77 F.4th 240
4th Cir.2023Background
- In August 2017 Brandon Council robbed CresCom Bank (Conway, SC) and fatally shot two bank employees; arrested three days later. Federal indictment charged bank robbery resulting in death (18 U.S.C. § 2113(e)) and use of a firearm causing death (18 U.S.C. § 924(c), (j)); both counts exposed him to the death penalty.
- Government filed a notice to seek death in March 2018 identifying aggravating factors under the Federal Death Penalty Act. Council pleaded not guilty; guilt phase in Sept. 2019 resulted in convictions on both counts. Penalty phase jury unanimously recommended death on each count; district court entered judgment.
- On appeal Council raised multiple guilt-phase challenges (competency-procedure adequacy, denial of a continuance to investigate mitigation, adequacy of voir dire on racial bias, Batson challenge to peremptory strikes) and numerous penalty-phase challenges (validity/duplication of aggravating factors, scope of victim-impact evidence, § 3593(f) instruction, and an untimely second Rule 33 motion).
- Key trial facts: defense retained experts and initially represented Council competent; a midtrial competency concern prompted examinations by defense experts and a short competency hearing where those experts reported Council competent; the district court found competence.
- During voir dire the court used a standard + supplemental questionnaire (which included several race-specific questions), allowed attorney follow-up, and conducted individualized voir dire; after peremptory strikes defense counsel expressly told the court they had no objection to jury selection (later argued was a waiver).
- On penalty phase the jury found six aggravating factors (two statutory, four non‑statutory); government presented multiple victim‑impact witnesses; district court instructed the jury on race-neutrality as required by § 3593(f); Council’s later Rule 33 motion was filed while appeal pending and was denied as untimely.
Issues
| Issue | Plaintiff's Argument (Council) | Defendant's Argument (Government/District Court) | Held |
|---|---|---|---|
| Competency procedures | Court improperly delegated competency determination by allowing defense-selected exams, not ordering court-appointed exam/report, and failing to conduct adequate hearing | Court complied with §4241/§4247; §4241(b) uses "may," court properly exercised discretion, held hearing with counsel and experts present | No abuse of discretion; competency finding affirmed |
| Denial of continuance for mitigation investigation | Needed 90-day continuance to develop mitigation (juvenile records, witnesses); denial prejudiced sentencing | Court granted prior continuances, trial scheduling and juror summons warranted denying another delay; defense had resources/time | Denial within broad discretion; no reversible error |
| Voir dire on racial bias | Court should have asked more pointed questions (e.g., whether Black people are more prone to violence) and/or allowed such questions by defense | Court’s supplemental questionnaire and individualized voir dire adequately addressed race; judge retained broad discretion over form/number of questions; defense had opportunity to follow up | No abuse of discretion in voir dire methods |
| Batson/peremptory strikes | Government struck Black veniremembers disproportionately without race-neutral reasons | Defense expressly waived/withdrew any objection at the bench; no preserved Batson claim | Waiver by defense counsel forecloses appellate review of Batson claims |
| Validity / duplication of aggravating factors (pecuniary gain; innocent‑victims; multiple killings; escalating violence) | Some aggravators conflict or impermissibly double/triple count the same conduct, inflating aggravating weight | Factors address discrete aspects (motive/pecuniary gain; gratuitous cruelty; number of victims; pattern/escalation) and evidence (including Council’s admissions) supports each | Court finds no inherent conflict, sufficient evidence, and no impermissible double/triple counting |
| Victim‑impact evidence scope | Government’s victim‑impact presentation exceeded constitutional bounds (community testimony, lengthy retrospectives) | Payne allows victim‑impact evidence; court limited scope, gave curative instruction, and defense had opportunity to object | No abuse of discretion; curative instruction and lack of contemporaneous objections undermine claim |
| §3593(f) jury instruction | Court failed to give Council’s proposed race-switching instruction and full statutory framing | Court instructed on §3593(f) multiple times (oral, written, verdict form); proposed instruction not statutorily required and substantially covered by the charge | No abuse of discretion; statutory requirements satisfied and proposed instruction unnecessary |
| Second Rule 33 motion timeliness | Motion based on new state statute; excusable neglect should permit consideration | Rule 33(b)(2) requires filing within 14 days for non-new‑evidence claims; motion untimely and not based on newly discovered evidence; no excusable neglect shown; appeal pending prohibits grant of a §33(b)(1) new‑evidence motion | Denial affirmed as untimely; district court did not abuse discretion |
Key Cases Cited
- Pate v. Robinson, 383 U.S. 375 (U.S. 1966) (defendant constitutionally entitled to a competency hearing when evidence raises reasonable doubt)
- Turner v. Murray, 476 U.S. 28 (U.S. 1986) (in interracial capital cases, jurors must be informed of victim’s race and questioned on racial bias; trial judge retains question‑form discretion)
- Batson v. Kentucky, 476 U.S. 79 (U.S. 1986) (peremptory strikes may not be used to exclude jurors on racial grounds)
- Payne v. Tennessee, 501 U.S. 808 (U.S. 1991) (victim‑impact evidence is admissible in capital sentencing)
- Peña‑Rodriguez v. Colorado, 580 U.S. 206 (U.S. 2017) (probative value and risk of exacerbating prejudice are considerations in questioning jurors about bias)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (effective assistance of counsel framework and competing constitutional protections at trial)
- Bucklew v. Precythe, 139 S. Ct. 1112 (U.S. 2019) (the Constitution permits capital punishment)
- United States v. Banks, 482 F.3d 733 (4th Cir. 2007) (procedural competency claims reviewed for abuse of discretion)
- United States v. Higgs, 353 F.3d 281 (4th Cir. 2003) (standards for aggravating factors and notice under the Federal Death Penalty Act)
- United States v. Runyon, 707 F.3d 475 (4th Cir. 2013) (victim‑impact evidence reviewed for abuse of discretion)