# United States v. Sampson

> District Court, D. Massachusetts · August 26, 2004 · 335 F. Supp. 2d 166

URL: https://www.frixlaw.com/law-library/cases/2519787

## Case

- **Full name:** UNITED STATES of America v. Gary Lee SAMPSON
- **Court:** District Court, D. Massachusetts
- **Decided:** August 26, 2004
- **Citations:** 335 F. Supp. 2d 166; 2004 U.S. Dist. LEXIS 17111; 2004 WL 1906872
- **Precedential status:** Published
- **Opinion:** Opinion by Wolf
- **Judges:** Wolf
- **Cited by:** 65 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2519787

## How later opinions describe it (automated extraction)

- 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 v…
- 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
- finding that the FDPA’s penalty phase provisions confer greater power to exclude prejudicial evidence than does Rule 403 of the Federal Rules of Evidence

## Opinion text

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 —
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A. DEFINITION. to I —
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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
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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.
1
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.
*175
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
*176
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
*177
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
*178
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
*179
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.
2
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
*180
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.
3
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.
*181
§ 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.
4
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.
5
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.
6
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.
7
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.
8
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
*185
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.
9
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.
10
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
In
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 Jones v. United States,
527 U.S. 373, 401-02 , 119 S.Ct. 2090 , 144 L.Ed.2d 370 (1999).
The Supreme Court, however, also recognized the risk that victim impact evidence could be unduly inflammatory and expressed the expectation that trial courts would exclude such testimony.
Payne,
501 U.S. at 831 , 111 S.Ct. 2597 (O’Connor, J., concurring) (“The possibility that this evidence may in some cases be unduly inflammatory does not justify a prophylactic, constitutionally based rule that this evidence may never be admitted. Trial courts routinely exclude evidence that is unduly inflammatory; where inflammatory evidence is improperly admitted, appellate courts carefully review the record to determine whether the error was prejudicial.”);
id.
at 836 , 111 S.Ct. 2597 (Souter, J., concurring) (“[I]n each case there is a traditional guard against the inflammatory risk, in the trial judge’s authority and responsibility to control the proceedings consistently with due process, on which ground defendants may object and, if necessary, appeal”). Exercising this authority is essential in a capital case for, as the Supreme Court has cautioned, “[i]t is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion.”
Gardner v. Florida,
430 U.S. 349, 358 , 97 S.Ct. 1197 , 51 L.Ed.2d 393 (1977).
Victim impact evidence may be considered by the jury in federal capital cases, as a non-statutory aggravating factor, if the jury unanimously finds that the prosecution has proven at least one statutory aggravating factor.
See
18 U.S.C. § 3593 (a),(e). The FDPA explicitly permits the government to present evidence “concerning the effect of the offense on the victim and the victim’s family.” 18 U.S.C. § 3593 (a). Such evidence “may include oral testimony, a victim impact statement that identifies the victim of the offense and the extent and scope of the injury and loss suffered by the victim and the victim’s family, and any other relevant information.”
Id.
Under the FDPA, the prosecution must provide the defendant with notice of its intent to use victim im
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pact evidence, unless its evidence is introduced merely to rebut mitigating evidence offered by the defendant.
See
18 U.S.C. § 3593 (a)-(b);
see also United States v. Allen,
247 F.3d 741, 778-81 (8th Cir.2001) (holding that FDPA allows victim impact evidence and that the notice and unanimity requirements of the FDPA are adequate procedural safeguards),
vacated on other grounds,
536 U.S. 953 , 122 S.Ct. 2653 , 153 L.Ed.2d 830 (2002).
In this case, the court recognized that there are two checks on potentially unfair-; ly prejudicial victim impact evidence, and indeed on all evidence at trial. The first check is the trial court’s statutory responsibility,
see
18 U.S.C. § 3593 (c), to decide if the probative value of a particular piece of evidence is outweighed by the danger of unfair prejudice, in the form of inflaming the jury’s passions and thus promoting the “risk [of] a verdict impermissibly based on passion, not deliberation.”
Payne,
501 U.S. at 836 , 111 S.Ct. 2597 (Souter, J, concurring).
The second check is the responsibility of the court to secure the defendant’s right to due process by viewing the proffered evidence in the context of all the other evidence in the case and deciding if its admis-, sion would contribute to or detract from a trial that is fundamentally fair and allows jurors to base their decisions on reason and reliable evidence rather than passion.
Id.
While
Payne
reversed
Booth v. Maryland, 482
U.S. 496, 107 S.Ct. 2529 , 96 L.Ed.2d 440 (1987), in which the Court had held that the admission of victim impact testimony was always unconstitutional at capital sentencing, it specifically did not reverse its prior holdings on other issues. The Court explained:
Our holding today is limited to the holdings of
Booth v. Maryland,
482 U.S. 496 , 107 S.Ct. 2529 , 96 L.Ed.2d 440 (1987), and
South Carolina v. Gathers,
490 U.S. 805 , 109 S.Ct. 2207 , 104 L.Ed.2d 876 (1989), that evidence and argument relating to the victim and the impact of the victim’s death on the victim’s family are inadmissible at a capital sentencing hearing.
Booth
also held that the admission of a victim’s family members’ characterizations and opinions about the crime, the defendant, and the appropriate sentence violates the Eighth Amendment. No evidence of the latter sort was presented at the trial in this case.
Payne,
501 U.S. at 830 n. 2, 111 S.Ct. 2597 . Therefore, certain types of testimony by a victim’s survivors continue to be prohibited.
First, victim impact witnesses may not characterize or give their opinions on the crime. Second, they may not characterize or give opinions on the defendant. Third, they may not express an opinion on the appropriate sentence.
See Booth,
482 U.S. at 508 , 107 S.Ct. 2529 . Other courts have echoed these findings, holding that victim impact testimony may not present an opinion on what the appropriate sentence might be or consist of statements constituting a “mere emotional plea” unrelated to the impact of the crime on the victims or their families.
See Hain v. Gibson,
287 F.3d 1224, 1237-38 (10th Cir.2002);
Robison v. Maynard,
943 F.2d 1216 (10th Cir.1991).
B. APPLICATION OF STANDARDS TO THIS CASE
On August 15, 2003, the court ordered the parties to file memoranda addressing the permissible scope of victim impact testimony, and what measures it should consider in order to ensure that the jury was not exposed to testimony that should have been excluded. On September 2, 2003, the government filed its Memorandum regarding Admissibility and Scope of Victim Impact Testimony as to
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Gary Lee Sampson. The defendant filed his response on September 5, 2003. On October 27, 2003, at the court’s request, the government filed a proffer regarding its expected victim-impact testimony, stating its intention to call a total of nine victim impact witnesses and outlining the information that it intended to elicit from the witnesses at trial. .
Sampson filed his response on October 28, 2003 which he supplemented on October 29, 2003. Sampson asked that the government be limited to two witnesses per family, and further that any victim impact evidence relating to the Whitney murder, for which Sampson was not being tried in this court,
11
be excluded altogether. Sampson also called on the court to impose procedural safeguards to guard against possible prejudice, asking specifically that the court impose the procedures set out in
United States v. O’Driscoll,
203 F.Supp.2d 334, 340-41 (M.D.Pa.2002) and
United States v. Glover,
43 F.Supp.2d 1217, 1234-36 (D.Kan.1999). In each of those two cases, the government was required to submit a written statement describing the proposed testimony of each victim impact witness.
O’Driscoll,
203 F.Supp.2d at 341 (citing
Glover,
43 F.Supp.2d at 1235-36 ). Each of the courts also adopted instructions to be given victim impact witnesses, concerning control of their emotions during the time of their testimony.
Id.
The government initially proposed a total of nine victim impact witnesses: three from the McCloskey family, four from the Rizzo family, and two from the Whitney family.
On October 30, 2003, the court first addressed the issues presented by the McCloskey and Rizzo witnesses. The government’s proposed witnesses'were three of Philip McCloskey’s adult children, as well as the parents and two younger brothers of Jonathan Rizzo. The government informed the court that it would introduce those witnesses’ victim impact testimony in a question-and-answer format. As indicated earlier, Sampson argued that no more than two members of each of the McClos-key and Rizzo families should be allowed to testify, to prevent unfair prejudice and the risk that passion and sympathy would overwhelm reason.
In many federal and state cases, however, trial courts have allowed several family members and others to testify at capital sentencing. The trial at issue in
United States v. Allen,
247 F.3d 741, 779 (8th Cir.2001),
vacated on other grounds,
536 U.S. 953 , 122 S.Ct. 2653 , 153 L.Ed.2d 830 (2002), involved eleven victim impact witnesses and 80 pages of transcript. The Tenth Circuit in
United States v. Chanthadara,
230 F.3d 1237 (10th Cir.2000), found that allowing three family members, the victim’s widow and their two children, to testify as victim impact witnesses did not violate the defendant’s due process rights. In
United States v. Bernard,
299 F.3d 467, 478 (5th Cir.2002), the Fifth Circuit found no error in the court’s allowing the reading of five victim impact statements, four from the victims’ parents and one by a friend and former coworker of the two victims; and in
United States v. Barnette,
211 F.3d 803, 818 (4th Cir.2000), the Fourth Circuit found no error when the trial court permitted seven family members to testify as victim impact witnesses regarding the deaths of two people. In
State v. Scales,
655 So.2d 1326, 1335-36 (La.1995), several family members testified, each briefly,' and that was not found to be reversible error.
State v. Taylor,
669 So.2d 364, 370-71 (La.1996) allowed three witnesses related to the victim, where their testimony took up only ten pages out of a 793-page tran
*189
script and where the defense presented twenty mitigation witnesses.
This court found that three to four family members per victim in this case was not too many
per se.
Each family member of a murdered victim suffers a unique harm. Consequently, each witness’ testimony provides distinct information that the jury can use in deciding what weight to give this aggravating factor.
Ultimately, however, the prosecution introduced victim impact evidence through the testimony of only six witnesses: three of McCloskey’s adult children, followed by Rizzo’s father, mother and one of his younger brothers. The testimony was conducted in question-and-answer format in order to control the subject matter covered and to provide the defendant with an opportunity to make objections. In total, the victim impact testimony comprised about two hours of more than two weeks of prosecution evidence, comprising only sixty-three pages of a very lengthy trial transcript.
Just before the first victim impact witness testified, the court instructed the jury as follows:
Ladies and gentlemen, the next set of witnesses are going to be members of the victims’ families. They’re going to give testimony that in the law is called victim impact testimony. And with the agreement of counsel, I’m going to explain to you now and, I expect, repeat at the end of the case the specific and limited purpose for which victim impact evidence can be considered by you.
To understand this, you need to be reminded of the architecture of the Federal Death Penalty Act. You may recall that in the process of jury selection and on the first day that you came to hear evidence, I told you that there are various stages in the Federal Death Penalty Act which establishes a process that you have to follow in this case in deciding the appropriate sentence.
At the first stage, you decide whether the defendant is eligible to be executed, whether the death penalty is an option.
In the second stage — if you reach that stage — if the government proves that the death penalty is an option, you have to decide which if any of the alleged aggravating factors have been proven beyond a reasonable doubt, actually, the non-statutory aggravating factors.
And then you would have to consider, if the death penalty is an option, whether any of the possible mitigating factors have been proven by a preponderance of the evidence. And then, if the death penalty is an option, you have to weigh the proven aggravating factors against any possible mitigating factors and decide if the aggravating factors are sufficient to make the death penalty the appropriate penalty in this case rather than life in prison without possibility of release, which is the only other option.
... the first thing you’ll have to consider when you go back to deliberate is whether the government has proven beyond a reasonable doubt certain facts that are necessary to establish that the defendant is eligible for the death penalty-
And this will require that the government prove at least one of several alleged states of mind at the time the crime was committed. And I’ll explain it to you, and they’ll be spelled out on the verdict form.
And you’ll also have to decide whether the government has proven beyond a reasonable doubt at least one aggravating factor that’s established by the Federal Death Penalty statute. For example, in this case there are several, but— for example, it’s alleged that each of the crimes was committed after substantial planning and premeditation.
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So, if the government doesn’t prove that the defendant is eligible for the death penalty, your deliberations will be complete, and you won’t in your deliberations have considered the victim impact evidence.
If the government does prove ... that the death penalty is an option for Mr. Sampson in this case for either or both of the crimes with which he’s charged and pled guilty, then you’ll go to the second stage. You’ll have to decide whether the government has proven any of what are called non-statutory aggravating factors beyond a reasonable doubt.
The impact of the crime on each of the victims, Philip McCloskey and Jonathan Rizzo and each of their families, is a non-statutory aggravating factor for each of the crimes concerning them. And several' members of each of the victims’ families are going to testify today with regard to this.
I want to tell you what the Supreme Court has explained about victim impact evidence. The evidence is intended to inform you that each victim was a unique human being, just as you’ll later hear through the evidence in this case that the defendant, Gary Sampson, is a unique human being. And I expect that the testimony that you’re going to start hearing soon will be emotional. In fact, [the Deputy Clerk] has some [Kleenex] and, if we discern that anybody wants it or needs it, he’ll give it to you ...
However, the victim impact evidence is being admitted for a limited purpose. That means you can consider it for a particular purpose, but not for other purposes.
You may not consider the victim impact evidence, that is, the evidence from the victims’ families, on the issue of whether the defendant is eligible for the death penalty. You’ll have to address certain other factual questions before you can properly consider victim impact evidence, and the victim impact evidence can’t influence your judgment on those earlier issues.
So, for example, you can’t consider what the victims’ families say on whether the defendant had the state of mind required when he committed the crime to make him eligible for the death penalty. And they won’t be testifying about that. And you can’t consider the evidence from the victims’ families on whether some statutory aggravating factor has been proven.
You can consider the victims’ families testimony only if the defendant is proven to be eligible for the death penalty by other evidence in the case, and then you can consider that testimony from the victims’ families only on the issue of victim impact and not with regard to whether other non-statutory aggravating factors have been proven.
If you find that the defendant is eligible for the death penalty with regard to the crime of carjacking resulting in the murder of Philip McCloskey, you may consider the content of the victim impact evidence, evidence from his family members, regarding whether the government has proven that non-statutory aggravating factor of victim impact. And if that’s proven, you can consider that factor in deciding whether the death penalty is justified for that crime. And the same is true with regard to the carjacking resulting in the murder of Jonathan Rizzo.
You may not, however, permit the victims’ families’ testimony to overwhelm your ability to follow the law. For example, you must obey the legal requirement that you not consider the testimony from the victims’ families on the factual issues that will determine whether the death penalty is an option
*191
for one or both of the crimes and [if] victim impact is proven, you must still decide based solely on the other evidence if the other alleged aggravating factors are proven beyond a reasonable doubt and whether any mitigating factors are proven by a preponderance of the evidence.
If the death penalty is an option in your deliberations, you must consider and weigh all of the proven aggravating factors and mitigating factors and not just consider victim impact in deciding if the death penalty is the appropriate penalty or whether the defendant should be sentenced, instead, to life without possibility of release.
In essence, the law requires that you decide whether the death penalty is justified in this case based on a reasoned judgment made according to the process that the law establishes and that I describe. You may not base the decision on undue sympathy, passion, or prejudice.
Oct. 20, 2003 Tr. at 34-40.
The government also sought to introduce a memorial video of Rizzo. The video, made for a memorial service, was about twenty-seven minutes in length and featured over 200 still photographs of the victim, in roughly chronological order, from the time he was born until the time just before his death. The pictures were set to evocative contemporary music, including that of the Beatles and James Taylor. On October 30, 2003, the court decided to exclude the videotape because its probative value was outweighed by the danger of unfair prejudice, and created a danger of provoking undue sympathy and a verdict based on passion as opposed to reason.
In making its decision, the court recognized that several courts have allowed some video clips of various kinds to be admitted during a sentencing-phase presentation of evidence. The Court of Appeals of Maryland in
Whittlesey v. State,
340 Md. 30 , 665 A.2d 223, 230 (1995), ruled that a 90-second videotape of the murder victim playing the piano, a skill for which the victim was nationally recognized, was relevant and admissible. In
State v. Gray,
887 S.W.2d 369, 389 (Mo.1994), the court held that a videotape of the victim’s family at Christmas, presented during the sentencing phase of a capital trial, was admissible. The court in
State v. Allen,
128 N.M. 482 , 994 P.2d 728, 751 (1999), found that a three-minute videotape of the victim on a camping trip had probative value, and that the defendant was not unfairly prejudiced by its admission as victim impact evidence. In
State v. Anthony,
776 So.2d 376, 393-94 (La.2000), during the testimony of one victim’s husband, the prosecution introduced a brief videotape depicting portions of her life. The Louisiana Supreme Court found that all evidence was properly admitted and upheld the death sentence.
In each of these cases, the admitted video was brief and found to be probative of some aspect of the victim’s life. In other cases, however, trial courts have excluded videotapes where they had the potential to cause unfair prejudice or arouse undue sympathy. For example, in
United States v. McVeigh,
153 F.3d 1166 , 1221 n. 47 (10th Cir.1998), “the district court prohibited the introduction of wedding photographs and home videos”.
Notably,
Salazar v. State,
118 S.W.3d 880 (Tex.App.2003), dealt with a situation almost identical to the instant case. The defendant was convicted by jury of the murder of Jonathon Bishop. During the punishment phase of trial, the judge admitted into evidence a seventeen minute videotape described by the court of criminal appeals as “an extraordinarily moving tribute to Jonathon Bishop’s life.”
Id.
at 882 (quoting
Salazar v. State,
90 S.W.3d
*192
330, 333 (Tex.Crim.App.2002) (remanding
Salazar
to Court of Appeals)).
The exhibit contained approximately 140 still photographs arranged in a chronological montage accompanied by music including “Storms in Africa” and “River” by Enya, and concluded with Celine Dion singing, “My Heart Will Go On,” from the movie Titanic. The jury assessed punishment at thirty-five years confinement and a fíne of $10,000.
Id.
In applying a harmless error analysis to both the visual and audio portions of the videotape, the Court of Appeals looked to the opinion of the Texas Court of Criminal Appeals, where the majority found the character of the videotape to be “very prejudicial” and remanded the case to the Court of Appeals for a harmless error analysis. Quoting the higher court’s review of the videotape, the Court of Appeals stated that:
“[The] prejudicial effect [of the videotape was] enormous because the implicit suggestion is that appellant murdered this angelic infant; he killed this laughing, light-hearted child; he snuffed out the life of a first-grade soccer player and of the young boy hugging his blond puppy dog. The danger of unconsciously misleading the jury [was] high.” The majority of the court also stated: “The memorial video ... was very lengthy, highly emotional, and barely probative of the victim’s life at the time of his death.” When remarking on the background music, the court said: “[T]he Enya and Celine Dion background music greatly amplifie[d] the prejudicial effect of the original error.” Even Judge Keller, a staunch proponent of victim-impact evidence, recognized the photographic montage “was unduly prejudicial,” that “the music was unnecessary,” and that the videotape “was presented in a manner designed to have an unduly emotional impact.” Additionally, regarding the music portion of the videotape, on direct appeal the State conceded that the music was not relevant. On remand, the State again concedes the photographs were “accompanied by highly emotional and moving background music.”
Id.
at 884 (alterations in original; citations omitted). The
Salazar
court ultimately concluded that the error stemming from the erroneous admission of the videotape was not harmless. The trial court’s judgment of conviction was affirmed, but the sentence was vacated and the case remanded to the trial court for a new hearing on punishment.
Id.
at 885 .
Even longer than the videotape analyzed in
Salazar ,
the Rizzo video was close to 30 minutes long and featured many pictures of the victim from birth to college, posing with family, friends and religious figures.
12
In addition, it was set to poignant music. Even without the music, admission of the video would have been unfairly prejudicial in light of the fact that the jury heard powerful, poignant testimony about Jonathan Rizzo’s full life and the impact of his loss on his family, and saw photographs of him in conjunction with this testimony. The video, given its length and the number of photos displayed, would have constituted an extended emotional appeal to the jury and would have provided much more than a “quick glimpse” of the victim’s life. Together with the evocative accompanying
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music, the videotape’s images would have inflamed the passion and sympathy of the jury-
The last issue presented was that of the proffered Whitney victim impact testimony. The government had proposed to offer the testimony of two of Robert Whitney’s adult children, in order to allow the jury the opportunity to decide how much weight to give the Whitney murder. The Whitney murder was alleged as an aggravating factor in the government’s Notice of Intent.
For several compelling reasons, on October 30, 2003, the court decided to exclude the Whitney victim impact evidence. First, the FDPA makes no express provision for victim impact evidence concerning the victim of a crime for which the defendant is not being sentenced. Section 3593(a) states that aggravating factors “may include factors concerning the effect of
the offense
on the victim and the victim’s family.”
Id.
(emphasis added). The offenses at issue in this case were the carjackings resulting in the deaths of McClos-key and Rizzo. The murder of Whitney, by contrast, was an aggravating factor in this case rather than a charged offense. An aggravating factor is not an “offense” within the meaning of § 3593(a).
The defendant argued that the government should be precluded from offering this evidence because its Notice of Intent stated that the aggravating factor in question was the murder of Whitney in New Hampshire; there was no reference in the aggravating factor to the presentation of victim impact evidence. This argument was not persuasive because under § 3593(a) the government is required only to give notice of aggravating factors, not all of the evidence it intends to use to prove them. Nevertheless, the court recognized that the proffered Whitney victim impact testimony did not tend to prove that Sampson murdered Whitney, as the aggravating factor states. That fact was undisputed, and the government was permitted to introduce some evidence to illustrate that fact and allow the jury to consider its proper weight in sentencing.
The impact of Whitney’s death on his survivors was also relevant to the weight the jury assigned to the murder as an aggravating factor. As described earlier, however, the Supreme Court and other courts have recognized the risk that victim impact evidence could cause passion to overwhelm reason in sentencing.
Payne,
501 U.S. at 836 , 111 S.Ct. 2597 (Souter, J., concurring);
Hain,
287 F.3d at 1237 (10th Cir.2002). While the court chose to exercise its discretion liberally in admitting much of the proffered victim impact evidence relating to the Rizzo and McCloskey murders, it found that admitting victim impact evidence regarding Whitney would create too great a risk that the jury would be unduly influenced by sympathy and passion, and the defendant would be denied due process.
See Payne,
501 U.S. at 825 , 111 S.Ct. 2597 .
Moreover, it is not clear that the FDPA authorizes victim impact evidence relating to uncharged murders, and no FDPA case seems to have included such evidence. The court found that given the foregoing considerations, it would not be appropriate to admit the victim impact evidence pertaining to Whitney, even assuming, without deciding, that it would be legally permissible to do so under the FDPA. ■
VIII. EVIDENCE RELATING TO OTHER CAPITAL PROSECUTIONS
One of the mitigating factors Sampson proposed to prove in this case was that “[t]here are numerous other federal defendants convicted of multiple murder who have not been sentenced to death.” Essentially, Sampson intended to
*194
argue that it would not be fair to sentence him to death when others who were guilty of equally or more awful crimes had not been executed. The government consistently opposed any reference to other cases.
13
On October 31, 2003, the court allowed the government’s motion in limine to preclude the defendant from presenting evidence of other cases to the jury. Essentially, the court concluded that although the outcomes of other cases were relevant to the determination of the appropriate penalty in this ease and the proffered mitigating factor could properly be presented to the jury, the evidence the defendant sought to admit to establish this mitigating factor was not admissible under the FDPA’s balancing test.
See
18 U.S.C. § 3593 (c). As there was no evidence presented in support of this mitigating factor, the court did not include it on the verdict forms or instruct the jury on it at the end of the case.
The government first argued that any evidence of the verdicts reached in other cases was irrelevant to the appropriate verdict in this case and, as it was not related to Sampson’s “character, record or the circumstances of his offenses,” was not properly a mitigating factor. Gov.’s Mot. in Limine — Exs. 20A & 20B at 2-3 (citing 18 U.S.C. § 3592 (a)(l)-(8) and cases). However, the FDPA does not limit mitigating factors to those that are related to the defendant or the crime. As Judge Helen Berrigan has persuasively written:
The penalty phase statute applicable to this case is 18 U.S.C. § 3592 . With regard to mitigating factors, it reads as follows:
(a) Mitigating factors. — In determining whether a sentence of death is to be imposed on a defendant, the finder of fact shall consider any mitigating factor, including the following:
(8) Other factors.' — Other factors in the defendant’s background, record, or character or any other circumstance of the offense that mitigate against imposition of the death sentence.
The most notable aspect of the statute is the introductory statement. The finder of fact (1) “shall” consider (2) “any mitigating factor, (3) including the following.” First, the jury “shall” or must consider the mitigating factors; it is obligatory, not discretionary. Second, the fact finder must consider “any” mitigating factor. There is no qualification or limitation other than the factor “mitigate” against a sentence of death. Third, “(I)ncluding the following” means the subsequent list is not exclusive, but is instead illustrative. The eight identified factors are examples of specific factors that, if supported by the evidence, mitigate against the death penalty. Most significantly for the issue here, subhead (8) which refers to other factors “in the defendant’s background, record, or character or any other circumstance of the offense” is a sub category of “any mitigating factor” rather than being the outer boundaries of what may be considered as mitigating. What 18 U.S.C.A. § 3592 allows is substantially broader than what the Supreme Court has declared to be the minimal requirements under the Constitution. According to the Supreme Court, the Eighth Amendment demands consideration only for those mitigating factors that concern the defendant’s “character or record and
*195
any of the circumstances of the offense ...”
Lockett v. Ohio,
438 U.S. 586, 604 , 98 S.Ct. 2954 , 57 L.Ed.2d 973 (1978). Under the statute, on the other hand, the Supreme Court’s constitutional minimum is simply subhead® of a non-exclusive list. The statute demands the fact finder consider “any mitigating” factor ... period.
United States v. Davis,
132 F.Supp.2d 455, 463-64 (E.D.La.2001) (second ellipsis in original);
see also id.
n. 1 (“[I]n light of the overall structure of the statute, it is 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.
14
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.
In
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
no
connection whatsoever to the alleged crime Defendant is accused of committing. Moreover, eight of the ten defendants in the espionage cases identified by the Defendant pled guilty, whereas the Defendant in this case has not. Permitting the submission of evidence of totally unrelated espionage cases would lead to a confusion of the issues or mislead the jury.
See id.
at 826-27 . Further, introducing evidence of that sort would inevitably amount to separate mini-trials on whether the Government should have sought the death penalty in certain cases. In sum, the damage assessments of other espionage defendants are irrelevant to the acts of the Defendant and the jury’s determination of Defendant’s sentence. Even if this evidence had a modicum of probative value, it would be substantially outweighed by the dangers of confusion of the issues and misleading the jury. Fed.R.Evid. 403.
Id.
This court disagreed with the conclusion, reached in
Regan ,
that the harm done by other capital defendants was irrelevant 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
*198
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
*199
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).
15
In
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.
16
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
*200
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 .
In
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.
17
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.
*201
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
*202
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).
In
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
St
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,
or
especially cruel.
18
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.
19
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)).
20
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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.
21
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.
In
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 Cartwright v. Maynard,
822 F.2d 1477, 1487 (10th Cir.1987) (citing
Eddings v. State,
616 P.2d 1159, 1167-68 (Okla.Crim.App.1980)),
aff'd,
486 U.S. 356 , 108 S.Ct. 1853 , 100 L.Ed.2d 372 (1988).
In
Maynard v. Cartwright,
486 U.S. 356 , 108 S.Ct. 1853 , 100 L.Ed.2d 372 (1988), the Court wrote:
We also do not hold that some kind of torture or serious physical abuse is the only limiting construction of the heinous, atrocious, or cruel aggravating circumstance that would be constitutionally acceptable.
Id.
at 365 , 108 S.Ct. 1853 . The FDPA, however, expressly makes these two limiting factors the only two means available in a federal prosecution to prove that an offense was committed in a heinous, cruel, or depraved manner.
In 1990, in
Walton v. Arizona,
497 U.S. 639, 646 , 110 S.Ct. 3047 , 111 L.Ed.2d 511 (1990), the Supreme Court addressed Arizona law, which by judicial construction limited the “heinous, cruel, or depraved” aggravating factor to circumstances when “the perpetrator inflicts mental anguish or physical abuse before the victim’s death.”
Id.
The Supreme Court noted that
Maynard
did not restrict the “heinous, cruel, or depraved” aggravating factor to only crimes involving torture or physical abuse, as that was not necessarily the only constitutionally acceptable construction of “heinous, cruel, or depraved”.
Id.
at 654-55, 110 S.Ct. 3047 . The Court went on to say that the construction given by the Arizona Supreme Court, which required the infliction of “mental anguish”, was “virtually identical to the construction we approved in
Maynard.” Id.
at 655, 110 S.Ct. 3047 .
In 1988, Congress passed the Anti-Drug Abuse Act (also known as the Drug Kingpin Act), which included constitutional provisions for imposing a death sentence for a federal crime. 21 U.S.C. § 848 . Section 848(n)(12) lists, as one aggravating factor to be considered, that “[t]he defendant committed the offense in an especially heinous, cruel, or depraved manner in that it involved torture or serious physical abuse to the victim.” In 1994, the same language was adopted in the FDPA.
In 1988, when the Drug Kingpin Act was passed, the 5th edition of Black’s Law Dictionary defined “torture” to mean:
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To inflict intense pain to body or mind for the purposes of punishment, to extract a confession or information, or for sadistic pleasure.
Black’s Law Dictionary
1335 (Spec. Deluxe 5th Ed.1979).
22
In contrast, the Eighth Circuit Pattern Instruction 12.07F now states in pertinent part:
“Torture” includes mental as well as physical abuse of the victim. In either case, the victim must have been conscious of the abuse at the time it was inflicted, and the defendant must have specifically intended to inflict severe mental or physical pain or suffering upon the victim, in addition to the killing of the victim.
Severe mental pain or suffering means prolonged mental harm caused by or resulting from intentionally inflicting or threatening to inflict severe physical pain or suffering ... [or] the threat of imminent death.
This language is derived from 18 U.S.C. § 2340 , a 1994 statute that criminalizes torture committed outside the United States. The 18 U.S.C. § 2340 and Eighth Circuit definitions do not include the requirement that the defendant have the purpose to punish or to achieve sadistic pleasure.
23
It would be plausible to interpret the FDPA in the same way.
However, the rule of lenity applies to this situation. The rule of lenity provides that “ambiguity in the scope of a criminal statute must be resolved in favor of a criminal defendant.”
United States v. Luna-Diaz,
222 F.3d 1 , 3 n. 2 (1st Cir.2000);
see also United States v. Hussein,
351 F.3d 9, 14 (1st Cir.2003);
Dowling v. United States,
473 U.S. 207, 213-4 , 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 premed

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2519787. Public record. Not legal advice.