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United States v. Sampson

United States District Court, D. Massachusetts

November 8, 2014


For Pretrial Services, Notice: Pretrial Services, LEAD ATTORNEY, U.S. Pretrial Services, Boston, MA.

For USA, Plaintiff: George W. Vien, LEAD ATTORNEY, Donnelly, Conroy & Gelhaar, LLP, Boston, MA; Mark T. Quinlivan, LEAD ATTORNEY, United States Attorney's Office, Boston, MA; Dustin Chao, Zachary R. Hafer, United States Attorney's Office MA, Boston, MA; Michael S. Warbel, U.S. Department of Justice, Washington, DC.






A. The Court's Equitable Authority in § 2255 Proceedings

B. 18 U.S.C. § 3593(c)

C. Constitutional Issues Implicated by Sampson's New


D. Federal Rule of Criminal Procedure 12.2


A. Sufficiency of Sampson's Rule 12.2 Notice

B. Updated Notice and the Fire-walled Attorneys

C. The Parties' Examinations of Sampson

1. Sampson's Examinations

2. The Schedule Concerning the Parties' Examinations





This court's decision to grant defendant Gary Sampson's petition pursuant to 28 U.S.C. § 2255 and vacate his death sentence because of juror misconduct was affirmed by the First Circuit. As a result, a new sentencing hearing must be conducted to determine Sampson's sentence and conclude this § 2255 proceedings before this court.

In preparation for that hearing, a series of related issues have emerged concerning Sampson's Fifth and Sixth Amendment rights, Federal Rule of Criminal Procedure 12.2, the report of the Bureau of Prisons (" BOP" ) Examiner concerning Sampson's competency to stand trial, and the propriety of the government's trial team having access to the information concerning Sampson's mental condition presented at his 2003 trial and previously in this § 2255 proceeding. Some of these issues can be resolved as matters of statutory construction. With regard to other issues, the court's decisions are guided by the following principles. The court's power under § 2255 is equitable in nature. Where, as here, there has been a violation of the defendant's constitutional rights, the court has broad power to craft an appropriate remedy. That remedy should, as much as possible, be tailored to the injury Sampson suffered and seek to restore him to the circumstances that existed before the violation, while not unnecessarily infringing on competing interests.

For the reasons explained in detail in this Memorandum, the court has decided the disputed issues as follows. Sampson's October 20, 2014 Rule 12.2(b)(2) notice that he may introduce at the new sentencing hearing expert evidence concerning his mental condition is legally sufficient. At or after the November 12, 2014 hearing, the court will establish a schedule for Sampson's experts to examine and test his mental condition, and for Sampson to inform " fire-walled" attorneys for the government of the professions of those experts, and the tests they have performed and may conduct. The court will also establish a schedule for the government's experts' examination and testing of Sampson under the guidance of the fire-walled attorneys and pursuant to the Rule 12.2 protocol ordered by the court in 2003.

In addition, the court concludes that there is not now reasonable cause to believe that Sampson is not competent to stand trial. Therefore, a hearing to determine his competency is not now necessary. The court agrees with the parties that the BOP Examiner's report finding that Sampson is now competent to stand trial is subject to Rule 12.2. If, however, it is not as a matter of law, it is most appropriate to treat it as subject to the rule as an exercise of the court's § 2255 equitable authority. Therefore, the report will remain sealed and will not now be provided to the parties. If and when Sampson confirms his intention to introduce expert evidence of his mental condition, the court will decide whether to provide the Examiner's report to the parties and, if so, whether the government should receive it in redacted form. If the parties receive the Examiner's report, after considering the actual expert evidence Sampson intends to introduce, the court will decide if the government should be allowed to introduce evidence from the report or derived from it in rebuttal.

The court also concludes that it is not fair, feasible, or in the interest of justice to require that the government's trial team and experts on mental condition operate in ignorance of the evidence concerning Sampson's mental condition that he presented at his trial in 2003 and in this § 2255 proceeding. Rather, it is most appropriate that equally informed adversaries educate the jury, which will have to decide whether Sampson should be sentenced to death. Therefore, Sampson's motion to disqualify the government's trial counsel is being denied. However, if it would be unfair to permit particular evidence concerning Sampson's mental condition previously presented by him to be introduced to the jury by the government, the court will exercise its authority under 18 U.S.C. § 3593(c), which authorizes the court to exclude evidence if the risk of unfair prejudice outweighs its probative value, or its § 2255 equitable power, to exclude it.

Orders implementing these decisions will issue after the November 12, 2014 hearing.


In 2001, defendant Gary Sampson was charged with two counts of carjacking resulting in death in violation of 18 U.S.C. § 2119(3). These charges permitted the government to seek Sampson's execution under the Federal Death Penalty Act, 18 U.S.C. § 3591 et seq. The Attorney General filed notice of his intention to seek the death penalty in 2002.

On May 5, 2003, Sampson filed a notice, pursuant to Federal Rule of Criminal Procedure 12.2(b)(2), that he might introduce at the penalty phase of this capital case expert evidence relating to a mental condition bearing on the issue of punishment. See May 5, 2003 Rule 12.2 Notice (the " 2003 Notice" ) (Docket No. 150); United States v. Sampson, 335 F.Supp.2d 166, 241 (D. Mass. 2004).

The 2003 Notice generated issues under the then-new Rule 12.2 that were decided by the court, in some instances with the agreement of the parties, and memorialized in a series of orders. See Sampson, 335 F.Supp.2d at 241-48. To protect Sampson's Fifth Amendment interests, the court ordered that the government utilize for Rule 12.2 purposes " fire-walled" attorneys, who would not participate in the trial of the case or communicate with the prosecutors who would try the case. Id. at 243-45. Sampson was required to inform the fire-walled attorneys of the kinds of mental health professionals who had evaluated him and the tests they had performed. Id. at 242-43; June 17, 2003 Order at ¶ 1 (Docket No. 208). However, the government's request for " the nature of the proffered mental conditions" was denied because that information was " essentially the same as the 'results and reports' for which early disclosure is barred" by Rule 12.2(c)(2). Id. at 243.

In addition, in view of Sampson's Sixth Amendment interest in the effective assistance of counsel, the government was ordered to provide Sampson's attorneys with at least five-days' advance notice of the professions of the government experts who would examine Sampson with respect to his mental condition and of the tests they planned to perform. Id. at 245-46. This requirement was intended to provide Sampson's attorneys an opportunity either to advise him to participate in the proposed examination or to ask the court to prohibit it. The court also ordered that the examination of Sampson by the government's experts be tape-recorded unless the fire-walled attorneys successfully moved for reconsideration with regard to a particular test. Id. at 246-47. The court denied Sampson's request to have defense counsel present at the government's examination. Id. at 247-48.

In violation of the court's Order, a government expert administered a test without giving Sampson the required five-days' notice. This led to the replacement of the two government experts informed of the results of that test.

Jury selection began on September 18, 2003. On October 21, 2003, Sampson confirmed his intention to offer evidence concerning his mental condition. See Oct. 23, 2003 Order (Docket No. 469). Therefore, on October 23, 2003, the court authorized the fire-walled attorneys to provide the prosecutors the results and reports of the examinations of Sampson by the government's experts. Id., ¶ 1. The government was ordered, pursuant to Rule 12.2(c)(2), to disclose that information to Sampson by 2:30 p.m. on October 31, 2003. Id., ¶ 2; Oct. 31, 2003 Order at ¶ 3 (Docket No. 503). Sampson was directed, pursuant to Rule 12.2(c)(3), to disclose to the government later that day the results and reports of any examination of his mental condition about which Sampson intended to introduce expert evidence. See Oct. 23, 2003 Order, ¶ 3.

Sampson had pled guilty on September 9, 2003. The penalty phase of his trial began on November 5, 2003. Sampson presented at trial, in open court, expert testimony and related evidence concerning his mental condition. The government presented such evidence in rebuttal.

On December 23, 2003, the jury unanimously found that Sampson should be executed. In doing so, the jury also unanimously found that Sampson was not mentally ill when his crimes were committed. See 2003 Verdict Forms (Docket Nos. 654, 654-2); see also United States v. Sampson, 486 F.3d 13, 49-50 (1st Cir. 2007).

On January 26, 2004, the court denied Sampson's motion for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure. See United States v. Sampson, 332 F.Supp.2d 325 (D. Mass. 2004). As required by Federal Rule of Criminal Procedure 33, the court evaluated the credibility of the competing evidence and found that " if the decision were to be made by the court rather than the jury, the court would have found that Sampson at least had a mental illness, bipolar disorder." Id. at 330. However, the court also found that the evidence on this issue did not predominate heavily in favor of Sampson being found bipolar and, therefore, it would not be appropriate to disregard the jury's finding on mental illness. Id. at 331. Ultimately, the court concluded that its difference of opinion on the one mitigating factor of mental illness did not justify a new trial. Id.

On May 7, 2007, the First Circuit affirmed. See United States v. Sampson, 486 F.3d 13, 50 (1st Cir. 2007). With regard to mental illness, the First Circuit agreed with this court's finding that there was sufficient evidence to permit the jury to conclude that Sampson's mental condition was not a mitigating factor. Id.

In 2009, represented by new counsel, Sampson filed a petition, pursuant to 28 U.S.C. § 2255, to have his sentence vacated and for a new sentencing proceeding. The petition alleged, among other things, that Sampson's trial counsel were ineffective because they failed to adequately investigate and present evidence concerning Sampson's mental condition. See United States v. Sampson, 820 F.Supp.2d 202, 242-44 (D. Mass. 2011). In support of that claim, Sampson submitted for the public record, records relating to a head injury that Sampson's trial counsel allegedly did not provide to his experts. Id. at 242. Sampson also submitted the results of post-trial testing by Dr. Ruben Gur, who opined that Sampson had, since early childhood, organic brain damage that impaired his ability to conform his actions to the requirements of the law. Id. at 243-44. In addition, Sampson filed for the public record other post-trial mental status evaluations and reports, as well as a few notes of his counsel and a few messages between them.

Sampson's § 2255 petition also included a claim that his trial counsel were ineffective because they failed to request an evaluation of whether he was competent to stand trial and, as a result, he was tried while he was unable to assist in his own defense and, therefore, incompetent. Id. at 245-47. This claim relied, in part, on an expert affidavit from Dr. George Woods, Jr., which was filed for the public record. Id. at 247.

As ordered by the court, the parties attempted to agree on a protective order concerning the information Sampson had submitted in support of his petition. The parties were not, however, able to agree on certain issues. Sampson proposed that the information he provided be used by the government only for the purpose of determining whether his sentence should be vacated and a new sentencing proceeding granted. See Gary Lee Sampson's Opp. to the Gov't's Mot. for Discovery at 7-8 (Docket No. 987). The government responded that:

The government of course agrees that any materials produced by the Petitioner should not be used in any subsequent criminal proceedings (without further order of the Court) were the Petition to be allowed (assuming that the document or the information it contains was not already in the possession of the government, was not in the public domain, or is not a document that should have been disclosed to the government pursuant to the Local Rules of this Court, Rule 16 of the Rules of Criminal Procedure, or any Order entered in the underlying criminal case). The government vigorously objects, however, to any protective order that could be construed to support a motion for disqualification of any government counsel or expert in any future proceedings based on the individual[']s review of the discovery in this case.

Gov't's Reply in Support of Mot. for Discovery at 7-8 (Docket No. 990). The court did not decide this dispute or issue a protective order because the focus of the litigation shifted from the claims of ineffective assistance of counsel to the claims of juror misconduct.

In 2011, the court found that persistent perjury during voir dire by one of the ultimately deliberating jurors resulted in a violation of Sampson's constitutional right to have his sentence decided by twelve impartial jurors. See Sampson, 820 F.Supp.2d at 209. Therefore, Sampson's death sentence was vacated. Id. at 202.

The court also found that Sampson's claims that his trial counsel were ineffective because they did not request a competency evaluation, or properly investigate and present evidence of his mental condition could not be summarily dismissed. See Sampson, 820 F.Supp.2d at 242-47. However, as Sampson's sentence was vacated because of juror misconduct, it was not necessary to decide the merits of those claims.

This court subsequently authorized the government to seek an interlocutory appeal of its decision to vacate Sampson's death sentence. See United States v. Sampson, 58 F.Supp.3d 136, 2012 WL 1633296, at *15 (D. Mass. 2012). On July 25, 2013, the First Circuit treated the appeal as a request for advisory mandamus, decided it on the merits, and affirmed the decision to vacate Sampson's sentence and order another proceeding to determine his sentence. See Sampson v. United States, 724 F.3d 150 (1st Cir. 2013). In doing so, the First Circuit rejected the government's contention that this court had ordered a new trial and, therefore, its decision was immediately appealable. Id. at 157. The First Circuit explained that:

In Andrews [v. United States, 373 U.S. 334, 340, 83 S.Ct. 1236, 10 L.Ed.2d 383 (1963)] the Supreme Court stated squarely that " [w]here, as here, what was appropriately asked and granted was the resentencing of the petitioners, it is obvious that there could be no final disposition of the § 2255 proceedings until the petitioners were resentenced." We are bound by this precedent.

Id. (internal citations omitted). Accordingly, § 2255 proceedings are now continuing in this court to determine Sampson's sentence.

After mandate issued in November 2014, in a series of orders beginning on November 29, 2013 (Docket No. 1255), the court directed the parties to address whether the court should order that Sampson be examined to determine whether he is competent to participate in this § 2255 resentencing proceeding. The government repeatedly responded that it believed Sampson is competent. See, e.g., Docket Nos. 1263 at 1, 1308 at 6, 1340 at 2-3. Sampson's counsel repeatedly stated there was not then reasonable cause to believe that Sampson was not competent and, therefore, no evaluation should be ordered. See, e.g., Docket Nos. 1264 at 1, 1308 at 6, 1340 at 2-3. Nevertheless, for reasons explained at the June 4, 2014 hearing, the court found, pursuant to 18 U.S.C. § 4241(a), that " there [was] 'reasonable cause' to believe that [Sampson] 'may presently be suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his own defense.'" June 6, 2014 Order Concerning Competency Evaluation at 1 (Docket No. 1365). This conclusion was " based, in part, on the evidence submitted in connection with Sampson's First Amended Motion for a New Trial Pursuant to 28 U.S.C. § 2255, including the Declarations of Dr. Ruben C. Gur and the Declaration of Dr. George W. Woods, Jr." See id. (citations omitted). Therefore, the court ordered the BOP to conduct an examination of Sampson in accordance with 18 U.S.C. § 4247(b). Id., ¶ 1.

This Order prompted litigation concerning many issues, including: whether the evaluation should be done by an Examiner independent of the BOP; whether the Examiner should have access to BOP records concerning Sampson; whether a psychologist should be allowed to participate in the examination; and when, if ever, the government should be provided the Examiner's report. The court addressed many of these issues in a June 30, 2014 Memorandum and Order (Docket No. 1392), which, among other things, directed the BOP Examiner and the parties not to communicate directly with each other without authorization from the court, and directed the Examiner to file his report with the court only, under seal. See id., ¶ ¶ 2 & 6.

Despite filing many motions concerning the competency examination, Sampson did not move for advance notice of the tests the Examiner intended to employ to evaluate Sampson's competency. Therefore, the court did not decide whether such notice was appropriate.

In unauthorized direct communications with the Examiner, Sampson's counsel learned that the Examiner had administered an MMPI-II test. On August 30, 2014, Sampson moved to prevent the results of that test from being relied upon by the Examiner or being included in his report. Mot. to Return Sampson to Terre Haute; to Limit the Scope of the Competency Report and to Prevent the Use of Testing Results (the " Mot. to Limit Report" ) (Docket No. 1522). In support of this motion, Sampson argued that the administration of the MMPI-II violated his Sixth Amendment right to the advice of counsel and that the disclosure of any statements made by Sampson during that test should be excluded from the Examiner's report to protect Sampson's Fifth Amendment rights. See Mem. in Support of Mot. to Limit Report (Docket No. 1523).

In a response to a September 9, 2014 Order (Docket No. 1528), the Examiner stated that he could provide an opinion on Sampson's competency without relying on the results of the MMPI-II. After a hearing on September 23, 2014, the court ordered the Examiner to prepare a version of the competency report that excluded, and did not rely upon, the results of the MMPI-II.

The court has received, under seal, a September 25, 2014 report of the Examiner. The report states, in ...

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