                                                                                                                           Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-31-2000

United States v. Hammer
Precedential or Non-Precedential:

Docket 98-9011




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Filed August 31, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 98-9011

UNITED STATES OF AMERICA

v.

DAVID PAUL HAMMER,

       Appellant

On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Crim. No. 96-00239)
District Judge: Honorable Malcolm Muir

Argued July 18, 2000

BEFORE: BECKER, Chief Judge, and STAPLETON and
GREENBERG, Circuit Judges

(Filed: August 31, 2000)

       David M. Barasch
       United States Attorney
       Frederick E. Martin
       Assistant United States Attorney
       240 West Third Street
       Suite 316
       Williamsport, PA 17701
Gwynn X. Kinsey, Jr. (argued)
Attorney, United States Department
of Justice
Criminal Division
601 D. Street, N.W.
Washington, D.C. 20530

 Attorneys for Appellee

David Paul Hammer (argued)
P.O. Box 33
Terre Haute, IN 47808-0033

 Appellant pro se

Ronald C. Travis
Rieders, Travis, Mussina,
Humphrey & Harris
161 West Third Street
P.O. Box 215
Williamsport, PA 17703

David A. Ruhnke
Ruhnke & Barrett
47 Park Street
Montclair, N.J. 07042

 Stand-by Attorneys for Appellant

John J. Gibbons
Lawrence S. Lustberg (argued)
Jessica A. Roth
Gibbons, Del Deo, Dolan,
Griffinger & Vecchione
One Riverfront Plaza
Newark, N.J. 07102-5497

 Attorneys for amicus curiae
John J. Gibbons

                          2
OPINION OF THE COURT

GREENBERG, Circuit Judge.

I.

A.

This matter comes before this court on David Paul
Hammer's appeal from the judgment of conviction and
sentence entered on November 4, 1998, in which the
district court imposed a sentence of death. We will dismiss
the appeal.

On April 13, 1996, Hammer, then an inmate at
USP/Allenwood in Pennsylvania, murdered Andrew Marti,
another inmate, by strangulation within a cell in the special
housing unit in Allenwood. Hammer was a state prisoner
transferred to the federal system from Oklahoma pursuant
to 18 U.S.C. S 5003 and Marti was a federal prisoner
serving a sentence for bank robbery. No question ever has
been raised about the fact that Hammer committed the
murder.

A grand jury indicted Hammer for violations of 18 U.S.C.
S 1111 (first degree murder within the special maritime and
territorial jurisdiction of the United States) and 18 U.S.C.
S 1118 (murder by a federal prisoner serving a life
sentence). The court, however, on the government's motion,
dismissed the section 1118 charge and thus Hammer
ultimately went to trial solely on the section 1111 charge.
Prior to the trial, the government served and filed a notice
that it intended to seek the death penalty. While originally
Hammer presented an insanity defense, during the trial he
pleaded guilty to the murder, thus abandoning that
defense.

Thereafter the case was tried to the jury but only with
respect to the sentence. On July 24, 1998, the jury
returned a verdict recommending the imposition of the
death sentence. Subsequently, Hammer filed a pro se

                               3
motion seeking an order discharging counsel and allowing
him to proceed pro se and determine for himself whether to
appeal. The district court held an evidentiary hearing on
the motion. It received testimony from two highly qualified
psychiatrists, Drs. John Mitchell and James Wolfson, who
had examined Hammer. Their testimony is chronicled in
the district court's opinion, United States v. Hammer, 25 F.
Supp. 2d 518 (M.D. Pa. 1998). See especially the findings
of fact 21-38, id. at 523-24.

In the testimony cited in these findings, the psychiatrists
canvassed the range of cognitive and emotional capacities
relevant to the question whether Hammer was competent to
waive his rights and whether his waiver was voluntary.
They concluded that Hammer was fully competent, and
that his decision to forego an appeal and ask for the
immediate imposition and carrying out of the sentence of
death was a competent and well reasoned decision. The
district court also noted that the parties stipulated that
none of the defense experts who testified at trial suggested
that Hammer was incompetent at any relevant time. 1 On
the basis of the foregoing, the district court found that
Hammer was competent to waive his rights and that the
waiver was voluntary.

On October 9, 1998, the court entered an order
discharging Hammer's counsel, appointing stand-by
counsel for him, and fixing a sentencing date. On November
4, 1998, the district court sentenced Hammer to die. A
notice of appeal was filed on Hammer's behalf on November
12, 1998.

In the course of its opinion the court described the case
as follows:

        The evidence presented during the trial viewed in a
       light most favorable to the government establishes that
       Mr. Hammer bound each limb of Mr. Marti by using
       the ruse that he would only slightly injure Mr. Marti
       and obtain a transfer for Mr. Marti to another prison.
       Mr. Hammer after rendering Mr. Marti helpless put Mr.
_________________________________________________________________

1. The district court also received extensive testimony from Hammer,
strikingly similar to the statements he made to us, detailed infra.

                                4
       Marti in a sleeper hold. Testimony from a pathologist
       established that Mr. Marti struggled in the restraints.
       Once Mr. Marti was rendered unconscious by the
       sleeper hold, Mr. Hammer strangled him with a
       homemade cord. In recommending a sentence of death
       the jury, as required by statute, found that the
       government established beyond a reasonable doubt
       that Mr. Hammer intentionally killed Mr. Marti. The
       jury also found beyond a reasonable doubt the
       following two statutory aggravating factors: (1) Mr.
       Hammer previously had been convicted of two or more
       State or Federal offenses punishable by a term of
       imprisonment of more than one year and (2) Mr.
       Hammer committed the murder of Mr. Marti after
       substantial planning and premeditation. These two
       statutory aggravating factors are supported by the
       record.

Id. at 520 (footnotes omitted).

On November 27, 1998, Hammer filed a pro se motion to
dismiss the appeal but on December 18, 1998, hefiled an
application to withdraw that motion which we granted on
December 30, 1998. On March 23, 1999, Hammer again
filed a motion to dismiss the appeal and by order of April
16, 1999, we reserved decision on the motion. Then on July
23, 1999, stand-by counsel on behalf of Hammer filed a
motion to withdraw the motion to dismiss the appeal. On
August 3, 1999, we granted the motion to withdraw the
motion to dismiss the appeal and thus the case proceeded
to the briefing stage.

B.

After opening briefing, Hammer on May 8, 2000,filed a
pro se motion for immediate dismissal of his appeal. By our
order dated May 11, 2000, we reserved decision on the
motion. Subsequently, Hammer sought reconsideration of
our May 11 order and unsuccessfully sought en banc
consideration of his motion to dismiss. Thereafter, we
entered an order reciting that we had examined the
extensive record in the case and satisfied ourselves that
there was no question of competency.2 We indicated,
_________________________________________________________________

2. We relied essentially on the record of proceedings in the district
court.
We also note however, that we received (from Hammer) records of

                                  5
however, that we were concerned with the question of
whether the Federal Death Penalty Statute, 18 U.S.C.
SS 3591-98, permits an appeal to be waived. Accordingly,
we appointed John J. Gibbons, Esq. as amicus curiae"to
brief the question whether an appeal under the Federal
Death Penalty statute may be waived by a competent
defendant." We fixed a briefing schedule and directed the
government to file a responsive brief to the amicus's brief.
Moreover, we set argument for July 18, 2000, and directed
the clerk of our court to determine if it would be possible
for Hammer to appear at the argument from his place of
confinement at USP/Terre Haute through video-
conferencing. We provided that if video-conferencing was
possible we would hear Hammer personally. Both the
amicus and the government have filed briefs as we directed,
the amicus contending that a waiver is not permissible, or
at least, that one may not withdraw an appeal oncefiled,
and the government contending the opposite.

On June 30, 2000, Hammer filed a motion requesting
that we deem that he had withdrawn his May 8, 2000,
motion to dismiss the appeal or that we dismiss the motion
to dismiss the appeal. In view of this motion we considered
that the issue of whether the appeal could be dismissed
probably was moot as we do not doubt that up until the
argument date on July 18, 2000, we would have allowed
Hammer to withdraw his motion to dismiss his appeal and
thus would have heard the appeal on the merits. Then, in
the final significant pre-argument development we received
a letter dated July 11, 2000, on July 13, 2000, from
Hammer that once again stated that he wanted the appeal
dismissed. In the letter, after setting forth certain
background information, Hammer recited the following:

       Therefore, I urge this court to decide my Pro se Motion
       to have my appeal dismissed and not to consider the
_________________________________________________________________

subsequent regular psychiatric evaluations made by the medical staff at
Lewisburg, which essentially established the existence of a continuum,
in which Hammer's mental state was unchanged. We solicited the advice
of all counsel (including stand-by counsel) but no one suggested that
there was any question about Hammer's competency.

                               6
       issue moot. My only desire is to have the sentence of
       death implemented expeditiously, and whatever
       process or procedure that achieves this result fastest is
       what I feel is best.

C.

The oral argument was held on July 18, 2000, as
scheduled. Hammer was present by video-conferencing and
he argued at length. The members of this panel, his stand-
by counsel, government counsel, and counsel for the
amicus curiae all were able to see and hear Hammer quite
clearly. He spoke with great intelligence, logic, and force,
addressed the legal issues with considerable skill,
demonstrated a total command of the record, and was calm
and in total control of himself. Furthermore, he spoke
respectfully toward the court, his attorneys, and the amicus
curiae. He demonstrated his command of the case by
making very little use of notes.

At the outset Hammer said that it had always been his
intent "to be executed as promptly as possible."3 Thus, he
complained about the delay in the proceedings, although he
later acknowledged that he was in part responsible for the
delay. He said that he wanted his appeal dismissed so he
could be executed. Hammer represented that he never
authorized the filing of the notice of appeal. As he described
it, a notice of appeal was prepared by counsel on a"stand-
by" basis, and filed without his consent, although he
admitted that he subsequently acquiesced in it. He said
that "the death penalty . . . is the law of the land."
Moreover, he indicated that if anyone had been aggrieved
by constitutional violations in his case it had been he but
that he was willing to waive any violations and that no one
else had standing to complain.

Hammer stated that he had accepted responsibility for
_________________________________________________________________

3. Hammer later qualified this statement explaining that he had on
occasion changed his mind when he received a letter from the mother of
another death row inmate stating that, if he died, her son might too.
However, Hammer always reverted to his original intent to waive an
appeal and have the sentence of death carried out.

                               7
killing another human being, that there was no question
but that he had killed Andrew Marti, and that he had a fair
though not a perfect trial. He said the jury returned the
verdict and that society had spoken through the 12
members of the jury. He asked, how would society be
protected if this appeal went forward? He then asked, how
was the interest of justice being served by the appeal? He
rejected the amicus's position that an appeal was
mandatory. He indicated that if he had a choice to live he
would do so but that he was not living, he merely was
"existing" in a small confined area, with only brief time out
for showers and exercise. He pointed out that he was 41
years old and had been in prison for 22 years since he was
a teenager except when he was on "escape status," and
faced 1,000 plus years in jail. He said that he would die in
prison, and preferred the certainty of knowing when and
how he would die, describing lethal injection as simple and
painless. He stated that he had read stand-by counsel's
brief and in his view, the chance of winning on appeal is slim.4

Hammer said that it was in his best interest to have the
"sentence of death implemented as expeditiously as
possible." He asked that, if we granted his motion to
dismiss, we send the case back to the district court with
instructions to schedule the execution. He said that if we
leave the matter in the hands of the Justice Department or
the Attorney General the case could linger and then"the
President might get involved."

He also said that he wanted to point out that his case
was different than the cases of most people on death row
because, in his words, he was the "politically correct
execution candidate." He then explained his reasons for
that conclusion which were that he is a "white man," the
murder was inside a prison, he already was serving a huge
amount of time, and his victim was white. Hammer also
commented upon the current controversy over the death
penalty, noting that he did not meet any of the criteria that
the Justice Department was studying regarding the fairness
_________________________________________________________________

4. Hammer even discussed the legal basis for the appeal and commented
that almost all of the asserted grounds had been rejected by the
jurisprudence, much of it by this court.

                                8
of its imposition, since there was no question of his guilt,
reiterating that he had killed Andrew Marti. Moreover, he
indicated that he had "absolutely no intention of seeking
clemency from the President of the United States. I don't
want to appeal. Obviously, I don't want clemency."

Hammer then said he would only be free when he was
dead, and he flatly denied that he was committing suicide.
Rather, he said that he accepted the judgment of the court
and the jury and that he accepted "responsibility for my
actions, for my actions of killing Andrew Marti." Indeed he
made an extraordinary plea for the imposition of the death
penalty. He pointed out that it had been four years since he
had murdered Marti. He said that if capital punishment is
ever going to mean anything then it should be implemented
in a time frame when people remember why it is being
imposed. He argued that until the death penalty is changed
"it should be implemented expeditiously."

He then discussed the "cruel and unusual punishment"
aspect of a capital case. He said that it was not cruel and
unusual for him to take a few steps, lie down on a gurney,
be strapped in and have drugs inserted into his veins. He
said the act of dying is the easy part and that the cruel and
unusual element of capital punishment is the mental and
emotional torture and everything you put yourself through
while you are waiting.

Near the end of his statement he once again
demonstrated that he accepted responsibility for his acts by
saying that the only way he could make amends was to
accept the punishment. The panel, of course, was mindful
that Hammer had vacillated with respect to the prosecution
of the appeal and thus at the end of Hammer's statement
we asked him:

       Are you saying to us that if we dismiss this appeal
       you're not going to come back to us and ask us to hear
       your appeal later?

Hammer responded:

       Yes, sir.

                               9
II.

A.

We deal initially with a point that the government raised
in its brief filed on July 13, 2000, in which it argued that
even though a defendant sentenced to die need not appeal,
we should hold that "Hammer has irrevocably elected to
proceed with the appeal." Br. at 6. The government took
this position which, if accepted, would have resulted in our
hearing the appeal on the merits, because it was concerned
that if we dismissed the appeal Hammer later would
contend that we should hear it. The government, however,
prepared its brief after Hammer filed his June 30, 2000
motion which sought an order leading us to hear his appeal
but before he filed his July 11, 2000 letter requesting us to
dismiss the appeal. The government cited St. Pierre v.
Cowan, ___ F.3d ___, 2000 WL 862521 (7th Cir. June 28,
2000), and Smith v. Armontrout, 865 F.2d 1502 (8th Cir.
1988), as support for its argument.

In considering the government's request, from which we
note that in the light of Hammer's personal plea it
somewhat retreated at oral argument, we treat Hammer's
motion as a motion to dismiss under Fed. R. App. P. 42(b)
which, as germane here, provides that "[a]n appeal may be
dismissed on the appellant's motion on terms agreed to by
the parties or fixed by the court." We are satisfied that we
have discretion to grant, or to deny Hammer's motion as
the government requested that we do in its brief. See
Clarendon Ltd. v. Nu-West Indus., Inc., 936 F.2d 127, 128-
30 (3d Cir. 1991); HCA Health Servs. of Virginia v.
Metropolitan Life Ins. Co., 957 F.2d 120, 123 (4th Cir.
1992). We also note that Hammer's July 11, 2000 letter
and his statements to this court on July 18, 2000, have
changed the situation since the government made the
request to us to hear the appeal on the merits. Hammer
has without equivocation asked us to dismiss his appeal
and has indicated that he will not change his mind with
respect to his request. We are satisfied that the concerns
the government has expressed about Hammer changing his
mind do not require us to hear Hammer's appeal. Thus, we

                               10
will consider Hammer's motion to dismiss and will not hold
that he has elected irrevocably to proceed with the appeal.

B.

Our determination with respect to the general exercise of
discretion takes us to the issue on which we sought
briefing: does the Federal Death Penalty statute preclude a
defendant sentenced to death from waiving his right of
appeal? We think that resolution of this issue bears upon
the exercise of our discretion. The appeal provision of the
statute, 18 U.S.C. S 3595 ("section 3595"), provides as
follows (emphasis added):

       (a) Appeal.--In a case in which a sentence of death is
       imposed, the sentence shall be subject to review by the
       court of appeals upon appeal by the defendant . Notice
       of appeal must be filed within the time specified for the
       filing of a notice of appeal. An appeal under this
       section may be consolidated with an appeal of the
       judgment of conviction and shall have priority over all
       other cases.

       (b) Review.--The court of appeals shall review the
       entire record in the case, including--

       (1) the evidence submitted during the trial;

       (2) the information submitted during the sentencing
       hearing;

       (3) the procedures employed in the sentencing
       hearing; and

       (4) the special findings returned under [18 U.S.C. S]
       3593(d).

       (c) Decision and disposition.--

       (1) The court of appeals shall address all substantive
       and procedural issues raised on the appeal of a
       sentence of death, and shall consider whether the
       sentence of death was imposed under the influence
       of passion, prejudice, or any other arbitrary factor
       and whether the evidence supports the special
       finding of the existence of an aggravating factor
       required to be considered under [18 U.S.C. S] 3592.

                               11
       (2) Whenever the court of appeals finds that --

        (A) the sentence of death was imposed under the
       influence of passion, prejudice, or any other
       arbitrary factor;

        (B) the admissible evidence and information
       adduced does not support the special finding of the
       existence of the required aggravating factor; or

        (C) the proceedings involved any other legal error
       requiring reversal of the sentence that was properly
       preserved for appeal under the rules of criminal
       procedure,

       the court shall remand the case for reconsideration
       under [18 U.S.C. S] 3593 or imposition of a sentence
       other than death. The court of appeals shall not
       reverse or vacate a sentence of death on account of any
       error which can be harmless, including any erroneous
       special finding of an aggravating factor, where the
       Government establishes beyond a reasonable doubt
       that the error was harmless.

       (3) The court of appeals shall state in writing the
       reasons for its disposition of an appeal of a sentence
       of death under this section.

It is, of course, immediately evident that section 3595
authorizes but does not explicitly require an appeal by a
defendant sentenced to death. The absence of such a
requirement would seem to establish clearly that a
defendant is not required to appeal a sentence of death.
After all, in general, parties to federal litigation, whether
civil or criminal, need not appeal adverse verdicts. Thus, if
Congress had intended to reverse this usual practice surely
it would have said so. Moreover, in Whitmore v. Arkansas,
495 U.S. 149, 166, 173, 110 S.Ct. 1717, 1729, 1733
(1990), Justice Marshall in his dissenting opinion indicated
that "[s]ociety's overwhelming interest in preventing
wrongful executions is evidenced by the fact that almost all
of the 37 States with the death penalty apparently have
prescribed mandatory, nonwaivable appellate review of at
least the sentence in capital cases." The Supreme Court
decided Whitmore in 1990, yet when Congress enacted

                               12
section 3595 in 1994 (see Pub. L. 103-322, Title VI,
S 60002(a), 108 Stat. 1967), it did not in terms require
mandatory review of a death sentence although Justice
Marshall's dissent spelled out the state practices.

Amicus seeks to overcome the absence of a requirement
for an appeal in section 3595 by a strained reading of the
section. Section 3595(a) provides initially that"[i]n a case in
which a sentence of death is imposed, the sentence shall be
subject to review by the court of appeals upon appeal by
the defendant. Notice of appeal must be filed within the
time specified for the filing of a notice of appeal." The first
quoted sentence plainly establishes as a prerequisite to the
exercise of appellate jurisdiction that the defendant appeal.
While it is true that the next sentence provides that
"[n]otice of appeal must be filed" within the specified time,
that provision is a limitation on when a defendant may
appeal rather than an affirmative command to him to do so
and even the able amicus curiae does not contend
otherwise in his brief. After all, if Congress had intended
that there be a mandatory review of death penalty
proceedings it had no need to provide that this sentence
was "subject to review . . . upon appeal of the defendant."
Instead, it simply could have provided for automatic review,
as do many (but not all) states.

Amicus seeks to overcome the plain import of section
3595 by pointing out that section 3595(b) provides that the
"court of appeals shall review the entire record in the case"
and that section 3595(c)(1) provides that the court of
appeals "shall address all substantive and procedural
issues raised on the appeal of a sentence of death, and
shall consider whether the sentence of death was imposed
under the influence of passion, prejudice, or any other
arbitrary factor and whether the evidence supports the
special finding of the existence of an aggravating factor
required to be considered under [18 U.S.C. S] 3592."
Amicus notes that the Act charges the Court with making
these determinations even if the death-sentenced prisoner
has not raised them. These provisions, however, are not an
independent source of appellate jurisdiction. Clearly, they
do nothing more than specify the scope of review when an
appeal is filed. Along the same lines, section 3595(c)(2),

                               13
which provides that upon making certain findings the court
of appeals shall remand the matter to the district court,
becomes operative only when appellate jurisdiction is
invoked in the first instance.

For all the foregoing reasons we conclude that we have
discretion to either grant or deny Hammer's motion to
dismiss his appeal and that there is no reason attributable
to the text of the Federal Death Penalty Act to exercise our
discretion under Rule 42(b) to deny Hammer's motion to
dismiss the appeal.5

We have considered in this regard amicus's argument
that to avoid a conflict with the Eighth Amendment the
Federal Death Penalty Act "precludes a capital defendant
from waiving direct appellate review of his death sentence."
Br. at 4. For a number of reasons the Eighth Amendment
argument is unavailing. The death penalty is not inherently
a punishment that violates the Eighth Amendment. See
Gregg v. Georgia, 428 U.S. 153, 176-87, 96 S. Ct. 2909,
2926-32 (1976). While the Supreme Court has discussed
the importance of making appellate review available to
defendants, see, e.g., Parker v. Dugger, 498 U.S. 308, 32,
111 S.Ct. 731, 739 (1991) (discussing the "crucial role of
meaningful appellate review in ensuring that the death
penalty is not imposed arbitrarily or irrationally"), it never
has suggested that this right cannot be waived. Cf. Pulley
v. Harris, 465 U.S. 37, 104 S.Ct. 871 (1984). In Harris, the
Court upheld the California death penalty statute which
had no provision for proportionality review. It noted that
several, but not all, of state death penalty statutes provided
for (1) proportionality review; and (2) an automatic appeal.
It concluded that the former was not constitutionally
necessary, and made no comment about the latter. See id.
at 44-45, 104 S.Ct. at 876. Furthermore, the Court never
has allowed that society at large has a constitutionally
cognizable interest in appellate review of capital sentences.
See Whitmore v. Arkansas, 495 U.S. 149, 110 S.Ct. 1717,
(rejecting third party attempt to raise appeal on defendant's
behalf); Gilmore v. Utah, 429 U.S. 1012, 97 S.Ct. 436 (1976)
(same).
_________________________________________________________________

5. Indeed, it would seem strange for the Act to require Hammer to
pursue an appeal that it did not oblige him to file.

                                14
C.

In concluding our opinion we thank the amicus curiae
and the members of his firm for ably advancing the
positions that an appeal is mandatory under the Federal
Death Penalty statute when the death penalty is imposed
and that we should not dismiss this appeal. Nevertheless,
as the foregoing discussion makes clear, Hammer is a
confessed murderer who not only pleaded guilty but also
obtained what he believes was a fair trial on the penalty
phase of the case. Moreover, it does not appear that any
other person has a legally-cognizable interest in these
proceedings. At all events, we have carefully considered the
entire record and concluded that, in the circumstances, the
interests of justice do not require that he be compelled to
appeal or that we review the district court proceedings on
the merits. We have considered the options, but are
satisfied that the proper course is to exercise our discretion
to grant Hammer's motion to dismiss. The appeal will be
dismissed. The case will be remanded to the district court
to fix an early new date for the implementation of the
sentence of death.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               15
