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No. 93-7118 IN THE UNITED
STATES COURT OF APPEALS
UNITED STATES
OF AMERICA, v. JOHN J. McCULLAH,
Appeal from
the United States District Court
BRIEF OF APPELLANT ORAL ARGUMENT REQUESTED Gary
Peterson Stephen
J. Greubel
TABLE OF CONTENTS II. STATEMENT OF THE ISSUES PRESENTED FOR REVIEW
V. ARGUMENT -- GUILT PHASE AND NON-CAPITAL SENTENCING ISSUES A. THE DISTRICT COURT ERRED IN ITS ASSIGNMENT OF APPOINTED COUNSEL TO MR. McCULLAH
B. THE DISTRICT COURT ERRED IN ADMITTING STATEMENTS COERCED FROM MR. McCULLAH BY A GOVERNMENT AGENT
C. THE HOMICIDE CONVICTION IMPOSED ON COUNT 16 WAS UNSUPPORTED BY SUFFICIENT EVIDENCE
D. THE CONVICTIONS AND SENTENCES IMPOSED ON COUNTS 1, 13 AND 14 CANNOT BE UPHELD
E. THE DISTRICT COURT ERRED IN OVERRULING THE DEFENSE'S CHALLENGE FOR CAUSE OF A JUROR WHO WORKED AS A PRISON GUARD F. THE ARGUMENTS OF MR. McCULLAH'S CODEFENDANTS ARE ADOPTED
VI. ARGUMENT -- PENALTY PHASE AND CAPITAL SENTENCING ISSUES
B. THE DISTRICT COURT ERRED IN ITS CHOICE OF A PENALTY STAGE TRIAL FORMAT
C. THE DISTRICT COURT ERRED BY SUBMITTING A NEW AGGRAVATING FACTOR AFTER DEFENSE COUNSEL HAD DELIVERED HIS CLOSING ARGUMENT FOR HIS CLIENT'S LIFE D. THE PROSECUTION'S DEATH PENALTY ARGUMENTS INACCURATELY INFLATED THE EXTENT OF MR. McCULLAH'S CULPABILITY F. THE DISTRICT COURT UNLAWFULLY RESTRICTED VOIR DIRE INQUIRY INTO JURORS' ABILITY TO CONSIDER MITIGATING FACTORS G. BECAUSE OF PROCEDURAL ERRORS AND DISPROPORTIONALITY, THE DEATH SENTENCE IS ARBITRARY H. THE SENTENCE OF DEATH BY INTRAVENOUS LETHAL INJECTION IS UNLAWFUL VII. STATEMENT REGARDING ORAL ARGUMENT
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Constitutional Provisions United States Constitution
Statutes United States Code
United States Statutes at Large
Oklahoma Statutes
Rules, Regulations and Guidelines Federal Rules of Criminal Procedure
Federal Rules of Evidence
Local Rules, Eastern District of Oklahoma
United States Sentencing Guidelines § 1B1.3(a)(1)(B) Code of Federal Regulations
American Bar Association, Model Code of Professional Responsibility (1980)
Other Authorities American Bar Association Standing Committee on Ethics and Professional Responsibility, Informal Opinion 1418 (Aug. 14, 1978) Black's Law Dictionary (6th ed. 1990) Congressional Record,134 Cong. Rec. S7490 (June 9, 1988) Mauet, Fundamentals of Trial Techniques (2nd ed. 1988) Note, The Eighth Amendment and Ineffective Assistance of Counsel in Capital Trials,107 Harv. L. Rev. 1923 (1994) Random House Unabridged Dictionary (2nd ed. 1993) Sutherland, Statutory Construction Vol. 2A, § 47.33 (5th ed. 1992)
PRIOR AND RELATED APPEALS United States v. Molina, No. 93-7040 (10th Cir.),
pending
The District Court's jurisdiction in this criminal case was based on 18 U.S.C. § 3231. This Court's jurisdiction is based on 28 U.S.C. § 1291, 18 U.S.C. § 3742(a), and 21 U.S.C. § 848(q)(1). A notice of appeal was filed on November 19, 1993 (V.6, Doc. 630),[1]to review judgments and sentences entered on November 12, 1993. See Appendix T and Appendix U.
II. STATEMENT OF THE ISSUES PRESENTED FOR REVIEW. A. Did the District Court err in refusing to appoint defense counsel with capital punishment expertise, when the applicable statute required appointment of two counsel "learned in the law"? B. Did the District Court err in refusing to allow appointed defense counsel to withdraw, when another client in counsel's office had been identified as a prosecution witness against Mr. McCullah? C. Did the District Court properly admit evidence of statements by Mr. McCullah to a Government agent, when those statements were provoked by threats of death communicated by the agent? D. Was there sufficient evidence that Mr. McCullah was "working in furtherance" of a continuing criminal enterprise, as charged in homicide count 16, when he had no involvement in or knowledge of the enterprise's drug trafficking activities? E. Was there sufficient evidence that the count 16 homicide occurred was "in furtherance of" a continuing criminal enterprise, when that homicide frustrated, rather than furthered, the enterprise's objectives? F. Was there sufficient evidence to support Mr. McCullah's conviction and sentence for the drug conspiracy alleged in count 1? G. Was the drug conspiracy alleged in count 1 a lesser included offense of a homicide in furtherance of a continuing criminal enterprise, as charged in count 16, thereby precluding conviction on both counts? H. Was there sufficient evidence that Mr. McCullah intended commission a murder for hire when he travelled from California to Oklahoma, as required to sustain convictions on counts 13 and 14? I. Did the District Court properly overrule a challenge for cause against a prospective juror who worked as a correctional officer, when that officer was vested with police powers under state law? J. Did the District Court err in its submission of non-statutory and statutory aggravating factors to Mr. McCullah's jury? K. Did the District Court err in holding four days of the penalty phase of the trial in Mr. McCullah's absence? L. Did the District Court err in adopting a penalty stage format which required jurors to deliberate about Mr. McCullah's relative culpability and punishment before hearing his mitigating evidence? M. Was it proper to submit a new aggravating factor to a Mr. McCullah's jury, when defense counsel was not advised that the factor was in issue until after his penalty phase closing argument? N. Did the prosecutor's penalty phase jury argument constitute plain error, when it asserted unsupported facts concerning Mr. McCullah's involvement, which had not been proven in court? O. When the expert testimony supporting several defense mitigating factors was uncontradicted, did Mr. McCullah's jurors err in refusing to find these factors? P. Did the District Court improperly restrict voir dire inquiry into whether prospective jurors would be willing to consider specific mitigating factors at issue in the case? Q. Was Mr. McCullah's death sentence unlawfully disproportionate to those imposed in this and other cases? R. Did the District Court properly sentence Mr. McCullah to die by lethal injection, when no statute authorized this punishment?
A. Nature of the Case, Course of Proceedings, and Disposition Below. The Defendant McCullah was charged by superseding indictment in the Eastern District of Oklahoma with the following four offenses: narcotics conspiracy in violation of 21 U.S.C. § 846 (count 1); interstate travel for purpose of murder for hire in violation of 18 U.S.C. § 1958(a) (count 14); conspiracy to violate 18 U.S.C. § 1958(a) in violation of 18 U.S.C. § 371 (count 13); and causing a killing in furtherance of a continuing criminal enterprise in violation of 21 U.S.C. § 848(e)(1)(A) (count 16). See Appendix D. Nine codefendants were charged in the same 29-count superseding indictment which named Mr. McCullah. Three of these codefendants (Arvizu, Carlos and Poncho) were never arrested. Three more codefendants (Thayer, Mendoza and Villa) entered guilty pleas before trial. The remaining three codefendants, Hutching, Molina and Sanchez, were tried jointly with Mr. McCullah. Before trial, the Government gave notice that it would seek the death penalty on count 16 against Mr. McCullah, Hutching and Molina (Appendix C; V.1, Docs. 105, 106). A two-month jury trial was held in Muskogee, Oklahoma, beginning on January 26, 1993. The jury returned guilty verdicts against Mr. McCullah on all four of the counts in which he was charged (V.4, Doc. 474). Codefendants Molina and Sanchez were also found guilty on all charged counts (V.4, Docs. 473, 475); Hutching was acquitted on two firearm counts, and convicted on all remaining counts against him (V.4, Doc. 472). Following the guilty verdicts on count 16, the District Court immediately began the sentencing phase of the trial for Hutching, Molina and Mr. McCullah. The penalty cases for the three codefendants were presented and decided in series before the same jury which decided guilt: Hutching first; Molina next; and Mr. McCullah last. In their first two penalty verdicts, the jurors rejected the death penalty for Hutching and Molina (V.5, Docs. 509, 517). The jurors then returned a verdict of death against Mr. McCullah. See Appendix Q at 2. The trial ended on March 23, 1993. Codefendants Hutching, Molina and Sanchez were sentenced in April of 1993. Each received multiple life sentences. See Appendix Z. Their appeals are pending. Mr. McCullah was sentenced in November of 1993. The District Court imposed a sentence of death by lethal injection on count 16. See Appendix T at 2. Concurrent life sentences were imposed on counts 1 and 14, and a concurrent 5-year sentence imposed on count 13. See Appendix U at 2. No fines were imposed, but special assessments of $50 were imposed on each of the four counts. This appeal followed (V.6, Doc. 630).
B. Facts Relevant to the Issues Presented For Review.
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