U.S. v. Lawrence

• Decision Date: 11 February 2009
• Docket Number: No. 07-3004.,No. 06-4626.,No. 06-4105.,06-4105.,06-4626.,07-3004.
• Citation: 555 F.3d 254
• Parties: UNITED STATES of America, Plaintiff-Appellee/Cross-Appellant, v. Daryl LAWRENCE, Defendant-Appellant/Cross-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

555 F.3d 254

UNITED STATES of America, Plaintiff-Appellee/Cross-Appellant, v. Daryl LAWRENCE, Defendant-Appellant/Cross-Appellee.

No. 06-4105.

No. 06-4626.

No. 07-3004.

United States Court of Appeals, Sixth Circuit.

Argued: April 30, 2008.

Decided and Filed: February 11, 2009.

ARGUED: Kort W. Gatterdam, Carpenter, Lipps & Leland, Columbus, Ohio, for Appellant. Elizabeth D. Collery, United States Department of Justice, Washington, D.C., for Appellee. ON BRIEF: Kort W. Gatterdam, Carpenter, Lipps & Leland, Columbus, Ohio, Diane M. Menashe, Diane M. Menashe Co., L.PA., Columbus, Ohio, for Appellant. Steven L. Lane, United States Department of Justice, Washington, D.C., David DeVillers, Michael J. Burns, Assistant United States Attorneys, Columbus, Ohio, for Appellee.

Before: BOGGS, Chief Judge; ROGERS and McKEAGUE, Circuit Judges.

OPINION

McKEAGUE, Circuit Judge.

Defendant Daryl Lawrence was convicted of armed bank robbery, attempted armed bank robbery, murder, and firearms charges. Two of the counts, Counts Seven and Eight, charged death-eligible offenses. The jury returned a verdict of life imprisonment on Count Seven and a verdict of death on Count Eight. Ruling on defendant's motion for new trial, the district court held that the jury's verdicts on Counts Seven and Eight were inconsistent. The court vacated the verdict of death on Count Eight and ordered a new sentencing hearing. The government appeals, contending the verdicts are not inconsistent. Lawrence has moved for dismissal of the government's appeal as premature.

For the reasons that follow, we deny Lawrence's motion to dismiss the government's appeal, vacate the district court's order partially granting the motion for new trial, and thereby reinstate the sentence of death originally imposed by the district court on Count Eight.

I. PROCEDURAL HISTORY

In January 2005, a grand jury in the Southern District of Ohio handed down an eight-count indictment, charging Lawrence with armed bank robbery, attempted armed bank robbery, murder, and firearms offenses. The charges stemmed from four different Ohio bank robberies committed during January, August and September 2004, and January 2005. During the last of these four robberies, Columbus Police Officer Bryan Hurst was shot and killed. Counts Seven and Eight of the indictment alleged death-eligible offenses, violations of 18 U.S.C. § 2113(a), (d), and (e), and 18 U.S.C. § 924(c), (j)(1), respectively. The jury found Lawrence guilty of all charged offenses and found him eligible for the death penalty on Counts Seven and Eight.¹ The district court held a sentencing hearing in March 2006. Jurors, in varying numbers, found that Lawrence proved the existence of forty-seven mitigating factors in relation to both Count Seven and Count Eight. Under Count Seven, the jury concluded that the aggravating factors did not sufficiently outweigh the mitigating factors and returned a sentencing verdict of life in prison without possibility of release. Under Count Eight, the jury found that the aggravating factors sufficiently outweighed the mitigating factors and returned a verdict of death.

The district court accepted the jury's sentencing verdicts on Counts Seven and Eight and imposed conforming sentences on those counts in an order entered on March 13, 2006. The court ordered the preparation of a presentence investigation report for the other six convictions. The court sentenced Lawrence to a total of 781 months' imprisonment on Counts One through Six on August 10, 2006. Lawrence moved for a new trial under Fed. R.Crim.P. 33(b)(2) and 45(a) on August 11, 2006. The district court heard oral arguments on the motion in October 2006, and granted Lawrence's motion in part. The court rejected Lawrence's claims of juror bias, double jeopardy, and improper jury instructions, but agreed with Lawrence that the jury's sentencing verdicts on Counts Seven and Eight were inconsistent. The district court vacated the jury's death verdict on Count Eight and ordered a new sentencing hearing pursuant to 18 U.S.C. § 3593(b)(2)(D). United States v. Lawrence, 477 F.Supp.2d 864, 867 (S.D.Ohio 2006). The court directed that the new sentencing hearing would take place before a different jury.

In appeal No. 06-4626, the United States appeals the order partially granting the motion for new trial, insisting the verdicts are not inconsistent. Lawrence has moved to dismiss the government's appeal. In appeal No. 07-3004, Lawrence cross-appeals the district court's order insofar as it requires a new sentencing hearing as a remedy, rather than ordering a life sentence be imposed on Count Eight.²

II. ANALYSIS

A. Government's Appeal

1. Appellate Jurisdiction

Lawrence has responded to the government's appeal from the order partially granting the motion for new trial by moving the court to dismiss it. Lawrence contends the order is not appealable because it will not become final until after the new sentencing hearing takes place and ripens into a final judgment of sentence. In support, Lawrence relies mainly on Andrews v. United States, 373 U.S. 334, 338-39, 83 S.Ct. 1236, 10 L.Ed.2d 383 (1963). In Andrews, the Court held that a district court's order vacating a sentence under 28 U.S.C. § 2255 and ordering resentencing was interlocutory and would not become final and appealable until the resentencing occurred. The foundation of the Andrews ruling is twofold. The ruling is premised first on the language of § 2255 itself, which expressly allows an appeal to be taken "from the order entered on the motion as from a final judgment on application for a writ of habeas corpus." 28 U.S.C. § 2255(d) (emphasis added); Andrews, 373 U.S. at 338, 83 S.Ct. 1236. Second, the ruling honors "the standards of finality to which the Court has adhered in habeas corpus proceedings" and "the long-established rule against piecemeal appeals." Andrews, 373 U.S. at 340, 83 S.Ct. 1236. Andrews remains good law, having recently been followed in several cases. See United States v. Futch, 518 F.3d 887, 894 (11th Cir.2008); United States v. Hadden, 475 F.3d 652, 662-63 (4th Cir.2007); United States v. Stitt, 459 F.3d 483, 485-86 (4th Cir.2006).

This is not an appeal, however, from an order granting a § 2255 motion to vacate, set aside or correct a sentence. This is an appeal under the Criminal Appeals Act, 18 U.S.C. § 3731, from an interlocutory, post-verdict order partially granting defendant Lawrence's motion for new trial in a capital case. In Andrews, the Court recognized that the Criminal Appeals Act has no applicability to an action under § 2255, which is "a separate proceeding, independent of the original criminal case." 373 U.S. at 338, 83 S.Ct. 1236. Hence, insofar as Andrews's holding is based on the language of § 2255, it has little instructive value in this case. Insofar as Andrews represents enforcement of the general rule against piecemeal appeals, its teaching is also limited inasmuch as § 3731, as amended in 1970, was "intended to remove all statutory barriers to Government appeals and to allow appeals whenever the Constitution would permit." United States v. Wilson, 420 U.S. 332, 337, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975).

Section 3731 provides in relevant part:

In a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment or information or granting a new trial after verdict or judgment, as to any one or more counts, or any part thereof, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution.

18 U.S.C. § 3731. Further, § 3731 expressly provides that its provisions "shall be liberally construed to effectuate its purposes." The government contends that the district court's order partially granting Lawrence's motion for new trial and requiring a new sentencing hearing is, under the above language, "an appeal from an order granting a new trial as to any part of any one or more counts." Lawrence maintains that a new sentencing hearing on Count Eight is not a "new trial" as to any part of any count.

On this precise question, there is little case law authority. The only ruling directly on point is United States v. Cerceda, 172 F.3d 806, 811 n. 3 (11th Cir.1999) (en banc), cert. denied sub nom. De La Mata v. United States, 528 U.S. 985, 120 S.Ct. 444, 145 L.Ed.2d 362 (1999). Noting that § 3731 is to be liberally construed to effectuate its purposes, the Eleventh Circuit held that a district court's orders granting post-judgment motions for new trials and/or sentencing hearings in some twenty-two cases were immediately appealable. Id. For jurisdictional purposes, the court drew no distinction between the orders granting new trials and those merely granting new sentencing hearings. That is, the orders granting new sentencing hearings were implicitly treated as orders granting new trials as to "parts" of the counts of conviction.

A similar result was reached by the Eighth Circuit in a capital case, United States v. Lee, 274 F.3d 485 (8th Cir.2001). After the jury had returned a verdict of death in the penalty phase, the district court granted the defendant's motion under Fed.R.Crim.P. 33 for a new sentencing phase hearing. The Eighth Circuit entertained the matter as an appeal of a new trial order, reviewed it for an abuse of discretion, reversed the new trial order, and reinstated the sentence of death. Id. at 493, 496-97. The defendant did not challenge the court's appellate jurisdiction under § 3731 and the court did not expressly address the matter of jurisdiction. It was presumed that the order granting a new penalty phase trial was properly subject to interlocutory review under § 3731 as an order granting a new trial.

Neither Lee nor Cerceda includes a definitive analysis of the issue. Yet, the conclusion that an order requiring a new sentencing hearing is an order granting a new...