United States v. Hager, No. 08-4

Date Decided: June 20, 2013

The Fourth Circuit affirmed the conviction and capital sentence of appellant, Thomas Morocco Hager, stemming from Hager’s intentional killing of a victim while engaged in a drug trafficking conspiracy.

The district court separated Hager’s trial into three parts: (1) the guilt-innocence phase, (2) the death penalty eligibility phase, and (3) the sentencing phase. In the first phase, the government established that, shortly before the incident at hand, Hager shot and wounded someone while engaged in the sale and distribution of crack cocaine. Following the incident, Hager went into hiding with his girlfriend in Maryland. Fearing that White, the mother of a rival gang member’s mother, had become aware of his whereabouts, Hager decided to kill White. Hager, his girlfriend, and two other accomplices went to White’s apartment in November of 1993. After letting them in, Hager hit White in the face with a pistol, breaking her jaw. Hager and his two accomplices then took White upstairs to her bathroom, put her in the bathtub and stabbed her more than eighty times. Because the stabbing was not enough to cause her death, Hager then stood on White, forcing her head under water, until he was certain she was dead. During the murder, Hager’s girlfriend stayed downstairs with White’s thirteen-month-old daughter. When they fled the apartment, they left the thirteen-month-old alone without supervision. Hager teased one of the accomplices for being scared and bragged on them for being “soldiers” now. Hager declined to take the stand at trial. After a five-week trial, the jury unanimously found Hager guilty and eligible for the death penalty based on numerous aggravating factors. Finally, based on a weighing on aggravating and mitigating factors, the jury found that the aggravating factors sufficiently outweighed the mitigating factors and recommended that Hager be sentenced to death.

On appeal, Hager first challenged the sufficiency of the evidence to support his conviction on the grounds that the statutory provision under which he was convicted only applies to substantive drug offenses and not drug conspiracies such as the one in this case. The Fourth Circuit disagreed, finding that a conspiracy to commit a drug related offense was sufficient to sustain a conviction under the applicable provision of the United States Code. Furthermore, based on the evidence presented, the jury was entirely justified in determining that Hager killed White in an attempt to guard his long running drug conspiracy in the Washington D.C. area. The court said, “[a]ll of Hager’s apparent purposes for killing White were intertwined with his drug conspiracy.”  Even Hager’s counsel conceded that “clearly” the killing occurred during a drug conspiracy. The court further found that applicable statute, 21 U.S.C.  § 848(e)(1)(a), was not void for vagueness under the due process clause because the statute provided adequate notice to potential criminals.

Hager next challenged the district court’s rejection of his jury instruction. The district court charged the jury that to convict, they must find “that the killing was connected to the conspiracy in a meaningful way.” Hager challenged the jury instruction, insisting that the proper statement of law required the jury to find that White was killed while Hager “was then actively engaged in a drug trafficking offense…. You may not find the defendant guilty if you find…White’s death merely furthered the…drug trafficking activities.” The Fourth Circuit agreed with the district court, emphasizing that a drug conspiracy during the murder was sufficient to sustain a conviction, and that, as a whole, the district court’s instruction was “appropriately described” the necessary nexus required to sustain a conviction.

Next, Hager argues that the district court abused its discretion in treating the jurors as anonymous in the courtroom. The Fourth Circuit upheld the decision, finding that referring to jurors by number in open court was not an abuse of discretion given the numerous witnesses that feared for their safety by testifying against Hager, the seriousness of the crime charged, Hager’s involvement in organized crime, and Hager’s prior conviction for obstruction of justice. The court informed the jurors that its decision was to “protect [them] from contract in the media or other persons, curiosity seekers and the like, to protect [them] from unwanted publicity and to insure that no outside information is communicated.” Importantly, the court instructed the jury that the decision to refer to jurors anonymously should not have any bearing on the jury’s presumption of innocence. Hager also argued that referring to the jurors anonymously denied him his Sixth Amendment right to a public trial. The Fourth Circuit dismissed Hager’s concern, finding that Hager’s access to the jury list and had ability to voir dire the witnesses. Hager also argued that the district court abused its discretion in seating a particular juror after questions arose regarding the jurors’ ability to be fair and impartial. The Fourth Circuit found no abuse of discretion because, despite any questionable responses, when the judge pressed the juror on his ability to be fair an impartial, the juror agreed that he could do so.

Then, Hager argued that the district court erred by excluding mitigating testimony from his two daughters. The Fourth Circuit disagreed, finding that his daughters’ testimony that they loved their father did not speak to the Hager’s character. Furthermore, the daughters’ psychologist was allowed to testify, but Hager declined to call the psychologist as a witness. The court agreed that the videotapes that Hager sought to introduce showing interaction between Hager and his daughters contained too much “execution-impact” testimony. Moreover, the daughters were allowed to testify, but their testimony was properly limited to the character of their father, not their love for him. The court found that love for their father did not speak to Hager’s character because presumably his daughters’ love for him was not dependent on his good character.

Additionally, Hager argued that the district court erred by allowing the jury to be misled regarding sentence reduction for his co-defendants. The Fourth Circuit dismissed Hager’s argument, finding that the co-defendants made it abundantly clear during their testimony that they sought and expected to receive sentence reductions in return for their testimony.

Next, Hager challenged the district court’s denial of his challenge to the “future dangerousness” aggravating factor. Hager believed that the jury was misled in considering Hager’s future dangerousness on the basis of his behavior in a maximum-security prison specifically designed to handle the most violent criminals. The court held that this argument was properly made the jury and the jury was entitled to give it the weight that it determined appropriate. The Fourth Circuit also disagreed that the prosecutor’s argument that Hager’s horrific childhood made it more likely that he would commit violent crimes in the future misled the jury. The court found that the jury could weigh out the mitigating effects of Hager’s bad childhood with the aggravating effects of future dangerousness.

Hager also avowed that the aggravating factor of lack of remorse lacked a sufficient evidentiary basis. The jury unanimously found that Hager’s lack of remorse was an aggravating factor. Hager argues that this finding improperly placed a duty on him to testify to account for his state of mind following the killing. The Fourth Circuit disagreed, finding that the jury merely had to decide whether Hager’s actions following White’s murder indicated a lack of remorse. Even though many years passed between the murder and trial, the jury was still justified in finding that Hager lacked remorse. Furthermore, the judge instructed that the jury, following the prosecution’s argument that Hager lacked remorse, that the jury could not infer that Hager’s refusal to testify in any way indicated his culpability.

Finally, Hager argued that the district court erred by not instructing the jurors that they could recommend a death sentence only if they found, beyond a reasonable doubt, that the aggravating factors outweighed the mitigating ones. The court determined that the district court properly instructed the jury to weigh aggravating and mitigating factors, and that the jury was not required to find each aggravating or mitigating factor beyond a reasonable doubt. Therefore, the Fourth Circuit affirmed the conviction and capital sentence.

Full Opinion

– Wesley B. Lambert

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