United States v. Hammer

Opinions of the United

2000 Decisions States Court of Appeals

for the Third Circuit

8-31-2000

United States v. Hammer

Precedential or Non-Precedential:

Docket 98-9011

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Filed August 31, 2000

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 98-9011

UNITED STATES OF AMERICA

v.

DAVID PAUL HAMMER,

Appellant

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Crim. No. 96-00239)

District Judge: Honorable Malcolm Muir

Argued July 18, 2000

BEFORE: BECKER, Chief Judge, and STAPLETON and

GREENBERG, Circuit Judges

(Filed: August 31, 2000)

David M. Barasch

United States Attorney

Frederick E. Martin

Assistant United States Attorney

240 West Third Street

Suite 316

Williamsport, PA 17701

Gwynn X. Kinsey, Jr. (argued)

Attorney, United States Department

of Justice

Criminal Division

601 D. Street, N.W.

Washington, D.C. 20530

Attorneys for Appellee

David Paul Hammer (argued)

P.O. Box 33

Terre Haute, IN 47808-0033

Appellant pro se

Ronald C. Travis

Rieders, Travis, Mussina,

Humphrey & Harris

161 West Third Street

P.O. Box 215

Williamsport, PA 17703

David A. Ruhnke

Ruhnke & Barrett

47 Park Street

Montclair, N.J. 07042

Stand-by Attorneys for Appellant

John J. Gibbons

Lawrence S. Lustberg (argued)

Jessica A. Roth

Gibbons, Del Deo, Dolan,

Griffinger & Vecchione

One Riverfront Plaza

Newark, N.J. 07102-5497

Attorneys for amicus curiae

John J. Gibbons

2

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I.

A.

This matter comes before this court on David Paul

Hammer's appeal from the judgment of conviction and

sentence entered on November 4, 1998, in which the

district court imposed a sentence of death. We will dismiss

the appeal.

On April 13, 1996, Hammer, then an inmate at

USP/Allenwood in Pennsylvania, murdered Andrew Marti,

another inmate, by strangulation within a cell in the special

housing unit in Allenwood. Hammer was a state prisoner

transferred to the federal system from Oklahoma pursuant

to 18 U.S.C. S 5003 and Marti was a federal prisoner

serving a sentence for bank robbery. No question ever has

been raised about the fact that Hammer committed the

murder.

A grand jury indicted Hammer for violations of 18 U.S.C.

S 1111 (first degree murder within the special maritime and

territorial jurisdiction of the United States) and 18 U.S.C.

S 1118 (murder by a federal prisoner serving a life

sentence). The court, however, on the government's motion,

dismissed the section 1118 charge and thus Hammer

ultimately went to trial solely on the section 1111 charge.

Prior to the trial, the government served and filed a notice

that it intended to seek the death penalty. While originally

Hammer presented an insanity defense, during the trial he

pleaded guilty to the murder, thus abandoning that

defense.

Thereafter the case was tried to the jury but only with

respect to the sentence. On July 24, 1998, the jury

returned a verdict recommending the imposition of the

death sentence. Subsequently, Hammer filed a pro se

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motion seeking an order discharging counsel and allowing

him to proceed pro se and determine for himself whether to

appeal. The district court held an evidentiary hearing on

the motion. It received testimony from two highly qualified

psychiatrists, Drs. John Mitchell and James Wolfson, who

had examined Hammer. Their testimony is chronicled in

the district court's opinion, United States v. Hammer, 25 F.

Supp. 2d 518 (M.D. Pa. 1998). See especially the findings

of fact 21-38, id. at 523-24.

In the testimony cited in these findings, the psychiatrists

canvassed the range of cognitive and emotional capacities

relevant to the question whether Hammer was competent to

waive his rights and whether his waiver was voluntary.

They concluded that Hammer was fully competent, and

that his decision to forego an appeal and ask for the

immediate imposition and carrying out of the sentence of

death was a competent and well reasoned decision. The

district court also noted that the parties stipulated that

none of the defense experts who testified at trial suggested

that Hammer was incompetent at any relevant time. 1 On

the basis of the foregoing, the district court found that

Hammer was competent to waive his rights and that the

waiver was voluntary.

On October 9, 1998, the court entered an order

discharging Hammer's counsel, appointing stand-by

counsel for him, and fixing a sentencing date. On November

4, 1998, the district court sentenced Hammer to die. A

notice of appeal was filed on Hammer's behalf on November

12, 1998.

In the course of its opinion the court described the case

as follows:

The evidence presented during the trial viewed in a

light most favorable to the government establishes that

Mr. Hammer bound each limb of Mr. Marti by using

the ruse that he would only slightly injure Mr. Marti

and obtain a transfer for Mr. Marti to another prison.

Mr. Hammer after rendering Mr. Marti helpless put Mr.

_________________________________________________________________

1. The district court also received extensive testimony from Hammer,

strikingly similar to the statements he made to us, detailed infra.

4

Marti in a sleeper hold. Testimony from a pathologist

established that Mr. Marti struggled in the restraints.

Once Mr. Marti was rendered unconscious by the

sleeper hold, Mr. Hammer strangled him with a

homemade cord. In recommending a sentence of death

the jury, as required by statute, found that the

government established beyond a reasonable doubt

that Mr. Hammer intentionally killed Mr. Marti. The

jury also found beyond a reasonable doubt the

following two statutory aggravating factors: (1) Mr.

Hammer previously had been convicted of two or more

State or Federal offenses punishable by a term of

imprisonment of more than one year and (2) Mr.

Hammer committed the murder of Mr. Marti after

substantial planning and premeditation. These two

statutory aggravating factors are supported by the

record.

Id. at 520 (footnotes omitted).

On November 27, 1998, Hammer filed a pro se motion to

dismiss the appeal but on December 18, 1998, hefiled an

application to withdraw that motion which we granted on

December 30, 1998. On March 23, 1999, Hammer again

filed a motion to dismiss the appeal and by order of April

16, 1999, we reserved decision on the motion. Then on July

23, 1999, stand-by counsel on behalf of Hammer filed a

motion to withdraw the motion to dismiss the appeal. On

August 3, 1999, we granted the motion to withdraw the

motion to dismiss the appeal and thus the case proceeded

to the briefing stage.

B.

After opening briefing, Hammer on May 8, 2000,filed a

pro se motion for immediate dismissal of his appeal. By our

order dated May 11, 2000, we reserved decision on the

motion. Subsequently, Hammer sought reconsideration of

our May 11 order and unsuccessfully sought en banc

consideration of his motion to dismiss. Thereafter, we

entered an order reciting that we had examined the

extensive record in the case and satisfied ourselves that

there was no question of competency.2 We indicated,

_________________________________________________________________

2. We relied essentially on the record of proceedings in the district

court.

We also note however, that we received (from Hammer) records of

5

however, that we were concerned with the question of

whether the Federal Death Penalty Statute, 18 U.S.C.

SS 3591-98, permits an appeal to be waived. Accordingly,

we appointed John J. Gibbons, Esq. as amicus curiae"to

brief the question whether an appeal under the Federal

Death Penalty statute may be waived by a competent

defendant." We fixed a briefing schedule and directed the

government to file a responsive brief to the amicus's brief.

Moreover, we set argument for July 18, 2000, and directed

the clerk of our court to determine if it would be possible

for Hammer to appear at the argument from his place of

confinement at USP/Terre Haute through video-

conferencing. We provided that if video-conferencing was

possible we would hear Hammer personally. Both the

amicus and the government have filed briefs as we directed,

the amicus contending that a waiver is not permissible, or

at least, that one may not withdraw an appeal oncefiled,

and the government contending the opposite.

On June 30, 2000, Hammer filed a motion requesting

that we deem that he had withdrawn his May 8, 2000,

motion to dismiss the appeal or that we dismiss the motion

to dismiss the appeal. In view of this motion we considered

that the issue of whether the appeal could be dismissed

probably was moot as we do not doubt that up until the

argument date on July 18, 2000, we would have allowed

Hammer to withdraw his motion to dismiss his appeal and

thus would have heard the appeal on the merits. Then, in

the final significant pre-argument development we received

a letter dated July 11, 2000, on July 13, 2000, from

Hammer that once again stated that he wanted the appeal

dismissed. In the letter, after setting forth certain

background information, Hammer recited the following:

Therefore, I urge this court to decide my Pro se Motion

to have my appeal dismissed and not to consider the

_________________________________________________________________

subsequent regular psychiatric evaluations made by the medical staff at

Lewisburg, which essentially established the existence of a continuum,

in which Hammer's mental state was unchanged. We solicited the advice

of all counsel (including stand-by counsel) but no one suggested that

there was any question about Hammer's competency.

6

issue moot. My only desire is to have the sentence of

death implemented expeditiously, and whatever

process or procedure that achieves this result fastest is

what I feel is best.

C.

The oral argument was held on July 18, 2000, as

scheduled. Hammer was present by video-conferencing and

he argued at length. The members of this panel, his stand-

by counsel, government counsel, and counsel for the

amicus curiae all were able to see and hear Hammer quite

clearly. He spoke with great intelligence, logic, and force,

addressed the legal issues with considerable skill,

demonstrated a total command of the record, and was calm

and in total control of himself. Furthermore, he spoke

respectfully toward the court, his attorneys, and the amicus

curiae. He demonstrated his command of the case by

making very little use of notes.

At the outset Hammer said that it had always been his

intent "to be executed as promptly as possible."3 Thus, he

complained about the delay in the proceedings, although he

later acknowledged that he was in part responsible for the

delay. He said that he wanted his appeal dismissed so he

could be executed. Hammer represented that he never

authorized the filing of the notice of appeal. As he described

it, a notice of appeal was prepared by counsel on a"stand-

by" basis, and filed without his consent, although he

admitted that he subsequently acquiesced in it. He said

that "the death penalty . . . is the law of the land."

Moreover, he indicated that if anyone had been aggrieved

by constitutional violations in his case it had been he but

that he was willing to waive any violations and that no one

else had standing to complain.

Hammer stated that he had accepted responsibility for

_________________________________________________________________

3. Hammer later qualified this statement explaining that he had on

occasion changed his mind when he received a letter from the mother of

another death row inmate stating that, if he died, her son might too.

However, Hammer always reverted to his original intent to waive an

appeal and have the sentence of death carried out.

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killing another human being, that there was no question

but that he had killed Andrew Marti, and that he had a fair

though not a perfect trial. He said the jury returned the

verdict and that society had spoken through the 12

members of the jury. He asked, how would society be

protected if this appeal went forward? He then asked, how

was the interest of justice being served by the appeal? He

rejected the amicus's position that an appeal was

mandatory. He indicated that if he had a choice to live he

would do so but that he was not living, he merely was

"existing" in a small confined area, with only brief time out

for showers and exercise. He pointed out that he was 41

years old and had been in prison for 22 years since he was

a teenager except when he was on "escape status," and

faced 1,000 plus years in jail. He said that he would die in

prison, and preferred the certainty of knowing when and

how he would die, describing lethal injection as simple and

painless. He stated that he had read stand-by counsel's

brief and in his view, the chance of winning on appeal is slim.4

Hammer said that it was in his best interest to have the

"sentence of death implemented as expeditiously as

possible." He asked that, if we granted his motion to

dismiss, we send the case back to the district court with

instructions to schedule the execution. He said that if we

leave the matter in the hands of the Justice Department or

the Attorney General the case could linger and then"the

President might get involved."

He also said that he wanted to point out that his case

was different than the cases of most people on death row

because, in his words, he was the "politically correct

execution candidate." He then explained his reasons for

that conclusion which were that he is a "white man," the

murder was inside a prison, he already was serving a huge

amount of time, and his victim was white. Hammer also

commented upon the current controversy over the death

penalty, noting that he did not meet any of the criteria that

the Justice Department was studying regarding the fairness

_________________________________________________________________

4. Hammer even discussed the legal basis for the appeal and commented

that almost all of the asserted grounds had been rejected by the

jurisprudence, much of it by this court.

8

of its imposition, since there was no question of his guilt,

reiterating that he had killed Andrew Marti. Moreover, he

indicated that he had "absolutely no intention of seeking

clemency from the President of the United States. I don't

want to appeal. Obviously, I don't want clemency."

Hammer then said he would only be free when he was

dead, and he flatly denied that he was committing suicide.

Rather, he said that he accepted the judgment of the court

and the jury and that he accepted "responsibility for my

actions, for my actions of killing Andrew Marti." Indeed he

made an extraordinary plea for the imposition of the death

penalty. He pointed out that it had been four years since he

had murdered Marti. He said that if capital punishment is

ever going to mean anything then it should be implemented

in a time frame when people remember why it is being

imposed. He argued that until the death penalty is changed

"it should be implemented expeditiously."

He then discussed the "cruel and unusual punishment"

aspect of a capital case. He said that it was not cruel and

unusual for him to take a few steps, lie down on a gurney,

be strapped in and have drugs inserted into his veins. He

said the act of dying is the easy part and that the cruel and

unusual element of capital punishment is the mental and

emotional torture and everything you put yourself through

while you are waiting.

Near the end of his statement he once again

demonstrated that he accepted responsibility for his acts by

saying that the only way he could make amends was to

accept the punishment. The panel, of course, was mindful

that Hammer had vacillated with respect to the prosecution

of the appeal and thus at the end of Hammer's statement

we asked him:

Are you saying to us that if we dismiss this appeal

you're not going to come back to us and ask us to hear

your appeal later?

Hammer responded:

Yes, sir.

9

II.

A.

We deal initially with a point that the government raised

in its brief filed on July 13, 2000, in which it argued that

even though a defendant sentenced to die need not appeal,

we should hold that "Hammer has irrevocably elected to

proceed with the appeal." Br. at 6. The government took

this position which, if accepted, would have resulted in our

hearing the appeal on the merits, because it was concerned

that if we dismissed the appeal Hammer later would

contend that we should hear it. The government, however,

prepared its brief after Hammer filed his June 30, 2000

motion which sought an order leading us to hear his appeal

but before he filed his July 11, 2000 letter requesting us to

dismiss the appeal. The government cited St. Pierre v.

Cowan, ___ F.3d ___, 2000 WL 862521 (7th Cir. June 28,

2000), and Smith v. Armontrout, 865 F.2d 1502 (8th Cir.

1988), as support for its argument.

In considering the government's request, from which we

note that in the light of Hammer's personal plea it

somewhat retreated at oral argument, we treat Hammer's

motion as a motion to dismiss under Fed. R. App. P. 42(b)

which, as germane here, provides that "[a]n appeal may be

dismissed on the appellant's motion on terms agreed to by

the parties or fixed by the court." We are satisfied that we

have discretion to grant, or to deny Hammer's motion as

the government requested that we do in its brief. See

Clarendon Ltd. v. Nu-West Indus., Inc., 936 F.2d 127, 128-

30 (3d Cir. 1991); HCA Health Servs. of Virginia v.

Metropolitan Life Ins. Co., 957 F.2d 120, 123 (4th Cir.

1992). We also note that Hammer's July 11, 2000 letter

and his statements to this court on July 18, 2000, have

changed the situation since the government made the

request to us to hear the appeal on the merits. Hammer

has without equivocation asked us to dismiss his appeal

and has indicated that he will not change his mind with

respect to his request. We are satisfied that the concerns

the government has expressed about Hammer changing his

mind do not require us to hear Hammer's appeal. Thus, we

10

will consider Hammer's motion to dismiss and will not hold

that he has elected irrevocably to proceed with the appeal.

B.

Our determination with respect to the general exercise of

discretion takes us to the issue on which we sought

briefing: does the Federal Death Penalty statute preclude a

defendant sentenced to death from waiving his right of

appeal? We think that resolution of this issue bears upon

the exercise of our discretion. The appeal provision of the

statute, 18 U.S.C. S 3595 ("section 3595"), provides as

follows (emphasis added):

(a) Appeal.--In a case in which a sentence of death is

imposed, the sentence shall be subject to review by the

court of appeals upon appeal by the defendant . Notice

of appeal must be filed within the time specified for the

filing of a notice of appeal. An appeal under this

section may be consolidated with an appeal of the

judgment of conviction and shall have priority over all

other cases.

(b) Review.--The court of appeals shall review the

entire record in the case, including--

(1) the evidence submitted during the trial;

(2) the information submitted during the sentencing

hearing;

(3) the procedures employed in the sentencing

hearing; and

(4) the special findings returned under [18 U.S.C. S]

3593(d).

(c) Decision and disposition.--

(1) The court of appeals shall address all substantive

and procedural issues raised on the appeal of a

sentence of death, and shall consider whether the

sentence of death was imposed under the influence

of passion, prejudice, or any other arbitrary factor

and whether the evidence supports the special

finding of the existence of an aggravating factor

required to be considered under [18 U.S.C. S] 3592.

11

(2) Whenever the court of appeals finds that --

(A) the sentence of death was imposed under the

influence of passion, prejudice, or any other

arbitrary factor;

(B) the admissible evidence and information

adduced does not support the special finding of the

existence of the required aggravating factor; or

(C) the proceedings involved any other legal error

requiring reversal of the sentence that was properly

preserved for appeal under the rules of criminal

procedure,

the court shall remand the case for reconsideration

under [18 U.S.C. S] 3593 or imposition of a sentence

other than death. The court of appeals shall not

reverse or vacate a sentence of death on account of any

error which can be harmless, including any erroneous

special finding of an aggravating factor, where the

Government establishes beyond a reasonable doubt

that the error was harmless.

(3) The court of appeals shall state in writing the

reasons for its disposition of an appeal of a sentence

of death under this section.

It is, of course, immediately evident that section 3595

authorizes but does not explicitly require an appeal by a

defendant sentenced to death. The absence of such a

requirement would seem to establish clearly that a

defendant is not required to appeal a sentence of death.

After all, in general, parties to federal litigation, whether

civil or criminal, need not appeal adverse verdicts. Thus, if

Congress had intended to reverse this usual practice surely

it would have said so. Moreover, in Whitmore v. Arkansas,

495 U.S. 149, 166, 173, 110 S.Ct. 1717, 1729, 1733

(1990), Justice Marshall in his dissenting opinion indicated

that "[s]ociety's overwhelming interest in preventing

wrongful executions is evidenced by the fact that almost all

of the 37 States with the death penalty apparently have

prescribed mandatory, nonwaivable appellate review of at

least the sentence in capital cases." The Supreme Court

decided Whitmore in 1990, yet when Congress enacted

12

section 3595 in 1994 (see Pub. L. 103-322, Title VI,

S 60002(a), 108 Stat. 1967), it did not in terms require

mandatory review of a death sentence although Justice

Marshall's dissent spelled out the state practices.

Amicus seeks to overcome the absence of a requirement

for an appeal in section 3595 by a strained reading of the

section. Section 3595(a) provides initially that"[i]n a case in

which a sentence of death is imposed, the sentence shall be

subject to review by the court of appeals upon appeal by

the defendant. Notice of appeal must be filed within the

time specified for the filing of a notice of appeal." The first

quoted sentence plainly establishes as a prerequisite to the

exercise of appellate jurisdiction that the defendant appeal.

While it is true that the next sentence provides that

"[n]otice of appeal must be filed" within the specified time,

that provision is a limitation on when a defendant may

appeal rather than an affirmative command to him to do so

and even the able amicus curiae does not contend

otherwise in his brief. After all, if Congress had intended

that there be a mandatory review of death penalty

proceedings it had no need to provide that this sentence

was "subject to review . . . upon appeal of the defendant."

Instead, it simply could have provided for automatic review,

as do many (but not all) states.

Amicus seeks to overcome the plain import of section

3595 by pointing out that section 3595(b) provides that the

"court of appeals shall review the entire record in the case"

and that section 3595(c)(1) provides that the court of

appeals "shall address all substantive and procedural

issues raised on the appeal of a sentence of death, and

shall consider whether the sentence of death was imposed

under the influence of passion, prejudice, or any other

arbitrary factor and whether the evidence supports the

special finding of the existence of an aggravating factor

required to be considered under [18 U.S.C. S] 3592."

Amicus notes that the Act charges the Court with making

these determinations even if the death-sentenced prisoner

has not raised them. These provisions, however, are not an

independent source of appellate jurisdiction. Clearly, they

do nothing more than specify the scope of review when an

appeal is filed. Along the same lines, section 3595(c)(2),

13

which provides that upon making certain findings the court

of appeals shall remand the matter to the district court,

becomes operative only when appellate jurisdiction is

invoked in the first instance.

For all the foregoing reasons we conclude that we have

discretion to either grant or deny Hammer's motion to

dismiss his appeal and that there is no reason attributable

to the text of the Federal Death Penalty Act to exercise our

discretion under Rule 42(b) to deny Hammer's motion to

dismiss the appeal.5

We have considered in this regard amicus's argument

that to avoid a conflict with the Eighth Amendment the

Federal Death Penalty Act "precludes a capital defendant

from waiving direct appellate review of his death sentence."

Br. at 4. For a number of reasons the Eighth Amendment

argument is unavailing. The death penalty is not inherently

a punishment that violates the Eighth Amendment. See

Gregg v. Georgia, 428 U.S. 153, 176-87, 96 S. Ct. 2909,

2926-32 (1976). While the Supreme Court has discussed

the importance of making appellate review available to

defendants, see, e.g., Parker v. Dugger, 498 U.S. 308, 32,

111 S.Ct. 731, 739 (1991) (discussing the "crucial role of

meaningful appellate review in ensuring that the death

penalty is not imposed arbitrarily or irrationally"), it never

has suggested that this right cannot be waived. Cf. Pulley

v. Harris, 465 U.S. 37, 104 S.Ct. 871 (1984). In Harris, the

Court upheld the California death penalty statute which

had no provision for proportionality review. It noted that

several, but not all, of state death penalty statutes provided

for (1) proportionality review; and (2) an automatic appeal.

It concluded that the former was not constitutionally

necessary, and made no comment about the latter. See id.

at 44-45, 104 S.Ct. at 876. Furthermore, the Court never

has allowed that society at large has a constitutionally

cognizable interest in appellate review of capital sentences.

See Whitmore v. Arkansas, 495 U.S. 149, 110 S.Ct. 1717,

(rejecting third party attempt to raise appeal on defendant's

behalf); Gilmore v. Utah, 429 U.S. 1012, 97 S.Ct. 436 (1976)

(same).

_________________________________________________________________

5. Indeed, it would seem strange for the Act to require Hammer to

pursue an appeal that it did not oblige him to file.

14

C.

In concluding our opinion we thank the amicus curiae

and the members of his firm for ably advancing the

positions that an appeal is mandatory under the Federal

Death Penalty statute when the death penalty is imposed

and that we should not dismiss this appeal. Nevertheless,

as the foregoing discussion makes clear, Hammer is a

confessed murderer who not only pleaded guilty but also

obtained what he believes was a fair trial on the penalty

phase of the case. Moreover, it does not appear that any

other person has a legally-cognizable interest in these

proceedings. At all events, we have carefully considered the

entire record and concluded that, in the circumstances, the

interests of justice do not require that he be compelled to

appeal or that we review the district court proceedings on

the merits. We have considered the options, but are

satisfied that the proper course is to exercise our discretion

to grant Hammer's motion to dismiss. The appeal will be

dismissed. The case will be remanded to the district court

to fix an early new date for the implementation of the

sentence of death.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

15