U.S. v. Woolard ( 1993 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 92-7006
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
JOHN FRED WOOLARD and
DEMPSEY A. BRUNER,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Mississippi
( January 11, 1993 )
Before WILLIAMS, HIGGINBOTHAM, and BARKSDALE, Circuit Judges.
HIGGINBOTHAM, Circuit Judge:
On October 9, 1991 Woolard and Bruner were indicted in the
Southern District of Mississippi for the murder of Robert L.
McGhee, an officer of the National Park Service "with malice
aforethought, premeditation," and during the commission of an
escape, contrary to 18 U.S.C. §§ 1111, 1114 and 2. When the
prosecution gave required notice of intent to seek the death
penalty, defendants moved to strike the death penalty as a possible
sentence contending that the federal capital sentencing provision,
§ 1111, was unconstitutional. The district court granted the
motion and the government has appealed, and alternatively, should
we find a lack of jurisdiction, petitioned for a writ of mandamus.
I
It is not certain that we have jurisdiction to review the
order striking death as a permissible punishment. Defendants urge
that we do not. They deny that the order is reviewable under 18
U.S.C. § 37311 or under the "collateral order" doctrine. Cohen v.
Beneficial Industrial Loan Corp., 337 U.S. 541 (1949).
In enacting § 3731 Congress "intended to remove all statutory
barriers to Government appeals and to allow appeals whenever the
Constitution would permit," United States v. Wilson, 420 U.S. 332,
337 (1975), and by its terms it is to be "liberally construed to
effectuate its purposes." 18 U.S.C. § 3731; see also United States
v. Aslam, 936 F.2d 751, 754 (2d Cir. 1991) (§ 3731 is illustrative
not exclusive); United States v. Edmonson, 792 F.2d 1492, 1496 (9th
Cir. 1986) (same). Circuit courts have found jurisdiction to
review orders dismissing a count of an indictment and orders that
did not dismiss an entire count but altered it in a significant way
from the grand jury's charge. For example, the Ninth Circuit found
jurisdiction to review an order striking forfeiture allegations
from a RICO indictment in United States v. Marubeni America Corp.,
611 F.2d 763, 764-765 (9th Cir. 1980), and the First Circuit
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Section 3731 provides:
In a criminal case an appeal by the United States shall
lie to a court of appeals from a decision, judgment, or
order of a district court dismissing an indictment or
information or granting a new trial after verdict of
judgment, as to any one or more counts, except that no
appeal shall lie where the double jeopardy clause of the
United States Constitution prohibits further prosecution.
. . .
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reviewed a pretrial order striking a predicate act from a RICO
count. United States v. Levasseur, 846 F.2d 786, 788 (1st Cir.),
cert. denied, 488 U.S. 894 (1988). There is little question but
that the district court's ruling was in every practical way as much
of an alteration from the grand jury's charge as the striking of
predicate acts and forfeiture allegations. The district court
effectively removed a discrete basis of criminal liability. See
United States v. Tom, 787 F.2d 65 (2d Cir. 1986) (allowing the
government to appeal under § 3731 where the district court took
action having the practical effect of dismissal). We are persuaded
that we have jurisdiction under 18 U.S.C. § 3731, and we need not
consider the collateral order issues or mandamus.
II
With a creative and bold new approach the government has
changed its own mind about the availability of the death penalty in
federal court without additional aid of Congress, see Memorandum
Opinion for the Associate Attorney General, 5 OP. O.L.C. 222
(1981), and confronts this court's ruling that 18 U.S.C. § 1111could not support a death sentence under Furman v. Georgia, 408
U.S. 238 (1972). See United States v. Kaiser, 545 F.2d 467 (5th
Cir. 1977).
The government first attempts to bring its position within the
three distinct requirements of Furman. See, e.g., Blystone v.
Pennsylvania, 494 U.S. 299, 308-09 (1990); McCleskey v. Kemp, 481
U.S. 279, 305-06 (1987). First, the sanction of death must be
proportionate to the crime. Second, the scheme must "genuinely
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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." Zant v.
Stephens, 462 U.S. 862, 877 (1983). Third, the sentencing judge or
jury must be allowed to consider all evidence that tends to
mitigate moral culpability and militate against a sentence of
death. Penry v. Lynaugh, 492 U.S. 302 (1989).
Death is a lawful punishment for intentional homicide. See
Tison v. Arizona, 481 U.S. 137, 157-58 (1987). Defendants are
charged with intentionally killing the park ranger. The second and
third requirements of Furman are more problematic.
The government contends that §§ 1111 and 1114 in combination
narrow the class of defendants eligible for the death penalty as
required by Furman although both were enacted before Furman was
decided.2 Under § 1114, before a death sentence can be imposed the
2
Section 1114 provides:
Whoever kills or attempts to kill . . . any officer or
employee of the National Park Service . . . engaged in or on
account of the performance of his official duties . . .
shall be punished as provided for under sections 1111 and
1112 of this title . . .
Section 1111 provides:
(a) Murder is the unlawful killing of a human being
with malice aforethought. Every murder perpetrated by
poison, lying in wait, or any other kind of willful,
deliberate, malicious, and premeditated killing; or
committed in the perpetration of . . . escape . . . is
murder in the first degree.
(b) Within the special maritime and territorial
jurisdiction of the United States,
Whoever is guilty of murder in the first degree, shall
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jury must find that defendants killed "an officer or employee of
the National Park Service . . . engaged in or on account of the
performance of his official duties." 18 U.S.C. § 1114. The
government urges that the jury's discretion is thus limited by
Congress and focused upon the circumstances of the crime itself.
Defendants reply that Congress's intent in passing § 1114 was only
to extend federal jurisdiction to murders of federal officers, and
even if narrowed, the statute leaves "a host of difficult
substantive and procedural issues." The district judge is left to
decide such issues as who has the burden of proof in the sentencing
phase, whether the jury should be instructed to weigh aggravating
evidence against mitigating evidence in order to arrive at a
sentence of life or death, whether jury findings of mitigation
preclude imposition of the death penalty, and other components of
a sentencing hearing. These requisites of a sentencing hearing in
capital cases, defendants argue, cannot be supplied by judicial
fiat.
III
The Court in United States v. Feola, 420 U.S. 671, 679 (1975),
rejected arguments that the government must prove that the
defendant knew that his victim was a federal officer, concluding
that official status was not an element of the crime but was rather
the federal jurisdictional hook. See also United States v.
Harrelson, 754 F.2d 1153, 1173 (5th Cir. 1985). In short, there is
suffer death unless the jury qualifies its verdity by adding
thereto "without capital punishment," in which event he
shall be sentenced to imprisonment for life . . .
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little question but that Congress did not enact § 1114 to narrow
the range of crimes punishable by death or to segregate from other
crimes the murder of a federal officer as warranting the penalty of
death. Congress simply wanted to make the murder of a federal
officer a federal crime. The government's reply does not engage
here but rather contends that the motive or purpose of Congress
does not matter.
The question is whether Congress narrowed the range of
offenses to the reach of Furman. In other words, results matter
and not the reasons for the narrowing. The role of motivation in
passing legislation has been long debated, including the disutility
of such a test for legitimacy. It is a strange argument that
imposing the death penalty in this case would be unconstitutional,
but would pass muster if without changing the language or effect of
§ 1114 we found that Congress intended its effect in order to meet
the dictates of the Eighth Amendment, at least where here Congress
has not acted for any improper motive. But, it is offered, it is
not enough that in the process of making a federal case of one
crime and not another the result is to narrow capital crimes to a
constitutionally permissible range. It is not enough because the
Eighth Amendment and due process require that Congress select the
fit crimes; that Congress must do the weighing. We are not
persuaded.
We find no such insistence of congressional awareness in the
due process clause or the Eighth Amendment. It is true that the
Eighth Amendment has been read as reflecting evolving standards of
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decency and the representative branch's judgment about the currency
of a standard is at least relevant. Accepting all of this, it does
not argue for a unique defining role of Congress. In any event, we
have never recognized it. More to the point, the suggestion begs
the question of whether Congress has not in fact narrowed. That
is, this argument is simply a contention for inquiring into
motivation, recast.
IV
This brings us to the question whether the trial judge can by
invention supply the required procedures at the sentencing hearing,
indeed supply a sentencing hearing. The government contends that
the district court has inherent power to conduct those hearings
necessary to meet constitutional requirements such as evidentiary
hearings on the admissibility of evidence. We agree that a
district judge has inherent power essential to its task. There
are, however, many different ways of constructing a
constitutionally adequate scheme. The Supreme Court has left
states free to proceed in ways that are in practice quite
different. There is simply not "any one right way . . . to set up
[a] capital sentencing scheme." Spaziano v. Florida, 468 U.S. 447,
464 (1984).
The Federal Kidnapping Act was struck down because it made
kidnapping punishable by death only on a plea of not guilty and
hence penalized a defendant's right to put the government to its
proof. United States v. Jackson, 390 U.S. 570 (1968). The Court
in Jackson rejected the effort to save the statute with the
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argument that a district judge could conduct a sentencing hearing
on a plea of guilty by exercise of its inherent power. It pointed
out that there are a number of policy decisions not addressed by
Congress that would need be made, asking:
If a special jury were convened to recommend a sentence, how
would the penalty hearing proceed? What would each side be
required to show? What standard of proof would govern? To
what extent would conventional rules of evidence be abrogated?
What privileges would the accused enjoy? Congress . . . has
addressed itself to none of these questions . . .
Id. at 579. The Court then explained that these choices were for
Congress not federal judges acting ad hoc across the country. Id.
at 580-81.
It is one thing to fill a minor gap in a statute . . .
It is quite another thing to create from whole cloth a complex
and completely novel procedure and to thrust it upon unwilling
defendants for the sole purpose of rescuing a statute from a
charge of unconstitutionality.
Id. at 580. The choices are for the Congress and it has not acted.
We agree with the district court on this point and affirm.
AFFIRMED.
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