U.S. v. Lee

• Decision Date: 17 October 2001
• Docket Number: No. 00-1975,DEFENDANT-APPELLEE,PLAINTIFF-APPELLANT,00-1975
• Citation: 274 F.3d 485
• Parties: (8th Cir. 2001) UNITED STATES OF AMERICA,, v. DANIEL LEWIS LEE, ALSO KNOWN AS DANIEL LEWIS GRAHAM, ALSO KNOWN AS D.L. GRAHAM, ALSO KNOWN AS DANNY LEE, Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 485

274 F.3d 485 (8th Cir. 2001)

UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT, v. DANIEL LEWIS LEE, ALSO KNOWN AS DANIEL LEWIS GRAHAM, ALSO KNOWN AS D.L. GRAHAM, ALSO KNOWN AS DANNY LEE, DEFENDANT-APPELLEE.

No. 00-1975

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: October 17, 2001

Filed: December 14, 2001

Appeal from the United States District Court for the Eastern District of Arkansas. [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Before McMILLIAN, Richard S. Arnold, and Murphy, Circuit Judges.

Murphy, Circuit Judge.

Daniel Lewis Lee was convicted of murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(1). The jury returned a verdict of death after the penalty phase, and a sentence of death was imposed under 18 U.S.C. § 3594. Later the district court granted Lee's motion for a new penalty phase hearing. The government appeals, and we reverse.

I.

The indictment charged Danny Lee and Chevie Kehoe with a number of offenses including murder in aid of racketeering in violation of 18 U.S.C. § 1959(a)(1). The defendants were accused of robbing and killing a gun dealer, his wife, and their eight-year old daughter in the course of seeking funds to support the Aryan Peoples Republic. The U.S. Attorney for the Eastern District of Arkansas filed notices of intention to seek the death penalty against both defendants under 18 U.S.C. § 3593(a).

Lee and Kehoe were convicted by a jury of the three capital counts on May 4, 1999, and the district court set a separate penalty phase hearing for each defendant under 18 U.S.C. § 3593(b). The case against Kehoe went first, and the jury returned a verdict of life without release. U.S. Attorney Paula Casey informed the court on May 10 that she would like to withdraw the death notice in Lee's case but that she was uncertain whether she needed approval from the Department of Justice (DOJ) under its death penalty protocol.¹ The district court recessed the proceedings until 3 p.m. so that Casey could contact DOJ.

Under the death penalty protocol, the Attorney General is the ultimate decisionmaker on the question of whether the government will seek the death penalty or withdraw a previously filed death notice. See United States Attorneys' Manual § 9-10.020, 9-10.090 (1999). When Casey called DOJ, Deputy Attorney General Eric Holder took the call and informed her that Attorney General Janet Reno was unavailable because she was at a meeting in the White House. Holder convened the other members of the DOJ review committee to participate in a telephone conference, and at its conclusion he told Casey that the death notice would not be withdrawn. Casey relayed the information to the court, and Lee's penalty phase hearing began the following morning.

Prior to the penalty phase, the government had served notice under 18 U.S.C. § 3593(a) that it would attempt to prove the non-statutory aggravating factor of future dangerousness at Lee's hearing. The government had also disclosed that it would introduce evidence of four subjects to prove future dangerousness: Lee's involvement in the murder of Joseph John Wavra in Oklahoma when he was seventeen, Lee's threatening behavior toward a deputy sheriff during his incarceration for the guilt phase trial in this case, Lee's 1995 Florida conviction for carrying a concealed weapon, and Lee's lack of remorse. The parties had also approved instructions that would direct the jury to determine whether Lee's involvement in the Wavra murder, Lee's 1995 conviction, and Lee's lack of remorse made him a future threat to society.²

The government had also stated in a discovery motion before the penalty phase that it would "not introduce mental health evidence during its case-in-chief in the penalty phase...[but] would only use this evidence to rebut any mental health evidence introduced by the defendant in his case-in-chief." United States v. Lee, 89 F. Supp. 2d 1017, 1019 (E.D. Ark. 2000) (emphasis in original). Lee's counsel initially intended to rebut the government's case for future dangerousness by introducing a risk assessment of his future dangerousness performed by Lee's mental health expert, Dr. Mark Cunningham. After Dr. Cunningham was denied access to prison information he deemed critical, defense counsel decided as a matter of strategy that Dr. Cunningham would focus "strictly" on mitigation evidence concerning Lee's upbringing and environment. The government was unaware of this change in strategy and obtained permission for its own mental health expert, Dr. Thomas Ryan, to conduct a risk assessment of Lee in order to rebut the expected testimony of Dr. Cunningham.

During the voir dire of Dr. Cunningham at the penalty hearing, the government asked him about scientific techniques for conducting a risk assessment for future dangerousness. Lee objected on the basis that Dr. Cunningham was not going to present a violence risk assessment. The government responded that Dr. Cunningham's scientific views were relevant to his qualifications, and the district court overruled the objection.

Dr. Cunningham testified during his direct examination before the jury about a number of mitigating factors from Lee's upbringing that might have predisposed him toward criminal behavior: 1) Lee was a follower and under the influence of Chevie Kehoe and others at the time of the instant offenses, 2) Lee had been abandoned by his biological father, abused by his stepfather, and neglected by his mother, 3) Lee had suffered from childhood seizures, attention deficit hyperactivity disorder, and learning disabilities, 4) Lee began abusing alcohol and drugs at an early age, and 5) Lee had been diagnosed with a potential borderline personality disorder and other psychological dysfunctions.

The government began its cross examination by questioning Dr. Cunningham about his psychological diagnosis of Lee and Lee's capacity for violence. Lee's counsel moved in limine to prevent the government from examining Dr. Cunningham about risk assessment and future dangerousness, arguing that he had not raised these subjects on his direct examination. The district court acknowledged Lee's concerns but denied the motion, stating:

Well, [Dr. Cunningham] has identified himself as a clinical and forensic psychologist with a Ph.D. degree. He has had an intimate investigation of the defendant, so I think [the prosecutor] should be able to ask him in his opinion if he is dangerous. Now, he can handle himself. If it's in the area of his expertise and considering what has been revealed about his intimate knowledge of the man, he can inquire. I think the expert is fully capable of explaining why he can't answer certain of these questions.

The government then continued to examine Dr. Cunningham concerning Lee's violence, and Lee's counsel did not register any further objections.

Lee's counsel moved at the end of the trial day to limit the scope of the testimony to be given by the government's rebuttal expert, Dr. Ryan, seeking to exclude the topics of risk assessment, future dangerousness, and psychopathy. The district court deferred a ruling on this second motion in limine, but told counsel:

We will leave it to the defendant to object as to his [i.e. Dr. Ryan's] testimony when it gets to the point you say, stop, it's not rebuttal. And I'll have to make a judgment as to whether it is or not. I'm not going to let the government put on its case on rebuttal that it should have put on in direct. If it's strictly rebuttal, there will be no problem.

Dr. Cunningham completed his cross examination on the following day when he testified about past acts by Lee, including episodes in which he had physically abused a girlfriend, assaulted his sister, committed burglary and arson, assaulted inmates and patients at various facilities, and treated blacks more poorly than whites. The government also asked him about psychopathy and whether Lee could be diagnosed a psychopath. The cross examination concluded without further objection by Lee's counsel.

Before Dr. Ryan took the stand, Lee's counsel requested a ruling on her motion to limit his testimony. The government argued that effective rebuttal required that it be permitted to ask about Lee's violence and potential psychopathy. During the discussion with the court, Lee's counsel said: "By the way, I was assuming that I had an ongoing objection because of my motion so I didn't stand up and object every time." The district court indicated that it understood that, and after a recess it partially granted Lee's second motion in limine. The court barred Dr. Ryan from testifying "with respect to the issue of psychopathy, the Hare psychopathy test, and any reference to the defendant being a, quote, psychopath, unquote, on the basis that such would not be proper rebuttal." The court also indicated that it regarded the motion in limine to be "moot with respect to risk assessment analysis performed by Dr. Ryan because the government has indicated that it will not offer such testimony." The court declined to rule out other topics, such as matters raised in the government's case in chief for future dangerousness: "I will deal with the other issues with respect to whether future testimony is appropriately considered to be rebuttal on a question and answer basis if objections are raised."

Dr. Ryan took the stand, and the government questioned him about Lee's medical and psychological diagnoses. When the government asked whether Lee showed any remorse for his actions, his counsel objected. The district court overruled the objection: "It's borderline, but I'm going to let you go that far." The government's examination of Dr. Ryan concluded without further objection.

The jury returned a verdict of death on May 14, 1999. On the next business day, the district court wrote to counsel raising the question whether Deputy Attorney General Holder had had authority to deny the withdrawal of Lee's death notice and requested...