United States v. McClure , 241 F. App'x 105 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4550
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CORNELL WINFREI MCCLURE, a/k/a Droopy,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Deborah K. Chasanow, District Judge. (CR-
01-367)
Submitted: May 14, 2007 Decided: July 10, 2007
Before MICHAEL and DUNCAN, Circuit Judges, and Frank D. WHITNEY,
United States District Judge for the Western District of North
Carolina, sitting by designation.
Affirmed by unpublished per curiam opinion.
Francis A. Pommett, III, LAW OFFICES OF NATHANSON & POMMETT, P.C.,
Baltimore, Maryland, for Appellant. Rod J. Rosenstein, United
States Attorney, James M. Trusty, Assistant United States Attorney,
Bryan Foreman, Assistant United States Attorney, Theodore M.
Cooperstein, Special Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Cornell Winfrei McClure was convicted on several criminal
counts relating to the kidnapping and murder of Tessa Mae Osborne
on federal property and sentenced to life imprisonment. See 18
U.S.C. §§ 924(c), 1111, 1201(a)(2). On appeal, McClure argues that
the death penalty violates customary international law in
contravention of the Eighth Amendment and that the Federal Death
Penalty Act (the “FDPA”) offends the Indictment Clause of the Fifth
Amendment. Because McClure did not receive a death sentence,
however, we may not consider his challenges to the death penalty
lest we issue an advisory opinion in violation of Article III of
the United States Constitution. Accordingly, we affirm his
conviction and sentence.
I.
The evidence adduced at trial, which is consistent with a
confession McClure now recants, suggests that McClure and co-
defendant Rufus J. Millegan, Jr., killed Osborne in retaliation for
the robbery of Millegan by certain of Osborne’s acquaintances. As
Osborne was walking to work on the afternoon of May 1, 2001,
McClure and Millegan picked her up in a borrowed vehicle and drove
her to Millegan’s apartment, where Millegan retrieved two handguns.
The duo then drove Osborne to the Beltsville Agricultural Research
Center, an area within the territorial jurisdiction of the United
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States. As the three exited the vehicle, McClure reached into
Millegan’s pocket, extracted one of the handguns, and shot Osborne.
As Osborne ran, McClure and Millegan continued firing until the
handguns were empty of ammunition. McClure and Millegan fled,
leaving Osborne behind. Osborne died as a result of the gunshot
wounds.
McClure was arrested shortly thereafter and confessed to the
crime. The government informed McClure of its intention to seek
the death penalty. McClure then filed a series of motions
challenging the constitutionality of the death penalty, which the
district court denied. After a lengthy colloquy with the court to
ensure the voluntariness of the waiver, McClure waived his right to
a jury trial. The district court found McClure guilty on all
counts and sentenced him to life imprisonment without release.
II.
On appeal, McClure resurrects the challenges to the death
penalty that he introduced before his trial. First, McClure argues
that imposition of the death penalty is necessarily “cruel and
unusual” in violation of the Eighth Amendment. McClure notes that
the Supreme Court increasingly has cited customary international
law to inform its analysis in death-penalty cases. See, e.g.,
Roper v. Simmons, 543 U.S. 551, 575-78 (2005) (finding confirmation
for its decision to abolish the death penalty for juveniles in the
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fact that the United States remained the only county in the world
to contemplate the execution of juveniles); Atkins v. Virginia, 536
U.S. 304, 316 n.21 (2002) (suggesting that “the world
community[’s]” disapproval of “the imposition of the death penalty
for crimes committed by mentally retarded offenders . . . lends
further support to [the Court’s] conclusion that there is a
consensus” against such imposition). Because the United States is
now the only Western nation to implement the death penalty, McClure
reasons, the death penalty per se violates customary international
law and should be considered to be in contravention of the Eighth
Amendment.
Second, McClure argues that the FDPA facially violates the
Indictment Clause of the Fifth Amendment: “No person shall be held
to answer for a capital, or otherwise infamous crime, unless on a
presentment or indictment of a Grand Jury.” McClure argues that
Ring v. Arizona, 536 U.S. 584 (2002), requires that any capital
indictment mention at least one aggravating factor to satisfy the
Fifth Amendment. See United States v. Higgs, 353 F.3d 281, 297-98
(4th Cir. 2003) (reading Ring to require that such factors appear
in the indictment). But see United States v. Wills, 346 F.3d 476,
501 (4th Cir. 2003) (reading Ring not to require aggravating
factors in the indictment). Though McClure concedes that his own
indictment did include the necessary aggravating factors, he
nevertheless argues that the FDPA provides no authorization or
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mechanism for a grand jury to consider aggravating factors.
Therefore, he concludes, the FDPA necessarily violates Ring and is
unconstitutional.
We do not reach the merits of either of McClure’s
constitutional arguments, however, because another constitutional
provision prevents us from reaching them: the Article III
prohibition against advisory opinions.
III.
Article III, Section 2 provides, in relevant part, that “[t]he
judicial power shall extend to all cases, in law and equity,
arising under this Constitution, the laws of the United States, and
treaties made, . . . [and] to controversies to which the United
States shall be a party.” More succinctly, “the exercise of the
judicial power is limited to ‘cases’ and ‘controversies.’” Muskrat
v. United States, 219 U.S. 346, 356 (1911). The Supreme Court has
developed a number of constitutional justiciability doctrines from
the text of Article III, Section 2, including the prohibition
against advisory opinions, the political question doctrine, and the
doctrines of standing, ripeness, and mootness. See Erwin
Chemerinsky, Federal Jurisdiction § 2.1 (4th ed. 2003).
Underpinning all of these doctrines is the prohibition against
advisory opinions. The Court has developed two criteria that must
be satisfied to ensure that a case does not call for an advisory
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opinion. First, the case must pit against each other “‘adverse
parties whose contentions are submitted to the court for
adjudication.’” Muskrat, 219 U.S. at 357 (quoting In re Pacific
Ry. Comm’n, 32 F. 241, 255 (C.C.N.D. Cal. 1887)). Second, a
decision in the case must be likely to have some effect on the
dispute. See, e.g., Chi. & S. Air Lines v. Waterman S.S. Corp.,
333 U.S. 103, 113 (1948) (refusing to review certain Civil
Aeronautics Board decisions because the President could disregard
or modify the judicial rulings).
This court has had occasion to apply this second criterion.
For example, in United States v. Baker, 45 F.3d 837 (4th Cir.
1995), the defendant challenged the constitutionality of conducting
via video conference a mental competency hearing pursuant to 18
U.S.C. § 4245. Id. at 840. The parties agreed that whatever the
court’s ruling, it would also be binding on related hearings held
pursuant to 18 U.S.C. § 4246. Id. at 840 n.1. The court expressly
rejected the invitation to rule on the constitutionality of a
video-conference hearing under § 4246: “Because there was no
commitment hearing in this case initiated pursuant to section 4246
on appeal, any holding we might make with respect to section 4246
would be an advisory opinion.” Id. The court therefore held that
“the parties cannot, by virtue of their ‘stipulation,’ confer
jurisdiction on this Court to issue an advisory opinion.” Id.
Similarly, this court has also declined to rule on the
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constitutionality of a statute that had been materially revised
since the litigation was initiated. See 11126 Baltimore Blvd. v.
Prince George’s County, 924 F.2d 557, 557-58 (4th Cir. 1991)
(holding that any decision on the older version of the statute
would offer only illusory relief because the municipality could
simply rely prospectively on the newer version).
The Tenth Circuit has applied the prohibition against advisory
opinions to facts bearing some resemblance to the case at bar. In
United States v. Maestas, 523 F.2d 316 (10th Cir. 1975), the
defendant, a non-Indian, was charged in federal court with the rape
of two Indian women in Indian country. Id. at 318. The statutory
schema established a maximum penalty of death for a non-Indian
convicted of such a rape, 18 U.S.C. § 2031, but a maximum penalty
of life imprisonment for an Indian convicted of the same crime, 18
U.S.C. § 1153. Maestas, 523 F.2d at 322. Because the government
did not seek the death penalty, however, the court suggested that
to issue a ruling regarding the disparate punishments possible for
Indians and non-Indians would constitute the rendering of an
advisory opinion. Id. at 322-23.
This criterion, that a decision must be likely to have some
effect on the dispute, has been compared to the redressability
prong of the standing inquiry. For example, in City of Los Angeles
v. Lyons, 461 U.S. 95 (1983), the Supreme Court linked satisfaction
of the redressability prong to the assurance that the case “does
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not entail the issuance of an advisory opinion . . . and that the
exercise of a court’s remedial powers will actually redress the
alleged injury.” Id. at 129. See also Chemerinsky, supra, § 2.2
(noting the centrality of the prohibition against advisory opinions
by highlighting how “several of the other justiciability
doctrines,” including the redressability prong of the standing
inquiry, “prevent review where there is not a sufficient likelihood
that the federal court decision will make some difference”).
It seems axiomatic that McClure should not be permitted to
challenge the constitutionality of the death penalty in light of
the fact that he received only a life sentence. Recognizing this,
McClure argues that the mere possibility of his receiving the death
penalty created an injury of constitutional magnitude that a
favorable ruling on appeal would redress. McClure insists, without
evidence, that he would have been less likely to be convicted if
tried before a jury, but was less likely to receive the death
penalty following a bench trial. Thus, the apprehension of a
possible death sentence motivated McClure to alter his trial
strategy, waiving his right to a jury trial and instead submitting
to a bench trial. Were this court to agree, strike down the death
penalty under either of his arguments, and grant him a new trial,
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McClure concludes, he would not waive his right to a jury trial and
would have a better chance of securing an acquittal.*
McClure’s chain of suppositions invites us to indulge in
sophistry. McClure does not challenge the voluntariness of his
waiver of his right to a jury trial. Nor does McClure challenge
the sufficiency of the evidence undergirding his convictions.
Nevertheless, his argument would require us to find that his waiver
of a jury trial, however knowing, was fatally infected by an
imbalance of probabilities for which McClure offers no support.
Allowing McClure to proceed would also require our credulous
acquiescence in the speculation that he would be substantially more
likely to be acquitted in his new trial before a jury,
notwithstanding the unassailed and unassailable evidence in the
record supporting his conviction.
The absence of any tenable connection between a decision on
the merits and the possibility of meaningful relief for McClure
compels us to reject his appeal. Article III of the Constitution
*
McClure analogizes his situation to that of the defendants in
United States v. Jackson, 390 U.S. 570 (1968). In Jackson, the
Supreme Court construed a federal kidnapping statute to allow for
imposition of the death penalty only if a defendant were tried
before a jury. Id. at 581. If instead a defendant were to choose
a bench trial, the judge could not impose the death penalty. Id.
The Court found the statute to impose an unconstitutional burden on
the defendants’ right to a jury trial because it “chill[s] the
assertion of constitutional rights by penalizing those who choose
to exercise them.” Id. McClure’s waiver, however, does not
present the same issue as that in Jackson absent evidence that
McClure would indeed have been “penaliz[ed]” had he not waived his
right to jury trial. See id.
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empowers us only to rule where we would have effect. See Baker, 45
F.3d at 840; 11126 Baltimore Blvd., 924 F.2d at 557-58. We do not
find that McClure has shown that a favorable decision poses a
nonnegligible, let alone substantial, likelihood of affording him
relief. Without such likelihood, we are constrained from issuing
what would be an advisory opinion.
IV.
In light of the foregoing, we are without jurisdiction to
consider McClure’s death-penalty challenges on their merits.
Because McClure presents no other arguments on appeal, we affirm
his conviction and sentence.
AFFIRMED
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