Sampson v. United States , 724 F.3d 150 ( 2013 )

United States Court of Appeals
For the First Circuit
No. 12-1643
GARY LEE SAMPSON,
Petitioner, Appellee,
v.
UNITED STATES OF AMERICA,
Respondent, Appellant.
No. 12-8019
GARY LEE SAMPSON,
Respondent,
v.
UNITED STATES OF AMERICA,
Petitioner.
______________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
___________________
Before
Lynch, Chief Judge,
Selya and Lipez, Circuit Judges.
Mark T. Quinlivan, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief, for
appellant.
William E. McDaniels, with whom Jennifer G. Wicht, Cadence
Mertz, Williams & Connolly LLP, J. Martin Richey, Elizabeth L.
Prevett, Federal Public Defender's Office, and Susan K. Marcus were
on brief, for appellee.
July 25, 2013
SELYA, Circuit Judge. Few accouterments of our criminal
justice system are either more fundamental or more precious than
the accused's right to an impartial jury. That right is threatened
when — as in this case — juror dishonesty occurs during the voir
dire process yet is not discovered until well after final judgment
has entered on the jury's verdict. But finality is also valuable,
and not every instance of juror dishonesty requires setting aside
a previously rendered verdict.
In its present posture, this case poses important
questions about when and under what circumstances the belated
discovery of juror dishonesty during the voir dire process demands
vacatur of a jury verdict. The stakes are high — the jury here
recommended a death sentence — and the cases that populate this
arcane corner of the law are muddled.
The architecture of these appeals is easily described.
Gary Lee Sampson, the defendant in the underlying criminal case, is
on death row following his conviction on two counts of carjacking
(death resulting), a penalty-phase hearing in which the jury voted
to recommend capital punishment, and an unsuccessful direct appeal.
See United States v. Sampson (Sampson I), 486 F.3d 13 (1st Cir.
2007), cert. denied, 553 U.S. 1035 (2008). In an effort to undo
his sentence, the defendant brought a habeas petition, see 28
U.S.C. § 2255, and confronted the district court with a claim that
juror dishonesty during the voir dire process antecedent to the
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penalty-phase hearing deprived him of an impartial jury. Following
an evidentiary hearing, the district court agreed; it vacated the
death sentence and ordered a new penalty-phase hearing. United
States v. Sampson (Sampson IV), No. 01-10384, 2012 WL 1633296, at
*15 (D. Mass. May 10, 2012); United States v. Sampson (Sampson II),
820 F. Supp. 2d 151, 202 (D. Mass. 2011). The government seeks
immediate review of this decision.
We first address nuanced questions that cast doubt upon
our appellate jurisdiction. Concluding, as we do, that we can
proceed to the merits of the juror dishonesty claim, we adopt the
district court's findings of fact, articulate the proper legal
framework, array the district court's findings of fact against that
framework, and hold that the defendant's sentence must be set aside
and a new penalty-phase hearing conducted.
I. BACKGROUND
We rehearse here only those facts that are needed to tee
up this proceeding. The reader who hungers for more details should
consult the litany of earlier opinions in this case. See, e.g.,
Sampson I, 486 F.3d 13; Sampson II, 820 F. Supp. 2d 151; United
States v. Sampson (Sampson III), 820 F. Supp. 2d 202 (D. Mass.
2011); see also McCloskey v. Mueller, 446 F.3d 262 (1st Cir. 2006).
In 2001, the defendant engaged in a crime spree that took
him up the eastern seaboard. The spree included a series of bank
robberies in North Carolina and a botched attempt to surrender to
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the Federal Bureau of Investigation. See McCloskey, 446 F.3d at
264. The defendant then perpetrated two Massachusetts carjackings
that led to the slaying of the carjacked drivers (Phillip McCloskey
and Jonathan Rizzo). In each instance, the defendant hitched a
ride with the victim, forced the victim at knifepoint to drive to
a secluded area, and committed murder.
Following these gruesome incidents, the defendant fled to
New Hampshire in Rizzo's vehicle, forcibly entered a house, and
strangled the caretaker (Robert Whitney). He then drove Whitney's
vehicle to Vermont, abandoned it, and resumed hitchhiking. Another
Good Samaritan, William Gregory, gave him a lift. To repay his
kindness, the defendant attempted to force Gregory at knifepoint to
drive to a secluded spot. This time, however, the intended victim
escaped. The defendant later called 911, surrendered to the
authorities, and confessed.
On October 24, 2001, a federal grand jury sitting in the
District of Massachusetts charged the defendant with two counts of
carjacking, death resulting.1 See 18 U.S.C. § 2119(3). A
superseding indictment, deemed necessary to comply with Ring v.
Arizona, 536 U.S. 584, 609 (2002), reiterated these charges; and
1
Since neither Whitney's murder nor Gregory's carjacking was
charged by the government, these separate crimes were relevant only
as aggravating factors for sentencing purposes. Sampson II, 820 F.
Supp. 2d at 160.
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the government served a notice of intent to seek the death penalty
under the Federal Death Penalty Act (FDPA), 18 U.S.C. § 3593(a).
In due course, the defendant admitted guilt with respect
to both counts. The district court empaneled a death-qualified
jury to consider the punishment to be imposed. See id.
§ 3593(b)(2)(A); see also United States v. Green, 407 F.3d 434,
436-37 (1st Cir. 2005) (discussing "death-qualified jury"
requirements).
The voir dire lasted seventeen days and involved an
extensive effort to ensure that each juror could — and would —
decide the defendant's fate solely on the evidence. As a
preliminary matter, hundreds of potential jurors were required to
answer under oath seventy-seven written questions, carefully
designed to elicit information concerning possible bias and life
experiences that might have subconsciously affected an individual's
ability to consider the defendant's sentence objectively. Many
venirepersons were excused based on their written responses. Those
who passed muster were interrogated by the court and the parties.
Prospective jurors were repeatedly directed to answer all
questions accurately and honestly. All were advised that, upon
request, responses concerning sensitive subjects (whether written
or oral) would be kept out of the public record.
After individual questioning, the district court excused
potential jurors for cause for a wide variety of reasons, including
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pretrial exposure to information about the case, attitudes that
raised questions about impartiality, emotional life experiences
comparable to matters that would be aired at trial, and responses
that lacked candor. Eventually, the court seated a jury of twelve,
along with six alternates. During the six-week penalty-phase
hearing, the court learned that two jurors had answered voir dire
questions inaccurately and replaced them with alternates.
The penalty-phase hearing turned in large measure on the
existence vel non of statutory and non-statutory aggravating
factors and mitigating factors. See 18 U.S.C. §§ 3592(a), (c),
3593(c). In the end, the jury unanimously recommended that the
defendant be sentenced to death on both counts. The district court
followed this recommendation and imposed a sentence of death. See
id. §§ 3553, 3594; United States v. Sampson, 300 F. Supp. 2d 275,
278 (D. Mass. 2004). The court also denied a flurry of post-trial
motions. United States v. Sampson, 332 F. Supp. 2d 325, 341 (D.
Mass. 2004).
On direct review, we affirmed the sentence. Sampson I,
486 F.3d at 52. The Supreme Court denied the defendant's ensuing
petition for a writ of certiorari. See Sampson v. United States,
553 U.S. 1035 (2008).
On June 25, 2008, the district court appointed new
counsel to handle post-conviction proceedings. See 18 U.S.C.
§ 3599(a)(2). After some procedural skirmishing, the defendant
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filed a petition to vacate, set aside, or correct the judgment.
See 28 U.S.C. § 2255. Pertinently, the defendant claimed that he
was deprived of the right to have his sentence decided by an
impartial jury because three jurors, designated for the sake of
anonymity as Jurors C, D, and G, had falsely answered material voir
dire questions.2
The district court prudently convened an evidentiary
hearing to determine the scope and severity of the allegedly
inaccurate voir dire responses. This hearing was held over three
non-consecutive days. The first session concerned all three of the
contested jurors; the second and third sessions focused exclusively
on Juror C.
After careful consideration, the district court concluded
that the inaccuracies contained in Juror D's and Juror G's
responses were unintentional errors that did not justify setting
aside the results of the penalty-phase hearing. Sampson II, 820 F.
Supp. 2d at 197-201. The court reached a different conclusion as
to Juror C, finding that she had repeatedly and intentionally
provided dishonest responses to important voir dire questions. Id.
2
The defendant's section 2255 petition also includes claims
that he was denied effective assistance of counsel; that the
government violated its obligations under Brady v. Maryland, 373
U.S. 83 (1963); that the government committed misconduct during the
grand jury process; that execution would violate his Eighth
Amendment rights due to his severe mental impairment; and that the
FDPA and/or the death penalty are unconstitutional. Only the jury
dishonesty claim is before us.
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at 192-97. The court stated that truthful answers would have
resulted in Juror C's excusal for cause during voir dire because
the court would have "inferred bias." Id. at 165-66, 194-97.
Consequently, the court set aside the defendant's sentence,3 id. at
181-97, and on May 10, 2012, ordered a new penalty-phase hearing,
Sampson IV, 2012 WL 1633296, at *15.
At the government's behest, the court subsequently
certified the following questions for immediate appeal under 28
U.S.C. § 1292(b): "(1) whether [McDonough Power Equipment, Inc. v.
Greenwood, 464 U.S. 548 (1984)] requires proof of actual bias or
implied bias to obtain relief; and, if not, (2) whether [the
district] court correctly stated the McDonough test." Sampson IV,
2012 WL 1633296, at *15.
Recognizing that its right to prosecute an immediate
appeal of the district court's order was freighted with
uncertainty, the government went down three different but
complementary roads. First, it sought to pursue an appeal of the
decision as a final order under 28 U.S.C. § 1291 and/or 18 U.S.C.
§ 3731. Second, it sought to pursue an interlocutory appeal under
the aegis of 28 U.S.C. § 1292(b). Third, the government argued
that, should we find the decision not otherwise immediately
3
In a separate opinion, the court summarily dismissed some of
the defendant's other claims. See Sampson III, 820 F. Supp. 2d at
212-13; see also supra note 2. These rulings need not concern us
because the court has withheld the entry of orders on them.
Sampson IV, 2012 WL 1633296, at *15.
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appealable, it nonetheless ought to be reviewed through an exercise
of advisory mandamus. See id. § 1651. We have consolidated all of
these initiatives.
Because resolution of the jurisdictional conundrum is
logically antecedent to any discussion of the juror dishonesty
claim, we start there.
II. APPELLATE JURISDICTION
The most conventional assurance of appellate jurisdiction
is the existence of a final decision. See id. § 1291 (vesting
courts of appeals with jurisdiction over "appeals from all final
decisions of the district courts"). The government asseverates
that the district court's decision vacating the defendant's
sentence and granting him a new penalty-phase hearing is a final
decision and, thus, is immediately appealable. The government is
wrong.
The beacon by which we must steer is the Supreme Court's
decision in Andrews v. United States, 373 U.S. 334 (1963). There,
the Court held that an order in a section 2255 proceeding that
vacated a previously imposed sentence and required a new sentencing
hearing was not a final decision and, thus, not immediately
appealable. Id. at 339-40. Finality does not attach until the
defendant is sentenced anew. Id.
The government contends that Andrews is not controlling
because the decision appealed from here is not an order for
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resentencing but, rather, a grant of a new trial which, in a
section 2255 case, is immediately appealable. See United States v.
Gordon, 156 F.3d 376, 378-79 (2d Cir. 1998) (per curiam); United
States v. Allen, 613 F.2d 1248, 1251 (3d Cir. 1980). In support,
the government suggests that a penalty-phase hearing in a capital
case is more akin to a traditional trial than to a resentencing.
It emphasizes that a jury must be empaneled and certain aggravating
factors must be proven beyond a reasonable doubt. See 18 U.S.C.
§ 3593(b)-(c); Ring, 536 U.S. at 602, 609.
To be sure, such similarities do exist, but they are
superficial. In any event, the question of whether an order for a
new penalty-phase hearing in a capital case should be characterized
as a grant of a new trial as opposed to an order for resentencing
is not open to us.4 In Andrews, the Supreme Court stated squarely
that "[w]here, as here, what was appropriately asked and
appropriately granted was the resentencing of the petitioners, it
is obvious that there could be no final disposition of the § 2255
proceedings until the petitioners were resentenced." 373 U.S. at
340. We are bound by this precedent. See Figueroa v. Rivera, 147
F.3d 77, 81 n.3 (1st Cir. 1998).
4
As the government points out, courts sometimes refer to a
penalty-phase "trial." But the relevant portion of the FDPA, 18
U.S.C. § 3593(b), describes the penalty-phase proceeding as a
"sentencing hearing." We think that Congress's description
controls.
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Given this holding, it is indisputable that the grant of
a new penalty-phase hearing in a capital case is not a final
disposition of the proceedings. "In general, a judgment or
decision is final for the purpose of appeal only when it terminates
the litigation between the parties on the merits of the case, and
leaves nothing to be done but to enforce by execution what has been
determined." Parr v. United States, 351 U.S. 513, 518 (1956)
(internal quotation marks omitted). A decision ordering a new
penalty-phase hearing in a capital case does not satisfy this
benchmark. The litigation regarding the defendant's sentence will
not terminate until after the conclusion of the penalty-phase
hearing and the court sentences him anew.
In a variation on this theme, the government suggests
that the order for a new penalty-phase hearing must be final
because the last thing that the judge does in an FDPA case is to
order a penalty-phase hearing (after all, under most circumstances,
the FDPA requires the jury to determine the sentence). Thus, the
government's suggestion goes, an order granting a new penalty-phase
hearing is necessarily final.
This suggestion is hopeless. It may be a jury that
determines the sentence, but it is the judge who must empanel the
jury, preside over the new penalty-phase hearing, and impose the
sentence. See 18 U.S.C. §§ 3593(d), 3594. Such a series of steps
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to be taken falls comfortably within the ambit of section 2255.
See 28 U.S.C. § 2255(b).
In determining that no final decision has yet been
rendered, we do not write on a pristine page. Two other courts of
appeals have confirmed the applicability of Andrews to capital
penalty-phase hearings and concluded that no final disposition
exists until the new hearing is complete and the court imposes a
new sentence. See United States v. Hammer, 564 F.3d 628, 632-36
(3d Cir. 2009); United States v. Stitt, 459 F.3d 483, 485-86 (4th
Cir. 2006). We agree with these courts.
We likewise reject the government's entreaty that the
Criminal Appeals Act (CAA), 18 U.S.C. § 3731, which permits an
appeal from an "order . . . granting a new trial" in a criminal
case, furnishes a basis for jurisdiction. The Andrews Court
specifically held that the CAA "has no applicability" to section
2255 proceedings. 373 U.S. at 338. Andrews is binding on us.
This brings us to the government's assertion that we have
jurisdiction under 28 U.S.C. § 1292(b). By its terms, section
1292(b) confers discretionary appellate jurisdiction over certain
interlocutory orders not otherwise appealable. But this avenue is
available only when an "order involves a controlling question of
law as to which there is substantial ground for difference of
opinion and [] an immediate appeal from the order may materially
advance the ultimate termination of the litigation." Id. The
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district court found that these conditions had been satisfied and
certified questions to us under section 1292(b). Sampson IV, 2012
WL 1633296, at *11-15. The government, in turn, filed a petition
asking that we agree to exercise our section 1292(b) jurisdiction.
There is, however, a threshold question. Congress has
expressly restricted the operation of section 1292(b) to "civil
action[s]." 28 U.S.C. § 1292(b). Whether a section 2255
proceeding may appropriately be characterized as a civil action for
purposes of section 1292(b) is an unsettled question. This
uncertainty results from pervasive "confusion over whether § 2255
proceedings are civil or criminal in nature." Wall v. Kholi, 131
S. Ct. 1278, 1289 n.7 (2011); see 3 Charles A. Wright et al.,
Federal Practice and Procedure § 622 (4th ed. updated Apr. 2013).
Several cases indicate that section 2255 proceedings are
predominantly civil. See, e.g., Heflin v. United States, 358 U.S.
415, 418 n.7 (1959); Rogers v. United States, 180 F.3d 349, 352 n.3
(1st Cir. 1999). Other cases indicate that section 2255
proceedings are predominantly criminal. See, e.g., United States
v. Martin, 226 F.3d 1042, 1047 n.7 (9th Cir. 2000); United States
v. Quin, 836 F.2d 654, 655-56 n.2 (1st Cir. 1988).
An advisory committee note suggests that a section 2255
proceeding should be considered "a continuation of the criminal
case," rather than a separate civil action. E.g., Rule 3, Rules
Governing Section 2255 Proceedings, advisory committee's note.
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Some courts have found this controlling, see, e.g., United States
v. Cook, 997 F.2d 1312, 1319 (10th Cir. 1993), and others have not,
see, e.g., United States v. Nahodil, 36 F.3d 323, 328-29 (3d Cir.
1994).
To complicate the matter, some courts have abjured an
ironclad characterization and have treated section 2255 proceedings
as hybrid; that is, as civil for some purposes and criminal for
other purposes. See, e.g., United States v. Hadden, 475 F.3d 652,
664-65 (4th Cir. 2007) (collecting cases); United States v.
Fiorelli, 337 F.3d 282, 286 (3d Cir. 2003) ("[W]hile a § 2255
motion is deemed a further step in the movant's criminal case, it
is also considered a civil remedy for purposes of appellate
jurisdiction."); see also Trenkler v. United States, 536 F.3d 85,
94 (1st Cir. 2008) (making similar observation regarding analogous
petition for writ of coram nobis).
There is a smattering of direct precedent; courts
occasionally have authorized or refused to authorize the use of
section 1292(b) in section 2255 cases. Compare, e.g., United
States v. Pelullo, 399 F.3d 197, 202 (3d Cir. 2005) (granting
interlocutory appeal), with, e.g., Murphy v. Reid, 332 F.3d 82, 83
(2d Cir. 2003) (per curiam) (denying interlocutory appeal). But
these courts have done so without elaboration and the decisions
are, therefore, generally unhelpful.
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Given this lack of uniformity, we think that it is an
open and enigmatic question as to whether section 1292(b) can be
deployed in a section 2255 case. In the last analysis, we find it
unnecessary to answer this vexing question today. Instead, we
prefer to take a different route and exercise jurisdiction over the
underlying juror dishonesty issue through our advisory mandamus
power. See United States v. Horn, 29 F.3d 754, 769-70 (1st Cir.
1994); see also 16 Charles A. Wright et al., Federal Practice and
Procedure § 3934.1 (2d ed. updated Apr. 2013) ("Writ review that
responds to occasional special needs provides a valuable ad hoc
relief valve for the pressures that are imperfectly contained by
the statutes permitting appeals from final judgments and
interlocutory orders.").
In pursuance of the All Writs Act, 28 U.S.C. § 1651,
federal courts "may issue all writs necessary or appropriate in aid
of their respective jurisdictions and agreeable to the usages and
principles of law." This provision allows a court of appeals, in
certain circumstances, to afford immediate review to otherwise
unappealable orders. See, e.g., Horn, 29 F.3d at 769.
The type of writ most appropriate here is advisory
mandamus. This writ is reserved for a small class of cases in
which the usual general mandamus requirements are not met. See id.
It is "strong medicine and, as such, should be dispensed
sparingly." In re Sony BMG Music Entm't, 564 F.3d 1, 4 (1st Cir.
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2009). We typically exercise this power to settle substantial
questions of law when doing so would give needed guidance to
lawyers, litigants, and lower courts. See Horn, 29 F.3d at 770.
Advisory mandamus is particularly well-suited to the resolution of
important questions "which, if not immediately addressed, are
likely to recur and to evade effective review." Green, 407 F.3d at
439.
The case at hand fits snugly within these narrow
confines. To begin, the case presents an unsettled question of
systemic significance. See Horn, 29 F.3d at 769-70. Vacating a
determination made by a jury that has heard evidence for days on
end is a serious step. That is especially true in a capital case:
"death is [] different," Gardner v. Florida, 430 U.S. 349, 357
(1977) (plurality opinion), and repastinating previously plowed
ground in a capital case exposes the families of his victims and
the defendant to renewed emotional strain. It also entails
additional costs.
Additionally, the right at stake in this case deserves
great respect. "All would agree that an impartial jury is an
integral component of a fair trial" and must be "jealously
safeguard[ed]." Neron v. Tierney, 841 F.2d 1197, 1200-01 (1st Cir.
1988).
Here, moreover, the framework for determining when a new
trial is warranted because of juror dishonesty is not well-defined.
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The leading case on the effect of post-trial discovery of juror
dishonesty is the Supreme Court's seminal decision in McDonough.
McDonough involved quite different facts and its teachings are open
to interpretation. Further, the district court's reading of
McDonough is problematic.
Two other data points are also worthy of note. First,
the issue before us will almost certainly recur. The specter of
juror dishonesty presents a recurring danger in all cases, civil
and criminal, capital and non-capital. A clarification of the
applicable legal standard would be a great utility in allowing
courts in future cases to cope with this recurrent problem.
Second, forbearance on our part might well result in the
juror dishonesty question evading review. Let us explain.
Were we to squander this opportunity to review the
district court's decision, the new penalty-phase hearing ordered by
the district court would proceed and a newly empaneled jury would
recommend the sentence (life imprisonment or death). If the new
jury votes for a death sentence, the government would have no
incentive to appeal — and, indeed, would be foreclosed from doing
so. See United States v. Moran, 393 F.3d 1, 12 (1st Cir. 2004).
Nor would the defendant appeal the earlier grant of a new penalty-
phase hearing since it occurred at his behest. See United States
v. Angiulo, 897 F.2d 1169, 1216 (1st Cir. 1990) ("[D]efendants
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can[not] properly challenge on appeal a proposal they themselves
offered . . . .").
If, however, the newly empaneled jury votes for life
imprisonment, the district court's order may still evade review.
The defendant, of course, would not appeal. For its part, the
government might be prevented from appealing the earlier decision
to vacate the death sentence and order a new penalty-phase hearing.
After all, the Double Jeopardy Clause, U.S. Const. amend. V, cl. 2,
applies to sentencing hearings in capital cases. See Sattazahn v.
Pennsylvania, 537 U.S. 101, 107-09 (2003).
A jury's disavowal of the death penalty the second time
around, based on "findings sufficient to establish legal
entitlement to the life sentence," would normally be tantamount to
an acquittal for double jeopardy purposes. Id. at 107-09.
Permitting the government to appeal after a second death-eligible
jury has disavowed the death sentence would raise serious double
jeopardy concerns, and at the least would lead to an incongruous
result. Indeed, the Court has said that "[t]he policies underlying
the Double Jeopardy Clause militate against permitting the
Government to appeal after a verdict of acquittal." United States
v. Wilson, 420 U.S. 332, 352 (1975).
Withal, we note that the Double Jeopardy Clause may not
bar a government appeal following a second penalty-phase jury's
recommendation of life imprisonment. As a general rule, no double
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jeopardy problem is presented where an "error could be corrected
without subjecting [the defendant] to a second trial before a
second trier of fact." Id. at 345. The Court has held that
"[w]hen a jury returns a verdict of guilty and a trial judge (or an
appellate court) sets aside that verdict and enters a judgment of
acquittal, the Double Jeopardy Clause does not preclude a
prosecution appeal to reinstate the jury verdict of guilty." Smith
v. Massachusetts, 543 U.S. 463, 467 (2005). The Supreme Court has
yet to speak directly to this difficult issue.
We need not enter this quagmire: for present purposes,
it suffices to say that there is a credible possibility that the
district court's decision would evade appellate scrutiny were we to
defer review until after a new penalty-phase hearing is completed.
If a deferral of review carries with it an appreciable degree of
danger that the underlying issue will escape review entirely, that
danger argues in favor of exercising advisory mandamus. See United
States v. Pleau, 680 F.3d 1, 4 (1st Cir. 2012) (en banc).
To say more about the question of appellate jurisdiction
would serve no useful purpose. For the reasons elucidated above,
we deem this case an appropriate one for the exercise of our
advisory mandamus authority. Consequently, we proceed to the
merits.
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III. JUROR DISHONESTY
The government asserts that the district court erred as
a matter of law in vacating the defendant's sentence and ordering
a new penalty-phase hearing. In the government's view, the court
misinterpreted the Supreme Court's opinion in McDonough, 464 U.S.
548 (1984), and erected an erroneous legal framework for handling
post-trial claims of newly discovered juror dishonesty.
Our standard of review is bifurcated. We review findings
of raw fact for clear error. See United States v. George, 676 F.3d
249, 256 (1st Cir. 2012). We review the correctness of the
district court's legal analysis de novo. See Prou v. United
States, 199 F.3d 37, 42 (1st Cir. 1999).
The government's challenge primarily targets the district
court's legal regime. We agree with the government that the
district court misinterpreted McDonough and erected an erroneous
framework. In this instance, however, applying the appropriate
framework leads to the same result.
To explain these conclusions, we begin by canvassing the
district court's findings of fact. We turn next to the appropriate
legal framework. Then, we array the facts supportably found
against the appropriate framework. Finally, we deal with two
peripheral arguments advanced by the government.
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A. Facts Supportably Found.
The district court's meticulous factfinding brought to
light a litany of lies told by Juror C during voir dire. We
rehearse the particulars.
The post-trial hearing stretched out over three separate
court days. During those occasions, the district judge had ample
opportunity to gauge Juror C's credibility and evaluate her
impartiality. The court supportably found that Juror C gave false
answers not only during voir dire but also during the post-trial
hearing itself. These false answers related primarily to two
aspects of Juror C's life.
The first area about which Juror C persistently lied
involved her ex-husband, P. The second involved her daughter, J.5
The district court supportably found, based on evidence
adduced during the post-trial proceeding, that P, an employee of
the United States Postal Service, regularly abused alcohol and
marijuana. P rebuffed Juror C's adjurations to seek treatment and
his continued substance abuse contributed to Juror C's decision to
obtain a divorce.
During their marriage, Juror C feared physical abuse as
P often threatened to harm her. On one occasion, P menaced Juror
C with a shotgun. After her sons took the weapon away, Juror C
5
The following summary of the district court's pertinent
findings is drawn from the court's exegetic opinion in Sampson II,
820 F. Supp. 2d at 181-88.
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reported the incident to the police. She requested and received an
abuse prevention order that required P to stay away from her. P
violated this order, committing a criminal offense, when he
approached Juror C at their home, chased her into the bedroom, and
would not let her leave. P was arrested and prosecuted for
violating the abuse prevention order. When Juror C belatedly
admitted these events, she characterized them as "horrible" and "a
nightmare."
Juror C described her experiences with J, whose very
existence she had failed to acknowledge either in her responses to
the juror questionnaire or during the voir dire, in much the same
way. As Juror C well knew, J at one time held an administrative
job with the Sanibel Police Department in Florida. J lost this
position in 1997, however, when she was placed on probation after
admitting to the theft of property. J violated the terms of her
probation and was given a six-month incarcerative sentence. Juror
C vouchsafed her beliefs that J had been treated fairly by the
authorities during this ordeal.
J also became a cocaine addict. Ashamed of J's criminal
conduct and drug use, Juror C had tried to forget about these
experiences because thinking of them was "killing" her. She was
unwilling to admit that such events could happen in her family.
Although Juror C signed the written voir dire
questionnaire under the pains and penalties of perjury, the proof
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adduced during the post-trial proceeding, summarized above, made it
pellucid that no fewer than ten of her responses were apocryphal.
We give the flavor of this mendacity by recounting some of the
responses given by Juror C on the questionnaire.
C Question 32 inquired whether Juror C or anyone
close to her ever had a drug problem. She
answered "no."
C Question 34 inquired whether Juror C or anyone
close to her worked for the federal government.
She answered "no."
C Question 47 inquired as to how many children
Juror C had. She indicated that she had only two
sons.
C Question 59 inquired whether Juror C, or anyone
close to her had ever been a victim of a crime or
a witness to a crime. She answered "no."
C Question 61 inquired whether Juror C or anyone
close to her had ever been questioned as part of
a criminal investigation. She answered "no."
C Question 63 inquired whether Juror C or anyone
close to her had ever been charged with
committing a crime. She answered "no."
C Question 64 inquired whether Juror C knew anyone
who had ever been in prison. She answered "no."
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C Question 65 inquired whether Juror C or anyone
close to her ever had an experience with the
police in which she (or that other person) was
treated fairly. She answered "no."
C Question 68 inquired whether Juror C or anyone
else close to her had ever been employed in law
enforcement. She answered "no."
Each of these answers was false. Juror C perpetuated these
falsehoods during the individual voir dire questioning.
To make a bad situation worse, Juror C continued her
charade during the initial session of the post-trial hearing. When
defense counsel attempted to probe her lies about P, she resisted
that line of inquiry, professing that she did not "want to go into
all of these [things]."
On the second day of the post-trial hearing, the truth
about J began to emerge; Juror C admitted, for the first time, that
she had a daughter who had been arrested.6
During the same post-trial session, Juror C testified
that she did not speak to any of her fellow jurors after the trial
had concluded. She also denied any contact with the victims'
6
Juror C testified that she wanted to call the court about
this set of lies after the first post-trial session but did not
have the telephone number. The court, noting that its telephone
number was on both her subpoena letter and on the court's general
website, found this excuse incredible. Sampson II, 820 F. Supp. 2d
at 187.
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families. These statements were untrue — and Juror C admitted as
much during the final session of the post-trial hearing. Although
these lies did not occur during voir dire, they are plainly
relevant to Juror C's credibility and strongly support the district
court's finding of juror dishonesty.
Based on this and other evidence, the district court
found that Juror C had intentionally and repeatedly dissembled
about P and J because of both the emotional pain involved in
discussing these experiences and her desire to avoid the
humiliation of sharing them. Sampson II, 820 F. Supp. 2d at 181,
197. This finding has overwhelming support in the record. Juror
C herself acknowledged that she had withheld the information about
P and J because, when completing the questionnaire, she "didn't
think [her] personal life had anything to do with [] being a
juror." Id. at 187. In all events, her demeanor while testifying
evinced her emotional pain and humiliation; she was visibly
distraught when discussing P and J, crying and incoherently
attempting to excuse her mendacity. See id. at 184, 185, 190.
B. The Legal Framework.
We come next to the underlying legal principles that
govern post-trial claims of newly discovered juror dishonesty. It
is constitutional bedrock that "[i]n all criminal prosecutions, the
accused shall enjoy the right to a speedy and public trial, by an
impartial jury." U.S. Const. amend VI. An impartial jury is one
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"capable and willing to decide the case solely on the evidence
before it." McDonough, 464 U.S. at 554 (internal quotation marks
omitted). The right to an impartial jury is nowhere as precious as
when a defendant is on trial for his life. See Ross v. Oklahoma,
487 U.S. 81, 85 (1988).
The FDPA enshrines this right. It requires that the jury
be unanimous in concluding that the death penalty is justified.
See 18 U.S.C. § 3593(d). If even a single biased juror
participates in the imposition of the death sentence, the sentence
is infirm and cannot be executed. See Morgan v. Illinois, 504 U.S.
719, 729 (1992).
Voir dire is a singularly important means of safeguarding
the right to an impartial jury. A probing voir dire examination is
"[t]he best way to ensure that jurors do not harbor biases for or
against the parties." Correia v. Fitzgerald, 354 F.3d 47, 52 (1st
Cir. 2003). This goal, however, is not easy to achieve: a person
who harbors a bias may not appreciate it and, in any event, may be
reluctant to admit her lack of objectivity. See McDonough, 464
U.S. at 554; Crawford v. United States, 212 U.S. 183, 196 (1909).
As the Supreme Court explained over a century ago, "[b]ias or
prejudice is such an elusive condition of the mind that it is most
difficult, if not impossible, to always recognize its existence."
Crawford, 212 U.S. at 196.
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The voir dire process, which is fluid rather than
mechanical, is frustrated when a prospective juror is dishonest.
Both the juror's dishonesty and her motivation for that dishonesty
may cast doubt upon her impartiality. See McDonough, 464 U.S. at
556. "If the answers to [voir dire] questions are willfully
evasive or knowingly untrue, the talesman, when accepted, is a
juror in name only." Clark v. United States, 289 U.S. 1, 11
(1933).
In McDonough, the Supreme Court spoke to the question of
when a party is entitled to a new trial after learning that a juror
failed to disclose material information during the voir dire. In
McDonough, a seated juror in a product liability case, when queried
during voir dire whether he or his immediate family members had
ever sustained severe injury in an accident, did not disclose that
his son had been hurt in a truck tire explosion. 464 U.S. at 549-
51. Following a verdict for the defendant and the disclosure of
this information, the district court denied a motion for a new
trial.7 The court of appeals reversed. The Supreme Court ruled
that the juror's "mistaken, though honest," response did not
necessitate a new trial. Id. at 555. Emphasizing that a party "is
entitled to a fair trial but not a perfect one," id. at 553
7
The government argues that standards for review of post-
conviction claims of juror dishonesty must be more stringent than
standards for review of a district court's decision during voir
dire to exclude a juror for bias. Because we base our decision on
McDonough, we do not discuss this argument.
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(internal quotation marks omitted), the Court explained that
parties cannot be granted a new trial if the only purpose is "to
recreate the peremptory challenge process because counsel lacked
. . . information," id. at 555.
The McDonough Court distinguished the case before it from
a situation in which a juror was intentionally dishonest during
voir dire, and the combination of the undisclosed information and
such dishonesty demonstrates bias. To secure a new trial, in the
latter situation, a party must show "that a juror failed to answer
honestly a material question" at voir dire, and "then further show
that a correct response would have provided a valid basis for a
challenge for cause." Id. at 556. In this regard, the Court noted
that "[t]he motives for concealing information may vary, but only
those reasons that affect a juror's impartiality can truly be said
to affect the fairness of a trial." Id.
We think it follows that, under McDonough, a party
seeking a new trial based on juror dishonesty during voir dire must
satisfy a binary test. See id.; see also Crowley v. L.L. Bean,
Inc., 303 F.3d 387, 407 (1st Cir. 2002). The party must show,
first, that the juror failed to answer honestly a material voir
dire question.8 See McDonough, 464 U.S. at 556. For this purpose,
8
Of course, a juror, during voir dire, may make honest, but
mistaken responses. This category includes situations in which,
for example, the juror misunderstands the wording of the question,
fails to recall the correct response, or is not asked a question
that would necessitate disclosure of the relevant information. We
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a voir dire question is material if a response to it "has a natural
tendency to influence, or is capable of influencing," the judge's
impartiality determination. Neder v. United States, 527 U.S. 1, 16
(1999) (internal quotation marks and alteration omitted).
The second part of the binary test requires a finding
that a truthful response to the voir dire question "would have
provided a valid basis for a challenge for cause." McDonough, 464
U.S. at 556. Jurors normally are subject to excusal for cause if
they are biased or if they fail to satisfy statutory
qualifications. 2 Charles Alan Wright et al., Federal Practice and
Procedure § 382 (4th ed. updated Apr. 2013). In this instance,
only bias is relevant.
What constitutes a valid basis for excusal within the
purview of the binary test is the question that lies at the heart
of these appeals. The district court took a categorical approach
to this question, identifying three such bases: actual bias,
implied bias, and inferable bias. Sampson II, 820 F. Supp. 2d at
162-67. We find this categorical delineation unhelpful.
The McDonough Court saw no need to use pigeonholes of
this sort. The Court started by defining impartiality as a
do not explore here the effect of honest but mistaken voir dire
responses. For present purposes, it suffices to say that in the
absence of dishonesty, post-trial relief, if available at all, will
require a more flagrant showing of juror bias. See Amirault v.
Fair, 968 F.2d 1404, 1405 (1st Cir. 1992) (per curiam).
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condition that allows a juror to be "capable and willing to decide
the case solely on the evidence." McDonough, 464 U.S. at 554
(quoting Smith v. Phillips, 455 U.S. 209, 217 (1982)). The flip
side of impartiality is bias, but the Court warned that "hints of
bias [are] not sufficient." Id. Instead, only "[d]emonstrated
bias in the responses to questions on voir dire may result in a
juror's being excused for cause." Id.
This means, of course, that cognizable juror bias is a
valid basis for excusal. But McDonough imposes no requirement that
cognizable bias be confined to any particular sub-categories.
Everything depends on the particular circumstances. Seen in this
light, we think that attempting to classify biases in sub-
categories is likely to do more harm than good. Consequently, we
eschew the district court's formulation and hew to the line plotted
by the McDonough court. Id. at 555-56.
Refraining from a categorical approach makes eminently
good sense: after all, bias is not a pedagogical conception but
rather a state of mind. To reveal the existence of this state of
mind, "the Constitution lays down no particular tests and procedure
is not chained to any ancient and artificial formula." United
States v. Wood, 299 U.S. 123, 145-46 (1936).
When all is said and done, the existence vel non of a
valid basis for a challenge for cause is not a matter of labels.
Any inquiry into potential bias in the event of juror dishonesty
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must be both context specific and fact specific. The outcome of
this inquiry depends on whether a reasonable judge, armed with the
information that the dishonest juror failed to disclose and the
reason behind the juror's dishonesty, would conclude under the
totality of the circumstances that the juror lacked the capacity
and the will to decide the case based on the evidence (and that,
therefore, a valid basis for excusal for cause existed). See
McDonough, 464 U.S. at 554. The party seeking to upset the jury's
verdict has the burden of showing the requisite level of bias by a
preponderance of the evidence. See DeBurgo v. St. Amand, 587 F.3d
61, 71 (1st Cir. 2009).
A number of factors may be relevant in determining
whether a juror has both the capacity and the will to decide the
case solely on the evidence. This compendium may include (but is
not limited to) the juror's interpersonal relationships, see, e.g.,
United States v. Colombo, 869 F.2d 149, 151-52 (2d Cir. 1989);
United States v. Scott, 854 F.2d 697, 698-700 (5th Cir. 1988); the
juror's ability to separate her emotions from her duties, see,
e.g., Dennis v. Mitchell, 354 F.3d 511, 518-19, 521 (6th Cir.
2003); Burton v. Johnson, 948 F.2d 1150, 1158-59 (10th Cir. 1991);
the similarity between the juror's experiences and important facts
presented at trial, see, e.g., United States v. Torres, 128 F.3d
38, 47-48 (2d Cir. 1997); Burton, 948 F.2d at 1158-59; the scope
and severity of the juror's dishonesty, see, e.g., Dyer v.
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Calderon, 151 F.3d 970, 983-84 (9th Cir. 1998) (en banc); Scott,
854 F.2d at 699-700; and the juror's motive for lying, see
McDonough, 464 U.S. at 556; Skaggs v. Otis Elevator Co., 164 F.3d
511, 516 (10th Cir. 1998). Although any one of these factors,
taken in isolation, may be insufficient to ground a finding of a
valid basis for a challenge for cause, their cumulative effect must
nonetheless be considered. See United States v. Perkins, 748 F.2d
1519, 1532-33 (11th Cir. 1984).
C. Integrating Fact and Law.
It remains for us to evaluate the impact of the facts
supportably found in terms of the appropriate legal framework. But
there is a rub: the district court misunderstood the applicable
legal framework, instead creating a new sub-category that it called
"inferable bias" to serve as the cornerstone of its conclusion that
Juror C's dishonesty necessitated a new penalty-phase hearing. See
Sampson II, 820 F. Supp. 2d at 165-67, 192-96.
The district court's mistaken view of the law, however,
does not require us to throw out the baby with the bath water.
Where, as here, a trial court, notwithstanding its misapprehension
of the law, makes a detailed set of subsidiary findings as to the
raw facts, those findings sometimes may be subject to reuse. See
Societe Des Produits Nestle, S.A. v. Casa Helvetia, Inc., 982 F.2d
633, 642 (1st Cir. 1992) (concluding that, in a case in which the
trial court supportably found the facts but applied the wrong rule
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of law, court of appeals had the authority, in lieu of remand, to
array the findings against the correct legal standard); United
States v. Mora, 821 F.2d 860, 869 (1st Cir. 1987) (similar). This
is such a case.
We turn now to the task of arraying the lower court's
factual findings against the correct legal framework. The first
part of the binary test focuses on whether Juror C failed to answer
honestly one or more material voir dire questions. The district
court's factual findings make manifest that this benchmark was
satisfied. Juror C understood her duty to be truthful in answering
the voir dire questionnaire, yet her certification under the pains
and penalties of perjury was knowingly false. As Juror C later
admitted, she had been deliberately dishonest when answering the
questions that called for information about the exploits of P and
J.
The materiality of the questions that Juror C answered
dishonestly is nose-on-the-face plain. Each question,
individually, was designed to solicit information that potentially
could impugn a juror's impartiality; and the questions,
collectively, bore heavily on that subject. Questions that go to
the heart of juror impartiality are unarguably material to the voir
dire process.
This brings us to the second element of the binary test:
whether a reasonable judge, armed with the information that the
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dishonest juror failed to disclose and the reason behind the
juror's dishonesty, would conclude under the totality of the
circumstances that the juror lacked the capacity and the will to
decide the case based on the evidence (and that, therefore, a valid
basis for excusal for cause existed). We conclude that this
showing was made. Our conclusion rests on three cross-braced
pillars: (i) Juror C's habitual dissembling; (ii) the intense
emotions Juror C exhibited when belatedly relating her life
experiences involving P and J; and (iii) the similarities between
Juror C's unreported life experiences and the evidence presented
during the penalty-phase hearing. We comment briefly about the way
in which these pillars interact to demonstrate a valid basis for
excusal for cause.
Although juror dishonesty, by itself, is not sufficient
to demonstrate bias, it can be a powerful indicator of bias. See
Colombo, 869 F.2d at 151; Perkins, 748 F.2d at 1532-33. Here,
Juror C lied repeatedly in the voir dire questionnaire and directly
to the court. This parlous pattern of persistent prevarication
supports an inference that Juror C's ability to perform her sworn
duty as an impartial juror was compromised from the start.
What is more, Juror C's repetitive acts of dishonesty
illustrate the powerful emotions she harbored about P and J. See
Burton, 948 F.2d at 1159. To put this proposition in bold relief,
Juror C left no doubt but that she would rather lie to the court
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than discuss these painful life experiences. The record fully
supports the district court's observation that, even years after
the penalty-phase hearing, her "shame and embarrassment were so
intense that she could not discuss those matters candidly,
unemotionally or, often, coherently." Sampson II, 820 F. Supp. 2d
at 193.
This display of emotional distress illuminates Juror C's
motives for lying. The McDonough Court made clear that "only those
reasons [for lying] that affect a juror's impartiality can truly be
said to affect the fairness of a trial." 464 U.S. at 556. Here,
it is far more likely than not that — as the district court found
— Juror C's reasons for lying about P and J impaired her ability to
decide the case solely on the evidence. The magnitude of Juror C's
emotional distress strongly suggests that it would have been a
Sisyphean task for her to separate the evidence presented at the
penalty-phase hearing from her intense feelings about her own life
experiences.
Juror C's inability to remain detached is especially
troubling in this case because of the similarity between her
distress-inducing life experiences and the evidence presented
during the penalty-phase hearing. When a juror has life
experiences that correspond with evidence presented during the
trial, that congruence raises obvious concerns about the juror's
possible bias. See Torres, 128 F.3d at 47-48; Burton, 948 F.2d at
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1158-59. In such a situation, the juror may have enormous
difficulty separating her own life experiences from evidence in the
case. For example, it would be natural for a juror who had been
the victim of a home invasion to harbor bias against a defendant
accused of such a crime.
In the case at hand, the overlap is striking. We offer a
few illustrations.
For one thing, the jurors heard evidence that the
defendant threatened bank tellers at gunpoint during the string of
North Carolina bank robberies and his murder victims at knife
point. For her part, Juror C was frequently threatened by her
then-husband once with a shotgun and other times with his fists.
The shotgun threat occurred in fairly close temporal proximity to
the empanelment of the jury (three years or so). See Sampson II,
820 F. Supp. 2d at 185. These parallels raise a serious concern as
to whether an ordinary person in Juror C's shoes would be able to
disregard her own experiences in evaluating the evidence.
For another thing, the government presented evidence
during the penalty-phase hearing that the defendant had substance
abuse problems — problems that contributed, inter alia, to the
dissolution of his marriage. For her part, Juror C was forced to
deal with the substance abuse of both her husband and her daughter.
Indeed, P's substance abuse was a catalyst for the dissolution of
Juror C's marriage. These parallels raise a serious concern as to
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whether an ordinary person in Juror C's shoes would be able to
disregard her own family's involvement with substance abuse and
avoid a bias against the defendant on account of his substance
abuse.
Then, too, the jury heard evidence during the penalty-
phase hearing anent the defendant's criminal history, including his
incarceration for robbery. Analogously, Juror C's daughter
committed larceny and was incarcerated as a result. Juror C
testified that she was deeply ashamed of her daughter's immurement.
These parallels raise a serious concern as to whether an ordinary
person in Juror C's shoes would be able to disregard J's troubles
with the law and avoid a bias against the defendant on this
account.9 This concern is magnified by the powerful emotions that
Juror C displayed about her parallel life experiences.
We conclude that if fully informed of Juror C's
willingness to lie repeatedly, her fragile emotional state, her
past experiences with P and J, and the similarities between those
experiences and the evidence to be presented during the penalty-
phase hearing, any reasonable judge would have found that the
cumulative effect of those factors demonstrated bias (and, thus, a
valid basis for excusal for cause). Indeed, the court below
9
In this regard, Juror C might also have identified with the
defendant's parents, whom the penalty-phase evidence depicted as
being ashamed of their child (abandoning him and refusing to
cooperate with his attorneys). See Sampson II, 820 F. Supp. 2d at
158, 181.
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excused a number of prospective jurors for cause on less compelling
grounds. Thus, the defendant was deprived of the right to an
impartial jury and is entitled to a new penalty-phase hearing.
D. Attempts at Avoidance.
As a last resort, the government tries to catch lightning
in a bottle. It argues that even if Juror C's dishonesty
constitutes a valid basis for dismissal for cause, the district
court had no right to vacate the defendant's sentence and order a
new penalty-phase hearing. It advances two theories. We find
neither theory persuasive.
To begin, the government asserts that the district court
developed a new constitutional rule when it based the grant of a
new penalty-phase hearing on "inferable bias." The application of
this new rule, the government's thesis runs, transgressed the non-
retroactivity principle for criminal cases under collateral review.
See Teague v. Lane, 489 U.S. 288, 310 (1989) (plurality opinion)
(holding that a criminal defendant is generally not entitled to
collateral relief if granting that relief would require the court
to apply a new constitutional rule implicating criminal procedure);
Ferrara v. United States, 456 F.3d 278, 288 (1st Cir. 2006) (same).
This proposition is rendered moot by our rejection of the
district court's "inferable bias" formulation. The legal framework
that we have used does not embody any new constitutional rule of
criminal procedure but, rather, merely applies the rule laid down
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by the Supreme Court in McDonough to the circumstances of the case
at hand. Such a course of action does not offend the non-
retroactivity principle. After all, a case is deemed to announce
a new constitutional rule of criminal procedure only if the result
is not driven by precedent that existed at the time of the
decision. See Teague, 489 U.S. at 301 (plurality opinion). A case
does not announce a new constitutional rule of criminal procedure
when it is "merely an application of the principle that governed"
a prior decision to a different set of facts. Id. at 307
(plurality opinion; internal quotation marks omitted); accord
Chaidez v. United States, 133 S. Ct. 1103, 1107 (2013); O'Dell v.
Netherland, 521 U.S. 151, 156 (1997).
If more were needed — and we do not think that it is —
the government's assertion of the non-retroactivity principle is
untimely. The government makes this argument for the first time on
appeal. A Teague defense is not jurisdictional, and the
government's failure to raise such a defense in a timeous manner
constitutes a waiver. See Ferrara, 456 F.3d at 289. Because the
government failed to interpose this defense below, it is waived.
The government's second attempt at avoidance is no more
convincing. It asserts that because the defendant seeks
remediation on collateral review, constitutional error does not
entitle him to relief in the absence of actual prejudice. See
Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993). Building on
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this foundation, the government insists that there has been no
showing of actual prejudice here.
The government is wrong. There is more than sufficient
evidence of prejudice in the record to entitle the defendant to
relief,10 given the extent of Juror C's bias and the capital
penalty-phase proceedings in which she participated. As the
Supreme Court said in United States v. Martinez-Salazar, 528 U.S.
304 (2000), where a biased juror sits on a jury that sentenced a
defendant to death and the issue was properly preserved, the
sentence would have to be overturned, id. at 316 (citing Ross, 487
U.S. at 85); see also Morgan, 504 U.S. at 729 (stating that "[i]f
even one [biased] juror is empaneled and the death sentence is
imposed, the State is disentitled to execute the sentence").
IV. CONCLUSION
This case is a stark reminder of the consequences of
juror dishonesty. Jurors who do not take their oaths seriously
threaten the very integrity of the judicial process. The costs,
whether measured in terms of human suffering or monetary outlays,
are staggering. But the ultimate lesson that this case teaches is
that the protections afforded by the Constitution and laws of the
10
In view of the existence of actual prejudice, we need not
reach the defendant's contention that the doctrine of structural
error applies and obviates any need for a showing of actual
prejudice. See Brecht, 507 U.S. at 629-30.
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United States are, in the end, sufficient to protect against even
the most insidious threat.
We need go no further. For the reasons elucidated above,
we dismiss the government's two appeals. Exercising our advisory
mandamus power, we conclude — as did the district court — that the
death sentence must be vacated and a new penalty-phase hearing
undertaken. Accordingly, we deny the government's request for the
issuance of an extraordinary writ.
So Ordered.
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