Opinion

United States v. Sampson

335 F. Supp. 2d 166
2004 U.S. Dist. LEXIS 17111
2004 WL 1906872

Court: District Court, D. Massachusetts
Filed: Aug 26, 2004
Status: Published
Author: Wolf
On the bench: Wolf
Cited by: 65 cases
Authority: More cited than 87.1%

applying FDPA and concluding that, because Congress required that the defendant act knowingly in order for some of the statutory aggravators to apply, but did not expressly include a knowledge requirement in 18 U.S.C. § 3592(c)(11), applying when the victim was "particularly vulnerable due to old age, youth, or infirmity," Congress did not then intend to require proof that the defendant knew that his victim was vulnerable before that aggravating factor could apply

How later courts described this case

applying FDPA and concluding that, because Congress required that the defendant act knowingly in order for some of the statutory aggravators to apply, but did not expressly include a knowledge requirement in 18 U.S.C. § 3592(c)(11), applying when the victim was "particularly vulnerable due to old age, youth, or infirmity," Congress did not then intend to require proof that the defendant knew that his victim was vulnerable before that aggravating factor could apply
contrasting that procedure with the decision in a case applying Rule 12.2 as it existed prior to the 2002 amendments, United States v. Allen, 247 F.3d 741, 772 (8th Cir.2001), vacated on other grounds, 536 U.S. 953, 122 S.Ct. 2653, 153 L.Ed.2d 830 (2002), which had permitted the prosecutor handling the defendant’s mental examinations to join the prosecution team for the “penalty phase”
holding that the Act demands that the fact finder consider any mitigating factor, including those other than the defendant’s character and record and the circumstances of the offense
applying Rule 29 standard to penalty phase proceedings though Rule is inapplicable by its own terms, because the constitutional mandate of heightened reliability directs that a death sentence must not be imposed on lesser information than a guilt verdict

Written by the judges who cited it.

The opinion

MEMORANDUM AND ORDER CONCERNING TRIAL RULINGS

WOLF, District Judge.

TABLE OF CONTENTS

I. INTRODUCTION.173

II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY.174

III. THE FEDERAL DEATH PENALTY ACT.175

IV. PROCEDURAL PROTECTIONS AFFORDED BY 18 U.S.C. § 3432.176

V. EVIDENTIARY RULINGS RELATING TO PHOTOGRAPHS.177

A. GENERAL STANDARDS.177

B. APPLICATION OF STANDARDS TO GOVERNMENT’S PROFFERED EVIDENCE.178

VI.EVIDENTIARY RULINGS RELATING TO BLOODY CLOTHING.184

VII. VICTIM IMPACT EVIDENCE.

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A. GENERAL STANDARDS. CO CO rH

B. APPLICATION OF STANDARDS TO THIS CASE Cr-00 rH

VEIL EVIDENCE RELATING TO OTHER CAPITAL PROSECUTIONS.193

IX. THE COURT’S AUTHORITY TO REVIEW THE SUFFICIENCY OF THE GOVERNMENT’S EVIDENCE.198

*173

X. ESPECIALLY HEINOUS, CRUEL OR DEPRAVED MANNER OF COMMITTING THE OFFENSE . to o to

A. SERIOUS PHYSICAL ABUSE. to o ^

B. TORTURE... to o 05

C. SUFFICIENCY OF THE EVIDENCE AS TO • SERIOUS PHYSICAL ABUSE .:. o CM

D. SUFFICIENCY OF THE EVIDENCE AS TO TORTURE .... 00 o CM

XI. SUBSTANTIAL PLANNING AND PREMEDITATION . to O ÍD

A. DEFINITION. to O o

B. SUFFICIENCY OF THE EVIDENCE...'.. to H H

XII. VULNERABLE VICTIM. CM •H CM

A. DEFINITION. CO T — ( CM

B. SUFFICIENCY OF THE EVIDENCE.■. ■'ñt T — i CM

XIII. OBSTRUCTION OF JUSTICE.■. to I —

A. DEFINITION. to I —

B. SUFFICIENCY OF THE EVIDENCE. to H 05

XIV. FUTURE DANGEROUSNESS. to H -3

A. JURY INSTRUCTIONS. to to CO

B. EVIDENTIARY RULINGS RELATING TO GOVERNMENT’S PROFFER.. to to

C. SUFFICIENCY OF THE EVIDENCE. to to cn

D. EVIDENTIARY RULINGS RELATING TO DR. MARK CUNNINGHAM.'. to to 05

XV. MITIGATING FACTORS AS QUESTIONS OF LAW OR FACT.228

XVI. JURY INSTRUCTIONS RELATING TO MITIGATING FACTORS. cm CO CM

A. STATUTORY MITIGATING FACTORS RELATING TO MENTAL CONDITION-. cm CO CM

B. NON-STATUTORY MITIGATING FACTORS RELATING TO MENTAL CONDITION. co CO CM

C. OTHER MITIGATING FACTORS. ^ CO CM

XVII. INSTRUCTIONS RELATING TO THE WEIGHING PROCESS.234

XVIII. INSTRUCTIONS RELATING TO FAILURE OF THE JURY TO REACH A UNANIMOUS VERDICT.-.240

XIX. ISSUES RELATING TO FEDERAL RULE OF CRIMINAL PROCEDURE 12.2.'...:. CM

A. SUFFICIENCY OP SAMPSON’S RULE 12.2 NOTICE. CM

B. CONTENT OF SAMPSON’S RULE 12.2 NOTICE . Cm CM

C. DESIGNATION OF FIRE-WALLED ASSISTANT UNITED STATES ATTORNEYS. CO "'st

D. ADVANCE NOTICE TO THE DEFENDANT OF GOVERNMENT TESTING.:.:. to -"ñF CM

E. TAPE-RECORDING OP GOVERNMENT’S TESTING CO "’ñP CN

XX. ORDER.248

I. INTRODUCTION

On January 29, 2004, pursuant to the jury’s verdict, this court sentenced the defendant, Gary Sampson, to be executed on each of two counts of carjacking resulting in death in violation of 18 U.S.C. § 2119 (3).

*174

See

300 F.Supp.2d 275 (D.Mass.2004). This death sentence is the first imposed in the District of Massachusetts or any other district within the First Circuit since Congress and the President reinstituted a federal death penalty in 1988. Consequently, as this case was being tried, the court found that there were few binding precedents interpreting and applying the Federal Death Penalty Act, 18 U.S.C. §§ 3591-3598 (the “FDPA”).

This Memorandum and Order summarizes and explains some of the decisions the court made during the pretrial proceedings and the trial. These include: (1) a clarification of the procedural protections concerning jury selection afforded the defendant in a capital case under 18 U.S.C. § 3432 ; (2) evidentiary rulings applying the standard set forth in 18 U.S.C. § 3593 (c); (3) a discussion of the court’s power to strike an aggravating factor because the government failed to introduce sufficient evidence to prove the factor beyond a reasonable doubt; (4) explanations of rulings and jury instructions relating to aggravating factors; (5) explanations of rulings and jury instructions relating to mitigating factors; (6) explanations of general FDPA jury instructions; and (7) explanations of rulings relating to the provisions of Federal Rule of Criminal Procedure 12.2 that address issues relating to a capital defendant’s mental condition.

The court is issuing a separate Memorandum and Order concerning its oral decisions on Sampson’s post-trial motions.

The court is issuing this Memorandum and Order to memorialize some of its decisions and for the instructive value they may have in view of the limited body of capital case law in the First Circuit. It is not, however, intended to be a substitute for the oral rulings issued from the bench as reflected in the transcripts of the proceedings.

Unlike the transcripts, the Memorandum and Order does not include all of the rulings made at trial or all of the reasoning articulated by the court at the time the rulings were made. Instead, the Memorandum and Order focuses on those aspects of the court’s rulings that are most likely to be at issue in future FDPA cases. To the extent, if any, that there appears to be an inconsistency between the summaries in the Memorandum and the court’s oral explanations for its decisions, the oral explanations should generally be regarded as more accurate and complete.

II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

After committing a series of bank robberies in North Carolina in May, June and July 2001, Sampson fled to the Boston area. On July 23, 2001, Sampson called the Boston office of the Federal Bureau of Investigation (the “FBI”) in an attempt to turn himself in. However, his call was disconnected and, although he waited to be arrested, the FBI failed to arrive and arrest him.

See United 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 subsequently murdered McCloskey with a knife and attempted to steal his automobile.

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

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On July 30, 2001, Sampson encountered Robert Whitney in New Hampshire. Sampson murdered Whitney by tying him to a chair and strangling him to death. Sampson then stole Whitney’s automobile.

On July 31, 2001, William Gregory picked up Sampson, who was hitchhiking in Vermont. Sampson pulled a knife and ordered Gregory to drive down a dirt road. Gregory, however, jumped out of his automobile, which Sampson drove away. Gregory reported that his car had been stolen. Shortly thereafter, Sampson called 911 to surrender.

Sampson was arrested by the Vermont State Police and quickly confessed his crimes, including the murders of McClos-key, Rizzo, and Whitney. He gave an additional tape-recorded confession to two Massachusetts State Police troopers who traveled to Vermont to question Sampson. On August 1, 2001, Sampson was brought back to Massachusetts, where he gave another tape-recorded confession to troopers of the Massachusetts State Police.

Later that month, Sampson was charged by the Commonwealth of Massachusetts for the murders of McCloskey and Rizzo. On October 24, 2001, Sampson was also indicted in this federal case. The Massachusetts charges against Sampson were dismissed in deference to this federal prosecution. Sampson offered to plead guilty and accept a federal sentence of life in prison without the possibility of parole. The Department, of Justice did not accept this offer. Rather, on November 19, 2002, the Attorney General filed a Notice of Intent to seek the death penalty in this case.

Sampson filed several pretrial motions challenging the constitutionality of various provisions of the FDPA. In

United States v. Sampson,

245 F.Supp.2d 327 (D.Mass.2003)

(Sampson I)

and

United States v. Sampson,

275 F.Supp.2d 49 (D.Mass.2003)

(Sampson II),

the court rejected these challenges.

On December 23, 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 on September 18, 2003 and was completed on October 27, 2003. On December 23, 2003, the jury returned its verdicts requiring that the death penalty be imposed on both counts.

See

18 U.S.C. § 3594 .

III. THE FEDERAL DEATH PENALTY ACT

The unique structure of the FDPA has been discussed at length in several published opinions. As this court wrote in August 2003:

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

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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 , 107 S.Ct. 1756 , 95 L.Ed.2d 262 (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 defendants in capital cases beyond those afforded defendants in non-capital cases. 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 the veniremen, and of the witnesses to be produced on the trial for proving the indictment, stating the place of abode of each venireman and witness.” The statute further provides that the lists of veniremen and witnesses “need not be furnished if the court finds by a preponderance of the evidence that providing the list may jeopardize the life or safety of any person.”

There is some debate as to whether “place of abode” means “township of resi

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dence” as opposed to street address.

Compare United 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 to disclose addresses)

with United States v. Insurgents,

2 U.S.(2 Dall.) 335 , 1 L.Ed. 404 , 26 F. Cas. 499 (C.C.D.Pa.1795) (No. 15,443) (Patterson, J.) (rejecting list that specified only state or county 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 than home address, satisfied the statute. “Place of abode” does not mean a business address. Accordingly, the court ordered that the government submit a new witness list that included the home address of every witness it intended to call in its case-in-chief. In order to accommodate the government’s legitimate concerns about making the home addresses of law enforcement officers part of the public record of this case, the court allowed the government to file a witness list with addresses subject to an August 21, 2003 Protective Order and a separate list with the addresses redacted for the public record.

The court concluded that street addresses rather than townships were required because a township may be inadequate to identify a person with a common name.

Cf. United States v. Hurley (In re Globe Newspaper Co.),

920 F.2d 88 , 93 n. 6 (1st Cir.1990) (“In the case of many familiar names, an address as well as the name is 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 of Evidence 403, which provides that relevant evidence “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” The FDPA standard is more restrictive. It permits exclusion if probative value is outweighed by the danger of prejudice, while the Rule 403 standard allows exclusion only if the probative value is

substantially

outweighed by the danger of prejudice. However, the FDPA eliminates considerations of undue delay, waste of time and needless presentation of cumulative evidence from the court’s calculus.

In this case, the government proffered a large number of photographs of the victims, taken both at the time their bodies were discovered by the police and at the time of their autopsies. Sampson objected to many of these photographs, arguing that they were unnecessary, cumulative, and unfairly prejudicial. The defendant also argued that the pictures’ probative value was diminished as they reflected a physical condition different from that at the time of the offense: the bodies had begun to decompose and showed the effects of insect activity.

Although this issue arises frequently during trial under the Rule 403 standard, appellate courts have generally been reluctant to overturn determinations by district

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courts that photographs, even particularly “gruesome” photographs, are not unfairly prejudicial and therefore are admissible. The matter is one that has largely remained within the discretion of the trial court. The First Circuit has said that determinations under Federal Rule of Evidence 403 will be overturned only in “extraordinarily compelling circumstances.”

United States v. Rodriguez-Estrada,

877 F.2d 153, 155-56 (1st Cir.1989).

Appellate courts have generally held that when the photographs are probative of a relevant fact, even if not necessarily a disputed one, admission of gruesome photographs under Rule 403 is not reversible error. As the Tenth Circuit has said, “[gjruesomeness 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 (8th Cir.2002) (in capital case, admission of graphic photos of bloody corpse not abuse of discretion, as they corroborated testimony regarding victim’s murder and established that it was heinous and depraved);

United States v. Rezaq,

134 F.3d 1121, 1138 (D.C.Cir.1998) (autopsy photographs relevant to determination of “force and violence” in hijacking case and corroboration of government theory regarding systematic executions);

United States v. Cruz-Kuilan,

75 F.3d 59, 61 (1st Cir.1996) (lacerations on victim’s head corroborated government theory regarding stray bullets);

United States v. Treas-Wilson,

3 F.3d 1406, 1410 (10th Cir.1993) (autopsy and crime scene photographs, though graphic, were relevant to determination of defendant’s intent or state of mind);

United States v. De Parias,

805 F.2d 1447, 1453-54 (11th Cir.1986) (photograph of badly decomposed body of kid-naping victim admissible to show identity 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 medical examiner’s testimony regarding sequence of wounds);

United States v. McRae,

593 F.2d 700, 707 (5th Cir.1979) (photograph showing victim’s head wounds had bearing on defense of accident);

cf. Ferrier v. Duckworth,

902 F.2d 545, 548-49 (7th Cir.1990) (habeas court criticized state court for admitting photographs of the victim’s splattered blood, in color and enlarged to twelve square feet, when the killing was not denied, as the defendant argued intoxication or insanity; court stated that “[t]he only conceivable reason for placing them in evidence was to inflame the jury”);

Rezaq,

134 F.3d at 1138 (close-up photo of section of victim’s skull, with skin removed, carried risk of significant prejudice; court stated that “photographs of gore may inappropriately dispose a jury to exact retribution”).

B. APPLICATION OF STANDARDS TO GOVERNMENT’S PROFFERED EVIDENCE

Over the course of several hearings in October and November 2003, the court considered the defendant’s objections to the government’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 into account its distinctive features. Sampson, having pled guilty to the charged offenses, did not contest that he had committed the murders of McClos-key, Rizzo and Whitney. Further, as the photographs were to be presented first at the penalty phase and not, as in most capital trials, originally at the guilt phase, they were relevant only insofar as they

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related to a gateway mental state or an aggravating or mitigating factor.

The photographs, and the injuries depicted in them, were relevant to proving the gateway mental states. Even though Sampson had pled guilty, the jury was required to make a finding regarding intent before it could begin considered the aggravating or mitigating factors. 18 U.S.C. § 3591 (a)(2) states that a defendant 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 made during the penalty phase; a guilty plea, just like a conviction after trial, does not extinguish this requirement.

intent can be difficult to prove, as it often cannot be shown directly. ■ The jury frequently can only make inferences, informed by the evidence, as to what a defendant was thinking at any given time’ Even a defendant’s statements regarding his intent are not necessarily conclusive, as they may be the product of deceit,- forgetfulness, or mental illness. Therefore, although the jury could have drawn on the information given by Sampson in his confessions, any additional information regarding the nature of the wounds inflicted by him could have been important circumstantial evidence of his intent to cause death. While medical diagrams would have informed the jury about the size and location of the wounds, the photographs might have allowed the jury to obtain a better understanding of what occurred and how Sampson attacked his victims.

By having more information about the encounter and the actions of the defendant, the jurors might 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 the extent of the damage caused by the defendant),

vacated on other grounds,

536 U.S. 953 , 122 S.Ct. 2653 , 153 L.Ed.2d 830 (2002).

However, because the gateway factors were not seriously in dispute, there was a real danger that the admission of extensive graphic and shocking evidence that was relevant only to those gateway factors would be unfair to the defendant. If this had been the only relevance, it would have been clear that the photographs should, in large part, have been excluded. However, the photographs were also relevant to at least one alleged aggravating factor that

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was significantly in dispute, namely, that “the offenses were committed in an especially heinous, cruel, or depraved manner in that they involved torture or serious physical abuse to the victims.”

See

18 U.S.C. § 3592 (c)(6). As discussed in Part X,

infra,

a finding of especially heinous, cruel, or depraved under either the torture or the serious physical abuse prong would require a finding not merely of the damage done to the victims’ bodies or mental anguish inflicted, but also a finding of the defendant’s intent. For a finding of especially serious physical abuse, the jury would have to find that the defendant had the intent to inflict physical abuse to the victims’ bodies beyond that necessary to kill the victims. For a finding of torture, the jury would have to find that the defendant inflicted physical or mental abuse to a conscious victim for one of three specific purposes: either to punish, to extract information or a confession, or for sadistic pleasure.

Again, there are relatively few kinds of evidence that could be helpful in determining whether the requisite intent existed. The words of a defendant, as recorded in a confession, may be helpful but not determinative: both the prosecution and the defense argued at various points that Sampson’s statements were inaccurate in many of their details. In determining whether the defendant had the necessary intent to meet the especially heinous, cruel, or depraved factor, the jury would have been aided by any evidence that would have enabled it to visualize the encounter between the defendant and his victims, to visualize the state the victims were in at the time the defendant left, and, therefore, to understand better the defendant’s likely intention.

One consideration under the FDPA that is not present in the usual criminal trial is the necessity of giving weight to a factor if the jury reaches the point where it must decide “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.” 18 U.S.C. § 3593 (e). During a criminal trial to determine guilt, once a fact is established beyond a reasonable doubt, additional proof regarding that fact may be unnecessary and cumulative. However, under the FDPA, the existence of a fact or factor is not all that the jury must consider. It must also consider the

weight

to be given to that factor. In this context, even if medical diagrams and oral testimony would have been sufficient to establish that the offense was committed in an especially heinous, cruel, or depraved manner in that it involved torture or serious physical abuse, photographs had the potential to be valuable for the jury in determining how much weight to give that factor.

Sampson made two particular objections to the photographic evidence. First, he argued that the photographs were unfairly prejudicial because of their gruesome nature. He argued that any probative value they possessed paled in comparison to their inherently prejudicial nature, which would serve to inflame the jury.

See, e.g., Spears v. Mullin,

343 F.3d 1215, 1228 (10th Cir.2003) (“[E]ven if the photographs were minimally relevant to the heinous, atrocious, or cruel aggravator, the photographs’ prejudicial effect outweighed then-probative value.”). Second, Sampson argued that the photographs did not accurately represent the victims’ bodies at the time he left them. These objections were analyzed together under the 18 U.S.C.

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§ 3593(c) framework, which instructs the court to compare the probative value of a piece of evidence with the danger of unfair prejudice, confusion, and misleading of the jury-

Both objections go to the danger of unfair prejudice; the second objection also goes to the limited probative value of the photographs. To the extent the photographs depicted a situation significantly different from, that at the time the defendant left the crime scene, they were less helpful in drawing inferences about his actions and state of mind at that time.

But see United States v. Sarracino,

340 F.3d 1148, 1169 (10th Cir.2003) (rejecting a challenge that the body of the victim had changed between the time of the crime and the time of the photograph, the court wrote, “The bloodied head and face of the victim gives an

indication,

although admittedly an imperfect one, of how the victim must have appeared to the defendants at the end of the fight. Without these photos, the prosecution would have been handicapped in its ability to convey the nature and extent of the beating to the jurors.”).

The most significant post-mortem changes were to the size and shape of the wounds, which might have expanded as the skin loosened over time, and the presence of insects on the body, the activities of which also caused considerable skin discoloration. The government argued that the defendant could not fairly complain about the decomposition of his victims’ bodies when he contributed to the level of decomposition by concealing the bodies from the authorities. While it is possible that in some cases the fact that the defendant concealed the body of the victim and purposefully left it to decompose could be an aggravating factor, that factor was not alleged in this case and, therefore, could not be considered by the jury.

See

18 U.S.C. § 3593 (a). The decomposition of the body was not relevant to the especially heinous, cruel, or depraved aggravating factor requiring serious physical abuse or torture at the time of the murder. Moreover, when faced with photographs showing the effects of decay, decomposition, and insects, the jury might well have been led to consider the murders to have been worse or the defendant more deserving of the death penalty. This danger could not have been cured entirely by a limiting instruction.

As the Supreme Court of Kentucky phrased the issue, in a case where the body of the victim had been stored for months in a freezer:

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.1991) (citations omitted).

Similarly, Justice Thurgood Marshall wrote, in dissenting to a denial of certiora-ri of a capital case from Oklahoma where photographs of a victim’s body which had been retrieved from a river one month after a murder were introduced at the penalty phase:

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[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 , 109 S.Ct. 193 , 102 L.Ed.2d 163 (1988) (Marshall, J., dissenting from denial of cert.) (citations omitted).

In addition to some photographs in which insects were visible on the bodies of the victims, there were a number of photographs in which portions of the victims’ bodies were colored dark red or brown. This caused an additional risk of confusion or of misleading of the jury. To the untrained eye, this discoloration appeared to be the product of blood loss. However, the voir dire testimony of the medical examiner, Dr. William Zane, established that the discoloration was caused by an entirely different, but equally unpleasant process: the decay caused by the enzymes that are produced by insect larvae as they travel across the corpse, eating away the outer layers of skin. Introduction of these photographs would either have served to mislead the jury concerning the amount of blood that had been lost or have required a detailed and particularly disturbing explanation of the processes of decomposition, an explanation that would likely have aroused the passions of the jurors. The defendant would have been forced to choose between two unfair alternatives: either allow the jury to believe that more blood was lost or be forced to bring out the details of the insect activity. Again, however reprehensible anyone might find the fact that victims’ bodies decomposed as a result of being abandoned by the defendant is wooded areas, the government did not allege that fact as an aggravating factor in this case and the jury could not properly have considered it as one.

See

18 U.S.C. § 3593 (a).

A similar situation was considered by the Supreme Court of Arizona in

State v. Spreitz,

190 Ariz. 129 , 945 P.2d 1260, 1271-73 (1997). There, in a capital case, a number of autopsy photographs were 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 100 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 that admission of the photographs was error, noted that the medical examiner was able to testify clearly about the wounds to the victim’s body, and that the photographs provided “little or no additional aid in that regard.”

Id.

at 1273. The court held that the “danger of unfair prejudicial effect on the jury substantially outweighed the photographs’ probative value.”

Id.

Also, in

Tobler v. State,

688 P.2d 350 (Okla.Crim.App.1984), the Court of Criminal Appeals of Oklahoma reversed a capital conviction, in part based on the admission of photographs depicting the “gruesome work of nature” on victims’ bodies, including decomposition and maggot activity.

Id.

at 355 . The court not

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ed that “[i]t is difficult to ascertain any probative value of the evidence,” given that the defendant had admitted to the killings, stipulated to the information in the photographs, and the medical examiner testified as to the cause of death.

Id.

at 355-56 . The photographs “provided nothing in the 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 was cognizant not only of the balancing test for information established by 18 U.S.C. § 3593 (c), but also of the due process concerns in the case generally. A defendant’s due process rights have been violated when, in view of the totality of the circumstances, he has not received a fundamentally fair trial.

See, e.g., Spears,

343 F.3d at 1225-26 . Such a violation could arise out of a single action or piece of evidence. It could also arise from the cumulative effect of a number of pieces of evidence in combination. In the present case, the photographs might individually have been admissible, but might have amounted to a denial of due process when considered together. Similarly, the photographs themselves might not have caused a due process violation, but could, in combination with other types of evidence that involve the danger of unfair prejudice, have contributed to a due process violation. Therefore, the court was required to consider the other evidence in this case, including the type and amount of victim impact evidence, when deciding which photographs to admit.

See, e.g., United States v. Rivera,

900 F.2d 1462, 1477 (10th Cir.1990) (“Cpurts have also found fundamental unfairness when error is considered in conjunction with other prejudicial circumstances within the trial, even though such other circumstances may not individually rise to the level of error.”).

In light of these concerns, the court admitted only a small subset of the proffered photographs. The photographs admitted were those that most closely depicted the condition of the victims at the time they were left by the defendant. They primarily showed detailed views of individual wounds rather than pictures of the general condition or blood loss of the victim’s bodies. Redacted from the photographs that were admitted were particularly gruesome portions of the images, including those depicting discoloration of the victim’s body and insect activity.

Finally, one photograph was admitted after the portion of it which showed a crucifix was redacted. This photograph was of Whitney, tied to a chair in the bathroom where Sampson killed him. A crucifix hung on the wall next to the bathroom. The crucifix had little or no probative value. It did not relate to Wfiiitney’s character since he was killed in someone else’s house. Further, the juxtaposition of the crucifix with Wdiitney’s strangled and bound body could have been seen as providing religious overtones to the murder. Inclusion of the crucifix would have run the risk of affecting one or more jurors in an unpredictable, but unfairly prejudicial way.

See Taylor v. State,

640 So.2d 1127, 1135 (Fla.Dist.Ct.App.1994) (videotape of victim’s home that included panning shots of a crucifix on the wall “invite[d] an emotional response”);

cf. Commonwealth v. Chambers,

528 Pa. 558 , 599 A.2d 630, 644 (1991) (establishing a

per se

rale against religious invocations in prosecutorial closing arguments in capital cases). As the inclusion of the crucifix would have provided no relevant information, redaction was appropriate to avoid the risk of unfair prejudice.

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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 and December 17, 2003, the court considered the introduction of the shirts that McCloskey and Rizzo were wearing when Sampson killed them. These shirts had been cut off the victim’s bodies by police investigators and preserved. They were mounted in plexiglass that allowed both the front and the back of the shirt to be viewed. In addition to the cuts made by the police, the shirts were ripped in numerous places that corresponded with the stab wounds inflicted on McCloskey and Rizzo. They also were heavily stained with blood. The shirt of one of the victims had several folds in which insects had laid a large number of eggs.

The shirts were relevant in the same way that many of the gruesome photographs were germane. They could have been used by the jury in considering whether the offenses were committed in an especially heinous, cruel, or depraved manner in that it involved serious physical abuse.

The shirts could have vivified the victims’ struggles for the jury in a way that might not have been accomplished merely by oral testimony and medical diagrams. By having a more vivid picture of the struggle, the jury might have been better able to make inferences about the defendant’s intent, an element necessary for establishing serious physical abuse. In the same way, the shirts might also have assisted the jury in giving weight to the heinous, cruel, or depraved aggravator, if the jury had found that factor to have been proven.

The court recognized that the shirts were not the best evidence of the specific size and number of wounds inflicted on the victims. The rips in the shirts might have been larger than the actual stab wounds. Likewise, if a shirt were doubled over at the time of the attack, a single knife thrust could have made two or more rips in the shirt. These dangers, however, could have been reduced or eliminated by testimony elicited on direct or cross-examination regarding the manner in which a knife attack causes holes in a garment.

In the context of this case, the court ruled that the shirts were inadmissible under the 18 U.S.C. § 3593 (c) standard and the due process clause.

Courts have often admitted the bloody clothing of the victim in homicide prosecutions.

See, e.g.,

Annotation, “Admissibility, in Homicide Prosecution, of Deceased’s Clothing Worn at Time of Killing,” 68 A.L.R.2d 903 , § 2[a], 1959 WL 12853 (1959) (“In homicide prosecutions, the general rule is that the clothing worn by the victim at the time of the killing is admissible in evidence, even where its introduction may be prejudicial to the accused, if it tends to shed light upon a material inquiry in the case.”). However, in the context of this capital

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case, there were unique considerations that indicated that exclusion was appropriate.

While the shirts were, as described above, relevant to material issues in this case, it is likely that the jury would not have considered them solely on those issues. During the trial, the prosecution produced evidence, especially through the confessions of the defendant, that was more directly probative of the intent element of serious physical abuse. Rather than as circumstantial evidence of intent, the jury would likely have regarded the shirts as powerful and immediate symbols of the victims and the brutality of their murders.

See, e.g., Frazier v. Mitchell,

188 F.Supp.2d 798, 826 (N.D.Ohio 2001) (with bloody clothing before the jury, prosecutor stated in closing that the victim “is not here. We have bloody clothing to represent her”; the court viewed this as “unprofessional, improper and excessive”). The presence of the shirts in the jury room during deliberations could have exerted an intense emotional force unconnected to their legitimate probative value. The display of the shirts during closing argument could have induced the jury to respond in a purely emotional way.

Further, use of the shirts would have presented the danger of introducing inappropriate victim impact information. At several times during the course of the case, members of the victim’s families seated in the gallery were, understandably, visibly and audibly upset by the testimony and other evidence. The court attempted to ensure that the jurors considered only the victim impact evidence that was offered from the witness stand and were not influenced by reactions they observed in the gallery.

At one point, when McClos-key’s bloody shirt was displayed in open court, but not in the presence of the jury, there were audible gasps from the gallery. In this context, the court feared the repetition of the events described in

State v. Steele,

120 Ariz. 462 , 586 P.2d 1274, 1277-78 (1978). In that case, during the display of a murder victim’s clothing, his widow become so overwrought that she rushed from the courtroom, creating a disturbance which was noticed by all the jurors. The defendant objected, saying that the prosecution was “in effect, ‘waving the bloody shirt.’ ” On appeal, the Supreme Court of

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Arizona agreed, saying that the shirts had been introduced “only to arouse and inflame the emotions of the jury.”

Id.

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

VII. VICTIM IMPACT EVIDENCE

A. GENERAL STANDARDS

Payne v. Tennessee,

501 U.S. 808 , 111 S.Ct. 2597 , 115 L.Ed.2d 720 (1991), the Supreme Court reversed its prior decisions and held that the Eighth Amendment does not erect a

per se

bar to the introduction of victim impact evidence. Under

Payne ,

the prosecution may offer at capital sentencing “a quick glimpse of the life which a defendant chose to extinguish.”

Id.

at 822 , 111 S.Ct. 2597 (quoting

Mills v. Maryland,

486 U.S. 367, 397 , 108 S.Ct. 1860 , 100 L.Ed.2d 384 (1988)). Additionally, victim impact evidence may illustrate “the loss to the victim’s family and to society which has resulted from the defendant’s homicide.”

Id.

Thus, the prosecution also may offer evidence of the impact of the victim’s loss on others.

Id.

at 836, 111 S.Ct. 2597 . (Souter, J., concurring) In essence, in holding that the Constitution erects no

per se

bar to victim impact evidence, the Supreme Court concluded that “[vjictim impact evidence is simply another form or method of informing the sentencing authority about the specific harm caused by the crime in question.”

Id.

at 825 , 111 S.Ct. 2597 . Victim impact evidence is admissible under the constitution unless it “is so unduly prejudicial that it renders the trial fundamentally unfair” in violation of a defendant’s right to due process.

Id.

at 825 , 111 S.Ct. 2597 ;

see also id.

n. 1 (“[I]n light of the overall structure of the statute, it is not necessary to decide whether 18 U.S.C.A. § 3592 (a)(8) is broader than the Eighth Amendment minimum”). Thus, the statutory “limitation” asserted by the government is no limitation at all.

The government’s argument that the defendant’s proposed evidence was not mitigating, even in the broader sense, was also not persuasive. The defendant’s proffered evidence was intended to enable the jury to take into account considerations of comparative proportionality in determining the appropriate sentence in this case. Proportionality considerations were recognized as valid mitigating factors by Congress and the President when they enacted the FDPA.

See

18 U.S.C. § 3592 (a)(3) — (4) (listing as mitigating factors relatively minor participation in the offense and lack of death sentences for equally 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 penalty legislation makes clear that the decision to include this factor was contested.”

Id.

at 369 n. 12.

Proportionality is generally regarded as important to sentencing. It is the foundation of the current regime of sentencing under the United States Sentencing Guidelines. The Guidelines use nationwide statistics to promote proportional sentences throughout the United States. It would be anomalous if the choice between a life sentence and a death sentence were the only

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sentencing decision in the federal system in which proportionality is not a proper consideration. Unlike many state statutes, the FDPA makes no explicit provision for judicial proportionality review. The various courts of appeals or the Supreme Court may, nevertheless, decide to perform such review.

See Sampson II,

275 F.Supp.2d at 96 . Thus, thte government’s argument that the sentencer in a capital case is not permitted to consider proportionality was not persuasive in principle.

The state court cases cited by the government were distinguishable. In

State v. Gardner,

789 P.2d 273, 286 (Utah 1989), the Utah Supreme Court held that it was not error to exclude evidence of other cases. However, unlike the Utah statute at issue in

Gardner,

the FDPA does not limit mitigating evidence to the character of the defendant, his record or the nature of the offense.

Wiggins v. State,

324 Md. 551 , 597 A.2d 1359, 1370-71 (1991) and

State v. Clark,

128 N.M. 119 , 990 P.2d 793, 805 (1999) were also inapposite as they each relied on state statutory schemes that confer the authority to conduct proportionality review on the courts rather than the jury. The FDPA contains no comparable delegation.

Thus, the court decided that proportionality evidence was, as a matter of law, properly a mitigating factor in an FDPA sentencing hearing. Nevertheless, the court found that the probative value of the evidence Sampson proffered was outweighed by the danger of unfair prejudice and confusion of the issues. The defendant made his 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 eases, 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 are sufficiently similar to this case to bear on the question of proportionality, the jury would have had to hear a large amount of evidence. In effect, the court would have had to conduct many mini-trials of other FDPA cases, since a jury would be unable to perform meaningful proportionality review based on brief summaries of other cases. Rather, in order to fully appreciate the verdicts reached in those cases, jurors in this case would have had to hear substantial testimony regarding the crime and the defendant in the other cases. The amount of time that would have had .to be spent educating jurors regarding all other FDPA eases in a non-prejudicial manner, which could have been measured in weeks or months, as compared to the amount of time spent on the mitigation case as a whole, likely would have diverted the jury’s focus from the facts relating to Sampson and his crimes.

United States v. Regan,

221 F.Supp.2d 659, 660-61 (E.D.Va.2002), the court held that proportionality evidence relating to the harm done in other espionage cases could not be used as a mitigating factor because it lacked probative value and there was a significant danger of confusing the issues and misleading the jury.

Section 3592(a)(4) provides that the jury may consider whether “[a]nother

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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

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 to the determination of the appropriate sentence in this case. However, the court concluded that the dangers of misleading the jury and confusing the issues were simply too great in comparison to the probative value that the proffered evidence would have with 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 evidence regarding death-eligible offenses of co-conspirators] is outweighed by the danger of misleading and confusing the jury”).

On October 31, 2003, the court stated that a narrower proffer might be admissible under the FDPA’s balancing test because a more limited presentation could have greater probative value and lesser associated risks. In an effort to conform his evidence to the requirements of 18 U.S.C. § 3593 (c), the defendant narrowed his proffer by limiting it “to [47 FDPA] cases where a defendant was found to have committed more than one murder.” Def.’s Mem. in Support of a Ltd. Presentation of Penalty-Phase Verdicts Reached in Other Fed. Death Penalty Cases at 1. The government filed a second motion in limine, urging the court to reconsider its earlier decision that proportionality evidence may

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be properly presented as a mitigating factor and, in any event, to preclude the narrower proffer under 18 U.S.C. § 3593 (c).

On December 1, 2003, the court allowed the government’s second motion in limine. The court was not persuaded to revise its earlier decision that proportionality evidence is, at least in theory, admissible in an FDPA case. Although the government was correct that the Guidelines put a relatively greater emphasis on proportionality and the FDPA puts a relatively greater emphasis on consideration of the unique aspects of a defendant and his crime, the government was incorrect when it asserted that proportionality considerations can play no role whatsoever in a jury’s determination of whether a death sentence is more appropriate than some other sentence.

However, even when limited to 47 cases, the defendant’s proffer did not adequately address the risks of misleading the jury and confusing the issues. Additionally, the government persuasively argued that the defendant’s proffer suffered from inaccuracies that greatly diminished its probative value. For example, in the document containing summaries of other cases that the defendant sought to offer as an exhibit, there was a summary of this case. The summary of this case contained several material inaccuracies and omissions. The government pointed out inaccuracies in summaries of other cases as well.

There was a significant danger that allowing even accurate testimony regarding 47 other cases would have confused the jury. To permit inaccurate testimony by a witness relating hearsay accounts of the evidence presented at the other trials would have presented an even more substantial risk that outweighed the probative value of the proffered evidence.

Essentially, the court excluded the limited presentation because it agreed with the government that “the proffered [47] capital case verdicts cannot be compared in any meaningful way unless the [] cases are effectively retried to th[e] jury” in this case and the defendant’s proposed presentation of the cases through McNally would “only mislead the jury and create prejudicial confusion.” Gov.’s Second Mot. in Li-mine at 27-28.

IX. THE COURT’S AUTHORITY TO REVIEW THE SUFFICIENCY OF THE GOVERNMENT’S EVIDENCE

On November 24, 2003, the court ruled that it had both the power and the responsibility to evaluate the sufficiency of the evidence presented at the penalty phase of a prosecution under the FDPA. While Federal Rule of Criminal Procedure 29 is not directly applicable to the penalty phase of a proceeding under the FDPA, similar procedures and standards for evaluating the evidence are appropriate. A court can, therefore, decide a defendant’s challenges to the sufficiency of the government’s evidence at the close of the government’s case-in-chief or reserve decision and decide at a later time on the basis of the evidence at the end of the government’s case-in-chief. As would be the case under Rule 29, a court can make such a decision after the 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 govern

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ment’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 a capital case under the FDPA. The Rule refers to evidence sufficient “to sustain a conviction” and to the entry of a “judgment of acquittal.” These references indicate that the Rule is not applicable to the penalty phase, where there is no question of evidence sufficient for a “conviction” and no possibility of “acquittal”.

This conclusion is not surprising, as the Rules of Criminal Procedure were drafted “long before the FDPA came into existence.”

United States v. Lee,

89 F.Supp.2d 1017, 1021 (E.D.Ark.2000),

rev’d on other grounds,

274 F.3d 485 (8th Cir.2001).

Lee,

the district court dealt with a post-conviction motion for a new trial, ostensibly made pursuant to Rule 33. The court rejected the government’s contention that the court had no authority to grant a new trial once the jury had returned a death verdict.

Id.

The court concluded that it had the same authority in the FDPA context as it would have in any other case.

Id.

It noted, further, that there are unique concerns for reliability in capital 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; citations omitted). The court in

Lee, id.,

also cited the Supreme Court’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 , 106 S.Ct. 2595 , 91 L.Ed.2d 335 (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 the court the power to vacate “any judgment,” and does not refer solely, as does Rule 29, to a “conviction”. The textual difficulties in applying Rule 29 in the FDPA context are, therefore, not present with respect to Rule 33.

The fact that Rule 29 does not cover the penalty phase of a capital case does not mean that the defendant is left without protection against a judgment based on insufficient evidence. The court has the

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inherent power to evaluate the sufficiency of the evidence against a defendant. Use of such power by application of the Rule 29 standard is not inconsistent with any of the Federal Rules of Criminal Procedure.

Cf. Carlisle v. United States,

517 U.S. 416, 425-26 , 116 S.Ct. 1460 , 134 L.Ed.2d 613 (1996) (noting that “federal courts may, within limits, formulate procedural rules not specifically required by the Constitution or the Congress,” but holding that such inherent authority did “not include the power to develop rules that circumvent or conflict with the Federal Rules of Criminal Procedure”) (citing

United States v. Hasting,

461 U.S. 499, 505 , 103 S.Ct. 1974 , 76 L.Ed.2d 96 (1983)). As Rule 29 is not, by its terms, applicable, there is no provision of the Federal Rules of Criminal Procedure that directly or indirectly addresses the issue of a trial court’s evaluation of the sufficiency of the evidence at the penalty phase of an FDPA prosecution. In fact, as a whole, the Rules do not explicitly refer to procedures for the penalty phase of a trial. In developing a procedure to govern the situation, the court, therefore, has acted interstitially rather than in conflict with or in circumvention of the Rules.

Courts have acted pursuant to their inherent power in situations analogous to the present case. In

United States v. Weston,

36 F.Supp.2d 7 (D.D.C.1999), the defendant objected to being forced to undergo multiple competency examinations, relying on

Carlisle

in claiming that Federal Rule of Criminal Procedure 12.2(c) only authorized the court to order “a” single psychological examination. The court rejected this argument, holding that its order was a valid exercise of inherent authority as it “conflicted] with neither the [Insanity Defense Reform] Act nor the Federal Rules of Criminal Procedure.”

Weston,

36 F.Supp.2d at 12 .

United States v. Webster,

162 F.3d 308 (5th Cir.1998), the defendant in an FDPA case challenged a court-ordered psychiatric examination required as a predicate for introducing his own expert psychiatric testimony.

On appeal, the Fifth Circuit upheld the actions of the district court, citing the 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). The Fifth Circuit went on to say, more broadly, that inherent authority extended to the penalty phase of prosecutions under the FDPA:

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.

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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 case brought under 21 U.S.C. § 848 , “[confronted-with situations in which the Federal Rules of Criminal Procedure were not applicable, courts historically have invoked inherent judicial powers to address the general circumstances here presented and to craft appropriate solutions to them.”).

Generally, the imposition of the death penalty in the absence of evidence to establish an aggravating factor beyond a reasonable doubt would violate the defendant’s right to due process.

See Jackson v. Virginia,

443 U.S. 307, 318 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979) (proof beyond reasonable doubt required by due process clause);

Smith v. Armontrout,

888 F.2d 530, 538 (8th Cir.1989) (“[B]y analogy with

Jackson ,

due process would forbid a verdict of death unless the evidence was sufficient to convince a rational trier of fact, beyond a reasonable doubt, of the existence of at least one aggravating circumstance.”).

The Court of Appeals, by statute, must review death sentences for the sufficiency of the evidence. 18 U.S.C. § 3595 (c)(1). It therefore makes sense for the district court to do so as well. “[A]s a general matter, federal courts of appeals do not rule on issues not decided in the district court.”

United States v. Kin-Hong,

110 F.3d 103, 116 (1st Cir.1997). It is also generally recognized that the District Court is much more familiar with the evidence in the general course of the case than is the Court of Appeals on review.

See United States v. Smith,

331 U.S. 469, 476 , 67 S.Ct. 1330 , 91 L.Ed. 1610 (1947) (referring to “the peculiar ability which the trial judge has to pass on the fairness of the trial” due to his or her knowledge of the “incidents and nuances of the trial”).

Therefore, to provide the procedural safeguards necessary to vindicate the defendant’s due process rights, the court found it appropriate to evaluate the sufficiency of the evidence presented at the penalty phase. In doing so, it adopted the Rule 29 standard applicable to guilt phase determinations.

Cf. Webster,

162 F.3d at 340 (approving use of inherent authority in establishing penalty phase procedure modeled on similar Rule governing guilt phase procedure). On November 20, 2003, the government acknowledged that the court could evaluate the sufficiency of thé evidence with respect to the alleged aggravating factors under the Rule 29 standard.

In ruling on a motion under Federal Rule of Criminal Procedure 29, and on the sufficiency of the evidence in the penalty phase of an FDPA case, the court must look at the evidence in the light most favorable to the government.

United States v. Duclos,

214 F.3d 27, 32 (1st Cir.2000). This evidence includes both direct evidence and circumstantial evidence.

United States v. Olbres,

61 F.3d 967, 970 (1st Cir.1995). The court must draw reasonable inferences in favor of the government,

United States v. Baldyga,

233 F.3d 674, 678 (1st Cir.2000), and must resolve all credibility questions and evidentiary conflicts in favor of the government.

Olbres,

61 F.3d at 970 . The court must decide if the evidence is sufficient to permit a rational jury to find each essential fact to have beén proven beyond a reasonable doubt.

Id.

The government is not bound by all of the evidence that it presents. For example, the government was not, in this case, bound by every statement in each of Sampson’s confessions, even if it introduced those confessions into evidence. However, if the government introduces ev

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idence contrary to the inferences it wants the jury to draw, it must introduce other direct or circumstantial evidence to relieve itself of the effect flowing from 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 government cannot rely on an inference when the only evidence presented by the government is inconsistent with the inference the government wishes drawn”).

The evidence must be sufficient to prove the fact at issue beyond a reasonable doubt. However, the government does not have to rule out every hypothesis congenial to a finding of innocence.

United States v. Valle,

72 F.3d 210, 216 (1st Cir.1995). The First Circuit discussed the standard for appellate review of the sufficiency 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 the same.

X. ESPECIALLY HEINOUS, CRUEL OR DEPRAVED MANNER OF COMMITTING THE OFFENSE

On November 24, 2003, the court considered the defendant’s challenge to the sufficiency of the evidence supporting the alleged statutory aggravating factor that Sampson “committed [each] offense in an especially heinous, cruel or depraved manner in that it involved torture or serious physical abuse to the victim.” 18 U.S.C. § 3592 (c)(6). This task began, necessarily, by defining the scope of this factor.

In defining the scope of the alleged statutory and non-statutory aggravating factors, the court recognized the constitutional role of aggravating factors. In

Zant v. Stephens,

462 U.S. 862 , 103 S.Ct. 2733 , 77 L.Ed.2d 235 , the Supreme 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 , 103 S.Ct. 2733 . The court, therefore, interpreted the statutory aggravating factors in ways that serve to “genuinely narrow” the class of persons eligible for the death penalty. Further, the statutory aggravating factors create a framework and standard for determining what may be a non-statutory aggravating factor.

See United States v. Davis,

912 F.Supp. 938, 944 (E.D.La.1996). Statutory aggravating factors generally address circumstances that make the offense clearly more heinous than the typical murder, and the prior criminal history of the defendant.

See United States v. Friend,

92 F.Supp.2d 534, 541 (E.D.Va.2000);

United States v. Sampson,

275 F.Supp.2d 49, 100 (D.Mass.2003).

Arave v. Creech,

507 U.S. 463, 474 , 113 S.Ct. 1534 , 123 L.Ed.2d 188 (1993), the

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Supreme Court held that an aggravating factor cannot apply to every defendant eligible for the death penalty: “If the sen-tencer fairly could conclude that an aggravating circumstance applies to every defendant eligible for the death penalty, the circumstance is constitutionally infirm.”

Id.

The holding of

Arave

indicates that if a class of murderers eligible for the death penalty under a jurisdiction’s laws includes all first-degree murders (including premeditated killing), something more is necessary to narrow the class in a constitutionally permissible way. 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 “Especially Heinous” Aggravating Circumstance in Capital Cases—The

andardless Standard,

64 N.C. L.Rev. 941, 954 (1986).

For the purposes of establishing the statutory aggravating factor that the offense was committed in an especially heinous, cruel, or depraved manner, the literal language of § 8592(c)(6) expressly provides that is sufficient to prove that a crime was especially heinous, especially depraved,

especially cruel.

It is important to recognize that, prior to the enactment of the FDPA, the Supreme Court stated that: “A person of ordinary sensibility could fairly characterize almost every murder as outrageously or wantonly vile, horrible and inhuman.”

Godfrey v. Georgia,

446 U.S. 420, 428-29 , 100 S.Ct. 1759 , 64 L.Ed.2d 398 (1980) (internal quotation marks omitted). This is a point that is not just intuitively hard for lay people to understand; it is also a point on which this court made a mistake early in the proceedings, when it said that it seemed obvious that the offenses charged in this case were heinous, cruel, or depraved. After all, the defendant slit the victims’ throats. This analysis is not correct. Something more than a horrible murder is necessary to make that murder especially heinous, cruel, or depraved, as required by the Constitution and the terms of the FDPA.

See id.;

18 U.S.C. § 3592 (c)(6).

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A. SERIOUS PHYSICAL ABUSE

The FDPA provides expressly that serious physical abuse can make an offense involving homicide especially heinous, cruel, or depraved.

See

18 U.S.C. § 3592 (c)(6). This is constitutionally permissible.

See Maynard v. Cartwright,

486 U.S. 356, 364-65 , 108 S.Ct. 1853 , 100 L.Ed.2d 372 (1988).

It is, therefore, necessary to determine the legal definition of serious physical abuse. The court defined serious physical abuse 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 Jury Instructions for the District Courts of the Eighth Circuit,

Instruction 12.07F; 1 Leonard B. Sand et al,

Modern Federal Jury Instructions,

Inst. 9A-11 at 9A-45 to -48. This means that the focus is in large part on the defendant’s intent and state of mind. The definition adopted by the court requires that the defendant have intended to inflict harm on the victim’s body in addition to the harm that the defendant believed was necessary to kill him. The victim does not, however, have to be conscious at the time the serious physical abuse was inflicted. Nor does the victim have to be alive at the time the serious physical abuse was inflicted.

See United States 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 , 119 S.Ct. 2090 , 144 L.Ed.2d 370 (1999);

United States v. Hall,

152 F.3d 381, 424 (5th Cir.1998).

But see

1 Leonard B. Sand, et al.,

Modern Federal Jury Instructions,

Inst. 9A-11 (victim must be 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)).

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In essence, the FDPA expresses the judgment that the infliction of serious physical abuse makes a defendant more blameworthy because he intended to do more than kill his victim, and this distinguishes a defendant from other murderers. Or, to put it somewhat differently, the infliction of serious physical abuse is evidence that the defendant was especially depraved because he relished the killing, even if the abuse occurred after the victim was unconscious or dead. If, on the other hand, the victim was conscious, serious physical abuse is evidence that the defendant was especially cruel because he intended to inflict a high degree of pain in addition to killing the victim. Either way, serious physical abuse also makes a killing especially heinous, setting the murder apart from other killings in a particularly shocking way.

The government argued that the defendant “bragged” about murdering McCloskey and that this was further evidence that the murder was especially heinous, cruel, and depraved. The court found, however, that any such bragging was not evidence that the offense was especially heinous, cruel, or depraved because the statutory definition given by 18 U.S.C. § 3592 (c)(6) requires that the jury’s conclusion be rooted in a finding of either serious physical abuse or torture. Evidence other than that of torture or serious physical abuse cannot be considered in determining whether an offense was especially heinous, especially cruel, or especially depraved.

Bragging might be evidence of depravity in the colloquial sense, but it is not evidence of depravity within the meaning of the statute. The statutory aggravating factor covers only those offenses that were committed in an especially heinous, cruel or depraved manner

in that

the offense involved torture or serious physical abuse to the victim.” 18 U.S.C. § 3592 (c)(6). (emphasis added).

In addition, the government discussed the “senselessness” of the 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 , 119 S.Ct. 2090 , 144 L.Ed.2d 370 (1999). However, a focus on the “senselessness” of a crime is unrelated to whether it was committed in an especially heinous, cruel, or depraved manner in that it involved torture or serious physical abuse. Again, “senselessness” may be evidence of depravity in the colloquial sense, but not in the statutory

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sense. Further, a focus on “senselessness” would obstruct the constitutionally-required narrowing function of the heinous, cruel, or depraved aggravator.

See

1 Leonard B. Sand, et al.,

Modern Federal Jury Instructions,

Inst. 9A-11 at 9A-47 n. 20 (“Because we find that this factor is difficult to apply in any meaningful manner (arguably, any unlawful killing is ‘senseless’), we do not recommend its inclusion in the instruction.”).

B. TORTURE

The presence of torture is another way of establishing that an offense was committed in an especially heinous, cruel, or depraved manner. 18 U.S.C. § 3592 (c)(6). At the outset, it should be recognized that there is an important distinction between what is constitutionally permissible and what has been statutorily prescribed, that is, between what the Supreme Court has approved as an aggravating factor regarding the heinousness, cruelty, and depravity of an offense and what Congress intended as an aggravating factor under the FDPA.

Godfrey,

446 U.S. at 430-33 , 100 S.Ct. 1759 , the Supreme Court held that torture and aggravated battery were valid aggravating factors, in that they narrowed the class of murderers in a constitutionally permissible way. The Court had previously approved the aggravating factor of an offense being “unnecessarily torturous to the victim.”

Proffitt v. Florida,

428 U.S. 242, 255-56 , 96 S.Ct. 2960 , 49 L.Ed.2d 913 (1976);

see also United States v. Hussein,

351 F.3d 9, 14 (1st Cir.2003);

Dowling v. United States,

473 U.S. 207, 213-4 , 105 S.Ct. 3127 , 87 L.Ed.2d 152 (1985). After

Ring v. Arizona,

536 U.S. 584 , 122 S.Ct. 2428 , 153 L.Ed.2d 556 (2002), a statutory aggravating factor is the functional equivalent of an element of the offense, so the rule of lenity applies to statutory aggravating factors in the same way it does to offense elements. Under the rule of lenity, it is appropriate to adopt the narrower definition given by Black’s Law Dictionary, 5th edition, rather than a broader definition which does not require proof of sadistic purpose, intent to punish, or intent to extract information. Therefore, the court held that under the FDPA, an offense can be found to be especially heinous, cruel, or depraved in that it involved torture only if it is found that the defendant inflicted the mental or emotional abuse to the victim for the purpose of sadistic pleasure, for the purpose of punishment, or for the purpose of extracting information or a confession.

C. SUFFICIENCY OF THE EVIDENCE AS TO SERIOUS PHYSICAL ABUSE

The court found that the evidence was sufficient to prove that Sampson committed each of the two offenses, in an especially heinous, cruel, or depraved manner in that it involved serious physical abuse.

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

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Sampson stabbed McCloskey twenty-four times. Some of these stabs caused shallow, non-fatal wounds. In his confession to Massachusetts State Trooper, the defendant said in part, “It was like 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’t die.”

Id.

This latter statement supports Sampson’s argument that he kept stabbing McCloskey solely in order to kill him, not because of any intent to inflict additional physical abuse. However, the jury had the discretion to believe some but not all of what the defendant said in his confession. Therefore, for the purposes of the sufficiency of the evidence analysis, the court was required to put aside those statements in the confessions that were favorable to the defendant where, in this case, they were contradicted by any other evidence.

See Rodgers,

402 F.2d at 833 .

In addition, in the second confession to Trooper Cooke, the defendant stated that McCloskey said, “Ah, I’m dying.” Second Keefe Tr. at 8 (Ex. CC). After McClos-key said this, Sampson, according to his confession, slit McCloskey’s throat, nearly decapitating him.

Id.

The jury could, therefore, have reasonably inferred that Sampson knew that slitting McCloskey’s throat was not necessary to kill him, but rather intended to inflict serious physical abuse.

The evidence, viewed from the perspective most favorable to the government, included the following with respect to the Sampson’s second victim, Rizzo.

Sampson tied Rizzo to a tree. The defendant knew that he could approach Rizzo from behind, slit his throat, and kill him quickly. Instead, the defendant approached Rizzo from the front. He stabbed Rizzo at least fifteen times. According to his second confession given to Trooper Keefe, the defendant stabbed Riz-zo’s throat

during

this process of stabbing him many times, rather than 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 to the throat would have been fatal. In addition, the defendant stabbed Rizzo five times in the chest, inflicting wounds that the medical 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 intended to inflict serious physical abuse on Rizzo as well as kill him. The jury could have inferred from the defendant’s course of action that he specifically intended to inflict abuse beyond what he thought necessary to kill Rizzo.

Again, it should be recognized that evidence of what the defendant did after the murder was not relevant to whether that offense was committed in an especially heinous, cruel, or depraved manner as defined in the FDPA, because what occurred later was not evidence of either serious physical abuse or torture.

D. SUFFICIENCY OF THE EVIDENCE AS TO TORTURE

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

Under the definition of torture described earlier, the evidence was insufficient to establish the presence of torture. The government did not contend that Sampson attempted to extract a confession or other information from his victims. The defendant did use his knife to coerce McCloskey and Rizzo into driving him to remote locations. However, there was not sufficient evidence to prove, beyond a reasonable doubt, that the defendant tried to cause them additional apprehension in order to

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punish them or because he took sadistic pleasure in their suffering. Rather, in his confessions, he said that he tried to lull both of them by telling them that they would not be harmed if they cooperated. Such comments are inconsistent with torture. However, even if the jury did not believe these statements were made, there was an absence of direct or circumstantial evidence sufficient to prove beyond a reasonable doubt that Sampson had any motive for threatening his victims with his knife other than to convince them to drive him where he wanted to go.

See, e.g., Domingues v. State,

112 Nev. 683 , 917 P.2d 1364 , 1377 & n. 6 (1996) (citing Black’s Law Dictionary for definition of torture and concluding that “[tjhere [wa]s no evidence that the specific intent behind the attempted electrocution or the stabbing was to inflict pain for pain’s sake or for punishment or sadistic pleasure”).

XL SUBSTANTIAL PLANNING AND PREMEDITATION

On November 24, 2003, the court considered the defendant’s challenge to the sufficiency of the evidence supporting the substantial planning and premeditation aggravating factor.

A. DEFINITION

The government alleged as statutory aggravating factors that the defendant committed the offense of carjacking resulting in the death of Philip McCloskey after substantial planning and premeditation to cause the death of Philip McCloskey and the offense of carjacking resulting in the death of Jonathan Rizzo after substantial planning and premeditation to cause the death of 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 factor focuses on the intention to cause death, not on the broader offense, which in this case was carjacking resulting in death. The government must prove both substantial planning and substantial premeditation.

See United States v. Tipton,

90 F.3d 861 , 896 n. 17 (4th Cir.1996).

Substantial planning and premeditation is a statutory aggravating factor. Congress has decided that substantial planning and substantial premeditation distinguish a defendant from other murderers in a way that justifies the death penalty. This statutory aggravating factor expresses a legislative determination that “this [type of] murder is different.”

Cartwright v. Maynard,

822 F.2d 1477, 1485 (10th Cir.1987),

aff'd,

486 U.S. 356 , 108 S.Ct. 1853 , 100 L.Ed.2d 372 (1988). This factor is not unconstitutionally vague.

See Tipton,

90 F.3d at 895-96 . Substantial planning and premeditation is a true aggravating factor, for it narrows the class of murderers in a way that is constitutionally relevant.

See United States v. Frank,

8 F.Supp.2d 253, 278 (S.D.N.Y.1998).

Generally, the offense of murder does not require premeditation. It requires, rather, “malice aforethought.”

See, e.g.,

18 U.S.C. § 1111 (a) (“Murder is the unlawful killing of a human being with malice aforethought”). Premeditation is not synonymous with malice aforethought. However, premeditation is generally an element of first-degree murder, absent certain other circumstances such as those present in felony murder. Consistent with the common law, the Supreme Judicial Court of Massachusetts has 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

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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,

392 Mass. 126 , 466 N.E.2d 805, 816 (1984) (citations omitted). Planning is not an independent statutory element or common law element in any degree of murder. It is, however, part of the definition of premeditation used in Massachusetts.

It would not be constitutionally permissible to make first-degree murder alone an aggravating factor.

Arave,

507 U.S. at 474 , 113 S.Ct. 1534 ;

Cartwright,

822 F.2d at 1485 . Congress recognized this in enacting the FDPA. The statute requires

substantial

planning and

substantial

premeditation regarding the killing. “Substantial” means more than the minimum amount of planning and premeditation required to commit the murder.

Tipton,

90 F.3d at 895-96 . There remains the issue, however, of how much more is necessary.

The FDPA and the Drug Kingpin Act do not provide that the aggravating factor is established if the defendant engaged in “more than minimal planning and premeditation,” as the United States Sentencing Guidelines did in 1988 and 1994 when these statutes were enacted.

See

U.S.S.G. § 1B1.1, Application Note 1(f) (1989) (“ ‘More than minimal planning’ means more planning that is typical for commission of the offense in a simple form”). The statute states that there must be substantial premeditation 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. Pierce v. Underwood,

487 U.S. 552, 564 , 108 S.Ct. 2541 , 101 L.Ed.2d 490 (1988) (one meaning of substantial is “large”). Defining “substantial” as “large” is both appropriate and comports with a commonsense understanding of the word.

Finally, while 18 U.S.C. § 3592 (c)(9) requires only that there be substantial planning and premeditation “to cause the death of a

person,”

the government in this ease, in its Notice of Intent, specifically alleged that there was substantial planning and 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’s planning and premeditation was directed to the specific individual, and not just to any person generally. Therefore, for the purposes of this aggravating factor, the analysis of the evidence could not extend back beyond the point where the defendant first saw McCloskey or Rizzo. Any planning or premeditation Sampson may have done prior to the time that he encountered McCloskey or Rizzo was not relevant to the aggravating factors as they were alleged in the Notice of Intent.

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B. SUFFICIENCY OF THE EVIDENCE

The court found that there was sufficient evidence for a jury to find beyond a reasonable doubt that the murder of Rizzo involved substantial planning and premeditation. There was not sufficient evidence with regard to the murder of McCloskey.

In light of the standard explained earlier, requiring a large amount of both planning and premeditation, the evidence, even when viewed in the light most favorable to the government, was insufficient to support a finding of substantial planning and premeditation beyond a reasonable doubt for the killing of McCloskey. The following discussion, while not exhaustive, emphasizes the differences between the killing of McCloskey and the killing of Rizzo, for which there was sufficient evidence on substantial 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 or premeditation by the defendant prior to encountering McCloskey was irrelevant to the inquiry under the narrowly drafted aggravating factor in the Notice of Intent, which specifies planning and premeditation to “cause the death

of Philip McCloskey.”

(emphasis added). At one point during his confession, Sampson does say that both killings were premeditated. At other points in his confession, he says that the killing of McCloskey was not premeditated, but rather the product of an impulsive response when McCloskey resisted and began to fight. Assuming, without finding, that Sampson used the correct legal definition of “premeditated,” the jury could have- taken his statement that both killings were premeditated as sufficient evidence to find beyond a reasonable doubt that the killing of McClos-key was premeditated. The jury would have been entitled to reject the defendant’s subsequent assertions to the contrary and, therefore, the court disregarded the subsequent assertions for the purposes of analyzing the sufficiency of the evidence. Nevertheless, there was not sufficient evidence of

substantial

premeditation or

substantial

planning.

The defendant was carrying a knife, but this was not sufficient to prove beyond a reasonable doubt that he intended to kill anyone. Particularly, it was .not sufficient to prove beyond a reasonable doubt that he intended to kill McCloskey. A knife has many functions, including lawful functions and unlawful functions that do not involve killing. It also does not require substantial planning to obtain a knife. A

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knife can be bought legally and easily, without the necessity of detailed or complex plans. At the time of the killing, Sampson had nothing with which to tie-up McCloskey. His attempts to use his belt were unsuccessful. The defendant had no planned destination when he was picked up by McCloskey. He was looking for a secluded place, but had not selected 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 a reasonable doubt that there was substantial planning and premeditation that lead to the killing of McCloskey.

The evidence was, however, sufficient to prove, beyond a reasonable doubt, that Sampson engaged in substantial planning and premeditation to cause the death of Rizzo. The evidence viewed in the light most favorable to the government included the following.

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

Sampson selected a remote and isolated place that he knew well, and directed Riz-zo to drive him to that location. Sampson chose the woods behind the Abington Ale House, where he had been camping just before he carjacked and killed McCloskey. After Rizzo drove Sampson to the parking lot of the Abington Ale House, Sampson directed him to carry one of his bags part of the way out of the woods. The defendant also developed and carried out an elaborate ruse to convince Rizzo that he was not in danger. The defendant told Rizzo that he would spray him with OFF!, an insect repellant, to protect him from insects. This was intended to lull Rizzo into a false sense of security. During the drive to the Abington Ale House, the defendant considered how he could restrain Rizzo, and decided that he could use the sturdy rope he had found at the Bourne Bridge. This would be more effective than using his belt, which had broken when he tried to subdue McCloskey. The defendant decided that it would be preferable to incapacitate Rizzo first, and then to attack him with the knife when he was not able to fight back.

This plan was formulated during the course of the twenty-mile drive to Abing-ton. Once Sampson and Rizzo arrived at the parking lot behind the Abington Ale House, the defendant put this plan into action.

The defendant had substantial opportunity to reconsider his decision. Premeditation can occur in a few seconds,

see Palmariello,

466 N.E.2d at 816 , and the defendant had a much longer time to premeditate and plan during his twenty-mile ride to Abington Ale House and subsequent walk into the woods. He did not do so, but instead proceeded to put his plan to kill Rizzo into action. The jury could, therefore, have concluded that the killing was committed after substantial planning and premeditation to cause the death of Jonathan Rizzo.

XII. VULNERABLE VICTIM

On November 24, 2008, the court considered Sampson’s challenge to the sufficiency of the evidence supporting the government’s alleged statutory aggravating factor regarding McCloskey’s status as a vulnerable victim. 18 U.S.C. § 3592 (c)(ll)

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provides that it is an aggravating factor if “[t]he [homicide] victim was particularly vulnerable due to old age, youth, or infirmity.” The court ruled that the evidence was sufficient to support the allegation that McCloskey was vulnerable due to infirmity, but not sufficient to support the allegation that he was vulnerable due to old age.

A. DEFINITION

Sampson argued that, in order to be aggravating in a way that is relevant to the decision between life and death, the vulnerable victim aggravator must have: (1) a nexus between the vulnerability and the victim’s death; and (2) a knowledge requirement that prevents a defendant from becoming eligible for a death sentence as a result of “circumstances that the defendant was unaware of and which played no role in the capital offense beyond mere happenstance.” Def.’s Brief in Support of Pretrial Mots, at 88. The court reserved judgment on this issue before trial, choosing instead to address it in the context of other disputes over jury instructions.

See Sampson II,

275 F.Supp.2d at 104 .

At trial, the court concluded that the vulnerable victim aggravating factor does have a nexus requirement, but does not have 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 in part on the Eighth Circuit’s Pattern Instruction 12.07K and Model Instruction 9A-14 in Sand

al.

The infirmity which makes a person particularly vulnerable must somehow contribute to the person’s death. Vulnerability does not exist in a vacuum; a victim must be vulnerable to someone or something. Thus, in order to give meaning to the word “vulnerable”, the court adopted a nexus requirement.

Contrary to Sampson’s contention, however, there is no requirement that the defendant either knew of the victim’s vulnerability or targeted his victim because of that vulnerability. Unlike the nexus requirement, which stems from the definition of the word “vulnerable”, there is no statutory language that creates a knowledge requirement.

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As the court explained on August 21, 2003, the Sentencing Guidelines, as a result of legislation that also included the FDPA, require that a defendant knew or should have known of a victim’s vulnerability in order to receive a two-level enhancement.

See

Aug. 21, 2003 Tr. at 74-79 (citing U.S.S.G. § 3Al.l(b)(l)). It is anomalous that a lower level of knowledge is required to make death more appropriate and, in some cases, to make death a possible sentence, than is required to permit or require a longer prison sentence. However, for certain other statutory aggravating factors, Congress expressly established a knowledge requirement.

See, e.g.,

18 U.S.C. § 3592 (b)(2) (“defendant ... knowingly created a grave risk of substantial danger to the national security”); 18 U.S.C. § 3592 (c)(5) (“defendant ... knowingly created 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 the adulterant”). In contrast to these provisions, the vulnerable victim aggravating factor focuses only on the victim rather than the defendant.

“[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.”

Russello v. United States,

464 U.S. 16, 23 , 104 S.Ct. 296 , 78 L.Ed.2d 17 (1983) (alteration in original),

quoted in Trenkler v. United States,

268 F.3d 16, 23 (1st Cir.2001). Thus, the court concluded that the statute does not manifest an intent to require the government prove either that the defendant knew of the victim’s vulnerability or targeted him because of it.

Nor does the constitution mandate a knowledge requirement. Even absent a knowledge component, the aggravating factor narrows the class of murderers in a way that is relevant to the sentencing decision in a capital case. The factor serves a narrowing function because not all murders involve a particularly vulnerable victim. This distinction is relevant because, even if a defendant did not know of a victim’s vulnerability, society may properly consider a murder more outrageous if the victim died as a result of some sort of vulnerability. The defendant’s knowledge or moral culpability is not a prerequisite to an enhanced sentence. Rather, the law often provides for varying penalties based on the degree of harm resulting from equally morally culpable acts. For example, 18 U.S.C. § 1111 sets the maximum penalty for first degree murder as death, while 18 U.S.C. § 1113 sets the maximum penalty for attempted murder at twenty years’ imprisonment. A person who unsuccessfully attempts to kill someone is as morally culpable as a person who makes the same effort and succeeds. The disparate punishments for attempted murder and murder are not related to the moral blameworthiness of the defendant.

B. SUFFICIENCY OF THE EVIDENCE

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

However, the court found that McClos-key had several conditions that a jury could — and ultimately did — reasonably

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conclude contributed to his death. The evidence was sufficient to prove that McCloskey had recently had quintuple bypass surgery, that he was overweight, and that he suffered from shortness of breath after walking short distances. These conditions constituted an infirmity that made McCloskey particularly vulnerable. The vulnerability was connected to his death. Because of these conditions, McCloskey was especially susceptible to being successfully carjacked. He was less able to jump out of the car and run away like Gregory, one of Sampson’s other victims. McCloskey was also less able to flee during the walk from his vehicle through the woods to the place where Sampson killed him. In addition, McCloskey was less able to resist when the defendant attempted to tie him up and began to stab him. It was on this evidence permissible to for a jury to find, beyond a reasonable doubt, that all three of these factors contributed to McCloskey’s death.

XIII. OBSTRUCTION OF JUSTICE

On November 25, 2003 and December 1, 2003, the court considered and rejected the defendant’s challenge to the sufficiency of the evidence supporting the government’s alleged non-statutory aggravating 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] to seize control of his motor vehicle and to prevent him from reporting the carjacking to authorities.”

In an indictment or other charging instrument such as an Notice of Intent, “and” generally means “or”.

See United States v. Garcia-Torres,

341 F.3d 61, 66 (1st Cir.2003),

cert. denied sub nom., Torres v. U.S.,

- U.S. -, 124 S.Ct. 1467 , 158 L.Ed.2d 121 (2004). However, in this case, murder to seize control of an automobile is not

alone

a proper aggravating factor. If it were, every carjacking resulting in death would involve this aggravating factor. Congress chose to make the commission of certain crimes involving homicide statutory aggravating factors.

See

18 U.S.C. § 3592 (c)(1). Carjacking in violation of 18 U.S.C. § 2119 (3) is not among them. Nor is it analogous to the large majority of the crimes which Congress chose to include as statutory aggravating factors such as destruction of an aircraft or the death of a member of Congress.

See

18 U.S.C. § 3593 (c)(1).

In contrast, a murder committed to eliminate' a witness to some other crime is an aggravating factor. Several states make this a statutory aggravating factor.

See

Fla. Stat. ch. 921.141(5)(e);

Spann v. State,

857 So.2d 845, 856-57 (Fla.2003);

Philmore v. State,

820 So.2d 919, 935 (Fla.2002);

Menendez v. State,

368 So.2d 1278, 1282 (Fla.1979);

People v. Bigelow,

37 Cal.3d 731 , 209 Cal.Rptr. 328 , 691 P.2d 994, 997-98, 1006 (1984);

Olsen v. State,

67 P.3d 536, 583 (Wyo.2003).

This court agrees with the legislative judgment embodied in the statutes underlying these cases that a killing committed solely or primarily to eliminate a witness makes a defendant more blameworthy than other murderers and is properly deemed an aggravating factor. However, eliminating a witness to another crime must be the sole or dominant motive for the killing.

See Menendez,

368 So.2d at 1282 ;

Olsen,

67 P.3d at 583 .

But see State v. Kleypas,

272 Kan. 894 , 40 P.3d 139, 236 (2001);

State v. Powers,

101 S.W.3d 383, 399 (Tenn.2003). This is because, as the Wyoming Supreme Court said in

Olsen,

67 P.3d at 582 , “in virtually every homicide there is a witness silenced, and an arrest thus potentially prevented.” Unless this aggravating factor is limited to cases in

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which witness elimination is the sole or dominant motive for the killing, the factor would not provide a principled way to distinguish murders for which the death penalty is imposed from those for which it is not.

Id.

In this case, the carjackings resulting in death are distinct federal statutory crimes from carjackings that do not result in death.

See Jones v. United States,

526 U.S. 227, 251-52 , 119 S.Ct. 1215 , 143 L.Ed.2d 311 (1999). This distinction would not be sufficient to prove the analogous aggravating factor under California law, which limits the aggravating factor to those cases in which “the killing was not committed during the commission, or attempted commission of the crime to which he was a witness.”

Bigelow,

209 Cal.Rptr. at 340 n. 13, 691 P.2d 994 (citing CaLPenal Code § 190.2(a)(10)). However, this distinction would be sufficient to support the analogous aggravating factor under Florida law, which makes it an aggravating factor if “[t]he capital felony was committed for the purpose 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 constitutionally adequate. Thus, the court ultimately instructed the jury on this factor with the limitation that it could only be found if witness elimination was the sole or dominant motive for the murder.

B. SUFFICIENCY OF THE EVIDENCE

The court ruled that the government had produced sufficient evidence to prove, beyond a reasonable doubt, that witness elimination was the sole or dominant motive for both murders. Courts have focused on various types of evidence in analyzing sufficiency of the evidence challenges to this aggravating factor. These include: (a) whether the defendant confessed that witness elimination was his reason for the killing; (b) whether the victim knew the defendant; (c) whether

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the defendant disguised himself in any way; (d) whether the victim could easily identify the defendant; (e) whether the defendant took the victim to a remote area before killing him; and (f) whether there was an alternative possible reason for the killing, such as resistance by 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 does not prove beyond a reasonable doubt that the elimination of a witness 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 the government had presented sufficient evidence for a jury to find, beyond a reasonable doubt, that Sampson’s motive for murdering both of his victims was to prevent them from reporting the theft or attempted theft of their respective vehicles.

With regard to the McCloskey murder, the government introduced evidence including the following. Sampson told Vermont State Trooper Cable that the “murders” were premeditated. Cable Tr. at 3 (Ex. DD). Sampson elaborated, “[b]e-eause I had planned on killing whoever picked me up. Premeditated murder.”

Id.

Although the defendant later said that he did not intend to murder McCloskey and only did so after McCloskey began to fight, the court disregarded this statement in the context of the defendant’s challenge to the sufficiency of the evidence. Second, the defendant was not disguised and McCloskey had a good opportunity to see and remember him. Thus, the jury could have inferred that the defendant had a well-founded fear that McCloskey could identify him. Third, the defendant took McCloskey to a secluded area. The defendant arguably could have just tied McClos-key up and left him there. Fourth, in another context, the defendant stated that he didn’t “like to leave witnesses.” Crisp Tr. at 24 (Ex. R). In these circumstances, a rational jury could find, beyond a reasonable doubt, that the defendant’s sole or dominant motive for killing McCloskey was to eliminate him as a witness.

With regard to the Rizzo murder, the evidence supporting this aggravating factor was even stronger. The evidence of premeditation was not contradicted by Sampson’s confessions. Before he was killed, Rizzo was tied to a tree and gagged. A rational jury could have concluded that the defendant did not need to kill Rizzo to effect the carjacking, but instead chose to kill him because, as Sampson stated during one of his confessions, he needed Rizzo’s car for a long time. Crisp Tr. at 48.

XIV. FUTURE DANGEROUSNESS

As part of its Notice of Intent, the government alleged that “[t]he defendant, Gary Lee Sampson, is likely to commit criminal acts of violence in the future which would be a continuing and serious threat to the lives and safety of prison officials and inmates as demonstrated by his history of prison misconduct including, but not limited to, escapes, attempted escapes, verbal threats to harm prison officials and inmates, and possession of dangerous weapons.”

Sampson II,

275 F.Supp.2d at 108-09 , the court rejected a vagueness challenge to this aggravating factor, essentially because the Supreme Court had rejected a comparable challenge in

Jurek v. Texas,

428 U.S. 262, 269 , 96 S.Ct. 2950 , 49 L.Ed.2d 929 (1976). Sampson continued to ask the court to strike this factor on a variety of grounds, but the court consistently rejected these challenges. Ultimately, however, the jury was not unanimously persuaded that the government had proved this aggravating factor.

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As explained on October 30, 2003, the court’s decision to submit this aggravating factor to the jury was controlled by

Jurek .

Jurek ,

the Supreme Court held that the Texas death penalty scheme, under which a question virtually identical to the aggravating factor alleged in this case was posed to the jury, was constitutional.

Id.

at 269 , 96 S.Ct. 2950 . If the Supreme Court has directly decided an issue, the lower courts must reach the same result “unless and until [the] Court reinterprete the binding precedent.”

Agostini v. Felton,

521 U.S. 203, 238 , 117 S.Ct. 1997 , 138 L.Ed.2d 391 (1997),

quoted in Sampson II,

275 F.Supp.2d at 72 .

This court's experience in this case, however, suggests that it may now be appropriate for the Supreme Court to revisit

Jurek .

The reasons for this court’s concerns are as follows.

Barefoot v. Estelle,

463 U.S. 880, 896-99 , 103 S.Ct. 3383 , 77 L.Ed.2d 1090 (1983), the Supreme Court held that the Constitution does not prohibit the introduction 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 , 96 S.Ct. 2950 , 49 L.Ed.2d 929 (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, 103 S.Ct. 3383 ;