Penalty Blocks

United States v. Jacques, No. 11-2142-cr (2d Cir. July 9, 2012) (Winter, Chin, Droney, CJJ)

In this capital case, the district court entered an order excluding some evidence that the government intended to offer at the penalty phase. On this, the government’s interlocutory appeal, the circuit reversed in part and affirmed in part.

Background

Michael Jacques was charged with the kidnaping, rape and murder of a young girl. In the death notice, the government included aggravating factors that it would seek to prove at the penalty phase: allegations of prior rapes, and an attempt to obstruct justice by influencing the testimony of a victim/witness. The district court permitted evidence of two of the prior rapes - one of a juvenile and one of an adult - but struck three of the prior rape allegations, all of which involved juveniles (J2, J3 and J4), finding that the conduct was unadjudicated and more than twenty years old. The court also suppressed the evidence of the obstruction attempt, finding it was obtained in violation of the Sixth Amendment.  

The circuit affirmed the exclusion of two of the three rapes, remanded for further findings on the third, and reversed the Sixth Amendment Ruling.

The Rape Allegations

J2 was a younger relative of Jacques. In 1985, J2 became pregnant and told the authorities that Jacques, who was then 18, had raped her. Jacques ultimately admitted that he “experimented” with J2; he was arrested but never prosecuted. He was accused of raping J3 around the same time; she was a young girl who spent the night at Jacques’ home with a younger sibling.  The rape of J4, a friend of one of Jacques’ siblings, occurred in 1987. Jacques pled guilty to “lewd and lascivious conduct” and received a three-year deferred sentence.

The circuit could not find much to fault in the district court’ decision to exclude this evidence. The admissibility of evidence at the penalty phase of a capital trial is governed by 18 U.S.C. § 3559(c), not by the Federal Rules of Evidence. That section provides that information is admissible at a penalty trial regardless of its admissibility under the rules of evidence, but “information may be excluded if its probative value is outweighed by the danger of ... creating unfair prejudice.” The circuit observed that the standard for exclusion under this section is “broader” than that contained in Rule 403. Evidence can be excluded under Rule 403 only if its probative value is “substantially” outweighed by its potential for prejudice.

The circuit noted next that all three of the rapes were alleged to have occurred about twenty-five years ago and that this “remoteness reduces the reliability” of the evidence. The remoteness also reduced the probative value of the evidence with respect to Jacques’ character, because he was “a youth himself at the time.” In addition, in the J2 and J3 cases the reliability was further undermined by the lack of a “relatively contemporaneous adjudication,” and for J4, while there was an adjudication, it was not for rape.  There was also “murkiness as to each with regard to” the degree of coercion.

The circuit panel concluded that “although we might well have ruled otherwise were we in the district court’s position,” the court acted within its discretion. That said, however, since the district court ruled as if the J4 rape was unadjudicated, which was not true, the circuit remanded for reconsideration as to that allegation. It cautioned, however, that the district court would still be within its discretion to exclude the evidence.

The Obstruction of Justice Allegation

The court’s discussion of  this issue begins with the bizarre conduct underlying Jacques’ case, which began as a scheme, in 2003, to sexually abuse J1, who was nine years old. He did so by making her believe that a fictitious organization called “Breckenridge” would kill her and her family if she did not follow the group’s instructions. Some of those instructions induced J1 into believing that she had to submit to Jacques as her “sexual trainer.”  This continued until 2008, when she was 14. Also, in 2008, Jacques persuaded J1 that she had to help him abduct and kill a young girl named Brooke. With J1’s coerced assistance, Brooke was brought to a convenience store near Jacques’ home; he is charged with drugging, raping and murdering her.

Jacques was eventually arrested and charged with the kidnaping. While in custody, he reached out to a friend, Michael Garcia, asking for help. Amongst other things, he asked Garcia to pose as his civil attorney so that they could speak on an unmonitored phone line. Garcia went to the authorities, and eventually he made recorded calls to Jacques on the supposedly unmonitored attorney line. In those calls, Jacques tried to persuade Garcia to pose as a member of Breckenridge, reach out to J1 and induce her to inform the authorities and the media that Jacques was innocent. Garcia eventually met with Jacques in prison wearing a wire, and Jacques continued to give him instructions about his plans for J1. Garcia, throughout, was instructed by the FBI not to ask Jacques about the charged crimes. He mostly followed those instructions, although he at one point asked a few clarifying questions and, contrary to the instructions, also asked a question about some of Jacques’ past criminal conduct.

The district court concluded that the evidence of Jacques’ attempt to obstruct justice was obtained through a knowing circumvention of Jacques’ right to counsel, in violation of the Sixth Amendment, and suppressed it.

The circuit, however, reversed because Jacques did not show that Garcia “took actions amounting to an ‘indirect and surreptitious interrogation’ ... with regard to the kidnaping/rape/murder offenses.”  Jacques’ conversations with Garcia occurred at Jacques’ own insistence, and Garcia was “entirely passive” when Jacques explained how Garcia could help him. The few questions that Garcia asked were not of a “probing nature” with respect to the underlying charges and did not alter the fundamental nature of the exchange, which was Jacques’ enlisting Garcia’s help. Since Jacques “shared information on his own initiative and on his own terms,” Garcia was nothing more than the classic “listening post.”

Penalty Phase Two

United States v. Wilson, No. 07-1320-cr (2d Cir. June 30, 2010) (Jacobs, Miner, Livingston, CJJ)

An Eastern District jury convicted Ronell Wilson of capital crimes for the murder of two NYPD detectives during a botched undercover gun buy; it also unanimously voted to sentence him to death. On appeal, a divided panel vacated the death sentence and remanded the case to the district court for a new penalty phase.

The majority identified two errors that occurred during the penalty phase, both relating to Wilson’s statement of remorse, which he was permitted to read to the jury without being subject to cross-examination.

First, the prosecutor argued that Wilson had not until “last week” accepted responsibility for his offense; while he had “an absolute right to go to trial,” he could not “have it both ways” - go to trial and then “say I’m sorry only after you prove I did it.” The majority held that this comment improperly held out Wilson’s “constitutionally protected decision to go to trial” as a reason to sentence him to death, which “unconstitutionally burdened Wilson’s Sixth Amendment right to trial.”

The majority also identified a Fifth Amendment error. Again discussing on the remorse allocution, the prosecutor commented unfavorably on Wilson’s decision to read a statement rather than take the witness stand, noting that “[t]he path for that witness stand has never been blocked for Mr. Wilson.” The majority held that “an unsworn, uncrossed allocution constitutes a limited Fifth Amendment waiver that allows the prosecution to argue for an adverse inference from a defendant’s failure to testify as to what which he has allocuted.” (emphasis in original). But here, the prosecutor went beyond this waiver by noting that Wilson’s path to the witness stand “has never been blocked.” A juror might have thought that “never” extended “back to the guilt phase of the trial ... as well [as] to the full penalty phase rather than just to the reading of the allocution.”

For harmlessness, the majority considered the two errors in combination and concluded that the prosecution could not prove beyond a reasonable doubt that they did not contribute to the verdict. The prosecutor cited two of Wilson’s constitutional elections - to go to trial and not to testify - as reasons to reject two of Wilson’s proffered mitigating factors - acceptance of responsibility and remorse. The government then cited lack of remorse as evidence of future dangerousness. To the majority, the focus on Wilson’s decision to go to trial had an “uncontrollable resonance for the jury” - not one juror found either that Wilson had accepted responsibility or shown remorse, and it unanimously agreed that Wilson presented a risk of future dangerousness. “On these facts, it is hard to see how the government can prove that these errors were harmless.” In addition, the absence of a limiting instruction on the Fifth Amendment issue clearly contributed to the harm.

Judge Livingston dissented. In her view, there was no Sixth Amendment violation at all, and the Fifth Amendment error, if there was one, was so trivial as to be harmless.

Lethal Rejection

United States v. Fell, No. 06-2882-cr (2d Cir. June 27, 2008) (Walker, Cabranes, Parker, CJJ)

Donald Fell was not having a good day. During a card game, he killed his mother’s boyfriend, while his buddy, Charles Lee, killed Fell’s mother. Together, they then carjacked a car from a Vermont grocery store, drove to New York, and killed the car’s owner. Eight days later, they were arrested in Arkansas.

After Lee “accidentally[?]” hanged himself in prison, Fell faced a capital trial alone. He did not seriously contest his guilt, and was convicted. After a two-week penalty trial, the jury sentenced him to death, and Judge Sessions imposed that sentence. On appeal, Fell raised a series of challenges to the death sentence, all of which the court of appeals rejected.

Jury Selection

Fell’s primary complaint was that the district court improperly rejected for cause three potential jurors who were in fact qualified to serve. The court of appeals used a “substantial[ly] deferen[tial]” standard of review, in light of the district court’s “dependence on its direct observations of demeanor and subjective assessments of credibility,” and affirmed.

The first, Juror 64, had expressed strong reservations about the death penalty, but stated that she could nevertheless follow the court’s instructions and apply the law. Although viewing this as a “close[] call” the court found no error in her dismissal.

This juror had indicated, in a written questionnaire, that she strongly opposed the death penalty, although she could envision some circumstances, such as genocide or mass murder, that would warranted it. During voir dire, however, she indicated that she could follow the law and the “process,” although with further probing she vacillated somewhat, ending with a statement that she would “definitely lean more” toward life imprisonment. On the government’s motion, the judge excused her, finding that she could not be “fair and impartial.”

The circuit agreed. Although this juror said she could put aside her personal aversion to the death penalty and follow the law, she “walked a fine line” throughout her questioning. Accordingly, the district court’s conclusion that she could not be fair was within its “broad” discretion.”

The next juror, Number 141, indicated in the questionnaire that he was neither strongly in favor of nor strongly opposed to capital punishment. During voir dire, however, he several times said that he would not impose the death penalty absent evidence of premeditation. After extensive questioning, however, he reversed himself and indicated that he could consider a death sentence on the basis of reckless, but not intentional, conduct that resulted in death. The district court concluded that the question of this juror’s fairness was “so close” that it would be unfair to permit him to serve.

Again, the circuit found no error. The district court “properly
considered all of Juror 141's responses in the context in which they were given and did not err in concluding that his views would significantly interfere with his duties as juror.”

The last challenge was to Juror 195, who, in writing, indicated that she was a strong supporter of the death penalty. During questioning, however, she repeatedly expressed uncertainty as to whether she could impose it if the decision were in her hands. The district court properly excluded her because her inconsistent responses created a legitimate doubt that she could follow the court’s instructions.

Evidentiary Issues

The court rejected several claims relating to the district court’s evidentiary rulings.

The government had originally offered Fell a plea agreement that would have resulted in a sentence of life imprisonment. Fell and his attorneys signed it, but the government did not. It submitted the agreement to Main Justice for approval, but the Attorney General rejected it. Fell wanted to enter the proposed agreement into evidence, but the district court would not let it in. Instead, it permitted him to admit a stipulation that provided that he had unsuccessfully offered to plead guilty in exchange for a life sentence.

In summation, Fell argued that this stipulation showed that he had accepted responsibility, while the government argued, in rebuttal, and with no objection, that it did not. The government argued that Fell only offered to plead because he knew the evidence against him was overwhelming. The prosecutor also argued that the government had rejected the offer because it wanted a jury to decide the penalty, that Fell’s plea of not guilty forced the government to try him, and that Fell could still have pled guilty if he wanted to.

On appeal, the court upheld the exclusion of the plea agreement itself, describing the ruling as within the court’s “traditional authority” to exclude evidence of marginal relevance.

It was more troubled by the prosecutor’s rebuttal comments, but found no plain error. First, it found the record “virtually conclusive” that the jury understood that Fell was willing to plead guilty. Thus, the rebuttal did not open the door to the admission of the plea agreement itself.

The court separately analyzed the government’s arguments that, as a result of Fell’s pleading not guilty, the government had to try him, and that he could have pled guilty if he wanted to. The court began by warning that prosecutors are not supposed to make comments that “trench[] on the defendant’s constitutional rights and privileges.” Nevertheless, in a page surely copied right out of the government’s brief, the court characterized the government’s comments as simply an effort to place Fell’s use of the stipulation “in context,” and hence as a “reasonable” response to Fell’s own arguments.

Fell next claimed that the government, in its summation, improperly argued that the jury should reject mitigating evidence - in particular, that relating to Fell’s horrendous childhood - that did not relate to the crime itself. Although, in a footnote, panel revealed some disagreement as to whether the comments were even improper, the court in any event found no plain error. The district court’s instructions made clear that the jury must consider all of the mitigating information, that the arguments of counsel were not evidence, and that if those arguments differed from the court’s instructions the instructions controlled. Here, moreover, the verdict form indicated that the jury credited the mitigating evidence relating to Fell’s background and childhood.

The court also considered - and rejected - several other highly fact-specific evidentiary claims, most of which were not objected to below, and a claim regarding their cumulative impact: (1) the timing of a hearing on some expert testimony; (2) evidence concerning Fell’s apparent religious beliefs which, although troubling, was proper in “context” and not prejudicial; (3) out-of-court statements of his mother indicating that she was afraid of him - an “excited utterance”; and (4) Fell’s own out-of-court statements indicating a willingness to commit multiple murders and his desire to kill his mother, offered to rebut Fell’s claims regarding background.

Aggravating Factors

The court next held that three of the non-statutory aggravating factors, all of which related to Fell’s participation in the carjacking victim’s death, did not improperly overlap, even though they were supported by the same evidence.

The Indictment

The court rejected Fell’s argument that the indictment was defective because it did not allege the non-statutory aggravating factors. The court disagreed, holding that only those factors that comprise death eligibility - intent and statutory aggravators - need be alleged in the indictment.

Two For The Price Of One

United States v. Douglas, No. 06-0581-cr (2d Cir. May 13, 2008) (Kearse, Katzmann, CJJ, Rakoff, DJ)

Douglas was convicted of killing a Brink's employee while attempting to steal money from Citibank ATMS that were serviced by Brink’s. He was sentenced to life in prison.

Douglas had originally been appointed a federal defender. But, once he was indicted on a death-eligible charge, the federal defender requested the appointment of a second attorney, “learned counsel” under 18 U.S.C. § 3005, and the court granted the request. About six months later, the government announced that it would not seek the death penalty, but Douglas asked the court to keep both attorneys on the case. The court rejected the request, but allowed Douglas to choose the attorney he wanted. On appeal, he renewed the claim that he was entitled to two attorneys under 18 U.S.C. § 3005.

The circuit disagreed. The statute, which provides for the appointment of death-qualified counsel once the defendant is indicted for a capital crime, does not say whether the appointment must continue once the government decides not to seek the death penalty. Nonetheless, the court, in a decision of first impression here, joined the First, Third, Ninth and Eleventh Circuits and concluded that, once the government decides not to seek the death penalty, the case is no longer a capital case. The court chose not to follow the Fourth Circuit, which, surprisingly, has a different rule.

It concluded, however, by noting that its holding was only that a district court was not required to continue with two attorneys once the case is no longer capital. This does not preclude the court, in its discretion, from maintaining the dual appointment in a future case.

Dismembers Only

United States v. Pepin, No. 06-1462-cr (2d Cir. February 6, 2008) (Walker, Calabresi, Sack, CJJ)

Humberto Pepin is awaiting a capital trial in the Eastern District of New York, where he is charged, inter alia, with murdering two individuals who crossed him, in ways real or imagined, in the course of his drug dealing enterprise. In a series of pretrial rulings, Judge Weinstein (1) precluded from the penalty phase evidence that Pepin had abused his girlfriend’s children and (2) precluded from both the guilt and penalty phases evidence that Pepin dismembered his victims after he killed them. The government appealed, and the circuit affirmed on the child abuse, but reversed on the dismemberment.

Child Abuse

Judge Weinstein held primarily that the evidence of the child abuse, a non-statutory aggravator, was not relevant to future dangerousness, the theory relied on by the government in the death notice. The judge reasoned that, if spared, Pepin would spend the rest of his life in prison and would not have contact with minors. When the government tried to recast the issue in a new notice as one of “moral condemnation,” and not future dangerousness, the judge stood his ground.

On appeal, the circuit first had to deal with the government’s claim that Judge Weinstein made a legal error - obviously the government was hoping for de novo review. The government lost on this point. In exercising his discretion, Judge Weinstein did not commit a legal error. Despite Supreme Court precedent holding that a wide range of evidence is expected, and perhaps even desirable, at the penalty phase, district courts are not required by law to admit all of the evidence proffered by the government.

Turning next to the district court’s exercise of its discretion, the circuit affirmed, as well. Judge Weinstein supported his ruling with detailed reasoning that was neither arbitrary nor irrational, and the circuit explicitly noted that it was not going to “simply substitute” its judgment for his.

Dismemberment

Judge Weinstein’s primary concern had been that the dismemberment evidence would be too prejudicial to be admitted at the penalty phase. The relevant statute, 18 U.S.C. § 3593(c), permits the exclusion of evidence the prejudicial potential of which “outweighs” its relevance, and the judge concluded that this standard was met. With respect to the guilt phase, Rule 403 permits exclusion only if the prejudice “substantially outweighs” the relevance, a more stringent standard. But, since the same jury was to sit at both phases, the judge concluded that the evidence should be be precluded from the guilt phase as well, to protect the penalty phase.

The circuit first held that Judge Weinstein committed a legal error because he applied the wrong legal standard. In effect, he applied the more lenient § 3593(c) admissibility standard to the guilt phase, when Rule 403 should have governed.

The appellate court did not stop there, however. It also held that the district court abused its discretion by precluding the evidence from the guilt phase, even under Rule 403. Since the issue at the guilt phase was whether the murders were “intentional,” the fact that Pepin dismembered the bodies was “potentially too important a factor in the jury’s determination as to Pepin’s guilt vel non of the crimes of which he is accused for it to be excluded altogether at the guilt phase.” The court went on to note that it might well be that the evidence will be inadmissible at the penalty phase, if there is one, but that “the possibility of curative instructions” would take care of the problem. In any event, the court declined to rule on this issue now.

The court did qualify its ruling somewhat, noting that perhaps “all evidence of dismemberment” should not be admitted at the guilt phase, but that the district court’s “blanket ban” could not stand.