sometimes make it difficult for the juror to know, much less to state clearly or confidently, whether she will be able to set aside her own beliefs in deference to the rule of law. In such circumstances, a district court appropriately relies on its voir dire experience and its unique ability to observe the prospective juror during questioning to assess whether the juror will be able faithfully and impartially to apply the law. See Wainwright v. Witt, 469 U.S. at 426, 105 S.Ct. 844; see...