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United States v. Sampson

United States District Court, D. Massachusetts

August 15, 2017

UNITED STATES OF AMERICA
v.
GARY LEE SAMPSON

          MEMORANDUM AND ORDER ON DEFENSE POST-TRIAL MOTION (DOC. NO. 2929)

          Leo T. Sorokin United States District Judge

         On January 9, 2017, more than two months after hearing opening statements in this case, twelve men and women unanimously decided that Gary Sampson should die for one of the two capital offenses that have been the subject of more than fifteen years of legal proceedings, including two lengthy penalty-phase trials. Doc. No. 2834 at 27.[1] As required by the Federal Death Penalty Act (“FDPA”), 18 U.S.C. § 3594, the Court imposed the recommended death sentence on February 3, 2017, and judgment entered thereafter. Doc. Nos. 2904, 2917. Before the Court now is Sampson's post-trial motion seeking an order vacating his death sentence, citing eighteen errors or categories of error he alleges infected his second penalty-phase trial. Doc. Nos. 2929, 2930.

         In run-of-the-mine cases, district courts often resolve motions for new trials - appropriately - in one-sentence orders of denial. This is no run-of-the-mine case. Gary Sampson brutally and incomprehensibly murdered Philip McCloskey, Jonathan Rizzo, and Robert Whitney. He faces the ultimate, irreversible punishment for two of those killings. All of the proceedings in this case since Sampson's September 2003 guilty plea have concerned only whether Sampson will be executed for his federal crimes or will serve a term of life imprisonment without the possibility of release. Now, after a second trial, a fair and impartial jury of twelve of Sampson's peers has spoken, returning a sentence of death on one charge, which the Court has imposed. Sampson, through his counsel - each of whom serves by appointment of the Court, discharging a role essential to our system of justice - has raised a series of post-trial challenges to his death sentence. In this opinion, the Court has attempted to address fully, and to consider carefully and fairly, every argument Sampson has raised. No less is required in a case where the government seeks to impose the gravest of punishments on one of its citizens.

         For the reasons that follow, Sampson's motion is DENIED.

         TABLE OF CONTENTS

         I. BACKGROUND ................................................................................................................ 5

         II. GENERAL LEGAL STANDARDS .................................................................................... 8

         A. Rule 29 ..................................................................................................................... 8

         B. Rule 33 ..................................................................................................................... 8

         III. DISCUSSION ...................................................................................................................... 9

         A. Sufficiency ............................................................................................................... 9

         1. Heinous, Cruel, and Depraved ................................................................... 10

         2. Other Serious Acts of Violence ................................................................. 12

         3. Series of Criminal Episodes ....................................................................... 12

         4. Murder to Obstruct Justice ......................................................................... 14

         5. Victim Impact ............................................................................................ 15

         6. Substantial Planning and Premeditation .................................................... 16

         B. Competency ..........................................................................................................

         . 17 C. Withdrawal of Counsel .......................................................................................... 18

         1. Conflict of Interest ..................................................................................... 19

         2. Irreconcilable Breakdown .......................................................................... 24

         D. Voir Dire Rulings ................................................................................................... 30

         E. Prosecutorial Misconduct ....................................................................................... 35

         1. Testimony Elicited ..................................................................................... 36

         2. Questions Asked ........................................................................................ 38

         3. Opening and Closing .................................................................................. 39

         4. Cumulative Challenge ................................................................................ 44

         F. August 1, 2001 Interrogation ................................................................................ 45

         G. Confessions ............................................................................................................ 46

         H. Defensive Wounds ................................................................................................. 47

         I. Prison Misconduct ................................................................................................. 48

         J. Victim Impact Testimony ...................................................................................... 50

         K. Evidentiary Rulings at Trial ................................................................................... 52

         L. Jury Instructions ..................................................................................................... 59

         M. Mitigating Factors .................................................................................................. 60

         N. Weight of Evidence ................................................................................................ 64

         O. Juror 5 Inquiry ........................................................................................................ 65

         P. Denial of Pretrial Motions ..................................................................................... 66

         1. Constitutional Challenges .......................................................................... 66

         2. Motions in Limine ...................................................................................... 72

         3. Other Pretrial Motions ............................................................................... 74

         Q. Cumulative Error ................................................................................................... 77

         R. As-Applied Constitutional Challenge .................................................................... 77

         S. Scope of Rebuttal ................................................................................................... 79

         IV. REMAINING DISPUTES REGARDING UNSEALING OF PAPERS ........................... 81

         V. CONCLUSION .................................................................................................................. 84

         I. BACKGROUND

         The facts in this case - those related to the crimes Sampson confessed to committing, those related to the aggravating factors alleged by the government in support of its pursuit of a death sentence, and those related to Sampson's background and the mitigating factors alleged by the defense in support of its pursuit of a life sentence - were developed through the testimony of more than a hundred witnesses in a trial that spanned more than eight weeks. Only a brief overview of the events that led to Sampson's second penalty-phase trial is required here. Where a more detailed account of certain facts is necessary to discuss any individual claim Sampson advances, it will be provided under the appropriate heading in the Discussion section below. § III, infra.

         Sampson is a native of Abington, Massachusetts. The defense offered evidence suggesting his childhood was marked by struggles with dyslexia; a tense relationship with his father; early involvement with drugs, alcohol, and criminal activity; and one or more head injuries. While still a teenager, Sampson married for the first of five times and fathered the first of his three children. He spent significant portions of his young adulthood in state correctional facilities in and around New Hampshire. In the late 1990s, he moved to North Carolina, where he worked, developed relationships with a number of people, resorted to abuse of drugs and alcohol, and robbed several banks. He fled to Massachusetts in July 2001, after his fifth bank robbery.

         On July 23, 2001, after returning to the area where he grew up, Sampson called the Federal Bureau of Investigation (“FBI”) in an attempt to turn himself in for the series of bank robberies he had committed before leaving North Carolina. His call was disconnected, no FBI agent came to arrest him at the time and place he had designated, and he made no further effort to surrender at that time. Instead, on July 24, 2001, he carjacked and killed Philip McCloskey, a sixty-nine-year-old father and grandfather who was retired after working as a Boston Gas plumber for more than forty years. After Mr. McCloskey showed kindness to Sampson - a stranger who appeared to be in need - by offering him a ride, Sampson stabbed Mr. McCloskey to death in a wooded area in Marshfield, then unsuccessfully attempted to steal his car.

         Afterward, Sampson wandered the South Shore for several days and encountered a number of people who testified about their interactions with him. On July 27, 2001, he carjacked and killed Jonathan Rizzo, a nineteen-year-old college student who was home for the summer working at a restaurant and spending time with his parents and two younger brothers. In exchange for his willingness to help a stranger, Mr. Rizzo was made to endure a drive at knifepoint from Plymouth to Abington, during which he pleaded for his life. Once in Abington, Sampson forced Mr. Rizzo to carry his luggage to a campsite in the woods, then tied the young man to a tree, gagged him with his own socks, stabbed him to death, and took his car. Sampson fled to New Hampshire and broke into an empty vacation home near Lake Winnipesaukee. On July 30, 2017, Robert Whitney, a family friend of the home's owner, discovered Sampson there. After a struggle, Sampson tied Mr. Whitney to a chair and strangled him to death.

         Sampson collected his belongings and fled to Vermont in Mr. Whitney's car. On July 31, 2017, after abandoning Mr. Whitney's car, Sampson posed as a stranded businessman and was picked up by William Gregory, yet another kind-hearted driver willing to assist a stranger. Sampson promptly threatened Mr. Gregory with a knife, but Mr. Gregory was able to escape from the moving car and report the incident to police. Meanwhile, Sampson broke into another vacation home, called 911, and surrendered himself to Vermont State Troopers. He made a series of detailed, tape-recorded confessions that night and the following day to detectives from Vermont and Massachusetts. Ultimately, state murder charges against Sampson for the stabbings of Mr. McCloskey and Mr. Rizzo were withdrawn in favor of the federal carjacking charges that initiated these proceedings.[2]

         In 2003, Sampson pleaded guilty to both counts of carjacking resulting in death and, after a penalty-phase trial that lasted several weeks, he was sentenced to death for both offenses. United States v. Sampson, 335 F.Supp.2d 166, 173, 175 (D. Mass. 2004) (“Sampson II”). His conviction and sentence were upheld on direct appeal. United States v. Sampson, 486 F.3d 13, 18 (1st Cir. 2007) (“Sampson III”). This Court (Wolf, J.) subsequently vacated his death sentences and ordered a new penalty-phase trial after concluding that Sampson had established a violation of his constitutional rights arising from the misconduct of a juror in his first trial - a conclusion which was affirmed on appeal by a unanimous panel of the First Circuit. United States v. Sampson, 724 F.3d 150, 169-70 (1st Cir. 2013) (“Sampson IV”); United States v. Sampson, 820 F.Supp.2d 151, 159-60 (D. Mass. 2011). During a second round of pretrial proceedings before Judge Wolf that spanned several years, a new team of lawyers was formed to represent Sampson at his second trial. On January 6, 2016, pursuant to Local Rule 40.1(I), Judge Wolf returned the case to the Clerk, and it was randomly reassigned. Doc. Nos. 2128, 2129.

         Represented by his new defense team, and with the matter transferred to the undersigned, Sampson faced his second penalty-phase trial in the fall of 2016. That trial is the subject of the present motion. Although Sampson's second jury was unable to reach a unanimous sentencing decision with respect to the carjacking and killing of Mr. McCloskey (resulting in imposition of a sentence of life without the possibility of release for that crime), it concluded that a death sentence was justified for the carjacking and killing of Mr. Rizzo. Doc. No. 2834 at 27. The Court imposed sentence on February 3, 2017. Doc. No. 2904; see Doc. No. 2917 (entering amended judgment on February 6, 2017). Sampson's post-trial motion was filed and briefed pursuant to a schedule adopted by the Court and agreed to by the parties, and it is now ripe for resolution. II. GENERAL LEGAL STANDARDS A. Rule 29 This Court, like Judge Wolf before it, has applied Federal Rule of Criminal Procedure 29 in the context of Sampson's penalty-phase trial. Sampson II, 335 F.Supp.2d at 198-201. Here, Rule 29 governs the evaluation of “the sufficiency of the evidence with respect to the alleged aggravating factors.” Id. at 201. In considering challenges to the sufficiency of evidence under Rule 29, “the court must look at the evidence in the light most favorable to the government, ” “must draw reasonable inferences in favor of the government, ” and “must resolve all credibility questions and evidentiary conflicts in favor of the government.” Id.

         These standards govern the assessment of whether the evidence offered at trial was “sufficient to permit a rational jury to find each essential fact to have been proven beyond a reasonable doubt.” Id. In making this inquiry, the court must consider all evidence presented to the jury, “regardless of whether it was properly admitted.” United States v. Gonzalez-Sanchez, 824 F.2d 572, 588 (1st Cir. 1987); accord United States v. DiMasi, 810 F.Supp.2d 347, 351 (D. Mass. 2011).

         B. Rule 33

         The Federal Rules of Criminal Procedure also provide that “the court may vacate any judgment and grant a new trial if the interest of justice so requires.” Fed. R. Crim. P. 33.

         Motions brought pursuant to Rule 33 “are directed to the broad discretion of the trial judge, ” but the authority to order a new trial is “sparingly” invoked “only where there would be a miscarriage of justice . . . and where the evidence preponderates heavily against the verdict.” United States v. Wilkerson, 251 F.3d 273, 278 (1st Cir. 2001) (quotation marks omitted).

         In resolving a Rule 33 motion, a court “may, and indeed must, consider its own evaluation of the credibility of the evidence and it may, in certain, limited circumstances, grant a new trial if it disagrees with the jury's judgment.” United States v. Sampson, 332 F.Supp.2d 325, 330 (D. Mass. 2004) (“Sampson I”). Even in this context, though, the “trial judge is not a thirteenth juror”; he may not “set aside a verdict merely because he would have reached a different result.” United States v. Rothrock, 806 F.2d 318, 322 (1st Cir. 1986); accord Sampson I, 332 F.Supp.2d at 331.

         Unlike Rule 29, Rule 33 permits the court to “consider whether its evidentiary rulings at trial were correct.” DiMasi, 810 F.Supp.2d at 362; cf. Gonzalez-Sanchez, 825 F.2d at 588 n.57 (noting that an error in admitting evidence is “necessarily prejudicial” if “the evidence is insufficient [to sustain a conviction] without the improperly admitted evidence”). Thus, Rule 33 provides the appropriate lens through which to consider a majority of Sampson's claims.[3]

         III. DISCUSSION

         A. Sufficiency

         In his first claim, Sampson challenges the sufficiency of the evidence supporting various aggravating factors that the jury found were proven beyond a reasonable doubt. He also reiterates constitutional and legal challenges he asserted in pretrial motions concerning certain factors. For the most part, this claim repeats the oral motion for a judgment of acquittal Sampson made at the close of the government's evidence, which the Court orally denied at that time. See Tr. Rule 29 Hr'g (Nov. 18, 2016), Doc. No. 2721 at 9-19.

         1. Heinous, Cruel, and Depraved

         Sampson attacks both the legal and factual sufficiency of the statutory aggravator alleging he committed each offense “in an especially heinous, cruel, and depraved manner.” Doc. No. 2834 at 2, 3. Neither attack has merit.

         First, Sampson argues that the heinousness factor as it was described on the verdict form was inconsistent with prior decisions in this case and “did not sufficiently instruct” regarding the definitions of the terms involved. Doc. No. 2930 at 6. The Court can discern no meaningful difference between the manner in which the factor was presented to the jury during these proceedings - on the verdict form, and as explained in the Court's instructions to the jury - and the manner in which Judge Wolf described the same factor in the context of the original trial.[4]For the reasons Judge Wolf, the First Circuit, and this Court previously have rejected Sampson's legal challenges to the heinousness aggravator, the present challenge fails. See Sampson III, 486 F.3d at 36-39 (concluding factor as written, and as defined in Judge Wolf's instructions, was not unconstitutionally vague); Sampson II, 335 F.Supp.2d at 202-06 (same); Doc. No. 2189 at 23-25 (same).

         Second, Sampson challenges the evidence supporting the heinousness aggravator, arguing it was insufficient to prove he intended “to do anything other than kill the victims.” Doc. No. 2930 at 6. “Applying the Rule 29 sufficiency standard, and looking at the evidence in the light most favorable to the government, ” as Judge Wolf did in response to the same claim during the original trial, the Court finds the evidence was sufficient to establish that the carjacking and killing of Mr. Rizzo “was especially heinous, cruel, or depraved in that it involved serious physical abuse.” Sampson II, 335 F.Supp.2d at 207. In particular, there was evidence permitting jurors to conclude that Sampson intended to kill Mr. Rizzo from the time they met; that he tied Mr. Rizzo to a tree and gagged him, essentially rendering him defenseless, before inflicting any wounds with his knife; that he knew, based on his experience killing Mr. McCloskey, that he could have approached Mr. Rizzo from behind and killed him quickly by slitting his throat; and that, instead, he attacked Mr. Rizzo from the front and inflicted more than a dozen wounds to the chest and neck, many of which would have been independently fatal. See Tr. Jury Trial Day 32 (Nov. 8, 2016), Doc. No. 2762 at 188-94 (describing nature and effect of wounds and Mr. Rizzo's position when he received them); Tr. Jury Trial Day 33 (Nov. 9, 2016), Doc. No. 2763 at 76, 89 (describing position of body, noting thirteen fatal wounds, and opining all wounds were inflicted before Mr. Rizzo's death); see also Sampson II, 335 F.Supp.2d at 208 (describing relevant evidence from Sampson's confessions offered at the first trial and again during these proceedings).

         “This evidence was sufficient to permit, though not require, the jury to find that the defendant . . . specifically intended to inflict abuse beyond what he thought necessary to kill [Mr.] Rizzo.” Sampson II, 335 F.Supp.2d at 208. Thus, Sampson's attack on the heinousness factor is meritless.

         2. Other Serious Acts of Violence

         Sampson's next challenge is to the first three nonstatutory aggravating factors presented to the jury - the murder of Mr. Whitney, the carjacking of Mr. Gregory, and four bank robberies in North Carolina. See Doc. No. 2834 at 5 (listing the challenged factors in Questions 3(a)-(c)).[5]Failure to consolidate these “into a single aggravating factor of ‘other serious acts of violence, '” Sampson claims, “violate[d] the Eighth Amendment” by “[i]nflating the number of aggravating factors.” Doc. No. 2930 at 6.

         Although presented under the heading “Insufficiency of the Evidence, ” Doc. No. 2930 at 5, this amounts to a legal challenge to the nonstatutory aggravators that the Court rejected before Sampson's retrial. Doc. No. 2189 at 28-31. The challenge fares no better now than it did then. The legal analysis supporting the previous rulings remains unchanged. Any concern that failure to consolidate the seven nonstatutory aggravating factors into five invited jurors to assign extra weight to those factors due to the number alleged, id. at 29, is substantially undermined by the fact that the total number of aggravating factors was dwarfed by the 115 mitigating factors presented on the verdict form. Doc. No. 2834 at 5-25.

         In these circumstances, Sampson has not demonstrated that presentation of the separate “other acts of violence” aggravating factors amounted to error at all, let alone resulted in a miscarriage of justice requiring a new trial.

         3. Series of Criminal Episodes

         Sampson asserts three challenges to the nonstatutory aggravating factor alleging that he “intentionally killed [the two victims] over the course of a series of criminal episodes.” Doc. No. 2834 at 5. First, he suggests “it is really one factor that encompasses both murders, ” and that alleging it “more than once” (i.e., once as to each offense) inflated the number of aggravators in violation of the Eighth Amendment. Doc. No. 2930 at 6. This argument fails now, as it did before Judge Wolf during Sampson's first trial, and as it did before this Court in Sampson's retrial.[6] See Doc. No. 2189 at 34-35 (quoting and adopting Judge Wolf's reasoning for allowing the aggravator to be presented once as to each charged offense).

         Second, Sampson argues the factor “was contrary to the evidence, ” which, he urges, demonstrated “one continuous course of conduct” rather than a series of criminal episodes. Doc. No. 2930 at 6. Considering the evidence in the light most favorable to the government, the Court finds sufficient evidence to establish that Sampson killed Mr. McCloskey and Mr. Rizzo intentionally, and that the killings were separate, unrelated crimes coming one after another in succession. See Doc. No. 2820 at 28 (explaining legal definition and elements of this aggravating factor). In particular, Sampson's confessions contain various statements supporting a finding that he killed each victim on purpose, and not as a result of a mistake or accident. See Sampson II, 335 F.Supp.2d at 208 (summarizing such statements in concluding evidence of heinousness aggravator was sufficient). Indeed, there was virtually no evidence offered at trial to suggest the killings were anything other than intentional. Moreover, the fact that the killings occurred three days apart - with a significant amount of time in between for Sampson to regroup, consider his next course of action, and travel around the South Shore area, encountering various other people as he did so - supports the jury's finding that the crimes were separate and unrelated, rather than part of one continuous criminal episode.

         Third, Sampson reiterates the position he advanced before his retrial, claiming that this factor violated his Fifth Amendment rights because it deviated from the aggravating factor found by the grand jury and alleged in the indictment. Compare Doc. No. 1326 at 4, 7 (alleging in amended notice of intent to seek the death penalty that Sampson killed the victims “over the course of a series of criminal episodes”), with Doc. No. 74 at 4, 6 (alleging in superseding indictment that Sampson killed “more than one person in a single criminal episode”). The Court remains unpersuaded for reasons explained fully in response to the previous iteration of this claim. Doc. No. 2189 at 32-34; see United States v. Sampson, No. 01-cr-10384, 2015 WL 7962394, at *30 (D. Mass. Dec. 2, 2015) (“Sampson V”) (concluding the Constitution does not require non-statutory aggravators to be presented to a grand jury); see also Doc. No. 2283 at 7-8 (finding subsequent decisions by the Supreme Court did not justify reconsideration of Sampson's previous grand-jury-related motions).

         4. Murder to Obstruct Justice

         Next, Sampson challenges the sufficiency of evidence in support of the nonstatutory aggravating factor alleging that he killed Mr. Rizzo “for the sole or primary purpose of preventing him from reporting to the authorities the theft . . . of his car.”[7] Doc. No. 2834 at 6. He claims “there was no evidence from which a reasonable jury could find that [his] sole or dominant motive for the murders was to eliminate a witness.” Doc. No. 2930 at 7. But there was such evidence. Sampson sequestered Mr. Rizzo in the woods, tied him to a tree, and gagged him before stabbing him. As in the first trial, “[a] rational jury could have concluded that the defendant did not need to kill [Mr.] Rizzo to effect the carjacking, but instead chose to kill him because, as Sampson stated during one of his confessions, he needed [Mr.] Rizzo's car for a long time.” Sampson II, 335 F.Supp.2d at 217; see also Gov't Trial Ex. 1B at 24 (showing statement in transcript of one of Sampson's confessions, “I don't like to leave witnesses, witnesses can tell on me”). As to this aggravator, then, Sampson's sufficiency claim cannot succeed.

         5. Victim Impact

         Although Sampson includes under his “insufficiency” heading a challenge to the nonstatutory aggravating factors regarding victim impact, it is difficult to discern the nature of the challenge he intends to press there. See Doc. No. 2930 at 7. A separate section of his motion is devoted to challenging the extent and nature of the victim impact evidence admitted at trial, id. at 62-64, and that challenge will be discussed below, § III(J), infra. Despite the heading under which this puzzling paragraph appears, Sampson does not assert - nor could he reasonably assert - that there was insufficient evidence to support the jury's findings that the killings of Mr. McCloskey and Mr. Rizzo “caused injury, harm, and loss to” their families “because of [their] personal characteristics as . . . individual human being[s].” Doc. No. 2834 at 6; see Doc. No. 2721 at 16 (conceding during Rule 29 argument that this aggravator was “factually supported”).

         Rather, Sampson's cursory challenge purports to repeat a claim he says was “argued in court” and included in his objections to the Court's draft jury instructions - a claim that the victim impact aggravator “as a whole should be stricken as unconstitutionally vague.” Doc. No. 2930 at 7. Such a claim, however, has never been presented to this Court. See Doc. No. 2721 at 16 (preserving without identifying “constitutional arguments we've advanced, ” then making vagueness challenge to future dangerousness aggravator); Doc. No. 2805 at 3-11 (asserting vagueness challenge to heinousness aggravator, but raising no objection to any language in victim impact factor); Doc. Nos. 1904-1, 1905 (moving to strike various aggravators, but asserting no such challenge to victim impact factor); Doc. Nos. 1901-1, 1901-2 (seeking various rulings limiting victim impact evidence, but not asserting a constitutional challenge to the factor in general).

         Because Sampson has not raised a vagueness challenge to this factor before, because he does not articulate such a challenge now in a manner sufficient to permit the Court to meaningfully consider it, and because the FDPA explicitly contemplates a nonstatutory aggravating factor of the sort presented here, 18 U.S.C. § 3593(a), this claim fails.

         6. Substantial Planning and Premeditation

         Sampson's final sufficiency challenge is aimed at the statutory aggravating factor alleging that his killing of Mr. Rizzo was the result of “substantial planning and premeditation.” Doc. No. 2834 at 4. He claims the factor is unconstitutionally vague - a claim which fails now for the same reasons it has failed at least twice before. See Doc. No. 2189 at 20-22 (noting vagueness challenges to this factor have been “uniformly rejected” by courts); United States v. Sampson, 275 F.Supp.2d 49, 104 (D. Mass. 2003) (same); see also Sampson II, 335 F.Supp.2d at 209-10 (finding the factor “narrows the class of murderers in a way that is constitutionally relevant”).

         Sampson further suggests that, “while there may have been evidence adduced at trial that the killing of Jonathan Rizzo was in some way planned or premeditated, the evidence was insufficient to show that [the planning and premeditation] was ‘substantial, ' as required.” Doc. No. 2930 at 7. In Sampson's view, the only “slim evidence of planning and premeditation” came from his confessions, “which also included numerous demonstrable falsehoods and factual errors.” Id. at 8. Because this factor was charged only as to the killing of Mr. Rizzo, and because the jury returned a death verdict only as to that offense, Sampson suggests this “error . . . was particularly harmful.” Id. at 7.

         The evidence relevant to this factor, particularly when considered in the light most favorable to the government, was more than “sufficient to prove, beyond a reasonable doubt, that Sampson engaged in substantial planning and premeditation to cause” Mr. Rizzo's death. Sampson II, 335 F.Supp.2d at 212. The relevant evidence was essentially the same at this trial as it was in 2003. It was recounted in detail by Judge Wolf when he rejected Sampson's Rule 29 motion after the first trial, and this Court adopts and incorporates that recitation here. See Id. (describing evidence including Sampson's selection of a remote location known to him for the scene of the killing, the time that passed on the drive to that location during which Sampson could have chosen a different course of action, and the steps Sampson took to prevent resistance by Mr. Rizzo).

         To the extent Rule 33 permits a broader review of Sampson's sufficiency claims, the Court finds no miscarriage of justice flowing from the jury's determinations as to any of the challenged aggravators, and is satisfied that “the evidence [did not] preponderate[] heavily against the verdict.” Wilkerson, 251 F.3d at 278. Accordingly, none of Sampson's sufficiency challenges warrant relief. B. Competency In his second post-trial claim, Sampson urges that the Court erred in determining he was competent to stand trial, and in finding no competency hearing was necessary in light of the relevant expert reports. Doc. No. 2930 at 8. The Court's discussion of these issues - expressed after a thorough review of all relevant expert tests and reports, upon careful consideration of the applicable legal standards, and in reliance on the Court's own observations throughout these proceedings - is fully set forth in a previous unsealed order. Doc. No. 2895. Nothing that has occurred since that order was issued, and nothing Sampson has asserted in the present motion, [8]alters the Court's previous analysis or persuades the Court that a miscarriage of justice arose from its ruling on Sampson's competency motion. Accordingly, Sampson's request for a new trial on this basis is denied.

         C. Withdrawal of Counsel

         Sampson's third claim asserts error in the Court's denial of a motion to withdraw filed by his team of defense counsel near the conclusion of jury selection, and renewed twice during the trial. Doc. No. 2930 at 9-14. Sampson alleges his Sixth Amendment right to counsel was violated due to an actual conflict of interest that arose between him and the members of his defense team, and due to an irreconcilable breakdown in his relationship with his attorneys. Id. Neither of these related but distinct claims merits granting Sampson a new penalty-phase trial.[9]

         1. Conflict of Interest

         Sampson asserts that a conflict of interest arose when he “made credible threats of violence against” members of his defense team late in the jury selection process, causing his attorneys' representation of (and duty of loyalty to) him to be “materially limited by [the attorneys'] own legitimate interest in personal security.” Doc. No. 2930 at 11. Citing a standard crafted by the Supreme Court in Cuyler v. Sullivan, 446 U.S. 335 (1980), Sampson argues that this alleged conflict created a “lapse in representation.” Doc. No. 2930 at 12. As proof of that “lapse, ” Sampson cites defense counsel's discussion of his behavior in ex parte proceedings without his presence or knowledge, and their accession to security measures during the trial, including leg shackles and exclusion of Sampson from the courtroom at certain times. Id. This, Sampson says, is sufficient under Sullivan to establish a violation of his Sixth Amendment rights. Id.

         The circumstances relevant to Sampson's withdrawal motion were described in detail in his original pleading, Doc. No. 2629 at 1-10, [10] and are reflected in events or discussions that are part of the record in this case, e.g., Tr. Jury Trial Day 24 (Oct. 27, 2016), Doc. No. 2662 at 3-120, 184-93 (disclosing threats and discussing appropriate response, including security measures to be taken); Tr. Jury Trial Day 25 (Oct. 28, 2016), Doc. No. 2663 at 3-22, 28-32, 192-204 (discussing continued safety concerns of counsel based on further conversations with Sampson); Tr. Jury Trial Day 26 (Oct. 31, 2016), Doc. No. 2756 at 6-13, 67-68 (discussing status of relationship between Sampson and counsel and pending motions related to competency and withdrawal); Tr. Jury Trial Day 27 (Nov. 1, 2016), Doc. No. 2757 at 3-18 (discussing Sampson's return to the courtroom and accompanying safety measures); Tr. Jury Trial Day 31 (Nov. 7, 2016), Doc. No. 2761 at 6-20 (discussing status of relationship between Sampson and counsel and renewing competency and withdrawal motions); Tr. Ex Parte Hr'g (Nov. 30, 2016, 8:35 a.m.), Doc. No. 2882 (discussing status of relationship between Sampson and counsel, requesting stay of proceedings pending competency evaluation, and renewing motion to withdraw); Tr. Ex Parte Hr'g (Nov. 30, 2016, 1:08 p.m.), Doc. No. 2883 (discussing schedule of defense witnesses and Sampson's desire to be absent when certain evidence was offered). Only the following summary of those events is necessary to resolve the conflict-of-interest question, in light of what the Court deems the controlling law.

         Sampson's relationship with his defense team, and particularly with lead counsel Michael Burt, was tumultuous but, in his lawyers' view, manageable in the months leading up to his retrial and during the first few weeks of jury selection. Between October 19 and 26, 2017, a dispute arose between Sampson and the defense team as to whether evidence suggesting Sampson had been sexually assaulted should be introduced in the defense mitigation case. The defense team intended to offer such evidence against Sampson's strongly expressed wishes. That dispute culminated in Sampson threatening certain members of his defense team, including Mr. Burt, during a heated telephone call with one of his attorneys on October 26, 2017.

         After consulting with at least one expert in legal ethics, the defense team brought Sampson's threats to the Court's attention in an emergency ex parte hearing on October 27, 2017, unbeknownst to Sampson.[11] The Court credited the defense team's account of the threats, concluded they reasonably feared for their own safety and the safety of others in the courtroom, and accepted their proposal that Sampson be barred from entering the courtroom that day. Arrangements were made for Sampson to view and hear court proceedings from his holding cell beside the courtroom, and to communicate with his counsel. The Court found that the same security concerns justified keeping Sampson outside the courtroom, with the same arrangements in place, for three more days of proceedings. On November 2, 2017, when opening statements and evidence began, Sampson was permitted to resume his place in the courtroom, sitting with his counsel. The Court required that he wear leg irons to address continuing security concerns, with table skirts placed on all counsel tables to shield the leg irons from the jury's view without drawing attention to the defense table. These conditions remained in effect for the duration of the trial.[12]

         In support of his conflict-of-interest argument, Sampson relies on Sullivan and cases applying it, most of which involved alleged conflicts arising from multiple representations (i.e., one defense attorney representing two clients with conflicting interests). Doc. No. 2930 at 10-12. Those cases, which dispose of the requirement that defendants demonstrate prejudice arising from an alleged conflict on the part of counsel, confront facts which differ materially from those presented here. The most critical distinction between Sampson and the defendants in the cases he cites relates to the manner in which the alleged conflict arose. Sullivan and its progeny tend to involve conflicts created by the lawyer, at no fault of his client (e.g., due to counsel's decision to represent multiple clients, pursue his financial interests, or engage in a romantic relationship with the prosecutor). The conflict Sampson identifies here is one of his own making. Accordingly, the Court finds the Sullivan line of cases inapplicable to these facts.[13]

         A more appropriate framework for considering Sampson's claim is set out in Nix v. Whiteside, 475 U.S. 157 (1986). There, a dispute arose between Whiteside and his counsel when Whiteside proposed giving perjured testimony, and his lawyer threatened to withdraw and disclose the perjury to the court. Id. at 160-62. Whiteside urged the Supreme Court to assess his conflict-of-interest claim under the Sullivan rubric. Id. at 176. The Court demurred, applying instead the traditional standard for counsel-ineffectiveness claims announced in Strickland v. Washington, 466 U.S. 668 (1984), and finding that the defendant had failed to show either deficient performance or prejudice as required by Strickland. Whiteside, 475 U.S. at 164-76.

         The Whiteside Court explained its choice of Strickland over Sullivan as the standard governing Whiteside's conflict claim this way:

Here, there was indeed a “conflict, ” but of a quite different kind; it was one imposed on the attorney by the client's proposal to commit [a] crime . . . . This is not remotely the kind of conflict of interests dealt with in Cuyler v. Sullivan. . . . If a “conflict” between a client's proposal and counsel's ethical obligation gives rise to a presumption that counsel's assistance was prejudicially ineffective, every guilty criminal's conviction would be suspect if the defendant had sought to obtain an acquittal by ...

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