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The family Leiopelmidae* is considered by all recent authorities as the most primitive among the living Salientia (Noble, 1922, 1931; Slabbert and Maree, 1945; Millard, 1949, etc.). It has therefore several times attracted the attention of zoologists (Archey, 1922; Noble and Putnam, 1931; Wagner, 1934a, b; de Villiers, 1934a, b; de Vos, 1938–39a, b, etc.). Until recently, however, its vascular anatomy was completely unknown.
Blood vessels are a very interesting and important part of amphibian anatomy and are at present being studied rather extensively (Bhaduri, 1930, 1931, 1938; Bhaduri and Ghose, 1943; Millard, 1941, 1942, 1945, 1949; Paterson, 1942; Szarski, 1937, 1948, etc.) with interesting results. I was therefore very glad to dissect some specimens of Leiopelma sent to me from New Zealand through the courtesy of Professor K. Wodzicki. When the work was already finished I learned that an account of the blood vessels of Leiopelma had been published by E. M. and N. G. Stephenson (1947). In the following notice therefore I do not attempt to give a full description of the vascular anatomy of that genus, especially as my material was very limited; I shall only discuss some details not observed by the Stephensons, or especially interesting when compared with other Salientians.
I had at my disposal three female specimens of Leiopelma hochstetteri Fitz., collected in a stream at Huia, Waitakere Ranges, Auckland, North Island, New Zealand, July 21, 1947, by Mr. E. G. Turbott. The animals were injected with Indian ink through the truncus arteriosus by Professor L. R. Richardson in Wellington. The dissections were performed under a low-power binocular microscope. In none of the animals were all the blood vessels completely filled with ink. Nevertheless, in all the specimens it was possible to examine the larger arteries and veins, and in one animal even the finer vessels were almost completely injected, especially in the region of the head and trunk.
The general plan is very similar to that found in the majority of Salientia (E. M. and N. G. Stephenson, Szarski, 1947), only a few points deserve special attention.
[Footnote] * As pointed by Turbott (1942), the original spelling of the generic name is Leiopelma, not Liopelma.
A. coeliaco-mesenterica is given off from the ventral aorta about 1 mm. caudad from the point of union of the right and left thoracic aortae, as in Bombina.
A. mesenterica caudalis was present in all three animals investigated. The Stephensons give to this artery the name of the anterior haemorrhoidal.
Text Fig. 1. The branching off of the middle sacral artery. A.caud., aorta caudalis; A.il.comm., a. ilica communis; A.mes.caud., a. mesenterica caudalis; Aor.ab., aorta abdominalis.
As stressed by the Stephensons, the large cutaneous artery is a spacious vessel. Its diameter equals the diameter of the pulmonary artery. It runs in a cranio-dorsal direction, surrounds the scapula craniad and divides into three vessels very similar to those found in Rana esculenta, namely: ramus lateralis arteriae cutaneae magnae, r. auricularis a.c.m., and r. dorsalis a.c.m.
R. lateralis a.c.m. corresponds to the continuation of the large cutaneous artery in Bombina, Pelobates and Bufo (Szarski, 1948). It runs caudad directly under the skin which it supplies.
R. auricularis a.c.m. runs craniad exactly as in Rana, reaches the skull and bends in a curve ventrad, finally supplying the thymus and the muscles of the mandibular joint. It does not, however, anastomose with the temporal artery, as in Rana and Bufo.
R. dorsalis runs dorsad as in Rana, and supplies the skin of the back and of the dorsal surface of the head.
caudalis (Fig. 2). V. cava cranialis (V.cav.cr.) arises through the junction of the following vessels: v. jugularis externa (V.jug.ex.), v. jugularis interna (V.jug.int.), v. subscapularis (V.subsc.), v. cardinalis caudalis (V.card.caud.), and v. subclavia (V.subcl.).
Text Fig. 2. The principal vessels of the trunk seen from the ventral side. Left side of the drawing: the arrangement found in specimens Nos. 1 and 2. Right side: specimen No. 3. A.coel.m., a. coeliaco-mesenterica; A.occ.vert., a.occipito-vertebralis; Aor., aorta thoracica; V.card.caud., v.cardinalis caudalis; V.cav.caud., v. cava caudalis; V.cav.cr., v. cava cranialis; V.jug.ex., v. jugularis externa; V.jug.int., v. jugularis interna, V.subel., v. subclavia; V.subsc., v. subscapularis.
V. jugularis externa arises from the union of the lingual and faciomandibular veins. The tributaries of the faciomandibular vein are peculiarly arranged. This detail was not mentioned by the Stephensons. They unite in the neighbourhood of the mandibular joint. The principal tributaries are: v. mandibularis interna, v. facialis, v. infratympanica, and a rather strong vessel conducting the blood from the floor of the mouth.
V. mandibularis interna runs exactly as in other Salientians.
bone dorsally and reaches the palate, where it runs caudad on the internal margin of the maxillary. On the caudal margin of the palate, this vein [called v. facialis in spite of dubious homology (V.fac.)] is joined by a second vein from the palate, V. palatina (V.pal.). Then after a short course the facial opens into the faciomandibular vein.
Text Fig. 3. Veins on the palate, seen from the ventral side. Max., maxillare; V.fac., v. facialis; V.pal., v. palatina.
V. palatina conducts the blood from the palate in a manner not noticed in other Salientians. It arises under the medio-cranial region of the orbit by the union of two vessels: one running from the region of the choanae, the second from the lateral part of the palate. The palatine vein runs caudad, roughly parallel to the lateral margin of the parasphenoid, bends laterad, and in the region of the mandibular joint opens into the facial vein.
V. infratympanica is a slender vessel which runs ventrad from the internal jugular to the external jugular in the temporal region. A tributary of the tympanic vein is v. thymica.
From the above description it is obvious that the arrangement of veins in the palatine region in Leiopelma differs considerably from that found in the majority of Salientians. A similarity to this pattern is displayed only by Bombina, as in this animal the facial vein runs also on the internal surface of the maxillary (Szarski, 1948).
V. jugularis interna begins as in other Salientia in the angle of the skull formed by the cerebral box and os prooticum in the vicinity of R. hyomandibularis nervi facialis, as v. cerebralis media. In Leiopelma it is a very slender vessel conducting little blood and difficult to detect in sections. According to the Stephensons it receives a tributary from the palate. In my material I could not verify this point. The course of v. jugularis interna follows the normal Salientian pattern.
other Salientia. It drains the blood not only from the vertebral muscles but receives also a very strong tributary from the central nervous system. The last-named branch leaves the skull together with n. vagus. As the internal jugular is a slender vessel, the vertebral vein is in Leiopelma the principal route conducting the blood from the brain (V. cerebralis posterior).
V. vertebralis opened to the internal jugular in specimens Nos. 1 and 2 (left side of Fig. 2). In specimen No. 3 the arrangement of the veins differed, as the vertebral vein opened not into the internal jugular but into the postcardinal vein (Fig. 2, right side).
V. subscapularis and v. subclavia drain, as in other Salientia, the thoracic limb. The large cutaneous vein opens into v. subclavia similarly to all Salientians except Bombina, where two cutaneous veins exist, one opening into the subclavian and the other into the subscapular vein.
The large cutaneous vein in Leiopelma drains the blood from the skin of the trunk, but as in the majority of Salientia, it does not reach the head region.
In the thoracic limb only two transverse anastomoses were found. The first one runs on the upper arm directly under the skin, on the cranial margin of the leg, and connects v. branchialis with v. profunda brachii. The second anastomosis is formed by arcus venosus dorsalis manus in the region of the wrist.
As first stated by the Stephensons, in Leiopelma the postcardinals persist in the adult state. This feature is shown among Salientia also by Ascaphus, Bombina, Discoglossus and occasionally in Alytes (Howes, 1888). V. v. cardinales caudales (Fig. 2, V.card.caud.) begin in Leiopelma in a tangle of vessels, forming spacious sinuses between the kidneys. They run cranio-laterad, along the mesial borders of the kidneys, parallel to the thoracic aortae (Aor.) and open into the precavals (V.cav.cr.).
Also from the same venous sinuses arises the postcaval (V.cav. caud.) which is a very large vessel (diameter ca. 2·5 mm.) It follows the normal Salientian course.
Blood vessels in the pelvic limb were in all three specimens rather poorly injected. It is therefore difficult to go into a detailed description. The principal vessels were, however, clearly visible. They follow closely the arrangement found previously in Bombina (Fig. 4): v. femoralis dorsalis and v. ischiadica are present and are united by an anastomosis on the lateral side of the knee joint. V. femoralis ventralis and v. ilica transversa are absent. The description given by the Stephensons of this region is too general to be considered here.
It was impossible to ascertain the presence of the caudal vein.
form of three parallel vessels (spec. No. 2). This points to a great variability in the venous system, which can be considered as a primitive feature. A similar observation was made in Pipa (Klinckowström, 1894) and in several Caudata (Szarski, 1938).
Text Fig. 4. Principal veins on the thigh in Salientia (after Szarski, 1948). P., Pelobates; Bo., Bombina: R., Rana; Bu., Bufo. A.isch., a. ischiadica; V.fem.d., v. femoralis dorsalis; V.fem.v., v. femoralis ventralis; V.glut., v. glutea; V.isch., v. ischiadica.
This short description of the principal points in the arrangement of the blood vessels of Leiopelma indicates that although several traits of its vascular anatomy are evidently primitive, in general, however, a great similarity exists in the organisation of this primitive animal and the majority of Salientia. When considered in detail the blood vessel system of Leiopelma is nearest to that of Bombina. This fact indicates a great primitiveness of Discoglossidae in general. Similar results were also obtained by comparison of the cranial morphology of those Amphibians (Slabbert and Maree, 1945). The following points of vascular anatomy should be especially stressed as common both to Leiopelma and Bombina: the origin of the a. coeliaco-mesenterica, the persistence in the adult animal of v. v. cardinales caudales, the course of the facial vein, the course of the venous anastomosis in the upper arm, the arrangement of the veins in the thigh. All those features are probably primitive and therefore indicate a great antiquity of Leiopelma and Bombina.
Very important, also, is the fact that the structure of the great entaneous artery in Leiopelma is closely similar to that found in higher Salientia. It suggests that the presence and characteristic anatomical relations of this vessel are a very ancient trait of Salientia. Cutaneous respiration was evidently developed long before Salientia began to split up into the groups living at present. Poor development of the great cutaneous artery which characterises the Pipidae must be regarded as a result of secondary adaptation to the watery habitat.
cavity, namely v. cerebralis anterior, media and posterior. In all Salientias so far dissected v. cerebralis media remains the principal vessel of the brain. In Xenopus, v. cerebralis posterior persists in the adult state, but as a rudiment (Millard, 1949). In Leiopelma it is the principal vessel.
Recently the vascular anatomy of Xenopus was an object of detailed study (Millard, 1941, 1942, 1945, 1949; Paterson, 1939, 1942). When compared with Leiopelma and Bombina it is striking how few points were found in Xenopus which could be considered as primitive, and how many are peculiar to this animal only, and are evidently extreme adaptations to life in water. It seems, therefore, that the present systematics of the lower Salientia, founded by Noble (1924, 1931)—(i.e., dividing those animals into two suborders: Amphicoela—including only one family, Leiopelmidae, and Opisthocoela—including two families, Discoglossidae and Pipidae)—cannot receive support from the angiological point of view. The Discoglossidae seem to be more closely related to the Leiopelmidae than to the Pipidae.
The arrangement of the principal arteries and veins was examined in three female specimens of Leiopelma hochstetteri Fitz. The principal findings are the strong development of the large cutaneous artery, the presence of postcardinals in adult specimens, the peculiar mode of origin of the facial and faciomandibular veins, the fact that the greater part of the blood from the brain leaves the skull through the vagus foramen and flows into the vertebral vein, and, finally, the presence in the thigh of v. ischiadica and v. femoralis dorsalis.
These features, compared with the vascular anatomy of the other Salientia, suggest that: (1) Cutaneous respiration is a very ancient property of Salientia; (2) the Leiopelmidae and Discoglossidae are closely related; (3) the Pipidae is not a primitive group, but one secondarily adapted to life in water.
I am deeply obliged to Mr. Turbott and Professor Richardson for their kindness in providing me with material for this work, and also to Professor Wodzicki, who was so kind as to arrange the consignment of preserved animals to Poland.
Archey, G., 1922. The habitat and life history of Liopelma hochstetteri. Rec. Canterbury Mus., 2, pp. 59–71.
Bhaduri, I. L., 1930. Notes on the arterial system of the common Indian toad, Bufo melanosticus Schneid. Journ. Proc. Asiatic Soc., 26, pp. 301–315.
——, I. L., 1931. Observations on the course of the facial vein and the formation of the external jugular vein in some Indian frogs and toads. Journ. Proc. Asiatic Soc., 27, pp. 101–110.
——, I. L., 1938. Observation on the course of the facial vein and the formation of the external jugular vein in an American bullfrog, Rana catesbeiana. Anat. Anz., 86, pp. 170–172.
——, I. L., and Ghose, K. C., 1943. Notes on the lumbar veins in the common Indian toad, Bufo melanosticus Schneider. Journ. R. Asiatic Soc., 9, pp. 55–62.
de Villiers, C. G. S., 1934a. Studies on the cranial anatomy of Asoaphus truei Stjnr., the American “Liopelmid.” Bull. Mus. Comp. Zool., Harvard, 77, pp. 7–38.
——, C. G. S., 1934b. On the morphology of the epipubis, the Nobelian bones and the phallic organ of Ascaphus truei Steineger. Anat. Anz., 77, pp. 23–47.
de Vos, C. M., 1938–39a. The inscriptional ribs of Liopelma and their bearing upon the problem of abdominal ribs in Vertebrata. Anat. Anz., 87, pp. 82–101.
——, C. M., 1938–39b. The zonal and sternal skeleton of the Liopelmidae (Anura). Ibidem, pp. 54–81.
Howes, G. B., 1888. On the azygos vein in the anurous Amphibia. Proc. Zool. Soc. London, p. 122.
Klinckowström, A. v., 1894. Zur Anatomie der Pipa americana. III. Gefässsystem und subcutane Lymphsäcke. Zool. Jahrb. Abt. Ont., 7, pp. 647–666.
Millard, N., 1941. The vascular anatomy of Xenopus laevis (Daudin). Trans. R. Soc. South Afr., 28, pp. 387–439.
——, N., 1942. Abnormalities and variations in the vascular system of Xenopus laevis (Daudin). Trans. R. Soc. South Afr., 29, pp. 9–28.
——, N., 1945. The development of the arterial system of Xenopus laevis, including experiments on the destruction of the larval aortic arches. Trans. R. Soc. South Afr., 30, pp. 217–234.
——, N., The development of the venous system of Xenopus laevis. Trans. R. Soc. South Afr., 32, pp. 55–99.
Noble, G. K., 1922. The phylogeny of the Salientia. I. The osteology and the thigh musculature, their bearing on classification and phylogeny. Bull. Amer. Mus. Nat. Hist., 46, pp. 1–87.
——, G. K., 1931. The biology of the Amphibia. New York and London.
——, G. K., and Putnam, P. G., 1931. Observations on the life history of Ascaphus truei Stejneger. Copeia, 1931, pp. 97–101.
Paterson, N. F., 1939. The head of Xenopus laevis. Quart. J. Mior. Sci., 81, pp. 161–234.
——, N. F., 1942. The anterior blood-vessels of Xenopus laevis. S. Afr. J. Sci., 38, pp. 279–291.
Slabbert, G. K., and Maree, W. A., 1945. The cranial morphology of the Discoglossidae and its bearing upon the phylogeny of the primitive Anura. Ann. Univ. Stellenbosch, 23, pp. 91–97.
Stephenson, E. M. and N. G., 1947. On the circulatory system of Leiopelma hochstetteri with particular reference to the posterior cardinal veins and to the blood-vessels of the kidneys. Trans. R. Soc. N.Z., 76, pp. 492–503.
Szarski, H., 1937. The blood vessels of the thymus gland in some of the Salientia. Bull. Int. Acad. Pol. Sci., B II, 1937, pp. 139–149.
——, H., 1939. The blood vessels of the thymus gland in some of the Urodela. Bull. Int. Acad. Pol. Sci., B II, 1938, pp. 305–315.
——, H., 1948. On the blood-vascular system of the Salientia. Bull. Int. Acad. Pol. Sci., B II, 1947, pp. 145–211.
Turbott, E. G., 1942. The distribution of the genus Leiopelma in New Zealand with a description of a new species. Trans. Roy. Soc. N.Z., 71, pp. 247–253.
van Gelderen, Chr., 1924. Die Morphologie der Sinus durae matris. I. Die vergleichende Ontogenie der neurokraniellen Venen der Anamnien und Reptilien. Ztschr. Anat. Entw., 73, pp. 541–605.
——, 1933. Venensystem, mit einem Anhang über den Dotterund Plazentarkreislauf. Handb. Vergl. Anat. Wirbelt., 6, pp. 685–744. Berlin und Wien.
Wagner, D. S., 1934a. Liopelma studies. I. The structure of the inner ear in relation to the reduction of the middle ear in the Liopelmidae (Noble). Anat. Anz., 79, pp. 20–36.
——, D. S., 1934b. Liopelma studies. II. On the cranial characters of Liopelma hochstetteri. Anat. Anz., 79, pp. 65–77.
James Park was born at Thanestone Hall in the Valley of the Don in the year 1857. His mother was a niece of Mountstuart Elphinstone, Governor of Bombay in the John Company days. We know very little of his youth except that he studied under Sir Andrew Ramsay, who was Professor of Geology at the Imperial College, London, and also Director of the Geological Survey of Great Britain. He can, however, have remained at his studies for not more than a year or so, but in this short time he acquired a passionate liking for geology. When, at the age of seventeen, he sailed for New Zealand he could not have dreamed that he was destined to play a pioneer role in working out the geology of that young Dominion. He actually left with his sister, who was sailing for Wellington to join her husband, an Army officer, but shortly after their arrival in New Zealand her husband was transferred to Gilbraltar and James Park was left in New Zealand alone.
He started work as a cadet on a sheep station near Castlepoint, but before doing so he presented to Dr. Hector, at the Colonial Museum, a letter of introduction from Sir Andrew Ramsay. The East Coast of the North Island was sparsely settled in those days and roads were non-existent. The spirit of adventure took him on long riding journeys and he became an inveterate huntsman after the wild cattle and pigs in which that country abounded: experience which was later to stand him in good stead on his pioneering expeditions in the King Country and the Southern Alpine regions.
In those days, however, the price of wool fell so low that Park could see no future in sheep farming and in 1878 he returned to Wellington, where he obtained a junior position in the Geological Survey. His first geological expeditions were with Alexander McKay in the Nelson Province, followed, in 1879, by a geological and botanical expedition with McKay and Buchanan in the region extending from Lake Ohai to Hawea and Wanaka, with excursions to the sources of the Hopkins and the Matukituki.
Park also came to know Sir George Grey intimately, for, during sessions of Parliament, Sir George used to wander over to the Museum to inquire the fate of his cherished copper lode in Kawau Island.
I remember they were fancy—for I threw a stone to try 'em.
The first ascent of Mount Franklin was made by Park, and he later succesfully traversed the Mount Arthur Range, including the ascent of the summit—Double Peaks.
It was not long before the tranquil atmosphere of the drafting office was too much for him, and in 1885 he rejoined the Geological Survey, working again with his cabin-mate, Cox, until the latter was appointed successor to Sir William LeNeve Foster as Professor of Mining at the Royal School of Mines.
In succeeding years he was engaged on surveys in Taranaki (where he was able, for the first time, to place the succession of our Tertiary rocks on a sound basis), in the Collingwood area, and in the region of Big Bay and the Dart River on our West Coast. In 1886 and 1887 he conducted almost the first explorations in the King Country, which was in those days a refuge for disaffected natives and renegade pakehas, difficult of access and separated from the coastal areas by deeply dissected forest-clad ranges. He made the first ascent of Mount Ruapehu on January 8, 1885: the official narrative of the ascent is published in volume 19 of our Transactions.
The following year saw him in the inaccessible Red Hill country of South Westland, which he reached from Glenorchy, ascending Mount Cosmos on the way, and then again he spent a summer in his beloved mountains of western Nelson. He did, in fact, write more than thirty official reports on many phases of geology for the Geological Survey.
In 1889, after fifteen years spent in the exploratory work he so loved, and at the age of thirty-two, he was appointed Director of the Thames School of Mines at a time when the Hauraki goldfield had developed into one of the world's more important centres of gold-mining. This was a turning point in Park's career, because, although he retained his love for the mountains and returned to them whenever he could, he transferred his main interests to mining and mining geology and, later, to academic work.
For a time he became Consultant to a financial organization with mining interests on the Hauraki goldfields, and in 1901 he accepted the Chair of Mining at Otago University, which had been rendered vacant by the accidental death of Professor Ulrich.
Many men who were later to become famous passed through Park's hands. They include that group of mining engineers who were associated with Herbert Hoover (later President of the United States) in the Western Australian goldfields—Malcolm Maclaren, who became the world's leading mining geologist; John Agnew, who became the world's leading gold financier; G. W. Thomson, who became General Manager of the rich Ashanti mines; and several others.
Park already had a very wide knowledge of the geology of New Zealand and he did not allow this to stagnate after his appointment to Otago. During the years of his professorship he wrote five large memoirs for the Geological Survey, including three on Central Otago—the scene of so much successful alluvial gold mining. But the one which we in Dunedin know best is that dealing with the Oamaru District, which is still fundamentally correct.
in some measure marks the close of a chapter, since the specialized work of succeeding decades, particularly in palaeontology, petrology and geomorphology naturally has called for some modification of the stratigraphical classifications and certain other conclusions of our great pioneer geologists. His writings were not, however, confined to official reports and text books. He was a contributor to many geological and some mining engineering papers and technical journals. The full list of his varied writings would contain about a hundred titles.
He found time to go abroad, and travelled widely in the Western Australian goldfields, in Tasmania, and on the Continent, and he was engaged as a consultant in countries as far removed as New Caledonia and Spain. During the first world war, he reported on nickel, chrome, wolfram and molybdenite mines for the Allies in the Pacific region.
Park retired at the age of seventy-five in 1931 and was appointed Emeritus Professor of Otago University. He had brought to the University a wealth of experience as an explorer, a fundamental knowledge of geology gained from Hector, McKay, and Cox, a knowledge of mining and mining geology from the Hauraki goldfields, and, above all, a knowledge of men and their ways. He belonged to the old school before the days of specialization and had an exceptional range of interests and an exceptional capacity for work.
He served as President of the Otago Institute, and for many years was its representative on the Board of Governors of the New Zealand Institute. For fifteen years he was President of the Otago University Rugby Football Club, and he was also President of the New Zealand Society of Mining Engineers. He was a Fellow of the Geological Society, an Honorary Member of the Geological Society of Berlin, and an Honorary Member of the Institution of Mining and Metallurgy (London).
His retentive memory, his sense of humour, and his never failing optimism made him a delightful conversationalist and an agreeable companion. He loved to entertain his students (and this I might say he did on a most lavish scale) and recount to them the stories of his exploring days; he kept young by his associations with the younger generation. He had a large family and his youngest son later became famous—he is Air Marshal Sir Keith Park, who controlled the Battle of Britain and then became the air defender of Malta, and later the Allied Air-Commander in Chief, South-East Asia Command.
Park died at Oamaru in 1947 at the age of ninety, shortly after he had been visited by Sir Keith and Lady Park. His life of exceptional fullness and usefulness was crowned by the visit of his famous son, the anticipation of which had sustained him through the last months of illness.
Professor Park's portrait hangs in the Scottish National Gallery among those of other distinguished Scotsmen, and a photograph of this portrait is published in this volume.
Dr. Patrick Marshall was for over forty years an outstanding figure among New Zealand scientists, and was well known to geologists in many lands as a very versatile and productive investigator. Born in 1869, he was the son of the Rev. J. H. Marshall, M.A., of Sapiston, Suffolk, who, chiefly for reasons of health, brought his family to New Zealand in 1876, and settled at Kaiteriteri in the Nelson District. He died, however, in 1878, and his widow and family went back to England, where Patrick Marshall entered school in Bury St. Edmunds. In 1881 his family returned to New Zealand and resided at Wanganui, and in the Collegiate School there Patrick Marshall completed his secondary education. He entered Canterbury University College in 1889 and in 1892 gained the B.A. and B.Sc. degrees with the Senior Scholarship in Geology which he had studied under Professor F. W. Hutton, F.R.S. In the following year he completed with high honours the M.A. course in Geology, working at the University of Otago under Professor G. A. F. Ulrich, completing his first research, a study of the Tridymite Trachyte of Lyttelton, which was published in 1894.
In 1896 he became Science Master at the Grammar School, Auckland, and resuming his interests in geological research, he studied the volcanic rocks of that region, completing a thesis, the majority of which is still unpublished, for which he was granted the D.Sc. degree.
the University of New Zealand, of the Senate of which he was for some years a member. His list of publications during the period contains over fifty titles. They included a book on the Geography of New Zealand (1905, revised 1911), the Geology of New Zealand (1912), and the portions of the “Handbuch der Regionalen Geologie” dealing with New Zealand and the adjacent Islands, and with Oceania (1912). He was extremely active in research. His accounts of the Geology of the Dunedin District (1906) and “The Sequence of Lavas at North Head, Otago Harbour” (1914), which involved a great amount of field work, and petrographical and chemical study, are among the most notable of his many papers. With them there are also to be recalled many other papers on the igneous rocks and other features of New Zealand geology in both the South and North Islands. His petrographic interests were extended to deal with the volcanic rocks of the south-western Pacific, and on this ground of mutual interest he entered into frequent correspondence and later personal association with Professor A. Lacroix, and was in 1938 elected a Correspondent de l'Academie des Sciences Coloniales. His active membership in what is now the Australian and New Zealand Association for the Advancement of Science gave him occasion to discuss before it the distribution of the igneous rocks in New Zealand (1907), Ocean Contours and Earth Movements in the South-West Pacific (1909), and his Presidential Address to the Geological Section on the structural boundaries of the south-western Pacific (1911) which were shown to be related to the line separating the regions wherein andesitic lavas occur from those wherein there are basic alkaline lavas. This concept was crystallised in his use of the term “the andesitic line” for the structural boundary of the western half of the Pacific basin in his account of the Geology of Oceania (1912), a term which has come into very general use, though an alternative term, “the Marshall line” has also been used with the same significance. The many problems, geophysical, geological, and biological arising from a consideration of the natural history of the Pacific were often in Dr. Marshall's mind, and formed the subjects of his Presidential Address to the Geographical Section of the Australian and New Zealand Association for the Advancement of Science in 1932, and that given by him as President of the whole Association in 1946.
The preparation of his books on the Geology of New Zealand must have brought very vividly before him the unsatisfactory and to some extent contradictory conceptions regarding the stratigraphy of New Zealand during the opening decade of this century, and he devoted much effort towards the study of the sedimentary succession and molluscan faunas of the Tertiary and Cretaceous rocks, on which he wrote a number of papers, several of them in collaboration with Mr. R. Murdoch. The most important of these papers was his elaborate study of the Cretaceous ammonites of New Zealand (1926), in part written by him while in the British Museum of Natural History. In this paper the Indo-Pacific affinities of the New Zealand forms are discussed. In connection with the Geological Survey he wrote the portions of the Dun Mountain Bulletin (No. 12, published 1912) dealing with Mesozoic stratigraphy and igneous rocks, also the Tuapeka Bulletin (No. 19, published 1918).
Leaving the University of Otago in 1917, he became Headmaster of his old school, Wanganui College, and retiring from this after several years of service, he devoted himself for a time to geological research in the Pacific Islands and elsewhere, dealing with their petrology and the features of coral reefs. In 1924 he was appointed Geologist and Petrologist to the Department of Public Works, where in addition to his general consultative work, he carried out several major lines of research resulting in important publications, a study of special local interest on the building stones of New Zealand (1929) and two of more widespread theoretical importance. In his investigation of the Wearing of Beach Gravels and Beach Gravels and Sands (1928, 9), carried out both in the field and experimentally, he considered the change in the size and form of the pebbles and the amount and nature of the fine-grained or even colloidal material produced during the processes of attrition, impact and grinding, and in so doing threw much light on the conditions of origin of littoral and off-shore sediments. He also made (1935) elaborate studies of the rocks of rhyolitic composition which are widespread in the centre of the North Island of New Zealand and were originally though to be flows and tuffs. He concluded that they were largely composed of particles which had been explosively erupted and had emitted incandescent gases until they had become on cooling agglutinated into coherent rock-masses often showing marked columnar jointing. This mode of origin is comparable with that of the material derived from nuées ardentes of Katmaian cruptions. The occurrence of rocks of like origin is becoming recognised in regions around the Pacific, and the term “ignimbrite” suggested for them by Marshall is tending to replace the term “welded tuffs” which was often assigned to them.
In later years Dr. Marshall was greatly interested in the occurrence of orbicular granites in New Zealand, and gave a number of excellent polished specimens of these to geological museums, but published little thereon. He was active in the study of zeolitic minerals, believed by him to be of primary origin, occurring in volcanic rocks, especially in more or less alkaline lavas, and spent much time investigating various methods of recognising the presence and determining the nature of such minerals by their diagnostic reactions with various solutions principally of silver nitrate. His latest paper (1946), which gave a short account of such studies, was said to be the precursor of a more detailed study then in preparation, which unfortunately was never completed.
Dr. Marshall's activities in connection with the Australian and New Zealand Association for the Advancement of Science, his presence at the meetings of the Pacific Science Congress in a number of lands, Japan, Java, and California as well as in Australia and New Zealand, and his presence at two European meetings of the International Geological Conference, as well as his many writings, made him well known to geologists in many parts of the world. His chief services to scientific societies were, however, given to the Royal Society of New Zealand, of which he was President in 1925–6, and from which he received the Hutton and Hector Memorial Medals. As an active member of its Executive Committee for many years he exercised much influence on its policy.
The latest of the honours accorded to him in recognition of his long life of varied service to science was the Honorary Doctorate of Science conferred on him by the University of New Zealand in 1948, nearly fifty years after he had received the degree by examination on the grounds of his first major research in Geology. His interest in research was maintained to the last. In a letter to the writer sent in October, 1950, he referred to the interesting carbonate-bearing magnesian rocks near Milford Sound, which he had described in 1904, regretting that he was unable to return to the field and laboratory investigations of their problematical origin. But he passed away early in November in the eighty-second year of his age.

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In this labor law action, plaintiff Matthews was injured when a metal grate fell on him during his work in an elevator shaft within a building owned by the defendant. The defendant hired Paravini McGovern LLC as the construction manager on the site and subcontracted to plaintiff’s employer to install the elevators and to GC Ironworks (GCI) to install the iron-grate platforms in the elevator shaft.
The Supreme Court denied the plaintiff partial summary judgment on his Labor Law section 240(1) claim and granted defendants’ motion for summary judgment dismissing the Labor Law section 200 and common-law negligence claims against Pavarini. The Appellate Division, First Department unanimously reversed, granting partial summary judgment to the plaintiff on the Labor Law section 240(1) claim. Despite the fact that GCI was setting up the grates in preparation to weld them, and the grate that injured the plaintiff fell because it had not yet been welded in place, the First Department held that “the grate was part of the work of the construction project in which plaintiff was engaged and was required to be secured “for the purposes of the undertaking.” In fact, the plaintiffs did not need to even show that the falling object, in this case the grate, was in the process of being hoisted or secured in order to prevail under 240(1). Furthermore, the First Department determined the Labor Law section 200 and common law negligence claims were improperly disposed on summary judgment when evidence suggested that Pavarini exercised control over both GCI as well as plaintiff’s employer’s work because they were working in the same elevator shaft in which the alleged unsafe condition arose.
Second Department Declares Police Car Is An "Automobile"
The issue in this case was whether a police vehicle qualified as a “motor vehicle” in an uninsured motorist endorsement. Officer Fitzgerald was a passenger in a police car when he was injured in a two-car accident. The driver of the other car was underinsured. Fitzgerald sought to recover from his fellow officer’s insurance policy. State Farm, the insurer of that policy, contended the police vehicle was not a “motor vehicle” for purposes of the uninsured/underinsured motorist endorsement. The Supreme Court agreed with State Farm, finding that Officer Fitzgerald should be denied coverage as police vehicles were specifically excluded under the definition of “vehicle” in Vehicle and Traffic Law (“VTL”) section 388(2). In so holding, the Supreme Court relied on State Farm v. Amato, where the Court of Appeals decided New York City had no statutory obligation to insure police vehicles.
The Second Department reversed, finding that the appropriate definition of “motor vehicle” is located in VTL section 125, as it is a more general provision that defines terms for the entire VTL. The police vehicle here fell within this definition as it is a “vehicle operated or driven upon a public highway which is propelled by any power other than muscular power” and as it is not specifically excluded. The Court distinguished the Amato case relied on by the Supreme Court by explaining that Amato dealt primarily with the City’s obligation to provide insurance coverage to police officers, while this deals with whether a police officer has coverage under a private insurance plan of the driver. As the legislature has continuously recognized the importance of innocent victims of accidents receiving just compensation, it would go against public policy to decide otherwise.
As of December 1, 2013, the Federal Rules of Appellate Procedure ("FRAP") no longer require separate sections in an appellate brief for the "Statement of the Case" and the "Statement of Facts." Going forward, FRAP Rule 28 now requires only a single section "setting out the facts relevant to the issues submitted for review, describing the relevant procedural history, and identifying the rulings presented for review, with appropriate references to the record." This combined section is to be labeled as the "Statement of the Case."
In Devito v. Feliciano, the Court of Appeals has clarified what is considered cumulative testimony when deciding to give a missing witness charge. The Court of Appeals held that testimony is cumulative "only when it is cumulative of testimony or other evidence favoring the party controlling the witness." Thus, the Court rejected the trial court's reasoning that testimony would be "cumulative of the opposing witness's testimony." The Court then granted a new trial because it was unable to conclude that the error was harmless.
In Skelly-Hand v. Lizardi, the Third Department affirmed a $2 million award for pain and suffering for an Erb’s palsy injury. In affirming the order, the Third Department criticized the lack of details in the cases the defendants cited, noting “Many of the decisions involving brachial plexus birth injuries upon which defendant relies in arguing for a reduction of the award are unhelpful as they fail to indicate the severity of the underlying injury.” The court also pointed out that some of the cases the defendant cited “describe the injury as mild,” whereas the court described the injury in this case as "severe.'"
Particularizing the injury, the Court stated that the child, age 16 at the time of trial: (1) has severely limited use of her arms and shoulders; (2) cannot perform tasks requiring the use of her two hands without extreme difficulty; (3) underwent extensive and often painful or uncomfortable medical treatments; (4) had five surgeries; (5) required lengthy periods of wearing braces, splints or casts on her injured arm; (6) wore a back brace to treat scoliosis syringomyelia, a condition causally related to her brachial plexus injury; (7) suffered social adjustment and self-confidence issues due to her injuries; (8) has diminished strength, balance and coordination; and (9) needs assistance with basic activities of daily living such as bathing, grooming, and dressing.
Certified Question: Does a Vehicle and Traffic Law Indemnity/Contribution Claim Trump the "Exclusivity" Provision in the Workers’ Compensation Law?
In Hallock v. Koubek, the Second Circuit Court of Appeals has certified a question to the New York Court of Appeals involving the exclusivity of the Workers’ Compensation remedy and the Vehicle and Traffic Law.
The plaintiff was injured as a passenger in a car driven by a co-worker as they returned from a business conference. The plaintiff could not pursue a claim against the driver of the vehicle in which he was injured because the Workers’ Compensation Law generally bars claims against an employer and co-workers. Notably, though, the vehicle was owned by the co-worker’s spouse.
The plaintiff did bring claims against the driver and owner of the second vehicle involved in the collision. Those defendants then brought a third-party claim against the owner of the first vehicle for indemnity and contribution. The third-party claim was based on a Vehicle and Traffic Law provision that imposes statutory liability against an owner for the negligence of a driver permitted to use the vehicle.
The third-party defendant moved for summary judgment, arguing that the Workers’ Compensation provision that barred claims against his spouse also inured to his benefit as the vehicle’s owner. The defendants countered that the Vehicle and Traffic Law controlled, making the owner potentially liable even if the driver could not be sued.
In certifying this case to the Court of Appeals, the Second Circuit noted two lines of cases that made it unclear how the Court of Appeals would rule. One line of cases suggested that the Workers’ Compensation exclusivity provision controls, precluding a contribution action against the vehicle’s owner. In those cases, the prohibition on liability against the driver meant there was no derivative liability under the Vehicle and Traffic Law.
In another line of cases were two decisions that suggested an outcome was less than certain. The Second Circuit pointed to a recent trial-level decision, which it found to be on all fours with the case at hand, that allowed a third-party contribution claim against the vehicle’s owner. The other decision came from the Court of Appeals and it allowed a Vehicle and Traffic Law claim against a vehicle’s owner when the driver had diplomatic immunity from suit. In the case involving diplomatic immunity, the Court of Appeals distinguished its prior and potentially conflicting Workers’ Compensation holdings. Given these divergent cases, the Second Circuit decided it was necessary to seek guidance from the Court of Appeals.
In this medical malpractice case, the plaintiff is seeking damages allegedly suffered by her infant during childbirth. Plaintiff appealed from an order of the Supreme Court that denied thirty-seven of their fifty-six discovery requests.
The Fourth Department determined that the Supreme Court improperly denied eight discovery requests. The Fourth Department then modified the order to allow discovery of some of the requests immediately and requiring a hearing before the Supreme Court for others. The defendant claimed three requests were unduly burdensome to produce, namely: a protocol entitled “Circulating Vaginal Delivery,” materials laying out criteria for determining whether neonatal encephalopathy occurred, and material with referral protocols for infants. After determining that all three were “material and necessary,” the Court stated production was mandated as it was not unduly burdensome to the defendant.
Two of the eight improperly denied discovery requests involved national standards on fetal monitoring that the Court determined could be used to aid in establishing negligence. Despite the fact that these records may be publicly available, the Court held that fact does not “preclude production of those records from a party” if the party possesses them. The Court remitted the matter to the Supreme Court to determine whether defendants have the documents at issue. The defendants claimed that they did not possess two other items, including discovery on cesarean sections and intrapartum and antepartum suctioning. As such, the Fourth Department remitted these issues to be determined at a hearing as well.
The eight discovery request at issue involved the hospital’s “unredacted policies and procedures.” During proceedings on the initial discovery order, the hospital claimed privilege as to certain information. A court-appointed Referee agreed that privileged material would be exempt from discovery, but the extent of the privilege was undetermined. Consequently, the Court directed the Supreme Court to review the information in chambers to determine what part of the “procedures and protocols” was indeed privileged.
In this medical malpractice action, the jury returned a verdict against defendant Crouse Hospital, but in favor of defendant Dr. Caputo. The jury found Dr. Caputo negligent, but that his negligence was not a “substantial factor” in causing plaintiffs injuries. Plaintiff and Defendant Crouse Hospital appealed the jury’s verdict.
The Fourth Department affirmed, explaining that the jury’s finding would be reversed “only when [negligence and proximate cause] issues are so inextricably interwoven as to make it logically impossible to find negligence without also finding proximate cause.” Since, here, there was a “reasonable view” of the evidence that there was negligence without proximate cause, the verdict should stand.
Judge Fahey dissented in part, agreeing with the majority against setting aside the verdict as to Dr. Caputo, but disagreeing on modifying the verdict against Crouse Hospital. He explained that the only reason this allegedly surfaced was because the jury foreperson approached plaintiff’s counsel at a chance encounter at a basketball game about one month after the verdict. In addition, Judge Fahey stated that unless circumstances are extraordinary, “juror affidavits may not be used to attack a jury verdict.” In his view, this was not an exceptional circumstance as it was not a “ministerial error,” such as a foreperson entering the percentages of fault on the wrong line. Instead, it was a “jury’s mistaken impression” about how damages are awarded.
In Wilk v. James, a medical malpractice case previously discussed on this blog, a decedent’s estate sued a hospital and treating doctors because they allegedly failed to diagnose an aortic dissection. Decedent contacted his treating urologist on February 16, 2004 after he was diagnosed with kidney stones the previous day. This doctor eventually referred him to the hospital based on his poor urinary retention. Decedent failed to make a follow up appointment with the doctor after being told to do so, and two days later he was rushed to the hospital for emergency surgery because of a spinal epidural hematoma. Decedent then had an additional surgery based on a re-accumulated clot and died two weeks later. The death certificate listed cerebral infarct with herniation, aortic dissection and spinal cord infarct hematoma as conditions contributing to death. This appeal dealt solely with summary judgment motions filed by the defendant doctors. The Supreme Court denied defendant’s motion for summary judgment, but the Fourth Department has now reversed.
The Fourth Department determined that defendants met their initial burden by establishing “the absence of any departure from good and accepted medical practice [and] that any departure was not the proximate cause of [decedent]’s alleged injuries.” This shifted the burden to the plaintiff to “raise triable issues of fact” through a physician’s affidavit. The affidavit plaintiff’s expert submitted opined that defendants should have ordered a CT scan of the abdomen and pelvis on February 16, 2004 based on observance of the prior day’s CT scan which showed an enlarged kidney and could have led to a reasonable differential diagnosis of an acute infarct of the left kidney. Plaintiff’s expert then concluded that based on this new CT scan, an aortic dissection diagnosis likely would have been made.
The Fourth Department determined that plaintiff expert’s assertion that defendant doctors were negligent “in failing to order a diagnostic test to rule out a urological condition that decedent did not have because that test may incidentally have revealed an underlying and unsuspected cardiothoracic condition” was “simply too attenuated to raise an issue of fact with respect to causation.” In other words, the decision to not perform a test that may have only incidentally revealed a condition that was not being tested for is insufficient to establish a medical malpractice claim. Thus, granting summary judgment to the defendants was appropriate and the Supreme Court was reversed.
Judge Fahey dissented, arguing that the majority’s position was inconsistent with its decision on the prior appeal. Click here for our post describing the prior appeal. The majority responded that “this appeal involved different defendants who had different obligations with respect to the decedent.” In addition, they countered that the instant appeal presented evidence that was not raised on the prior appeal.
Giambrone v. Kings Harbor Multicare Ctr.
In this medical malpractice action, Mr. Giambrone alleges that he developed a sacral wound after he underwent surgery at Westchester Square Hospital. Following surgery, he then underwent rehabilitation at defendant Kings Harbor, where his wound allegedly progressed to a Stage IV decubitus ulcer. Mr. Giambrone commenced this action against Kings Harbor in August 2009, at which time his wife was not named as a party. In December 2010, Mr. Giambrone commenced a separate medical malpractice action against Westchester Square, in which his wife was named as a plaintiff and asserted a derivative claim for loss of consortium and spousal services. About seven weeks after the statute of limitations expired in the Kings Harbor action, he moved to amend the Kings Harbor complaint under CPLR 3025(b) to assert his wife’s derivative action. The Supreme Court granted the motion.
On March 21, 2013, the First Department affirmed adopting the Third Department’s position in Anderson v. Carney that the Supreme Court should be permitted to exercise the same discretion it has when considering whether to allow the addition of a plaintiff’s derivative cause of action. The Second and Fourth Departments, however, have taken an opposing view. They have held that "a spouse’s derivative claim cannot be added to a complaint through the relation back provision of CPLR 203(f)."
The First Department has now granted leave to appeal to the Court of Appeals, where the Court of Appeals will have an opportunity to resolve this conflict between the Departments.
In this medical malpractice action, Dr. Sundaresan moved for summary judgment on the basis that he lacked a duty of care to the plaintiff. In particular, he claimed that one phone conversation with a doctor at another hospital in reference to the plaintiff did not give rise to a physician-patient relationship. In opposition, the plaintiff claimed that since the two doctors discussed his transfer to defendant’s hospital, his condition, and agreed to perform surgery together on the plaintiff during the course of the phone call, Dr. Sundaresean owed him a duty of care.
The First Department agreed, holding that the Supreme Court properly denied summary judgment to Dr. Sundaresan, since there was a triable issue of fact regarding whether or not a duty of care arose. The Court found “a jury could reasonably infer that both doctors expressly contemplated treating plaintiff as part of the surgical team managing his care.” However, it dismissed the cause of action against Dr. Sundaresan that alleged lack of informed consent, because it was the other doctor who obtained the plaintiff’s consent in this case.
In March, we made two brief posts about oral arguments in two significant U.S. Supreme Court cases, one considering the Defense of Marriage Act and the other considering California's Proposition 8. This morning, the U.S. Supreme Court issued decisions in both cases. In United States v. Windsor, the Court held key provisions of the Defense of Marriage Act unconstitutional. In Hollingsworth v. Perry, the Court dismissed due to a lack of jurisdiction over the appeal. For the same reasons that the Supreme Court lacked jurisdiction, the Court also held that the Ninth Circuit lacked jurisdiction as well. The effect of those actions in Hollingsworth is to allow the District Court's decision stand. The District Court had struck down Proposition 8.
In this medical malpractice action, plaintiff alleges the defendant doctor negligently performed laparoscopic surgery on her. During the non-party pathologist’s deposition, there was a verbal altercation between plaintiff’s counsel and respondent pathologist’s counsel. The plaintiff moved to preclude the nonparty pathologist’s counsel from the rest of the deposition. The Supreme Court required the pathologist to finish her deposition and permitted the pathologist’s counsel to be involved in the deposition as provided by 22 NYCR § 221.2 and 221.3.
The Fourth Department reversed holding that “counsel for a nonparty witness does not have a right to object during or otherwise to participate in a pretrial deposition.” The Court found that the Supreme Court erred in relying on 22 NYCR § 221.2 and 221.3, which allows an attorney of a nonparty to interrupt a deposition in specified circumstances. The Fourth Department found that CPLR 3113 (c) is also applicable, as it provides depositions should commence “as permitted in the trial of actions in open court,” and it is well established that counsel for nonparty witnesses are not able to object or participate during trial. Further, the Court pointed out that if there was a conflict between CPLR 3113 (c) and 22 NYCR § 221.2 and 221.3, the statute controls over the regulation. While no participation by the nonparty’s counsel should be permitted, the court stated the nonparty had the right to seek a protective order if necessary.
Two members of the Fourth Department dissented. They argued that there was no conflict. According to the dissent, the rules were adopted twenty-three years after CPLR 3113 (c) came into existence, and as such, would not have been adopted if in direct conflict with the already existing statute. In addition, the dissent cited to a Second Department case (Horowitz) in which the court took into account objections made by a nonparty’s counsel in the deposition context.
The Fourth Department granted leave to appeal to the Court of Appeals on June 7, 2013.
In a rare move, the New York Court of Appeals has requested the participation of Amicus Curiae after granting leave to appeal in Clemente Bros. Contracting Corp. v. Hafner-Milazzo. Underlying the appeal is New York’s Uniform Commercial Code and a bank’s liability to a customer when the bank pays a check on a forged signature. The plaintiff’s claims stem from Capital One Bank’s payments on checks that were allegedly forged by the plaintiff’s former employee. One of the issues to be heard involves an agreement between the bank and its customer to shorten the statutory time to make a claim from one-year to fourteen days.
On June 6th, the Court of Appeals issued its decision in Wild v. Catholic Health Sys., a case we previously reported on here involving a challenge to the loss of chance doctrine and charge. Unfortunately, however, the Court found that the defendants had failed to preserve the argument that a "loss of a chance" charge should not be given on the ground that New York does not recognize that doctrine. The Court instead found that the defendants had merely preserved the argument that the facts did not support a "loss of a chance" charge, an argument that the defendants did not make in the Court of Appeals. Having found that the "loss of a chance" language in the charge was not at issue, the Court took the defendants' challenge to the charge to be the argument that the lower court misstated the plaintiff's burden of proof. The Court held that, putting the "loss of a chance" language aside, the charge did not improperly decrease the plaintiff's burden of proof because it required the jury to find that the defendants' acts or omissions were a substantial factor in causing the injury and instructed the jury that the plaintiff must prove her case by a preponderance of the evidence.
Because the Court found the "loss of a chance" issue unpreserved, medical malpractice practitioners are left where they were before leave was granted in this case. Defense attorneys should be careful to object to a plaintiff's request for a "loss of a chance" charge both because the facts and expert testimony do not support the charge, if that is the case, and because "loss of a chance" has not explicitly been recognized by the New York Court of Appeals. Practitioners should argue that the "loss of a chance" concept lowers the plaintiff's burden of proof and would permit plaintiffs to have a recovery when it is not more likely than not that the alleged malpractice was the cause of the injuries sued upon. See T. O'Shaughnessy, Loss of a Chance: Finally Back in the Court of Appeals (N.Y.L.J. 7/16/12). In addition, they can argue that if the judge is inclined to give a "loss of a chance" charge, the plaintiff should only be able to recover damages reflective of the amount of chance actually lost. For example, if the jury finds that the plaintiff had a 40 percent chance of a cure in the absence of malpractice, the court would later multiply that percentage by the total damages awarded to determine the verdict amount against the defendant. This approach, referred to as the "proportional" approach to the "loss of a chance" problem, has been adopted by about 20 states (id.).
The jury found that a design defect caused the plaintiff's injuries, and the Appellate Division, Fourth Department affirmed. The Fourth Department noted that there was sufficient evidence that the protruding bolt was an entanglement hazard and that there were design alternatives that would reduce or eliminate the hazard at only a nominal increase in cost. The court also rejected defense arguments that the verdict was against the weight of the evidence or that there was insufficient evidence of causation.


Gary Lee Sampson, Petitioner, Appellant, v. United States of America, Respondent, Appellee.
Before Lynch, Selya, and Lipez, Circuit Judges. Paul Mogin, with whom William E. McDaniels, Jennifer G. Wicht, Williams & Connolly LLP, Washington, DC, Michael Burt, Law Office of Michael Burt, San Francisco, CA, Danalynn Recer, Austin, TX, and Gulf Region Advocacy Center were on brief, for appellant. Mark T. Quinlivan, Assistant U.S. Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.
Gary Lee Sampson pled guilty in September 2003 to two counts of the crime of carjacking resulting in death. In December 2003, following a penalty-phase trial, a jury sentenced Sampson to death under the Federal Death Penalty Act (“FDPA”) for those crimes. See 18 U.S.C. §§ 3591–3599. His death sentence was later vacated due to jury taint, and his case returned to the district court for further proceedings. The government filed an amended notice that it sought the death penalty. That notice listed the factors that in its view justified the death penalty, largely tracking the original notice. Sampson challenged several aspects of that notice.
Sampson now both petitions for a writ of mandamus, and appeals from an order by the district court denying his motion in limine to dismiss or strike two non-statutory aggravating factors the prosecution intends to present in a second penalty-phase proceeding under the FDPA.1 Those factors, which were also included in the original notice, are: (1) future dangerousness, and (2) obstruction of justice by means of murder to conceal the theft and attempted theft of victims' automobiles. The new penalty-phase trial is scheduled to start on September 14, 2016. We have expedited this appeal.
Sampson argues that because the jury in his first penalty-phase proceeding did not find unanimously that the government proved these two non-statutory aggravating factors beyond a reasonable doubt, their introduction at the new penalty-phase proceeding is barred by the Double Jeopardy Clause of the Constitution, including its collateral-estoppel component. Under Supreme Court precedent, Sampson's claims must be rejected. We affirm the district court's order.
Sampson murdered three people over the course of a week in 2001. He murdered Philip McCloskey in Massachusetts on July 24, 2001, and attempted to steal McCloskey's car; murdered Jonathan Rizzo in Massachusetts and stole Rizzo's car on July 27; and murdered Robert Whitney in New Hampshire on July 30.
On August 8, 2002, a grand jury, in a second superseding indictment, indicted Sampson on two counts of carjacking resulting in death. The government then filed a notice of intent to seek the death penalty, as required by the FDPA. See 18 U.S.C. § 3593(a).
Under the FDPA, after the government has filed a notice of intent to seek the death penalty, the criminal trial divides into two phases, one focused on guilt (the “guilt phase”) and the other on sentencing (the “penalty phase”). See id. § 3593(b). If the defendant is convicted of a predicate capital offense in the guilt phase, the government then must prove beyond a reasonable doubt in the penalty phase that the defendant was at least 18 years old, committed one of four acts with the requisite mental state,3 and committed at least one of sixteen statutory aggravating factors. Id. §§ 3591(a), 3592(c), 3593(c)–(d).
If the government satisfies these prerequisites and proves that the defendant is eligible for death, the jury must decide whether death is justified by weighing any proven mitigating factors with the proven aggravating factors, including both statutory and non-statutory aggravating factors. Id. § 3593(e). “The term ‘non-statutory aggravating factor’ is used to ‘refer to any aggravating factor that is not specifically described in 18 U.S.C. § 3592.’ ” Sampson I, 486 F.3d at 44 n.14 (quoting Jones v. United States, 527 U.S. 373, 378 n.2, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999)). The jury must submit special findings on any aggravating factors, 18 U.S.C. § 3593(d), and must find unanimously that the government has proven any aggravating factors, statutory or non-statutory, beyond a reasonable doubt, id. § 3593(c)–(d).
Sampson pled guilty to both charges of carjacking resulting in death. The first penalty-phase hearing followed. At the close of the penalty phase, the jury found unanimously for the death penalty. For each count, the jury submitted a special verdict form that contained separate findings on each alleged statutory and non-statutory aggravating factor. The jury's special verdict form stated that it found unanimously that the government had proven two statutory aggravating factors and a number of non-statutory aggravating factors for each charge against Sampson.
Pertinent to this appeal, the jury did not find unanimously that the government had proven beyond a reasonable doubt two alleged non-statutory aggravating factors, future dangerousness and murder to obstruct justice, for either charge.4 That is, the unanimity requirement had not been met as to those two factors. It is from this circumstance that Sampson constructs his argument in this appeal.
After being sentenced to death, Sampson appealed, and this panel affirmed. Sampson I, 486 F.3d at 52. Rehearing en banc was denied. United States v. Sampson, 497 F.3d 55, 56 (1st Cir. 2007).
In 2009, Sampson petitioned for a new trial under 28 U.S.C. § 2255. The district court, finding that a juror had lied during the voir dire process in answering questions about her ability to be impartial, Sampson II, 820 F.Supp.2d at 192–97, vacated Sampson's sentence, id. at 202. The government appealed, and we took jurisdiction and affirmed on the basis of juror misconduct. Sampson V, 724 F.3d at 170.
We further held that the juror's lies during voir dire concealed significant evidence of bias that would have provided grounds to excuse her for cause. Id. at 168. We held that Sampson “was deprived of the right to an impartial jury and is entitled to a new penalty-phase hearing.” Id. The case returned to the district court for further proceedings in 2013.
In March 2014, the government filed an amended notice of intent to seek the death penalty. The amended notice again alleged for both counts of Sampson's conviction, inter alia, the two non-statutory aggravating factors—that (1) Sampson is “likely to commit criminal acts of violence in the future” and pose a danger to prison officials and inmates (“future dangerousness”); and (2) that Sampson murdered Philip McCloskey and Jonathan Rizzo “to prevent [the victims] from reporting the carjacking[s] to authorities” (“murder to obstruct justice”)—which the original sentencing jury found that the government failed to prove beyond a reasonable doubt to the satisfaction of all jurors. The amended notice also stated that the government would use new evidence from Sampson's conduct in prison from 2004 to the present in order to prove future dangerousness.
On May 15, 2015, Sampson moved to dismiss or strike a number of the statutory and non-statutory aggravating factors from the amended notice. He was partially successful. As to the issues on appeal, Sampson argued that the renewed allegations of the non-statutory aggravating factors of future dangerousness and obstruction of justice violated the Double Jeopardy Clause's retrial and collateral-estoppel components. The government opposed the motion.
Sampson then moved for a certificate of appealability under 28 U.S.C. § 2253(c). The district court, citing Abney v. United States, 431 U.S. 651, 662, 659, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977), reasoned that its rejection of Sampson's motion to dismiss or strike the two non-statutory aggravating factors was a “pretrial order[ ] rejecting [a] claim[ ] of former jeopardy,” and so was one of the “small class of cases that [are] beyond the confines of the final-judgment rule.” The district court granted Sampson's motion and issued a certificate of appealability on the following question: “Whether the Double Jeopardy Clause bars the government, at Sampson's new penalty phase hearing, from seeking to prove two non-statutory aggravating factors which the jury at Sampson's first penalty phase hearing found had not been proven beyond a reasonable doubt.” Sampson then filed this timely appeal.
Before reaching the merits of Sampson's appeal, we must satisfy ourselves that we have jurisdiction to hear it. The government disputes that we have jurisdiction, but argues that we may skip that analysis in favor of a merits analysis. Sampson argues, among other things, that we should exercise the mandamus power available to us under the All Writs Act, 28 U.S.C. § 1651(a). We conclude that, whether or not we have statutory jurisdiction, we at least have and will exercise advisory mandamus jurisdiction.
The All Writs Act provides that “all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” Id. “[M]andamus must be used sparingly and only in extraordinary situations.” In re Pearson, 990 F.2d 653, 656 (1st Cir. 1993). There are two types of mandamus, supervisory and advisory. United States v. Horn, 29 F.3d 754, 769 n.19 (1st Cir. 1994). “The former is used when an appellate court issues the writ to correct an established trial court practice that significantly distorts proper procedure,” id. whereas the latter is used in “cases ․ that present novel questions of great significance which, if not immediately addressed, are likely to recur and to evade effective review,” United States v. Green, 407 F.3d 434, 439 (1st Cir. 2005). “We typically exercise [advisory mandamus] to settle substantial questions of law when doing so would give needed guidance to lawyers, litigants, and lower courts.” Sampson V, 724 F.3d at 159.
We exercised advisory mandamus jurisdiction in the prior appeal to address the juror misconduct issue. Id. at 159–61. It is appropriate to exercise advisory mandamus here. Sampson's appeal meets all of the stringent requirements for its “strong medicine.” In re Sony BMG Music Entm't, 564 F.3d 1, 4 (1st Cir. 2009).
First, the issue, as framed, is novel.5 As Sampson notes, neither this court nor the Supreme Court has passed on the precise type of double-jeopardy challenge presented in this appeal. Second, it is of high public importance. “Like the right to trial by jury, [the guarantee against double jeopardy] is clearly ‘fundamental to the American scheme of justice.’ ” Benton v. Maryland, 395 U.S. 784, 796, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969) (quoting Duncan v. Louisiana, 391 U.S. 145, 149, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968)). Third, as we emphasized when we exercised advisory mandamus to affirm the district court's vacatur of Sampson's sentence for jury taint, an already significant legal question is even more so in the context of a capital case, because “death is [ ] different.” Sampson V, 724 F.3d at 159 (alteration in original) (quoting Gardner v. Florida, 430 U.S. 349, 357, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977) (plurality opinion)). Fourth, exercising review now offers pragmatic benefits in this case. As Sampson notes, and as the district court observed, deferring review of the district court's rejection of his double-jeopardy challenge presents risks of a third penalty trial. Incurring the pain inflicted by a third trial is to be avoided, if not needed.
The government essentially concedes that the appeal raises novel questions of public importance, that exercising mandamus would offer significant pragmatic benefits, and that it “undoubtedly would provide needed guidance to the district court, the lawyers, and litigants in this case.” The government rests its argument against advisory mandamus instead on an assertion that the issue raised in the appeal will not “almost certainly recur,” Green, 407 F.3d at 440, and that it will not evade review.
The government's point is that FDPA cases are extremely rare in this circuit—Sampson's was the first FDPA conviction that we reviewed, see Sampson I, 486 F.3d at 17 6 —and the particular issue in this appeal will arise even less frequently, making it implausible to consider the question in the appeal “systemically important,” In re Sony, 564 F.3d at 4. This is too narrow a view of systemic importance. Federal courts often find error in capital cases. See Glossip v. Gross, ––– U.S. ––––, 135 S.Ct. 2726, 2759, 192 L.Ed.2d 761 (2015) (Breyer, J., dissenting). Similar double-jeopardy challenges to subsidiary determinations by a sentencing jury in capital cases may well recur.
The government argues that the question presented will not evade review because Sampson can raise it after his resentencing. But this misses the point. The double-jeopardy challenge here asserts that Sampson should not have to defend once more against the two non-statutory aggravating factors at issue. Postponing review of the double-jeopardy challenge until after the second penalty-phase proceeding will frustrate the appeal's central assertion: that Sampson should not have to defend against these particular allegations again. The claim would evade review because one of the most important protections of the Double Jeopardy Clause would be lost. Abney, 431 U.S. at 662, 97 S.Ct. 2034.
Sampson's appeal satisfies the stringent requirements of advisory mandamus, and we take jurisdiction.
Where, as here, an appeal raises “constitutional questions ‘such as the district court's denial of a motion to dismiss ․ on the grounds of double jeopardy and collateral estoppel,’ ” our review is de novo. United States v. Lanoue, 137 F.3d 656, 661 (1st Cir. 1998) (alteration in original) (quoting United States v. Aguilar–Aranceta, 957 F.2d 18, 21 (1st Cir. 1992), overruled on other grounds by Yeager v. United States, 557 U.S. 110, 129 S.Ct. 2360, 174 L.Ed.2d 78 (2009)).
Sampson argues that the government's re-allegation of the non-statutory aggravating factors of future dangerousness and murder to obstruct justice violates the Double Jeopardy Clause.7 The Clause provides: “[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const. amend. V. He contends that the jury's special verdict on the two non-statutory aggravating factors is an “acquittal” for double-jeopardy purposes, and also that the collateral-estoppel component of the Double Jeopardy Clause bars relitigating the two factors. Neither argument is persuasive. We address each in turn.
The Supreme Court has explained that “the touchstone for double-jeopardy protection in capital-sentencing proceedings is whether there has been an ‘acquittal.’ ” Sattazahn v. Pennsylvania, 537 U.S. 101, 109, 123 S.Ct. 732, 154 L.Ed.2d 588 (2003). In the context of aggravating circumstances at sentencing, the Court “reject[s] the ․ premise ․ that a capital sentencer's failure to find a particular aggravating circumstance alleged by the prosecution always constitutes an ‘acquittal’ of that circumstance for double jeopardy purposes.” Poland v. Arizona, 476 U.S. 147, 155, 106 S.Ct. 1749, 90 L.Ed.2d 123 (1986). Instead, an “acquittal” in the capital sentencing context turns on “whether the sentencer or reviewing court has ‘decided that the prosecution has not proved its case’ that the death penalty is appropriate.” Id. (quoting Bullington v. Missouri, 451 U.S. 430, 443, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981)); see also Bobby v. Bies, 556 U.S. 825, 833–34, 129 S.Ct. 2145, 173 L.Ed.2d 1173 (2009). If the decision being examined does not meet the standard of an acquittal, then the “clean slate” rule applies, Bullington, 451 U.S. at 443, 101 S.Ct. 1852, and the defendant “constitutionally may be subjected to whatever punishment is lawful, subject only to the limitation that he receive credit for time served,” id. at 442, 101 S.Ct. 1852.
The earlier penalty-phase jury's decision in Sampson's case is not an acquittal. Quite the opposite—the jury found the death penalty justified, despite also finding that the government had not proven two non-statutory aggravating factors beyond a reasonable doubt to all members of the jury.
The Supreme Court has been clear that the “concern with protecting the finality of acquittals is not implicated when ․ a defendant is sentenced to death, i.e., ‘convicted.’ There is no cause to shield such a defendant from further litigation; further litigation is the only hope he has.” Poland, 476 U.S. at 156, 106 S.Ct. 1749. In Bobby v. Bies, the Court likewise held that there was no acquittal for double-jeopardy purposes where the original jury imposed the death sentence despite the presence of the mitigating factor of mental retardation, and a new hearing on the defendant's mental capacity was held in light of Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). 556 U.S. at 833–34, 129 S.Ct. 2145. And in Sattazahn v. Pennsylvania, the Court held that a deadlocked sentencing-jury verdict automatically resulting in a life sentence was not an “acquittal” of the death penalty for double-jeopardy purposes. 537 U.S. at 109–110, 123 S.Ct. 732. The Court has been consistent in a variety of different factual circumstances. See also Bullington, 451 U.S. at 444–45, 101 S.Ct. 1852 (verdict of life imprisonment in sentencing proceeding that “explicitly requires the jury to determine whether the prosecution has ‘proved its case’ ” for death is an acquittal of the death penalty for double-jeopardy purposes).
Double jeopardy clearly does not apply here. See Evans v. Michigan, –––U.S. ––––, 133 S.Ct. 1069, 1075, 185 L.Ed.2d 124 (2013) (contrasting substantive rulings that trigger double jeopardy, including rulings that go to insufficiency of evidence, or guilt and innocence, with procedural rulings “that ‘are unrelated to factual guilt or innocence,’ ” such as “ ‘a legal judgment that a defendant, although criminally culpable, may not be punished’ because of some problem like an error with the indictment,” and which do not trigger double jeopardy (quoting United States v. Scott, 437 U.S. 82, 98 & n.11, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978))). Our vacation of Sampson's original death-penalty sentence on Sixth Amendment grounds based on juror misconduct does not change this analysis. That decision rested on the basis that a juror had improperly withheld material information to get on the jury, and “had nothing to do with either the sufficiency of the evidence or [Sampson's] guilt or innocence.” United States v. Szpyt, 785 F.3d 31, 37–38 (1st Cir. 2015), cert. denied, ––– U.S. ––––, 136 S. Ct. 800, 193 L.Ed.2d 724 (2016). Sampson was not acquitted, and the Double Jeopardy Clause is not triggered.
Sampson tries to marshal quotes from case law at the periphery of double-jeopardy jurisprudence in an effort to construe the original penalty-phase jury's determinations on the non-statutory aggravating factors as an “acquittal.” In particular, he points to Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and cases interpreting it, to suggest an “expanding” of “the concept of ‘acquittal,’ ” and to argue that “non-statutory as well as statutory aggravating factors are constitutionally significant under the FDPA.” Sampson cites various non-binding decisions from other courts, see, e.g., State v. Sawatzky, 339 Or. 689, 125 P.3d 722, 726 (2005) (en banc), as well as non-precedential dicta from a Supreme Court plurality opinion, Sattazahn, 537 U.S. at 110–12, 123 S.Ct. 732 (plurality opinion), that have reasoned from Apprendi to hold or suggest that double-jeopardy protections apply to jury determinations on sentencing enhancements even if there was never an acquittal on the death penalty. And he provides various cases discussing the relationship between the FDPA and Apprendi, as well as the FDPA and the Confrontation Clause, in an attempt to demonstrate the evolving “constitutional significance” of FDPA non-statutory aggravating factors.
But Apprendi is not a double-jeopardy case; its holding concerns what must be submitted to, and found to be proven beyond a reasonable doubt by, a jury in the first instance. Apprendi, 530 U.S. at 476, 120 S.Ct. 2348. Here the jury in the first instance did properly find beyond a reasonable doubt that the death penalty should be imposed.
Our question is not what Apprendi requires of the FDPA, nor whether non-statutory aggravating factors are “constitutionally significant,” but rather whether relitigating two non-statutory aggravating factors found not proven by an earlier penalty-phase jury is barred by the Double Jeopardy Clause. The Supreme Court's cases squarely addressing the question of what is an “acquittal” for double-jeopardy purposes control the question, and they compel rejection of Sampson's argument.8 Because neither the original penalty-phase jury's verdict nor the vacatur of Sampson's sentence constitutes an acquittal, double-jeopardy principles do not prevent the government from alleging again the two non-statutory aggravating factors.
As the Supreme Court explained in Bies, issue preclusion, also known as collateral estoppel, “bars successive litigation of ‘an issue of fact or law’ that ‘is actually litigated and determined by a valid and final judgment, and ․ is essential to the judgment.’ ” 556 U.S. at 834, 129 S.Ct. 2145 (alteration in original) (quoting Restatement (Second) of Judgments § 27 (1980)). The Bies Court emphasized that “[a] determination ranks as necessary or essential only when the final outcome hinges on it.” Id. at 835, 129 S.Ct. 2145 (citing 18 C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure § 4421, at 543 (2d ed. 2002)).
The Bies Court found that the issue for which collateral estoppel had been claimed—evidence of the defendant's “mild to borderline mental retardation,” which served as a mitigating factor in the original jury's sentencing deliberations, id. at 828, 129 S.Ct. 2145—failed to meet this standard, id. at 835, 129 S.Ct. 2145. The defendant had been sentenced to death by the original jury, and that sentence was affirmed on review by the Ohio appellate courts, with the Ohio Supreme Court “observ[ing] that Bies' ‘mild to borderline mental retardation merit[ed] some weight in mitigation,’ but conclud[ing] that ‘the aggravating circumstances outweigh[ed] the mitigating factors beyond a reasonable doubt.’ ” Id. at 828, 129 S.Ct. 2145 (second and fourth alterations in original) (quoting State v. Bies, 74 Ohio St.3d 320, 658 N.E.2d 754, 761–62 (1996)).
The Bies Court reasoned that “it [was] clear that the [Ohio] courts' statements regarding Bies' mental capacity were not necessary to the judgments affirming his death sentence.” Id. at 835, 129 S.Ct. 2145. The Court held that the Sixth Circuit, which found that collateral estoppel did apply to the issue of the defendant's retardation, erred by “conflat[ing] a determination necessary to the bottom-line judgment with a subsidiary finding that, standing alone, is not outcome determinative.” Id. The Court concluded that “[i]ssue preclusion cannot transform Bies' loss at the sentencing phase into a partial victory.” Id. The same is true here.
The two non-statutory aggravating factors rejected by the first penalty-phase jury were not necessary to Sampson's death sentence. Indeed, “[f]ar from being necessary to the judgment,” the jury's failure to find unanimously that the government proved the two non-statutory aggravating factors beyond a reasonable doubt, like the retardation mitigating factor in Bies, “cuts against [the judgment]—making [it] quintessentially the kind[ ] of ruling[ ] not eligible for issue-preclusion treatment.” Id. (quoting Bies v. Bagley, 535 F.3d 520, 533 (6th Cir. 2008) (Sutton, J., dissenting from denial of rehearing en banc)). And at least one other federal court has come to the same conclusion: that collateral estoppel does not bar the introduction at a second penalty-phase proceeding of non-statutory aggravating factors presented to, and not found proven by, an earlier penalty-phase jury. United States v. Stitt, 760 F.Supp.2d 570, 584 (E.D. Va. 2010).
Sampson attempts unsuccessfully to distinguish Bies. He first observes that “the prior determination [in Bies] ․ was made by a court in an opinion” (emphasis omitted), whereas the prior determinations in this case “were made by a jury in special findings” (emphasis omitted). He contrasts the “spare statements” reviewed in Bies, 556 U.S. at 834, 129 S.Ct. 2145, with the more elaborate process of the special findings at issue here. But the collateral-estoppel principle articulated in Bies makes no distinction between judge- and jury-made determinations, nor any distinction based on the procedure for making the determination—it focuses on whether the determination was necessary to the prior judgment.
Sampson also argues that unlike here, where the issues being relitigated are legally identical to issues in the prior determination, the issue in the second proceeding in Bies—whether, under the rule announced in Atkins, the defendant's retardation rendered him ineligible for the death penalty—involved a legal principle that was new and different from the prior determination. He argues that the Court noted that novelty as another basis for not finding collateral estoppel. See Bies, 556 U.S. at 836–37, 129 S.Ct. 2145. But the Court made the observation that this would be an alternative ground to reject the collateral-estoppel argument “even if the core requirements for issue preclusion had been met,” id. at 836, 129 S.Ct. 2145; its essential point was that, as here, those core requirements were not present.
Sampson further contends that a number of other decisions of federal courts provide alternative analyses that support his collateral-estoppel claim. They do not. He relies on language in this court's decision in United States v. Bravo–Fernandez, 790 F.3d 41 (1st Cir. 2015), cert. granted, ––– U.S. ––––, 136 S.Ct. 1491, 194 L.Ed.2d 585 (2016), including that collateral-estoppel claims “must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings,” id. at 46 (quoting Ashe, 397 U.S. at 444, 90 S.Ct. 1189), and that “if a review of [the record of the prior proceeding] shows that a ‘rational jury,’ as a practical matter, decided adversely to the government an issue to be relitigated in the new prosecution, then the defendant gets the benefit of collateral estoppel,” id. But that language comes from an inquiry into the preclusive effect of acquittals on an attempt to prove various facts in a retrial of vacated convictions arising from the same split verdict. See id. at 43, 48. In other words, the determinations at issue in Bravo–Fernandez were potentially necessary to the prior judgment; the determinations that Sampson attacks could not have been.
Sampson's reliance on Delap v. Dugger, 890 F.2d 285 (11th Cir. 1989), abrogated on other grounds by Floyd v. Sec'y, Fla. Dep't of Corr., 638 Fed.Appx. 909, 924 (11th Cir. 2016) (per curiam) (citing Fry v. Pliler, 551 U.S. 112, 119–20, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007), and Brecht v. Abrahamson, 507 U.S. 619, 631, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993)) is equally misplaced. He argues that the case illustrates “that an impact on the express terms of a judgment is not an absolute prerequisite for collateral estoppel.” This proposition is simply not so, and misconstrues Delap. Delap, in any event, does not control our decision. Delap was decided in 1989, 27 years ago, and well before Sattazahn and Bies, the Supreme Court cases that dictate our holding.
Delap concerned a trial in which the prosecution pursued multiple theories of guilt on one count of murder. The defendant was convicted of murder on one theory (first-degree premeditation), and the trial judge found that there was insufficient evidence to convict the defendant on a theory that the murder was committed during a felony. 890 F.2d at 308–12. The Eleventh Circuit first held that the insufficiency-of-the-evidence finding on the theory that there was a concomitant felony constituted an acquittal, because the finding “decide[d] that the prosecution has not proved its case.” Id. at 313 (quoting Bullington, 451 U.S. at 443, 101 S.Ct. 1852). It then asked whether the felony murder acquittal as to guilt “bar[red on retrial] a finding that the murder occurred during the commission of a felony so as to constitute an aggravating factor justifying imposition of the death penalty.” Id. at 314. The court emphasized that “in this case Delap's acquittal of felony murder occurred during the guilt/innocence phase of his first trial.” Id. at 318. It distinguished and said that it “need not address what collateral estoppel effect, if any, would result had the jury at the sentencing phase of Delap's first trial concluded that he had not committed murder during the course of a felony.” Id. Sampson pled guilty, and his challenge concerns the collateral-estoppel effect of one sentencing-phase determination on another. Delap is inapposite.
As we explained in Manganella v. Evanston Ins. Co., 700 F.3d 585 (1st Cir. 2012), another case Sampson cites: “We do not ask whether the resolution of an issue was necessary to reach the same outcome; rather, the inquiry is whether the issue was necessary to the decision actually rendered.” Id. at 594. By that standard, his argument fails: the non-statutory aggravating factors simply could not have been “necessary to the decision actually rendered.” Id.; see Bies, 556 U.S. at 835, 129 S.Ct. 2145. Because the non-statutory aggravating factors were not necessary to the determination of his original death sentence, the government may relitigate them at the new penalty-phase proceeding.
In the end, Sampson's argument is that there should be a more relaxed standard for collateral-estoppel claims in the context of capital sentencing. But the Supreme Court's scrupulous doctrinal reliance on the Second Restatement of Judgments in Bies, 556 U.S. at 834, 129 S.Ct. 2145, makes clear that the core requirements of collateral estoppel apply with full force in the capital-sentencing context. Sampson's argument fails to meet those requirements.
Finally, Sampson makes a vague “Eighth Amendment values” argument trying to strengthen his collateral-estoppel position. He emphasizes the general principle that “[the Supreme] Court has demanded that factfinding procedures aspire to a heightened standard of reliability,” Ford v. Wainwright, 477 U.S. 399, 411, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986) (plurality opinion), and argues from it that “[r]eliability could only be impaired by allowing prosecutors multiple opportunities to pursue particular aggravating factors.” The argument cannot save a double-jeopardy claim when the claim fails on its own terms.
The district court correctly ruled that it would not strike the government's notice of intended use of the non-statutory aggravating factors of future dangerousness and murder to obstruct justice because the earlier jury's findings were not an acquittal, nor were they essential to the jury's death sentence. The Double Jeopardy Clause does not bar the government from alleging those non-statutory aggravating factors again at Sampson's new penalty-phase proceeding.
1. The term “appeal” hereinafter refers to Sampson's arguments before this court generally, including his arguments for granting mandamus and his arguments on the merits.
2. This reproduces the sequence and labeling of Sampson decisions in Sampson V, 724 F.3d at 154, and adds Sampson V to that sequence.
3. Alternatively, the government may prove that the defendant engaged in espionage or treason. See id. § 3591(a)(1).
4. Specifically, for both Count 1 (“Carjacking Resulting in the Death of Philip McCloskey”) and Count 2 (“Carjacking Resulting in the Death of Jonathan Rizzo”), the jury checked “1 or More Jurors Say No” on the special verdict form in response to the following two non-statutory aggravating factors (represented here by the Count 1 factors):Do each and every one of you find that the government has proven, beyond a reasonable doubt, that the defendant, Gary Sampson, murdered Philip McCloskey for the sole or primary purpose of preventing him from reporting the attempted theft of his automobile to authorities?Do each and every one of you find that the government has proven, beyond a reasonable doubt, that the defendant, Gary Sampson, is likely to commit criminal acts of violence in the future which would be a continuing and serious threat to the lives and safety of prison officials and inmates as demonstrated by his history of prison misconduct?
5. See In re Justices of Superior Court Dep't of Mass. TrialCt., 218 F.3d 11, 16 (1st Cir. 2000) (advisory mandamus appropriate because the “availability of pretrial federal habeas relief for ‘disinterested prosecutor’ claims [was] an issue of first impression” implicating “greater issues of federalism”); Horn, 29 F.3d at 770 (advisory mandamus appropriate for the question of whether sovereign immunity bars federal court's order of attorneys' fees and costs against government in criminal case because “[t]he issue presented ha[d] never before been squarely decided”); In re Globe Newspaper Co., 920 F.2d 88, 90 (1st Cir. 1990) (advisory mandamus warranted to decide “novel and important” question of press access to jury list (quoting In re GlobeNewspaper Co., 729 F.2d 47, 50 (1st Cir. 1984))).
6. This court also has pending the appeal in United States v. Tsarnaev (No. 16–6001), another death-penalty case.
7. Sampson also argued to the trial court that the future dangerousness factor was unconstitutionally unreliable and vague, and that the law of the case barred relitigating future dangerousness and murder to obstruct justice. Those issues are not before this court.
8. Sampson argues that Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), “indicates” that a lower court may depart from controlling Supreme Court precedent when it addresses “issues implicating the Eighth Amendment.” Whatever Roper's implications for stare decisis in the Eighth Amendment capital punishment context—an issue we do not address today—we know of no support for such a proposition in the context of the Double Jeopardy Clause, and Sampson provides none.
9. One might wonder why, if a Fifth Amendment Double Jeopardy Clause argument that there was an acquittal on the merits fails, as a matter of logic there is still a double-jeopardy claim available to make. No party makes an issue of this and both accept the analytical structure presented by Sampson, so we have done so as well. We conclude that Bies, Sattazahn, and Poland resolve this question against Sampson.
10. The district court rejected Sampson's collateral-estoppel argument on two grounds. It held that, because the penalty-phase jury's verdict was vacated for juror bias, the penalty-phase verdict does not have any preclusive effect. And it held that collateral estoppel did not apply because “the rejection of [the non-statutory aggravating factors] was not essential to the judgment of death.” Because we find the latter rationale sufficient to dispose of the issue, it is unnecessary to address the effect of the vacatur for jury bias on Sampson's collateral-estoppel argument.
11. Sampson argues that here, unlike in Bies, there was “every incentive” to fully litigate the non-statutory aggravating factors; that the non-statutory factors must be proven beyond a reasonable doubt under the FDPA, unlike the Ohio mitigating factors at issue in Bies; that the appeal in Bies, unlike Sampson's, “was governed by the limitations on federal habeas review of state judgments”; and that Bies involved a “second run at vacating [the defendant's] death sentence,” 556 U.S. at 834, 129 S.Ct. 2145 (quoting Bagley, 535 F.3d at 531 (Sutton, J., dissenting from denial of rehearing en banc)), and “not an effort by the State to retry him or to increase his punishment,” id. The government correctly notes that none of these distinctions is material to the collateral-estoppel principles articulated by the Bies Court and the Second Restatement of Judgments.
12. The government admitted at oral argument that as a matter of logic its position is that a sentencing jury's determinations on non-statutory aggravating factors can never be essential to the judgment in an FDPA case, because non-statutory aggravating factors are neither necessary to nor sufficient for the imposition of the death penalty under the FDPA.