U.S. v. Gabrion, Nos. 02–1386

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Writing for the CourtARGUED:
Citation648 F.3d 307
Decision Date17 November 2011
Docket Number02–1570.,02–1461,Nos. 02–1386
PartiesUNITED STATES of America, Plaintiff–Appellee,v.Marvin Charles GABRION, II, Defendant–Appellant.

648 F.3d 307

UNITED STATES of America, Plaintiff–Appellee,
v.
Marvin Charles GABRION, II, Defendant–Appellant.

Nos. 02–1386

02–1461

02–1570.

United States Court of Appeals, Sixth Circuit.

Argued: Oct. 13, 2010.Decided and Filed: Aug. 3, 2011.Rehearing En Banc Granted, Opinion Vacated Nov. 17, 2011.


[648 F.3d 316]

ARGUED: Margaret O'Donnell, Frankfort, Kentucky, for Appellant. Timothy P. VerHey, Assistant United States Attorney, Grand Rapids, Michigan, for Appellee. ON BRIEF: Margaret O'Donnell, Frankfort, Kentucky, Kevin M. McNally, McNally & O'Donnell, Frankfort, Kentucky, Judy Clarke, Clarke & Rice, San Diego, California, for Appellant. Timothy P. VerHey, Joan E. Meyer, Assistant United States Attorneys, Grand Rapids, Michigan, for Appellee.Before: BATCHELDER, Chief Judge; MERRITT and MOORE, Circuit Judges.MERRITT, J., delivered the opinion of the court, in which MOORE, J., joined. BATCHELDER, C.J. (pp. 353–65), delivered a separate opinion concurring in part and dissenting in part.
OPINION
MERRITT, Circuit Judge.

We first heard this case and rendered a 2–1 decision on March 14, 2008, concluding that murder in a National Forest falls within federal subject matter jurisdiction, United States v. Gabrion, 517 F.3d 839 (6th Cir.2008). The parties then filed supplemental briefs in December 2009 and February 2010; and, after a second oral argument, we are now prepared to decide the other issues on the merits.

This case is a direct appeal pursuant to 18 U.S.C. § 3595 in a federal death penalty murder case tried in federal court in Grand Rapids, Michigan, for a murder committed in the Manistee National Forest. The defendant, Marvin Gabrion, was sentenced to death by the jury. Although the defendant raises issues on appeal relating to the guilt and sentencing phases of the trial, we find that three issues, all arising in connection with the sentencing phase, are the most difficult. The first arises from the need to determine the nature of Gabrion's severe mental and emotional disabilities in order to determine his competence to stand trial at the sentencing phase of the case after he had physically attacked his lawyer in open court in front of the jury. The second arises from the ruling of the District Court that Gabrion, in an effort to mitigate his punishment to life imprisonment, could not use the fact that Michigan, where the murder occurred, had abolished the death penalty. His counsel wanted to offer in mitigation and argue to the jury that in our legal system Gabrion's trial would have had to take place in state court where life imprisonment was the maximum punishment, instead of in the federal court, if the victim's body had been found outside the Manistee National Forest, just 227 feet away from where it was found inside the

[648 F.3d 317]

National Forest. His counsel wanted the jury to choose life imprisonment, rather than the death penalty, because the State of Michigan had abolished the death penalty and had not executed anyone for more than 160 years. The third issue arises from the failure of the District Court to advise the jury that it must find that the “aggravators outweigh the mitigators beyond a reasonable doubt” in order to impose the death penalty. The District Court left undefined the measure of persuasion or the degree of certitude required of each juror concerning the ultimate question of fact resolved by the weighing process.

The State of Michigan accused Marvin Gabrion of raping Rachel Timmerman in August 1996. There is no doubt that he murdered her and her infant daughter in June 1997 while awaiting trial for raping her. The jury verdict at the guilt phase of Gabrion's murder trial accepted the government's detailed evidence that Gabrion bound Rachel Timmerman with chains during the first week of June 1997, took her while alive in a small boat, and dumped her into Oxford Lake with cinder blocks to weigh her down. Her bloated, drowned body was found on July 5, 1997, after it had been in the lake for several weeks. The lake was a shallow swamp filled with vegetation so that the body would stay where it was dumped from the boat and would not be carried to another location by a current or wind. The body was within the Manistee National Forest, 227 feet south of the boundary. Timmerman's eyes and mouth were covered with duct tape wrapped around her head. In addition to overwhelming circumstantial evidence, three witnesses testified that Gabrion had made statements to them incriminating himself in Timmerman's murder.

At the sentencing phase of the case after the guilty verdict, the jury found the existence of a number of aggravating factors: a likelihood that Gabrion would harm others in the future; the brutal, depraved, and premeditated nature of his crime; the murder of Timmerman's infant daughter; and obstruction of justice in order to avoid apprehension for rape. The jurors also found as mitigating factors that he was abused as a child and that he had a significant Antisocial Personality Disorder.

The testimony and the psychiatric literature lead to a conclusion that Gabrion suffered from an extreme Antisocial Personality Disorder in the nature of severe psychopathic madness; but we agree with the District Court that this did not render him incompetent to stand trial. He knew what he was doing throughout. We conclude, however, that the District Court did err in two respects—by failing to give a proper reasonable doubt instruction and by refusing to allow Gabrion's counsel to argue for mercy in mitigation of the death penalty on the ground that Gabrion could not have received the death penalty if the body had been found 227 feet away, outside the National Forest. Counsel was prevented from trying to convince the jury in mitigation that the administration of the death penalty in this instance was random and based on chance. The District Court's ruling in this respect was in error under 18 U.S.C. § 3592(a), which reads: “Mitigating factors—In determining whether a sentence of death is to be imposed on a defendant, the finder of fact shall consider any mitigating factor....” (Emphasis added.) We will first analyze the competence, mitigation, and reasonable doubt problems. We will then analyze the remaining issues. The result is that the case will be remanded for a retrial of the sentencing phase of the case. The issues will be discussed in the order

[648 F.3d 318]

set out in the footnote below.1 The statute provides that on appeal: “The Court of Appeals shall address all substantive and procedural issues raised on the appeal of a sentence of death....” 18 U.S.C. § 3595(c)(1).
I. Gabrion's Mental Disabilities and His Competence to Stand Trial

The actual murder trial began on February 25, 2002, and ended on March 16, 2002. Beginning with pretrial matters three years before and throughout the trial, Gabrion consistently disrupted the proceedings in many ways. At oral argument before us on appeal, appellate counsel focused her argument primarily on the contention that Gabrion was incompetent to stand trial—particularly during the sentencing phase after he hit his lawyer in the face with his fist in front of the jury. The claim that Gabrion lost competence in the sentencing phase of the trial when he punched his lawyer in the face is belied by the testimony of Dr. Gregory Saathoff. He is a professor of clinical psychology at the University of Virginia. He testified on March 15, 2002, after Gabrion's attack on his lawyer. Saathoff testified in detail that Gabrion's behavior at trial was part of Gabrion's deviant personality characterized by a recurring pattern of deception and in this instance his effort to fake incompetence.2 This evaluation after the attack

[648 F.3d 319]

was consistent with the evaluations of seven other mental health experts before the attack. For example, the first evaluation was given by Dr. Emily Fallis of the Federal Medical Center in Fort Worth in May 2000. She found Gabrion to be a “sociopath,” a man with an “Antisocial Personalty Disorder [that] include[d] inability to follow rules and laws; lying and manipulating others; impulsivity; irritability and aggressiveness; and consistent irresponsibility.” (Vol. VII, JA 2277.) Gabrion's behavior fits the checklist for severe psychopathy in the psychiatric literature that includes the following characteristics:

1. Glibness/superficial charm

2. Grandiose sense of self-worth

3. Need for stimulation

4. Pathological lying

5. Conning/manipulative

6. Lack of remorse or guilt

7. Shallow affect

8. Callous/lack of empathy

9. Parasitic lifestyle

10. Poor behavioral controls

11. Promiscuous sexual behavior

12. Lack of realistic, long-term goals

13. Impulsivity

14. Irresponsibility

15. Criminal versatility

Kent A. Kiehl, “A Cognitive Neuroscience Perspective on Psychopathy: Evidence for Paralimbic System Dysfunction,” Elsevier 107, 109 (2006), available at www. sciencedirect. com by searching for author.

From the early pretrial proceedings, Gabrion sought to represent himself without a lawyer. He began to inundate the magistrate judge with letters and writings saying that his lawyers were “Satanic” and trying to frame him. He refused to cooperate with his appointed lawyers by providing information. He harassed them. For example, he called the office of one of his lawyers more than 80 times on a single day while continuing to inundate court staff with letters and phone calls. He continues this process on appeal by sending voluminous writings and letters to this court. On occasion, he called the district judge an “evil Hitler” and said in court that the judge was having sex with a 14–year–old girl and had gotten a 13–year–old girl pregnant. He insulted the jury. He came to court dirty with black marks over his forehead and the letters “AZZA” on his forehead. On some occasions during the trial, Gabrion's conduct became so unruly that the court had to expel him from the courtroom and allow him to return restrained at the wrists and legs....

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39 practice notes
  • United States v. Thurman, Criminal Action No. 3:10CR107–H.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Western District of Kentucky
    • January 7, 2013
    ...party against whom such testimonial hearsay is offered had the prior opportunity to cross-examine the declarant. United States v. Gabrion, 648 F.3d 307, 339–40 (6th Cir.2011) (“Under the Confrontation Clause of the United States Constitution, testimonial, out-of-court statements offered aga......
  • United States v. Mikhel, No. 07-99008
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • May 9, 2018
    ...death penalty under different law. To hold otherwise would simply be an invitation to jury nullification. See United States v. Gabrion , 648 F.3d 307, 362–63 (6th Cir. 2011) (Batchelder, C.J., concurring in part and dissenting in part) ("Gabrion's counsel would urge the jurors to disregard ......
  • United States v. Gabrion, Nos. 02–1386
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • May 28, 2013
    ...and unanimously rejected 20 of them. Over a dissent, however, two members of the panel vacated Gabrion's death sentence on two grounds. See648 F.3d 307. We granted the government's petition to vacate the latter decision and rehear the case en banc.II. We begin with the three issues that wer......
  • United States v. Montgomery, No. 2:11–cr–20044–JPM–1.
    • United States
    • United States District Courts. 6th Circuit. Western District of Tennessee
    • March 19, 2014
    ...introduction of other acts information to acts for which the defendant has been adjudicated criminally guilty.” United States v. Gabrion, 648 F.3d 307, 348 (6th Cir.2011), rev'd en banc on other grounds, 719 F.3d 511 (6th Cir.2013). “[E]very circuit to consider the issue has held that unadj......
  • Request a trial to view additional results
39 cases
  • United States v. Thurman, Criminal Action No. 3:10CR107–H.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Western District of Kentucky
    • January 7, 2013
    ...party against whom such testimonial hearsay is offered had the prior opportunity to cross-examine the declarant. United States v. Gabrion, 648 F.3d 307, 339–40 (6th Cir.2011) (“Under the Confrontation Clause of the United States Constitution, testimonial, out-of-court statements offered aga......
  • United States v. Mikhel, No. 07-99008
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • May 9, 2018
    ...death penalty under different law. To hold otherwise would simply be an invitation to jury nullification. See United States v. Gabrion , 648 F.3d 307, 362–63 (6th Cir. 2011) (Batchelder, C.J., concurring in part and dissenting in part) ("Gabrion's counsel would urge the jurors to disregard ......
  • United States v. Gabrion, Nos. 02–1386
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • May 28, 2013
    ...and unanimously rejected 20 of them. Over a dissent, however, two members of the panel vacated Gabrion's death sentence on two grounds. See648 F.3d 307. We granted the government's petition to vacate the latter decision and rehear the case en banc.II. We begin with the three issues that wer......
  • United States v. Montgomery, No. 2:11–cr–20044–JPM–1.
    • United States
    • United States District Courts. 6th Circuit. Western District of Tennessee
    • March 19, 2014
    ...introduction of other acts information to acts for which the defendant has been adjudicated criminally guilty.” United States v. Gabrion, 648 F.3d 307, 348 (6th Cir.2011), rev'd en banc on other grounds, 719 F.3d 511 (6th Cir.2013). “[E]very circuit to consider the issue has held that unadj......
  • Request a trial to view additional results

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