United States v. Hammer
| Decision Date | 08 December 2011 |
| Docket Number | NO. 4:96-CR-239,4:96-CR-239 |
| Parties | UNITED STATES OF AMERICA, v. DAVID PAUL HAMMER Defendant. |
| Court | U.S. District Court — Middle District of Pennsylvania |
Before the Court is Defendant David Paul Hammer's Motion to Bar Capital Prosecution Because the Government Failed to Indict on Either the Statutory Intent Factors or Statutory Aggravating Factors. (Doc. No. 1332.) For reasons that follow, the Court will deny the Motion.1
On September 18, 1996, a Grand Jury returned an indictment against Defendant David Paul Hammer. (Doc. No. 1.) The Indictment charged that Defendant:
[Count One] with premeditation and malice aforethought, did kill Andrew J. Marti, by strangling him with a cloth cord or homemade garrote. In violation of Title 18, United States Code, Sections 7(3) and 1111. . . . [Count Two] while confined in .. . [the Allenwood Federal Correctional Complex, United States Penitentiary, White Deer, Lycoming County,Pennsylvania] under a sentence for an effective term of life imprisonment2with premeditation and malice aforethought, did kill Andrew J. Marti, by strangling him with a cloth cord or homemade garrote. In violation of Title 18, United States Code, Sections 7(3); 1118; and 5003(c).
(Id.)3 On April 9, 1997, the Government filed a notice of intent to seek the death penalty. (Doc. No. 93.)
Trial began on June 2, 1998, following jury selection for both the guilt and penalty phases of the case. (Doc. Nos. 448, 489-503.) Trial continued until June 22, 1998. (Id) On June 22, 1998, after fourteen days of trial, Defendant Hammer withdrew his plea of not guilty and entered a plea of guilty, admitting that he killed Andrew Marti with premeditation and malice aforethought. (Doc. No. 504.) The late Judge Malcolm Muir presided over the trial and penalty phase hearing and continued as the judge assigned to this case until it was transferred on January 12, 2011 to the undersigned judge. (Doc. No. 1301.)
On June 30, 1998, a hearing commenced to determine whether the death penalty should be imposed, in accordance with 18 U.S.C. § 3593(b). (Doc. No. 553.) The hearing continued until July 20, 1998. On July 21, 22 and 23, 1998, counsel presented closing arguments. (Doc. Nos. 565-567.) On July 23, 1998, the jury began deliberating and on July 24, 1998, returned a verdict that the death penalty should be imposed. (Doc. No. 572.) On November 4, 1998, afterdenying motions for a new trial, Judge Muir imposed the death penalty. (Doc. No. 648.)
Defendant Hammer filed a Notice of Appeal to the Third Circuit Court of Appeals on November 12, 1998. (Doc. No. 651.) Thereafter, the Third Circuit granted Defendant's motion for voluntary dismissal of his direct appeal. United States v. Hammer, 226 F.3d 229 (3d Cir. 2000), cert, denied, 532 U.S. 959 (2001). The Third Circuit summarized the three-year history of Defendant's filings as follows:
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 [was] 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, [the Third Circuit] 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, [the Third Circuit] granted the motion to withdraw the motion to dismiss the appeal and thus the case proceeded to the briefing stage. . . . [O]n May 8, 2000, [Hammer] filed a pro se motion for immediate dismissal of his appeal. By [court] order dated May 11, 2000, [the Third Circuit] reserved decision on the motion. Subsequently, Hammer sought reconsideration of [the] May 11 order and unsuccessfully sought en banc consideration of his motion to dismiss. . . . On June 30, 2000, Hammer filed a motion requesting that [the Court] deem that he had withdrawn his May 8, 2000, motion to dismiss the appeal or that [the Court] dismiss the motion to dismiss the appeal. . . . Then, in the final significant pre-argument development, [the Third Circuit] 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.
Hammer, 226 F.3d at 231 -32. The Third Circuit later denied a petition seeking reinstatement of the appeal. See United States v. Hammer, 239 F.3d 302 (3d Cir. 2001), cert, denied, 534 U.S. 831 (2001).
On March 29, 2002, Defendant filed a habeas corpus petition pursuant to 28 U.S.C. § 2255. (Doc. No. 767.) Judge Muir held an evidentiary hearing on July 14, 2005 that continued intermittently until September 29, 2005. In an opinion dated December 27, 2005, Judge Muir denied Hammer's request to withdraw his guilty plea, but granted him a new penalty phase hearing. United States v. Hammer, 404 F. Supp. 2d 676, 800-01 (M.D. Pa. 2005). This decision was essentially based on the Government's failure to disclose material information Defendant was entitled to receive under Brady v. Maryland, 373 U.S. 83 (1963). Hammer. 404 F. Supp. 2d at 801. Specifically, Judge Muir found that "[t]he Government . . . failed to disclose evidence from third parties regarding Mr. Hammer's history of engaging in sexual bondage, including evidence that in the past he had braided sheets into ropes to be used in consensual aberrant sexual activity." 404 F. Supp. 2d at 799. According to Judge Muir, this evidence of Hammer's history of engaging in sexual bondage was directly relevant to the factors of substantial planning and premeditation. Id. Because Hammer withdrew his direct appeal, these evidentiary objections had not yet been reviewed. "When a defendant does not pursue an appeal, generally any issues that could have been raised on appeal are waived and cannot be raised in a § 2255 proceeding." Id. at 800. However, in light of the Government's Brady violations, the court held that precluding Hammer from raising these objections "would result in a miscarriage of justice or manifest injustice." Id. On July 9, 2009, Judge Muir ordered the Government to file a motion to have this case placed on a trial list for a new penalty phase hearing within sixty days. (Doc. No. 1245.)
After being awarded a new penalty phase hearing, Defendant Hammer submitted a request to the Department of Justice to reconsider its decision to seek the death penalty. Areview of the case was conducted by the Department of Justice. (Doc. Nos. 1289, 1293, 1297, 1300.) The review concluded on January 6, 2011 when Attorney General Eric Holder authorized the prosecution to seek the death penalty against Defendant Hammer. (Doc. No. 1300.) On January 7, 2011, the United States Attorney filed a motion requesting that the case be placed on the trial list for a new penalty proceeding. (Id.)
Defendant's attorneys then filed a series of motions and supporting briefs. (Doc. Nos. 1326-1347.) This Opinion addresses the Motion filed on May 19, 2011, in which Defendant moves to bar the capital prosecution because the Government failed to indict on either the statutory intent factors or statutory aggravating factors. (Doc. No. 1332.) On June 17, 2011, the Government filed its brief in opposition. (Doc. No. 1357.) On June 30, 2011, oral argument was held on all outstanding motions. (Doc. Nos. 1378-79.) On July 26, 2011, both parties submitted post-argument briefs. (Doc. Nos. 1386-87.)
Defendant Hammer argues that the Government failed to submit either the statutory intent factors or the statutory aggravating factors to the Grand Jury, and as a result permitting the Government to proceed with capital prosecution in the re-sentencing hearing would violate Defendant's Fifth Amendment rights. (Doc. No. 1333.) Defendant contends that under the Indictment Clause of the Fifth Amendment, the failure of the Indictment to specify at the very least a statutory intent and a statutory aggravating factor constitutes a per se Fifth Amendment violation which requires the court to dismiss the capital prosecution. (Id. at 9.) Specifically, Defendant argues that the Government's failure to include either the mens rea eligibility requirement or a statutory aggravating factor in the Indictment deprived him of his FifthAmendment right to have the Grand Jury determine whether there was sufficient probable cause to return a capital murder charge. (Id. at 5-6.)
The Supreme Court has held that "an indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense." Hamling v. United States, 418 U.S. 87. 117 (1974). In Jones v. United States, 526 U.S. 227 (1999), the Supreme Court held that "any fact (other than [a] prior conviction) that increases the maximum penalty for a crime must be charged in [the] indictment. . . ." 526 U.S. at 243 n.6. In Ring v. Arizona, 536 U.S. 584 (2002), the Supreme Court addressed the Jones rule in the capital punishment context and confirmed that "an aggravating circumstance necessary for the imposition of the death penalty . . . operate[s] as 'the functional equivalent of an element of a greater offense,' [and therefore] the Sixth Amendment requires that they be found by a jury." 536 U.S. at 609 (quoting Apprendi v. New Jersey, 530 U.S. 466, 494 n.19 (2000)). The Circuit Courts of Appeal are in agreement that in a death penalty case, Ring mandates that "at least one statutory...
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