U.S. v. Kaiser

• Decision Date: 14 January 1977
• Docket Number: No. 74-4128,74-4128
• Citation: 545 F.2d 467
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Peter Gaston KAISER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 467

545 F.2d 467

UNITED STATES of America, Plaintiff-Appellee, v. Peter Gaston KAISER, Defendant-Appellant.

No. 74-4128.

United States Court of Appeals Fifth Circuit.

Jan. 14, 1977.

Thomas R. Bryan, Jr., Columbus, Ga., (Court appointed), for defendant-appellant.

Ronald T. Knight, U. S. Atty., C. Nathan Davis, Asst. U. S. Atty., Macon, Ga., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Georgia.

Before CLARK, Associate Justice, ^* and GOLDBERG and AINSWORTH, Circuit Judges.

GOLDBERG, Circuit Judge.

Peter Gaston Kaiser appeals from his conviction of first degree murder within the special territorial jurisdiction of the United States, 18 U.S.C. § 1111 (1970), and the ensuing sentence of death by electrocution. His appeal causes us to address the survival of the executioner's trade in the federal enclave after its demise in many states at Supreme Court order. Although that Court has set up some vital signs for the death penalty, none of them appear in § 1111. The capital punishment provision before us is absolutely barren of sentencing standards, an open invitation to capricious and arbitrary execution. We have no doubt that the Constitution has dealt this statute a lethal blow. Hence we reverse the judgment below insofar as it imposes a sentence of death. Finding appellant's other asserted points of error without merit, however, we affirm the judgment of conviction and remand for substitution of a sentence of life imprisonment.

The facts here require only brief statement. On August 28, 1973, two hitchhikers directed their driver to an area on the Fort Benning, Georgia, military reservation where they fatally shot him and stole his personal effects and his car. Little over a week later, appellant and his codefendant, Larry Fate Fortune, kidnapped James Hoover of Columbus, Georgia and forced him to drive them to Texas in Hoover's car. Police in Colorado City, Texas, stopped that car, with Kaiser and Fortune in the front seat, for traffic violations. The roadside detention produced the murder victim's driver's license and two pistols that Kaiser and Fortune had purchased near the date of the shooting, pistols subsequently identified as possibly having fired the bullets taken from the victim's body.

At Kaiser's trial in the United States District Court for the Middle District of Georgia, numerous witnesses related admissions made to them by Kaiser. These admissions plus an abundance of circumstantial evidence linked Kaiser and codefendant Fortune to the shooting. After one day of trial, Fortune pleaded guilty to second degree murder; he subsequently testified on Kaiser's behalf. A jury found Kaiser guilty of first degree murder, and the court imposed the sentence of death under 18 U.S.C. § 1111.

We turn first to the constitutionality of that sentence. Consideration of Kaiser's other claims of error follows.

I. Capital Punishment under 18 U.S.C. § 1111.

The court convicted Kaiser of first degree murder within the special territorial jurisdiction of the United States, codified at 18 U.S.C. § 1111. Subsection (b) of the statute prescribes the punishment as follows:

Whoever is guilty of murder in the first degree, shall suffer death unless the jury qualifies its verdict by adding thereto "without capital punishment", in which event he shall be sentenced to imprisonment for life . . . .

This provision is cut from the same die as that condemned as cruel and unusual in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). ¹ Prior to the case at hand, the unbroken assumption of prosecutors and courts has been that the death penalty could no longer be applied under § 1111 consistently with the eighth amendment. The Supreme Court's most recent struggle with the executioner, for all its attendant confusion, bore out this assumption which was ignored by the court below. The Court's five death penalty decisions confirmed the principle that a system of capital punishment that does not clearly define standards to guide the exercise of sentencing discretion is constitutionally intolerable. This statute fully violates that principle; the sentence of death by electrocution shall be set aside.

A. Furman

In the three cases consolidated under the name of Furman, supra, the court issued a terse per curiam announcement, accompanied by five individual, quite disparate concurrences, to the effect that capital punishment as imposed under statutes that provided complete discretion to the sentencing authority constituted cruel and unusual punishment. ² Justices Brennan and Marshall concluded that the death penalty could never be constitutionally imposed. See Furman, supra, 92 S.Ct. at 2736 (Brennan, J., concurring); id. at 2765 (Marshall, J., concurring). Justices Douglas, Stewart, and White concurred on the more narrow ground that the arbitrariness, if not discrimination, that they perceived in the operation of the discretionary capital punishment systems before the Court violated eighth amendment strictures. See Furman, supra, 92 S.Ct. at 2727 (Douglas, J., concurring); id. at 2760 (Stewart, J., concurring); id. at 2763 (White, J., concurring).

B. Responses: § 1111 Considered

While the precise rationales for the various Furman opinions were most unclear, the practical impact was not. The decisions invalidated the capital punishment laws of thirty-nine states and the District of Columbia. See Furman, supra, 92 S.Ct. at 2815 (Blackmun, J., dissenting). ³ Most important for purposes of this appeal, Justice Blackmun's dissent in Furman acknowledged that "all those provisions of the federal statutory structure that permit the death penalty apparently are voided." Furman, supra, 92 S.Ct. at 2815. ⁴ Until the case before us arose, the unanimous post-Furman understanding of federal courts, federal prosecutors, and Congress appears to have been that the death penalty could not constitutionally be imposed under § 1111.

Federal courts have been confronted tangentially with the death penalty provisions of § 1111 and other federal criminal statutes; all have concluded that the conferral of unfettered discretion on the sentencing authority under these provisions rendered them unconstitutional in light of Furman. In United States v. Watson, 496 F.2d 1125 (4th Cir. 1973), a § 1111 defendant complained that he had been entitled at trial to the appointment of two attorneys which 18 U.S.C. § 3005 provides for a defendant in a capital case. The Fourth Circuit accepted the government's argument that Furman had invalidated the death provision of § 1111:

Since the penalty provision of § 1111 is indistinguishable from those challenged in Furman, it is clear that, had the death penalty been imposed on defendant, such a sentence would have been void.

496 F.2d at 1126. ⁵ See also United States v. Woods, 484 F.2d 127, 138 (4th Cir. 1973) (only available punishment under § 1111 after Furman is life imprisonment); United States v. Freeman, 380 F.Supp. 1004 (D.N.D.1974) (death penalty provision of § 1111 unconstitutional; procedural safeguards attendant upon capital charges inapplicable).

Other federal statutes conferring discretion on judge and jury to choose between imprisonment and death have fared no better. See United States v. Quinones, 353 F.Supp. 1325 (D.P.R.1973) (rape: 18 U.S.C. § 2031); United States v. Bohle, 346 F.Supp. 577 (N.D.N.Y.1972) (former federal air piracy statute).

Federal prosecutors have also recognized readily the invalidity of the capital punishment provision of § 1111. A Congressional committee considering post-Furman federal death penalty legislation observed that federal attorneys had ceased asking for the death penalty generally. See 1974 U.S.Code Congressional and Administrative News 3980. We have found no reported case since Furman in which a United States Attorney sought the death penalty in a prosecution for first degree murder under this statute. On the contrary, in United States v. Watson, supra, 496 F.2d at 1126, n. 3, the government conceded that any death penalty imposed under § 1111 would be void.

Finally, the legislative history of the Antihijacking Act of 1974 reveals Congress' understanding that Furman had invalidated the various discretionary death penalty provisions of the federal criminal code, including specifically that of § 1111. See 1974 U.S.Code Congressional and Administrative News 3980. The Congress attempted to meet the demands of Furman in the Antihijacking Act, see 49 U.S.C. § 1473(c), but made no similar effort to oxygenate § 1111. In sum, all parts of the federal machinery that have brushed against § 1111 since Furman have concluded that the statute fell squarely within the area condemned by that decision. The contrary assertion of the provision's continuing vitality borders on the audacious.

C. 1976 Death Penalty Cases: Furman Reaffirmed

While the post-Furman consensus regarding the invalidity of the death penalty provision of § 1111 was compelling, caution and deference required us to await the results of the Supreme Court's further consideration of capital punishment, a subject that unforseeable delay caused to remain pending in the Court from the time of oral argument in the instant appeal to the close of the most recent term of the Supreme Court. ⁶ At that time an again fragmented Court gave plenary consideration to the capital punishment statutes passed by five states in response to Furman. See Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976); Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976).

The interplay of opinions and rationales leading the Court to uphold three of those statutes and void two is complex if not confounding; we do not here attempt...