FOR A WRIT OF MANDAMUS TO AND APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Leo T.
Sorokin, U.S. District Judge]
Mogin, with whom William E. McDaniels, Jennifer G. Wicht,
Williams & Connolly LLP, Michael Burt, Law Office of
Michael Burt, Danalynn Recer, and Gulf Region Advocacy Center
were on brief, for appellant.
T. Quinlivan, Assistant U.S. Attorney, with whom Carmen M.
Ortiz, United States Attorney, was on brief, for appellee.
Lynch, Selya, and Lipez, Circuit Judges.
Lee Sampson pled guilty in September 2003 to two counts of
the crime of carjacking resulting in death. In December 2003,
following a penalty-phase trial, a jury sentenced Sampson to
death under the Federal Death Penalty Act ("FDPA")
for those crimes. See 18 U.S.C. §§
3591-3599. His death sentence was later vacated due to jury
taint, and his case returned to the district court for
further proceedings. The government filed an amended notice
that it sought the death penalty. That notice listed the
factors that in its view justified the death penalty, largely
tracking the original notice. Sampson challenged several
aspects of that notice.
now both petitions for a writ of mandamus, and appeals from
an order by the district court denying his motion in limine
to dismiss or strike two non-statutory aggravating factors
the prosecution intends to present in a second penalty-phase
proceeding under the FDPA. Those factors, which were also included
in the original notice, are: (1) future dangerousness, and
(2) obstruction of justice by means of murder to conceal the
theft and attempted theft of victims' automobiles. The
new penalty-phase trial is scheduled to start on September
14, 2016. We have expedited this appeal.
argues that because the jury in his first penalty-phase
proceeding did not find unanimously that the government
proved these two non-statutory aggravating factors beyond a
reasonable doubt, their introduction at the new penalty-phase
proceeding is barred by the Double Jeopardy Clause of the
Constitution, including its collateral-estoppel component.
Under Supreme Court precedent, Sampson's claims must be
rejected. We affirm the district court's order.
facts of the case are familiar from earlier opinions, and we
recite only those relevant to this appeal. See United
States v. Sampson (Sampson
I), 486 F.3d 13 (1st Cir. 2007); United States
v. Sampson (Sampson II), 820
F.Supp.2d 151 (D. Mass. 2011); United States
v. Sampson (Sampson III), 820
F.Supp.2d 202 (D. Mass. 2011); United States
v. Sampson (Sampson IV), 58
F.Supp.3d 136 (D. Mass. 2012); Sampson v.
United States (Sampson V), 724 F.3d 150
(1st Cir. 2013).
murdered three people over the course of a week in 2001. He
murdered Philip McCloskey in Massachusetts on July 24, 2001,
and attempted to steal McCloskey's car; murdered Jonathan
Rizzo in Massachusetts and stole Rizzo's car on July 27;
and murdered Robert Whitney in New Hampshire on July 30.
August 8, 2002, a grand jury, in a second superseding
indictment, indicted Sampson on two counts of carjacking
resulting in death. The government then filed a notice of
intent to seek the death penalty, as required by the FDPA.
See 18 U.S.C. § 3593(a).
the FDPA, after the government has filed a notice of intent
to seek the death penalty, the criminal trial divides into
two phases, one focused on guilt (the "guilt
phase") and the other on sentencing (the "penalty
phase"). See id. § 3593(b). If the
defendant is convicted of a predicate capital offense in the
guilt phase, the government then must prove beyond a
reasonable doubt in the penalty phase that the defendant was
at least 18 years old, committed one of four acts with the
requisite mental state, and committed at least one of sixteen
statutory aggravating factors. Id. §§
3591(a), 3592(c), 3593(c)-(d).
government satisfies these prerequisites and proves that the
defendant is eligible for death, the jury must decide whether
death is justified by weighing any proven mitigating factors
with the proven aggravating factors, including both statutory
and non-statutory aggravating factors. Id. §
3593(e). "The term 'non-statutory aggravating
factor' is used to 'refer to any aggravating factor
that is not specifically described in 18 U.S.C. §
3592.'" Sampson I, 486 F.3d at 44 n.14
(quoting Jones v. United States,
527 U.S. 373, 378 n.2 (1999)). The jury must submit special
findings on any aggravating factors, 18 U.S.C. §
3593(d), and must find unanimously that the government has
proven any aggravating factors, statutory or non-statutory,
beyond a reasonable doubt, id. § 3593(c)-(d).
pled guilty to both charges of carjacking resulting in death.
The first penalty-phase hearing followed. At the close of the
penalty phase, the jury found unanimously for the death
penalty. For each count, the jury submitted a special verdict
form that contained separate findings on each alleged
statutory and non-statutory aggravating factor. The
jury's special verdict form stated that it found
unanimously that the government had proven two statutory
aggravating factors and a number of non-statutory aggravating
factors for each charge against Sampson.
to this appeal, the jury did not find unanimously that the
government had proven beyond a reasonable doubt two alleged
non-statutory aggravating factors, future dangerousness and
murder to obstruct justice, for either charge. That is, the
unanimity requirement had not been met as to those two
factors. It is from this circumstance that Sampson constructs
his argument in this appeal.
being sentenced to death, Sampson appealed, and this panel
affirmed. Sampson I, 486 F.3d at 52. Rehearing en
banc was denied. United States v.
Sampson, 497 F.3d 55, 56 (1st Cir. 2007).
2009, Sampson petitioned for a new trial under 28 U.S.C.
§ 2255. The district court, finding that a juror had
lied during the voir dire process in answering questions
about her ability to be impartial, Sampson II, 820
F.Supp.2d at 192-97, vacated Sampson's sentence,
id. at 202. The government appealed, and we took
jurisdiction and affirmed on the basis of juror misconduct.
Sampson V, 724 F.3d at 170.
further held that the juror's lies during voir dire
concealed significant evidence of bias that would have
provided grounds to excuse her for cause. Id. at
168. We held that Sampson "was deprived of the right to
an impartial jury and is entitled to a new penalty-phase
hearing." Id. The case returned to the district
court for further proceedings in 2013.
March 2014, the government filed an amended notice of intent
to seek the death penalty. The amended notice again alleged
for both counts of Sampson's conviction, inter alia, the
two non-statutory aggravating factors -- that (1) Sampson is
"likely to commit criminal acts of violence in the
future" and pose a danger to prison officials and
inmates ("future dangerousness"); and (2) that
Sampson murdered Philip McCloskey and Jonathan Rizzo "to
prevent [the victims] from reporting the carjacking[s] to
authorities" ("murder to obstruct justice") --
which the original sentencing jury found that the government
failed to prove beyond a reasonable doubt to the satisfaction
of all jurors. The amended notice also stated that the
government would use new evidence from Sampson's conduct
in prison from 2004 to the present in order to prove future
15, 2015, Sampson moved to dismiss or strike a number of the
statutory and non-statutory aggravating factors from the
amended notice. He was partially successful. As to the issues
on appeal, Sampson argued that the renewed allegations of the
non-statutory aggravating factors of future dangerousness and
obstruction of justice violated the Double Jeopardy
Clause's retrial and collateral-estoppel components. The
government opposed the motion.
district court denied the motion to dismiss or strike the two
non-statutory aggravating factors. It held that the Double
Jeopardy Clause does not preclude alleging the non-statutory
factors at the new penalty-phase hearing because the original
penalty-phase jury's findings on those factors did not
constitute an "acquittal." And it held that the
factors are not barred by the collateral-estoppel component
of the Double Jeopardy Clause, because "the jury verdict
was tainted by a juror who lied about her ability to be
impartial, " and because the jury's rejection of the
factors was "not essential to the judgment of
then moved for a certificate of appealability under 28 U.S.C.
§ 2253(c). The district court, citing Abneyv.United States, 431 U.S. 651, 662, 659
(1977), reasoned that its rejection of Sampson's motion
to dismiss or strike the two non-statutory aggravating
factors was a "pretrial order rejecting [a] claim of
former jeopardy, " and so was one of the "small
class of cases that [are] beyond the confines of the
final-judgment rule." The district court granted
Sampson's motion and issued a certificate of
appealability on the following question: "Whether the
Double Jeopardy Clause bars the government, at Sampson's
new penalty phase hearing, from seeking to prove two
non-statutory aggravating ...