United States v. Daniel Lewis Lee, Also Known as Daniel Lewis Graham, Also Known as D.L. Graham, Also Known as Danny Lee

Citations: 274 F.3d 485; 190 A.L.R. Fed. 657; 2001 U.S. App. LEXIS 26538; 2001 WL 1590491Docket: 00-1975

Court: Court of Appeals for the Eighth Circuit; December 14, 2001; Federal Appellate Court

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Daniel Lewis Lee was convicted of murder in aid of racketeering under 18 U.S.C. § 1959(a)(1), resulting in a death sentence following a jury's verdict. The case, which involved the robbery and murder of a gun dealer and his family, was appealed by the government after the district court granted Lee a new penalty phase hearing. The initial indictment included co-defendant Chevie Kehoe, with both defendants facing capital charges. After Kehoe received a life sentence, U.S. Attorney Paula Casey sought to withdraw the death penalty notice against Lee but was uncertain about the necessary approvals from the Department of Justice (DOJ). Following consultation with DOJ officials, it was determined that the death notice would remain in effect. 

For the penalty phase, the government intended to prove the non-statutory aggravating factor of future dangerousness, based on Lee's prior conviction for murder, threatening behavior during incarceration, a weapons conviction, and lack of remorse. Jury instructions were established to assess whether Lee's past actions justified classifying him as a future threat to society.

The government indicated in a discovery motion that it would refrain from introducing mental health evidence during its case-in-chief in the penalty phase, intending to use such evidence only to counter any mental health evidence presented by the defendant. Lee's defense initially planned to counter the government's future dangerousness claim using a risk assessment by Dr. Mark Cunningham but changed strategy after Dr. Cunningham was denied crucial prison information. Instead, he focused on mitigating factors from Lee's upbringing. The government, unaware of this shift, secured permission for its own expert, Dr. Thomas Ryan, to conduct a risk assessment to challenge Dr. Cunningham's expected testimony.

During the penalty hearing, the government questioned Dr. Cunningham about risk assessment techniques, which Lee's counsel objected to on the grounds that Dr. Cunningham would not address violence risk. The court overruled this objection, deeming the government's inquiry relevant to Dr. Cunningham's qualifications. Dr. Cunningham's testimony highlighted several mitigating factors from Lee’s background, including his influence by others, familial neglect and abuse, childhood health issues, early substance abuse, and psychological diagnoses.

The government subsequently cross-examined Dr. Cunningham about his psychological evaluations and Lee's potential for violence. Lee's counsel sought to limit this line of questioning, arguing that it was not addressed during direct examination. The district court allowed the government to explore the topic, citing Dr. Cunningham’s expertise. After the day's proceedings, Lee's counsel moved to restrict the upcoming testimony of Dr. Ryan, aiming to exclude discussions on risk assessment, future dangerousness, and psychopathy. The court deferred a ruling, indicating that it would allow the defendant to object during Dr. Ryan's testimony if it strayed beyond rebuttal.

Dr. Cunningham's cross-examination included testimony about Lee's history of violence, including physical abuse towards a girlfriend and sister, burglary, arson, and differential treatment of individuals based on race, as well as inquiries into potential psychopathy. Lee's counsel requested a ruling to limit Dr. Ryan's testimony, arguing that the government’s inquiries into Lee's violent history and psychopathy were not appropriate. The district court partially granted this motion, prohibiting Dr. Ryan from discussing psychopathy or the Hare psychopathy test, while allowing other topics related to future dangerousness to remain open for future objections. 

During Dr. Ryan's testimony, the government questioned him about Lee's diagnoses, and an objection regarding a question about Lee's remorse was overruled by the court. The jury subsequently delivered a death verdict on May 14, 1999. Following the verdict, the district court questioned the authority of Deputy Attorney General Holder regarding the withdrawal of Lee's death notice and sought briefing on this matter, expressing concerns about the appropriateness of seeking the death penalty for Lee under the circumstances. 

Lee moved to set aside the death verdict and for a new penalty hearing, claiming violations of court orders and plea agreements by the government and seeking testimony from Attorney General Reno and Deputy Attorney General Holder about the administration of death penalty protocols in the Attorney General's absence. The district court granted subpoenas for their testimony, which were later quashed by a writ of mandamus from a higher court, remanding the case for further proceedings.

The district court, on remand, determined that Deputy Attorney General Holder's decision not to withdraw Lee's death notice was invalid and asserted Lee's right to compel the DOJ to follow the death penalty protocol. The court mandated that the DOJ must "fully and properly comply" with this protocol when reconsidering the request to withdraw the notice. If the Attorney General agreed to withdraw, Lee would be sentenced to life without parole; if not, Lee would receive a new penalty trial. The court's conditional order stemmed from findings that Lee had enforceable rights under the protocol, which had been violated, and that the government improperly introduced evidence of Lee's past behavior without adequate notice. 

In its appeal, the government argued that the district court abused its discretion, asserting that individuals lack enforceable rights in the DOJ protocol, that there was no error in admitting the contested testimony, and that Lee had no right to prior notice of evidence. The government also contended that its evidence was not constrained by its prehearing statements. Lee countered that the district court's ruling was justified, though his counsel acknowledged that the proper remedy for any protocol violation would be to resubmit the withdrawal request rather than mandate a new trial.

The district court's order for a new trial hinged on the DOJ's decision regarding the withdrawal of Lee's death notice, based on the conclusion that the government violated the protocol when Holder acted without the Attorney General's authority, thereby allowing Lee to enforce compliance as per the Accardi doctrine.

The Accardi doctrine prevents administrative agencies from acting inconsistently with their internal regulations when individual rights are affected; however, it has not been applied to the internal regulations of the Department of Justice (DOJ). Courts have established that individuals have no enforceable rights under the DOJ's Petite policy, which limits federal prosecution for acts already prosecuted at the state level. The unique nature of prosecutorial discretion means the Accardi doctrine does not apply to criminal law enforcement policies. The DOJ Manual, which includes the death penalty protocol, explicitly states that it does not create enforceable rights for individuals and does not restrict the DOJ's legal prerogatives. Federal courts have upheld this disclaimer, confirming that DOJ guidance does not confer substantive rights. Consequently, the death penalty protocol is deemed unenforceable by individuals, and any alleged violations cannot serve as a basis for a new penalty hearing.

The order for a new penalty hearing was based on prior evidentiary rulings by the district court. The standard for reviewing a new trial order is whether there was an abuse of discretion. The government contends that the district court abused its discretion by ordering a new trial, arguing that its original rulings during Lee's penalty hearing were not erroneous. The plain error standard applies when a defendant fails to preserve an alleged error at the sentencing phase, allowing a court to recognize unpreserved errors. Generally, objections to evidence must be made at the time of introduction to preserve errors; a motion in limine does not suffice. If errors are preserved, a new trial may be granted if it serves the interests of justice.

In this case, the trial court found that Lee adequately preserved his evidentiary objections. The court acknowledged Lee's continuing objection during Dr. Cunningham's cross-examination, and the government did not contest this ruling. Lee's motion to limit Dr. Ryan's rebuttal testimony was partially granted, and he objected when the government questioned his remorse. Consequently, the standard for a new penalty hearing was whether the interests of justice required it.

The Federal Death Penalty Act (FDPA) allows broad admission of evidence at capital sentencing hearings, permitting parties to present any matter relevant to sentencing. This flexibility is essential as the need for regulating testimony is less stringent in penalty phases than in guilt phases. The Federal Rules of Evidence do not govern capital penalty hearings, with the district court only excluding evidence when its probative value is outweighed by the potential for unfair prejudice, confusion, or misleading the jury. Admission of unadjudicated prior offenses at capital sentencing hearings is constitutionally permissible and not inherently prejudicial.

The court allowed the government to present evidence of Lee’s unadjudicated past bad acts, including various assaults and discriminatory behavior, as they were relevant to assessing his future dangerousness and the credibility of Dr. Cunningham, who had presented a sympathetic view of Lee's background. The government's cross-examination aimed to challenge the accuracy of Dr. Cunningham's testimony.

Any potential unfair prejudice from testimony about Lee's past bad acts did not outweigh its probative value, as these acts were similar to evidence presented by the government. The testimony from Dr. Cunningham was unlikely to provoke the jury more than the murder evidence already discussed. A limiting instruction was given, allowing the jury to consider only evidence of future dangerousness from the government's case. The jury could have justifiably recommended a death sentence regardless of the unadjudicated offenses mentioned, indicating the district court did not err in admitting this testimony.

The government’s cross-examination of Dr. Cunningham also included inquiries into Lee's potential psychopathy, relevant to future dangerousness, a topic not covered in Dr. Cunningham's direct testimony. Although this questioning may have exceeded direct scope, it did not create unfair prejudice, as Lee introduced the mental health expert, thereby permitting psychological discussions. The Federal Death Penalty Act (FDPA) supports a broad range of evidence during capital penalty phases, and the district court was correct in permitting this testimony.

Dr. Ryan's testimony, which included a comment on Lee's lack of remorse, was limited to a single statement within his extensive testimony. While this remark exceeded Dr. Cunningham's direct scope, it conformed to the broad evidentiary standards for capital sentencing hearings, and did not unfairly prejudice Lee. Consequently, the interests of justice did not necessitate a new trial.

The government contended that the district court incorrectly applied Rule 611(b) of the Federal Rules of Evidence in assessing the scope of Dr. Cunningham's cross-examination, despite acknowledging that those rules do not govern capital sentencing hearings. Although the court cited both the FDPA and Rule 611(b), it failed to apply the appropriate balancing test from § 3593 of the FDPA, which should have taken precedence over standard evidentiary rules in this context.

The district court found that allowing aggravating evidence from Lee's mental health expert was unfair because Lee lacked prior notice and an opportunity to respond. Under the Federal Death Penalty Act (FDPA), the government must notify the defendant of the aggravating factors it intends to prove, but there is no requirement for advance notice of specific evidence. Although Lee had the right to respond to the government's aggravating evidence, he was not denied this opportunity; he could have requested a continuance or sought surrebuttal. The record showed no unfair prejudice against Lee.

The government contested the district court's finding of unfairness regarding the introduction of mental health evidence, arguing it deviated from the prehearing statement that it would not introduce such evidence unless Lee did first. However, the court did not err as the government did not present mental health evidence during its case in chief but rather during cross-examination after Dr. Cunningham testified. The court deemed Dr. Cunningham's testimony relevant to Lee's mental health and criminal propensity, rejecting Lee's narrow interpretation that it lacked risk assessment or psychological diagnosis.

The district judge was noted for handling evidentiary issues with care and expertise, and the allowance of the government's cross-examination was deemed appropriate. The single rebuttal statement from Dr. Ryan regarding Lee's lack of remorse did not constitute unfair prejudice. Ultimately, the conclusion was that the district court abused its discretion in ordering a new penalty hearing based on these grounds.

Lee has no enforceable rights under the death penalty protocol, and any violations of this protocol do not warrant a new penalty trial. The court determined that the district court's rationale for granting a new penalty hearing was flawed based on several findings: (1) Evidence exceeding Dr. Cunningham's direct testimony was admissible; (2) Dr. Ryan's comment about Lee's lack of remorse did not unfairly prejudice the case; (3) Rule 611(b) was not applicable to the capital sentencing hearing; (4) Lee was not entitled to prior notice regarding the evidence presented by the government; and (5) The evidence introduced by the government did not contravene its prehearing statement or preapproved jury instructions. Consequently, the district court's order for a new penalty hearing was deemed an abuse of discretion, leading to the reversal of that order and the reinstatement of Lee's death sentence. The death penalty protocol requires a thorough evaluation process by the DOJ before pursuing death penalty charges, which includes a completed evaluation form reviewed by the Attorney General's Review Committee. Additionally, while evidence of Lee's threatening behavior towards a deputy sheriff was admitted during the penalty hearing, the jury instructions approved by Lee beforehand indicated that he was aware of the evidence to be introduced.