USA v. Smith et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
v.
JOHN PEARL SMITH, II,
Defendant.
Case No. 3:16-cr-00086-SLG-1
ORDER REGARDING JURY INSTRUCTION ON EFFECT OF
SELECTION-PHASE NON-UNANIMITY
Before the Court at Docket 700 is the government’s Motion in Limine to
Preclude Evidence, Argument, or Instruction Encouraging Nullification. Defendant
John Pearl Smith, II responded in opposition at Docket 813. The government
replied at Docket 848. The government seeks an order precluding the defense
“from asking, or arguing, for death penalty nullification, including informing the jury
of the consequences of their failure to reach unanimity.”1
As the First Circuit recently explained, in the selection phase “jurors in a
federal capital case cannot recommend that a defendant die unless . . . [they]
unanimously find that all the aggravators outweigh any mitigators to justify his
getting death. And if they cannot make a unanimous recommendation, the judge
steps in and can impose either a life sentence without release or any lesser
1 Docket 700 at 2.
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sentence allowed by law.”2 In Mr. Smith’s case, if the jury cannot reach a
unanimous decision as to the appropriate sentence—the death penalty or life
without parole—the parties agree that the Court will sentence Mr. Smith to life
without parole. The issue presented by the instant motion is whether this Court
should give the jurors an instruction as to the consequences of them being
deadlocked in the selection phase—in other words, should the Court tell the jurors
that if they fail to reach a unanimous sentencing decision, the Court will impose a
life without parole sentence?
I. The parties’ positions and proposed jury instructions
The government asserts that capital defendants have “no right to inform the
jury of the effect of their failure to reach a unanimous sentencing verdict” and that
“any argument that a jury should be informed about the consequences of its failure
to reach unanimity . . . is foreclosed by Supreme Court and relevant Circuit court
precedent.”3 The government relies primarily on Jones v. United States, in which
the Supreme Court held that a deadlock-consequences instruction is not
constitutionally required by the Eighth Amendment and further declined to exercise
its “supervisory powers to require that an instruction on the consequences of
2 United States v. Tsarnaev, Case No. 16-6001, 2020 WL 4381578, at *47 (1st Cir. July 31,
2020) (citing Jones v. United States, 527 U.S. 373, 376–77 (1999)).
3 Docket 700 at 2, 11.
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deadlock be given in every capital case.”4 Accordingly, the government’s
proposed jury instruction on this topic reads:
In order to impose a sentence of death or life imprisonment without
the possibility of release, all twelve jurors must unanimously agree
that a sentence of death or a sentence of life imprisonment without
the possibility of release is the appropriate sentence. Only if you are
unanimously persuaded that the aggravating factors sufficiently
outweigh the mitigating factor or factors found to exist to justify a
sentence of death, or, in the absence of a mitigating factor, whether
the aggravating factors alone are sufficient to justify a sentence of
death, may you then return a verdict in favor of death.
***
If, after weighing the aggravating and mitigating factors, you
unanimously recommend that a sentence of death shall be imposed,
then the Court is required to sentence the defendant to death. If you
unanimously recommend that a sentence of life imprisonment without
the possibility of release shall be imposed, then the Court is required
to sentence the defendant to life imprisonment without the possibility
of release.5
The government’s proposed penalty-phase jury instructions thus contain no
information that the default sentence the Court will impose if the jury deadlocks is
a life sentence without the possibility of release. The government’s proposed
penalty-phase verdict form gives the jury two options: (1) death penalty or (2) life
imprisonment without the possibility of release.6
4 527 U.S. 373, 382–83 (1999).
5 Docket 878 at 17–18.
6 Docket 878-1 at 4.
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Mr. Smith responds that Jones “merely held that capital jurors were not
entitled to an instruction as to the consequences of jury deadlock,” but that “district
courts routinely give” an instruction as to the consequences of selection-phase
deadlock.7 Mr. Smith’s relevant proposed jury instructions read:
The choice between these alternatives is left exclusively to you. In
order to impose a sentence of death, all twelve jurors must agree that
death is the appropriate sentence. If one or more jurors does not
conclude that death is the appropriate sentence, the death penalty will
not be imposed. That is, if you do not unanimously agree on either life
without the possibility of release or death, I will sentence John Smith
to life imprisonment without possibility of release. Your decision will
be binding on the court, and I will impose sentence on John Smith
according to your choice.
***
Although the choice between life and death is an individual decision,
a decision to impose a death sentence on John Smith must be a
unanimous one. That means that every juror must individually
determine that a sentence of death must be imposed. If all twelve of
you do not reach the individual decision that a sentence of death
should be imposed, I will impose a sentence of life without the
possibility of release. Because the death penalty is never required, life
without possibility of release is always an acceptable sentence under
the law.
***
If, after weighing the aggravating and mitigating factors, you
unanimously determine that a sentence of death shall be imposed,
then the court is required to sentence John Smith to death; otherwise,
whether the jury is unanimous for life or not unanimous, the sentence
will be life without the possibility of release.8
7 Docket 813 at 2.
8 Docket 879-9 at 2, 9–10, 14 (emphases added). The first paragraph is taken from the
instruction given to the jury in United States v. Williams, Case No. 06-00079JMS (D. Haw. June
6, 2014).
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Mr. Smith’s proposed penalty-phase jury instructions thus contain three references
to the default sentence the Court will impose if the jury cannot reach a unanimous
sentencing decision. Mr. Smith’s proposed penalty-phase verdict form gives the
jury three options: (1) unanimous vote for life imprisonment without the possibility
of release, (2) unanimous vote for a sentence of death, or (3) “After due
deliberation, we are unable to come to unanimous agreement on the issues of
punishment. We understand that the court will impose a sentence of life
imprisonment without the possibly of release[.]”9
II. Model Jury Instructions
The government points to the Ninth Circuit’s Model Jury Instruction and to
the Federal Criminal Pattern Jury Instruction regarding jurors’ duty to deliberate.10
However, these model jury instructions were not drafted to be particular to Federal
Death Penalty Act (FDPA) cases. While the Court gives them due consideration,
it also takes guidance from the FDPA-specific model jury instructions from the
Tenth and Eighth Circuits.
9 Docket 879-10. The proposed verdict form is the same as was given to the jury in United
States v. Williams, Case No. 06-00079JMS (D. Haw. June 6, 2014). A similar third option was
also on the verdict form in United States v. Sampson, 335 F.Supp.2d 166, 240 (D. Mass. 2004).
The verdict form in United States v. Anh The Duong, Case No. CR01-20154-JF (N.D. Cal. 2010)
listed the life-sentence option as “we do not unanimously agree that a sentence of death should
be imposed. A sentence of life imprisonment without the possibility of release results by law.”
(available at
https://fdprc.capdefnet.org/sites/cdn_fdprc/files/Assets/public/verdict_forms/duong_anh_the_nd
_ca_2010_redacted.pdf) (last accessed Aug. 21, 2020).
10 Docket 700 at 8–9.
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The Tenth Circuit’s instruction on “Sentencing Choices and Responsibility”
reads:
Members of the jury, you have unanimously found the defendant,
__________, guilty of __________ as charged in count ___ of the
indictment. This offense is punishable by death or by imprisonment
for life without possibility of release. The choice between these
alternatives is left exclusively to you. Your unanimous decision will be
binding on the court, and I will impose sentence on the defendant
according to your choice. If you cannot unanimously agree on the
appropriate punishment, I will sentence the defendant to life
imprisonment without possibility of release.11
The Tenth Circuit jury instruction committee justified its decision to instruct the jury
on the effect of non-unanimity as being “the most straightforward approach”:
As explained in Jones v. United States, 527 U.S. 373, 380–81 (1999),
if the jury is unable to reach a unanimous verdict, the sentencing
determination passes to the court (i.e., the court does not discharge
the jury and hold a second sentencing hearing). When the sentencing
options are limited to death or life without possibility of release (which
is the basic case this set of instructions is drafted to cover), there is
only one sentence the court may impose. Thus, if the jury does not
unanimously agree on a death sentence, it has effectively
chosen a sentence of life without possibility of release,
regardless of whether the jurors unanimously agreed on that
alternative sentence, and it makes no sense to ask the jury
whether they have done so. Therefore these instructions are
most naturally written simply to ask the jury whether they have
unanimously agreed on a death sentence and, if not, to direct
them to indicate that a sentence of life without release should be
imposed. Although a jury need not as a general matter always be
told the consequences of their failure to return a unanimous verdict,
Jones, 527 U.S. at 381–83, in this context it seems to be the most
straightforward approach.12
11 Tenth Circuit Criminal Pattern Jury Instructions § 3.01 (2011 ed., updated Feb. 2018)
(boldface emphasis added, italics in original).
12 Tenth Circuit Criminal Pattern Jury Instructions, Comment to § 3.01 (2011 ed., updated Feb.
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Accordingly, the Tenth Circuit’s sample “Special Findings Form” reads: “If you do
not unanimously conclude that a sentence of death is justified and therefore must
be imposed, sign the verdict for life imprisonment set out in Verdict—Life
Imprisonment below, sign the certification in section IV, and notify the court that
you have reached a decision.”13 The Tenth Circuit has thus chosen to not even
instruct the jury that it must unanimously find that a life sentence is appropriate;
the jury need only not reach unanimity that a death sentence is justified in order to
trigger a life sentence.
The Eighth Circuit’s instruction on “Consequences of Deliberations,” citing
Jones and 18 U.S.C. § 3594, reads:
If you cannot unanimously agree whether [the defendant] should be
sentenced to death or life imprisonment without possibility of release,
the court will sentence the defendant to a minimum of life in prison
and may sentence the defendant to life imprisonment without the
possibility of release. [There is no parole in the federal system.]14
The Eighth Circuit’s sample “Special Verdict Form” requires a “determin[ation], by
unanimous vote, that a sentence of death shall be imposed” or a “determin[ation],
2018) (italics in original, bold type added).
13 Tenth Circuit Criminal Pattern Jury Instructions, Special Findings Form, part III (2011 ed.,
updated Feb. 2018).
14 Eighth Circuit Model Death Penalty Jury Instructions, § 12.12 (brackets in original).
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by unanimous vote, that a sentence of life imprisonment without possibility of
release shall be imposed.”15
Thus, both the Tenth and Eighth Circuits model instructions—the only
circuits to have FDPA-specific model jury instructions—propose instructing the
jurors as to the effect of non-unanimity in the selection phase.
III. Circuit and district court guidance
The Ninth Circuit has not considered the issue raised by the instant motion
in an FDPA case, but other federal circuits have followed Jones to hold that capital
defendants are not entitled to a jury instruction on the effect of a selection-phase
deadlock.16 Some district courts have also followed suit.17
Other district courts, however, have elected to inform the jury of the
consequence of non-unanimity. In United States v. Sampson, an FDPA case in
15 Eighth Circuit Model Death Penalty Jury Instructions, § 12.22.
16 United States v. Tsarnaev, Case No. 16-6001, 2020 WL 4381578, at *49 (1st Cir. July 31,
2020); United States v. Taylor, 814 F.3d 340, 372 (6th Cir. 2016) (finding no abuse of discretion
in district court’s refusal to give instruction), abrogated on other grounds by United States v.
Richardson, 948 F.3d 733 (6th Cir. 2020); United States v. Whitten, 610 F.3d 168, 203 (2d Cir.
2010); Belmontes v. Ayers, 529 F.3d 834, 877 (9th Cir. 2008), judgment rev’d on other grounds
by Wong v. Belmontes, 558 U.S. 15 (2009). See also United States v. Chandler, 996 F.2d 1073,
1089 (11th Cir. 1993) (predating Jones but reaching the same conclusion).
17 See, e.g., United States v. Wilson, Case No. 04-CR-1016, 2013 WL 3187036, at *4–5
(E.D.N.Y. June 20, 2013); United States v. Caro, 483 F.Supp.2d 513, 520–21 (W.D. Va. 2007);
United States v. Richardson, Case No. 1:08-CR-0139-CC, 2010 WL 11667839, at *10 (N.D. Ga.
Sept. 16, 2010) (declining to give instruction in preliminary instructions but not “rul[ing] out the
possibility of instructing the jury of the consequence of deadlock during the closing charge”);
United States v. Cramer, Case No. 1:16-CR-26, 2018 WL 7821097, at *1–2 (E.D. Tex. Apr. 6,
2018) (prohibiting defense counsel from discussing consequence of non-unanimous sentencing
decision with jury).
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the District of Massachusetts, the district court instructed the jury on the
consequences of non-unanimity.18 As recognized by the Sampson court, “the
Eighth Amendment does not require that the jury be told the consequences of their
failure to agree and that the government has a strong interest in a unanimous
verdict—one way or the other—in a death penalty prosecution. However, the
Supreme Court in Jones did not forbid this sort of instruction.”19
IV. Consideration of the jury
In Jones, an FDPA case, the Supreme Court considered, inter alia, “whether
petitioner was entitled to an instruction as to the effect of jury deadlock.”20 The
Supreme Court held that such an instruction was not constitutionally required, and
explained that
we have long been of the view that “[t]he very object of the jury system
is to secure unanimity by a comparison of views, and by arguments
among the jurors themselves.” We further have recognized that in a
capital sentencing proceeding, the Government has “a strong interest
in having the jury express the conscience of the community on the
ultimate question of life or death.” We are of the view that a charge
to the jury of the sort proposed by petitioner might well have the effect
of undermining this strong governmental interest.21
18 335 F.Supp.2d 166 (D. Mass. 2004).
19 Id. at 240 (citing Jones, 527 U.S. 373 at 381–82). The First Circuit’s recent decision in United
States v. Tsarvaev does not disrupt the Sampson court’s reasoning, since the First Circuit
merely reiterated the holding of Jones and did not prohibit the instruction.
20 527 U.S. at 375.
21 Jones, 527 U.S. at 382 (quoting Allen v. United States, 164 U.S. 492, 501 (1896); then
quoting Lowenfield v. Phelps, 484 U.S. 231, 238 (1988)).
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This Court finds that with appropriate safeguards, an instruction on the
effect of non-unanimity will not unreasonably hamper the government’s interest in
a unanimous jury verdict.22 The Court intends to place reasonable limits on the
defense’s ability to argue this issue to the jury and will not overly emphasize the
effect of non-unanimity in its instructions to the jury. The Court agrees with the
reasoning of the District of Massachusetts, which “chose to inform the jury of the
consequences of deadlock for several reasons”:
First, viewing this instruction as part of the overall instructions
regarding deliberations, the court believed that the government’s
interest in a unanimous verdict was adequately protected. Second,
informing the jurors of the consequences of deadlock emphasized the
individual responsibility of each juror. Ensuring that jurors were
cognizant of this responsibility was also an important government
interest. Third, the instruction also ensured that jurors undertook their
deliberations accurately understanding the consequences of their
actions. Declining to instruct the jury on the consequences of a
deadlock could result in jurors deliberating based on a
misunderstanding of the law rooted in speculation and incorrect
assumptions.23
To prevent jurors from misunderstanding the law, the Sampson court instructed
that
If, after making all reasonable efforts, at the conclusion of your
deliberations on a particular count, you have not reached unanimous
22 In Sampson, where the instruction was given, the jury returned a unanimous death sentence
on two counts. 335 F.Supp.2d at 173. In contrast, in United States v. Anh The Duong, Case
No. CR01-20154-JF (N.D. Cal. 2010) the instruction was given but the jury did not find that
aggravating factors outweighed mitigating factors to justify a death sentence. Verdict form
available at
https://fdprc.capdefnet.org/sites/cdn_fdprc/files/Assets/public/verdict_forms/duong_anh_the_nd
_ca_2010_redacted.pdf (last accessed Aug. 24, 2020).
23 Sampson, 335 F.Supp.2d at 240–41.
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agreement on whether the prosecution has proven that the death
penalty is justified, you will not be a hung jury. And in contrast to the
conventional criminal case, this case will not have to be tried again
because the jury did not reach a unanimous verdict. Rather, if you are
unable to reach a unanimous verdict on whether the government has
proven the death penalty is justified on a particular count, the law
provides that I must sentence Mr. Sampson to life in prison without
possibility of release on that count, and I will do so.24
The jurors seated for this capital trial will be tasked with rendering verdicts
on 17 counts, with rendering a forfeiture verdict, with rendering verdict(s) in the
eligibility phase, and then, if any guilty verdicts on capital counts are returned,
weighing what will likely be numerous aggravating and mitigating factors to render
verdict(s) as to whether Mr. Smith will live or die. In the course of this process, the
jurors will give up weeks—if not months—of their time; some jurors will have to live
in hotels during trial weeks; and some jurors will have to travel long distances from
remote parts of Alaska to Anchorage where trial will be held. The realities of trial
mean that jurors will likely spend considerable time waiting in the jury room while
the Court and parties confer; they will be limited in access to media; and they will
be prohibited from speaking with family and friends about the trial. To not inform
the jurors of the legal consequence of a deadlocked jury would disrespect their
exclusive role in the sentencing process and the sacrifices necessary to exercise
24 Id. at 241, n.43.
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that role.25 This information is nothing more than an accurate statement of the law
as set forth in the FDPA.26
The Court does not view such an instruction as “an open invitation for the
jury to avoid its responsibility and to disagree,”27 for the jurors will be well-instructed
that they have a responsibility to try and reach a unanimous sentencing decision.
As courts have repeatedly stated, jurors are presumed to follow the instructions
that they are given.28 The Court has no reason to believe that the jurors in this
case will not fulfill their duty to deliberate in an effort to reach unanimity. Moreover,
the Court intends to reasonably restrict legal argument on this topic by counsel.
25 In Jones, the Supreme Court wrote that “the proposed instruction has no bearing on the jury’s
role in the sentencing process. Rather, it speaks to what happens in the event that the jury is
unable to fulfill its role—when deliberations break down and the jury is unable to produce a
unanimous sentence recommendation.” 527 U.S. at 382. The Supreme Court was considering
whether such an instruction was constitutionally required in light of the role of the jury in FDPA
sentencings; this Court views the instruction as appropriate out of respect for the role the jury
plays and in the interest of giving the jury the complete legal framework in which it is making its
sentencing decision.
26 18 U.S.C. §§ 3593(e), 3594. But see United States v. Richardson, Case No. 1:08-CR-0139-
CC, 2010 WL 11667839, at *10 (N.D. Ga. Sept. 16, 2010) (“[T]he Government compellingly
argues [that] a non-unanimous verdict is not a verdict allowed by the Federal Death Penalty
Act.”).
27 Jones, 527 U.S. at 384 (quoting Justus v. Virginia, 266 S.E.2d 87, 92 (1980)).
28 See, e.g., Francis v. Franklin, 471 U.S. 307, 324 n.9 (1985) (noting that a “crucial assumption
underlying that system [of trial by jury] is that juries will follow the instructions given them by the
trial judge” and “presum[ing] that jurors, conscious of the gravity of their task, attend closely the
particular language of the trial court’s instructions in a criminal case and strive to understand,
make sense of, and follow the instructions given them.”). This principle has been recognized in
other FDPA cases. See United States v. Mitchell, 502 F.3d 931, 990 (9th Cir. 2007); United
States v. Ciancia, Case No. 2:13-cr-00902-PSG-1, 2015 WL 13798672, at *1 (C.D. Cal. May 12,
2015); Duncan v. United States, Case No. 2:07-cr-00023-EJL, 2019 WL 1320039, at *22 (D.
Idaho Mar. 22, 2019).
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CONCLUSION
The Court finds that, even though not constitutionally required, it is
appropriate to instruct the jury as to the sentence that will be imposed (life without
parole) if they cannot reach a unanimous decision as to the appropriate penalty.
The Court will include such an instruction in the draft instructions it provides to the
parties. At this point, the Court will not rule on the scope of any voir dire or
argument it will allow counsel to make as to the effect of non-unanimity.
However, the Court does not find it necessary or appropriate to include a
“deadlocked” option on the verdict form. If during penalty-phase deliberations the
jury reports that it is unable to come to a unanimous decision, the Court will then
consider, with input from the parties, whether an Allen charge is appropriate.29
In light of the foregoing, IT IS ORDERED that the motion at Docket 700 is
DENIED.
DATED this 26th day of August, 2020, at Anchorage, Alaska.
/s/ Sharon L Gleason
UNITED STATES DISTRICT JUDGE
29 See Allen v. United States, 164 U.S. 492, 501–02 (1896) (approving use of supplemental jury
instruction to encourage deadlocked juries to continue deliberations); Lowenfield v. Phelps, 484
U.S. 231, 237–41 (1988) (approving Allen-type instruction in context of capital sentencing). See
also United States v. Williams, Case No. 06-00079 JMS/KSC, 2014 WL 2893232 (D. Haw. June
26, 2014) (denying capital defendant’s motion for mistrial in selection phase and discussing
standards for declaring jury deadlocked).
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