APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Mark L. Wolf, U.S. District Judge]
Mark T. Quinlivan, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellant.
William E. McDaniels, with whom Jennifer G. Wicht, Cadence Mertz, Williams & Connolly LLP, J. Martin Richey, Elizabeth L. Prevett, Federal Public Defender's Office, and Susan K. Marcus were on brief, for appellee.
Before Lynch, Chief Judge, Selya and Lipez, Circuit Judges.
SELYA, Circuit Judge.
Few accouterments of our criminal justice system are either more fundamental or more precious than the accused's right to an impartial jury. That right is threatened when — as in this case — juror dishonesty occurs during the voir dire process yet is not discovered until well after final judgment has entered on the jury's verdict. But finality is also valuable, and not every instance of juror dishonesty requires setting aside a previously rendered verdict.
In its present posture, this case poses important questions about when and under what circumstances the belated discovery of juror dishonesty during the voir dire process demands vacatur of a jury verdict. The stakes are high — the jury here recommended a death sentence — and the cases that populate this arcane corner of the law are muddled.
The architecture of these appeals is easily described. Gary Lee Sampson, the defendant in the underlying criminal case, is on death row following his conviction on two counts of carjacking (death resulting), a penalty-phase hearing in which the jury voted to recommend capital punishment, and an unsuccessful direct appeal. See United States v. Sampson (Sampson I), 486 F.3d 13 (1st Cir. 2007), cert. denied, 553 U.S. 1035 (2008). In an effort to undo his sentence, the defendant brought a habeas petition, see 28 U.S.C. § 2255, and confronted the district court with a claim that juror dishonesty during the voir dire process antecedent to the penalty-phase hearing deprived him of an impartial jury. Following an evidentiary hearing, the district court agreed; it vacated the death sentence and ordered a new penalty-phase hearing. United States v. Sampson (Sampson IV), No. 01-10384, 2012 WL 1633296, at *15 (D. Mass. May 10, 2012); United States v. Sampson (Sampson II), 820 F.Supp.2d 151, 202 (D. Mass. 2011). The government seeks immediate review of this decision.
We first address nuanced questions that cast doubt upon our appellate jurisdiction. Concluding, as we do, that we can proceed to the merits of the juror dishonesty claim, we adopt the district court's findings of fact, articulate the proper legal framework, array the district court's findings of fact against that framework, and hold that the defendant's sentence must be set aside and a new penalty-phase hearing conducted.
We rehearse here only those facts that are needed to tee up this proceeding. The reader who hungers for more details should consult the litany of earlier opinions in this case. See, e.g., Sampson I, 486 F.3d 13; Sampson II, 820 F.Supp.2d 151; United States v. Sampson (Sampson III), 820 F.Supp.2d 202 (D. Mass. 2011); see also McCloskey v. Mueller, 446 F.3d 262 (1st Cir. 2006).
In 2001, the defendant engaged in a crime spree that took him up the eastern seaboard. The spree included a series of bank robberies in North Carolina and a botched attempt to surrender to the Federal Bureau of Investigation. See McCloskey, 446 F.3d at 264. The defendant then perpetrated two Massachusetts carjackings that led to the slaying of the carjacked drivers (Phillip McCloskey and Jonathan Rizzo). In each instance, the defendant hitched a ride with the victim, forced the victim at knifepoint to drive to a secluded area, and committed murder.
Following these gruesome incidents, the defendant fled to New Hampshire in Rizzo's vehicle, forcibly entered a house, and strangled the caretaker (Robert Whitney). He then drove Whitney's vehicle to Vermont, abandoned it, and resumed hitchhiking. Another Good Samaritan, William Gregory, gave him a lift. To repay his kindness, the defendant attempted to force Gregory at knifepoint to drive to a secluded spot. This time, however, the intended victim escaped. The defendant later called 911, surrendered to the authorities, and confessed.
On October 24, 2001, a federal grand jury sitting in the District of Massachusetts charged the defendant with two counts of carjacking, death resulting. See 18 U.S.C. § 2119(3). A superseding indictment, deemed necessary to comply with Ring v. Arizona, 536 U.S. 584, 609 (2002), reiterated these charges; and the government served a notice of intent to seek the death penalty under the Federal Death Penalty Act (FDPA), 18 U.S.C. § 3593(a).
In due course, the defendant admitted guilt with respect to both counts. The district court empaneled a death-qualified jury to consider the punishment to be imposed. See id. § 3593(b)(2)(A); see also United States v. Green, 407 F.3d 434, 436-37 (1st Cir. 2005) (discussing "death-qualified jury" requirements).
The voir dire lasted seventeen days and involved an extensive effort to ensure that each juror could — and would — decide the defendant's fate solely on the evidence. As a preliminary matter, hundreds of potential jurors were required to answer under oath seventy-seven written questions, carefully designed to elicit information concerning possible bias and life experiences that might have subconsciously affected an individual's ability to consider the defendant's sentence objectively. Many venirepersons were excused based on their written responses. Those who passed muster were interrogated by the court and the parties.
Prospective jurors were repeatedly directed to answer all questions accurately and honestly. All were advised that, upon request, responses concerning sensitive subjects (whether written or oral) would be kept out of the public record.
After individual questioning, the district court excused potential jurors for cause for a wide variety of reasons, including pretrial exposure to information about the case, attitudes that raised questions about impartiality, emotional life experiences comparable to matters that would be aired at trial, and responses that lacked candor. Eventually, the court seated a jury of twelve, along with six alternates. During the six-week penalty-phase hearing, the court learned that two jurors had answered voir dire questions inaccurately and replaced them with alternates.
The penalty-phase hearing turned in large measure on the existence vel non of statutory and non-statutory aggravating factors and mitigating factors. See 18 U.S.C. §§ 3592(a), (c), 3593(c). In the end, the jury unanimously recommended that the defendant be sentenced to death on both counts. The district court followed this recommendation and imposed a sentence of death. See id. §§ 3553, 3594; United States v. Sampson, 300 F.Supp.2d 275, 278 (D. Mass. 2004). The court also denied a flurry of post-trial motions. United States v. Sampson, 332 F.Supp.2d 325, 341 (D. Mass. 2004).
On direct review, we affirmed the sentence. Sampson I, 486 F.3d at 52. The Supreme Court denied the defendant's ensuing petition for a writ of certiorari. See Sampson v. United States, 553 U.S. 1035 (2008).
On June 25, 2008, the district court appointed new counsel to handle post-conviction proceedings. See 18 U.S.C. § 3599(a)(2). After some procedural skirmishing, the defendant filed a petition to vacate, set aside, or correct the judgment. See 28 U.S.C. § 2255. Pertinently, the defendant claimed that he was deprived of the right to have his sentence decided by an impartial jury because three jurors, designated for the sake of anonymity as Jurors C, D, and G, had falsely answered material voir dire questions.
The district court prudently convened an evidentiary hearing to determine the scope and severity of the allegedly inaccurate voir dire responses. This hearing was held over three non-consecutive days. The first session concerned all three of the contested jurors; the second and third sessions focused exclusively on Juror C.
After careful consideration, the district court concluded that the inaccuracies contained in Juror D's and Juror G's responses were unintentional errors that did not justify setting aside the results of the penalty-phase hearing. Sampson II, 820 F.Supp.2d at 197-201. The court reached a different conclusion as to Juror C, finding that she had repeatedly and intentionally provided dishonest responses to important voir dire questions. Id. at 192-97. The court stated that truthful answers would have resulted in Juror C's excusal for cause during voir dire because the court would have "inferred bias." Id. at 165-66, 194-97. Consequently, the court set aside the defendant's sentence,  id. at 181-97, and on May 10, 2012, ordered a new penalty-phase hearing, Sampson IV, 2012 WL 1633296, at *15.
At the government's behest, the court subsequently certified the following questions for immediate appeal under 28 U.S.C. § 1292(b): "(1) whether [McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548 (1984)] requires proof of actual bias or implied bias to obtain relief; and, if not, (2) whether [the district] court correctly stated the McDonough test." Sampson IV, 2012 WL 1633296, at *15.
Recognizing that its right to prosecute an immediate appeal of the district court's order was freighted with uncertainty, the government went down three different but complementary roads. First, it sought to pursue an appeal of the decision as a final order under 28 U.S.C. § 1291 and/or 18 U.S.C. § 3731. Second, it sought to pursue an interlocutory appeal under the aegis of 28 U.S.C. § 1292(b). Third, the government argued that, should we find the decision not otherwise immediately appealable, it nonetheless ought to be reviewed through an exercise of advisory mandamus. See id. § 1651. We have consolidated all of these initiatives.
Because resolution of the jurisdictional conundrum is logically antecedent to any discussion of the juror dishonesty claim, we start there.
II. APPELLATE JURISDICTION
The most conventional assurance of appellate jurisdiction is the existence of a final decision. See id. § 1291 (vesting courts of appeals with jurisdiction over "appeals from all final decisions of the district courts"). The government asseverates that the district court's decision vacating the defendant's sentence and granting him a new penalty-phase hearing is a final decision and, thus, is immediately appealable. The government is wrong.
The beacon by which we must steer is the Supreme Court's decision in Andrews v. United States, 373 U.S. 334 (1963). There, the Court held that an order in a section 2255 proceeding that vacated a previously imposed sentence and required a new sentencing hearing was not a final decision and, thus, not immediately appealable. Id. at 339-40. Finality does not attach until the defendant is sentenced anew. Id.
The government contends that Andrews is not controlling because the decision appealed from here is not an order for resentencing but, rather, a grant of a new trial which, in a section 2255 case, is immediately appealable. See United States v. Gordon, 156 F.3d 376, 378-79 (2d Cir. 1998) (per curiam); United States v. Allen, 613 F.2d 1248, 1251 (3d Cir. 1980). In support, the government suggests that a penalty-phase hearing in a capital case is more akin to a traditional trial than to a resentencing. It emphasizes that a jury must be empaneled and certain aggravating factors must be proven beyond a reasonable doubt. See 18 U.S.C. § 3593(b)-(c); Ring, 536 U.S. at 602, 609.
To be sure, such similarities do exist, but they are superficial. In any event, the question of whether an order for a new penalty-phase hearing in a capital case should be characterized as a grant of a new trial as opposed to an order for resentencing is not open to us. In Andrews, the Supreme Court stated squarely that "[w]here, as here, what was appropriately asked and appropriately granted was the resentencing of the petitioners, it is obvious that there could be no final disposition of the § 2255 proceedings until the petitioners were resentenced." 373 U.S. at 340. We are bound by this precedent. See Figueroa v. Rivera, 147 F.3d 77, 81 n.3 (1st Cir. 1998).
Given this holding, it is indisputable that the grant of a new penalty-phase hearing in a capital case is not a final disposition of the proceedings. "In general, a judgment or decision is final for the purpose of appeal only when it terminates the litigation between the parties on the merits of the case, and leaves nothing to be done but to enforce by execution what has been determined." Parr v. United States, 351 U.S. 513, 518 (1956) (internal quotation marks omitted). A decision ordering a new penalty-phase hearing in a capital case does not satisfy this benchmark. The litigation regarding the defendant's sentence will not terminate until after the conclusion of the penalty-phase hearing and the court sentences him anew.
In a variation on this theme, the government suggests that the order for a new penalty-phase hearing must be final because the last thing that the judge does in an FDPA case is to order a penalty-phase hearing (after all, under most circumstances, the FDPA requires the jury to determine the sentence). Thus, the government's suggestion goes, an order granting a new penalty-phase hearing is necessarily final.
This suggestion is hopeless. It may be a jury that determines the sentence, but it is the judge who must empanel the jury, preside over the new penalty-phase hearing, and impose the sentence. See 18 U.S.C. §§ 3593(d), 3594. Such a series of steps to be taken falls comfortably within the ambit of section 2255. See 28 U.S.C. § 2255(b).
In determining that no final decision has yet been rendered, we do not write on a pristine page. Two other courts of appeals have confirmed the applicability of Andrews to capital penalty-phase hearings and concluded that no final disposition exists until the new hearing is complete and the court imposes a new sentence. See United States v. Hammer, 564 F.3d 628, 632-36 (3d Cir. 2009); United States v. Stitt, 459 F.3d 483, 485-86 (4th Cir. 2006). We agree with these courts.
We likewise reject the government's entreaty that the Criminal Appeals Act (CAA), 18 U.S.C. § 3731, which permits an appeal from an "order . . . granting a new trial" in a criminal case, furnishes a basis for jurisdiction. The Andrews Court specifically held that the CAA "has no applicability" to section 2255 proceedings. 373 U.S. at 338. Andrews is binding on us.
This brings us to the government's assertion that we have jurisdiction under 28 U.S.C. § 1292(b). By its terms, section 1292(b) confers discretionary appellate jurisdiction over certain interlocutory orders not otherwise appealable. But this avenue is available only when an "order involves a controlling question of law as to which there is substantial ground for difference of opinion and  an immediate appeal from the order may materially advance the ultimate termination of the litigation." Id. The district court found that these conditions had been satisfied and certified questions to us under section 1292(b). ...