IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA :

:

v. : No. 4:CR-96-239

:

DAVID PAUL HAMMER : (Judge Muir)

 ORDER

 May 11, 2005 

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

On November 4, 1998, this court sentenced David Paul

Hammer to die by lethal injection for the first degree murder of

Andrew Marti. The relevant history of this case since the

imposition of the sentence of death is set forth in prior opinions

and orders and we will not repeat that history other than as needed

to address the pending matter.

On January 27, 2005, we issued an order which granted in

part and denied in part Hammer’s motion for leave to file a

supplemental and third amended § 2255 motion (hereinafter referred

to as “the third amended motion”). The order also established a

briefing schedule with respect to the third amended motion. Hammer

filed a brief in support of the third amended motion on February

25, 2005. The Government filed a brief in opposition on April 20,

2005. Hammer filed a reply brief on May 9, 2005.

This case is presently on the July, 2005, trial list for

a hearing on Hammer’s third amended motion. The claims to be

addressed at that hearing are set forth in Grounds 1 through 14,

16, 18, 19 and 22 of the third amended motion. 

Ground 15 raises a purely legal issue and will be

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addressed in this order. In Ground 15 Hammer contends that his

“sentence was imposed in violation of the 5 th, 6th, 8th and 14th

Amendments because the Federal Death Penalty Act is

unconstitutional in that it permits the prosecution for the death

penalty without first requiring a grand jury to indict on all

essential elements of the offense and because it permits

traditionally inadmissible evidence to be introduced at the penalty

phase. . . .” 

Hammer contends that the Grand Jury was required to

return an Indictment which listed the aggravating factors

justifying the imposition of a sentence of death and that the

jury’s penalty phase determination was unreliable because evidence

was presented during the penalty phase in violation of the rules of

evidence.

The Government responded to the first contention relating

to Indictment by the Grand Jury by pointing out (1) that Hammer did

not raise the issue at the time of trial and it is therefore

waived, (2) that no case precedent in effect at the time Hammer was

sentenced to death required the Grand Jury to return an Indictment

specifying the aggravating factors and (3) that Hammer is not

claiming that counsel was ineffective for failing to raise the

issue. The Government argues that in light of court precedent at

the time of Hammer’s trial, counsel were not ineffective for

failing to argue that the Indictment should be dismissed because

the grand jury did not enumerate any statutory aggravating factors.

Furthermore, the Government argues that because the claim was not

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raised at trial, Hammer must demonstrate that an error was

committed at trial, the error was “plain” and that it affected

substantial rights. United States v. Cotton, 122 S.Ct.1781, 1785

(2002). 

The Government argues that no error was committed but

even if an error was committed it was not “plain” error, and it did

not affect substantial rights. We agree with the position of the

Government that failure of the Grand Jury to specify in the

Indictment the “intent” element and the aggravating circumstances

was not “plain” error. The decision that brought into question

whether or not in a capital case the Grand Jury should specify the

“intent” factor and the aggravating circumstances was not decided

until well after we imposed a sentence of death in this case.

Apprendi v. New Jersey, 530 U.S. 466 (2000). Counsel could not

have reasonably have been expected to anticipate Apprendi or that

case’s potential applicability to capital cases. 

With respect to Hammer’s claim that we permitted

inadmissible evidence to be introduced at the penalty phase, Hammer

fails to point out where, in the penalty phase record, we allowed

the “relaxed evidentiary rule” set out at 18 U.S.C. § 3593(c) to be

used to support one of the aggravating factors found by the jury.

As the Government correctly points out, even in non-captial cases

we have uniformly required the Government to adhere to the rules of

evidence at presentence hearings and we did so in this case. We

will, therefore, dismiss Ground 15 of Hammer’s third amended

motion.

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In light of the briefs filed by the Government and

Hammer, there are some procedural matters that need to be

addressed. First, Hammer in his reply brief filed on May 9, 2005,

refers to numerous documents that he intends to present at the

evidentiary hearing scheduled to occur in July. Hammer is advised

to comply strictly with the following standard provision of our

trial list order set forth last in this case in our order of

February 23, 2005:

7. Exhibits, Proof of Contents of. The portions

of all exhibits which are to be considered by the 

trier of fact shall be read aloud in open court so 

that the trier . . . of the fact may grasp the 

important language. Only portions of exhibits so

read will be considered by the trier . . . of the 

facts . . .

Counsel or a witness shall read all pertinent portions of exhibits

or request that the court during the hearing read silently

particular portions of the exhibits. Only such portions read aloud

or read silently by the court in open session will be considered by

the court. This will give assurance to Hammer and Government

counsel that the court will not inadvertently fail to consider a

relevant portion of a document.

The Government in its opposition brief at page 16

suggests that we revisit our “rulings” set forth in our order of

January 27, 2005, which granted in part and denied in part Hammer’s

motion to file the third amended motion. We decline to revisit our

rulings based on a request set forth in a brief. Government counsel

should be well aware that we only act on the basis of a properly

filed motion after full briefing.

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NOW, THEREFORE, IT IS HEREBY ORDERED THAT:

1. Ground 15 set forth in Hammer’s third amended motion

is dismissed.

2. Hammer shall comply fully with paragraph 7 of our

trial list order referred to in the background of this order. 

 3. On or before July 1, 2005, Counsel shall submit

proposed findings of fact and conclusions of law addressing Grounds

1-14, 16, 18, 19 and 22 of Hammer’s third amended motion annotated

in accordance with paragraph 3.12 of the practice order issued in

this case on September 20, 1996. 

 s/Malcolm Muir __________________________ MUIR, U.S. District Judge

MM:gs

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