U.S. v. Hammer

• Decision Date: 31 August 2000
• Docket Number: No. 98-9011,98-9011
• Citation: 226 F.3d 229
• Parties: (3rd Cir. 2000) UNITED STATES OF AMERICA, v. DAVID PAUL HAMMER, Appellant
• Court: U.S. Court of Appeals — Third Circuit

Page 229

226 F.3d 229 (3rd Cir. 2000)

UNITED STATES OF AMERICA, v. DAVID PAUL HAMMER, Appellant

No. 98-9011

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Argued July 18, 2000

Filed August 31, 2000

On Appeal from the United States District Court for the Middle District of Pennsylvania, D.C. Crim. No. 96-00239, District Judge: Honorable Malcolm Muir Attorneys for Appellee: David M. Barasch United States Attorney Frederick E. Martin Assistant United States Attorney 240 West Third Street Suite 316 Williamsport, PA 17701, Gwynn X. Kinsey, Jr. (argued) Attorney, United States Department of Justice Criminal Division 601 D. Street, N.W. Washington, D.C. 20530

Appellant pro se: David Paul Hammer (argued) P.O. Box 33 Terre Haute, IN 47808-0033 Stand-by Attorneys for Appellant: Ronald C. Travis Rieders, Travis, Mussina, Humphrey & Harris 161 West Third Street P.O. Box 215 Williamsport, PA 17703, David A. Ruhnke Ruhnke & Barrett 47 Park Street Montclair, N.J. 07042

Attorneys for amicus curiae John J. Gibbons: John J. Gibbons Lawrence S. Lustberg (argued) Jessica A. Roth Gibbons, Del Deo, Dolan, Griffinger & Vecchione One Riverfront Plaza Newark, N.J. 07102-5497

BEFORE: BECKER, Chief Judge, and STAPLETON and GREENBERG, Circuit Judges

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I.

A.

This matter comes before this court on David Paul Hammer's appeal from the judgment of conviction and sentence entered on November 4, 1998, in which the district court imposed a sentence of death. We will dismiss the appeal.

On April 13, 1996, Hammer, then an inmate at USP/Allenwood in Pennsylvania, murdered Andrew Marti, another inmate, by strangulation within a cell in the special housing unit in Allenwood. Hammer was a state prisoner transferred to the federal system from Oklahoma pursuant to 18 U.S.C. S 5003 and Marti was a federal prisoner serving a sentence for bank robbery. No question ever has been raised about the fact that Hammer committed the murder.

A grand jury indicted Hammer for violations of 18 U.S.C. S 1111 (first degree murder within the special maritime and territorial jurisdiction of the United States) and 18 U.S.C. S 1118 (murder by a federal prisoner serving a life sentence). The court, however, on the government's motion, dismissed the section 1118 charge and thus Hammer ultimately went to trial solely on the section 1111 charge. Prior to the trial, the government served and filed a notice that it intended to seek the death penalty. While originally Hammer presented an insanity defense, during the trial he pleaded guilty to the murder, thus abandoning that defense.

Thereafter the case was tried to the jury but only with respect to the sentence. On July 24, 1998, the jury returned a verdict recommending the imposition of the death sentence. Subsequently, Hammer filed a pro se motion seeking an order discharging counsel and allowing him to proceed pro se and determine for himself whether to appeal. The district court held an evidentiary hearing on the motion. It received testimony from two highly qualified psychiatrists, Drs. John Mitchell and James Wolfson, who had examined Hammer. Their testimony is chronicled in the district court's opinion, United States v. Hammer, 25 F. Supp. 2d 518 (M.D. Pa. 1998). See especially the findings of fact 21-38, id. at 523-24.

In the testimony cited in these findings, the psychiatrists canvassed the range of cognitive and emotional capacities relevant to the question whether Hammer was competent to waive his rights and whether his waiver was voluntary. They concluded that Hammer was fully competent, and that his decision to forego an appeal and ask for the immediate imposition and carrying out of the sentence of death was a competent and well reasoned decision. The district court also noted that the parties stipulated that none of the defense experts who testified at trial suggested that Hammer was incompetent at any relevant time.¹ On the basis of the foregoing, the district court found that Hammer was competent to waive his rights and that the waiver was voluntary.

On October 9, 1998, the court entered an order discharging Hammer's counsel, appointing stand-by counsel for him, and fixing a sentencing date. On November 4, 1998, the district court sentenced Hammer to die. A notice of appeal was filed on Hammer's behalf on November 12, 1998.

In the course of its opinion the court described the case as follows:

The evidence presented during the trial viewed in a light most favorable to the government establishes that Mr. Hammer bound each limb of Mr. Marti by using the ruse that he would only slightly injure Mr. Marti and obtain a transfer for Mr. Marti to another prison. Mr. Hammer after rendering Mr. Marti helpless put Mr. Marti in a sleeper hold. Testimony from a pathologist established that Mr. Marti struggled in the restraints. Once Mr. Marti was rendered unconscious by the sleeper hold, Mr. Hammer strangled him with a homemade cord. In recommending a sentence of death the jury, as required by statute, found that the government established beyond a reasonable doubt that Mr. Hammer intentionally killed Mr. Marti. The jury also found beyond a reasonable doubt the following two statutory aggravating factors: (1) Mr. Hammer previously had been convicted of two or more State or Federal offenses punishable by a term of imprisonment of more than one year and (2) Mr. Hammer committed the murder of Mr. Marti after substantial planning and premeditation. These two statutory aggravating factors are supported by the record.

Id. at 520 (footnotes omitted).

On November 27, 1998, Hammer filed a pro se motion to dismiss the appeal but on December 18, 1998, he filed an application to withdraw that motion which we granted on December 30, 1998. On March 23, 1999, Hammer again filed a motion to dismiss the appeal and by order of April 16, 1999, we reserved decision on the motion. Then on July 23, 1999, stand-by counsel on behalf of Hammer filed a motion to withdraw the motion to dismiss the appeal. On August 3, 1999, we granted the motion to withdraw the motion to dismiss the appeal and thus the case proceeded to the briefing stage.

B.

After opening briefing, Hammer on May 8, 2000, filed a pro se motion for immediate dismissal of his appeal. By our order dated May 11, 2000, we reserved decision on the motion. Subsequently, Hammer sought reconsideration of our May 11 order and unsuccessfully sought en banc consideration of his motion to dismiss. Thereafter, we entered an order reciting that we had examined the extensive record in the case and satisfied ourselves that there was no question of competency.² We indicated, however, that we were concerned with the question of whether the Federal Death Penalty Statute, 18 U.S.C. SS 3591-98, permits an appeal to be waived. Accordingly, we appointed John J. Gibbons, Esq. as amicus curiae "to brief the question whether an appeal under the Federal Death Penalty statute may be waived by a competent defendant." We fixed a briefing schedule and directed the government to file a responsive brief to the amicus's brief. Moreover, we set argument for July 18, 2000, and directed the clerk of our court to determine if it would be possible for Hammer to appear at the argument from his place of confinement at USP/Terre Haute through video-conferencing. We provided that if video-conferencing was possible we would hear Hammer personally. Both the amicus and the government have filed briefs as we directed, the amicus contending that a waiver is not permissible, or at least, that one may not withdraw an appeal once filed, and the government contending the opposite.

On June 30, 2000, Hammer filed a motion requesting that we deem that he had withdrawn his May 8, 2000, motion to dismiss the appeal or that we dismiss the motion to dismiss the appeal. In view of this motion we considered that the issue of whether the appeal could be dismissed probably was moot as we do not doubt that up until the argument date on July 18, 2000, we would have allowed Hammer to withdraw his motion to dismiss his appeal and thus would have heard the appeal on the merits. Then, in the final significant pre-argument development we received a letter dated July 11, 2000, on July 13, 2000, from Hammer that once again stated that he wanted the appeal dismissed. In the letter, after setting forth certain background information, Hammer recited the following:

Therefore, I urge this court to decide my Pro se Motion to have my appeal dismissed and not to consider the issue moot. My only desire is to have the sentence of death implemented expeditiously, and whatever process or procedure that achieves this result fastest is what I feel is best.

C.

The oral argument was held on July 18, 2000, as scheduled. Hammer was present by video-conferencing and he argued at length. The members of this panel, his stand- by counsel, government counsel, and counsel for the amicus curiae all were able to see and hear Hammer quite clearly. He spoke with great intelligence, logic, and force, addressed the legal issues with considerable skill, demonstrated a total command of the record, and was calm and in total control of himself. Furthermore, he spoke respectfully toward the court, his attorneys, and the amicus curiae. He demonstrated his command of the case by making very little use of notes.

At the outset Hammer said that it had always been his intent "to be executed as promptly as possible."³ Thus, he complained about the delay in the proceedings, although he later acknowledged that he was in part responsible for the delay. He said that he wanted his appeal dismissed so he could be executed. Hammer represented that he never authorized the filing of the notice of appeal. As he described it, a notice of appeal was prepared by counsel on a "stand- by" basis, and filed without his consent, although he admitted that he subsequently acquiesced in it. He said that "the death penalty . . . is the...