U.S. v. SAMPSON

335 F.Supp.2d 166 (2004) | Cited 38 times | D. Massachusetts | August 26, 2004

MEMORANDUM AND ORDER CONCERNING TRIAL RULINGS

I. INTRODUCTION

On January 29, 2004, pursuant to the jury's verdict, this courtsentenced the defendant, Gary Sampson, to be executed on each oftwo counts of carjacking resulting in death in violation of18 U.S.C. § 2119(3). See 300 F. Supp. 2d 275 (D. Mass. 2004). Thisdeath sentence is the first imposed in the District ofMassachusetts or any other district within the First Circuitsince Congress and the President reinstituted a federal deathpenalty in 1988. Consequently, as this case was being tried, thecourt found that there were few binding precedents interpretingand applying the Federal Death Penalty Act,18 U.S.C. §§ 3591-3598 (the "FDPA").

This Memorandum and Order summarizes and explains some of thedecisions the court made during the pretrial proceedings and thetrial. These include: (1) a clarification of the proceduralprotections concerning jury selection afforded the defendant in acapital case under 18 U.S.C. § 3432; (2) evidentiary rulingsapplying the standard set forth in 18 U.S.C. § 3593(c); (3) adiscussion of the court's power to strike an aggravating factorbecause the government failed to introduce sufficient evidence toprove the factor beyond a reasonable doubt; (4) explanations ofrulings and jury instructions relating to aggravating factors;(5) explanations of rulings and jury instructions relating tomitigating factors; (6) explanations of general FDPA juryinstructions; and (7) explanations of rulings relating to theprovisions of Federal Rule of Criminal Procedure 12.2 thataddress issues relating to a capital defendant's mental condition.

The court is issuing a separate Memorandum and Order concerningits oral decisions on Sampson's post-trial motions.

The court is issuing this Memorandum and Order to memorializesome of its decisions and for the instructive value they may havein view of the limited body of capital case law in the FirstCircuit. It is not, however, intended to be a substitute for theoral rulings issued from the bench as reflected in thetranscripts of the proceedings.1 Unlike the transcripts,the Memorandum and Order does not include all of the rulings madeat trial or all of the reasoning articulated by the court at thetime the rulings were made. Instead, the Memorandum and Orderfocuses on those aspects of the court's rulings that are mostlikely to be at issue in future FDPA cases. To the extent, ifany, that there appears to be an inconsistency between thesummaries in the Memorandum and the court's oral explanations forits decisions, the oral explanations should generally be regardedas more accurate and complete.

II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

After committing a series of bank robberies in North Carolinain May, June and July 2001, Sampson fled to the Boston area. OnJuly 23, 2001, Sampson called the Boston office of the FederalBureau of Investigation (the "FBI") in an attempt to turn himselfin. However, his call was disconnected and, although he waited to be arrested, the FBI failed to arrive and arrest him. SeeUnited States v. Anderson, 229 F. Supp. 2d 17, 19 (D. Mass.2002); United States v. Anderson, 260 F. Supp. 2d 310, 312 (D.Mass. 2003).

On July 24, 2001, Phillip McCloskey, a 69-year old retiree,picked up Sampson, who was hitchhiking. Sampson subsequentlymurdered McCloskey with a knife and attempted to steal hisautomobile.

On July 27, 2001, Sampson was hitchhiking again. He was pickedup by Jonathan Rizzo, a college student. Sampson murdered Rizzoby tying him to a tree and then stabbing him to death. Sampsonthen stole Rizzo's automobile.

On July 30, 2001, Sampson encountered Robert Whitney in NewHampshire. Sampson murdered Whitney by tying him to a chair andstrangling him to death. Sampson then stole Whitney's automobile.

On July 31, 2001, William Gregory picked up Sampson, who washitchhiking in Vermont. Sampson pulled a knife and orderedGregory to drive down a dirt road. Gregory, however, jumped outof his automobile, which Sampson drove away. Gregory reportedthat his car had been stolen. Shortly thereafter, Sampson called911 to surrender.

Sampson was arrested by the Vermont State Police and quicklyconfessed his crimes, including the murders of McCloskey, Rizzo,and Whitney. He gave an additional tape-recorded confession totwo Massachusetts State Police troopers who traveled to Vermontto question Sampson. On August 1, 2001, Sampson was brought backto Massachusetts, where he gave another tape-recorded confession totroopers of the Massachusetts State Police.

Later that month, Sampson was charged by the Commonwealth ofMassachusetts for the murders of McCloskey and Rizzo. On October24, 2001, Sampson was also indicted in this federal case. TheMassachusetts charges against Sampson were dismissed in deferenceto this federal prosecution. Sampson offered to plead guilty andaccept a federal sentence of life in prison without thepossibility of parole. The Department of Justice did not acceptthis offer. Rather, on November 19, 2002, the Attorney Generalfiled a Notice of Intent to seek the death penalty in this case.

Sampson filed several pretrial motions challenging theconstitutionality of various provisions of the FDPA. In UnitedStates v. Sampson, 245 F. Supp. 2d 327 (D. Mass. 2003) (SampsonI) and United States v. Sampson, 275 F. Supp. 2d 49 (D. Mass.2003) (Sampson II), the court rejected these challenges.

On September 9, 2003, Sampson pled guilty to both charges.Accordingly, the court impaneled a jury to determine the penalty.See 18 U.S.C. § 3592(b)(2)(A); United States v. Sampson,297 F. Supp. 2d 340 (D. Mass. 2003). Jury selection began onSeptember 18, 2003 and was completed on October 27, 2003. OnDecember 23, 2004, the jury returned its verdicts requiring thatthe death penalty be imposed on both counts. See18 U.S.C. § 3594. III. THE FEDERAL DEATH PENALTY ACT

The unique structure of the FDPA has been discussed at lengthin several published opinions. As this court wrote in August2003: If the government decides to seek the death penalty, the FDPA bifurcates the trial into two phases, a guilt phase and a penalty phase. The penalty phase occurs only if the defendant is found guilty of a capital offense. In the context of this case, the government must prove during the guilt phase, beyond a reasonable doubt, that the defendant committed at least one carjacking or attempted carjacking resulting in death within the meaning of 18 U.S.C. § 2119(3). If the government proves either of the two capital charges, a penalty phase of the jury trial will be required. There are two distinct issues before the jury during the penalty phase. The first is whether the defendant is eligible for the death penalty. If so, the second is whether the death penalty is justified. In order to establish eligibility for a death sentence for a homicide, the government must prove, beyond a reasonable doubt, that: the defendant was at least 18 years old at the time of the offense, 18 U.S.C. § 3591(a); he acted with one of the four mental states set forth in 18 U.S.C. § 3591(a)(2); and at least one of the sixteen statutory aggravating factors set forth in 18 U.S.C. § 3592(c) exists. If the government fails to establish eligibility, a death sentence cannot be imposed. If the jury finds that the defendant is eligible for the death penalty, it must decide whether a sentence of death is justified. In reaching this decision, the jury must weigh any aggravating factors against any mitigating factors. In order to recommend that the defendant be sentenced to death, the jury must unanimously conclude that "all the aggravating factor or factors found to exist sufficiently outweigh all the mitigating factor or factors found to exist to justify a sentence of death, or, in the absence of a mitigating factor, [] the aggravating factor or factors alone are sufficient to justify a sentence of death." 18 U.S.C. § 3593(e). The jury can also recommend a sentence of life imprisonment or, in some cases, some lesser punishment. A jury's "recommendation" of a sentence of death or life imprisonment is binding on the court. 18 U.S.C. § 3594. Aggravating factors may include statutory aggravating factors and non-statutory aggravating factors identified by the government in its notice of intent to seek the death penalty. See 18 U.S.C. § 3593; § XII.A, infra. Mitigating factors may include any "relevant circumstance that could cause [a jury] to decline to impose the [death] penalty." McCleskey v. Kemp, 481 U.S. 279, 305-06 (1987). Different standards govern the proof of aggravating factors and mitigating factors. "The burden of establishing the existence of any aggravating factor is on the government, and is not satisfied unless the existence of such a factor is established beyond a reasonable doubt. The burden of establishing the existence of any mitigating factor is on the defendant, and is not satisfied unless the existence of such a factor is established by a preponderance of the information." 18 U.S.C. § 3593(c). A jury must unanimously agree that an aggravating factor has been proven in order to consider it in deciding if the death penalty is justified. 18 U.S.C. § 3593(d). However, any juror who finds that the defendant has established a mitigating factor may take it into account in considering whether a death sentence is justified even if no other juror finds that that mitigating factor has been proven. Id. The FDPA refers to "information" rather than "evidence" because the penalty phase of a capital case is not governed by the Federal Rules of Evidence. See 18 U.S.C. § 3593(c). Rather, any relevant information may be presented to the jury unless "its probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury." Id.Sampson II, 275 F. Supp. 2d at 61-62.

IV. PROCEDURAL PROTECTIONS AFFORDED BY 18 U.S.C. § 3432

18 U.S.C. § 3432 provides procedural protections for defendantsin capital cases beyond those afforded defendants in non-capitalcases. The statute requires that a defendant in a capital case"shall at least three entire days before commencement of trial be furnished with a copy of the indictment and a list of theveniremen, and of the witnesses to be produced on the trial forproving the indictment, stating the place of abode of eachvenireman and witness." The statute further provides that thelists of veniremen and witnesses "need not be furnished if thecourt finds by a preponderance of the evidence that providing thelist may jeopardize the life or safety of any person."

There is some debate as to whether "place of abode" means"township of residence" as opposed to street address. CompareUnited States v. Frank, 11 F. Supp. 2d 322, 326 n. 6 (S.D.N.Y.1998) (noting that some courts have interpreted "place of abode"to mean township, but that the government in Frank agreed todisclose addresses) with United States v. Insurgents ofPennsylvania, 26 F. Cas. 499 (C.C.D. Pa. 1795) (No. 15,443)(Patterson, J.) (rejecting list that specified only state orcounty rather than township). The court has found no cases,however, that suggest that the government's initial witness list,which identified law enforcement witnesses by agency rather thanhome address, satisfied the statute. "Place of abode" does notmean a business address. Accordingly, the court ordered that thegovernment submit a new witness list that included the homeaddress of every witness it intended to call in itscase-in-chief. In order to accommodate the government'slegitimate concerns about making the home addresses of lawenforcement officers part of the public record of this case, thecourt allowed the government to file a witness list with addresses subject to an August 21, 2003 Protective Order and aseparate list with the addresses redacted for the public record.

The court concluded that street addresses rather than townshipswere required because a township may be inadequate to identify aperson with a common name. Cf. United States v. Hurley (In reGlobe Newspaper Co.), 920 F.2d 88, 93 n. 6 (1st Cir. 1990) ("Inthe case of many familiar names, an address as well as the nameis necessary to identify the individual [juror].").

V. EVIDENTIARY RULINGS RELATING TO PHOTOGRAPHS

A. GENERAL STANDARDS

18 U.S.C. § 3593(c) provides, in pertinent part, that: Information is admissible [in the penalty phase of an FDPA prosecution] regardless of its admissibility under the rules governing admission of evidence at criminal trials except that information may be excluded if its probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury.

This standard is similar to that set forth in Federal Rule ofEvidence 403, which provides that relevant evidence "may beexcluded if its probative value is substantially outweighed bythe danger of unfair prejudice, confusion of the issues, ormisleading the jury, or by considerations of undue delay, wasteof time, or needless presentation of cumulative evidence." TheFDPA standard is more restrictive. It permits exclusion ifprobative value is outweighed by the danger of prejudice, whilethe Rule 403 standard allows exclusion only if the probativevalue is substantially outweighed by the danger of prejudice.However, the FDPA eliminates considerations of undue delay, waste of time andneedless presentation of cumulative evidence from the court'scalculus.

In this case, the government proffered a large number ofphotographs of the victims, taken both at the time their bodieswere discovered by the police and at the time of their autopsies.Sampson objected to many of these photographs, arguing that theywere unnecessary, cumulative, and unfairly prejudicial. Thedefendant also argued that the pictures' probative value wasdiminished as they reflected a physical condition different fromthat at the time of the offense: the bodies had begun todecompose and showed the effects of insect activity.

Although this issue arises frequently during trial under theRule 403 standard, appellate courts have generally been reluctantto overturn determinations by district courts that photographs,even particularly "gruesome" photographs, are not unfairlyprejudicial and therefore are admissible. The matter is one thathas largely remained within the discretion of the trial court.The First Circuit has said that determinations under Federal Ruleof Evidence 403 will be overturned only in "extraordinarilycompelling circumstances." United States v. Rodriguez-Estrada,877 F.2d 153, 155-56 (1st Cir. 1989).

Appellate courts have generally held that when the photographsare probative of a relevant fact, even if not necessarily adisputed one, admission of gruesome photographs under Rule 403 is not reversible error. As the Tenth Circuit has said,"[g]ruesomeness alone does not make photographs inadmissible."United States v. Naranjo, 710 F.2d 1465, 1468 (10th Cir. 1983);see, e.g., United States v. Ortiz, 315 F.3d 873, 897 (8thCir. 2002) (in capital case, admission of graphic photos ofbloody corpse not abuse of discretion, as they corroboratedtestimony regarding victim's murder and established that it washeinous and depraved); United States v. Rezaq, 134 F.3d 1121,1138 (D.C. Cir. 1998) (autopsy photographs relevant todetermination of "force and violence" in hijacking case andcorroboration of government theory regarding systematicexecutions); United States v. Cruz-Kuilan, 75 F.3d 59, 61 (1stCir. 1996) (lacerations on victim's head corroborated governmenttheory regarding stray bullets); United States v. Treas-Wilson,3 F.3d 1406, 1410 (10th Cir. 1993) (autopsy and crime scenephotographs, though graphic, were relevant to determination ofdefendant's intent or state of mind); United States v. DeParias, 805 F.2d 1447, 1453-54 (11th Cir. 1986) (photograph ofbadly decomposed body of kidnaping victim admissible to showidentity and cause of death), overruled on other grounds by,United States v. Kaplan, 171 F.3d 1351 (11th Cir. 1999);United States v. Holmes, 632 F.2d 167, 169 (1st Cir. 1980)(color photograph of victim helpful in illustrating medicalexaminer's testimony regarding sequence of wounds); UnitedStates v. McRae, 593 F.2d 700, 707 (5th Cir. 1979) (photographshowing victim's head wounds had bearing on defense of accident);cf. Ferrier v. Duckworth, 902 F.2d 545, 548-49 (7th Cir. 1990) (habeas courtcriticized state court for admitting photographs of the victim'ssplattered blood, in color and enlarged to twelve square feet,when the killing was not denied, as the defendant arguedintoxication or insanity; court stated that "[t]he onlyconceivable reason for placing them in evidence was to inflamethe jury"); Rezaq, 134 F.3d at 1138 (close-up photo of sectionof victim's skull, with skin removed, carried risk of significantprejudice; court stated that "photographs of gore mayinappropriately dispose a jury to exact retribution").

B. APPLICATION OF STANDARDS TO GOVERNMENT'S PROFFERED EVIDENCE

Over the course of several hearings in October and November2003, the court considered the defendant's objections to thegovernment's proposed photographic exhibits of the victims'bodies. The court made rulings on these objections on October 31,2003, November 3, 2003, November 4, 2003, November 5, 2003,November 6, 2003, November 10, 2003, and November 12, 2003.

Analysis of the photographs in the current case took intoaccount its distinctive features. Sampson, having pled guilty tothe charged offenses, did not contest that he had committed themurders of McCloskey, Rizzo and Whitney. Further, as thephotographs were to be presented first at the penalty phase andnot, as in most capital trials, originally at the guilt phase,they were relevant only insofar as they related to a gatewaymental state or an aggravating or mitigating factor.

The photographs, and the injuries depicted in them, wererelevant to proving the gateway mental states. Even thoughSampson had pled guilty, the jury was required to make a findingregarding intent before it could begin considered the aggravatingor mitigating factors. 18 U.S.C. § 3591(a)(2) states that adefendant can only be considered for a sentence of death: if the defendant, as determined beyond a reasonable doubt at the hearing under section 3593 — (A) intentionally killed the victim; (B) intentionally inflicted serious bodily injury that resulted in the death of the victim; (C) intentionally participated in an act, contemplating that the life of a person would be taken or intending that lethal force would be used in connection with a person, other than one of the participants in the offense, and the victim died as a direct result of the act; or (D) intentionally and specifically engaged in an act of violence, knowing that the act created a grave risk of death to a person, other than one of the participants in the offense, such that participation in the act constituted a reckless disregard for human life and the victim died as a direct result of the act.Id. (emphasis added). Thus, a finding of intent must be madeduring the penalty phase; a guilty plea, just like a convictionafter trial, does not extinguish this requirement.

Intent can be difficult to prove, as it often cannot be showndirectly. The jury frequently can only make inferences, informedby the evidence, as to what a defendant was thinking at any given time. Even a defendant's statements regarding his intent are notnecessarily conclusive, as they may be the product of deceit,forgetfulness, or mental illness. Therefore, although the jurycould have drawn on the information given by Sampson in hisconfessions, any additional information regarding the nature ofthe wounds inflicted by him could have been importantcircumstantial evidence of his intent to cause death. Whilemedical diagrams would have informed the jury about the size andlocation of the wounds, the photographs might have allowed thejury to obtain a better understanding of what occurred and howSampson attacked his victims.2 By having more informationabout the encounter and the actions of the defendant, the jurorsmight be better able to make inferences about his state of mind.See United States v. Allen, 247 F.3d 741, 793 (8th Cir. 2001)(photographs of victims probative of intent, as showing theextent of the damage caused by the defendant), vacated on othergrounds, 536 U.S. 953 (2002).

However, because the gateway factors were not seriously indispute, there was a real danger that the admission of extensivegraphic and shocking evidence that was relevant only to thosegateway factors would be unfair to the defendant. If this hadbeen the only relevance, it would have been clear that thephotographs should, in large part, have been excluded. However, thephotographs were also relevant to at least one allegedaggravating factor that was significantly in dispute, namely,that "the offenses were committed in an especially heinous,cruel, or depraved manner in that they involved torture orserious physical abuse to the victims." See18 U.S.C. § 3592(c)(6). As discussed in Part X, infra, a finding ofespecially heinous, cruel, or depraved under either the tortureor the serious physical abuse prong would require a finding notmerely of the damage done to the victims' bodies or mentalanguish inflicted, but also a finding of the defendant's intent.For a finding of especially serious physical abuse, the jurywould have to find that the defendant had the intent to inflictphysical abuse to the victims' bodies beyond that necessary tokill the victims. For a finding of torture, the jury would haveto find that the defendant inflicted physical or mental abuse toa conscious victim for one of three specific purposes: either topunish, to extract information or a confession, or for sadisticpleasure.

Again, there are relatively few kinds of evidence that could behelpful in determining whether the requisite intent existed. Thewords of a defendant, as recorded in a confession, may be helpfulbut not determinative: both the prosecution and the defenseargued at various points that Sampson's statements wereinaccurate in many of their details. In determining whether thedefendant had the necessary intent to meet the especiallyheinous, cruel, or depraved factor, the jury would have been aided by any evidence that wouldhave enabled it to visualize the encounter between the defendantand his victims, to visualize the state the victims were in atthe time the defendant left, and, therefore, to understand betterthe defendant's likely intention.

One consideration under the FDPA that is not present in theusual criminal trial is the necessity of giving weight to afactor if the jury reaches the point where it must decide"whether all the aggravating factor or factors found to existsufficiently outweigh all the mitigating factor or factors foundto exist to justify a sentence of death, or, in the absence of amitigating factor, whether the aggravating factor or factorsalone are sufficient to justify a sentence of death."18 U.S.C. § 3593(e). During a criminal trial to determine guilt, once a factis established beyond a reasonable doubt, additional proofregarding that fact may be unnecessary and cumulative. However,under the FDPA, the existence of a fact or factor is not all thatthe jury must consider. It must also consider the weight to begiven to that factor. In this context, even if medical diagramsand oral testimony would have been sufficient to establish thatthe offense was committed in an especially heinous, cruel, ordepraved manner in that it involved torture or serious physicalabuse, photographs had the potential to be valuable for the juryin determining how much weight to give that factor.3

Sampson made two particular objections to the photographicevidence. First, he argued that the photographs were unfairlyprejudicial because of their gruesome nature. He argued that anyprobative value they possessed paled in comparison to theirinherently prejudicial nature, which would serve to inflame thejury. See, e.g., Spears v. Mullin, 343 F.3d 1215, 1228 (10thCir. 2003) ("[E]ven if the photographs were minimally relevant tothe heinous, atrocious, or cruel aggravator, the photographs'prejudicial effect outweighed their probative value."). Second,Sampson argued that the photographs did not accurately representthe victims' bodies at the time he left them. These objectionswere analyzed together under the 18 U.S.C. § 3593(c) framework,which instructs the court to compare the probative value of apiece of evidence with the danger of unfair prejudice, confusion,and misleading of the jury.

Both objections go to the danger of unfair prejudice; thesecond objection also goes to the limited probative value of thephotographs. To the extent the photographs depicted a situationsignificantly different from that at the time the defendant leftthe crime scene, they were less helpful in drawing inferencesabout his actions and state of mind at that time. But seeUnited States v. Sarracino, 340 F.3d 1148, 1169 (10th Cir. 2003) (rejecting achallenge that the body of the victim had changed between thetime of the crime and the time of the photograph, the courtwrote, "The bloodied head and face of the victim gives anindication, although admittedly an imperfect one, of how thevictim must have appeared to the defendants at the end of thefight. Without these photos, the prosecution would have beenhandicapped in its ability to convey the nature and extent of thebeating to the jurors.").

The most significant post-mortem changes were to the size andshape of the wounds, which might have expanded as the skinloosened over time, and the presence of insects on the body, theactivities of which also caused considerable skin discoloration.The government argued that the defendant could not fairlycomplain about the decomposition of his victims' bodies when hecontributed to the level of decomposition by concealing thebodies from the authorities. While it is possible that in somecases the fact that the defendant concealed the body of thevictim and purposefully left it to decompose could be anaggravating factor, that factor was not alleged in this case and,therefore, could not be considered by the jury. See18 U.S.C. § 3593(a). The decomposition of the body was not relevant to theespecially heinous, cruel, or depraved aggravating factorrequiring serious physical abuse or torture at the time of themurder. Moreover, when faced with photographs showing the effectsof decay, decomposition, and insects, the jury might well have been led to consider themurders to have been worse or the defendant more deserving of thedeath penalty. This danger could not have been cured entirely bya limiting instruction.4

As the Supreme Court of Kentucky phrased the issue, in a casewhere the body of the victim had been stored for months in afreezer: The general rule is that relevant pictures are not rendered inadmissible simply because they are gruesome and the crime is heinous. This general rule loses considerable force when the condition of the body has been materially altered by mutilation, autopsy, decomposition or other extraneous causes, not related to commission of the crime, so that the pictures tend to arouse passion and appall the viewer.Clark v. Commonwealth, 833 S.W.2d 793, 794 (Ky. 1992)(citations omitted).

Similarly, Justice Thurgood Marshall wrote, in dissenting to adenial of certiorari of a capital case from Oklahoma wherephotographs of a victim's body which had been retrieved from ariver one month after a murder were introduced at the penaltyphase: [T]he petitioner argues convincingly that the photographic evidence created an impermissible risk that his death sentence was based on considerations that are "totally irrelevant to the sentencing process," because it focused the jury's attention on the postmortem decomposition of the victim's body rather than on "the character of the [defendant] and the circumstances of the crime."Mann v. Oklahoma, 488 U.S. 877, 877 (1988) (Marshall, J.,dissenting from denial of cert.) (citations omitted).

In addition to some photographs in which insects were visibleon the bodies of the victims, there were a number of photographsin which portions of the victims' bodies were colored dark red orbrown. This caused an additional risk of confusion or ofmisleading of the jury. To the untrained eye, this discolorationappeared to be the product of blood loss. However, the voir diretestimony of the medical examiner, Dr. William Zane, establishedthat the discoloration was caused by an entirely different, butequally unpleasant process: the decay caused by the enzymes thatare produced by insect larvae as they travel across the corpse,eating away the outer layers of skin. Introduction of thesephotographs would either have served to mislead the juryconcerning the amount of blood that had been lost or haverequired a detailed and particularly disturbing explanation ofthe processes of decomposition, an explanation that would likelyhave aroused the passions of the jurors. The defendant would havebeen forced to choose between two unfair alternatives: eitherallow the jury to believe that more blood was lost or be forcedto bring out the details of the insect activity. Again, howeverreprehensible anyone might find the fact that victims' bodies decomposed as aresult of being abandoned by the defendant is wooded areas, thegovernment did not allege that fact as an aggravating factor inthis case and the jury could not properly have considered it asone. See 18 U.S.C. § 3593(a).

A similar situation was considered by the Supreme Court ofArizona in State v. Spreitz, 945 P.2d 1260, 1271-73 (Ariz.1997). There, in a capital case, a number of autopsy photographswere admitted. The court described the photographs as follows: The photographs depict the corpse as it appeared after decomposing in the desert for three days in temperatures exceeding 100N F. The corpse is severely discolored, and in all of the photographs insects are shown partly covering the body. This insect activity is vividly apparent in the close ups.Id. at 1271. The Supreme Court of Arizona, in deciding thatadmission of the photographs was error, noted that the medicalexaminer was able to testify clearly about the wounds to thevictim's body, and that the photographs provided "little or noadditional aid in that regard." Id. at 1273. The court heldthat the "danger of unfair prejudicial effect on the jurysubstantially outweighed the photographs' probative value."Id.5

Also, in Tobler v. State, 688 P.2d 350 (Okla.Crim.App.1984), the Court of Criminal Appeals of Oklahoma reversed acapital conviction, in part based on the admission of photographsdepicting the "gruesome work of nature" on victims' bodies,including decomposition and maggot activity.6 Id. at355. The court noted that "[i]t is difficult to ascertain anyprobative value of the evidence," given that the defendant hadadmitted to the killings, stipulated to the information in thephotographs, and the medical examiner testified as to the causeof death. Id. at 355-56. The photographs "provided nothing inthe way of new evidence, and had the potential, if not certain,effect of unduly prejudicing" the defendant. Id. at 356.

In analyzing the admission of the photographs, this court wascognizant not only of the balancing test for informationestablished by 18 U.S.C. § 3593(c), but also of the due processconcerns in the case generally. A defendant's due process rightshave been violated when, in view of the totality of thecircumstances, he has not received a fundamentally fair trial.See, e.g., Spears, 343 F.3d at 1225-26. Such a violationcould arise out of a single action or piece of evidence. It couldalso arise from the cumulative effect of a number of pieces ofevidence in combination. In the present case, the photographsmight individually have been admissible, but might have amountedto a denial of due process when considered together. Similarly,the photographs themselves might not have caused a due processviolation, but could, in combination with other types of evidencethat involve the danger of unfair prejudice, have contributed toa due process violation. Therefore, the court was required toconsider the other evidence in this case, including the type andamount of victim impact evidence, when deciding which photographsto admit. See, e.g., United States v. Rivera, 900 F.2d 1462,1477 (10th Cir. 1990) ("Courts have also found fundamentalunfairness when error is considered in conjunction with otherprejudicial circumstances within the trial, even though suchother circumstances may not individually rise to the level oferror.").

In light of these concerns, the court admitted only a smallsubset of the proffered photographs. The photographs admittedwere those that most closely depicted the condition of thevictims at the time they were left by the defendant. Theyprimarily showed detailed views of individual wounds rather thanpictures of the general condition or blood loss of the victim'sbodies. Redacted from the photographs that were admitted wereparticularly gruesome portions of the images, including thosedepicting discoloration of the victim's body and insect activity.

Finally, one photograph was admitted after the portion of itwhich showed a crucifix was redacted. This photograph was ofWhitney, tied to a chair in the bathroom where Sampson killedhim. A crucifix hung on the wall next to the bathroom. Thecrucifix had little or no probative value. It did not relate toWhitney's character since he was killed in someone else's house. Further,the juxtaposition of the crucifix with Whitney's strangled andbound body could have been seen as providing religious overtonesto the murder. Inclusion of the crucifix would have run the riskof affecting one or more jurors in an unpredictable, but unfairlyprejudicial way. See Taylor v. State, 640 So. 2d 1127, 1135(Fla.Dist.Ct.App. 1994) (videotape of victim's home thatincluded panning shots of a crucifix on the wall "invite[d] anemotional response"); cf. Commonwealth v. Chambers,599 A.2d 630, 644 (Pa. 1991) (establishing a per se rule againstreligious invocations in prosecutorial closing arguments incapital cases). As the inclusion of the crucifix would haveprovided no relevant information, redaction was appropriate toavoid the risk of unfair prejudice.

VI. EVIDENTIARY RULINGS RELATING TO BLOODY CLOTHING

On November 6, 2003, November 10, 2003, November 12, 2003,November 13, 2003, December 3, 2003, December 16, 2003 andDecember 17, 2003, the court considered the introduction of theshirts that McCloskey and Rizzo were wearing when Sampson killedthem. These shirts had been cut off the victim's bodies by policeinvestigators and preserved. They were mounted in plexiglass thatallowed both the front and the back of the shirt to be viewed. Inaddition to the cuts made by the police, the shirts were rippedin numerous places that corresponded with the stab woundsinflicted on McCloskey and Rizzo. They also were heavily stainedwith blood. The shirt of one of the victims had several folds in whichinsects had laid a large number of eggs.

The shirts were relevant in the same way that many of thegruesome photographs were germane. They could have been used bythe jury in considering whether the offenses were committed in anespecially heinous, cruel, or depraved manner in that it involvedserious physical abuse.7 The shirts could have vivifiedthe victims' struggles for the jury in a way that might not havebeen accomplished merely by oral testimony and medical diagrams.By having a more vivid picture of the struggle, the jury mighthave been better able to make inferences about the defendant'sintent, an element necessary for establishing serious physicalabuse. In the same way, the shirts might also have assisted thejury in giving weight to the heinous, cruel, or depravedaggravator, if the jury had found that factor to have beenproven.

The court recognized that the shirts were not the best evidenceof the specific size and number of wounds inflicted on thevictims. The rips in the shirts might have been larger than theactual stab wounds. Likewise, if a shirt were doubled over at thetime of the attack, a single knife thrust could have made two or more rips in the shirt. These dangers, however, could have beenreduced or eliminated by testimony elicited on direct orcrossexamination regarding the manner in which a knife attackcauses holes in a garment.

In the context of this case, the court ruled that the shirtswere inadmissible under the 18 U.S.C. § 3593(c) standard and thedue process clause.8 Courts have often admitted thebloody clothing of the victim in homicide prosecutions. See,e.g., Annotation, "Admissibility, in Homicide Prosecution, ofDeceased's Clothing Worn at Time of Killing," 68 A.L.R.2d 903, §2[a] (1959) ("In homicide prosecutions, the general rule is thatthe clothing worn by the victim at the time of the killing isadmissible in evidence, even where its introduction may beprejudicial to the accused, if it tends to shed light upon amaterial inquiry in the case."). However, in the context of thiscapital case, there were unique considerations that indicatedthat exclusion was appropriate.

While the shirts were, as described above, relevant to materialissues in this case, it is likely that the jury would not haveconsidered them solely on those issues. During the trial, theprosecution produced evidence, especially through the confessions of the defendant, that was more directly probative of the intentelement of serious physical abuse. Rather than as circumstantialevidence of intent, the jury would likely have regarded theshirts as powerful and immediate symbols of the victims and thebrutality of their murders. See, e.g., Frazier v. Mitchell,188 F. Supp. 2d 798, 826 (N.D. Ohio 2001) (with bloody clothingbefore the jury, prosecutor stated in closing that the victim "isnot here. We have bloody clothing to represent her"; the courtviewed this as "unprofessional, improper and excessive"). Thepresence of the shirts in the jury room during deliberationscould have exerted an intense emotional force unconnected totheir legitimate probative value. The display of the shirtsduring closing argument could have induced the jury to respond ina purely emotional way.9 Further, use of the shirts would have presented the danger ofintroducing inappropriate victim impact information. At severaltimes during the course of the case, members of the victim'sfamilies seated in the gallery were, understandably, visibly andaudibly upset by the testimony and other evidence. The courtattempted to ensure that the jurors considered only the victimimpact evidence that was offered from the witness stand and werenot influenced by reactions they observed in thegallery.10 At one point, when McCloskey's bloody shirtwas displayed in open court, but not in the presence of the jury,there were audible gasps from the gallery. In this context, thecourt feared the repetition of the events described in State v.Steele, 586 P.2d 1274, 1277-78 (Ariz. 1978). In that case,during the display of a murder victim's clothing, his widowbecome so overwrought that she rushed from the courtroom, creating a disturbance which was noticed byall the jurors. The defendant objected, saying that theprosecution was "in effect, `waving the bloody shirt.'" Onappeal, the Supreme Court of Arizona agreed, saying that theshirts had been introduced "only to arouse and inflame theemotions of the jury." Id.

For these reasons, the court ruled that the bloody shirts ofMcCloskey and Rizzo were not admissible.

VII. VICTIM IMPACT EVIDENCE

A. GENERAL STANDARDS

In Payne v. Tennessee, 501 U.S. 808 (1991), the Supreme Courtreversed its prior decisions and held that the Eighth Amendmentdoes not erect a per se bar to the introduction of victimimpact evidence. Under Payne, the prosecution may offer atcapital sentencing "a quick glimpse of the life which a defendantchose to extinguish." Id. at 822 (quoting Mills v. Maryland,486 U.S. 367, 397 (1988)). Additionally, victim impact evidencemay illustrate "the loss to the victim's family and to societywhich has resulted from the defendant's homicide." Id. Thus,the prosecution also may offer evidence of the impact of thevictim's loss on others. Id. at 836. (Souter, J., concurring)In essence, in holding that the Constitution erects no per sebar to victim impact evidence, the Supreme Court concluded that"[v]ictim impact evidence is simply another form or method ofinforming the sentencing authority about the specific harm causedby the crime in question." Id. at 825. Victim impact evidenceis admissible under the constitution unless it "is so unduly prejudicial that it renders the trialfundamentally unfair" in violation of a defendant's right to dueprocess. Id. at 825; see also Jones v. United States,527 U.S. 373, 401-02 (1999).

The Supreme Court, however, also recognized the risk thatvictim impact evidence could be unduly inflammatory and expressedthe expectation that trial courts would exclude such testimony.Payne, 501 U.S. at 831 (O'Connor, J., concurring) ("Thepossibility that this evidence may in some cases be undulyinflammatory does not justify a prophylactic, constitutionallybased rule that this evidence may never be admitted. Trial courtsroutinely exclude evidence that is unduly inflammatory; whereinflammatory evidence is improperly admitted, appellate courtscarefully review the record to determine whether the error wasprejudicial."); id. at 836 (Souter, J., concurring) ("[I]n eachcase there is a traditional guard against the inflammatory risk,in the trial judge's authority and responsibility to control theproceedings consistently with due process, on which grounddefendants may object and, if necessary, appeal."). Exercisingthis authority is essential in a capital case for, as the SupremeCourt has cautioned, "[i]t is of vital importance to thedefendant and to the community that any decision to impose thedeath sentence be, and appear to be, based on reason rather thancaprice or emotion." Gardner v. Florida, 430 U.S. 349, 358(1977).

Victim impact evidence may be considered by the jury in federal capital cases, as a non-statutory aggravating factor, ifthe jury unanimously finds that the prosecution has proven atleast one statutory aggravating factor. See18 U.S.C. § 3593(a),(e). The FDPA explicitly permits the government topresent evidence "concerning the effect of the offense on thevictim and the victim's family." 18 U.S.C. § 3593(a). Suchevidence "may include oral testimony, a victim impact statementthat identifies the victim of the offense and the extent andscope of the injury and loss suffered by the victim and thevictim's family, and any other relevant information." Id. Underthe FDPA, the prosecution must provide the defendant with noticeof its intent to use victim impact evidence, unless its evidenceis introduced merely to rebut mitigating evidence offered by thedefendant. See 18 U.S.C. § 3593(a)-(b); see also UnitedStates v. Allen, 247 F.3d 741, 778-81 (8th Cir. 2001) (holdingthat FDPA allows victim impact evidence and that the notice andunanimity requirements of the FDPA are adequate proceduralsafeguards), vacated on other grounds, 536 U.S. 953 (2002).

In this case, the court recognized that there are two checks onpotentially unfairly prejudicial victim impact evidence, andindeed on all evidence at trial. The first check is the trialcourt's statutory responsibility, see 18 U.S.C. § 3593(c), todecide if the probative value of a particular piece of evidenceis outweighed by the danger of unfair prejudice, in the form ofinflaming the jury's passions and thus promoting the "risk [of] a verdict impermissibly based on passion, not deliberation."Payne, 501 U.S. at 836 (Souter, J., concurring).

The second check is the responsibility of the court to securethe defendant's right to due process by viewing the profferedevidence in the context of all the other evidence in the case anddeciding if its admission would contribute to or detract from atrial that is fundamentally fair and allows jurors to base theirdecisions on reason and reliable evidence rather than passion.Id.

While Payne reversed Booth v. Maryland, 482 U.S. 496(1987), in which the Court had held that the admission of victimimpact testimony was always unconstitutional at capitalsentencing, it specifically did not reverse its prior holdings onother issues. The Court explained: Our holding today is limited to the holdings of Booth v. Maryland, 482 U.S. 496 (1987), and South Carolina v. Gathers, 490 U.S. 805 (1989), that evidence and argument relating to the victim and the impact of the victim's death on the victim's family are inadmissible at a capital sentencing hearing. Booth also held that the admission of a victim's family members' characterizations and opinions about the crime, the defendant, and the appropriate sentence violates the Eighth Amendment. No evidence of the latter sort was presented at the trial in this case.Payne, 501 U.S. at 830 n. 2. Therefore, certain types oftestimony by a victim's survivors continue to be prohibited.

First, victim impact witnesses may not characterize or givetheir opinions on the crime. Second, they may not characterize orgive opinions on the defendant. Third, they may not express anopinion on the appropriate sentence. See Booth,482 U.S. at 508. Other courts have echoed these findings, holding that victimimpact testimony may not present an opinion on what theappropriate sentence might be or consist of statementsconstituting a "mere emotional plea" unrelated to the impact ofthe crime on the victims or their families. See Hain v.Gibson, 287 F.3d 1224, 1237-38 (10th Cir. 2002); Robinson v.Maynard, 943 F.2d 1216 (10th Cir. 1991).

B. APPLICATION OF STANDARDS TO THIS CASE

On August 15, 2003, the court ordered the parties to filememoranda addressing the permissible scope of victim impacttestimony, and what measures it should consider in order toensure that the jury was not exposed to testimony that shouldhave been excluded. On September 2, 2003, the government filedits Memorandum regarding Admissibility and Scope of Victim ImpactTestimony as to Gary Lee Sampson. The defendant filed hisresponse on September 5, 2003. On October 27, 2003, at thecourt's request, the government filed a proffer regarding itsexpected victim-impact testimony, stating its intention to call atotal of nine victim impact witnesses and outlining theinformation that it intended to elicit from the witnesses attrial.

Sampson filed his response on October 28, 2003 which hesupplemented on October 29, 2003. Sampson asked that thegovernment be limited to two witnesses per family, and furtherthat any victim impact evidence relating to the Whitney murder,for which Sampson was not being tried in this court,11 be excludedaltogether. Sampson also called on the court to impose proceduralsafeguards to guard against possible prejudice, askingspecifically that the court impose the procedures set out inUnited States v. O'Driscoll, 203 F. Supp. 2d 334, 340-41 (M.D.Pa. 2002) and United States v. Glover, 43 F. Supp. 2d 1217,1234-36 (D. Kan. 1999). In each of those two cases, thegovernment was required to submit a written statement describingthe proposed testimony of each victim impact witness.O'Driscoll, 203 F. Supp. 2d at 341 (citing Glover,43 F. Supp. 2d at 1235-36). Each of the courts also adoptedinstructions to be given victim impact witnesses, concerningcontrol of their emotions during the time of their testimony.Id.

The government initially proposed a total of nine victim impactwitnesses: three from the McCloskey family, four from the Rizzofamily, and two from the Whitney family.

On October 30, 2003, the court first addressed the issuespresented by the McCloskey and Rizzo witnesses. The government'sproposed witnesses were three of Philip McCloskey's adultchildren, as well as the parents and two younger brothers ofJonathan Rizzo. The government informed the court that it wouldintroduce those witnesses' victim impact testimony in aquestion-and-answer format. As indicated earlier, Sampson arguedthat no more than two members of each of the McCloskey and Rizzofamilies should be allowed to testify, to prevent unfair prejudice and the risk that passionand sympathy would overwhelm reason.

In many federal and state cases, however, trial courts haveallowed several family members and others to testify at capitalsentencing. The trial at issue in United States v. Allen,247 F.3d 741, 779 (8th Cir. 2001), vacated on other grounds,536 U.S. 953 (2002), involved eleven victim impact witnesses and 80pages of transcript. The Tenth Circuit in United States v.Chanthadara, 230 F.3d 1237 (10th Cir. 2000), found that allowingthree family members, the victim's widow and their two children,to testify as victim impact witnesses did not violate thedefendant's due process rights. In United States v. Bernard,299 F.3d 467, 478 (5th Cir. 2002), the Fifth Circuit found noerror in the court's allowing the reading of five victim impactstatements, four from the victims' parents and one by a friendand former coworker of the two victims; and in United States v.Barnette, 211 F.3d 803, 818 (4th Cir. 2000), the Fourth Circuitfound no error when the trial court permitted seven familymembers to testify as victim impact witnesses regarding thedeaths of two people. In State v. Scales, 655 So. 2d 1326,1335-36 (La. 1995), several family members testified, eachbriefly, and that was not found to be reversible error. State v.Taylor, 669 So. 2d 364, 370-71 (La. 1996) allowed threewitnesses related to the victim, where their testimony took uponly ten pages out of a 793-page transcript and where the defensepresented twenty mitigation witnesses. This court found that three to four family members per victimin this case was not too many per se. Each family member of amurdered victim suffers a unique harm. Consequently, eachwitness' testimony provides distinct information that the jurycan use in deciding what weight to give this aggravating factor.

Ultimately, however, the prosecution introduced victim impactevidence through the testimony of only six witnesses: three ofMcCloskey's adult children, followed by Rizzo's father, motherand one of his younger brothers. The testimony was conducted inquestion-and-answer format in order to control the subject mattercovered and to provide the defendant with an opportunity to makeobjections. In total, the victim impact testimony comprised abouttwo hours of more than two weeks of prosecution evidence,comprising only sixty-three pages of a very lengthy trialtranscript.

Just before the first victim impact witness testified, thecourt instructed the jury as follows: Ladies and gentlemen, the next set of witnesses are going to be members of the victims' families. They're going to give testimony that in the law is called victim impact testimony. And with the agreement of counsel, I'm going to explain to you now and, I expect, repeat at the end of the case the specific and limited purpose for which victim impact evidence can be considered by you. To understand this, you need to be reminded of the architecture of the Federal Death Penalty Act. You may recall that in the process of jury selection and on the first day that you came to hear evidence, I told you that there are various stages in the Federal Death Penalty Act which establishes a process that you have to follow in this case in deciding the appropriate sentence. At the first stage, you decide whether the defendant is eligible to be executed, whether the death penalty is an option. In the second stage — if you reach that stage — if the government proves that the death penalty is an option, you have to decide which if any of the alleged aggravating factors have been proven beyond a reasonable doubt, actually, the non-statutory aggravating factors. And then you would have to consider, if the death penalty is an option, whether any of the possible mitigating factors have been proven by a preponderance of the evidence. And then, if the death penalty is an option, you have to weigh the proven aggravating factors against any possible mitigating factors and decide if the aggravating factors are sufficient to make the death penalty the appropriate penalty in this case rather than life in prison without possibility of release, which is the only other option. . . . the first thing you'll have to consider when you go back to deliberate is whether the government has proven beyond a reasonable doubt certain facts that are necessary to establish that the defendant is eligible for the death penalty. * * * And this will require that the government prove at least one of several alleged states of mind at the time the crime was committed. And I'll explain it to you, and they'll be spelled out on the verdict form. And you'll also have to decide whether the government has proven beyond a reasonable doubt at least one aggravating factor that's established by the Federal Death Penalty statute. For example, in this case there are several, but — for example, it's alleged that each of the crimes was committed after substantial planning and premeditation. So, if the government doesn't prove that the defendant is eligible for the death penalty, your deliberations will be complete, and you won't in your deliberations have considered the victim impact evidence. If the government does prove . . . that the death penalty is an option for Mr. Sampson in this case for either or both of the crimes with which he's charged and pled guilty, then you'll go to the second stage. You'll have to decide whether the government has proven any of what are called non-statutory aggravating factors beyond a reasonable doubt. The impact of the crime on each of the victims, Philip McCloskey and Jonathan Rizzo and each of their families, is a non-statutory aggravating factor for each of the crimes concerning them. And several members of each of the victims' families are going to testify today with regard to this. I want to tell you what the Supreme Court has explained about victim impact evidence. The evidence is intended to inform you that each victim was a unique human being, just as you'll later hear through the evidence in this case that the defendant, Gary Sampson, is a unique human being. And I expect that the testimony that you're going to start hearing soon will be emotional. In fact,[the Deputy Clerk] has some [Kleenex] and, if we discern that anybody wants it or needs it, he'll give it to you . . . However, the victim impact evidence is being admitted for a limited purpose. That means you can consider it for a particular purpose, but not for other purposes. You may not consider the victim impact evidence, that is, the evidence from the victims' families, on the issue of whether the defendant is eligible for the death penalty. You'll have to address certain other factual questions before you can properly consider victim impact evidence, and the victim impact evidence can't influence your judgment on those earlier issues. So, for example, you can't consider what the victims' families say on whether the defendant had the state of mind required when he committed the crime to make him eligible for the death penalty. And they won't be testifying about that. And you can't consider the evidence from the victims' families on whether some statutory aggravating factor has been proven. You can consider the victims' families testimony only if the defendant is proven to be eligible for the death penalty by other evidence in the case, and then you can consider that testimony from the victims' families only on the issue of victim impact and not with regard to whether other non-statutory aggravating factors have been proven. If you find that the defendant is eligible for the death penalty with regard to the crime of carjacking resulting in the murder of Philip McCloskey, you may consider the content of the victim impact evidence, evidence from his family members, regarding whether the government has proven that non-statutory aggravating factor of victim impact. And if that's proven, you can consider that factor in deciding whether the death penalty is justified for that crime. And the same is true with regard to the carjacking resulting in the murder of Jonathan Rizzo. You may not, however, permit the victims' families' testimony to overwhelm your ability to follow the law. For example, you must obey the legal requirement that you not consider the testimony from the victims' families on the factual issues that will determine whether the death penalty is an option for one or both of the crimes and [if] victim impact is proven, you must still decide based solely on the other evidence if the other alleged aggravating factors are proven beyond a reasonable doubt and whether any mitigating factors are proven by a preponderance of the evidence. If the death penalty is an option in your deliberations, you must consider and weigh all of the proven aggravating factors and mitigating factors and not just consider victim impact in deciding if the death penalty is the appropriate penalty or whether the defendant should be sentenced, instead, to life without possibility of release. In essence, the law requires that you decide whether the death penalty is justified in this case based on a reasoned judgment made according to the process that the law establishes and that I describe. You may not base the decision on undue sympathy, passion, or prejudice.Oct. 20, 2003 Tr. at 34-40.

The government also sought to introduce a memorial video ofRizzo. The video, made for a memorial service, was abouttwenty-seven minutes in length and featured over 200 stillphotographs of the victim, in roughly chronological order, from the time he wasborn until the time just before his death. The pictures were setto evocative contemporary music, including that of the Beatlesand James Taylor. On October 30, 2003, the court decided toexclude the videotape because its probative value was outweighedby the danger of unfair prejudice, and created a danger ofprovoking undue sympathy and a verdict based on passion asopposed to reason.

In making its decision, the court recognized that severalcourts have allowed some video clips of various kinds to beadmitted during a sentencing-phase presentation of evidence. TheCourt of Appeals of Maryland in Whittlesey v. State,665 A.2d 223, 230 (Md. 1995), ruled that a 90-second videotape of themurder victim playing the piano, a skill for which the victim wasnationally recognized, was relevant and admissible. In State v.Gray, 887 S.W.2d 369, 389 (Mo. 1994), the court held that avideotape of the victim's family at Christmas, presented duringthe sentencing phase of a capital trial, was admissible. Thecourt in State v. Allen, 994 P.2d 728, 751 (N.M. 1999), foundthat a threeminute videotape of the victim on a camping trip hadprobative value, and that the defendant was not unfairlyprejudiced by its admission as victim impact evidence. In Statev. Anthony, 776 So. 2d 376, 393-94 (La. 2000), during thetestimony of one victim's husband, the prosecution introduced abrief videotape depicting portions of her life. The LouisianaSupreme Court found that all evidence was properly admitted andupheld the death sentence. In each of these cases, the admitted video was brief and foundto be probative of some aspect of the victim's life. In othercases, however, trial courts have excluded videotapes where theyhad the potential to cause unfair prejudice or arouse unduesympathy. For example, in United States v. McVeigh,153 F.3d 1166, 1221 n. 47 (10th Cir. 1998), "the district court prohibitedthe introduction of wedding photographs and home videos".

Notably, Salazar v. State, 118 S.W.3d 880 (Tex.App. 2003),dealt with a situation almost identical to the instant case. Thedefendant was convicted by jury of the murder of Jonathon Bishop.During the punishment phase of trial, the judge admitted intoevidence a seventeen minute videotape described by the court ofcriminal appeals as "an extraordinarily moving tribute toJonathon Bishop's life." Id. at 882 (quoting Salazar v.State, 90 S.W.3d 330, 333 (Tex.Crim.App. 2002) (remandingSalazar to Court of Appeals)).

The exhibit contained approximately 140 still photographs arranged in a chronological montage accompanied by music including "Storms in Africa" and "River" by Enya, and concluded with Celine Dion singing, "My Heart Will Go On," from the movie Titanic. The jury assessed punishment at thirty-five years confinement and a fine of $10,000.Id.

In applying a harmless error analysis to both the visual andaudio portions of the videotape, the Court of Appeals looked tothe opinion of the Texas Court of Criminal Appeals, where themajority found the character of the videotape to be "veryprejudicial" and remanded the case to the Court of Appeals for a harmless erroranalysis. Quoting the higher court's review of the videotape, theCourt of Appeals stated that: "[The] prejudicial effect [of the videotape was] enormous because the implicit suggestion is that appellant murdered this angelic infant; he killed this laughing, light-hearted child; he snuffed out the life of a first-grade soccer player and of the young boy hugging his blond puppy dog. The danger of unconsciously misleading the jury [was] high." The majority of the court also stated: "The memorial video . . . was very lengthy, highly emotional, and barely probative of the victim's life at the time of his death." When remarking on the background music, the court said: "[T]he Enya and Celine Dion background music greatly amplifie[d] the prejudicial effect of the original error." Even Judge Keller, a staunch proponent of victim-impact evidence, recognized the photographic montage "was unduly prejudicial," that "the music was unnecessary," and that the videotape "was presented in a manner designed to have an unduly emotional impact." Additionally, regarding the music portion of the videotape, on direct appeal the State conceded that the music was not relevant. On remand, the State again concedes the photographs were "accompanied by highly emotional and moving background music."Id. at 884 (alterations in original; citations omitted). TheSalazar court ultimately concluded that the error stemming fromthe erroneous admission of the videotape was not harmless. Thetrial court's judgment of conviction was affirmed, but thesentence was vacated and the case remanded to the trial court fora new hearing on punishment. Id. at 885.

Even longer than the videotape analyzed in Salazar, the Rizzovideo was close to 30 minutes long and featured many pictures ofthe victim from birth to college, posing with family, friends and religious figures.12 In addition, it was set to poignantmusic. Even without the music, admission of the video would havebeen unfairly prejudicial in light of the fact that the juryheard powerful, poignant testimony about Jonathan Rizzo's fulllife and the impact of his loss on his family, and sawphotographs of him in conjunction with this testimony. The video,given its length and the number of photos displayed, would haveconstituted an extended emotional appeal to the jury and wouldhave provided much more than a "quick glimpse" of the victim'slife. Together with the evocative accompanying music, thevideotape's images would have inflamed the passion and sympathyof the jury.

The last issue presented was that of the proffered Whitneyvictim impact testimony. The government had proposed to offer thetestimony of two of Robert Whitney's adult children, in order toallow the jury the opportunity to decide how much weight to givethe Whitney murder. The Whitney murder was alleged as anaggravating factor in the government's Notice of Intent.

For several compelling reasons, on October 30, 2003, the courtdecided to exclude the Whitney victim impact evidence. First, theFDPA makes no express provision for victim impact evidenceconcerning the victim of a crime for which the defendant is not being sentenced. Section 3593(a) states that aggravating factors"may include factors concerning the effect of the offense onthe victim and the victim's family." Id. (emphasis added). Theoffenses at issue in this case were the carjackings resulting inthe deaths of McCloskey and Rizzo. The murder of Whitney, bycontrast, was an aggravating factor in this case rather than acharged offense. An aggravating factor is not an "offense" withinthe meaning of § 3593(a).

The defendant argued that the government should be precludedfrom offering this evidence because its Notice of Intent statedthat the aggravating factor in question was the murder of Whitneyin New Hampshire; there was no reference in the aggravatingfactor to the presentation of victim impact evidence. Thisargument was not persuasive because under § 3593(a) thegovernment is required only to give notice of aggravatingfactors, not all of the evidence it intends to use to prove them.Nevertheless, the court recognized that the proffered Whitneyvictim impact testimony did not tend to prove that Sampsonmurdered Whitney, as the aggravating factor states. That fact wasundisputed, and the government was permitted to introduce someevidence to illustrate that fact and allow the jury to considerits proper weight in sentencing.

The impact of Whitney's death on his survivors was alsorelevant to the weight the jury assigned to the murder as anaggravating factor. As described earlier, however, the SupremeCourt and other courts have recognized the risk that victimimpact evidence could cause passion to overwhelm reason in sentencing.Payne, 501 U.S. at 836 (Souter, J., concurring); Hain,287 F.3d at 1237 (10th Cir. 2002). While the court chose to exerciseits discretion liberally in admitting much of the profferedvictim impact evidence relating to the Rizzo and McCloskeymurders, it found that admitting victim impact evidence regardingWhitney would create too great a risk that the jury would beunduly influenced by sympathy and passion, and the defendantwould be denied due process. See Payne, 501 U.S. at 825.

Moreover, it is not clear that the FDPA authorizes victimimpact evidence relating to uncharged murders, and no FDPA caseseems to have included such evidence. The court found that giventhe foregoing considerations, it would not be appropriate toadmit the victim impact evidence pertaining to Whitney, evenassuming, without deciding, that it would be legally permissibleto do so under the FDPA.

VIII. EVIDENCE RELATING TO OTHER CAPITAL PROSECUTIONS

One of the mitigating factors Sampson proposed to prove in thiscase was that "[t]here are numerous other federal defendantsconvicted of multiple murder who have not been sentenced todeath." Essentially, Sampson intended to argue that it would notbe fair to sentence him to death when others who were guilty ofequally or more awful crimes had not been executed. Thegovernment consistently opposed any reference to other cases.13

On October 31, 2003, the court allowed the government's motionin limine to preclude the defendant from presenting evidence ofother cases to the jury. Essentially, the court concluded thatalthough the outcomes of other cases were relevant to thedetermination of the appropriate penalty in this case and theproffered mitigating factor could properly be presented to thejury, the evidence the defendant sought to admit to establishthis mitigating factor was not admissible under the FDPA'sbalancing test. See 18 U.S.C. § 3593(c). As there was noevidence presented in support of this mitigating factor, thecourt did not include it on the verdict forms or instruct thejury on it at the end of the case.

The government first argued that any evidence of the verdictsreached in other cases was irrelevant to the appropriate verdictin this case and, as it was not related to Sampson's "character,record or the circumstances of his offenses," was not properly amitigating factor. Gov.'s Mot. in Limine — Exs. 20A & 20B at 2-3(citing 18 U.S.C. § 3592(a)(1)-(8) and cases). However, the FDPAdoes not limit mitigating factors to those that are related tothe defendant or the crime. As Judge Helen Berrigan haspersuasively written: The penalty phase statute applicable to this case is 18 U.S.C. § 3592. With regard to mitigating factors, it reads as follows: (a) Mitigating factors. — In determining whether a sentence of death is to be imposed on a defendant, the finder of fact shall consider any mitigating factor, including the following: . . . . (8) Other factors. — Other factors in the defendant's background, record, or character or any other circumstance of the offense that mitigate against imposition of the death sentence.

The most notable aspect of the statute is the introductory statement. The finder of fact (1) "shall" consider (2) "any mitigating factor, (3) including the following." First, the jury "shall" or must consider the mitigating factors; it is obligatory, not discretionary. Second, the fact finder must consider "any" mitigating factor. There is no qualification or limitation other than the factor "mitigate" against a sentence of death. Third, "(I)ncluding the following" means the subsequent list is not exclusive, but is instead illustrative. The eight identified factors are examples of specific factors that, if supported by the evidence, mitigate against the death penalty. Most significantly for the issue here, subhead (8) which refers to other factors "in the defendant's background, record, or character or any other circumstance of the offense" is a sub category of "any mitigating factor" rather than being the outer boundaries of what may be considered as mitigating. What 18 U.S.C.A. § 3592 allows is substantially broader than what the Supreme Court has declared to be the minimal requirements under the Constitution. According to the Supreme Court, the Eighth Amendment demands consideration only for those mitigating factors that concern the defendant's "character or record and any of the circumstances of the offense . . ." Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). Under the statute, on the other hand, the Supreme Court's constitutional minimum is simply subhead(8) of a non-exclusive list. The statute demands the fact finder consider "any mitigating" factor . . . period. United States v. Davis, 132 F. Supp. 2d 455, 463-64 (E.D. La.2001) (second ellipsis in original); see also id. n. 1("[I]n light of the overall structure of the statute, it is notnecessary to decide whether 18 U.S.C.A. § 3592(a)(8) is broaderthan the Eighth Amendment minimum."). Thus, the statutory"limitation" asserted by the government is no limitation atall.14

The government's argument that the defendant's proposedevidence was not mitigating, even in the broader sense, was alsonot persuasive. The defendant's proffered evidence was intendedto enable the jury to take into account considerations ofcomparative proportionality in determining the appropriatesentence in this case. Proportionality considerations wererecognized as valid mitigating factors by Congress and thePresident when they enacted the FDPA. See18 U.S.C. § 3592(a)(3)-(4) (listing as mitigating factors relatively minorparticipation in the offense and lack of death sentences forequally or more culpable co-defendants).

As Judge Leonard Sand wrote in United States v. Bin Laden,156 F. Supp. 2d 359, 369 (S.D.N.Y. 2001) (footnote omitted): Congress' deliberate inclusion of this factor [18 U.S.C § 3592(a)(4)] in the legislative scheme calls for a more broad interpretation of the range of permissible nonstatutory mitigating factors than the Government suggests. The circumstance that others who are equally culpable will not be subject to the death penalty is a comparative factor which reflects a determination by Congress that it is appropriate for jurors to consider questions of proportionality and equity when they are evaluating whether a death sentence is appropriate. See United States v. Beckford, 962 F.Supp. 804, 811-16 (E.D.Va. 1997) (analyzing 21 U.S.C. § 848(m)(8)) (explaining that "proportionality, equity, and fairness" are the goals "which underlie" the mitigating factor regarding equally culpable defendants). By permitting them to engage in such a comparison, Congress provided jurors with a means of improving the likelihood that the death penalty would not be administered in an arbitrary or random manner. Cf. Pulley v. Harris, 465 U.S. 37, 45, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984) (noting that general comparative proportionality review provides an "additional safeguard against arbitrary or capricious sentencing").Judge Sand describes Congress' choice as a deliberate one because"[a] review of competing draft versions of the death penaltylegislation makes clear that the decision to include this factorwas contested." Id. at 369 n. 12.

Proportionality is generally regarded as important tosentencing. It is the foundation of the current regime ofsentencing under the United States Sentencing Guidelines. TheGuidelines use nationwide statistics to promote proportionalsentences throughout the United States. It would be anomalous ifthe choice between a life sentence and a death sentence were theonly sentencing decision in the federal system in whichproportionality is not a proper consideration. Unlike many statestatutes, the FDPA makes no explicit provision for judicialproportionality review. The various courts of appeals or theSupreme Court may, nevertheless, decide to perform such review. See Sampson II, 275 F. Supp. 2d at 96. Thus, the government'sargument that the sentencer in a capital case is not permitted toconsider proportionality was not persuasive in principle.

The state court cases cited by the government weredistinguishable. In State v. Gardner, 789 P.2d 273, 286 (Utah1989), the Utah Supreme Court held that it was not error toexclude evidence of other cases. However, unlike the Utah statuteat issue in Gardner, the FDPA does not limit mitigatingevidence to the character of the defendant, his record or thenature of the offense. Wiggins v. State, 597 A.2d 1359, 1370-71(Md. 1991) and State v. Clark, 990 P.2d 793, 805 (N.M. 1999)were also inapposite as they each relied on state statutoryschemes that confer the authority to conduct proportionalityreview on the courts rather than the jury. The FDPA contains nocomparable delegation.

Thus, the court decided that proportionality evidence was, as amatter of law, properly a mitigating factor in an FDPA sentencinghearing. Nevertheless, the court found that the probative valueof the evidence Sampson proffered was outweighed by the danger ofunfair prejudice and confusion of the issues. The defendant madehis proffer as follows: The defense proposes to present to the jury, via the testimony of Kevin McNally, Esquire, of the Federal Death Penalty Resource Counsel Project, the verdicts reached in every federal death penalty case tried to date. It is anticipated that Mr. McNally would provide brief summaries of the circumstances of each case and the jury's verdict. Where available, the defense will present through Mr. McNally the actual verdict sheets from those cases, illustrating the aggravating and mitigating factors found in each case by the jury. (A CD containing 71 such verdict sheets has been served and filed [as Exhibit 20A]. Efforts top [sic] gather additional verdict sheets are ongoing.)Def.'s Resp. to Pending Mots. in Limine at 5.

In order to determine which of the many other cases aresufficiently similar to this case to bear on the question ofproportionality, the jury would have had to hear a large amountof evidence. In effect, the court would have had to conduct manymini-trials of other FDPA cases, since a jury would be unable toperform meaningful proportionality review based on briefsummaries of other cases. Rather, in order to fully appreciatethe verdicts reached in those cases, jurors in this case wouldhave had to hear substantial testimony regarding the crime andthe defendant in the other cases. The amount of time that wouldhave had to be spent educating jurors regarding all other FDPAcases in a nonprejudicial manner, which could have been measuredin weeks or months, as compared to the amount of time spent onthe mitigation case as a whole, likely would have diverted thejury's focus from the facts relating to Sampson and his crimes.

In United States v. Regan, 221 F. Supp. 2d 659, 660-61 (E.D.Va. 2002), the court held that proportionality evidence relatingto the harm done in other espionage cases could not be used as amitigating factor because it lacked probative value and there wasa significant danger of confusing the issues and misleading thejury. Section 3592(a)(4) provides that the jury may consider whether "[a]nother defendant or defendants, equally culpable in the crime, will not be punished by death." Id. (emphasis added). The plain language of section 3592(a)(4) limits the jury's consideration to co-defendants, co-conspirators, or accomplices of the defendant in the capital crime before the jury, not any similar crime. Defendant cites no authority that extends the scope of section 3592(a)(4) to defendants in other crimes.

In fact, the relevant case law stands contrary to Defendant's position. For instance, in United States v. Beckford, the court reviewed a similarly worded statutory mitigating factor in 21 U.S.C. § 848(m)(8). 962 F.Supp. 804 (E.D.Va. 1997). In that case, the court refused to expand the phrase "in the crime" to accomplices in the conspiracy that were not involved in the murder in which the defendant was charged. Beckford, 962 F.Supp. at 812. The Beckford court held that the language "in the crime" referred only to those defendants involved in the capital murder. See id. at 814. Relying on this interpretation of the statute, the court denied the defendant's Brady requests for materials relating to all criminal acts of all co-defendants as overbroad. See id. at 815. In this case, Defendant seeks even broader relief than that denied by the Beckford court. Defendant seeks discovery concerning defendants who have no connection whatsoever to the alleged crime Defendant is accused of committing. Moreover, eight of the ten defendants in the espionage cases identified by the Defendant pled guilty, whereas the Defendant in this case has not. Permitting the submission of evidence of totally unrelated espionage cases would lead to a confusion of the issues or mislead the jury. See id. at 826-27. Further, introducing evidence of that sort would inevitably amount to separate mini-trials on whether the Government should have sought the death penalty in certain cases. In sum, the damage assessments of other espionage defendants are irrelevant to the acts of the Defendant and the jury's determination of Defendant's sentence. Even if this evidence had a modicum of probative value, it would be substantially outweighed by the dangers of confusion of the issues and misleading the jury. Fed.R.Evid. 403.Id.

This court disagreed with the conclusion, reached in Regan, that the harm done by other capital defendants was irrelevant tothe determination of the appropriate sentence in this case.However, the court concluded that the dangers of misleading thejury and confusing the issues were simply too great in comparisonto the probative value that the proffered evidence would havewith respect to the proper sentence in this case. See id.;United States v. Feliciano, 998 F. Supp. 166, 173 (D. Conn.1998) (concluding that "any possible probative value [of evidenceregarding death-eligible offenses of co-conspirators] isoutweighed by the danger of misleading and confusing the jury").

On October 31, 2003, the court stated that a narrower proffermight be admissible under the FDPA's balancing test because amore limited presentation could have greater probative value andlesser associated risks. In an effort to conform his evidence tothe requirements of 18 U.S.C. § 3593(c), the defendant narrowedhis proffer by limiting it "to [47 FDPA] cases where a defendantwas found to have committed more than one murder." Def.'s Mem. inSupport of a Ltd. Presentation of Penalty-Phase Verdicts Reachedin Other Fed. Death Penalty Cases at 1. The government filed asecond motion in limine, urging the court to reconsider itsearlier decision that proportionality evidence may be properlypresented as a mitigating factor and, in any event, to precludethe narrower proffer under 18 U.S.C. § 3593(c).

On December 1, 2003, the court allowed the government's secondmotion in limine. The court was not persuaded to revise its earlier decision that proportionality evidence is, at least intheory, admissible in an FDPA case. Although the government wascorrect that the Guidelines put a relatively greater emphasis onproportionality and the FDPA puts a relatively greater emphasison consideration of the unique aspects of a defendant and hiscrime, the government was incorrect when it asserted thatproportionality considerations can play no role whatsoever in ajury's determination of whether a death sentence is moreappropriate than some other sentence.

However, even when limited to 47 cases, the defendant's profferdid not adequately address the risks of misleading the jury andconfusing the issues. Additionally, the government persuasivelyargued that the defendant's proffer suffered from inaccuraciesthat greatly diminished its probative value. For example, in thedocument containing summaries of other cases that the defendantsought to offer as an exhibit, there was a summary of this case.The summary of this case contained several material inaccuraciesand omissions. The government pointed out inaccuracies insummaries of other cases as well.

There was a significant danger that allowing even accuratetestimony regarding 47 other cases would have confused the jury.To permit inaccurate testimony by a witness relating hearsayaccounts of the evidence presented at the other trials would havepresented an even more substantial risk that outweighed theprobative value of the proffered evidence. Essentially, the court excluded the limited presentationbecause it agreed with the government that "the proffered [47]capital case verdicts cannot be compared in any meaningful wayunless the[] cases are effectively retried to th[e] jury" in thiscase and the defendant's proposed presentation of the casesthrough McNally would "only mislead the jury and createprejudicial confusion." Gov.'s Second Mot. in Limine at 27-28.

IX. THE COURT'S AUTHORITY TO REVIEW THE SUFFICIENCY OF THEGOVERNMENT'S EVIDENCE

On November 24, 2003, the court ruled that it had both thepower and the responsibility to evaluate the sufficiency of theevidence presented at the penalty phase of a prosecution underthe FDPA. While Federal Rule of Criminal Procedure 29 is notdirectly applicable to the penalty phase of a proceeding underthe FDPA, similar procedures and standards for evaluating theevidence are appropriate. A court can, therefore, decide adefendant's challenges to the sufficiency of the government'sevidence at the close of the government's case-in-chief orreserve decision and decide at a later time on the basis of theevidence at the end of the government's case-in-chief. As wouldbe the case under Rule 29, a court can make such a decision afterthe return of a jury verdict.

Federal Rule of Criminal Procedure 29(a) states: Before Submission to the Jury. After the government closes its evidence or after the close of all the evidence, the court on the defendant's motion must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction. The court may on its own consider whether the evidence is insufficient to sustain a conviction. If the court denies a motion for a judgment of acquittal at the close of the government's evidence, the defendant may offer evidence without having reserved the right to do so.

By its terms, Rule 29 is inapplicable to the penalty phase of acapital case under the FDPA. The Rule refers to evidencesufficient "to sustain a conviction" and to the entry of a"judgment of acquittal." These references indicate that the Ruleis not applicable to the penalty phase, where there is noquestion of evidence sufficient for a "conviction" and nopossibility of "acquittal".

This conclusion is not surprising, as the Rules of CriminalProcedure were drafted "long before the FDPA came intoexistence." United States v. Lee, 89 F. Supp. 2d 1017, 1021(E.D. Ark. 2000), rev'd on other grounds, 274 F.3d 482 (8thCir. 2001).15 In Lee, the district court dealt with apost-conviction motion for a new trial, ostensibly made pursuantto Rule 33. The court rejected the government's contention thatthe court had no authority to grant a new trial once the jury hadreturned a death verdict. Id.16 The court concluded that it had the same authority in the FDPAcontext as it would have in any other case. Id. It noted,further, that there are unique concerns for reliability incapital cases, citing United States v. Pena-Gonzalez,62 F. Supp. 2d 358, 360 (D.P.R. 1999), which held: [The decision] entails the unique gravity appropriate for capital cases. Capital punishment is qualitatively different from any other form of criminal penalty we may impose. With it, we deny the convict any possibility of rehabilitation and order instead his execution, the most irrevocable of sanctions. Its severity demands a heightened need for reliability in the determination that death is the appropriate punishment in a specific case. We must be, therefore, particularly sensitive to insure that unique safeguards are in place that comport with the constitutional requirements of the Due Process Clause of the Fourteenth Amendment and the Eighth Amendment.Lee, 89 F. Supp. 2d at 1021 (alteration in original; citationsomitted). The court in Lee, id., also cited the SupremeCourt's statement that: In capital proceedings generally, this Court has demanded that factfinding procedures aspire to a heightened standard of reliability. This especial concern is a natural consequence of the knowledge that execution is the most irremediable and unfathomable of penalties; that death is different.Ford v. Wainwright, 477 U.S. 399, 411 (1986) (Marshall, J.,plurality opinion) (citations omitted).

The same concerns are present in the current case. However,Lee is distinguishable as the language of Rule 33 gives thecourt the power to vacate "any judgment," and does not refersolely, as does Rule 29, to a "conviction". The textualdifficulties in applying Rule 29 in the FDPA context are, therefore, not presentwith respect to Rule 33.

The fact that Rule 29 does not cover the penalty phase of acapital case does not mean that the defendant is left withoutprotection against a judgment based on insufficient evidence. Thecourt has the inherent power to evaluate the sufficiency of theevidence against a defendant. Use of such power by application ofthe Rule 29 standard is not inconsistent with any of the FederalRules of Criminal Procedure. Cf. Carlisle v. United States,517 U.S. 416, 425-26 (1996) (noting that "federal courts may,within limits, formulate procedural rules not specificallyrequired by the Constitution or the Congress," but holding thatsuch inherent authority did "not include the power to developrules that circumvent or conflict with the Federal Rules ofCriminal Procedure") (citing United States v. Hasting,461 U.S. 499, 505 (1983)). As Rule 29 is not, by its terms, applicable,there is no provision of the Federal Rules of Criminal Procedurethat directly or indirectly addresses the issue of a trialcourt's evaluation of the sufficiency of the evidence at thepenalty phase of an FDPA prosecution. In fact, as a whole, theRules do not explicitly refer to procedures for the penalty phaseof a trial. In developing a procedure to govern the situation,the court, therefore, has acted interstitially rather than inconflict with or in circumvention of the Rules. Courts have acted pursuant to their inherent power insituations analogous to the present case. In United States v.Weston, 36 F. Supp. 2d 7 (D.D.C. 1999), the defendant objectedto being forced to undergo multiple competency examinations,relying on Carlisle in claiming that Federal Rule of CriminalProcedure 12.2(c) only authorized the court to order "a" singlepsychological examination. The court rejected this argument,holding that its order was a valid exercise of inherent authorityas it "conflict[ed] with neither the [Insanity Defense Reform]Act nor the Federal Rules of Criminal Procedure." Weston,36 F. Supp. 2d at 12.

In United States v. Webster, 162 F.3d 308 (5th Cir. 1999),the defendant in an FDPA case challenged a court-orderedpsychiatric examination required as a predicate for introducinghis own expert psychiatric testimony.17 On appeal, theFifth Circuit upheld the actions of the district court, citingthe district court's inherent powers: Although Webster correctly asserts that the court lacked statutory authority to order the psychiatric exam, a district court possesses inherent powers "reasonably useful to achieve justice," including certain powers over the administration of civil and criminal discovery. In fact, Fed.R.Crim.P. 57(b) provides that where no law or rule is directly applicable, "[a] judge may regulate practice in any manner consistent with federal law, these rules, and local rules of the district." The existence of the federal rules does not preempt this power, if the rules do not exclude the exercise of the specific putative inherent power.Id. at 339 (alteration in original; citations omitted). TheFifth Circuit went on to say, more broadly, that inherentauthority extended to the penalty phase of prosecutions under theFDPA: Acknowledging that a district court has such inherent authority furthers the goals of the FDPA. If the federal courts have supervisory authority to "formulate procedural rules not specifically required by the Constitution or the Congress" to "preserve the integrity of the judiciary by ensuring that a conviction rests on appropriate considerations validly before the jury," United States v. Hasting, 461 U.S. 499, 505, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983), that authority must extend to the sentencing phase of a trial as well.Id. at 339. see also United States v. Beckford,962 F. Supp. 748, 754 (E.D. Va. 1997) (stating, in a capital casebrought under 21 U.S.C. § 848, "[c]onfronted with situations inwhich the Federal Rules of Criminal Procedure were notapplicable, courts historically have invoked inherent judicialpowers to address the general circumstances here presented and tocraft appropriate solutions to them.").

Generally, the imposition of the death penalty in the absenceof evidence to establish an aggravating factor beyond areasonable doubt would violate the defendant's right to dueprocess. See Jackson v. Virginia, 443 U.S. 307, 318 (1979)(proof beyond reasonable doubt required by due process clause);Smith v. Armontrout, 888 F.2d 530, 538 (8th Cir. 1989) ("[B]y analogywith Jackson, due process would forbid a verdict of deathunless the evidence was sufficient to convince a rational trierof fact, beyond a reasonable doubt, of the existence of at leastone aggravating circumstance.").

The Court of Appeals, by statute, must review death sentencesfor the sufficiency of the evidence. 18 U.S.C. § 3595(c)(1). Ittherefore makes sense for the district court to do so as well."[A]s a general matter, federal courts of appeals do not rule onissues not decided in the district court." United States v.Kin-Hong, 110 F.3d 103, 116 (1st Cir. 1997). It is alsogenerally recognized that the District Court is much morefamiliar with the evidence in the general course of the case thanis the Court of Appeals on review. See United States v.Smith, 331 U.S. 469, 476 (1947) (referring to "the peculiarability which the trial judge has to pass on the fairness of thetrial" due to his or her knowledge of the "incidents and nuancesof the trial").

Therefore, to provide the procedural safeguards necessary tovindicate the defendant's due process rights, the court found itappropriate to evaluate the sufficiency of the evidence presentedat the penalty phase. In doing so, it adopted the Rule 29standard applicable to guilt phase determinations. Cf.Webster, 162 F.3d at 340 (approving use of inherent authorityin establishing penalty phase procedure modeled on similar Rulegoverning guilt phase procedure). On November 20, 2003, the government acknowledgedthat the court could evaluate the sufficiency of the evidencewith respect to the alleged aggravating factors under the Rule 29standard.

In ruling on a motion under Federal Rule of Criminal Procedure29, and on the sufficiency of the evidence in the penalty phaseof an FDPA case, the court must look at the evidence in the lightmost favorable to the government. United States v. Duclos,214 F.3d 27, 32 (1st Cir. 2000). This evidence includes both directevidence and circumstantial evidence. United States v. Olbres,61 F.3d 967, 970 (1st Cir. 1995). The court must draw reasonableinferences in favor of the government, United States v.Baldyga, 233 F.3d 674, 678 (1st Cir. 2000), and must resolve allcredibility questions and evidentiary conflicts in favor of thegovernment. Olbres, 61 F.3d at 970. The court must decide ifthe evidence is sufficient to permit a rational jury to find eachessential fact to have been proven beyond a reasonable doubt.Id.

The government is not bound by all of the evidence that itpresents. For example, the government was not, in this case,bound by every statement in each of Sampson's confessions, evenif it introduced those confessions into evidence. However, if thegovernment introduces evidence contrary to the inferences itwants the jury to draw, it must introduce other direct orcircumstantial evidence to relieve itself of the effect flowingfrom the evidence introduced. See Rodgers v. United States, 402 F.2d 830, 833(9th Cir. 1968); United States v. Canessa, 534 F.2d 402, 404(1st Cir. 1976) (distinguishing Rodgers); United States v.Polizzi, 500 F.2d 856, 905 (9th Cir. 1974) ("the governmentcannot rely on an inference when the only evidence presented bythe government is inconsistent with the inference the governmentwishes drawn").

The evidence must be sufficient to prove the fact at issuebeyond a reasonable doubt. However, the government does not haveto rule out every hypothesis congenial to a finding of innocence.United States v. Valle, 72 F.3d 210, 216 (1st Cir. 1995). TheFirst Circuit discussed the standard for appellate review of thesufficiency of the evidence in United States v. Spinney,65 F.3d 231 (1st Cir. 1995). It wrote: [A] reviewing court should refrain from second-guessing the ensuing conclusions as long as (1) the inferences derive support from a plausible rendition of the record, and (2) the conclusions flow rationally from those inferences. . . . [However,] juries do not have carte blanche. The appellate function, properly understood, requires the reviewing court to take a hard look at the record and to reject those evidentiary interpretations and illations that are unreasonable, insupportable, or overly speculative. . . . This function is especially important in criminal cases, given the prosecution's obligation to prove every element of an offense beyond a reasonable doubt.Id. at 234 (citations omitted). The trial court's duty is thesame.

X. ESPECIALLY HEINOUS, CRUEL OR DEPRAVED MANNER OF COMMITTINGTHE OFFENSE

On November 24, 2003, the court considered the defendant'schallenge to the sufficiency of the evidence supporting thealleged statutory aggravating factor that Sampson "committed[each] offense in an especially heinous, cruel or depraved mannerin that it involved torture or serious physical abuse to thevictim." 18 U.S.C. § 3592(c)(6). This task began, necessarily, bydefining the scope of this factor.

In defining the scope of the alleged statutory and nonstatutoryaggravating factors, the court recognized the constitutional roleof aggravating factors. In Zant v. Stephens, 462 U.S. 862, theSupreme Court wrote: [A]n aggravating circumstance must genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.Id. at 877. The court, therefore, interpreted the statutoryaggravating factors in ways that serve to "genuinely narrow" theclass of persons eligible for the death penalty. Further, thestatutory aggravating factors create a framework and standard fordetermining what may be a non-statutory aggravating factor. SeeUnited States v. Davis, 912 F. Supp. 938, 944 (E.D. La. 1996).Statutory aggravating factors generally address circumstancesthat make the offense clearly more heinous than the typicalmurder, and the prior criminal history of the defendant. SeeUnited States v. Friend, 92 F. Supp. 2d 534, 541 (E.D. Va. 2000); United Statesv. Sampson, 275 F. Supp. 2d 49, 100 (D. Mass. 2003).

In Arave v. Creech, 507 U.S. 463, 474 (1993), the SupremeCourt held that an aggravating factor cannot apply to everydefendant eligible for the death penalty: "If the sentencerfairly could conclude that an aggravating circumstance applies toevery defendant eligible for the death penalty, the circumstanceis constitutionally infirm." Id. The holding of Araveindicates that if a class of murderers eligible for the deathpenalty under a jurisdiction's laws includes all first-degreemurders (including premeditated killing), something more isnecessary to narrow the class in a constitutionally permissibleway. The Tenth Circuit elaborated on this in Cartwright v.Maynard, 822 F.2d 1477 (10th Cir. 1987). It wrote: [I]f an aggravating circumstance is defined and applied so broadly that it conceivably could cover every first degree murder, then it obviously cannot fulfill its constitutional responsibilities to eliminate the consideration of impermissible factors and to provide a recognizable and meaningful standard for choosing the few who are to die.Id. at 1485, citing Richard A. Rosen, The "EspeciallyHeinous" Aggravating Circumstance in Capital Cases — TheStandardless Standard, 64 N.C.L. Rev. 941, 954 (1986).

For the purposes of establishing the statutory aggravatingfactor that the offense was committed in an especially heinous,cruel, or depraved manner, the literal language of § 3592(c)(6) expressly provides that is sufficient to prove that a crime wasespecially heinous, especially depraved, or especiallycruel.18

It is important to recognize that, prior to the enactment ofthe FDPA, the Supreme Court stated that: "A person of ordinarysensibility could fairly characterize almost every murder asoutrageously or wantonly vile, horrible and inhuman." Godfrey v.Georgia, 446 U.S. 420, 428-29 (1980) (internal quotation marksomitted). This is a point that is not just intuitively hard forlay people to understand; it is also a point on which this courtmade a mistake early in the proceedings, when it said that itseemed obvious that the offenses charged in this case wereheinous, cruel, or depraved. After all, the defendant slit thevictims' throats. This analysis is not correct. Something morethan a horrible murder is necessary to make that murderespecially heinous, cruel, or depraved, as required by theConstitution and the terms of the FDPA.19 See id.;18 U.S.C. § 3592(c)(6). [EDITORS' NOTE: THIS PAGE IS BLANK.] A. SERIOUS PHYSICAL ABUSE

The FDPA provides expressly that serious physical abuse canmake an offense involving homicide especially heinous, cruel, ordepraved. See 18 U.S.C. § 3592(c)(6). This is constitutionallypermissible. See Maynard v. Cartwright, 486 U.S. 356, 364-65(1988).

It is, therefore, necessary to determine the legal definitionof serious physical abuse. The court defined serious physicalabuse as follows: Serious physical abuse means that (1) A significant or considerable amount of damage was inflicted to the victim's body. (2) The defendant specifically intended the abuse in addition to the killing.Dec. 19, 2003 Tr. at 33; Manual of Model Criminal JuryInstructions for the District Courts of the Eighth Circuit,Instruction 12.07F; 1 Leonard B. Sand et al, Modern Federal JuryInstructions, Inst. 9A-11 at 9A-45 to -48. This means that thefocus is in large part on the defendant's intent and state ofmind. The definition adopted by the court requires that thedefendant have intended to inflict harm on the victim's body inaddition to the harm that the defendant believed was necessary tokill him. The victim does not, however, have to be conscious at the time the serious physicalabuse was inflicted. Nor does the victim have to be alive at thetime the serious physical abuse was inflicted. See UnitedStates v. Chanthadara, 230 F.3d 1237, 1261-62 (10th Cir. 2000);United States v. Jones, 132 F.3d 232, 250 n. 12 (5th Cir.1998), aff'd, 527 U.S. 373 (1999); United States v. Hall,152 F.3d 381, 424 (5th Cir. 1998). But see 1 Leonard B. Sand, etal., Modern Federal Jury Instructions, Inst. 9A-11 (victim mustbe alive) (citing United States v. Pretlow, 779 F. Supp. 758,773 (D.N.J. 1991) and United States v. Pitera,795 F. Supp. 546, 558 (E.D.N.Y. 1992)).20

In essence, the FDPA expresses the judgment that the inflictionof serious physical abuse makes a defendant more blameworthybecause he intended to do more than kill his victim, and thisdistinguishes a defendant from other murderers. Or, to put it somewhat differently, the infliction of serious physicalabuse is evidence that the defendant was especially depravedbecause he relished the killing, even if the abuse occurred afterthe victim was unconscious or dead. If, on the other hand, thevictim was conscious, serious physical abuse is evidence that thedefendant was especially cruel because he intended to inflict ahigh degree of pain in addition to killing the victim. Eitherway, serious physical abuse also makes a killing especiallyheinous, setting the murder apart from other killings in aparticularly shocking way.

The government argued that the defendant "bragged" aboutmurdering McCloskey and that this was further evidence that themurder was especially heinous, cruel, and depraved. The courtfound, however, that any such bragging was not evidence that theoffense was especially heinous, cruel, or depraved because thestatutory definition given by 18 U.S.C. § 3592(c)(6) requiresthat the jury's conclusion be rooted in a finding of eitherserious physical abuse or torture. Evidence other than that oftorture or serious physical abuse cannot be considered indetermining whether an offense was especially heinous, especiallycruel, or especially depraved.21 Bragging might beevidence of depravity in the colloquial sense, but it is not evidence of depravity within themeaning of the statute. The statutory aggravating factor coversonly those offenses that were committed in an especially heinous,cruel or depraved manner in that the offense involved tortureor serious physical abuse to the victim." 18 U.S.C. § 3592(c)(6).(emphasis added).

In addition, the government discussed the "senselessness" ofthe killings in its filings. There are cases which refer to"senselessness". See, e.g., United States v. Jones,132 F.3d 232, 250 (5th Cir. 1998), aff'd, 527 U.S. 373 (1999). However,a focus on the "senselessness" of a crime is unrelated to whetherit was committed in an especially heinous, cruel, or depravedmanner in that it involved torture or serious physical abuse. Again,"senselessness" may be evidence of depravity in the colloquialsense, but not in the statutory sense. Further, a focus on"senselessness" would obstruct the constitutionally-requirednarrowing function of the heinous, cruel, or depraved aggravator.See 1 Leonard B. Sand, et al., Modern Federal JuryInstructions, Inst. 9A-11 at 9A-47 n. 20 ("Because we find thatthis factor is difficult to apply in any meaningful manner(arguably, any unlawful killing is `senseless'), we do notrecommend its inclusion in the instruction.").

B. TORTURE

The presence of torture is another way of establishing that anoffense was committed in an especially heinous, cruel, ordepraved manner. 18 U.S.C. § 3592(c)(6). At the outset, it shouldbe recognized that there is an important distinction between whatis constitutionally permissible and what has been statutorilyprescribed, that is, between what the Supreme Court has approvedas an aggravating factor regarding the heinousness, cruelty, anddepravity of an offense and what Congress intended as anaggravating factor under the FDPA.

In Godfrey, 446 U.S. at 430-33, the Supreme Court held thattorture and aggravated battery were valid aggravating factors, inthat they narrowed the class of murderers in a constitutionallypermissible way. The Court had previously approved theaggravating factor of an offense being "unnecessarily torturous to thevictim." Proffit v. Florida, 428 U.S. 242, 255-56 (1976); seealso Cartwright v. Maynard, 822 F.2d 1477, 1487 (10th Cir.1987) (citing Eddings v. State, 616 P.2d 1159, 1167-68(Okla.Crim.App. 1980)), aff'd, 486 U.S. 356 (1988).

In Maynard v. Cartwright, 486 U.S. 356 (1988), the Courtwrote: We also do not hold that some kind of torture or serious physical abuse is the only limiting construction of the heinous, atrocious, or cruel aggravating circumstance that would be constitutionally acceptable.Id. at 365. The FDPA, however, expressly makes these twolimiting factors the only two means available in a federalprosecution to prove that an offense was committed in a heinous,cruel, or depraved manner.

In 1990, in Walton v. Arizona, 497 U.S. 639, 646 (1990), theSupreme Court addressed Arizona law, which by judicialconstruction limited the "heinous, cruel, or depraved"aggravating factor to circumstances when "the perpetratorinflicts mental anguish or physical abuse before the victim'sdeath." Id. The Supreme Court noted that Maynard did notrestrict the "heinous, cruel, or depraved" aggravating factor toonly crimes involving torture or physical abuse, as that was notnecessarily the only constitutionally acceptable construction of"heinous, cruel, or depraved". Id. at 654-55. The Court went onto say that the construction given by the Arizona Supreme Court,which required the infliction of "mental anguish", was "virtually identical to theconstruction we approved in Maynard." Id. at 655.

In 1988, Congress passed the Anti-Drug Abuse Act (also known asthe Drug Kingpin Act), which included constitutional provisionsfor imposing a death sentence for a federal crime.21 U.S.C. § 848. Section 848(n)(12) lists, as one aggravating factor to beconsidered, that "[t]he defendant committed the offense in anespecially heinous, cruel, or depraved manner in that it involvedtorture or serious physical abuse to the victim." In 1994, thesame language was adopted in the FDPA.

In 1988, when the Drug Kingpin Act was passed, the 5th editionof Black's Law Dictionary defined "torture" to mean: To inflict intense pain to body or mind for the purposes of punishment, to extract a confession or information, or for sadistic pleasure.Black's Law Dictionary 1335 (Spec. Deluxe 5th Ed.1979).22

In contrast, the Eighth Circuit Pattern Instruction 12.07F nowstates in pertinent part: "Torture" includes mental as well as physical abuse of the victim. In either case, the victim must have been conscious of the abuse at the time it was inflicted, and the defendant must have specifically intended to inflict severe mental or physical pain or suffering upon the victim, in addition to the killing of the victim. Severe mental pain or suffering means prolonged mental harm caused by or resulting from intentionally inflicting or threatening to inflict severe physical pain or suffering . . . [or] the threat of imminent death.This language is derived from 18 U.S.C. § 2340, a 1994 statutethat criminalizes torture committed outside the United States.The 18 U.S.C. § 2340 and Eighth Circuit definitions do notinclude the requirement that the defendant have the purpose topunish or to achieve sadistic pleasure.23 It would beplausible to interpret the FDPA in the same way.

However, the rule of lenity applies to this situation. The ruleof lenity provides that "ambiguity in the scope of a criminalstatute must be resolved in favor of a criminal defendant."United States v. Luna-Dias, 222 F.3d 1, 3 n. 2 (1st Cir. 2000);see also United States v. Hussein, 351 F.3d 9, 14 (1st Cir.2003); Dowling v. United States, 473 U.S. 207, 213-4 (1985).After Ring v. Arizona, supra, a statutory aggravating factoris the functional equivalent of an element of the offense, so therule of lenity applies to statutory aggravating factors in thesame way it does to offense elements. Under the rule of lenity,it is appropriate to adopt the narrower definition given byBlack's Law Dictionary, 5th edition, rather than a broaderdefinition which does not require proof of sadistic purpose,intent to punish, or intent to extract information. Therefore, the court held that under the FDPA, anoffense can be found to be especially heinous, cruel, or depravedin that it involved torture only if it is found that thedefendant inflicted the mental or emotional abuse to the victimfor the purpose of sadistic pleasure, for the purpose ofpunishment, or for the purpose of extracting information or aconfession.

C. SUFFICIENCY OF THE EVIDENCE AS TO SERIOUS PHYSICAL ABUSE

The court found that the evidence was sufficient to prove thatSampson committed each of the two offenses, in an especiallyheinous, cruel, or depraved manner in that it involved seriousphysical abuse.

Applying the Rule 29 sufficiency standard, and looking at theevidence in the light most favorable to the government, the courtfound that the following evidence was sufficient to establishthat each crime was especially heinous, cruel, or depraved inthat it involved serious physical abuse.

Sampson stabbed McCloskey twenty-four times. Some of thesestabs caused shallow, non-fatal wounds. In his confession toMassachusetts State Trooper, the defendant said in part, "It waslike I didn't want to stop [stabbing]." Cooke Tr. at 17 (Ex. FF).In the next sentence, the defendant went on to say, "He wouldn'tdie." Id. This latter statement supports Sampson's argumentthat he kept stabbing McCloskey solely in order to kill him, notbecause of any intent to inflict additional physical abuse.However, the jury had the discretion to believe some but not all of what thedefendant said in his confession. Therefore, for the purposes ofthe sufficiency of the evidence analysis, the court was requiredto put aside those statements in the confessions that werefavorable to the defendant where, in this case, they werecontradicted by any other evidence. See Rodgers,402 F.2d at 833.

In addition, in the second confession to Trooper Cooke, thedefendant stated that McCloskey said, "Ah, I'm dying." SecondKeefe Tr. at 8 (Ex. CC). After McCloskey said this, Sampson,according to his confession, slit McCloskey's throat, nearlydecapitating him. Id. The jury could, therefore, havereasonably inferred that Sampson knew that slitting McCloskey'sthroat was not necessary to kill him, but rather intended toinflict serious physical abuse.

The evidence, viewed from the perspective most favorable to thegovernment, included the following with respect to the Sampson'ssecond victim, Rizzo.

Sampson tied Rizzo to a tree. The defendant knew that he couldapproach Rizzo from behind, slit his throat, and kill himquickly. Instead, the defendant approached Rizzo from the front.He stabbed Rizzo at least fifteen times. According to his secondconfession given to Trooper Keefe, the defendant stabbed Rizzo'sthroat during this process of stabbing him many times, ratherthan as the first or the last stab wound. Second Keefe Tr. at 17(Ex. CC). The testimony of the medical examiner indicated that the wounds tothe throat would have been fatal. In addition, the defendantstabbed Rizzo five times in the chest, inflicting wounds that themedical examiner testified would have been "rapidly fatal." Nov.10, 2003 Tr. at 101. This evidence was sufficient to permit,though not require, the jury to find that the defendant intendedto inflict serious physical abuse on Rizzo as well as kill him.The jury could have inferred from the defendant's course ofaction that he specifically intended to inflict abuse beyond whathe thought necessary to kill Rizzo.

Again, it should be recognized that evidence of what thedefendant did after the murder was not relevant to whether thatoffense was committed in an especially heinous, cruel, ordepraved manner as defined in the FDPA, because what occurredlater was not evidence of either serious physical abuse ortorture.

D. SUFFICIENCY OF THE EVIDENCE AS TO TORTURE

The presence of torture is another way of establishing that anoffense was committed in an especially heinous, cruel, ordepraved manner. 18 U.S.C. § 3592(c)(6).

Under the definition of torture described earlier, the evidencewas insufficient to establish the presence of torture. Thegovernment did not contend that Sampson attempted to extract aconfession or other information from his victims. The defendantdid use his knife to coerce McCloskey and Rizzo into driving himto remote locations. However, there was not sufficient evidence toprove, beyond a reasonable doubt, that the defendant tried tocause them additional apprehension in order to punish them orbecause he took sadistic pleasure in their suffering. Rather, inhis confessions, he said that he tried to lull both of them bytelling them that they would not be harmed if they cooperated.Such comments are inconsistent with torture. However, even if thejury did not believe these statements were made, there was anabsence of direct or circumstantial evidence sufficient to provebeyond a reasonable doubt that Sampson had any motive forthreatening his victims with his knife other than to convincethem to drive him where he wanted to go. See, e.g., Dominguesv. State, 917 P.2d 1364, 1377 & n. 6 (Nev. 1996) (citing Black'sLaw Dictionary for definition of torture and concluding that"[t]here [wa]s no evidence that the specific intent behind theattempted electrocution or the stabbing was to inflict pain forpain's sake or for punishment or sadistic pleasure").

XI. SUBSTANTIAL PLANNING AND PREMEDITATION

On November 24, 2003, the court considered the defendant'schallenge to the sufficiency of the evidence supporting thesubstantial planning and premeditation aggravating factor.

A. DEFINITION

The government alleged as statutory aggravating factors thatthe defendant committed the offense of carjacking resulting inthe death of Philip McCloskey after substantial planning andpremeditation to cause the death of Philip McCloskey and theoffense of carjacking resulting in the death of Jonathan Rizzoafter substantial planning and premeditation to cause the deathof Jonathan Rizzo. 18 U.S.C. § 3592(c)(9) states: Substantial planning and premeditation. — The defendant committed the offense after substantial planning and premeditation to cause the death of a person or commit an act of terrorism.

The substantial planning and premeditation aggravating factorfocuses on the intention to cause death, not on the broaderoffense, which in this case was carjacking resulting in death.The government must prove both substantial planning andsubstantial premeditation. See United States v. Tipton,90 F.3d 861, 896 n. 17 (4th Cir. 1996).

Substantial planning and premeditation is a statutoryaggravating factor. Congress has decided that substantialplanning and substantial premeditation distinguish a defendantfrom other murderers in a way that justifies the death penalty.This statutory aggravating factor expresses a legislativedetermination that "this [type of] murder is different."Cartwright v. Maynard, 822 F.2d 1477, 1485 (10th Cir. 1987),aff'd, 486 U.S. 356 (1988). This factor is notunconstitutionally vague. See Tipton, 90 F.3d at 895-96.Substantial planning and premeditation is a true aggravatingfactor, for it narrows the class of murderers in a way that isconstitutionally relevant. See United States v. Frank, 8 F. Supp. 2d 253, 278 (S.D.N.Y. 1998).

Generally, the offense of murder does not requirepremeditation. It requires, rather, "malice aforethought." See,e.g., 18 U.S.C. § 1111(a) ("Murder is the unlawful killing of ahuman being with malice aforethought"). Premeditation is notsynonymous with malice aforethought. However, premeditation isgenerally an element of first-degree murder, absent certain othercircumstances such as those present in felony murder. Consistentwith the common law, the Supreme Judicial Court of Massachusettshas described premeditation, stating: Deliberate premeditation means that the plan to kill was formed after deliberation and reflection. However, no particular length of time is required in order for deliberate premeditation to be found. It is not so much a matter of time as of logical sequence. First the deliberation and premeditation, then the resolution to kill, and lastly the killing in pursuance of the resolution; and all this may occur in a few seconds.Commonwealth v. Palmariello, 466 N.E.2d 805, 816 (Mass. 1984)(citations omitted). Planning is not an independent statutoryelement or common law element in any degree of murder. It is,however, part of the definition of premeditation used inMassachusetts.

It would not be constitutionally permissible to makefirstdegree murder alone an aggravating factor. Arave,507 U.S. at 474; Cartwright, 822 F.2d at 1485. Congress recognized thisin enacting the FDPA. The statute requires substantial planningand substantial premeditation regarding the killing."Substantial" means more than the minimum amount of planning and premeditationrequired to commit the murder. Tipton, 90 F.3d at 895-96. Thereremains the issue, however, of how much more is necessary.

The FDPA and the Drug Kingpin Act do not provide that theaggravating factor is established if the defendant engaged in"more than minimal planning and premeditation," as the UnitedStates Sentencing Guidelines did in 1988 and 1994 when thesestatutes were enacted. See U.S.S.G. § 1B1.1, Application Note1(f) (1989) ("`More than minimal planning' means more planningthat is typical for commission of the offense in a simpleform."). The statute states that there must be substantialpremeditation and planning. In this context, the court construes"substantial" to mean "large." See United States v. McCullah,76 F.3d 1087, 1110-11 (10th Cir. 1996) ("[T]he term['substantial'] clearly has a commonsense meaning of`considerable in quantity: significantly large.'"); cf. Piercev. Underwood, 487 U.S. 552, 564 (1988) (one meaning ofsubstantial is "large"). Defining "substantial" as "large" isboth appropriate and comports with a common-sense understandingof the word.

Finally, while 18 U.S.C. § 3592(c)(9) requires only that therebe substantial planning and premeditation "to cause the death ofa person," the government in this case, in its Notice ofIntent, specifically alleged that there was substantial planningand premeditation "to cause the death of Philip McCloskey" and"to cause the death of Jonathan Rizzo." This narrows the relevant inquiry, as the evidence was required to show that Sampson'splanning and premeditation was directed to the specificindividual, and not just to any person generally. Therefore, forthe purposes of this aggravating factor, the analysis of theevidence could not extend back beyond the point where thedefendant first saw McCloskey or Rizzo. Any planning orpremeditation Sampson may have done prior to the time that heencountered McCloskey or Rizzo was not relevant to theaggravating factors as they were alleged in the Notice ofIntent.24 B. SUFFICIENCY OF THE EVIDENCE

The court found that there was sufficient evidence for a juryto find beyond a reasonable doubt that the murder of Rizzoinvolved substantial planning and premeditation. There was notsufficient evidence with regard to the murder of McCloskey.

In light of the standard explained earlier, requiring a largeamount of both planning and premeditation, the evidence, evenwhen viewed in the light most favorable to the government, wasinsufficient to support a finding of substantial planning andpremeditation beyond a reasonable doubt for the killing ofMcCloskey. The following discussion, while not exhaustive,emphasizes the differences between the killing of McCloskey andthe killing of Rizzo, for which there was sufficient evidence onsubstantial planning and premeditation.

Sampson did not specifically target McCloskey for the killing.McCloskey had the misfortune of picking up Sampson, but that was not the result of Sampson targeting him in particular. Further,as explained previously, any evidence of planning orpremeditation by the defendant prior to encountering McCloskeywas irrelevant to the inquiry under the narrowly draftedaggravating factor in the Notice of Intent, which specifiesplanning and premeditation to "cause the death of PhilipMcCloskey." (emphasis added). At one point during hisconfession, Sampson does say that both killings werepremeditated. At other points in his confession, he says that thekilling of McCloskey was not premeditated, but rather the productof an impulsive response when McCloskey resisted and began tofight. Assuming, without finding, that Sampson used the correctlegal definition of "premeditated," the jury could have taken hisstatement that both killings were premeditated as sufficientevidence to find beyond a reasonable doubt that the killing ofMcCloskey was premeditated. The jury would have been entitled toreject the defendant's subsequent assertions to the contrary and,therefore, the court disregarded the subsequent assertions forthe purposes of analyzing the sufficiency of the evidence.Nevertheless, there was not sufficient evidence of substantialpremeditation or substantial planning.

The defendant was carrying a knife, but this was not sufficientto prove beyond a reasonable doubt that he intended to killanyone. Particularly, it was not sufficient to prove beyond areasonable doubt that he intended to kill McCloskey. A knife has many functions, including lawful functions and unlawful functionsthat do not involve killing. It also does not require substantialplanning to obtain a knife. A knife can be bought legally andeasily, without the necessity of detailed or complex plans. Atthe time of the killing, Sampson had nothing with which to tie-upMcCloskey. His attempts to use his belt were unsuccessful. Thedefendant had no planned destination when he was picked up byMcCloskey. He was looking for a secluded place, but had notselected a specific location. He did not, as he did with Rizzo,have an elaborate story designed to allay McCloskey's fears.Therefore, the evidence was insufficient to prove beyond areasonable doubt that there was substantial planning andpremeditation that lead to the killing of McCloskey.

The evidence was, however, sufficient to prove, beyond areasonable doubt, that Sampson engaged in substantial planningand premeditation to cause the death of Rizzo. The evidenceviewed in the light most favorable to the government included thefollowing.

Once the defendant got into the car with Rizzo, he developed aplan to kill him. More specifically, he formulated a new plan,incorporating Rizzo into a previous, provisional plan he hadmade. If Rizzo had been a more physically imposing person,Sampson might have developed an entirely different plan ordecided not to kill him at all. The evidence indicated that thismight have happened on other occasions. However, based on hisassessment of Rizzo's age and size, Sampson developed and put into action a plan to getRizzo to a particular spot and to kill him there.

Sampson selected a remote and isolated place that he knew well,and directed Rizzo to drive him to that location. Sampson chosethe woods behind the Abington Ale House, where he had beencamping just before he carjacked and killed McCloskey. AfterRizzo drove Sampson to the parking lot of the Abington Ale House,Sampson directed him to carry one of his bags part of the way outof the woods. The defendant also developed and carried out anelaborate ruse to convince Rizzo that he was not in danger. Thedefendant told Rizzo that he would spray him with OFF!, an insectrepellant, to protect him from insects. This was intended to lullRizzo into a false sense of security. During the drive to theAbington Ale House, the defendant considered how he couldrestrain Rizzo, and decided that he could use the sturdy rope hehad found at the Bourne Bridge. This would be more effective thanusing his belt, which had broken when he tried to subdueMcCloskey. The defendant decided that it would be preferable toincapacitate Rizzo first, and then to attack him with the knifewhen he was not able to fight back.

This plan was formulated during the course of the twenty-miledrive to Abington. Once Sampson and Rizzo arrived at the parkinglot behind the Abington Ale House, the defendant put this planinto action. The defendant had substantial opportunity to reconsider hisdecision. Premeditation can occur in a few seconds, seePalmariello, 466 N.E.2d at 816, and the defendant had a muchlonger time to premeditate and plan during his twenty-mile rideto Abington Ale House and subsequent walk into the woods. He didnot do so, but instead proceeded to put his plan to kill Rizzointo action. The jury could, therefore, have concluded that thekilling was committed after substantial planning andpremeditation to cause the death of Jonathan Rizzo.

XII. VULNERABLE VICTIM

On November 24, 2003, the court considered Sampson's challengeto the sufficiency of the evidence supporting the government'salleged statutory aggravating factor regarding McCloskey's statusas a vulnerable victim. 18 U.S.C. § 3592(c)(11) provides that itis an aggravating factor if "[t]he [homicide] victim wasparticularly vulnerable due to old age, youth, or infirmity." Thecourt ruled that the evidence was sufficient to support theallegation that McCloskey was vulnerable due to infirmity, butnot sufficient to support the allegation that he was vulnerabledue to old age.

A. DEFINITION

Sampson argued that, in order to be aggravating in a way thatis relevant to the decision between life and death, thevulnerable victim aggravator must have: (1) a nexus between thevulnerability and the victim's death; and (2) a knowledgerequirement that prevents a defendant from becoming eligible for a death sentenceas a result of "circumstances that the defendant was unaware ofand which played no role in the capital offense beyond merehappenstance." Def.'s Brief in Support of Pretrial Mots. at 88.The court reserved judgment on this issue before trial, choosinginstead to address it in the context of other disputes over juryinstructions. See Sampson II, 275 F. Supp. 2d at 104.

At trial, the court concluded that the vulnerable victimaggravating factor does have a nexus requirement, but does nothave a knowledge requirement. See United States v. Minerd,176 F. Supp. 2d 424, 447 (W.D. Pa. 2001); United States v.Johnson, 136 F. Supp. 2d 553, 560 (W.D. Va. 2001); 1 Leonard B.Sand et al, Modern Federal Jury Instructions, Inst. 9A-14(2003). Ultimately, the court adopted a jury instruction based inpart on the Eighth Circuit's Pattern Instruction 12.07K and ModelInstruction 9A-14 in Sand et al.25 The infirmity which makes a person particularly vulnerable mustsomehow contribute to the person's death. Vulnerability does notexist in a vacuum; a victim must be vulnerable to someone orsomething. Thus, in order to give meaning to the word"vulnerable", the court adopted a nexus requirement.

Contrary to Sampson's contention, however, there is norequirement that the defendant either knew of the victim'svulnerability or targeted his victim because of thatvulnerability. Unlike the nexus requirement, which stems from thedefinition of the word "vulnerable", there is no statutorylanguage that creates a knowledge requirement.

As the court explained on August 21, 2003, the SentencingGuidelines, as a result of legislation that also included theFDPA, require that a defendant knew or should have known of avictim's vulnerability in order to receive a two-levelenhancement. See Aug. 21, 2003 Tr. at 74-79 (citing U.S.S.G. §3A1.1(b)(1)). It is anomalous that a lower level of knowledge isrequired to make death more appropriate and, in some cases, to make death apossible sentence, than is required to permit or require a longerprison sentence. However, for certain other statutory aggravatingfactors, Congress expressly established a knowledge requirement.See, e.g., 18 U.S.C. § 3592(b)(2) ("defendant . . . knowinglycreated a grave risk of substantial danger to the nationalsecurity"); 18 U.S.C. § 3592(c)(5) ("defendant . . . knowinglycreated a grave risk of death"); 18 U.S.C. § 3592(c)(16)("defendant intentionally killed or attempted to kill");18 U.S.C. § 3592(d)(4) ("defendant . . . knowingly directed,advised, authorized, or assisted another to use a firearm");18 U.S.C. § 3592(d)(8) ("defendant was aware of the presence of theadulterant"). In contrast to these provisions, the vulnerablevictim aggravating factor focuses only on the victim rather thanthe defendant.

"[W]here Congress includes particular language in one sectionof a statute but omits it in another section of the same Act, itis generally presumed that Congress acts intentionally andpurposely in the disparate inclusion or exclusion." Russello v.United States, 464 U.S. 16, 23 (1983) (alteration in original),quoted in Trenkler v. United States, 268 F.3d 16, 23 (1stCir. 2001)). Thus, the court concluded that the statute does notmanifest an intent to require the government prove either thatthe defendant knew of the victim's vulnerability or targeted himbecause of it.

Nor does the constitution mandate a knowledge requirement. Even absent a knowledge component, the aggravating factor narrowsthe class of murderers in a way that is relevant to thesentencing decision in a capital case. The factor serves anarrowing function because not all murders involve a particularlyvulnerable victim. This distinction is relevant because, even ifa defendant did not know of a victim's vulnerability, society mayproperly consider a murder more outrageous if the victim died asa result of some sort of vulnerability. The defendant's knowledgeor moral culpability is not a prerequisite to an enhancedsentence. Rather, the law often provides for varying penaltiesbased on the degree of harm resulting from equally morallyculpable acts. For example, 18 U.S.C. § 1111 sets the maximumpenalty for first degree murder as death, while 18 U.S.C. § 1113sets the maximum penalty for attempted murder at twenty years'imprisonment. A person who unsuccessfully attempts to killsomeone is as morally culpable as a person who makes the sameeffort and succeeds. The disparate punishments for attemptedmurder and murder are not related to the moral blameworthiness ofthe defendant.

B. SUFFICIENCY OF THE EVIDENCE

Based on this framework, the court ruled that although therewas sufficient evidence to establish that McCloskey was 69 yearsold at the time of his death, there was no evidence to link hisage with any vulnerability that contributed to his death. Thereare some people who are in excellent health at age 69.Consequently, the court did not instruct the jury on vulnerability due to oldage.

However, the court found that McCloskey had several conditionsthat a jury could — and ultimately did — reasonably concludecontributed to his death. The evidence was sufficient to provethat McCloskey had recently had quintuple bypass surgery, that hewas overweight, and that he suffered from shortness of breathafter walking short distances. These conditions constituted aninfirmity that made McCloskey particularly vulnerable. Thevulnerability was connected to his death. Because of theseconditions, McCloskey was especially susceptible to beingsuccessfully carjacked. He was less able to jump out of the carand run away like Gregory, one of Sampson's other victims.McCloskey was also less able to flee during the walk from hisvehicle through the woods to the place where Sampson killed him.In addition, McCloskey was less able to resist when the defendantattempted to tie him up and began to stab him. It was on thisevidence permissible to for a jury to find, beyond a reasonabledoubt, that all three of these factors contributed to McCloskey'sdeath.

XIII. OBSTRUCTION OF JUSTICE

On November 25, 2003 and December 1, 2003, the court consideredand rejected the defendant's challenge to the sufficiency of theevidence supporting the government's alleged non-statutoryaggravating factor entitled "Obstruction of Justice". A. DEFINITION

The Notice of Intent alleged with regard to each count that"[t]he defendant, Gary Lee Sampson, murdered [the victim] toseize control of his motor vehicle and to prevent him fromreporting the carjacking to authorities."

In an indictment or other charging instrument such as an Noticeof Intent, "and" generally means "or". See United States v.Garcia-Torres, 341 F.3d 61, 66 (1st Cir. 2003), cert. deniedsub nom., Torres v. U.S., 124 S. Ct. 1467 (2004). However, inthis case, murder to seize control of an automobile is notalone a proper aggravating factor. If it were, every carjackingresulting in death would involve this aggravating factor.Congress chose to make the commission of certain crimes involvinghomicide statutory aggravating factors. See18 U.S.C. § 3592(c)(1). Carjacking in violation of18 U.S.C. § 2119(3) is notamong them. Nor is it analogous to the large majority of thecrimes which Congress chose to include as statutory aggravatingfactors such as destruction of an aircraft or the death of amember of Congress. See 18 U.S.C. § 3593(c)(1).

In contrast, a murder committed to eliminate a witness to someother crime is an aggravating factor. Several states make this astatutory aggravating factor. See Fla. Stat. ch. 921.141(5)(e);Spann v. State, 857 So. 2d 845, 856-57 (Fla. 2003); Philmorev. State, 820 So. 2d 919, 935 (Fla. 2002); Menendez v. State, 368 So. 2d 1278, 1282 (Fla. 1979); People v. Bigelow, 691 P.2d 944,997-98, 1006 (Cal. 1984); Olsen v. State, 67 P.3d 536, 583(Wyo. 2003).

This court agrees with the legislative judgment embodied in thestatutes underlying these cases that a killing committed solelyor primarily to eliminate a witness makes a defendant moreblameworthy than other murderers and is properly deemed anaggravating factor. However, eliminating a witness to anothercrime must be the sole or dominant motive for the killing. SeeMenendez, 368 So. 2d at 1282; Olsen, 67 P.3d at 583. Butsee State v. Kleypas, 40 P.3d 139, 236 (Kan. 2001); State v.Powers, 101 S.W.3d 383, 399 (Tenn. 2003). This is because, asthe Wyoming Supreme Court said in Olsen, 67 P.3d at 582, "invirtually every homicide there is a witness silenced, and anarrest thus potentially prevented." Unless this aggravatingfactor is limited to cases in which witness elimination is thesole or dominant motive for the killing, the factor would notprovide a principled way to distinguish murders for which thedeath penalty is imposed from those for which it is not. Id.

In this case, the carjackings resulting in death are distinctfederal statutory crimes from carjackings that do not result indeath. See Jones v. United States, 526 U.S. 227, 251-52(1999). This distinction would not be sufficient to prove theanalogous aggravating factor under California law, which limitsthe aggravating factor to those cases in which "the killing wasnot committed during the commission, or attempted commission of thecrime to which he was a witness." Bigelow,209 Cal. Rptr. at 340 n. 13 (citing Cal. Penal Code § 190.2(a)(10)).However, this distinction would be sufficient to support theanalogous aggravating factor under Florida law, which makes it anaggravating factor if "[t]he capital felony was committed for thepurpose of avoiding or preventing a lawful arrest. . . ." Fla.Stat. ch. 921.141(5)(e). The government in this case, in effect,alleged the Florida aggravating factor, which is constitutionallyadequate. Thus, the court ultimately instructed the jury on thisfactor with the limitation that it could only be found if witnesselimination was the sole or dominant motive for themurder.26 B. SUFFICIENCY OF THE EVIDENCE

The court ruled that the government had produced sufficientevidence to prove, beyond a reasonable doubt, that witnesselimination was the sole or dominant motive for both murders.Courts have focused on various types of evidence in analyzingsufficiency of the evidence challenges to this aggravatingfactor. These include: (a) whether the defendant confessed thatwitness elimination was his reason for the killing; (b) whetherthe victim knew the defendant; (c) whether the defendantdisguised himself in any way; (d) whether the victim could easilyidentify the defendant; (e) whether the defendant took the victimto a remote area before killing him; and (f) whether there was analternative possible reason for the killing, such as resistanceby the victim. See Philmore, 820 So. 2d at 935; Olsen,67 P.3d at 582. "Standing alone, the fact that the victim could identify the murderer doesnot prove beyond a reasonable doubt that the elimination of awitness was a dominant motive for the killing." Bruno v. State,574 So. 2d 76, 81-82 (Fla. 1991) (adopted by Olsen,67 P.3d at 583).

Focusing on these factors, the court concluded that thegovernment had presented sufficient evidence for a jury to find,beyond a reasonable doubt, that Sampson's motive for murderingboth of his victims was to prevent them from reporting the theftor attempted theft of their respective vehicles.

With regard to the McCloskey murder, the government introducedevidence including the following. Sampson told Vermont StateTrooper Cable that the "murders" were premeditated. Cable Tr. at3 (Ex. DD). Sampson elaborated, "[b]ecause I had planned onkilling whoever picked me up. Premeditated murder." Id.Although the defendant later said that he did not intend tomurder McCloskey and only did so after McCloskey began to fight,the court disregarded this statement in the context of thedefendant's challenge to the sufficiency of the evidence. Second,the defendant was not disguised and McCloskey had a goodopportunity to see and remember him. Thus, the jury could haveinferred that the defendant had a well-founded fear thatMcCloskey could identify him. Third, the defendant took McCloskeyto a secluded area. The defendant arguably could have just tiedMcCloskey up and left him there. Fourth, in another context, thedefendant stated that he didn't "like to leave witnesses." Crisp Tr. at 24 (Ex. R). Inthese circumstances, a rational jury could find, beyond areasonable doubt, that the defendant's sole or dominant motivefor killing McCloskey was to eliminate him as a witness.

With regard to the Rizzo murder, the evidence supporting thisaggravating factor was even stronger. The evidence ofpremeditation was not contradicted by Sampson's confessions.Before he was killed, Rizzo was tied to a tree and gagged. Arational jury could have concluded that the defendant did notneed to kill Rizzo to effect the carjacking, but instead chose tokill him because, as Sampson stated during one of hisconfessions, he needed Rizzo's car for a long time. Crisp Tr. at48.

XIV. FUTURE DANGEROUSNESS

As part of its Notice of Intent, the government alleged that"[t]he defendant, Gary Lee Sampson, is likely to commit criminalacts of violence in the future which would be a continuing andserious threat to the lives and safety of prison officials andinmates as demonstrated by his history of prison misconductincluding, but not limited to, escapes, attempted escapes, verbalthreats to harm prison officials and inmates, and possession ofdangerous weapons."

In Sampson II, 275 F. Supp. 2d at 108-09, the court rejecteda vagueness challenge to this aggravating factor, essentiallybecause the Supreme Court had rejected a comparable challenge in Jurek v. Texas, 428 U.S. 262, 269 (1976). Sampson continued toask the court to strike this factor on a variety of grounds, butthe court consistently rejected these challenges. Ultimately,however, the jury was not unanimously persuaded that thegovernment had proved this aggravating factor.

As explained on October 30, 2003, the court's decision tosubmit this aggravating factor to the jury was controlled byJurek. In Jurek, the Supreme Court held that the Texas deathpenalty scheme, under which a question virtually identical to theaggravating factor alleged in this case was posed to the jury,was constitutional. Id. at 269. If the Supreme Court hasdirectly decided an issue, the lower courts must reach the sameresult "unless and until [the] Court reinterpret[s] the bindingprecedent." Agostini v. Felton, 521 U.S. 203, 238 (1997),quoted in Sampson II, 275 F. Supp. 2d at 72.

This court's experience in this case, however, suggests that itmay now be appropriate for the Supreme Court to revisit Jurek.The reasons for this court's concerns are as follows.

In Barefoot v. Estelle, 463 U.S. 880, 896-99 (1983), theSupreme Court held that the Constitution does not prohibit theintroduction of expert evidence concerning future dangerousness.It reasoned that: If the likelihood of a defendant committing further crimes is a constitutionally acceptable criterion for imposing the death penalty, which it is, Jurek v. Texas, 428 U.S. 262 (1976), and if it is not impossible for even a lay person to sensibly arrive at that conclusion, it makes little sense, if any, to submit that psychiatrists, out of the entire universe of persons who might have an opinion on the issue, would know so little about the subject that they should not be permitted to testify.Id. at 896-97; see also id. at 898-99 ("If the jury maymake up its mind about future dangerousness unaided bypsychiatric testimony, jurors should not be barred from hearingthe views of the State's psychiatrists along with opposing viewsof the defendant's doctors.").

In reaching this decision, the Supreme Court recognized andrejected the view of the American Psychiatric Association thatexpert testimony on future dangerousness was almost entirelyunreliable, which the Court had previously considered in Estellev. Smith, 451 U.S. 454, 472 (1981). Id. at 899. However, inBarefoot, the Supreme Court signaled that the evolution ofevents might cause it to revise its decision concerning theconstitutionality of admitting expert testimony on futuredangerousness. It wrote: We are unconvinced, at least as of now, that the adversary process cannot be trusted to sort out the reliable from the unreliable evidence and opinion about future dangerousness, particularly when the convicted felon has the opportunity to present his own side of the case.Id. at 901 (emphasis added).

Developments in the law and more recent scientific researchsuggest that expert testimony on future dangerousness would beinadmissible under the Federal Rules of Evidence and is also toounreliable to be admitted in the penalty phase of a capital case under the balancing test established by 18 U.S.C. § 3593(a). Thesame considerations suggest that it may be timely for the SupremeCourt to reconsider whether jurors can ascertain futuredangerousness in a particular case with sufficient certainty tosatisfy the heightened "need for reliability in the determinationthat death is the appropriate punishment in a specific case."Woodson v. North Carolina, 428 U.S. 280, 305 (1976).

The issue of whether expert opinion on future dangerousnesscan, as an evidentiary issue or consistent with the requirementsof due process, be admitted in a capital case was thoroughly andthoughtfully explored by Fifth Circuit Judge Emilio M. Garza inhis concurring opinion in Flores v. Johnson, 210 F.3d 456 (5thCir. 2000). As Judge Garza explained, following the SupremeCourt's decisions in Barefoot in 1983 and Smith in 1981, theCourt generally placed strict limits on the admissibility ofexpert testimony in its decisions in Daubert v. Merrill DowPharmaceuticals, Inc., 509 U.S. 579 (1993) and Kumho Tire Co.,Ltd. v. Carmichael, 526 U.S. 137 (1999). 210 F.3d at 464.

To address this particularized need for reliability in expert scientific testimony, the Supreme Court has set out five non-exclusive factors to assist trial courts' determination of whether scientific evidence is reliable, and thus admissible. Those factors are: (1) whether the theory has been tested, (2) whether the theory has been subjected to peer review and publication, (3) the known or potential rate of error, (4) the existence of standards controlling the operation of the technique, and (5) the degree to which the theory has been generally accepted by the scientific community.Daubert, 509 U.S. at 593-94, 113 S.Ct. at 2796-97; see alsoMoore v. Ashland Chemical Inc., 151 F.3d 269, 275 (5th Cir.1998) (en banc), cert. denied 526 U.S. 1064, 119 S.Ct. 1454,143 L.Ed.2d 541 (1999).

Id.

As Judge Garza wrote: "On the basis of any evidence thus farpresented to a court, it appears that the use of psychiatricevidence to predict a murderer's `future dangerousness' fails allfive Daubert factors." Id. "Among other things, thescientific community virtually unanimously agrees thatpsychiatric testimony is, to put it bluntly, unreliable andunscientific." Id. at 463. The literature that this court hasreviewed is consistent with Judge Garza's conclusion. One recentsurvey concluded: For nearly twenty years we have known that psychiatrists cannot predict whether a person who has committed a violent act will be violent in the future. . . . Even the most scientific predictions based on thorough examination, diagnosis of mental symptoms, past patterns of behavior, and probabilistic assessment are wrong nearly as often as they are right. The most common courtroom predictions — frequently based solely on hypotheticals — are wrong twice as often as they are right.Erica Beecher-Monas & Edgar Garcia-Rill, Danger at the Edge ofChaos: Predicting Violent Behavior in a Post-Daubert World, 24Cardozo L. Rev. 1845, 1845-46 (2003).

One of the authors of that survey has also written: [S]tudies show both that clinicians [psychiatrists and psychologists] tend to think that they have more information than they really do and that they are poor at making extreme judgments. Clinical judgments tend to ignore the well-known difficulty in predicting statistically rare events (like violence). Stereotypes and prejudices are just as likely to taint the decisions of clinicians as those of lay people. As a result, clinicians are no better than lay people in making these predictions.Erica Beecher-Monas, The Epistemology of Prediction: FutureDangerousness Testimony and Intellectual Due Process, 60 Wash. &Lee L. Rev. 353, 362-363 (2003) (footnotes omitted). In addition,a recent study, which examined 155 capital cases in Texas whereexpert witnesses predicted that the defendant would be a futuredanger, concluded that the expert witnesses were wrong in 95% ofthe cases. Texas Defender Service, Deadly Speculation:Misleading Texas Capital Juries with False Predictions of FutureDangerousness 34 (2004), available at http: //www.texasdefender.org/DEADLYSP.PDF.

Jurors, however, may give great deference to the testimony of apsychiatrist as a supposed expert for purposes of determiningfuture dangerousness. As the American Psychiatric Associationstated in its amicus curiae brief in Barefoot, "A psychiatristcomes into the courtroom wearing a mantle of expertise thatinevitably enhances the credibility, and therefore the impact, ofthe testimony." Quoted in Eugenia T. La Fontaine, Note, ADangerous Preoccupation With Future Danger, 44 B.C.L. Rev. 207,228 (2002). Therefore, there is good reason to fear that thetestimony of a psychiatrist on the issue of future dangerousness will be givenmore weight than it deserves. See Flores, 210 F.3d at 466. AsJudge Garza wrote: [T]he problem here (as with all expert testimony) is not the introduction of one man's opinion on another's future dangerousness, but the fact that the opinion is introduced by one whose title and education (not to mention designation as an "expert") gives him significant credibility in the eyes of the jury as one whose opinion comes with the imprimatur of scientific fact. As has been previously recognized, when a medical doctor testifies that "future dangerousness" is a scientific inquiry on which they have particular expertise, and testifies that a particular defendant would be a "continuing threat to society," juries are almost always persuaded.Id.

Thus, this court would probably have excluded any expertevidence offered on future dangerousness because its probativevalue would have been outweighed by the danger of creating unfairprejudice. See 18 U.S.C. § 3593(c). Such a decision would nothave violated the court's duty to follow the Supreme Court'sholding in either Jurek, which did not involve experttestimony, or Barefoot, which addressed whether theConstitution prohibited expert testimony on future dangerousnessin a capital trial. See Barefoot, 463 U.S. at 899 n. 6 ("Thequestion before us is whether the Constitution forbids exposingthe jury or judge in a state criminal trial to the opinions ofpsychiatrists about an issue that Justice Blackmun's dissentconcedes the factfinders themselves are constitutionallycompetent to decide."). In identifying the question presented in Barefoot, the majority explicitlydistinguished cases cited by the dissent because they were"decisions of federal evidence law" rather than "constitutionaldecisions." Id. Barefoot did not decide, and could not havedecided, the admissibility of expert testimony on futuredangerousness under federal evidentiary law; in particular, itdid not address whether expert testimony would be admissibleunder the FDPA balancing test established by 18 U.S.C. § 3593(c).See Thomas Regnier, Barefoot in Quicksand: The Future of"Future Dangerousness" Predictions in Death Penalty Sentencing inthe World of Daubert and Kumho, 37 Akron L. Rev. 469, 488 (2004)(noting potential application of Federal Rule of Evidence 403 toexpert testimony on future dangerousness).

Although this court was not required to decide whether to admitexpert testimony on future dangerousness, exposure to this issuein deciding whether to admit other evidence of futuredangerousness raised a serious question as to whether the SupremeCourt would now find, as it did in Jurek, that a jury mayconstitutionally decide whether to impose the death penalty basedon its prediction of a defendant's future dangerousness.

The Supreme Court established the foregoing five non-exclusivefactors to assist trial courts in determining whether to admitscientific evidence because, it found, there is generally a"particularized need for reliability in expert scientific testimony." Flores, 210 F.3d at 463 (Garza, J., concurring);Daubert, 509 U.S. at 592-94. There is also a similar,heightened need for reliability in the determination that thedeath penalty is justified. As indicated earlier, in 1986 theSupreme Court wrote: In capital proceedings generally, this Court has demanded that factfinding procedures aspire to a heightened standard of reliability. This especial concern is a natural consequence of the knowledge that execution is the most irremediable and unfathomable of penalties; that death is different.Ford v. Wainwright, 477 U.S. 399, 411 (1986) (Marshall, J.,plurality opinion) (citations omitted); See also Woodson v.North Carolina, 428 U.S. at 305.

As described earlier, in Barefoot, 463 U.S. at 896-97, theSupreme Court reasoned that if jurors could with constitutionallysufficient reliability predict future dangerousness, expertsshould not be prohibited from testifying on this issue. However,the fact that there now seems to be increasing reason to beconcerned that experts cannot reliably predict futuredangerousness also generates, for this court at least, increasedconcern that jurors cannot do so.

In Jurek, Justice John Paul Stevens addressed this issue bystating that: It is, of course, not easy to predict future behavior. The fact that such a determination is difficult, however, does not mean that it cannot be made. Indeed, prediction of future criminal conduct is an essential element in many of the decisions rendered throughout our criminal justice system. The decision whether to admit a defendant to bail, for instance, must often turn on a judge's prediction of the defendant's future conduct. And any sentencing authority must predict a convicted person's probable future conduct when it engages in the process of determining what punishment to impose. For those sentenced to prison, these same predictions must be made by parole authorities. The task that a Texas jury must perform in answering the statutory question in issue is thus basically no different from the task performed countless times each day throughout the American system of criminal justice. What is essential is that the jury have before it all possible relevant information about the individual defendant whose fate it must determine. Texas law clearly assures that all such evidence will be adduced.Jurek, 428 U.S. at 275-76; see also Barefoot,463 U.S. at 897 (quoting Jurek).

However, once again, the Court has also recognized and writtenthat: Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.Woodson, 428 U.S. at 305 (opinion of Stewart, Powell, andStevens, JJ.). See also Ford, 477 U.S. at 411 (Marshall,J., plurality opinion).

It remains true that decisions on bail, sentencing, andpossible revocation of supervised release are frequentlyinfluenced by judges' predictions of future dangerousness.However, none of these decisions is as consequential orirreversible as the decision to sentence a defendant to death.Therefore, the degree of reliability required to make thosedecisions in a manner that satisfies the requirements of due process may be considerablyless than the certainty that should be required to establish afact that may determine whether a person will live or die.

There are relatively recent studies that suggest that it is notjust difficult for jurors to predict reliably whether a murdereris likely to commit violent crimes again, but that it isimpossible. For example, it has been written that: Recent research on jury deliberations has shown that jurors' assessments of future dangerousness is highly subjective. Influenced by stereotypical images of the violent recidivist — the psychopathic27 serial killer disproportionately portrayed in the media and the new crime "true crime" genre of television shows — jurors seldom realize research has consistently found the true incidence of recidivism among murderers released from prison to be much lower than for other types of parolees.Jonathan R. Sorenson, Rocky L. Pilgrim, An Actuarial RiskAssessment of Violence Posed by Capital Murder Defendants, 90 J.Crim. & Criminology, 1251, 1254 (2000) (citing William J. Bowers, Benjamin D. Steinor, Death by Default: An EmpiricalDemonstration of False and Forced Choices in Capital Sentencing,77 Tex. L. Rev. 605, 645-65 (1999)).

Arguably, the instant case demonstrates that gate-keeping bythe court and the operation of the adversary process are adequateto assure that consideration of future dangerousness does notdeprive a defendant of due process. As explained, infra, thecourt carefully considered and limited the government's profferedevidence on future dangerousness. The court also allowed much,but not all, of the evidence that Sampson sought to introduce onfuture dangerousness. Ultimately, the jury found that thegovernment had not proven that aggravating factor.

Nevertheless, the court's experience in the case causes it towonder whether it is impossible for lay jurors, as well as fortrained experts, to predict future dangerousness with the levelof reliability necessary to ensure that the death penalty is notbeing "wantonly and . . . freakishly imposed." Furman v.Georgia, 408 U.S. 238, 310 (1972) (Stewart, J., concurring).

It may be challenging for courts to confront this issue. Futuredangerousness is certainly relevant to the decision of whetherthe death penalty is justified in a particular case. There isarguably no more compelling justification for a death sentencethan a reliable conclusion that a convicted murderer is likely tokill again if he is not executed. However, the evolution of the law, and of scientific research, presents the question of whetherit can now be said that future dangerousness can generally bepredicted with sufficient reliability to assure that the deathpenalty is not being imposed arbitrarily and capriciously.Therefore, if this issue is, in an appropriate case,fullydeveloped factually and well-briefed, it may be appropriatefor the Supreme Court to consider again its ruling in Jurek.

A. JURY INSTRUCTIONS

Once the court decided that it was required to permit thegovernment to present the future dangerousness aggravating factorto the jury, the court addressed the scope of this aggravatingfactor and what facts the government would need to establish inorder to satisfy its burden of proof. By the terms of the Noticeof Intent, this factor was limited to Sampson's alleged futuredangerousness in a prison setting. Even if the Notice of Intenthad not explicitly included this limitation, the court would haveinstructed the jury that it could not consider Sampson's futuredangerousness outside of the prison context because the onlyalternative to a death sentence in this case was a sentence oflife imprisonment. See Simmons v. South Carolina,512 U.S. 154, 156, 165-66 & n. 5 (1994).28 The terms of the Notice of Intent also required the governmentto prove that Sampson was "likely" to commit criminal acts ofviolence. The court construed "likely" to mean "more probablethan not". This is consistent with the Texas statute upheld inJurek, which required the state to prove a "probability" offuture dangerousness.29 Jurek, 428 U.S. at 269. The terms of the Notice of Intent required the government toprove that it was likely that Sampson would commit "criminal actsof violence in the future which would be a continuing and seriousthreat to the lives and safety of prison officials and inmates."This phrase placed several burdens on the government. First, thegovernment was required to prove that more than one act ofviolence was likely because the government chose to use theplural "acts" rather than the singular "one or moreacts".30

Second, the government was required to prove that the acts ofviolence would be criminal. The evidence in this case includedthreats that the defendant made against others in prison.However, some of these threats were conditional; Sampson wasdescribing what he would do if someone did something to him.Thus, the court instructed the jury on the general law of selfdefense.31 If the jury were convinced that it was likely that the defendant wouldcommit acts of violence in prison, but that those acts would belimited to instances where the defendant was acting inselfdefense, the government would not have met its burden ofproof.

Third, the government was required to prove that the criminalacts of violence would be sufficiently serious to pose "acontinuing and serious threat to the lives and safety of prisonofficials and inmates". The court incorporated this standard intoits definition of future dangerousness by instructing the jurythat "a criminal act of violence is a physical assault on anotherperson with intent to cause death or serious bodily injury tothat person." This instruction was used in United States v.O'Driscoll, Instruction 70; Def.'s July 30, 2003 Appendix atA-71.

B. EVIDENTIARY RULINGS RELATING TO GOVERNMENT'S PROFFER

Before trial, the court ordered the government to submit aproffer of the evidence it sought to use to prove futuredangerousness. After reviewing the proffer, the court excludedseveral pieces of evidence under 18 U.S.C. § 3593(c). Certainincidents of prison misconduct could not have been established byreliable evidence, such as live testimony. Permitting theseincidents to be presented to the jury without information aboutthe context in which they allegedly occurred presented anunacceptably high risk of unfair prejudice to the defendant ascompared to the probative value of the incidents. They were,therefore, excluded. Other incidents were so remote in time thattheir probative value was outweighed by the danger of unfairprejudice.

The court also excluded evidence of the defendant's pastmembership in a prison gang because the government proffered noevidence to prove: (1) that the defendant was still a member ofthe gang; (2) that the gang of which the defendant was allegedlyonce a member operated in federal penitentiaries; or (3) that, ifit did, the chapters in the federal prisons engaged in the samesort of misconduct as the chapter of which the defendant was onceallegedly a member. Thus, the court concluded that the evidenceof gang membership should be excluded under 18 U.S.C. § 3593(c)'sbalancing test. See Dawson v. Delaware, 503 U.S. 159, 166(1992).

C. SUFFICIENCY OF THE EVIDENCE

On December 1, 2003, the court concluded that the remainingevidence that the government presented was sufficient towithstand the defendant's sufficiency of the evidence challenge.

Some state courts have held that the circumstances of theoffense alone can be sufficient evidentiary support for a findingof future dangerousness. See, e.g., Lovitt v. Commonwealth,537 S.E.2d 866, 878 (Va. 2000); Martinez v. State,924 S.W.2d 693, 706 (Tex.Crim.App. 1996) (Maloney, J., concurring anddissenting). However, this court had serious doubts whether relying on thecircumstances of the offense alone would be constitutionallyadequate to prove future dangerousness in most cases. Just as"[a] person of ordinary sensibility could fairly characterizealmost every murder as `outrageously or wantonly vile, horribleand inhuman,'" Godfrey, 446 U.S. at 428-29, such a person mightfind that any person who commits one murder represents anunacceptable risk of future danger. Permitting a jury to findfuture dangerousness based solely on the facts of the crime risksan arbitrary and uneven imposition of the deathpenalty.32 However, the Notice of Intent in this caseeliminated this issue by limiting the sort of evidence thegovernment proposed to rely on in proving this factor. Morespecifically, the Notice of Intent alleged that Sampson's futuredangerousness would be "demonstrated by his history of prisonmisconduct including, but not limited to, escapes, attemptedescapes, verbal threats to harm prison officials and inmates, andpossession of dangerous weapons."33 Past violence by a defendant in prison is relevant evidencethat a prosecutor could use to prove future dangerousness.However, no such evidence was presented concerning Sampson. Pastprison misconduct of a potentially violent nature is alsorelevant. In this case, the government introduced evidence thatthe defendant had, on more than one occasion, possessed "shanks"(sharpened instruments) in prison. Other courts have consideredthis sort of evidence in evaluating the sufficiency of theevidence concerning to future dangerousness. See Witter v.State, 921 P.2d 886, 899 (Nev. 1996); Braun v. State,909 P.2d 783, 798 (Okla.Crim.App. 1995).

Past escapes and escape attempts are also relevant because theyshow a willingness and ability to break the rules of a prison.The government introduced evidence that Sampson attempted toescape from a state prison in New Hampshire.

Threats to harm prison guards and other officials are alsorelevant to future dangerousness. See Sallahadin v. Gibson,275 F.3d 1211, 1231-32 (10th Cir. 2002) (reviewing death sentenceunder Oklahoma law); Gilbert v. Mullin, 302 F.3d 1166, 1182 (10thCir. 2002) (same), cert. denied, 538 U.S. 1004 (2003). Thegovernment introduced evidence of several threats Sampson made tocorrectional officers and others after he was charged in thiscase.

Although a close question, the evidence of possession of a"shank" both before and after the murders, an attempted escapefrom prison, and threats to correctional officers and others,examined in the light most favorable to the government, wassufficient to permit a rational jury to conclude, beyond areasonable doubt, that Sampson was likely to commit criminal actsof violence in the future which would be a continuing and seriousthreat to the lives and safety of prison officials and inmates.See Swisher v. True, 325 F.3d 225, 232 (4th Cir.) (holdingthat shank possession combined with threats was sufficient toshow future dangerousness under Virginia law and, therefore,petitioner did not demonstrate prejudice for Stricklandpurposes), cert. denied, 123 S. Ct. 2668 (2003). Thus, thecourt denied the defendant's motion to strike this aggravatingfactor for insufficient evidence.

As indicated earlier, however, the jury did not find that thisaggravating factor was proven.

D. EVIDENTIARY RULINGS RELATING TO DR. MARK CUNNINGHAM

To rebut the government's allegation of future dangerousness,Sampson offered the testimony of an expert witness, Dr. MarkCunningham. On October 30, 2003 and December 1, 2003, the court made several rulings regarding Dr. Cunningham's testimony.

As a threshold matter, the court indicated that neither Dr.Cunningham nor any other witness would be permitted to offer anopinion as to whether Sampson presented a future danger. Thecourt suggested that any such testimony was inadmissible under18 U.S.C. § 3593(c) because its probative value would be outweighedby the danger of unfair prejudice. Once again, this question isnot controlled by Barefoot, 463 U.S. at 905-906, because thatcase held that it was not unconstitutional to permit expertevidence on future dangerousness. It did not address questions offederal evidence law generally or the FDPA's balancing testspecifically. Id. at 899 n. 6.

The government filed a motion in limine seeking to preclude Dr.Cunningham from testifying. The government argued that Dr.Cunningham "is not qualified to testify concerning prisonadministration and safety or the assignment and classification ofthe defendant by the Bureau of Prisons" and that the court shouldexclude his testimony under 18 U.S.C. § 3593(c). Gov.'s Mot. inLimine to Preclude Cunningham Testimony at 4. As explained onOctober 30, 2003, this court disagreed.

The government correctly argued that Dr. Cunningham was nottestifying based on his training and experience as a forensicpsychologist. Rather, the court viewed Dr. Cunningham's profferedtestimony as expert testimony based on his specialized knowledge about the Bureau of Prisons' ("BOP") policies,34procedures and facilities. Therefore, the court limited theextent to which the defendant could inquire into Dr. Cunningham'squalifications as a forensic psychiatrist on direct examination.

The government was incorrect, however, when it argued that Dr.Cunningham lacked the specialized knowledge to testify regardingthe conditions Sampson would face if confined for life in a BOPfacility. As Dr. Cunningham's testimony in this trial and atleast one other case35 has illustrated, he has spent asignificant amount of time gathering information regarding theBOP and its capabilities, and he possesses the sort ofspecialized knowledge that would assist the jury in evaluatingthe government's allegations regarding future dangerousness. Dr.Cunningham's specialized knowledge is based on information thathe obtained in a reliable manner. More specifically, much of Dr.Cunningham's knowledge regarding the BOP comes directly from theBOP in the form of its publications, web site, and responses todiscovery requests in cases such as this one. Testimony such as that presented by Dr. Cunningham is valuableto a jury asked to consider whether a defendant is likely topresent a danger in a prison setting if incarcerated for life.The danger any individual presents is a function not only of thatindividual, but also of his environment. A person who isdangerous in a halfway house may be significantly less dangerousin a medium security prison, even less dangerous in a maximumsecurity prison, and less dangerous still in a more secureenvironment.

In addition to information about the general success that theBOP has had in controlling violent and dangerous inmates, thedefendant sought to introduce testimony from Dr. Cunninghamregarding specific inmates in the Bureau of Prisons. The courtpermitted only general testimony about the ability of the BOP tocontrol inmates, including gross statistics regarding assaultsand other misconduct, but did not permit testimony regardingspecific other prisoners. Each person in the custody of the BOPis unique, and the court found that the probative value ofinformation about the BOP's ability or inability to control aparticular other prisoner was outweighed by the danger ofmisleading the jury into thinking that the BOP would have asimilar experience with Sampson.

The government also objected to a slide in Dr. Cunningham'sPowerPoint presentation that contained three statements regarding the relationship between offense history and prisonmisconduct.36 The government argued that the court hadruled that the information on this slide was inadmissible when itindicated that no witness would be permitted to give an opinionas to whether Sampson presented a future danger in prison. Thiscontention was incorrect. The court permitted Dr. Cunningham topresent this slide to the jury. This slide did not express anopinion about the level of danger presented by Sampson. Rather,it exposed the jury to facts not generally known that might havecaused one or more jurors to question the strength of thegovernment's evidence. More specifically, it informed jurorsthat, contrary to what they might have assumed, past violenceoutside of prison is not strongly or consistently associated withprison violence and the severity of Sampson's offenses is not agood indicator of whether he would commit violent acts in prison.It was appropriate for the defendant to present testimony tendingto show that the government had failed to meet its burden ofproof because the facts it presented did not establish thelikelihood that Sampson would commit criminal acts of violence inprison. XV. MITIGATING FACTORS AS QUESTIONS OF LAW OR FACT

The parties disputed whether jurors could properly refuse totreat a non-statutory mitigating factor as mitigating. Drawing adistinction between whether an alleged mitigating factor has beenfound to exist and whether that factor is truly mitigating, thedefendant argued that the existence of a mitigating factor is aquestion for the jury, but it is the duty of the court todetermine, as a matter of law, whether a factor is mitigating.The government argued that although jurors must treat statutorymitigating factors as mitigating, jurors are free to find that anon-statutory mitigating factor, even if proven to exist, is notmitigating and, therefore, deserves no weight in the juror'sultimate decision.

The Eighth Circuit Model Jury Instructions identify this issueand recommend resolving it as follows: Many factors, both aggravating and mitigating, may be factually true, and yet not be perceived by a juror as aggravating or mitigating. For instance, in United States v. Paul, 217 F.3d 989, 1000 (8th Cir. 2000), one of the mitigating factors submitted to the jury was the fact that defendant was eighteen when he committed the offense. The court found no error in the failure of six jurors to find his age as mitigating, concluding that a juror is not required to give mitigating effect to any factor. Accord United States v. Bernard, 299 F.3d 467, 485-86 (5th Cir. 2002). To prevent confusion, the Committee suggests that nonstatutory aggravating and mitigating factors include some version of the phrase "and that fact tends to [support] [mitigate] imposition of the death penalty." See Note 4, Instruction 12.08, supra.Eighth Circuit Model Jury Instruction 12.10 cmt. In this case,the government acknowledged that whatever treatment the court gave tonon-statutory mitigating factors should be given to non-statutoryaggravating factors as well.

This court respectfully disagrees with the conclusion reachedin Paul and Bernard that a juror is free to reject thecourt's determination that a factor is mitigating or aggravating.Instead, on December 16, 2003, the court decided that whether afactor is aggravating or mitigating is a question of law for thecourt to decide. Jurors, however, are free to assign a particularfactor whatever weight they see fit. A juror can properlydetermine that a particular factor is so insignificant comparedto the other factors found that its presence or absence has noimpact on the juror's decision. It would be improper, however,for a juror to refuse to even consider a particular factorbecause he or she disagrees with the court's determination thatthe factor is aggravating or mitigating.

In Eddings v. Oklahoma, 455 U.S. 104, 113-15 (1982), theSupreme Court wrote that: Just as the State may not by statute preclude the sentencer from considering any mitigating factor, neither may the sentencer refuse to consider, as a matter of law, any relevant mitigating evidence. In this instance, it was as if the trial judge had instructed a jury to disregard the mitigating evidence Eddings proffered on his behalf. The sentencer . . . may determine the weight to be given relevant mitigating evidence. But they may not give it no weight by excluding such evidence from their consideration.Thus, Eddings recognizes a distinction between considering a relevant factor but assigning it so little weight so as to makeit of no practical significance in a sentencer's ultimatedecision and refusing to consider a relevant factor, effectivelygiving it no weight because a sentencer does not consider thefactor to be relevant at all. See also Buchanan v.Angelone, 522 U.S. 269, 276 (1998) ("In the selection phase, ourcases have established that the sentencer may not be precludedfrom considering, and may not refuse to consider, anyconstitutionally relevant mitigating evidence.") (emphasisadded).

Neither party disputed the proposition that the court mustserve a gate-keeping function with respect to non-statutoryaggravating factors. This court described its gate-keeping roleas follows: Once the government gives notice of what it proposes to prove and argue as justification for a death sentence, the judge serves as a gatekeeper. Before admitting evidence of a non-statutory aggravating factor, the judge must find that it is sufficiently relevant, that the evidence supporting it is sufficiently reliable, and that the probative value of the evidence is not "outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury." 18 U.S.C. § 3593(c); see also United States v. Jones, 132 F.3d 232, 239-40 (5th Cir. 1998), aff'd, 527 U.S. 373, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999). After the judge performs this gatekeeping function, the jury considers any proven non-statutory aggravating and mitigating factors along with any proven statutory aggravating and mitigating factors in deciding whether the death sentence is justified. See 18 U.S.C. § 3593(e).Sampson II, 275 F. Supp. 2d at 101. The parties agreed that thecourt serves an analogous gate-keeping role with respect tononstatutory mitigating factors.37 Accordingly, on December 16, 2003,the court exercised its gate-keeping role by ensuring that thedefendant did not present any mitigating factors to the jury thatwere irrelevant to the decision between life and death,duplicative, or unsupported by reliable evidence.

In exercising its gate-keeping role and permitting a party topresent a particular non-statutory factor to the jury, a courtis, in effect, deciding that the jurors must assign that factorsome weight, however small, in favor of or against a deathsentence if the factor is proven. The Tenth Circuit implicitlyrecognized this necessary consequence to the decision to permitjurors to consider a factor in United States v. McCullah,76 F.3d 1087, 1111-12 (10th Cir. 1996). As part of its discussion ofthe harm resulting from permitting duplicative aggravatingfactors, the Tenth Circuit stated that "[w]hile the federalstatute at issue is a weighing statute which allows the jury toaccord as much or as little weight to any particular aggravatingfactor, the mere finding of an aggravating factor cannot butimply a qualitative value to that factor." Id. at 1112(emphasis added).

The distinction urged by the government between statutoryfactors and non-statutory factors is ultimately unpersuasive. Permitting jurors to reject the court's ruling that a particularnon-statutory factor is aggravating or mitigating is inconsistentwith requiring jurors to treat statutory factors as aggravatingor mitigating because Congress has so designated them. Oncejurors have determined that a defendant is eligible for the deathpenalty and enter the selection stage, aggravating and mitigatingfactors enumerated in the FDPA play the same role asnon-statutory aggravating and mitigating factors. That aparticular factor was identified by Congress rather than by theparties, subject to the gate-keeping function of the court, is adistinction that should make no difference.

In the ordinary case, a jury is not informed of the source ofthe law underlying the jury instructions. Whether a particularinstruction is grounded in a statute or the common law, a courtinstructs a jury as to what the law is and the jury is requiredto follow the law. The ordinary considerations which underlie thedivision of responsibilities between the court, which determinesthe legal framework, and the jury, which applies the legalframework it is given, are equally important in the sentencingphase of a capital case. One of the core concepts underlyingmodern capital jurisprudence is that juror discretion in acapital sentencing proceeding must be sufficiently guided so asto prevent the arbitrary imposition of death sentences. SeeGregg v. Georgia, 428 U.S. 153, 189 (1976) (joint opinion ofStewart, Powell, and Stevens, JJ.). Congress understood this requirement when itcrafted the FDPA and chose to enact a statute that greatlyfocuses the jurors' discretion. Committing the determination ofwhether a factor is mitigating or aggravating to the court ratherthan the jury provides increased guidance to the jury anddiminishes the risk that the death penalty will be imposedarbitrarily.

The court recognized that it has been held that instructing thejury that it must consider mitigating factors as mitigating isnot constitutionally required so long as there is no reasonablelikelihood that the jury will apply the instructions as a wholein a way that prevents them from considering constitutionallyrelevant mitigating evidence. See Buchanan,522 U.S. at 276-77. However, when reviewing a capital case prosecuted understate law, as the federal courts in Buchanan were, the role ofthe federal courts is limited. In contrast, when instructing ajury in a capital case brought under the FDPA, the court need notgive an instruction that merely complies with theconstitutionally prescribed minimum. Provided the choice betweentwo instructions, this court chose the one that was more likelyto result in consistency in imposition of the death penalty.

Treating the status of non-statutory factors as a question oflaw is also likely to improve the jury's deliberative process.Adopting the Eighth Circuit's recommendation of adding the phrase"and that fact tends to [support] [mitigate] imposition of the death penalty" to each non-statutory aggravating and mitigatingfactor risks juror confusion over their function. By clearlydividing the inquiry into whether a factor has been proven fromthe inquiry into what weight a factor deserves, a court guidesjurors' discretion by focusing them on the distinct roles theymust play as finders of fact and sentencing authority. Thisseparation of functions is consistent with the structure of theFDPA. Section 3593 indicates that Congress intended that juriesfirst determine whether aggravating and mitigating factors areproven and only later decide what weight to give them.

In order to clarify the distinct tasks facing the jury forcertain mitigating factors which the parties agreed had beenestablished, the court directed jurors that all twelve of themwere required to find certain mitigating factors proven, but thatthe question of how much weight to assign those factors was up tothe jurors individually.38 The court gave thisinstruction only for those mitigating factors that the parties agreed the defendanthad established.

There is a constitutional requirement that a jury not beprecluded from considering any constitutionally relevantmitigating evidence, Lockett v. Ohio, 438 U.S. 586, 604 (1978).Thus, the court instructed the jurors that a mitigating factorneed not be alleged by the defendant in order for the jurors toconsider it.39 The court recognized that this potentiallypermitted jurors to circumvent the court's gate-keeping function by consideringmitigating factors that were not constitutionally relevant as amatter of law, but were considered relevant by jurors. However,as the parties agreed, this instruction was necessary to complywith the rule of Lockett, 438 U.S. at 604 ("the Eighth andFourteenth Amendments require that the sentencer, in all but therarest kind of capital case, not be precluded from considering,as a mitigating factor, any aspect of a defendant's character orrecord and any of the circumstances of the offense that thedefendant proffers as a basis for a sentence less than death.")(footnote omitted).

XVI. JURY INSTRUCTIONS RELATING TO MITIGATING FACTORS

A. STATUTORY MITIGATING FACTORS RELATING TO MENTAL CONDITION

Sampson argued that he had established two statutory mitigatingfactors relating to his mental condition at the time of theoffenses. First, he argued that his "capacity . . . to conformconduct to the requirements of law was significantly impaired,regardless of whether the capacity was so impaired as toconstitute a defense to the charge." 18 U.S.C. § 3592(a)(1).Second, he argued that he "committed [each] offense under severemental or emotional disturbance." 18 U.S.C. § 3592(a)(6). Sampsonalso presented the jury with other non-statutory mitigatingfactors relating to his mental condition.

The statutory mitigating factors appear to have their roots inthe Model Penal Code. See Model Penal Code § 210.6 (1962Official Draft and Revised Comments). Therefore, the court adopted some ofthe ideas reflected in the Model Penal Code's commentary indeveloping the jury instructions for these factors. With respectto significant impairment, the court instructed the jury that: In this case, it is not argued that Mr. Sampson was completely unable to conform his conduct to the requirements of the law. If that were true, he would have been legally insane and, therefore, not guilty of the crime in question. The Federal Death Penalty statute provides, however, that if a person's ability to conform his conduct to the requirements of the law was not so completely impaired as to render him not guilty, but was nevertheless significantly impaired, he is less blameworthy than a person who does not have a comparable impairment. Therefore, if proven, such as a significant impairment is a mitigating factor.See Dec. 19, 2003 Tr. at 56-57; Model Penal Code § 210.6 cmt.5(b), at 138.

The court also defined two key concepts embodied in the statutefor the jury. The first is "impairment." The court instructed thejury that "[b]y `impaired,' I mean damaged, weakened, ordistorted." Id. at 56. The second is "significantly". The courtinstructed the jury that "[i]f an impairment is proven, it alsomust be proven that the impairment was significant. A significantimpairment is a meaningfully large impairment, although not oneso great as to completely impair Mr. Sampson's ability to do whatthe law requires." Id. at 58.

The court then explained the links among significant impairmentand mental illness and other potential causes of an impairment in the context of the evidence in the case. The courtinstructed the jury that: The impairment could be caused by a mental illness. A mental illness is a disease or defect affecting the brain or mind that influences the way a person thinks, feels, behaves, and/or relates to others and to his surroundings. You have in this case heard evidence concerning mental illness. You should consider whether any form of mental illness has been proven and, if so, whether it caused or contributed to a significant impairment to Mr. Sampson's ability to conform his conduct to the requirements of the law. The impairment could also result from a brain dysfunction. A person has a brain dysfunction if his brain does not work as well as a normal person's brain. He, therefore, has problems with performing certain functions. These problems may involve, but not be limited to, difficulty in controlling his impulses. The impairment could also be caused by the withdrawal from a drug addiction or from the consumption of a large amount of alcohol. In addition, the impairment could result from the interaction of a mental illness, a brain dysfunction, alcohol abuse, and/or withdrawal from the use of drugs.Id. at 57-58.

With respect to severe mental and emotional disturbance, thecourt instructed the jury as follows: The next mitigating factor is addressed in question 5C, which asks whether it's proven, at the time he committed the carjacking resulting in the death of Philip McCloskey, Gary Sampson was under a severe mental or emotional disturbance. Once again, the Federal Death Penalty statute treats a person who kills in a state of severe mental or emotional disturbance as less blameworthy than one who murders while in complete control of his faculties. In contrast to a significantly impaired ability to obey the law, a severe mental or emotional disturbance may not be subject to a reasonable explanation but, nevertheless, be real. Therefore, if it is established that, for whatever reason, Mr. Sampson was not in normal control of his faculties because he was under a severe, meaning intense or great, mental or emotional disturbance, this alleged mitigating factor is proven.Id. at 58-59.

The Model Penal Code indicates that the analogous mitigatingfactor of "extreme mental or emotional disturbance" relates tothe concept of "imperfect provocation."

Section 210.3(1)(b) reduces murder to manslaughter where the homicide is committed "under the influence of extreme mental or emotional disturbance for which there is a reasonable explanation or excuse." . . . [T]he Code recognizes that, even where extreme emotional distress is not subject to reasonable explanation or excuse, it may be weighed against imposition of the capital sanction. Generally speaking, one who kills in a state of extreme emotional disturbance is not as blameworthy as one who murders while in normal control of his faculties.Model Penal Code § 210.6 cmt. 5(b), at 138. By using the word"severe" rather than "extreme", the FDPA provides for amitigating factor that may be broader than the one described inthe Model Penal Code because it has within its scope disturbancesthat, while severe, are not extreme.

B. NON-STATUTORY MITIGATING FACTORS RELATING TO MENTALCONDITION

In addition to the statutory mitigating factors relating tomental condition, the defendant also argued that severalnonstatutory mitigating factors relating to mental conditionmilitated against a sentence of death. These non-statutorymitigating factors were: (1) Sampson is mentally ill; (2) Sampsonhas a brain dysfunction; and (3) Sampson was mentally ill at the time of eachoffense. The court instructed the jury to apply the definitionsof mental illness and brain dysfunction that the court gave aspart of the significant impairment instruction.

The court considered each of these non-statutory mitigatingfactors to be distinct from each other and the statutorymitigating factors relating to mental condition. Unlike thestatutory mitigating factors, the first two non-statutorymitigating factors focused on the defendant as he was at the timeof the sentencing trial rather than as he was at the time of theoffenses.40 Rather than calling on the jury to considermental illness or brain dysfunction as making the defendant lessblameworthy for the crime, these mitigating factors focus thejury on the defendant's suitability for the death penalty andwhat sort of sentence life imprisonment would be for thisdefendant as opposed to another, mentally healthy defendant.

The final non-statutory mitigating factor, mental illness atthe time of the offense, was arguably not a proper mitigatingfactor under the FDPA. One could plausibly read the FDPA asexpressing judgment that mental illness at the time of an offense can be considered mitigating only if that mental illnesscontributes to a significant impairment or severe mental oremotional disturbance. However, the court did not adopt thisinterpretation. Rather, it concluded that mental illness at thetime of an offense — even if that mental illness does notcontribute to the offense — is a personal characteristic of thedefendant that is properly characterized as mitigating. As thecourt explained to the jury: "This mitigating factor does notallege that any mental illness that Mr. Sampson had when hekilled Mr. McCloskey caused or contributed to that crime beingcommitted. Rather, it is based on the view that a more mercifulpunishment may be appropriate for a person who is suffering froma mental illness when he committed a crime as compared to amentally healthy person." Dec. 19, 2003 Tr. at 59.

C. OTHER MITIGATING FACTORS

Most of the other mitigating factors presented by Sampson wererelatively straightforward factual allegations and did notrequire any elaboration by the court in its jury instructions.The court did, however, provide jurors with some explanationregarding the mitigating factor that alleged Sampson wasremorseful for his conduct. The court instructed the jury that"[r]emorse is a feeling of distress, arising from a sense ofguilt for harm done to others. This mitigating factor focuses onwhether Mr. Sampson is remorseful now. While his state of mindfollowing his crimes may be relevant, it is his feelings now that are at issue." Dec. 19,2003 Tr. at 63. Thus, the court instructed the jury that if thedefendant was not initially remorseful, but later developedremorse for his conduct, that is a fact that mitigates againstthe imposition of the death penalty.41 Conversely, if thedefendant was initially remorseful, but later decided that he wasglad that he committed his crimes, that is not a fact thatmitigates against the imposition of the death penalty.

At the defendant's request, the court also instructed the jurythat "[i]f it is proven that Mr. Sampson is remorseful, hisremorse is a mitigating factor. If, however, you find that Mr.Sampson is not remorseful, you may not consider that to be anaggravating factor in this case." Dec. 19, 2003 Tr. at 64.

XVII. INSTRUCTIONS RELATING TO THE WEIGHING PROCESS

The FDPA provides that: the jury, or if there is no jury, the court, shall consider whether all the aggravating factor or factors found to exist sufficiently outweigh all the mitigating factor or factors found to exist to justify a sentence of death, or, in the absence of a mitigating factor, whether the aggravating factor or factors alone are sufficient to justify a sentence of death. Based upon this consideration, the jury by unanimous vote, or if there is no jury, the court, shall recommend whether the defendant should be sentenced to death, to life imprisonment without possibility of release or some other lesser sentence. 18 U.S.C. § 3593(e). Congress and the President provided no further guidance as to how much outweighing is "sufficient[] . . . to justify a sentence of death" or what other rules should govern the weighing process. Consequently, the parties presented the court with several disputes regarding the appropriate jury instructions on the weighing process required by the FDPA. In his requests for jury instructions, the defendant requested that the court instruct the jury that it should vote for a death sentence only if it finds that "death is the only proper and justified sentence." Def.'s Supp. Submission of Requested Penalty-Phase Instructions at 1, 6, 8, 11. The defendant elaborated on this concept, asking the court to further instruct the jury that "[i]f, after fair and impartial consideration of all the evidence in this case, each and every one of the twelve of you is not completely convinced that Gary Sampson's execution, and only his execution, is the justified and proper sentence, and that no other penalty will adequately serve the end of justice, then you cannot impose the death penalty here." Id. at 12.

The defendant also requested that the court instruct the jurythat it could not vote for a death sentence unless the governmentproved, beyond a reasonable doubt, that the aggravating factorssufficiently outweighed the mitigating factors. In addition tothis request, the defendant took the position that he had theright to argue that the jury should not impose a death sentenceunless it was absolutely certain that it was appropriate. In essence, thedefendant's position was that "beyond a reasonable doubt" was thefloor below which a jury could not go, but that he could properlyask the jurors to impose a higher burden on the governmentbecause of the severity and irrevocability of a death sentence.

The government strenuously opposed these requestedinstructions, arguing that the FDPA does not place such a heavyburden on the government and the jury should be instructed bysimply reading the statutory language. With regard to thedefendant's request for a "beyond a reasonable doubt"instruction, the government initially argued that when Congressmeant to require a burden of proof in the FDPA, it expressly didso, and the absence of any burden of proof in the statute meantthat the court should not adopt one. See United States v.Chandler, 996 F.2d 1073, 1091-93 (11th Cir. 1993); UnitedStates v. Hammer, 25 F. Supp. 2d 518, 530-31 (M.D. Pa. 1998).Compare 18 U.S.C. § 3593(c) with 18 U.S.C. § 3593(e). Thegovernment acknowledged that it was subject to some undefinedburden of proof, but argued that assigning any particular measurewas inappropriate.

At first glance, the dispute over whether the court shouldinstruct jurors that they must find that death is "the onlyappropriate penalty" and the dispute over a reasonable doubtinstruction may appear to be different ways of framing the sameargument. However, the court determined that this disputeinvolved two distinct, but related concepts: sufficiency and certainty.

The question of what is sufficient to justify the death penaltyis conceptually distinct from the question of how certain ajuror or judge needs to be in order to properly choose a deathsentence. The Connecticut Supreme Court explained thisdistinction in State v. Rizzo, 833 A.2d 363 (Conn. 2003).Unlike the FDPA, the Connecticut statute at issue in Rizzo doesnot ask jurors whether the aggravating factors "sufficiently"outweigh the mitigating factors to justify the death penalty.Rather, it directs the jurors to determine simply whether theaggravating factors outweigh the mitigating factors. Compareid. at 377 with 18 U.S.C. § 3593(e). The defendant challengedthe jury instructions relating to the weighing process becausethey did not instruct that the aggravating factors had tooutweigh the mitigating factors "beyond a reasonable doubt". Thecourt wrote: Before considering the defendant's claim, we must first identify it, because it is subject to two different interpretations: one interpretation focuses on measuring the balance between the aggravating factors and the mitigating factors; and the other interpretation focuses on the level of certitude required of the jury in determining that the aggravating factors outweigh the mitigating factors. In other words, we first must clarify whether the defendant claims that: (1) in performing the weighing process, the jury must be persuaded that the aggravating factors outweigh the mitigating factors by some quantum or amount measured by the "beyond a reasonable doubt" standard; or (2) in performing the weighing process, the jury must be persuaded beyond a reasonable doubt that the aggravating factors outweigh the mitigating factors by any degree or amount. Under the first interpretation, the jury must be persuaded that the balance of the aggravating factors against the mitigating factors must tip greatly — in the words of the defendant's request to charge, "substantially"; see footnote 8 of this opinion; — in favor of the aggravating factor such that the quantitative difference between the two factors would be aptly described as "beyond a reasonable doubt." Under the second interpretation, the jury need only determine that the aggravating factor is greater in some degree or amount than the mitigating factor, but, in arriving at that determination, it must be persuaded by a level of certitude of beyond a reasonable doubt.Rizzo, 833 A.2d at 377-78.

What the Connecticut Supreme Court refers to as "measuring thebalance" is addressed by the FDPA's requirement that the juryfind that the aggravating factors sufficiently outweigh themitigating factors to justify the death penalty. This courtrejected the defendant's argument that the FDPA's sufficiencyrequirement is satisfied only if jurors find that death is theonly appropriate penalty. Instead, the court told jurors thatthey would be called on to decide whether death, as opposed tolife imprisonment, was "the appropriate penalty" in this case.The defendant's proposed instruction would have precluded a deathsentence unless the jury viewed death as an appropriate sentenceand life imprisonment as an inappropriate sentence. However,given the severity of both sentences, it seemed quite possiblethat the jury would view either one as an appropriate sentence,but view one as more appropriate than the other. Although a juryin a FDPA case is certainly entitled to be merciful and choosethe less severe sentence, the FDPA does not express the intent torequire that the jury always choose the least severe appropriatesentence. With respect to certainty, the court first decided that if thelaw imposes a particular burden of proof on the government,neither party may ask the jury to disregard the law by urging itto apply a higher or lower standard. Thus, the court rejected thedefendant's request to forbid the government from arguing for aburden lower than "beyond a reasonable doubt" while permittingthe defendant to argue for a higher burden.

The text of the FDPA does not indicate that Congress intendedto impose a reasonable doubt requirement on the weighing process.See Chandler, 996 F.2d at 1091-93. Indeed, the absence of anexplicit burden of proof requirement in § 3593(e), given theexplicit burden of proof requirements established in § 3593(c),suggests that Congress did not intend that the government berequired to prove that death is appropriate to any particulardegree of certainty. "[W]here Congress includes particularlanguage in one section of a statute but omits it in anothersection of the same Act, it is generally presumed that Congressacts intentionally and purposely in the disparate inclusion orexclusion." See Russello v. United States, 464 U.S. 16, 23(1983), as quoted in Trenkler v. United States, 268 F. 3d 16,23 (1st Cir. 2001).

The lower courts are split on whether to instruct that thegovernment must prove beyond a reasonable doubt that the deathpenalty is justified. The defendant cited cases in which theinstruction was given and the government cited cases in which it was not. Judge Sand's model jury instructions contain "beyond areasonable doubt" language while the Eighth Circuit's model juryinstructions do not. See 1 Leonard B. Sand et al., ModernFederal Jury Instructions, Inst. 9A-19 at 9A-78 to -79; Manualof Model Criminal Jury Instructions for the District Courts ofthe Eighth Circuit, Instruction 12.11.

The defendant argued that even if the FDPA does not require areasonable doubt standard, the constitution requires proof beyonda reasonable doubt for all facts of importance in a criminaltrial. See In re Winship, 397 U.S. 358 (1970). The governmentresponded that this argument is foreclosed by various SupremeCourt decisions. In Rizzo, the Connecticut Supreme Courtreached a similar conclusion, writing that "[i]t is settled lawthat, under the federal constitution, `specific standards forbalancing aggravating against mitigating circumstances are notconstitutionally required.'" 833 A.2d at 378 (quoting Zant v.Stephens, 462 U.S. 862, 875-76 & n. 13 (1983)).

This court concluded that the United States Supreme Court hasnever directly addressed the question of whether a sentencingbody must be certain, beyond a reasonable doubt, that a deathsentence is appropriate before deciding to impose it. In Zant,supra, the Court was presented with the question of whether theconstitution requires a weighing statute. The "Respondentargue[d] that the mandate of Furman is violated by a schemethat permits the jury to exercise unbridled discretion in determining whether the deathpenalty should be imposed after it has found that the defendantis a member of the class made eligible for that penalty bystatute." Zant, 462 U.S. at 875. The Court rejected this argumentand held that a weighing process was not an indispensable elementof a constitutional death penalty statute. Id. The Court wasnot presented with the question of whether jurors must be certainbeyond a reasonable doubt that they are exercising theirdiscretion appropriately.

Although this court concluded that the defendant's argument wasnot foreclosed by binding precedent, the court did not find itpersuasive. It is true, as the defendant argued, that thedecision between the death penalty and a lesser sanction is insome ways similar to the other questions put to a jury in acriminal trial for which the constitution demands proof beyond areasonable doubt. As with questions of guilt and innocence, thedefendant in a capital sentencing proceeding has "at stakeinterest[s] of immense importance." Winship, 397 U.S. at 363.As with questions of guilt and innocence, "[i]t is critical thatthe moral force of the criminal law not be diluted by a standardof proof that leaves people in doubt whether" those who do notdeserve the death penalty are being condemned to die. Id. at364.

However, the defendant's analogy to proof of facts, which isthe subject of In re Winship, is not apt. Although important to the defendant and society, the sentencing decision in a capitalcase is, in its most important respects, fundamentally differentthan any other task that a jury is called upon to perform in ourcriminal justice system. The jury is not acting as a finder offact. Rather, it is exercising discretion in sentencing that isordinarily exercised by judges. Whether a jury's sentencingdecision is right or wrong is not something that is capable ofproof in the traditional sense. As the Supreme Court of Alabamaexplained, "the weighing process is not a factual determination.In fact, the relative `weight' of aggravating circumstances andmitigating circumstances is not susceptible to any quantum ofproof." Ex parte Waldrop, 859 So. 2d 1181, 1189 (Ala. 2002),cert. denied sub nom., Waldrop v. Alabama, 124 S. Ct. 430(2003); accord Harris v. Pulley, 692 F.2d 1189, 1195 (9thCir. 1982) ("[W]e are not aware of any instance where a statemust carry such a burden of proof when attempting to convince asentencing authority of the appropriate criminal sentence. If theSupreme Court had intended for the burden in death-penalty casesto vary from the standard burden in all other criminalsentencing, it would have said so in one of the many modern casesdealing with the death penalty."), rev'd on other grounds,465 U.S. 37 (1984).

When a court chooses among the various sentences that the lawpermits in a typical criminal case, it need not be persuadedbeyond a reasonable doubt that the harsher sentence is the most appropriate sentence in order to impose it. The FDPA appears toconfer comparable discretions on the jury in a federal capitalcase.

Thus, this court initially concluded that it was appropriate tonot only leave the determination of what is sufficient to justifya death sentence to the jurors, but also to permit the jurors todecide how certain they must be to impose a death sentence.

However, on December 16, 2003, the government changed itsposition and stated that it had no objection to a reasonabledoubt instruction so long as it provided both a "floor" and a"ceiling". That is, the government withdrew its objection tojurors being instructed that the weighing process carries areasonable doubt burden provided that the court did not permitthe defendant to argue that the jurors should impose a stricterburden on the government. The defendant maintained his positionthat "beyond a reasonable doubt" was the proper floor, but thathe should be entitled to argue that absolute certainty wasrequired.

Relying on the government's revised position and viewing it asprudent, the court incorporated a reasonable doubt standard inthe instructions relating to the weighing process. However, thecourt also instructed jurors that they had the discretion todecide what was "sufficient" for themselves. The court rejectedthe government's initial suggestion that the court should simplyread the jurors the applicable part of § 3593(e) without any furtherexplanation. Instead, the court explained to the jurors the scopeof their responsibility to determine what was sufficient tojustify the death penalty and the impact that this determinationwould have on their ultimate decision.42

A final dispute regarding the weighing process concerned what the defendant referred to as a "mercy instruction" and thegovernment referred to as a "nullification instruction." Thedefendant requested that the court instruct the jury that it wasnever required to impose the death penalty. The governmentobjected to this instruction, arguing that it would encouragejury nullification. Unlike the Drug Kingpin Act on which it wasmodeled, the FDPA does not explicitly require such aninstruction. Compare 21 U.S.C. § 848(k) ("The jury . . .regardless of its findings with respect to aggravating andmitigating factors, is never required to impose a death sentenceand the jury shall be so instructed.") with 18 U.S.C. § 3593.

To the extent there are no circumstances in which the lawmandates that a juror find that the aggravating factorssufficiently outweigh the mitigating factors to justify asentence of death, the defendant was correct that a juror is, asa practical matter, never required to impose the death penalty.However, the defendant failed to identify a situation in which itwould be appropriate for a juror to be persuaded beyond areasonable doubt that the aggravating factors sufficientlyoutweigh the mitigating factors to justify a sentence of deathyet still refuse to vote for a death sentence. The statutedirects the jury to make a unanimous recommendation "[b]ased uponthis consideration" of aggravating and mitigating factors.18 U.S.C. § 3593(e). The statute does not identify any otherpermissible considerations. To permit the jury to consider matters other than the relative weight of aggravatingand mitigating factors found during jury deliberations risks thearbitrary and capricious imposition of death sentences based onunspecified criteria.

Accordingly, the court instructed the jury that: the law never requires that any or all of you find that the death sentence is justified. Any one of you may decline to impose the death penalty. If you decide that the prosecution has not proven beyond a reasonable doubt that the death penalty is justified, you do not have to give a reason for that decision. The law does require that you follow the process that I've explained and then make a reasoned moral judgment.Dec. 19, 2003 Tr. at 71. This instruction informed jurors that ifthey reached the selection stage, the decision whether to imposea death sentence was entirely for each of them to make becausethe law never compels a death sentence.

However, the court also instructed the jurors that: If each and every one of you find that the prosecution has proven beyond a reasonable doubt that the aggravating factors found to exist sufficiently outweigh the mitigating factors found to exist to make death the appropriate penalty for Mr. Sampson for the carjacking resulting in the death of Philip McCloskey, you will check "All 12 jurors say Yes." You will have thus decided that Mr. Sampson will be executed for that crime, and that is the sentence that I will impose.Id. at 73. Therefore, the jurors were informed that if theyunanimously decided that the government had proven beyond areasonable doubt that the government had satisfied the statutorystandard, they were obliged to say so and the death penalty wouldbe imposed. Accordingly, rather then treating the weighing process as aprerequisite to imposing the death penalty based on someadditional undefined criteria, the court, in essence, instructedthe jurors that the weighing process was the criteria by whichthey were to determine if death was the appropriate sentence.

XVIII. INSTRUCTIONS RELATING TO FAILURE OF THE JURY TO REACH AUNANIMOUS VERDICT

The court told the jury what would occur if it failed to reacha unanimous verdict in favor of the death penalty. In Part Six ofthe verdict forms, the court gave the jury three options. Thefirst was a unanimous vote that the government had met its burdenof proving that death was the appropriate sentence. The secondwas a unanimous vote that the government had failed to meet itsburden of proving that death was the appropriate sentence. Thethird was that "[a]fter making all reasonable efforts, the juryis unable to reach a unanimous decision on whether thegovernment" met its burden of proof.

The court recognized that the Eighth Amendment does not requirethat the jury be told the consequences of their failure to agreeand that the government has a strong interest in a unanimousverdict — one way or the other — in a death penalty prosecution.See Jones v. United States, 527 U.S. 373, 381-82 (1999).However, the Supreme Court in Jones did not forbid this sort ofinstruction. Instead, it held that the constitution does notrequire it and that the Court would not exercise its supervisorypowers to require that it be given in every case.

This court chose to inform the jury of the consequences ofdeadlock for several reasons. First, viewing this instruction aspart of the overall instructions regarding deliberations, thecourt believed that the government's interest in a unanimousverdict was adequately protected. Second, informing the jurors ofthe consequences of deadlock emphasized the individualresponsibility of each juror. Ensuring that jurors were cognizantof this responsibility was also an important government interest.Third, the instruction also ensured that jurors undertook theirdeliberations accurately understanding the consequences of theiractions. Declining to instruct the jury on the consequences of adeadlock could result in jurors deliberating based on amisunderstanding of the law rooted in speculation and incorrectassumptions.43 XIX. ISSUES RELATING TO FEDERAL RULE OF CRIMINAL PROCEDURE 12.2

Prior to trial, a number of issues arose when Sampson gavenotice, pursuant to the recently revised Federal Rule of CriminalProcedure 12.2(b), that he intended to introduce expert evidencerelating to his mental condition at the penalty phase in thiscase. The former version of Rule 12.2 applied only when adefendant intended to offer mental condition evidence at theguilt phase. Prior to the Rule's amendment on December 1, 2002,several courts fashioned their own procedures in capital caseswhere a defendant's mental health might be an issue atsentencing. See, e.g., United States v. Allen, 247 F.3d 741(8th Cir. 2001), vacated on other grounds, 536 U.S. 953 (2002);United States v. Minerd, 197 F. Supp. 2d 272 (W.D. Pa. 2002);United States v. Edelin, 134 F. Supp. 2d 45 (D.D.C. 2001);United States v. Beckford, 962 F. Supp. 748 (E.D. Va. 1997);United States v. Haworth, 942 F. Supp. 1406 (D.N.M. 1996);United States v. Vest, 905 F. Supp. 651 (W.D. Mo. 1995).

As discussed below, some of the procedures employed by thosecourts are no longer permissible because the new Rule limits thecourt's discretion in certain areas. However, the new Rule doesnot resolve all of the procedural issues that may arise in acapital case.

A. SUFFICIENCY OF SAMPSON'S RULE 12.2 NOTICE

Pursuant to Rule 12.2(b), a defendant "must" give notice beforetrial if he "intends to introduce expert evidence relating to a mental disease or defect or any other mental condition ofthe defendant bearing on . . . the issue of punishment in acapital case. . . ." Fed.R. Crim. P. 12.2(b). If the defendantprovides such notice, "the court may, upon the government'smotion, order the defendant to be examined under proceduresordered by the court." Fed.R. Crim. P. 12.2(c)(1)(B).

On May 5, 2003, Sampson filed a Notice Pursuant toFed.R.Crim. P. 12(b) (the "Notice"), which stated that "he mayintroduce, at the penalty phase of this capital case, expertevidence relating to a mental disease or defect or any othermental condition bearing on the issue of punishment." Sampsonalso filed a Motion to Seal the Notice based on counsel's"concern[] that the public filing of the notice will yield mediaspeculation that Mr. Sampson is somehow going to `plead insanity'or argue that he was `crazy' at the time of the offense." Thecourt was not persuaded that the potential for prejudicialpretrial publicity could overcome the presumption that criminalproceedings should be open to public scrutiny. See UnitedStates v. Salemme, 985 F. Supp. 193, 195 (D. Mass. 1997). Thus,on May 22, 2003, the court unsealed the documents relating toSampson's Rule 12.2 Notice.

The government filed a Motion to Strike the Notice. The motionwas based on the fact that Sampson's Notice and the relatedmotion to seal expressed uncertainty about whether he wouldintroduce expert evidence at any penalty phase of this case and aconcern that, because of this equivocation, the government would bedeprived of its right to request an examination of the defendant.

On May 9, 2003, the court ruled that the Notice was sufficientto preserve Sampson's right to present mental condition evidenceas well as to trigger the government's right to request anexamination of Sampson. If the defendant had expressed a clearintention to offer expert evidence of his mental condition, hewould have been free to change his mind and withdraw the Notice.See Fed.R. Crim. P. 12.2(e) (evidence of a withdrawn intentionis not admissible against person who gave notice). Moreover, thedefendant himself acknowledged that his Notice had triggered thegovernment's right to request an examination of Sampson. SeeDef.'s Motion to Seal ("Where such a notice is filed, the courtmay, upon motion from the government, order the examination ofthe defendant `under procedures ordered by the court.'").Therefore, it was not necessary or appropriate to strike theNotice.

B. CONTENT OF SAMPSON'S RULE 12.2 NOTICE

The government moved for a mental health examination of thedefendant. See Fed.R. Crim. P. 12.2(c)(1)(B). The government,however, contended that Sampson's terse notice failed to providethe information the government's experts needed to conductmeaningful testing of the defendant. The government asked thecourt to order Sampson to supplement his Rule 12.2 notice toinclude (1) the nature of the proffered mental condition(s); (2)the identity and qualifications of the expert who would testify or whoseopinions would be relied upon; (3) a brief, general summary ofthe topics to be addressed that was sufficient to permit thegovernment to determine the area(s) in which its expert(s) mustbe versed; and (4) all medical records and test results relatingto mental health that would be the subject of the anticipatedexpert testimony. The defendant objected to providing moreinformation than Rule 12.2 explicitly required.

Following a hearing and further discussion between the parties,the court adopted the parties' agreement that defense counselwould supplement the defendant's Rule 12.2 Notice to include "thekinds of mental health professionals who have evaluated Mr.Sampson (e.g., forensic psychiatrist, neuropsychologist, clinicalpsychologist) as well as the specific nature of any testing thatthese experts have performed (e.g., MMPI-2, WAIS-2, etc.) in thecourse of their evaluations of Mr. Sampson."44

The revised Rule 12.2 resolved only some of the pertinentissues. First, the new Rule "extends" the previously existingnotice requirement for mental condition evidence at the guiltphase "to a defendant who intends to offer expert evidence,testimonial or otherwise, on his or her mental condition during a capitalsentencing proceeding." Fed.R. Civ. P. 12.2, 2002 AdvisoryCommittee Notes. The Advisory Committee cited approvingly toBeckford and Haworth, both of which grounded the need forpretrial notice in the government's right to develop rebuttalevidence fairly and efficiently. See Haworth,942 F. Supp. at 1407-08; Beckford, 962 F. Supp. at 759-60. This comports withCongress' rationale for enacting the prior version of Rule12.2(b): namely, without notice of the defendant's mentalcapacity claim, "the government would not have [] an opportunityto conduct the kind of investigation needed to acquire rebuttaltestimony." Fed.R. Civ. P. 12.2, 2002 Advisory Committee Notes;see United States v. Buchbinder, 796 F.2d 910, 915 (7th Cir.1986) (citing Conference Committee Notes, H.R. 94-414, 1983amendment to Rule 12.2(b)). Thus, "notice" in Rule 12.2 must beread, as it was before the 2002 revision, to require meaningfulnotice, serving the overall purpose of the Rule.

However, the need for meaningful notice must be balancedagainst the special considerations present when a capitaldefendant intends to use his mental condition at the sentencingphase only. To allow the government to use the results of adefendant's mental examination, or any information derived fromit, for a purpose other than rebuttal at sentencing would violatethe defendant's Fifth Amendment right against self-incrimination.See Estelle v. Smith, 451 U.S. 454 (1981). Moreover, the defendant's SixthAmendment right to the effective assistance of counsel could becompromised if defense counsel was required to reveal hisstrategy or to disclose materials he provided to his experts.See Beckford, 962 F. Supp. at 764 n. 16; United States v.Edelin, 134 F. Supp. 2d 45, 52 (D.D.C. 2001). The new Rule 12.2partially addresses these concerns by providing that: The results and reports of any examination conducted [by government experts] solely under Rule 12.2(c)(1) after [defendant's] notice under Rule 12.2(b)(2) must be sealed and must not be disclosed to any attorney for the government or the defendant unless the defendant is found guilty of one or more capital crimes and the defendant confirms an intent to offer during sentencing proceedings expert evidence on mental condition.Fed.R. Crim. P. 12.2(c)(2).

This procedure, while not constitutionally required, isdesigned to avoid litigation over whether the government hasimproperly made derivative use of the evidence. See 2002Advisory Committee Notes (citing Beckford and United States v.Hall, 152 F.3d 381, 398 (5th Cir. 1998)).

Before the enactment of the new Rule 12.2, the courts weresplit on the propriety of the government's first request, for"the nature of the proffered mental conditions(s)." CompareBeckford, 962 F. Supp. at 764 n. 15 (denying similar request)and Edelin, 134 F. Supp. 2d at 55-56 (denying similar request)with Haworth, 942 F. Supp. at 1409 (requiring notice toinclude "brief summary of each expert's conclusions") and UnitedStates v. Vest, 905 F. Supp. 651, 654 (W.D. Mo. 1995) (requiring notice to include "briefdescription of the professional's diagnostic conclusions"). Underthe new Rule, however, requiring the defendant to provide suchinformation is no longer permissible because "the nature of theproffered mental condition(s)" is essentially the same as the"results and reports" for which early disclosure is barred. SeeFed.R. Crim. P. 12.2(c)(2). As reflected in the parties'agreement, however, the government's other requests sought thetype of information that was necessary to enable the governmentto hire the right type of rebuttal experts and conduct the propertests. See Beckford, 962 F. Supp. at 764; Minerd,197 F. Supp. 2d at 277; Edelin, 134 F. Supp. 2d at 58. Thegovernment's requests were, therefore, meritorious.

C. DESIGNATION OF FIRE-WALLED ASSISTANT UNITED STATES ATTORNEYS

On June 17, 2003, the court, with agreement of the parties,designated two Assistant United States Attorneys ("AUSAs") fromthe District of New Jersey to serve as the "fire-walled" AUSAs inthis case. The fire-walled AUSAs were responsible for all issuesrelating to the Rule 12.2 mental health testing of Sampson,including any legal or logistical issues that had to be resolvedor brought to the court's attention. All further issues relatingto mental health examinations of Sampson for possible use at anypenalty phase were shielded from the prosecution team by a June17, 2003 Protective Order.45 The new Rule 12.2 does not resolve how, as a practical matter,the government experts are to conduct their mental healthexaminations while adhering to the prohibition against earlydisclosure to the prosecutors of the "results and reports" ofthose examinations. See Fed.R. Crim. P. 12.2(c)(2). It wasforeseeable that issues would arise during the course of theexaminations — such as non-cooperation by the defendant or theunexpected need to do additional testing — that would have to becommunicated to a government attorney, to defense counsel, and tothe court. However, if the government's experts had raisedpotential problems with the prosecution team the "results" of thegovernment's testing could be prematurely revealed and, at aminimum, there would have been a risk of disputes over whetherthe government impermissibly used the information for purposesother than rebuttal at sentencing.

Before the amendment to the Rule, at least one court haddesignated a "fire-walled" Assistant United States Attorney whoalone would have pre-penalty phase access to the government'sexperts' reports. See United States v. Allen, 247 F.3d 741,773-74 (8th Cir. 2001), vacated on other grounds, 536 U.S. 953(2002). Under the literal language of the new Rule 12.2, however, thereports and results cannot be revealed to "any attorney for thegovernment" unless and until the defendant's guilt is establishedand he confirms an intent to offer expert evidence on his mentalcondition during the penalty phase. Fed.R. Civ. P. 12.2(c)(2)(emphasis added). Moreover, the 2002 Advisory Committee Notes,citing Beckford, state that the Rule "adopts the procedure bysome courts to seal or otherwise insulate" the results.Fed.R.Civ. P. 12.2, 2002 Advisory Committee Notes; see alsoBeckford, 962 F. Supp. at 764 (report of government examinationfiled under seal and not disclosed to any government attorneyuntil defendant confirmed an intent to offer mental conditionevidence in mitigation). Arguably, the Committee implicitlyrejected other possible procedures that were in use in thedistrict courts before the Rule was amended, including thefire-wall procedure. See Allen, 247 F.3d at 773-74; Minerd,197 F. Supp. 2d at 276 (contrasting Beckford and Allen andchoosing Beckford procedure because it better protected thedefendant's constitutional rights).

Nevertheless, this court found that it was reasonable andconsistent with the goals of the new Rule 12.2 to interpret "anyattorney for the government" to mean any attorney for thegovernment in a particular prosecution except those attorneysrepresenting the government's interests solely in connection withits experts' testing. To avoid premature disclosure of the"reports and results" to the prosecution team, the court ruled that thefire-walled AUSAs in this case could not be members of theprosecution team and would not be allowed to join the prosecutionteam after any penalty phase had begun.46 This contrastedwith procedure in Allen, where the district court allowed oneassistant prosecutor to begin evaluating the results of theexaminations prior to the sentencing phase. This prosecutor wasnot allowed to divulge the results of the examinations to theother prosecutors until after the completion of the guilt phase,but was then allowed to join the prosecution team. Allen,247 F.3d at 772.

Rule 12.2's goal of avoiding delays in capital sentencingproceedings would not be served if any problems with thegovernment testing were not revealed until after the guilt phase.The defendant could suffer no prejudice from the fire-wallprocedure. Indeed, the procedure might provide the defendant withan even greater sense of security that his defense strategy —including the types of mental health experts he had hired —would remain hidden from the prosecution team.

On June 27, 2003, the court, with agreement of the parties,ordered that the fire-walled AUSAs read the mental health reportsprepared by the government expert(s) before filing the reportswith the court.

D. ADVANCE NOTICE TO THE DEFENDANT OF GOVERNMENT TESTING

On June 27, 2003, as agreed by defense counsel and thefire-walled AUSAs, the court ordered the fire-walled AUSAs toprovide defense counsel with at least five days' advance noticeof the professions of the government expert(s) who would examineSampson with respect to his mental condition and of the teststhat the expert(s) planned to perform. The defendant hadrequested this procedure for two reasons: so that defense counselcould make a challenge under Daubert v. Merrell DowPharmaceuticals, Inc., 509 U.S. 579 (1993), to any proposed testof "dubious scientific validity" and so that defense counselcould advise Sampson of the "scope and nature of the proceeding."Def.'s Mem. re: Conditions of Mental-Health Evaluation at 6-7(quoting Buchanan v. Kentucky, 483 U.S. 402, 424 (1987)).

The court was not persuaded by the defendant's Daubertargument. Because any dispute surrounding a test's admissibilitycould become moot if neither party attempted to admit the testresults, conducting a Daubert analysis before the test wasadministered would have wasted judicial resources and frustratedRule 12.2's goal of avoiding delay in capital cases.

Arguably, the Sixth Amendment right to counsel recognized inEstelle, 451 U.S. at 470-71, would be satisfied without fivedays' advance notice, because defense counsel had undoubtedlyalready told Sampson that he would have to re-take, with governmentexperts, any tests he had already taken with his own experts.See Buchanan, 483 U.S. at 423-25 (requiring only generalawareness of the types of test to be performed and how they couldconceivably be used against defendant). A defendant mightnevertheless benefit from legal advice. For example, if defensecounsel were given notice of the government's experts and thetests they intended to conduct, a defendant could decide towithdraw his notice rather than proceed with the possibility ofpresenting evidence concerning his mental condition. In addition,a defendant, with or without his lawyer's advice, might refuse toparticipate in certain tests or to answer certain questions. Suchconduct would subject him to the risk of forfeiting his right topresent evidence of his mental health. See Fed.R. Crim. P.12.2(d) ("If the defendant fails to give notice under Rule12.2(b) or does not submit to an examination when ordered underRule 12.2(c), the court may exclude any expert evidence from thedefendant on the issue of the defendant's mental disease, mentaldefect, or any other mental condition."). However, that is thedefendant's decision to make, and he must have his lawyeravailable to help him. See Estelle at 470 ("[A]ccused isguaranteed that he need not stand alone against the State at anystage of the prosecution, formal or informal, in court or out,where counsel's absence might derogate from the accused's rightto a fair trial.") (quoting United States v. Wade,388 U.S. 218, 226-27 (1967)).

There were also practical reasons to give defense counselnotice of the proposed exams, such as to better coordinate accessto Sampson between the government's experts and the defendant'sexperts. See Minerd, 197 F. Supp. 2d at 278 (establishingprocedures to address possibility that dueling tests could beincompatible with each other or would need to be scheduled farenough apart in order to obtain reliable results).

Finally, there was a certain symmetry to requiring thegovernment to give the defendant notice of the types of expertsit would employ and the testing to be done, because that is theinformation Sampson had to give to the government. Theoverarching purpose of Rule 12.2 is to place the parties on alevel playing field regarding the development of mental healthevidence.

E. TAPE-RECORDING OF GOVERNMENT'S TESTING

As also agreed by defense counsel and the fire-walled AUSAs,the court ordered that the mental health examinations of thedefendant conducted by government expert(s) be tape-recorded,subject to reconsideration if the fire-walled AUSAs moved toprohibit such a procedure. Originally, the defendant hadcontended that the Sixth Amendment right to counsel and the FifthAmendment privilege against self-incrimination required that thecourt allow a defense representative, including a defense expert,to be present during any clinical interviews or testing ofSampson. The defendant later indicated that having the interviewstape-recorded and the recordings provided immediately to defense counsel would be asatisfactory alternative. See United States v. Byers,740 F.2d 1104, 1172 (D.C. Cir. 1984) (Bazelon, J., dissenting) ("[A]taped record would facilitate constitutional aims withoutimpairing the interview process itself.") (footnotes omitted).

The defendant could not present expert testimony on his mentalcondition and yet refuse, on Fifth Amendment grounds, to answerquestions put to him by the government's experts. SeeFed.R.Crim. P. 12.2(d); cf. United States v. Bartelho,129 F.3d 663, 673-74 (1st Cir. 1997) (striking defendant's directtestimony because he refused to answer related questions oncross-examination). Defense counsel's presence at the testingwould not have been necessary to protect Sampson's FifthAmendment rights because Rule 12.2 provides that "[n]o statementmade by a defendant in the course of any examination conductedunder this rule . . . and no other fruits of the statement may beadmitted into evidence against the defendant in any criminalproceeding except on an issue regarding mental condition" onwhich the defendant has introduced expert evidence pursuant toRule 12.2. Fed.R. Crim. P. 12.2(c)(4) (emphasis added); see1983 Advisory Committee Notes (stating that Rule 12.2(c) waswritten to "reflect the Fifth Amendment considerations" addressedin Estelle); State v. Martin, 950 S.W.2d 20, 25 (Tenn. 1997)(concluding that Tennessee's version of Rule 12.2 "achieve[s] thebalancing of interests stressed" in Estelle and thus defendanthad no Fifth Amendment right to have defense counsel and experts present at government's examination).

Rule 12.2 does not shed much, if any, light on Sampson's SixthAmendment claim. While "a substantial majority of state andfederal jurisdictions have held that a defendant does not havethe right to counsel during a psychiatric examination," seeMartin, 950 S.W.2d at 26 (collecting cases), there is nocontrolling Supreme Court or First Circuit precedent, and thereare compelling arguments on both sides. See Byers,740 F.2d 1104 (D.C. Cir. 1984) (en banc) (five judges found no rightto counsel, four judges dissented and three judges would haverefused to consider the appeal on procedural grounds.)

However, regardless of whether a defendant has a constitutionalright to have counsel present at the government's examinations,the court has the discretion to order that a defenserepresentative be allowed to attend or that the testing berecorded. See Fed.R. Civ. P. 12.2(c)(1)(B) ("court may . . .order the defendant to be examined under procedures ordered bythe court"); United States v. Kaczynski, 1997 WL 668395, at *3(E.D. Cal. Oct. 22, 1997) (denying government request tovideotape government experts' examinations, but allowingexaminations to be audio-taped and permitting defense counsel tomonitor examinations via live audio or video feed); Commonwealthv. Baldwin, 686 N.E.2d 1001, 1005 (Mass. 1997) (holding thatwhile Sixth Amendment does not categorically demand that defensecounsel be allowed to attend or videotape government testing,court has discretion to allow either procedure). The court's exercise of its discretion may beinfluenced by factors such as the nature of the test, thepotential harm to the test's reliability if a defenserepresentative were to attend, and the reason defense counselwants to be present (e.g., to interrupt the testing if necessaryor simply to observe to gather information forcross-examination). In the circumstances of this case, thetape-recording of the examinations was a reasonable exercise ofthe court's discretion.

XX. ORDER

It is hereby ORDERED that this Memorandum shall be served onthe parties and made part of the public record in this case.

1. Some portions of the Memorandum and Order are based on thetranscripts of the court's oral decisions.

2. It was significant that at least one of the medicalexaminers, Dr. William Zane, indicated that he could use diagramswhich would more clearly identify the wounds in question. Indeed,when questioned about the photographs, he repeatedly referred tohis notes and diagrams in the course of his voir dire testimonyin order to understand what the photographs depicted.

3. The same analysis does not apply to the gateway findings ofintent, which are not part of the final weighing process under18 U.S.C. § 3593(e).

4. However, the Sixth Circuit has held in an unpublishedopinion that a particular defendant had not been prejudiced in acase where "the actual presentation of the evidence at trial wasaccomplished in such a manner as to inform the jury that thedisfigurement of the victim's body was due in part to the autopsyprocedures, and in part to decomposition and to rodentmutilation." United States v. Amey, 70 F.3d 1273, 1995 WL696680, at *4 (6th Cir. Nov. 20, 1995) (unpublished).

5. Although the Arizona Supreme Court found the admission ofthe photographs to be error, it declined to reverse theconviction as it found the error to be harmless in light of thedefendant's uncoerced confession. Id. at 1273.

6. The court also identified the testimony of the officersregarding the condition of the bodies when discovered as undulyprejudicial.

7. They would also have been relevant to whether the offenseswere committed in a heinous, cruel, or depraved manner in that itinvolved torture. However, when the court ruled on theadmissibility of the shirts on December 17, 2003, the court hadalready determined that there was not, even with the shirts,sufficient evidence to prove torture, so this factor was notsubmitted to the jury.

8. On November 13, 2003, the court ruled preliminarily thatthe shirts would be admissible, reserving its final decision tothe conclusion of the evidence. Therefore, foundational andexplanatory testimony was given about the shirts. However, theshirts themselves were not shown to the jury. If the court hadmade a final ruling that the shirts were admissible, they couldhave been used by the prosecution in its closing argument, andwould have been available to the jury during deliberations.

9. Display of the clothing of the dead is an age-old strategyfor inciting a desire for revenge. In Shakespeare's The Tragedyof Julius Caesar, act 3, scene 2, Marc Antony displayed the togaof the murdered Caesar during his funeral oration as a means ofencouraging the crowd to violence. Antony described each rip inthe toga: If you have tears, prepare to shed them now. You all do know this mantle. I remember The first time ever Caesar put it on; `Twas on a summer's evening, in his tent, That day he overcame the Nervii. Look, in this place ran Cassius' dagger through; See what a rent the envious Casca made; Through this the well-beloved Brutus stabb'd; And as he pluck'd his cursed steel away, Mark how the blood of Caesar follow'd it, As rushing out of doors, to be resolved If Brutus so unkindly knock'd, or no; For Brutus, as you know, was Caesar's angel. Judge, O you gods, how dearly Caesar loved him! This was the most unkindest cut of all;The crowd responded as desired: FIRST CITIZEN. O most bloody sight! SECOND CITIZEN. We will be revenged. ALL. Revenge! About! Seek! Burn! Fire! Kill! Slay! Let not a traitor live!Id. See also United States v. Rezaq, 132 F.3d 1121, 1138(D.C. Cir. 1998) ("`Blood will have blood'"; excessive depictionsof "gore may inappropriately dispose a jury to exactretribution") (quoting William Shakespeare, The Tragedy ofMacbeth, act 3, scene 4).

10. At several points in the trial, the victims' familiesagreed to watch portions of the trial from another courtroom,using a one-way video-conference, so that the jury would notobserve their foreseeable, anguished reactions to the evidence.

11. The Whitney murder was, however, an aggravating factorpresented to the jury.

12. By way of comparison, the victim impact testimony that wasactually presented to the jury took approximately 120 minutes. Asdescribed earlier, the tape was made as a memorial tribute toJonathan Rizzo rather than produced for the purpose of this case.It was fitting and lovely for its original, intended purpose, butnot appropriate for presentation to the jury in this case.

13. This issue first arose during the jury selection process.The court ordered the parties not to refer to other death penaltycases when questioning potential jurors unless the prospectivejuror first brought up another case, such as the Oklahoma Citybombing, and then to limit any questioning to the particular caseor cases mentioned by the prospective juror.

14. The government urged the court to adopt a construction ofthe appellate review provision of the FDPA similar to theconstruction of 18 U.S.C. § 3292(a) presented by the defendant,arguing on June 11, 2003 that when a statute "has a provisionthat says, including, and makes a list" the statute does notprohibit a court from considering things not on the list. June11, 2003 Tr. at 144 (citing 18 U.S.C. § 3595(b)).

15. The Rules were modified in 2002, but primarily onstylistic grounds.

16. Although the Court of Appeals for the Eighth Circuitreversed the district court's order for a new penalty phasetrial, it did not find that the district court lacked authorityto enter the order. Instead, the Eighth Circuit decided that thedistrict court had abused its discretion in allowing the motionfor a new trial. Lee, 274 F.3d at 497.

17. Webster occurred before the 2002 revision of the Rules,which made Rule 12.2 applicable to the penalty phase of a capitaltrial. Cf. Federal Rule of Criminal Procedure 12.2, AdvisoryCommittee Notes, 2002 Amendments ("Rule 12.2(c)(1)(A) reflectsthe traditional authority of the court to order competencyexaminations.").

18. The court instructed the jury that "[t]he government doesnot have to prove that the killing was done in an especiallyheinous, especially cruel, and especially depraved manner. If itproves any one of these three to all 12 of you beyond areasonable doubt, that's sufficient. But you do, all 12, have toagree in order to answer that question yes." Dec. 19, 2003 Tr. at34.

19. The court explained this concept to the jury when itinstructed the jury on this aggravating factor: The first statutory aggravating factor you should consider isquestion 3A, which asks whether it's proven that Mr. Sampsoncommitted the carjacking resulting in the death of PhilipMcCloskey in an especially heinous, cruel, or depraved manner inthat it involved serious physical abuse to Philip McCloskey. Thisis a question on which the legal definition of the relevant wordsis particularly important, because in the context of the FederalDeath Penalty statute, these words have a precise meaning thatmay not be obvious to you or, in fact, to me. But this is whatthey mean. Or I'll tell you in a moment what they mean. But Ithink you'll understand this instruction and, in fact, all of theinstructions, if I explain to you a primary purpose of statutoryaggravating factors, what the law is seeking to achieve here. Statutory aggravating factors are intended to assure that thedeath penalty is considered in only the most extreme cases and,also, that it is not applied in an arbitrary or inconsistentmanner. As I told you earlier, as a matter of law, premeditated murderalone is not sufficient to make the death penalty a sentencingoption. Something more is required. More specifically, one ofthose "something mores" with regard to murder is that a murdermust be committed in an especially heinous, cruel, or depravedmanner. However, a person of ordinary sensibility could fairlycharacterize almost every murder as heinous, cruel, or depraved,the Supreme Court has said. Therefore, something additional mustbe proven to make this a truly limiting factor and to assurereasonable consistency between cases. In this case, the lawprovides that the killing can only be especially heinous, cruel,or depraved if it involved serious physical abuse to Mr.McCloskey. In this case, "especially" has its usual meaning ofhighly or unusually great. Each of the other relevant terms has adefined meaning for the purposes of the Federal Death Penaltystatute. I'll now explain those meanings to you. "Heinous" means shockingly atrocious. In this case, a killingmay be found to be especially heinous only as a result of anyserious physical abuse that's proven. "Cruel" means the defendant intended to inflict a high degreeof pain. In this case, a killing may be found to be especiallycruel only as a result of any serious physical abuse that isproven. "Depraved" means that the defendant relished the killing orshowed indifference to the suffering of the victim. Once again,in this case, a killing may be found to be especially depravedonly as a result of any serious physical abuse that is proven.Dec. 19, 2003 Tr. at 31-33.

20. In its instructions to the jury, the court stated: "Serious physical abuse" has a particular legal meaning for the purpose of this case. To prove that the killing of Mr. McCloskey involved serious physical abuse, the government must prove that Mr. Sampson intended to inflict significant damage to Mr. McCloskey's body beyond what Mr. Sampson thought was necessary to kill him. In essence, the government must prove that Mr. Sampson intended to do more than kill Mr. McCloskey. It must prove that he also intended to abuse his body above and beyond what was necessary to kill him. Serious physical abuse can be inflicted either before or after death. The victim does not have to be alive at the time the serious physical abuse is inflicted.Dec. 19, 2003 Tr. at 33.

21. The court instructed the jury as follows: Question 3A requires two steps. First, you must determine whether it has been proven beyond a reasonable doubt that the killing of Mr. McCloskey involved serious physical abuse, as I just defined it for you. If you do not agree unanimously that this has been proven, you must answer question 3A no and proceed to question 3B. If you do agree unanimously that serious physical abuse has been proven, you must continue to the next step. In the second step, you must decide whether that serious physical abuse proves that the crime was committed in an especially heinous, an especially cruel, or especially depraved manner, as I defined those terms for you before. You may not consider any aspect of the crime other than proven serious physical abuse in determining whether the killing was especially heinous, especially cruel, or especially depraved. However, just because an offense involves serious physical abuse does not necessarily mean that it was committed in an especially heinous, cruel, or depraved manner. Rather, you must decide whether any proven serious physical abuse rendered the killing especially heinous, especially cruel, or especially depraved.Dec. 19, 2003 Tr. at 33-34.

22. The Sixth Edition of Black's Law Dictionary was notpublished until 1990.

23. The court also notes that the aggravating factor focuseson whether the offense — carjacking resulting in death — involvedtorture, not whether the killing itself involved torture.Further, the court agrees with the Tenth Circuit's ruling inUnited States v. Chanthadara, 230 F.3d 1237, 1262 (10th Cir.2000), which held that torture under the FDPA need not be"prolonged".

24. The court instructed the jury: Question 3B asks whether it has been proven beyond a reasonabledoubt to each and every one of you that Gary Sampson committedthe offense of carjacking, resulting in death, after substantialplanning and premeditation to cause the death of Jonathan Rizzo.This means the government must prove that Mr. Sampson engaged insubstantial planning and premeditation to kill Mr. Rizzo. Itwould not be enough for the government to prove only that Mr.Sampson engaged in substantial planning and premeditation tocommit the carjacking. In this case, "planning" means mentally formulating a methodfor doing something or achieving some end. "Premeditation" means thinking, deliberating about something,and deciding beforehand whether to do it. In this context,"premeditation" means that the plan to kill was formed afterdeliberation and reflection. Premeditation does not require proofthat the defendant deliberated about his crimes for anyparticular period of time. Premeditation does, however, requireproof that the defendant had some period of time to become fullyaware of what he intended to do and to think it over before heacted. In this case, "substantial" has its common sense meaningof large. So to find this aggravating factor, you must find that it isproven beyond a reasonable doubt that there was both substantialplanning and substantial premeditation. It would not besufficient if some of you found only substantial planning andsome of you found only substantial premeditation. Similarly, it would not be sufficient if you found there was asubstantial amount of planning, but only a small amount ofpremeditation. If you agree unanimously that the government has proven beyonda reasonable doubt that Gary Sampson committed the offense ofcarjacking resulting in death after substantial planning andpremeditation to cause the death of Jonathan Rizzo, you willanswer question 3B, all say yes. Otherwise, you will answer it,one or more jurors say no. Dec. 19, 2003 Tr. at 79-81.

25. The court instructed the jury as follows: Question 3B asks whether it's been proven to each and every oneof you beyond a reasonable doubt that Philip McCloskey wasparticularly vulnerable due to infirmity. In essence, the FederalDeath Penalty statute provides that a defendant is especiallyblameworthy if he murders someone who is particularly vulnerableto being killed because he has an infirmity which made him lessable to escape or resist attack than most people. In thiscontext, to be vulnerable means to be subject to being attackedor injured because of some weakness. To be particularlyvulnerable means to be especially or significantly vulnerable orto be vulnerable to a particularly high degree. An infirmity is a physical or mental weakness or flaw. To provethis aggravating factor, it must also be proven beyond areasonable doubt to each and every one of you that there was aconnection between Mr. McCloskey's alleged vulnerability and hisdeath. This means that any infirmity which you find made Mr.McCloskey particularly vulnerable must somehow have contributedto his death. However, the requirement of a connection betweenany proven infirmity and a person's death does not mean that theprosecution must prove that the defendant knew of Mr. McCloskey'salleged vulnerability and targeted him because of it. Rather, itmeans that the prosecution must prove that, once targeted, Mr.McCloskey was significantly more vulnerable to being killedbecause he had an infirmity. Dec. 19, 2003 Tr. at 34-36.

26. The jury was instructed: With regard to this alleged aggravating factor, it would not besufficient for the government to prove only that Mr. Sampsonkilled Mr. McCloskey, primarily or exclusively to steal his car.Almost every murder has some motive, and killing someone to gethis automobile does not make a murder sufficiently extreme totend to justify the death penalty as a matter of law. Similarly,in virtually every homicide, there's a witness who will besilenced and, therefore, an arrest that is potentially prevented. Thus, if this was one of the defendant's motives, but not hissole or primary motive for committing a murder, it is not enoughto constitute an aggravating factor. However, killing a person for the sole or dominant purpose ofpreventing him from reporting another crime to the authoritiesdoes make a defendant more blameworthy in a way that's relevantto deciding whether the death penalty is justified. This alleged aggravating factor focuses on the motivation forthe murder. Mere speculation that witness elimination was theprimary purpose of a killing is not sufficient to prove it.Moreover, standing alone, the fact that the victim could identifythe murderer does not prove beyond a reasonable doubt that theelimination of a witness was the sole or dominant motive for akilling. However, as I told you before with regard to intent,with certain things, circumstantial evidence may be particularlyhelpful, and you may consider the circumstantial, as well as thedirect evidence, in deciding motive. In addressing this, you mayconsider both any relevant direct and any circumstantial evidencefrom which the motive for the murder may be inferred. Ultimately, you must decide whether the direct andcircumstantial evidence proves to each and every one of youbeyond a reasonable doubt that the defendant killed Mr. McCloskeyfor the sole or primary purpose of preventing Mr. McCloskey fromreporting the attempted theft of his automobile to theauthorities. Dec. 19, 2003 Tr. at 41-43.

27. Dr. Michael Welner was engaged by the government toexamine Sampson pursuant to Federal Rules of Criminal Procedure12.2. The information that he obtained in that process could onlybe used in connection with his testimony on Sampson's mentalcondition. See Fed.R. Civ. P. 12.2(c)(4) ("[n]o statement madeby a defendant in the course of any examination conducted underthis rule . . . and no other fruits of the statement may beadmitted into evidence against the defendant in any criminalproceeding except on an issue regarding mental condition . . .").It could not be used on the issue of future dangerousness. Thefact that characterizing Sampson as a "psychopath" would haveentailed a high risk that, despite any limiting instruction, thejury would have considered Dr. Welner's testimony as tending toshow that Sampson would be dangerous in the future contributed tothe court's decision not to allow Dr. Welner to use this term inhis testimony. There were, however, other reasons for thisdecision as well.

28. The court instructed the jury as follows: In deciding whether this alleged aggravating factor has beenproven, you must understand and accept that if he is notexecuted, Mr. Sampson will spend the rest of his life in federalprison. It is not alleged that he'll escape and, therefore, be athreat to the public. There is no evidence to prove that thiscould or would occur. Therefore, you must consider only thepossible danger that Mr. Sampson might present to other inmatesand prison officials. * * * In deciding whether Mr. Sampson is likely to commit more thanone violent act in prison and to be a continuing and seriousthreat to others, you should consider the evidence you havereceived regarding the resources and policies . . . that theFederal Bureau of Prisons has to protect prison officials andinmates from prisoners who are perceived to present such athreat. Dec. 19, 2003 Tr. at 48-49.

29. The court instructed the jury as follows: To prove that something is likely means to prove that it isprobable that it will occur. This requirement that the government. . . prove that Mr. Sampson is likely to commit criminal acts ofviolence while in prison and be a continuing and serious threatto the lives and safety of others in prison is important. Theremay be some risk of violent crime associated with keeping anydefendant in prison for the rest of his life. However, for manydefendants, the level of risk would not be great enough toreasonably tend to justify a sentence of death. In this case, there's a particular degree of risk that theprosecution must prove before you can consider the future dangerthat Mr. Sampson might present in determining the appropriatesentence for his crime. The law requires that for you to considerMr. Sampson's alleged future dangerousness, the prosecution mustprove beyond a reasonable doubt to each and every one of you thatit is more probable than not that Mr. Sampson will commitcriminal acts of violence in the future, which would be acontinuing and serious threat to the lives and safety of prisonofficials. * * * This alleged aggravating factor requires you to make aprediction based on the evidence that several things are likelyto occur in the future. This does not, however, reduce theprosecution's burden of proving those things. . . . Dec. 19, 2003 Tr. at 47-49.

30. The court instructed the jury that "the prosecution mustprove that it's more probable than not that Mr. Sampson willcommit more than one act of violence in prison." Dec. 19, 2003Tr. at 48.

31. The court instructed the jury: A person who acts in self-defense has not committed a criminalact of violence. Use of force is justified if a person reasonablybelieves it is necessary to defend himself against the immediateuse of unlawful force. However, a person must use no more forcethan appears reasonably necessary in the circumstances. Dec. 19, 2003 Tr. at 48.

32. The court does not exclude the possibility that a casecould arise in which the circumstances of the crime aresufficient to demonstrate that the defendant has a specialability to engage in violence in a prison setting — for exampleif he killed or seriously injured someone in prison. This wouldadequately distinguish that defendant from other murderers.

33. Accordingly, the court instructed the jury not to considerother facts that otherwise might be relevant to the futuredangerousness inquiry such as the bank robberies the defendantcommitted. The court instructed the jury: [D]o not consider the evidence of the bank robberies or othercrimes Mr. Sampson previously committed in deciding this. Thebank robberies are separate aggravating factors. They should not,in effect, be double counted. Rather, you must decide whether itis proven that Mr. Sampson is likely to commit criminal acts ofviolence in the future, which would be a continuing and seriousthreat to the lives and safety of prison officials and inmates,based solely on any proven attempted escape, threats to harmothers, or possession of dangerous weapons by Mr. Sampson whilein custody. Dec. 19, 2003 Tr. at 46-47.

34. Some of the Bureau of Prisons policies to which Dr.Cunningham referred while testifying are codified in the Code ofFederal Regulations. It is court's duty to inform the jury whatthe law is. See United States v. Johnson, 223 F.3d 665, 671(7th Cir. 2000); Marx & Co., Inc. v. Diners' Club Inc.,550 F.2d 505, 508 (2d Cir. 1977). Consequently, the court explainedCFR provisions to the jury, but permitted Dr. Cunningham totestify as to BOP program statements that do not have the forceof law.

35. The parties provided the court with a transcript of partsof Dr. Cunningham's testimony in United States v. Bin Laden.See Mot. in Limine to Preclude Cunningham Testimony, Ex. 2.

36. The slide was titled "The Relationship of Offense Historyto Prison Adjustment". It contained three bullet points: "Pastviolence in the community is not strongly or consistentlyassociated with prison violence."; "Current offense, priorconvictions and escape history are only weakly associated withprison misconduct."; and "Severity of offense is not a goodpredictor of prison adjustment." At the bottom of the slide, insmall print, were the names of two studies sponsored by theDepartment of Justice which support these statements.

37. However, as the court acknowledged on December 16, 2003,the court may have a duty to define relevance more broadly formitigating factors than for aggravating factors to ensure thatthe jury is able to consider all constitutionally relevantmitigating factors.

38. For example, with respect to one of the mitigatingfactors, the court instructed the jury: Question 5H, which is on page 9, addresses the allegedmitigating factor that Mr. Sampson called 911 and surrenderedhimself to the Vermont State Police after the offenses charged inthis case occurred. Once again, the parties have stipulated thatthis occurred, and you must accept that it did. So this isanother one where you will answer, number of jurors who say yes,12, but then you will each have to decide for yourself whatweight to give that fact in any ultimate decision that you haveto make. Dec. 19, 2003 Tr. at 60.

39. The jurors were instructed: In addition to the mitigating factors specifically raised bythe defendant and listed on the verdict form, the law permitseach of you to consider anything about the circumstances of theoffense or anything about Mr. Sampson's background, record, orcharacter, or anything else relevant that you individuallybelieve weighs against the imposition of the death penalty. The law does not limit your consideration of mitigating factorsto those that have been articulated in advance of yourdeliberations. Therefore, if there is any mitigating factor thatwas not argued by the attorneys for the defendant which any juroron his or her own or with others finds to be established by apreponderance of the evidence, that juror is free to consider itin his or her sentencing determination. So after question 5Q, you are asked to identify any suchadditional mitigating factors that one or more of youindependently finds to exist by a preponderance of the evidenceand indicate how many of you find that mitigating factor to beproven. However, it is not necessary for you to list a mitigatingfactor in order to consider it. But if you're able to articulateit, discuss it with each other, and if you think of somethingthat is a mitigating factor that reasonably weighs in favor of alife sentence, you should write it in . . ., one of these spaces,and write down the number of jurors who find that mitigatingfactor to be proven by a preponderance of the evidence. Dec. 19, 2003 Tr. at 64-65.

40. In this case involving multiple offenses taking place atdifferent times, it was important to focus the jury on thedefendant's mental state at the time of each offense for purposesof the statutory mitigating factors. It was possible that thedefendant was significantly impaired for one offense, but not theother.

41. The fact that remorse developed later rather than soonermay properly influence the weight a juror assigns to thismitigating factor.

42. On December 19, 2003, the court instructed the jury that: The law does not define what is sufficient to make death theappropriate penalty. Here, the law relies on each of you as arepresentative of our community to consult your conscience anddetermine what is sufficient to justify Mr. Sampson's execution.Thus, your decision as to what the appropriate sentence is willdepend in part on what is sufficient for you. If you find thatthe government has proven that the aggravating factors slightlyoutweigh the mitigating factors and that is sufficient for you tofind that death is the appropriate penalty, you may properly votefor death. On the other hand, even if the government has proven to youthat the aggravating factors greatly outweigh the mitigatingfactors, you may properly decide that this is not sufficient tojustify a sentence of death because, for you, even more isrequired for you to find that a man should die. However you personally define sufficiency, the prosecution mustconvince you beyond a reasonable doubt that the aggravatingfactor or factors sufficiently outweigh the mitigating factors tomake death the appropriate penalty in this case. As I told you earlier, this is a heavy burden. More than astrong probability is required. You must be certain beyond anyreasonable doubt that a death sentence should be imposed beforevoting for it. Death is, of course, the ultimate irreversible punishment. Youmust not sentence Gary Sampson to die unless you are convincedbeyond a reasonable doubt that death is the appropriatepunishment. December 19, 2003 Tr. at 69-71.

43. The court instructed the jury as follows: If, after making all reasonable efforts, at the conclusion of your deliberations on a particular count, you have not reached unanimous agreement on whether the prosecution has proven that the death penalty is justified, you will not be a hung jury. And in contrast to the conventional criminal case, this case will not have to be tried again because the jury did not reach a unanimous verdict. Rather, if you are unable to reach a unanimous verdict on whether the government has proven the death penalty is justified on a particular count, the law provides that I must sentence Mr. Sampson to life in prison without possibility of release on that count, and I will do so.Dec. 19, 2003 Tr. at 72.

44. The parties also agreed that: (1) the government mustpreserve all notes taken during its experts' examinations; and(2) use and disclosure of the reports will be governed by Rule12.2(c)(2)-(4) and (e).

45. The June 17, 2003 Protective Order stated: For the Reasons described at the lobby conference on June 16,2003, it is hereby ORDERED that: 1. Marc Agnifilo and Kevin Walsh, Assistant United StatesAttorneys from the District of New Jersey, will serve as the"fire-walled Assistant United States Attorneys" in this case. 2. All documents, records, and information disclosed by thedefendant to the fire-walled Assistant United States Attorneysand all documents, records, and information obtained or developedby any expert working with them are subject to the followingrestrictions. See Fed.R. Crim. Pro. 12.2, 16(d). a) The documents, records, and information shall be disclosed only to: (i) Mr. Agnifilo; (ii) Mr. Walsh; (iii) the individuals in the District of New Jersey and in the Department of Justice in Washington, D.C. necessary to assist them in this case; and (iv) any expert(s) working with them. Each of the foregoing is an "Authorized Individual" for the purpose of this Order. b) The foregoing documents, records, and information shall not be disclosed, directly or indirectly, to United States Attorney Michael Sullivan, to Assistant United States Attorneys Frank Gaziano, George Vien or John Wortmann, Jr., or to any other attorney, staff member, agent, expert or consultant working for or with the United States Attorney for the District of Massachusetts. c) The foregoing documents, records, and information shall be used by each Authorized Individual solely for the purpose of this case. Each Authorized Individual shall not divulge the documents, records or information to anyone who is not an Authorized Individual. d) Submissions to the court referring to the foregoing documents, records, or information shall be filed (i) at least temporarily under seal, and (ii) be served only on defense counsel and the fire-walled Assistant United States Attorneys. e) Each Authorized Individual shall file, under seal, a statement under oath representing that he or she has read this Order and recognizes that a willful violation of it may be deemed a civil and/or criminal contempt. f) If an Authorized Individual learns of a possible violation of this Order, he or she shall inform the court promptly.

46. Although it is, in theory, possible that a fire-walledAUSA could work in the same office as the prosecutors, in thiscase the government wisely chose to use fire-walled AUSAs from adifferent district to minimize the possibility of any inadvertentbreach of the fire-wall.

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