College of William & Mary Law SchoolWilliam & Mary Law School Scholarship Repository

Supreme Court Preview Conferences, Events, and Lectures

1992

Section 3: Preview of the Court's DocketInstitute of Bill of Rights Law at the William & Mary Law School

Copyright c 1992 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository.https://scholarship.law.wm.edu/preview

Repository CitationInstitute of Bill of Rights Law at the William & Mary Law School, "Section 3: Preview of the Court's Docket" (1992). Supreme CourtPreview. 21.https://scholarship.law.wm.edu/preview/21

PREVIEW OF THE COURT'S DOCKET

Section: Press Preview

After this term's unpleasantness, the justices may look forward to a respite.

But abortion, smoking, and the religion clause are back (all in unusualforms), not to mention the death penalty and impeachment.

No Calm After the StormIt's a hard act to follow.

After a term filled with blockbustercases and high drama, the coming term

could turn out to be something of ananticlimax.

The justices might welcome a quieterterm, one in which the alliances forgedlast term may have time to solidify. Aterm in which the justices can stay out ofthe spotlight for a bit, while the otherbranches make news-and possibly. bigchanges.

But outside forces may not permit theCourt to tread water. Already. the gov-ernor of Guam has petitioned the Court fora review of the territory's law banningabortion, apparently hoping that he canconvince the Court to forget that PlannedParenthood of Southeastern Pennsylvaniav. Casey. 60 U.S.L.W. 4795 (June 29.1992). cvcr happencd. The Court couldreject the Guam case out of hand. .

Among the 64 cases the Court has al-ready agreed to hear in the coming tennare a goodly number of important cases-involving issues ranging from animal sac-rifice to judicial impeachment, from homeoffices to smoking in prisons. And abor-tion is already on the docket. in the fonnof Bray v. Alexandria Women's HealthClinic. No. 90-985. which was restored tothe calendar for reargument after appar-ently deadlocking the Court last term.Bray tests whether the blockade of abor-tion clinics should trigger the interventionof federal courts under the Ku Klux KlanAct of 1871.

Here are summaries of some of the lead-ing cases to be argued this fall:

* Santeria and Scalia. The most in-triguing case of the fall term may beChurch of the Lkumi Babalu Aye Inc. v.City offHialeah. No. 91-948.

It is the first serious test of the strengthof Employment Division v. Smith, 494U.S. 872 (1990), Justice Antonin Scalia'srevision of doctrine on the free-exerciseclause. That case held that governmentcan enforce laws against religious prac-tices so long as the laws are applied neu-trally and generally, such as the total banon the use of peyote in the Smith case.

In the current case, the religious prac-tice at issue is the sacrifice of animals-chickens. pigeons, doves, ducks, guineafowl, goats, sheep. and turtles, to be ex-act-essential to the practice of the San-teria religion, which came to the UnitedStates via Cuba and now has more than50,000 adherents in South Florida alone.The city of Hialeah. Fla., enacted a seriesof ordinances aimed at prohibiting thekilling of animals for "sacrifice" in a"ritual or ceremony.*

Since the ordinances do not prohibit thekilling of animals for food-the churchnotes in its brief that the city "has not in-terfered with the sale of lobsters to beboiled alive"--the church claims that it isbeing singled out and argues that the or-dinances are precisely the kind of lawsforbidden under Smith. The fact that theCourt decided to hear the case suggests it

may agree-or at least that it wants toclarify what it said in Smith.

An impressive array of religious groupsand church-state separationists has sidedwith the church, voicing fears about otherreligious practices that could be endan-gered if the Santeris church loses-in-cluding shchitah, the kosher method ofanimal slaughter.

* Does Innocence matter? The keydeath-penalty case of the year landed onthe Court's docket in the bizarre, last-minute way in which the Court has han-dled a number of such cases in recentyears: While it granted certiorari in thecase of Texas death-mw inmate LeonelHerra on Feb. 19, it denied a stay of hisexecution. If not for a lower Texas courtthat subsequently delayed the execution,the Court would have been weighing theclaims of innocence of a dead man.

The question before the Court in Her-rera v. Collins. No. 91-7328. seems tohave an answer so obvious that it shouldnot have to be asked: Does it violate theEighth and 14th Amendments to executean innocent person? But this Court is tak-ing the question seriously, and the Bushadministration is seriously siding withTexas. Solicitor General Kennth Starrhas filed a brief arguing that the Constitu-tion does not entitle a prisoner to federalhabeas corpus review, even on a claim ofinnocence. The government argues thatthe state appellate review process andclemency are adequate to handle claims ofinnocence. If ever there was a case pittingcompassion and justice against the me-chanics of the law, this is it.

0 The other Nixon Impeachment.

Lawyers arguing the case of Walter NixonJr. v. United Stares. No. 91-740, woulddo well to read Chief Justice WilliamRehnquist's latest book, Grand Inquests.this summer. As they argue the esoterichistory of the Constitution's impeachmentclause, they should take into account thatthey ate arguing before a ranking experton the subject. Rehnquist's book focuseson two of the most notorious, if unsuc-cessful, impeachment efforts in history,against Justice Samuel Chase and Presi-dent Andrew Johnson.

The issue in the Nixon case is whetherthe Senate violates its mandate to try "allimpeachments" when it delegates to acommittee the gathering of evidence-andwhether that question is even justiciableby the Court. The question was brought byWalter Nixon Jr., who was impeachedfrom his federal judgeship in Mississippiin 1989. David 0. Stewart, a partner in theD.C. office of Boston's Ropes & Gray,has argued on behalf of Nixon that theSenate violated its duties "by providingthat 88 senators never hear the evidencein an impeachment case. . . . Impeach-ment becomes easy. conviction is politi-cally expedient. judicial independence issapped, and the constitutional balance ofpowers is tilted forever."

* Cruel and unusual smoke. Thecomplaint of a self-described health nutwho happens to be serving a life sentencein Nevada State Prison for murder hasmade its way onto the Court's docket.William McKinney claims that it is aviolation of the Eighth Amendment for the

SEE PREVIEW, PAGE S41

The practices ofthe Santeriareligion, thetrappings ofwhich are shown

above, will be

tested in what

promises to be oneof the mostintriguing casesof the fall term.

Tony Maure cosrthe Suprwne Courwand legal issur for

USA Today and

the Gannett NersService.

BY TONY MAURO

PREVIEW FROM PAGE S40state to force him to share a cell with afive-pack-a-day smoker. He convinced theU.S. Court of Appeals for the 9th Circuitthat he should at least have the chance toconvince a jury on the point, so Nevadahas appealed to the high court in Helling v.McKinney. No. 91-1958.

Hawaii Attorney General Warren PriceIll has filed suit on behalf of 34 otherstates arguing on the side of Nevadathat, among other things, "a complete banIon smokingl would physically andpsychologically disturb many smokingprisoners, making them more prone toviolent behavior."

* The home office. The Internal Rev-cate Service is trying to stem the flow oftaxpayers who have discovered the virtuesof working out of their homes-or at leasttelling the IRS that they do.

In Commissioner v. Nader Soliman,No. 91-998, the IRS is battling with aVirginia anesthesiologist who declared ahome office even though he did much ofhis work at three hospitals. When the IRSbalked at his deductions, Soliman won aU.S. Tax Court determination that gave abroad and sympathetic interpretation ofthe rules on home offces. Concerned thatthe ruling created a loophole that anyonewho does some work at home could abuse,the IRS took the case to the 4th Circuitand lost, beting the stage for high courtreview.

0 Labor peace. To help ensure thatgovernment construction projects arecompleted on time and on budget. dozensof government agencies have entered intoagreements with labor unions-agree-ments that are now before the Court. Inexchange for a guarantee of labor peacefor the duration of the project, the agen-cies agree to require that all contractorshire only union labor.

Two consolidated cases-Massachu-sers Water Resources Aurhority v. Asso-dated Builders and Contractors. No. 91-274, and Building and ConstructionTrades Council v. Associated Builders andContractors, No. 91-261--tst the agree-ments that were made in the $6 billionBoston Harbor cleanup project. Associ-ated Builders and Contractors-which haschallenged similar deals elsewhere-claims that the agreements violate con-tractors' rights to bargain freely with theirworkers.

0 RICO and porno. Ferris AlexanderSr. was convicted on federal obscenity andracketeering charges for the distribution ofseven specific magazines and videotape inthe Minneapolis area. In Alexander v.United States. No. 91-1526. the 73-year-old man is not challenging his six-yearprison sentence, but he is attacking themassive RICO penalty that flowed fromthe conviction: an order that be forfeit hisentire chain of 13 retail bookstores, in-cluding an estimated $8.9 million in bus-iness proceeds, as well as the property andassets.

After Alexander lost before the 8thCircuit. the goverment destroyed his en-tire inventory of books and tapes, sendingthree tons of material to a garbage-proesainA plant.

Alexander asks whether the FirstAmendment allows the seizure of his non-obscene materials simply because he alsosold material found to be obscene. It willbe intriguing to see whether the Courtviews this as a case of government over-kill, as it did Jacobson v. United States.112 S. Ct. 1535 (April 6. 1992). the childpornography decision of last term.

0 Gutting Mirands. In Stone v. Pow-ell, 428 U.S. 465 (1976). the Court ruledthat 4th Amendment claims should not beraised in federal habeas corpus petitions ifthey were fully and fairly reviewed in statecourts. A case to be argued this fall, With-row v. Williams. No. 91-1030. seeks toapply the same rule to Miranda claims.

The case involves the conviction ofRobert Williaims on charges relating to a1985 murder in Michigan. Williams made

While allowing newspapers to be soldin sales boxes, Cincinnati went after

two advertising publications-one fora school, the other for a real-estate

company-under its ordinanceforbidding the distribution of

commercial handbills on publicproperty.

some incriminating admissions to policebefore he was given the Miranda wantingand made some more after he was warnedand after he was promised leniency if hetalked. Michigan appeals courts sup-pressed some of his statements but al-lowed others. Williams then filed a federalhabeas petition and won a reversal of hisconviction on the Miranda claims.

The Wayne County prosecutor appealedto the high court, asking it to remedy the"sorry state of affairs" in which Mirandaclaimn are given review in federal habeascases.

* Commercial speech, Cincinnatistyle. In Discovery Network v. Cincinnati.No. 91-1200, the Court will be askedwhether Cincinnati can selectively ban

newspaper sales boxes based on the natureof the publication they dispense.

While allowing newspapers to be soldin these boxes, Cincinnati went after twoadvertising publications-one for aschool, the other for a real-estate com-pany-under its ordinance forbidding thedistribution of commercial handbills onpublic property. The publishers chilenged the ordinance on First AmendmRgrounds.

The 6th Circuit held the ordinance un-constitutional under the First Amendment.and now Cincinnati has appealed in whatis shaping up as a major commercial-speech case.

A broad range of media, advertising,and manufacturing groups are arguingagainst the ban. Government groups aresiding wjth Cincinnati. joining in a briefwritten by Richard Ruda, chief counsel ofthe D.C.-based State and Local LegalCenter. Ruda called the First Amendmentargument "yet another example of the in-genuity of counsel in fashioning constitu-tional challenges to a city's ordinary ex-ercise of its police power." 0

THE TOP FIVE REASONS WHY YOU SHOULD RIDE IN FALL BIKE FEST '92

5. You have your choice: 25, 30, 50, 70, 75, or 100 miles.Routes for every level of interest!!

4. You won't have to worry about your own medical,mechanical, or sag support - when you ride with us, wetake care of you!

3. PRIZES, PRIZES, PRIZES... A trip to Hawaii for thetop fundraiser and guest; Fila Bicycle for the secondtop fundraiser, Crate & Barrel Gift Certificates; BikeShop Gift Certificates; 'The Best Looking Helmet CoverI've Ever Seen" helmet cover.

2. The best view of the fall foliage is from your bicycleseat.

1. MAKE A DIFFERENCE to more than 3,500 people inthe greater Washington area who live with multiplesclerosis every day.

On Sunday, September 13. the Fairfax Government Center hosts 30. 70,and 100 mile rides through Northern Virginia. On Sunday, October 11.Holberg's Delicatessen at the Sheraton-Potomac Hotel hosts 25, 50, and 75mile rides through Montgomery County, Maryland.

All riders enjoy famous MS hospitality-fully equipped rest stops, deliciousand nutritious snacks and lunch, and the best volunteers in town.

Don't miss this tour! Call the FALL BIKE FEST HOTLINEat (202) 466-6151 for more information.

Court Postpones Abortion Protest CaseJustices Order New Arguments in Fall Over Blockade of Va. Clinic

By Ruth Marcus

The Supreme Court yesterdayput off one of the most importantcases of the current term whetherfederal courts have the power tostop Operation Rescue antiabortionprotesters from blocking access toclinics.

The court, without explanation,ordered a new round of argumentsnext fall in the case, which involvedan Alexandria abortion clinic thatwon a court order stoppinrtOper*stion Rescue protesters from block-ading the clnic.

Still to come before the court

adjourns this summer is a potential-ly much broader ruling on abortion,when the justices are called upon todetermine the degree of constitu-tional protection for abortion rightsin a Pennsylvania case. The law atissue in that case requires marriedwomen to notify their husbands be-fore having abortions and imposes a24-hour waiting period on all wo-men seeking abortions.

The case the court didn't decideyesterday, while having broad im-plications for abortion clinics andtheir patients, was not technicallyabout a woman's right to abortion.Instead, it concerned whether an1871 law that prohibits conspira-

cies to deprive people of their civilrights can be used to stop abortionclinic blockaders.

Although the court gave no rea-son for its action in the Operation*Rescue case, many observers onboth sides of the issue speculatedthat the court is evenly split on thecase. justice Clarence Thomas wasnot yet a the court when the casewas argued last October. and hecould become the deciding vote.

In other action yesterday, thecourt:m Ruled 6 to 3 that Hawaii's ban onwrite-in voting in both primary and

See ABORTION. A8, CoL

Supreme Court Puts Off Abortion Clinic Protest CaseABORION Frn I triggered charges from some abor- means that legal remedies to en- civil rights laws in recent years.

ABORTION,FromAl tion rights supporters that the con- sure women's right to abortion re- would be on the side of Operation

general elections does not violate servative-doninated court was act- main under federal law,* said Helen Rescue.

its citizenls' constitutional rights. ing to protect President Bush from Neuborne, executive director of the Another possibility is that, at-

justice Byron R. White said the a ruling that could cause him pouit- NOW Legal Defense Fund, which though a majority of justices agreed

Hawaii law, similar to that in three ical damage. The Bush administra- brought the case. However, she on the outcome o( the case, they

other states, imposed only 'a very tion entered the case, Bray . Al- said, 'I think its probably just a were splintered about the reasoning

limited* burden on voters' rights to randria Women's Health Cinic, on short-term win.R and hope that additional time and an

support candidates of their choice the side of the Operation Rescue Operation Rescue spokesman additional vote might forge a more

and was justified by the state's de- protesters Bob Jewitt said the court's action cohesive rationale.

sire to guard against 'party raiding' Kim Gandy, executive vice pres- will not affect the group's inmewdi- Court observers searching for

at the primary stage and avert 'di- ident of the National Organization ate plans. 'It's business as Usual Clues about what might be going on

visive. sore-loser candidacWies n for Women. denounced it as 'a po- with Operation Rescue.* he said. in the case speculated that the ma-

the general election, litical act by a political court ... 'bviously, we would have lked the njority opinion has been assigned to" a nn ...-- ,t ina t,,tice Antonin Scalia, one of the

Justice Anthony M. Kennedy.joined by Justices Harry A. Black-mun and John Paul Stevens. dis-sented in the case, Burdick v.Takush It is not expected the rul-ing would have any impact on RossPerot's undeclared, independentcampaign for the presidency be-cause he and his supporters intendto have his name on each state'sballot.w Agreed to decide whether SaudiArabia may be sued in U.S. courtsfor allegedly torturing a U.S. citizenfor exposing safety problems at aRiyadh hospital. The Bush admnin-istration joined the Saudi govern-ment in urging the court to hear thecase. Saudi Arabia . Nelson, andoverturn a federal appeals court.ruling that allowed the lawsuit to goforward.

The court's action on the Oper-ation Rescue case, Comning nearlyeight months after the argument,

ceary itene tpotpone a politically sensitive decision, ad apossible political firestorm forGeorge Bush, until after the elec-tion*

Many observers-even thosewho support abortion rights-dis-cerned less sinister motives.

'If an action like this were takenfor political reasons, some memberof the court would have dissentedfrom the order" for reargument inthe fail, said Duke University lawprofessor Walter Dellinger, anabortion rights advocate.

One immediate effect of the caseis to leave federal judges with thepower to issue orders against Op'eration Rescue blockades. Opera-tion Rescue has announced plans toprotest at the Democratic and Re-publican national conventions thissummer, as well as in Wichita. Kan.,and Baton Rouge, IA.

'At least for the time being, it

cour to Comte aour favor and eliminate the injunc-tions. but we'll continue to do ev-

erything that we have been doingall along."

An order that a case be rearguedis unusual, but not unheard of, par-ticularly when- a resignation hasrendered the court one justiceshort, This term, three other casehave been set for reargument, coi-pared to none in each of the previ-ous two terms.

It is unusual that the justiceswould wait eight amths before an-

nouncing a ruling would be delayed.It could have been that there was amajority after the preliminary votefollowing oral argument, but that ajustice switched his or her vote af-ter the majority and dissenting op.inions were drafted and circulated.Many observers expect that anymajority on the court, which hasadopted a narrow interpretation of

bers. of the eight justices who sat in

October, Scalia is the only one tohave written just one opinion.

The law at issue in the case, pop-

ularly known as the Ku Klux KlanAct because it was enacted in re-sponse to attacks on blacks afterthe Civil War, has been interpretedby the court to cover "class-based"hostility. The justices have never

said whether women are protectedby the law, and the direct questionbefore them in the abortion case iswhether ^women seeking abortions"are covered.

The case does not necessarilycall on the court to address thescope of constitutional protectionfor abortion rights because the civilright primarily at issue in the caseis whether the blockades interferedwith patients' constitutional right tointerstate travel.

Prayer Ruling May Not BeCourt's Last Say on Subject

By UNDA GREENNOUSESpe.w .v Nw~1Ti0mes

WASHINGTON, June 25 - While the theW school.".Supreme Court decisively reaffirmed When the Supreme Court has an is-its school prayer precedents with its sue under consideration. it typicallyruling on Wednesday on graduation hos all new cases that might be at-prayers, the Justices are not necessar- fected by the eventual decision. Onceily about to withdraw from the battle the decision is Issued, the Court thenover the constitutional boundary be- has three choices: to send the othertween church and state. cases back to the lower courts, in-

Sometime before the Court es tructing those courts to reconsiderfor the summer in the next few days. their rulings in light of the new Su-the Justices will probably Indicate preme Court decision; simply to denywhether they plan to re-enter the rview. which Agaves the lower courtchurch-state fray during the new term decisions standing as if no Supremethat begins in October. They have Court appeal had ever been filed, or tomany cases from which to choose, any grant review itself.one of which could reignite a far-reach- While it takes five votes to win a caseIng constitutional debate with an out- In the Supreme Court, It takes only fourcome thatIs far from clear in advance, votes under the Court's rules to grantFor the last 15 months, ever since the review. Given the vigorous dissent byCourt agred to decide the Providence four Justices in the commencementschool prayer case that was the subject prayer case on Wednesday, the likeli-of Wednesdays ruling, the Court has hood that the Court will accept one ofput on hold every new appeal that the other religion cases for decisionraised my question of how to Interpret appears to be strongthe clause of the First Amendment that The likelihood is enhanced becauseprohibits a governmental "establish- of the way the majority handled thement" of religion, prayer case on Wednesday. While the

Reflects Legal Ferment case appeared to give the Court anBy now, a dorn such opportunity for re-examining, or over-

awaiting action, an unusually high me", clase prees the estabshnumber that reflects th ft clueraeamhefie-emeIn courts and communities around thecountry over church-state issues. The

cum ,am ,,om ,,eryp ' A dozen church-country, from Vroto awail, andfrom eight of the 12 geographical Fed-eral appellate circuits. - state cases. OneThe ase a the of clasht

es sover-" eiwtious W.- may tempt thevolvement in a wide array of contexts,from religious observance an t job, ustcesto ethnic festivals with a religious fla.ver, to prayer In courtrooms, to reli-gious imagery on municipal seals.

There are even disputes over 1el- majority did not take that course. Jus-,on ic n M. Kennedy w fo

s ce e u aw le was redecision on Wednesday. In that case, revisit the precedents because com-Lee v. Welsnan, the Court ruled 5 to 4 mencement payer #tiotated the Firstthat the First Amendment prohibits Amendment under any approach thepublic schools from inviting members Court might take.of the clergy to offer prayers at gradu- But several of the cases now beforeation ceremonies, the Court call the precedents directly

Would the outcome have been differ- ito question. The four dissenters ineant if the prayer was offend not by an Wednesdays ruling - Justices An-adult clergyman but by a student vol. tonin Scalla, Clarence Thomas, Byronunteer? That is the question in a case R. Wite, and Chief Justice William H.called Jones v. Clear Creek (Tex.) In. Rehnquist - may. relish the chance todependent School District. Na 91-310. give Justice Kemnedy such a case.The United States Court of Apeals for Cases Before the Juiticesthe Fifth Circuit. in New Orleants, ruledlast year that there was no coasts. Among the other cases before thetional violation in a student volunteer Court are ones that pose these ques-offering a tonsectar ian Ivocation and tios:benediction at a high school gradus. 4 Whether the display of a privatelytion, owned Hanukkah menorah in a city

Or would the constitutional analysis park that is open to other religiousbe different if the issue was not prayer displays violates the First Amend-at at, but a personal, silent form of ment. The United States Court of Ap-religious obso.-vance in the classroom? Peals for the Second Circuit. in New

One of the cases, Roberts v. Madi. York, said it does. (Chabad-L.ubavitchgan, No. 90-1448, is an appeal by a fifth- of Vermont v. City of Burlington, No.grade teacher in a suburban Denver 9148).public school who kept a Bible on i q Whether a judge violates the Con-desk and read it during recess time and stltutioo by offering his own religiousduring a 15-minute period he gave hi invocation at the start of each courtstudents each day for silent reading, session. The United States Court of

The school principal ordered da Appeals for the Fourth Circuit. in Rich-eacherto.keep.the Bible out.af sight mnd. Va. sid yes. (Constangy v.during the school day. The United North*CarOinaIt tliberties Unlan,

States Court of Appeals for the 10th No 91-1178).Circuit, in Denver, rejected the teach. q Whether it violates the Constitutioner's challenge to this order, c for a state to designate Good Friday asthat the keeping the Bible in sight sent a public holiday. as Hawaii and 12 other"a message of endorsement of religion states hav done. The United Statesin a manner that might resMoably be Court of Appeals for the Ninth Circuit,

to bear the Imprimatur or in California. said no. (Cammack v.Wethe. No& t91-7961.

q her the v ge of CrestwooiIll., violated the Constitution whensponsored r- Italiananguage Catholimas as part of aw an a Italiacultural festivaL The Unit StateCourt of Appeals for the Seventh Chcuit. In Chicago, said it did. (Crestwoov. John Doe, No. 901573).9 Whether the University of Alabama violated the Constitution bwarning a professor to stop telling tstudents about his Christian beliefsincluding the assertion that the humatbody was designed by God. The UniteStates Court of Appeals for the IltiCircuit, in Atlanta, upheld the university. (Bishop v. Delchamps. N6. 91-28.)The Court is also being asked todecide to rule on whether city sealthat include religious imagery violatthe Constitution. The Seventh Circutdeclared the seals of two Illinis town:to be unconstitutional for depictingcrosses, while the United States Courof Appeals for te Fifth Circuit, in NewOrleans, rejected a similar challengeto the city seal of Austin. Tex., which isa copy of the seal used since the 18thcentury by the family of Stephen F.Austin, the founder of Texas. The sealdepicts a cross flanked by a pair ofwings. (Murray v. Auston, No. 91-1462).

Supreme Court Plans to ConsiderPrisoner's Right to Smoke-Free Cell

ICornish Hitchcock's client sayshe suffers from others' smoking.

The Supreme Court has agreed to heararguments next term on whether prisonershave an Eighth Amendment right to asmoke-free cell.

Last week, the high court granted cert ina case brought by William McKinney, aconvicted murderer serving a life sentencein the Nevada State Prison. McKinney, aself-described health nut, contends that hewas subjected to cruel and unusual punish-ment when he was forced to share a cell,

Court to Hear Inmate's Smoke SuitW ASHINOTN-The Supreme Cot samid Monday it will

decide whIther nonsmokers in pison have a constitutionairight to be free from secondary tobacco smoke.

The court agreed to review a Nevada inmate's claim thatenvironmental tobacco smoke unlawfltly threatens his health. Adecision is expected in 199.

A federal appeals court ruled expom to secondary smoke canbe a constitutional violation if it poses an unreasionable health risk.* But Nevada officials argue "Permiang inmates to prevail on anEighth Amendment claim ... that eosre to others' tobaccosmoke 'may* create a posible fature health risk takes away fromprison officials the discretion and flebility needed to properly andsafety classify and house inmates.' The Eighth Amendment to theConstitution prohibits cruel and unusal punishment. -

The U.S. 9th Circuit Court of Appeals saM convicted killerWilliam MclCinney Is entitled to a trial for his lawsult. which seekImonetary damages and to have him placed in a smoke-freeenvironment.

-AseedstafPress

eight feet by 16 feet, with a five-pack-a-day smoker. The 44-year-old McKinneyclaims that the secondary smoke endan-gered his health and shortened his life.(See "These Inmates Really Want to KickButts," June 24, 1991, Page 1.)

The case, which is similar to otherspending in various circuits, could set theground rules for whether correctional of-ficials have a duty to protect inmates fromsecondhand smoke.

."The case will decide whether prison-ers are second-class citizens when itcomes to the hazards of cigarette smok-ing," says Cornish Hitchcock, an attorneywith the Public Citizen Litigation Groupwho is representing McKinney before theSupreme Court.

The Nevada attorney general appealedthe case from the U.S. Court of Appealsfor the 9th Circuit, which decided earlierthis year that McKinney ought, at least, tohave the opportunity to prove to a jury thathis health has suffered as a result of hisexposure to smoke. He must also provethat prison officials showed "deliberateindifference" to his health risks. Courtshave already ruled that inmates have aconstitutional right to regular outdoorexercise and fresh air.

In appealing the case to the SupremeCourt, Nevada was joined by 34 otherstates and the District of Columbia inamicus briefs. They argue that requiringthe segregation of smoking prisoners fromnon-smoking prisoners would place anundue burden on correctional systems, aswell as open states to an avalanche ofEighth Amendment claims brought by dis-gruntled inmates.

Arguments are expected to be scheduledfor December.

-Linda Himelstein

PREVIEW OF THE COURT'S DOCKET

SectionLower Court Opinions for Morning Session

Alexander v. ThornburghDiscovery v. Cinncinati, OhioNational Organization for Women v. Operation RescueMcKinney v. AndersonCases Awaiting Review: Guam v. Ada, Zobrest v. Catalina FoothillsSchool District, McNary v. Haitian Centers Council

91-1526 ALEXANDER v. U.S.Obscenity-Forfeiture under rack:*eering stat-ute-Closure of bookstore chain-Prior re-straint-Cruel and unusual punishment.

Ruling below (Alexander v. Thornburgh,CA 8. 943 F2d.825):

Dcfcndant's convictions of selling obscenity,which served as predicates for additional convic-tions under Racketeer Influenced and CorruptOrganizations statute. 18 USC 1961-68. support-ed forfeiture under RICO of commercial realestate and business inventories that district courtdetermined to be derived from proceeds of racke-tcering enterprise, pursuant to 18 USC1963(a)(2): First Amendment is not violated byRICO forfeiture when government establishesnexus between ill-gotten gains from racketeeringactivity and protected materials forfeited; use ofRICO forfeiture in this case constitutes criminalpenalty for conducting racketeering enterpriserather than prior restraint in violation of FirstAmendment; nor does forfeiture in this case im-pose unconstitutional chilling effect on protectedexpression: forfeiture order limited to profits, realestate, and businesses directly related to defen-dant's interstate transportation and sale of ob-scene materials is not unconstitutionally over-broad: sentence and forfeiture order were notgrossly excessive or disproportionate in violationof Eighth Amendment's proscription against cru-el and unusual punishment.

Qucstions presented: (I) Does RICO forfeitureconstitute prior restraint of kind condemned inNear v. Minnesota, 283 U.S. 697 (1931), orotherwise violate First Amendment. when used toclose S25 million chain of bookstores, videostores, and theaters, to confiscate all their proper-ty including five years* proceeds. and to burntheir inventories, solely on basis of seven obscenevideotapes and magazines? (2) Does forfeiture of525 million media business. in combination withsix-year prison term and fines in excess of5200.000. all as punishment for seven obscenevideotapes and magazines, violate EighthAmendment?

Pctition for certiorari filed 3/16/92. by JohnH. Weston. Cathy E. Crosson. G. Randall Gar-rou. Clyde F. Dewitt. and Weston. Sarno. Garrou& Dewitt. all of Beverly Hills, Calif.

90-985 BRAY v. ALEXANDRIA WOMEN'SHEALTH CLINIC

Abortion-Ban on obstructing access to clinics-42 USC 1985(3).

Ruling below (National Organization forWomen v. Operation Rescue, CA 4, 914 F2d582):

Abortion opponents' actions in blocking accessto abortion facilities in Washington, D.C. metro-politan area, to which substantial numbers ofwomen travel interstate, infringe rights of womenseeking abortions to travel in interstate commercein violation of 42 USC 1985(3), which forbidsconspiracy for purpose of depriving any person orclass of persons of equal protection or equalprivileges and immunities; district court's holdingthat gender-based animus satisfies "purpose" ele-ment of Section 1985(3) has been forecast in thiscircuit by Buschi Y. Kirven, 775 F2d 1240 (1985),which held that animus against classes defined by"race, national origin and sex" meet requirementof class-based animus within meaning of Section1985(3). district court therefore properly en-joined such actions, and its award of costs andattorney's fees is affirmed.

Questions presented: (1) Do "women seekingabortions" constitute valid class for purposes ofclass animus- requirement of 42 USC 1985(3)?(2) Is opposition to abortion per se discriminationagainst women for purposes of "class animus"requirement of 42 USC 1985(3)? (3) Do purelyprivate actors who hinder access to abortion facil-ity violate federal constitutional right to inter-state travel merely because some patrons of facil-ity come from out of state? (4) Are respondents'claims under 42 USC 1985(3) so insubstantial asto deprive federal courts of subject matter juris-diction? (5) Did court of appeals err by sustain-ing award of attorney's fees against petitioners?

Petition for certiorari filed 12/18/90, by JayAlan Sekulow, Douglas W. Davis, and James M.Henderson Sr., all of Washington, D.C., andThomas Patrick Monaghan, C. Peter Thomas S.Cornell. Walter M. Weber, and James E. Mur-phy. all of New Hope, Ky.

91-1200 CINCINNATI. OHIO v. DISCOVERYNETWORK INC.

Ban on distribution of commercial handbillsthrough newsracks-First Amendment.

Ruling below (CA 6. 946 F2d 464, 60 LW2272. 19 MedLRptr 1449):

City ordinance banning distribution of "com-mercial handbills" through newsracks on publicproperty, while allowing such distribution ofnewspapers, is more extensive burden on commer-cial speech than is necessary to alleviate govern-mcntal aesthetic and safety concerns and thusviolates First Amendment.

Qucstions presented: (1) Is decision below, af-firming decision of district court that statutoryscheme of Cincinnati violated plaintiffs FirstAmendment rights. in conflict with decisions' ofSeventh and Eleventh Circuits and not justifiedunder this court's decision in Central HudsonGas d Electric Co. v. Public Service Commissionof New York, 447 U.S. 557 (1980)? (2) Isdecision below, which requires Cincinnati to af-ford equal First Amendment protection to bothcommercial and non-commercial speech publica-tions that are-distributed through use of boxesplaced in public right of way inconsistent withthis court's decision in Metromedia v. City ofSan Diego, 453 U.S. 490 (1981)?

Petition for certiorari filed 1/9/92, by JamesF. McCarthy Ill, Fay D. Dupuis, City Sol.,William M. Gustavson. Dpty. City Sol.. andMark S. Yurick. Asst. City Sol., all of Cincin-nati. Ohio.

91-1958 HELLING v. McKINNEY

Cruel and unusual punishment-Inmate's com-plaint about environmental tobacco smoke.

Ruling below (McKinney v. Anderson, CA 9.959 F2d 853, 60 LW 2668, S CrL 1062):

U.S. Supreme Court's decision in Wilson v.

Seiter. 59 LW 4671 (1991). which held that

elements needed to establish Eighth Amendmentclaim involving prison conditions include subjec-tive intent to punish, does not undermine earlier

ruling. 924 F2d 1500. 48 CrL 1459 (CA 9 1990),

that Eighth Amendment's objective element issatisfied by proof that prisoner has been housedin environment that exposes him to levels of

tobacco smoke that pose unreasonable risk of

harm: case is remanded to district court for deter-mination of whether prison officials were deliber-ately indifferent to inmate's long-term exposureto environmental tobacco smoke.

Question presented: Does state prison inmatestate Eighth Amendment claim for cruel andunusual punishment by alleging, in absence of

any medical problems. that compelled exposureto secondary tobacco smoke poses unreasonablerisk to his health, and did court below properlyaddress this issue on remand from this court)

constitutional and unconstitutional aggravatingcircumstances, when law of state that imposedsentence requires sentencer to weigh these aggra-vating circumstances against mitigating circum-

stances in determining penalty?Petition for certiorari filed 1/15/92, by Timo-

thy K. Ford and MacDonald, Hoague & Bayless.both of Seattle. Wash., and Carla Ryan. ofTucson. Ariz.

ALEXANDER v. THORNBURGHCte as 943 P.2d 825 (8th Cr. 1991)

,nsistent" with Fulcher's assertion that he

hud abandoned the laboratory.On appeal Fulcher cites U.S.S.G. § 2D1.4

,plication note 1, arguing the district

court committed error in failing to excludeaounts he did not intend to produce be-

cause he had abandoned the laboratoryand, in any event, was not reasonably capa-ble of producing. We disagree. The lan-

guage in section 2D1.4 application note 1that Fulcher relies on applies to sentencingdeterminations for offenses involving nego-

dtions to traffic in a controlled sub-stance--not to sentences for attempting tomanufacture a controlled substance whenthe amount of drugs seized does not reflectthe scale of the offense. In our view, thedistrict court properly applied applicationnote 2 by calculating the quantity of am-phetamine that Fulcher's laboratory couldhave produced. See United States v. Ev-ans, 891 F.2d 686, 687-48 (8th Cir.1989)(court properly calculated production capac-ity based on chemicals seized), cert. de-nied, - U.S. -, 110 S.Ct. 2170, 109LEd.2d 499 (1990); United States v. Wag-ner, 884 F.2d 1090, 1097-98 (8th Cir.1989)(court adopted expert chemist's testimonyregarding laboratory's production capacity,rejecting defendants' argument that lower.quantity was more reasonable given theirinexperience), cert. denied, - U.S. -,110 S.CL 1829, 108 LEd.2d 958 (1990).

Fulcher pleaded guilty to an attempt tomanufacture amphetamine. That Fulchermay have abandoned his efforts to manu-facture the drug neither affected his labo-ratory's production capacity nor altered thefact that when he set up the laboratory heintended to produce a large quantity ofamphetamine. Thus, the district courtproperly considered the production capacityOf Fulcher's laboratory when calculatingthe total quantity of amphetamine involved.

Accordingly, we affirm Fulcher's sen-tence.

143F 2d-20

Ferris ALEXANDER, Appellant,

V.

Richard THORNBURGH, in his officialcapacity only as Attorney General

of the United States, Appellee.

UNITED STATES of America, Appellee,

V.

Ferris Jacob ALEXANDER, Sr., a/k/aPete Saba, Peter Saba, Paul Saba, JohnThomas, Bob Olson, Jim Nelson, JimPeterson, James Peterson, Robert Carl-son, Frank Netti, Appellant

Nos. 89-5364, 90-5417.

United States Court of Appeals,Eighth Circuit

.Submitted March 13, 1991.Decided Aug. 30, 1991.

Rehearing and Rehearing En BancDenied Oct. 30, 1991.

Defendant was convicted in the UnitedStates District Court for the District ofMinnesota, James M. Rosenbaum, J., of taxoffenses, obscenity offenses, and Racke-teer Influenced Corrupt Organizations Act(RICO) violations, and he appealed. TheCourt of Appeals, John R. Gibson, CircuitJudge, held that: (1) application of RICOforfeiture provisions did not violate FirstAmendment, and (2) forfeiture order didnot violate Eighth Amendment prohibitionagainst cruel and unusual punishments andexcessive fines.

Affirmed.

1. Conspiracy 048.1(1)Whether a conspiracy is one scheme or

several is primarily a jury question.

2. Conspiracy e24(2)General test as to whether a conspir-

acy is one scheme or several is whetherthere was "one overall agreement" to per-form various functions to achieve the objec-tives of the conspiracy.

825

943 FEDERAL REPORTER, 2d SERIES

3. Conspiracy e24.5A conspirator need not know all of the

other conspirators or be aware of all thedetails of the conspiracy, so long as evi-dence is sufficient to show knowing contri-bution to the furtherance of the conspiracy.

4. Conspiracy 047(9)Evidence supported finding of a single

conspiracy to defraud government by de-feating lawful functions of Internal Reve-nue Service, rather than a series of sepa-rate conspiracies. 18 U.S.C.A. § 371.

5. Conspiracy -43(10)Indictment charging defendant with

conspiracy to defraud United States by de-feating lawful functions of Internal Reve-nue Service was not defective on groundthat it should have charged defendant witha conspiracy to commit a specific crimewhere defendants conduct was long-span-ning, far-reaching, and involved many ac-tivities and events. 18 U.S.C.A. § 371; 26U.S.C.A. § 7206(1).

6. Criminal Law *-1175Defendant was not entitled to reversal

of convictions for transporting and sellingobscene materials on grounds that verdictswere inconsistent or the result of compro-mise.

7. Constitutional Law 490.4(1), 274.1(3)Legal standard of obscenity enunciated

in Miller v. California did not violate FifthAmendments due process clause or FirstAmendments freedom of speech provision.U.S.C.A. Const.Amends. 1, 5.

8. Constitutional Law 490.4(1)Forfeitures e2

Application of Racketeer InfluencedCorrupt Organizations Act (RICO) forfei-ture provision to defendant, who was con-victed of RICO charges and predicate ob-scenity offenses, did not unconstitutionallycriminalize nonobscene expressive materi-

1. A jury convicted Alexander on one count ofconspiracy to defraud the United States byimpeding the lawful functions of the InternalRevenue Service in violation of 18 U.S.C. J 371(1988); two counts of filing false income taxreturns in violation of 26 U.S.C. § 7206(1)(1988); three counts of violating 18 U.S.C.

als. 18 U.S.C.A. § 1962; U.S.C.A.Amend. 1.

9. Constitutional Law 490.4(4, 6)Forfeitures -3

Forfeitures ordered as result of adant's conviction of Racketeer Influ'Corrupt Organizations Act (RICO)predicate obscenity offenses, whichlimited to profits, real estate, and busies directly related to defendants interstransportation and sale of obscene ma.zines and videos, did not result in an unom.stitutional prior restraint, did not imposan unconstitutional chilling effect on consg,tutionally protected expression, and wanot constitutionally overbroad. U.S.C.AConst.Amend. 1; 18 U.S.C.A. § 1962.

10. Criminal Law 41213.13Forfeitures ordered as result of defs.

dant's conviction of Racketeer InfluencedCorrupt Organizations Act (RICO) chargsand predicate obscenity offenses, whichconsisted of profits, real estate, and bus-nesses directly related to defendant's inter-state transportation and sale of obscenemagazines and videos, did not violateEighth Amendment prohibition against cru.el and unusual punishments and excessivefines. 18 U.S.C.A. § 1962; U.S.C.A. Const.Amend. 8.

Michael Mayock, Pasadena, Cal., for appellant.

Paul A. Murphy, Minneapolis, Minn., forappellee.

Before JOHN R. GIBSON andWOLLMAN, Circuit Judges, and FLOYDR. GIBSON, Senior Circuit Judge.

JOHN R. GIBSON, Circuit Judge.

Following a four-month trial, a jury con-victed Ferris J. Alexander, Sr., on 24counts ' of a 41-count indictment. The

§ 1962 (1988) (RICO), including conspitacy toengage in or conduct an enterprise through apattern of racketeering activity, receipt and useof income derived from a pattern of racketeer"ing activity, and engaging in the conduct of anenterprise through a pattern of racketeering ac-tivity- twelve counts of knowingly transporting

826

ALEXANDERCite m 943 F.2

n included conspiracy to defraud thethe sale of obscene magazines and

voeos, tax evasion, and RICO violations..ecander appeals from his convictions and

, application of the forfeiture provisions18 U.S.C. § 1963 (1988). Alexander ar-

,es that his conviction of engaging in aconspiracy to defraud the IRS should bereversed because: (1) the indictment al-kged and the evidence showed, if anything,multple conspiracies and not one conspir-ger and (2) the count was defective be-cause it charged a general conspiracy rath-e tan a conspiracy to violate a specificstatute. He also argues that his convic.

dons for transporting obscene materialsmust be reversed because the jury's ver-dicts are inconsistent. He also attacks thedistrict court's 2 application of the forfei-wne provisions of RICO, arguing that theapplication of RICO: (1) unconstitutionallyaiminalized non-obscene expressive materi-al and (2) violated the first and eighthamendments to the United States Constitu-ion. He further argues that the obscenitystandards set forth in Miller v. Califonia,413 U.S. 15, 93 S.CL 2607, 37 LEd.2d 419(1973), violate his due process and firstamendment rights. He also claims that theevidence was insufficient to support hisconvictions of filing a false income tax re-turn, violating RICO, using a false socialsecurity number, and on all other counts.Finally, in a separate appeal, he appealsfrom the district court's 3 entry of sum-mary judgment in his civil suit filed againstthe government arguing that the use ofobscenity as a predicate to RICO violatedhis first amendment rights. We affirm theConvictions, and the orders of summaryjudgment and forfeiture.

The evidence presented at the four-month trial was far-reaching and spanned athirty year period. Only a brief outline of

obscene material in interstate commerce for thePupose of sale or distribution in violation of 18U.S.C. § 1465 (1988); five counts of engaging inthe business of selling or transferring obscenem1aterial in violation of 18 US.C. § 1466 (1988);and one count of falsely misrepresenting a so5"security number for the purpose of imped-Ing the IRS in violation of 42 US.C. § 408(g)(2)

(1988) (now codified at 42 U.S.C.A.I 408(a)(7)(B) (West Supp.1991)).

v. THORNBURGH 827d 825 (8th Cir. 1991)

that evidence is necessary for our par-poses, and we will provide further detailsas required in analyzing the issues on ap-peal.

Alexander was in the adult entertain-ment business for more than 30 years sell-ing magazines, showing movies, and even- .tually selling and leasing video cassettes.The evidence at trial established that Alex-ander set up sham corporations and operat-ed many of his businesses using falsenames and names of employees.

For example, evidence showed that from1959 to 1976, Alexander used the name ofan employee, Kenneth LaLonde, to conducthis businesses under the name of KennethLaLonde Enterprises. In 1969, Alexanderhired an attorney, Robert J. Milavetz, whoincorporated several corporations under thename of Kenneth LaLonde Enterprises.Alexander obtained licenses required forthese businesses and opened bank accountsunder LaLonde's name. Reports were alsosent to the State of Minnesota under thename of Kenneth LaLonde Enterprises.The businesses were reported on La-Londe's individual tax return, and no corpo-rate tax returns were filed.

Eventually, Milavets had a falling outwith Alexander and Alexander began usingother attorneys, including Randall Tigue.In 1976, Tigue witnessed LaLonde's signa-ture as the incorporator of two more corpo-rations. Alexander consolidated the opera-tion of his theaters and bookstores underthese corporations, and on May 1, 1977, thename of LeRoy Wendling was substitutedas the front name used to conduct Alexan-der's businesses. Alexander opened bankaccounts for these corporations under thename of Wendling, another Alexander em-ployee. These corporations were also re-ported to state and federal agencies show-ing Wendling as the owner. Corporate tax

2. The Honorable James M. Rosenbaum. UnitedStates District Judge for the District of Minneso-ta.

3. The Honorable David S. Doty, United StatesDistrict Judge for the District of Minnesota.

828 943 FEDERAL RE

returns were filed and signed with a signa-ture stamp of Wendling's name.

Wendling filed his personal tax returnslisting Alexander's income. This arrange-ment continued until the end of 1980, whenWendling was fired, and the name "JohnThomas" was substituted on some of theserecords and placed on the Wendling bankaccount. Alexander admitted that thename "John Thomas" was "the name [he]used."

On December 27, 1984, In Sok Na, anoth-er Alexander employee, executed, as incor-porator and first director, the articles ofincorporation for ten different corpora-tions. In Sok Na was a Korean immigrantand spoke little English. Alexander testi-fied that he formed these corporations toavoid potential civil liability. The names ofsix of the corporations were in Finnish andfour were in a dialect of the Philippines.'None of these corporations filed tax re-turns. Two of the corporations were usedto buy real estate and a bookstore.

In addition to using the names of La-Londe, Wendling, and Na, Alexander useda number of other names in operating bankaccounts, obtaining licenses, and complyingwith various state and federal reportingregulations.

The governments evidence showed sev-eral examples of the lengths to which Alex-ander went to conceal his identity as theowner and operator of his various business-es. During the time Alexander ran hisbusinesses under the name of LaLonde En-terprises, Alexander sent Milavetz to unem-ployment compensation hearings and in-structed Milavetz to appear on behalf ofKenneth LaLonde or Kenneth LaLonde En-terprises. In one instance, LaLonde signeda license application for one of the theatresknown as the "Flick." LaLonde appearedbefore the St Paul City Council in thelicensing application proceedings acting asthe "owner" of the business. After theCity Council balked at granting the license,Tigue advised the Council that he repre-sented Alexander and LaLonde and a leaseexisted between the two. Subsequently,

4. The translation of these corporate names wasprofane, and the district court excluded the

PORTER, 2d SERIES

Tigue filed a lawsuit in the United aDistrict Court against the City of St.and its council members on behalf o ALander and LaLonde stating that a leaseexisted between LaLonde and AlexanderThe city council subsequently grantj tlicense in LaLonde's name. LaLonde tfied that he became aware of the lawmrnby reading about it in the newspaper, thuhe never had a lease on the business, a4that his signature verifying the complnotarized by Tigue, was a forgery. ilater years, licenses were issued in L,Londe's name without his knowledge, batwith the participation of Tigue, and contia.ued after LaLonde left Alexander's employ.

The revenues generated from Alexas.der's retail and rental stores were broughtto him at the central warehouse and rnainoffice where the cash was commingled andtaken to various banks. Alexander deposit.ed some of the cash in various accountsand converted the rest into large denom-ination bills, cashier checks, and money or-ders. The cashier checks and money or-ders were payable to various individualsand entities. All expenses were paid out ofAlexander's primary bank accounts, and allmerchandise was shipped from Californiato his warehouse, where it was wrapped.priced, and boxed for distribution to Alex-ander's retail outlets. Because of disorga-nized and incomplete records, the govern-ment had a difficult time attempting tocalculate Alexander's income. Neverthe-less, the government estimated that Alex-ander underreported his 1982 gross re-ceipts by $1,322,135 and $1,416,883 in 1983.

Alexander testified about many of thesedetails. He confirmed that he used U,-Londe, Wendling, and other individuals'names in the operation of his businesses,and that revenues from the businesseswere reported on LaLonde's and Wen-dling's personal tax returns. He admittedthat he purchased properties and submittedreports to state and federal agencies inother people's names. He attributed manyof these decisions to Tigue and stated thathe had no knowledge of some of the vai-

translation as having more prejudicial valuethan probative value.

ALEXANDER v. THORNBURGHCate as 943 F.2d 825 (8th Cir. 1991)

ous businesses. Alexander also admittedthat he signed a form on a Paine Webberinvestment account using a social securitynumber that was not his social securitynumber.

The jury found four magazines and threevideos to be obscene, and these findingswere the basis for convicting Alexander oftransporting obscene material for the pur-pose of sale, selling obscene materials, andthe RICO counts.

After the return of guilty verdicts, thedistrict court reconvened the same jury tohear a portion of the forfeiture proceedingunder 18 U.S.C. § 1963(a)(2). The juryheard additional evidence, including Alex-ander's testimony regarding the forfeitabil-ity of his interest in the enterprise and theproperty that afforded him a source ofinfluence over the enterprise. Thereafter,the district court reconvened without a juryfor a further evidentiary hearing as to for-feiture of any interest Alexander had ac-quired or maintained in violation of section1962 and of any property constituting pro-ceeds obtained directly or indirectly fromracketeering activity. The government of-fered additional evidence of 30 magazinesand 16 videos purchased or seized by theFBI during its criminal investigation, andan additional 418 videos and 9 magazineswere admitted through the testimony ofwitnesses who had appeared as representa-tives of Alexander's wholesale sources.

The court sentenced Alexander to termsof imprisonment ranging from 36 to 72months, all terms to run concurrently.United States v. Alexander, No. 4-89-85(1), Order and Judgment of Sentencing,slip op. at 3 (D.Minn. Aug. 13, 1990). Inaddition, the court imposed a fine of $100,-000 and a special assessment of $950, andordered Alexander to pay the costs of hisincarceration ($1,415.56 per month), his su-pervised release ($96.66 per month), andthe costs of prosecution ($29,737,84) Id. at6-7. Finally, pursuant to 18 U.S.C.§ 1963(a)(2), the court ordered forfeiture ofAlexander's interest in ten of fourteen

5. Titles to the other four pieces of real estateAlexander used for his magazine and video busi-nesses were held in the name of Dolores Alexan-

pieces of commercial real estate in whichthe jury found beyond a reasonable doubtAlexander had an interest or which afford-ed Alexander a source of influence over theracketeering enterprise and which thecourt concluded were acquired, maintained,or derived from proceeds of the racketeer:-ing activity.$ Id. at 7 (incorporating Orderand Judgment of Forfeiture (Aug. 6, 1990)).Alexander forfeited his interest in hiswholesale business and thirteen retail busi-nesses (bookstores and video stores) thatwere used in the criminal enterprise,.and$8,910,548.10 in monies acquired, main-tained, or constituting proceeds obtainedfrom the racketeering activity in the years1985 through 1988. United States v. Alex-ander, No. 4-89-85, Order and Judgmentof Forfeiture, slip op. at 6, 11, 1990 WL117882 (D.Minn. Aug. 6, 1990). Alexanderalso forfeited his interest in business assetsand personal property. Id. at 6-11. Thisappeal followed.

I.Alexander appeals the jury's verdict on

the conspiracy count (Count I) arguing thatthe count is defective in two ways. Theindictment alleged that over the course oftwenty years, Alexander engaged in a con-spiracy to defraud the United States bydefeating the lawful functions of the IRS.This has become known as a Klein conspir-acy, taking its name from United States v.Klein, 124 F.Supp. 476 (S.D.N.Y.1954),affd, 247 F.2d 908 (2d Cir.1957), cert. de-nied, 355 U.S. 924, 78 S.Ct. 365, 2 LEd.2d354 (1958).

Alexander contends that the districtcourt must reverse his conviction on CountI because the indictment affeged a singleoverall conspiracy and the proof at trialshowed not a single conspiracy, but a ser-ies of separate conspiracies. Kotteakos v.United States, 328 U.S. 750, 773-74, 66S.Ct. 1239, 1252,'90 LEd. 1557 (1946). Al-exander argues that there was not just oneconspiracy for twenty years, pointing outthat at the time the alleged conspiracy

der and were not forfeited to the United Statesas a result of the jury's forfeiture verdict.

829

943 FEDERAL REPORTER, 2d SERIES

started some key members were in highschool. He further argues that he haddismissed many of the members of thealleged conspiracy and that they had noknowledge of later transactions. He as-serts that looking at the totality of thecircumstances, this case is a "series ofscenes of a life of hustling" and not oneconspiracy.

[1-3] Whether a conspiracy is onescheme or several is primarily a jury ques-tion. United States v. Wilson, 497 F.2d602, 604 (8th Cir.), cert. denied, 419 U.S.1069, 95 S.Ct. 655, 42 L.Ed.2d 664 (1974).As this court has stated-

The general test is whether there was"one overall agreement" to perform vari-ous functions to achieve the objectives ofthe conspiracy.... A conspirator neednot know all of the other conspirators orbe aware of all the details of the conspir-acy, so long as the evidence is sufficientto show knowing contribution to the fur-therance of the conspiracy.

United States v. Massa, 740 F.2d 629, 636(8th Cir.1984) (quoting United States v.Zemek 634 F.2d 1159, 1167 (9th Cir.1980),cert. denied, 450 U.S. 916, 101 S.Ct. 1359,67 L.Ed.2d 341 (1981)), cert. denied, 471U.S. 1115, 105 S.Ct. 2357, 86 L.Ed.2d 258(1985) (other citations omitted).

We have also stated that "[t]he existenceof a single agreement can be inferred if theevidence revealed that the alleged partici-pants shared 'a common aim or purpose'and 'mutual dependence and assistance' ex-isted." United States v. DeLuna, 763 F.2d897, 918 (8th Cir.), cert. denied, 474 U.S.980, 106 S.Ct. 382, 88 LEd.2d 336 (1985)(citations omitted).

(4] We are satisfied that the evidencesupported a jury finding of a single Kleinconspiracy, spanning many years and in-volving numerous individuals with the com-mon goal of impairing and impeding theIRS in determining the nature and extentof Alexander's businesses. We thereforereject Alexander's argument that Count Iwas defective because it failed to allege*multiple conspiracies.

(5] Second, Alexander arguesCount I of the indictment is defective b.cause it should have charged him whconspiracy to commit a specific crime unde26 U.S.C. § 7206(1) (1988), rather thanconspiracy to defraud under 18 C.S-C§ 371. Alexander relies on United Siowv. Minarik, 875 F.2d 1186 (6th Cir.19 891and United States v. Mohney, 723 F.Sup;'1197 (E.D.Mich.1989).

In Minarik, the defendants werecharged with willfully conspiring to de.fraud the United States-by impeding, irn.pairing, obstructing, and defeating the law.ful functions of the Department of theTreasury in violation of 18 U.S.C. § 371.875 F.2d at 1188. The government did notallege a conspiracy to commit an offenseagainst the United States-another provi-sion of 18 U.S.C. § 371, despite the factthat its evidence at trial and the bill ofparticulars alleged that the conspiracy wasone to violate 26 U.S.C. § 7206(4) (conceal.ment of assets with intent to evade ordefeat assessment of tax). Id. at 1188-89.The Sixth Circuit stated that when Con.gress has enacted a specific statute ad.dressing a given problem, thus creating aspecific offense, "[t]he court should requirethat any conspiracy prosecution chargingthat conduct be brought under the offenseclause" of 18 U.S.C. § 371, rather thanunder the defraud clause of that statute.Id. at 1193. In Mohney, a Michigan dis-trict court dismissed the first count in anindictment alleging conspiracy to defraudthe government because the government'saccusation in the count was essentially acharge that defendants conspired to violate26 U.S.C. § 7206, and therefore, under Mi-narik the conspiracy had to be chargedunder the offense clause of the.conspiracystatute. 723 F.Supp. at 1203.

Minaik is quite limited, however, to itsfacts. As that court explained:

[t]he "offense" and "defraud" clauses asapplied to the facts of this case are mutu-ally exclusive, and the facts proved con-stitute only a conspiracy under the of-fense clause to violate 26 U.S.C.§ 7206(4)....

875 F.2d at 1187.In Minarik, the defendants engaged in a

narrow course of conduct directed at one

830 '

ALEXANDER v. THORNBURGHCite as 943 F2d 825 (8thCir. 199)

object-to sell a house and get the moneyin an untraceable manner. This obviouslyis not the circumstance in this case inwhich Alexander's conduct is long-span-ning, far-reaching, and involves many activ-ities and events. Moreover, Alexanderdoes not even argue that he lacked ade-

quate notice of the charge he had to de-fend, and at least one court has held thatthis is the only holding of Minarik. Unit-ed States v. Reynold, 919 F.2d 435, 438-39(7th Cir.1990), cert denied - U.S. -,111 S.CL 1402, 113 LEd.2d 457 (1991); seealso United States v. Bilzerian, 926 F.2d1285, 1301 (2d Cir.1991), pet'n for cert.filed, No. 90-1803 (May 22, 1991). We donot believe that Mohney is applicable orpersuasive. We reject Alexander's argu-ment that Count I was defective because italleged a violation of 18 U.S.C. § 371.

II.

(6] Alexander next argues his convic-tions for transporting and selling obscenematerials must be vacated because thejury's verdicts are inconsistent, and theinconsistency mandates a conclusion thatthere was insufficient evidence to supportthese convictions. Alexander contendsthat the jury verdicts are inconsistent be-cause the jury found some items obscene inone count and not obscene in other counts.Specifically, Alexander points out that thejury returned a verdict of not guilty onsome of the counts involving the magazineThe Fat Book, and guilty verdicts as toother counts involving the same magazine.He also says a verdict inconsistency isshown by comparing the jury's guilty ver-dict on Count XXXIX involving the maga-sines "Sweet" and "Party,"* and notguilty verdicts on all counts involving the

6. The jury found some of these materials ob.scene. and their titles insofar as they are notdescriptive of the contents, serve to create inter-est in the contents. As the argument is directedat the inconsistency of the evidence, and not thesufficiency, we believe it sufficient to simplyidentify the first magazine by its last word "Par-1Y , and the other by its first word "Sweet

7. Alexander argues in his reply brief that thecourt's instruction is constitutionally impermis-

831single sale of the magazine "Sweet."(Counts XXVI, XXVII and XL).

Alexander's argument is spurious. Thecourt instructed the jury that when a countalleges two different videotapes or maga-zines to be obscene, they must find onlyone of them to be obscene in order toreturn a guilty verdict' The verdictstherefore are not inconsistent.

Alexander further argues that the jurydid not apply contemporary communitystandards, but instead made impermissibledistinctions based on values of taste, moral-ity, and cultural rejection, resulting in in-consistent or compromise verdicts. Alex-ander's argument asks us to speculate onhow the jury reached its verdicts, which wemay not do. The district court definedobscenity in accordance with the definitionof obscenity announced in Miller v. Cali-fornia, 413 U.S. 15, 24-25, 93 S.Ct. 2607,2614-2615, 37 LEd.2d 419 (1973). Underits instructions, the question of obscenity isone of fact to be determined by the jury,and we cannot conclude that the jury'sverdicts are inconsistent or the result ofcompromise. Moreover, this court has ex-plained "'inconsistency of a verdict on sep-arate counts of an indictment does not en-title a convicted defendant to reversal of ajudgment of conviction.'" United Statesv. Martin, 933 F.2d 609, 612 (8th Cir.1991)(quoting United States v. Bryant, 766 F.2d370, 376 (8th Cir.1985), cert. denied, 474U.S. 1054, 106 S.Ct. 790, 88 LEd.2d 768(1986)). We reject Alexander's argumentthat his convictions for transporting andselling obscene materials should be re-versed because the verdicts are inconsist-ent or the result of compromise.

III-[7] Alexander also argues in both his

civil and criminal appeals' that the legal

sible because the instruction did not allow thejury to make a specific finding of which item inthe two-item counts is obscene. Alexander.however, does not say that he objected to thisinstruction, and, in any event, we see nothingimpermissible about such an instruction.

8. In his civil suit. Alexander sought: 1) a declar-atory judgment that the application of the RICOstatute to obscenity offenses violated his firstamendment rights, and 2) a permanent injunc.

943 FEDERAL REPORTER, 2d SERIES

standard of obscenity enunciated in Millerv. California, 413 U.S. 15, 93 S.Ct. 2607, 37LEd.2d 419 (1973), violates the fifthamendment's due process clause and thefirst amendments freedom of speech provi-sion. He claims that the rationales ad-vanced for criminalization of sexually ex-plicit materials are fundamentally anti-thetical to the constitutional guarantees offree speech and privacy. Alexander goeson to argue that statutes criminalizing thedistribution of obscenity are inherentlyoverbroad and that the Miller test fails toprovide fair notice of prohibited speech andencourages arbitrary enforcement, whichrenders the federal obscenity statute voidfor vagueness and unduly chilling freespeech.

We summarily reject Alexander's argu-ments. The district courts did not err inrejecting Alexander's invitation to overturnMiller. See Fort Wayne Books, Inc. v.Indiana, 489 U.S. 46, 57-58, 109 S.Ct. 916,924-925, 103 L.Ed.2d 34 (1989) (reaffirmingMiller). If this is to be done, it must bedone by the Supreme Court.

IV.(8] Alexander argues that the applica-

tion of the forfeiture provision of 18 U.S.C.j 1962 unconstitutionally criminalizes non-obscene expressive material. He arguesthat sexually explicit expressive materialsare not obscene until a trier of fact in anadversarial judicial proceeding utilizing thethree-part test enunciated in Miller, 413U.S. at 23-24, 93 S.Ct. at 2614-2615, findsthem to be obscene, and that the Millertest must be applied to all material thegovernment seeks to restrain. Alexanderrelies on Marcus v. Search Warrant ofProperty, 367 U.S. 717, 81 S.Ct. 1708, 6LEd.2d 1127 (1961), and Vance v. Univer-sal Amusement Company, 445 U.S. 308,100 S.Ct. 1156, 63 LEd.2d 413 (1980), tosupport his position. Alexander arguesthat Near v. Minnesota, 283 U.S. 697, 51

tion prohibiting the application of the RICOstatute to obscenity offenses. The district courtgranted the Attorney General's motion to dis-miss and motion for summary judgment. Alex-ander v. Thornburgh, 713 F.Supp. 1278(D.Minn.), appeal dismissed 881 F.2d 1081 (8th

S.Ct. 625, 75 L.Ed. 1357 (1931), requithat any law restricting speech be tes,for its operation and effect on protect.speech, and that Marcus and Vance appli.such a test in refusing to endorse obscenitylaws that interfered with the sale of norobscene materials. In Marcus, the' S.preme Court invalidated the large-scaleconfiscation of expressive materials with.out a prior adversarial hearing as an inper.missible prior restraint. 867 U.S. at 731-33, 81 S.Ct. at 1715-17. In Vance, theCourt prohibited the "padlocking" of busi.nesses for up to a year for past violationsof obscenity laws as an impermissible Priorrestraint. 445 U.S. at 317, 100 S.Ct. at1162. Alexander recognizes that thesecases involved prior restraints, but arguesthat these cases show the need for anadversarial proceeding focusing on thequestion of obscenity for all of the materi.als finally restrained.

Alexander continues in his argument fo-cusing on section 1962(c), which requiresthat an accused conduct an enterprisethrough a pattern of racketeering activity.The nub of Alexander's argument is that toprove a criminal enterprise under RICO,Miller requires the government to chargeand prove that: (1) all the materials sold bythe enterprise taken as a whole are ob-scene; or (2) all the materials sold by hisenterprise considered as individual worksare obscene. He claims that the applica-tion of section 1962(c) to this case hascreated the absurd result of criminalizingthe sale of millions of dollars of non-ob-scene materials by an enterprise that dur-ing its 20 years of existence sold just fourmagazines and three videotapes that werelater found to be obscne.

The Fourth Circuit rejected many, if notall, of Alexander's arguments in UnitedStates v. Pryba, 900 F.2d 748 (4th Cir.),cert denied, - U.S. -, 111 S.Ct. 305,112 L.Ed.2d 258 (1990). In Pryba, the de-fendants were convicted on seven counts of

Cir.1989). Alexander's appeal in that case basbeen consolidated with the appeal from hiscriminal convictions, and to the extent the is-sues in his civil appeal are not moot, the issuesare discussed in this opinion.

832

ALEXANDER v. THORNBURGHCit as943 F.2d 85 (8thCir. 1991)

usasporting obscene materials in inter-

sque commerce for sale and distribution,and these counts, coupled with prior state

obscenity convictions, were used as predi-

cae RICO offenses. The Pryba defen-dants argued that the forfeiture order re-sulted in "the confiscation and restraint ofa vast inventory of presumptively protect-ed expressive material," and the applicationof the forfeiture provisions resulted in anunconstitutional prior restraint of protectedactivity. They also argued that the RICOforfeiture provisions violated the firstamendment because the provisions lackedthe procedural safeguards necessary to in-sure that protected expression was not er-roneously suppressed. Id. at 753.

The Fourth Circuies answer to Pryba'sarguments directly applies to the nearlyidentical arguments made by Alexander.The court stated:

The forfeiture provided by 18 U.S.C.§ 1467 does not violate the First Amend-ment even though certain materials,books and magazines, that are forfeited,may not be obscene and, in other circum-stances, would have constitutional pro-tection as free expression. There was anexus established between defendants' lgotten gains from their racketeering ac-tivities and the protected materials thatwere forfeited. The forfeiture did notoccur until after defendants were con-victed of violating various obscenity stat-utes and of participating in a racketeer-ing activity, and until after it was estab-lished beyond a reasonable doubt thatthe proceeds from these criminal activi-ties had been used to acquire the argu-ably protected publications.

Id. at 755.The P-yba court rejected an argument

that Fort Wayne Books required a differ-ent conclusion and stated further.

The forfeiture of nonobscene books,magazines and video tapes, after a con-viction of racketeering involving the saleof obscene goods and after the jury hasdetermined that the forfeited materialswere acquired or maintained in violationof 18 U.S.C. § 1962 and afforded thePrybas a source of influence over the

833racketeering enterprise, does not violatethe First Amendment. The fact thatsome of the materials forfeited are notobscene does not protect them from for-feiture when the procedures establishedby RICO are followed, as they were inthe present case.

Md at 756.Alexander argues that the decision of the

Fourth Circuit in Pryba is not applicable asit dealt with a facial challenge to the RICOforfeiture statute and not to the unconsti-tutional application of section 1962.

We reject Alexander's distinction. As inPryba, a jury convicted Alexander on theRICO charges brought under 18 U.S.C.§ 1962(c) and predicate obscenity offensesunder 18 U.S.C. § 1465. (Here, Alexanderwas also convicted under section 1466).Like Pryba, the jury found some itemscharged in the indictment obscene, somenot, and was unable to reach a verdict onothers. In both cases, after the juryreached a verdict finding violations of 18U.S.C. § 1962, the same jury heard addi-tional testimony on the issue of forfeiture,found that the defendants had an interestin property that gave them a source ofinfluence over the enterprise, and orderedthat certain of the assets, including thebookstores and video stores, be forfeited.Pryba differed fiom the case before us inthat fifteen prior obscenity convictions ofthe corporate defendant were introduced inevidence. Id at 758. Nevertheless, withthis exception, the facts in Pryba are near-ly identical to those here.

Furthermore, the government argueswith persuasive force that in addition to thethirteen magazines and videos that wereintroduced, it was prepared to offer addi-tional items not named in the indictment.On the state of this record, Alexander maynot now argue that the jury must havefound all of the materials seized in theforfeiture proceedings obscene under Mil-ler.

In his reply brief, Alexander asserts thatSable Communications v. Federal Com-munications Commission, 492 U.S. 115,109 S.Ct. 2829, 106 L.Ed.2d-93 (1989), fur-ther supports his argument that the appli-

834 943 FEDERAL REP

cation of the RICO forfeiture provision un-constitutionally criminalized the sale of ex-pressive material.

In Sable, the Supreme Court examinedthe constitutionality of a federal criminalstatute prohibiting the sale of "indecent"or "obscene" commercial telephone mes-sages. Id. at 117, 109 S.Ct. at 2832. TheCourt upheld the criminal prohibitionagainst obscene messages, but struck downthe ban on indecent messages. Id. Alex-ander argues that based on Sable, thegovernment cannot criminally prosecute Al-exander for selling non-obscene materialany more than Congress could criminalizethe sale of non-obscene messages.

Alexander's argument misses the mark.Alexander was not prosecuted for sellingnon-obscene material, and Sable has nobearing on the facts presented in this case.For the several reasons discussed, we re-ject Alexander's argument that the applica-tion of 18 U.S.C. § 1962 unconstitutionallycriminalizes non-obscene expressive materi-als.

V.(9] Alexander next argues in both his

civil and criminal appeals that the applica-tion of the RICO forfeiture provisions vio-lates the first amendment.' Specifically,he contends that the forfeiture results inan unconstitutional prior restraint, imposesan unconstitutional chilling effect on consti-tutionally protected expression, and is con-stitutionally overbroad. The Fourth Cir-cuit summarily rejected these same argu-ments in Pryba, concluding that "(o]bsceni-ty is not protected by the First Amendmentand a convicted racketeer may not launderhis dirty money by investing it in materialsthat involve protected speech." 900 F.2dat 756.

Alexander, like the Pryba defendants,relies on Fort Wayne Books to support hisposition that the application of the RICOforfeiture provisions causes an unconstitu-tional prior restraint. There is, however,no similarity to the procedural posture inthis case and the pretrial seizure con-

9. The district court rejected Alexander's facialchallenge to the application of the RICO forfei.

ERIE

demned in Fort Wayne Books. 48966, 109 S.Ct. at 929.

Alexander's convictions on acounts may serve as a predicate to aviolation, and do not constitute a prior 1straint. The First Amendment is not is.lated when there is a nexus establbetween the ill-gotten gains from -ateering activity and the protected materabforfeited. Pryba, 900 F.2d at 755.

Here, the RICO forfeiture provisinconstitute a criminal penalty imposed fislowing a conviction for conducting an oterprise engaged in racketeering activaisCourts have recognized the substantial .ference between prior restraints and cricsnal penalties. See, e.g., Arcara v. CodBooks, Inc., 478 U.S. 697, 705-06 & n. t106 S.CL 3172, 3176-77 & n. 2, 92 LEd.2568 (1986); Southeastern PromotionsLtd. v. Conrad, 420 U.S. 546, 558-59, 9rS.Ct. 1239, 1246-47, 43 L.Ed.2d 448 (197kKingsley Books, Inc. v. Brown, 354 US.436, 441-45, 77 S.CL 1325, 1327-28. 1LEd.2d 1469 (1957).

Alexander next argues that the forfeiture imposes an unconstitutional- chillingeffect on protected expression- The Su-preme Court has directly addressed thechilling effect from the application of theRICO forfeiture provisions to obscenity of-

fenses and to first amendment protectedmaterials:

It may be true that the stiffer RICOpenalties will provide an additional deter-

rent to those who might otherwise sell

obscene materials; perhaps this means

that some cautious booksellers will

practice self-censorship and remove First

Amendment protected materials fromtheir shelves. But deterrence of the sale

of obscene materials is a legitimate end

of state anti-obscenity laws, and our

cases have long recognized the practical

reality that "any form of criminal ob-scenity statute applicable to a bookseller

will induce some tendency to self-censor

ship and have some inhibitory effect On

the dissemination of material not ob-

ture provisions in United States v Alexander

736 FSupp. 968. 977-40 (D.Minn.1990).

ORER 2d S

ALEXANDER vCite as 943 F.2d

scene." The mere assertion of some pos-sible self-censorship resulting from astatute is not enough to render an anti-

obscenity law unconstitutional under our

precedents.pj Wayne Books, 489 U.S. at 60, 109S.CL at 925 (citing Smith v. California,361 U.S. 147, 154-55, 80 S.Ct. 215, 219-20,

4 L.Ed.2d 205 (1959)).We reject Alexander's argument that the

forfeiture provisions have an unconstitu-donally chilling effect on first amendmentrights.

We also reject Alexander's argumentthat the reach of the RICO forfeiture provi-sions is unconstitutionally overbroad.. InArara, the Supreme Court upheld the clo-sure of a bookstore that had been used as afront for prostitution. The Court statedthat criminal and civil sanctions are notsubject to " 'least restrictive means scruti-ny"' because a particular remedy "willhave some effect on the First Amendmentactivities of those subject to sanction."478 U.S. at 706, 106 S.Ct. at 3177.

Here, the court specifically and properlylimited the forfeiture to profits, real estate,and businesses directly related to Alexan-dees interstate transportation and sale ofobscene magazines and videos. The forfei-ture is not unconstitutionally overbroad.1e

VI.Alexander argues that his sentence, pri-

marily the forfeiture order, violates theeighth amendment prohibition against crueland unusual punishments and excessivefines.

The Supreme Court has set forth a three-part test for determining whether a sen-tence violates the eighth amendment Thetest requires a comparison of: (1) the grav-ity of the offense and the harshness of thepenalty* (2) the sentences imposed for thesame or similar offenses in the same juris-diction; and (3) the sentences imposed for

10. Alexander also argues that the court shouldhave applied a remedy requiring forfeiture ofProceeds which were proportional or traceableto the sale of obscene material. There is, how-ever, no requirement that courts engage in sucha test in applying the RICO forfeiture provi.

. THORNBURGH 835825 (8th CIr. 1991)

the same or similar offenses in other juris-dictions. Solem v. Helm, 463 U.S. 277,290-92, 103 S.Ct. 3001, 3009-11, 77 L.Ed.2d637 (1983).

A sentence imposed is entitled to "sub-stantial deference" and.we may only con-sider "whether the sentence ... is withinthe constitutional limits." Solem, 463 U.S.at 290 and n. 16, 103 S.Ct. at 3009 and n.16.

[10] The district court imposed Alexan-der's prison sentence based on the Sentenc-ing Guidelines. 28 U.S.C. § 994 (1988).Alexander does not specifically attack hisprison sentence. Instead, he appeals fromthe forfeiture order arguing once againthat the income "from the two patterns ofracketeering amoun(t] only to an infinites-imal percentage of his legitimate income,"and that when the forfeiture is combinedwith the fine and prison sentence, the"harshness" of the penalty is "amazinglyunfair."

Alexander cites one decision in which theNinth Circuit remanded the case for a de-termination of whether the forfeiture wasgrossly disproportionate or excessive,United States v. Busher, 817 F.2d 1409,1414-16 (9th Cir.1987), and contends thatthis case should be followed here.

Nevertheless, in the only other RICO-obscenity case in the country, the FourthCircuit held that the forfeiture of a busi-ness with total annual sales of $2 million asa result of $105.30 of material found to beobscene did not constitute a cruel and un-usual punishment or an excessive fine pro-hibited by the eighth amendment. Pryba,900 F.2d at 753, 756-57. The Fourth Cir-cuit added that it was not even required toconduct a proportionality review becausethe defendants did not receive a sentenceof sufficient severity. Id. at 757 (citingUnited States v. Whitehead, 849 F.2d 849,860 (4th Cir.), cert. denied, 488 U.S. 983,109 S.CL 534, 102 L.Ed.2d 566 (1988);

sions. See ag., United States v. Regan, 858 F.2d115. 119 (2d Cir.1988): United States v. Kravitz.738 F.2d 102, 104-05 (3d Cir.1984). cert. denied470 U.S. 1052, 105 S.Ct. 1752, 84 LEd.2d 816(1985).

943 FEDERAL REPORTER, 2d SERIES

United States v. Rhodes, 779 F.2d 1019,1027-28 (4th Cir.1985), cert. denied, 476U.S. 1182, 106 S.Ct. 2916, 91 LEd.2d 545(1986)). "Solem v. Helm does not requirea proportionality review of any sentenceless than life imprisonment without thepossibility of parole." Pryba, 900 F.2d at757 (citation omitted). We cannot concludethat the district court abused its discretionin sentencing Alexander.

VII.

Finally, Alexander argues that the evi-dence was insufficient to support his con-victions on the tax counts, social securitycounts, and all other counts. He adds inhis reply brief that the evidence was insuf-ficient to support his RICO convictions, ar-guing that the government failed to showthat proceeds from a pattern of racketeer-ing activity were invested in a criminalenterprise, or a criminal enterprise existedas required by 18 U.S.C. § 1962. We havecarefully reviewed Alexander's argumentsand record at trial. We are satisfied thatthere is ample evidence to support Alexan-der's convictions on all counts.

Having carefully considered all of Alex-ander's arguments, we affirm Alexander'sconvictions, and the orders of forfeitureand summary judgment

UNITED STATES of America, Appellee,

V.

Benjamin SLOW BEAR, Appellant.

No. 904473.

United States Court of Appeals,Eighth Circuit

Submitted Aug. 26, 1991.

Decided Aug. 30, 1991.

Defendant was convicted of assaultwith dangerous weapon with intent to do

bodily harm and assault by striking b,ing or wounding following jury . addefendant was sentenced using enhu"offense level for using dangerous wand inflicting serious bodily injury on rV.tim by the United States District Court forthe District of South Dakota, Richa IBattey, J., and Andrew W. Bogue, Semi,District Judge. Defendant appealed. thCourt of Appeals, McMillian, Circuit Judgeheld that: (1) jury's acquittal under stab.tory definition did not preclude finding ofserious bodily injury under Guidelines def>nition; (2) enhancement of offense level forserious bodily injury was supported by eridence; and (3) successor judge could makefactual determination for offense level en-hancement under Sentencing Guidelines.

Affirmed.

1. Criminal Law 41250Conduct which is subject of acquittal

may be used to enhance base offense levelunder federal Sentencing Guidelines.U.S.S.G. § 1B1.1 et seq., 18 U.S.C.A.App.

2. Criminal Law 4-1254

Jury's finding of no serious bodily inju-ry in connection with acquittal on charge ofassault resulting in serious bodily injurydid not preclude finding of serious bodilyinjury necessary for enhancement of baseoffense level under federal SentencingGuidelines. U.S.S.G. § 2A2.2(a), (b)(3XB).18 U.S.C.A.App.

32 Criminal Law -1254Enhancement of offense level for sen-

ous bodily injury was justified, eventhough jury did not find serious bodily

harm necessary for conviction of assault

resulting in serious bodily injury, where

victim's skull fracture required hospital-

ization and was not clearly erroneous.

U.S.S.G. §§ 1B1.1 et seq., 2A2-2().(bX3XB), 5K2.10, p.s., 18 U.S.C.A.APP.

4. Criminal Law 4977(2)Successor judge could make factual de-

terminations concerning whether assault

defendant's conduct caused serious bodily

injury, for purposes of imposing enhanced

836

946 FEDERAL REPORTER, 2d SERIES

question in roughly analogous circum-stances. See Donovan v. Civil Serv. Em-ployees Ass'n, Local 1000, 761 F.2d 870,874 (2d Cir.1985) (a protest sent within theten-day period provided by the union's con-stitution, but not received until 3 days afterthe ten-day period expired, satisfied theten-day requirement for purposes of sec-tion 402(a)); Donovan v. Local 2122, Com-munication Workers ofAmerica, 740 F.2d860, 862 (11th Cir.1984) ("Any time require-ment that is dependent upon the union'sreceipt of the protest instead of its post-mark becomes immediately suspect in lightof current delays in mail transmittals.");see also Hodgson, 444 F.2d at 1349-50 (pro-test sent within deadline but received latedue to postal strike was timely under see-tion 402).

The order of the district court is RE-VERSED and the case REMANDED forfurther proceedings consistent with thisopinion.'

DISCOVERY NETWORK, INC. andHarmon Publishing Co.,

Plaintiffs-Appellees,V.

CITY OF CINCINNATI, Defendant-Appellant.

No. 90-3817.United States Court of Appeals,

Sixth Circuit

Argued April 30, 1991.Decided Oct 11, 1991.

Commercial publishers brought civilrights action, requesting declaratory and

Joint Council decision begins to run "from thedate the decision is placed in the mail or other-wise transmitted to the interested parties." Bymaintaining that the Joint Council must receivemembers' protests within 72 hours, but that theclock for appeals begins to run before membersreceive a Joint Council decision, Local 480 urgesa construction of the Teamsters' constitutionthat would impose inconsistent requirements to.ward the consistent end of disfavoring com-plaining union members.

injunctive relief against enforcement ofcity ordinance prohibiting distribution ofcommercial handbills on public property.The United States District Court for theSouthern District of Ohio, S. Arthur Spie-gel, J., entered judgment preventing en-forcement of ordinance, and city appealed.The Court of Appeals, Boggs, CircuitJudge, held that ordinance banning distri-bution of commercial handbills along citystreets and sidewalks in light of aestheticand safety concerns from proliferation ofnewsracks for commercial publications didnot prescribe "reasonable fit" betweenends asserted and means chosen to advancethem, and therefore ordinance was uncon-stitutional under First Amendment.

Affirmed.

1. Constitutional Law C-90.2"Commercial speech" only receives

lesser First Amendment protection whengovernmental interest asserted is either re-lated to regulating the commerce that"commercial speech" is promoting, or relat-ed to any distinctive effects such commer-cial activity would produce. U.S.C.A.ConstAmend. 1.

2. Constitutional Law e-90.2In reviewing city's regulation of com-

mercial speech, deference to city's decisionis not required merely because decision isreasonable. U.S.C.A. Const.Amend. 1.

3. Constitutional Law 90.2Lesser value placed on "commercial

speech" only justifies regulations dealingwith content of speech itself, or with dis-tinctive effects that content of speech willproduce. U.S.C.A. Const.Amend. 1.

4. The district court did not address, and we takeno position on, the Joint Council's alternativebasis for dismissing the complainants' initialelection protest, Le., the finding that the prote-tors failed to specify sufficiently the acts corn-plained of and how those acts affected the out-come of the election.

464

DISCOVERY NETWORK, INC. v. CITY OF CINCINNATICite as 946 F.2d 464 (6th Cir. 1991)

. Constitutional Law G90.2City ordinance banning distribution of

conmercial handbills along city streets and

sidewalks in interest of aesthetic and safe-ty concerns from proliferation of news-

racks did not prescribe "reasonable fit"

between ends asserted and means chosento advance them, and therefore ordinancewas unconstitutional under First Amend-

ment. U.S.C.A. Const.Amend. 1.

s. Constitutional Law e-90.1(8), 90.2City ordinance prohibiting distribution

of commercial handbills on public property,which treated newsracks for "commercial"publications different from newsracks fortraditional newspapers, was not content-neutral and therefore could not qualify asconstitutional time, place, and manner re-striction. U.S.C.A. Const.Amend. 1.

6. Constitutional Law 090.1(8), 92Municipal Corporations e622

Even if city ordinance prohibiting dis-tribution of commercial handbills on publicproperty was content-neutral, despite treat-ing newsracks for "commercial" publica-tions differently than newsracks for tradi-tional newspapers, ordinance did not meetconstitutional requirement of being riar-rowly tailored to serve significant govern-mental interest, since there were many op-tions available to city that would addressits aesthetic, safety, and newsrack prolif-eration concerns without placing significantburden on commercial speech of completelybanning distribution of commercial hand-bills. U.S.C.A. Const.Amend. 1.7. Constitutional Law e90.2

Municipal Corporations 0-622City ordinance prohibiting distribution

of commercial handbills on public property*as not valid content-based restriction; or-dinance placed substantially greater bur-den on commercial speech than was neces-4q to alleviate city's aesthetic and safetycncerns from proliferation of newsracksfor commercial publications, as opposed tonewsracks for traditional newspapers.t.S.C.A. Const.Amend. 1.'The Honorable Patrick J. Duggan, United States

District Judge for the Eastern District of Michi-

Marc D. Mezibov (briefed), Martha K.Landesberg (argued), Sirkin, Pinales, Mezi-boy & Schwartz, Cincinnati, Ohio, for plain-tiffs-appellees.

Richard H. Castellini, City Solicitor's Of-fice for the City of Cincinnati, Mark S.Yurick (argued and briefed), Office of theCity Sol., Cincinnati, Ohio, for defendant-appellant.

Before KRUPANSKY and BOGGS,Circuit Judges, and DUGGAN, DistrictJudge.*

BOGGS, Circuit Judge.

[1] The case involves the constitutional-ity of Cincinnati's ordinance prohibiting thedistribution of commercial handbills onpublic property. This ordinance effectivelygrants distributors of "newspapers," suchas the Cincinnati Post, USA Today, andthe Wall Street Journal, access to thepublic sidewalks through newsracks, whiledenying that same access to distributors of"commercial handbills." The district courtrendered a judgment preventing enforce-ment of this ordinance because it violatesthe first amendment. The city appealed,arguing that the ordinance was constitu-tionally permissible as a regulation of"commercial speech" because of the "less-er protection" such speech is afforded un-der the first amendment. Because we be-lieve that "commercial speech" only re-ceives lesser first amendment protectionwhen.the governmental interest asserted iseither related to regulating the commercethe "commercial speech" is promoting, orrelated to any distinctive effects such com-mercial activity would produce, and neithergovernmental interest is asserted here, weaffirm the district court.

I

Plaintiffs are publishers of publicationsdistributed throughout the Cincinnati met-ropolitan area. Discovery Network pub-

gan, sitting by designation.

465

946 FEDERAL REPORTER, 2d SERIES

lishes a magazine that advertises learningprograms, recreational opportunities, andsocial events for adults. Harmon Publish-ing publishes and distributes Home Maga-zine, which lists houses and other resi-dential real estate for sale or rent. Bothplaintiffs use newspaper dispensing devices("newsracks") placed on public right-of-ways to distribute their publications.

Both plaintiffs had been given permis-sion by the city to place newsracks alongpublic right-of-ways to distribute their pub-lications according to Amended Regulation38.1 Their status changed, however, inFebruary 1990 when the City Councilpassed a motion requiring the Departmentof Public Works to enforce the existingordinance prohibiting the distribution of"commercial handbills" on public property.Cincinnati Municipal Code § 714-23.2Plaintiffs brought suit under 42 U.S.C.§ 1983, requesting declaratory and injunc-tive relief. This case ultimately came be-fore the district court for an evidentiaryhearing on two issues: whether the regula-tion violated plaintiffs' first amendmentrights, and whether the city's mechanismfor appealing the administrative decision toenforce the ordinance violated plaintiffs'right to due process.

The court held that hearing on July 9,1990, In that hearing, the city contendedthat the newsracks pose aesthetic and safe-

1. The Amended Regulation reads in pertinentpart as follows:

1. All devices located within the public right.of-way for the purpose of dispensing newspa-pers must be shown on a site plan of theimmediate vicinity of the device.... The siteplan and request to place newspaper vendingdevice (sic] in public right-of-way (sic] mustbe presented to and approved by the CityManager or his designee prior to the place.ment of the device....3. Placement of the newspaper dispensingdevice must be such that it is not accessiblefrom that part of the right-of-way normallyreserved for vehicular traffic and does notobstruct normal pedestrian traffic, interferewith handicap access, create driver sight dis-tance problems or otherwise create a publicnuisance nor shall the method of attachmentallow the device to be moved after placementto create these problems....6. The owner/operator of newspaper dis-pensing devices within the public right-of.way

ty problems for the city. The aestheticproblems arise because of the non-uniformdesign and color schemes of the differenttypes of newsracks. The safety problemsarise because the racks are placed nearbusy streets, especially near crosswalksand bus stops. They are also attached bychains to city fixtures, such as lightpoles,causing the fixtures to rust. However,there are currently no city regulations es-tablishing any safety or aesthetic stan-dards for newsracks.

Neither the City Architect nor the CityEngineer could distinguish the commercialfrom the non-commercial newsracks. Infact, the Architect testified that the city'saesthetic concerns would be alleviated byan ordinance regulating the color and sizeof all newsracks. Both witnesses seemedprimarily concerned about the potentialproliferation of the total number of news-racks as a result of newsracks distributingcommercial speech. The Engineer testifiedthat the only areas in which commercialnewsracks differed from non-commercialnewsracks was in the potential for prolif-eration, and in the enhanced first amend-ment protection accorded to devices dis-pensing non-commercial publications. Hebelieved such proliferation was likely be-cause he had received four requests forpermits from commercial publishers fornewsrack permits in the prior two years,

must register a responsible contact person ...with the City Manager.... This contact per-son shall be able to respond in a reasonabletime to problems relative to the enforcementof these rules and regulations.

L A "commercial handbill" is defined as:any printed or written matter, any sample ordevice, dodger, circular, leaflet, pamphlet, pa-per, booklet or otherwise reproduced originalor copies of any matter of literature:(a) which advertises for sale any merchan-dise, product, commodity or thing or(b) which directs attention to any business ormercantile or commercial establishment, Orother activity, for the purpose of either direct-ly or indirectly promoting the interest thereofby sales: or(c) which directs attention to or advertisesany meeting, theatrical performance. exhibi-tion or event of any kind for which an admis-sion fee is charged for the purpose of privategain or profit.

466

DISCOVERY NETWORK, INC. v. CITY OF CINCINNATICite as 946 F.2d 464 (6th Cr. 1991)

the first such requests he had ever re-

ceived. 3 The Architect's testimony fol-lowed the Engineer's, as he believed that

permitting plaintiffs' newsracks to remainwould send a signal .to other commercialpublishers that newsracks were a permissi-ble way to distribute the publications,thereby increasing the number of racks.

The court ruled in favor of the city onthe due process claim, but in favor of theplaintiffs on the first amendment claim.The court reached many conclusions of law:that the publications were commercialspeech within the meaning of the firstamendment because they proposed com-mercial transactions in the form of adver-tisements; ' that commercial speech wasentitled to first amendment protectionwhere, as here, the activities promotedwere lawful and the speech itself not inher-ently misleading- and that the ordinancewould be measured against the four-parttest announced by the Supreme Court inCentral Hudson Gas & Electric Corp. v.Public Service Comm'n of New York, 447C.S. 557, 566, 100 S.Ct. 2343, 2351, 65LEd.2d 341 (1980). That test provides thata government regulation will be upheld if it(1) regulates commercial speech; (2) pro-motes a substantial governmental interest;13) directly advances that interest; and, (4)is not more extensive in its regulation of

Cincinnati Municipal Code § 701-1-C.1 This argument rests on the assumption that

there is an infinite number of commercial pub.lishers who might seek permits, but only a finitenumber of non-commercial publishers. In lightof the growing nationalization of newspapers inthis country, that assumption is somewhat tenu-ous at best. The city provided no direct evi-dence regarding the increase in the number of

on"cOmmnercial publishers dispensing theirares through newsracks. However, the Archi-

tect testified that -it was not very long ago thate ncinnart Post and the Cincinnati Enquirer

'er the only ones with dispensing devices onthe City streets." We take judicial notice of theac that USA Today, the New York Timer, thehall Street Journa4 and the Business Courier allhave dispensing devices on the corner acrossrorm the Federal Courthouse.In this case, plaintiffs do not question the

con!Ours of the delineation between "commer-

thl and 'non-commercial' speech. We willa dopt and adhere to that terminology, al.though we find it somewhat anomalous to de.

467speech than is necessary to serve that in-terest. Id.

The court focused its analysis on the lastpart of that test. The court applied theSupreme Court's interpretation of thefourth part of the Central Hudson test inBoard of Trustees of State University ofNew York v. Fox, 492 U.S. 469, 109 S.Ct.3028, 106 LEd.2d 388 (1989). The FoxCourt stated that a regulation is not moreextensive than necessary when it is a rea-sonable fit between the ends directly ad-vanced by the statute and the means cho-sen as embodied in the regulation. Fox,492 U.S. at 480, 109 S.Ct. at 3034. TheCourt held that the government has theburden of proving the reasonableness ofthat fit. Id.

The district court's analysis led it to con-clude that the city's ordinance did not con-stitute a reasonable fit between its assert-ed ends and the means chosen. The courtheld that a complete ban on newsracksdistributing commercial speech violated theFox test. Only 62 of the between 1,500-and 2,000 newsracks present on the city'sstreets belonged to the plaintiffs. Basedon the city's concession that newsracks dis-pensing "non-commercial" papers causedthe same problems as those distributingcommercial papers, the court held that the

nominate as "non-commercial" institutions suchas the New York Times and Gannett (publisherof the Cincinnati Post). each of which has assetsand revenues in the billions of dollars, andprofits in the many millions of dollars.

Obviously, a quite significant part of the spacein "newspapers" is devoted to purely commer-cial activities, while publications such as plain-tiffs' may (and certainly could easily) containsome editorial material, such as comments orarticles on education or real estate matters.The first amendment by its terms does not makethis distinction; it protects "speech." An analo-gous practice, deciding on content-basedgrounds which beliefs merit classification as.religion" protected by the establishment andfree exercise clauses of the first amendment,has been severely limited by courts to avoidimpermissible government interference intoprotected activity. See United States v. Seeger,380 U.S. 163. 85 S.Ct. 850, 13 LEd.2d 733(1965); United States v. Ballar4, 322 U.S. 78. 64S.Ct. 882. 88 LEd. 1148 (1944). See also G.Stone. L Seidman, C. Sunstein. and M. Tushnet.Constitutional Law 1369-73 (1986).

946 FEDERAL REPORTER, 2d SERIES

regulation was an excessive means to ac-complish the stated ends.

Cincinnati timely appealed the court's de-termination.5

II

A

Both parties agree on the legal contourswithin which this case must be decided.Both parties agree that this case requiresthe application of the four-part CentralHudson test, and the interpretation givenby the Supreme Court to the fourth part ofthat test in Fox. Both parties agree thatthis ordinance satisfies the first two partsof the test: in this case it regulates purelycommercial speech,' and Cincinnati's inter-ests in street safety and city aesthetics aresubstantial. As it is clear that the ordi-nance directly advances the purposes as-serted, we have only one issue before us:Does Cincinnati's ordinance- banning thedistribution of commercial handbills alongcity streets and sidewalks prescribe a "rea-sonable fit" between the ends asserted andthe means chosen to advance them? Wehold that it does not.

B

In establishing the "reasonable fit" re-quirement, the Court in Fox attempted todraw a middle ground between greater andlesser review of a regulation of commercialspeech. The Court expressly rejected im-posing either a "least restrictive means" ora "rational basis" standard of review onregulations of commercial speech. Foz492 U.S. at 479-81, 109 S.Ct. at 3034-35.The Court rejected the least restrictivemeans approach as inconsistent with itsprior commercial speech jurisprudence, andrejected the rational basis approach be-cause "[t]here it suffices if the law couldbe thought to further a legitimate govern-mental goal, without reference to whether

S. The plaintiffs have not cross-appealed fromthe court's judgment for the city on the dueprocess claim.

6. However, it should be noted that the ordi-nance can also be applied to "newspapers." Allnewspapers advertise products for sale, or direct

it does so at inordinate cost." Fox, 492U.S. at 480, 109 S.Ct. at 3035. The Courtdescribed its "reasonable fit" approach asone "that represents not necessarily thesingle best disposition but one whose scopeis 'in proportion to the interest served'....Here we require the government goal to besubstantial, and the cost to be carefllycalculated." Id. We presume that the costreferred to by the Fox Court is that whichwould accrue because of the burden placedon the commercial speech, and that the Foxtest requires that such costs must be out-weighed by the benefits of the assertedregulation. We can only make that calcula-tion if we know what value the Court hasplaced on commercial speech, and it is tothat consideration that we now turn.

CCommercial speech has unquestionably

been protected by the first amendmentsince the Supreme Court in Virginia StateBoard of Pharmacy r. Virginia CitizensConsumer Council, Inc., 425 U.S. 748, 96S.Ct. 1817, 48 L.Ed.2d 346 (1976), held thatthe Court's prior offhand statement in Val-entine v. Chrestensen, 316 U.S. 52, 62S.Ct. 920, 86 L.Ed. 1262 (1942), that "purelycommercial advertising" was not protecteddid not establish an exception to firstamendment protection. The Court recog-nized in Virginia Citizens that commercialspeech, though it may not touch upon thehighest topics of human existence (indeed,much protected speech does not), is impor-tant to the public welfare. The Court not-ed in Virginia Citizens that speech utteredsolely for economic motives has high valueto those who listen to it. "As to the partic-ular consumer's interest in the free flow ofcommercial information, that interest maybe as keen, if not keener by far, than hisinterest in the day's most urgent politicaldebate." Virginia Citizens, 425 U.S. at763, 96 S.Ct. at 1826. In recognizing the

attention to business establishments for the pur.pose of directly or indirectly promoting thesales thereof (restaurant or theater reviews). ordirect attention to events of any kind for whichan admission fee is charged for the purpose ofprivate profit (Reds or Bengals games).

468

DISCOVERY NETWORK, INC. v. CITY OF CINCINNATICite as 946 F.d 464 (6th Cir. 1991)

rtance of commercial speech to privateisn1 mic activity, the Court was once

ecoin affirming that the "right of the indi-

vidual to contract, to engage in any of the

cmmon occupations of life, to acquire use-

ful knowledge" is "essential to the orderlypursuit of happiness by free men." Board

of Rgents of State College v. Roth, 408

L.S. 564, 572, 92 S.Ct. 2701, 2707, 33LEd.2d 548 (1972) (quoting Meyer v. Ne-

braska, 262 U.S. 390, 399, 43 S.CL 625, 626,67 L.Ed. 1042 (1923)). The Court recog-sized that having made this decision, one

with which we have no quarrel, commercial

advertising is essential because it conveysinformation that permits each person to

decide which trades and economic decisionsare best for that person. See VirginiaCitizens, 425 U.S. at 764, 96 S.CL at 1821.-Therefore, even if the First Amendmentwere thought to be primarily an instrumentto enlighten public decisionmaking in a de-mocracy, we could not say that the freeflow of information does not serve that

goal." Id. at 765, 96 S.Ct. at 1827. Assuch, commercial speech also has a highvalue to the society as well.

The Court did not mean to free commer-cial speech from all regulation and createsome sort of an advertiser's paradise. TheCourt noted that time, place, and mannerrestrictions could be applied to commercialspeech, provided that such restrictions arecontent-neutral Virginia Citizens, 425t.S. at 771, 96 S.Ct. at 1830. False andmisleading speech could also be regulatedor banned, id., including types of commer-cal speech that may merely be likely todeceive the public. Also, speech proposing"'PI commercial transactions may bebaned. Id at 772, 96 S.Ct. at 1831. As at

t. Serninel Comsmunications Co. v. Wat 936M 1189, 1196-97 (11th Cir.l991), and cases

and therein.

L Cncinnati also argues that we should defer toOw city's decision so long as it is reasonable. Itdr"" this conclusion from two sentences inlax that 'we have been loath to second-guess0* overnment's judgment." Fox, 492 U.S. at

*109 S.Ct. at 3034, and that '[wlithin thosends (the reasonable fit testl we leave it to

governmental decisionmakers to judge what%1ner of regulation may best be employed."

492 US. at 480, 109 S.CL at 3035. We do

least the prior regulation of speech con-sidered potentially false or misleadingwould be impermissible if applied to politi-cal speech, the Court's decision effectivelyleft commercial speech with lesser protec-tion than that afforded to other types ofspeech. The Court has continued to adhereto these principles in its subsequent com-mercial speech jurisprudence. See CenitralHudson, 447 U.S. at 563-64, 100 S.Ct. at2350.

[2] This "lesser protection" affordedcommercial speech is crucial to Cincinnati'sargument on appeal. Cincinnati arguesthat placing the entire burden of achievingits goal of safer streets and a more harmo-nious landscape on commercial speech isjustified by this lesser protection. The citycorrectly notes that many courts have heldthat a city cannot ban newsracks contain-ing traditional newspapers that commenton current affairs, thereby precluding itfrom alleviating its problem by completelybanning newsracks from the city.' It asksus to hold that, in light of that restriction,its policy of banning only newsracks dis-tributing commercial speech is a cost-effec-tive way of alleviating its problem, andtherefore meets the Fox test.8

[3] The fact that commercial speech isowed less protection than is political speechdoes not lead to Cincinnati's conclusion thatcommercial speech has a low value in firstamendment jurisprudence. "While (theplaintiff's] speech is primarily commercialin nature, and thereby not subject to all ofthe traditionally stringent protections ofthe first amendment, it is nevertheless enti-tled to substantial protections." AmericanMotors Sales Corporation v. Runke, 708F.2d 202, 208 (6th Cir.1983). Our examina-tion of that jurisprudence shows us that

not believe that these statements command us togive the city the benefit of the doubt in closecases, as Cincinnati would have it. Rather, theyare meant to distinguish the Court's test in Foxfrom the least restrictive means test urged onthe Court by the defendant. A least restrictivemeans test can be satisfied by only one methodof regulation, while the Fox test can be satisfiedby many different methods. If the Court's

words mean what Cincinnati argues they do,then the Fox Court's subsequent rejection of the

fourteenth amendment rational basis test would

be a glaring inconsistency.

469

946 FEDERAL REPORTER, 2d SERIES

the lesser value placed on commercialspeech only justifies regulations dealingwith the content of the speech itself, orwith distinctive effects that the content ofthe speech will produce. In every commer-cial speech case but one,9 a regulation up-held as constitutional by the Court fell intoone of two groups. In the first, the regula-

9. That one case is Metromedia, Inc. v. City ofSan Diego, 453 U.S. 490, 101 S.CL 2882. 69LEd.2d 800 (1981). In Metromedia, the Courtoverturned an ordinance that banned outdoor,off-site advertising displays as an attempt toincrease traffic safety and enhance appearance.These interests are very similar to those ad-vanced by Cincinnati in defense of its ordi-nance. The ordinance at issue in Metromedia isalso the only regulation of commercial speechthat has yet come before the Court where agovernment attempted to do what Cincinnati istrying so here, regulate a manner of conveyingcommercial speech in order to combat per-ceived evils wholly unrelated to the commercialcontent of that speech. Thus, if the majority ofthe Court had upheld San Diego's statute as apermissible regulation of commercial speech,we would be compelled to reverse the districtcourt. However, only a plurality of the Courtfound that the San Diego ordinance co-istitu-tionally regulated commercial speech. The con-currence specifically-and vehemently-disa.greed with that conclusion. See Merromedia,453 US. at 536, 101 S.Ct. at 2907 (Brennan. J.,concurring). The Court's judgment rested onthe ground that San Diego's ordinance was animpermissible content-based restriction on non-commercial speech because it only permittedon-site signs with certain types of speech. Me-tromedia, 453 US. at 521, 101 S.Ct. at 2899. Asthe Court has stated that "when no single ratio-nale commands a majority. 'the holding of theCourt may be viewed as that position taken bythose Members who concurred in the judg-menit] on the narrowest ground.' " City of Lake-wood v. Plain Dealer Publishing Co., 486 U.S.750, 764 n. 9, 108 S.Ct 2138. 2148 n. 9, 100LEd2d 771 (quoting Marks v. United States 430US. 188, 193, 97 S.Ct. 990, 993, 51 LEd.2d 260(1977)), we do not view the plurality dicta inMerromedia as controlling the outcome of thiscase.

10. See Zauderer v. Office of Disciplinary Counselof the Supreme Court of Ohio, 471 US. 626, 105S.Ct. 2265, 85 LEd.2d 652 (1985) (regulationbanning the use of illustrations in lawyer adver-tising and banning statements in such advertise-ments offering legal advice and information asmisleading unconstitutional; regulation requir-ing disclosure that legal "fees" and "costs" aredistinct financial obligations in retaining a law.yer to avoid misleading public constitutional);Friedman v. Rogers, 440 U.S. 1. 99 S.Ct. 887, 59LEd.2d 100 (1979) (statute prohibiting the ad-

tion sought to ban speech believed to beinherently false or misleading. 0 In thesecond group, the regulation sought to al-leviate distinctive adverse effects allegedlycaused by and directly flowing from thetype of commercial speech regulated.t Itis clear that Cincinnati's ordinance does notattempt to regulate plaintiffs' speech be-

vertisement of optometry practices throughtrade names as misleading constitutional). TheCourt also ruled many regulations to be uncon.stitutional in this group. See Peel v. AttorneyRegistration and Disciplinary Comm'n of fL, -US. - , 110 S.Ct. 2281. 110 L.Ed.2d 83 (1990)(regulation banning lawyer advertisement ofcertification by the National Board of Trial Ad-vocacy as misleading unconstitutional); In reR.MJ., 455 US. 191, 102 S.Ct. 929, 71 LEd.2d 64(1982) (regulations limiting the precise namesof practice areas lawyers can use in ads andidentifying the jurisdictions lawyer is licensedin as misleading unconstitutional); Bates v.State Bar of Ariz.. 433 U.S. 350. 97 S.Ct. 2691, 53LEd.2d 810 (1977) (regulation banning lawyeradvertisement of prices for routine legal servic-es as misleading unconstitutional).

11. See Posadas De Puerto Rico Associates v.Tourism Co. of Puerto Rico, 478 U.S. 328, 106S.CL 2968, 92 LEd.2d 266 (1986) (statute ban-ning advertising of casino gambling directed toPuerto Rico residents to prevent bad effects onmorals of residents constitutional); Ohralik v.Ohio State Bar Ass'n, 436 U.S. 447, 98 S.Ct. 1912,56 LEd.2d 444 (1978) (regulation banning in-person solicitation of accident victims for legalbusiness because victims may be coerced intohiring lawyer constitutional); Young v. Ameri-can Mini Theatres, Inc,. 427 US. 50, 96 S.Ct.2440, 49 LEd.2d 310 (1976) (regulation settingdifferent zoning regulations for pornographictheatres or bookstores to prevent neighborhooddeterioration and crime increases constitution-al). The Court has also declared many regula-tions to be unconstitutional that fall into thiscategory. See Shapero v. Kentucky Bar Ass'n,486 US. 466. 108 S.CtL 1916, 100 LEd.2d 475(1988) (regulation banning solicitation for legalbusiness mailed on a personalized or targetedbasis to prevent potential clients from feelingundue duress to hire the attorney unconstiutional); Bolger, er aL v. Youngs Drug ProductCorp., 463 US. 60. 103 S.Ct. 2875, 77 LEd-2d469 (1983) (statute banning unsolicited mailingPadvertising contraceptives to aid parental au-thority over teaching their children about birthcontrol unconstitutional); Central Hudson (statute preventing promotional advertisement byelectric utility to conserve energy unconsututional); Bares v. State Bar of Ariz., 433 U.S. 350.97 S.Ct. 2691, 53 LEd.2d 810 (1977) (regulatiolbanning advertisement of prices for routine 1cgal services because of concern that legal PI

470

DISCOVERY NETWORK, ICite as 946 Fid

,,use it is false or misleading. Therefore,pantiffs' speech receives lesser first

amendment protection only if Cincinnati'sraon for regulating it falls into the sec-ond group of cases. -We can best demon-state what sort of rationale for regulationi included in the second group by listing afew examples.

In each case where the Court upheld aregulation on commercial speech that at-tempted to burden that speech because ofperceived adverse effects on the communi-ty, those effects flowed naturally from per-sonal actions fostered by the commercialcontent of the speech itself. In Young v.4merican Mini Theatres, Inc., 427 U.S.

50. 96 S.CL 2440, 49 L.Ed.2d 310 (1976),Detroit passed a zoning ordinance requir-ing sexual entertainment establishments tobe at least 1000 feet apart from one anoth-er. The city believed that permitting suchestablishments to be closer would fostercrime, prostitution, and neighborhood de-cay. However, the adverse effects of in-creased crime, prostitution, and neighbor-hood decay would allegedly occur becauseof the sort of person attracted to the loca-tion of these businesses. Also, in Posadasde Puerto Rico Associates v. Tourism Co.of Puerto Rico, 478 U.S. 328, 106 S.CL268, 92 LEd.2d 266 (1986), the Common-wealth banned advertising of casino gain-bng that was directed at or detectable byPuerto Rican citizens. The reason givenIs that fostering gambling among PuertoRicans would disrupt moral and culturalpatterns, increase crime and prostitution,ad foster organized crime and corruption.These problems, however, would all arisebecuse Puerto Ricans would be more like-17 to frequent casinos and gamble if theywere exposed to casino advertising. Inech ease, the adverse effect would occuru a direct result of persons acting upon'he commercial content (availability of sex-Ual entertainment, availability of casinor.'nbling) of the speech regulated.

141 These observations destroy Cincin-"ll's argument in favor of its ordinance.

eionalism will decline unconstitutional); Lin-"k Associates Inc. v. Township of Willing-

4319U7 S 85, 97 S.Ct. 1614, 52 LEd.2d 155

lkefS i uthon banning placement of "forsigns in the front lawns of houses in order

NC. v. CITY OF CINCINNATI 471464 (6th Cir. 1991)

The defense of that ordinance rests solelyon the low value allegedly accorded to com-mercial speech in general. However, weobserve that the Court actually accords ahigh value to commercial speech except inthe two specific circumstances outlinedabove. Neither of them are present here.Cincinnati is not regulating the content ofplaintiffs' publications. Neither is Cincin-nati attempting to alleviate a harm causedby the content of the publications. Cincin-nati is attempting to place a burden on aparticular type of speech because of harmscaused by the manner of delivering thatspeech. "We review with special care reg-ulations that entirely suppress commercialspeech in order to pursue a non-speechrelated policy." Central Hudson, 447 U.S.at 566 n. 9, 100 S.Ct. at 2351 n. 9. Cincin-nati's non-speech related policy does notsurvive that special review.

If commercial speech has a high value inthe Fox calculus absent the two specificcircumstances, then Cincinnati's ordinancecannot be a "reasonable fit." Plaintiffswill bear a very heavy burden by beingcompletely deprived of access to the citystreets. Discovery currently distributes33% of its magazines through newsracksbanned by the ordinance; Harmon, 15%.The benefit gained by the city, on the otherhand, is miniscule. Plaintiffs own only 62of the between 1,500 and 2,000 newsrackscurrently on city streets. As commercialspeech has public and private benefitsapart from the burdens directly placed onDiscovery Network and Harmon, the bur-den placed on it by Cincinnati's ordinancecannot be justified by the paltry gains insafety and beauty achieved by the ordi-nance. While Cincinnati argues that this isthe best option open to it in light of theprotection afforded to newsracks dispens-ing traditional newspapers, "the FirstAmendment does not permit a ban on cer-tain speech merely because it is more effi-cient" than other alternatives. Shapero,486 U.S. at 473, 108 S.Ct. at 1921.

to prevent the town from losing its integratedracial status unconstitutional); Virginia Citizens(statute banning price advertising by pharma-cists because of concern that pharmacists' pro.fessionalism would decline unconstitutional).

946 FEDERAL REPORTER, 2d SERIES

In contrast to Cincinnati's fears, it hasmany options open to it to control the per-ceived ill effects of newsracks apart frombanning those dispensing commercialspeech. To the extent that the use ofchains to fasten the newsracks is unsafe, aregulation requiring that all newsracks bebolted to the sidewalk would solve theproblem. To the extent that aesthetics area concern, a regulation establishing colorand design limitations upon all newsrackswould fit the bill. In fact, counsel forCincinnati admitted at oral argument thatit is currently working on an ordinance ofthis sort with representatives of traditionalnewspapers. To the extent that the num-ber of newsracks is disturbing, the city canestablish a maximum number of newsrackspermitted on city sidewalks, and distributethem either through first-come, first-servepermit rationing or by selling permits tothe highest bidder. We are confident thatmany more options exist for the city, solong as they do not treat newsracks differ-ently according to the content of the publi-cations inside.

III

15] We also write briefly to explain whyCincinnati's ordinance does not pass consti-tutional muster on other grounds. The or-dinance treats newsracks differently on thebasis of the commercial content of the pub-lications distributed. Cincinnati's ordi-nance, therefore, cannot qualify as a consti-tutional time, place, and manner restriction

12. Nor does Cincinnati's ordinance qualify ascontent-neutral under the "secondary effects"doctrine promulgated by the Court in PlaytimeThuetrar. There, the city enacted a zoning ordi-nance keeping sexual entertainment movie the-aters 1,000 feet apart from a residential zone.church, or park, and one mile from any school.The Court in Playtime Theatre stated that theordinance was content-neutral, and thereforereviewable under the time, place, and mannerregulation standard, because the primary con-cern of the city in enacting the ordinance was tocontrol the secondary effects caused by the the-aters. Playtime Theare 475 U.S. at 48, 106S.Ct. at 929. While Cincinnati is attempting tocontrol effects on the city's landscape and fix-tures, these effects are neither secondary norcaused by the speech being regulated. In Play-time Theatres, the effects-increased crime anddecreased neighborhood quality, among oth-

because it is not content-neutral. See Heffron v. International Societyfor KrishnaConsciousness, 452 U.S. 640, 101 S.Ct.2559, 69 L.Ed.2d 298 (1981); Rzadkoollow-ski v. Village of Lake Orion, 845 F.2d 653(6th Cir.1988); Wheeler v. Commissionerof Highways, Commonwealth of Ken-tucky, 822 F.2d 586, 590 (6th Cir.1987)("the Billboard Act and regulations applyevenhandedly to commercial and non-com-mercial speech; they discriminate againstno view or subject matter"). A content-neutral speech regulation is one 'justifiedwithout reference to the content of theregulated speech," City of Renton v. Play-time Theatres, Inc., 475 U.S. 41, 48, 106S.CL 925, 929, 89 L.Ed.2d 29 (1986). Cin-cinnati's argument on appeal, in contrast,relies on the lesser protection allegedly ac.corded to commercial speech."

(6] Cincinnati could argue that its ordi-nance is content-neutral because it was not"adopted . .. because of disagreement withthe message [the regulated speech] con-veys." Ward v. Rock Against Racism,491 U.S. 781, 791, 109 S.Ct. 2746, 2754, 105L.Ed.2d 661 (1989). Cincinnati could arguethat its enforcement of the ordinance isdirected solely at the aesthetic and safetyproblems caused by newsracks, and there-fore is not a content-based decision. How-ever, we cannot accept that argument fortwo reasons. First, Cincinnati's position isbased on the argument that it can treatnewsracks distributing commercial speechdifferently than those distributing commen-tary on public affairs. Given the wide

ers-were secondary to the primary effect of thetheaters; the dissemination of sexually explicitentertainment. Here, the very existence of different types of newsracks causes aesthetic prob'lems for the city. Additionally, in Playtime 1TeaTer, the effects were caused by the nature ofthe speech disseminated in the theaters. Here.the effects newsracks may have on the citiaesthetic and safety interests are the same forall newsracks, whether the publications insideare commercial or non-commercial speech.

Had Cincinnati produced evidence that thetypes of newsracks distributing commerciaspeech caused effects distinct from newsracksdistributing newspapers, such as the clogging ddowntown streets caused by auto buffs crowding around to obtain the latest issue Of Au"'World. the ordinance may have been constitutional. under the secondary effects doctrineThis, however, is not the case.

472

WORLDSOURCE COIL COATING, INC. v. McGRAW CONST. CO. 473Che as 946 F.2d 473 (6th Cir. 1991)

range of options open to the city to controlue perceived ill effects of newsracks with-

out completely banning those distributingcomrnercial speech, we find it hard to be-Beve that the city does not in fact favor thedistribution of newspapers such as the Cin-inati Post and the Cincinnati Enquirer

on its street corners over that of HomeMagazine. The failure of the city to eveninclude representatives of plaintiffs-andother publishers of commercial publica-dons-in its ongoing discussions withnewspaper representatives regardingsesthetic and safety regulations governingnewsrack appearance and fastening pro-vides further proof of an unadmitted biasagainst commercial speech.'3 Second, Cin-cinnati's hypothetical argument only ad-dresses the enforcement of the ordinance.The ordinance itself was on the books longbefore this problem supposedly arose.There is no argument advanced that theordinance's ban on distribution of commer-cial handbills, by any method, not merelyby newsracks, was not directed againstcommercial speech based on its content. 4

(7] Nor can the ordinance pass musteras a valid content-based restriction. "Con-tent based restrictions 'will be upheld onlyif narrowly drawn to accomplish a compel-ling governmental interest'" Barnes v.Clen Theatre, Inc., - U.S. , 111 S.CL456, 2474, 115 LEd.2d 504 (White, J., dis-Wting) (quoting Sable Communications

e. Cal, Inc. v. Federal CommunicationsComm'n, 492 U.S. 115, 126, 109 S.Ct. 2829,236, 106 LEd.2d 93 (1989)). This stan-dard has been interpreted to require a

tL The Architects testimony is illuminating onthiS point.

0' Does the City have means to deal with theProliferation of non commercial publishers*ho are seeking City permits?L The City is attempting to work coopera-tely with the non commercial publishers toplace the devices in an orderly manner and insome cases to agree to certain standard de-I-!es. particularly in the center business dis-

0: Can't those very same regulations be ap.91aed to commercial publishers?A They could if commercial publications

ere considered legal.

Cincinnati's ordinance would not pass mus.even if it met the requirement that it be

government to choose the least restrictivemeans to further the governmental inter-est. Sable Communications, 492 U.S. at126, 109 S.Ct. at 2829. The ordinance isclearly not the least restrictive means, as itplaces a substantially greater burden oncommercial speech than is necessary to al-leviate the city's aesthetic and safety con-cerns.

IVFor the foregoing reasons, the judgment

of the district court is AFFIRMED.

WORLDSOURCE COIL COATING, INC.;General Electric Capital Corporation,

Plaintiffs-Appellees,

Hancock County, Commonwealthof Kentucky, Intervening

Plaintiff-Appellee,V.

McGRAW CONSTRUCTION COMPANY,INC., Defendant-Appellant.

No. 91-5250.

United States Court of Appeals,Sixth Circuit.

Argued July 15, 1991.Decided Oct 16, 1991.

Developer and financer of developmentsued general contractor in state court for

content-neutral. The second part of the time,place, and manner standard is that the regula-tion be "'narrowly tailored to serve a significantgovernmental interest.'" Rock Against Racism,491 US. at 796 109 S.CZ. at 27 (quoting Clark v.Community for Creative Non-Violence, 468 U.S.288. 293, 104 S.CL 3065, 3068, 82 LEd.2d 221(1984)). The ordinance is not narrowly tailoredbecause there are many options available to thecity that would address its aesthetic, safety, andproliferation concerns without placing the sig-nificant burden on commercial speech that theordinance does. See supra, at p. 471. None ofthese options would be less effective in promot-ing the asserted interests than is the completeban on distribution of commercial handbills.See Rock Against Racism, 491 U.S. at 799-800,109 S.CL at 2757-59.

914 FEDERAL REPORTER, 2d SERIES

shire Hathaway may be more apparentthan real. Given the difference in the for-mulas at issue, the First Circuit's applica-tion of the "equally plausible and perhapsmore intuitive," see 874 F.2d at 56, inter-pretation of the PBGC is not necessarily atodds with the conclusion we reach. Unde-niably, the Berkshire Hathaway court be-lieved that the PBGC position was entitledto deference. See 874 F.2d at 55. How-ever, the court's decision ultimately restedupon its conclusion that the PBGC's posi-tion comported with the statutory languageat issue in the case before it. See id.("Perhaps most importantly, PBGC's in-terpretation is consistent with the statutorylanguage, and Congress expressly delegat-ed substantial regulatory authority toPBGC relating to withdrawal liability.")(emphasis added). Accordingly, our conclu-sion will not be shaken by the fact that theFirst Circuit, in another context, deferredto a PBGC notice of interpretation to whichwe, in a different context, choose not todefer.12 And, of course, our detailed treat-ment of Berkshire Hathaway should notdetract attention from the fact that theEighth Circuit interpreted the direct alloca-tion method in the same manner in whichwe interpret the modified presumptivemethod, albeit without the PBGC opinionbefore it. See Ben Hur (decided prior tothe PBGC's shift in positions).

VFor the foregoing reasons, the judg-

ments of the district court areAFFIRMED IN PART, REVERSED IN

PART, AND REMANDED.13

12. Our comments here should not be construedas an endorsement of the ultimate conclusionreached in Berkshire Hathaway. Nor, of course,do we mean to imply that the Berkshire Hatha-way court definitely would endorse the resultwe reach here. Because neither issue ispresented, our comments as to each are merelydicta, relevant here only insofar as they addressthe apparent tension between the two opinions.

13. Almont and Stevedores, who won below butnow have lost on appeal, have appealed thedistrict court's refusal to award them attorney's

NATIONAL ORGANIZATION FORWOMEN; 51st State National Orga.nization for Women; Maryland Nation.al Organization for Women; PlannedParenthood of Metropolitan Washing.ton, DC, Inc.; Commonwealth Women'sClinic; Nova Women's Medical CenterPrince William Women's Clinic; Gyne.care Associates; Metro Medical Center,Inc., d/b/a Annandale Women's CenterVirginia National Organization forWomen; Alexandria Women's HealthClinic, Plaintiffs-Appellees,

and

National Abortion Federation; CapitolWomen's Center, Inc.; Hillcrest Wom-en's Surgi--Center; Metropolitan Fami-ly Planning Institute, Plaintiffs,

V.

OPERATION RESCUE; Randall Terry;Patrick Mahoney; Clifford Gannett;Michael McMonagle; Michael Bray;Jayne Bray, Defendants-Appellants,

and

Project Rescue; the D.C. Project;Veterans Campaign for Life,

Defendants (Two Cases).

NATIONAL ORGANIZATION FORWOMEN; 51st State National Orga-nization for Women; Maryland Nation-al Organization for Women; PlannedParenthood of Metropolitan Washing-ton, DC, Inc.; Commonwealth Women'sClinic; Capitol Women's Center, Inc.;Nova Women's Medical Center; Prince

fees. Given the nature of the controversy be-fore us. we affirm that refusal.

Because the district court made no findingson the matter, we leave for the district court Onremand the issue of whether the GAI Fund andthe Escrow Fund, even assuming, as herein indi-cated, that vesting is not computed on the basisof a single prior year, are "employers.

Also, the district court will have to makefindings in both cases as to the amount of with-drawal liability owed.

582

583NOW v. OPERATION RESCUECItes9t4 F.2d 582 (4th Cir. 1990)

William Women's Clinic; Gynecare As-sociates; Metro Medical Center, Inc.,

d/b/a Annandale Women's Center,Hillcrest Women's Surgi-Center; Met-ropolitan Family Planning Institute;Virginia National Organization forWomen; Alexandria Women's HealthClinic, Plaintiffs-Appellants,

and

National Abortion Federation, Plaintiff,

V.

OPERATION RESCUE; Randall Terry;Patrick Mahoney; Clifford Gannett;

Michael McMonagle; Michael Bray;Jayne Bray, Defendants-Appellees,

and

Project Rescue; the D.C. Project;Veterans Campaign for Life,

Defendants.

Nos. 90-2606, 90-2607 and 90-2651.

United States Court of Appeals,Fourth Circuit.

Argued July 18, 1990.

Decided Sept. 19, 1990.

Abortion clinics and abortion rights or-

pnizations applied for permanent injunc-in to enjoin pro-life organization and itsmembers from trespassing on, impeding, orobstructing ingress to or egress from facili-tis providing abortion services and relatedounseling. The United States District

Court for the Eastern District of Virginia,Thomas Selby Ellis, III, J., 726 FSupp.1483, granted permanent injunctive relief,and both sides appealed. The Court ofAppeals held that (1) women qualified aspotected class under civil rights conspir-ay statute; (2) injunction prohibiting pro-Ife organization and its members fromrespassing on, blockading, impeding, orObstructing access to or egress from medi-tal clinics at which abortions were per-formed, was not abuse of discretion; but0) injunction could not be broadened inscope, in order to prohibit any intimidation,

harassment, or disturbance of clinics' pa-tients or potential patients.

Affirmed.

1. Conspiracy <=7.5Women qualified as protected class un-

der civil rights conspiracy statute. 42 U.S.C.A. § 1985(3).

2. Federal Courts <e=814 -

Court of Appeals reviews entry, scope,and duration of injunction under abuse ofdiscretion standard.

3. Injunction <-46Injunction prohibiting pro-life orga-

nization and its members from trespassingon, blockading, impeding or obstructing ac-cess to or egress from medical clinics in

northern Virginia at which abortions were

performed was not abuse of discretion.

4. Civil Rights < 262 *Constitutional Law <:90.1(1)

Injunction prohibiting pro-life orga-nization and its members from blocking or

obstructing clients' entrance into clinicswhere abortions were performed could notbe broadened iti scope, to prohibit any in-

timidation, harassment or disturbance ofclients or potential clients, as this wouldinfringe upon activities clearly protected byFirst Amendment. U.S.C.A. Const.Amend.1.

Jay Alan Sekulow, Christian AdvocatesServing Evangelism, Washington, D.C., ar-gued (Douglas W. Davis, James M.Henderson, Sr., Christian Advocates Serv-ing Evangelism, Washington, D.C.; Thom-as Patrick Monaghan, C. Peter Thomas S.Cornell, and Walter M. Weber, Free SpeechAdvocates, New Hope, Ky., on brief), fordefendants-appellants.

John H. Schafer, Covington & Burling,Washington, D.C., argued (Laurence J. Ei-senstein, Richard H. Seamon, Pamela S.Passman, Covington & Burling; and SarahE. Burns, and Alison Wetherfield, Now Le-gal Defense and Educ. Fund, Washington,D.C., on brief), for plaintiffs-appellees.

Before CHAPMAN and WILKINSON,Circuit Judges, and ANDERSON, UnitedStates District Judge for the District ofSouth Carolina, sitting by designation.

PER CURIAM:This is an appeal of a permanent injunc-

tion entered against six individuals and Op-eration Rescue, an unincorporated associa-tion whose members oppose abortion andits legalization. The district court enjoinedthem, inter alia, from "trespassing on,blockading, impeding or obstructing accessto or egress from" the premises of plain-tiffs, facilities that provide abortions orabortion counseling. The court held thatdefendants' blockading of abortion facili-ties infringed the right to travel of womenseeking to obtain abortions at clinics in theWashington metropolitan area, in violationof 42 U.S.C. § 1985(3), and certain of theirrights under state law. Nat'1 Org. ForWomen (NO9 v. Operation Rescue, 726F.Supp. 1483 (E.D.Va.1989). OperationRescue and the six individual defendantsappeal. NOW cross-appeals, along withnine abortion facilities and four other orga-nizational plaintiffs. We reject both ap-peals and affirm the judgment of the dis-trict court.

I.

Plaintiffs are nine clinics in the Washing-ton metropolitan area and Northern Virgi-nia that provide various abortion-relatedservices, and five organizations that seekto preserve a woman's right to obtain anabortion. Defendant Operation Rescue isan organization whose purpose is to pre-vent abortions and to oppose their legaliza-tion. One of the ways Operation Rescueseeks to effectuate these goals is to stage"rescue" demonstrations at abortion facili-ties. At these demonstrations, the partici-pants "intentionally trespass on the clinic'spremises for the purpose of blockading theclinic's entrances and exits, thereby effec-tively closing the clinic" and "'resculing]'... fetuses scheduled for abortion." 726F.Supp. at 1487. The individual defendantsare persons who oppose abortion and itslegalization, and who seek to advance their

views in part by "planning, organizing andparticipating in 'rescue' demonstrations un-der the banner and auspices of OperationRescue." Id. at 1488.

On November 8, 1989, plaintiffs filed amotion for a temporary restraining order inUnited States District Court for the East-ern District of Virginia, seeking to enjoindefendants from, among other things,physically impeding access to certain facili-ties that offer abortion and related servic-es. The impetus for this action was defen-dants' alleged plans for meetings, rallies,and "rescue" demonstrations on November10-12 and 18-20, 1989 in the Washingtonmetropolitan area. No rescue activitiestook place in Northern Virginia during thatperiod. However, clinics in Maryland andthe District of Columbia were closed due todemonstrations on those dates.

The district court granted plaintiffs' mo-tion for a temporary restraining order afteran expedited hearing on November 8-9,1989. The trial of the action on the meritsand the hearing on the application for apreliminary injunction were consolidatedand scheduled to be heard on November 16,1989. After a two day trial in which plain-tiffs presented testimony from nine wit-nesses and defendants elected to presentno evidence, the district court granted therequest for a permanent injunction. Thecourt enjoined defendants from "trespass-ing on, blockading, impeding or obstructingaccess to or egress from the [isted] prem-ises." Id. at 1497. The court refused onFirst Amendment grounds to extend the-injunction to enjoin rescue activities thattend to "intimidate, harass or disturb pa-tients or potential patients." Id.

The district court concluded that defen-dants' activities operated to deny to womenseeking abortions and abortion-related ser-vices the right to travel interstate in searchof medical services in violation of 42 US.C.§ 1985(3). The court noted that the ele-ments of a cause of action under § 1985(3)are:

"(i) conspiracy; (ii) for the purpose ofdepriving, either directly or indirectlY'any person or class of persons of the'equal protection-of the laws, or of equAl

NOW v. OPERATION RESCUECite as V14 F.2d 582 (4th Cir. 1990)

privileges and immunities under the

laws; (iii) an act in furtherance of the

conspiracy; (iv) whereby a person is ei-

ther injured in his person or property or

deprived of any right or privilege of a

citizen of the United States."

Id. at 1492 (quoting Griffin v. Brecken-

ridge, 403 U.S. 88, 102-03, 91 S.CL 1790,

1798-99, 29 L.Ed.2d 338 (1971)). The court

held that defendants had violated § 1985(3)

by entering into a conspiracy to deprivewomen, whom it found to be a protected

class within the meaning of § 1985(3), of

their constitutional right to travel. It rea-

soned, citing Doe v. Bolton, 410 U.S. 179,93 S.Ct. 739, 35 L.Ed.2d 201 (1973), that the

rescue demonstrations interfere with the

right to travel because substantial numbersof women seeking the services of clinics in

the Washington metropolitan area travelinterstate to obtain these services.

The court further found that permanentinjunctive relief was appropriate because:(i) there was no adequate remedy at law;(ii) the balance of equities favored plain-tiffs; and (iii) the public interest wasserved by granting the injunction. Thecourt found that women seeking abortionsand counseling were likely to suffer irrepa-rable physical and emotional harm as aresult of defendants' blockading of abor-tion facilities. The court noted, for exam-ple, that some women require insertion of apre-abortion laminaria to achieve cervicaldilation. Women prevented from enteringthe clinics for timely removal of this devicemay risk bleeding, infection, or other possi-ble serious complications, or may be forcedto seek services elsewhere. Similarly, thecourt referenced testimony to the effectthat preventing access to abortion clinicscould cause clients to experience stress,anxiety, and mental harm. 726 F.Supp. at1489. The court concluded that since plain-tiffs' actions were lawful, although morallyobjectionable to defendants, the balance ofequities weighed in favor of guaranteeingthe public protection of the constitutionalright to travel.

Operation Rescue now appeals, and theNational Organization for Women cross-ap-peals the district court's refusal to extendthe scope of the injunction.

585II.

11] We have reviewed the record andthe reasoning of the district court in grant-ing the injunction. We affirm the judg-ment because the district court found thatthe activities of appellants in furtheranceof their beliefs had crossed the line frompersuasion into coercion and operated todeny the exercise of rights protected bylaw. See 726 F.Supp. at 1489, 1492-93.The legal premises under which the districtcourt operated are also consistent with thelaw of the circuits. The court's holdingthat gender-based animus satisfies the"purpose" element of § 1985(3) has beenforecast by this circuit in Buschi v. Kirven,775 F.2d 1240, 1257 (4th Cir.198 5) (animusagainst classes defined by "race, nationalorigin and sex" meet requirement of class-based animus within meaning of 1985(3)).At least six circuits have so held. See NewYork Nat'l Org. for Women (NOW) v.Terry, 886 F.2d 1339, 1359 (2d Cir.1989),cert denied, - U.S. - , 110 S.Ct. 2206,109 L.Ed.2d 532 (1990); Volk v. Coler, 845F.2d 1422, 1434 (7th Cir.1988); Stathos v.Bowden, 728 F.2d 15, 20 (1st Cir.1984);Novotny v. Great Am. Fed. Savings &Loan Ass'n, 584 F.2d 1235, 1244 (3d Cir.1978), vacated on other grounds, 442 U.S.366, 99 S.CL 2345, 60 LEd.2d 957 (1919);Life Ins. Co. of N. Am. v. Reichardt, 591F.2d 499, 505 (9th Cir.1979); Conroy v.Conroy, 575 F.2d 175, 177 (8th Cir.1978).But cf Mississippi Women's MedicalClinic v. McMillan, 866 F.2d 788, 794 (5thCir.1989). The Second Circuit has held un-der similar facts that blocking access tomedical services provided by abortion facili-ties which serve an interstate clientele vio-lates the constitutional right to travel. SeeNew York NOW, 886 F.2d at 1360-61.

(2-4] Moreover, we review the entry,scope, and duration of an injunction underan abuse of discretion standard. See Pren-dergast v. New York TeL Co., 262 U.S. 43,50-51, 43 S.Ct. 466, 469, 67 L.Ed. 853(1923). We find that the district court op-erated in conformity with other circuits onthe relevant questions of law, and we are

914 FEDERAL REPORTER, 2d SERIES

unable to conclude that the court abused itsdiscretion in entering an injunction of thisscope and duration against the respectiveparties. Specifically, we reject the argu-ment of Operation Rescue that there wasinsufficient evidence to grant relief againstdefendants Bray, McMonagle and Gannett.We also reject NOW's contention that thedistrict court abused its discretion in limit-ing the injunction to Northern Virginia andin declining to extend the injunction indefi-nitely. In addition, we affirm the districtcourt's refusal to broaden the scope of theinjunction to include activities that tend to"intimidate, harass or disturb patients orpotential patients" because to do so wouldrisk enjoining activities clearly protected bythe First Amendment. In addition to theactions enjoined by the district court, themembers of Operation Rescue also sought,through verbal means, to persuade womennot to seek the services of abortion clinicsand to "impress upon members of society"the moral rightness and intensity of theiropposition to abortion. 726 F.Supp. at1488. The district court was within itsdiscretion in declining to extend the injunc-tion in a manner that would interfere withsuch expressive activity. In view of ourdisposition of the federal question raisedby appellants we also decline to disturb thedistrict court's refusal to dismiss the statelaw claims, and we uphold as well its awardof costs and attorneys fees. The districtcourt did not, and we do not, reach thequestion of whether § 1985(3) can encom-pass violations of a right to privacy.

Accordingly, the judgment of the districtcourt is affirmed in all respects for thereasons stated in its opinion.

AFFIRMED.

(OIy MwuRtSSI1

COMMISSIONER OF INTERNALREVENUE, Plaintiff-Appellant,

V.Bonnie A. MILLER,Defendant-Appellee.

No. 89-1851.

United States Court of Appeals,Fourth Circuit.

Argued June 8, 1990.Decided Sept. 21, 1990.

Commissioner of Internal Revenue ap-pealed from judgment of the United StatesTax Court, Wells, J., that settlement pro-ceeds of Maryland lawsuits for defamationand intentional infliction of emotional dis-tress were not subject to federal incometax. The Court of Appeals, Murnaghan,Circuit Judge, held that (1) Internal Reve-nue Code provision excluding from grossincome settlement proceeds received "onaccount of" personal injuries or sicknesswas ambiguous as to whether it suggestedbut-for or sufficient causation; punitivedamages in Maryland defamation action didnot fall within that exclusion and were thusincludable in taxpayers gross income; and(3) remand to tax court was warranted todetermination of what portion of grossamount of settlement was properly alloca-ble to punitive damages.

Reversed and remanded.

1. Internal Revenue 4-3124Internal Revenue Code provision ex-

cluding from income damages received "onaccount of" personal injuries or sicknesswas ambiguous as to whether it suggestedbut-for or sufficient causation. 26 U.S.C.A. § 104(aX2).

2. Internal Revenue <s3124

Portion of settlement in Maryland def-amation action that was properly attributa-ble to punitive damages was not excludabkfrom gross income as damages received oraccount of personal injturies; punitive dam-ages were . windfall and did not serve tc

586

McKINNEY,Cite as 959 F.2d

William McKINNEY, Plaintiff-Appellant,

V.

Pat ANDERSON, Carol Ployer, H.LWhitley, George W. Sumner, John

Nye, Defendants-Appellees.

No. 89-16589.

United States Court of Appeals,Ninth Circuit.

March 27, 1992.

Inmate brought civil rights actionagainst prison officials alleging violation ofEighth Amendment due to his exposure toenvironmental tobacco smoke. The UnitedStates District Court for the District ofNevada, Edward C. Reed, Jr., Chief Judge,directed verdict for prison officials, andinmate appealed. The Court of Appeals,924 F.2d 1500, affirmed in part, reversed inpart, and remanded, and certiorari wasgranted. The Supreme Court. 112 S.Ct.291, vacated and remanded. Thereafter,the Court of Appeals held that inmate sat-kihed objective component of EighthAmendment claim, but would have to es-tblish subjective component on remand.

Reinstated and remanded.

Cr1inal Law 41213.10(3)Housing prisoner in environment that

eposed him to levels of environmental to-bseco smoke that posed unreasonable riskf harming his health satisfied objectivecmponent of Eighth Amendment claim ofruel and unusual punishment; however,

h5£te would have to establish subjectiveomponent of claim on remand by showing

t4 Prison officials showed deliberate in-' aerece to inmate's long-term exposureb environmental tobacco smoke. U.S.C.A.CtAmend. 8.

On Remand from the United States Su-Pfte Court

. ANDERSON 853853 (9th CIr. 1992)

Before BROWNING, PREGERSON andTROTT, Circuit Judges.

William McKinney, a Nevada state pris-oner, filed a pro se civil rights complaintunder 42 U.S.C. § 1983. This court af-firmed in part, reversed in part, and re-manded. McKinney v. Anderson, 924 F.2d1500 (9th Cir.), vacated and remanded subnom., Helling v. McKinney, - U.S. -,112 S.Ct. 291, 116 L.Ed.2d 236 (1991).Anderson appealed our decision. The Su-preme Court granted certiorari, vacated thejudgment, and remanded the case for fur-ther consideration in light of its decision inWilson v. Seiter, - U.S. -, 111 S.CL2321, 115 LEd.2d 271 (1991). Helling v.McKinney, - U.S. -, 112 S.Ct. 291,116 LEd.2d 236 (1991). We reinstate ourdecision and remand for further proceed-ings consistent with it and with Seiter.

In McKinney we held that it is cruel andunusual punishment to house a prisoner inan environment that exposes him to envi-ronmental tobacco smoke ("ETS") at suchlevels and under such circumstances that itposes an unreasonable risk of harm to hishealth. McKinney, 924 F.2d at 1503-1504.We reversed and remanded for further pro-ceedings on McKinney's Eighth Amend-ment claim to allow him an opportunity topresent evidence on the level and degree ofhis exposure to ETS and on whether thatdegree of exposure is sufficient to createan unreasonable risk of harm to his health.Id. at 1509. Although we held that McKin-ney had stated a cause of action for injunc-tive relief, we found that he was not enti-tied to damages on that cause of actionbecause the defendants were entitled toqualified immunity as a matter of law. Id.We also held that Nevada's anti-smokinglaw applies to prison libraries and remand-ed for further equitable proceedings. Idat 1510.

We affirmed the directed verdict for thedefendants' on the issue of their allegeddeliberate indifference to McKinney's seri-ous existing medical needs. Id. at 1511.We also affirmed the denial of McKinney'smotion for a trial transcript to be producedat the Government's expense. Id. at 1512.

959 FEDERAL REPORTER, 2d SERIES

On remand from the Supreme Court weare asked to consider the effect of Seiteron McKinney. The issue in Seiter was"whether a prisoner claiming that condi-tions of confinement constitute cruel andunusual punishment must show a culpablestate of mind on the part of prison officialsand, if so, what state of mind is required."Seiter 111 S.Ct. at 2322. The Court heldthat "[ilf the pain inflicted is not formallymeted out as punishment by the statute orthe sentencing judge, some mental elementmust be attributed to the inflicting officerbefore it can qualify" as a violation of theEighth Amendment. Id. at 2325. TheCourt held that the appropriate standard is"deliberate indifference." Id at 2327. Inreaching its decision, the Court discussedits previous decision in Rhodes v. Chap-man, 452 U.S. 337, 101 S.Ct. 2392, 69LEd.2d 59 (1981). The Court noted that itsdecision in Rhodes "turned on the objectivecomponent of an Eighth Amendment prisonclaim (was the deprivation sufficiently seri-ous?), and ... did not consider the subjec-tive component (did the officials act with asufficiently culpable state of mind?)."Seiter, 111 S.Ct. at 2324. Thus, in Seiterthe Court expands the requirements for anEighth Amendment claim by adding a sub-jective component.

The Court's establishment in Seiter of asubjective component for an EighthAmendment claim does not vitiate our de-termination of what satisfies the objectivecomponent. Our holding that it is crueland unusual punishment to house a prison-er in an environment that exposes him tolevels of ETS that pose an unreasonablerisk of harming his health constitutes theobjective component of McKinney's EighthAmendment claim. Seiter simply adds an-other element to an Eighth Amendmentclaim that McKinney must prove.

In our opinion we agreed with the magis-trate's ruling that directed a verdict on theissue of defendants' deliberate indifferenceto McKinney's serious existing medicalsymptoms. As McKinney points out, indif-ference to current medical problems is dis-tinct from indifference to the problem ofinvoluntary, long term exposure to unrea-sonable levels of ETS. Accordingly, we

remand for further proceedings to deter.mine whether the prison officials showeddeliberate indifference to McKinney's longterm exposure to ETS. We also repeat ourrecommendation that the district court ap-point an expert witness or witnesses.

We reinstate the judgment of. this courtand remand for further proceedings con.sistent with this court's previous opinionand with Seiter. We understand that alocal attorney in Reno, Nevada has agreedto represent McKinney in district court pro-ceedings. If this does not prove to be thecase we also repeat our recommendationthat the district court appoint an attorneyto represent McKinney.

REINSTATED AND REMANDED.

David L ADAMS, Petitioner-Appellant,V.

R.S. PETERSON, Superintendent ofO.S.C.I., Respondent-Appellee.

No. 87-4191.

United States Court of Appeals,Ninth Circuit.

March 27, 1992.

Before WALLACE, Chief Judge, TANG;PREGERSON, NORRIS, WIGGINS, :BRUNETTI, KOZINSKI, O'SCANNLAIN,TROTT, FERNANDEZ, and KLEINFELD,Circuit Judges.

ORDER

The opinion of the panel in Adams'Peterso, 939 F.2d 1369 (9th Cir.1991),withdrawn.

854

962 FEDERAL REPORTER. 2d SERIES

am convinced that a mistake has beenmade that cannot be cured by the merechange of nomenclature represented by themajority's amendments to the opinion. Toalleviate what the judge- and prosecutordeemed the victim-witness's distress at hav-ing to go through the ordeal of recountingher experience before the defendants fami-ly members, the judge expelled the familymembers from this portion of the proceed-ings. From some experience, I share thejudge's concern. But I know also that atrial judge has many means of controllingthe behavior of spectators short of banish-ment from the public courtroom.

The majority's amendments to the opin-ion in response to this concern are a nost-rum premised. on a faulty conclusion: "Theclosure order was narrowly tailored to pro-tect Bennally and elicit her information." Idisagree, and the summary application ofthis label ignores the principles which callfor a. forewarning by the trial judge-aneffort to maintain order through less dras-tic means than the expulsion of friends andfamily. . Attendees cannot be simplythrown out of the courtroom unless thejudge can make supportable findings thatorder can not be maintained through lessdrastic means. Waller. v. Georgia, 467US. 39, 48, 104 S.Ct. 2210, 2216, 81 L.Ed.2d31 (1984).

Charley's family members were given noadmonishment about maintaining the requi-site decorum,. no second chance. In fact,they were given no sign that the judge feltany need to demand order before expul-sion. There is no indication that decorumcould not have been maintained by someless drastic step and, contrary to.the major-ity's amendments, no indication that thejudge considered less drastic alternatives.There was not the slightest effort to con-fine sanctions or threats of sanctions to thespecific individuals who might be deemedthe responsible actors. An experiencedjudge should be expected to use all mea-sures necessary for order and decorum-and no more.

Finally, in its examination of the proce-dural propriety of the closure order themajority cites to Press Enterprise, Brook-

lier and Sacramento Bee, all of which;volve the exclusion of the press fromThe press brings to the absent public" itnarrative of the trial. The family &Qfriends of the defendant are .part ofvery public whose interest in presenceuprotected. Thus, the considerationswmust be serviced in admitting the prpublic and family are similar but not ide. s.cal, and stem from different sources. Ourcase law treatment of free press/fair trialin no way explains why unwarned family orfriends, spectators from the body publishould be ousted from an otherwise pubetrial.

Because the expulsion order in thisewas precipitous,. not supported by therecord, and shut off access where access isvital, not only to the miscellaneous defen-dant or spectator but to the institution, Irespectfully dissent from the majority'samended opinion.

GUAM SOCIETY OF OBSTETRICIANSAND GYNECOLOGISTS; Guam Nur-es Association; The Reverend MiltonCole, Jr.; Laurie Konwith; -Edmund -A.Griley, M.D.;. William S. Freeman,.D.; John Dunlop, MD.; on behalf of

themselves and all others similarlysidtuated, and all their women -patients,Plaintiffe-Appellees,

V.

Joseph F. ADA, Governor of Guam, inhis official capacity, Defendant-

Appellant

No. 90-16706.

United States Court of Appeals,Ninth Circuit

Argued and Submitted Nov. 4, 1991.Decided April 16, 1992.

As Amended June 8, 1992.

Society of Obstetricians and Gynecolo-gists and others sued Governor of Guam in

1366

GUAM SOC. OF OBSTETRICIANS & GYNECOLOGISTS v. ADA 1367Cite as 962 P.2d 1366 (9th Cir. 1992)

,i-dividual and official capacities alleg-that Guam's anti-abortion statute vio-

.id right to privacy under due processuse of Fourteenth Amendment, as de-

(4fd by United States Supreme Court RoeV ade decision. The United States Dis-

,fit Court for the District of Guam, Alexiloson, Chief. Judge, 776 F.Supp. 1422,

ently enjoined enforcement of stat-M. Governor appealed. The Court of Ap-

j, ., Canby, Circuit Judge, held that (1)cappealed from provisions of anti-abortionstatute declared unconstitutional under.rust Amendment were severable; (2) MinkAmendment expressly extended to Guam

protections of.due process clause of Four-enth Amendment upon which holding of

Bo v. Wade. was based; (3) Governor ofGuam was "person," within meaning of.j 1983, when sued in his official capacityfor prospective relief; and (4) anti-abortionstatute was unconstitutional under Roe v.Wade.* Affirmed.

. Statutes 464(6)- Provisions -of Guam's anti-abortion

statute which District Court held were inAilation of First Amendment were severa-Ile from other parts of statute so thatGuam's failure to appeal from such rulingdid not preclude appeal' from ruling thati1her provisions violated Fourteenth,Amendment,- absent evidence of contrarylegislative intent US.C.A Const.Amend

t Statutes 064(6)Provision of Guam's anti-abortion stat-

ate that, if majority. of voters voted torepeal statute; statute shall be repealed inis entirety, was insufficient to overcomepresumption of severability of provisions of-statute which district court had held:to bein violation of First Amendment U.S.C.A..!Cnst.Amend 1.

. Statutes 464(6)Mere suggestion that Guam legislators

wanted comprehensive anti-abortion statutewas not sufficient to overcome presump-tion of severability of provisions of statute

declared unconstitutional under FirstAmendment. U.S.C.A. Const.Amend. 1.

4. Territories -8Mink Amendment expressly extended

to Guam due process clause of FourteenthAmendment, upon which holding of UnitedStates Supreme Court Roe v. Wade deci-sion was founded, and thus, Roe v. Wadeapplied to Guam as it applied to states.Organic Act of Guam, § 5(u), as amended,

:48 U.S.C.A. § 1421b(u); U.S.C.A. Const.Amend. 14.

5. Civil Rights 4207(1)Governor of Guam was "person," with-

in meaning of § 1983, when sued in hisofficial capacity for prospective reliet 42U.S.C.A. § 1983.

See publication Words and Phrasesfor other judicial constructions anddefinitions.

6. Abortion and Birth Contr6l -130Guam's anti-abortion statute was un-

constitutional, where statute made no at-tempt to comply with United States Su-preme Court,. Roe v. Wade . decision.

-U.S.C.A. Const.Amends. 1, 14.. .-

7. Abortion and Birth Control *L30United States Supreme Court Roe v.

Wade decision continued to be. valid prece-dent so as to require Guam to comply withRoe v. Wade decision when enacting anti-abortion statute. US.C.A ConstAmend.14.

Paul B. Linton, Amdricans United forLife, Chicago, Ill., Arnold H. eiIitz,Cameron & Horabostel,. Washington, D.C.,for defendant-appellant.

Anita P. Arriola, Arriola, Cowan & Bordallo, Agana, Guam, Lynn 3. Paltrow, Si-mon Heller, American Civil Liberties UnionFoundation, New York City, for plaintiffs-appellees.

Appeal from the United States DistrictCourt for the District of Guam.

Before: CHOY, D.W. NELSON andCANBY, Circuit Judges. . -

962 FEDERAL REPORTER, 2d SERIES

CANBY, Circuit Judge:On March 19, 1990, the Territory of

Guam enacted a statute ("the Act") outlaw-ing almost all abortions.' The only excep-tions were abortions in cases of ectopicpregnancy, and abortions in cases wheretwo physicians practicing independentlyreaspnably determined that the pregnancywould endanger the life of the mother or"gravely impair" her health. All otherabortions were declared to be crimes, both

1. The final version of Guam Public Law 20-134states:

BE IT ENACTED BY THE PEOPLE OF THETERRITORY OF GUAM:, Section 1. Legislative findings. The Legisla-ture finds that for purposes of this Act life ofevery human being begins at conception, andthat unborn children have protectible interestsin life, health, and well-being. The purpose ofthis Act is to protect the unborn children ofGuam. As used in this declaration of findingsthe term 'unborn children" includes any and allunborn. offspring of human beings from themoment of conception until biith at every stageof biological- development.

Section 2. § 31.20 of Title 9, Guam CodeAnnotated, is repealed and reenacted to read-

§.31.20. Abortion: defined. "Abortion"means the purposeful termination of a humanpregnancy after implantation of a fertilizedovum by any person including the pregnant

--woman herself with an Intention other thanto produce a live birth or to remove a deadunborn fetus. "Abortion" does not mean themedical intervention in (I) an ectopic preg-nancy, or (ii) in a pregnancy at any time afterthe commencement of pregnancy if two (2)physicians. who practice independently ofeach other reasonably determine using allavailable means that there is a substantial riskthat continuance of the pregnancy would en-danger the life of the mother or would gravelyimpair the health of the mother, any suchtermination of pregnancy to be subsequentlyreviewed by a peer review committee desig-nated by the Guam Medical licensure Board.and in either case. such an operation is per-formed by a physician licensed to practicemedicine in Guam or by a physician practic.ing medicine in the employ of the governmentof the United States, in .an adequatelyequipped medical clinic or in a hospital ap-proved or operated by the government of theUnited States or of Guam.Section 3. § 31.21 of Title 9, Guam Code

Annotated, is repealed and reenacted to read.§ 31.21. Providing or administering drug

or employing means to cause an abortion.Every person who provides, supplies, or ad-ministers to any woman, or procures anywoman to take any medicine, drug, or sub-stance, or uses or employs any instrument or

on the part of the women submitting j7abortions and on the -part of theprocuring or causing them.

The validity of the Act was imm*challenged in this class action brouItgthe Guam Society of Obstetricianscologists and others against Joseph F.the Governor of Guam. The district oaccurately viewed the Act as a direct:lenge to the regime of Roe v. Wadk nU.S. 113, 93 S.Ct. 705, 35 LEd.

other means whatever, with intent thcause an abortion of such woman as din § 31.20 of this Title is guilty of a thidegree felony. In addition, if such person Islicensed physician, the Guam Medicalsure Board shall take appropriate disciplinaqaction.Section 4. § 31.22 of Title .9, Guam -

Annotated, is repealed and reenacted to§ 31.22. Soliciting and, taking drigs r

submitting to an attempt to cause an.abortionEvery woman who solicits of any person anymedicine, drug, or substance whatever andtakes the same, or who submits to any op.tion, or to the use of any means whateverwith intent thereby to cause an abortion asdefined in § 3120 of this Title is guilty of amisdemeanor.Section S. A new I31.23 is added to Titlek,

Guam Code Annotated, to read:§ 31.23. Soliciting to submit to operat,

etc., to cause an abortion. Every perso itlosolicits any woman to submit to any op"tion, or to the use of any means whatevet, tocause an abortion as defined in § 3120 ofthisTitle is guilty of a misdemeanor.Section 6. Subsection 14 of Section 3107,

Title 10, Guam Code Annotated. is repealed.Section-7. Abortion referendum. (a) Theire

shall be submitted at the island-wide generalelection to be held on November 6, 1990, thefollowing question for determination by thequalified voters of Guam, the question to appearon the ballot In English and Chamorro

"Shall that public law derived from Bill 848,Twentieth Guam Legislature (PL. 2041341),which outlawed abortion except in the casesof pregnancies threatening the life of themother be repealed?[]

In the event a majority of those voting vote"Yes," such public law shall be repealed in its

* entirety as of December I, 1990.(b) There is hereby authorized to be appro-

priated to the Election Commission (the'Commission') sufficient funds to carry outthe referendum described in this Section 7,including but not limited to the cost of print-ing the ballot and tabulating the results. Inpreparing the ballot, the Commission shallinclude in the question the number of- therelevant public law.

1368

GUAM SOC. OF OBSTETRICIANS & GYNECOLOGISTS v. ADA 1369Cite as 962 F.s" 1366 (9th Cir. 1992)

41973), in the Territory of Guam. The dis-trict court held that Roe v. Wade applied,and granted summary judgment for theplaintiffs, permanently enjoining enforce-,sent of the Act.2 776 F.Supp. 1422. We

iffirm.

The plaintiffs in this case are the GuamSociety of Obstetricians & Gynecologists;the Guam Nurses Association; physiciansEdmund A. Griley, William S. Freeman,and. John Dunlop; the Reverend Milton H.Cole, Jr;;. and Laurie Konwith. The healthcare providers in this group clearly havestanding to bring this action. See PlannedParenthood v. Danforth, 428 U.S. 52, 62,96 S.Ct. 2831, 2837,'49 LEd.2d 788 (1976);Abele v.Markle, 452 F.2d 1121, 1125 (2dir.1971). Because some of the plaintiffshave standing, it is not necessary to deter-aine whether the others do. See Doe v.

-Bolton, 410 U.S. 179, 188-49, 93 S.Ct. 739,746, 35 LEd.2d 201 (1973); see also Watt v.-nergy Action Educ. Found., 454 US.151i 1601 102 S.Ct. 205, 212,70 LEd.2d 309(1981); Grove v. Mead School Dist: No.354, 753 F.2d 1528, 1532 (9th Cir.), cert.denied, 474 U.S. 826, 106 S.Ct. 85, 88L.Ed.2d 70 (1985).

Thedistrict court held that the plaintiffscould maaintain their ction under 42 U.S.C.

1983, and awarded them relief under.thedue process guarantees recognized in Roev. Wade.. The court. determined that thoseguarantees applied in Guam, under the pro-visions.of the Mink Amendment .to theGuam- rganic Act, 48 U.S.C. I1421b(u).The .Territory of. Guam in the person ofGovernor.Ada ("Guam") challenges all of.these ruilings onappeal, and urges. as wellthat the authority of Roe v. Wade has beenundermined by later decisions of the Su-preme Court. Before we address thesepoints, however, we must deal with athreshold issue raised by the plaintiffs.

2. The district court also held that Sections 4 and5 of the statute, which make criminal the "soli-citing" of abortions, violated the First Amend-ment. That ruling has not been appealed.

A. Severability of the Unappealed Sec-tions

(1] The district court held that Sections4 and 5 of the Act violated the FirstAmendment, and Guam did not appeal fromthat ruling. The plaintiffs now argue thatthese sections are not severable from theremainder of the Act. The result, theycontend, is that the entire Act has beeninvalidated, in effect, by the district court'sunappealed ruling, leaVing nothing to bedecided on this appeal. We reject this con-tention because we conclude that Sections 4and 5 are severable from the other parts ofthe Act.

The standard for determining the sever-ability of an unconstitutional provision iswell established. "'Unless it is evidentthat the Legislature would not have en-acted those provisions which are withinits power, independently of that which isnot, the invalid part may be dropped ifwhat is left is fully operative as a law."'

Alaska Airlines, Inc. v. Brock, 480 U.S.678, 684, 107 S.Ct. 1476, .1480, 94 LEd.2d661 (1987) (citations omitted). The sectionsof the Act that remain if Sections 4 and 5are severed clearly are fully operative as alaw. Unless there is evidence of contrarylegislative intent, the remainder of the Actshould therefore survive the invalidation ofSections 4'and 5..

( (2] The plaintiffs put forward two relat-ed arguments suggesting a legislative in-tent against severability. First, they con-tend that Section 7, which provides for areferendum to determine..whether the en-tire Act should be repealed, demonstratesthat the Guam Legislature intended theAct to stand or fall as a whole. Second,they argue that the Legislature's intentionwas to pass a comprehensive antiabortionstatute, and that removal of Sections 4 and5 creates a weaker and less comprehensivestatute.

With respect to the first argument, thefact that there was to be a referendum onthe entire Act reveals very little about leg-

3. The provision for a referendum did not delaythe effective date of the Act. There is accord-ingly no issue of ripeness.

962 FEDERAL REPORTER, 2d SERIES

Guam's Organic Act, codified at 48 U.S.C.§§ 1421-1424b (1988), so provides. Theplain laiguage of the 1968 Mink Amend-ment to the Organic Act, codified at 48U.S.C. § 1421b(u) (1988), belies their claim.The Mink Amendment. states that

The following provisions of and amend-ments to the Constitution of the UnitedStates are hereby extended to Guai ...and shall have the same force and effectthere as in the United States or in anyState of the United States: ... the firstto ninth amendments inclusive; the thir-teenth amendment; the second sentenceof section 1 of the fourteenth amend-

4. The Mink Amendment also extends to Guamevery other conceivable constitutional source ofthe right of privacy. See Roe, 410 US. at 152,93 S.C. at 726 (sources relied on by the Court orindividual Justices have included the .FirstAmendment, the Fourth and Fifth Amendments,the penumbra of the Bill of Rights, the NinthAmendment, and the Fourteenth Amendment).

3. Our disposition of this question on the basis ofthe Mink Amendment makes it unnecessary for

C. Prospective Relief Under 42 T.S.C/ 1983 - .

.(5] Guam next argues that the plain-tiffs cannot maintain this action againstGovernor Ada under 42 U.S.C. § 1983 be-cause he is not a "person" within the niten-ing of that statute. We hold that-he is':"person" when sued in his official capacityfor prospective relief. :

Section 1983 creates liability for' "er-sons" who, while acting "under "color" ofstate or territorial law, deprive citizens orother persons of rights,' privileges; or'im-munities secured by the Constitution-or

us to address the.further contention..of. theplaintiffs that the right of privacy-autonomyprotected by Roe v. tade qualifies as a "funds-mental" constitutional right applicable to an un-incorporated territory by its own force. .Seee.g., Ecamining Board v. Flores de Otero, 426US. 572, 599 n. 30. 96 S.CL 2264, 2280 n. 30, 49LEd.2d 65 (1976) (only 'fundamental" constitu-

-tional rights apply in unincorporated territory).

1370islative intent regarding severability. The ment; and the fifteenth and nineteerthplaintiffs place undeserved emphasis on the amendments. i.words "in its entirety." That part of the 48 U.S.C. § 1421b(u) (emphasis iddesection provides that, if a majority of the The Mink Amendment thus expressl ix.voters vote to repeal the law, "such public tends to Guam the Due Process Claiugselaw shall be repealed in its entirety." An the Fourteenth Amendment, upon %liichentire repeal is the obvious and logical re- the holding of Roe was founded.' See Roesult of a vote to repeal in a referendum; v. Wade, 410 U.S. at 153, 93 S.Ct. at 726.the words in question signify no more than It may be true, as Guam argues, that thethat. Supreme Court requires a clear indicaton

(3] While the plaintiffs' second argu- of congressional intent before interpretingment is not wholly implausible, they a congressional action as extending a rightpresent no evidence to support it. The to the people of Guam. See Guam ti. o.mere suggestion that legislators wanted a sen, 431 U.S. 195, 97 S.Ct.. 1774, 52 LEd.2dcomprehensive Act is not sufficient to over- 250 (1977). We canscarcely imagine, how-come the presumption of severability that ever, any clearer indication of intent thanis implicit in the Alaska Airlines standard. the language of the Mink Amendment theWe therefore reject the plaintiffs' sever- _trelevant .constitutional amendments "haveability arguments, and proceed to the argu- the same force and effect" in Guam asin aments that Guam raises on thappeal. state of the United States. --There is -no

need, therefore, to -go.-further. See.Ngi.Wade raingas v. SanchezA.95 U.S. 182, 188-87,B. Applicability of Roe a 110 SCt. 1737, 1740,109 LEd.2d 163 (190)

Guam (resorting to legislative history only after(4] Guam contends that the substantive determining. that the. statutory

due process guarantee enforced in Roe 'v. was uncle). Accordingly, we hold4hatWade and subsequent abortion cases does Roe v. Wade applies to Guam as itappinot apply to Guam because nothingin toatthe .states.to.

GUAM SOC. OF OBSTETRICIANS & GYNECOLOGISTS v. ADA 1371Cite as 962 FId 1366 (9th Cir. 1992)

.Ife deral law. 42 U.S.C. § 1983. In Ngi-. ingas v. Sanchez, 495 U.S. 182, 110 S.Ct.

*137, 109 L.Ed.2d 163 (1990), an action for

aimages, the Supreme-Court held that ter-'itories are not "persons" within the mean-

g of § 1983. The Court also stated:.'ipetitioners concede, ... and we agree,

Stat if Guam is not a person, neither are itscofficers acting in their official capacity."*Id at 192, 110 S.Ct. at 1743. Guam seizes

upon this language. It contends that, be-.cause Governor Ada is being sued to pre-.-ent him from enforcing a statute of.Guam, he is necessarily being sued in his.fficial capacity. Therefore, Guam asserts,he cannot be considered a "person" subjectto suit under section 1983.

Guam's argument overlooks the distinc--tion between suits against governmental*6fficials for damages, such as Ngiraingas,and those for injunctive relief. The distinc-tion has been spelled out in cases involvingstate officials. Like territories, states are

..not "persons" for purposes of section 1983.Will v. Michigan Dep't of State Police, 491US. .58, 63-65, 109 S.Ct. 2304, 2307-08, 105LEd.2d 45 (1989). In addition, state offi-cers, when sued for damages in their offi-cial capacities,. are likewise not "persons"within the meaning of 1983. Id. at 71, 109S.Ct. at 2311. Any other conclusion wouldrender meaningless the ruling that statesare not "persons"; a judgment against astate official in his or her official capacity.runs against the state and its treasury.Kentucky v. Graham, 473 U.S. 159, .166,105 S.Ct 3099, 3105, 87 LEd.2d 114 (1985).

The rule is entirely different, however,when the suit is. for injunctive relief. "Ofcourse a state official in his or her officialcapacity, when sued for injunctive relief,would be a person under § 1983 because'official-capacity actions for prospective re-lief. are'not treated as actions against theState.' " Will, 491 U.S. at 71 n. 10, 109S.Ct at 71 n.. 10 (quoting Kentucky v.Graham, 473 U.S. at 167 n. 14, 105 S.Ct. at3106 n. 14); see Ex parte Young, 209 U.S.123, 159-60, 28 S.Ct. 441, 454, 52 L.Ed. 714(1908). We can see no reason why thesame distinction between injunctive anddamages actions against officials shouldnot apply to a territory.

Guam attempts to distinguish Will byarguing that Guam is a "federal instrumen-tality" rather than a sovereign entity like astate. Because Congress maintains controlover the Territory, -Guam contends thatthere.is no need to apply § 1983 to Guamor its officials.

Guam's argument proves too much. Un-der its approach, .section 1983 would notapply at all in any territory-not even tomunicipalities or officials acting in their

* individual capacities. Such a result wouldtotally nullify the provision of .section 1983imposing liability upon.persons acting un-der color of law of "any State or. Territo-ry. " Accordingly, we conclude that Gov-ernor Ada, when sued as he is here in hisofficial capacity for injunctive relief, is aperson within the meaning of 42 U.S.C.§ 1983.

Having determined that the. plaintiffsmay maintain this action under .section1983, we turn to the substantive dueprocess claim. Two issues arise: (1)whether Guam's Act violates, the right ofprivacy protected by Roe v. Wade, and (2)whether subsequent Supreme Court deci-sions, particularly Webster v. ReproductiveHealth Services, 492. US. 490, 109 .S.Ct.3040, 106 L.Ed.2d 410 (1989), have so erod-.ed Roe v. Wade that Roe cannot now beapplied to invalidate Guam's Act.

A. Validity of the Act under Roe v.Wade

[6] The first issue is not hard to re-solve. Guam's Act makes no attempt tocomply with Roe. In Roe, the SupremeCourt recognized that the right of privacy"is broad enough to encompass a woman'sdecision whether or not to terminate herpregnancy," and that for the state to denythis choice "may force upon the woman adistressful life and future," along with oth-er harms. Roe, 410 U.S. at 153, 93 S.Ct. at727. The Court further recognized thatlimitation of the woman's fundamentalright of choice could be justified only by a

962 FEDERAL REPORTER, 2d SERIES

"compelling state interest." Id. at 155, 93S.Ct. at 728.

The Court in Roe rejected the state'sargument, renewed by Guam here, that thestate has a compelling interest in protect-ing fetal life from the moment of concep-tion. Id. at 159, 93 S.Ct. at 729. Thus Roerecognized the superior right of choice bythe woman during the first trimester ofpregnancy, and her right during the secondtrimester limited only by the state's com-pelling interest in protecting her health.I& at 163, 93 S.Ct. at 731. Only after thepoint of viability did the state's interest infetal life become bompelling and permit thestate to proscribe abortion entirely. I& at163-64, 93 S.Ct. at 732.

The Guam Act gives not a nod towardRoe. With two narrow exceptions, it sim-ply negates the rights and interests ofthepregnant woman and forbids her to termi-nate her pregnancy from the moment ofconception. It is difficult to imagine amore direct violation of Roe Even theexceptions for abortion to save the moth-ers life or to prevent grave impairment toher health are hedged with crippling re-strictions. The pivotal determination mustbe made by two physicians "who practiceindependently of each other"; they mustmake'their determination "using all avail-able means," and subject to subsequentreview by a peer review committee. Act, 9Guam Code Ann.' § 31.20. Less cumber-some two-physician and peer review re-quirements rere struck down by the Su-preme Court in Doe v. Bolton, 410 U.S.179, 199-200, 93 S.Ct. 739, 751, 35 LEd.2d201 (1973), decided with Roe, and in Thorn-burgh v. American College of Obstetri-cians & Gynecologists, 476 U.S. 747, 768-71, 106 S.Ct. 2169, 2182-84, 90 LEd.2d 779(1986).

If the core of Roe remains good law,then, the Act is clearly unconstitutional.Guam contends, however, that subsequent

6. Guam also contends that Roe's requirement ofa "compelling interest" on the part of the statewas reduced to that of a "rational basis" in Ohiov. Akron Center for Reproductive Health, 497U.S. 502, 110 S.Ct. 2972, 11 L.Ed.2d 405 (1990)(Akron H7), and Hodgson v. Minnesota, 497 US.417, 110 S.Ct. 2926, 111 LEd.2d 344 (1990).

decisions have so eroded the analysis o'Roe that Guam's Act should be held tojWconstitutional under the current state 9fthe law. We now address that contention.

B. The Status and Applicabilit,6rRoe Today

[71 Guam contends that Roe has noforce after Webster v. ReproductiveHealth Services, 492 U.S. 490, 109 S.Ct3040, 106 LEd.2d 410 (1989). -Putting Web.ster together with non-majority opinions inother cases, Guam contends that the clasaj.fication of competing interests haschanged. Guam relies particularly uponJustice O'Connor's dissents in Thornburghv. American College of Obstetricians &Gynecologists, 476 U.S. at 814, 106 S.Ct. at2206, and Akron v. Akron Center for -Re-productive Health, Inc., 462 U.S. 416,452,103 S.Ct. 2481, 2504, 76 L.Ed.2d 687 (1983).According to Guam, five Justices of:theSupreme Court now recognize the state'scompelling interest in potential human ikethroughout pregnancy, and no longer .here to the Roe analysis. In Webster, iathree-Justice plurality stated that it'did"not see why the State's interest ir protect-ing potential human life should comehitoexistence only at the point of viability'"Webster, 492 U.S. at 519, 109 S.Ct. at 3057.It also characterized the. woman's interestas a "liberty interest," as distinguishidfrom a "fundamental right." Id. at 520,109 S.Ct. at 3058. Guam would put thesestatements together with Justice Scalia'sview that Roe should be overruled. Id. at532, 109 S.Ct. at 3064. It would then addJustice O'Connor's view that regulationsthat do not impose an "undue burden'' on awoman's right to seek an abortion are sus-tainable if rationally related to a legitimatestate purpose. Id. at 529-30, 109 S.Ct. at3062-63; Thornburgh, 476 U.S. at 828,106S.Ct. at 2214.6 Finally, it would include

Akron H1 and Hodgson dealt with minor women,however, and the Court has recognized that "theState has somewhat broader authority to regu-late the activities of children than of adults.Planned Parenthood v. Danforth. 428 U.S. 52, 74,96 S.Ct. 2831, 2843,,49 LEd.2d 788 (1976).

1372

GUAM SOC. OF OBSTETRICIANS & GYNECOLOGISTS v. ADA 1373. Cite as 962 F.2d 1366 (9th Cir. 1992)

O'Connor's position elsewhere ex-that the state's compelling interest

throughout pregnancy. See Akron,U'S.:at 459, 103 S.Ct. at 2507; Thorn-, 476 U.S. at 828, 106 S.Ct. at 2214.

i this 'mix, Guam derives the conclu-,W that its interest in fetal life can over-

0zne the woman's right to choose whether1 have an abortion, and that Guam's Act isjtbrefore not unconstitutional on its face.

* e reject Guam's construct. The bitspieces assembled by Guam fallshort of

conpelling us to do that which the Su-preme Court itself has. declined to do-overrule Roe v. Wade In Webster, theCourt modified Roe only to the extent nec-essary to uphold Missouri's requirement oftesting for viability. Webster, 492 U.S. at

.521, 109 S.Ct. at 3058. The plurality opin-ion stated that the case afforded no occa-sion to revisit Roe, "and we leave it undis-turbed." Id. Justice O'Connor found noconflict between Missouri's statute andRoe, and similarly concluded that there wasno need to reexamine Roe. Id. 492 U.S. at525-26, 109 S.Ct. at 3060-61. Three dissen-ters opined that Roe survived Webster, al-though it was not secure. Id at 537, 109S.Ct at 3067 (dissenting opinion of JusticeBlackmun, joined by Justices Brennan andMarshall). Justice Scalia in his concur-rence chastised the Court for failing tooverrule.Roe Id. at 532, 109 S.Ct. at 8064.In the face of these pronouncements, itwould be both wrong and presumptuous ofas now to devlare that.Roe v. Wade isdead.?

7. In its most recent abortion-related case, RustX Sudvan, - U.S. I I S.CL. 1759, 114I.Ed.2d 233 (1991), the Supreme Court upheldcertain federal regulations against a challengethat they violated a woman's due process rightto choose whether to terminate her pregnancy.The Court held that the regulations dealing withactivities of federally-funded programs did notviolate Roe v. Wads. I 111 S.Ct. at 1777. Itdid not suggest that Roe v. Wade was no longerthe law.

& Because Justice O'Connor's -undue burden"test is of no assistance to Guam. we need notdecide what authoritative effect, if any, it mustbe given. See Planned Parenthood v. Casey, 947F.2d 682, 687-98 (3d Cir.1991) (Justice O'Con.

We also have severe difficulty acceptingthe conclusions that Guam draws from theexisting mosaic of decisions. In the firstplace, it is hard to see how Justice O'Con-nor's view helps Guam: surely an outrightcriminalization of abortion places an "un-due burden" on the exercise of the wom-an's right.' Second, a view of the state'sinterest in potential life as "compelling"throughout pregnancy does not necessarilymean that it sweeps all other interests outof the way.' There is a countervailingright in issue here, although we find littlereflection of it in Guam's briefs. No mat-ter how it is characterized, the right of awoman not to be forced to endure a preg-nancy and birth is an extremely importantone. Pregnancy entails "profound physi-cal, emotional, and psychological conse-quences." Michael M. v. Superior Courtof Sonoma County, 450 U.S. 464, 471, 101S.Ct. 1200, 1205, 67 LEd.2d 437 (1981)."Few decisions aii more personal and inti-mate, more properly private, or more basicto individual dignity and autonomy, than awoman's decision-with the guidance ofher physician and within the limits speci-fied in Roe-whether to end her pregnan-cy." Thornburgh, 476 U.S. at 772, 106S.CL. at 2184. The individual's interest inexercising control over intimate personaldecisions has been recognized in decades ofCourt precedent See id.; Akron, 462 U.S.at 419, 103 S.CL at 2487; Roe, 410 U.S. at167-70, 93 S.Ct. at 733-36 (Stewart, J.,concurring); Eisenstadt v. Baird, 405 U.S.438, 92 S.CL 1029, 31 LEd.2d 349 (1972).

nor's standard is now the law of the land, cert.grnt4 - US..-, 112 S.CL 931. 117 L.Ed.2d104 (1992)).

9. There clearly must'be limits to the ability of astate's interest in potential life, whether or notcharacterized as compelling, to override all con-flicting Interests. Potential human life exists inthe ovum and sperm. See Webster, 492 U.S. at565-66, 109 S.Ct. at 3082 (Stevens, J., concur-ring in part and dissenting in part). A statecould maximize that potential by forbiddingcontraception, or even by requiring regular sex-ual intercourse by all fertile persons.' The pros-pect is absurd, of course, because there arehighly important constitutional rights thatwould be interfered with by such a measure.

962 FEDERAL REPORTER, 2d SERIES

We would not lightly conclude that it couldbe overcome wholesale at any stage ofpregnancy by Guam's interest in potentiallife.

The balancing of these vital individualinterests against the state's interest in po-tential life is not an exercise in mathemat-ics. These forces present a constitutionalclash of the first order. Its outcome can-not be predetermined by adopting in theabstract various assembled character-izations of the interests at stake or formu-lae for'weighing them. A more fundamen-tal process is at work. Roe workedthrough that process and came to a resultthat has affected the lives and rights ofmillions of people. It is not for this courtto discard'that.precedent.o

III-

The judgment of the district court perma-nently . -enjoining the enforcement ofGuam's Public Law 20-134 is

AFFIRMED.n

10. We find it unnecessary to address the plain-tiffs' arguments that Guam's Act is void forvagueness and overbreadth. We also decline toaddress the plaintiffs arguments based on theEstablishment Clause, the Equal Protection andDue Process Clauses, the Eighth and ThirteenthAmendments, and comparable provisions of theGuam Bill of Rights, 48 U.S.C. § 1421b.

11. The plaintiffs have requested attorneys' feesin connection with this appeal. They will beentitled to them if they ultimately prevail in thisproceeding. 42 U.S.C. § 1988; see Hutto v. FAn-

Sheri LIPSCOMB, By and Through=NNext Friend, Carolyn DeFER;P.,tumn Scalf, & William Scalf, .-By .Through Their Next Friend Gloriaon Behalf of Themselves and.AllSimilarly Situated, Plaintiffs-.Apelants,

V.fDan SIMMONS, Individually and In*R

Official Capacity as Acting Director,Department of Human Resources of theState of Oregon, & Jess Armas, IndivId.nally and in His Official Capacity iiActing Assistant Director, Departmentof Human Resources of the State -ofOregon and Acting Administrator, Chil.dren's Services Division, Department ofHuman Resources of the State of. Or..gon, Defendants-Appellees.

No. 87-4079.

United States Court of Appeals,Ninth Circuit.

Argued En Bane and SubmittedNov. 15, 1990.

Decided April 27, 1992.

Children in foster care brought actionchallenging Oregon statutes under whichstate-funded foster care benefits were pro-vided to all children placed by state withnonrelatives, but not provided for childrenplaced with relatives. The United StatesDistrict Court for the District of Oregon,Helen J. Frye, J., rendered judgment forstate, and children appealed. .The Court ofAppeals reversed, 884 F.2d 1242, and re-hearing en bane was granted, 907 F.2d 114.On.rehearing, the Court of Appeals, Good-

ney, 437 U.S. 678, 692, 98 S.Ct. 2565,.2574, 57I.Ed.2d 522 (1978). If the plaintiffs apply forfees In this court, we will transfer their applica-tion to the district court for a determination ofthe recoverable amount In those proceedings,Guam will have the opportunity to contest thestanding of the plaintiffs, who are not healthcare providers, to the extent that that issue hasany effect on recoverable fees.

Fees at the trial level were granted in a sepa-rate proceeding, separately appealable.

1374

1190 963 FEDERAL REP

thought he was powerless to depart; hesimply did not believe the situation meriteda departure. When defense counsel firstasked for a departure, the judge said, "I'mnot inclined-in this case, I'm not inclinedto go below 240 months which is-which isbarely above the minimum guidelinerange.... The guideline is 235 to 293. Imean, would you have me depart belowthat?" When defense counsel answeredyes because he believed there was entrap-ment, the judge stated that there was noentrapment because the defendants wereinvolved in an ongoing business.

Additionally, the judge's remarks indi-cated that he thought appellant deservedthe sentence he got based on his criminalhistory. "The facts are terrible foryou.... The gentleman has about eightprior convictions ... and I can't rewrite hisbiography." The transcript shows that thejudge considered counsel's pleas to reducethe sentence because of entrapment or be-cause appellant's criminal history was over.stated. He simply chose to reject both.We therefore affirm the judge's decisionnot to depart from the sentencing guide.lines.

The judgment of the district court is inall respects AFFIRMED.

Larry ZOBIIREST; Sandra Zobrest, hus-band and wife; James Zobreat, a minor,by Larry and Sandra Zobrest, hie par-ents. Plaintiffs-Appellanta,

v.CATALINA FOOTHILLS SCHOOL

DISTRICT, Defendant-Appellee.

No. 89-16035.United States Court of Appeals,

Ninth CircuitArgued and Submitted Dec. 12, 1990.

. Decided May 1, 1992.

Parents of profoundly deaf studentbrought suit under Federal Education of

ORTER, 2d SERIES

the Handicapped Act to compel pubfsschool to provide state-paid sign languageinterpreter while student attended Catholihigh school. The United States Distrid.Court for the District of Arizona, RlcharlM. Bilby, J., ruled that providing sign lam'guage interpreter would violate establishment clause. Parents appealed. ThCourt of Appeals, Fletcher, Circuit Judge,held that- (1) establishment clause woodbe violated since primary effect of providing interpreter was to advance religion, sd(2) denying assistance of interpreter did notinfringe on free exercise clause.

Affirmed.

Tang, Circuit Judge, dissented andfiled opinion.

1. Schools 4148(2).States and school districts provide

handicapped students services necessary Ibmeet special educational needs under Federal Education of the Handicapped ActIndividuals with Disabilities Education Ad,I Gl3(aX4XA), as amended, 20 U.S.CA.I 1413(aX4)(A).

2. Schools 4-154(4)Federal Education of the Handicapped

Act does not require state to pay children'stuition when parents* voluntarily enroltheir handicapped children in privateschool. Individuals with Disabilities Ed&'cation Act, I 613(a)(4XII), as amended, 20U.S.C.A. I 1413(a)(4)(B).

3. Administrative Law and Procedure4:229

Schools 6-155.5(3)Exhaustion of the Federal Educatien

of the Handicapped Act's administrativeprocedures is not required when exhaustiosis futile.

4. Federal Courts 4=776District court's grant of suinmid

judgment is reviewed de novo; Court ofAppeals must determine, viewing evidence

ZOBREST v. CATALINA FOOTHILLS SCHOOL DIST. 1191Cile. eNJ .3d 1190 (9ir M. 1992

Is the light most favorable to nonmoving William Bentley Ball, Ball, Skelly, Mur-larty, whether genuine issues of material ren & Cornell, Harrisburg. Pa., Thomas J.iet exist and whether district court cor- Berning, Ariz. Center for Law in the Public

uorly applied the law. Interest, Tucson, Ariz., for plaintiffa-appel-L federal Courts C-776 lants.

Court of Appeals reviews questions of John C. Richardson. DeConcini, Me-testitutional law de nova. Domlld, Brammer Yetwin & Lacy, Tucson,L Conalitutional Law 4-84() Ari, for defendant-appellee.

Statute does not violate the establish- Appeal from the United States Districtsent clause if statute has secular legisla. Court for the District of Arizona.fire purpose, statute's principle or primaryeffect is one that neither advances nor inhi-ti religion, and statute does not foster Before: TANG, FLETCHER, and

hxcessive government entanglement with REINHARDT, Circuit Judges.aligmon. U.S.C.A. Const.Amends. 1, 14.L Constltutlonal Law 4=84.6(4) OPINION

Schools 8 FLETCHER. Circuit Judge:Providing state-paid sign language in-

arpreter to profoundly deaf student while 7he Zobresta appeal the district courtsilending Catholic high school would vio- ruling that provision of a state-paid sign

bte establishment clause, even though Fed- language interpreter to James Zobrestsal Education of the Handicapped Act had while be attends a sectarian high schoola secular purpose, since primary effect would violate the Establishment Clause.would be to create impermissible "symbolic The Zobreata also argue that denial of suchahon"; interpreter would attend religion assistance violates the Free Exercisedaises and masses which school encour- Clause.aled student to attend. Individuals with We affirm.Disabilities Education Act. I 613(aX4XB),t amended, 20 U.S.C.A. # 1413(a)(4)(B);ilSC.A. ConstAmends. 1, 14.L Constitutionat Law 4=84(1) (1' James Zobrest is a student at Sal.

Imposition on individual's free exercise pointe Catholic High School. lie is pro.Irights by government violates free exer- roundly deaf, qualifying him as a handi.ise clause unless burden is justified by capped child under the Federal Educationeme compelling state interest U.S.C.A. of the Handicapped Act ("EHA"), 20 U.S.C.

Amend. 1401(aX), and Ari.ltev.Sat. § -

LConstitutional Law 84.5(4) 761(6; also 34 C.F.R. 300.. TheL Contltuinna Law4=8414)EllA lirovides federal funds to state said

Schools 4-8 local governments for the purpose of edu-Refusing to provide profoundly deaf cating handicapped childien: Bonrd of

student with state-paid sign language inter- Educ v. Rowle, 458 U.S. 176, 179. 102peter while student attended sectarian S.Ct. 3034, 3037, 73 L.Ed.2d (90 (1982). itigh school did not violate free exercise order to obtain federal funds, a state mustclause since government had compelling in- offer alt handicapped children within itslerest in insuring that establishment clause jurisdiction a "free appropriate public editas not violated and there were no "less cation." 20 U.S.C. 1 1412(l). Under the

iestrictive means" by which it could accom- program, states and school districts provideplish that goal. Individuals with Disabili- handicapped students the services necesties Education Act, I 613(aX4XB), as ary to meet their special educationalamended, 20 U.S.C.A. § 1413(aX4)B); needs. 20 U.S.C. § 14t3(a)(4)(A). Arizona

AS.C.A. ConstfAmends. In 14. has enacted a statutory scheme desiged to

1192 963 FEDERAL REP

meet the educational needs of its handi-capped students and to qualify it for feder-al assistance under the EHA. Ariz.Rev.Stat. i 15-761 to 15-772.

12) Both EHA and state funds areavailable to provide sign language inter-preters. See 34 C.F.R. 9 300.13. The par-ties do not dispute that James needs theassistance of a sign language interpreter inthe classroom. The parties have alsoagreed that, if James attended either apublic or a non-religious private school inArizona, the Catalina Foothills School his-trict ("School District") would assume fullfinancial responsibility for the employmentof a sign language interpreter for James.$

Salpointe High is a private Roman Catho-lic school, operated by the Carmelite Orderof the Catholic Church. Salpointe is a per-vasively religious institution; religiousthemes permeate the classroom. Accord-ing to the parties' stipulation of facts,"Itihe two functions of secular educationand advancement of religious values or be-liefs are inextricably intertwined through-out the operations of Salpointe." Salpointe"encourages its faculty to assist studentsin experiencing how the presence of God ismanifest in nature, human history, in thestruggles for economic and political justice,and other secular areas of the curriculum."Religion is a required subject for studentsenrolled at Salpointe, and the students arestrongly encouraged to attend the Masscelebrated there each morning. As a re-sult, a sign language interpreter would becalled upon to translate religious preceptsand beliefs during the course of James'seducation.

1. The bulk of EllA benefits are targeted forstudents enrolled in public schouls or placed inrivale schools by seale or local oficials. Swe

u S. I 1413(a)(4)(li). When parents vln-tarily ceirutf their handicapped children in pri.vale school. the state need not pay ahose chil-drens tuition. 34 c.l.a. u 300.403(a). Thestate and local school district. however. stillmust provide -spccial education and related ser-vices" to the private school children. 34 C.F.R.I 300.42(a). For purposes of this litigation.the parties do not dispute that sign languageinterpretation is one of the "special educationand related services" to which James is entitled.The parties agree that, if Jamess parents en-rolled him in a non-seclarian private school or

DETER 3d ERIE ZOBREST v CATALINA FOOTHILLS SCHOOL DIST. 19O R T E R , 2 d S E R I E S

C s 1 0 t . l s,1 9Sandra and Larry Zobrest, James's par- of a sign language interpreter would in COnIwLl u. Connec t, 310 S 19,ents, feel compelled by their religious con- fact offend the first amendment. The 303, 60 SC o c 900 c 903, d3victions to enroll James in a Catholic high -mart noted that- 84 LEd. 1213 1940

school.T(3 or. t The interpreter would act as a conduit A. The Lemon v. Kurtman Test(31 Prior to their son's enrollment at -for the religious inculcation of James- 161 To "guide" the EstablishmientSalpointe, the Zobrests requested that the thereby promoting James's religious de- Clause inquiry, the Supreme Court hasSchool District supply James with a certi velopment at government expense. That fashioned a three-part test. hfcller . Al-fied sign language interpreter for his kind of entanglement of church and let, 463 U.S. 388, 394. 103 S.Ct. 3062, 3066,classes at Salpointe, beginning in August State is not allowed. n L.Ed.2d 721 (1983). In general terms, a1988. The School District petitioned the lhrest . Catalina Foothills School Dis. statute will be upheld if: the statute has aPima County Attorney for. an opinion as Wric, No. CIV-88-616 (DAa. Oct. D, secular legislative Purpose"; the statute'sthe constitutionality of providing such a 11S9) (order granting summar. Oct)I, n legiary efoect he tatsevie Th euyCut tonysb or i o gsrmry judgment). 'principal or Primary effect Iis) one thatservice. The Deputy County Attorney sh-,, whetcortli ula01 the qmpestion of nt n nithetr advances or inhtibits religin,,. and,acquently advised that furnishing an inter ethe the espoyn of a qsin of nither taut es ot "nibt essive

preter would offend both state and federal Puage interpreter would also violate the govern ent entanglement with religion."constitutional prohibitions against a state Arizona Constitution. The soesvioaepea I (citne entanglemn ith ii."qestablishment of religion. See U.S. CoDB* J 0g 8 order. 602, 613, 91 SC. 2105, 2111, 29 L.E.2damends. 1, XIV; Aris. Const. art. 2 I It o74 (1971)). .25 1In June 1988, the Arizona Attorney Gene STANDARD O REVIEWal concurred in the Deputy County Attor: i f. Secular Legislative Purposeney's opinion. i e t court's grant The Supreme Court has noted it "relu.Iflummary judgment de novo. Kruso vt. lance to attribute unconstitti~onal motives",In August 1988, the Zobrests initiated s tlnatr onal Tel. d el. Corp., 872 F.2d to a statute's drafters, "particularly whencivil action under the EHA, 20 U.SC. IlS. 1421 (9th Cir.1989), cert. denied I 1415(e), seeking an injunction requiring: 01--- 110 S.Ct ), cer d d 6 a Plausible secular purpose for the nro-the School District to provide James with 0). We must d e217, 110 L tEd.2 664 gram] may be discerned from tth fae oftheSchol istictto rovde ame VA Of Wemus deermneviewing te the statute." Mmicltcr it Allent, 463 U.S. atan interpreter. Pending the outcome of: alence in the light most favorable to the 394-95, 103 S.CL at 3067. The statutes atthis litigation, the Zobrests have employd Usmoving party, whete genuine tosue issue 103 Sice as pursenan interpreter for their son at their Os dinaterial fact exist an e e e issue here evince a secula seexpense. On August IS, 1988, the distrk court correctly applied the law. enacting the EHA, Congressecourt denied the Zobreats' request for A S. clea eacting poheE madepreliminary injunction. The court fod A Stale Farm . 3 re and Casualty secular purpose:that the Zobrests hadl not four too 873 F.2d 1338, 1339-40 (9th Cir.I18). It is the purpose of this Chapter to as-ta h orsshdntdemonatratal 5 sure that all handicalpped children havelikelihood of success on the merits, becses , Il Whether the provision of a state- available to them ... a free appropriatethe provision of an interpreter would lilhe1 haned sign language interpreter to a stu- public education which emphasizes spte.offend the first amendment's establishinst .ot enrolled in a private sectarian school cial education and related services de-clause. 4"aes the establishment clause is a ques- signed to meet their unique needs toOh Ofeconstitutional law that we review de assure that the rights of handicappeded the School District's motion for s . See Carreras v. City of Anaheim, children and their parents or guardiansmary judgment, holding that the furnish -iF2d 1039, 1042 n. 2 (9th Cir.1985). We are protected Io

public school, the School District wul toobliged to provide a sign language lntfor him.

2. The pries agreed that, In light of the 0County Anorney's and Attorney Genera'tsions, cshaistion of the IlA's admiah"V,review procedure, 34 C.F.R. IS 300.5t is e510. would be futile. Exhaustion of [he EMi1administrative procedures Is not requiredIt is futile. Ioni v. Doe, 484 US. 303, 111.0,S.Ct. S92, 606, 98 LF.d.2d 686 (1988); aWion . Maran hniied School Dis., 5 141178. I1t (9th Cir.1984).

mesa review de novo the constitutionali.401 the school district's decision to with.

11 aid from the Zohresta. Id.

DISCUSSION

She Establishment ClauseIII firat amendment provides: "Con-s shall make no law respecting an es-

Arment of religion, or prohibiting thehe exercise thereof.. U.S. Const.0"d. I. This prohibition extends to the

'ila lhrough the fourteenth amendment.

,. asas Mates and Localities to Provide for the education of tllhandicapped children, and to assess ailasstre te effectiveness of efforts to etducate handicapped children.

20 U.S.C. § 1400(c).The Arizona counterpart to the EllA re-veals a similar goal of Providing the stales

handicapped ctildren with the assistatncethey might need to enjoy full anld equaleducational opportunities.

Thus, the ElHA antd the correspondingArizona statutes pass the first iart of theLeption test. However, we find teir pro-

963 FEDERAL REPORTER, 2d SERIES

posed application cannot survive the secondpart of that test.'

C. Statutes' Primsary Effect

(71 In Grand Rapids School District e.Ball, 473 U.S. 373. 105 S.CL 3216, 87L.Ed.2d 261 (1985), the Supreme Court heldthat programs under which public schoolemployees provided classes in privateschools violated the Establishment Clause,where all but one of the private schoolsinvolved were sectarian in nature. TheCourt frund that the programs "may im-permissibly advance religion in three

ways." Grand Rapids. 478 U.S. at 386,105 S.Ct. at 8223. One of the impermiss-ble effects the Court cited was that "theprograms may provide a crucial symboliclink between government and religion,thereby enlisting-at least in the eyes ofimpressionable youngsters-the powers ofgovernment to the support of the religiousdenomination operating the school." Id.The Court noted, "Government promotesreligion as effectively when it fosters aclose identification of its powers and re-sponsibilities with those of any-or all-religious denominations as when it at-tempts to inculcate specific religious doc-trines." ld., 473 U.S. at 389, 105 S.CL at3225. The Court cited a lower court opin-ion, which stated that, "Under the City'splan public school teachers are, so far asappearance is concerned, a regular adjunclof the religious school.... The religiousschool appears to the public as a joint enterprise staffed with some teachers paid byits religious sponsor and others by the pub

3. The Supreme Cousrt has generally considerciShe validity snf a challenged 332tuie "on Its faice.Bowen s Kendrick, 457 U.S. 519. 600. sol S.C1356z. 2569, lot LEd.d 520 (1985). lloweve,"Iher is .. 0 precedent for distinguishing h4

tween the validity of a statute on its face and itvalidity in particular applications." id.. 487 U.,at 602. l08 SC. at 2570. Foe excleisc in Hu'v. MfcNaimr, 413 U.S. 714. 93 S. 286A. IL.lid.2d 913 (1973), the Supreme Court ruled ethe validity of South Carolina's aid underrevenue bond act to an individual college. rater than on the constitutionality of the act aswhole. The court stated: "lo identify 'primaBoeS, we narrow our focus from hi statutea whole so She only transaction presently belaus.' flums. 403 U.S. at 742.93 S.Ct. at 2874.Bowens. while ihe court found the challeng

lic." Id, 413 U.S. at 392, 105 S.CL at 3221(quoting Felton v. Secretary, UnitedStates Dcpt of Ed., 139 F.2d 48, 67-48(1984)). The Supreme Court concluded that"the symbolic union of government andreligion in one sectarian enterprise ... aan impermissible effect under the Estab-lishment Clause." Grand Rapids, 473 US.at 892, 105 S.Ct. at 3227; see also Goodall

by Goodall . Stafford County Sch. BA,930 F.2d 363.; 370-72 (4th Cir.) (provision ofsign language interpreter to sectariantschool student under EllA and Virginiaimplementing regulations would violate Es-tablishment Clause). cert densied, - U.S.

,112 S.CL. 188, 116 LEd.2d 149 (1991l.

Were we to sanction the aid the 7obrestsseek, a public employee would he at JamesZobreat's side in each of his classes at asectarian school. With James, the employ-ee would attend religion classes, the noinally "secular" subjects, in which as theparties stipulate. Salpointe faculty are eo-couraged to "assist students in experiene'ing how the presence of God is manifest,"and the masses at which Salpointe encour.ages attendance. The interpreter would bethe instrumentality conveying the religiousmessage and experience. This presenceand function of an employee paid by thegovernment in sectarian classes would ceate the "symbolic union" Grand Rapidsfound impermissible. By placing its em

- ployee in the sectarian school to performthis function, the government would create

the appearance that it was a "joint spo-

I statute so be facially valid, Is dlirected the dslasicourt to acemsider on remoasd Whethser Partis

. lar ALFA grants have had the primary effeckd0, advancing religion." h 487 US. at 6 1

l05Ss. as 2580. in this cas. wecontsidrA

s the validity of one very specific proposed aspltS. cation of the statutes at issue. Considerationd aIt the statutes "as applite seems particularly IP1 proprlate, because their descriptions of the sil,n to be provided are extremely broad. Set 20a U.S.C. S 1413(a)(4)(A) (requiring states to essul

h- lish policies and procedures to ensure "by pra

a viding for such children special education sad

ry related services' that children with disabiliia

as participate in aid programs); Ari.RevSSre S H-764 (requiring educational authorities Is

In "provide special education and relatcd servicescd for .11 handicapped cildrens').

1194

4. One might attempt to distinguish Grand Rap-ids on the grounds that all but one of thecourses at issue in that case were taught inelementary school. while the Zobrests seek aidfor their son while he attends a Catholic highschool. However, while the Supreme Court inGrand Rapids expressed special concern for

ZOBREST v. CATALINA FOOTHILLS SCHOOL DIST.Che as 94 Fd itS" 1th Or. 1992)

sor" of the school's activities. provision to sectarian schoolTwo lines of cases the Zobresta cite in the "purely secular content

support of their appeal are distinguishable and services provided" wasfrom the case at hand. First, this case (nable." Goodall, 930 F.2does not involve "the sort of attenuated phasis original). "It is, of cofinancial benefit, ultimately controlled by as part of general legialiothe private choices of individual parents, able to all students, a Statethat eventually flows to parochial schools church-related schoola in profrom (a] neutrally available ... bene- Ing bus transportation, schoofit...." Aluellerv. Allen, 463 U.S. at 400, public health lacilities-sec103 S.CL at 3070. In blueller v. Allen, the deological services unrelateSupreme Court upheld a Minnesota pro- mary, religion-oriented eduesgram under which all parents were entitled of Lhsaectarian school." lto tax deduction for the cost of their chil- g 421 US. 349, 364, 95 S.dren's "tuition, textbooks and transpora 44LEd2d 217 (95) seetion." The Court noted that, "by channel- Kurtrman, 403 U.S. at 61ring whatever assistance it may provide to 2113 ("Our decisions . It

parochial schools through individual par. the States to provide church-sents, Minnesota has reduced the Establish- with secular, neutral, or noniment Clause objections to which its action vices, facilities or materials.'is subjecL" Id., 463 U.S. at 399, 103 S.CL Ing such aid to sectarian sest 3069. Similarly, in lVitters s. Wasal. preme Court has been carefuDept of Serus. for the Blind, 474 U.S. 481, the secular nature of this si

106 S.CL 748, 88 LEd.2d 846 (1986). the pie, in Board of Educ. v. ACourt held that the award of special edu. 236 88 S.CL 1923, 20 LEd.2cation assistance to a visually handicapped the Court upheld the provisstudent who sought to use that assistance subject textbooks to all sebat a sectarian college did not violate the sectarian schools, in New YorEstablishment Clause. Again, the Court observed, "Although the booemphasized the private individual's decision those required by the paredIn directing state provided aid: "In this use in specific courses, eac

case, the fact that aid goes to individuals must he approved by the pumeans that the decision to support religious thorities; only secular bookeduestion is made by the individual, not by Approval." Allen, 392 U.S. athe State." Witters, 474 US. at 488, IoG At 1927. In Wolnan vs. 4a

S.CL at 762. 229. N S.CL 2593, 63 LEd.

Were we to grant the Zobrests the relief prvan toset shldof

they request, public aid would not be chan- posto stariae st

neled to the sectarian school through the services, speech and hearingdecision of an individual. Instead, the vices and off-site therapeuticgovernment would be required to place its services. In discussing eachown employee in the sectarian school. On genes, the Court emphasizethe facts before us, these cases are unavail- nature of the aid provided aning.for its complete separation

Nor can the Zobrests rely on cases in glement; for example, withwhich the Supreme Court has upheld the dardized tests, eue Court not

"children of lender years," 473 U.S. as 390. l5S.CI. at 3226, It did not limit its holding Snelementary schools. Further. the Zobrests "feelis particularly essential that. as cite ime of adelescence. James be enrolled in a religionsschool.' They thus implicitli - kr ledge thevulnerability of young pco. J1 . nes' age.

1195s of aid whereof the goods

"easily ascer-d at 371 (em-urse. true thatn made avail-

may includegrams provid-I lunches, andular and noni-d to the pri-tional (sactionck sn l'itten-

Ct. 1753, 1763,also Lemson .. 91 S.CL. at

ave permittedelated schoolsdeological ser-"). In approv-hools, the Su-I to emphasized. For exam-lien, 392 US:d 1060 (1968),ion of secularools, including'k. The Courtits loaned arehial school forh book loanedblic school ass-s may receivet 244, 88 S.CLtier, 433 U.S.2d 714 (1977),siding for theIs of seculars and scoringdiagnostic ser-and remedialof these cate-d the seculard the capacityosn any entan-egard to stan-ed: "The non-

1196 963 FEDERAL REPORTER, 2d SERIES

public school does not control the contentof the test or its result. This serves toprevent the use of the test as a part ofreligious teaching...." Wolman, 433 U.S.at 240, 97 S.Ct. at 2601. However, in Wol-man the Court did not permit funding forthe purchase of instructional materials forloan to parents or for field trip services;with regard to the latter category, theCourt stated, "The field trips are an inte-gral part of the educational experience, andwhere the teacher works within and for asectarian institution, an unacceptable riskof fostering of religion is an inevitable by-product" Id., 433 U.S. at 254, 97 S.CL at2608.

Here, as the parties stipulate, the inter-preter would be required to act in a schoolenviroiment in which "the two functions ofsecular education and advancement of reli-gious values or beliefs are inextricably in-tertwined." Unlike the aid approved inAllen and Wolman, then, the assistancethe state would provide in this case cannotbe said to be of a clearly secular and sepa-rable nature.'

Thus, if applied as the Zobresta propose,the statutes at issue fail to survive thesecond part of the Lemon test. We there-fore find that state provision of the aid theZobrests seek would violate the Establish-ment Clause.

I. Free Exercise ClauseWe turn now to the second issue the

Zobreata raise: does denial of the assist-ance of a sign language interpreter uncon-stitutionally infringe on their rights underthe Free Exercise Clause? We find that itdoes not.

3. I could be argued that we might uphold thestatutes insofar as they permit James Zobress toreceive the services of a state-paid Interpreterduring 'secular" subjects, prohibiting only thepresence of the interpreter during religionclasses and mass. While we do not find itotherwise necessary to discuss the third part ofthe Lemon test, we do note that such a solutionwould place this case within the "Catch 22" inwhich "the very supervision of the aid to assurethat it does not further religion renders thestatutc invalid." Bouren . Kendrick. 487 US.59. 615. I0 S.C1. 2562. 257. 101 I d.2d 520(1988). Were we to uphold aid to the Zobrcsts

181 The government places a burden onan individual's free exercise rights when itforces the individual to choose betweesadhering to her religion, thus forgoingstate provided benrefits, and abandoning areligious precept in order to receive thosebenefits. Sherbert i. Verner, 3174 U.S.398, 404, 83 S.CL 1790, 1794, 10 LEd.2d965 (19631). The imposition of such a bur.den violates the Free Exercise Clause unless it is justified by some compelling stateinterest. Id., 374 U.S. at 406, R3 S.Ct. at1795. Thus, in Sherbert v. Verner, theSupreme Court held that South Carolinsacould not deny unemployment compeass.tion (o a member of the Seventh Day Ad-ventist church because she refused to ascept any job which required her to work oSaturday, her faith's Sabbath. it, 374U.S. at 404, 83 S.CL at 1794. South Carolina sought to justify its restriction eabenefits as a means of conbatting fraud;however, the Supreme Court rejected thisargument, noting that there was no e4dence of fraud, nor had the state demon-strated that it could not accomplish its goalby some less restrictive means. Id., 314U.S. at 407. 83 S.Ct. at 1705-96.

191 Here. denial of aid to the Zobrestadoes impose a burden on their free exerciserights. They will have either to forgo asectarian education for James in order toreceive the assistance of a sign languageinterpreter for him at school, or they willhave to pay the cost of the interpreter'sservices themselves, while keeping him atSalpointe.

However, a compelling state interestjustifies the imposition of this burden. Thegovernment has a compelling interest Is

under these conditions. ihe government woulsbe required to monitor closely the interpreta'sactivities to ensure that assisiance was not previded at prohibited times. Moreover, ss l-glous instruction at Salpoinle is not limiled iespecific classes. but pervades the entire currk-ulum. this monitoring would be the kind df*comprehensive, discriminating and contisuingstate surveillance." Lemon, 403 US. at 619 91S.Ci. at 2114. the Establishment Clause condemns. See Mee& r. ittenger, 421 US. at 369-72. 95 S.CI. at 1765-67 (discussing enanglemeeproblems created by need so ensure that "Icach-ers play a strictly nonlieological role").

ZOBREST v. CATALINACheo as t Fad

ensuring that the Establishment Clause isnot violated. Goodall, 930 F.2d at 370; seealso Doe V. Village of Crestwood, Ill., 917F.2d 1476 (7th Cir.1990) (affirming grant ofinjunction against mass during public festi-val held in public park; government cannotconvey the message that it in endorsingreligion). It is difficult fo imagine a moreeompelling interest than avoiding a viola-tion of the Constitution. Likewise, here,there is no "less restrictive means" bywhich the state may accomplish that goal.

Thus, the refusal to provide James Zo-brest with a state paid sign language inter-preter while he attends a sectarian highschool does not violate the Free Exerciseclause.,

The judgment of the district court isAFFIRMED.

TANG, Circuit Judge, Dissenting:"Justice," Judge Learned Hand once ob-

served, "is the tolerable accommodation ofthe conflicting interests of society." Fewcases more aptly demonstrate the truth ofJudge Hand's words than the appeal beforeas now. For the efforts of the Zobreatfamily to educate their deaf son in a man-ner compelled by their religious faith re-quire us to engineer a delicate constitution-al balance between the competing goals offreedom of religion, separation of churchand state, and equal educational opportuni-ties for the handicapped. The Zobrestshave presented us with a ponderous consti-tuitional conundrum, made worse by theopacity of First Amendment jurisprudence.Given the competing values at stake, I can-not fault the majority's resolution of thiscsse. I can state only that I disagree. Ibelieve that the state's provision of a signlanguage interpreter to James Zobrest forhis studies in a Catholic high school wouldnot transgress the First Amendment's pro-hibition against the establishment of reli-

6. The Zobrests also argue that denying JamesZobrest the assistance of a sign language inter-preter would violate the Equal ProtectionClause. As our analysis above makes clear, Inthis contet the Free Exercise clause does notprovide a fundamental right for the Zobests:they have no entillement to slate suppori forJames' religious education In the form they

FOOTHlILLS SCHOOL DIST. 1197190 (9ihCar. 1992)gion. I would therefore reverse the judg-ment of the district court.

DISCUSSION

I. The Establishment ClauseState action impacting religion will sur-

vive an Establishment Clause challenge ifthe action (1) has a secular legislative pur-pose; (2) has a principal or primary effectthat neither advances nor inhibits religion;and (3) does not excesdively entanglegovernment with religion. leron r.Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct.2105, 2110-11 (1971).

A. Secular Legislative Purpose

I agree with the majority's conclusionthat the federal Education of the Handi-capped Act ("EHA"), 20 U.S.C.I 1401(a)(1), and its Arizona counterpart,Ariz.Rev.Stat J 15-761(G), pass the firstleg of the Lemon test because they havesecular legislative purposes. That the aidprovided under the program would on thisoccasion benefit religion or religious exer-cise does not preclude a finding of secularpurpose. In Wittcrs v.a Washington Deptof Servs. for the Blind, 474 U.S. 481. 485-86, 106 S.Ct. 748, 750-51, 88 L.Ed.2d 846(1986), the Supreme Court held that edu-cational assistance provided by the state tovisually handicapped students served a val-id secular purpose, despite its application inthat particular instance to a religious insti-tution. Washington's effort "to promotethe well-being of the visually handicappedthrough the provision of vocational rehabil-itation services" constituted a legitimategovernmental interest and goal. Id. Thefact that some small portion of the state'sfunds ultimately flowed to a religious insti-tution did not undercut the laudatory sec-ular purpose of the law. Id. at 486, 106S.CL at 751.

seek. Nor can the Zobrests show that the staestreatment of James Zobrest is subject to stiiciscrutiny because he is a member of a protectedclass. The slate's refusal to send a stai-paidinterpreter Into a religious school is rationallyrelated to Its goal of avoiding a violation of theFirst Amendmteot. Thus. the Zobresis EqualProtection argument must fail.

1198 963 FEDERAL REP

Similarly, in Mueller v. Alen, 463 U.S.388, 103 S.CL 3062, 77 L.Ed.Zd 721 (1983),the Supreme Court held that a state's deci-alon to defray by means of a tax deductioneducational expenses incurred by parents"evidences a purpose that is both secularand understandable." Id. at 395, 103 S.CLat 3067. The Court reasoned that:

An educated populace is essential to thepolitical and economic health of any com-munity, and a State's efforts to assistparents in meeting the rising cost ofeducational expenses plainly serves thissecular purpose of ensuring that theState's citizenry is well-educated.

Id.; see also Hunt v. McNair, 413 U.S.7134,741, 93 S.CL 2868. 2873, 37 LEd.2d 923(1973) (the issuance of revenue bonds toassist all colleges in constructing and fi-nancing projects has a valid secular pur-pose because the legislature intended toprovide its youth "'the fullest opportunityto learn and to develop their intellectualand mental capacities' ") (quoting S.C.CodeAnn. J.22.41 (Supp.1971)).

Because government has a valid secularinterest in cultivating the talents and skillsof handicapped children and in removingharriers to the achievement of their fullacademic potentii, I agree that neither thelf1A nor its companion Arizona law has as

its purpose the endorsement or promotionof religion.

B. Primary EffectState actions run afoul of the second

branch of the Lemon test if they "result( Iin the direct and substantial advancementof religious activity." Meek . Pittenger,421 U.S. 349, 360, 95 S.Ct. 1753, 1764, 44LEd.2d 217 (1975). On the other hand, theEstablishment Clause will tolerate mea-sures that only indirectly impact upon reli-gion. Committee for Pub. Edur. & Reli-gious Liberty v. Nyquist, 413 U.S. 766,771, 93 S.Ct. 2955, 2965, 37 LEd.2d 948(1973) ("[NIot every law that confers an'indirect,' 'remote,' or 'incidental' benefitupon religious institutions is, for that rea-son alone, constitutionally invalid.").

The majority holds that the provision of asign language interpreter to James Zobres

ORTER, Id SERIES

is unconstitutional because it would havethe primary effect of advancing religion.The majority raises the specter of a sym-bolic union of church and state, and dis-misses as inapplicable cases in which sim-ilar general educational welfare programshave passed constitutional muster.

I strongly disagree with the majority'sinterpretation of the relevant precedentsand fear that they have exalted form oversubstance at the expense of handicappedchildren.

In arguing that the provision of an inter-preter would have the primary effect ofadvancing religion, the majority erroneous-ly focuses on the specific use to which theaid will be put in this case. The properquery is whether the program as a wholehas the proscribed primary effect of advancing religion. In Witters, a blind stu-dent sought to apply Washington's voca.tional rehabilitation assistance to his reli'gious studies at a private Christian college.The Supreme Court held that the primaryeffect prong of the Lemon test did notforbid the aid. In so holding, the SupremeCourt analyzed the entirety of Washing-ton's educational assistance for the handi-capped program. Wilters, 474 U.S. at 481-88. 100 S.Ct at 761-62; see also id. at 492,106 S.CL at 764 (Powell, J., concurring)(analysing whether program aids religiononly in context of particular case beforethe court "conflicts both with commonsense and precedent").

Similarly, in Mueller, the Supreme Courtfocused not on whether the tax exemptionat issue actually permitted the particularparents to send their children to religiousschools. Rather, the Court looked to thebroad class of beneficiaries of the exemp-tion, which included all parents of school-age children, whether enrolled in public ornonpublic schools, and concluded that" ft]he provision of benefits to so broad aspectrum ... is an important index of seeular effect.'" 463 U.S. at 397, 103 S.CL st3068 (quoting Widmar v. Vincent, 454 U.S263, 274, 102 S.Ct. 269, 271, 70 b.Ed.2d 440(198 1)); see also Board of Educ. v. Allen,392 U.S. 236, 243-44, 88 S.Ct. 1923, 1926-

t 27, 20 L.Ed.2d 1060 (1968) (the provision of

ZODREST v. CATALINA FOOTHILLS SCHOOL DIST.Che as % P.2d 1190 (9h Cir. 1902)

secular textbooks does not have as its nec-essary effect the advancement of religionbecause the overall benefits of the programextend to all school children; the Courtdoes not analyze the particular effect ofthe textbook grant on religious studentsalone); Everson v. Board of Educ., 330U.S. 1, 17-18, 67 S.CL 504, 512-13, 91 LEd.711 (1947) (same-with respect to transpor-tation to school). Indeed, the use of theword "primary" in the test connotes a sur-vey of the legislation's total operation.rather than its particular application in thepending case.

I recognize, as does the majority, thatthe Supreme Court has not always beenconsistent in applying the primary effecteleat. In Hunt, 413 U.S. at 742, 93 S.CL at2874, the Supreme Court considered theparticular application of a governmentalprogram, rather than its general operation,in assessing primary effect. See also Doro-en v. Kendrick, 487 U.S. 589, 602, 108 S.Ct.2562, 2570-71, 101 L.Ed.2d 520(1988). Giv-en how closely analogous the Witters caseis to the one at hand-both involve themonastitutionality of general educationalbenefits programs for the handicappedwhen applied to religious schools-the pri-mary effects test Villers prescribes shouldgovern this case. But even assuming thatthe narrow primary effect test imposed hythe majority were correct, I would still holdthat the provision of a sign language inter-preter to James Zobrest does not have theprimary effect of advancing religion. Inholding otherwise, the majority and districtcourt misread and misapply the SupremeCourt's opinions in School Dist of GrandRapids v. Ball, 473 U.S. 373, 105 S.CL3218, 87 LEd.2d 267 (1985) and Meek v.Pittenger, 421 U.S. 349, 95 S.CL 1763.Those cases differ in four significant waysfrom the one at hand.

First, the legislation at issue in GrandRapids and Meek was not the type of gen-eral welfare legislation involved here.Grand Rapids and Meek involve aid pro-grams targeted solely to private schools-the vast majority of which, the SupremeCourt emphasized, are sectarian. GrandRapids, 473 U.S. at 384, 105 S.CL at 3222(forty out of forty-one of Grand Rtapids's

1199nonpublic schools "are identifiably reli.gious schools"); Meek, 421 U.S. at 364, 95S.CL. at 1762-63 (more than 75 percent ofPennsylvania's nonpublic schools "arechurch-related or religiously affiliated edia-cational institutions"); sec also PublicFunds for Public Schools r Marburger.358 F.Supp. 29 (D.N.J.1973) (three-judgecourt), affd memt., 417 U.S. 961, 94 S.Ct.3163, 41 LEd.2d 1134 (1974). In otherwords. the Supreme Court considers theidentification of legislation's primary hene-ficiary to be a critical consideration ins de-termining whether a statute's primary ef-fect is to benefit religion. See TexasMonthly, Inc. w Bullock, 489 U.S. 1, 10-It. 109 S.Ct 890, 897-98, 103 L.El.2d 1(1989) (plurality) (general programs of gov-ernmental assistance promoting legitimatesecular goals do not have the primary ef-fect of advancing religion even if they re-lieve religious groups of costs they wouldotherwise incur programs targeted exclu-sively to religious entities, however, areprobably unconstitutional).

General welfare programs neutrallyavailable to all children, in both public andprivate schools, do not suffer the sameronstitutional disability becanuse Iheir her-fits diffuse over the entire popsulation. Ite-ligious institutions are incidental, not pri-mary, beneficiaries of such statutoryschemes. In Witters, the Supreme Courtemphasized that Washington's programprovided educational assistance to all hand-icapped students in the state "'without re-gard to the sectarian-nonsectarian, orpublic-nonpublic nature of the institutionbenefited,'" Id. at 488, 106 S.Ct. at 752(quoting Nyquist, 413 U.S. at 782-83 n. 38.93 S.Ct. at 2970 n. 38). The broad reach ofWashington's vocational assistance pro-gram guaranteed that no "significant por-tion of the aid expended tinder the Wash-ington program as a whole will end upflowing to religious education." lWitters,474 U.S. at 488, 106 S.Ct. at 762.

Likewise, the EHlA is a general welfareprogram providing benefits such as signlanguage interpretation to all handicappedchildren, whether they are enrolled in pub-lic or private school. Furthermore, the ex-

1200 963 FEDERAL REP(

pansive scope of the EHA and its Arizonacounterpart ensures that the bulk of theaid provided will be used in nonsectarianschools. Handicapped children across thecountry enrolled in public and privateschools, not religious institutions, are the"primary beneficiaries" of the EHA's andArizona law's benefits.

Indeed, in evaluating the constitutionali-ty of educational aid given only to privateschools, the Supreme Court has been atpains to distinguish cases like the one athand, where the state provides assistancebroadly to all schools, all school children, orall parents. In Meek, the Court specificallystated:

The appellants do not challenge and wedo not question, the authority of the[state] to make free auxiliary servicesavailable to all students in the [state]including those who attend church-relat-ed schools. Contrary to the argumentadvanced in a separate opinion filed to-day, therefore, this ease presents noquestion whether the Constitution per.mits the States to give special assist.ance to some of its children whosehandicaps prevent their deriving thebene/it normally anticipated from theeducation required to become a produc-tive member ofsociety and, at the sametime, to deny those benefits to otherchildren only because they attend a Lu-theran, Catholic, or other church-spon-sored school.

Id. at 368 a. 17, 95 S.Ct. at 1764 n. 17(quotation emitted) (emphasis added); seealso Wolman v. Walter, 433 U.S. 229, 248& n. 11, 97 S.Ct. 2593, 2603 & n. 11, 53L.Ed.2d 714 (1977); Nyquist, 413 U.S. at782-83 n. 38, 93 S.CL at 2970 n. 38. Be.cause the benefits provided by the EHAand Arizona law do not benefit religioutinstitutions primarily or even significantlythose cases holding unconstitutional various forms of aid given only to privateschools are not controlling here.

Second, Grand Rapids and Meek invoIved educational assistance that eithedirectly or indirectly compensated religiouinstitutions for costs they bore in thcourse of educating their students. I

ORTER, 2d SERIES

Grand Rapids, state-financed teachers appeared in private schools offering classesto private school students, thus relievingreligious institutions of the responsibility(financial and otherwise) of teaching see-ular subjects. 473 U.S. at 395-97, 105 S.CLat 3229. In Meek, the school received in-structional materials and equipment direct-ly from the state, disburdening the schoolof an otherwise necessary cost of perform-ing its educational function. 421 U.S. at8654, 95 S.CL at 1763-64.

The provision of a sign language inter-preter, on the other hand, would not resultin state funds directly or even indirectlyflowing to Salpointe. The public SchoolDistrict, not the private school, employsand pays the interpreter. The provision ofan Interpreter, moreover, would not rollersSalpointe of any preexisting financial oreducational obligation. Nothing in therecord or argument suggests that, withoutstate aid, Salpointe Itself will undertake theburden of employing an interpreter forJames. To the contrary, James's parentshave independently hired an interpreterpending the outcome of this litigation.

Third, in Grand Rapids and Meek, thestate, by virtue of its legislation, affirms-tively directed educational assistance to religious institutions. By contrast, to theextent Salpointe benefits at all from theEHA program, it does so only as a conse-quence of independent decisionmaking bythe Zobrests. It is because the Zobresta'chose to enroll James in a Catholic highschool, and not because of any legislativedecree, that EHA benefits will be employedin a sectarian environment "The historicpurposes of the [Establishmenti Clausesimply do not encompass the sort of attenu-ated financial benefit, ultimately con-srolled by the private choices of individu-al parents, that eventually flows to paro-chial schools from the neutrally available... benefit at issue in this case." Mueller,463 U.S. at 400, 103 S.CL at 3070 (emphasisadded).

r In Witters, the Supreme Court founda constitutionally significant the fact that re-e ligious institutions would receive vocationals assistance "only as a result of the genuine-

ZOllREST v. CATALINA FOOTHILLS SCHOOL DIST.Cli. " 963 1F.d I190 (9d t r. 1992

ly independent and private choices of aid (1990) (public high school facrecipients" to attend a religious educational used for meetings of religiouinstitution. 474 U.S. at 487, 106 S.CL at because "scndary school751. The Supreme Court noted that Wash- mature enough and are ukington's vocational assistance program stand that a school does nmade funds available generally. Id. The support speech that it merelypupil-not the state-determined whether nondiscriminatory basis").a religious institution would receive any of The majority places unduethe available funds. There, as here, the the fact that the interpreterstate created no incentives for students to employee, will perform.hcrselect sectarian schools and played no role sectarian classroom. Thein the decisionmaking process that ulti- ment, however, does not abanmately determined where the funds would te placement of state-paidbe spent Id. at 488, 106 S.CL at 751-52. religious schools. See Woll

Under the EHA and Arizona law, neither at 241-44, 97 S.ct. at 2602-the state nor religious bodies can dictate provide health diagnostic tedwhether, or how much, aid will benefit sec- rocial schools). Nor dotarian institutions. According to the rele' Amendment strictly foreclosevant statutory provisions, the sign lan- of classroom services by teguage interpreter is an employee of the upheld the provision of textlocal school district. The sectarian school chial school children despitenever receives or even sees the funds used the books' themes would provto hire the interpreter. The only persons for religious lessons. 392 Udirectly benefiting from the aid are the 88 S.Ct at 1926-27. Witteparents, who are relieved of the financial further and authorized theobligation of paying for a sign language funds to pay a student's tuiInterpreter out of their own pockets, and of ious institution, thereby ccourse the deaf student Any indirect ben-efit enjoyed by Salpointe would be attribut- the salaries of sectarian insable solely to the Zobresta' independent True, the money in I'ittersdecision to apply neutrally available state the student and then to the scOtid to their son's education in a sectarian in this case the money goesIschrool, and not to any "State action spon- directly to the interpretersoring or subsidizing religion." Id. at 488- Amendment rights should n89, 106 S.CL at 751-s2 (emphasis in origi t how circuitous a money traas). ment constructs. Rather, el

Fourth, unlike Grand Rapids, 473 U.S.at 385, 105 S.CL at 3223, no symbolic unionof church and state inheres in the simpleact of paying the salary of a sign languageinterpreter. The role played by the inter-preter is narrow, isolated, and unique. Pri-vate teachers ani students, not the inter-preter, will be the source of religious doc-trine. The state, for its part, is simplyfacilitating the education of handicappedstudents on a general and nondiscriminato-ry basis. That the state's resources will beused to convey sectarian as well as secularideas does not necessarily create an imper-missible union of church and state. CfBoard of Educ. v. Mergens, 496 U.S. 226,250, 110 S.Ct. 2356, 2372, 110 L.Ed.2d 191

1201

cilities may bes clubs in partstudents are

ely to under-ot endorse or

permits on a

emphasis ona state-paid

services in aFirst Amend-lutely prohibit

personnel in

main, 433 U.S.03 (state mayhnicialns to pn-es the 'irt

tire provisionlstate. Allent

books to paro-the risk thatide the fodder.S. at 243-44.rs went evenuse of stale

tion at a reli.ontributing totructors.

went first tohool. whereasfron the state. But Firstot depend onil tire govern-e constitution-

ality of extending generally-available bene-fits to parochial students should be deter-mined by reference to the substantive na-ture and quality of the aid provided. Func-tional analysis, not formalistic line-draw-ing, must be undertaken. A careful studyof the nature of the sign language inter-preter's task belies the majority's concernsabout a symbolic union of church and state.

A sign language interpreter performs amechanical service, changing words fromone language into another. An interpreterneither adds to nor detracts from the mes-sage she conveys, nor does she interjectpersonal views and philosophies into thetranslation. Unlike teachers and thera-pists, the sign language interpreter is a

1202 963 FEDERAL REPORTER, 2d SERIES

technical facilitator of communication, nota potential fount of religious doctrine.

I do not understand the majority to saythat the First Amendment would be offend-ed by the state's provision of a hearing aidor eyeglasses to a parochial school student.Yet these products, like an interpreter,make it possible for a physically-impairedstudent to receive and decipher religiousmessages. Perhaps we *re not far fromthe time when machines will be able totranslate oral communications into visualcues for the hearing impaired. But we arenot there yet Consequently, because ofthe nature of his handicap, James Zobrestrequires human, rather than purely me-chanical, assistance in the classroos. Butthis distinction should not obscure our eval-uation of the nature of the service beingperformed. A sign language interpreterremains, like a hearing aid, a conveyor, andnot an Independent source, of communica-tion. Under the circumstances of this case,I do not consider the step from a hearingaid to a sign language interpreter to be adifference of constitutional magnitude.

Further undercutting the majority's sym-bolic union concern is a recognition that theinterpreter's role in the classroom touchesonly one student She will not be involvedat all in the education of the rest of thestudent body. Students and the public arethus not likely to be confused by or to havetrouble understanding where the state ser-vice ends and the religious begins. CfGrand Rapids, 473 U.S. at 391, 105 S.CLat 3226 ("[S]tudents would be unlikely todiscern the crucial difference between thereligious school classes and the 'publicschool' classes.").

That the interpreter's appearance in aCatholic school is wholly attributable to theindependent decisionmaking of the parents,rather than the actions of the state, furtherundercuts any symbolic union of the twoentities. Witters, 474 U.S. at 488-89, 106S.CL at 762 ("Nor does the mere circum-stance that petitioner has chosen to useneutrally available state aid to help pay forhis religious education confer any messageof State endorsement of religion."). Infact, the withholding of vital assistance

from a handicapped child solely because ofhis sincere religious desire to be educatedin a Catholic school would evince hostility,not neutrality, towards religion. "The Es-tablishment Clause does not license govern-ment to ... subject (religious practitioners]to unique disabilities." Mergens, 496 U.S.at 248, 110 S.CL at 2371 (quoting McDanielt. Paty, 435 U.S. 618, 641, 98 S.CL 1322,1335, 55 1.Ed.2d 693 (1978) (Brennan, J.,concurring in judgment)).

Rather than suggest an impermissibleconnection between church and state, theprovision of an interpreter would simplydemonstrate to the public the government'sdesire to equalize the educational opportu-nities of all its students and to help handi-capped students overcome barriers to theirfull academic development Such aid isreligion-blind.

For the foregoing reasons, I would holdthat the provision of a sign language inter-preter, under the EHA and Arizona law, toa student enrolled in a religious school doesnot have the primary effect of advancingreligion.

C. Escessive EntanglementThe third inquiry prescribed by Lemon is

determining whether excessive entangle-ment results from the government's pro.gram. To decide whether the provision ofa sign language interpreter would suffi-ciently enmesh the government in religiousmatters to offend the EstablishmentClause, one must assess carefully the in-terrelationship of church and state that re-suits when such assistance is provided astudent

The district court ruled that state super-vision of the interpreter and the nature ofher task would unconstitutionally entanglethe state in Salpointe's sectarian education-al process. The district court noted that,like the therapists whose services were de-clared unconstitutional in Wolman, 433U.S. 229, 97 S.CL 2593, the sign languageinterpreter enjoys close, day-to-day contactwith the student in a pervasively religiousatmosphere. Id at 247-48, 97 S.CL it2605. The Supreme Court in Wolman fellthat this created a danger that "the pres-

ZOBREST v. CATALINA FOOTHILLS SCHOOL DIST.Oat*96 F.d I190 (91Cir. 19) 1203lures of the environment might alter [the Such supervision standing alone does nottherapist's) behavior from its normal create constitutionally intolerable levels ofcourse" and result in the transmission of state/church involvement. The Constitu.Ideological view. i at 247, 97 S.Ct at tion will tolerate limited supervisory itters~a0ml. Th~en itirictscourt pterceived the actions between public officials and private'sie rsk n tis ase Athough the ma- schools. In l~oltuan, the Suptremte Courtjority does not reach the entanglement held that the state's rovision of diagnosticstage of the Lemon test, I discuss it to health services to private school studentsdemonstrate the constitutional propriety of slid not transgress the Establishmentaffording ElA benefita to parochial ptu- Clause because the. program resulted inldents. only limited contact between public offi-In reviewing the district court's deciaion, cials, religious officials, anti students. 4:13I turn first to the question whether super U.S. at 244, 97 S.Ct. at 2603. Likewise, invision of the interpreter's job performance Mueller, the Supretme Court sustained awill require the government to intrude un- tax exemption despite thte fact that it re-constitutionally upon Salpointe's religious quired public officials to determine whetheraffairs. Next, I address whether the textbooks promoted religious thenes. 463process of sign language interpretation it. U.S. at 403, 103 S.Ct. at 3071. Such care-self impermissibly involves a state-paid em. fully channeled interactions do not rise toployee in matters of religious doctrine. It the level of excessive entanglement. Seeshould be emphasized at the outset that the also Hernandes v. Commissioner, 490mere existence of some interrelationship U.S. 680, 696-97, 109 S.Ct. 2136, 2147, 104and cooperation between the School Dis. L.Ed.2d 766 (1989) ("[R11outine regulatorytrict and Salpointe will not run afoul of the interaction which involves no inquiries intoFirst Amendment. It is only "excessive" religious doctrine, no delegation of Stateentanglement that the Constitution con- power to a religious body, and no detaileddemns. Lemon, 403 U.S. at 613, 91 S.CL monitoring and close administrative contactat 2111; ef Texas Monthly, 489 U.S. at 10, between secular and religious bodies does09 S.CL at 897 ("Government need not not of itself violate the nonentanglementresign itself to ineffectual diffidence be- command.") (quotation and citations omit-ause of exaggerated fears of contagion of ted); Allen, 392 U.S. at 245. 88 S.Ct. atr by religion, so long as neither intrudes 1927 (officials may label textbooks as sec-nduly into the affairs of the other.") ular or sectarian).

1

(emphasms added).

I Supervision

Both parties recognsize that the provisionof a publicly-funded Sign language inter-Preter necessarily carries with it the bag-gage of supervision by public officials.The interpreter will receive periodic evalua-tions of the quality of her work. TheSchool Distriet's special education officialswill also need to review at least annuallyJames's educational progress.L The supervisory entanglemeni concerns raisedbY this case thus do not follow She norm. Timesupervision at issue in an entanglement Inquiryfrequently perlains to the government's at.tempts to ensure that its aid is being used onlyfor secular purposes. See, e.g., Aglaitar P. Fehon473 U.S. 402, 411, 105 SCi. 3232, 3237. 87Ld.2d 290 (1985); Mueller 463 U.S. at 403.

Supervision limited to evaluating the signlanguage interpreter's job performance

does not involve the type of day to day."comprehensive, discriminatory and con-tinuing state surveillance" that Lcnon pre-cludes. 403 U.S. at 619, 91 S.Ct. at 2114.The School District does not suggest thatpublic officials will appear daily, weekly, oreven monthly in the classroom as part oftheir supervisory work. No extra snpwrvi-sion is needed simply because the interpet.er works in a sectarian school.'

103 Sd3. at 3071; Icnon, 403 U.S. at 616, 91s. lates. Ini tis casc, however. the sttvi.

seon relates only to review of a public employ.

es performance. As in Winers, it is a given in

his case that the states assisiance cannot be

confined to a wholly secular role and inll. in

instr Penit the recipient to rceve vcligimo'tstvcliun The sui~ervisiott at isinibuns

1204 963 FEDERAL REPORTER, 2d SERIES

Evaluations of the interpreter's work,moreover, will not routinely or necessarilyinvolve the supervising officials in religiousmatters. Nor does the supervision involvethe sheer number of public officials Inun-dating religious establishments that oc-curred in other cases. The services at is.sue here, after all, will not be provided tothe entire student body. The number ofdeaf children enrolled in a single parochialschool at any given time will be sufficientlylow to avoid visiting large numbers of stateofficials upon the institution. Thus the su-pervision of James's interpreter will notimplicate religious concerns to the sameextent as other Establishment Clause caseshave.

I would therefore hold that the church/state contacts involved in supervising asign language interpreter's job perform-ance are sufficiently contained and abbrevi-ated to prevent excessive entanglement

2. Nature of the JobThe second entanglement inquiry con-

cerns the nature of the sign language Inter-preter's task. The parties stipulated that,as a general matter, the interpreter's codeof ethics obliges her to translate communi-cations completely, without altering, edit-ing, or revising in any manner the contentof the message. It is conceded that attimes the interpreter will be unable to af-fect a literal translation of a communica-tion, including religious messages. In suchcircumstances, the interpreter must use herown Judgment and, to the beat of her abili-ty, convey the message as accurately aspossible.

The nature of the interpreter's role in theclassroom does not entail excessive entan-glement between a state-paid employee andthe church. As noted earlier, the FirstAmendment does not strictly forbid theplacement of any public employee in a paro-chial school classroom. Wotman, 433 U.S.at 241-44, 97 S.Ct. at 2602-03. While theCourt has ruled that the presence of state-

avoids ihe Catch-22 that occurs when the Esat-lishment Cladise, on the one hand. requires as-surances thai aid does not promote sectarianpurposes and, on lite other hand, uses thai very

financed teachers and therapists or coun-selors in parochial schools offends the FirstAmendment, Grand Rapids, 473 U.S. at387, 105 S.CL at 3224; Meek, 421 US. at369-71, 95 S.CL. at 1766-66, the concernsanimating those holdings do not obtain Inthis instance.

The primary entanglement concern articulated by the Supreme Court in GrandRapids and Meek is an apprehension thatthe pervasively religious atmosphere Inwhich the professionals work is likely toinfuse their teaching or advice with somereligious content Grand Rapids, 473 U.Sat 387, 105 S.CL at 3224 ("(Tlhere is asubstantial risk that, overtly or subtly, thereligious message they are expected to con-vey during the regular schoolday will in-fuse the supposedly secular classes theyteach after school. The danger arises 'notbecause the public employee [is) likely de-liberately to subvert [her or] his task to theservice of religion, but rather because thepressures of the environment might alter[her or] his behavior from its normalcourse.'") (quoting Wolman, 433 U.S. at247, 97 SC.CL at 2605); Meek, 421 U.S. at371, 95 S.Ct. at 1766; see also Wolmon,433 U.S. at 247, 97 S.CL at 2605 ("[U]nlikethe diagnostician, the therapist may estab-lish a relationship with the pupil in whichthere might be opportunities to transmitideological viiews."); Lemon, 403 U.S. at618-19, 91 S.CL at 2114 ("We simply recog.nize that a dedicated religious person ...will inevitably experience great difficulty inremaining religiously neutral.... Withthe best of intentions such a teacher wouldfind it hard to make a total separationbetween secular teaching and religious doc.trine.").

Unlike teachers and thernpists, a signlanguage interpreter's job admits of few, ifany, opportunities for the transmission orfostering of personal sectarian sentiments.While recognizing that working as a signlanguage interpreter is both difficult andchallenging, the Interpreter's services aredistinctly more cabined than those of a

supervision to Invalidate the program on enlan-glement grounds. See Bowan, 487 U.S. at 615,108 S.C. at 2577.

ZOBREST v. CATALINA FOOTHILLS SCHOOL DIST.Cheast. " d 190 (t hCtr. &99Z)

teacher or therapist. James's interpretersimply takes a message conceived and ut-tered by one person and neutrally trans-lates it into a comprehensible form for asecond person. The expressions and in-struction, religious or not, neither originatenor terminate with the interpreter. As thedistrict court noted, she is just a conduitUnlike teachers and therapists, her func-tion does not entail the discretion to intro-duce her own independent or subjectivejudgments and opinions, to speak her ownwords, or to transmit her own ideas. Ratl-er, the interpreter performs the more me-chanical and objective'task of searching forsigns that equate with spoken words, anivice versa. The scientific, technical natureof sign language interpretation thus moreclosely approximates the services of aspeech and hearing diagnostician, than of ateacher.

Occasionally, it is true, non-literal trans-lations will have to be made. But even inthese narrow instances, the interpreter'srole remains confined to a technical searchfor words and signs that closely approxi-mate each other. I do not believe that theminimal discretion inhering in such deci-sions creates an unconstitutional risk thatthe interpreter will use the opportunity toconvey her own religious ideas, in violationof her professional ethical obligation totranslate accurately.

In sum, I believe that the provision of asign language interpreter to James Zobrestunder the EHA and Arizona law would notunconstitutionally entangle the state in reli-gious affairs. A careful review of the con-cerns animating the Supreme Court's FirstAmendment precedents, a thoughtful studyof the nature of an interpreter's services,and due respect for the purpose and effectsof educational assistance to handicappedchildren dictate the conclusion that the pro-vision of a sign language interpreter to adeaf child enrolled in parochial school doesnot result in an unconstitutional fusion ofthe secular and the sectarian.

L The panies have not argued tha the (cderalgovernmnms desire to separate church andstate constitutes a compelling interest over-riding lhe Zobrcsts' free exercise rights. Accordingly. I do not address either the applicabil

1205

II. The Free Exercise Clause

I agree with the majority's conclusionthat denying the Zobrests a sign languageinterpreter unconstitutionally burdens theirfree exercise of religion.

However, because I do not believe thatthe provision of a sign language interpreterin this case violates the EstablishmentClause of the federal Constitution, I wouldhold that no compelling intgrest justifiesthe state's withholding of benefits. To theextent the School District has an interest inseparating church and state further thanrequired by the First Amendment, that in-terest must yield to the Zohrests' free exer-cise rights. "ITIhe State interest assertedhere-in achieving greater separation ofChurch and State than is already ensuredunder the Establishment Clause of the Fed-eral Constitution-is limited by the FreeExercise Clause." Widmar, 454 U.S. at276, 102 S.Ct. at 277. The Zobrests' freeexercise rights would also override any ad-ditional anti-establishment constraints im-posed by the Arizona constitution. Id. at276-76, 102 S.Ct. at 277-78. The SchoolDistrict has articulated no other reason orinterest in withholding aid from the Zo-breats.'

CONCLUSION

Almost twenty years ago, the SupremeCourt observed that

the transcendent value of free religiousexercise in our constitutional schemeleaves room for "play in the joints" tothe extent of cautiously delineated ser-ular governmental assistance to religiousschools, despite the fact that such assist-ance touches on the conflicting values ofthe Establishment Clause by indirectlybenefiting the religious schools....

Norwood v. Harrison, 413 U.S. 455, 469, 93S.CL 2804, 2813, 37 L.Ed.2d 723 (1973).

ily or constitutionality in this coniexi of thefederal prohibilion on the use of EIIA funds forreligious "worship, instruction. or proselymra-lion." 34 C.F.R. § 76.532 (1991)

1206 963 FEDERAL RE

With this statement, the Court capsulizedthe lessons of nearly two centuries of expe-rience interpreting the First Amendment'sreligion clauses. Rigid enforcement of oneclause generally comes at the expense ofthe other. Only through the careful ac-commodation of evolving constitutionalconcerns and values-through "play in thejoints"--can these competing preceptsachieve their common goal of preservingfreedom of religion.

I believe that the provision of a signlanguage interpreter to a deaf child en-rolled in parochial school constitutes such"cautiously delineated secular governmen-tal assistance." Governments provision ofthis general welfare benefit to all qualify-ing school children equally does not createan impermissible establishment of religion.On the other hand, singling out for exclu-sion from this benefit program only thosestudents engaged in religious conduct com-pelled by conscience does offend the FreeExercise Clause.

COMMUNITY HOSPITAL OF CIIAN-DLER, INC., an Arizona Corporation,d/b/a Chandler Regional Hospital.Plaintiff-Appellant.

T.

Louis W. SULLIVAN, M.D., In his officialcapacity as Secretary of the UnitedStates Department of Health and Hu-man Services, Defendant-Appellee.

No. 90-16331.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted Feb. 11, 1992.Decided May 4, 1992.

Hospital sought review of administra-tive decision by Health Care Finance Ad-ministration determining that hospital was

'ORTER, 2d SERIES

not entitled to Medicare reimbursementpayment under new "federal" rate. TbeUnited States District Court for the Dis-trict of Arizona. Earl H. Carroll, J., 744F.Supp. 203, granted motion for summaryjudgment by Secretary of Health and Hu-man Services. Hospital appealed. TheCourt of Appeals, D.W. Nelson, CircuitJudge, held that: (1) Department's determi-nation that new state-of-the-art facility towhich hospital's operations had been trans.ferred was not a "new hospital" withinmeaning of regulation did not frustratecongressional intent to ease hospitals' tran-sition from cost-based reimbursement toProspective Payment System (PPS); (2)Medlicare Act definition of "hospital" andprovisions dealing with PPS reimbursementanticipated that hospital could be "facility"for some purposes and "institution for oth-ers"; and (3) Secretary should have adjusted hospital's base year costa to take intoconsideration the radical shift in its operat-ing costs.

Reversed and remanded.

1. Federal Courts 4-776District court's grant of summary

judgment is reviewed de novo.

3. Administrative Law and Procedure4386

Agency's regulations must be consistent with overall intent behind statute.

. Soctal Security and Public Welfare4-241.10

Determination of Secretary of Healthand Human Services, that new state-of-the-art facility to which hospital's operationswere transferred was not a "new hospital"within meaning of regulation for Medicarereimbursement purposes, did not frustratecongressional intent to ease hospitals' tran-sition from cost based to Prospective Pay.ment System (PPS) reimbursement. SocialSecurity Act, J 1801 et seq., as amended,42 U.S.C.A. I 1396 et seq.

4. Social Security and Public Welfare*=241.5

Medicare Act definition of "hospital"and provisions of Act dealing with Prospec.

COMMUNITY HOSP. OF CIIChm.e Fad I

live Payment System (PPS) reimbursementanticipate that hospital can be "facility" forsome purposes and "institution" for others.Social Security Act, It 1801 et seq..1861(e), as amended, 42 U.S.C.A. I§ 1395 etseq.. 1395x(e).L Social Security and Public Welfare

-241.10Secretary of Health and Human Ser-

vices should have adjusted base year costof hospital seeking Medicare reimburse-ment tn take into consideration the radiclshift in its operating costs resulting fromtransfer of its operations to new state-of.the-art facility. Social Security Act,I 18R(b)4)(A), as amended, 42 U.S.C.A.I 13Diww(b)4XA).

Patrick K. O'Hare, Amy E. Hancock,McDermott, Will, & Emery, Washington,D.C., and Douglas Gerlach, Brown & Bain,Phoenix, Ariz., for plaintiff-appellant

Stuart Gerson. AssL Atty. Gen., JamesP. Loss, Asst. U.S. Atty., Phoenix, Aria.,Lawrence M. Meister, Office of the Gen.Counsel, Dept. of Health and Human Ser-vices, Baltimore. Md., for defendant-appel-lee.

Appeal from the United States DistrictCourt for the District of Arizona.

Before: FLETCHER, D.W. NELSONand FERNANDEZ, Circuit Judges.

D.W. NELSON, Circuit Judge:

OVERVIEWUntil 1984. Chandler Community Hospi-

tal operated in a single-istory. 46-hed.small-scale facility. That year, the originalfacility was closed down and the operationwas transferred to a brand-new, four-story,120-bed, state-of-the-art facility that hadbeen constructed at a nearby location. Thenew facility was renamed "Chandler Re-gional Hospital," but it kept the same ti-censes as the old facility; it was alsoowned and operated by the same individu-als. The new facility had substantiallyhigher per-patient operating costs than theold facility.

ANDLER, INC. v. SULLIVAN201 th01. 6992)

1207This case raises two questions. First, we

must decide whether, for the purpose ofcalculating Medicare reimbursements, theSecretary of Health and Human Services'("the Secretary") determination (iat thenew facility is not a "new hospital" withinthe meaning of 42 C.P.R. § 412.741a)(1)frustrates the Congressional intent behindthe Medicare Act. Second, we must deter-mine whether, if the interpretation of thenew hospital regulation was valid, the See-retary was nonetheless required. under 42U.S.C. § 1395ww(b)(4)(A), (o otherwisne :ljust Chandler's reimbursement rate to lakeinto consideration the radical shift in ilsoperating costs.

We hold that neither 42 C.Fit. ( 412.-74(a)(1) nor the Secretary's interprelalionof that regulation to exclude Chandlerfrom characterization as a new hospitalfrustrate Congressional intent. However,we find that the Secretary erred in notadjusting Chandler's base year costs asrequired by 42 U.S.C. I 1305ww(bX4)(A),Therefore, we reverse the district court andremand this case so that the Secretary mayhave an opportunity to determine whetherand to what extent Chandler is entitled toadjustments under that provision. 744F.Sopp. 203. (D.Ariz.1990).

FACTS/PROCEDURAL BACKGROUND

Ov'ervieto of the Aedicarc ProgramIn 1983, Congress amended the Social

Security Act to change the way it reini-burses hospitals for the costs of treatingMedicare patients. Before 1983, hospitalswere reimbursed according to the actualcosts they expended in treating each Medi-care patient. Concluding that this comt-based system was inefficient because hos-pitals had no incentive to provide servicesat lower costs, Congress introduced tieProspective Payment System (PPS). Un-der PPS, hospitals receive a fixed. standardamount for each Medicare inpatient theytreat The amount of the payment is ad-justed for each patient by using "diagnosis-related groups" (DRGs), a classificationsystem based on the patient's condition andtreatment. This amount is theoretically

August 1, 1992

A-82 McNary, Commissioner. Immigrationand Naturalization Service v. Haitian CentersCouncil, Inc. The application for stay, presentedto Justice Thomas and by him referred to theCourt, is granted, and it is ordered that thejudgment of the United States Court of Appealsfor the Second Circuit, case No. 92-6144, filed

-July 29, 1992, and the subsequent July 29, 1992,order of the United States District Court for theEastern District of New York, case No. 92 CV1258, are stayed pending the filing of a petitionfor a writ of certiorari on or before August 24,1992. Should the petition be filed on or beforethat date this order is to remain in effect pendingthis Court's action on the petition. If the petitionfor a writ of certiorari is denied, this order is toterminate automatically. In the eveiL e petitionis granted. this order is to remain in effect pend-ing the sending down of the judgment of thisCourt.

Should the Solicitor General so file a petitiqnfor a writ of certiorari. respondents' response is tobe flied on or before September 8, 1992.

Justice Blackmun, with whom Justice Stevensjoins, dissenting.

An applicant for a stay pending the dispositionof a petition for certiorari faces a heavy burden.The applicant must demonstrate (1) a likelihoodof irreparable harm if the judgment below is notstayed. (2) a reasonable probability that certiora-ri will be granted; (3) a significant possibility thatthe judgment below will be reversed; and (4) thatthe balance of the equities tilts clearly in itsfavor. I do not think the government has met thelatter two conditions.

Eight federal judges have now considered theterritorial reach of 8 U.S.C. § 1253(h). Four haveconcluded that the statute does not apply ininternational waters, and four have concludedthat it does. Given the thorough and carefulreasoning of the majority and concurring opinionsbelow, I do not see how the Court can conclude atthis stage that the government's likelihood ofsuccess on the merits is any better than even. Thisis not fatal to the government's application, for ifeach party's chance of succeeding is equal, astrong showing on the equities can still carry theday for the applicant. But no such showing hasbeen made. While the government has offered avague invocation of harm to foreign policy, immi-gration policy, and the federal treasury, the plain-tiffs in this case face the real and immediateprospect of persecution, terror, and possibly evendeath at the hands of those to whom they arebeing forcibly returned. So determined the dis-trict court. to whose findings we should deferwhere the balance of equities is highly factual innature. Block v. North Side Lumber Co.. 473U.S. 1307 (1985) (Rehnquist. J.. in chambers).

I would deny the application for a stay.

PREVIEW OF THE COURT'S DOCKET

Section: Lower Court Opinions for AfternoonSession

Dunnigan v. United StatesMontana v. ImlayWilliams v. WithrowDeath Penalty Cases: Herrera v. Collins, Arave v. Creech, Grahamv. Collins, Richmond v. Lewis

91-1300 U.S. v. DUNNIGANSentencing-Federal guidelines-Sentence en-hancement based on perjury.

Ruling below (CA 4, 944 F2d 178, 60 LW2179, 49 CrL 1505):

Provision of federal Sentencing Guidelines thatenhances sentence if defendant is found to haveobstructed justice in course of his prosecution.Section 3C1.1. unconstitutionally burdens defen-dant's constitutional right to testify in his owndefense as applied to defendant's trial testimonythat adverse jury verdict implies is false.

Question presented: Does Constitution prohibitcourt from enhancing defendant's sentence underSentencing Guidelines Section 3C1.L if courtfinds that defendant committed perjury whiletestifying at trial?

Petition for certiorari filed 2/10/92. by Ken-neth W. Starr. Sol. Gen., Robert S. Muelier III,Asst. Atty. Gen.. William C. Bryson. Dpty. Sol.Gen.. Paul J. Larkin Jr.. Asst. to Sol. Gen., andAndrew Levchuk. Justice Dept. Atty.

91-687 MONTANA v. IMLAYProbation-Suspended sentence conditioned uponadmission of guilt to offense of conviction-Self-incrimination.

Ruling below (Mont SupCt, 813 P2d 979):Trial court order revoking sex offender's sus-

pended sentence on basis of his failure to enroll insex-offender treatment program, which would notadmit defendant unless he admitted guilt to of-fense. violated defendant's Fifth Amendmentright against compelled self-incrimination by sub-jecting him to additional punishment because ofhis failure to admit guilt: notwithstanding convic-tion of sex offense, following trial in which de-fendant testified and denied guilt, trial court'sorder required defendant to surrender rights to

.challenge conviction on basis of newly discoveredevidence. or by collateral attack, and requiredhim to abandon self-incrimination privilege withrespect to offense of conviction and also for crimeof perjury; defendant's sentence is vacated.

Question presented: Was state probationer'sFifth Amendment privilege against self-incrimi-nation violated by revocation of his probation forfailure to comply with condition that he completesex-offender therapy, in view of fact that success-ful completion of therapy requires probationer toaccept responsibility for crime of which he wasconvicted?

Petition for certiorari filed 10/21/91, by MarcRacicot. Mont. Atty. Gen., and Elizabeth L.Griffing, Asst. Atty. Gen.

91-1030 WITHROW v. WILLIAMSHabeas corpus-Review of state conviction-Vol-untariness of confession.

Ruling below (CA 6. 944 F2d 284):Federal district court correctly decided, con-

trary to findings of state courts, that habeaspetitioner suspected of murder was "in custody"for interrogation purposes when police officerscame to his house, searched him, transported himin unmarked police car to police station, andrepeatedly conveyed to him that his options wereto cooperate or go to jail: inculpatory statementspetitioner made after this point but before adviceof rights was given to him should have beensuppressed because of failure of police to givewarnings required by Miranda v. Arizona, 384U.S. 436 (1966): further inculpatory statementspetitioner made after receiving warnings wereresult of police officers' promises that he wouldbe freed and treated with leniency if he talkedand their threats of imprisonment if he did notand, therefore, should have been suppressed asinvoluntary. under Oregon v. Elstad, 470 U.S.298 (1985): error in admitting statements wasnot harmless beyond reasonable doubt, and,therefore. district court's grant of habeas relief isaffirmed: rule of Stone v. Powell, 428 U.S. 465(1976). which held that Fourth Amendmentclaims are not cognizable on federal habeas re-view if petitioner had full and fair opportunity tolitigate claim in state court, does not extend toFifth Amendment claims,

Qucstions prcscntcd: (I) Do federal courts onhabeas corpus review of state court convictionshave jurisdiction to find habeas petitioner's state-ment involuntary. in case in which sole FifthAmendment issue raised in state court. and inhabeas petition, was whether statement was ad-mitted in violation of prophylactic Miranda rules.state court having found that petitioner was notin custody? (2) In case in which premise of FifthAmendment ruling is finding of Miranda viola-tion. and petitioner has had one full and fairopportunity to raise Miranda claim in state court,should collateral review of same claim on habeascorpus petition be precluded? (3) If collateralreview is available in such case, is confessionfollowing warnings involuntary merely becausepolice indicate possibility of lenient treatment ifaccused tells truth, and would adoption of suchrule on habeas corpus violate principles of Saw-yer v. Smith. 58 LW 4905 (1990), and Teague v.Lane. 489 U.S. 288, 57 LW 4233 (1989)?

Petition for certiorari filed 12/12/91. by JohnD. O*Hair. Pros. Atty. for Wayne Cty., Mich..Timothy A. Baughman, Chief of Research.Training, and Appeals, and Jeffrey Caminsky,Asst. Pros. Atty.

91-7328 HERRERA v. COLLINS -

Death penalty-Claim of innocence-Habeas cor-pus-Stay of execution.

Ruling below (CA 5. 2/18/92):Claim of actual innocence, based on newly

discovered evidence, by state prisoner convictedof murder and sentenced to death does not, stand-ing alone, state claim upon which habeas reliefcan be granted by either federal habeas court orTexas habeas court, in absence of legal basis forgranting relief to prisoner on second or subse-quent petition for habeas corpus, district courtmay not stay execution in order to hold hearingon prisoner's claim of innocence. which is basedon alleged confessions that prisoner's now-de-ceased brother gave to his son and others admit-ting commission of murder of which prisonerstands convicted.

Questions presented: (I) Does it violate Eighthand Fourteenth Amendments to execute personwho has been convicted of murder but who isinnocent? (2) If so. must state courts providemeaningful mechanism for hearing claims of ac-tual innocence in death penalty cases? (3) Whatprocedures are necessary in federal court foradjudicating claims of actual innocence in deathpenalty case?

Petition for certiorari filed 2/19/92, by MarkE. Olive, of Tallahassee. Fla.

91-7580 GRAHAM v. COLLINSCapital punishment-Habeas corpus-Sentenc-ing-Mitigation.

Ruling below (CA 5 (en banc), 950 F2d 1009,50 CrL 1385):

Texas statutory sentencing scheme for capitalcases that permits jury to consider only threestatutory questions and that makes death sen-tence automatic if all three are answered "yes"by jury permits evidence of mitigating factors-such as defendant's youth at time of offense andgood character traits cited by defense in casebefore court-to be adequately accounted for.particularly by consideration of second statutoryissue. i.e.. whether there is likelihood that defend-ant would be continuing threat to society: there isno substantial evidence that conduct of habeascorpus petitioner. in this case was attributable todisadvantaged background, or to emotional ormental problems.

Questions presented: (1) May state limit cap-ital sentencing jury's consideration of 17-year-olddefendant's youth, recognized repeatedly by thiscourt as powerful mitigating factor, to answeringwhether he acted "deliberately" and might bedangerous in future, and afford no other basis fortaking youth into account? (2) May state similar-ly limit jury's consideration of such defendant'spositive character and unfortunate circumstancesof his family background?

Petition for certiorari filed 3/9/92, by MichaelE. Tigar and Robert C. Owens, both of Austin,Texas, and Jeffrey J. Pokorak, of San Antonio,Texas.

91-1160 ARAVE v. CREECHCapital punishment-Aggravating circum-stances-Vagueness-Mitigating evidence-Goodprison behavior.

Ruling below (CA 9, 947 F2d 873, 49 CrL1078):

Provision of Idaho capital punishment statutethat makes defendant's "utter disregard for hu-man life" aggravating factor is unconstitutionallyvague: state supreme court's limiting constructionthat defines aggravator as "reflective of acts orcircumstances surrounding the crime which ex-hibit the utmost, callous disregard for human life,i.e.. the cold-blooded pitiless slayer" fails to suffi-ciently objectify and channel sentencer's discre-tion as required by Maynard v. Cartwright, 486U.S. 356. 56 LW 4501 (1988): state trial judge'sfailure to expressly find "specific intent" in rela-tion to two other aggravating circumstances asrequired by state law requires vacation of convic-tion despite evidence to support such finding.capital defendant must be given opportunity atrescntencing to present mitigating evidence of hisgood conduct in prison following initialsentencing.

Questions presented: (1) Is Idaho's statutoryaggravating factor that authorizes death penaltyfor murders committed with utter disregard forhuman life unconstitutionally vague becauselimiting construction announced by Idaho Su-*preme Court does not require that factor bedefined with reference to occurrence of specifical-ly defined acts? (2) May federal court of appealsvacate death sentence by interpreting state stat-ute to require sentencing judge to make expressfinding of existence of particular factual compo-nents of statutory aggravating circumstance? (3)When death sentence is vacated by state appealscourt to correct procedural defect of state law,does U.S. Constitution require that sentencingproceedings be reopened to receive evidence ofprisoner's post-sentencing conduct in prison?

Petition for certiorari filed 1/14/92, by LarryEchoHawk. Idaho Atty. Gen., and Lynn E.Thomas, Dpty. Atty. Gen.

91-7094 RICHMOND v. LEWISHabeas corpus-Death - penalty-Aggravatingcircumstances.

Ruling below (CA 9, 948 F2d 1473):Although statutory aggravating circumstance

found and relied upon by judge who sentencedfederal habeas corpus petitioner to death-hiscommission of crime in "especially heinous. cruelor depraved manner"-is vague on its face, Ari-zona Supreme Court, in reviewing petitioner'sdeath sentence, provided narrowly tailored and"obviously sufficient limiting construction" ofvague aggravating circumstance when it definedcruel as "disposed to inflict pain especially in awanton, insensate or vindictire manner," heinousas "hatefully or shockingly evil," and depraved as"marked by debasement. corruption, perversionor deterioration." and further noted that factorsthat lead to finding of heinousness or depravityinclude infliction of gratuitous violence and need-less mutilation of victim: under such definition,rational factfinder could have found "heinous" or"depraved" murder of victim who was beatenunconscious and then run over by car twice,crushing his skull.and killing him first time andthen dragging him 30 feet second time: even ifArizona Supreme Court had not provided suffi-cient limiting construction for such aggravatingcircumstance, habeas petition would still be re-jected because state .court rested its affirmanceupon finding of two additional aggravating cir-cumstances and insufficient showing of mitigat-ing circumstances; in context of Arizona deathpenalty statute. which separates sentencingcourt's findings on aggravating circumstancesfrom its findings on mitigating factors. U.S.Constitution does not require remand for resen-tencing when one aggravating factor is eliminatedfrom analysis if record reveals that, in terms ofstatute. one or mrre aggravating factors arepresent and thee are no mitigating circum-stances sufficietly substantial to call forleniency.

Questions prse nted: (1) Does petitioner'sdeath sentence cont,-avene Eighth and FourteenthAmendments b.catuse it was upheld by ArizonaSupreme Cour. on basis of application of Ari-zona's "especially heinous, atrocious or cruel"aggravating ci-cumst.ance that either extends cir-cumstance to jet of facts that no rational fact-finder could conclude fall'within it or arbitrarilyassumes set of facts that no actual factfinder hasever found in :his case? (2) May federal habeascorpus court apply rule of "automatic affir-mance" to death sentence that was based on bothoccurs during sidebar conference convened todiscuss lack of unanimity among jurors, polledpursuant to Fed.R.Crim.P. 31(d). when jurors'numcrical division is known?

Petition for certiorari filed 5/8/92, by MichaelD. Rossi. and Guarnieri & Secrest. both of War-rcn. Ohio.

91-794 HARPER v. VIRGINIA DEPARTMENTOF TAXATION

State tax on federal retiree pensions-Refunds-State taxation of military retiree pensions.

Ruling below (Va SupCt, 60 LW 2342):Upon remand from U.S. Supreme Court forfurther consideration in light of James B. Beam

Distilling Co. v. Georgia. 59 LW 4735 (1991)court reaffirms in all respects its prior decisionthat, because Davis v, Michigan Departmen, ofTreastdi,rp, 489 U.S. 803, 57 LW 4389 (1989),docs not apply retroactively federal governmentretirees are not entitled to refund 'of Virginiaincome tax on their pensions for years in whichretired state employees' benefits were exemptfrom same tax.

QuCStion presented: May this court's decisionin Davis L. Michigan Department of Treasurrunder any circumstances be "applied" non-retro-actively so as to defeat federal retirees' entitle-ment to refunds of unconstitutional state taxesimposed upon their federal annuities?

Petition for certiorari filed 11/15/91. by Mi-chael J. Kator, Stephen Z. Chertkof. and Kator,Scott & Heller. all of Washington. D.C.

944 FEDERAL REPORTER, 2d SERIES

if the jury thinks only one was, that's-the jury may think as they see fit fromthis evidence, but the issue before thisjury with respect to this defendant is washe personally involved?

In addition, Stamper urges that trial de-fense counsel excacerbated the error bystrenuously objecting to the initial responseproposed by the court that "similar chargesare pending against another defendant,"when in fact such a response would havebolstered the defense's theory that someother person had actually committed thecrimes. Stamper contends that such an"error" cannot be justified on the basis ofstrategy or tactics.

Here we must ask "whether there is areasonable probability that, absent the er-rors, the factfinder would have had a rea-sonable doubt respecting guilt" Strick-land 466 U.S. at 695, 104 S.CL at 2068-69.

Stamper's logic is difficult to follow oraccept His theory of defense, simply stat-ed, has been that he was not at the sceneof the crime, as demonstrated by the pres-ence of fingerprints and a footprint whichwere not his.' Apparently, the prosecution-favored the court's proposed initial re-sponse-"similar charges are pendingagainst another defendant"-in order toweaken the import of the nonmatching fin-gerprints and footprint by demonstratingthe existence of an accomplice. Defensecounsel successfully prevented such weak-ening by preventing any suggestion of theexistence of an accomplice from reachingthe jury. Those tactics were reasonable.See Strickland, 466 U.S. at 690, 104 S.Ct.at 2065. Stamper's recasting of the prosand cons of trial counsel's decision amountsto Monday morning quarterbacking.

Moreover, returning again to Strick-land's second prong-prejudice-the Virgi-nia Supreme Court ruled on the merits ofan objection to the response for the firsttime on appeal, despite the fact that noobjection had been made at trial. The

4. In fact, trial defense counsel made a pre-trialmotion to keep Stamper's association with oneTyrone Bowling out of the case.

5. Finding no error, we leave to another dayconsideration of the Commonwealth's assertion

court found that "there is no merit to theobjection. The instructions adequately in-formed the jury that they must find thatStamper killed the victims to convict him ofthe capital murders." Stamper v. Com-monwealth, 220 Va. 260, 275, 257 S.E.2d808, 819 (1979).

Accordingly, our having considered thecontentions Stamper has made, and dis-covering no error,s the judgment is

AFFIRMED. *

UNITED STATES of America,Plaintiff-Appellee,

V.

Sharon DUNNIGAN, Defendant-Appellant

No. 90-5668. -

United States Court of Appeals,Fourth Circuit

Argued April 12, 1991.Decided Aug. 30, 1991.

As Amended Sept 12, 1991.

Defendant was convicted in the UnitedStates District Court for the Southern Dis-trict of West Virginia, John T. Copenhaver,Jr., J., of conspiracy to distribute cocaine.Defendant appealed. The Court of Ap-peals, K.K. Hall, Circuit Judge, held that(1) indictment was sufficient; (2) admissionof bad acts evidence was not plain error;and (3) enhancing defendant's sentence un-der guidelines for obstruction of justicebased on finding that defendant testifieduntruthfully at trial placed intolerable bur-

that reversal would constitute the enunciationof a "new rule" in violation of Teague v. Lane,489 U.S. 288, 109 S.Ct. 1060, 103 LEd.2d 334(1989), and its progeny.

178

U.S. v. DCite as 944 F2d

den on defendant's right to testify on her

own behalf.Conviction affirmed; sentence vacated

and remanded.

1. Conspiracy <=43(1)

Indictment and Information G=110(10)Indictment was sufficient where it

identified time frame of conspiracy to dis-tribute cocaine, place, coconspirator, al-leged substance involved, and statutes vio-lated and tracked statutory language defin-ing offense and apprised defendant thatother unnamed coconspirators, whose iden-tities were known and unknown to grandjury, were involved.

2. Criminal Law <-369.1Ordinarily, proof of crimes or bad acts

other than those charged are inadmissibleto show that defendant acted in conformitywith character traits; however, evidence ofthose acts is admissible for limited collat-eral purposes such as knowledge, intent,motive, absence of mistake, and commonscheme or plan. Fed.Rules Evid.Rule 404,28 U.S.C.A.3. Criminal Law **1036.1(8)

Admission of testimony that defendanthelped her daughter use and sell crackcocaine was not plain error in prosecutionfor conspiracy to distribute cocaine; all of"similar acts" evidence presented on rebut-tal was invited by defendant who had de-nied using cocaine or knowing that anyonesold cocaine out of her house and districtcourt's sua sponte gave limiting instructionon testimony in Government's case in chiefabout defendant giving her daughter co-caine to "rock up." Fed.Rules Evid.Rule404, 28 U.S.C.A.4. Criminal Law 4700(3)

Only where Brady evidence is so mate-rial that its nondisclosure undermines con-fidence in verdict is reversal necessary dueto failure of prosecution to disclose thatevidence to defendant.

5. Criminal Law 6700(5)Any Brady error due to fact that

Government did not disclose before trial awitness' schizophrenia was harmless; de-

UNNIGAN 179178 (4th Cir. 1991)

fendant did not request continuance anddid not ask a single question on cross-examination about witness' condition, andalthough exculpatory evidence may nothave been presented as fully as defendantwould have liked, jury did not in fact hearit.

6. Criminal Law e-1253Witnesses <-88

Enhancing defendant's sentence underguidelines for "obstruction of justice"based on finding that defendant testifieduntruthfully at trial placed intolerable bur-den on defendant's right to testify on herown behalf. U.S.S.G. § 3C1.1, 18U.S.C.A.App.

Brent E. Beveridge, Morgantown, W.Va.,argued for defendant-appellant.

Michael M. Fisher, Asst. U.S. Atty., ar-gued (Michael W. Carey, U.S. Atty., HunterP. Smith, Asst. U.S. Atty., on brief),Charleston, W.Va., for plaintiff-appellee.

Before HALL and PHILLIPS, CircuitJudges, and WILLIAMS, District Judge forthe Eastern District of Virginia, sitting bydesignation.

OPINION

K.K. HALL, Circuit Judge:Sharon Dunnigan appeals her conviction

and sentence for conspiracy to distributecocaine. We affirm her conviction; how-ever, we vacate her sentence and remandfor resentencing.

I.

The cocaine distribution conspiracy inthis case is not complex. Freddie Harriswas a notorious cocaine dealer in theCharleston, West Virginia, area. His ringwas broken up in the late summer of 1988.Harris pled guilty to cocaine distributioncharges, as did his coconspirators JohnDean, Doris Casto, Wynema Brown, andTammy Moore. Several others went to tri-al, including Andre Charlton and, later, ap-pellant Sharon Dunnigarr.

944 FEDERAL REPORTER, 2d SERIES

Dunnigan was charged March 7, 1989, ina one-count indictment, with conspiracy todistribute cocaine with Harris and un-named others during the summer of 1988.She filed pretrial motions to dismiss theindictment, for a bill of particulars, and fordisclosure of exculpatory and Jencks Actmaterial.

At a hearing on the motions, the govern-ment agreed to provide Jencks Act materi-al, notice of "similar acts" evidence, andinformation regarding any confidential in-formants. The defendant withdrew hermotion for a bill of particulars. The dis-trict court denied the motion to dismiss theindictment.

Between the hearing on motions and tri-al, the government furnished grand jurytranscripts, plea agreements and rapsheets for proposed government witnesses,and notice of one "similar act"-a con-trolled sale of crack cocaine by Dunniganto a cooperating witness, Edward Dicker-son, on July 12, 1988.

Trial was held January 3-4, 1990. Thegovernment presented five witnesses in itscase-in-chief. Harris, the ringleader, wasfirst. He testified that Dunnigan was hissource of supply in Cleveland, and that shehad travelled to Cleveland alone and withhim to obtain cocaine during the summer of1988. Harris also stated that Dunniganhad accompanied Dean to Cleveland for thesame purpose at least once. Harris admit-ted distributing the cocaine in the Charles-ton area.

Dean took the stand next. Dean met theappellant when, on Harris' instructions, hepicked her up at the Charleston bus termi-nal and took her home. Harris had de-scribed Dunnigan to Dean as his "connect."Later that evening, Dean accompanied Har-ris to Dunnigan's apartment; Harris wentinside and obtained cocaine, which Deanthen helped package for resale. Dean alsotestified that he went to Cleveland withDunnigan on several occasions to purchasecocaine and dilaudid. At the close ofDean's direct examination, the governmentelicited from him that he was a paranoidschizophrenic and heroin addict.

Dunnigan's counsel was surprised bythis revelation. He protested to the courtthat his cross-examination would be ham-pered by the government's failure to pro-vide this information before trial notwith-standing a specific discovery request. Thegovernment argued that the grand jurytranscripts revealed that Dean was -a her-oin addict, and that it had no docum- taryevidence to substantiate Dean's mental ill-ness. The district court advised the defen-dant that Dean's schizophrenia could beinquired into on cross-examination. Dunni-gan's trial counsel nonetheless asked nocross-examination questions about Dean'saddiction or mental disorders.

Charlton testified next. He said that hehad gone with Harris to Duniigan's apart-ment to test and package cocaine Dunniganhad brought from Cleveland. He also re-counted one occasion on which he had re-ceived cocaine from Dean. This cocainehad been picked up in Cleveland on one ofDean and Dunnigan's trips together.

Moore was the fourth coconspirator wit-ness. She told of conversations with Dun-nigan during which Dunnigan extolled thesuperior quality of Cleveland cocaine andattempted to solicit Moore to drive her toCleveland.

Finally, the government called Brown.She stated that Dunnigan had told her ofthe Cleveland cocaine-purchasing trips, andthat she had seen cocaine in Dunnigan'sapartment. On four or five occasions,Brown observed Dunnigan's daughter"rocking up" powder cocaine (i.e. making itinto crack) for Dunnigan. Dunnigan wouldlater return the crack cocaine to her daugh-ter to sell. Brown also stated that Dunni-gan kept cocaine in a little tin case. Thedefendant made .no objections to any ofBrown's testimony and pursued no cross-examination. Notwithstanding this lack ofprotest, the district court gave a "similaracts" instruction-if the jury believed thecocaine that Dunnigan's daughter "rockedup" was part of the conspiracy, it couldconsider it for that purpose; however, thecourt stated, Dunnigan was not chargedwith distributing crack, and if the cocainefrom which it was made was outside the

180

Cite s 944 F.2d

conspiracy, the jury could only consider the

evidence for the limited purposes of Fed.

R.Evid. 404(b): motive, intent, preparation,lack of mistake, and knowledge.

The government rested, and Dunniganpresented a simple defense. She took thestand and denied everything. She testifiedthat she did not buy, sell, or use cocaineduring the time she knew Harris. She saidthat she did not know anyone in Clevelandwho used cocaine.

She admitted going to Cleveland, butonly to visit relatives. She said that shewent to Cleveland with Harris once, be-cause she knew her way around, but shedid not know whether Harris bought ortried to buy any cocaine on that trip. Sheflatly denied the trips and transactions de-scribed by Dean and Charlton, and she hadno knowledge of anyone making cocaineinto crack at her apartment.

On cross-examination, the governmentasked her about a specific transaction:whether she had sold crack to EdwardDickerson on July 12, 1988, at her apart-ment. She denied it.

The defense rested, and the governmentbegan a devastating rebuttal. Dickersonwas the first witness. He testified that hehad been arrested in early 1988 and hadbecome an informant. On July 12, 1988, ina monitored transaction, he bought crackfrom Dunnigan at her apartment. Dunni-gan did not object to this testimony.

Moore then retook the stand to describeher purchases of crack cocaine from thedefendant. She had also seen Dunnigangive crack and powder cocaine to herdaughter. Finally, Moore said that she andDunnigan's daughter sold crack togetherand returned part of the money to Dunni-gan. Again, the defendant did not objectto any of Moore's story. Again, the dis-trict court gave the jury a "similar acts"limiting instruction.

The jury found Dunnigan guilty. Herbase offense level for sentencing was 22.She did not receive the two-level acceptanceof responsibility reduction, because shecontinued to maintain her innocence.Moreover, the district court increased theoffense level by 2 to 24 for "obstruction of

178 (4th Cir. 191)

justice," based on its finding that Dunni-gan testified untruthfully at her trial. Shewas sentenced to 51 months, the lowest endof the guideline range.

II.

Dunnigan first argues that the districtcourt erred by denying her motions to dis-miss the indictment and for a bill of partic-ulars. These arguments are related, be-cause a bill of particulars is a defendant'smeans of obtaining specific informationabout charges brought in a vague or broad-ly-worded indictment. United States v.Debrow, 346 U.S. 374, 378, 74 S.CL 113,115, 98 LEd. 92 (1953).

(1] An indictment may simply be ashort, plain statement of the charge, suffi-ciently precise to notify the defendant ofthe accusation he must meet and to protecthim from double jeopardy. United Statesv. American Waste Fiber Co., 809 F.2d1044, 1046 (4th Cir.1987). The indictmentof Dunnigan was sufficient. It identifiedthe time frame of the activity (early to latesummer of 1988), the place (at or nearCharleston), a coconspirator (Harris), thecontrolled substance involved, and the stat-utes violated. The indictment tracked thestatutory language defining the offenseand apprised Dunnigan that other unnamedcoconspirators, whose identities wereknown and unknown to the grand jury,were involved. '

Among her pretrial motions, Dunniganmoved for a bill of particulars. She want-ed the names of those to whom she hadallegedly sold cocaine, notice of any "sim-ilar acts" the government planned to use,and the like. At a pretrial hearing on themotions, Dunnigan's counsel was satisfiedwith the governments proposed disclo-sures and specifically dropped the requestfor a bill of particulars. Waivers are rare-ly more explicit. In any event, Dunniganwas given the names of the government'switnesses and received grand jury tran-scripts. The denial of a bill of particularsdid not leave her facing a trial unaware ofthe nature of the charges against her.

U.S. v. DUNNIGAN 181

944 FEDERAL REPORTER, 2d SERIES

III.

[2.31 Ordinarily, proof of crimes or badacts other than those charged is inadmissi-ble to show that the defendant acted inconformity with a character trait. How-ever, evidence of such acts is admissible forlimited collateral purposes such as knowl-edge, intent, motive, absence of mistake,and common scheme or plan. Fed.R.Evid.404.

Dunnigan now argues that she was hope-lessly prejudiced by admission of the testi-mony that she helped her daughter use andsell crack cocaine. We do not doubt thatthis testimony was very damaging; how-ever, Dunnigan made no objections to thisevidence at trial, and the court may reverseonly if admission of the evidence was plainerror.

All of the "similar acts" evidencepresented on rebuttal was invited by Dun-nigan. She denied using cocaine or know-ing that anyone sold cocaine out of herhouse. The government was entitled torebut these assertions.

A closer issue is Brown's testimony inthe government's case-in-chief about Dun-nigan giving her daughter cocaine to "rockup." Nonetheless, Dunnigan did not ob-ject, and the district court sua sponte gavea limiting instruction. Admitting the testi-mony with a limiting instruction does notrise to plain error, if error at all.

IV.

[4,5] The government now admits, al-beit equivocally, that it should have dis-closed Dean's schizophrenia before trial."If Dean's mental condition was such thatit would have reflected adversely on hiscredibility, the United States should haveprovided this information to the defen-dant" Brief of the United States, at 39.'However, every Bradylt violation does not

1. The Assistant U.S. Attorney on appeal did notrepresent the government at trial. The trialprosecutor interpreted her duty to disclose ex-culpatory information to apply only to docu-mentary evidence.

warrant reversal. G.dy where the evidenceis so material that its nondisclosure under-mines confidence in the verdict is reversalnecessary. United States v. Bagley, 473U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481(1985).

Dunnigan did not request a continuanceand did not ask a single question on cross-examination about Dean's condition. More-over, though the exculpatory evidence maynot have been presented as fully as Dunni-gan would have liked (though she does notsay what else she would now offer), thejury did in fact hear it. Dunnigan wouldhave a better argument if the governmenthad withheld the information from the jury.Finally, Dean was one of a half-dozengovernment witnesses telling the same sto-ry-, his testimony was important, but notvital.

Our confidence in the verdict is not un-dermined by the nondisclosure of Dean'smental problems. Therefore, any Bradyerror was harmless.

V.

A.

[61 The district court found that Dunni-gan had testified untruthfully at trial, andso enhanced her offense level by two for"obstruction of justice." Committing orsuborning perjury has always been identi-fied as "obstruction of justice" in theGuidelines Commentary. U.S.S.G. § 3C1.1,comment. (n.1(c)) (Nov.1989); Id., comment(n.3(b)) (Nov.1990).

At the time Dunnigan was charged, con-victed, and sentenced, Application Note 3 toU.S.S.G. § 3C1.1 stated: "This provision isnot intended to punish a defendant for theexercise of a constitutional right. A defen-dant's denial of guilt is not a basis forapplication of this provision." Further-more, Application Note 2 stated that "sus-

2. Brady v. Maryland 373 US. 83, 83 S.Ct. 1194,10 LEd.2d 215 (1963).

182

U.S. v. DUNNIGANCite as 944 F.2d 17b 4 thClr. t991)

pect testimony and statements should beevaluated in a light most favorable to thedefendant."

All circuits that have considered the is-sue have upheld the constitutionality ofsimilar enhancements under § 3C1.1.These decisions are based on the premisethat a defendant's right to testify in hisown behalf is not a license to commit perju-ry. United States v. Batista-Polanco, 927F.2d 14, 22 (1st Cir.1991); United States v.Matos, 907 F.2d 274, 276 (2nd Cir.1990);United States v. Acosta-Cazares, 878 F.2d945, 953 (6th Cir.), cert denied, 493 U.S.899, 110 S.Ct. 255, 107 L.Ed.2d 204 (1989);United States v. O'Meara, 895 F.2d 1216(8th Cir.), cert denied, - U.S. -, 111S.Ct. 352, 112 L.Ed.2d 316 (1990); UnitedStates v. Barbosa, 906 F.2d 1366, 1369 (9thCir.), cert denied, - U.S. -, 111 S.Ct.394, 112 LEd2d 403 (1990); United Statesv. Keys 899 F.2d 983 (10th Cir.), cert. de-nied, - U.S. -, 111 S.CL 160, 112LEd.2d 125 (1990); United States v. Wal-lace, 904 F.2d 603, 604-605 (11th Cir.1990).

B.

Our sense of justice requires us to dis-agree. We of course have no desire tocondone or encourage perjury. On the oth-er hand, we fear that this enhancement willbecome the commonplace punishment for aconvicted defendant who has had the au-dacity to deny the charges against him.The government maintained at oral argu-ment that every defendant who takes thestand and is convicted should be given theobstruction of justice enhancement. Cer-tainly, if the guidelines are to be appliedconsistently, the government would beright. Nearly all testifying defendants tell

3. Effective November 1. 1990. the substance offormer Application Notes 2 and 3 were amalga-mated into new note 1:

This provision is not intended to punish adefendant for the exercise of a constitutionalright. A defendant's denial of guilt (otherthan a denial of guilt under oath that consti.tutes perjury), refusal to admit guilt or pro-vide information to a probation officer, orrefusal to enter a plea of guilty is not a basisfor application of this provision. In applying

a story that, if believed in full, would resultin acquittal. The jury's verdict implies adisbelief of some material aspect of thedefendant's testimony.

It disturbs us that testimony by an ac-cused in his own defense, so basic to ju*-tice, is deemed to "obstruct" justice unlessthe accused convinces the jury. The facilelogic of hindsight deems such disbelievedtestimony a lie; inasmuch as there is noright to lie, there is no harm in sanctioningit. Hindsight, however, does not help theaccused when he must decide whether totake the stand. He already knows that hefaces the possibility of conviction, and thathe is much less likely to be acquitted if heremains silent, despite his right to do soand even in the face of instructions to thejury to draw no adverse inference from hissilence. Kassin, The American Jury:Handicapped in the Pursuit of Justice, 51Ohio St.LJ. 687, 700 (1990), citing Shaffer& Case, On the Decision Not to Testify inOne's Own Behalf: Effects of WithheldEvidence, Defendant's Sexual Preferences,and Juror Dogmatism on Juridic Decisions,42 J. Personality & Soc. Psychology 335,344 (1982); Note, The Influence of the De-fendant's Plea on Judicial Determination ofSentence, 66 Yale L.J. 204, 212 n. 36 (1956).See Lakeside v. Oregon, 435 U.S. 333, 340n. 10, 98 S.Ct. 1091, 1095 n. 10, 55 L.Ed.2d319 (1978) (adverse inference from silence"may be inevitable"). Moreover, the dilem-ma does not arise solely when the defen-dant is guilty; there are many reasonsunrelated to guilt that may militate againsttestifying. Chief among these is the prose-cution's power to impeach the defendant'scredibility with prior convictions under Fed.R.Evid. 609. Carter v. Kentucky, 450 U.S.

this provision, the defendants testimony andstatements should be evaluated in a light mostfavorable to the defendant.The primary purpose of the 1990 amendment

was to add a new guideline governing "recklessendangerment during flight." The otherchanges, including the one described above,were intended only for clarification. UnitedStates Sentencing Commission, Guidelines Man-ual. Appendix C. amendment 347 (Nov.1990).

183

944 FEDERAL REPORTER, 2d SERIES

288, 300 n. 15, 101 S.CL 1112, 1119 n. 15, 67LEd.2d 241 (1981); Wilson v. UnitedStates, 149 U.S. 60, 66, 13 S.Ct. 765, 766, 37L.Ed. 650 (1893); Bradley, Griffin v. Cali-fornia: Still Viable After All These Years,79 Mich.L.Rev. 1290, 1295 n. 25.1 We can-not help but note that an innocent defen-dant with prior convictions must weigh thejury's likelihood of drawing one impermissi-ble inference (guilt by silence) against an-other (guilt by criminal propensity) in decid-ing whether to testify. With an automatic§ 3C1.1 enhancement added to the ante,the defendant may not think testifyingworth the risk.s

C.

Several of our fellow circuits have reliedupon United States v. Grayson, 438 U.S.41, 98 S.Ct 2610, 57 L.Ed.2d 582 (1978), apreguidelines case, as controlling and per-mitting this enhancement. Some have ex-plicitly stated that the guidelines have notaltered the analysis. E.g., Barbosa, 906F.2d at 1369; United States v. Beaulieu,900 F.2d 1537 (10th Cir.), cert. denied, -U.S. -, 110 S.Ct. 3252, 111 LEd.2d 762(1990). We believe that a close look atGrayson's rationale reveals that the guide-lines have removed important underpin-nings of the Court's analysis.

The most basic difference in Grayson isthe stated justification for enhancing sen-tence. The guidelines deem a denial ofguilt on the stand "obstruction of justice."There is no such rationale in Grayson.Grayson rejected an argument that dueprocess prohibits consideration at sentenc-ing of the defendant's untruthfulness, be-cause it amounts to punishment for perjurywithout indictment and trial for perjury.The Court acknowledged that punishmentfor perjury to save the government thetime and expense of prosecution would be"impermissible," but refused to prohibitthe "otherwise perissible practice of con-

4. Bradley cites statistics from Kalvin & Zeisel.The American Jury 146 (1966), that defendantswithout prior records are 37% more likely totestify than those with previous convictions. Id.

sidering a defendant's untruthfulness forthe purpose of illuminating his need forrehabilitation and the society's need forprotection." 438 U.S. at 53, 98 S.Ct. at2617.

The Court was speaking during the longperiod of our judicial history when districtcourts enjoyed broad discretion in imposingany sentence within statutory limits. Itfound that the very uncertainty of a defen-dant's supposedly untrue trial testimonybeing considered at sentencing was a de-fense against Grayson's constitutional at-tack:

Nothing we say today requires a sentenc-ing judge to enhance, in some wooden orreflex fashion, the sentences of all defen-dants whose testimony is deemed false.Rather, we are reaffirming the authorityof a sentencing judge to evaluate careful-ly a defendant's testimony on the stand,determine-with a consciousness of thefrailty of human judgment-whetherthat testimony contained willful and ma-terial falsehoods, and, if so, assess inlight of all the other knowledge gainedabout the defendant the meaning of thatconduct with respect to his prospects forrehabilitation and restoration to a usefulplace in society. Awareness of such aprocess realistically cannot be deemed toaffect the decision of an accused butunconvicted defendant to testify truthful-ly in his own behalf.

Grayson, 438 U.S. at 55, 98 S.Ct. at 2618.The guidelines supply precisely the "wood-en or reflex" enhancement disclaimed bythe Court A defendant who stands trialhas already probably passed up an opportu-nity, through a negotiated plea, for a lessercharge and sentence. At trial, he mustchoose between remaining silent, with aheavy risk of conviction, and testifying onpain of facing an enhanced sentence. At

5. For example, the enhancement increased Dun-nigan's guidelines range from 41-51 to 51-63months. At the highest offense levels, the in-crease is more drastic, from 292-365 months to360-life.

184

U.S. v. DCite as 944 F.2d

every turn, he is encouraged to forfeit his

rights, and is subjected to increased punish-

ment for refusing to do so. When decidingto testify, he is not simply "aware" of a

"process" that might take his untruthful-ness into account, he is (and ought to beadvised by his counsel) aware that the veryfact of his testifying will be used against

him if he is convicted.

We are not satisfied that there are

enough safeguards in place to prevent thisenhancement from unfairly coercing defen-dants, guilty or innocent, into remainingsilent at trial. Other circuits have re-viewed the district court's finding of un-truthfulness under a "clearly erroneous"standard. Batista-Polanco, 927 F.2d at22; Matos, 907 F.2d at 276; Wallace, 904F.2d at 605; Beaulieu, 900 F.2d at 1540;O'Meara, 895 F.2d at 1220. Of course, inlight of the jury's verdict of guilt, the dis-trict court's finding will never be "clearlyerroneous" where the verdict is sustaina-ble; if the verdict cannot be supported, thesentencing finding will of course be mootOur review of these enhancements wouldtherefore be an empty ritual.

We are similarly unimpressed with theguidelines' admonition to district courts toview the defendants testimony "in a lightmost favorable to the defendant" What-ever light is held to it, a defendant's testi-mony that has been apparently rejected inmaterial respects by a jury will almost al-ways compel a finding of untruthfulness.If the district court does not so find, the"clearly erroneous" standard of reviewmay actually be tested, but, of course, onthe governments appeal.

D.

We who have been schooled and im-mersed in our system of law are perhapstoo quick to make the jury an infallible iconand a witness' oath a sacred rite; we ig-nore the human infirmities that flaw both.In short, our love of our system easilyproduces a chauvinistic faith in its perfec-tion.

UNNIGAN 185178 (4thCir. 1991)

Nearly twenty years ago, in announcingthis circuit's rule permitting, as Graysonlater did, consideration of a defendant'sperjury in setting an indeterminate sen-tence, Judge Butzner cautioned us to re-member these frailties.

[S]entencing judges should not indiscriin-inately treat as a perjurer every convict-ed defendant who has testified in his owndefense. Witnesses induced by sordidmotives or fear have been known to fa-bricate accusations with such guile thateven conscientious triers of fact havebeen misled. Moreover, some essentialelements of proof of criminal conduct,such as knowledge, intent, malice, andpremeditation are sometimes so subjec-tive that testimony about them cannot bereadily categorized as true or false.Judges must constantly bear in mindthat neither they nor jurors are infallible.A verdict of guilty means only that guilthas been proved beyond a reasonabledoubt, not that the defendant has lied inmaintaining his innocence.

United States v. Moore, 484 F.2d 1284,1287-1288 (4th Cir.1973).

The rigidity of the guidelines makes the§ 3C1.1 enhancement for a disbelieved de-nial of guilt under oath an intolerable bur-den upon the defendant's right to testify inhis own behalf. Consequently, though weaffirm Dunnigan's conviction, we remandfor resentencing without the enhancementfor obstruction of justice.

CONVIC7ON AFFIRMED; SEN-TENCE VACATED AND REMANDED.

ARNnsyM

STATE vCie as 813 P.2d

that such endorsements do not impose pri-mary liability as a matter of law on theinsurer of the licensed carrier under whose

permit a vehicle is in use at the time of anaccident Truck Ins. Exchange v. Trans-port Indemnity Co. (1979), 180 Mont 419,430, 591 P.2d 188, 194. Furthermore, asnoted above, the intent of the parties iscontrolled by the clear, explicit and unam-biguous language of the contract in thiscase.

(7] Finally, USF & G urges this Courtto consider the difference in the respectivepremiums paid by Bunday to Canal ($30,-180.00) and USF & G ($1,890.00) to insurethe different aspects of Bunday's businessas evidence that the parties intended forthis type of accident to be covered by Ca-nal's policy rather than USF & G's. TheDistrict Court noted that

The pertinent part of the applicableUSF & G policy is Part II, "BusinessAutos." Part II, Letter C, states thattrailers with a load capacity of two thou-sand (2,000) pounds or less, designed totravel on public roads, are covered autos.This language would exclude a semi-trail-er ... as was involved in the North case.Unfortunately for USF & G, it made anunderwriting error on the declarationpage of its policy, thereby extending cov-erage to "any auto" rather than businessautomobiles specifically described on theattachment to the policy.

A fair reading of the two policies clear-ly reflects that USF & G was not insur-ing Bunday's over-the-road hauling oper-ation, but that Canal was.

The size of the premium may be a factorconsidered "in construing doubtful clausesin a policy." 2 Couch on Insurance 2d,f 15.52 (1984); see also Pan AmericanWorld Airways v. Aetna Casualty &Sarety (2d Cir.1974), 505 F.2d 989, 1001, atA. 10. Here, the clause is not "doubtful,"ambiguous, or uncertain, and we need notlook beyond the language of the contractPurthermore, USF & G is arguing that itshould not be held liable due to a technicalOlistake in underwriting when the contractstaken together indicate that Canal was in-suring the liability at issue here. We note

. IMLAY Mont 97979 (Mont. 1991)

that if USF & G had not made that mis-take, its policy definitions would be orga-nized in a manner similar to Canal's policy,and it would not be liable. Canal shouldnot be faulted for USF & G's mistake inunderwriting.

[81 This Court has the power to reversethe district court's grant of summary judg-ment and order it to enter summary judg-ment in favor of the other party as a mat-ter of law only when it is clear that all thefacts bearing on the issues are before thisCourt. Hereford v. Hereford (1979), 183Mont. 104, 110, 598 P.2d 600, 603; citingSwecker v. Dorn (1979), 181 Mont. 436,441, 593 P.2d 1055, 1058-9; 6 Moore's Fed-eral Practice 1 56.12, p. 56-337. There areno genuine issues of material fact in thiscase. We conclude that the trailers werenot "owned automobiles" within the cover-age of Canal's policy and direct that judg-ment be entered in favor of Canal. Theorder of the District Court is

REVERSED. Summary Judgment is or-dered in favor of Canal.

TURNAGE, Ci., and HARRISON,GRAY, HUNT and WEBER, JJ., concur.

STATE of Montana, Plaintiffand Respondent,

v.

Donald Glenn IMLAY, Defendantand Appellant

No. 90-493.

Supreme Court of Montana.

Submitted on Briefs March 28, 1991.Decided June 18, 1991.

Rehearing Denied July 23, 1991.

Defendant was convicted in the EighthJudicial District Court, Cascade County,

813 PACIFIC REPORTER, 2d SERIES

Joel G. Roth, J., of sexual assault, and heappealed revocation of suspended sentence.The Supreme Court, Trieweiler, J., heldthat criminal defendant cannot, as condi-tion of suspended sentence, be compelled toadmit that he is guilty of crime of which hehas been accused and convicted.

Vacated and remanded.

1. Criminal Law e-982.5(2)Criminal defendant cannot, as condi-

tion of suspended sentence, be compelled toadmit that he is guilty of crime of which hehas been accused and convicted; overrulingState v. Donnelly, 244 Mont. 371, 798 P.2d89.

2. Criminal Law e982.9(1)Sexual assault defendant's suspended

sentence, conditioned upon his completionof sexual therapy program, could not berevoked where basis for his failure to com-plete program was his refusal to admitguilt.

Billy B. Miller, Miller & Cook, GreatFalls, for defendant and appellant

Marc Racicot, Atty. Gen., Elizabeth LGriffing, Asst. Atty. Gen., Helena, PatrickL. Paul, Cascade County Atty, KimSchulke, Chief Deputy County Atty., GreatFalls, for plaintiff and respondent.

TRIEWEILER, Justice.Following a jury trial, the defendant,

Donald Glenn Imlay, was convicted in Dis-trict Court of sexual assault, a felony, inviolation of § 45-6-502, MCA. Based onthat conviction, he was sentenced by theDistrict Court to five years in the MontanaState Prison. However, all but 35 days ofthat sentence were suspended, and the de-fendant was placed on formal probation,under certain conditions, including the con-dition that he enroll in and complete asexual therapy program. When the defen-dant enrolled in, but was unable to com-plete the sexual therapy program, his sus-pended sentence was revoked and he wasordered imprisoned at the Montana StatePrison for the remainder of his five-year

term. The defendant appeals from the Dis.trict Court's order revoking his suspendedsentence. We reverse the order of theDistrict Court.

On appeal, the defendant raises severalissues. We find the following issue, asrestated by this Court, to be contyolling-

Can a criminal defendant, as a conditionof a suspended sentence, be compelled toadmit that he is .guilty of the crime ofwhich he has been accused and convicted?

FACTUAL BACKGROUNDOn May 9, 1989, the State of Montana

was granted leave to file an Informationcharging the defendant with three countsof sexual assault, a felony. On September5, 1989, that Information was amended sothat the acts complained of were combinedinto one count The basis for the Informa-tion was the allegation that on April 11,1989, the defendant fondled the vaginalarea of a seven-year-old girl while she waspresent at his Great Falls grocery store.The Information was based on statementsmade by the girl to her teacher after shearrived at school several hours late.

This case went to trial on September 11,1989, and the jury returned its verdict onSeptember 13, 1989, finding the defendantguilty of the crime charged.

Prior to sentencing, the usual pre-sen-tence investigation was conducted, includ-ing a psychological evaluation of the defen-dant. As a result of that investigation, theDistrict Court found that the defendantwas a 56-year-old widower who had raisedfour adult children and had.an extenivhistory of full-time employment. He hadno prior criminal record, nor was there aprior history of any complaints of similarconduct by the defendant.

The psychologist who examined the de-fendant, as part of the pretrial investiga-tion, concluded that he was suffering frompost-traumatic stress syndrome and was aa severely depressed state of mind- 0*recommended that the defendant not- bincarcerated, but that he be involved in smental health therapeutic program wpsychiatric work and counseling.

980 Mont

STATE vCite as 813 P.2d

Based upon its pre-sentence investiga-tion, the District Court found that the de-fendant was not a dangerous person, thathis offense was an isolated incident, andthat it would not be repeated in the future.The court also found that the defendantwas suffering from medical problems, andthat incarceration in the State Prison wasnot an appropriate penalty.

The defendant's sentencing hearing washeld on October 17, 1989. On that samedate, the District Court sentenced the de-fendant to five years in the Montana StatePrison. However, execution of the sen-tence was suspended, except for the 35days he had already served in the CascadeCounty Jail. He was placed on formalsupervised probation under the rules andregulations of the Adult Probation and Pa-role Bureau and was ordered to enroll in asexual therapy program at his own ex-pense, and to continue in that programuntil it was no longer deemed necessary byhis therapist The specific sentence provi-sion regarding sexual therapy was as fol-lows:

The defendant is to immediately enroll ina sexual therapy program at his ownexpense and continue said program untilhis therapist deems further counselingand therapy unnecessary. The Courtwould recommend that the defendant ob-tain his therapy at the sexual offendertreatment program located in Helena,Montana.As conditions of his suspended sentence,

the defendant was also ordered to pay anycounseling costs incurred by the victim andprohibited from being around children un-less another adult was present

On June 8, 1990, the County Attorneypetitioned the District Court for revocationof the defendant's suspended sentence fortwo reasons: (1) the State contended thatthe defendant was not gainfully employed;and (2) the State alleged that the defendanthad not completed the sexual treatmentProgram which was a condition of his sus-pended sentence.

The defendant denied violating the termsof his suspended sentence, and an eviden-tiary hearing was conducted on August 31,

. IMLAY Mont 981979 (MoL 1991)

1990. At that hearing, the defendant's pro-bation officer, and the counselor to whomhe had been referred for sexual therapy,testified. The defendant also testified onhis own behalf.

The defendant testified that at that timehe was living with his mother in Absarokee -

where he had moved following trial be-cause he no longer had a business, a job, orany income.

He had interviewed for and sought workas an electrician, and as a custodian, butwas unable to satisfy the physical require-ments for either job. He suffered fromhigh blood pressure and degenerative jointdisease.

When unable to find employment, thedefendant had applied for vocational reha-bilitation through the State Department ofSocial and Rehabilitation Services. Afteran independent medical examination, hehad apparently qualified for those servicesand was being retrained by SRS to doleather work which he was performing athis mother's home. He had sold some ofthe work and had orders for more itemswhich he had been unable to complete.

He testified that in order to comply withthe court's order regarding enrollment in asex offender program he contacted his pro-bation officer, who referred him to MikeSullivan, a counselor in Billings, Montana.He scheduled and attended a number ofcounseling sessions, but was finally ad-vised that he did not qualify for Sullivan'streatment program because he would notadmit that he was guilty of the crime ofwhich he had been charged and convicted.He then talked to Ron Silvers, the directorof the sexual offender program in Helena,and was told that he would not be admittedto that program either.

Michael Sullivan testified that he is alicensed clinical social worker practicing inBillings, and was director of a programknown as South Central Treatment Associ-ates. He has a bachelor's degree in psy-chology, a master's degree in associatework, and is a licensed social worker in theState of Montana. At the time of the de-fendant's hearing, Sullivan had been.in-.

813 PACIFIC REPORTER, 2d SERIES

volved in the treatment of sexual offendersfor approximately five years.

The defendant first saw Mr. Sullivan, byreferral from his probation officer, on No-vember 20, 1989, and saw him on five sub-sequent occasions over the next sixmonths. Each appointment was scheduledby the defendant. The defendant attendedevery scheduled appointment. He was de-scribed by Sullivan as pleasant, friendly,never angry or abusive, and always punctu-al.

Sullivan performed a series of tests onthe defendant There were no indicationsin those tests that the defendant was capa-ble of violent conduct However, fromthose tests and his contacts with the defen-dant, Sullivan formed the impression thatthe defendant was not amenable to outpa-tient sexual offender treatment because hedid not admit that he committed a sexualoffense. Sullivan testified that the defen-dant's denial made it impossible for him totreat him in their program. He also testi-fied that there was no other outpatientsexual therapy program in the State ofMontana which would treat a sexual of-fender who denied that he was guilty ofsexual misconduct.

He confirmed that after the defendanthad been rejected from his program, thedefendant had sought treatment from RonSilvers at the sexual therapy program inHelena, and that he (Sullivan) had beencontacted by Silvers to determine why thedefendant had been unacceptable for theBillings program.

Sullivan recommended a form of inpa-tient treatment, which is more structuredand continuous, because in such a programit is more difficult for a patient to maintaindefensive postures, such as denial. He tes-tified that the only inpatient treatment pro-gram in the State of Montana was the oneat the Montana State Prison.

Based upon the foregoing evidence, theDistrict Court found that the State's com-plaint about the defendant's lack of em-ployment was not well founded. The courtfound that the defendant was making abona fide effort to maintain employment

and was actively pursuing vocational reha.bilitation.

However, regarding the State's secondbasis for its petition to revoke the suspend.ed sentence, the court made the followingconclusion:

The Court concludes that the defendanthas violated the condition of his suspend-ed sentence by not enrolling (not beingamenable to -treatment and hence, notacceptable into an out-patient treatmentprogram) in a sex offender treatmentprogram and said violation was provenby a preponderance of the evidence.... Because the only viable alternative isan inpatient treatment program, theCourt concludes that the defendant's sus-pended sentence must be revoked andthe defendant ordered to serve FIVE (5)years in the Montana State Prison withcredit for 35 days.

It is recommended to the Warden of thePrison that the defendant not be eligiblefor parole until he has completed thesexual offender treatment program atthe Prison. However, it is also recom-mended that upon completion of the pro-gram, the defendant be considered forparole. The defendant is designated as anon-dangerous offender for parole eligi-bility purposes.The defendant, through his attorney, ob-

jected at the time that the sentence wasrevoked on the grounds that the DistrictCourt was conditioning suspension of thedefendant's sentence on an admission ofguilt, and cited authority to the DistrictCourt that it could not force the defendantto plead guilty. The issue previously stat-ed, therefore, was properly preserved forappeal.

DISCUSSIONWhile the District Court's order revoding

the defendant's suspended sentence apredicated upon the defendant's failure to

enroll in a sex offender treatment program,it is clear that the defendant's incarcerationat the Montana State Prison is directlYrelated to his refusal to admit that he com.

982 Mont

STATE'Cite as 813 P.2d

mitted a crime. The defendant made everyother effort possible to enroll in and com-plete a sex offender treatment program.He sought a referral from his probationofficer. He followed up that referral byscheduling not one, but six consecutive ap-pointments. He attended every appoint-ment in a timely fashion, and other thanadmitting his guilt, cooperated in everymanner possible while at those appoint-ments. When he was rejected by the coun-selor with whom he had spent six months,he tried to find another sex offender treat-ment program that would admit and treathim, and was rejected a second time. Fi-nally, he was advised that there was nooutpatient sex offender treatment programin Montana that would accept him.

It is clear that the only thing the defen-dant has failed to do is admit that he com-mitted the crime for which he was convict-ed. Whether or not punishment can beaugmented because of a defendants refus-al to admit guilt, even after he has beenconvicted, is a question on which the feder-al courts are not in agreement. Further-more, this Court has made contradictorystatements in answer to that same issue.

The majority of federal courts of appealwhich have addressed this issue follow thedecision of the United States Court of Ap-peals for the Fifth Circuit in Thomas v.United States, 368 F.2d 941 (5th Cir.1966).

In that case, prior to imposing sentence,the district court judge advised the defen-dant that if he confessed his guilt the courtwould take his confession into considera-tion in determining the length of his sen-tence, but that if he persisted in his denialof guilt, that denial would also be takeninto account. Because the defendant choseto continue denying guilt, he was sentencedto the maximum term permitted by law.That sentence was vacated by the FifthCircuit, based on its conclusion that thealternatives presented to the defendant vio-lated his Fifth Amendment right not to bea witness against himself. The Court ofAppeals acknowledged that the defendanthad already been convicted, but pointedout

v. IMLAY Mont. 983979 (Mont. 1991)

It must be remembered that, at the timeof his allocution, Thomas had not beenfinally and irrevocably adjudged guilty.Still open to him were the processes ofmotion for new trial (including the oppor-tunity to discover new evidence), appeal,petition for certiorari, and collateral at-tack. Indeed, appeal is now an integralpart of the trial system for finally adjudi-cating the guilt or innocence of a defen-dantThe two "ifs" which the district courtpresented to Thomas placed him in aterrible dilemma. If he chose the first"if," he would elect to forego all of theabove-noted post-conviction remedies andto confess to the crime of perjury, how-ever remote his prosecution for perjurymight seem. Moreover, he would aban-don the right guaranteed by the FifthAmendment to choose not to be a witnessagainst himself, not only as to the crimeof which he had been convicted, but alsoas to the crime of perjury. His choice ofthe second "if" was made after the warn-ing that the sentence to be imposedwould be for a longer term than wouldbe imposed if he confessed. From therecord, it is clear that an ultimatum of atype which we cannot ignore or approveconfronted Thomas. Truly, the districtcourt put Thomas "between the devil andthe deep blue sea."

Thomas suffered the consequences forchoosing the second "if" ... in the formof a longer prison term. When Thomasreceived harsher punishment than thecourt would have decreed had he waivedhis Fifth Amendment rights, he paid ajudicially imposed penalty for exercisinghis constitutionally guaranteed rights.Upon this ground alone, we think that hissentence is "subject to collateral attack,"and have little doubt as to the authorityand duty of the district court to vacatethe sentence.

Thomas, 368 F.2d at 945-46. In accordwith Thomas, are Scott v. United States,419 F.2d 264 (D.C.Cir.1969); United Statesv. Laca, 499 F.2d 922 (5th Cir.1974); Unit-ed States v. Wright 533 F.2d 214 (5th

813 PACIFIC REPORTER, 2d SERIES

Cir.1976). In Poteet v. Fauver, 517 F.2d393 (3d Cir.1975), the United States Courtof Appeals for the Third Circuit concludedthat augmentation of a post-conviction sen-tence based on refusal to admit guilt violat-ed the due process clause of the FourteenthAmendment of the United States Constitu-tion.

In the past, this Court has given appar-ent approval to the Thomas rule. Al-though the case of In the Matter of Jones,176 Mont 412, 578 P.2d 1150 (1978), wasdecided on other grounds, we cited withapproval the following rule of law in thatcase:

While the sentencing judge may take intoaccount his belief that the defendant wasnot candid with the court this is to bedistinguished from the rule that a sen-tence may not be augmented because adefendant refuses to confess or invokeshis privilege against self-incrimination.Fox v. State, (1977 Alaska), 569 P.2d1335, 1338. See: United States v. Gar-cia, (3rd Cir., 1976), 544 F.2d 681, 685;United States v. Acosta, (5th Cir., 1975),509 F.2d 539, cert. denied, 423 U.S. 891,96 S.CL 188, 46 LEd.2d 122 (1975);United States v. Rogers, (5th Cir., 1974),504 F.2d 1079, 1085, cert. denied, 422

. U.S. 1042, 95 S.Ct 2655, 45 L.Ed.2d 693(1975).The only Federal Circuit which appears

to have arrived at a contrary conclusion isthe Ninth Circuit.

In Gollaher v. United States, 419 F.2d520 (9th Cir.1969), the Ninth Circuit Courtof Appeals considered the Thomas decisionand chose not to follow it. In that case,the defendant was also given a stiffer sen-tence because of his refusal to admit guiltafter he was convicted, and challenged thatsentence as a violation of his Constitutionalprivilege against self-incrimination. How-ever, the Ninth Circuit, on balance, placedgreater importance on the criminal justicesystem's objective of rehabilitation, than ona defendant's continued right to deny guilt.In rejecting the Thomas rationale, theNinth Circuit has stated:

This case presents a dilemma which ev-ery trial judge faces at the time of sen-

tence. It is almost axiomatic that th&first step toward rehabilitation of an offender is the offender's recognition thahe was at fault. In the present state ofthe criminal law, there is no doubt thatpunishment is still a consideration in theimposition of sentence, especially whernon-violent or economic crimes are i6.volved. But to the extent that rehabilita.tion is the objective, no fault can befound of the judge who takes into conzid.eration the extent of a defendant's reha.bilitation at the time of sentence.

Gollaher chose to insist upon his imo.cence. The judge, bound by the jury'sverdict and apparently also being firulyconvinced by the evidence that Gollaherwas guilty, proceeded accordingly. Hehad before him a man unwilling to takethe first step toward rehabilitation andhe imposed sentence accordingly. Gol-laher's Fifth Amendment rights were notinfringed.

Gollaher, 419 F.2d at 530-31.Our prior decision in State v. Donnelly,

244 Mont. 371, 798 P.2d 89 (1990), appearsto be in accord with the Ninth Circuit'sdecision in Gollaher. In Donnelly, wewere asked to decide whether a defendant,who was already imprisoned at the Mon-tana State Prison, was denied his right toavoid self-incrimination when he was de-nied parole until he completed a sex offend-er course at the Prison. Interestingly, theevidence in that case was that in order tobe accepted into the inpatient sexual of-.fender program at the Prison, that defen-dant also had to admit that he committedthe crime of which he was convicted.(Therefore, if the trial court's objective inthis case was to obtain treatment for Don-ald Imlay, imprisonment does not appear tobe the solution.) At any rate, we foundthat denying probation under those circum-stances did not violate the defendant's priv-ilege against self-incrimination. Our deci-sion appears to have been based on thefollowing conclusion: .

Here, defendant's decision to remaih si-lent is a tactical one, not a compelled one.Defense counsel argues that, in reality,

984 Mont

OWENS v. GENERACite as 813 P.2d

defendant's testimony is in fact com-pelled since it is a prerequisite for parole.It is possible the defendant may be pa-roled sooner if he admits to incest than ifhe remains silent. However, defendantmay remain silent if he so chooses, andstill possibly be paroled at some futuredate based on good behavior.

Furthermore, failure to admit to incestwill not result in certain penalty to defen-dant, it will only result to preserve hiscurrent ineligible parole status. In thiscase, the district court ordered that thedefendant was ineligible for parole untilthe satisfaction of a condition subse-quent. The condition subsequent is par-tially satisfied by defendant's successfulcompletion of the sexual offender pro-gram at Montana State Prison. Failureto satisfy this condition subsequent, i.e.,failure to satisfactorily complete the sexoffender program, will not result in apenalty, but will merely result in defen-dant's continued ineligibility for parole.

Donnelly, 244 Montat 382, 798 P.2d at 96.

Without debating the merits of the fore-going conclusion from Donnelly, it is clearthat in this case the defendant is beingsubjected to a penalty that he would nototherwise be subjected to if he would sim-ply admit his guilt. That penalty is that heserve time in the Montana State Prison.

Even though the defendant has alreadybeen convicted of the crime that he denies,our system still provides, as noted in theThomas decision, for opportunities to chal-lenge that conviction. For example, thedefendant still had the right to challengehis conviction, based on newly discoveredevidence, or by collateral attack. -Theseare important rights guaranteed to everydefendant under our criminal justice sys-tem, but would be rendered meaningless ifthe defendant could be compelled to admitguilt as a condition to his continued free-dom. Furthermore, while such a defendantwould be foreclosed from invoking the pro-tection of such procedures to establish hisinnocence, the reliability of an admission ofguilt under such circumstances would behighly suspect. In addition, by admitting

L MOTORS CORP. Mont. 985985 (Mont. 1991)

guilt in this case, the defendant would haveto abandon his right guaranteed by theFifth Amendment, not only as to the crimefor which he has been convicted, but also tothe crime of perjury. He testified in hisown defense during his trial and deniedcommitting the offense with which he wascharged.

(1, 2] Under these circumstances, andabsent any grant of immunity, we believethat the better reasoned decisions are thosedecisions which protect the defendant'sconstitutional right against self-incrimina-tion, and which prohibit augmenting a de-fendant's sentence because he refuses toconfess to a crime or invokes his privilegeagainst self-incrimination. To the extentthat our decision in Donnelly is inconsist-ent with this opinion, that part of the Don-nelly decision is overruled.

The sentence of the District Court isvacated and this case remanded to the Dis-trict Court for further proceedings not in-consistent with this opinion.

TURNAGE, CJ., and HARRISON,HUNT and McDONOUGH, JJ., concur.

MEYUMNSMM

Thomas OWENS, Plaintiffand Appellant,

V.

GENERAL MOTORS CORPORATION,a corporation, Defendant and

Respondent.No. 90-530.

Supreme Court of Montana.

Submitted on Briefs May 10, 1991.Decided June 25, 1991.

Buyer of pickup truck sued manufac-turer, alleging breach of express warrantyand breach of implied warranty of mer-

944 FEDERAL REPORTER, 2d SERIES

"If the account of the evidence is plau-sible in light of the record viewed in itsentirety, (the reviewing) court may notreverse it even though convinced thathad it been sitting as the trier of fact itwould have weighed the evidence differ-ently. Where there are two permissibleviews of the evidence, the factfinder'schoice between them cannot be clearlyerroneous. 450 U.S. at 574 (105 S.Ct. at1511-12]. (emphasis supplied). Seealso, Wrenn v. Gould, 808 F.2d 493 (6thCir.1987); Brown, supra."

Second, it is indeed ironic that, like theMagistrate, Judge Boggs finds the compa-ny's excuse for Ms. Galbraith's termination"unworthy of belief" which necessarily es-tablishes the prima facie case of unlawfuldiscrimination. US. Postal Service Bd. ofGov. v. Aikens, 460 U.S. 711, 103 S.Ct.1478, 75 L.Ed.2d 403 (1983). As the Ai-kens court explained "the plaintiff ... maysucceed ... either by directly persuadingthe court that a discriminatory reason more.likely motivated the employer or indirectlyby showing that the employer's profferedexplanation is unworthy of credence." Id.at 716, 103 S.Ct. at 1482 (citing Burdine,450 U.S. at 256, 101 S.Ct. at 1095.) Theplaintiff here chose the second method ofproof and the magistrate concluded in hisfindings that the defendants committed anunlawful termination. Following the Bur-dine analysis, the defendant here had theburden of production to "clearly set forth,through the introduction of admissible evi-dence, the reasons for the plaintiffs" ter-mination. Burdine at 255, 101 S.Ct. at1094-95. Moreover, as the Court noted,"an articulation not admitted as evidencewill not suffice." Id. at n. 9. In light ofthe defendant's insistence that the termi-nation was based on their so-called "volun-tary termination" policy deemed by theMagistrate and this court as "unworthy ofbelief," there is simply no legal justifica-tion to rule in their favor.

Yet, instead of affording the plaintiff herrightful remedy under the law, JudgeBoggs supposes some other legitimate rea-son existed for the termination, one un-related to racial discrimination. There is

absolutely no admitted evidence of someother valid reason for the defendant's acts.In effect, then, this decision compoundserror with error and in the process turnsdisparate treatment analysis on its head.In one breath he admonishes the companyfor its lack of candor, but, in the nextimplies that, despite the incredible natureof the explanation, the termination wassomehow legitimate.

Judge Guy, in his concurrence, is trou-bled with these impermissible factual find.ings. I, instead, am distressed by thechoice of a judicial tongue-lashing as thesole remedy for this aggrieved plaintiff.Once she established the pretextual pre-sumption, Northern Telecom had the com-plete burden to demonstrate a factuallylegitimate reason for Ms. Galbraith's termi-nation, not merely articulate a "sham" ex-cuse. This is the essence of the Title VIIpretext analysis. Because Northern Tele-com clearly refused to do this, I woulduphold the Magistrate that the defendantshould be held fully liable under the reme-dial provisions of Title VII. Accordingly, Idissent.

Robert Allen WILLIAMS, Jr.,Petitioner-Appellee,

V.

Pamela WITHROW, Respondent-Appellant.

No. 90-2289.

United States Court of Appeals,Sixth Circuit.

Argued May 16, 1991.Decided Sept. 11, 1991.

Inmate petitioned for writ of habeascorpus. The United States District Courtfor the Eastern District of Michigan, Bar-bara K. Hackett, J., granted petition.

284

WILLIAMSCite as 944 FId 2

Warden appealed. The Court of Appeals,Nathaniel R. Jones, Circuit Judge, heldthat: (1) under totality of circumstances,

petitioner's statements during interroga-tion were coerced and should have beensuppressed; (2) admission of those state-ments was not harmless error- and (3) cus-todial interrogation was appropriate issuefor collateral review on petition for writ ofhabeas corpus.

Affirmed.

1. Habeas Corpus Q842, 846Court of Appeals renders de novo re-

view of habeas corpus proceeding in dis-trict court to determine whether petitionerreceived a fundamentally fair trial; how-ever, court must give complete deferenceto state court's findings of fact and renderclearly erroneous review to district court'sfactual findings. 28 U.S.C.A. § 2254(d).

2. Criminal Law e412.1(2)Individual suspected of being involved

in murders was in custody at time of pre-Miranda warning round of questioning atpolice station, during which police officersrepeatedly conveyed to him the seriousnessof his situation and gave him the choice ofcooperating with them or going to jail.U.S.C.A. Const.Amend. 5.

3. Criminal Law 'e412.2(5)Inculpatory statements following Mi-

randa warning may be admissible eventhough they follow on heels of unwarnedstatements if they are determined to beuncoerced and voluntary. U.S.C.A. Const.Amend. 5.4. Criminal Law e-412.1(2)

Inculpatory statements made by sus-pect during custodial interrogation werecoerced, under totality of the circum-stances; defendant had been threatenedwith imprisonment if he did not cooperateand promised leniency if he did. U.S.C.A.ConstAmend. 5.

5. Courts c100(1)In general, new rules are only applica-

ble to habeas corpus cases in two narrowlydefined instances: (1) new rule that placesentire category of primary conduct beyond

v. WITHROW 28584 (6th Cir. 1991)

reach of criminal law or (2) new "water-shed" rules of criminal procedure neces-sary to criminal proceeding's fundamentalfairness.

6. Courts *-100(1)Fulminante decision of the United

States Supreme Court, holding that admis-sion of involuntary confession is subject toharmless error analysis, applied retroac-tively in habeas corpus case; prior to thatdecision, use of involuntary confession tosupport conviction was due process viola-tion regardless of whether evidence apartfrom confession existed, so decision alteredcourt's understanding of bedrock procedur-al elements. U.S.C.A. Const.Amends. 5,14.

7. Habeas Corpus 0490(3)Admission of involuntary confession

was harmful error warranting habeas re-lief; no lawful confessions had been admit-ted and the other trial evidence againstpetitioner, while substantial, was not mas-sive or overwhelming.

8. Habeas Corpus e=490(3)Custodial interrogation is appropriate

issue for collateral review on petition forwrit of habeas corpus.

Daniel P. O'Neil, Traverse City, Mich.(argued and briefed), for petitioner-appel-lee.

Robert Allen Williams, pro se.

Timothy A. Baughman, John D. O'Hair,Pros. Atty., Jeffrey W. Caminsky (arguedand briefed), Detroit, Mich., Becky M. La-miman, Asst. Atty. Gen., Suzanne L Wil-helm, Office of Atty. Gen., Habeas Div.,Lansing, Mich., for respondent-appellant.

Before JONES and RYAN, CircuitJudges, and PECK, Senior Circuit Judge.

NATHANIEL R. JONES, Circuit Judge.

Appellant Pamela Withrow, the wardenof the Michigan Reformatory, appeals froman order of the district court granting thehabeas corpus petition of Robert AllenWilliams, Jr. As we discern no error in the

944 FEDERAL REPORTER, 2d SERIES

district court's grant of Williams' habeascorpus petition, we affirm.

I

On April 6, 1985, police officers in Romu-lus, Michigan discovered two males shot todeath in a parked car. Responding to arumor, Detective Sgt. David Early of theRomulus Police Department went toWilliams' house to question him on April10, 1985. At the house, Williams wassearched but not handcuffed, and wasasked to accompany Sgt. Early to the policestation. When Williams arrived at the po-lice station, he was questioned by Sgt. Ear-ly and his partner, Sgt Ondejko. Williamswas not given Miranda warnings beforethis first round of questioning. AfterWilliams denied having any informationabout the murders, Early told Williamsthat "the main thing on this is we want theshooter. We're not real interested in whowas there or who was along for the ride oranything else. We get the shooter on thisand we're gonna pretty well be content."Williams continued to deny being presentat the scene, prompting Early to state:

You know everything that went down.You just don't want to talk about it.What it's gonna amount to is you cantalk about it now and give us the truthand we're gonna check it out and see if itfits or else we're simply gonna chargeyou and lock you up and you can just tellit to a defense attorney and let him tryand prove differently. We're not play-ing. We've been chasing around on thistoo fuckin' long.

Sgt. Early then gave Williams the choice ofanswering his questions or being formallycharged. Sgt. Early also told Williams thathe had "big problems", that the police wereclose to issuing an arrest warrant for him,and that the police knew of witnesses whowould testify against Williams. At thispoint, Williams admitted that he had pro-vided the murder weapon because he want-ed to sell the gun, and that the murdererhad called him after the crime and told himhe had discarded the gun and his clothes inthe river. Questioning continued, with thepolice again insisting that they were only

interested in finding the shooter. Williamsagain denied being present at the scene ofthe crime. Sgt. Early later testified thatthe April 10 interrogation proceeded for"approximately 35 to 40 minutes" beforeWilliams was read his Miranda rights.Williams was questioned a second time onApril 10, 1985, and again on April 12. Mi-randa warnings were given prior to thesecond session on April 10, and before theApril 12 session, and Williams indicated hisunderstanding of his rights.

At the second interrogation on April 10,the following exchange took place betweenWilliams, Sgt. Early, and Sgt. Ondejko:

Ondejko: Do you wish to change yourstory?Williams: What difference is it going tomake?Ondejko: It's gonna make a lot of differ-ence to you.Early: I told you. If you told the truth

Williams: I've been telling you the truth.Early: Oh, you've been making up fairytales ever since you've been in here.You're giving us, like he says, parts ofthe truth, parts of what you want us tobelieve, and part of what really hap-pened.Williams: If I tell you everything thathappened, I'm gonna walk outta here,huh?Ondejko: Someday you may stand achance of walking.Early: I'll make you a deal. You tell useverything that happened and you tell usthe truth and I confirm it on a polygraphthat you're telling us the truth. Yeah,you walk.

Following this exchange, Williams admit-ted driving Mark Sennett, identified as theshooter, to the scene of the murders follow-ing behind the victims' car. He also admit-ted that he turned his car around at therequest of Sennett, that he heard shots andmuzzle flashes, and that he drove Sennettaway from the scene and helped dispose ofSennett's clothing and the murder weapon.Williams denied knowing that Sennett wasgoing to kill the two victims.

286

WILLIAMSCite as944 FId

Officer Early then elaborated on the dealwith Williams:

Early: You're worried now about usturning this around on you and chargingyou too. We've said that basically wewant you as a witness. Right?Williams: Yes.Early: Alright, I'm gonna tell you rightnow, at the start of the recording, if weuse this recording against you, it's got tobe in its entirety. We can't edit it or cutit. We told you if you are a witness tothis and if you are telling the truth, andif you are willing to testify, then we arenot going to charge you as a co-defen-dant. That's what we told you, right?Williams: Yes.Early: Alright. We're still gonna go bythat agreement. And I don't. (Abruptstop.] You've been around, but if,whether you're up on the law, if a policeofficer makes an agreement like that it'sgot to be honored. You can go to courtand say we made that agreement and webacked down on it and we can't presentthese tapes and use anything else we'vegot. So it's an agreement we have tostick to by law. I can't promise youanything and then turn around and backout of it and use it against you.Williams: O.K.Early: Right now you're a witness to thecrime. But we want the truth. If youstart lying to us and you start playinggames, yeah, we're gonna charge you.A witness doesn't do us any good unlesshe tells the truth. We're not trying tohang anybody with any made up testimo-ny or anything but the truth. Afteryou're done with this, we still gonna putyou on a polygraph and you're gonnahave to show us you're telling the truth.So that's the deal. You're telling thetruth and you're not being charged.That fair enough?Williams: Yeah.On October 29, 1985, Williams was con-

victed of two counts of first-degree murderand two counts of felony firearm chargesin the Circuit Court of Wayne County. Thestate trial court excluded the statementsfrom April 11 and 12 as "improperly ob-

v. wITHRow 287284 (6th Clr. 1991)

tained" under Michigan caselaw becausethe delay in actually arresting Williamswas "used as a tool to extract the state-ments". On September 7, 1988, the Courtof Appeals of Michigan affirmed Williams'conviction. People v. Williams, 171 Mich.App. 234, 429 N.W.2d 649 (1989). TheMichigan Supreme Court denied leave toappeal, and the U.S. Supreme Court deniedcertiorari. 493 U.S. 956, 110 S.Ct. 369, 107L.Ed.2d 355 (1989). On January 31, 1990,Williams filed a petition for a writ of habe-as corpus in the U.S. District Court for theEastern District of Michigan.

The district court first found thatWilliams was in custody as of the momenton April 10 when Sgt. Early gave him achoice between answering questions or be-ing charged. As a result, Williams shouldhave been given his Miranda warnings atthat point. Instead, however, the policecontinued their questioning without givingMiranda warnings, and Williams made in-culpatory statements. Williams made fur-ther inculpatory statements after Mirandawarnings were finally given some fortyminutes into the interrogation.

The district court evaluated the admissi-bility of these post-Miranda statementsunder Oregon v. Elstad, 470 U.S. 298, 105S.Ct. 1285, 84 L.Ed.2d 222 (1985). Elstadheld that there is no presumption of coer-cion when a suspect makes incriminatingstatements following earlier, unwarnedstatements. In that situation, "the rele-vant inquiry is whether; in fact, the secondstatement was also voluntarily made. Asin any such inquiry, the finder of fact mustexamine the surrounding circumstancesand the entire course of police conduct withrespect to the suspect in evaluating thevoluntariness of his statements." Elstad,470 U.S. at 318, 105 S.Ct. at 1297.

Focusing on whether Williams' admis-sions were induced by a promise of lenien-cy, the district court concluded that:

In the context of this uncounseled in-terrogation, following a session wherepolice had obtained unwarned admissionsand repeatedly suggested that they wereonly interested in finding out who theactual shooter was, this Court finds that

944 FEDERAL REPORTER, 2d SERIES

the statement that petitioner would"walk" if he told the truth constituted apromise of leniency sufficient to over-come petitioner's will and render his ad-missions involuntary. As Justice Whiteindicated in Brady [v. United States, 397U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747(1970) J, "[i]n such circumstances, even amild promise of leniency (may be] suffi-cient to bar the confession, not becausethe promise was an illegal act as such,but because defendants at such times aretoo sensitive to inducement and the possi-ble impact on them too great to ignoreand too difficult to assess." Brady, su-pra, at 754, 90 S.Ct. at 1472.

The district court declared that Williams'inculpatory statements on April 10 ob-tained after the Miranda warnings weregiven violated the dictates of Oregon v.Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84L.Ed.2d 222 (1985) because of the coercion.See also Bram v. United States, 168 U.S.532, 542-43, 18 S.Ct. 183, 187, 42 L.Ed. 568(1897) (to be admissible, a confession mustbe "free and voluntary: that is, must notbe extracted by any sort of threats orviolence, nor obtained by any direct or im-plied promises, however slight, nor by theexertion of any improper influence.").

The district court also considered thestatements under harmless error analysis.United States v. Wolf 879 F.2d 1320, 1323(6th Cir.1989) ("Appellate courts, includingour own, have applied the harmless erroranalysis to [otherwise voluntary] confes-sions admitted in violation of the relatedrules of Edwards [v. Arizona, 451 U.S.477, 101 S.Ct. 1880, 68 LEd.2d 378 (1981) ]and Miranda [v. Arizona, 384 U.S. 436, 86S.Ct. 1602, 16 LEd.2d 694 (1966) ]."). Thedistrict court found that sufficient evidenceto convict independent of the confession didnot exist; therefore, admission of the con-fession was not harmless error.

On October 29, 1990, the district courtgranted Williams' petition for a writ ofhabeas corpus and gave Michigan ninety

1. The government's brief argued that the federalgrounds for relief were never fairly presented tothe state court for review. At oral argument,

days to "take steps to provide" Williamswith a new trial. This appeal followed.

II(1] This court renders de novo review

of a habeas corpus proceeding in the dis-trict court to determine whether the peti-tioner received a fundamentally fair trial.See Lundy v. Campbell, 888 F.2d 467, 469-70 (6th Cir.1989), cert. denied, - U.S.-, 110 S.Ct. 2212, 109 LEd.2d 538(1990). However, this court must givecomplete deference to the state court'sfindings of fact, and render clearly errone-ous review to the district court's factualfindings. Id

(21 The principal issue in this appeal iswhether the record discloses a fifth amend-ment violation sufficient to warrant habeasrelief.' Withrow argues that there was noviolation of Williams' fifth amendmentrights because Williams was not in custodyuntil he made an inciiminating statement,at which point he was Mirandaized. Thisargument is supported by the state trialcourt and the Michigan Court of Appeals,which both found that Williams "was not incustody until he was read his rights."Williams, 429 N.W.2d at 651. Thus, con-tends Withrow, because the federal habeasstatute "requires the federal courts toshow a high measure of deference to thefactfindings made by the state courts",Sumner v. Mata, 455 U.S. 591, 598, 102S.Ct. 1303, 1307, 71 L.Ed.2d 480 (1982) (percuriam), the district court exceeded itsmandate by not explaining in sufficient de-tail why "the record in the State courtproceeding, considered as a whole, does notfairly support such factual determination."28 U.S.C. § 2254(d) (1988).

The district court did-recognize its obli-gation to defer to the state court's factualfindings. With respect to the crucial "incustody" determination, however, the dis-trict court recognized that "the overallquestion of whether petitioner was in cus-tody is a mixed question of fact and lawwhich requires an independent federal de-

the government conceded that this position waswithout merit.

288

WILLIAMS v. WITHROWCite as 944 F.2d 284 (6th Cir. 1991)

termination." Even if custody is a factualdetermination entitled to a presumption ofcorrectness, however, the district courtfound that "this particular state court find-

ing is so completely devoid of support inthe record that the presumption is over-come.

We find that the district court correctlydecided that Williams was "in custody"when Sgt. Early told him "you can talkabout it now and give us the truth andwe're gonna check it out and see if it fitsor else we're simply gonna charge youand lock you up [.]" (Emphasis added.)Two police officers came to Williams'house, searched him, put him in an un-marked police car, and transported him thepolice station. The officers repeatedly con-veyed to Williams the seriousness of hissituation, and threatened him with arrest.Williams was given the choice of cooperat-ing with the police or going to jail. Thedistrict judge, who listened to an audio tapeof the interrogation, found the officers'tone to be "severe and accusatory." Clear-ly, a reasonable person would not feel freeto leave; therefore, Williams was in custo-dy. Miranda v. Arizona, 384 U.S. 436,444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694(1966) ("[C]ustodial interrogation ... [is]questioning initiated by law enforcementofficers after a person has been taken intocustody or otherwise deprived of his free-dom of action in any significant way.").

(31 Williams' inculpatory statements af-ter he was given Miranda warnings couldbe admissible, even though the statementsfollowed on the heels of unwarned state-ments, if the statements are determined tobe uncoerced and voluntary. Oregon v.Elsta4 470 U.S. 298, 309, 105 S.Ct. 1285,1293, 84 LEd.2d 222 (1985). "'[Tlhe ulti-mate issue of "voluntariness" is a legalquestion requiring independent federal de-termination."' Arizona v. -Fulminante,- U.S. -, 111 S.Ct. 1246, 1252, 113LEd.2d 302 (1991) (citations omitted).Withrow contends that the district courtincorrectly concluded that Williams' state-Tnents were involuntary under Oregon v.Elstad because there was no overreachingor coercion by the police. The police mere-

ly offered Williams a conditional incentiveto tell the truth, and the fact that Williamsdid not fulfill his part of the bargain bytelling the truth should not lead to thesuppression of his statement. The police,asserts Withrow, intended to live up totheir part of the bargain. Officer Earlytestified that "I told Mr. Williams that if hewas a witness, and he had no active part inthe crime, and that could be confirmed bypolygraph, that he would not be charged."

(4] The district court relied on the "thesurrounding circumstances and the entirecourse of police conduct with respect to thesuspect in evaluating the voluntariness ofhis statements." Elstad, 470 U.S. at 318,105 S.Ct. at 1298. We believe that anevaluation of "the entire course of policeconduct" in this case establishes thatWilliams' statements were not voluntary.His statements were conditioned on his be-lief that he would be released if he talked.The officers' promises of leniency were in-tended to induce Williams' admissions.

We recognize that the success of a crimi-nal investigation often hinges on obtaininginformation from uncooperative individu-als. Indeed, niany otherwise unobtainableconvictions are secured through extendingimmunity in exchange for a defendant'stestimony against more culpable co-defen-dants. The necessity *of foregoing theprosecution of an informant in order toconvict the ringleaders is an altogether dif-ferent situation from the deliberate induce-ment of inculpatory statements through il-lusory promises of leniency. Even in situa-tions where immunity is not envisaged, wehave no doubt that effective interrogationtechniques require, to some extent, a car-rot-and-stick approach to eliciting informa-tion from an uncooperative suspect. How-ever, when promises of leniency, coupledwith threats of immediate imprisonment,have a coercive effect on a suspect, we areobliged to inquire whether "the 'coercion'in question was sufficient to overbear thewill of the accused." McCall v. Dutton,863 F.2d 454, 459 (6th Cir.), cert. denied,490 U.S. 1020, 109 S.Ct. 1744, 104 LEd.2d181 (1989) (three factors of voluntarinesstest are (1) objectively coercive police activi-

289

944 FEDERAL REPORTER, 2d SERIES

ty which (2) was sufficient to overbear thewill of the accused, and (3) petitioner's willwas overborne as a result of the coercion).We find that, under the totality of thecircumstances of this case, Williams' state-ments during the April 10 interrogationwere coerced in violation of the fifthamendment and should therefore be sup-pressed.

III

The district court granted the writ ofhabeas corpus based on its conclusion thatthe incriminating statements on April 10-12 should be excluded as involuntary.However, the state trial court had alreadyexcluded the statements made on April 11and 12 in September 1985, one month be-fore Williams' bench trial. The trial judgebased the exclusion on Michigan law:

Defendant was lodged in jail, and wasquestioned twice more in addition to un-dergoing a polygraph examination beforehe was arraigned on the afternoon ofApril 12. Statements obtained during anunnecessary delay in arraignment, wherethe delay is used as a tool to extract thestatements, are not admissible. Peoplev. Mallory, 421 Mich. 229, 241; 365NW2d 673 (1985); People v. Blade4 421Mich. 39, 70; 365 NW2d 56 (1985).No facts have been offered to explain thedelay in this case. The Court finds thatthe delay was for the purpose of extract-ing inculpatory statements. The state-ments made by Defendant on April 11and April 12 were improperly obtainedand must be excluded.The opinion of the district court inexplic-

ably does not mention that the April 11 and12 statements had already been excludedby the state trial court. Withrow arguesthat Judge Hackett was "completely un-aware" that the April 11 and 12 statementshad already been excluded and were neverintroduced into evidence at the bench trial.Although the statements made on April 11-12 were not admitted against Williams attrial, our conclusion that the inculpatorystatements made on April 10 should havebeen excluded still mandates a new trial.Furthermore, we are convinced that the

other evidence against Williams-withoutthe April 10 statements-was insufficientto support a conviction.

The district court considered the applica.bility of United States v. Wolf 879 F.2d1320 (6th Cir.1989), which held that "theerroneous admission of an otherwise volun.tary.confession obtained in violation of theprophylactic rules of Miranda and its prog-eny can be harmless." Id. at 1323 (cita-tions omitted). As Wolf was not a habeascorpus case, the district court was not re-quired to address the harmless error issue.Under the U.S. Supreme Court's decision inArizona v. Fulminante, - U.S. -, 111S.Ct. 1246, 113 L.Ed.2d 302 (1991), how-ever, harmless error analysis is applicableto the instant case. Fulminante held thatthe admission of an involuntary confessionis subject to harmless error analysis. Id.,111 S.Ct. at 1265.

[5,61 It is unclear, however, whetherFulminante should be applied retroac-tively to this case. In general, new rulesare only applicable to habeas corpus casesin two narrowly defined instances: (1) ifthe new rule places an entire category ofprimary conduct beyond the reach of thecriminal law- or (2) new "watershed" rulesof criminal procedure necessary to a crimi-nal proceeding's fundamental fairness.Sawyer v. Smith, - U.S. -, 110 S.Ct.2822, 2331, 111 LEd.2d 193 (1990). BeforeFulminante, the use of an involuntary con-fession to support a conviction was a dueprocess violation whether or not evidenceapart from the confession existed. Itseems clear, then, that Fulminante "al-ter(s] our understanding of the bedrockprocedural elements", 110 S.CL at 2831,therefore harmless error analysis must beapplied.

(7] The district court applied harmlesserror analysis to the involuntary confes-sion, and concluded that:

There were no lawful confessions admit-ted in this case. Moreover, the otherevidence against petitioner at trial, whilesubstantial, was not massive or over-whelming. No witness was able to iden-tify petitioner as being present at the

290

MARTUCCI v. JOHNSONCIte as 944 F.2d 291 (6thCr. 1991)

scene of the murders. Petitioner waslinked by testimony to the murder weap-on and to the victims. If, arguendo,harmless error analysis did apply to theadmission of petitioner's inculpatorystatements, this court could not find thatadmission of those statements was"harmless error beyond a reasonabledoubt." Chapman v. California, 386U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d705 (1967).We are in agreement with the district

court that the admission of the April 10statements was not harmless error.

IV(8] Finally, Withrow argues 'that custo-

dial interrogation is not an appropriate is-sue for collateral review on petition for awrit of habeas corpus. Withrow cites toStone v. Powell, 428 U.S. 465, 96 S.Ct.3037, 49 L.Ed.2d 1067 (1976), which heldthat collateral relief in a habeas proceedingwas not available for defendants raisingfourth amendment search and seizureclaims, when those defendants have had afull and fair opportunity to raise thoseclaims in state court. Both in his brief andduring oral argument, counsel for Withrowevinced considerable hostility toward theentire habeas system of review, but provid-ed no support for extending Stone v. Pow-ell to fifth amendment claims. Neither theSupreme Court nor any Courts of Appealhas ever indicated a willingness to do so.Moreover, it is extremely unlikely the Su-preme Court will do so anytime soon, givenits statement in Funlminante that "'theultimate issue of "voluntariness" is a legalquestion requiring independent federal de-termination.'" 111 S.Ct. at 1252 (citationomitted).

VThe district court's grant of Williams'

petition for a writ of habeas corpus isAFFIRMED.

Len MARTUCCI, Plaintiff-Appellant,

V.

Avery JOHNSON, et al., Defendants-Appellees.

No. 89-6574.

United States Court of Appeals,Sixth Circuit

Argued May 2, 1991.Decided Sept. 12, 1991.

Former pretrial detainee filed § 1983action alleging various constitutional viola-tions by sheriffs department officials inconcert with State Bureau of Investigationagent. The United States District Court,Eastern District of Tennessee, James H.Jarvis, J., entered summary judgmentagainst detainee, and he appealed. TheCourt of Appeals, Krupansky, CircuitJudge, held that: (1) detainee's placementin segregated confinement did not consti-tute "punishment," and, thus, did not, inand of itself, violate due process; (2) lackof hearing at which detainee could contestreasons for his confinement did not violatehis procedural due process rights; (3) de-tainee was not denied access to courts; and(4) jailers' decision to withhold detainee'sincoming and outgoing mail did not violatedetainee's First Amendment rights.

Affirmed.

1. Civil Rights 0135Court sitting in judgment of constitu-

tionality of jail officials' conduct mustguard against temptation to second-guessjailers by concluding that they had lessrestrictive way of solving problem at hand.42 U.S.C.A. § 1983.

2. Constitutional Law W272(2)Prisons el3(5)

Conditions imposed on pretrial detaineeduring his segregated confinement werereasonably related to legitimate govern-mental objectives of aborting his escape

. 291

HERRERACite as954 F.d

it must be assumed that at the time the tax

gfunds were received, Perez was aware

ta the BUE was attempting to collect

money from him."

When asked how he divided the tax re-

fund, Perez testified, that he "gave [hiswife] her share." He later acknowledgedthat the distribution amounted to a 50/50

split. In response to a question inquiringwhy he had divided the check 50/50, hetestified: "because she's on this checkhere, August and Cheryl Perez, III, soshe's entitled to half of that" When askedwhether he consulted anyone regarding theownership of the tax refunds, he statedthat he could not recall.

The finding of intent to hinder, delay, ordefraud a creditor is a factual one whichmust be reviewed under the clear errorstandard. In re Olivier, 819 F.2d 550, 552(5th Cir.1987); Matter of Reed, 700 F.2d986, 992 (5th Cir.1983). Although "evi-dence of actual intent to defraud creditorsis required to support a finding sufficientto deny discharge," Reed, 700 F.2d at 991,"(a]ctual intent may be inferred from theactions of the debtor and may be proven bycircumstantial evidence." Matter of Chas-tant, 873 F.2d 89, 91 (5th Cir.1989). Theevidence in this case, although circumstan-tial, supports the bankruptcy court's find-ing of actual intent to hinder, delay, ordefraud.

Although, faced with the same evidence,we might have arrived at a different con-clusion, we cannot say that the bankruptcycourt's finding is clearly erroneous. SeeNorris v. Hartmarc Specialty Stores,Inc., 913 F.2d 253, 255 (5th Cir.1990). Con-sequently, we must-affirm the bankruptcycourt's denial of a discharge under§ 727(a)(2)(A). Since the outcome of thisProceeding would not be affected by ourdiscussion of the satisfactory explanationclaim, we decline to reach that issue.

IV. CONCLUSION

Since we find no clear error in the bank-ruptcy court's finding of intent to hinder,

v. COLLINS 10291029 (5thcfr. 1992)

delay, or defraud, we AFFIRM the judg-ment of the district court.

X1Y NUMBSTEM

Leonel Torres HERRERA,Petitioner-Appellee,

V.

James A. COLLLNS, Director, Texas De-partment of Criminal Justice, Institu-tional Division, Respondent-Appellant

No. 92-2114.

United States Court of Appeals,Fifth Circuit.

Feb. 18, 1992.

Petitioner, whose conviction of capitalmurder and sentence of death had beenaffirmed by the Texas Court of CriminalAppeals, 682 S.W.2d 313, and who had beendenied habeas corpus relief by the TexasCourt of Criminal Appeals, 819 S.W.2d 528,sought federal habeas corpus relief. Deni-al of first petition was affirmed by theCourt of Appeals, 904 F.2d 944, and peti-tioner filed second petition. The UnitedStates District Court for the Southern Dis-trict of Texas, Ricardo N. Hinojosa, J.,granted stay of execution pending eviden-tiary hearing, and director of the TexasDepartment of Criminal Justice appealed.The Court of Appeals, W. Eugene Davis,Circuit Judge, held that (1) petition, asamplified by exhibits, was not sufficient torequire hearing on Brady claim that statewithheld information that petitioner wasinnocent, and (2) petitioner's claim of actualinnocence of capital murder was not aground upon which habeas relief could begranted.

Stay of execution vacated.

954 FEDERAL REPORTER, 2d SERIES

1. Habeas Corpus -745Habeas corpus petition, as amplified

by exhibits, was not sufficient to requirehearing on Brady claim that state knewthat petitioner was innocent of chargedcapital murder but withheld informationfrom petitioner before his trial; petitionerrelied on affidavits and posttrial newspaperclippings to suggest that prosecutor knewthat petitioner's brother, rather than peti-tioner, committed murder, but nothing sug-gested that prosecutor could have knownthat at time of trial.

2. Criminal Law e=700(3)Exculpatory evidence indicating that

brother of convicted defendant rather thandefendant, committed murder was availableequally to defense and prosecution, andthus, prosecution's alleged failure to sup-ply such information prior to trial was notBrady violation; defendant's brother alleg-edly committed murder in car which defen-dant normally drove, so that informationwas likely more available to defense than itwas to prosecution.

3. Habeas Corpus Qm462Petitioner's claim of actual innocence

of murder of which he had been convicted,supported by several affidavits, includingaffidavit from petitioner's nephew, indicat-ing that petitioner's brother had committedthat murder did not allege a ground uponwhich habeas relief could be granted.

4. Criminal Law e1219Although in nonabuse of habeas cor-

pus context, movant in capital case seekingstay of execution need not always showprobability of success on merits, he mustpresent substantial case on merits whenserious legal question is involved and showthat balance of equities weighs heavily infavor of granting stay; however, balanceof equities cannot weigh in favor of stay inabsence of substantial legal claims uponwhich relief may be granted.

5. Habeas Corpus 0462Claim of "actual innocence" is not

ground upon which habeas corpus reliefcan be granted.

6. Habeas Corpus -494Claims of newly discovered evid 4

casting doubt on petitioner's guilt, arecognizable in federal habeas corpus.ceeding.

7. Criminal Law 6-998(1)Right to collaterally attack a conic.,

is not a right guaranteed by Constituk8. Criminal Law 6938(1), 998(10)

Under Texas law, claim of innommbased on newly discovered evidence i.ground for new trial, but will not suppycollateral review.

9. Habeas Corpus e*818, 896Claims asserted by petitioner in second

petition for habeas corpus challenging cap.tal murder conviction were barred forabuse of writ, and thus, no substantlgrounds existed upon which relief might b,granted so as to warrant certificate ofprobable cause.

Dan Morales, Atty. Gen., Joan C. Barton.Asst. Atty. Gen., Austin, Tex., for respoo.dent-appellant.

Mark Evan Olive, Tallahassee, Fla.. forpetitioner-appellee.

Appeal from the United States DistrictCourt for the Southern District of Texas.

Before KING, DAVIS and JONES,Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

James A. Collins, Director, Texas Depart-ment of Criminal Justice, appeals the dis-trict court's order staying the execution ofLeonel Torres Herrera. Herrera's execo-tion is scheduled for February 19, 1992.between midnight and dawn.

I.The district court's thorough memore

dum opinion and order of February 17 outlines in detail the critical steps which haebeen taken in this case. In summary.Herrera was sentenced to death on Jan*ary 21, 1982, following his conviction forcapital murder. The Texas Court of Crim"

1030

HERRERACite as 954 F.2d I

.Appeals affirmed petitioner's convictionI death sentence, Herrera v. State, 682

%v.2d 313 (Tex.Crim.App.1984) (en banc).

he United States Supreme Court denied

rtiorari, Herrera v. Texas, 471 U.S. 1131,: s.Ct. 2665, 86 L.Ed.2d 282 (1985). Peti-

* oner filed a petition for writ of habeas

wvrpus in the 197th District Court of Cam-

eron County, Texas. The convicting court

rcommended that relief be denied, and, in

August 1985, the Texas Court of Criminal

Appeals denied relief. Ex parte Herrera,Application # 12,848-02-Texas CriminalAppeals 1985. Thereafter, on August 7,1985, Herrera filed his first federal petitionfor habeas corpus, and the district courtstayed Herrera's scheduled execution. InOctober 1989, the federal district court re-jected Herrera's habeas petition and dis-solved the stay of execution. Herrera ap-pealed that judgment to this court. OnJune 25, 1990, we affirmed the districtcourt judgment and vacated Herrera's stayof execution, Herrera -v. Collins, 904 F.2d944 (5th Cir.1990). The Supreme Court de-nied certiorari, Herrera v. Collins, - U.S.-, 111 S.Ct. 307, 112 L.Ed.2d 260 (1990).

Herrera filed his second application forstate writ of habeas corpus on December12, 1990. On January 14, 1991, the trialcourt withdrew an earlier order, enteredfindings of fact and conclusions of law, anddenied habeas relief. The Court of Crimi-nal Appeals denied relief on May 29, 1991,on the basis of the trial court's finding andconclusions and vacated a stay of execu-tion, Ex parte Herrera, 819 S.W.2d 528(Tex.Crim.App.1991).

. Herrera raises the following claims in the in-stant habeas petition:

1. The State's failure to reveal exculpatoryevidence resulted in the conviction and sen-tence of an innocent person, in violation ofthe Sixth, Eighth, and Fourteenth Amend-ments. Petitioner is innocent, another personhas confessed to the crime, and the Petition-er's execution would violate the Eighth andFourteenth Amendments.2. Petitioner was tried and sentenced todeath for the murder of two police officers bya jury whose members included a police offi-cer detective in an office that investigated thecase, in violation of the Petitioner's Sixth,Eighth, and Fourteenth Amendment rights.3. During trial, recesses, and juror delibera-tions, juror-police officer Bressler was armed,

v. COLLINS 1031029 (Sth Cir. 1992)

On December 17, 1991, Herrera filed apetition for writ of certiorari in the UnitedStates Supreme Court, which is still pend-ing. Herrera filed the instant applicationfor federal writ of habeas corpus in thedistrict court on February 16, 1992, raisingfive claims for relief.' The claims thatHerrera asserts in his present petition arenot duplicative of the claims he asserted inhis first petition.

The district court denied all relief onclaims 2, 3, 4 and 5 on grounds of writabuse. The court initially denied petition-er's Brady claim, (which was included aspart of his first claim) on grounds thatinsufficient facts were presented to sup-port this claim. On reconsideration, thedistrict court, however, concluded that suf-ficient facts were presented to require ahearing, which it scheduled for February21, 1992. The district court granted a stayof execution pending that hearing. Thedistrict court also granted petitioner's mo-tion for a stay of execution to permit peti-tioner to further litigate in state court thesecond prong of his first claim-actual in-nocence. Alternatively, the court granteda stay pending rendition of an opinion bythis court in May v. Collins, No. 91-6273.The district court also signed a Rule 54(b)judgment dismissing claims 2-5 and issueda certificate of probable cause as to theseclaims. Collins filed an appeal from thedistrict court's order granting a stay ofexecution and moved this court for an or-der vacating the stay of execution.

and at least one juror noticed; in addition,and contrary to his sworn statements duringvoir dire, this officer knew one of the victims.These facts reveal that Petitioner's convictionand death sentence occurred in violation ofhis Sixth. Eighth, and Fourteenth Amendmentrights.4. Petitioner's sentencers were precludedfrom considering evidence which counseledin favor of a sentence less than death, inviolation of Petitioner's Sixth, Eighth, andFourteenth Amendment rights.5. The trial judge wrongfully refused to al-low Petitioner to speak at all during Petition-er's trial and capital sentencing proceeding,thereby violating Petitioner's federal Constitu-tional rights.

0'

954 FEDERAL REPORTER, 2d SERIES

II.

For reasons stated by the district court,it correctly rejected petitioner's claims 2, 3,4 and 5 because the petitioner has clearlyabused the writ as to those claims. SeeMcCleskey v. Zant, - U.S. -, 111 S.Ct.1454, 113 L.Ed.2d 517 (1991).

[1] On the Brady prong of petitioner'sfirst claim, we agree with the districtcourt's initial conclusion that petitioner nei-ther proffered evidence nor alleged particu-larized facts that demonstrate that thestate withheld any favorable evidence fromHerrera before his trial. See Brady v.Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10L.Ed.2d 215 (1963). As stated above, thedistrict court, on reconsideration, concludedthat the pleadings and affidavits were suf-ficient to require a hearing on one issue:whether the state knew that petitioner wasinnocent of the murder of Officer Carrisa-lez and withheld that information fromHerrera before his trial. We are not per-suaded that Herrera's petition, as amplifiedby his exhibits, states specific facts that"point to a 'real possibility of constitutionalerror.'" Blackledge v. Allison, 431 U.S.63, 75 n. 7, 97 S.Ct. 1621, 1630 n. 7, 52L.Ed.2d 136 (1977). (quoting Advisory Com-mittee Note to Rule 4, Rules GoverningHabeas Corpus Cases, 28 U.S.C. (1977Supp.), p. 337).

Herrera never identifies any specific evi-dence that he contends was withheld by theprosecutor before trial. Instead, he relieson affidavits and newspaper clippings tosuggest that the prosecutor knew thatRaul Herrera, rather than Leonel Herrera,committed the murders. Nothing in any ofthe exhibits suggests, however, that theprosecutor could have known of the infor-mation contained within them at the timeof Herrera's trial.

The newspaper clippings upon whichHerrera relies make no reference at all tothe instant case and do not refer to policecorruption in connection with drug activityin South Texas prior to 1985-three yearsafter Herrera's trial. Further, they con-tain nothing to suggest that anyone whotestified at his trial or any officials in Cam-eron County, where Herrera was convicted,

have ever been involved in any wrong,,ing. The affidavit of Raul Herrera, Jrstates that he told a police officer that hisfather committed the murders rather thanPetitioner, but he does not say when or towhom this information was conveve.Consequently, Herrera has not pled Withsufficient particularity the elements of hisBrady claim to require a hearing. Id.

[2] Moreover, the exculpatory evidenceon which Herrera relies is a claim thatsomeone else, and not he, committed theoffenses of which he was convicted. Theperson at whom he points the finger is hisbrother, Raul, now deceased. Particularlyin light of the fact that his brother alleg.edly committed the offense in the car whichPetitioner normally drove, this informationclearly was not only available to the de.fense, but was likely more available to thedefense than it was to the prosecution."Brady does not oblige the government toprovide the defendants with evidence thatthey could obtain from other sources byexercising reasonable diligence." UnitedStates v. McKenzie, 768 F.2d 602, 608 (5thCir.1985) (citation omitted), cert. denied,474 U.S. 1086, 106 S.Ct. 861, 88 L.Ed.2d 900(1986). "When evidence is available equal.ly to the defense and the prosecution, thedefendants must bear the responsibility fortheir failure to diligently seek its dis-covery." Id., citing United States v. Mil-stead, 671 F.2d 950,. 953 (5th Cir.1982).Herrera's attempt to couch this claim interms of a Brady violation therefore isdisingenuous.

(31 We therefore turn to the second is-sue which the district court concluded re-quired it to grant a stay of execution. As apart of his first claim, Herrera contendedthat he was actually innocent of Carrisa-les's murder. Herrera filed a substantiallyidentical claim in the state habeas courtIn support of his state habeas claim, Herr-era attached two affidavits. First, he at-tached the affidavit of attorney Hector J.Villareal, who had represented petitioner'sbrother, Raul Herrera, on a charge of at-tempted murder. Villareal asserted thatRaul Herrera confessed to him that Raul,

1032

HERRERACite as 954 F2d

--at Petitioner, murdered both Rucker and

.rrisalez. Herrera also submitted the af-j. 3,it of Franco Palacios, one of his broth-

.r Raul's cell mates. Palacios stated that

F.Aul confessed to him that Raul had mur-.ered Rucker and Carrisalez.

When Herrera filed his federal habeas

tiion, he attached two additional affida-,is. The most significant affidavit he at-

uached is the affidavit of his nephew, RaulHerrera, Jr., the son of Raul Herrera.Raul Herrera, Jr. stated that he was withhis father on the date of the murders andthat he saw his father kill both Rucker andCarrisalez. According to Raul Herrera,Jr., the petitioner was not present when themurders occurred. Raul, Jr. also statedthat he told a police officer what occurredbut the officer told him never to repeat it.Raul, Jr. did not suggest when this conver-sation occurred. Raul, Jr. stated that noattorney representing the petitioner hadever asked him about the events until re-cently. His affidavit is dated about twoweeks ago, January 29, 1992. Petitioneralso included the affidavit of an old school-mate of the Herrera brothers, who relatedthat Raul, Sr. made a confession to himsimilar to the one attorney Villareal assert-ed that Raul had made.

In his federal habeas petition, Herreraasserted that he was entitled to a hearingon his actual innocence claim, particularlyin light of Raul Herrera, Jr.'s affidavit.The district court concluded that petitionershould have an opportunity to present theaffidavit of the alleged eye witness, RaulHerrera, Jr. The district court then grant-ed the petitioner's stay of execution andretained jurisdiction of the petitioner's "ac-tual innocence" claim until noon, February21, 1992. The district court directed that itwould dismiss that claim without prejudiceon February 21, 1992, provided petitionerhad filed a successive state habeas petitionso that he could present the additional evi-dence to that court.

(4] We begin our analysis of the propri-ety of the district court's stay with therecent admonition of the Supreme Court:"A stay of execution pending disposition ofa second or successive federal habeas peti-

v. COLLINS 10331029 (5th Cir. 1992)

tion should be granted only when there are'substantial grounds upon which relief maybe granted.'" Delo v. Stokes, 495 U.S.320, 110 S.Ct. 1880, 1881, 109 L.Ed.2d 325,328 (1990) (quoting Barefoot v. Estelle, 463U.S. 880, 895, 103 S.Ct. 3383, 3396, 77L.Ed.2d 1090 (1983)). This court has heldthat a court should consider four factors indeciding whether to grant a stay of execu-tion:

(1) whether the movant has made ashowing of likelihood of success on themerits, (2) whether the movant has madea showing of irreparable injury if thestay is not granted, (3) whether thegranting of the stay would substantiallyharm the other parties, and (4) whetherthe granting of the stay would serve thepublic interest

Byrne v. Roemer, 847 F.2d 1130, 1133 (5thCir.1988) (quoting Streetman v. Lynaugh,835 F.2d 1521, 1524 (5th Cir.1988)). Al-though in a non-abuse context the movantin a capital case "'need not always show aprobability of success on the merits, hemust present a substantial case on the mer-its when a serious legal question is in-volved and show that the balance of theequities [i.e., the other three factors]weighs heavily in the favor of granting thestay.'" Celestine v. Butler, 823 F.2d 74,77 (5th Cir.) (quoting O'Bryan v. McKas-kle, 729 F.2d 991, 993 (5th Cir.1984)), cert.denied, 483 U.S. 1036, 108 S.Ct. 6, 97L.Ed.2d 796 (1987). However, the SupremeCourt's recent decision in Delo v. Stokes,makes it clear that, in a case involving asecond or subsequent petition, the latterthree factors cannot weigh in favor of astay in the absence of substantial legalclaims upon which relief may be granted.

(5-7] Herrera's claim of "actual inno-cence" presents no such substantial claimfor relief. The rule is well established thatclaims of newly discovered evidence, cast-ing doubt on the petitioner's guilt, are notcognizable in federal habeas corpus. SeeTownsend v. Sain, 372 U.S. 293, 317, 83S.Ct. 745, 9 L.Ed.2d 770 (1963). Texas hasadopted a similar rule. See Ex parte Bind-er, 660 S.W.2d 103, 104-106 (Tex.Crim.App.1983) (en banc). Moreover, the right to

954 FEDERAL REPORTER, 2d SERIES

collaterally attack a conviction is not aright guaranteed by the Constitution.Pennsylvania v. Finley, 481 U.S. 551, 107S.CL 1990, 1994, 95 L.Ed.2d 539 (1987).

In Townsend, the Court held that a fed-eral habeas court must grant an evidentia-ry hearing on an allegation of newly discov-ered evidence only when the evidence"bearfs] upon the constitutionality of theapplicant's detention; the existence merelyof newly discovered evidence relevant tothe guilt of a state prisoner is not a groundfor relief on federal habeas corpus." 372U.S. at 317, 83 S.Ct. at 759. We haverecognized the above statement as theCourt's holding in at least two cases, Arm-stead v. Maggio, 720 F.2d 894, 896 (5thCir.1983) (per curiam) and Boyd v. Puckett,905 F.2d 895, 896 (5th Cir.), cert, de-nied, - U.S. -, 111 S.Ct. 526, 112L.Ed.2d 537 (1990).

(8] Thus, once Herrera's Brady claim isrejected, Herrera's "actual innocence"claim does not allege a ground upon whichhabeas relief can be granted. Under Texaslaw, a claim of innocence based on newlydiscovered evidence is grounds for a newtrial, but such a claim will not supportcollateral review. See, e.g., Ex parte Bind-er, 660 S.W.2d at 105-06. Herrera, there-fore, has presented no claim for collateralrelief under Texas law. Consequently, wecan find no legal justification to permit himto present, in piecemeal fashion, additionalaffidavits to the state court. We concludethat the district court erred in granting astay of execution for this purpose.

May v. Collins relied upon as an alter-nate ground for a stay, is inapposite. Thequestion in May concerns whether a find-ing of fact by a state habeas court, basedupon affidavits alone, is entitled to thepresumption of correctness. But the factsat issue in May implicated a constitutionaldefect in May's conviction. No such ques-tion is presented in this case.

III.[9] The district court issued a certifi-

cate of probable cause (CPC) with respectto claims 2-5 although it rejected any reliefon these claims. This certificate implies

that the district court found thathad made a substantial showing 3denial of a federal right with res, .these claims. Barefoot v. Estelle, 4& U.S880, 103 S.Ct. 3383, 77 L.Ed.2d 1090 Il4Ordinarily a stay of execution accomrparsuch a finding, and we are uncewhether the district court inadverte.failed to grant a stay on these clai.,Because of the ambiguity of the grat 4CPC on claims 2-5 and the failure to 4a stay, the press of time requires us taddress the propriety of the district cour.issuance of CPC.

For reasons stated by the district cour,we fully agree that claims 2, 3, 4, and 5 arbarred because petitioner abused the wr.*We find no substantial grounds upon whichrelief might be granted on these claims.Accordingly, we vacate the certificate ofprobable cause as improvidently granted.See Cuevas v. Collins, 932 F.2d 1078, io2(5th Cir.1991).

In sum, on claim 1, we conclude thatHerrera has failed to present a substantialground upon which relief might be granted.See Delo v. Stokes, 495 U.S. 320, 110 S.CL1880, 1881, 109 L.Ed.2d 325 (1990). As westated above, the petitioner failed to allegesufficiently particularized facts to entitlepetitioner to relief on his Brady claim.The "actual innocence" claim standingalone does not state a claim upon whichhabeas relief can be granted by either afederal habeas court or a Texas habeascourt. We therefore find no legal justificstion to stay the execution to allow petition*er to litigate further in state court. Ac-cordingly, we grant Collins's motion to va-cate the stay of execution entered by thedistrict court.

1034

592 ATLANTIC REPORTER, 2d SERIES

298, 306, 105 S.Ct. 1285, 1291, 84 L.Ed.2d222 (1985) (prosecution may show "a suffi-cient break in events to undermine the in-ference that (a] confession was caused by(a] Fourth Amendment violation"); Mi-randa v. Arizona, 384 U.S. 436, 496, 86S.CL 1602, 1639, 16 L.Ed.2d 694 (1966) (re-quirement of a break in the stream ofevents).

It is conceded that Minnick constitutesno bar to questioning about a crime occur-ring subsequent to the invocation of theright to counsel. Far short of that, a num-ber of cases have recognized that where asuspect has been released from custodyand subsequently again detained, even forthe same crime, an invocation of the rightto counsel during the original confinementdoes not prevent the police from seeking awaiver of such a right upon the new con-finement. See, e.g., Dunkins v. Thigpen,854 F.2d 394, 397 (11th Cir.1988), cert. de-nied, 489 U.S. 1059, 109 S.Ct 1329, 103L.Ed.2d 597 (1989); United States v. Skin-ner, 667 F.2d 1306, 1309 (9th Cir.1982),cert. denied, 463 U.S. 1229, 103 S.Ct. 3569,77 LEd.2d 1410 (1983).2

Similarly, I believe that the governmentis correct in its assertion that when a de-fendant has pled guilty to the charge whichprompted the invocation of the right tocounsel, circumstances have so significant-ly changed that any coercive effect createdby the original confinement must bedeemed to have been dissipated, certainlywith respect to questioning about an entire-ly separate and distinct crime. A suspect'sconcern about self-incrimination that mayexist during pre-trial detention must bedramatically affected once, with the adviceand assistance of counsel and subject to theelaborate protections provided by Rule 11,he has appeared in court and been convict-ed from his own mouth. Such an evententailing a knowing, voluntary and intelli-gent waiver of the Fifth Amendment rightagainst self-incrimination and its conse-

496, but that interpretation does not, of course,speak for the full court.

2. Here, for several months following his invoca-tion of the right to counsel, appellant as a juve-nile was apparently held not in any jail orprison as such but rather was in the custody of

quent concerns-the very right that ed.wards seeks to protect-should underrnirany irrebuttable presumption that a subs.quent waiver directed toward an entirelyunrelated crime is the product of contin'.ing police coercion. I would so hold.

Kl UMlR systEm

Terrence L INGRAM, Appellant,

V.

UNITED STATES, Appellee.

No. 88-1345.

District of Columbia Court of Appeals.

Argued Jan. 22, 1991.Decided June 5, 1991.

As Amended June 21, 1991.

Defendant was convicted in the Superi-or Court, District of Columbia, Reggie B.Walton, J., of armed robbery, and he ap-pealed. The Court of Appeals, Ferren, J.,held that (1) denial of severance was notabuse of discretion; (2) evidence supportedconviction as accomplice; and (3) Govern-ment's alteration of its theory of aiding andabetting did not violate defendant's consti-tutional rights.

Affirmed.

1. Criminal Law e622

When two defendants are chargedwith jointly committing criminal offense,there is strong presumption that they willbe tried together. Criminal Rule 8(b).

juvenile authorities. Nonetheless, the govern-ment for purposes of this appeal assumes thatthe appellant was in continuous custody forpurposes of the Edwards prophylactic rule. and

I deal with the appeal on that basis.

992 D. C._

CREECHCle as947 F.2d 8

Thomas E. CREECH, Petitioner-Appellant,

V.

AJ. ARAVE, Warden, Idaho State Peni.tentiary; Al Murphy, Director, IdahoState Board of Corrections; Jim Jones,Attorney General, State of Idaho, Re-spondents-Appellees.

No. 86-3983.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted April 6, 1988.Submission Deferred Aug. 25, 1988.

Resubmitted July 12, 1990.Decided March 27, 1991.

As Amended on Denial of Rehearingand Rehearing En Banc Oct. 16, 1991.

After state prisoner's first-degree mur-der conviction and death sentence was up-held on appeal, 105 Idaho 362, 670 P.2d 463,he petitioned for writ of habeas corpus.The United States District Court for theDistrict of Idaho, Harold L. Ryan, ChiefJudge, denied petition. Petitioner appeal-ed. The Court of Appeals, 928 F.2d 1481,affirmed in part; reversed in part and re-manded. On denial of rehearing en banc,the Court of Appeals, Cynthia HolcombHall, Circuit Judge, held that: (1) petitionerwas not denied effective assistance of coun-sel at time he entered guilty plea; (2) peti-tioner failed to show that he was incompe-tent to plead guilty; (3) remand was re-quired for state court to hold resentencinghearing at which time defendant was enti-tled to present any and all mitigating evi-dence existing at time of hearing; (4) Ida-ho's limiting construction of utter dis-regard aggravating circumstance was un-constitutionally vague; and (5) remand wasrequired so state court could balance re-maining constitutionally valid aggravatingand mitigating factors before determiningwhether defendant should be sentenced todeath.

Affirmed in part; reversed in part andremanded.

v. ARAVE 87373 (9thCr. 1991)

Trott, Circuit Judge, dissented andfiled opinion joined by Kozinski and T.G.Nelson, Circuit Judges.

1. Criminal Law e641.10(3)Defendant was not unfairly deprived

of assistance of counsel with regard toguilty plea, where defense counsel told de-fendant that his advice was to not changeplea to guilty and that counsel needed moretime, and nevertheless, defendant informedcourt that he wished to proceed and pleadguilty. U.S.C.A. Const.Amend. 6.2. Criminal Law C273(4)

Defendant's statements during pleacolloquy that he intended to kill victim andthat he took action to kill victim after vic-tim was no longer threat to defendant es-tablished that defendant understood thatmalice of forethought was element of first-degree murder charge so as to precludeinvalidation of guilty plea on this ground.

3. Criminal Law e=1167(5)Defendant's ignorance of possible de-

fense of "imperfect self-defense" washarmless beyond reasonable doubt with re-spect to defendant's guilty plea to first-degree murder, where it was inconceivableif not merely improbable that defendantwould have gone to trial on defense ofimperfect self-defense or that, if he haddone so, he either would have been acquit-ted or, if convicted, would neverthelesshave been given shorter sentence than heactually received.

4. Criminal Law <-273(2)

Defendant failed to show that he wasincompetent to plead guilty based on psy-chological evaluations so as to requireguilty plea to be set aside.

5. Criminal Law e-662.40Defendant's right to confrontation was

not violated at sentencing hearing due todefendant's inability to cross-examinesources of information contained in presen-tence report, where defendant had opportu-nity to rebut, deny or explain informationcontained in report, other than throughcross-examination. U.S.C.A. Const.Amend.6.

947 FEDERAL REPORTER, 2d SERIES

6. Homicide 8-358(1)Defendant was entitled to present new

mitigating evidence at resentencing hear-ing about defendant's good behavior pend-ing review of death sentence which wasvacated on appeal.

7. Homicide e357(5)State court was required to find specif-

ic intent to cause death of human beingbeyond reasonable doubt prior to applyingaggravating circumstances that defendantwas under sentence for murder of firstdegree at time of actions and that defen-dant committed murder on fellow inmatewhile both were incarcerated at state cor-rectional institution. I.C. §§ 18-4003(c, e),19-2515(g)(7).

8. Homicide -351. Idaho limiting construction upon ag-

gravating circumstance of exhibiting utterdisregard for human life, which called forsubjective determination of whether defen-dant was cold-blooded pitiless killer, wasunconstitutionally vague as applied to de-fendant, where court found defendant wasinitially justified in defending himself andthat murder evidenced excessive violentrage. I.C. § 19-2515(g)(6, 7).

9. Homicide *-357(4)State court was required, after rever-

sal of one statutory aggravating factor, tobalance remaining, constitutionally validaggravating and mitigating factors in or-der to determine whether defendant shouldbe sentenced to death for murder. I.C.§ 19-2515(c); U.S.C.A. Const.Amends. 8,14.

10. Jury 624Defendant had no constitutional right

to jury trial on existence of aggravatingcircumstances which might result in imposi-tion of death sentence for murder.U.S.C.A. ConstAmend. 6.

11. Criminal Law w1206.1(2)Idaho sentencing scheme was not in-

valid because it mandated that court applydeath penalty unless mitigating circum-stances outweighed aggravating circum-stance; requirement of individualized sen-tencing in capital cases was satisfied by

allowing jury to consider all relevantgating evidence. I.C. § 19- 2515(c).12. Habeas Corpus 0864(1)

Defendant had full and fair OPPOrturty to present relevant facts of his claimshabeas corpus petition and was not entitto remand for evidentiary hearing on pe.tion on such grounds, where defendart,death sentence was affirmed it was runtil eight months later that defendant wasordered to make his final postconvictionchallenges.

13. Habeas Corpus e747Evidentiary hearing was not required

on petitioner's habeas corpus claim thatstate court did not issue written findingson his assertions that he was suicidal whenhe entered guilty plea and that his plea wasmotivated by threats against his familyrequiring plea to be invalidated, where itappeared from state court's denial of de-fendant's motion to withdraw his plea thatstate court implicitly rejected factual cir-cumstances that defendant alleged invali-dated his plea, and state Supreme Court, inaffirming state trial court, ruled that de-fendant offered no evidence other than hisown assertions to support either of hisarguments.

14. Habeas Corpus e-689District court did not abuse its discre-

tion in denying defendant continuance inorder to prepare for evidentiary hearing onhabeas corpus petition with regard to"medication issue," where defendant wasgiven one week's notice of nature andscope of evidentiary hearing, and defen-dant's own delinquency culminated on limit-ed period of time for defendant to preparehis case between deadline for briefing andhearing date.

Cliff Gardner, Fiedler & Gardner, SanFrancisco, Cal., for petitioner-appellant.

Lynn E. Thomas, Sol. Gen. for the Stateof Idaho, Boise, Idaho, for respondents*appellees.

Appeal from the United States DistrictCourt for the District of Idaho.

874

CREECHCite as 947 P.2d

Before BEEZER, HALL and WIGGINS,circuit Judges.

ORDER

The opinion filed on March 27, 1991, 928F.2d 1481, is hereby amended as follows:

In 928 F.2d at 1487, the following isdeleted: "Creech has not pointed to anyevidence to support his claim. The only.evidence' purported to buttress his claimof incompetency contains no citations to therecord."

The following is inserted in lieu thereof:"Contrary to Creech's assertion, Dr. Hey-rend did not conclude that Creech could notappreciate the consequences of decisionssuch as waiving legal rights. When asked,"Do you have any information or evidenceto indicate to your satisfaction that at thetime of the defendant's plea in this case,that he did not intend to plead guilty or didnot recognize the consequences of that le-gal act?," Dr. Heyrend replied, "I reallyhave no information in that area." WhileDr. Stoner was more supportive ofCreech's position, even he admitted, "Ithink there's room to be more certain thanI am in this case." Creech failed to showthat he was incompetent to plead guilty."

In 928 F.2d at 1491, at the end of thethird full paragraph, add the followingfootnote after the citation to Osborn, 631P.2d at 201:

"The Idaho Supreme Court also notedthat,To properly define (the "utter dis-regard"] circumstance, it is important tonote the other aggravating circum-stances with which this provision over-laps. The second aggravating circum-stance, I.C. § 19-2515(f)(2), that the de-fendant committed another murder atthe time this murder was committed, ob-viously could show an utter disregard forhuman life, as could the third aggravat-ing circumstance, I.C. § 19-2515(f)(3),that the defendant knowingly created agreat risk of death to many persons.The same can be said for the fourthaggravating circumstance, I.C. § 19-2515(f)(4), that the murder was commit-

v. ARAVE 875873 (9thCir. 1991)

ted for remuneration. Since we will notpresume that the legislative intent wasto duplicate any already enumerated cir-cumstance, thus making I.C. § 19-2515(f)(6) mere surplusage ... , we holdthat the phrase "utter disregard" mustbe viewed in reference to acts other thanthose set forth in I.C. §§ 19-2515(f)(2),(3), and (4).

Rather than explaining what "utter dis-regard for human life" means, this passagemerely recognizes that the legislature musthave meant it to mean something otherthan the preexisting aggravating circum-stances. Since none of these aggravatingcircumstances are at issue, this languagedoes not help us to determine the meaningof "utter disregard."

In 928 F.2d at 1492, at the end of subsec-tion C, the words ", as applied to Creech, tohave been" are deleted and the word "is" isinserted in lieu thereof.

In 928 F.2d at 1492, the second para-graph of footnote 16 is deleted.

The panel has voted to deny appellant'spetition for rehearing and to reject thesuggestion for rehearing en banc.

The full court was advised of the sugges-tion for rehearing en banc. An activejudge requested a vote on whether to re-hear the matter en banc. The matter failedto receive a majority of the votes of thenonrecused active judges in favor of enbane consideration. Fed.R.App.P. 35.

With these amendments the petition forrehearing from the appellant and the peti-tion for rehearing from the appellees areDENIED and both suggestions for rehear-ing en banc are REJECTED.

OPINIONCYNTHIA HOLCOMB HALL, Circuit

Judge:Petitioner Thomas E. Creech appeals

from the district court's denial of his peti-tion for a writ of habeas corpus. Creech iscurrently incarcerated at the Idaho StateCorrectional Institution ("ISCI") on the ba-sis of three Idaho murder convictions. Theconviction which gives rise to this appeal isbased on Creech's 1981 murder of David

947 FEDERAL REPORTER, 2d SERIES

Jensen, a fellow inmate at ISCI. Creechpleaded guilty to first degree murder andwas sentenced to death.

I

The facts and proceedings in this caseare adequately described in opinions ren-dered by the Idaho Supreme Court afterCreech's direct appeal, State v. Creech, 105Idaho 362, 670 P.2d 463, 465-66 (1983),cert. denied, 465 U.S. 1051, 104 S.Ct. 1327,79 LEd.2d 722 (1984) ("Creech I"), andafter his efforts to obtain post-convictionrelief, State v. Creech, 109 Idaho 592, 710P.2d 502, 502-07 (1985) ("Creech II"). Ad-ditional facts will be discussed where rele-vant to the issues we must decide in thisappeal.

IIWe review de novo the district court's

denial of a petition for habeas corpus.Carter v. McCarthy, 806 F.2d 1373, 1375(9th Cir.1986), cert. denied, 484 U.S. 870,108 S.Ct. 198, 98 L.Ed.2d 149 (1987). Wereview any factual findings made by thedistrict court for clear error. Hayes v.Kincheloe, 784 F.2d 1434, 1436 (9th Cir.1986), cert denied, 484 U.S. 871, 108 S.Ct.198, 98 L.Ed.2d 150 (1987).

III

[1] Creech initially contends that heshould be allowed to withdraw his guiltyplea. This contention rests upon two argu-ments. First, Creech argues that he wasdenied effective assistance of counsel be-cause his attorney failed to provide himwith certain information prior to the mak-ing of his guilty plea. Second, Creech ar-gues that in the absence of such informa-tion, his plea was not "voluntary and intelli-gent" and therefore cannot be allowed tostand. We find these arguments differmerely in form, not in substance, Evans v.Meyer, 742 F.2d 371, 375 (7th Cir.1984), andtherefore we will discuss them together.

A guilty plea must represent "a volun-tary and intelligent choice among the alter-native courses of action open to the defen-dant." North Carolina v. Alford, 400 U.S.

25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 16,(1970). "The assistance of counsel receiv(edby a defendant is relevant to the questionof whether a defendant's guilty plea wuknowing and intelligent insofar as it at.fects the defendant's knowledge and under.standing." United States v. Frye, 7:.iF.2d 196, 199 (7th Cir.1984).

Although the Supreme Court has four.dthat ineffective assistance of counsel canapply to guilty pleas, Hill v. Lockhart, 4%U.S. 52, 58, 106 S.Ct. 366, 370, 88 L.Ed.:i203 (1985), most cases that have dealt withsuch challenges have involved attorney ree.ommendations that the defendant pleadguilty. Here, however, Creech's attorneyRolf Kehne, told the court in Creech's pre*-ence that he believed Creech should contin.ue to plead not guilty. Creech himselfacknowledged that "my attorney advisedme not to plead." Thus, the alleged erroris not that Kehne misled Creech by recom.mending the wrong plea, but that he failedto provide Creech with certain information.Specifically, Creech claims Kehne failed ad-equately to discuss the elements of thecrime or possible defenses with him beforehe pleaded guilty.

To establish that he received ineffectiveassistance of counsel, Creech must show:(1) his attorney's representation fell belowan objective standard of reasonableness.and (2) that the deficient performance prejudiced the defense. Strickland v. Wash-in gton, 466 U.S. 668, 687, 104 S.Ct. 2052.2064, 80 L.Ed.2d 674 (1984). In reviewingalleged deficiencies in representation, "acourt must indulge a strong presumptionthat counsel's conduct falls within the widerange of reasonable professional assist-ance." Id. at 689, 104 S.Ct. at 2065-

Creech pleaded not guilty at his initialarraignment on June 19, 1981 before JudgeNewhouse of the Idaho state district court.On August 28, 1981, Judge Newhouse con-vened a plea hearing in response to a letterfrom Creech stating that he wished toplead guilty. Kehne stated by way of afrdavit that he had "absolutely no advancenotice" that Creech was going to changehis plea, and he was allowed "less than

876

CREECH v. ARAVECite as 947 F.2d 873 (9th Cir. 1991)

fifteen minutes" to attempt to change his

client's mind.

The district court found "as a matter of

fact. that Kehne did not discuss with

Creech the "specific elements of the of-

fense with which he was charged or possi-

ble defenses to these charges." Neverthe-less. the district court reviewed counsel's

performance throughout the state courtproceedings and held that "lKehne's] repre-sentation did not fall below an objectivestandard of reasonableness."

To establish that Kehne's representationfell below an objective standard of reason-ableness, Creech must show "that counselmade errors so serious that counsel wasnot functioning as the 'counsel' guaranteedthe defendant by the Sixth Amendment."Strickland, 466 U.S. at 687, 104 S.CL at2064. In support of his claim that Kehne'sfailure to inform him of the elements of thecrime and possible defenses were omissionswhich fell below this standard, Creech re-lies on Brown v. Butler, 811 F.2d 938 (5thCir.198 7), and United States v. Bigman,906 F.2d 392 (9th Cir.1990). In Brown, theFifth Circuit held that counsel's failure toinform the defendant of a venue defenseprior to his guilty plea rendered counsel'sperformance below the objective standardof reasonableness. Because of this omis-sion, the court believed the defendant wasunable to make an informed and consciouschoice with respect to his plea. Brown,811 F.2d at 942. In Bigman, this circuitrequired remand for an evidentiary hearingdue to uncertainty whether the defendanthad been apprised of the intent element ofthe crime to which he pleaded guilty.

Unlike Brown and Bigman, however,any omission on Kehne's part was not theresult of his incompetence as counsel.

. Creech now characterizes his actions as awaiver of the right to counsel and argues thatunder Faretta v. California, 422 U.S. 806, 817, 95S.CL 2525, 2532, 45 LEd.2d 562 (1975), hiswaiver cannot stand since he was not advised ofthe "dangers and disadvantages of self-represen-tation." We believe the issue here is more prop-erly seen as whether Creech voluntarily andknowingly pleaded guilty, not whether hewaived counsel.

At the hearing, Judge Newhouse attempted toensure that Creech was aware of the dangers of

Creech simply did not allow his counsel toinform him of the elements of the offenseor possible defenses. The transcript of theAugust 28 plea hearing shows that Kehneexplicitly told the court in Creech's pres-ence that the guilty plea was against hisadvice. As the district court properly not-ed, "a defendant may not be forced toabide by the advice of counsel." I Further-more, at that hearing Creech told the courtthat he had discussed the plea with coun-sel, that he believed he had sufficient timeto discuss his plea with counsel, that hewas satisfied with his attorney's represen-tation, and that he understood that bypleading guilty he was giving up any de-fense to the charge.

Kehne told Creech that his advice was tonot change the plea. He also told Creechthat he needed more time. Nevertheless,Creech informed the court that he wishedto proceed and plead guilty. We cannotnow accept the claim that Creech wastherefore unfairly deprived of the assist-ance of counsel. Kehne's actions were rea-sonable under the circumstances.

Creech has also failed to show that hewas prejudiced. In Hill v. Lockhart, 474U.S. 52, 58, 106 S.Ct. 366, 370, 88 L.Ed.2d203 (1985), the Supreme Court held thatrequiring a showing of prejudice serves"the fundamental interest in the finality ofguilty pleas." The Court noted that,

Every inroad on the concept of finalityundermines confidence in the integrity ofour procedures; and, by increasing thevolume of judicial work, inevitably delaysand impairs the orderly administration ofjustice. The impact is greatest whennew grounds for setting aside guiltypleas are approved because the vast ma-jority of criminal convictions result from

pleading guilty. In response to the judge's ques-tions, Creech acknowledged that he understoodthat by pleading guilty he was admitting thecrime, giving up any defenses to the charge, andforgoing his constitutional rights to trial by juryand to confront his accusers, as well as theprivilege against self-incrimination. Creechalso acknowledged that he understood that themaximum penalty for first degree murder wasdeath.

877

878 947 FEDERAL RE

such pleas. Moreover, the concern thatunfair procedures may have resulted -inthe conviction of an innocent defendant isonly rarely raised by a petition to setaside a guilty plea.

Id. (quoting United States v. Timmreck,441 U.S. 780, 784, 99 S.Ct. 2085, 2087, 60LEd.2d 634 (1979)).2

[2] First, with respect to Creech's claimthat he did not understand the elements ofthe offense of first degree murder, Creechcontends that the "malice" element was notadequately explained to him. The SupremeCourt has stated that a plea may be invol-untary "because [the defendant] has suchan incomplete understanding of the chargethat his plea cannot stand as an intelligentadmission 'of guilt." Henderson v. Mor-gan, 426 U.S. 637, 645 n. 13, 96 S.Ct. 2253,2257 n. 13, 49 LEd.2d 108 (1976). "With-out ... proof that [the defendant] in factunderstood the charge, the plea cannot bevoluntary ... " Id.

The district court correctly rejectedCreech's argument that his ignorance ofthe elements of first degree murder shouldinvalidate his plea. It found that "Creechunderstood that malice or intent was anelement of first degree murder at the timehe pled guilty."

The state trial judge's colloquy withCreech at his August 28, 1981 plea hearingsupports the district court's decision. Inparticular, the trial court asked Creech thefollowing:

Q (by the Court): What, as you under-stand it, does a person have to do to beguilty of the charge of first degree mur-der? What does it mean to you?A: He has got to think about doing it.Q: And killing someone.A. And killing someone.

2. See also Evans v. Meyer, 742 F.2d 371 (7thCir.1984). In Evans, the court, in holding thatprejudice must be shown in cases where thedefendant claims ineffective assistance of coun-sel due to counsel's failure to inform him of adefense, stated,

Among other objections to holding [other-wise] is that it would create an exquisite con-flict between the lawyer's duty to his clientand to justice: for by holding back from hisclient some unimportant information about

PORTER. 2d SERIES

Moreover, shortly after this exchange. theprosecution inquired as follows:Q (by Mr. Harris): Mr. Creech, didintend to kill Mr. Jensen? ...A: When I first had the fight with hno. But the second time, yes, I didtend to kill him.Q: That was later in the day?A: Yes, sir.Q: Did you take action to kill him athe was no longer a threat to you? win no condition to hurt you?A: Yes, I did.Q: What did that include?A: I kicked him in his throat and huhead.Q: Was that after he was unconscious,A: He wasn't all the way unconscious,but he was down on the floor.

Therefore, on the basis of Creech's owntestimony the district court correctly con-cluded thqt Creech understood that maliceaforethought was an element of thecharge.3

[3] Second, with respect to Creech'sclaim that neither the court nor his attor-ney explained the defense of "imperfectself-defense," Creech argues that withoutsuch an explanation he did not have a fullunderstanding of the law in relation to thefacts. This issue was not addressed by thedistrict court, although it found as a matterof fact that counsel did not discuss withCreech possible defenses to the murdercharge.

In Sober v. Crist, 644 F.2d 807, 809 n. 3(9th Cir.1981), we held that "[t]he accusedshould be made aware of possible defenses.at least where the attorney or court ismade aware of facts that would constitutesuch a defense." Because Creech arguably

litigation options, the lawyer would guaranithat the client could get his guilty ple2 setaside as involuntary if he was dissatisfiedwith the sentence he received after pleadingguilty.

Id. at 374.

3. Creech concedes that the quoted colloquy"[alrguably ... shows that Mr. Creech under-

stood that premeditation was required for first

degree murder."

CREECHCite as 947 FJ.d

could have claimed imperfect self-defense,he may have been prejudiced by his lack ofknowledge.

The state argues, however, that the fail-ure of counsel or the court to explain thisdefense constituted harmless error. SeeL.nited States v. Lopez, 575 F.2d 681, 685(9th Cir.1978) (where a constitutional erroris found, an appellate court's duty is toreverse unless it is "able to declare a beliefthat it was harmless beyond a reasonabledoubt.") (quoting Chapman v. California,386 U.S. 18, 24, 87 S.CL 824, 828, 17LEd.2d 705 (1967)).

The State points to Creech's earlier mur-der convictions and his repeated attemptsto interpose self-defense as a defense tothose crimes as evidence that Creech knewof the possible defenses to the crime.Creech counters that nothing in the recordshows that, relative to the Jensen murder,he had an understanding of this defense.Appellees also argue that any error washarmless because such a defense wouldhave been contrary to the "overwhelming"evidence against Creech. In Evans v. Mey-er, 742 F.2d 371 (7th Cir.1984), the courtopined that where uncontested facts makeit inconceivable that a jury would acquit onthe proposed defense, a plea entered with-out the defendant's knowledge of the de-fense can nevertheless be voluntary. Seealso Hill, 474 U.S. at 59, 106 S.Ct. at 370("[W]here the alleged error of counsel is afailure to advise the defendant of a poten-tial affirmative defense to the crimecharged, the resolution of the 'prejudice'inquiry will depend largely on whether theaffirmative defense likely would have suc-ceeded at trial").

After conducting our own review of therecord in this case, we find it "inconceiva-ble ..., and not merely improbable ... that(Creech] would have gone to trial on adefense of (imperfect self-defense], or that4. Respondent's assertion that this claim was not

raised below is without merit.

3. It is unclear whether a state court's determina-tion of competency to plead guilty is entitled toa presumption of correctness under 28 US.C.§ 2254(d). Cf. Harding v. Lewis, 834 F.2d 853,856 (9th Cir.1987), cert. denied, 488 U.S. 871.109 S.Ct. 182, 102 LEd.2d 151 (1988) (trial

v. ARAVE 879873 (9thCir. 199t)

if he had done so he either would have beenacquitted or, if convicted, would neverthe-less have been given a shorter sentencethan he actually received." Evans, 742F.2d at 375. Even assuming his attorney'sperformance was not reasonable, we be-lieve Creech's ignorance of the possible de-fense of "imperfect self-defense" washarmless beyond a reasonable doubt.

IV[4] During his August 28, 1981 plea

hearing, at Kehne's insistence, Creech re-served the right to withdraw his guilty pleaif psychological evaluations showed Creechincompetent to plead guilty. Creech claimsin his petition that the testimony of Doc-tors Stoner and Heyrend substantiate hisclaim of incompetence; consequently, heargues that he should be allowed to with-draw his plea.'

A defendant is not competent to pleadguilty if "mental illness has substantiallyimpaired his or her ability to make a rea-soned choice among the alternativespresented to him and to understand thenature and consequences of his plea."Sieling v. Eyman, 478 F.2d 211, 215 (9thCir.1973).s The district court found thatCreech failed to show that he was incompe-tent at the time he entered his guilty plea.Creech's central contention is that the dis-trict court erred in this finding because itapplied the wrong standard. Contrary toCreech's assertion, however, it is apparentfrom the opinion below that the districtcourt simply concluded that there was noevidence that Creech was incompetent toplead guilty.

We affirm the district court's conclusionregarding Creech's competency to pleadguilty. Contrary to Creech's assertion, Dr.Heyrend did not conclude that Creech couldnot appreciate the consequences of deci-

court's conclusion of competence to waive coun-sel subject to de novo review); with Evans v.Raines, 800 F.2d 884, 887 (9th Cir.1986) (compe-tence to stand trial is a factual issue entitled tothe presumption). Regardless of whether thepresumption of correctness attaches here,Creech's claim is without merit.

947 FEDERAL REPORTER, 2d SERIES

sions such as waiving legal rights. Whenasked, "Do you have any information orevidence to indicate to your satisfactionthat at the time of the defendant's plea inthis case, that he did not intend to pleadguilty or did not recognize the conse-quences of that legal act?," Dr. Heyrendreplied, "I really have no information inthat area." While Dr. Stoner was moresupportive of Creech's position, even headmitted, "I think there's room to be morecertain than I am in this case." Creechfailed to show that he was incompetent toplead guilty.

V[5) Creech next claims that his right to

confrontation was violated because he hadno meaningful opportunity to cross-exam-ine the sources of information contained inhis presentence report. At Creech's Janu-ary, 1982 sentencing hearing, Judge New-house took judicial notice of the presen-tence report, which included reports fromseveral Idaho psychiatrists, a previous pre-sentence report from an Ohio convictioncontaining reports from Ohio psychologists,psychiatric evaluations from Oregon doc-tors, and numerous newspaper articles andeditorials. The Idaho Supreme Court inCreech I found that all the material in thepresentence report was considered by thesentencing judge. 670 P.2d at 468.

The trial judge at sentencing may appro-priately conduct a broad inquiry largelyunlimited as to the kind of information tobe considered or the source of such infor-mation. United States v. Grayson, 438U.S. 41, 50, 98 S.Ct. 2610, 2615, 57 L.Ed.2d582 (1978). The Supreme Court inWilliams v. New York, 337 U.S. 241, 69

6. The Idaho Supreme Court in Creech I held thatCreech had no right under Idaho law to a pre-sentence report containing only testimony fromlive witnesses subject to cross-examination. 670P.2d at 466-469.

7. Although Creech is correct in asserting that inWilliams the sentencing judge stated the factsupon which it was relying in open court, theopportunity to rebut, explain or deny the infor-mation contained in the presentence report wasnevertheless available both in Williams and inthis case. In fact, Creech had more time inwhich to examine the report and refute its inac-

S.Ct. 1079, 93 L.Ed. 1337 (1949), exprt..Iapproved of a sentencing court's relianc,on information contained in a presenta,-report in imposing a death sentence. 7%Court wrote that "most of the informatoonow relied upon by judges to guide them 4the intelligent imposition of sent,.c.would be unavailable if information wertrestricted to that given in open court bywitnesses subject to cross-examination.*Id. at 250, 69 S.Ct. at 1084.6

Neither the district court nor the IdahoSupreme Court addressed the claim thatCreech was denied an opportunity to rebutor explain the testimony contained in thepresentence report. The only reference tothis issue is Judge Huntley's dissent inCreech I which stated that Creech couldnot rebut the information in the presen-tence report through the device of cross.examination. 670 P.2d at 480 n. 1 (Hunt.ley, J., dissenting). It is apparent, how.ever, that Creech had the opportunity. oth-er than through cross-examination, to dis-pute the accuracy of the presentence reportprior to and at his January, 1982 sentenc-ing hearing because his counsel was giventhe report prior to the sentencing hearing.

Because Creech had the opportunity torebut, deny or explain the information con-tained in the presentence report, this caseis distinguishable from Gardner v. Flor-ida, 430 U.S. 349, 356, 97 S.Ct. 1197, 1203.51 L.Ed.2d 393 (1977), and is in line withWilliams v. New York, 337 U.S. 241, 69S.Ct. 1079, 93 L.Ed. 1337 (1949).T In Gard-ner, the Court ruled that the defendantwas denied due process of law when thedeath sentence was imposed on the basis ofinformation never disclosed to him. 430U.S. at 362, 97 S.Ct. at 1207 (plurality opin-

curacies than did the defendant in Willia-.who learned of the information at the sentenc-ing hearing itself. The state trial court in thiscase specifically found that Creech had access tothe report for at least seven days prior to hissentencing hearing, as required by Idaho law.

Creech argues that due to Gardner, Williaais no longer good law. Although Gardner statedthat standards of procedural fairness hadevolved since Williams was decided, it distin-

guished rather than overruled Williamss hold.

ing. Gardner, 430 U.S. at 356, 97 sCt. at 1204.

880

CREECHCte as 947 F.2d 8

ion). Gardner relied on the absence of

any opportunity for counsel to challengethe accuracy of information contained in apresentence report. Id at 356, 97 S.CL at1203 (distinguishing Williams), 430 U.S. at358-62, 97 S.Ct. at 1204-07. We concludethat Creech's right to confrontation wasnot violated in this case.

VI

Creech claims that he is entitled to a newsentencing hearing due to the trial court'sunconstitutional application of the Idahosentencing statute, Idaho Code § 19-2515.Creech alleges three errors: (1) the trialcourt refused to allow him to present anymitigating evidence at his March 17, 1983resentencing hearing in violation of theEighth and Fourteenth Amendments; (2) athis sentencing hearing, the court found twoaggravating circumstances without makinga required finding beyond a reasonabledoubt; and (3) one of the aggravating cir-cumstances applied by the trial court, thatCreech demonstrated an "utter disregardfor human life", is unconstitutionallyvague. Creech argues that due to theseerrors, an improper balance of aggravatingand mitigating circumstances resulted.We address each contention in turn.

A

(6] The Idaho Supreme Court vacatedCreech's original sentence of death becausethe trial judge failed to pronounce the sen-tence in the presence of the defendant asrequired by Idaho law. The court orderedresentencing to occur within fourteen daysfrom the date of its order. Creech arguesthat he did not have an opportunity tointroduce mitigating testimony relating tohis .conduct during the fourteen monthsbetween his sentencing and resentencinghearings. This new mitigation evidencewould have included testimony by prisonguards and spiritual advisors aboutCreech's good behavior in prison, his per-sonal growth and increased sensitivity, andhis writing and recording of a song for ayoung girl badly injured in an automobileaccident.

v. ARAVE 88173 (9th Cr. 1991)

Upon remand, the trial court simply readthe sentence of death to Creech. This sec-ond sentence of death was affirmed inCreech 1, 670 P.2d at 476. The districtcourt found "no constitutional provisionwhich would require the state courts toagain conduct the full sentencing hearingat which Creech could present mitigatingcircumstances."

Creech asserts that although he was al.lowed to present any and all mitigatingevidence at his initial sentencing hearing,because the Supreme Court of Idaho voidedthat sentence and ordered resentencing,constitutionally he must be allowed anotheropportunity to do so. He argues that theresentencing hearing was not ordered sim-ply to correct a procedural defect In addi-tion, he contends that in capital resentenc-ing hearings, a defendant must be allowedto present mitigating evidence to ensurethe reliability of death sentences.

This argument appears to be correct. InSivak v. State, 731 P.2d 192 (Idaho 1986),the Idaho Supreme Court ruled on the pre-cise claim presented here. The court foundthat an order identical to the one at issuehere, issued to the same judge (JudgeNewhouse), and based on the same erroras present here mandated that the trialjudge permit the introduction of new miti-gating evidence at the resentencing hear-ing.

The Sivak court held that evidence of adefendant's good behavior and peaceful ad-justment while in prison was mitigationevidence, id. at 196-97, and that the princi-ples of Lockett v. Ohio, 438 U.S. 586, 98S.CL 2954, 57 L.Ed.2d 973 (1978), Eddingsv. Oklahoma, 455 U.S. 104, 102 S.CL 869,71 L.Ed.2d 1 (1982), and Skipper v. SouthCarolina, 476 U.S. 1, 106 S.Ct. 1669, 90L.Ed.2d 1 (1986), required that a defendantbe allowed to offer such mitigating evi-dence at resentencing. Sivak, 731 P.2d at197. The Idaho Supreme Court's discus-sion is highly persuasive.

Like the Idaho Supreme Court, id, wesee no rational basis for distinguishing theevidence of a defendant's good conductwhile awaiting trial and sentencing, andevidence of a defendant's good conduct

947 FEDERAL REPORTER, 2d SERIES

pending review of a death sentence whichis vacated on appeal. On this basis, wereverse and remand with instructions togrant the petition. The writ shall orderCreech's release if, within a reasonabletime set by the district court, Idaho fails tovacate Creech's sentence and provideCreech with a resentencing hearing atwhich he can present any and all mitigatingevidence that exists at the time of thehearing.

B

(71 Creech claims that the trial courtapplied two aggravating circumstanceswithout making a -required finding. Thetrial court found as aggravating circum-stances that "defendant was under a sen-tence for Murder of the First Degree at thetime of his actions" and that "defendantcommitted the murder on a fellow inmatewhile both were incarcerated in the IdahoState Correctional Institution." Each is anelement of the crime of first degree murderfor which Creech was charged. See IdahoCode § 18-4003(c), (e) (1987).

To properly constitute aggravating cir-cumstances under Idaho law, the elementscontained in sections 18-4003(c) and (e)must be combined "with the specific intentto cause ... death of a human being."

Idaho Code § 19-2515(g)(7) (1987). Creechargues that Judge Newhouse failed to findsuch an intent beyond a reasonable doubt;therefore, he asserts, the judge listed theseaggravating circumstances without deter-mining if they should apply.'

We find that there is evidence by whichJudge Newhouse could have concluded thatCreech had specific intent. At the time hepleaded guilty, Creech admitted that he

8. Creech originally argued, relying on Collins v.Lockhart, 754 F.2d 258 (8th Cir.). cart. denie4474 U.S. 1013. 106 S.CL 546, 88 1.Ed.2d 475(1985). that the sentence was unconstitutionalbecause these two aggravating factors werenothing more than elements of first degree mur-der. Acknowledging that Collins has been over-ruled, see Peny v. Lockhart, 871 F.2d 1384, 1392(8th Cir.). cart. denie4 493 U.S. 959, 110 S.CL378, 107 LEdid 363 (1989), Creech no longermakes this argument.

intended to kill Jensen.' Neverthel,Judge Newhouse's Findings fail to indicat,that he found specific intent beyond a re4,sonable doubt before applying section I5..2515(g)(7).10 On remand, the district cour,shall grant the petition. The writ shaorder Creech's release if the state judz atresentencing applies the aggravatinL c..cumstances under this section withoutmaking a finding of specific intent.

C

18] Creech claims that the statutory ag-gravating circumstance, that "the defen-dant exhibited utter disregard for humanlife," Idaho Code § 19-2515(g)(6), is uncon-stitutionally vague. Recently, the SupremeCourt announced the process by which wereview such a challenge. In Walton t.Arizona, - U.S. -, 110 S.Ct. 3047,3057, 111 L.Ed.2d 511 (1990), the courtheld:

When a federal court is asked to re-view a state court's application of anindividual statutory aggravating or miti-gating circumstance in a particular case.it must first determine whether the stat-utory language defining the circum-stance is itself too vague to provide anyguidance to the sentencer. If so, thenthe federal court must attempt to deter-mine whether the state courts have fur-ther defined the vague terms and if theyhave done so, whether those definitionsare constitutionally sufficient, iUe..whether they provide some guidance to

the sentencer.

Applying Walton, we first conclude that

the aggravating circumstance listed in see

tion 19-2515(g)(6) is unconstitutionallyvague. Idaho defines murder as "the un-

9. In response to the State's question of whether

he intended to kill Jensen, Creech replied.

"When I first had the fight with him. no. But

the second time, yes, I did intend to kill him-

10. Not only did Judge Newhouse fail to mention

specific intent in his listing of these aggravating

circumstances, he also found that Jensen instu

gated the fight and that Creech's actions o-

denced "an excessive violent rage. His onlyfindings of intent were '"The murder, once com-

menced, appears to have been an intentional.

calculated act." (emphasis added).

882

CREECHCite as 947 FId 8

lawful killing of a human being with maliceaforethought." Idaho Code § 18-4001

(1987). In section 18-4003, Idaho separatesmurder into first and second degrees.Only those convicted of first degree mur-

der are statutorily eligible to be sentencedto death. Idaho Code § 18-4004 (1987).Given that some defendants who kill with

malice aforethought are not even eligible tobe sentenced to death, we fail to see howthe aggravating circumstance of "the utterdisregard for human life" permits "the sen-tencer to make a principled distinction be-tween those who deserve the death penaltyand those who do not" Lewis v. Jeffers,- U.S. -, 110 S.Ct. 3092, 3099, 111L.Ed.2d 606 (1990).

In State v. Osborn, 102 Idaho 405, 631P.2d 187 (1981), the Idaho Supreme Courtalso recognized the infirmity of section 19-2515(g)(6). The court held, "it is ... appar-ent under Godfrey that this court mustplace a limiting construction upon (the "ut-ter disregard"] aggravating circumstance(]so as to avoid the possibility of [its] applica-tion in an unconstitutional manner." 631P.2d at 200 (citing Godfrey v. Georgia, 446U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398(1980)). We therefore analyze, under thesecond step of Walton, whether the aggra-vating circumstance, as construed by theIdaho Supreme Court at the time Creech

II. Creech argues that we may not review thelimiting construction because it was not explicit-ly applied by the trial judge. The SupremeCourt's words in Walton, however, are instruc-tive:

When a jury is the final sentencer, it is essen-tial that the jurors be properly instructed re-garding all facets of the sentencing process.It is not enough to instruct the jury in thebare terms of an aggravating circumstancethat is unconstitutionally vague on its face.That is the import of our holdings in Maynardand Godfrey. But the logic of those cases hasno place in the context of sentencing by a trialjudge. Trial judges are presumed to know thelaw and to apply it in making their decisions.

Walton, 110 S.CL at 3057. Although the trialjudge used the language of the statute, we fol-low the Supreme Court's lead and presume thathe applied the limiting instruction.

12. The Idaho Supreme Court also noted that.

To properly define [the "utter disregard"] cir-cumstance, it is important to note the other

v. ARAVE 88373 (9th Ctr. 1991)

was sentenced, was unconstitutionallyvague."

The Supreme Court has found that ag-gravating circumstances must "channel thesentencer's discretion by clear and objec-tive standards that provide specific and de-tailed guidance and that make rationallyreviewable the process for imposing a sen-tence of death." Godfrey v. Georgia, 446U.S. 420, 428, 100 S.Ct. 1759, 1764, 64L.Ed.2d 398 (1980) (quotations and foot-notes omitted). "[The channeling and lim-iting of the sentencer's discretion in impos-ing the death penalty is a fundamentalconstitutional requirement for sufficientlyminimizing the risk of wholly arbitrary andcapricious action." Maynard v. Cart-wright, 486 U.S. 356, 362, 108 S.Ct. 1853,1858, 100 L.Ed.2d 372 (1988).

Given this standard, we find that thenarrowing construction of section 19-2515(g)(6), as applied to Creech, was uncon-stitutionally vague. Having concluded thatthe statutory language "the defendant ex-hibited utter disregard for human life" wastoo vague, the Idaho Supreme Court limit-ed it by stating "the phrase is meant to bereflective of acts or circumstances sur-rounding the crime which exhibit the high-est, the utmost, callous disregard for hu-man life, i.e., the cold-blooded, pitiless slay-er." Osborn, 631 P.2d at 201.12

aggravating circumstances with which thisprovision overlaps. The second aggravatingcircumstance, I.C. § 19-2515(f)(2). that thedefendant committed another murder at thetime this murder was committed, obviouslycould show an utter disregard for human life,as could the third aggravating circumstance,I.C. § 19-2515(f)(3), that the defendant know-ingly created a great risk of death to manypersons. The same can be said for the fourthaggravating circumstance. I.C. § 19-2515(f)(4), that the murder was committed forremuneration. Since we will not presumethat the legislative intent was to duplicate anyalready enumerated circumstance, thus mak-ing I.C. § 19-2515(f(6) mere surplusage ....we hold that the phrase "utter disregard" mustbe viewed in reference to acts other thanthose set forth in I.C. §§ 19-2515(f)(2). (3),and (4).

Rather than explaining what "utter disregardfor human life" means, this passage merely rec-ognizes that the legislature must have meant itto mean something other than the preexistingaggravating circumstances. Since none of these

947 FEDERAL REPORTER, 2d SERIES

This limiting construction gives no moreguidance than the statute. Rather thandefining "utter disregard," the court in Os-born merely emphasized it. But the prob-lem with the "utter disregard" standard isnot that it is too low a threshold, it is thatit is unclear. Idaho's limiting constructiondoes not resolve this infirmity. Just as it isdifficult to determine what constitutes "ut-ter disregard for human life," it is unclearwhat constitutes "the highest, the utmost,callous disregard for human life." TheSupreme Court noted in Cartw-right, 486U.S. at 364, 108 S.Ct. at 1859, that the"contention that the addition of the word'especially' somehow guides the jury's dis-cretion, even if the term 'heinous' does not,is untenable." Cartwright's reasoning ap-pears to -apply here.

Godfrey speaks of "clear and objective"standards. The Court has approved limit-ing constructions that have defined theterms of the statutory aggravating circum-stance through objective standards. InWalton v. Arizona, - U.S. -, 110 S.Ct.3047, 3057, 111 LEd.2d 511 (1990), theCourt upheld an aggravating factor of "es-pecially heinous, cruel or depraved" whenit noted that the aggravating factor hadthe following limitations: "(A]n especiallycruel manner [is] when the perpetrator in-flicts mental anguish or physical abuse be-fore the victim's death," id. 110 S.Ct. at3057, and "an especially 'depraved' manner[is] when the perpetrator 'relishes the mur-der, evidencing debasement or perversion,'or 'shows an indifference to the sufferingof the victim and evidences a sense ofpleasure' in the killing." Id. at 3058.

In Cartwright, the Court affirmed theTenth Circuit's conclusion that Oklahoma'saggravating circumstance of "especially

aggravating circumstances are at issue, this lan-guage does not help us to determine the mean-ing of "utter disregard."

13. Recently, the Supreme Court reaffirmed itsholding in Cartwright in the context of an iden-tical Mississippi aggravating factor with thesame limiting constructions. Shell v. Missitsip-p - U.S. -, Ill S.CL 313, 112 L.Ed.2d I(1990).

14. See also, Proffit v. Florida, 428 U.S. 242, 253,96 S.Ct. 2960, 2968, 49 LEd.2d 913 (1976) (ap-

heinous, atrocious or cruel" was still ustitutionally vague even though Oklahor.had defined "heinous" as "extremelywicked or shockingly evil" and had defi"atrocious" as "outrageously wicked avile." 13 According to the circuit coum"Vague terms do not suddenly beconeclear when they are defined by reference toother vague terms." Cartwright v. .1ao,.nard, 822 F.2d 1477, 1489 (10th Cir.197,The Court agreed with the Tenth Circusthowever, that a limiting instruction of"some kind of torture or physical abuse"while not the only permissible construction.would have made the aggravating circum.stance constitutional. t '

Unlike those cases, where the sentencercould make an objective determination ofwhether specific acts occurred, the Idaholimiting construction calls for a subjectivedetermination of whether the defendant isa "cold-blooded, pitiless slayer." The limit.ing construction therefore fails to channelthe sentencer's discretion.

The vagueness of the Osborn limitingconstruction is apparent by its applicationin this case. In his Findings in sentencingCreech to death, Judge Newhouse foundthat Creech "did not instigate the fightwith the victim, but the victim, withoutprovocation, attacked him. He was initiallyjustified in protecting himself." While hefound that "(a]fter the victim was helplessthe defendant killed him," Judge New-house also noted that the murder "evi-denc(ed] an excessive violent rage." 1s Giv.en these factual findings, we cannot agreewith the conclusion that by the murderitself, or circumstances surrounding itscommission, Creech demonstrated that hewas a cold-blooded, pitiless killer." We

proving "especially heinous, atrocious or cruel'limited to "the conscienceless or pitiless crimewhich is unnecessarily torturous to the victim").

1. Judge Newhouse also found that The mur-der, once commenced, appears to have been anintentional. calculated act." (emphasis added).

16. In its briefs. the State argues that "utter dis-regard" is sufficiently specific, as it applies onlyto calculated murders. According to the State."[Mlurders that result from a strong provoca-tion or objectively reasonable emotional distress

884

CREECH v. ARAVECIte as 947 F2d 873 (9thCir. 1991)

therefore find the Idaho limiting construc-

don is unconstitutionally vague.

D

(91 We have found that one of the five

statutory aggravating circumstances cited

by Judge Newhouse, that Creech exhibitedutter disregard for human life, is unconsti-tutionally vague. Second, we have foundthat two additional aggravating circum-stances were applied without the requiredfinding of specific intent. Finally, we havefound that Creech must be given an oppor-tunity to provide any additional mitigatingevidence.

Idaho Code section 19-2515(c) holds thata sentence of death may not be imposedunless the court finds at least one statu-tory aggravating circumstance. Even withour findings today, this requirement hasbeen met- Section 19-2515(c) goes on,however, and requires a balancing of miti-gating and aggravating circumstances.Given our findings, the weight of bothtypes of factors is apt to change. Thus, wecannot rely on the trial court's conclusionthat. Creech deserved the death penalty.See Clemons v. Mississippi, 494 U.S. 738,110 S.Ct. 1441, 1450, 108 L.Ed.2d 725(1990); Cartwright v. Maynard, 822 F.2d1477, 1483 (10th Cir.1987) ("A death sen-tence that is imposed pursuant to a bal-ancing that included consideration of anunconstitutional aggravating circumstancemust be vacated under the Eighth andFourteenth Amendments."), aff'd 486 U.S.356, 108 S.Ct. 1853, 100 LEd.2d 372 (1988).

We therefore reverse and remand withinstructions to grant the petition. The writshall order Creech's release unless, withina reasonable time set by the district court,the Idaho court balances the remaining,constitutionally valid aggravating and miti-gating factors in order to determine wheth-er Creech should be sentenced to death.

are not comprehended by (the section]." If thisis what the limiting construction means, then itwas improperly applied to Creech. While theState argues that "Creech cold-bloodedly con-trived the murder of David Jensen". this was notthe finding of the trial court. See Creech 1 670

VII

(101 Creech claims that the Constitutionguarantees a jury trial on the existence ofaggravating circumstances which may re-sult in the imposition of a sentence ofdeath. Creech draws the following analo-gy: some of the aggravating circumstancesfound by the state court are facts analo-gous to elements of the crime of "capitalmurder" and must be proven beyond areasonable doubt; therefore, a jury mustdetermine their existence.

In rejecting Creech's claim, the districtcourt relied on Spaziano v. Florida, 468U.S. 447, 104 S.CL 3154, 82 L.Ed.2d 340(1984). In Spaziano, the Supreme Courtrejected the argument that "placing re-sponsibility on the trial judge to impose thesentence in a capital case is unconstitution-al." Id. at 464, 104 S.Ct. at 3164. Creechattempts to distinguish Spaziano and sim-ilar Supreme Court cases by asserting thatwhile the exercise of discretion in sentenc-ing may remain with the trial judge, thejury must find the existence of facts, suchas aggravating circumstances.

Creech's argument has been fully reject-ed by the Supreme Court. In McMillan v.Pennsylvania, 477 U.S. 79, 91, 106 S.Ct.2411, 2419, 91 L.Ed.2d 67 (1986), the Courtwrote that "[s]entencing courts have tradi-tionally heard evidence and foundfacts...." The Court further opined thatthe claim that a jury must find sentencingconsiderations "merits little discussion."Id at 93, 106 S.Ct. at 2420. The Courtultimately held in McMillan that "there isno Sixth Amendment right to jury sentenc-ing, even where the sentence turns on spe-cific findings of fact." Id. (citing Spazi-ano).

More recently, the Court specifically heldin Hildwin v. Florida, 490 U.S. 638, 109S.Ct. 2055, 2057, 104 LEd.2d 728 (1989),that "the Sixth Amendment does not re-quire that the specific findings authorizing

P.2d at 465 ('"There is some evidence in therecord indicating that Creech had been enticedby other inmates to 'do Jensen in,' but the dis-trict judge did not decide or find that the mur-der had been performed on contract or byplan.")

885

947 FEDERAL REPORTER, 2d SERIES

the imposition of the sentence of.death bemade by the jury." See also Walton v.Arizona, - U.S. -, 110 S.Ct. 3047,3054, 111 LEd.2d 511 (1990). We there-fore find that consistent with these cases,Creech had no constitutional right to a jurytrial on the existence of aggravating cir-cumstances.

VIII(11] Creech claims that the Idaho capi-

tal sentencing scheme violates the EighthAmendment because it provides a mandato-ry sentencing formula. Specifically,Creech argues that Idaho Code § 19-2515(c) is unconstitutional. Section 19-2515(c) provides:

"(w]here a person is convicted of an of-fense which may be punishable by death,a sentence of death shall not be imposedunless the court finds at least one (1)statutory aggravating circumstance.Where the court finds a statutory aggra-vating circumstance the court shall sen-tence the defendant to death unless thecourt finds that mitigating circumstanceswhich may be presented outweigh thegravity of any aggravating circumstancefound and make imposition of death un-just."

Idaho Code § 19-2515(c) (1987) (emphasisadded).

The basis of Creech's contention is thatthe Idaho courts shall apply the death pen-alty unless mitigating circumstances out-weigh the aggravating circumstances andmake the imposition of death unjust. Ida-ho Code § 19-2515(c) (1987). Creech claimsthis removes an "individualized determina-tion" and a "moral response" in sentencing.

Appellees argue that the Idaho sentenc-ing scheme is valid because it permits thesentencing court to consider all relevantmitigating evidence, consistent with Lock-ett v. Ohio, 438 U.S. at 602-08, 98 S.Ct at2963-47. In addition, appellees note thatthe statute places upon the state the bur-den of proof to show at least one statutory

17. Under Townsen4 372 U.S. at 313. 83 S.Ct. at757:

[A] federal court must grant an evidentiaryhearing to a habeas applicant under the fol-

aggravating circumstance beyond a reable doubt, thus fulfilling the "narron,function" required by Zant v. Stephe462 U.S. 862, 877, 103 S.Ct. 2733, 2.42. -L.Ed.2d 235 (1983). As construed by th"Idaho Supreme Court, moreover, appelk-epoint out that the defendant's burden Withrespect to mitigating circumstances Ls notone of persuasion but, rather, one a"rais(ing] any factors which might Possiblytend to mitigate his culpability for the of.fense." State v. Osborn, 102 Idaho 40S.631 P.2d 187, 199 (1981).

This issue has been recently resolved bythe Supreme Court. In Blystone v. Penn.sylvania, 494 U.S. 299, 110 S.Ct. 1078. IosLEd.2d 255 (1990), the Court rejected achallenge to a similar requirement, holdingthat such a statute is not "impermissiblymandatory", id. 110 S.Ct. at 1082, and that"[t]he requirement of individualized sen-tencing in capital cases is satisfied by al.lowing the jury to consider all relevantmitigating evidence." Id. at 1083. Similarstatutes have been upheld in other cases.See Boyde v. California, 494 U.S. 370, 110S.Ct 1190, 108 L.Ed.2d 316 (1990); Walton.110 S.Ct. 3047. We therefore find thatsection 19-2515(c) is constitutional.

IX

(12] 'Creech finally claims that weshould remand this case to the districtcourt because the district court improperlylimited its evidentiary hearing on his peti-tion. Under Townsend v. Sain, 372 U.S.293, 312-13, 83 S.Ct. 745, 756-57, 9 L.Ed.2d770 (1963), a district court must hold anevidentiary hearing if (1) the petitioner'sallegations, if proved, would entitle him torelief, and (2) the state court trier of facthas not, after a full and fair hearing, reli-ably found the relevant facts. An eviden-tiary hearing must be held if, for example.state court fact-finding procedures wereinadequate, or the material facts were not

adequately developed at the state courthearing. Id. at 313, 83 S.Ct. at 757.11

[owing circumstances: If (1) the merits of thefactual dispute were not resolved in the statehearing; (2) the state factual determination snot fairly supported by the record as a w

886

CREECH v. ARAVECite as 947 F.2d 873 (9th cIr. I99)

Creech's claim with respect to the legalrequirement of an evidentiary hearing istwo-fold.

First, although Creech admits that headdressed each factual issue in his Febru-ary 1984 state post-conviction plea with-drawal hearing, he claims that hearing wasinadequate because he was given only twoweeks to file all his post-conviction collat-eral state proceedings and two additionalweeks to fully prepare for the hearing.Consequently, Creech argues that an evi-dentiary hearing under Townsend was re-quired on several claims presented to thedistrict court.

The district court's opinion does not ad-dress this claim. Further, Appellees do notaddress Creech's allegations and the onlyevidence on this claim is the self-servingaffidavit of Creech's counsel. The IdahoSupreme Court opinion in Creech II, 710P.2d 502 (1985), however, addresses theprecise issue raised by Creech. Creech'sdeath sentence was affirmed by the IdahoSupreme Court on May 23, 1983 and it wasnot until January 24, 1984 that Creech wasordered to make his final post-convictionchallenges. Id. at 507. Consequently,counsel's complaint that he had only fourweeks to prepare his case is not accurate.

In justifying the limited time affordedCreech to make his final post-convictionchallenges, the Idaho Supreme Court inCreech II relied on Barefoot v. Estelle, 463U.S. 880, 889, 103 S.CL 3383, 3392, 77LEd.2d 1090 (1983), for the propositionthat "the use of summary procedures forthe expeditious resolution of collateral pro-ceedings in death penalty cases" is proper.710 P.2d at 507. In Barefoot; the SupremeCourt cited its prior cases which approvedthe summary procedures adopted by theCircuit Courts of Appeal for the dispositionof habeas appeals on the merits before thescheduled date of execution. 463 U.S. at889, 103 S.Ct. at 3392.

(3) the fact-finding procedure employed bythe state court was not adequate to afford afull and fair hearing* (4) there is a substantialallegation of newly discovered evidence: (5)the material facts were not adequately devel-

Creech has had a full and fair opportuni-ty to present the relevant facts of hisclaims. Counsel had more than enoughtime between the affirmance of Creech'sdeath sentence and the deadline for filingof post-conviction challenges to prepareany post-conviction claims for relief. Con-sequently, we hold that Creech is not enti-tled to an evidentiary hearing on this basis.

(13] Creech's second argument is thatthe state court did not issue written find-ings on his claims that he was suicidalwhen he entered the guilty plea and thathis plea was motivated by threats againsthis family. Therefore, Creech argues thedistrict court could not have concluded thatthese issues were reliably determined bythe state trier of fact and an evidentiaryhearing is required.

The district court found that "[t]here isnothing in the record to suggest Creechwas suicidally depressed at the time heentered his plea of guilty," and thatCreech's "self-serving testimony" with re-spect to threats against his family wasinsufficient to invalidate his plea. Al-though the district court did not make thispoint clear, it must have made these deter-minations without an evidentiary hearingbased on the implied findings of the statetrier of fact. Under Townsend, state courtfactual determinations may be impliedfrom the actions taken by the state court.See Tounsend, 372 U.S. at 314, 83 S.Ct. at758; Butcher v. Marquez, 758 F.2d 373,376 (9th Cir.1985). For example, "(w]hen astate trial court holds a hearing to sup-press evidence and rules on the motion, afederal district court may assume that thestate court found the facts necessary tosupport the state court's decision, unlessthere is some indication that the state courtapplied an incorrect legal standard."Knaubert v. Goldsmith, 791 F.2d 722, 727(9th Cir.), cert. denied, 479 U.S. 867, 107S.Ct. 228, 93 L.Ed.2d 155 (1986).

oped at the state-court hearing- or (6) for anyreason it appears that the state trier of factdid not afford the habeas applicant a full andfair fact hearing.

887

947 FEDERAL REPORTER, 2d SERIES

In the instant case, it appears from thestate trial court's February, 1984 denial ofCreech's motion to withdraw his plea thatJudge Newhouse implicitly rejected the fac-tual circumstances that Creech alleges in-validate his plea and that Creech assertsrequire an evidentiary hearing. Moreover,although the state trial court did not issuewritten findings concerning the February,1984 withdrawal hearing,s the Idaho Su-preme Court, in affirming the state trialcourt in Creech II, held that Creech offeredno evidence other than his own assertionsto support either of his arguments. CfSumner v. Mata, 449 U.S. 539, 546--47, 101S.Ct. 764, 768-69, 66 L.Ed.2d 722 (1981) (28U.S.C. § 2254(d) presumption of correct-ness of state court findings applies equallyto state trial court and state appellate courtfact-finding). We affirm the districtcourt's denial of an evidentiary hearing onthese issues.

(14] Creech also contends that a re-mand is required because he did not havean opportunity to present evidence on themedication issue to the district court.Creech argues he should have been granteda continuance in order to prepare for anevidentiary hearing. A district court's de-cision regarding a motion for a continuanceis reviewed for an abuse of discretion. Un-gar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct.841, 849, 11 L.Ed.2d 921 (1964).

The district court found that Creech didnot "advise the court that notification ofthe parties on May 22, 1986, as to thenature and scope of the May 29th hearingwould not provide counsel with adequatetime to prepare for that hearing." More-over, the district court found that Creech'sown delinquency culminated in the limitedperiod of time between the deadline forbriefing and the May 29th hearing date.Further, Creech's counsel admitted asmuch at the May 29th hearing, stating "Ifrankly am not prepared to present medicalevidence today and ... that was my confu-sion and it was all my fault...."

18. The state trial court found only that it wouldnot be manifestly unjust to deny Creech's mo-

Creech was given one week's notice ofthe nature and scope of the evidentiayhearing. In conjunction with Creechs delinquency and the amount of time fo,Creech to prepare his case between thefiling of the habeas petition on January 2and the May 29 hearing (not to mention thefour years between Creech's initial sent,,,.ing on January 25, 1982 and the filing ofhis petition), we conclude that the districtcourt did not abuse its discretion in denvingCreech a continuance.

XWe AFFIRM the district court on

Creech's claims of ineffective assistance ofcounsel, incompetence to plead guilty, in-voluntary and unknowing guilty plea, deni-al of his right to confrontation, and needfor an evidentiary hearing. We also AF.FIRM the district court's conclusion thatCreech had no right to a jury trial on theexistence of aggravating factors and thathe was not sentenced pursuant to a manda.tory death penalty formula. We RE.VERSE and direct the district court togrant the petition on Creech's claim thatthe state trial court relied on improper ag-gravating circumstances, and that prohibit-ing him from introducing evidence of miti-gating circumstances at his resentencinghearing violates the Constitution.

AFFIRMED IN PART, REVERSED INPART, AND REMANDED.

TROTI, Circuit Judge dissenting fromthe order denying rehearing en banc.KOZINSKI and T.G. NELSON joining.

I respectfully dissent from the court'srefusal to rehear this case en banc, and Ido so because I disagree with the panel'sanalysis in Part C.

Thomas Creech is a killer. He personi-fies an "utter disregard for human life."In this case, with the intent to kill, he beata fellow inmate to death while serving alife sentence in Idaho for murder. TheIdaho Supreme Court has made the follow-ing statement about him:

tion to withdraw the guilty plea.

888

CREECHCite as 947 F.d

The defendant here committed murderat least four times prior to the instantoffense, twice in Idaho and also in Ore-gon and in California. There presentlyexist other pending charges of murder inthe first degree against him. The testi-mony of an eyewitness to one of Creech'sprevious murders, coupled with psychiat-ric evidence, tends to prove that the ap-pellant is violent and vengeful and thathe experiences no remorse for his ac-tions. Letters written by Creech to lawenforcement personnel detail numerousalleged murders beyond those for whichhe has already been convicted and inti-mate his intentions to kill in the future.Creech's own statements claim responsi-bility for approximately 40 murders.However vague the statutory languagemight be argued to be in the ordinarycase (which assertion we have alreadyrejected), nevertheless, as applied in theinstant case, we hold beyond any doubtwhatsoever that the appellant here hasexhibited a propensity to commit murderwhich will probably constitute a continu-ing threat to society.

State v. Creech, 105 Idaho 362, 670 P.2d463, 472 (1983).

My concern, however, is not so muchthat Creech's sentence is being returned toIdaho's courts to be redone as it is with aserious and possibly irremediable errormade by the panel in holding that one ofthe statutory aggravating factors relied onby Idaho to sentence him to death is uncon-stitutionally vague. The error may effec-tively be irremediable because if Creech isresentenced to death in state court in ac-cord with the orders of the panel's opinion,and the case then resurfaces in federalcourt, which is probable, it will most cer-tainly do so on the basis of different aggra-vating circumstances. Thus, unless the er-ror is attended to now, Idaho may beblocked from ever bringing this error-which now becomes the binding law of ourcircuit as to this aggravating circum-stance-to the attention of any court forcorrection. This is also true if Creech isnot resentenced to death and the question

'* Section 19-2515(f)(6) is now section 19-

v. ARAVE 889873 (9th Cir. 1991)

of capital punishment disappears from fu-ture federal actions filed by him. As itnow stands we have failed to accord appro-priate deference to the Idaho SupremeCourt decision in Osborn, and we havethereby improperly amputated a legislativeenactment of a sovereign state.

To be specific as to the nature of theerror, I believe the panel has misappliedthe holding of the Supreme Court in Wal-ton v. Arizona, - U.S. -, 110 S.CL3047, 3057, 111 L.Ed.2d 511 (1990), in sucha way as to bring about one application ofthe Walton test for Arizona, and a differ-ent application of the same test for Idaho.The panel's misapplication of the test vio-lates the unremarkable precept that federallaw, and especially Constitutional law, shallbe uniformly applied.

The aggravating circumstance in ques-tion is that "by the murder or circumstancesurrounding its commission the defendantexhibited utter disregard for human life."Idaho Code § 19-2515(g)(6). I would agreewith the panel that this bare language isthin under Walton, but I respectfully butstrongly disagree with the panel's conclu-sion that the limiting construction placedon this language by the Idaho SupremeCourt in State v. Osborn, 102 Idaho 405,631 P.2d 187 (Idaho 1981), falls short of themark established by the United States Su-preme Court in Godfrey v. Georgia, 446U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398(1980). The Idaho Supreme Court in Os-born explicitly recognized its duty underGodfrey and Gregg v. Georgia, 428 U.S.153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) todefine vague terms so as to give adequateguidance to the sentencer. On this issue,Idaho's highest court spoke as follows:

A similar limiting construction must beplaced upon the aggravating circum-stances in I.C. § 19-2515(f)(6) ', that"[b]y the murder, or the circumstancessurrounding its commission, the defen-dant exhibited utter disregard for humanlife." To properly define this circum-stance, it is important to note the otheraggravating circumstance with whichthis provision overlaps. The second ag-

2515(g)(6).

947 FEDERAL REPORTER, 2d SERIES

gravating circumstance, I.C. § 19-2515(f)(2), that the defendant committedanother murder at the time this murdezwas committed, obviously could show anutter disregard for human life, as couldthe third aggravating circumstance, I.C.§ 19-2515(f)(3), that the defendant know-ingly created a great risk of death tomany persons. The same can be said forthe fourth aggravating circumstance,I.C. § 19-2515(f)(4), that the murder wascommitted for remuneration. Since wewill not presume that the legislative in-tent was to duplicate any already enu-merated circumstance, thus making I.C.§ 19-2515(f)(6) mere surplusage (See,e.g., Norton v. Dept of Employment, 94Idaho 924, 500 P.2d 825 (1972)), we holdthat the phrase "utter disregard" mustbe viewed in reference to acts other thanthose set forth in I.C. § 19-2515(f)(2), (3),and (4). We conclude instead that thephrase is meant to be reflective of actsor circumstances surrounding the crimewhich exhibit the highest, the utmost,callous disregard for human life, i.e., thecold-blooded, pitiless slayer. With suchan interpretation, it is our conclusion thatthis aggravating circumstance meets theconstitutional requirements set forth bythe United States Supreme Court. Uponremand, the district court should, in ac-cordance with his opinion and the provi-sions of I.C.R. 33.1 and 33.2 (enactedsubsequent to original sentencing in thiscase), specifically set forth the facts andreasoning underlying the finding, if any,that a statutory aggravating circum-stance exists.

Osborn, 631 P.2d at 200-01.Under the Walton rule, this not only

gives "some guidance," Walton, 110 S.Ct.at 3057, it gives substantive guidance. Itdefines "utter disregard," in greater detailthan the statute itself, and it goes fartherby telling the sentencer that he or shecannot infer "utter disregard" solely fromthe fact that the defendant has committedmultiple murder, nor can it be inferredsolely from a murder for hire, nor can it beinferred solely from the fact that the de-fendant knowingly created a risk of deathto many persons.

Idaho's "utter disregard" factor a.cused by Osborn is indistinguishable tthe aggravating circumstance approved bythe Supreme Court in Walton:

"especially depraved" [i.e.J. when beperpetrator "relishes the murder, edencing debasement or perversion." ,r"shows an indifference to the sufferinrof the victim and evidences a sense opleasure in the killing."

Walton, 110 S.Ct. at 3058 (citation omit.ted). How "objective" is "relishing themurder, evidencing debasement or Perversion"? How is that different from evidenc.ing an "utter disregard for human life,"defined as intentional, cold-blooded, andwithout pity, and as requiring more thanjust mass murder, murder for hire, ar.dendangering many people? This is not just"wicked and vile," as in Maynard '. Cart.wright, 486 U.S. 356, 362, 108 S.Ct. 1S3.1858, 100 L.Ed.2d 372 (1988), which aresimply pejorative adjectives that broad!vdescribe the crime. This is "utter, callous.cold-blooded, and pitiless disregard for hu.man life," which is a standard that can beproved with facts and circumstances."Cold-blooded" means carried out withoutfeeling or emotion. "Pitiless" means with-out compassion for suffering. Contrary tothe panel's assertion, Idaho does not callfor a purely "subjective determination" ofwhether a defendant is a "cold-blooded.pitiless slayer." Idaho requires an eviden-tiary determination supported by facts andcircumstances.

Such a determination under Idaho lawmust be set out in writing, and it is subjectto scrupulous appellate review.

Idaho Code § 19-2515(e) states:

Upon the conclusion of the evidenceand arguments in mitigation and aggrs-vation the court shall make written find-ings setting forth any statutory agg's-vating circumstances found. Further.the court shall set forth in writing anymitigating factors considered and, if thecourt finds that mitigating circumstancsoutweigh the gravity of any !Iggravatin4circumstance found so as to miake unjustthe imposition of the death lienaltY, the

890

CREECHCite as 947 F.2 I

court shall detail in writing its reasonsfor so finding.

About this section, the Idaho SupremeCourt has said:

.C. § 19-2515(d) 2 is mandatory in itsterms: "the court shall set forth in writ-ing any mitigating factors considered."The reasoning behind a similar statutoryrequirement for specific written findingswas explained by the Florida SupremeCourt

"The fourth step required by Fla.Stat.( 921.141. F.S.A., is that the trial judgejustifies his sentence of death in writing,to provide the opportunity for meaning-ful review by this Court. Discriminationor capriciousness cannot stand wherereason is required, and this is an impor-tant element added for the protection ofthe convicted defendant. Not only is thesentence then open to judicial review andcorrection, but the trial judge is requiredto view the issue of life or death withinthe framework of rules provided by thestatute." State v. Dixon, 283 So.2d 1, 8(Fla.1973) cert. den. 416 U.S. 943, 94S.CL 1951, 40 L.Ed.2d 295 (1974).

We feel the requirement of written anddetailed findings serves a dual purpose.Initially it focuses the attention of thesentencing court upon all the informationbefore it and requires a thorough andreasoned analysis of all relevantfactors. This helps assure that the impo-sition of the sentence of death is rea-soned and objective as constitutionallyrequired. It also serves the purpose, asnoted by the Florida Supreme Court, ofmaking the process for imposing deathrationally reviewable. On review, if themandates of LC. I 19-2515(d) are met,we can determine whether the lowercourt overlooked or ignored any raisedmitigating factors, whether the evi-dence supports the aggravating factorsfound and finally whether the courthas properly weighed all factors. If thefindings of the lower court are not setforth with reasonable exactitude, thiscourt would be forced to make its reviewon an inadequate record, and could not

2- Section 19-2515(d) is now section 19-2515(c).

v. ARAVE 89173 (9th Cir. 1991)

fulfill the function of "meaningful appel-late review" demanded by the decisionsof the United States Supreme Court.

Osborn, 631 P.2d at 196-97 (emphasis add-ed). These strict requirements add consid-erable substance to the process and corralthe possibility of excessive subjectivity.

The Idaho Supreme Court was careful toverify the factual basis for the pertinentfindings. The Supreme Court said:

We turn now to whether the sentenc-ing judge complied with those statutoryprovisions. Appellant argues that thecourt erred in finding beyond a reason-able doubt that the defendant has previ-ously been convicted of other murders;that the defendant had exhibited utterdisregard for human life and a propensi-ty to commit murder- that the defendantwas under sentence for first degree mur-der at the time of his actions; and thatboth defendant and his victim were in-mates at the state penitentiary when thecrime occurred. We have reviewed therecord and hold that the evidence at thesentencing hearing clearly supports thetrial court's findings of aggravatingand mitigating circumstances.

Creech, 670 P.2d at 470.

Furthermore, Idaho Code § 19-2827 re-quires the Idaho Supreme Court to verifyproportionality and to screen out passion,prejudice, and arbitrariness with respect toall sentences of death. This section readsin relevant part as follows:

(a) Whenever the death penalty is im-posed, and upon the judgment becomingfinal in the trial court, the sentence shallbe reviewed on the record by the Su-preme Court of Idaho. The clerk of thetrial court, within ten (10) days afterreceiving the transcript, shall transmitthe entire record and transcript to theSupreme Court of Idaho and to the attor-ney general together with a notice pre-pared by the clerk and a report preparedby the trial judge setting forth the find-ings required by section 19-2515(d), Ida-ho Code, and such other matters concern-

947 FEDERAL REPORTER, 2d SERIES

ing the sentence imposed as may be re-quired by the Supreme Court.

(b) The Supreme Court of Idaho shallconsider the punishment as well as anyerrors enumerated by the way of appeal.

(c) With regard to the sentence thecourt shall determine:

(1) Whether the sentence of death wasimposed under the influence of pas-sion, prejudice, or any other arbitraryfactor, and

(2) Whether the evidence supports thejudge's finding of a statutory aggravat-ing circumstance from among thoseenumerated in section 19-2515, IdahoCode, and. (3) Whether the sentence of death isexcessive or disproportionate to the pen-alty imposed in similar cases, consideringboth the crime and the defendant

(d) Both the defendant and the stateshall have the right to submit briefswithin time provided by the court, and topresent oral argument to the court.

(e) The court shall include in its deci-sion a reference to those similar caseswhich it took into consideration. Inaddition to its authority regarding cor-rection of errors, the court, with regardto review of death sentences, shall beauthorized to:

(1) Affirm the sentence of death; or(2) Set the sentence aside and remand

the case for resentencing by the trialjudge based on the record and argumentof counsel.

(f) The sentence review shall be in ad.dition to direct appeal, if taken, and thereview and appeal shall be consolidatedfor consideration.

(g) The Supreme Court shall collectand preserve the records of all cases inwhich the penalty of death was imposedfrom and including the year 1975.

Idaho Code § 19-2827 (emphasis added).The Idaho Supreme Court applied § 19-

2827 to Creech, saying:

3. Just as in Walton, this case is also distinguish-able from Maynard because Maynard "the de-fendant was sentenced by a jury and the jury

We hold that none of these recent Ida.ho murder decisions militates toward thegranting of leniency in the present caseWe find no instance in which a defendantfound guilty of such previous crimes aathose of Thomas Creech has been founddeserving of a sentence less than death.We have examined [thirty-four] casesdating back more than 50 years and ourexamination fails to disclose that anysuch remorseless, calculating, cold-blool.ed multiple murderer has (with the ex.ception of Creech I [State u. Creech, 59P.2d 114 (1919) ] ever been before thisCourt.... We hold that the death penal.ty imposed in this case is both propor-tionate and just.

Creeck, 670 P.2d at 476.Creech had the death sentence imposed

upon him by a judge not a jury.' Creech,670 P.2d at 466 ("[f]ollowing the conclusionof the sentencing hearing, the district courtmade its written' findings and pronouncedsentence of death upon Creech"). In Wal-ton, the United States Supreme Court heldthat "[wihen a jury is the final sentencer, itis essential that the jurors be properly in-structed regarding all facets of the sen-tencing process .. . (but t]rial judges arepresumed to know the law and apply it inmaking their decisions." Walton, 110 S.Ct.at 3057. In the instant case, as recognizedby footnote 12 of the panel's opinion, thesentencing judge is thus presumed to haveapplied the judicial refinements provided tohim by Osborn.

Did the Idaho Supreme Court have Os-born in mind while it processed the caseagainst Creech? The answer is yes. Jus-tice Shepard, who wrote Creech, was onthe Osborn panel. Moreover, the IdahoSupreme Court in Creech referred to Os-born and quoted in haec verba the limitingpassage from Osborn that I quote earlierin this opinion. See Creech, 670 P.2d at471. Thus, the Idaho Supreme Court hadin mind the Osborn standard when it said."We now turn to whether the sentencingjudge complied with those statutory prov-i

either was instructed only in the bare terms ofthe relevant statute or in terms nearly as vague.Walton. 110 S.Ct. at 3057.

892

U.S. v. FCiteas 947 F.2d 8

sions.... We have reviewed the recordand hold that the evidence at the sentenc-ing hearing clearly supports the trial

court's findings of aggravating and miti-

gating circumstances." Id. at 470.

Since 1972 in Furman v. Georgia, 408U.S. 238, 92 S.CL 2726, 33 LEd.2d 346(1972), the Supreme Court has establishedcertain minimum but strict requirementsfor states choosing to pursue capital pun-ishment. Idaho has rigorously tailored itslaws to meet these requirements. In myview, our court has strayed from thecourse charted by the Supreme Court inWalton and effectively established a stan-dard for Idaho more exacting than the oneestablished for Arizona. Hence, I DIS-SENT.

0 t KEYMM R SYSTEM

UNITED STATES of America,Plaintiff-Appellee,

V.

Jerry Lawrence PADILLA, Sr.,Defendant-Appellant.

No. 89-2179.

United States Court of Appeals,Tenth Circuit.

Oct. 21, 1991.

Defendant was convicted in the UnitedStates District Court for the District ofNew Mexico, Juan G. Burciaga, ChiefJudge, of possession with intent to distrib-ute less than 100 grams of heroin, and heappealed. The Court of Appeals, Logan,Circuit Judge, held that: (1) reconsidera-tion of upward adjustment in offense levelfor supervisory role in the offense of con-viction was warranted on remand; (2) de-fendant waived right to challenge weightof heroin in charged offense by failing toraise objections at sentencing; and (3) trial

ADILLA 89393 (10th Cr. 1991)

court erred in considering 3.8 grams ofheroin in uncharged count in determiningaggregate amount of drugs for sentencingpurposes absent any explanation in presen-tence report as to basis for addition of 3.8net grams.

Remanded.

1. Criminal Law 4=1251There was sufficient evidence in the

record to support an upward adjustment ofnarcotics defendant's sentence for a super-visory role based on his role in the offenseof conviction, possession with intent to dis-tribute less than 100 grams of heroin.U.S.S.G. § 311.1(c), 18 U.S.C.A.App.

2. Criminal Law 4=1181.5(8)Although there was sufficient evidence

in record to support upward adjustment forsupervisory role based solely on defen-dant's role in the offense of conviction,possession with intent to distribute heroin,reconsideration was warranted where sen-tencing court did not explicitly base itsdetermination only on offense of convictionand referred to other offenses, particularlysince remand was otherwise necessary fordetermination of supervised release term.U.S.S.G. § 3B1.1(c), 18 U.S.C.A.App.

3. Criminal Law 0-1036.8Defendant waived right to challenge

weight of heroin involved in charged of-fense on appeal when he failed to challengeweight at sentencing.

4. Drugs and Narcotics 0-133Trial court erred in considering 3.8

grams of heroin in an uncharged count indetermining the aggregate amount ofdrugs for sentencing defendant convictedof possession with intent to distribute lessthan 100 grams of heroin; there was noexplanation in presentence report as to ba-sis for the addition of the 3.8 net grams.U.S.S.G. § 6A1.3, p.s., 18 U.S.C.A.App.

5. Criminal Law 4-986.2(1)Although hearsay may be used in de-

termining a sentence, some indicia of relia-bility is required. U.S.S.G. § 6A1.3, p.s.,18 U.S.C.A.App.

GRAHAM vCie as 9' FId I

excess of the maximum limit initially pro-vided. The plan administrator has neverbeen called on to interpret the last sentenceof the limited amendment provision. Wedecline to predict whether the administra-tor will construe future sequela of Grego-ry's 1983 injury as "claim(s] arising priorto" any future amendments that are pro-posed that would seek to reduce or other-wise limit the $500,000 lifetime maximumbenefit If the administrator determinescovered expenses which Gregory incurs tobe claims arising prior to amendment,Gregory's right to reimbursement would beprotected by the limited amendment lan-guage and cannot be prejudiced. Any suchentitlement would flow, not from ERISA,but from the terms of the plan. Until theadministrator is required to rule on thestatus of a covered claim made by Gregory,however, the grant of declaratory reliefwould be premature.

III.

For the foregoing reasons, the judgmentawarding benefits for treatment at Tan-gram is REVERSED and judgment isRENDERED in favor of Halliburton andthe plan; dismissal of the plan's subroga-tion counterclaim is VACATED and theclaim is REMANDED for a determination,consistent with this opinion, of whether theplan is entitled to relief; the award ofattorneys' fees is VACATED; and the dec-laration of Gregory's entitlement to futurebenefits is VACATED in accordance withthe views set forth in this opinion.

REVERSED and RENDERED in part,and, in part, VACATED and REMANDED.

o sIKNU s M

. COLLINS 1009009 (Sth Cr. 1992)

Gary GRAHAM, Petitioner-Appellant,

V.

James A. COLLINS, Director, TexasDept. of Criminal Justice, InstitutionalDivision, Respondent-Appellee.

No. 88-2168.

United States Court of Appeals,Fifth Circuit

Jan. 3, 1992.

State prisoner under death sentencesought habeas corpus. The United StatesDistrict Court for the Southern District ofTexas, David Hittner, J., denied relief. Pe-tition for probable cause was denied by theCourt of Appeals, 854 F.2d 715. The Unit-ed States Supreme Court vacated, 492 U.S.915, 109 S.CL 3237, 106 L.Ed.2d 585. Onremand, the Court of Appeals granted ha-beas corpus, 896 F.2d 893 and rehearing enbanc was ordered, 903 F.2d 1014. TheCourt of Appeals, Garwood, Circuit Judge,held that Texas death penalty statute ade-quately allowed for consideration of miti-gating factors of defendant's youth and ofdefendant's respect for his family membersand support for his children as they wererelevant to the special issue of whetherdefendant would represent a continuingthreat to society.

Dismissal of petition affirmed.

Reavley, Circuit Judge, dissented andfiled an opinion in which Politz, King, W.Eugene Davis, and Wiener, JJ., joined.

Patrick E. Higginbotham, CircuitJudge, filed a dissenting opinion.

Opinion, 896 F.2d 893, superseded.

1. Habeas Corpus 4-818Standard for granting certificate of

probable cause requires that habeas peti-tioner make substantial showing of denialof federal right.

2. Criminal Law 41213.8(8)Imposition.of death sentence on 17-

year-old convicted of capital murder did not

950 FEDERAL REPORTER, 2d SERIES

violate Eighth Amendment U.S.C.A.Const.Amend. 8.

3. Criminal Law <=641.13(7)Trial attorney in state capital murder

trial was not ineffective, although defen-dant contended attorney construe deathpenalty statute as precluding considerationof mitigating factors; attorney was not inany way discouraged by statute frompresenting mitigating evidence of defen-dant's psychiatric treatment but, rather, hisdecision not to pursue that course resultedfrom his belief that little convincing evi-dence existed and that damaging rebuttalevidence would be introduced. Vernon'sAnn.Texas C.C.P. art. 37.071; U.S.C.A.Const.Amend 6.

4. Habeas Corpus *-718Competent evidence supported state

court finding that defendant was compe-tent to be executed.

5. Habeas Corpus e773Habeas petitioner failed to overcome

presumption that state trial court's findingthat defense counsel was effective was cor-rect. U.S.C.A. Const.Amend. 6.

6. Constitutional Law *=270(1)Criminal Law 41206.1(2), 1213.2(2)Searches and Seizures e12

Texas death penalty statute providesproportionality and does not violate Fourth,Fifth, Sixth, Eighth or Fourteenth Amend-ments. U.S.C.A. ConstAmends. 4-4, 8, 14;Vernon's Ann.Texas C.C.P. art. 37.071.

7. Constitutional Law 4221(1, 5), 250.-2(1, 4), 265, 267

Grand Jury 421hJury 433(2.1)

Exclusion of 18-year-olds and blacksfrom grand jury and petit juries in statecapital murder trial did not violate defen-dant's due process and equal protectionrights; peremptory challenges againstblacks resulted from venireman's testimo-ny that they were opposed to death penaltyand no case law suggested that the exclu-sion of 18-year-olds is unconstitutional.U.S.C.A. Const.Amends. 5, 14.

8. Criminal Law e1208.1(5)Merely because mitigating evidence

has some relevance to a negative answer toone of the special issues submitted to thejury at the sentencing phase under Texasdeath penalty statute does not necessarilysuffice to sustain the application of thestatute. Vernon's Ann.Texas C.C.p. art37.071(b) (1990). .

9. Criminal Law 4-1206.1(2)Where no major mitigating thrust of

evidence presented at sentencing phase issubstantially beyond the scope of the threespecial issues submitted under the Texasdeath penalty statute, i.e., whether the con-duct was deliberate, whether there is aprobability that defendant will commitcriminal acts in the future, and whether thedefendant was acting in response to provo-cation, the Texas statutory scheme is validand allows proper consideration of all miti-gating evidence presented. Vernon'sAnn.Texas C.C.P. art. 37.071(b) (1990).

10. Criminal Law 4=1206.1(2)Mitigating factors of relative youth

and evidence reflecting good charactertraits, such as steady employment andhelping others, are adequately covered bysecond special issue of the Texas deathpenalty statute which asks the jurors toconsider whether there is a probability thatdefendant will commit criminal acts of vic.lence and will constitute a continuingthreat to society. Vernon's Ann.TezasC.C.P. art. 37.071(b) (1990).

11. Homicide 4-357(6)Evidence of good character or tr

itory condition, such as youth or being ader some particular emotional burdeo atthe time of the homicide, will typically tendto indicate that the crime in question is notruly representative of what the defdant's normal behavior is, or may beaUseover time, and will tend to indicate thdefendant may be rehabilitated so As motbe a continuing threat to society and Smitigating evidence is adequately sA0'ed for under the Texas death penalty 4.ute by the requirement that the jurOrs 00sider likelihood of defendant's futu w

1010

GRAHAMvCite as 950 F.d I

gerousness. Vernon's Ann.Texas C.C.P.art. 37.071(b) (1990).12. Homicide 4357(6)

Defendant's youth as a mitigatingfactor in capital murder prosecution wasadequately encompassed by special issueasking the jury whether defendant waslikely to be a danger to society in thefuture, and that special issue adequatelyallowed jury's consideration of that miti-gating factor; whatever is mitigatingabout youth tends to lend support to a "no"answer to that special issue and its tenden-cy to do so is essentially proportional to thedegree to which the jury considers thatsuch factors as youth were influential indefendant's probable conduct. Vernon'sAnn.Texas C.C.P. art. 37.071(b) (1990).13. Homicide e357(4)

Youth is not a factor mitigatingagainst imposition of the death penaltywith respect to a defendant's conductwhich is not attributable to youth. Ver-non's Ann.Texas C.C.P. art. 37.071(b)(1990).14. Homicide 4-357(6)

Mild evidence of normal and good char-acter on defendant's part, such as respectfor his grandmother and stepfather and hiscloseness to his mother, his lack of vio-lence, his willingness to help out aroundthe house, and his contribution to the sup-port of his children was related to specialissue under Texas death penalty statute ofwhether there was a probability that defen-dant would be a continuing threat to socie-ty, and statute requiring the jury to answerthat special issue adequately allowed forconsideration of that mitigating evidence.Vernon's Ann.Texas C.C.P. art. 37.071(b)(1990).IL Homicide -357(4)

Evidence that defendant's mother wasfrequently hospitalized with a nervous con-dition or mental illness from the time thatdefendant was approximately three yearsold was not comparable to evidence of adefendant's own mental illness or retarda-tion which might be a mitigating factor not

Judges Emillo M. Garza and Harold R. DeMoss.Jr were sworn in after this case was argued to

. COLLINS 1011009 (5th Ctr. 1992)

adequately presented to the jury by Texasdeath penalty statute. Vernon's Ann.Tex-as C.C.P. art. 37.071(b) (1990).

16. Homicide 0357(4)Defendant's youth, respect for his fam-

ily, and support of his children had mitigat-ing relevance to special issues under Texaslaw of whether the conduct of the defen-dant was committed deliberately and withreasonable expectati6n that death wouldresult and whether the conduct of defen-dant was unreasonable in response to anyprovocation of the deceased. Vernon'sAnn.Texas C.C.P. art 37.071(b) (1990).

Douglas M. O'Brien, Houston, Tex., forpetitioner-appellant.

Robert S. Walt, Asst. Atty. Gen., Austin,Tex., for respondent-appellee.

Appeal from the United States DistrictCourt for the Southern District of Texas.

On Remand from the SupremeCourt of the United States

Before CLARK, Chief Judge,REAVLEY, POLITZ, KING, GARWOOD,JOLLY, HIGGINBOTHAM, DAVIS,JONES, SMITH, DUHP, WIENER, andBARKSDALE, Circuit Judges.*

GARWOOD, Circuit Judge:A panel of this Court previously affirmed

the district court's denial of Gary Graham'shabeas corpus petition challenging his Tex-as capital murder conviction and death sen-tence. Graham v. Lynaugh, 854 F.2d 715(5th Cir.1988). Thereafter, the UnitedStates Supreme Court, in Graham v. Ly-naugh, 492 U.S. 915, 109 S.Ct. 3237, 106LEd.2d 585 (1989), issued a per curiamorder that granted Graham's petition forwrit of certiorari, vacated the judgment ofthis Court, and remanded the case to thisCourt "for further consideration in light ofPenry v. Lynaugh," 492 U.S. 302, 109 S.Ct.2934, 106 LEd.2d 256 (1989). Pursuant tothat remand order, a panel of this Courtreconsidered the case, and, by a dividedvote, vacated Graham's death sentence, the

the En Banc Court and elected not to participatein this en banc decision. - .

950 FEDERAL REPORTER, 2d SERIES

panel majority determining that the Texasca-pital sentencing system was unconstitu-tionally applied in Graham's case becausethe jury at the sentencing phase of histrial, having been given no special instruc-tions, was not able to adequately considerand give effect to Graham's youth as amitigating factor. Graham v. Collins, 896F.2d 893 (5th Cir.1990). Having orderedrehearing en bane, id 903 F.2d 1014 (5thCir.1990), we have again reconsidered thecase in light of Penry and, disagreeingwith the panel majority's determination inthis respect, we now reinstate our formeraffirmance of the district court's denial ofhabeas relief.

1. The 1988 and 1990 panel opinions in this caseerroneously indicated that only the first twoissues specified in art. 37.071(b) were submitted.Se4 id, 896 F.2d at 898 n. 4 and 854 F.2d at 718.

Until 1991. sections (a) through (e) of art.37.071 provided, as they did also in 1981, asfollows:

"(a) Upon a finding that the defendant isguilty of a capital offense, the court shallconduct a separate sentencing proceeding todetermine whether the defendant shall be sentenced to death or life imprisonment. Theproceeding shall be conducted in the trialcourt before the trial jury as soon as practica-ble. In the proceeding, evidence may bepresented as to any matter that the courtdeems relevant to sentence. This subsectionshall not be construed to authorize the introduction of any evidence secured in violationof the Constitution of the United States or ofthe State of Texas. The state and the defen-dant or his counsel shall be permitted topresent argument for or against sentence ofdeath.

"(b) On conclusion of the presentation ofthe evidence, the court shall submit the fol-lowing three issues to the jury-

"(I) whether the conduct of the defendantthat caused the death of the deceased wascommitted deliberately and with the reasonable expectation that the death of the de-ceased or another would result;

"(2) whether there is a probability that thedefendant would commit criminal acts of vio.lence that would constitute a continuingthreat to society* and

"(3) if raised by the evidence, whether theconduct of the defendant in killing the de-ceased was unreasonable in response to theprovocation, if any, by the deceased.

"(c) The state must prove each issue sub.mitted beyond a reasonable doubt, and thejury shall return a special verdict of 'yes' or'no' on each issue submitted.

"(d) The court shall charge the jury that:"(1) it may not answer any issue 'yes' unless

it agrees unanimously, and

Procedural History

Over his plea of not guilty, Graham wuconvicted by a Texas court jury in October1981 of the offense of capital murder, theMay 1981 intentional killing of Bobby Las.bert by shooting him with a pistol while inthe course of robbing or attempting to robhim. Texas Penal Code, art. 19.03(a)2At the sentencing phase of the trial, thejury answered in the affirmative each ofthe three special issues provided for inTexas Code of Criminal Procedure, art. 3t..071(b), and Graham was accordingly sea-tenced to death.' On direct appeal, Gm.ham's conviction and sentence were af-

"(2) it may not answer any issue 'no' unles10 or more jurors agree.

"(e) If the jury returns an affirmative fin&ing on each issue submitted under this article,the court shall sentence the defendant todeath. If the jury returns a negative findingon or is unable to answer any issue submittedunder this article, the court shall sentence thedefendant to confinement in the Texas Department of Corrections for life."

The above provisions are the same as when thestatute was first enacted in 1973 (except that by1981 amendment the word "three" was insertelin the opening clause of section (b)).

In May 1991 the Texas Legislature passed tobills amending art. 37.071. S.B. 880, ch. 8372nd Leg., R.S.1991, extensively amends theTexas capital sentencing procedure, includingart. 37.071, and specifies an effective date ofSeptember 1, 1991, but is expressly made appli.cable "only" to offenses "committed on or afterSeptember 1. 1991." S.B. 880, § 5. Thechanges made by S.B. 880 § I to art. 37.071include the entire elimination of the formerfirst and third special issues (the former secondspecial issue is retained verbatim in all cases).provision for a new special issue where the jurycharge allowed the defendant to be found guiltyunder the law of parties, and provision in allcases for the following new special issue:

"Whether, taking into consideration all Ofthe evidence, including the circumstances ofthe offense, the defendant's character andbackground and the personal moral culpab!ty of the defendant, there is a sufficient Initigating circumstance or circumstances to war*rant that a sentence of life imprisonment t51b-

er than a death sentence be imposed."If all issues submitted are answered adversely tothe defendant, the sentence is death; otherwise*the sentence is life imprisonment. S.B. 880 W"finally passed May 17. 1991. and was filed with'out the Governor's signature on June 16. 1991.The other bill. H.B. 9. ch. 652, 72nd 14-R.S.1991, was finally passed May 27, 1991. andwas signed by the Governor June 16, 1991. Sec.

1012

GRAHAM vCite as 950 F.2d I

oreed by the Texas Court of Criminal Ap-peals in an unpublished opinion. Grahamsubsequently sought habeas corpus relief

in the Texas courts. After holding an evi-

dentiary hearing on Graham's allegations,the convicting trial court recommended de-

nis of relief, transmitting to the Court ofCriminal Appeals findings and conclusionsrejecting Graham's contentions. The Courtof Criminal Appeals thereafter denied re-Bef pursuant to an unpublished opinion.

Graham then brought the present pro-ceedings under 28 U.S.C. § 2254 in thedistrict court. That court denied reliefwithout an evidentiary hearing, and derizdstay of execution and a certificate of pioba-ble cause. A panel of this Cn-- grantedan interim stay, but ultimat.aly denied Gra-ham's application for eu-tficate of projablecause. Graham, 854 F.2d i1'- - JudgeJolly, in his opinion zor -ie panel consistingof himself and Judges Reavley and King,considered and rejected seriatim each ofGraham's several claims. In part IIB ofthe opinion, the panel dealt with Graham'scontention that the Texas statutory special

tion 9 of H.B. 9 provides that art. 37.071 "isamended to read as follows" setting it out in fullin the same form as it existed previously (orbefore May 1991) with only minor, technicalchanges (a new section 1 is added providing thatthe judge shall sentence the defendant to lifeimprisonment if the state does not seek thedeath penalty; the remainder of art. 37.071 isput into its section 2, stated to apply only if thestate seeks the death penalty; the only otherchanges are from 'upon" to "on" at the begin-ning of section 2(a) and using the current desig-nation for the former Texas Department of Cor-rections in section 2(e)). H.B. 9 specifies Sep-tember 1, 1991 as its effective date (section 16).and its section 15(a) states: "(a) The changes inlaw made by Section 1-9 and 11. 12. and 13 ofthis Act apply to the trial of a capital offensethat commences on or after the effective date ofthis Act, whether the trial is for an offensecommitted before, on. or after the effectivedate.-

We merely note these 1991 enactments, andexpress no opinion with respect to whether, foroffenses committed on or after September 1,1991. the controlling form of art. 37.071 is asprovided in S.B. 880 § I or H.B. 9, § 9.

. The panel also, among other things, rejectedGraham's contention that the Eighth Amend-ment prohibited execution for an offense com-mitted when the defendant was less than eigh-teen years old. Id. 854 F.2d at 717-718.

. COLLINS 1013009 (Sth Ctr. 1992)

issues, which mandate the death penalty ifall are answered affirmatively, see note 1,supra, do not permit the jury to adequatelyweigh mitigating circumstances when for-mulating their answers. Id. at 718-20.The factors Graham relied on as mitigatingwere primarily his youth-he was seven-teen at the time of the offense-and certainmatters reflected by evidence concerninghis childhood.' Id. The panel relied partic-ularly upon Franklin v. Lynaugh, 487 U.S.164, 108 S.Ct. 2320, 101 LEd.2d 155 (1988),and concluded by holding that "the jury'sverdict ... is consistent with the constitu-tional requirements outlined in Franklinand other precedents." Id. at 719.3

[1-7] Following the Supreme Court'sremand for reconsideration in light of Pen-ry, the panel again grappled with this diffi-cult issue.' Judge Reavley, for the panelmajority, held that:

"The mitigating evidence that Grahamintroduced during sentencing includedhis youth and his difficult childhood.Graham argues this evidence is relevant

3. The 1988 panel did, however, observe (id at720, n. 8):

"We do not suggest that this area of the lawis devoid of wrinkles. The Supreme Courthas recently granted certiorari in the case ofPenry v. Lynaugh, 832 F.2d 915 (5th Cir.1987),cm granted (487] U.S. [1233], 108 S.CL 2896,101 LEd.2d 930 (1988). In Penr our courtclosely scrutinized evidence of Peary's mentalretardation and concluded that there wassome doubt whether the Texas statute permit-ted this evidence to be considered in answer-ing the sentencing questions. 832 F.2d at925."

4. With respect to the other issues in the case.the 1990 panel opinion observed:

In remanding this case, the Supreme Courtneither expressed nor suggested disagreementwith any part of our prior opinion other thanthat relating to Graham's argument that theTexas statutory sentencing procedure does notallow the jury to consider fully the relevantmitigating circumstances, which is discussedin section IB of that opinion. Accordingly,with the exception of section IIB, we reinstateour prior opinion.' Id. 896 F.2d at 894.

We agree, and reinstate this portion of the 1990panel opinion. For the same reason, we sim-ilarly deny relief with respect to Grabam's con-tentions addressed in footnotes 5, 7. and 9 of the1988 panel opinion. Id. 854 F.2d at 718 n. 5.719 nn. 7 & 9.

950 FEDERAL REPORTER, 2d SERIES

beyond the scope of the special questionsand that, because no additional instruc-tions were given, the Texas statute wasunconstitutionally applied in his case.Because of Graham's age, we agree."Id at 897.3

Judge Jolly, in his 1990 dissent, concludedthat the second special issue adequatelyencompassed any mitigating aspects ofyouth that the jury must constitutionallybe free to consider, as Graham's youthful-ness was such a factor only to the extenthis offense was a product of it, and youthwas necessarily a transitory condition thatthe jury could fully take into account "bygiving a negative answer to the. futuredangerousness inquiry of the second pe-cial issue." Id. at 899.

Context FactsAt the guilt-innocence phase of the trial,

Graham's defense was essentially only oneof insufficient identification. The statepresented several witnesses to the shoot-ing, which occurred at about 9:30 p.m. onWednesday, May 13, 1981, in the parkinglot of a Safeway Food Store in Houston,Texas. The perpetrator, a man wearingblack pants and a white jacket, bumpedinto Lambert, who was carrying a sack ofgroceries out of the store, and attempted tograb Lambert's wallet Some of the testi-mony indicated that there was a briefstruggle between the two. Lambertpushed at the perpetrator, and eachstepped back; the perpetrator produced apistol, leveled it at Lambert's chest, andshot him in the heart from a distance ofabout two to three feet. The perpetratorthen fled without being apprehended.Lambert staggered back toward the store,fell, and died on the spot The perpetratorhad been observed in the store when Lam-bert was there, but had left a few minutes

5. The 1990 panel majority, though summarizingthe evidence presented by Graham respectinghis childhood. iL, did not address whether thatevidence, of itself, would have required somefurther instruction or jury submission beyondthat given. As to the Penry issue, the panel onlyaddressed "Graham's age."

6. The other witnesses did not testify to anythingsuggesting that Graham was not (or did notresemble) the perpetrator, but merely stated

before Lambert did. So far as the evid.fshowed, the perpetrator acted alone. 0nlone of the witnesses, Mrs. Skillern, wasable to identify Graham as the perpsator.' She ultimately so identified Grahaein a May 26 photographic display and in aMay 27 police station "line-up," as well asin her open court trial testimony. Defensecounsel attacked Mrs. Skillern's identifction, both by vigorous crossexaminadoeand by emphasizing in argument the faD,ure of the other witnesses, at least one ofwhom was closer to the events in questic,to make an identification! However, adefense evidence was presented. In cloing argument defense counsel did not sa.gest -'hat the evidence failed to show thatthe offense t'harged had been committed,.ut rather that 1t failed to show that Gr'sham '.*, the one wh,.) committed it.

At the senterdiknearing, no evidencewas introduced concerning the offense ofconviction. The state introduced extensiveevidence showing that on five differentdays during the week following his murderof Lambert, Graham committed robberiesat a total of nine separate locations and ineach instance Graham leveled either a pittol or a sawed-off shotgun on the victimThe first of these was on May 14, and thelast on May 20. These offenses involvedsome thirteen different victims, includingwomen aged fifty-seven and eighteen andmen aged sixty-four, fifty-seven, eighteen,and other ages. With respect to a few ofthese occasions, the evidence indicated Gra'ham was using marihuana. In addition tomoney and personal effects, five vehicleswere stolen. Two of the victims were pis'tol whipped, one of them being shot in theneck. These were the only serious physicalinjuries. Graham glancingly struck another victim, the sixty-four-year-old man, withthe vehicle he was stealing, apparently T

that they did not get a good enough look at (Orsufficiently recall) the perpetrator's face tmake an identification.

7. The defense also sought to suppress Mrs. Skl'lern's testimony on the basis that the Phowgraphic display and line-up were unduly sii0*tive. After an extensive hearing out of the Pepence of the jury, this motion was ove

1014

GRAHAM vCite as 950 F.2d I

to run over him. The fifty-seven-year-g loman was kidnapped and raped, after

'whic Graham fell asleep in her apartment,At contacted the police and he was arrest-

ad there, thus bringing his crime spree to

s end. On five of these occasions Grahamapparently acted alone; on four others an

:aSeomplice (not shown to be of a differentag from Graham) was present or nearby,but Graham wielded the weapon. At leastsix of the separate incidents, including that;vh the sixty-four year old and the two,with the fifty-seven year olds, involved,Graham practicing initial successful decep-

-do on the victim. The state also intro--doced testimony of a Texas Youth Council.amployee that she had been familiar sinceo unspecified time in 1979 with Graham's

-eputation in the community for being apeaceful and law-abiding citizen, and that itwas bad, she gave no elaboration or specif-ks whatever and did not state how sheaquired this information, except that itwas not based on her own personal obser-vation. This was the entirety of the state'sevidence at the punishment stage.

The only evidence presented by the de-fense at the sentencing stage consisted ofthe testimony of Graham's stepfather, JoeSamby, and his grandmother, Erma Chron.Samby testified that he had been marriedto Graham's mother for about five years,and had known Graham for about fiveyears. He said Graham was fifteen whenhe (Samby) first met him. Graham livedwith his father, and worked with him, butSamby did not know what kind of workGraham did. Graham would come by Sam-by's house once or twice a week to visit hismother. Graham had "real, real respectfor his mother. He cared about his moth-er. He was real close to his mama." Hismother was present in the courtroom, butSamby explained "she can't do nothing be-catuse she is on medication and nervous.L There was no evidence as to where Graham's

children lived or whether Graham was or hadbeen married.

H* However it is undisputed that Graham was infact born on September 5. 1963, this being re-flected in a report of a pretrial psychiatric ex-antnation filed in the papers of the case inAugust 1981. the examination having been or-dered by the court on motion of defense coun-

. COLLINS. 1015o9 (5th Clr. 1992)

She is the nervous type." Samby statedthat he had never known Graham to be aviolent person, that Graham had been "realnice, respectable" with him and, when re-quested to help out around Samby's house,such as by cutting the grass or to "cleanup and help his mother," Graham "woulddo it and be glad to do it for me." Grahamwas one of four brothers, and had no sis-ters. Samby had three children of his ownliving in his house. Graham had two chil-dren, one four and the other two. Grahamwould "buy ... clothes for his children andtry to give them food."8

Chron testified that her grandson Gra-ham began staying with her intermittently,beginning "when he was around three,"because his mother was frequently hospi-talized for a "nervous condition" thatChron said was "mental illness." Hewould stay with his mother when she wasnot hospitalized. However, at about ageeleven or twelve Graham went to live withhis father and "he has been with his fatherever since." Graham's mother had beenhospitalized "at least twenty times."Chron further stated that while Grahamwas living with her he attended school, "hewould go to church all the time and every-thing. He loved the Lord," and he didn'tgive Chron "any problems or trouble."Chron also testified that Graham never hadany weapons, and "he has never been vio-lent."

Apart from Samby's testimony that hehad known Graham about five years andfirst knew him when Graham was fifteen,which would indicate that Graham wasnineteen or twenty when the offense wascommitted, there was no evidence beforethe jury as to Graham's age.' Neverthe-less, each of Graham's two attorneys, intheir closing arguments at the punishmentstage, argued to the jury, without prosecu-

sel. Graham was thus seventeen years andeight months of age when the offense was com-mitted. Records of the late May 1981 line-upsat which Graham was identified, which werenot before the jury but were put in evidenceonly in hearings out of the presence of the juryon suppression motions, also reflect that Gra-ham was seventeen at that time.

1016 950 FEDERAL RE

tion objection, that Graham was seventeenwhen his offense was committed.

The first defense counsel's argument in-cluded the following:

"We have to make a decision on thisyoung man, Gary Graham. What do weknow about Gary Graham? One thingwe know about Gary Graham is fromMay 13 through May 20th he reapedhavoc and hell on a lot of people. May13, 14, 15, 16, 18 and 20th five days.Pure hell. What do we know about GaryGraham? We know that at age 3 hewent to live with his Grandmother be-cause his Mother was placed in a mentalinstitution or placed herself in a mentalinstitution. We know he lived on and offwith his Grandmother and when shewould come out of the hospital he wouldlive with her and when she would goback he would go live with his Grand-mother. Draw your own conclusions tothat, what type of life he lived. Youheard from his Step-father. He statedthat Gary Graham would come to hishouse and visit his Mother every nowand then. You heard from his Grand-mother, that Gary Graham has 2 childrenof his own.... Gary Graham is a youngman. No doubt about it.... A youngman, hasn't even reached 20 years old.Not even 20 years old. He goes on arage for 7 days, 7 days out of his life.He is not going to ever forget.... Iwould hope that it was something on thewitness stand that you either heard thatshow some redeeming value. Somethingin Gary Graham's life to say that possi-bly he can be rehabilitated. Possibly.And I would urge each and every one ofyou all that there is a glimmer or apossibility that his life can change, giventhat opportunity.... Gary Graham, 17years old, went on a rage for 7 days.What did he do? He harassed people.He stuck guns in their face. He shot anindividual and he killed another individu-al. What was it in response to? Whydid he become so aggressive? Whatmakes an individual go on a rage for 7days? Drugs? Alcohol? Maybe. Life?Maybe...."

PORTER, 2d SERIES

Graham's other counsel argued in a .ilar vein, stating:"... there are only two answers, anthat is a choice. Life or death. Life ithe penitentiary at the age of 18 yearold. What is the meaning of pument? Why do we punish.... we.all leaving. Everyone here gets to leabut him. He either goes to live for life itthe penitentiary or be prepared for deathby injection, and when you look at ayoung man of his age, what do you thinkabout? What do you think about theyears when you think about death. Yathink about finishing the years of youlife back when you are at a point in youlife when some people have no directio.Some people have no knowledge ofwhere their (sic] going or what theywant to do. Some of us are more fort.nate. You also have to look at changein society. Changes in ages. See, because what you are called upon to do ispredict whether some time in the futmGary Graham could become a person fitto return to society. At least he is aliw.See, when you are 17 or 20, you aryoung, hot-to-trot. You are going to setthe world on fire one way or the other,right or wrong. When people come intheir middle 20's. and middle 30's, achange a little bit from your more radiclstands to a more somewhat upright po&ture because you have had not only timto think, but to see what is in the worldMost of the crime is committed by youngpeople. By the time you get to 25 or 35,it's different 35 and above.... becausethere is something about human naturethat not only changes you, but slows Yo"down as you live. If you live. If youlive...."The prosecution's argument did not refer

to Graham's age in any way except to oncacknowledge "his youth." The prosecutonstressed Graham's killing of Lambert &0his other many serious offenses in the Io)lowing week, stating in part:

"Gary Graham does have direction, 'he has shown you that direction. Ie MIsshown you that direction in every wl?that you can possibly look at...-(There are certain individuals in our 0

GRAHAM vCite as 950 F2d 1

iety that we have got to look at. Andwe have got to realize that are not fit tolive with us. The evidence beyond areasonable doubt shows that Gary Gra-ham is not fit to live in this society, thathe will constitute a continuing threat tosociety. Compassion? They ask forcompassion. We ask you for his life....Rights of the individuals of this society.The life of Bobby Grant Lambert. Theysay look at his youth. When does ahuman life taken the way he took thatlife of Bobby Grant Lambert cease tohave meaning? It ceases to have mean-ing when the terror and the degradationof a man such as him holds that life inhis hand. ... Compassion? Care?Have you just looked at him? ... Deathis the only protection that you, as thejury, and society can protect from peopleand especially Gary Graham. The seedsof our past are the harvest of the futureand what seeds has Gary Graham plant-ed? And where has he sowed thoseseeds? In the fertile earth? No. Heburied Bobby Grant Lambert in theearth. His seeds are death. Pain. Suf-fering. Humiliation. Degradation.What do those things bring? But onething tell you what Gary Graham is.You have seen his actions. You haveheard from the mouths of these people.Deliberate conduct... ."

Neither side made any objections to theother's argument The court instructedthe jury in accordance with article 37.071,including informing them that the sentencewould be either "death or confinement in

10. The jury was also instructed that the statestill had the burden of proof, which never shift-ed to the defendant, and that 'each special issuesubmitted must be proved by the state beyond areasonable doubt" and none could be answered'yes unless all jurors were convinced beyond areasonable doubt that it should be so answered.

11. Prior to trial, the court bad denied defensecounsel's motion to "hold article 37.071 ... un-constitutional and void." This motion wasrounded on the contention that the special

ussues called for were too "vague and indefi-nitc" and thus "allow total discretion to a juryto make unfavorable findings against a Defen-dant, and such findings may be based on anyPrejudice the jury may have, individually or as awhole." The supporting memorandum ex-

. COLLINS 1017009 (5thCir. 1992)

the penitentiary for life," and that in an-swering the three special issues they couldtake into consideration all the evidence sub-mitted both at the guilt-innocence stageand at the punishment stage. 0 The threespecial issues called for by art. 37.071(b)were submitted, and each was answered inthe affirmative. Neither side objected tothe charge or the issues submitted or re-quested any other or further instructionsor issues."

Discussion

In Jurek v. Teras, 428 U.S. 262, 96 S.Ct.2950, 49 LEd.2d 929 (1976), the SupremeCourt sustained the Texas capital sentenc-ing procedure of art. 37.071. This caserequires us to examine what, if anything,remains of Jurek and art. 37.071 after Pen-ry. To provide context for this examina-tion, an overview of some of the otherleading decisions of the Supreme Court inthis area is appropriate.

Context cases

In Furman v. Georgia, 408 U.S. 238, 92S.Ct. 2726, 33 LEd.2d 346 (1972), the Courteffectively struck down all capital punish-ment statutes then in place. The crucialvotes in Furman were those of JusticesStewart and White, who, as Justice Scaliaobserved in Walton v. Arizona, - U.S.-, 110 S.Ct. 3047, 3061, 111 L.Ed.2d 511(1990) (concurring opinion), "focused on theinfrequency and seeming randomness"with which the death sentence was imposedunder the then existing discretionary sys-

plained that "Article 37.071 leaves with both thejudge and the jury a vas(t] residue of discretionwhich is precisely what the Supreme Court inFurman (v. Georgia, 408 U.S. 238. 92 S.Ct. 2726,33 LEd.2d 346 (1972) ] condemned" and arguedthat "Ic]onsequently, the inquiry [of the article37.071 issues] is fraught with standardless dis-cretion in the hands of the jury."

There was no suggestion in the motion ormemorandum that defendant complained of in-sufficient discretion (or an insufficient vehicleto give effect to it) to determine that the defen-dant would not receive the death penalty, orthat the jury was not given an adequate basis toconsider or give effect to its conclusions con-cerning defendant's age or background. Thecomplaint was indeed the reverse.

1018 950 FEDERAL REP

tem.'2 Following Furman some thirty-fivestates adopted new capital sentencing stat-utes that reduced or narrowed the sentenc-er's discretion in determining whether ornot to impose the death penalty. The Su-preme Court ruled on five of these statuteson July 2, 1976. Gregg v. Georgia, 428U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859(1976); Jurek; Proffitt v. Florida, 428 U.S.242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976);Woodson v. North Carolina, 428 U.S. 280,96 S.Ct. 2978, 49 L.Ed.2d 944 (1976); Rob-erts v. Louisiana, 428 U.S. 325, 96 S.Ct.3001, 49 L.Ed.2d 974 (1976). Gregg sus-tained the Georgia statute, which directedthe sentencer to consider listed and unlist-ed aggravating and mitigating circum-stances, but allowed a death sentence onlyif at least one listed aggravating circum-stance were found. The Court observedthat "Furman mandates" that the capitalsentencer's "discretion must be suitably di-rected and limited so as to minimize therisk of wholly arbitrary and capricious ac-tion," id. 96 S.Ct. at 2932, and warnedagainst sentencing standards "so vaguethat they would fail adequately to channelthe sentencing decision patterns of jurieswith the result that a pattern of arbitraryand capricious sentencing like that foundunconstitutional in Furman could occur."Id at 2935 n. 46. Gregg goes on to note,however, that "the isolated decision of ajury to afford mercy does not render un-constitutional death sentences imposed ondefendants who were sentenced under a

12. Justice Stewart, for example, observed that ofthose convicted of capital crimes "many just asreprehensible as these, the petitioners areamong a capriciously selected random handfulupon whom the sentence of death has in factbeen imposed" and that the Constitution couldnot tolerate systems that 'permit this uniquepenalty to be so wantonly and so freakishlyimposed." Furman, 92 S.CL at 2762-63. JusticeWhite observed that under the statutes at issue"there is no meaningful basis for distinguishingthe few cases in which it [the death penalty] isimposed from the many cases in which it isnot." Id. at 2764.

13. Justice White. in an opinion in which thenChief Justice Burger and then Justice Rehnquistjoined, likewise found the Texas statute consti-tutional. Id, 96 S.Ct. at 2959-60. JusticeWhite's opinion quotes the statutory special is-sues in full and observes that "[tlhe statute does

ORTER, Zd SERIES

system that does not create a substantarisk of arbitrariness or caprice." I. It2939. Proffitt applied the Gregg rationaeto uphold the somewhat similar Floridscheme. Woodson, however, struck downthe North Carolina statute under which thedeath penalty was made mandatory forfirst degree murder, in that case murderduring the course of robbery. The Courtnoted that among the "constitutional short.coming[s]" of this statute was "its failureto allow the particularized consideration ofrelevant aspects of the character andrecord of each convicted defendant," andthat in capital cases the Eighth Amendment "requires consideration of the character and record of the individual offenderand the circumstances of the particular of-fense." Id., 96 S.Ct. at 2991. Roberapplied the same rationale to invalidate theLouisiana statute under which the deathpenalty was likewise mandatory for firstdegree murder.

We turn now to Jurek, decided the sameday. There seven justices voted to upholdthe Texas scheme as embodied in art. 37.-071, but no opinion attracted more thanthree votes. The judgment of the Courtwas announced in Justice Stewart's opin'ion, which Justices Powell and Stevensjoined, and this opinion has generally beenunderstood as expressing the rationale of

the Court's action.'3 Justice Stewasopinion summarizes the facts adduced at

trial, including evidence that Jurek "22

not extend to juries discretionary power to &pense mercy, and it should not be assumed tjuries will disobey or nullify their instrucuol

Id., at 2959.Justice White, joined by then Chief Ju4c

Burger, Justice Blackmun, and then Justic

Rehnquist, dissented in Roberts, id, 96 S.CL I

3008-3020. and also in Woodson. Justice Blck'mun wrote a separate dissent in Woodson rs

did not join Justice White's dissent there.96 S.CL at 2992-93. In Jurak Justice Blackodnseparately concurred in the judgment, with 00a brief reference to his Furman dissent.M J3016

96 S.Ct. at 2960. Justices Brennan and Maflw

dissented in Jurek, as well as in Gre M

Proffitt, on the grounds that the death PK"_was unconstitutional per se. 96 S.Ct.2977. They concurred in the result in Woodid., 96 S.CL at 2992, and Roberts, i, 96 Si.C3007, on the same basis.

GRAHAM vCitea 950 F2d 1

old at the time, had been drinkingin the afternoon" of the offense, and

tbt he "had always been steadily em-*yed since he had left school and that hestrbuted to his family's support." Id.,s S.Ct. at 2954. In describing the Texas

gtencing procedure, the opinion statesAg at the punishment phase the jury is

.,presented with two (sometimes three)questions, the answers to which determine

iwbether a death sentence will be imposed."

ix (footnote omitted). It observes thatonly the first two issues specified in art.h1.071 were submitted, that both were an-swered yes, "and the judge, therefore, inaccordance with the statute, sentenced the-petoner to death." Id. The opinion then-quotes verbatim the full text of the threeissues specified in art. 37.071, and contin-ua by stating "[ilf the jury finds that theState has proved beyond a reasonabledoubt that the answer to each of the threequestions is yes, then the death sentence isimposed." Id. at 2955.

In evaluating the constitutionality of theTexas scheme, Justice Stewart notes thatunder Woodson and Roberts "[al jury mustbe allowed to consider on the basis of allrelevant evidence not only why a deathsentence should be imposed, but also why itshould not be imposed." Id. at 2956. The

-opinion then observes that "[t]he Texasstatute does not explicitly speak of mitigat-mg circumstances; it directs only that thejury answer three questions," and "[tihus,the constitutionality of the Texas proce-dures turns on whether the enumeratedquestions allow consideration of particular-ized mitigating factors." rd The CourtProceeds to answer this inquiry in the af-firmative, but only with regard to the see-Od-the future dangerousness--special is-sue, because "(tihe Texas Court of Crimi-nal Appeals has not yet construed the firstand third questions ... thus it is as yetUndetermined whether or not the jury'sconsideration of those questions wouldProperly include consideration of mitigat-mg circumstances. In at least some situa-

'~ The case considered was Smith v. State 540S.W.2d 693. 696-97 (Tex.Crim.App.1976), cerr.dere4 430 U.S. 922. 97 S.C. 1341, 51 LEd.2d601 (1977), where the Texas court examined the

. COLLINS 101909 (5th Clr. 2992)

tions the questions could, however, compre-hend such an inquiry." Id at 2956 n. 7.In turning to the second special issue, theopinion notes that "[t]he Texas Court ofCriminal Appeals has yet to define precise-ly the meaning of such terms as 'criminalacts of violence' or 'continuing threat tosociety.'" Id. at 2956. It goes on to state(96 S.Ct. at 2956-57):

"In the present case, however, it [theTexas Court of Criminal Appeals] indi-cated that it will interpret this secondquestion so as to allow a defendant tobring to the jury's attention whatevermitigating circumstances he may be ableto show-

"'In determining the likelihood thatthe defendant would be a continuingthreat to society, the jury could consid-er whether the defendant had a signifi-cant criminal record. It could considerthe range and severity of his prior crimi-nal conduct. It could further look to theage of the defendant and whether or notat the time of the commission of theoffense he was acting under duress orunder the domination of another. Itcould also consider whether the defen-dant was under an extreme form ofmental or emotional pressure, some-thing less, perhaps, than insanity, butmore than the emotions of the averageman, however inflamed, could withstand.'[Jurek v. State ] 522 S.W.2d [934], at939-940 [Tex.Crim.App.1975]." (empha-sis added).After briefly considering one other Texas

Court of Criminal Appeals decision," Jus-tice Stewart's opinion states "the Texascapital-sentencing procedure guides and fo-cuses the jury's objective consideration ofthe particularized circumstances of the indi-vidual offense and the individual offenderbefore it can impose a sentence of death."Id at 2957. The opinion concludes by ob-serving-

"By authorzing the defense to bringbefore the jury at the separate sentenc-

sufficiency of the evidence to support the jury'saffirmative answer to the second special issue.Jurek, 96 S.Ct. at 2957.

1020 950 FEDERAL RE

ing hearing whatever mitigating circum-stances relating to the individual defen-dant can be adduced, Texas has ensuredthat the sentencing jury will have ade-quate guidance to enable it to perform itssentencing function.... Because thissystem serves to assure that sentencesof death will not be 'wantonly' or 'freak-ishly' imposed, it does not violate theConstitution. Id. at 2958 (emphasis add-ed).

Two years later, in Lockett v. Ohio, 438U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973(1978), the Court considered an Ohio deathsentence imposed for the murder of apawnshop operator in the course of an arm-ed robbery of his shop while the defendant,an accomplice, waited outside in the geta-way vehicle. Under Ohio law, as the Courtconstrued it, the sentencing judge was re-quired to impose the death sentence for theoffense unless he found, by a preponder-ance of the evidence, one of the three statu-tory mitigating factors, namely (1) that thevictim induced or facilitated the offense, or(2) that the defendant committed the of-fense under "duress, coercion, or strongprovocation," or (3) that it was "primarilythe product of" the defendant's "psychosisor mental deficiency." Id. 98 S.CL at 2959,2966. "No one planned to kill the pawn-shop operator in the course of the rob-bery." Id at 2957. The presentence re-port reflected that the defendant, a twenty-one-year-old female, had committed "nomajor offenses" and that in the opinion of apsychologist her "prognosis for rehabilita-tion ... was favorable." Id. at 2959. Thesentencing judge found that the offensewas not the product of psychosis or mentaldeficiency, did not address the other twostatutory mitigating factors, and sentencedthe defendant to death, stating "that hehad 'no alternative, whether [he] like(d] thelaw or not' but to impose the death penal-ty." Id The plurality opinion by ChiefJustice Burger, joined by Justices Stewart,Powell and Stevens, held that "[t]he limitedrange of mitigating circumstances whichmay be considered by the sentencer underthe Ohio statute is inconsistent with theEighth and Fourteenth Amendments. ...a death penalty statute must not preclude

PORTER, 2d SERIES

consideration of relevant mitigingfactors." Id. at 2967. The scope of thplurality opinion is unclear. It focuses othe fact that under the Ohio statute thedefendant's lack of specific intent to kill -Srelevant for mitigating purposes only if itis determined that it sheds some light aone of the three statutory mitigangfactors" and that "consideration of a defgdant's comparatively minor role in the of.fense, or age, would generally not be pe.mitted, as such, to affect the sentencingdecision." I. at 2966-67. Similarly, theplurality notes that the Ohio statute's "cowstitutional infirmities can best be undwrstood by comparing it with the statuteupheld in Gregg, Proffitt and Jurek" iS at2965, and "the statute now before as bsignificantly different" than those statutes.Id. at 2966. More broadly, however, theopinion states that:

"... a statute that prevents the senteaeer in all capital cases from giving indpendent mitigating weight to aspects ofthe defendant's character and record andto circumstances of the offense profferedin mitigation creates the risk that thedeath penalty will be imposed in spite offactors which may call for a less severepenalty. ... that risk is unacceptableand incompatible with the command ofthe Eighth and Fourteenth Amend-ments." Id.

If the quoted language concerning "indOpendent" mitigating weight is understoodin its most apparent literal sense, the Lock*

ett plurality would seem to be wholly incoowsistent with Jurek for in Jurek it is clear

that the Supreme Court understood whatthe Texas statute so obviously facially pro'vides, namely that although a wide rang*

of evidence concerning the defendtfscharacter and record and the circumstancesof the offense is to be considered in detet

mining whether or not to impose the deathpenalty, the consideration of that evidene

is not "independent" of such relevance athe jury may find it has to the special

issues. But such a construction of Lock

is not only much broader than the factthere, but is also at war with the pluralistatement that the Ohio statute was "sit

GRAHAMCits As9SO F.d

aiicantly different" than the Texas enact-ment and that the former's deficiencies"can best be understood by comparing itwith" the valid Texas statute.

Justice Blackmun concurred specially inLockett, "for a reason more limited thanthat which the plurality espouses," namelythat the Constitution forbids imposition of"the death sentence for a defendant whoonly aided and abetted a murder, without

permitting any consideration by the sen-tencing authority of the extent of her in-volvement, or the degree of her mens rea,in the commission of the homicide." Id. at2969 (initial emphasis added). Justice Mar-shall likewise concurred specially, adheringto his view that the death penalty wasalways unconstitutional, but also observingthat the defendant "was sentenced to deathfor a killing that she did not actually com-mit or intend to commit" pursuant to "astatutory scheme that precluded any effec-tive consideration of her degree of involve-ment in the crime, her age, or her pros-pects for rehabilitation." Id. at 2972 (em-phasis added). Justice White concurredspecially, expressly disagreeing with theplurality opinion, but concluding that "itviolates the Eighth Amendment to imposethe penalty of death without a finding thatthe defendant possessed a purpose to causethe death of the victim." Id. at 2983.1sThen Justice Rehnquist dissented, and Jus-tice Brennan did not participate.

The next significant decision in this con-text is Eddings v. Oklahoma, 455 U.S. 104,102 S.CL 869, 71 LEd.2d 1 (1982), wherethe Court struck down a death sentenceimposed on a sixteen year old, whom thesentencing judge found posed a continuingthreat of violence to society. There, Jus-tice Powell's plurality opinion focused onthe fact that the sentencing judge appearedto have determined that "in following thelaw" he was not permitted to "consider"the defendant's troubled background, theevidence showing the defendant's neglect-ful and turbulent family environment, ex-cessive physical punishment by his father,that the defendant was emotionally dis-

IS. A modified version of this view subsequentlygained majority support. See Enmund v. Flor-ida. 458 U.S. 782, 102 S.CL 3368, 73 LEd.2d

v. COLLINS 10211009 (5thCir. 1992)

turbed and his mental and emotional devel-opment were at a level several years belowhis chronological age, and that the offensewas a product of these circumstances. Id.102 S.CL at 873 & nn. 1 & 2, 877. Theopinion also observed that the OklahomaCourt of Criminal Appeals, in reviewing thesentence, had noted that defendant's con-tention " 'that the killing was in actualityan inevitable product of the way he wasraised,'" but held that "'the petitioner'sfamily history is useful in explaining whyhe behaved the way he did, but it does notexcuse his behavior.'" Id. at 874. Theplurality opinion states that under Lockett"the sentencer in capital cases must bepermitted to consider any relevant mitigat-ing factor," id. at 875, and that "the evi-dence Eddings offered was relevant miti-gating evidence." Id. at 877. The rule ofLockett was violated because the trialjudge "found that as a matter of law hewas unable even to consider the evidence"and the state appellate court "took thesame approach," id at 876, so that "it wasas if the trial judge had instructed a jury todisregard the mitigating evidence Eddingsproffered on his behalf." Id. at 877.

Justice O'Connor did not join JusticePowell's opinion, but specially concurred,stating that "the reasoning of the pluralityopinion in Lockett compels a remand sothat we do not 'risk that the death penaltywill be imposed in spite of factors whichmay call for a less severe penalty.'" Ed-dings, at 879 (quoting Lockett). A remandwas necessary for this reason because "itappears that the trial judge believed thathe could not consider some of the mitigat-ing evidence in imposing sentence." Id.Then Chief Justice Burger, joined by Jus-tices White, Blackmun and then JusticeRehnquist, dissented.

In the case sub judice, not only was noevidence tendered by the defense excluded,but the trial court's instructions expresslyauthorized consideration of all evidence ad-mitted in answering the special issues, and,unlike Eddings, there is nothing to affirm-

1140 (1982): Tison v. Arizona, 481 U.S. 137, 107S.Ct. 1676, 95 LEd.2d 127 (1987).

950 FEDERAL REPORTER, 2d SERIES

atively indicate that the jury believed theycould not consider any of the evidence forthat purpose.

The Court applied Eddings in Skipper v.South Caroiina, 476 U.S. 1, 106 S.CL 1669,90 L.Ed.2d 1 (1986), to reverse a deathsentence because at the sentencing hearingthe trial judge had excluded as irrelevantthe defense's proffered "testimony of twojailers and one 'regular visitor' to the jail tothe effect that petitioner had 'made a goodadjustment' during his time spent in jail,"and the prosecutor had nevertheless ar-gued to the jury "that petitioner wouldpose disciplinary problems if sentenced toprison and would likely rape other prison-ers." Id 106 S.Ct. at 1670. JusticeWhite's opinion for the Court states thatunder Eddings the capital "sentencer maynot refuse to consider or be precluded fromconsidering 'any relevant mitigating evi-dence."' Skipper at 1671 (quoting Ed-ding$). Justice White went on to hold:

"Consideration of a defendant's past con-duct as indicative of his probable futurebehavior is an inevitable and not undesir-able element of criminal sentencing: 'anysentencing authority must predict a con-victed person's probable future conductwhen it engages in the process of deter-mining what punishment to impose.' Ju-rek v. Texas, 428 U.S. 262, 275, 96 S.Ct.2950, 2958, 49 LEd.2d 929 (1976)....[E]vidence that the defendant would notpose a danger if spared (but incareerat-ed) must be considered potentially miti-gating. Under Eddings, such evidencemay not be excluded from the sentenc-er's consideration." Id (footnote omit-ted).t

16. The opinion concludes that because the ex-cluded evidence was the only evidence fromdisinterested witnesses tending to contradict theprosecutor's argument, it appears reasonablylikely that the exclusion of evidence bearingupon petitioner's behavior in jail (and hence,upon his likely future behavior in prison) mayhave affected the jury's decision to impose thedeath sentence." 14 at 1673.

17. Indeed, Justice White's opinion indicates evi-dence such as that of good personal hygienepractices while in prison might properly betreated as irrelevant. Id at 1672 n. 2.

Justice Powell, with then Chief JusfBurger and then Justice Rehnquist join.concurred in the result, conceding that ,versal was required on due pmgrounds because the death sentence hadbeen sought on a factual basis the deodant had not been allowed to rebut, but'rejecting the notion that Eddings sanLockett applied. Id. at 1673-1675. JustiPowell-author of the Eddings plurality,concluded that the States retained authorsty "to determine what particular evidencwithin the broad categories described laLockett and Eddings is relevant in the firinstance," that these determinations shouldbe respected provided "they do not fomclose consideration of factors that maytend to reduce the defendants culpability.for his crime," id. at 1674, and that "Statesare only bound to consider those factorsthat are central to the fundamental justiceof execution." Id at 1675. Nothing inJustice White's opinion appears inconsist.ent with these general premises. 7

In Hitchcock v. Dugger 481 U.S. 393,107 S.Ct. 1821, 95 LEd.2d 347 (1987), Jus-tice Scalia, for a unanimous Court, meversed a Florida death sentence where therecord "could not be clearer that the adva-ory jury was instructed not to consider, andthe sentencing judge refused to consider,evidence of nonstatutory mitigating cr-cumstances." Id. 107 S.Ct. at 1824. Thedefendant had requested that there be tak-en into account "the testimony concernistpetitioner's family background and his a'pacity for rehabilitation," matters whichwere not included in the statutory mitigat"ing circumstances. Id. at 1824.18 Tb

8. The Florida statutory mitigating circ*stances as set out in the opinion. id at 1823 1.did not include potential for rehabiUation orlack of future dangerousness or any anaconsideration (nor any general or residual tuiLgation category). Nor did they include userssuch as troubled family history or urbtupbringing (here, evidence that as a child tbotwenty-year-old defendant had the habit of ivhaling gasoline fumes, as an apparent result ofwhich his mind tended to wander, and th" bwas one of seven children of a poorwhose father died of cancer). although theyinclude whether the crime was committed w.under the influence of extreme mental or

1022

Qrt held that "the exclusion of mitigat-j evidence of the sort at issue here ren-

d" the death sentence invalid," citing?Abl~r and Eddings. Id."

7he next year the Court revisited the

fa statute in Franklin, where it foundiconstitutional error in the refusal of a

Auested jury instruction that any of theissues could be answered negatively

V you find any aspect of the Defendant'sbacter or record or any of the circum-

aes of the offense as factors whichitigate against the imposition of the death

plity." Id 108 S.Ct. at 2325 & n. 4.He only mitigating evidence was that de-fmdant's prison service for several yearsboth before and after the offense was with-eat any disciplinary incident. Id at 2324.utice White's plurality opinion, joined by

the Chief Justice and Justices Scalia andKennedy, observed that "the Texas courtshave expressed resolute adherence to Lock-st" in the decade since it was decided, idat 2326, and rejected the contention, basedon the "'independent' mitigating weight"laguage of Lockett, that defendant's"prison disciplinary record reflected so pos-iively on his 'character' that the instruo-ions ... should have provided the jurywith a 'mechanism through which to im-pose a life sentence' even if the jury other-wise believed that both Special Issuesabould have been answered 'yes.'" Id. at2329. Justice White also expressly reject-ed the claim that the Constitution requiredthat the jury, even if it answered the spe-eal issues affirmatively, be "still entitledto cast an 'independent' vote against thedeath penalty," stating that "this submis-sion is foreclosed by Jurek, which held thatTexas could constitutionally impose thedeath penalty if a jury returned 'yes' an-swers to the two Special Issues" and that"Jurek has not been overruled; and we arenot inclined to take any such action now."Id at 2330. The plurality opinion assertsthat "Lockett does not hold that the statehas no role in structuring or giving shape

tional disturbance" and whether defendant's ca.pacity to appreciate the criminality of his con-duct or to conform it to the requirements of lawwas "substantially impaired." The opinion con-tains no discussion whatever of the possible

1023to the jury's consideration of ... mitigat-ing factors," id., and that "we have neversuggested that jury consideration of miti-gating evidence must be undirected or un-focused." Id at 2331. Recognizing that"two lines of cases"-Eddings and Locketton the one hand and Gregg and Proffitt onthe other-"are somewhat in 'tension' witheach other," Justice White notes thatnevertheless "the Texas capital sentencingsystem has been upheld by this Court ...precisely because of the way in which theTexas scheme accommodates both of theseconcerns." Id. He continues by stating:

"Doubtlessly this is why this Court origi-nally approved Texas' use of Special Is-sues to guide jury discretion in the sen-tencing phase, notwithstanding thefact-expressly averted to in the plurali-ty opinion for the Court-that mitigatingevidence is employed in the Texasscheme only to inform the jury's consid-eration of the answers to the SpecialIssue questions." Id. (emphasis added).

Justice Stevens, joined by Justices Bren-nan and Marshall, dissented, concluding thedefendant's evidence of freedom from disci-plinary violations during several years ofimprisonment was relevant as mitigation inrespects other than simply as it bore on hisfuture dangerousness. Such evidence indi-cated "that petitioner's character was notwithout some redeeming features" andthat he "may have virtues that can fairlybe balanced against society's interest inkilling him in retribution for his violentcrimes," id. at 2335, and, by suggestingthat his commission of the offense was"not in keeping with his ... usual qualitiesor fruits," bore on his "culpability" for theoffense as well as on his future dangerous-ness. Id. at 2336. Justice Stevens con-cluded that absent some special instructionsuch as the defendant had requested "it is.probable that the jury misapprehended thesignificance it could attach to mitigatingevidence that was descriptive of petition-

relevance of these latter factors to the "familybackground" claims of petitioner.

19. The opinion observes that no harmless errorargument was made.

GRAHAM v. COLLINSCli " 950 F.2d 1009 (5th Cir. 1992)

950 FEDERAL REPORTER, 2d SERIES

er's character rather than predictive of hisfuture behavior." Id. at 2337. This inJustice Stevens' view rendered the sen-tence invalid under Lockett and Eddingsand related cases.

Justice O'Connor, with whom JusticeBlackmun joined, specially concurred. Id.at 2332-2335. She considered Lockett, Ed-dings and Hitchcock as standing for theproposition that "punishment should be di-rectly related to the personal culpabilityof" the defendant, and she concluded that"a state may not constitutionally preventthe sentencing body from giving effect toevidence relevant to the defendant's back-ground or character or the circumstancesof the offense that mitigates against thedeath penalty." Id. at 2333. In JusticeO'Connor's view, the evidence of defen-dant's good conduct in prison "had no rele-vance to any other aspect of petitioner'scharacter" than his future dangerousness.Id. Hence, no special instruction was re-quired. Justice O'Connor contrasted "[t]helimited probative value" of that particularmitigating evidence to "[e]vidence of volun-tary service, kindness to others, or of reli-gious devotion [which] might demonstratepositive character traits that might miti-gate against the death penalty." Id. Heropinion also states:

"If, however, petitioner had introducedmitigating evidence about his back-ground or character or the circumstancesof the crime that was not relevant to thespecial verdict questions, or that hadrelevance to the defendant's moral cul-pability beyond the scope of the specialverdict questions, the jury instructionswould have provided the jury with novehicle for expressing its 'reasoned mor-al response' to that evidence. If thiswere such a case, then we would have todecide whether the jury's inability togive effect to that evidence amounted toan Eighth Amendment violation." Id.(emphasis added).

However, Justice O'Connor did not express-ly proffer an answer to that question.

Penry

At long last, we turn to the crucial deci-sion in Penry. There the evidence showed

that the defendant, 22 years old and 0parole from a prior rape conviction at tastime of the charged offense, "sufferedfrom organic brain damage and moderatretardation, which resulted in poor impucontrol and in inability to learn from exp.,rience." Id. 109 S.Ct. at 2941. The braadamage was likely present from birth, "butmay have been caused by beatings andmultiple injuries to the brain at an eage." Id. Penry's mother had "frequentlybeaten him over the head with a belt whehe was a child," and he was "routinelylocked in his room without access to a toilgtfor long periods of time." He "was unableto learn in school and never finished thefirst grade." Until age twelve, Penry "wain and out of a number of state schools ahospitals." Id. Thereafter, it took himover a year to learn to print his name. I&at 2942. The two psychiatrists testifyingfor the State both opined that Penry wassane, but they also acknowledged his "ex-tremely limited mental ability, and that beseemed unable to learn from his mistakes,"one indicating that Penry had "an inabilityto learn from experience and a tendency tobe impulsive and to violate society'snorms." Id Defense counsel unsuccess-fully objected to the sentencing charge onseveral grounds, including its failure todefine "deliberately" as used in the firstspecial issue, its failure to "authorize adiscretionary grant of mercy based uponthe existence of mitigating circumstances,and its failure to condition a death sentence

on a determination "that any aggravatgcircumstances ... outweigh any mitigsting

circumstances." Id At sentencing, defense counsel argued, among other things,

"that if a juror believed that Penry, be-cause of the mitigating evidence of his

mental retardation and abused bsek-ground, did not deserve to be put todeath, the juror should vote 'no' on 0*

of the special issues even if it believedthe State had proved that the ansWe

should be 'yes.'" Id. at 2950.

In response, the prosecutor noted that tbe

defense counsel had not argued the specl

issues or shown how the state had failed Wmeet its burden of proof on them.

1024

GRAHAM v. COLLINSCIte as 950 F.2d 1009 (5th CIr. 1992)

The Cour in an opinion by Justice

(yConnor, joined in this respect by Justices

grnnnan, Marshall, Blackmun and Stevens,Sg aside the death sentence, concluding:

"In light of the prosecutor's argument,and in the absence of appropriate juryistructions, a reasonable juror couldwell have believed that there was novehicle for expressing the view that Pen-ry did not deserve to be sentenced todeath based upon his mitigating evi-dence." Id"Justice O'Connor first determined that

the rule Penry sought to establish-thatwhere evidence of the defendant's "mentalretardation and abused childhood ... ispresented, Texas juries must, upon re-quest, be given jury instructions that makeit possible for them to give effect to thatmitigating evidence"-was not a "'newrule"' for purposes of Teague v. Lane, 489US. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334(1989), "because it is dictated by Eddingsand Lockett" Penry at 2947. The opiniongoes on to explain that "Eddings makesdear that it is not enough simply to allowthe defendant to present mitigating evi-dence to the sentencer. The sentencermust also be able to consider and giveeffect to that evidence in imposing sen-tence." Id. at 2947. Quoting her concur-ring opinion in California v. Brown, 479U.s. 538, 107 S.Ct. 837, 841, 93 L.Ed.2d 934(1987), Justice O'Connor states that "defen-dants who commit criminal acts that areattributable to a disadvantaged back-ground, or to emotional and mental prob-lems, may be less culpable than defendantswho have no such excuse" and that a capi-tal sentence "'should reflect a reasoned

a Justice Scalia, joined by the Chief Justice andJustices White and Kennedy, dissented fromthis holding. Id. at 2963-68.

Justice O'Connor's opinion also held that theConstitution did not prohibit execution of thementally retarded, although recognizing thatthat issue was within the first exception to thedoctrine of Teague v. Lan, 489 US. 288, 109S.Ct 1060, 103 LEd.2d 334 (1989), barring ret-roctive habeas application of new rules. Id. at2952-2958. All Justices concurred in the Teag-

aspect of this holding; but Justices Brennan,= 11. Blackmun and Stevens dissented from

the substantive holding, id at 2958-2963, whilethe Chief Justice and Justices White, Scalia and

moral response to the defendant's back-ground, character, and crime.' " Penry at2947. Penry's contention is again de-scribed as being that the Texas statute wasapplied in a manner "precluding the juryfrom acting upon the particular mitigatingevidence he introduced." Id. Yet again,his claim is characterized as follows:

"Penry argues that his mitigating evi-dence of mental retardation and child-hood abuse has relevance to his moralculpability beyond the scope of the spe-cial issues, and that the jury was unableto express its "reasoned moral response"to that evidence in determining whetherdeath was the appropriate punishmentWe agree. Thus, we reject the State'scontrary argument that the jury wasable to consider and give effect to all ofPenry's mitigating evidence in answeringthe special issues without any jury in-structions on mitigating evidence." Id.

The opinion goes on to explain this con-clusion. Respecting the first special issue,the opinion, though suggesting some doubtabout the matter, assumes, arguendo, that"'deliberately"' was understood by thejury in this connection to mean "somethingmore than" simply " 'intentionally'" (whichhad already been established by the guiltyverdict). Id. at 2948. It concedes that"Penry's mental retardation was relevant... to whether he was capable of acting'deliberately.' " Id at 2949. Nevertheless,"[plersonal culpability is not solely a func-tion of a defendant's capacity to act 'delib-erately.'" A "rational juror" could haveconcluded "in light of Penry's confession"that he "deliberately killed ... to escapedetection." 21 However, "that same juror

Kennedy agreed with it (although disagreeingwith a portion of Justice O'Connor's reasoningin this respect). 1a at 2963-64. This aspect ofPenry is not implicated in our present consider-ation of the case sub judice.

21. The opinion does not detail the content of theconfession. However, it is described in theopinion of the Court of Criminal Appeals ondirect appeal. Penry v. Stat, 691 S.W.2d 636(Tex.Crim.App.1985), cert. denied. 474 U.S. 1073,106 S.Ct. 834, 88 LEd.2d 805 (1986). as reflect-ing that Penry "had been planning for monthsto rape somebody and that in the three weeksprior to the instant offense appellant had fo-

1025

950 FEDERAL REPORTER, 2d SERIES

could also have concluded that Penry"-because his "mental retardation" made him"less able than a normal adult to controlhis impulses or to evaluate the conse-quences of his conduct," and "because ofhis history of childhood abuse"-"was lessmorally 'culpable than defendants whohave no such excuse,' but who acted 'delib-erately' as that term is commonly under-stood." Id Thus, in the absence of asufficiently broad definition of deliberately"we cannot be sure that the jury was ableto give effect to the mitigating evidence ofPenry's mental retardation and history ofabuse in answering the first special issue."

As to the second special issue dealingwith future dangerousness, Justice O'Con-nor observes that Penry's mitigation evi-dence "is relevant only as an aggravatingfactor because it suggests a 'yes' answerto the question of future dangerousness."Id at 2949 (initial emphasis added). Shecontinues by stating that the evidence ofPenry's "mental retardation and history ofabuse," though diminishing his blamewor-thiness, "indicates that there is a probabili-ty that he will be dangerous in the future,"and then quotes with approval from JudgeReavley's opinion for this court in thatcase, including the following:

"'If anything, the evidence made it morelikely, not less likely, that the jury wouldanswer the second question yes. It did

cused on the deceased and [another] as possiblevictims." id at 653. that on the morning of theoffense when he decided to go to the victim'shouse (where he forced his way in) and rapeher "I knew that if I went over to the chick'shouse and raped her that I would have to killher because she would tell who I was to thepolice and I didn't want to go back to the pen."id at 641. 652-53, and that while the victim waslying helpless on the.floor following the rape "Icame back and sat on her stomach. I told herthat I was going to kill her and that I hated tobut I thought she would squeal on me." Id at641.

The opinion of Justice Clinton. concurring inthe result on the direct appeal, espouses theview that the failure to define "deliberately" waserror (the majority held it was not error), butthat the error was harmless "due to the fact thatthe evidence of 'deliberateness' was uncontested.overwhelming and in large part gleaned fromappellant's written admissions." Id. at 657.

not allow the jury to consider a nthrust of Penry's evidence as mitga,evidence.' 832 F.2d at 925 (fooomitted) (emphasis in original)." Id. t2950 (initial emphasis added).Justice O'Connor then turns briefly to

the third special issue, concerning whetbgethe killing "was unreasonable in responsto the provocation, if any, by the &.ceased." Although the opinion recites thoevidence supporting the affirmative answwto this issue," it does not expressly say oreven suggest that the mitigating evidenehad any relevance to the question (nor doe.it recite that the State asserted any see&relevance). Zd at 2950.

Justice O'Connor concludes that rese.tencing is required because "the jury wasnot provided with a vehicle for expressingits 'reasoned moral response' to" the evdence of Penry's "mental retardation andabused background" in "rendering its see-tencing decision." Id. at 2952.

[8] Penry clearly stands for the prop.sition that merely because the mitigatingevidence has any relevance to a negativeanswer to one of the special issues does notnecessarily suffice in all cases to sustainapplication of the Texas statute. Penry'sevidence had some such relevance to thefirst issue. The more difficult question iswhether the Texas statute can operate aswritten in any case where the mitigatin

22. Judge Reavley, writing for the court in ourconsideration of Pemy, observed concerning thedeliberateness issue.

"Having just found Pery guilty of an inttional killing, and rejecting his insanly d6'fense, the answer to that (the first] isse walikely to be yes. Although some of Peaysmitigating evidence of mental ret damight come into play in considering delibrateness, a major thrust of the evidence of hiabackground and child abuse. logically, dnot.' Penry v. Lynaugh, 832 F.2d 915. 9(5th Cir.1987) (emphasis added). r-vd Po"v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934.LEd.2d 256 (1989).

23. "Penry's own confession indicated that bkilled her after her struggle had ended and 21was lying helpless." Id. at 2950. S -bo - 1supra (indicating that killing was to avoid dtlg*tion and was contemplated for thiS p"hX"from the beginning).

1026

GRAHAM iCite as 950 F2dI 1

.ridence, though all clearly relevant to sup-

port a negative answer to one or more of

the issues, nevertheless also has any miti-

pting relevance whatever beyond the

scope of the special issues. Penry canfairly be read as precluding use of theTexas statutory scheme in any such situa-tion. But, Penry can also fairly be read asaddressing only a situation where somemajor mitigating thrust of the evidence issubstantially beyond the scope of any ofthe issues. That, indeed, was the case inPenry, where as to the third issue themitigating evidence was all essentially ir-relevant, as to the second issue it was onlyaffirmatively harmful to the defense, andas to the first issue its favorable relevancewas essentially minor but its "majorthrust" was beyond the scope of the issue(see notes 21 and 22 supra).

[91 We conclude that Penry does notinvalidate the Texas statutory scheme, andthat Jurek continues to apply, in instanceswhere no major mitigating thrust of theevidence is substantially beyond the scopeof all the special issues. That is particular-ly appropriate in a case such as this, wherethere is no "major thrust" of any of themitigating evidence which is not relevant tosupport a negative answer to the secondspecial issue, the only special issue whichJurek addressed. Any other holding, itseems to us, would effectively render Ju-re) and the Texas statutory scheme whichit sustained, dead letters.

It is a commonly accepted truism that,Just as none of us is all good, so also noneof us-not even those who will probablycommit criminal acts of violence constitut-ing a continuing threat to society-is allbad. The number of capital crime defen-dants who have nothing in their back-ground which might tend to reflect a posi-tive character trait-who have never per-formed any voluntary service or exhibitedany kindness to others or supported theirfamily, to mention but three possible exam-Ples-must be miniscule at most. And this,of course, has been obvious all along. Sotoo has it always been obvious that manydefendants-because of some transitorycondition such as relative youth or emotion-

. COLLINS 1027009 (5th Cr. 1992)

al distress incident to one of life's manycrises to which all are subject such asdivorce or loss of a loved one or a job-may, when they committed an offense,have been less able than those not so af-flicted to control themselves and evaluatetheir conduct and its consequences. IfPenry is read broadly, then in none ofthese cases can the Texas statutory schemepass muster. Every one of these cases-the case where a month previously thedefendant broke up with his girl friend orlost his job, the case where as a youth thedefendant volunteered to mow a neighbor'syard or was in his early twenties when theoffense was committed, and all the oth-ers-would demand some other system ofsentencing trial. The Texas statutoryscheme would be essentially meaninglessand Jurek would have in substance beenoverruled.

We doubt that the Supreme Court intend-ed this. Not only has the Court not ex-pressly overruled Jurek, but to the con-trary it has cited Jurek with approval nu-merous times. As an early example, inAdams v. Teas, 448 U.S. 38,. 100 S.Ct.2521, 65 L.Ed.2d 581 (1980), the Court not-ed that Jurek upheld the Texas statutoryscheme which "mandates a sentence ofdeath" if the three "statutory penalty ques-tions" are answered affirmatively, id. 100S.CL at 2524 n. 1, and observed that Texascould properly ensure that its capital casejurors "be willing not only to accept that incertain circumstances death is an accept-able penalty but also to answer the statu-tory questions without conscious distortionor bias," while nevertheless recognizingthat "jurors under the Texas ... procedureunavoidably exercise a range of judgmentand discretion while remaining true to theiroaths." Id. at 2527. See also Godfrey v.Georgia, 446 U.S. 420, 100 S.Ct. 1759, 1764,64 LEd.2d 398 (1980). As we have previ-ously noted, Lockett states that the defi-ciencies of the Ohio statute "can best beunderstood" by comparing it to, inter alia,the "significantly different" Texas statutewhich Jurek upheld. Lockett, 98 S.CL at2965, 2966. While the Eddings pluralitydoes not cite Jurek, many decisions of theCourt since then have. We have noted the

1028 950 FEDERAL RE

prominence gfven to Jurek in Skipper, 106S.Ct. at 1671. Other post-Eddings deci-sions citing Jurek with approval includeLowenfield v. Phelps, 484 U.S. 231, 108S.Ct. 546, 554-55, 98 L.Ed.2d 568 (1988);Sumner v. Shuman, 483 U.S. 66, 107 S.Ct.2716, 2721, 97 L.Ed.2d 56 (1987); Lockhartv. McCree, 476 U.S. 162, 106 S.Ct. 1758,1770, 90 L.Ed.2d 137 (1986); Pulley v. Har-ris, 465 U.S. 37, 104 S.Ct. 871, 876, 879, 79LEd.2d 29 (1984) (declining to "effectivelyoverrule Jurek "); California v. Ramos,463 U.S. 992, 103 S.CL 3446, 3453-54, 77L.Ed.2d 1171 (1983); Barefoot v. Estelle,463 U.S. 880, 103 S.Ct. 3383, 3396, 77L.Ed.2d 1090 (1983); and Zant v. Stephens,462 U.S. 862, 103 S.Ct. 2733, 2742 n. 13, 77LEd.2d 235 (1983). The Franklin plurali-ty relied principally on Jurek and observedthat the Texas "method for providing forthe consideration of mitigating evidencehas been cited repeatedly with favor." Id108 S.Ct at 2331 (footnote omitted). Nei-ther the Franklin concurrence nor Penrypurports to jettison Jurek. Although Pen-ry clearly makes an exception to Jurek, itgives no express indication that the excep-tion made is conceived of or recognized asbeing vastly broader than the rule itself, orthat Jurek and the Texas scheme willthereafter remain valid only in the veryrarest of cases.

Since Penry, the Court has continued tocite Jurek with approval. Thus, the ChiefJustice's opinion in Blystone v. Pennsylva.nia, 494 U.S. 299, 110 S.CL 1078, 1081-82,

24. Justice Kennedy's opinion states:'To the extent that Penry's claim was that theTexas system prevented the jury from givingany mitigating effect to the evidence of hismental retardation and abuse in childhood.the decision that the claim did not require thecreation of a new rule is not surprising.Locken and Eddingp cdmmand that the Statemust allow the jury to give effect to mitigatingevidence in making the sentencing decision;Penry's contention was that Texas barred thejury from so acting....?enry's claim, moreover, did not ask us toapply the reasoning of Locker and Eddings somuch as it required us to apply our decisionin Jurek v. Texas 428 U.S. 262. 96 S.CL 2950,49 LEd.2d 929 (1976). Pmr interpreted Ju-rek as holding that the Texas death penaltystatute is constitutional so long as it is inter-preted by the Texas courts to permit the jury

PORTER, 2d SERIES

108 LEd.2d 255 (1990), joined in by J.tices White, O'Connor, Scalia and Kennedydescribes Jurek and the Texas system in away which obviously would be wholly map.propriate if either were viewed as still vain no more than a small minority of cse.The same can be said for the opinion ofJustice Kennedy, joined in by the ChiefJustice and Justices White, O'Connor andScalia, in Saffle v. Parks, 494 U.S. 484, 110S.Ct. 1257, 1261-42, 108 LEd.2d 415 (1990)the here pertinent language of which bquoted in the marginA' Plainly, JusticeKennedy regards Penry as the exception toJurek, not Jurek the exception to Penry.

Moreover, as Justice Kennedy points outin Saffle (see note 24, supra), a broadreading of Penry is inconsistent with Pws.ry 's holding that its result was "dictatedby" Lockett and Eddings for purposes ofTeague.

Similar considerations require rejectionof any notion that a broad reading of Powry is consistent with stare decisis becausethe Texas courts have not kept the "asseance" of Jurek, or the Texas scheme isreally different than it appears on its faceor had been described by the Texas courtsprior to the Supreme Court's decision inJurek. The opinion in Jurek-renderedthe same day as Woodson required "partic-ularized consideration of relevant aspectsof the character and record of each convict-ed defendant"-explicitly recognizes thatthe Texas jury is only allowed to answer"yes" or "no" to three statutory questions

to consider mitigating circumstances Prof-fered by the defendant.... Having thus cOO.strued Jrek, we concluded that resolution ofPenrys claim that 'those assurances were nofulfilled in his particular case,' 492 U.S.. a[3181, 109 S.CL, at 2947 (emphasis in orifnal). did not involve the creation of a newrule.... Penry, ... must be understood interms of the Court's ruling in Ju1 ek and itsapplication in later cases. We did not viewLocken and Eddings as creating a rule different from that relied upon in Jurek; rather, weindicated that Locken and Eddings reaffirmedthe reasoning in Jurek . . .. Id- 110 S.CL a1261-62 (initial emphasis added).

Justice Kennedy goes on to cite Jurekexample of "our long-standing recognition th.above all, capital sentencing must be relisbkaccurate, and nonarbitrary." Id. 110 S.CL I1262.

GRAHAM v.Ct 95 FId I0

id that if these are answered "yes" thej penalty is automatic. The exactWoding of the questions is reflected in theCUrt's opinion. The Court holds that theise is whether these specific "enumerat--i questions allow consideration of particu-4rzed mitigating factors." Id. at 2956.

!o Court gives an affirmative answer not,* the basis of any assumed special in-stuctions or definitions being given to the

, but rather entirely on what evidenceth Texas courts have said may be broughtbefore and considered by the jury in an-sweing the second (future dangerousness)question. Thus, the Court relies on theTexas court opinion which it describes ashterpreting "the second question to allowg defendant to bring to the jury's atten-tn whatever mitigating circumstances hemay be able to show." Id. (emphasis add-ed). The Court next quotes the Texasenurt's language in which it says "the jurycould consider" various items of evidence-feluding matters such as presence or ab-ence of past criminal conduct, "age of the

defendant" and "mental or emotional pres-sure"-"[ijn determining the likelihoodthat the defendant would be a continuingthreat to society." Id (emphasis added).The Supreme Court then says "[b]y autho-rising the defense to bring before the jury

whatever mitigating circumstances re-lating to the individual defendant can beadduced, Texas has ensured that the sen-tencing jury will have adequate guidance toenable it to perform its sentencing fune-tion." Id. at 2958 (emphasis added). Thisassurance" has not been broken or even

slightly bent, but on the contrary has beenfully performed. Texas has continued tointerpret its sentencing statute just exactlys the Supreme Court in Jurek assumed it

would.

(101 The Supreme Court's opinion in Ju-rek reflects that the defendant there wastwenty-two years old, had been drinkingbeer earlier in the day of the offense, andhad been steadily employed and contribut-ed to his family's support. Id at 2954. Atthe very least, Jurek must stand for theProposition that these mitigating factors-relative youth and evidence reflecting goodcharacter traits such as steady employment

COLLINS 102909 (5th Cir. 1992)and helping others-are adequately cover-ed by the second special issue. Penry can-not hold otherwise and at the same timenot be a "new rule" for Teague purposes.The decisions in Eddings and Lockett donot justify a contrary conclusion, as Safflesays "[w]e did not view Lockett and Ed-dings as creating a rule different from thatrelied upon in Jurek rather" these cases"reaffirmed the reasoning in Jurek." Saf-fle at 1262.

[11] We believe that what Penry repre-sents is a set of atypical circumstances of akind that, quite understandably, neither theTexas Court of Criminal Appeals nor theSupreme Court in Jurek had in mind,namely circumstances where the defense'smitigating evidence would have either nosubstantial relevance or only adverse rele-vance to the second special issue. Typical-ly, evidence of good character, or of trans-itory conditions such as youth or beingunder some particular emotional burden atthe time, will tend to indicate that thecrime in question is not truly representa-tive of what the defendant's normal behav-ior is or may become over time, and thatthe defendant may be rehabilitable so asnot to be a continuing threat to society.The core of Jurek-which we cannot con-clude has been abandoned-is that the miti-gating force of this kind of evidence isadequately accounted for by the secondspecial issue. But in Penry the Court wasfaced for the first time with a wholly dif-ferent type of mitigating evidence. Notevidence of good character, but of badcharacter, not evidence of potential forrehabilitation, but of its absence; not evi-dence of a transitory condition, but of apermanent one; but nonetheless evidencewhich was strongly mitigating becausethese characteristics were due to theuniquely severe permanent handicaps withwhich the defendant was burdened throughno fault of his own, mental retardation,organic brain damage and an abused child-hood. There was no way this type of evi-dence could be given any mitigating forceunder the second special issue. To recog-nize that, as Penry did, is not necessarily

1030 950 FEDERAL RE

to deny the validity of Jurek as it applies tothe more typical case.We conclude that the core of Jurek re-mains intact, and we now apply it to thecircumstances sub judice.

Youth(12] The primary mitigating factor

which Graham urges was not adequatelyencompassed in the special issues is hisyouth. We disagree.

For at least five years before Graham'strial, it was established Texas law that thejury, in answering the second special issue,could consider "the age of the defendant."Jurek v. State, 522 S.W.2d 934, 940 (Tex.Crim.App.1975), aff'd sub nom. Jurek v.Texas, 428 U.S. 262, 96 S.Ct. 2950, 49LEd.2d 929 (1976). Since then, the Texasdecisions have consistently followed thisrule. For example, in Roney v. State, 632S.W.2d 598 (Tex.Crim.App.1982), the Courtof Criminal Appeals, noting that the defen-dant was seventeen and that "the age ofthe defendant" was "relevant in decidingthe second punishment issue," id. at 601,held that considering the entire record, in-cluding the defendant's "young age," theevidence was insufficient to support thejury's affirmative answer to the secondissue. Id. at 603. See also, e.g., Robinsonv. State, 548 S.W.2d 63, 64 (Tex.Crim.App.

23. Nor can we accept the notion that twenty-twois not youthful for purposes of any constitution-ally mandated rule that the capital sentencermust be able to take into account the defen.dant's "youth' at the time of the offense. Texasclearly regards those in their early twenties asyouthful for this purpose. See e.g., Lackey v.State, 819 S.W.2d 111. 129 (Tex.Crim.App.1991)(describing as a mitigating circumstance "youth-ful age (23) at the time of the offense"); Trevinov. State, 815 S.W.2d 592. 622 (Tex.Crim.App.1991) ("There is also mitigating evidence of ap-pellant's youth; appellant was twenty-one yearsold at the time of the offense"); Madden v.State. 799 S.W.2d 683. 684 (Tex.Crim.App.1990)("Appellant, however. introduced substantialmitigating evidence. He was only twenty-oneyears old at the time of this offense). Thesalient factors which make "youth" mitigating-principally inexperience with resultant dimin-ished judgment and self-control-are all gener-ally present among those in their early twenties.albeit to a lesser degree than in those stillyounger. And this, indeed, is the approach tak-en by Graham's counsel, as reflected in his

PORTER, 2d SERIES

1977); Ear-in v. State, 582 S.W.2d 74798-99 (Tex.Crim.App.1979); Brasfield %State, 600 S.W.2d 288, 293 n. 3 (Tex.App.1980); Keeton v. State, 724 S.W.2d 5%61 (Tex.Crim.App.1987).

The Supreme Court's opinion in Argaffirmatively reflects that the defendatwas "22 years old at the time" of theoffense, id. at 2954, and, in upholding thedeath sentence and the Texas scheme,quotes the portion of the Court of CriminalAppeals' opinion stating that in answerngthe second issue the jury can consider"'the age of the defendant.' " Id. at 29u.Jurek thus squarely answers the questionof whether "youth" is adequately takeninto account by the second special issue. IfPenry compels a different result, it wouldhave been a new rule for purposes of Tes.ue, as Saffle makes clear. Indeed, if .hrskmay not apply to the very type of case thatwas then before the Court, it has benoverruled. But, as noted, the SupremeCourt has not so treated it. Moreover,Penry itself involved a twenty-two-yearolddefendant, id. at 2941, and the opinion cowtains no suggestion whatever that this facwas one which could not be adequatelytaken into account in answering the sta'tory special issues.n

Since Penry, the Texas Court of CriminalAppeals has continued to hold that the see-

statements in closing argument (see note 28infra: see also text at note 9 call supra). We donot believe that for this purpose a caterfldistinction is proper based on some specific 0such as eighteen, which is often the 3 agmajority (in Texas minors are those under eiOteen who have never been married: Te. P"'bate Code § 3(t)) or the minimum age for Purposes of engaging in certain conduct (cf. USConst.Am. XXVI). The Supreme Courtsuch an approach in holding that the Constition does not forbid the death sentence for 4fenses committed at age sixteen or saveStanford . Kentucky, 492 US. 361. 109 SM2%9. 106 LEd.2d 306 (1989). Moreover,an approach would be at war with the coUoof individualized capital sentencing which derlies Penry. It is common knowledge tbindividuals develop and mature at difrates, and it will frequently be the case'example, that one eighteen and. say.months, is actually less "mature and TO"youthful" than another who is seventeeeight months.

GRAHAMCite as 950 F.2d

d special issue provides an adequate ve-

ls for the jury to take into account the

'sdat's youth. See Ex parte McGee,

go S.W.2d 77, 80 (Tex.Crim.App.1991);' Cv V. State, 819 S.W.2d 111 (Tex.Crim.

Apl991); Trevino v. State, 815 S.W.2da 622 (Tex.Crim.App.1991). We, too, ap-

to have recognized this. See DeLunaa Lynaugh, 890 F.2d 720, 722 (5th Cir.

S1) (evidence that defendant was twenty-s when offense committed would not

ag him within Penry).

As the panel majority and dissent eachrrectly recognized, youth is mitigating

bemuse insufficient experience has not al-kwed judgment and self-control to fullydvelop, but the limitations attributable toloath are all necessarily transitory. Gra-Asm at 898, 899. Therefore, whatever is.itgating about youth tends to lend sup-port to a "no" answer to the second specialiue, and its tendency to do so is essential-) proportional to the degree to which theJury concludes such factors were influ-etial in the defendants criminal conduct.The greater the role such attributes ofyouth are found to have played in the de-ftendant's criminal conduct, the strongerthe inference that, as his youth passes, hewill no longer be a danger to society.Thus, the second special issue affords anadequate vehicle by which the jury can giveeffect to the mitigating aspect of youth.

(131 We reject the contention that thesecond special issue is inadequate for thisPurpose because the jury may believe thatYouth mitigated the defendant's culpabilitythough not his future dangerousness. ButYouth is not mitigating with respect to con-duct not attributable to it. Thus, Penry

"6 It is true that a hypethetical juror mightconclude that death is always an inappropriatepenalty for capital murder committed by a sev-"teen year old simply because the offender wasseventeen, and regardless of whether the of-fen" was to any extent attributable to hisyouth. However, such a conclusion is not basedOn individualized consideration of the offenderbut merely on a characteristic which is preciselythe same for him as for every other humanbeiag who attains that age, and as such amountsto no more than disagreement with the Texaslaw which allows execution of seventeen yearolds for capital murder.

v. COLLINS 1031009 (5th Cfr. 1992)

says that evidence of a defendant's back-ground and character is relevant because"'defendants who commit criminal actsthat are attributable to a disadvantagedbackground, or to emotional and mentalproblems, may be less culpable than defen-dants who have no such excuse.'" Id. at2947 (quoting Justice O'Connor's concur-rence in California v. Brown, 479 U.S.538, 107 S.CL 837, 841, 93 L.Ed.2d 934(1987)) (emphasis added). See also Boydev. California, 494 U.S. 370, 110 S.CL 1190,1199, 108 LEd.2d 316 (1990) (same).2 Tothe extent that Graham's criminal conductwas a product of his youth he was for thatreason not only less culpable but, to thesame extent, also less likely to be danger-ous when no longer young. To the extentGraham's criminal conduct was not attrib-utable to his youth, his youth neither re-duced his culpability nor his future danger-ousness. Nothing in the present recordsuggests that the jury here might haveviewed the matter in any other lightr

Finally, the evidence here, and the man-ner in which the case was approached andtried in this respect, do not suggest anyspecial factor or circumstance militatingagainst application of what we conceive tobe the appropriate general rule, namelythat the mitigating force of the defendant'syouth at the time of the offense may beadequately taken into account in answeringthe second special issue. In marked con-trast to Penry, there is here nothing tosuggest that defense counsel desired tohave the mitigating force of youth present-ed or considered in any other manner thanas a basis for a negative answer to the

27. Moreover, to say that the second special issueis for this reason inadequate to take youth intoaccount, is necessarily to also say that it isinadequate to take into account any other miti-gating factor which is not wholly coterminousand synonymous with future dangerousness.Yet, as previously indicated, that would be con-trary to the core holding of lrek, and would ineffect render lurek and the Texas statute it upheld a dead letter. We do not read Penry asgoing that far.

1032 950 FEDERAL RE

second special issue. 8 Cf Lowenfield, 108S.Ct. at 552 (even where absence of objec-tion is not a waiver it may reflect postureand understanding of trial participants).

We reject Graham's contention that, inlight of Penry, the mitigating force of hisyouth could not adequately be given effectin answering the special issues.Other circumstances

[14] Although the mitigating factor pri-marily at issue is youth, Graham also con-tends that under Penry the testimony ofhis stepfather, Samby, and his grandmoth-er, Chron, constituted mitigating evidencewhich could not adequately be given effectin answering the special issues. We dis-agree.

With one exception to be noted, the testi-mony of Samby and Chron simply consti-tuted rather mild evidence of normal,good-though not exceptionally good-character on Graham's part: he had re-spect for and was nice to his mother and

28. Counsel in essence argued that Graham'syouth explained his May 13 to 20 crime spreeand that he would grow out of it: 'A youngman, hasn't even reached 20 years old. He goeson a rage for 7 days. 7 days out of his life. Heis not going to ever forget.... Gary Graham.17 years old, went on a rage for 7 days." and:

"... what you are called upon to do is predictwhether some time in the future Gary Gra-ham could become a person fit to return tosociety. At least he is alive. See, when youare 17 or 20, you are young. hot-to-trot. Youare going to set the world on fire one way orthe other, right or wrong. When people comein their middle 20's and middle 30's. a changea little bit from your more radical stands to amore somewhat upright posture because youhave had not only time to think, but to seewhat is in the world. Most of the crime iscommitted by young people. By the time youget to 25 or 35. it's different. 35 andabove.... because there is something abouthuman nature that not only changes you, butslows you down as you live. If you live. Ifyou live....'

The only dissatisfaction counsel expressed withthe charge or special issues was by pre-trialmotion asserting that the special issues left toomuch standardless discretion to the jury. Seenote It. supra.

Nothing in the evidence indicates any basisfor believing that the offense charged was anymore (or less) a product of Graham's youth thanany of his other criminal conduct shown by theevidence, and neither side ever suggested other-wise either at trial or in this court.

PORTER, 2d SERIES

stepfather, cared about and was clo* tohis mother, gave his grandmother no Nlems or trouble, was never violent, ft,had weapons, would willingly help amaround the house, went to school and Wchurch, "loved the Lord," worked and co.tributed to the support of his two cha&,Mu

It appears to us that the principal mjgating thrust of all this evidence is to mggest that the events of May 13-20 weeaberrational and atypical of Graham's trcharacter and that he thus had potentalfor rehabilitation, and would not be a cowtinuing threat to society. As such, themitigating force of this evidence can Ws.quately be given effect under the se=coaspecial issue.

This evidence does not seem different lekind from that before the Supreme Cortin Jurek, where the defendant's father totified that "the petitioner had always begasteadily employed since he had left schoand that he contributed to his family's sup

We reject Graham's contention in this cootthat his case is like Pemry because here tprosecutor's argument (especially in respect a"direction" and "seeds of our past) amounted aan implied assertion that Graham's youth itsdfavored an affirmative answer to the seonMdspecial issue. We disagree. The clearly Ogreasonable understanding of this unobjected Uargument is that it is no more than the meassertion that Graham's criminal conduct a0the most reliable predictor of the direction hifuture would take. There is absolutely nothinin the argument which implies that this is anymore likely so because the events of May 13-21981 occurred while Graham was sevente a

.opposed to, say, thirty-five (nor even that towas as likely so as it would have been iham had been thirty-five in May 1981). *bprosecutor was not required to concede that juwbecause of Graham's youth he would not in ttfuture be a danger to society. And there'*nothing inconsistent in the assertions that. 0the one hand, some youthful criniidls Ofpose a danger to society even after they iwa^and, on the other hand, that crimiad wbyouths are less likely to be predictive of funosuch behavior on their part as a maturthan are similar acts by those who aremature adults. Moreover, we ate aware dnothing to suggest that Texas has everyouth in this connection as anything othn ba factor tending to favor (albeit not ne= .to require) a "no" answer to the secondissue.

GRAHAMCite as 950 F.d

.' Sg at 2954. Nor does this sort of

OWL tr evidence seem other than whollyOW of what might be expected in a vast

of cases. As noted, were evidence

tls kind held to invoke Penry, thenand the Texas statutory scheme

I for all practical purposes be wholly*bwmated.n Further, this sort of evi-dinm is different in kind from that in-

t~jed in Penry, as its relevance to each ofspecial issues, and particularly the sec-is entirely in the direction of a nega-answer, and it has no tendency to

?rod= culpability for the particular crime

j'ged in any way not encompassed with-bone or more of the special issues. Un-

1*1 Penry type disability evidence, whichain reduce culpability where it is inferredbt the crime is attributable to the disabili-(7 while other similar offenders have nosuc "excuse," good character evidence

eroides no variety of "excuse." Further,absent some unusual indication of an essen-tdy permanent adverse change in char-aete (e.g., brain damage), to the extenttht the testimony is convincing that theddendant's general character is indeedgood it will also, to essentially the sameUteant, be convincing that he will not con-ine to be a threat to society.

(151 There remains only to consider thebrief portion of the testimony of Chronthat Graham's mother was frequently hos-Ph~ihed, commencing when he was approx-hastly three, with what Chron character-4e without elaboration as a "nervous con-

3% We observe that since Penry, the Texas counshave held that this kind of evidence is not Penryevidence and does not mandate departure fromthe Jurek format. Se4 eg., Ex parre Baldre4810 S.W.2d 213, 216-17 (Tex.Crim.App.1991)(evidence that defendant 'has been caring, kind.and nonviolent to others ... is ... reflective ofhis character and bears upon his propensity, orlack thereof. for committing future violent acts*ad thus is adequately covered by the secondpecial issue without further jury instructions):

.dson State, 1991 WL 99949 (Tex.Crim.App. June 12. 1991, No. 68934) ("evidence ofappellanes religious devotion is Franklin evi-

"cle and could be properly addressed by a jurya"*ering issue number two": Mooney v. State,

17 S-W.2d 693 (Tex.Crim.App.1991) (same).S abo Trevino v. State, 815 S.W.2d 592. 622('lex.CrimApp.1 99 1). In Boyd v. State, 811

M 02

v. COLLINS 10331009 (5th Ctr. 1992)

dition" or "mental illness." In an appropri-ate context, evidence of this general kindmight well form part of a proper Penry.presentation. We conclude that it does notdo so in this case, however. There was noevidence of any effect this had on Graham,or of any reaction on his part to it, and noattempt was made to even explore thatsubject. Further, the entire context inwhich this testimony was presented, fromthe point of view both of Chron's testimonyas a whole and of all the defense evidenceat the sentencing hearing, suggests thatthere was no adverse effect on Graham.There was no suggestion that he was un-happy, withdrawn, moody, difficult to con-trol or the like, or that he had any mentalor psychological problems. The entirethrust of the defense evidence, both fromSamby and Chron, was the exact opposite,namely that Graham was a good, stable,nonviolent, ordinary youth. There is nosubstantial evidence that Graham's crimi-nal conduct was "attributable to a disad-vantaged background, or to emotional andmental problems," as Justice O'Connorused those terms in Penry. Id. at 2947.See also Boyde, 110 S.CL at 1199. In thisrespect, the evidence as a whole is simplynot comparable to that in Penry or Ed-dings.

(16] In sum, not only Graham's youthbut also his other mitigating evidence couldadequately be taken into account in an-swering the special issues, particularly thesecond.3

S.W.2d 105. 111-112 (Tex.Crim.App.1991), thecourt considered evidence that appellant 'was agood worker and was promoted." "was alwayspolite, nice and helpful," "always behaved in arespectful manner." and helped his sister "withher asthma" and his mother 'when she hurt herankle." Id at 111. In rejecting a Penry claim,the court said that this evidence "was given fulleffect within the second special issue" and "Itlohold otherwise would be tantamount to declar-.ing the capital sentencing scheme facially un-constitutional." Id. at 112 (footnote omitted).

30. We have focused throughout on the secondspecial issue because it is with respect to it thatGraham's evidence had the most apparent andstrongest mitigating relevance, and because thatis the issue addressed in lurek. We do notimply, however, that Graham's evidence lackedmitigating relevance to the first (or even to the

1034 950 FEDERAL RE

- Conclusion

As directed by the Supreme Court, wehave further considered our previous af-firmance of the district court's denial ofhabeas relief in light of Penry. We con-clude that our prior disposition is consistentwith Penry, and remain convinced that itwas proper. Accordingly, we reinstate ourprior mandate affirming the district court'sdismissal of Graham's habeas petition.

AFFIRMED.

REAVLEY, Circuit Judge, with whomPOLITZ, KING, DAVIS, and WIENER,Circuit Judges, join, dissenting-

The Supreme Court directed this court toreconsider Graham's petition in the light ofPenry, not to modify Penry or to shapePenry for a comfortable fit with Jurek InPenry, Justice O'Connor wrote for theCourt that the jury must be able to fullyconsider and give effect to all "evidencethat mitigates against the death penalty"and is relevant to a defendant's back-ground, character, or the circumstances ofthe crime. 109 S.Ct. at 2947, 2951. Ifyouth is an important mitigating factor-and the Court has said that it is '-thenPenry requires that the sentencing jury beallowed to decide that the death penalty isan inappropriate penalty for Gary Graham.That decision could not have been giveneffect in his case, and the writ should begranted.

The panel majority stated the Penry ruleas follows: "a jury sentencing a capitaldefendant who provides evidence about hischaracter, his background, or the circum-stances of the offense that is relevant topersonal culpability beyond the scope ofthe statutory questions must receive in-structions that allow the jury to give effectto such evidence." 896 F.2d at 896. Theen bane majority, after 21 months, pro-

third) special issue; it does have such relevance,and that relevance strengthens our conclusionthat the special issues were adequate in thiscase; but whether such relevance to issues otherthan the second would alone suffice to take thiscase out of Pen"rys scope is another matter.

1. See panel opinion; 896 F.2d at 897-98. InEddings v. Oklahoma the Supreme Court said:

PORTER, 2d SERIES

duces an exclusion to the Penry rule seholds that no instruction or jury decision Ineeded for transitory circumstances of s,igation. This court says that any dzc.,stance relevant to whether the defendan hrehabilitable may be adequately treated bythe answer to the second issue. Con"to what the Supreme Court wrote, theFifth Circuit explains Penry as an atypiacase where the mitigating evidence eithWhad no substantial relevance, or no advertrelevance, to the second special issue qtfuture dangerousness. I believe my co.leagues have gone beyond and contrary tthe directions of the Supreme Court adhave usurped the role of our superis.

Graham was 17 years old, legally a asknor, when he committed the crime. It isbeyond dispute that this fact was a mig*ing circumstance, material to the "moraculpability" of the defendant The jury'ssentencing role is to consider such factomand determine whether the defendant isindeed personally and morally culpabl.But "culpability" at the punishment phaseis not simply a question of guilt or "blame'worthiness," but rather a question of"deathworthiness." See Lackey v. Sat819 S.W.2d 111, 129 (Tex.Crim.App.1991)(en banc). To say that evidence mitigates adefendant's culpability is not to say that beis any less guilty or deserving of blame.but that he is less deserving of death. SOPenry, 109 S.CL at 2950 (a juror couldbelieve that "Penry lacked the moral culpebility to be sentenced to death").

The special issues of the Texas statutedemonstrate how evidence can be relevantto a defendant's culpability. The guiltydefendant may be less deserving of death

because the evidence shows that he did notact deliberately, or that he does not Pose acontinuing threat to society, or that his

conduct was not unreasonable in respOusto provocation by the deceased. Indeed,

"All this does not suggest an absence of rsibility for the crime of murder, delibcW*committed in this case. Rather, it is to sayjust as the chronological age of a minor is'a relevant mitigating factor of great vCIa5must background and emotional develOpbe duly considered in sentencing. 102 S.CL877.

GRAHAM vCt as 950 F.2d I

, evdence is mitigating only because itWhigMt to one or more of these issues.

S,,N'nklin v. Lynaugh, 487 U.S. 164,

Ct. 2320, 2333, 101 LEd.2d 155 (1988), J., concurring) (evidence of the

&W.ast's good conduct in prison had noto his character outside of the

issues). But the message of Penrysome evidence may make the defen-

Wg less deserving of death for reasons1jyond the scope of the special issues."Ag"s 109 S.CL at 2948. The evidence ofpg's mental retardation and history ofA may not have made his crime less

eRmte or his continuing threat to socie-gr ibe probable, but it may neverthelessis" made him less deserving of death

Vtesase it may have made him "less able.ha a normal adult to control his impulsesV to evaluate the consequences of his con-ho." Id at 2949. Presented with the

special verdict questions, and "in the ab-me of appropriate jury instructions, ajusonable juror could well have believedbt there was no vehicle for expressingthe view that Penry did not deserve to besntenced to death based upon his mitigat-ig evidence." Id at 2950.

This case presents the same dilemma.The jury found that Graham's youth didnt make his crime less deliberate or hisfuture threat to society less probable. Buta reasonable juror could also have deter-mined, if given the opportunity, that Gra-ham did not deserve a death sentence be-ause, at the age of 17, he was less able toen0trol his impulses or evaluate the conse-quences of his conduct, or because of otherrelevant reasons. The majority seems tooverlook the fact that "there is no constitu-

naOl infirmity in a procedure that allows aJU7 to recommend mercy based on themitigating evidence introduced by a defen-

&t-" Id at 2951. In this case, as inPenrY, "in the absence of instructions in-forming the jury that it could consider andgive effect to the mitigating evidence of[Graham's youth] by declining to imposethe death penalty, ... the jury was notProvided with a vehicle for expressing its'reaoned moral response' to that evidencea4 rendering its sentencing decision." Idat 2952. Under Penry, the jury should

. COLLINS 1035009 (5th Cr. 1992)

have been allowed to weigh that factor indeciding whether Graham deserved to besentenced to death.

The majority of this en banc court insistsupon crafting its own exclusion and follow-ing Penry only where there is a "majormitigating thrust of the evidence ... sub-stantially beyond the scope of all the spe-cial issues." It even declares that youth ismitigating only with respect to conduct at-tributable to age, and that the mitigatingfactor of youth at the time of the offensemay be adequately taken into account by aTexas jury in answering the issue of futuredangerousness. But the Supreme Courtrequires the sentencer, before assessingthe death penalty, to consider all mitigatingevidence, not only mitigating factors thatcontributed to particular criminal conduct.And the Court does not weigh the "thrust"of the mitigating evidence as between spe-cial issues and the decision to sentence todeath.

Youth, like mental retardation or crip-pling circumstances in the defendant'sbackground, may be related to deliberate-ness or to future dangerousness, but thosefacts of a defendant's life may also affectan entirely different "thrust" and decision.They may reach the much broader ultimatequestion: Is death the appropriate re-sponse to this human being, considering hismoral culpability as a person? Graham'sjury was not told that it could considerevidence in this light or that it could givemitigating effect to it in imposing sentence.

The majority opinion is heavy with schol-arship and fine legal argument. It un-doubtedly alleviates problems in reviewingthe cases of Texas prisoners on death row.I fully appreciate the problems. The TexasCourt of Criminal Appeals is strugglingwith them too. See Black v. State, 816S.W.2d 350 (Tex.Crim.App.1991); Ex parteHarvey Earin, 816 S.W.2d 379 (Tex.Crim.App.1991); Lackey v. State, 819 S.W.2d111 (Tex.Crim.App.1991). This does notjustify the failure to follow the dictate ofthe Supreme Court. I would follow thatdictate unless the Court, which alone hasthe authority, chooses to modify our in-structions.

950 FEDERAL REPORTER, 2d SERIES

PATRICR E. HIGGINBOTHAM, CircuitJudge, dissenting:

The ultimate question in this case iswhether the mitigating value of Graham'syouth and family circumstances-age sev-enteen at the time of the offense-is fullyexpressed by the jury in its answer to twoquestions: did Graham act deliberately anddoes Graham present a future danger.The majority opinion, after first concludingthat any deficiency in the two questionsmust be substantial, holds that the answeris yes. I am unpersuaded that the jury'sassessment of Graham's moral culpabilityis fully, or substantially as the majority hasit, exhausted by concluding that he acteddeliberately and presents a future danger.A jury's reasoned response could be thatalthough Graham acted deliberately, and islikely to do so again, when Graham'stender years and family circumstances areentered in the account of moral culpability,a death sentence is not warranted.

It was true before Penry that "[t]hestate may not by statute preclude the sen-tencer from considering any ... relevantmitigating evidence." I That did not neces-sarily mean, however, that the state couldnot limit the effects of mitigation. Therewas a powerful argument that, given Ju-rek, the Eighth Amendment allowed thestate to limit the effects a sentencer mightgive to mitigating evidence. Justice Scaliamade the argument in Penry, but his wasthe dissenting view.

I intend no criticism of the majority'sable struggle, but I am not persuaded thatwe have the freedom to define again thejury's sentencing role in Texas. I say"again" because two decisions of the Su-preme Court control this case. The first isthat the state, without fettering effect,must give the jury the means for express-ing its reasoned moral response.2 The sec-ond decides that Graham's youth and fami-ly circumstances are relevant to the core

1. Eddings v. Oklahoma, 455 Us. 104, 113-115.102 S.Ct. 869, 876-877, 71 LEd.2d 1 (1982).

2. Penry v. Lynaugh, 492 U.S. 302. 109 S.Ct. 2934.106 LEd.2d 256 (1989).

3. Stanford v. Kentucky, 492 US. 361, 109 S.CL2969, 2978, 106 LEd.2d 306 (1989); see also

decision for the jury-his moralty.3

The state may insist upon the"reasoned" moral decision, but the coatbution of Graham's youth to his moral V&pability, beyond the issues of delibemgness and future dangerousness, has notrinsic measure or objective weight. theis a point at which we must accept that temoral culpability of a particular person ta particular crime is what the jury saysthat it is. With all deference, this quiatsential blackbox decision yields to no lo.cal or explainable divison whether you*has some residual "mitigating force afterthe Texas questions have been answerd."It is not a "legal" question at all, but itrather like asking judges not to reason butto look to the sky, presumably, and res&Such discrete Rorschach-like inquiries donot produce or draw upon normative rulesThat we are asked to perform such tasks isa powerful signal that something is wrongThe wrong is not difficult to locate. AsJustice Harlan put it in McGautha-

Those who have come to grips with thhard task of actually attempting to draftmeans of channeling capital sentencingdiscretion have confirmed the lessontaught by the history recounted above.To identify before the fact those charsocteristics of criminal homicides and their

perpetrators which call for the death pen'alty and to express these characteristicsin language which can fairly be under,

stood and applied by the sentencing au-thority, appear to be tasks which aftbeyond present human ability (empha

sis supplied).'

Furman repudiated McGautha, but Jut

tice Harlan's wisdom is validated with each

encounter of dead ends in the resulting

conceptual puzzle. And a puzzle it is.

For example, the Supreme Court in C2-

Thompson v. Oklahoma, 487 U.S. 815. 108 S.C

2687, 2698, 101 LEd.2d 702 (1988).

4. McGautha v. California. 402 U.S. 183. 2, 91S.CL 1454, 1466. 28 LEd.2d 711 (1971).

1036

SKELTONiCte as 950 F.2d I

jas v. Bullock s upheld the death sen-

NgO while observing that "the jury may

weB have sentenced Bullock to death de-t concluding that he had neither killed

wor intended to kill." 6 This despite thelt that in Enmund v. Florida T the court:id that the Eighth Amendment forbidsthe death penalty for "one ... who aidsand abets a felony in the course of which anyde is committed by others but whodo not himself kill, attempt to kill, orbtend that a killing takes place, or thatme..l force will be employed." 8 I wouldIve supposed that whether an accusedWanded to kill lies at the heart of moralculpability; that the finding of intent to killwould be left with the sentencer. Statedanother way, if a state's procedures mustallow a defendant's mitigating evidence to

fInd expression in its verdict it is puzzlingto allow a state appellate court to supplythe critical finding of intent to kill, a find-

g missing from the jury's verdict It is alng road from McGautha to Penry, butthe resulting jurisprudence is perverse inthat it insists on a reasoned moral responseof the jury, an assignment we jurists havefailed.

The solution must be left to the SupremeCourt, at least in cases as this one wherewe are left no meaningful latitude. In any*went, this case is already so postmarkedby the predictable scattering of judges re-quired -to react, not reason.

0KEY tiMER SYSTEM

474 U.S. 376. 106 S.Ct. 689, 88 LEd.2d 704(1986).

8. 458 US. at 797, 102 S.CL at 3376.

. WHITLEY 1037037 (5th Cr. 1992)

Kenneth David SKELTON,Petitioner-Appellant,

V.

John P. WHITLEY, Warden, LouisianaState Penitentiary, et al.,Respondents-Appellees.

No. 90-3904.

United States Court of Appeals,Fifth Circuit.

Jan. 6, 1992.

Defendant sought habeas corpus reliefafter his conviction for first-degree murderwas affirmed on direct appeal by the Loui-siana Supreme Court, 340 So.2d 256. TheUnited States District Court for the East-ern District of Louisiana, Marcel Livaudais,Jr., J., denied habeas relief. Defendantappealed. The Court of Appeals, Edith H.Jones, Circuit Judge, held that: (1) decisionthat reasonable doubt jury instruction wasunconstitutional did not apply retroactively,and (2) even if decision applied retroac-tively, defendant failed to demonstrateprejudice required to overcome abuse ofwrit and procedural default.

Affirmed.

1. Habeas Corpus 4385To invoke federal writ of habeas cor-

pus, petitioner must first have obtainedruling from state court on constitutionalissue which is asserted.

2. Habeas Corpus <-314

State procedural bar to federal writ ofhabeas corpus may arise if petitioner didnot preserve error in state court.

3. Habeas Corpus -894Habeas petitioner may not ordinarily

file serial petition unless petitioner estab-lishes cause.

7. 458 U.S. 782, 102 S.CL 3368, 73 LEd.2d 1140(1982).

I474 U.S. at 384, 106 S.Ct. at 696.

RICHMOND v. LEWISCite as 948 F.2d 1473 (9th Ctr. 1990)

Id at 406-07 (footnote and citation to therecord omitted).

The majority conceived a new scenario,regarding aggravating circumstances, bypiling an inference upon an inference toarrive at a conclusion that a "rational ju-ror" might find that defendant and hisbrother went to the victim's home to robhim, then later murdered the victim in or-der to avoid arrest for the robbery. Su-pra, at 1469-70. That theory, it seems tome, hangs by a chimerical thread, withoutsupport in the record or prior judicial opin-ions.

This writer need not add to the percep-tive findings of the district court and theapt observation of Justice Blackmar. I dis-agree, however, with any conclusion thatthe death penalty would have been im-posed, absent these mistaken conclusionsby the jury based upon the improper sub-mission of aggravating circumstances.Though I do not dispute a finding that themurder was aggravated by "outrageouslyor wantonly vile" circumstances, no courtshould invade the jury's province and saythat the jury would have decreed death inthis case on the basis of this single aggra-vating circumstance.

I would observe that Lewis v. Jeffers, -U.S. -, 110 S.Ct. 3092, 111 L.Ed.2d 606(1990), cited by the majority, does notchange the analysis, inasmuch as no evi-dence exists relating to the aggravatingcircumstances, here in question.

Finally, as Justice Blackmar cogently ob-served in his concurring opinion:

This case seems to have arisen out of adrinking session.' The killing was shock-ing and senseless, but numerous life sen-tence cases are reported in which theultimate punishment is much more appro-priate than in this case (if, indeed, wemust depart from the practice of nationswho follow the western tradition in ex-

1. This comment relating to drinking seems sup-ported by Chief Justice Higgins' opinion for theMissouri Supreme Court, stating in part:

Defendant testified that he and his brotherhad been drinking when they went to thetrailer. Although they entered the trailer withThornton's permission, Thornton, who hadbeen drinking heavily, told defendant he didnot like him and wanted him to leave.

1473

acting the death penalty). The defen-dant had numerous convictions, but nonefor major offenses. His is an unlikelyselection for the death sentence, whensome juries assess it and some do not.

Grubbs, 724 S.W.2d at 502 (footnotes omit-ted).

Accordingly, I would grant habeas reliefin this case and require that the State ofMissouri retry the penalty phase of thetrial or reduce the sentence to life imprison-ment without the possibility of parole.

Willie Lee RICHMOND, Petitioner-Appellant,

v.

Samuel A. LEWIS,* Director, ArizonaDepartment of Corrections; and RogerCrist, Superintendent of the ArizonaState Prison, Respondents-Appellees.

No. 86-2382.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted Sept. 18, 1987.

Submission Vacated Sept. 22, 1987.

Reargued and Submitted Sept. 27, 1990.Decided Dec. 26, 1990.

As Amended on Denial of Rehearingand Rehearing En Banc Oct. 17, 1991.

As Amended Jan. 14, 1992.

Petitioner appealed from denial of ha-beas corpus relief from state capital mur-der conviction. The Court of Appeals, 774

State v. Grubbs, 724 S.W.2d 494, 496 (Mo.) (enbanc), cert. denied 482 US. 931, 107 S.Ct. 3220,96 LEd.2d 707 (1987).

Samuel A. Lewis and Roger Crist have beensubstituted for their respective predecessors inoffice, James R. Ricketts and Donald Wawrzasz-ek, pursuant to Federal Rule of Appellate Proce-dure 43(c)(1).

1474 948 FEDELAL REP

F.2d 957, reversed and remanded. On re-

mand, the United States District Court forthe District of Arizona, Alfredo C. Mar-quez, J., 640 F.Supp. 767, denied petition,and appeal was taken. Superseding its

opinion at 921 F.2d 933, the Court of Ap-peals, O'Scannlain, Circuit Judge, held that:(1) Arizona's death penalty law was notunconstitutional as applied; (2) defendantwas not entitled to evidentiary hearing onclaim that administration of death penaltywas unconstitutionally discriminatory; and(3) fulfillment of death sentence after 16years on death row was not cruel and un-usual punishment.

Affirmed.

Pregerson, Circuit Judge, dissentedfrom denial of rehearing en banc and filedopinion in which Hug, William A. Norrisand Reinhardt, Circuit Judges, joined.

1. Habeas Corpus 4898(1)Habeas corpus petitioner was barred

from challenging capital murder convictionon grounds that were available to himwhen he filed first postconviction petition;after petitioner's sentence was vacated buthis conviction affirmed in response to hisfirst petition for habeas relief, petitionerfailed to appeal affirmance of conviction.28 U.S.C.A. § 2244(b); Rules Governing§ 2254 Cases, Rule 9(b), 28 U.S.C.A. foIl.§ 2254.

2. Habeas Corpus -897, 898(1)Habeas corpus petitioner was entitled

to challenge reimposition of death penaltyeven on grounds available but unraisedwhen contesting first sentence and ongrounds raised in first petition and decidedagainst him by district court.

3. Homicide 4358(1)Judicial determination of existence or

nonexistence of aggravating circumstancesin capital murder prosecution did not im-permissibly usurp jury's fact-finding func-tions. U.S.C.A. Const.Amend. 6.

4. Homicide 0358(1)Requiring defendant to establish exist-

ence of mitigating factors in capital murder

prosecution did not impermissibly shift bur-den of proof.

5. Homicide 8351, 357(11)Arizona Supreme Court clearly provid.

ed limiting construction for admittedlyvague statutory aggravating circumstanceof committing murder "in especially hei-nous, cruel or depraved manner" so that,although terms of aggravating circum-stance were facially vague, defendant'sconstitutional rights were protected forpurposes of death sentence; definition giv.en to "especially cruel" provision by Ari-zona Supreme Court was constitutionallysufficient and supported finding that mur-der committed by defendant warranteddeath penalty. A.R.S. § 13-703, subd. F,par. 6.

6. Homicide 4-343Invalidation of one aggravating cir-

cumstance in sentencing for capital murderdoes not automatically require remand forresentencing as long as sufficient otheraggravating factors remain.

7. Homicide 4-343Invalidation of aggravating circun-

stance in Arizona capital murder prosecu-tion did not mandate reweighing or resen-tencing where court had found that prosecution had met its burden of establishingaggravation sufficient to warrant State'sharshest penalty two or three times anddefense had failed to establish mitigatingcircumstances sufficiently substantial tocall for leniency. A.R.S. § 13-703, subds.C, E.

8. Homicide 4358(3) -

Even if trial court never specifimlfound the defendant intended to cause Or

attempted to cause victim's death, death

penalty could still be imposed where jury

received instructions on both premeditaWand felony-murder and evidence was a0*

cient to support finding that defendant iW

tended to participate in murder-

9. Habeas Corpus 00751Defendant seeking habeas corpus

lief from murder conviction was not eD*

tied to evidentiary hearing on his claim Ai.

Arizona's administration of death peft

d2 RIESORTER , 2S

RICHMONCite as 948 F.2d I

was racially, sexually, and socioeconomical-ly discriminatory; defendant offered statis-tical disparities which, even if proven,would not support inference of purposefuldiscrimination.

10. Criminal Law e-1213.8(8)Fulfillment of death sentence after de-

fendant had spent 16 years on death rowwas not cruel and unusual punishment; de-lay incurred during hearing of defendant'sfailed claims did not accrue into substan-tive claim. U.S.C.A. Const.Amends. 6, 8,14.

Timothy K. Ford, MacDonald, Hoague &Bayless, Seattle, Wash., for petitioner-ap-pellant.

Jack Roberts, Asst. Atty. Gen., Phoenix,Ariz., for respondents-appellees.

Appeal from the United States DistrictCourt for the District of Arizona.

Before ALARCON and O'SCANNLAIN,Circuit Judges, and STEPHENS," DistrictJudge.

ORDER

The opinion reported at 921 F.2d 933 (9thCir.1990) is hereby amended as follows: inthe block quotation in the second columnon page 943 of the opinion, twenty-twolines from the bottom of the page, deletethe ellipsis and insert in lieu thereof: "In[State v.] Gretzler, [135 Ariz. 42, 659 P.2d1 (1983) ] supra, we discussed factorswhich lead to a finding of heinousness ordepravity. One factor is the infliction ofgratuitous violence on the victim; anotherrelated factor is the needless mutilation ofthe victim."

The final paragraph in Part IV-D onpage 947 of the opinion is hereby amendedto read as follows:

In this case, there is no similar doubtElimination of the challenged factor wouldstill leave enough support -for Richmond'ssentence because the statute at issue here

"The Honorable Albert Lee Stephens, UnitedStates District Judge for the Central District of

) v. LEWIS 1475473 (9th Cir. 1990)

is fundamentally different from the statuteat issue in Clemons [v. Mississippi, 494U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725(1990) ]. The Mississippi law that Clemonsconsidered authorizes the death penalty if"'there are insufficient mitigating circum-stances ... to outweigh the aggravatingcircumstances.'" Id. 110 S.Ct at 1446 n. 2(quoting Miss.Code-Ann. § 99-19-101(3)(c)(Supp.1989)) (emphasis added). Arizona'slaw mandates the death penalty "if thecourt finds one or more of the (enumerat-ed] aggravating circumstances ... andthat there are no mitigating circumstancessufficiently substantial to call for lenien-cy." Ariz.Rev.Stat.Ann. § 13-703(E) (em-phasis added). The difference is signifi-cant: a conclusion by the Arizona courtsthat there are no substantial mitigatingcircumstances is separate from and inde-pendent of any conclusion regarding theexistence of aggravating circumstances.Invalidation of an aggravating circum-stance does not mandate reweighing or re-quire resentencing where the court hasfound that the prosecution has met its bur-den of establishing aggravation sufficientto warrant the state's harshest penalty twoor three times and that the defense hasfailed to establish mitigating circumstancessufficiently substantial to call for leniency.See id. §§ 13-703(C), (E). Under the stat-ute at issue in Clemons, the invalidation ofan aggravating circumstance necessarilyrenders any evidence of mitigation"weightier" or more substantial in a rela-tive sense; the same, however, cannot besaid under the terms of the Arizona statuteat issue here. Nothing in the Arizona stat-ute suggests the need for plenary reweigh-ing where the record still reveals that thereare "one or more of the [enumerated] ag-gravating circumstances ... and that thereare no mitigating circumstances sufficient-ly substantial to call for leniency." Id.§ 13-703(E).

The panel has voted to deny the petitionfor rehearing. Judges Alarcon andO'Scannlain have voted to reject the sug-

California. sitting by designation. . .

1476 948 FEDERAL RE

gestion for rehearing en bane and JudgeStephens so recommends.

On the request of a judge in regularactive service, the suggestion for rehearingen bane was put to a vote of the full court,and the majority of the court voted to denyrehearing. Fed.R.App.P. 35(b). JudgePregerson dissented from the denial of re-hearing and was joined by Judges Hug,Norris and Reinhardt. The dissent is filedas an attachment to this order.

The petition for rehearing is DENIEDand the suggestion for rehearing en bane isREJECTED.

OPINION

O'SCANNLAIN, Circuit Judge:

Willie Lee Richmond, who was sentencedto death upon conviction of first-degreemurder in Arizona state court, appealsfrom the district court's denial of his peti-tion for habeas corpus. He contends thatimposition of capital punishment will vio-late his rights under the sixth, eighth, andfourteenth amendments. We now affirm.

I

A

This case arises from Richmond's convic-tion in 1974 for first-degree murder in thedeath of Bernard Crummett. On an Au-gust evening seventeen years ago, the vic-tim met Rebecca Corella, a nude dancer, atthe Bird Cage Bar in Tucson, Arizona. Af-ter leaving the bar, the pair met Richmondin the bar's parking lot where Corella at-tempted to persuade Richmond to allow hisfifteen-year-old girlfriend, Faith Erwin, toprostitute herself with Crummett. Rich-mond and Erwin refused, and after a briefconversation, Corella agreed to have sexwith Crummett herself. Crummett there-upon produced a twenty-dollar bill, whichCorella handed to Richmond and whichRichmond palmed and surreptitiously ex-changed for a ten. A brief argument en-sued as Richmond and Corella insisted thatCrummett had only given them ten dollars.

Crummett eventually yielded and agreedto pay more. As he reached into his wallet

PORTER, 2d SERIES

a second time, Corella observed whatseemed a considerable amount of cash, andshe communicated her observation to Rich-mond. All four individuals then proceededin a borrowed station wagon to Corella'smotel-room apartment. There, just as Carella and Crummett emerged from the bed-room, Richmond whispered to Erwin hisintention that they rob Crummett, explain-ing that they should not commit the crimein the apartment because Crummett mightremember the surroundings.

The group then left the motel and withRichmond as their driver proceeded to theend of a road on the outskirts of Tucson.Richmond thereupon stopped the car, andeither Richmond or Corella-the testimonyconflicts-told Crummett to get out be-cause the car had suffered a flat tire.Richmond then assaulted Crummett, beat-ing him with his fists and knocking Crum-mett to the ground. As Crummett laymotionless, Richmond pelted him withrocks. Corella, meanwhile, grabbed Crum-mett's wallet According to Erwin, whoadmitted that she was vomiting and "com-ing down" from heroin during the incident,the following events then transpired

Q. [Mr. Howard, Prosecutor]Then what happened?

A. [Erwin]Well, they all got in the car, and Becky[Corella] was getting the wallet andwhat else, you know. I looked over tosee what else was taken. And Becky[Corella] was getting the wallet andwe came in the car and left.

Q. And where did you go from there?A. Back to the Sands Motel.Q. Did you run over anything?A. Yes, a man. It was a bump, after

we were leaving.Q. After you felt that bump, was say

thing said in the car when you felt that

bump?A. Becky [Corella] said, it felt lke -

man's body.Q. Who was driving the car? eA. Willy (sic].

Under cross-examination, Erwin stoodher contention that Richmond had been -

RICHMONICite as 948 F"d I

driver at the time the car ran over Crum-mett. She admitted, however, that she wassuffering greatly under the influence ofher drug injections at the time and that shewas lying back on the car seat with hereyes closed.

The police found Crummett's body at fiveo'clock the following morning. The exam-ining pathologist testified at trial that thebody exhibited signs of three forms of ex-treme force. First, there were wounds andindentations in the head consistent with acontention that the victim had been pum-meled with rocks. In conjunction with thisobservation, he noted that several blood-stained rocks were found in the immediatevicinity of the body. Second, he testifiedthat the victim's head had suffered severetrauma and "bursting" from a crush injurymost probably attributable to an automo-bile tire. He identified this second injuryas the probable cause of death. Third, hetestified to the presence of a second crushinjury along the trunk and the abdominalsection. This too the pathologist attributedto an automobile tire, which impacted thebody from the opposite direction at leastthirty seconds after the fatal blow. Heconcluded, therefore, that the victim wastwice run over--once while alive but pre-sumably unconscious and a second timeafter death. A police detective also testi-fied to the discovery of human blood andhair on the undercarriage of the recoveredstation wagon.

Shortly after the night of Crummett'sdeath, Richmond was arrested on two un-related murder charges. As he awaitedproceedings on those charges in jail, hewas served with an arrest warrant for themurder of Crummett, and he agreed towaive his rights and make a statement atthat time. Although he admitted to rob-bing and beating Crummett, he claimedthat he was not the driver when Crummettwas run over. In his statement, which wastaped and played at trial, Richmond insist-ed:

I opened the door. I snatched the dudeout by his collar, and bam, he fallsstraight out I wanted to go through hispockets, but she [Corella] was alreadygoing through his pockets and he was

D v. LEWIS 1477473 (9th Ctr. 1990)

getting up and I reached down andpunched him again. So my old lady,Faith [Erwin], she couldn't take it. Shegot out of the car and she looked and shestarted crying, you know. And aboutthat time I am looking at her, and goingthrough his change. And this rock, youknow, like that, and dip, dip like that, youknow. And I said, wow, to myself, youknow. Come on let's get ifi the car andme and her [Erwin] get in the car, and Iam talking to her [Erwin] and Rebecca[Corella] gets in the car and she backedup and she throws up in gear and comesback over. And we were going on downfurther and she was all over the fuckingroad, and said, give me this mother-fuck-ing car and let me drive, you know.

At the conclusion of the evidentiaryphase of the trial, the judge instructed thejury that Richmond could be convicted offirst-degree murder upon either a findingof premeditation or a felony-murder theory:

Murder is the unlawful killing of a hu-man being, with malice aforethought.

The unlawful killing of a human being,whether intentional, unintentional or ac-cidental, which occurs as a result of theperpetration of, or attempt to perpetrate,the crime of robbery and where therewas in the mind of the perpetrator thespecific intent to commit such crime, ismurder of the first degree.

If a human being is killed by any one ofseveral persons engaged in the perpetra-tion of, or attempt to perpetrate, thecrime of robbery, all person[s] who eitherdirectly and actively commit the act con-stituting such crime or who knowinglyand with criminal intent aid and abet itscommission or, whether present or not,who advise and encourage its commis-sion, are guilty of murder in the first-degree, whether the killing is intentional,unintentional, or accidental.

Upon these and other instructions, the juryfound Richmond guilty of first-degree mur-

1478 948 FEDERAL RE

der on February 5, 1974.'

B

After a separate hearing held before thetrial judge alone, the court pronounced itssentence:

The court rendered a special verdict find-ing the existence of two aggravating cir-cumstances: 1) that the defendant waspreviously convicted of a felony involvingthe use or a threat of violence on otherpersons, and 2) that the defendant hadcommitted the offense in an especiallyheinous and cruel manner. It foundnone of the statutory mitigating circum-stances to be present Based on its find-ings, the court sentenced the defendantto death.

State v. Richmond, 114 Ariz. 186, 189, 560P.2d 41, 44, cert. denied, 433 U.S. 915, 97S.Ct. 2988, 53 L.Ed.2d 1101 (1976).

Richmond petitioned in state court forpost-conviction relief claiming the discoveryof new exculpatory evidence. He present-ed an affidavit from Daniel McKinney, aformer boyfriend of Corella, in whichMcKinney stated that Corella had admittedto being the driver when the car ran overCrummett. The state countered with atranscribed tape recording in which McKin-ney claimed that Richmond had threatenedhim in prison. The petition for relief wasdenied. On automatic appeal, the ArizonaSupreme Court affirmed both the convic-tion and the sentence, holding inter aliathat (1) Richmond's case was properly sub-mitted on a theory of felony murder, (2)post-conviction relief was properly denied,and (3) the Arizona death penalty statutewas constitutional, both as written and asapplied. See 114 Ariz. at 190-98, 560 P.2dat 45-53.

1. On August 9, 1974, Richmond was convictedof first-degree murder on one of the two un-related charges and sentenced to life imprison-ment. "It is not disputed that the killing thatwas the basis of th[at] conviction occurred priorto the murder of Bernard Crummett." Rich-mond v. Ricketts, 640 FSupp. 767, 780 (D.Ariz.1986). At the time of that earlier murder, "thedeath [penalty] had not yet become effective (inArizona] so that the sentence of life imprison-ment was the only possible sentence." Id

PORTER, 2d SERIES

After the United States Supreme Courtdenied certiorari on direct appeal, Rich.mond petitioned for a writ of habeas corpusin the federal district court of Arizona. Heargued that the Arizona statute unconstitu-tionally deprived him of the opportunity topresent non-statutory mitigating circum-stances before the judge at sentencing.The district court upheld Richmond's con-viction but ruled the Arizona statute uncon-stitutional under the eighth and fourteenthamendments for its failure to allow consid-eration of a convict's character. Rich.mond v. Cardwell, 450 F.Supp. 519(D.Ariz.1978). The court therefore vacatedRichmond's sentence.2

At a second sentencing hearing in March1980, the state trial court again found nomitigating circumstances sufficient to war-rant leniency, and it resentenced Richmondto death. Once again, on mandatory ap.peal, the Arizona Supreme Court affirmedthe sentence. State v. Richmond, 136Ariz. 312, 666 P.2d 57, cert denied, 464U.S. 986, 104 S.CL 435, 78 L.Ed.2d 367(1983). - Independently reviewing therecord,3 the state supreme court found thatRichmond had actively participated in therobbery and had played an integral role inthe events leading up to Crummett's death.Although it acknowledged that the force ofRichmond's manual blows had not causedthe death, the court held that circumstan-tial evidence supported Erwin's testimonythat Richmond had been the lethal driver.It found that the sentence was appropriateunder these conditions. Again on directreview, the United States Supreme Courtdenied certiorari. 464 U.S. 986, 104 S.CL435, 78 L.Ed.2d 367 (1983).

Richmond then pursued a second writ ofhabeas corpus in federal court. After abrief hearing, the district court denied te

Richmond was acquitted of the other nurderSee id.

2. The Arizona death penalty statute wasquently revised to cure this defect. Se A*t-Rev.Stat.Ann. § 13-703(G), as amendad by 19"ArizSess.Laws ch. 144, (effective MAY L1979).

3. See infra note 10.

RICHMONDCite as 948 F2d 1

writ and dismissed the petition. Four dayslater, a panel of this court stayed Rich-mond's execution and issued a certificate ofprobable cause to provide time for a full-fledged appeal. In due course, the courtaffirmed dismissal for failure to exhauststate remedies, but it remanded with in-structions to allow amendment to permitthe prosecution of any claims that had beenproperly exhausted.' Richmond v. Rick-etts, 730 F.2d 1318 (9th Cir.1984). Follow-ing such amendment, the district courtagain denied Richmond's petition, and thiscourt again reversed, remanding for a fullreview of the state record. Richmond v.Ricketts, 774 F.2d 957 (9th Cir.1985). Af-ter reviewing the full record, the districtcourt denied Richmond's petition for thethird time in a thirty-five page opinion.Richmond v. Ricketts, 640 F.Supp. 767(D.Ariz.1986).

Richmond now appears before this courtwith the assistance of counsel to appealthis most recent denial order. This courtoriginally entertained oral argument in hisappeal on September 18, 1987, but deferredsubmission pending the en banc decision ofthis circuit in Adamson v. Ricketts. SeeNo. 84-2069 (9th Cir. Aug. 14, 1987) (enbane) (order scheduling oral argument forOct. 20, 1987, in light of Ricketts v. Adam-son, 483 U.S. 1, 107 S.CL 2680, 97 L.Ed.2d1 (1987)). Adamson presented a similarchallenge to the constitutionality of Ari-zona's revised death penalty statute. Ayear later, in December 1988, the Adam-son court ruled the Arizona statute.uncon-stitutional. 865 F.2d 1011 (9th Cir.1988)(en bane). Arizona petitioned the SupremeCourt of the United States for review ofthat decision, and this court further de-ferred submission pending that outcome.

In the meantime, on direct review fromthe state's highest court, the SupremeCourt of the United States announced inWalton v. Arizona that the Arizona deathpenalty statute is not unconstitution-

4. Under the "total exhaustion rule" announcedby the Supreme Court in Rose v. Lundy, 455 U.S.509. 102 S.Ct. 1198. 71 LEd.2d 379 (1982), afederal court cannot adjudicate a habeas peti-tion if it contains any unexhausted claims--evenif it also contains exhausted claims. The re-

v. LEWIS 1479473 (9th Ctr. 1990)

al. - U.S. -, 110 S.Ct. 3047, 111L.Ed.2d 511 (1990), reh'g denied, - U.S.-, 111 S.Ct. 14, 111 L.Ed.2d 828 (1990).In a companion case decided that same day,Lewis v. Jeffers, the Court restated andelaborated upon its Walton holding. -U.S. -, 110 S.Ct. 3092, 111 L.Ed.2d 606,reh'g denied, - U.S. -, 111 S.Ct. 14,111 L.Ed.2d 829 (1990). On. the followingday, the Court denied certiorari in Adam-son. Lewis v. Adamson, - U.S. -,110 S.Ct 3287, 111 L.Ed.2d 795 (1990), de-nying cert to Adamson v. Ricketts, 865F.2d 1011 (9th Cir.1988) (en banc).

In light of these developments, this courtordered the parties to file supplementalbriefs, and on September 27, 1990, thecourt entertained a second oral argumentto consider the effects of Walton, Jeffers,and other recent Supreme Court decisionson this appeal. The court thereafter tookthe entire appeal under submission for deci-sion.

II

A

The district court had proper jurisdictionunder 28 U.S.C. § 2241. This court hasproper jurisdiction under 28 U.S.C. § 2253.We review the denial of a habeas corpuspetition de novo. See Weygandt v. Duc-harme, 774 F.2d 1491, 1492 (9th Cir.1985).However, under 28 U.S.C. § 2254(d), thefactual findings of state trial and appellatecourts are presumed correct if fairly sup-ported by the record. See Sumner v.Mata, 449 U.S. 539, 546-47, 101 S.Ct. 764,768-69, 66 L.Ed.2d 722 (1981).

B

Richmond has presented four arguments:(1) that Arizona's death penalty law is un-constitutional both on its face and as ap-plied, (2) that the trial court never specifi-cally found that he caused, intended to

mand order was intended to satisfy this rule.See 730 F.2d at 1318.

Upon amending his petition. Richmond con-tinued to asser eighteen claims. See 774 F.20at 959.

948 FEDERAL REPORTER, 2d SERIES

cause, or attempted to cause Crummett'sdeath and that imposition of the death pen-alty would therefore violate the rule ofEnmund v. Florida, 458 U.S. 782, 102S.CL 3368, 73 L.Ed.2d 1140 (1982), (3) thathe was improperly denied an evidentiaryhearing on his claim that Arizona's admin-istration of the death penalty is unconstitu-tionally discriminatory, and (4) that fulfill-ment of his sentence after so many yearson death row would constitute cruel andunusual punishment. Respondent Arizonahas challenged all four contentions and hasfurther argued that Richmond's petitionconstitutes an abuse of the writ. We ad-dress the state's latter contention first andthen address Richmond's arguments se-quentially.

III

[1] In its 1978 judgment on Richmond'sfirst petition for habeas relief, the districtcourt vacated Richmond's sentence but af-firmed his conviction. The State of Ari-zona argues that because Richmond failedto appeal the affirmance of his convictionat that time, it is abuse of the writ tochallenge the conviction now. See 28U.S.C. § 2244(b); Rules Governing Section2254 Cases, Rule 9(b). A prior panel ofthis court has already addressed this con-tention. See Richmond, 774 F.2d at 959-61. We are bound to adopt its conclusionsas the law of the case. See Handi Inv. Co.v. Mobil Oil Corp., 653 F.2d 391, 392 (9thCir.1981); see also lB J. Moore, J. Lucas &T. Currier, Moore's Federal Practice11 0.404(1], at 119 (2d ed. 1988) ("If there isan appeal from the judgment entered afterremand, the decision on the first appealestablishes the law of the case to be fol-.lowed on the second.").

Thus, to the extent that Richmond seeksto challenge his conviction on grounds thatwere available to him when he filed hisfirst petition, we agree that he is barredfrom doing so now:

The relief obtained on the first petitionwent only to the sentence. The incentiveremained, therefore, for Richmond to ap-peal the rejection of his challenges to theunderlying conviction, since if he were

to prevail on appeal on these claims, hecould not be resentenced. The districtcourt could properly decline to reconsiderthese underlying-conviction claims whenraised in a second petition.

Richmond, 774 F.2d at 960 (emphasis inoriginal). Whether termed abuse of thewrit or res judicata, the reassertion of suchclaims is not permissible at this stage.

[2] Richmond, however, has focused hisattention in the current appeal on challeng.ing the re-imposition of his sentence. Thishe certainly may do, and in so doing, hemay challenge the death penalty ongrounds that were available to him but thathe did not raise when contesting his firstsentence:

Previously unadjudicated claims must bedecided on the merits unless the petition-er has made a conscious decision deliber-ately to withhold them, is pursuing"needless piecemeal litigation," or hasraised the claims only to "vex, harass, ordelay." None of these three situationsapplies to Richmond's petition.

Id. at 961 (citing Sanders v. United States,373 U.S. 1, 18, 83 S.Ct. 1068, 1078, 10L.Ed.2d 148 (1963)). Richmond may alsorenew challenges to the death penalty thatwere raised in his first petition and decidedagainst him by the district court

[W]hen the district court enjoined Rich-mond's [initial] death sentence, it reliedsolely on the [original] Arizona statute'sfailure to consider mitigating factors ofan individual's character. Richmond v.Cardwell, 450 F.Supp. at 526. BecauseRichmond had obtained the sentencingrelief he sought, he had no incentive toappeal the adverse determination of hisother grounds for challenging the deathsentence, and perhaps would not havebeen permitted to do so on mootness orripeness grounds. The ends of justicewould not be served by denying Rich-mond appellate consideration of theseother constitutional challenges to thedeath penalty merely because he ob-

tained relief on a different ground.

Id. at 960. With respect to any of the

proffered challenges to his sentence, there-

1480

RICHMOND v. LEWISCite as 948 F.Zd 1473 (9th CLr. 1990)

fore, "Richmond's petition does not consti-tute an abuse of the writ." Id. at 961.

IV

A

At the time of Richmond's conviction in1974, Arizona law defined first-degree mur-der in relevant part as follows: "A murderwhich is perpetrated by ... any ... kind ofwilful, deliberate and premeditated killing,or which is committed ... in the perpetra-tion of, or attempt to perpetrate ... rob-bery ... is murder of the first degree."Ariz.Rev.Stat.Ann. § 13-452 (repealed1978) (current version at § 13-1105). Forthose convicted of first-degree murder, theArizona code provides a sentencing hearingindependent of the trial. § 13-703(B).Here, the trial judge must choose withoutthe assistance of a jury between the op-tions of life imprisonment and capital pun-ishment. § 13-703(AHB). For purposesof this determination, a special verdict isrequired regarding the existence or non-existence of any aggravating or mitigatingfactors. § 13-703(D). The statute putsthe burden of establishing the existence ofany aggravating factors on the prosecutionand the burden of establishing the exist-ence of any mitigating factors on the de-fense. § 13-703(C). The statute thenchannels the court's discretion:

[he court ... shall impose a sentenceof death if the court finds one or moreof the aggravating circumstances enu-merated in subsection F of this sectionand that there are no mitigating circum-stances sufficiently substantial to call forleniency.

I 13-703(E) (emphasis added).

Subsection F enumerates ten aggravat-ing circumstances, including the followingthree:

(1) The defendant was previously con-victed of a felony in the United Statesfor which under Arizona law a sen-tence of life imprisonment or deathwas imposable.

(2) The defendant was previously con-victed of a felony in the United States

1481

involving the use or threat of violenceon another person.

(6) The defendant committed the offensein an especially heinous, cruel or de-praved manner.

§ 13-703(F). By the time of Richmond'sresentencing in 1980, subsection G of thestatute had been revised to read as follows:

Mitigating circumstances shall be anyfactors proffered by the defendant or thestate which are relevant in determiningwhether to impose a sentence less thandeath, including any aspect of the defen-dant's character, propensities or recordand any circumstances of the offense,including but not limited to [(1) the de-fendant's incapacity to appreciate thewrongfulness of his conduct or to con-form his conduct to the requirements oflaw, (2) the defendant's suffering of un-usual or substantial duress, (3) the defen-dant's relatively minor participation inthe crime, (4) the defendant's reasonableinability to foresee that his conductwould cause or would create the graverisk of causing death, and (5) the defen-dant's age].

§ 13-703(G).

B

Richmond challenges the constitutionali-ty of this revised sentencing scheme onfour grounds. First, he contends that j-1di-cial determination of the existence or non-existence of aggravating circumstances im-permissibly usurps the jury's fact-findingfunction. Second, he claims that requiringthe defense to establish the existence ofany mitigating circumstances illegitimatelyshifts the burden of proof. Third, he ar-gues that the Arizona statute creates anunconstitutional presumption that death isthe proper sentence. Finally, he insiststhat imposing the death penalty upon find-ing that the killing was "especially heinous,cruel or depraved" is unconstitutionallyvague.

(3] The Supreme Court's recent deci-sion in Walton v. Arizona specifically ad-dressed and rejected the first three conten-

948 FEDERAL REPORTER, 2d SERIES

tions, and Richmond has not forcefully ad-vanced these arguments since.s With re-spect to the judicial determination of sen-tencing factors, the Court stated: " 'Anyargument that the Constitution requiresthat a jury impose the sentence of death ormake the findings prerequisite to imposi-tion of such a sentence has been soundlyrejected by prior decisions of this Court.'"Walton, 110 S.Ct. at 3054 (quoting Clem-ons v. Mississippi, 494 U.S. 738, 110 S.Ct.1441, 1446, 108 L.Ed.2d 725 (1990)). In-deed, even before Walton, it was well set-tled that "'the Sixth Amendment does notrequire that the specific findings authoriz-ing the imposition of the sentence of deathbe made by the jury.'" Id (quoting Hild-win v. Florida, 490 U.S. 638, 640, 109 S.Ct.2055, 2057, 104 L.Ed.2d 728 (1989)); seegenerally id. 110 S.CL at 3054-55 (Part IIof the opinion). As the district court notedwhen it rejected this argument in Rich-mond's first petition:

"[The Supreme Court] has never sug-. gested that jury sentencing is constitu-

tionally required. And it would appearthat judicial sentencing should lead, ifanything, to even greater consistency inthe imposition at the trial court level ofcapital punishment, since a trial judge ismore experienced in sentencing than ajury, and therefore is better able to im-pose sentences similar to those imposedin analogous cases."

Richmond, 450 F.Supp. at 523 (quotingProffitt v. Florida, 428 U.S. 242, 252, 96S.Ct. 2960, 2966, 49 L.Ed.2d 913 (1976)).'

S. We have already had occasion to note Wal-ton 's rejection of the first and third contentions.See Sinith v. McCormick 914 F.2d 1153, 1169-70(9th Cir.1990). We also note in passing thatRichmond's able and experienced counsel, Tim-othy K. Ford, is intimately familiar with theWalton case. Mr. Ford represented Jeffrey AlanWalton in his petition before the United StatesSupreme Cduzt. This fact-in addition to thecases' underlying similarity-may help to ex-plain why several of the arguments raised hereare identical to arguments decided by the Courtin that case. See infra note 7 (noting the factualsimilarities between the two cases).

6. Since the Walton decision, Richmond has ap-parently conceded that the sixth amendmentdoes not require jury factfinding at the sentenc.ing phase in capital punishment cases, but he

[4] The Walton Court likewise rejectedthe contention that requiring the defendantto establish the existence of mitigatingfactors impermissibly shifts the burden ofproof. Denying that the practice violatesthe eighth and fourteenth amendments, theCourt ruled:

So long as a State's method of allocatingthe burdens of proof does not lessen theState's burden to prove every element ofthe offense charged, or in this case toprove the existence of aggravating cir-cumstances, a defendant's constitutionalrights are not violated by placing on himthe burden of proving mitigating circum-stances sufficiently substantial to call forleniency.

Walton, 110 S.Ct. at 3055; see generallyid. at 3055-56 (Part III of the opinion).

Finally, the Walton Court also rejectedthe claim that the Arizona statute createsan impermissible presumption that death isthe proper sentence for first-degree mur-der. Like Richmond, Walton had chal-lenged the statute's directive that a court"shall impose a sentence of death" if itfinds one or more aggravating circum-stances and no substantial mitigating cir-cumstances. Ariz.Rev.StatAnn. § 13-703(E) (emphasis added). Walton had con-tended, as Richmond does here, that thisprovision violates the proscription againstmandatory death sentences announced inWoodson v. North Carolina, 428 U.S. 280,96 S.Ct. 2978, 49 L.Ed.2d 944 (1976). TheCourt disagreed, citing its recent decisionsin Blystone v. Pennsylvania, 494 U.S. 299,

has stressed the alternative argument that theequal protection clause does require jury fact-finding at sentencing. Because Arizona lawprovides for jury factfinding in many similarcircumstances. Richmond contends, it is arbi-trary and irrational not to provide for it here.We find this argument unpersuasive. As theSupreme Court noted in Proffitt, there is indeeda rational reason for committing the factfindingfunction to the judge at the sentencing phase incapital punishment cases, and it probably pro-motes more evenhanded justice to do so. SegProffitt, 428 US. at 252, 96 S.Ct. at 2966. More-over, the Court's sixth amendment holding onthis issue in Walton would make little sense ifthe broader, less specific terms of the equalprotection clause could be read to require the

opposite result.

1482

RICHMONDCIte as 948 F.2d 14

110 S.Ct. 1078, 108 L.Ed.2d 255 (1990), andBoyde v. California, 494 U.S. 370, 110S.Ct. 1190, 108 L.Ed.2d 316, reh 'g de-nied, - U.S. -, 110 S.Ct. 1961, 109L.Ed.2d 322 (1990), both of which had up-held similarly worded capital punishmentlaws. The Court ruled that so long as thestatute provides individualized sentencingand does not automatically impose deathfor certain categories of murder, it passesconstitutional muster under Woodson. Seegenerally Walton, 110 S.Ct. at 3056 (PartIV of the opinion).

In short, the Supreme Court has specifi-cally rejected three of the constitutionalarguments raised here, and it has done soin the context of reviewing the very samestatute.

C

Richmond insists, however, that hisfourth constitutional challenge to the stat-ute survives Walton. Indeed, he contendsthat Walton itself renders his death sen-tence unconstitutional and that this court'sen banc decision in Adamson v. Rickettsmandates resentencing. See Adamson,

7. The facts of the Walton case are strikinglysimilar in many respects to the facts of thepresent case. Walton. who also acted with theassistance of two friends, "went to a bar inTucson, Arizona,. ... intending to find and robsomeone at random, steal his car, tie him up,and leave him in the desert.... In the bar'sparking lot, the trio encountered Thomas Pow-ell, a young, off-duty Marine." 110 S.Ct. at3052. Forcing Powell to accompany them, thethree commandeered his car and drove to aremote area on the outskirts of town. Whenthey stopped, they

forced Powell out of the car and had him lieface down on the ground near the car whilethey debated what to do with him.... Wal-ton then took a .22 caliber derringer andmarched Powell off into the desert. Afterwalking a short distance, Walton forced Pow-ell to lie down on the ground, placed his footon Powell's neck, and shot Powell once in thehead. Walton later told [his two accompany-ing friends] that he had shot Powell and thathe had "never seen a man pee in his pantsbefore."

1d Despite the similarities, the circumstancesof Powell's death were somewhat more grue-some than those of Crummett's-

Powell's body was found approximately aweek later.... A medical examiner deter-mined that Powell had been blinded and ren-

v. LEWIS 148373 (9th Cir. 1990)

865 F.2d 1011 (9th Cir.1988) (en banc), cert.denied sub nom. Lewis v. Adamson, -U.S. -, 110 S.Ct. 3287, 111 L.Ed.2d 795(1990). We are not persuaded.

In Walton, another Arizona inmate whowas convicted of first-degree murder andsentenced to death challenged his sentenceon constitutional grounds.7 The SupremeCourt denied all four of his claims andaffirmed the sentence. Despite this result,Richmond contends that Walton's fourthclaim and the Court's disposition of thatclaim bolster his petition.8

(5] In his fourth claim, Walton allegedthat the aggravating circumstance foundand relied upon by the sentencing judge-his commission of the crime "in an espe-cially heinous, cruel or depraved man-ner"-was unconstitutionally vague. Ariz.Rev.Stat.Ann. § 13-703(F)(6); see 110 S.Ct.at 3056-57. The Supreme Court agreedthat the relevant statutory provision wasvague but did not agree that it was uncon-stitutional. In essence, the Court held thatfacial vagueness alone does not decide thequestion: one must look beyond the lan-guage of the suspect provision and consid-er the full circumstances attending its ap-

dered unconscious by the shot but was notimmediately killed. Instead, Powell regainedconsciousness, apparently floundered aboutin the desert, and ultimately died from dehy-dration, starvation, and pneumonia approxi-mately a day before his body was found.

Id.

8. Walton's first three claims, which were alsoraised by Richmond. were the three claims dis-cussed in Part IV-B above. First. Walton al-leged that "every finding of fact underlying thesentencing decision must be made by a jury, notby a judge." 110 S.Ct. at 3054; compare Ariz.Rev-Stat.Ann. § 13-703(B). Second, he allegedthat the Arizona statute unconstitutionally "im-poses on defendants the burden of establishing,by a preponderance of the evidence, the exist-ence of mitigating circumstances." 110 S.Ct. at3055; compare Ariz.Rev.Stat.Ann. § 13-703(C).Third, he alleged that the Arizona statute "cre-ates an unconstitutional presumption that deathis the proper sentence" because it requires thedeath penalty "if one or more aggravating cir-cumstances are found and mitigating circum-stances are held insufficient to call for lenien-cy." 110 S.Ct. at 3056; compare ArizRev.Stat.Ann. § 13-703(E). The Supreme Court rejectedall three of these claims as well as the fourth,which is discussed herein.

1484 948 FEDERAL RE

plication. Safeguards built into the sen-tencing scheme through other provisions-and even extra-statutory procedural safe-guards-may preserve the scheme's consti-tutional integrity. See generally Walton,110 S.Ct. at 3056-58 (Part V of the opinion).

The Court found three such safeguardswithin Arizona law. First, the Arizonascheme provides for sentencing by a judge,not by a jury. That fact alone distin-guished Walton from Maynard v. Cart-wright, 486 U.S. 356, 108 S.Ct. 1853, 100L.Ed.2d 372 (1988), and Godfrey v. Geor-gia, 446 U.S. 420, 100 S.Ct. 1759, 64L.Ed.2d 398 (1980), two cases relied uponby Walton in which the Supreme Court hadinvalidated death sentences due to similarlyvague statutory definitions of aggravatingcircumstances. Where a judge makes thesentencing findings there is less danger ofimpermissibly broad applications of statu-tory terms: "Trial judges are presumed toknow the law and to apply it (correctly] inmaking their decisions." Walton, 110 S.Ct.at 3057.

Second, the Court found, the Arizona Su-preme Court had effectively salvaged thesuspect provision by affording it a "limit-ing definition" in the course of reviewingthe trial judge's sentencing decision. Whatthe state legislature had improvidently leftout, the state supreme court properly in-serted:

The Arizona Supreme Court stated that"a crime is committed in an especiallycruel manner when the perpetrator in-flicts mental anguish or physical abusebefore the victim's death," and that"[m]ental anguish includes a victim's un-certainty as to his ultimate fate." ...

Recodefinsuscconc"1espzonasuffi

guid

PORTER, 2d SERIES

(1989)) (emphasis added). By injecting thislimiting definition into a sentencing processalready restricted to judges, Arizona pro.vided ample protection for Walton's consti-tutional rights.

If the Arizona Supreme Court has nar-rowed the definition of the "especiallyheinous, cruel or depraved" aggravatingcircumstance, we presume that Arizonatrial judges are applying the narrowerdefinition. It is irrelevant that the stat-ute itself may not narrow the construc-tion of the factor.

Id. at 3057 (emphasis added).Third, the Court reasoned:[E]ven if a trial judge fails to apply thenarrowing construction or applies an im-proper construction, the Constitutiondoes not necessarily require that a stateappellate court vacate a death sentencebased on that factor. Rather, as we heldin Clemons v. Mississippi, 494 U.S.[738), 110 S.Ct 1441, 108 L.Ed.2d 725(1990), a state appellate court may itselfdetermine whether the evidence supportsthe existence of the aggravating circum-stance as properly defined or the courtmay eliminate consideration of the factoraltogether and determine whether anyremaining aggravating circumstancesare sufficient to warrant the death penal-ty.

Id.In his reliance on Walton, Richmond

points out as an initial matter that thesame aggravating circumstance at issue inthat case was cited by the Arizona Su-preme Court in its review of his deathsentence. Richmond insists that the termsof this aggravating circumstance-"espe-

* * * * * * cially heinous, cruel or deprave -are ia-cially vague. He is undeniably correct;

gnizing that the proper degree of Walton held so explicitly. Richmond thenition of an aggravating factor is not argues, however, that whereas the Arizonaeptible of mathematical precision, we Supreme Court cured this potential defectlude that the definition given to the in Walton, it failed to do so in his case.ecially cruel" provision by the Ari- The court, he maintains, applied no comPa-Supreme Court is constitutionally rable "limiting construction" in its review

cient because it gives meaningful of his sentence. This contention is empiri-ince to the sentencer. cally incorrect.

Id. at 3057-58 (quoting State v. Walton,159 Ariz. 571, 586, 769 P.2d 1017, 1032

In reviewing Richmond's sentence, theArizona Supreme Court quite clearly did

RICHMONICite as 948 F.2d 14

provide a limiting construction for the ad-mittedly vague aggravating circumstance.In fact, if anything, the state court provid-ed a more narrowly tailored and more obvi-ously sufficient limiting construction inRichmond's case than it did in Walton's:

"Cruel" has been defined as "disposed toinflict pain especially in a wanton, insen-sate or vindictive manner- sadistic."State v. Knapp, 114 Ariz. 531, 543, 562P.2d 704 (1977), cert. denied, 435 U.S.908, 98 S.Ct. 1458, 55 L.Ed.2d 500 (1978).Cruelty involves the victim's pain or suf-fering before death. State v. Gretzler,[135 Ariz. 42, 659 P.2d 1 (1983) ]; State v.Poland, 132 Ariz. 269, 645 P.2d 784(1982); State v. Lujan, 124 Ariz. 365, 604P.2d 629 (1979). The offense must becommitted in an especially cruel, heinousor depraved manner to be considered anaggravating circumstance. State v. Lu-Jan, supra....

"Heinous" has been defined as "hate-fully or shockingly evil; grossly bad,"and "depraved" is "marked by debase-ment, corruption, perversion or deteriora-tion." State v. Knapp, supra. Heinousand depraved involve the mental stateand attitude of the offender as reflectedin his words and actions. State v. Gretz-ler, supra; State v. Poland, supra,-State v. Lujan, supra. In Gretzler, su-pra, we discussed factors which lead to afinding of heinousness or depravity.One factor is the infliction of gratuitousviolence on the victim; another relatedfactor is the needless mutilation of the

9. Richmond argues that only two of the fiveJustices of the Arizona Supreme Court con-curred in this portion of the court's opinion.He is correct. Two other Justices voted to af-firm the sentence but on other grounds. Theyexplicitly rejected the argument that the killinghad been especially heinous and depraved. SeeRichmond, 136 Ariz. at 322-24, 666 P.2d at 67-69 (Cameron. J., concurring and Gordon, V.CJ.,joining). The fifth Justice dissented altogether.See 136 Ariz. at 324-26, 666 P.2d at 69-71 (Feld-man. 3., dissenting). The fact that a majority ofthe court did not concur in this finding, how.ever, does not deny that the Justices who didconcur in it provided an adequate limiting con-struction. The relevant point is that membersof the court who premised their votes on thechallenged factor undertook the deliberationsand analysis constitutionally required.

v. LEWIS 1485473 (9th Cir. 1990)

victim. Here the victim was already un-conscious and bleeding when he was runover not once, but twice, each time froma different direction. The evidence indi-cates that the first run by the vehiclewas over the victim's head crushing hisskull and killing him. The second run ofthe vehicle was over the body of thevictim. The investigating-officers found,at the location of the murder, two largepools of blood separated by about 30feet, which was consistent with the bodyhaving been run over and dragged towhere it was found.. ..

... We believe the facts of this caseset it "apart from the normal first de-gree murders." State v. Brookover, 124Ariz. 38, 601 P.2d 1322 (1979).

Richmond, 136 Ariz. 312, 319, 666 P.2d 57,64 (plurality opinion) (finding Crummett'skilling especially heinous and depraved butnot especially cruel); 9 compare id. withWalton, 159 Ariz. at 586-88, 769 P.2d at1032-34.

As in Walton, the sentence in this casewas (a) imposed by a trial judge presum-ably knowledgeable in the law, (b) thor-oughly and independently reviewed by theArizona Supreme Court, and (c) reimposedunder a sufficiently limiting construction.10

Under a fair reading of Walton and therecord alone, therefore, Richmond's conten-tions must fail.

Richmond attempts to avoid this conclu-sion by challenging the legal accuracy ofthe Arizona Supreme Court's limiting con-

More importantly, Richmond's observation isirrelevant in light of the fact that lour Justicesconcurred in the finding of two other aggravat-ing circumstances, either one of which couldconstitutionally have justified imposition of thedeath penalty. See infra Part IV-D.

10. See Richmond, 136 Ariz. at 317, 666 P.2d at62 ("[I]n each case where the death penalty isimposed, this court conducts an independentreview of the record to assure a just result. Wehave reviewed the record in the instant case... "); 136 Ariz. at 320, 666 P.2d at 65 ("In deathpenalty cases, this court will conduct an inde-pendent examination of the record to determinefor ourselves the presence or absence of aggra-vating and mitigating circumstances and -the.weight to give to each. We also independentlydetermine the propriety of the sentence.").

948 FEDERAL REPORTER, 2d SERIES

struction. He cites several state court de-cisions, most notably State v. Gretzler, 135Ariz. 42, 659 P.2d 1 (1983), for the proposi-tion that the court applied a definition ofthe aggravating circumstance that is un-tenable under Arizona law. This court,however, is foreclosed from engaging inany such inquiry. A federal appellatecourt cannot challenge the Arizona Su-preme Court on matters of Arizona law; inthat realm, the authority of the state courtremains supreme.

Both Walton and its companion case,Lewis v. Jeffers, - U.S. -, 110 S.Ct.3092, 111 L.Ed.2d 606 (1990), support thisanalysis. As Walton pointed out, the rele-vant focus for this court's attention is notupon the language of the Arizona statuteper se or even upon the sentencing decisionof the state trial judge; rather, it is uponthe constitutional legitimacy of Richmond'ssentence as that sentence stands today af-ter review by and exhaustion of the statecourt process. See Walton, 110 S.Ct. at3057-58. The only question for this courtis whether the final state result violatesconstitutional law so as to warrant grant-ing a writ of habeas corpus. Walton re-quires this court to pay due deference tostate judicial systems in the administrationof their own criminal sanctions and to rec-ognize both the competence and duty ofstate courts of general jurisdiction to en-force federal constitutional law.

Jeffers thoroughly reinforces the Waltonrule. In Jeffers, the Supreme Court re-stated and reapplied the Walton holding todeny another Arizona prisoner's challengeto the legitimacy of his death sentence.Because Jeffers was before the Court oncollateral review, the Court concluded thateven greater deference was owed to thestate system than the Court had urged inWalton, which it had heard on direct re-view. The Court never reached the meritsof Jeffers's constitutional claims, and itcertainly never approached any questionsof state law; rather, the Court reached itsdecision upon formulation of the appropri-ate standard of review. Writing for theCourt, Justice O'Connor explained:

[Riespect for a state court's findings offact and application of its own law coun-

sels against the sort of de novo reviewundertaken by the Court of Appeals inthis case.... Where the issue is solelywhether a state court has properly foundexistence of a constitutionally narrowedaggravating circumstance, we have nev-er required federal courts "to peer ma-jestically over the [state] court's shoulderso that [they] might second-guess its in-terpretation of facts that quite reason.ably-perhaps even quite plainly-fitwithin the statutory language." . . .

Rather, in determining whether a statecourt's application of its constitutionallyadequate aggravating circumstance wasso erroneous as to raise an independentdue process or Eighth Amendment viola-tion, we think the more appropriate stan-dard of review is the "rational factfind-er" standard established in Jackson v.Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61LEd.2d 560 (1979). We held in Jacksonthat where a federal habeas corpusclaimant alleges that his state convictionis unsupported by the evidence, federcourts must determine ... "whether, af-ter viewing the evidence in the light mostfavorable to the prosecution, any ration-al trier of fact could have found theessential elements of the crime beyond areasonable doubt"

Jeffers, 110 S.CL at 3102-03 (quoting God-frey v. Georgia, 446 U.S. 420, 450, 100S.Ct. 1759, 1776, 64 L.Ed.2d 398 (1980)(White, J., dissenting) and Jackson v. Vir-ginia, 443 U.S. 307, 319, 99 S.Ct. 2781,2789, 61 L.Ed.2d 560, reh'g denied, 444U.S. 890, 100 S.Ct. 195, 62 LEd.2d 126(1979)) (emphasis in original).

In short, this court's focus must not beon the underlying sentence but on whetherthe state system in both imposing and re-viewing that sentence committed an inde-pendent constitutional violation. To va-cate Richmond's sentence, this court wouldhave to find that there is no rational basisin law or fact for the state supreme court'sfinal evaluation that- the circumstanceswarrant the sentence of death:

[A] federal court should adhere to the

Jackson standard even when reviewingthe.decision of a state appellate court

1486

RICHMONICite as 94 F.2d 1

that has independently reviewed the evi-dence, for the underlying question re-mains the same: if a State's aggravatingcircumstances adequately perform theirconstitutional function, then the statecourt's application of those circum-stances raises, apart from due processand eighth amendment concerns, only aquestion of the proper application ofstate law. A state court's finding of anaggravating circumstance in a particularcase-including a de novo finding byan appellate court that a particularoffense "is especially heinous ... ordepraved "-is arbitrary or capricious ifand only if no reasonable sentencer couldhave so concluded.

Id. 110 S.Ct. at 3103 (emphasis added).We therefore reject Richmond's invita-

tion to "conduct(] a de novo, case-by-casecomparison of the facts" of various statecourt precedents. Id. at 3101. Like theSupreme Court in Walton, we "concludethat the definition given to the 'especiallycruel' provision by the Arizona SupremeCourt is constitutionally sufficient." Wal-ton, 110 S.Ct at 3058. Applying Jeffers,we further conclude that under that defini-tion a rational factfinder could indeed havefound Crummett's murder heinous or de-praved so as to warrant the penalty ofdeath.

D

Even if Richmond were to prevail in hisclaim that the Arizona Supreme Courtfailed to provide a sufficiently limiting con-struction for the aggravating circumstancediscussed above, however, his contentionswould still lack merit. The Arizona Su-preme Court rested its affirmance of hissentence upon a finding of not one, but

11. The court also hinted at the possible applica.bility of a fourth aggravating circumstance: thedefendant's commission of the crime in expecta-tion of pecuniary gain. See Ariz.Rev.Stat.Ann.§ 13-703(F)(5); Richmon4 136 Ariz. at 320, 666P.2d at 65. Although noting that the trial courthad improperly analyzed this factor in reachingthe conclusion that it did not apply, the ArizonaSupreme Court declined to determine whetherunder a proper analysis it would apply.

With respect to consideration of Richmond'skidnapping conviction, the Arizona Supreme

v. LEWIS 1487473 (9th Cir. 1990)

three aggravating circumstances and aninsufficient showing of mitigating circum-stances. See Richmond, 136 Ariz. at 318-21, 666 P.2d at 63-66. The second aggra-vating factor relied upon was Richmond'sconviction for another murder six monthsafter his initial conviction. Although thislatter conviction postdated Richmond'sfirst, "[i]t is not disputed that the killingthat was the basis of th[at] conviction oc-curred prior to the murder of BernardCrummett." Richmond, 640 F.Supp. at780; see supra note 1. In any event, bothconvictions were duly on record by the timeof Richmond's resentencing in 1980.

Furthermore, although the state su-preme court explicitly found and addressedonly these two aggravating circumstances,it held that "[t]he trial court correctlyfound three aggravating circumstances."Richmond, 136 Ariz. at 320, 666 P.2d at 65.The third was an entirely separate priorconviction for kidnapping-statutorily rele-vant for death penalty purposes as an of-fense "involving the use or threat of vio-lence on another person." Ariz.Rev.Stat.Ann. § 13-703(F)(2)." Arizona law explic-itly provides that a single aggravating cir-cumstance may suffice for imposition ofthe death penalty. See § 13-703(E).

[61 Richmond does not contend, norcould he reasonably, that the statutory def-initions of these two other factors are un-constitutionally vague. See § 13-703(F)(1H2). Rather, he sidesteps consid-eration of these additional factors by citingthis circuit's en banc decision in Adamsonv. Ricketts for the proposition that invalida-tion of any one aggravating circumstancerequires resentencing. See 865 F.2d at1037 n. 42, 1038, 1039. We have just heldthat the aggravating circumstance to which

Court's majority opinion does not address itexcept to express general agreement with thetrial court's reliance upon it. The concurrence,which was endorsed by two Justices, is some-what more explicit in its embrace of the lowercourt's reliance on both the prior murder con-viction and the prior kidnapping conviction.See Richmond 136 Ariz. at 323-24, 666 P.2d at68-69 (Cameron, J., concurring and Gordon.V.CJ., joining). -

948 FEDERAL REPORTER, 2d SERIES

Richmond refers is not invalid, but assum-ing for the sake of argument that it is,Richmond's reliance on Adamson is notwell taken.

The Supreme Court granted certiorari inWalton specifically because of this circuit'sen banc holding in Adamson,12 and Waltonreached the opposite conclusion regardingthe Arizona statute's constitutionality.Even if the portion of Adamson uponwhich Richmond relies survives Walton, itstill does not support his claim. Contraryto the suggestion, Adamson did not holdthat invalidation of one aggravating cir-cumstance automatically requires remandfor resentencing; rather, the court simplynoted that it is the common practice of theArizona Supreme Court to remand for re-sentencing when that court invalidates anaggravating circumstance. Id. There isno suggestion in Adamson that the UnitedStates Constitution requires remand whenone aggravating factor is eliminated fromthe analysis if sufficient other aggravatingfactors remain.

The Supreme Court's recent decision inClemons v. Mississippi, 494 U.S. 738, 110S.Ct. 1441, 108 L.Ed.2d 725 (1990), uponwhich Richmond also relies, is not to thecontrary. In Clemons, a Mississippi in-mate challenged the constitutionality of adeath sentence imposed partially on thebasis of a court's finding that it had beenan "especially heinous, atrocious or cruel"killing. Id. 110 S.Ct. at 1445. The Missis-sippi law in question permitted impositionof the death penalty upon a finding of onlyone aggravating circumstance so long asthat aggravating circumstance outweighedall mitigating circumstances. Finding thestate supreme court's consideration of the"especially heinous" factor impermissiblyvague, the Supreme Court remanded forresentencing.

The Court did not hold, however, thatimposition of the death penalty on the basisof the single remaining aggravating factor

12. See Walton. 110 S.Ct. at 3054 ("Because theUnited States Court of Appeals for the NinthCircuit has held the Arizona death penalty stat-ute to be unconstitutional for the reasons sub-mitted by Walton in this case, see Adamson v.

would have been ipso facto unconstitution-al. Rather, it implicitly recognized thatreliance on a single aggravating factor canbe constitutional. See id at 1446, 1450-51.The Court remanded because once thevague factor was removed from the analy-sis, it was unclear from the MississippiSupreme Court's opinion whether the oneremaining circumstance still outweighed allthe mitigating evidence. See id. at 1449-51(Parts III-IV of the opinion).

(7] In this case, there is no similardoubt. Elimination of the challengedfactor would still leave enough support forRichmond's sentence because the statute atissue here is fundamentally different fromthe statute at issue in Clemons. The Mis.sissippi law that Clemons considered au-thorizes the death penalty if "'there areinsufficient mitigating circumstances ... tooutweigh the aggravating circum-stances.'" Id. at 1446 n. 2 (quoting Miss.Code Ann. § 99-19-101(3)(c) (Supp.1989))(emphasis added). Arizona's law mandatesthe death penalty "if the court finds one ormore of the [enumerated] aggravating cir-cumstances ... and that there are no miti-gating circumstances sufficiently substan-tial to call for leniency." Ariz.Rev.Stat.Ann. § 13-703(E) (emphasis added). Thedifference is significant: a conclusion bythe Arizona courts that there are no sub-stantial mitigating circumstances is sepa-rate from and independent of any conclu-sion regarding the existence of aggravat-ing circumstances. Invalidation of an ag-gravating circumstance does not mandatereweighing or require resentencing wherethe court has found that the prosecutionhas met its burden of establishing aggrava-tion sufficient to warrant the state's harsh-est penalty two or three times and that thedefense has failed to establish mitigatingcircumstances sufficiently substantial tocall for leniency. See id. Hg 13-703(C), (E).Under the statute at issue in Clemon, theinvalidation of an aggravating crum

stance necessarily renders any evidence Of

Ricketts, 865 F.2d 1011 (1988) (en banc). wgranted certiorari."): id 110 S.CL at 3059 (Slia, I., concurring) (describing Adanue'"s-Walton as "essentially identical" cass).

1488

RICHMONCite as 948 F.2d I

mitigation "weightier" or more substantialin a relative sense; the same, however,cannot be said under the terms of the Ari-zona statute at issue here. Nothing in theArizona statute suggests the need for ple-nary reweighing where the record still re-veals that there are "one or more of the[enumerated) aggravating circumstances... and that there are no mitigating cir-cumstances sufficiently substantial to callfor leniency." Id. § 13-703(E).

V

181 Richmond next contends that be-cause the trial court never specificallyfound that he caused, intended to cause, orattempted to cause Crummett's death, im-position of the death penalty would violatethe rule of Enmund v. Florida, 458 U.S.782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982).The defendant in Enmund had been con-victed of felony murder and sentenced todeath for his involvement in the killing oftwo robbery victims, even though therecord only suggested that he was the driv-er of the get-away car. In vacating En-mund's sentence, the Supreme Court heldthat imposition of the death penalty vio-lates the eighth and fourteenth amend-ments in the absence of a specific findingby the trier of fact that the defendantactually killed, attempted to kill, intendedto kill, or contemplated that life would betaken:

Enmund himself did not kill or attemptto kill; and, as construed by the FloridaSupreme Court, the record before usdoes not warrant a finding that Enmundhad any intention of participating in orfacilitating a murder. Yet under Floridalaw death was an authorized penalty be-cause Enmund aided and abetted a rob-bery in the course of which murder wascommitted.

Id. at 798, 102 S.Ct. at 3377; see id at 801,102 S.Ct. at 3378.

Enmund, however, is clearly-distinguish-able from the present case. The jury thatconvicted Richmond received instructionson both premeditated and felony murder,and the record before us clearly providessufficient evidence for a finding that Rich-

) v. LEWIS 1489473 (9th Cir. 1990)

mond expressly intended to participate inand to facilitate that murder. Moreover,the Supreme Court's holding in Enmundwas predicated upon the attenuated natureof the defendant's responsibility for thedeaths in that case. As the Supreme Courtpointed out more recently in Tison v. Ari-zona, 481 U.S. 137, 107 S.Ct. 1676, 95L.Ed.2d 127, reh'g denied, 482 U.S. 921,107 S.Ct. 3201, 96 L.Ed.2d 688 (1987), En-mund does not stand for the blanket prop-osition that capital punishment is unconsti-tutional in cases of felony murder:

(S]ome nonintentional murderers may beamong the most dangerous and inhu-mane of all-the person who torturesanother not caring whether the victimlives or dies, or the robber who shootssomeone in the course of the robbery,utterly indifferent to the fact that thedesire to rob may have the unintendedconsequence of killing the victim as wellas taking the victim's property. Thisreckless indifference to the value of hu-man life may be every bit as shocking tothe moral sense as an "intent to kill."... [WMe hold that the reckless disregardfor human life implicit in knowingly en-gaging in -criminal activities known tocarry a grave risk of death represents ahighly culpable mental state, a mentalstate that may be taken into account inmaking a capital sentencing judgmentwhen that conduct causes its natural,though also not inevitable, lethal result.

... [W]e simply hold that major partic-ipation in the felony committed, com-bined with reckless indifference to hu-man life, is sufficient to satisfy the En-mund culpability requirement.

481 U.S. at 157-58, 107 S.Ct. at 1687-88(footnote omitted).

Furthermore, in its independent reviewof the record in this case, the Arizona Su-preme Court explicitly did consider En-mund, and it set forth findings sufficientto satisfy both that test and the SupremeCourt's later pronouncements in Tison

Even if we accept appellant's conten-tion that he was not driving the car.whenthe victim was run over, we do not be-

1490 948 FEDERAL RE

lieve this case falls within the parame-ters of Enmund. The facts from theappellant's version indicate that he wasthe leader of the group; he was the firstto use violent force on the victim; he wasaware that the victim, if allowed to live,could identify him. Appellant, from hisversion of the facts, was willing to leavethe wounded and unconscious victimalone in the desert to an uncertainfate.... There is no evidence that ap-pellant protested or showed any emotionwhen the victim was twice run over.The appellant's version of the facts indi-cates appellant played an integral part inthe events which caused the victim'sdeath, and he willingly assisted in theacts which were intended to cause thevictim's death.

The evidence presented by the statewas that the appellant drove the vehicleover the victim, thus killing him. Thetestimony of Faith Erwin was that theappellant was the driver at the time thevictim was run over. The circumstantialevidence supports Faith's testimony.

Richmond, 136 Ariz. at 318, 666 P.2d at63.1

Nor does it matter that the Enmundfinding was made by the state supremecourt rather than by the original sentenc-ing court:

At what precise point in its criminal pro-cess a State chooses to make the En-mund determination is of little concernfrom the standpoint of the Constitu-tion....

... [WJhen a federal habeas court re-views a claim that the death penalty hasbeen imposed on one who has neitherkilled, attempted to kill, nor intendedthat a killing take place or lethal force beused, the court's inquiry cannot be limit-ed to an examination of jury instructions.Rather, the court must examine the en-tire course of the state-court proceedingsagainst the defendant in order to deter-mine whether, at some point in the pro-cess, the requisite factual finding as to

13. Interestingly, the Arizona Supreme Courtconducted its Enmund analysis in this case be-fore the United States Supreme Court narrowedthe Enmund holding in Tison. The United

PORTER, 2d SERIES

the defendant's culpability has beenmade.

Cabana v. Bullock, 474 U.S. 376, 386-87,106 S.Ct. 689, 696-97, 88 L.Ed.2d 704 (1986)(footnote omitted). Accordingly, we con-clude that the Arizona courts have predi-cated Richmond's sentence upon a suffi-cient finding of criminal intent.

VI

[9] As a black male of moderate means,Richmond next contends that the districtcourt erred in denying his request for anevidentiary hearing upon his claim that Ari-zona's administration of the death penaltyis racially, sexually, and socio-economicallydiscriminatory. We disagree. A habeascorpus petitioner is entitled to an evidentia-ry hearing both if he "alleges facts which,if proved, would entitle him to relief" and ifhe did not receive a full and fair evidentia-ry hearing on the issue in the state court.Townsend v. Sain, 372 U.S. 293, 312, 83S.Ct. 745, 756, 9 L.Ed.2d 770 (1963); see id.at 312-19, 83 S.Ct. at 756-60. The factsthat Richmond has alleged, even if proven,would not entitle him to relief.

In support of his request for a hearingon this issue in the district court, Richmondmade an extensive proffer of what he seeksto prove:

The proffer included that, although 15%of the victims of homicides in Arizonasince 1973 have been black, every personunder death sentence was convicted ofkilling a white victim; that [although]approximately 10% of the persons con-victed of homicide in Arizona since 1973have been women, no women are ondeath row. All three experts who hadexamined the Arizona death sentencingprocess from 1973 to the present [March1987] found significant discrepanciesbased on the victim's race; two foundevidence of discrimination based on thedefendant's race, and one demonstratedsignificant disparities based on sex andeconomic status as well.

States Supreme Court decided Ennund in 1982;

the Arizona Supreme Court affirmed Rkbfmond's sentence in 1983; and the United StZOSupreme Court decided Tison in 1987-

RICHMONICite as 94 Fd 1

Brief for Appellant at 38-39 (citations omit-ted). This proffered evidence, however, isprecisely the sort of generalized statisticalevidence that was rejected as unactionableby the Supreme Court in McCleskey v.Kemp, 481 U.S. 279, 107 S.Ct. 1756, 95L.Ed.2d 262, reh'g denied, 482 U.S. 920,107 S.Ct. 3199, 96 L.Ed.2d 686 (1987).Even if proven, the statistical disparities towhich Richmond points would be insuffi-cient to support an inference of purposefuldiscrimination in his own case. To requirethe district court to weigh this evidencewould be to suggest that Richmond's deathsentence could conceivably be invalidatedsolely on the basis of his physical or socialaffinity to other defendants who are notnow before this court but who may havesuffered unconstitutional discrimination intheir receipt of the same sentence. Thiswe cannot do. To prevail in challenging hissentence under the equal protection clause,Richmond "must prove that the decision-makers in his case acted with discriminato-ry purpose." McCleskey, 481 U.S. at 292,107 S.Ct. at 1767 (emphasis in original).Richmond has alleged no facts to suggestthat either the Arizona Supreme Court, thestate trial court, or the prosecutor's officeacted with prejudicial or discriminatorypurpose in either seeking or imposing hissentence. The district court thus properlydenied his request for an evidentiary hear-ing on this issue. See generally id. at 292-320, 107 S.Ct. at 1766-82.

VII

(101 Richmond's final contention is thatfulfillment of his sentence after sixteenyears on death row would constitute crueland unusual punishment in violation of theeighth and fourteenth amendments." Weknow of no decision by either the UnitedStates Supreme Court or this circuit thathas held that the accumulation of time adefendant spends on death row during theprosecution of his appeals can accrue into

14. Richmond actually alleged that fulfillment ofhis sentence after thirteen years. on death rowwould constitute cruel and unusual punishment.Because he raised that claim in his openingbrief, which was filed in 1987, we have addedthe past three years during which we deferred

v. LEWIS 1491473 (9th Cir. 1990)

an independent constitutional violation, andRichmond has cited no such decision.

On the other hand, the State of Arizonahas directed the court's attention to tworelevant, though not controlling, prece-dents. In a decision affirmed two yearslater by the Tenth Circuit, the UnitedStates District Court for the District ofUtah rejected a similar claim brought by ahabeas corpus petitioner who had been ondeath row for ten years. Andrews v. Shul-sen, 600 F.Supp. 408, 431 (D.Utah 1984),affd, 802 F.2d 1256 (10th Cir.1986), certdenied, 485 U.S. 919, 108 S.Ct. 1091, 99L.Ed.2d 253, reh'g denied, 485 U.S. 1015,108 S.Ct. 1491, 99 L.Ed.2d 718 (1988). Thecourt reasoned that to accept the petition-er's argument would be "a mockery ofjustice" given that the delay was attributa-ble more to the petitioner's actions than tothe state's. Id. Like Richmond, the peti-tioner in Andrews had sought "extensiveand repeated review of (his] death sen-tence." Id. Arizona also points to thewell-known decision of the California Su-preme Court in People v. Chessman, inwhich that court rejected the same claim byan eleven-year death-row inmate. 52Cal.2d 467, 497, 341 P.2d 679, 699 (1959),cert. denied, 361 U.S. 925, 80 S.Ct. 296, 4L.Ed.2d 241, rek 'g denied, 361 U.S. 941, 80S.Ct. 383, 4 L.Ed.2d 362 (1960). Finally, wenote the decision of the United States Su-preme Court in Harrison v. United States,392 U.S. 219, 221 n. 4, 88 S.Ct. 2008, 2009 n.4, 20 L.Ed.2d 1047 (1968), which the districtcourt cited in its rejection of this claim andwhich held that an eight-year delay be-tween an arrest and sentencing was notunconstitutional where the delay resultedfrom the need to assure careful review ofan unusually complex case. See Rich-mond, 640 F.Supp. at 803 (citing Harri-son).

Especially in light of the relative absenceof contrary precedents, we believe that thereasoning of these cases is sound. A de-

submission of his appeal. We note, however,that because this appeal properly concerns Rich-mond's sentence only as of the date of its reim-position in 1980. the relevant period of his resi-dency on death row is actually ten years.

948 FEDERAL REPORTER, 2d SERIES

fendant must not be penalized for pursuinghis constitutional rights, but he also shouldnot be able to benefit from the ultimatelyunsuccessful pursuit of those rights. Itwould indeed be a mockery of justice if thedelay incurred during the prosecution ofclaims that fail on the merits could itselfaccrue into a substantive claim to the veryrelief that had been sought and properlydenied in the first place. If that were thelaw, death-row inmates would be able toavoid their sentences simply by delayingproceedings beyond some threshold amountof time, while other death-row inmates-less successful in their attempts to delay-would be forced to face their sentences.Such differential treatment would be farmore "arbitrary and unfair" and "cruel andunusual" than the current system of fulfill-ing sentences when the last in the line ofappeals fails on the merits. We thus de-cline to recognize Richmond's lengthy in-carceration on death row during the pend-ency of his appeals as substantively andindependently violative of the Constitution.

VIII

For the foregoing reasons, we affirm thejudgment of the district court and denyRichmond's petition for a writ of habeascorpus.

AFFIRMED.

HARRY PREGERSON, Circuit Judge,with whom Judges HUG, NORRIS andREINHARDT join, dissenting from denialof rehearing en banc:

By declining to rehear this case en banc,this court sends a man to his death withoutundertaking even the minimal review thatthe Supreme Court continues to find appro-priate in habeas cases. In this case, eventhe most deferential review of the recordreveals that no rational sentencer couldhave concluded that Richmond's mentalstate was "especially heinous," as thatterm is defined by the Arizona SupremeCourt. The Arizona Supreme Court's con-clusion that Richmond's mental state was

. "especially heinous" turns on the assump-tion that he was driving the car when it ranover the victim. The identity of the driver,

however, was the subject of a credibilitydispute. Neither the jury nor the trialcourt resolved that dispute, and the Ari-zona Supreme Court is incapable of resolv-ing it rationally.

Moreover, the panel maintains that anyerror in the finding of an aggravating cir-cumstance is harmless because the sentenc-ing judge concluded that the mitigatingcircumstances were not sufficiently sub-stantial to call for leniency. The panel'sconclusion is based on the erroneous prem-ise that Arizona law permitted the sentenc-ing court to arrive at such a conclusionwithout weighing the aggravating factorsagainst the mitigating circumstances. SeeRichmond v. Lewis, 921 F.2d 933, 947 (9thCir.1990). By maintaining that Arizona'sstatute is not a weighing statute, the pan-el's opinion directly conflicts with Arizonacase law and the prior decisions of thiscourt. That case law demonstrates that inArizona, the sentencer evaluates whetherthe mitigating evidence is sufficiently sub-stantial to warrant leniency by weighing itagainst the aggravating factors. When aninvalid aggravating factor is removed fromthe scales, the equation can change. Some-one must reevaluate the mix of mitigatingfactors in light of the reduced gravity ofthe remaining valid aggravating factors.

I

The panel's opinion acknowledges thatthe "especially heinous" aggravating cir-cumstance is unconstitutionally vague onits face, but it concludes that the ArizonaSupreme Court applied a sufficiently nar-row construction of the facially vagueterm. Once a state appellate court Warticulated a constitutionally sufficient nMrowing construction of a facially vague sagravating circumstance, federal court!must still review the state courts' applietion of that narrowed definition to the factsof a particular case. That review is to be.conducted under the deferential "rationsfactfinder" standard of Jackson v.nia, 443 U.S. 307, 99 S.Ct. 2781, 61 LE.02560 (1979). A state court's finding of saggravating circumstance, including 'state appellate court's finding that a mo

1492

RICHMOND v. LEWISCite as 948 F.2d 1473 (9th Cir. 1990)

der is "especially heinous," violates theConstitution if no reasonable sentencercould have made the finding. See Lewis v.Jeffers, - U.S. -, 110 S.CL 3092, 3102-03, 111 L.Ed.2d 606 (1990).

In this case, no rational sentencer couldhave found that Richmond's mental statewas "especially heinous" as that faciallyvague term has been narrowed by the Ari-zona Supreme Court. The limiting defini-tion, as reported in the panel's opinion,requires that the sentencer make a factualfinding about the defendant's mental state."Heinous and depraved involve the mentalstate and attitude of the offender as re-flected in his words and actions." State v.Richmond, 136 Ariz. 312, 666 P.2d 57, 64(Ariz.1983), quoted in Richmond v. Lewis,921 F.2d 933, 943 (9th Cir.1990). In addi-tion, the Arizona Supreme Court tells usthat "heinous" means "grossly bad" or"shockingly evil." The Arizona SupremeCourt applies several factors to determinewhether the "especially heinous" aggravat-ing circumstance applies. In determiningin this case that Richmond's mental statewas grossly bad or shockingly evil, theArizona Supreme Court mentioned onlytwo of those factors: the infliction of gra-tuitous violence on the victim and the muti-lation of the corpse. I believe that byfocusing solely on those two factors in thiscase, the Arizona Supreme Court coulddraw rational inferences about the mentalstate of only one actor- the driver of thecar.

Here the victim was already unconsciousand bleeding when he was run over notonce, but twice, each time from a differ-ent direction. The evidence indicatesthat the first run by the vehicle was overthe victim's head crushing his skull andkilling him. The second run of the ve-hicle was over the body of the victim.The investigating officers found, at thelocation of the murder, two large pools

1. Erwin received immunity in return for hertestimony. Richmond v. Ricketts, 640 F.Supp.767, 792 n. 30 (D.Ariz.1986).

2. Corella was granted immunity, but neither theProsecution nor the defense called her as awitness. State v. Richmond, 114 Ariz. 186, 560P.2d 41, 44 (1976).

1493of blood separated by about 30 feet,which was consistent with the body hav-ing been run over and dragged to whereit was found.

Id., quoted in Richmond, 921 F.2d at 943.As this quotation demonstrates, the Ari-

zona Supreme Court clearly focused on theactions of the driver when it determinedthat the facts warranted a finding that thekiller's mental state was "especially hei-nous." The Arizona Supreme Court ap-peared to assume that Richmond was thedriver. Yet neither the jury nor the sen-tencing court ever found that Richmondwas the driver.

Indeed, the driver's identity has been vig-orously disputed throughout this case.Faith Erwin provided the only testimonyimplicating Richmond as the fatal driver.'Richmond has always denied being the fa-tal driver, and he has witnesses to supporthim. In his statement to the police, Rich-mond said that Becky Corella backed thecar up over the victim, then drove forwardand ran over him again. Richmond v.Ricketts, 640 F.Supp. 767, 771 (D.Ariz.1986). Corella did not testify.2 A witnessfor Richmond testified that Erwin earlierreported that Corella had been driving.640 F.Supp. at 778. The jury did not deter-mine who drove the car. Because the jurywas instructed on felony murder, the jury'sverdict is consistent with either version.

At the sentencing hearing, Richmond.submitted additional evidence to show thatCorella was the lethal driver. 640 F.Supp.at 778-79. According to affidavits signedby two witnesses, Corella admitted beingthe driver. Moreover, an affidavit signedby the prosecutor in the original trial stat-ed that Corella was prepared to testify"and accept blame for the killing." A

Neither the jury, the sentencing court,nor the Arizona Supreme Court has ex-

3. In discussing the procedural history of thecase, the panel's opinion mentions that Rich-mond filed one of these affidavits in a petitionfor post-conviction relief. 921 F.2d at 936. Itdoes not discuss the other affidavits.

948 FEDERAL REPORTER, 2d SERIES

pressly resolved the dispute over whodrove the car over the victim's body. Yetthe Arizona Supreme Court's conclusionthat Richmond's mental state was "espe-cially heinous" turns on the tacit assump-tion that he was the driver.

Just as the jury's verdict did not neces-sarily determine that -Richmond was thedriver, the trial court's finding that themurder was "especially cruel or heinous"did not turn on any finding that Richmondwas the driver. Nor did it turn on anyconclusion about Richmond's mental state.At the time Richmond was sentenced in1980, the Arizona Supreme Court had notyet narrowed the definition of "especiallyheinous" to restrict the application of thataggravating circumstance to determina-tions of the defendant's mental state orattitude. The sentencing court did not ex-plain why it concluded that the aggravatingcircumstance applied, nor did it assumethat Richmond was driving the car whenthe victim was run over. The findings andspecial verdict of the sentencing court donot even discuss the identity of the driver.

Nevertheless, the identity of the driverwas an issue on appeal to the ArizonaSupreme Court. While Richmond's casewas on appeal, the United States SupremeCourt decided Edmund v. Florida, 458U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140(1982), which held that the Constitution for-bids capital punishment for certain types offelony murder convictions. In Edmund,the Court determined that states cannotexecute defendants convicted of felonymurder unless they actually killed, attempt-ed to kill, or intended that a killing occur.See Cabana v. Bullock, 474 U.S. 376, 378,106 S.CL 689, 693, 88 LEd.2d 704 (1986).Richmond contended that the ruling of Ed-mund should spare him from execution.

4. The opinion of the Arizona Supreme Courtincludes one sentence that suggests that the sen-tencing court resolved the credibility conflictand made a factual finding that Richmonddrove the car. The court said that "the trialjudge was justified in concluding that appellantdrove the vehicle that was used to kill the vic-tim." State v. Richmond, 136 Ariz. 312, 666P.2d 57, 63 (1983). This sentence suggests thatthe Arizona Supreme Court believed that thetrial court made a finding about the driver's

The Arizona Supreme Court's discussionof the Edmund argument is the only sec-tion of the state supreme court opinion thatdiscusses the dispute over the driver's iden-tity. As I read the opinion of the statesupreme court, it determined that Rich-mond's Edmund argument was a loser nomatter who drove the car. Even underRichmond's version of the facts, the courtnoted, Richmond's level of involvement inthe crime was substantial enough that itsatisfied Edmund, without regard towhether Richmond was responsible for thefinal lethal action. See State v. Richmond,666 P.2d at 63.

Although the Arizona Supreme Courtdiscussed the dispute over the identity ofthe driver, the Arizona courts resolved theEdmund question without determiningwhether or not Richmond drove the car.The Arizona Supreme Court was institu-tionally incapable of resolving the credibili-ty dispute over the identity of the driver.See Cabana v. Bullock, 474 U.S. 376, 388n. 5, 106 S.Ct. 689, 698 n. 5, 88 L.Ed.2d 704(1986). Conceivably, the Arizona SupremeCourt could have determined that the sen-tencing court actually made an Edmundfinding, and could have further determinedthat such a finding was supported by theevidence. The record, however, shows thatthe sentencing court made no Edmundfinding, nor did it determine whether Rich-mond or Corella drove the car over thevictim.4 The opinion of the panel confirmsthat it was the state supreme court, not thesentencing court, that resolved the Ed-mund question. See Richmond 921 F.2dat 948 ("Nor does it matter that the Ed-mund finding was made by the state s1preme court rather than by the originalsentencing court").

identity. If so. then the court was mistake-There is simply nothing in the record to suggestthat the trial judge made any conclusion aboiuwhether Richmond or Corella drove the car. If

any state court can be said to have determinedthe identity of the driver, it is the Arizona Supreme Court. not the sentencing court. Yet the

Arizona Supreme Court could not rationally do'

termine whether it was Richmond or Ewho was telling the truth.

1494

RICHMONICite as 948 F.2d I

In sum, although the sentencing courtmay have been capable of resolving thedispute over the identity of the driver, itdid not do so. The factfinder in this casecan only be the Arizona Supreme Court.Yet the Arizona Supreme Court could notrationally resolve this factual dispute onthe basis of a cold record. See Cabana,474 U.S. at 388 n. 5, 106 S.Ct. at 698 n. 5.Nevertheless, the Arizona Supreme Court'sconclusion that Richmond's mental statewas "especially heinous" depends on theassumption that Richmond, not Corella, de-liberately drove the car over the victim'sbody. Applying the deferential standardarticulated by the Supreme Court, I do notsee how, under these circumstances, anyrational factfinder could conclude that the"especially heinous" aggravating circum-stance, as narrowed and defined by theArizona Supreme Court, applied in thiscase.

IIRichmond was sentenced to death on the

basis of three aggravating factors. Be-cause Richmond does not challenge the ap-plication of two of those aggravatingfactors, the panel asserts in part IV.D. ofits opinion that any error in applying the"especially heinous" aggravating circum-stance is harmless. I strongly disagree.In Richmond's case, the trial court arrivedat a verdict of death only after weighingthe mitigating evidence against the aggra-vating factors. Because the ultimate sen-tencing determination in Arizona involves abalancing of the mitigating evidenceagainst the aggravating factors, Arizona isa "weighing" state, as the Supreme Courtused that term in Clemons v. Mississippi,494 U.S. 738, 110 S.Ct. 1441, 1446, 1450,108 L.Ed.2d 725 (1990). If the sentencingcourt's balancing included a constitutional-ly invalid aggravating factor, the fact thatthe scales also contained a valid aggravat-ing factor does not, as the panel believes,dispose of Richmond's claim. In weighingstates, the rule of Lockett v. Ohio, 438 U.S.586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978),forbids such an "automatic rule of affirm-ance," because "it would not give defen-dants the individualized treatment that

v. LEWIS 1495473 (9th Cr. 1990)

would result from actual reweighing of themix of mitigating factors and aggravatingcircumstances." Clemons, 110 S.Ct. at1450. There must either be a resentencing,see Creech v. Arave, 928 F.2d 1481, 1489(9th Cir.1991); Adamson v. Ricketts, 865F.2d 1011, 1038-39 (9th Cir.1988) (en banc),or at a minimum, the Arizona courts mustreweigh the defendan's mitigating evi-dence against the valid aggravatingfactors.

In expounding its view that any error inthe finding of the "especially heinous" ag-gravating circumstance was harmless, thepanel begins with the erroneous premise,which it advances without citing any caselaw, that Arizona is not a weighing state.See Richmond, 921 F.2d at 947. Thatpremise is simply wrong. The language ofthe Arizona statute, as well as the cases ofthis court and the Arizona Supreme Court,establish that Arizona is indeed a weighingstate.

It appears that the panel misreads Ari-zona law simply because the statute's textdoes not include the word "weigh." Never-theless, it is clear that the statute requiresweighing. If the trial court finds any ag-gravating circumstances, it must thenmake findings on the existence of mitigat-ing circumstances. It is only after the trialcourt has made findings on the existence ofboth that it must make the sentencing deci-sion. The statute requires a sentence ofdeath if there are any aggravating circum-stances "and there are no mitigating cir-cumstances sufficiently substantial to callfor leniency." Ariz.Rev.Stat. § 13-703(E).

Without citing any. authority, the panelmistakenly concludes that the aggravatingcircumstances do not influence the Arizonasentencer's inquiry into whether the miti-gating circumstances are sufficiently sub-stantial. 921 F.2d at 947. On the con-trary, it is clear that the trial judge deter-mines whether the mitigating circum-stances are "sufficiently substantial" byevaluating them in relation to the aggra-vating circumstances that exist. This.is abalancing, a process of weighing.

948 FEDERAL REPORTER, 2d SERIES

Numerous cases of the Arizona SupremeCourt confirm that the sentencer deter-mines whether mitigating evidence is "suf-ficiently substantial" by weighing itagainst aggravating circumstances. See,e.g., State v. Rossi, 146 Ariz. 359, 706 P.2d371, 379 (Ariz.1985) ("Once the trial judgefinds that defendant's capacity was signifi-cantly impaired ... a mitigating factorarises which is then weighed against anyaggravating circumstances that the trialjudge may find to determine whether miti-gating factors are sufficiently substantialto call for leniency"); State v. Harding,670 P.2d 383, 397 (Ariz.1983) ("We havedescribed the formula of 'sufficiently sub-stantial to call for leniency' as involving theweighing of aggravating against mitigat-ing circumstances on the basis of the gravi-ty of each circumstance."); State v. Gretz-ler, 135 Ariz. 42, 659 P.2d 1, 13 (1983)(determining whether mitigating circum-stances are sufficiently substantial involvesweighing and balancing of aggravating andmitigating circumstances that are present).The Arizona Supreme Court has clearlyexplained that determining whether miti-gating circumstances exist is distinct fromthe final balancing test:

[The trial court acts first as the factfinder. It must consider whether thestate has proven any of the aggravatingfactors.... It must also determinewhether the defendant has shown miti-gating circumstances .... After the trialcourt has made these findings of fact, itthen engages in a balancing test in whichit determines whether the mitigatingfactors are sufficiently substantial to callfor leniency.

State v. Leslie, 147 Ariz. 38, 708 P.2d 719,730 (1985), quoted in Adamson v. Ricketts,865 F.2d 1011, 1063 (9th Cir.1988) (en bane)(Brunetti, J., dissenting). The Arizona caselaw thus confirms that the panel in thiscase has misconstrued the operation of theArizona statute.

5. The panel's opinion also conflicts with ourprevious reading of the virtually identical lan-guage of Montana's capital sentencing statute.In Montana. as well as Arizona, the sentencerdetermines whether mitigating evidence is suffi-

The panel has not simply misinterpretedArizona law; it has also overlooked ourprior cases. Although some portions ofour opinion in Adamson v. Ricketts, 865F.2d 1011 (9th Cir.1988) (en bane), have notsurvived as good law, our description of theArizona statute remains valid. We ex-plained that after the parties have' estab-lished the existence of aggravating andmitigating circumstances, "the court mustweigh the aggravating circumstance(s)against the mitigating circumstance(s)."Id. at 1040; see also id. at 1065-66 (Brunet.ti, J., dissenting). In Adamson, the Stateof Arizona itself acknowledged that thestatute requires the sentencer to balance.See id. at 1043.s

In Richmond's case, the trial court foundthat there were a number of mitigatingcircumstances. See State v. Richmond,136 Ariz. 312, 666 P.2d 57, 65 (1983). Itwas only by comparing them to the aggra-vating circumstances that the sentencerconcluded that they were not sufficientlysubstantial to warrant leniency. If a re-viewing court's analysis reduces the num-ber of valid aggravating circumstances, itreduces the weight and gravity of the ag-gravating factors that the sentencer maypermissibly consider. The reviewing courtcan no longer rely on an earlier findingthat the mitigating circumstances were notsufficiently substantial to call for leniency.A new balancing must be conducted in or-der to determine whether the mitigatingcircumstances are sufficiently substantialin relation to the remaining valid aggravat-ing factors.

The panel fails to recognize that the find-ings of no mitigating circumstances suffi-ciently substantial to call for leniency issimply the end result of the balancing orweighing that the Arizona statute requires.It is not an isolated finding of fact. Itdepends on the nature and gravity of theaggravating circumstances. If the sen-tencing court weighed the mitigating cir-cumstances against both valid and invalid

ciently substantial to warrant leniency by vie-ing it in relation to the aggravating circu0stances that have been established. So Smithv. McCormick, 914 F.2d 1153 (9th Cir.1990)

1496

FEATHERSTONCIte as 948 FId 1

aggravating circumstances, then the sen-tence of death cannot stand. At a mini-mum, there would have to be a determina-tion whether the mitigating circumstances,when weighed against the remaining validaggravating circumstances, were suffi-ciently substantial to call for leniency.

III

Because no rational sentencer could havefound that the "especially heinous" aggra-vating factor applied, Richmond is entitledto further proceedings in the state courts.Richmond presented a considerable amountof mitigating evidence at his sentencinghearing. Indeed, one justice of the ArizonaSupreme Court would have reversed thesentence of death on the strength of themitigating evidence. See Richmond, 666P.2d at 69 (Feldman, J., dissenting). Rich-mond is entitled to have the Arizona courtsreevaluate the strength of that mitigatingevidence in relation to the valid aggravat-ing factors, with the invalid "especially hei-nous" factor removed from the scales.

Garry Vincent FEATHERSTONE,Petitioner-Appellant,

V.

Wayne E. ESTELLE, Warden,Respondent-Appellee.

No. 89-55090.

United States Court of Appeals,Ninth Circuit.

Submitted Oct. 30, 1989.*Submission Deferred July 16, 1990.

Resubmitted Oct 24, 1991.Decided Oct. 31, 1991.

State prisoner sought habeas corpus.The United States District Court for the

The panel finds this case appropriate for submis-sion without oral argument pursuant to Ninth

E v. ESTELLE 1497497 (9thClr. 1991)

Central District of California, Pamela A.Rymer, J., denied relief, and prisoner ap-pealed. The Court of Appeals, Trott, Cir-cuit Judge, held that: (1) evidence of prioroffense was admissible; (2) error in notgiving limiting instruction was harmless;(3) denial of motion for severance ofcharges did not deprive defendant of fairtrial; (4) use of photographic lineup identi-fication did not violate due process; and (5)counsel was not ineffective.

Affirmed.

1. Criminal Law e369.15Testimony that person identified as de-

fendant had committed prior rape and bur-glary was properly admitted to establishdefendant's identity as perpetrator of rapeand burglary for which he was chargedbased on the similarities of the circum-stances, and admission of the evidence didnot deprive him of due process. U.S.C.A.Const.Amend. 14.

2. Habeas Corpus e=498

Failure of court to give limiting in-struction when it admitted evidence of pri-or offense which was relevant to one of thetwo sets of charges against defendant butnot to the other was harmless; court didgive adequate limiting instruction confiningevidence to the issue of identity based on acharacteristic method, jury's verdicts indi-cated that it had not misused the evidence,defense counsel, as a tactical matter, didnot want the court to mention certaincharges in the instruction, and deputy dis-trict attorney urged the jury to considerthe evidence only in relation to the chargesto which it was relevant.

3. Habeas Corpus e478

Defendant's trial was not fundamental-ly unfair because court refused to separatetwo sets of charges, even though evidenceof similar prior offense was admissible only

Circuit Rule 34-4 and Fed.R.App.P. 34(a).

PREVIEW OF THE COURT'S -DOCKET

Section: Reflections on the Recent Treatm t of theDeath Penalty by the Supreme Court

Article: Dead End, John TuckerArticle: The Rehnquist Rush to Execute, John TuckerArticle: The Harris Execution, Henry J. ReskePress Commentary

contrasting Bush's World War 1l record, experience inroreign affairs, and leadership in Desert Storm withClinton's lack of experience and alleged draft dodging.Republican consultants are adept at exploiting thecommander-in-chief issue. In 1988 Roger Ailes pro-duced an ad showing Dukakis riding in a tank, lookingsilly. The ad mocked the notion of Dukakis as comman-der in chief. It was devastating.

Is there a way Clinton might pull through? Yes, butdon't count on it. Clinton advisers note that Bush's neg-atives are high too. impling that Clinton is no worse offthan Bush. But Bush's low approval rating is based onhis performance as president. So long as the economyimproves, his rating will rise. Clinton's negatives arepersonal and harder to uproot. Clinton aides point alsoto Bush's success in 1988 in shedding his wimp image.But Bush was viewed more favorably once he became apresidential nominee-his wimp problem was largely aproduct of being vice president (a veep isn't his ownman). Clinton doesn't have this luxury. Nor can he face

his detractors the wayJohn Kennedy did in 1960. whe-nhe appeared before Protestant ministers in Houston.Who would Clinton confront? Gennifer Flowers? OpalEllis, the 84-year-old draft official who says Clinton mis-led his local draft board?

There are two lifelines for Clinton. One is for thecampaign to turn inexplicably into a riveting issuesdebate between Clinton and Bush. Clinton fared best inthe primaries when engaged with Tsongas in a debateof economic principles. Then voter concern about hischaracter dipped. If Clinton finds a strong, single issue.he might "get the focus off personality and character."says Wirthlin, the GOP pollster. It would have to be aneconomic issue more sweeping than the middle-classtax cut Clinton championed in the primaries. But if theeconomy slips into recession again. Clinton may stum-ble onto the big issue he needs. The other lifeline is aWhite House scandal. That would put Clinton's charac-ter problem in a different context. Absent a scandal oreconomic collapse, Clinton's a goner. *

Roger Coleman vs. William Rehnquist.

DEAD ENDBy John Tucker

On a March night in 1981 in the hardscrabblecoal town of Grundy, Virginia, Brad McCoyreturned home to find his wife, Wanda Fay,raped and murdered, her throat cut so deep

that her head was nearly severed from her still warmbody. Eleven years later Wanda McCoy's brother-in-law,Roger Coleman, waits in the Virginia State Penitentiaryto be executed for her murder. There is a good chancethe execution will take place on May 20, as scheduled.There is also a good chance that Coleman is innocent. Inthe legal atmosphere created by the Rehnquist SupremeCourt, however, he may never get a chance to prove it.

From the time he joined the Court, William Rehn-quist has campaigned to limit the scope of habeas cor-pus, and as the Court has changed, his efforts haveborne fruit. Over the past decade the Court has chippedaway at access to habeas corpus, accepting state proce-dural arguments it once rejected, limiting the right tofile successive writs as new facts or theories emerge, andholding that even the most compelling arguments maybe waived if they are not raised at the first opportunity.There are few more compelling arguments against this

JOHN TUCKER is a lawyer and free-lance writer in Virginia.

trend in this judicial reasoning than the case of thebizarre, chilling-and still mysterious-murder ofWanda McCoy.

From the discovery of McCoy's body, the investigationof her murder was less an inquiry into who was responsi-ble than an effort to find evidence to convict RogerColeman. There were few compelling facts pointing toColeman's involvement, but police believed he was oneof the few people McCoy would have admitted into herhouse at night. More important, four years earlier Cole-man had been convicted of attempted sexual assault.

At first, evidence against Coleman was hard to come by.No one could place him at the scene of the crime. andfour independent witnesses corroborated his near-per-fect alibi. However, by discounting the testimony of onewitness and ignoring the medical examiner's originalestimate of the time of death, there was a period of fifteenor twenty minutes in which Coleman could have enteredthe house, struggled with the victim, dragged her into aspare bedroom, removed her clothes, raped her, cut herthroat, stabbed her twice after she was dead, and madehis escape undetected through the front (and onlv) doorbefore Mr. McCoy came home to discover his wife's body.

continued on page 24

MAY 4, 1992 THE NE% REP SLiC 21

It was a thin reed. but when forensic tests indicatedthat sperm found in the victim's vagina came fromsomeone with blood type B (a type shared by Colemanand about 13 percent of the population). some smallspots of blood on Coleman's pants were reported to betype 0 (the same as the victim and about 45 percent ofthe population). and two pubic hairs found on the vic-tim were declared 'consistent' with Coleman's. theauthorities charged him with capital murder. Repre-sented by appointed lawyers who had never defended amurder case. Coleman was found guilty and sentencedto death.

viction and death sentence has begun to comeT he web of evidence that led to Coleman's con-

apart since his trial. If. as mineworker PhillipVan Dvke testified, he spoke with Coleman

miles from the murder scene at about 10:30 p.m., therewas no time at all for Coleman to have committed thecrime before Mr. McCoy arrived home. At trial the pros-ecutor argued that Van Dyke was guessing about whenhis conversation with Coleman ended. However, thepossibility that Van Dyke was mistaken was largely elimi-nated by a time card showing that he had punched in atthe mine at 10:41 p.m., exactly what you would expectif, as he testified. Van Dyke left Coleman at 10:30, wentdirectly to his job, changed clothes, and punched in.The prosecutor had Van Dyke's time card at the time oftrial, but it was not shown to the jury.

Other elements of the state's case are disintegratingas well. According to the prosecution, the major reasonColeman was a suspect is that he was related to WandaMcCoy and there was no sign of forced entry. What theprosecution did not reveal is that during the investiga-tion of the crime scene the police found a pry mark onthe McCoys' doorjamb. Close by the pry mark policefound and lifted a latent fingerprint. No report of thestate's effort to identify the fingerprint has been pro-duced. If it were Coleman's. the fingerprint would havebeen introduced at trial with great fanfare.

The most significant evidence that Coleman waswrongly convicted, however, emerged after Jim Mc-Closkey. a nationally known investigator, agreed tostudy the case in 1988, and Kathleen Behan, a younglawyer at Arnold and Porter, was assigned to it in 1990.McCloskey began his investigation with a visit toGrundy in the spring of 1988. It was McCloskey whouncovered the police report mentioning the pry markand fingerprint. He also scoured the area for witnesses,turning up a good deal of new information useful toColeman's defense, including a witness who says thaton the night of the murder Coleman's truck was notparked where it had to have been under the state'stheory. But McCloskey hit the jackpot when he inter-viewed Goldie Owens and Mrs. Bobby Ramey. Owens isthe mother-in-law of Roger Matney, a convicted felonwho testified that Coleman confessed to him whenthey were cellmates. After telling his story, Matney wasreleased from the remainder of a four-year prison sen-tence. Owens swears that Matney later told her his tes-

timony was false. Matney denies it.The Ramey home sits a few yards above the house

where Brad and Wanda McCoy lived, overlooking it.When McCloskey knocked on the door in 1988 andexplained that he was looking for information about themurder, Mr. and Mrs. Ramey, their daughter, and one oftheir sons, Donnie. were home. With the rest of the fam-ily chiming in from time to time. Mrs. Ramev told a storythat seemed odd. Yes, she said, she remembered thenight vividly. Donnie and his brother Michael had goneout to the movies. When they got home about 9:45.Donnie was angry because "that damn Roger Coleman struck is parked in my parking space." Then Michaelwent outside to bring in the laundry but quicklyreturned and grabbeda fireplace poker. shouting that aman was lurking under the porch. He ran back out. butthe man was gone.

Jim McCloskey was puzzled. but he knew two thingsfor sure. One was that Coleman's truck was not parkedin Donnie Ramey's parking space at 9:43-it was undis-puted that he was miles away at that time. The other wasthat the Rameys had not told their story to the police-if they had, it would have been used at trial to put Cole-man at the scene of the crime. And yet it seemed equallkunlikely that the Rameys would not have told their storvto the police if it happened. McCloskey was conincedthe Rameys were lying-but why?In 1990, two years after the Rameys talked to

McCloskey, Kitty Behan received an anonVMrOLLSreport that someone had admitted to McCov'imurder, and that the same person had tried to

rape several other women in the Grundy area. cIti-mately three women came forward and gave sworn affi-davits that Donnie Ramey had sexually assaulted them.(Ramey has not been charged in connection with any ofthese alleged assaults). One of the women, TeresaHorn, also swore that when she screamed and tried tofight Ramey off, he told her to "shut up, or I'll do youlike I did that woman on Slate Creek." Wanda McCoylived on Slate Creek.

Two years ago the swabs that were taken fromMcCoy's vagina were submitted to an expert to seewhether more sophisticated testing could identify oreliminate Coleman as the source of the sperm that wasfound. Like almost everything in this case, the resultswere surprising. Though it was not possible to obtain aDNA "fingerprint" identifying the source of the sperm,the expert did isolate three blood components known as"alleles." The bad news for Coleman is that two of themwere the same as his, and thus he could not be elimi-nated as the source of the sperm. Indeed, the stateclaims the test results make it even more likely that hewas the source. The good news is that there are only twoalleles in any one person's blood, so the sperm found in

McCoy's vagina came from at least two people. not justone.

Suddenly a lot of things began to make sense.McCloskey always believed there were two peopleinvolved in the crime based on crime scene pho-

24 THE NEW REPUBLIC MAY 4. 1992

tographs. Then too, there was sperm in. McCoy's rectumas well as her vagina. indicating she was both raped andsodomized, an unlikely feat for one man within the briefperiod when the crime had to have occurred. There wasalso verifiable evidence that Coleman left home thatnight expecting to go to work; was alone when he leftwork after his shift was canceled: was alone when he metand talked to Van Dyke: and was alone when he was seena few minutes before the state claims he went to thescene of the murder.

As McCloskey puts it. -If you ask why Roger wouldrape and murder his wife's sister, it doesn't make sense:and if you ask how he had time to commit the crime, Idon't think he did; but if you ask how Roger Coleman,after he was alone all night, recruited someone out ofthe clear blue sky to help rape and murder his sister-in-law. I say it's impossible.' McCloskey believes DonnieRamey and someone else killed McCoy and the Rameyfamily knows it. That's why they made up the story aboutColeman's truck and the man under the porch. Rameydenies it and has backed up his denial with an identifi-cation card that claims his blood type is A.

The next bizarre twist in the story came earlier thisyear, on Thursday, March 5. That day Teresa Horn metwith Behan and gave an interview to a local televisionstation about her claim that Donnie Ramey had tried torape her and confessed to the murder of Wanda McCoy.The next day her bovfriend returned home in the lateafternoon and found Teresa unconscious. Two hourslater she was pronounced dead. Preliminarily the doc-tors think she died of an overdose of some drug-whether self-inflicted or not may never be known.

At first it seemed that Coleman's last chance to sur-vive had been buried with Horn, but the curious cir-cumstances of her death renewed public concern thatsomeone other than Coleman, someone still at large,may have killed McCoy. More important, within a weekof Horn's death two new witnesses reportedly toldfriends that Donnie Ramey had admitted involvementin the McCoy murder. Behan and McCloskey are nowchecking out their stories in hopes they will be able toprovide affidavits the way Horn did.Is Roger Coleman innocent? With the legal and

investigative resources now available, an evidentiaryhearing before an impartial court should reveal thetruth. Except for one problem-there may not be

any hearing. For most of this century courts have exam-ined death penalty cases more carefully than others andcreated a system of appeals that would provide a dispas-sionate forum for reviewing convictions often obtainedby zealous authorities in the charged atmosphere of abrutal murder. This effort to avoid the irreversibletragedy of executing an innocent defendant has had twoopposing effects on the debate over the death penalty inAmerica. On one hand the effort to avoid mistakesinevitably causes long delays between conviction andexecution, a result that death penalty advocates bitterlydeplore. On the other hand this same care makes it farless likely that an innocent person will be executed

before the truth is discovered, thus allowing deathpenalty advocates to minimize their opponents' mostpowerful argument. the possibility of mistake.

Thus, although there are many examples of innocentmen and women convicted of capital crimes. some ofwhom came within a few hours of execution, there havebeen few if any executions of the factually innocentbecause the Warren Court provided state criminaldefendants with realistic access to federal review by writof habeas corpus. That record, however, is about tochange dramatically. The Rehnquist Court's reluctanceto interfere with state court decisions and its acceptanceof state procedural arguments in a manner eschewed byits predecessors mean that a case like Coleman's is par-ticularly vulnerable.

Last summer Coleman fell %ictim to the Court'sincreasingly skeptical approach to habeas corpus. Yearsago one of his appointed lawyers counted the time forfiling a document from the date an order was entered b.a clerk instead of the date it was signed by ajudge. Fromthat day on, Coleman's case has proceeded with the cer-taintyofa Kafka story. The Virginia Supreme Court heldthat the document was filed one day late, and thereforerefused to consider Coleman's appeal on its merits.Next, Coleman filed for habeas corpus in federal court.but despite a 1963 Supreme Court decision to the con-trary, a federal judge held that because the delay hadprevented Coleman from obtaining a decision on themerits of his appeal, his claims would not be considered.Last year Coleman's case reached the Supreme Courtitself, and in June the Court overruled its 1963 decisionand held that because of the one-day delay in statecourt, Coleman was not entitled to a hearing in federalcourt.

S o Coleman. waits in his cell on death row, won-dering whether somehow his lawyers will find ajudge willing to make the state wait a little longerbefore killing him in order to try to find out who

really murdered Wanda McCoy. His only hope, short ofthe politically charged realm of executive clemency, isthat some court will decide that the evidence of hisinnocence is so strong that fundamental justice requiresa hearing. But with the Rehnquist Court, even inno-cence may not be enough. That question is before theCourt this term in the case of Leonel.Herrera, whoseclaim of innocence, supported by the affildait of an eye-witness to the crime, was rejected by a lower court onthe ground that innocence, even if undisputed, pro-vides no basis for a federal court to interfere with theexecution of a state prisoner. Since a majority of the jus-tices voted against even hearing Herrera's case, itappears that unless someone's mind is changed, thatdecision will be upheld.

With the decision in the Coleman case and the likelyresult in Herrera, the Rehnquist Court's triumph overforty years of American death penalty jurisprudence issubstantially complete. On May 20 Roger Coleman maywell become the first innocent victim of that triumph.He will surely not be the last. *

MAY 4, 1992 THE NEW REPL BUC 25

The RehnquistRush to ExecuteShould States Get the Tnal Say?

By John Tucker

HE EVENTS leading to the execution of RobertAlton Harris in California's gas chamber at dawnlast Tuesday dramatically focused public atten-

tion on the final stages of Chief Justice William Rehn-quist's long crusade to limit the power of federal courtsover the execution of prisoners sentenced to death bythe states.

While public attention was focused on the drama in-side San Quentin and the concurrent drama in Wash-ington as the Supreme Court dissolved lower courtstays of execution as fast as they could be entered, abroader and ultimately more significant story was gath-ering force in less visible cases in Virginia and Texas.

No one seriously contended that Harris was innocentof the murders for which he was convicted, and in theend the question was only when and how he would beexecuted. But for Roger Coleman in Virginia andLeonel Herrera in Texas, for hundreds of other deathrow inmates across the country-and for thousandsmore who will be sentenced to death in years tocome-the issues are quite different. Simply stated,they are these:w Whether the federal courts will continue to play asignificant role in protecting defendants from the unfairtrials and erroneous convictions that occur with sur-prising frequency in the emotional and political crucible

See KECUTION, C4, COL IJohn Tudcer is a lawyer and writer who lives nearWilfiauurg, Va. He has participated in and writenabout death penalty camwwndy ~ s... 9do O 4P

Rush to ExecuteEXECUTION, From Cl

created when someone is prosecuted for aheinous murder.a Or whether the courts instead will with-

draw from the process and leave the ac-cused to the not-so-tender mercies of statecourt judges and governors who may in turnbe subject to the pressures of an arousedelectorate that wants someone punished forthe crime.Federal review of state criminal cases

occurs primarily under the federalhabeas corpus statute, which empow-

ers federal courts to order a state to releasea citizen held in violation of due process andother constitutional protections. If a defen-dant can show that a coerced confessionwas used against him, for example, a federalcourt can order the state either to retry himwithout the confession or release him out-right.

Beginning in the early 1950s, the Su-preme Court substantially broadened theavailability of habeas corpus to providemore protection against unfair state courttrials. But for the past two decades, andwith increasing success, Rehnquist hascampaigned in opinions and speeches to lim-it federal court use of habeas corpus to re-view state criminal cases-especially indeath penalty cases.

In recent weeks, considerable attention

has been focused on Roger Coleman. aSouthside Virginia coal miner convicted ofmurder and scheduled to die on May 20.Coleman's lawyers have developed not onlyexamples of unfair government conduct athis trial but also substantial evidence thathe is innocent. But thus far Coleman hasbeen unable to obtain a federal hearing onhis claims because in 1986 one of his ap-pointed lawyers mistakenly filed a paperone day late. Last term, the Rehnquistcourt held that the lawyer's mistake re-quired dismissal of Coleman's petition for awrit of habeas corpus in federal court. Cole-man's lawyers, believing the decision leftopen the right to a hearing on a substantialclaim of actual innocence, filed a new fed-eral petition last Wednesday.

But whether Coleman ever gets his hear-ing may depend on two questionable as-sumptions: that his lawyers can obtain astay of execution or a commutation to keephim alive until the Supreme Court decides acase involving Texas inmate Leonel Her-rera; and that the court will hold in thatcase that the Constitution requires consid-eration of a substantial claim of innocencebased on evidence uncovered after the judg-ment of conviction becomes final.

Leonel Herrera was convicted and sen-tenced to death for the 1981 murder of twopolice officers, primarily on the basis of eye-witness identifications and proof that thekiller was driving a car owned by Herrera.Three years later, in a privileged conver-

sation with his lawyer. Leonel's brotherRaul allegedly confessed that he. notLeonel. killed the policemen.

The lawyer's subsequent affidavitpresented this account: Raul stated that hehad driven his brother's car to South PadreIsland for an appointment involving drugsmuggling that his brother was too ill tokeep. Raul said the first policeman killedwas a participant in the drug ring, and thekilling resulted from a dispute between thetwo of them: the second officer was killedwhen he stopped Raul for speeding as hefled the scene of the first murder. (The sec-ond officer signaled his identification ofLeonel as the killer on his hospital death-bed, but other witnesses have testified thebrothers look much alike.)

According to his lawyer's affidavit, Raulsaid he and Leonel had always believedLeonel would ultimately be exonerated,since he was in fact miles away from the4scene of the crime. Several weeks aftermaking his confession, Raul himself wasmurdered during an argument with anotheralleged member of the ring-and the stagewas set for ultimate appeal to the SupremeCourt.

Leonel's appointed lawyers learned ofRaul's confession and in late 1990 suc-ceeded in persuading the lawyer who hadheard it-a former Texas state judge-thatin light of Raul's death and the imminentexecution of Leonel, he was released fromthe obligations of the attorney-client priv-ilege and should reveal Raul's statement.The courts, however, were not persuadedby the lawyer's hearsay recitation of hisdeceased client's statement.

Then. Iast December, Raul Herrerason. Raul Jr. came forward. Raul Jr. wasyears old in 1981. According to his statoment. his father had taken him along on thtrip the day of the murders, and he had wiinessed both killings. Raul Jr. swears that hifather killed both police officers and that hiuncle Leonel was not even in the car.

hile the vast majority of Americannow favor the death penalty, presumably most of us would oppos

executing an innocent man for his brother'crimes. And we probably would be shockeito learn that our legal system provides nprocedure for considering evidence of innocence once a conviction is final, even ithe result is to execute an innocent manAnd yet that is the position the state court!have taken in both Texas and Virginia. ancthe lower federal courts have said the samething in the Herrera case. Many legal ob'servers expect the Rehnquist court to af.firm that view when it decides the Herreracase next fall, leaving Leonel Herrera andRoger Coleman-if he's still alive-withoutany court to consider the substantial evi-dence that they are innocent.

For most of the men and women on deathrow now and in the future. however, anoth-er case from Virginia poses an even greaterthreat to their chance of obtaining mean-ingful federal court review of their convic-tions. Since at least 1953, the SupremeCourt has held that in considering claimsthat a state prisoner was convicted in vio-lation of the Constitution, federal courts areentitled to reexamine the correctness ofstate rulings on mixed questions of law andfact as well as pure questions of law. Forexample, if the question was whether a po-lice officer struck a defendant while ques-tioning him, and there was evidence on bothsides, the federal court is required to deferto the state court finding because that is apure question of fact. But whether a beatingresulted in sufficient coercion to violate thedefendant's constitutional rights is a mixedquestion of law and fact. As such, the fed-eral court would be entitled to review denove-that is to say, decide for itself with-out regard to what the state court decided.

The vast majority of federal reversals ofstate court convictions involve this kind ofmixed question of law and fact If the stan-dard were changed to require federal courtsto defer to the state court finding on suchmixed questions, meaningful federal reviewof state court convictions would cease to ex-ist in most cases. It is precisely this resultthat Rehnquist has sought to achieve in lob-bying Congress to change the habeas cor-pus statute.

Last fall. after efforts in Congress toamend the statute again failed, the SupremeCourt agreed to hear an appeal by the stateof Virginia in a routine larceny case. Theconviction in that case had been overturnedby a federal court because it found that theundisputed evidence was insufficient to sup-port the verdict and the conviction there-fore violated the Constitution's due processclause. (Whether evidence is sufficient tosatisfy due process is a mixed question oflaw and fact.)

Although neither side had raised the is-sue, the Supreme Court asked the parties toprepare briefs on the question of whetherfederal courts should now be required todefer to state court findings in such cases.The Court has not yet ruled on the matter,but a majority decision to overrule 40 yearsof precedent and congressional acceptanceof the court's prior interpretation of thehabeas corpus statute would be judicial ac-

13 tivism as blatant as anything charged to the9 liberal members of the Warren Court,

According to statistics compiled by Prof.e James Liebman of Columbia Law School.t- the potential for error inS the kinds of ex-3 treme cases that result in the death penaltyS is so great that between 1976 and mid-

1991, approximately 50 percent of all caseswhere the death penalty was imposed weres reversed by the state reviewing courts. anda nother 20 percent were reversed by a fed-e ral court in habeas corpus proceedings. Ofcourse, not all of these reversals occurredbecause ihe defendant was not guilty: in themajority, the defendant was retried and re-

f convicted or pleaded guilty. and not infre-iquently he was again sentenced to deathafter a new trial or sentencing hearing.,B ut there ire cases. some well known

u n some not, where the hearing orretrial ordered by a reviewing court

or simply the passage of time has resultedIin the discovery of evidence that a man or

woman who was sentenced to die was infact innocent.

In Illinois, Lloyd Eldon Miller came with-in a day of execution numerous times duringthe 11 years he spent on death row. Finallya federal court ordered a new trial when itWas revealed that a pair of "blood-stained"undershorts the prosecutor had displayed tothe jury were stained with paint, as theprosecutor knew from a laboratory reporthe had concealed from the defense. There-after, it was shown that his confession wascoerced and that the testimony of the onlywitness against him was false, and Millerwas released.

In Florida in 1983. Joseph Brown was 15hours from his date with the electric chairwhen a federal court stayed the executionto consider his clam that the prosecu~torhad knowingly used false testimony to se-cure his conviction. Three and a half yearslater, his accuser recanted, and the recanta-tion was corroborated by other witnessesand a lie detector test. After 13 years ondeath row, Brown was finially released andall charges against him were dropped.

Similarly, in the case which gave rise tothe widely praised documentary film 'MeThin Blue Line.* Randall Adams was re-leased by the state of Texas in 1989 after13 years in prison when there could nolonger be any serious doubt that the murderfor which he had been sentenced to die wasin fact committed by his accuser.

Also in Texas, Clarence Brandley wasreleased in 1990 after 10 years on deathrow. In 1987 Brandley had been six daysaway from execution for murder when hislawyers obtained a stay after an eyewitnesscame forward ind named the real killers.After an evidentiary hearing, a Texas judgeheld that Brandley had been the victim ofperjured testimony and misconduct by thepolice, the prosecutor and the trial judge.Even so it took another three years and twoepis!odes of "60 Minutes" before Brandleywas finally released.

Robert Alton Harris. executed last weekin California, was not innocent, but. LloydMiller and Randall Adam and the otherswere, It is doubtful that any of them wouldbe alive today if the courts had applied therules that Chief justice Rehnquist is at-tempting to invoke in the handling of deathpenalty cases in the future. His determina-tion to limit the availability of habeas corpusand remove the federal courts from mostdeath penalty decisions is certain to have anenormous impact on the 2.594 prisoners ondeath rows across the country, some ofwhom are almost certainly innocent.

C)

4i)

.0C)

~U)

*m

Cl)9-4

Abee

eg

S

IIIe

CbS q

384 04) 0.)

4) ~ 4

Sc ~

4) mu 4)

cs

:4)

uf ol3- cl

-0

4 r.) cdA.cbo

PC

igbAg

abeg

ago2

.: Z

sesa4)

bfl4E

to .

2- 0 >,

0m w

S 40A .4

. 4)4) .

4) ..go soe

I DEVELOPMENTS

Courts Battle Over Harris ExecutionAn impatient Supreme Court orders an end to last-minute stays by 9th Circuit

T he off-again, on-again executioiof Robert Alton Harris in Califor

nia represented everything that observers on both sides of the issue sa,is wrong with the death penalty irAmerica.

In the hours before the execution, Harris' attorneys engaged in .frantic, no-holds-barred search for Estay that finally resulted inan angry and unprecedentedrebuke from the U.S. Su-preme Court.

Death penalty propo-nents and opponents-albeitfor different reasons-agreedthat what went on in the lasthours before the cyanide tab-lets were dropped into anacid solution was both wrongand typical.

Orders Lifted StaysThe Supreme Court is-

sued its first order in thecase on April 21 at 2:20 a.m.(all times are Eastern Day-light Time) vacating a stayissued by an undisclosedjudge on the 9th U.S. CircuitCourt of Appeals.

The stay was to con-sider claims that Harris' trialattorney had failed to obtainrecords showing his clientsuffered from brain damageand that the state had failedto disclose that Harris'brother, a witness againsthim, had failed a polygraphtest.

At 6 a.m., an increas-ingly frustrated Court, whichhad seen three appeals byHarris in the 13 years afterhis conviction, issued an-other order lifting two stays.Both had been granted in afederal class action lawsuitclaiming that California'smethod of execution, by cya-nide gas, is cruel and unu-sual punishment under the EighthAmendment.

One stay had been issued by 109th Circuit judges, eight of themCarter appointees. The other wasissued by an undisclosed appealsjudge upon the request of HarriiACLU attorney, who was worriedthat procedural rules permitted onlyone judge to issue the stay.

In its one-page ruling, the Courtsaid: "This claim could have beer,

26 ABA JOURNAL / JULY 1992

brought more than a decade ago.There is no good reason for thisabusive delay. which has been com-pounded by last-minute attempt.z tomanipulate the judicial process.

Justice John Paul Stevens,joined by Justice Harr- Blackmun,added some ire of his own with asix-page dissent.

In the hours before the executionof Robert Alton Harris (above), hisattorneys engaged in a frantic, no-

holds-barred search for a stay.

Afterdescribing in graphic termswhat happens to someone who iskilled by cyanide gas, the dissenterssaid. "The barbaric use of cvanidegas in the Holocaust. the develop-ment of cyanide agents as ch,:micalweapon . our ciontemporary Under-standing of execution by lethAl gas.and the development of less cruelmethod nofexecution all demonstratethat execution by cyanide gus isunneesrianlv cruel

However, this was not the lastword. That came at 8:45 a.m. whenthe Court vacated yet another stay.It had been issued by 9th CircuitJudge Harry Pregerson so that thegas chamber lawsuit could be con-verted from a civil rights action to ahabeas petition listing reasons why

1 the claim was not raised earlier.In its final order, the

Court sent an unusual re-buke to the appeals court:"No further stays of RobertAlton Harris' execution shallbe entered by the federalcourts except upon order ofthis Court."

Harris was hustled tothe death chamber within 15minutes of the last Courtorder and was dead in an-other 20.

He was executed for kid-napping and murdering two16-year-old boys so that heand his brother could usetheir car for a robbery. Atthe time, Harris was on pa-role for the beating death ofa neighbor.

Questioning the CourtThe episode has raised

concerns, not only amongthe expected partisans andopponents of executions, butalso among the judiciary.Within days, two 9th Circuitjudges, who had joined thestay to consider the gas cham-ber's constitutionality, criti-cized the Supreme Court.

Judge John T Noonan,in a carefully worded opin-ion piece in The New YorkTimes on April 27, suggestedthat the Supreme Court'sposition is that the lowercourt must "commit treasonto the Constitution and ab-stain from exercising its juris-diction" in such cases.

"The Court has resolved thenational ambivalence and decidedthat it is intolerable for a federalcourt to delay an execution to decidea constitutional question," wroteNoonan, a Reagan appointee.

"Robert Alton Harris was acasualty of this decision. Was theConstitution, too?"

His colleague on the circuit,Judge Stephen Reinhardt, issued hisown broadside in a speech at Yale

s:P It Es Sm Rtnv"as'*

Law School. An Associated Pressstory quoted the judge, a Carterappointee, as saying, "I think it isclear that the constitutional rights ofindividuals are no longer of para-mount importance to the Court."

With a note of resignation,Stephen Bright, of the Southern Cen-ter for Human Rights, said whathappened to Harris is typical indeath penalty litigation. He saidhabeas petitions often charge thatkey information-such as the evi-dence Harris was afflicted with fetalalcohol syndrome-was not presentedto the jury.

He acknowledged that in deathpenalty cases there often is a flurryof activity as the execution approachesbecause issues come into focus.

Bright denied that the last-minute attempt to delay Harris' exe-cution was an abuse of the legalsystem, noting that 10 judges of the9th Circuit apparently agreed. Hecharged that the Supreme Court'srole was yet another sign of its"growing impatience" with the paceof executions.

Harris' attorney, Michael Lau-rence, the director of the ACLU ofNorthern California Death PenaltyProject, said his challenge to the gaschamber was not raised 13 yearsearlier because cyanide executionsmay not have been unconstitutionalthen. They are now, he asserts,under the "Eighth Amendments evolv-ing standards of decency."

He also said he first filed thegas chamber class action as a federalcivil rights lawsuit because 9th Cir-cuit precedent requires it when con-ditions of punishment are challenged.

But Laurence thinks the Su-preme Court was scolding him in itssecond order for filing the civil rightssuit-instead of a habeas petition-in its belief he did so to avoid, limitson successive habeas claims estab-lished in an April 1991 SupremeCourt case, McCleskey v. Zant.

That is why Laurence tried toconvert the suit to a habeas petition,in which he hoped to show his failureto raise the claim earlier was due tochanging constitutional standardsrather than inexcusable neglect.

A Berserk Circuit?Kent Scheidegger, legal director

of the pro-death penalty group Crim-inal Justice Legal Foundation inSacramento, Calif., has a differentinterpretation of the events. He be-lieves that the "9th Circuit wentberserk."

"The claim that the gas cham-ber is cruel and unusual punishmentfiled 13 years after Harris was sen-

tenced to die in the ga i chamber is aperfect example of an abuse of theprocess." he said.

He singled out Pregerson forspecial criticism. saying it was clearfrom the Supreme Court's secondorder that it considered the EighthAmendment claim to be too late.whether raised in a civil or habeascase. The judge. in Scheidegger'sview, disregarded the Supreme Court'sclear and controlling precedent whenhe issued the fourth stav.

He also disagreed with Lau-rence's claim that the Eighth Amend-

ment had "evolved since Harris wassentenced. "Nothing much haschanged in the Eighth Amendmentrecently. It'S one thing to say ourstandards are different than twocenturies ago. but to say they'vechanged in the 13 years Harris wason death row is absurd.

He said the last-minute activitycould be avoided with a law thatguarantees one run through the ap-pellate system and no further claimsother than compelling new evidencethat the defendant didn't commit thecrime. -Henry J. Reske

"CCt

-1ii

a,

'-0

You go where the business is. Stay an extra day. Add a cityYou can't be held back by a preset limit on some bankcard.*

You just don't worry about things like that.

THE GOLD CARD.THE AMERICAN EXPRESs'GOLD CARD.

Call 1-800-395-GOLD, to apply

Court to DecideIf New Data Can

aExecutionsDAVID G.SAVA

.IMES STAk.

WASHINGTON-After an ex-traordinary series of middle-of-the-night phone calls, the SupremeCourt at the insistence of fourjustices agreed early last Wednes-day to rule on whether the Consti-tution forbids the execution of aconvicted murderer in Texas whomay be innocent.

But, at the same time, the highcourt turned down an appeal for astay of execution of the man, whoselawyers say can be proved notguilty by new evidence. And, had itnot been for the intervention oftwo state judges, the executionwould have been carried out withina short time.

The blunt legal question camebefore the justices in the hoursbefore Leonel E. Herrera, a TexasDeath Row inmate, was scheduledto die for the murder of a policeofficer in 1981. Little notice wastaken Wednesday of the justices'actions outside of Texas.

In recent weeks. Herrera's law-yers had compiled strong evidencethat his brother. Raul. actuallycommitted the murder. The con-victed man's nephew, Raul Herre-ra Jr., who was 9 at the time of thecrime, says in a court affidavit thathe saw his father, not his uncleLeonel, kill the policeman.

But Texas state attorneys de-scribed this new evidence as a"ploy" to stop the execution. Theyinsisted that Herrera should havedied by lethal injection at dawn lastWednesday.

On Tuesday afternoon, the U.S.5th Circuit Court of Appeals hadlifted a stay of execution grantedearlier by a federal judge. Withoutruling on the validity of Herrera"

. Please see COURT, Al

Continued from Alflew evideice, the three-judgepanel said that it was too late toraise such a claim.: "Herrera's claim of 'actual inno-cence' presents -no substantialclaim for relief" under federai law,the appeals court ruled.

.When Herrera's lawyers filed amidnight appeal at the SupremeCburt, they found the justices split,,5:to 4. on the issue. Because thehigh court decides issues of law,'not factual disputes, Chief JusticeWilliam H. Rehnquist has insistedthat the court avoid second-guess-ng decisions made by juries and

state judges. Joined by Justices-Antonin Scalia, Byron R. White.'Ahthony M. Kennedy and ClarenceThomas, Rehnquist refused toblock Herrera's execution.*. nder the high court rules, itA-) takes five justices to grant astay. However, it takes only fourjustices to grant a "petition forcertiorari," whereby a case is fullygrgued and decided by the Su-preme Court.

Four justices-Henry A. Black-pnun, John Paul Stevens, SandraDay O'Connor and David H. Sou-er-said that Herrera's execution

should be blocked. They also notedthat his case raised an importantlegal issue that had not been decid-id. Does the Constitution requirethat 11th-hour evidence of "actualinnocence" be fully considered be-

granted Herrera a stay of executionso that the new evidence could befully considered.

.But Barton persuaded the 5thCircuit Court to lift that order."The rule is well-established thatclaims of newly discovered evi-dence" are not subject to federalreview at this late stage in the

fore an execution proceeds?IWhen the court clerk informed

Herrera's lawyers of the justices'split decision, they quickly typedup a "petition for certiorari" andfaxed it back to the court about 4a.m. Wednesday.

The court then issued an unusualorder. Herrera's petition wasgranted a full review by the court.But the five justices reiterated thatthey would not block Herrera'sexecution so that~he would be alivewhen his case is heard in the fall.

About 4:30 a.m., Robert McGlas-son, Herrera's attorney in Austin,Tex.. was told that state prisonofficials wanted to proceed withHerrera's execution, despite thehigh court's willingness to hear hislegal -case. But two judges on thestate court of criminal appeals.when told of the Supreme Court'saction, agreed to issue an orderstopping the execution.

Supreme Court spokeswomanKathleen Arberg confirmed theunusual sequence of events. Whenthe. justices were called at home,they continued to split, 5 to 4, onthe issues raised by Herrera, shesaid.

Quite often, the justices arecalled at home to vote on emergen-cy orders, including requests toblock an execution. But rarely doesthe court officially grant a fullreview of a case in other than itsregular conference session on Fri-

process, the Texas state lawyersargued, relying on recent SupremeCourt rulings narrowing the basisfor federal judges to get involved instate death penalty cases.

In one of several cases on theissue, the high court ruled last yearthat state Death Row inmatesshould have only one chance to

day morning.Herrera's lawyers, who recount-

ed their all-night struggle to stoptheir client's execution. said thatthey were shocked and dismayedby actions of the Texas state attor-neys and the federal judges in-volved.

"We were embroiled in a . . .fiasco of litigation unparalleled inour combined experience," saidMcGlasson of the Texas ResourceCenter, which represents murderdefendants. "In the view of theselife-tenured federal judges, inno-cence was, the state had argued,irrelevant."

Attorneys for Texas could notIbe reached for comment late

Friday or Saturday but in courtpapers, they did not concede thatLeonel Herrera was innocent. In-deed, they argued that the evi-dence against him was over-whelming. He had .een seen byeyewitnesses at the time of themurder and had br :n identified asthe killer by the victim before hedied. Joan C. Barton, an assistantstate attorney general. told theappeals court last Monday.

But she also argued that it wastoo late for the federal courts totake a new look at the evidence inthe case.

U.S. District Jucm Rcardo H.Hinojosa of McAllen. Tex., had

appeal their convictions in thefederal court system. Herrera'scase already had been to the Su-preme Court once before on a legalissue.

The 5th Circuit Court agreed.with the Texas officials 'Tuesdayafternoon, setting the stage for themiddle-of-the-night drama.

-x *c , Q. ag

,~ G

''le85

SA -

g -. 4f ? MS.

Z8 t a

Fe-;-' s1 8u

a . 33 a toaa g~

0 ~ iIE~-go~

C. 1 ie5 9 Z

:VZE a;a.

A- VA

go =

Ea.

4p ,

Fed up with death-row petitionsHigh court's unusual order shows its impatience

By Aaron EpsteinINQUIRER WA.HINGTON HUREAU

WASHINGTON - The execution of RobertAlton Harris yesterday provided the mostdramatic demonstration yet of the conserva-tive Supreme Court's mounting impatiencewith last-minute petitions from death row.

Awakened through the night by four at-tempts to put off Harris' execution, the jus-tices issued an apparently unprecedentedorder forbidding any more federal courtdelays. Harris was pronounced dead 36 min-utes later.

"To my knowledge, it's never happenedbefore." said University of North Carolinalaw professor Jack Boger, who handled deathpenalty cases for the NAACP Legal DefenseFund from 1978 to 1990. "It's a more authori-tarian act of the Supreme Court than I'veever seen."

Even before Harris died at dawn in SanQuentin's gas chamber, his case had come tosymbolize a criminal appeals system goneawry. It is a system that has consumed anaverage of six or seven years from sentenceto execution..Many legal experts argue that a lengthy

process of federal review is necessary touncover injustices. During the last 15 years,federal judges have found serious constitu-tional errors in nearly 40 percent of all deathpenalty. cases brought before them.

But to families of victims of crime, most

prosecutors and a majority of Supreme Courtjustices, the system encourages an irrationalmaze of piecemeal, chaotic and seeminglyendless appeals.

Nearly 14 years have passed since Harriskilled two San Diego high school boys. Hewas convicted and sentenced to death 13years ago. But he remained alive while hisresourceful lawyers carried numerous issuesthrough 75 state and federal court reviews,including four separate appeals through thefederal courts up to the Supreme Court.. For the last three years, the justices havebeen cracking down on the power of federaljudges to upset state convictions.

In a battle of faxed messages on the finalnight of Harris' life, the justices receivedfour requests from California Attorney Gen-eral Daniel E. Lungren to cancel successivestays of execution obtained by defense law-yers from the Ninth U.S. Circuit Court ofAppeals in San Francisco.

At 6 a.m. Eastern time yesterday. the jus-tices voted 7-2 to nullify the second and thirdstays with a blistering attack on Harris' de-fense lawyers for an "obvious attempt atmanipulation."

Harris' claim - that his execution by le-thal gas would be cruel and unusual punish-ment, in violation of the Eighth Amendment- "could have been brought more than adecade ago," the court majority declared inan unsigned opinion.

"There is no good reason for this abusivedelay, which has been compounded by last-minute attempts to manipulate the judicialprocess."

Justice John Paul Stevens, joined by Jus-tice Harry A. Blackmun, dissented. Stevens,recalling the "barbaric use of cyanide gas inthe Holocaust," cited the conclusions of nu-merous medical and legal experts that execu-tion by cyanide gas is "extremely and unnec-essarily painful."

An hour and 15 minutes later, at 7:15 a.m..the justices received notice of the fourth -and final - stay of execution from the NinthCircuit.

This time, Judge Harry Pregerson, ap-pointed to the appeals court by PresidentJimmy Carter, had authorized a one-day de-lay to permit Harris' lawyers to present "un-exhausted claims" to the California SupremeCourt.

At 8:45 a.m., the frustrated court majoritycalled a halt, declaring: "No further stays...shall be entered by the federal courts exceptupon order of this court." Stevens and Black-mun again disagreed.

The lethal gas was released in the chamber20 minutes later; Harris died at 9:21 a.m. (6:21a.m. Pacific time).

"The message to defense lawyers has beenclear for some time: If you have Ireasonablelclaims, you'd better put them in early andnot at the last minut-," Boger said.

Bush crime billstirs habeas fight

PEALS, from 1-EPrank v. Mangum, refused to helpIAlO M. Frank, a Jewish man foundguilty of raping and killing a young The Bush billCrsin woman In Atlanta. .

Despite evidence that an antiSe- Would bar federalmitic mob bad prejudiced Frankstrial, the high court refused to hear appeals by manyhis claims because they had alreadybeen denied by Georgia courts after on death row..A full review.""-"- t o l

Later it was disclosed that the mob. CritiCS say it woulddominated atmosphere had fright.u h l vnu isened away a witness able to testify t uphold even unjustFrank s innocence. By then, it was toolate. Frank had been executed. State ourt

The administration's proposed re oform of habeas corpus, Curtin told convictioRs.the Senate Judiciary Committee, Jack Carlton House"might well be the Leo M. Frank bill Lawyers "too busy" to prepare case-a bill to make the discredited rule

'and the barbaric result of Frank v.Mangum the:! law of the United-. they undermine the integrity of the der the prisoners brought into court.

,States." .s. . - entire criminal justice system." ., where they could challenge their.vrBut.administration officials, Chief :.. John A. Collins. who .directs a. confinementJustice:William H. Rehnquist, hi ,lcrime victims' organization in IntheUnitedStates.federalhabeas

rconservative goleagies on the So. ,Springfield, Va., summed up the case corpus has been widely used not to-preme Court, most prosecutors and. for the victims' families in a recent decide the guilt'or innocence of a[the families of victims of crime take ,Senate appearance* . defendant, but to' be certain thatva far different view of habeas corpus. : "Justice aplenty for the killer, with even the guiltiest., most depraved-'!iTo them, habeas corpus is a consti. delays, continuances. reviews, stays, killer gets fair treatmentutional. guarantee jgone. out of ,tests, hearings, examinations. re.'.1 The purpose of federal review is toback, an extraordinary maze of re hearings, appeals and petitions. determine whether 'state proceed-

petitive, precemeal' chaotic and . "For us, the victims, neglect. un- ings - often overseen by electedseemingly endless appeals 'certainty, waiting, frustration, more judges closely tied to their communi-

-They see457 convicted murder- waiting. Injustice and a growing ties-were, In the words of the greaters on death row filing 13,000 habeas sense of despair." ''. jurist Oliver Wendell Holmes, "morepetitions a year In a convoluted sys Collins has bad a long wait of his than an empty shel"tem in which only 146 killers have own. His daughter was raped and But state courts have Improved sig.been executed since the Supreme murdered in 1985. The convicted nificantly in recent decades, andCourt restored the death penalty in killer, having completed four years state judges resent implications that197&..........:r.....of appeals in state courts, is. just they cannot protect the constit*-Pi ales executed in 1988 the beginning his federal appeals. tional rights of criminal defendants.

average time from sentence to execu- "What we are trying to do," said Still, significant constitutional er-tion was six years and eight months. White House chief of staff John H. rors continue to be uncovered in I" It has been 13 years since Robert Sununu, "is to make sure that some. federal courts. In 1989, when theN"Alton Harris killed two San Diego thing that is a principle of protection Ninth U.S. Circuit Court of Appeals Ihigh school boys, shooting one of the; does not become a mechanism for overturned a Montana death sen-boys as he prayed for;his life - and ' unlimited procrastination. ... It's tence, Judge Stephen Reinhardt ob.

tthen finished the victims' half-eaten .where the Supreme Court is headed." 'served.''hamburgers: V Indeed it is. .t:.: * ' ' "The mockery ofourcriminal jus.,c" Harris has remained aliveon death *a <Rehnquist: and. .the other high tice system lies not in repetitive fed-':'row' while his resourceful lawyers court conservatives did not wait for eral review but in the persistent dls.carried -various issues through .75.. legislation. They have placed new regard by our Istatel courts ofstati and federal court reviews, in.. limitson federal habeas corpus three fundamental constitutional rights."cluding four separate appeals to the times in the last three years. '' "Some inmates have gone to theirSupreme Court ..- £ t . . In 1989 and 1990 decisions, they" deaths despite the existence ot clear'.

14 Now after coming within days of made it clear that Inmates may not constitutional errors." said Ameri-execution at Sen Quentin, Harris is take advantage of new constitutional can University's Robbins. "We knowawaiting word from afederal appeals rulings, Issued after their convic that, because their co-defendantspanel in San Francisco on two new., 'dons became final In state courts. In won reversals. There are at' leastissues. including alleged perjury by April they closed the doors to most three cases like that.".........a celmate." . ',' , . prisoners seeking to challenge the,' In one of them, Rebecca Machetti

Y And there is the case 'of William constitutionality of their convictions masterminded the murder plot andAndrews, who forced his victims to,'. a second time in federal court. ber husband. Tony, fired the shots.'drink' Drano in a stereo store in * The latest ruling predicted Justice Both were convicted and sentenced3Ogden,' Utaf. 17 years ago. He has Anthony M. Kennedy,. "should cur* to death. ' .,

*been on death row ever since, while, tail the abusive petitions that in re. But on appeal in the federal courts,his sentence has been reviewed 27 cent years have threatened to under. Rebecca Machetti's lawyers succas.times - and there is "still no end in mine the integrity of the habeas- fully argued that the jury system insight." complained Sen. Orrin G. corpus process." -. . . .Bibb County, Georgia, systematicallyHatch (., Utah). p - Habeas corpus. which Alexander ' excluded women. She got a new trial

"-When society promises to punish' Hamilton called the greatest per., and was sentenced to life imprison-:,by death certain criminal conduct, sonal liberty of all, has Its roots in ment.

and then the courts fail to do so," English history. When English kings Tony Machetts lawyers could,Rehnquist-has written., "the courts ...threw prisoners into dungeons,, have raised the same issue. but did

1not only lessen the deterrent effect judges used writs of habeas corpus not do so until it was too late. He wasof the threat of capital punishment. (literally. "to have the body") to or- executed.

0.

b0

0D

0

00C0

o aco -Ox

30

5,s 3

" W ~ c

ji A,

3d' a

.o - ~

03

V2

.1wi

L)

I