*1 year is a short- years, five which than less America, UNITED STATES sentence he received. than the er
Plaintiff-Appellee, discretion Finally, we exercise our v. it increased the error because correct necessary fact without the sentence UMAÑA, Alejandro Enrique Ramirez integrity thereby affected finding and Lobo, Wizard, a/k/a a/k/a States proceedings. United of the Defendant-Appellant. Saf Cir.2012) (3d erstein, F.3d 10-6. No. sentencing range higher that a (concluding fairness, integri seriously affects the “too Appeals, United States Court judicial proceed reputation of ty, public or Fourth Circuit. (internal quo ings to be left uncorrected” omitted)). unwilling are marks We tation Argued: 2014. Jan. on which about the facts speculate April Decided: 2014. based, like in a situation particularly was this, may have been where decision credibility determination
based on trial may beyond be there facts
where had may have considered been
record the role objection his
Tai not withdrawn Thus, no view express
enhancement. we applicability of the enhancement
as to the rather, integrity to ensure the
but we will for resentenc
proceedings, remand to make allow the District Court
ing to culpability findings concerning
factual Tai worked
of the individuals whom if it finds impose enhancement crimi participants of these
least one Pollen, F.2d at 90.
nally culpable.
Ill reasons, will af- foregoing we
For and vacate judgment conviction
firm sentence to judgment remand the the role en- applicability
address
hancement. *9 Attorney, Charlotte,
Of The United States Carolina, Appellee. for North NIEMEYER, GREGORY, Before and AGEE, Judges. Circuit by published opinion. Judge Affirmed majority opinion, NIEMEYER wrote the Judge joined. Judge in which AGEE dissenting opinion. GREGORY wrote a NIEMEYER, Judge: Circuit Alejandro Ramirez Enrique Umaha shot brothers, Manu- and killed two Ruben and Salinas, in point-blank range el a restau- Greensboro, Carolina, rant North be- that the brothers perceived cause Umaha gang, had insulted Umaha’s Mara Salva- trucha, juryA commonly known as MS-13. all counts for he convicted Umaha of which charg- two charged, including counts ing him with murder aid of racketeer- 1959(a)(1), § of 18 ing, violation U.S.C. charging him with commit- and two counts using a firearm ting murder while violence, in to a crime of relation 924(c) (j)(l). § violation of 18 U.S.C. charges subjected The convictions on those to a maximum sentence of death. Umaha conviction, the Following the verdict of a verdict that Umaha jury same returned capital the four eligible was death counts, §§ provided in 18 U.S.C. 3591- statutory found that two 3596. Brunkow, ARGUED: Vincent James (1) that applied: factors Uma- aggravating Inc., Diego, Federal Defenders of San San grave risk of death to one ha had created California, Appellant. Adam Diego, for victim, to each persons or more addition Morris, Of The United Christopher Office (2) than one that he had killed more Charlotte, Attorney, North States Car- episode. criminal person single in a olina, BRIEF: Zandra Appellee. for ON phase selection Tung, Finally, Defend- the sentence Lopez, L. Janet C. Federal trial, Inc., jury imposed penal- the death Diego, Diego, Califor- of ers of San San Jr., Hill, nonstatuto- nia; Hunter, ty, finding that four additional Ray Chapel Malcom (1) Weiss, Carolina; ry aggravating applied: factors Copeley North David PLLC, Durham, pro- two brothers to had killed the Groninger & Umaha Johnson Carolina, reputation maintain the MS-13 Appellant. Anne M. tect and North gang; in that position to advance his Attorney, Office and Tompkins, United States *10 Angeles (2) injury and loss Umaña’s activities in Los had caused that Umaña (3) friends; family and to the brothers’ phase selection During the sentence intentionally com- earlier had that Umaña trial, introduced government Umaña’s Angeles; in murders Los mitted several in several Los implicating evidence Umaña (4) continuing and posed that Umaña and one on Fairfax Street Angeles shootings: safety lives and threat to the serious were July persons where two lack of re- others, by his as evidenced killed, in Grove and and one Lemon shot MS-13, lack of his morse, allegiance his 28, 2005, where a September Park on rehabilitation, pattern his of violence. and at and one group persons of four were shot mitigating fac- jury found several The also injured. were was killed and two and weighing aggravating tors. After factors, imposed mitigating of the Fairfax Street On the occasion penalty. death murders, passenger in the Umaña was several other MS-13 seat of a car with every challenges appeal, Umaña On alongside pulled up The car members. After proceedings of the below. phase street, walking two males down ar- carefully considering each Umaña’s began flashing gang signs groups the two affirm the reject them and guments, we The two males on the at one another. convictions and sentence. artists, graffiti “taggers,” or street were I they gestures made hand were perceived challenging MS-13. Some or Umaña, in in El Salvador who was born car to group all of exited the Umaña’s 1980s, early illegally entered the Unit- taggers. confront the There were conflict- Angeles. in 2004 to live in Los ed States ing happened accounts about what next. time, of the At the he had been a member fellow MS-13 members claimed Umaña’s years, having gang MS-13 for several taggers, shot the two but two in El joined in while he lived Salva- eye civilian witnesses claimed dor. driver the car shot them. Angeles was formed in Los MS-13 immigrants from the 1980s Central the occasion of the Lemon Grove On America, El Salvador. To predominantly murder, approached Park two men MS-13, membership into an individual gain just group playing of four who had finished beating. to a 13-second The must submit sitting basketball and were on bleachers gain gang uses violence and extortion word, the two men park. Without territory, and for a member to and control guns opened took out fire on the MS-13, he has to be reputation build his group. players One of the four basketball gang attack rival members or ready to killed, while two others were wounded. disrespects gang. who anyone else fourth, Gonzalez, Freddie who was betrayal by putting the punishes MS-13 attack, apparently target es- member, on the which consti- “green light” uninjured. pieces Several of evi- caped targeted that he be tutes order dence linked Umaña to this murder. death. First, pho- in a Gonzalez identified Umaña Angeles lineup continues to be the and confirmed the identification Los While court, although he admitted to some activity, mecca of MS-13 has be- MS-13 Also, uncertainty. Umaña admitted to organization, a transnational come to the basketball driving the shooters groups, “cliques,” across United Canada, court, being a shooter States, although America. he denied and Central *11 Salinas, regulars matched the Manuel at Las Jarochi- Finally, himself. ballistics tas, eating drinking who were and with in the Fairfax Street murders gun used men. several other The Salmas brothers in Lemon Grove gun used with were not affiliated with gang. murder, there was no evidence Park and present at anyone but Umaña was sitting Umaña and his associates were both crime scenes. jukebox, they began selecting near the and Salinas, songs. upset This Manuel who New York activities Umaña’s “corrida,” type liked to listen to of Mexi- and, by the Angeles left Los Umaña music, country can whenever he visited residing New summer of was reported, Las Jarochitas. As one witness time, By up he had built York. this groups began “arguing the two then and within One reputation substantial MS-13. pushing Perhaps kind of like each other.” Umaña, who had tak- witness recalled that fearing getting that the situation was out “Wizard,” treat- en on the moniker of was hand, calm Manuel Salinas tried to by gang his fellow members like he was ed things by buying down the MS-13 mem- time.” “big bers a bucket of beers. The mem- MS-13 In the fall of an MS-13 leader bers, however, peace offering, rebuffed the to travel New York directed Umaña refusing acknowledge to drink or even Carolina, Charlotte, North as Char- beers. experiencing cliques lotte MS-13 had been A concerned waitress asked the MS-13 of his ex- significant infighting. Because they members leave restaurant. As perience exposure gang and life Los out, filing groups “exchang- were were Angeles, Umaña was ordered to “set them words,” ing and Ruben Salinas told the straight” North Carolina. This was MS-13 members that he “wasn’t scared of confirmed a Charlotte-based MS-13 gang responded them.” The members expected member who stated that it was that Ruben Salinas should not “mess with would “take control” because Umaña ... “they them” because were from MS.” gang.” he knew “how to run a gang that the was “fake to Ruben retorted North Carolina activities Umaña’s him.” Carolina, in North When he arrived left the All of the MS-13 members res- meeting, during which Umaña convened Umaña, stayed who be- except taurant members as to he instructed the MS-13 realizing that still Upon hind. Umaña was they extorting money, sell- how should be restaurant, in the MS-13 member drugs, stealing inspected He ing cars. inside. When Spider named came back gang guns; emphasized members’ he pull tried to Umaña to the the waitress importance respect; to them the and he door, Spider grabbed her and told her not cliques merge told them to the Charlotte point to touch him. It was together. following Over the course of the gun pointed out his it at pulled Umaña months, numerous conducted Manuel, he not shoot Ruben and but did meetings members in with MS-13 Char- sideways, right away. gun He held his lotte. Manuel and Ruben stood motionless. while anything. After some time Umaña was No one said On December minute, Greensboro, Carolina, much as a having elapsed, perhaps dinner North five at the brothers. fellow MS-13 members at Las Umaña fired shots several Jarochitas, to the gunshot a Mexican food restaurant. Ruben received a wound chest, in the head. and Manuel was shot Also at the restaurant were Ruben history dead at the scene Procedural pronounced Both were was shot A third individual of the crime. custody being held While Umaña in the shoulder and survived. authorities, several Los by North Carolina as the identified Umaña Witnesses interrogated him Angeles police detectives shooter, does not contest and Umaña shootings occurred in about the that had trigger. pulled he committing Angeles. Umaña denied Los *12 murders, Uma- Immediately after murders, although he did admit to those contacted a fellow MS-13 mem- group ña’s they oc- being present nearby when ber, a serving had been as confidential who curred. informant, to help get to them back Char- later, grand jury a federal Two months The informant met Uma- night. lotte that Charlotte, in the District of Western at an gang ña the other members and Carolina, indicted for the North Umaña Charlotte and IHOP restaurant between Greensboro, committed in which murders cars and Greensboro. Umaña switched in the Middle District of North Carolina. to Charlotte. rode with the informant back a motion to the indict- Umaña filed dismiss ride, un- During cocking he was venue, improper ment for which dis- discussing its cocking gun his bullets. requested trict court denied. He also nightclub and near- stop Their first was a Virginia, to hearing pursuant Atkins v. Charlotte, of where by taco stand outside 153 L.Ed.2d 536 U.S. S.Ct. confidential informant to Umaña told the (2002), for which forbids execution gun- it like gun, smell the because smelled mentally retarded defendants. The court powder being from fired. Umaña also told hearing and found that granted the Atkins going “pee the informant that he was to disability by prove Umaña had failed to his gunpowder. to get hands” rid [his] preponderance of the evidence. members had Several other MS-13 at the taco restaurant. One congregated trial, prison awaiting Umaña While MS-13 member later recounted Umaña’s maintained contact with MS-13 members. why he committed the explanation for had expressing his lengthy He wrote letters they said insulted murders“[Umaña] continuing loyalty gang to the and his ha- doing only he was it not be- MS-13. And gave for enemies. His also tred his letters him, doing of because he was cause po- rivals and intimidate orders execute us, victim, because of too.” Of the third against tential witnesses him. While the kill lamented that he “didn’t Umaña encoded, letters were the FBI broke the son of a bitch.” When asked about the code. prospect being pulled police over weapon, responded, with the murder he proceeded The case to trial. On the officer tape, recorded on that the would be selection, day jury first Marshals U.S. gun, wrong on the end of his as “she is that he frisked Umaña and discovered had by.” always close (in paper tied a four-inch metal blade sheath) penis. to his And when the confi- police arrested Umaña at an Charlotte trial, dential informant testified MS-13 member’s house on December gang signs Umaña flashed MS-13 with his police weap- 2007. The found the murder and, sitting. leaving, on in hands as the informant was the sofa where Umaña was family’s Spanish, going later told members said in “[Y]our Umaña other MS-13 mother.— n ” This you threat took “lucky” pay because he police were jury. “trying grab gun.” place been for his in front of the had single than in a person on all counts. more one criminal jury convicted Umaña episode. to con guilty conspiring him It found of, duct, the conduct participate or to eligible After the found affecting inter enterprise
the affairs of penalty, proceeded the death the court rack through pattern state commerce phase, during the sentence selection which activity, in of 18 U.S.C. eteering violation government put prove on evidence to 1962(d) conspiracy). § RICO (prohibiting nonstatutory aggravating four additional includ conspiracy (1) It found that this RICO factors: Umaña had killed the “willful, premeditat deliberate and ed the protect Salinas brothers to and maintain brothers, of the Salinas reputation ed murder” of MS-13 and to advance (2) therein; § position 14-17. The his Umaña had violation of N.C. GemStat. injury caused and loss to the Salinas guilty murdering jury also found Umaña (3) friends; family brothers’ racketeering, brothers aid of Salinas intentionally Umaña had committed sever- 1959(a)(1). § Fi in violation of 18 U.S.C. *13 (4) Angeles; al murders Los and guilty found of us nally, jury Umaña continuing posed Umaña and serious to a crime of ing a firearm relation others, safety threat to of as the lives and violence, in the of the Sali resulting death remorse, by his lack of his alle- evidenced brothers, nas violation of 18 U.S.C. rehabilitation, MS-13, giance to his lack of 924(c) (j)(1). jury § found and The also jury of The pattern and his violence. of several lesser offenses not guilty Umaña aggravating the existence of all four found here, including being an alien in at issue unanimously beyond factors and a reason- firearm, robbery affecting possession of They able doubt. also considered the evi- commerce, tamper interstate and witness presented by mitigation, dence Umaña ing. (1) effects primarily which consisted of government sought penal- The the death culpa- upbringing that Umaña’s had his § § ty for the 1959 and 924 counts. Ac- (2) friends; bility; family videos of his and divided cordingly, the district court (3) testimony safety precautions and about phases trial into three first to deter- —the place should Umaña be would be innocence; guilt mine or the second to imprisonment. All or sentenced to life eligibility determine Umaña’s for the death jury found that some of the members third, penalty; and the if Umaña were mitigating fac- proved Umaña had various eligible, found death to select between the of the evidence. by preponderance tors penalty imprisonment death and life with- murder particular, they In found possibility out the of release. emotionally charged during an occurred murder occurred as argument and that the jury finding guilty, After Umaña indoctrination into the a result of Umaña’s eligible penalty him for the death found weigh- After ways thinking and of MS-13. Act, Penalty 18 under the Federal Death mitigating and circum- ing aggravating §§ 3591-3596. addition to find- U.S.C. stances, sentenced Umaña that, the commission of the ing death. crimes, age Umaña was of sufficient mind, followed, sufficiently culpable raising had a state of numerous appeal This herein. statutory aggravating challenges, found that two fac- as discussed First, it found that Umaña applied. tors II of death to one or grave had created a risk victim, first the venue persons challenges more in addition to each of in the District second, it that he had killed of his trial Western found 334 III, Const. art. that “venue was “committed.” See U.S. He contends
North Carolina.
2,
3;
VI;
§
amend.
18
22-25]
counts
cl.
U.S. Const.
capital
[Counts
on the
3235-3237;
§§
Middle District of North
Fed.R.Crim.P. 18.
only in the
U.S.C.
proper
Greensboro],
the kill
where
a crime is committed—
place
[in
Carolina
where
‘murder’ was
ings occurred because
the locus delicti—“must be determined
element of the
only
‘conduct’
essential
alleged
nature of the crime
from the
(violations of 18 U.S.C.
charged offenses
constituting
act or acts
the location
924(c)
(j)(1)),” and that
§
§§
&
1959 and
Rodriguez-Moreno,
v.
it.” United States
in the Western Dis
proper
venue was not
275, 279, 119 S.Ct.
526 U.S.
Carolina,
he was
where
trict of North
(1999) (quoting
States
L.Ed.2d 388
United
committing murder
argues
tried. He
1, 6-7,118
Cabrales,
S.Ct.
U.S.
maintaining
...
purpose
“for the
(1998)). Thus, to
Both the Constitution murder, require response pay- that crim acted implementing statutes promise payment by inal the crime ment or a trials be conducted where purpose integral part organized or of an enterprise opera- “for crime gaining maintaining 98-225, (1983), entrance to or S.Rep. tion.” No. at 305 increasing position. or an enter- reprinted in 1984 U.S.C.C.A.N.
prise.” added). (emphasis physical And a man- ifestation of purpose necessary to ensure 1959(a)(1); § see also United 18 U.S.C. (4th actually that the act is carried out to fur- Fiel, 997, 1003 States v. 35 F.3d Cir. 1994). enterprise’s goals. ther the argues only con Second, statutory suggests context § 1959 offense was the duct element the “for purpose prong of’ re- murder itself. He characterizes the lan quires quid pro quo a manifest between guage linking murder to the racketeer gang. earlier, the member and the ing enterprise—i.e., purpose “for the of parallel portion of the statute criminalizes maintaining increasing position ... or in violent crime conducted “as consideration enterprise racketeering an ac engaged receipt of’ or “as consideration for tivity”—as merely descriptive of a promise agreement pay any- or ... rea, requisite crime’s mens which cannot thing pecuniary value.” 18 U.S.C. where the crime was committed determine 1959(a). § portion This of the statute purposes. Oceanpro, for venue See 674 clearly indicates that there must be a re- F.3d at 329. ciprocal arrangement between the enter-
We decline to read that element so nar- individual, prise and the and we believe it rowly. purpose We think that “for the purpose sensible to read the “for the of’ ... maintaining increasing position language similarly. enterprise” defines motive element 1959(a)(1) bottom, § At we hold that requirement that includes a that the defen- objective, physi- includes as an element an enterprise dant have interacted with the cal act that links the defendant with the respect
with purpose bolstering to his enterprise respect underlying to the position enterprise. his in that activ- Such violent crime and that this element is a ity could occur before commission of a *15 conduct element supporting venue. violent crime covered the statute—for example, if a mafia boss a mem- instructed case, this Umaña’s actions In ber to commit murder or else be cast out satisfy Charlotte were sufficient to this organization—or after commission to conduct element. Umaña was sent example, violent crime—for if the to shape .up Charlotte with orders headquarters member returned to mafia cliques. Upon arriving North Carolina exploits boast about his with a mind to- Charlotte, he instructed the local MS-13 ward advancement. length weapons members at about and am passed gun. munition. He around his own interpre
Two reasons underlie our respect. First, maintaining He discussed One tation. think reading we this avoids witness, at the initial who was Charlotte illogical—and possibly unconstitution meeting, respect every testified that “was § al—result that 1959 would criminalize thing” killing to Umaña. And after murder committed with a secret intent to respect for their failure to join Salinas brothers gang where the murderer has abso gang, immediately returned to lutely prior no his Umaña gang connection with the Charlotte, clear, where he boasted to his fellow Congress itself. made when enact ing § at members the murders. He the offense was aimed MS-13 about eliminating violent crime “committed as told them he had killed Salinas 336 change its gang status in “a street fails they had insulted MS-13
brothers because
them for his fellow noneconomic nature.” And because his
that he had killed
objective manifes-
These
on Counts 23 and 25 under
gang members.
convictions
924(c)
his
purpose
§
§
to further
predicated
tations of Umaña’s
were
on his
1959
sufficient to
enterprise
convictions,
they
in the
were
too
position
reasons
Umaña
District of
in the Western
support
government’s
venue
Commerce
exceeded the
§
prosecution.
North Carolina for
authority. Accordingly,
argues
he
Clause
through
that his convictions on Counts
23 and
Umaña
Counts
25 must be reversed.
violations of 18
charged and tried for
924(c)
(j)(l). The indictment
§
U.S.C.
present
Because Umaña failed to
that Umaña used a
alleged
in those counts
court,
argument
to the district
we
in relation to a crime
“during
firearm
plain
review it for
error. See United
violence,
conspiracy
partici
that is:
(4th
Forrest,
73, 77
States v.
429 F.3d
enterprise
pate
racketeering
[18
in a
Cir.2005)
review
(conducting plain error
§
and murder
aid of racke
1962]
U.S.C.
challenge
of a
Clause
that was
Commerce
1959],”
§
resulting
teering
U.S.C.
[18
court).
not raised before the district
killing
the unlawful
of Ruben and Manuel
924(c)
§
prosecutions
Salinas. Venue
I,
8,§
Article
of the U.S. Consti
underlying
wherever
appropriate
is
Congress
tution authorizes
to make laws
place. Rodriguez-
violence took
crime of
necessary
regulate
among
commerce
Moreno, 526
Ill
racketeering activity,” with the term “en
terprise”
“any partner
contends that his convic-
defined to include
Umaña next
association,
in ship, corporation,
tions on
22 and 24 for murder
or other le
Counts
in,
activity
gal entity
engaged
... which
or the
racketeering
aid of
under 18
*16
1959(a)(1)
affect,
punished
§
conduct that
activities of which
interstate or for
U.S.C.
noneconomic,
1959(a),
§
eign
“is a
local ac-
commerce.” 18 U.S.C.
quintessential,
(b)(2).
tivity
beyond Congress’s authority
question
that
therefore is whether
lies
Clause,” Congress
rationally
could
have concluded
regulate
under the Commerce
violence,
activity regulated
much like the
in the
that
intrastate acts of
such as
Act,
murder,
Against
purpose
which the
committed for the
Violence
Women
maintaining
increasing
in
or
one’s status in
Supreme Court struck down
United
Morrison,
598,
racketeering
enterprise,
States v.
529 U.S.
120 S.Ct.
interstate
(2000).
1740,
Moreover,
substantially affect the interstate
337
Moreover,
jurisdiction-
§ 1959
wholly
find it
reasonable to believe
includes
We
al
that
element
limits its reach to activities
enterprise
of a criminal
that members
enterprises “engaged
connected with
in” or
solidify
engage in violence to
their
might
whose activities “affect” interstate com-
in the
organization
in the
or rise
status
merce, thereby justifying its constitutional-
by doing
that
leadership,
ranks of its
ity under
the Commerce Clause.
18
so,
power
they would enhance
1959(a), (b)(2);
§
U.S.C.
see also United
racketeering enterprise
reach of the
itself.
Gibert,
(4th
613,
677
States
F.3d
624
Indeed,
present
the circumstances of the
Cir.2012).
jurisdictional
This
element dis-
provide
case
a convenient illustration. Be
§
tinguishes
1959 from the Violence
in
reputation
cause of Umafia’s substantial
Against
Act struck
Women
down Morri-
MS-13,
up
which he seems to have built
613,
son. 529 U.S.
tion to actually have found that Juror 286 was arising under instances ter of individual that, solely on her life based (quoting biased consequence” of no that statute is 1624) impliedly experience, she was event 558, 115 S.Ct. at Lopez, 514 U.S. omitted)); (internal biased. marks Unit quotation (4th Gould, 568 F.3d
ed v. States 475. dire, During prosecutor voir asked Williams, Cir.2009); v. States United her abil- questions 286 several about Juror Cir.2003). (4th F.3d dispense penalties impartially:' ity to error, let alone Accordingly, we find no keep an Q: you open And are able to error, reject and therefore we Uma- plain you’ve mind until heard the evi- challenge. fia’s Commerce Clause to make decision be- [the dence prison life in and the death
tween IV ju- penalty] together with the other rors? court contends that the district mean, I think so. I I A: would like to refusing to excuse its discretion abused anything about the case. don’t know 119 on account of their 286 and Jurors argues bias. He Juror 286 personal Q: point. you But ha- And that’s the experience past on a life was biased based evidence, you so are ven’t heard the against respect to a crime committed with open mind and con- keep able to and that 119 was biased her brother Juror options sider at the conclusion both gave she about as indicated answers of the evidence? consider meaningfully
whether she could A: I think so. death, imprisonment, upon life lieu of finding guilt charges on the this case. Q: given you the information that And court’s de We review the district tragedy your shared about jurors to seat these for abuse of cisions ..., you brother are able to come discretion, Poynter Ratcliff, v. 874 F.2d into this courtroom and consider (4th Cir.1989), 219, 222 will find and we only the facts and evidence that are only per disqual se rule of abuse “where presented making in this case in applies” or “where the court [trial] ification your decision? disregard a clear ‘demonstrate^] mean, I I I can’t hope A: I can. juror,” actual United States v. bias’ forget experiences ... those (4th Cir.2006)
Fulks, F.3d hope, I’ve I and I had.... would Turner, 389 F.3d (quoting United States I think that would look the facts (4th Cir.2004)). 111, 115 of this case. A Q: you All right. And so sit here voir dire during Juror 286 recounted today you’ve ... until heard all the earlier, years than her broth-
that more case, you in this facts evidence attempted the victim an er had been fairly would be able to consider murder; the assailant received a punishments; life im- potential both sentence; that, release, the short after prisonment parole without and the murder and then sui- assailant committed penalty? death experience on this life and on cide. Based dire, A: answers voir Uma- Yes. Juror 286’s *18 up parole on Juror without would be considered counsel followed Umaña’s following inquiry: sufficient for answers with sentences those 286’s crimes? how [your frustration with Q: Does your handled] case was brother’s I depending A: think on the circum- now, you’re juror if play come into and the evidence. stances this, that involves two in a case like Q: you meaningfully ... con- [W]ould murder? charges of sentencing op- sider both of these not, to A: I know if it would or be don’t in the sentencing phase tions of this strong feelings I have honest. do trial? sentence— n know, the about it. You A: Yes. Yes. me not—it was the sentence to did justified, on the circum- based happened. and what And stances Q: you experience think that the [D]o
that because he didn’t have person, happened your with what broth- sentence, think, I initial- a sufficient everything, er’s attacker and would murder ly, went on to do additional any impact your ability have yeah, And I do have a and suicide. facts, judge be fair on the as far past that. problem getting guilty guilty? as ... versus not Then, explained after counsel Umaña’s ... hope A: I would it would not enter that, upon finding guilt of Juror decision, my into but I still have murder, only options there would be “two experience. that possibility on the table”—life without Q: right, ... defendant has the [T]he questioned and death —he her as of release government, to have a as does follows: people who are fair and that, Q: Knowing your does attitude impartial open-minded. And I judi- your frustration with the about you you feel that are one guess, do that system cial and the sentence right for people of those this case? your got, brother’s that assailant say per- A: I don’t know if I can you how—can tell us whether really cent. I don’t. you? or affect would be issue judge At that intervened point, district
A: I think different than the it’s bit presumption to describe to Juror 286 the my situation with brother. Because explain gov- and to that the innocence I just in that instance didn’t think proof. ernment bears burden punish- there sufficient following questions: judge then asked ment that fit the crime. you’re looking case the death Now, your Q: anything is there about me, penalty, you’re telling or as you from experience keeps life prison someone who would be principles those understanding different, life. It’s rest of their them in this case? agreeing apply I I that. hope that would see principles entirely. I A: understand could, know, hope you I that I
And
then,
job
requested.
I
Q:
you
...
... do the
that’s
you saying
Are
things
my
give
just
fair
... have these
equally,
would consider
know wheth-
experience
that I don’t
types
consideration to both
sen-
words,
they
prevent
would
me from do-
you
In other
er
tences?
job correctly or not.
ing
think that either death or life
would
*19
juror]
juror, and we held that “after
principles?
[the
those
you agree with
Q: Do
repeated
equivocal response
an
gave
Yes, I do.
A:
ability
proceed
with
questions about his
mind ...
the trial court should
open
an
your
anything about
Q: And is there
response.”
an affirmative
have asked for
prevent
experience
would
past
Id.
participating
you
meaningfully
from
Thompson,
The circumstances
determining the
process
in that
[of
however,
in kind and effect
were different
penalty options]?
juror
Thompson,
here.
In
the
from those
No,
A:
I don’t think so.
to be
suggested that he was unable
had
judge then declined to excuse Juror
open
asked
he had an
When
whether
fair.
286.
mind,
said,
think that
juror
the
“I don’t
I
answers,
contrast,
286’s
left the court
By
Based
Juror
do.”
Juror 286
displayed actual bias
argues
message, suggesting
that Juror 286
opposite
with the
equivocal regard-
because she “remained
to think” that she could
she “would like
Moreover,
surround-
ing whether the circumstances
when the
keep
open
an
mind.
attempt on her brother’s life would
ing
agreed
the
Juror 286 whether she
judge asked
ability
keep
open
an
mind and
principles
affect her
the
constitutional
re
basic
juror
the
impartial
a fair and
lating
presumption
be
to the
of innocence and
Thus, he contends
guilt/innocence phase.”
proof,
she said
government’s
burden
uncertainty after voir
judge
that there remained
told the
that she did. She also
actually ap-
she could
prevent
dire “about whether
not
past experiences
her
would
of innocence and
ply
presumption
“meaningfully participating
[the
her
from
light
sure,
proof beyond
doubt]
a reasonable
sentencing] process.” To be
[the
experiences.”
suggests
He
past
of her
could not be
Juror 286 stated that she
Thompson,
v.
744 F.2d
that United States
would conduct
100% sure about how she
(4th Cir.1984),
required
finding
herself,
repeatedly
but
she
nonetheless
actually biased.
Juror 286 was
an
thought
keep
stated that she
she could
mind and “look at the facts of this
open
jurors
of the
notified
Thompson,
In
one
case.”
judge during
piece
trial that a
of evi-
heavily.”
similarly distinguished Thompson in
quite
had “moved
We
[him]
dence
(4th
Hager,
Q: you would [S]o juror’s personal any more than does testimony police of a offi- bias fairly the with law enforcement. See you a civil- association cer, way would the same LaRouche, F.2d States v. in this case? United ian witness (4th Cir.1990). on our review of Based in all hones- again answer A: I have to record, the district we conclude I be able hope I that would ty that ruling was not in error. court’s say, support I I do to. But also as in a favor- law enforcement and see light.
able B *21 that Juror 119 Umaña contends [Wjould in- follow that same Q: you she did not was also biased insofar as and use the same standard struction during voir dire that she would confirm each evaluating credibility of in imprisonment life “meaningfully consider type of witness? charged upon finding guilt never done it be- A: I so. I’ve think offenses.” fore, say say. just I I have to gave questionnaire, 119’s she On Juror I think hope I and would that would re- seemingly contradictory answers with that I would. consider life in spect to whether she would answers, Umaña contends Based on these an convicted of racke- prison for individual equivocal about that “Juror 286 teering explained But she offenses. her beliefs about law enforcement whether by voir dire that she had been confused all duty with her to treat would interfere impor- More wording question. equally.” witnesses tantly, expressed unhesitatingly she not, during did Because Umaña prison in she would consider both life dire, object to Juror 286 on this voir the death sentence: this issue under ground, we review Q: you I have for question [T]he See Fed.R.Crim.P. plain error standard. you would consider those whether Olano, 52(b); 507 U.S. United States options? both—those two 725, 732-34, L.Ed.2d 113 S.Ct. Oh, yes. A: (1993). Q: automatically choose one over Or of law Although favor “bias the both? inappropriate,” [i]s enforcement officials A: No. No. Lancaster, States v. 96 F.3d United (4th Cir.1996) (en banc), we conclude Q: You would consider both? failing not err in that the district court did A: I would consider both. 286’s to find actual bias based Juror dire, say “positive feelings” had Later voir Juror 119 did statement that she enforcement, heavily the death especially where she would “lean towards about law (albeit killing.” cau for ... intentional penalty went on to affirm in her When she fashion) judge up followed on this state- tious that she would use the same the district ment, every initially expressed Juror 119 some evaluating standard in witness’s “not credibility. Capers, equivocation, stating at 1105 she was See F.3d (no juror keep open he sure” whether she could abuse of discretion where said juror’s sentencing options. A mind about the “might” government). favor the 119: impression judge probe of law en- continued to Juror generally favorable I’m ror 119’s assurances that she could follow you question: Q: Let me ask your sentencing op- the law and consider all asking you to tell me what you asking I’m tions. will be. What decision faith,
is,
go
you willing
good
are
considering and
process
through
V
weigh
options?
both
During
phase
the third
of trial —the sen-
A: Yes.
phase, during
tence selection
which the
that,
you willing
would
be
Q:
part
As
impose
impris-
decided whether to
life
weigh
aggravating
to consider
possibility
onment without the
of release
by
government
presented
factors
penalty
government
or the death
—the
by
mitigating
presented
factors
and the
prove
commit-
sought
Umaña had
the defendant?
Angeles
ted several murders
Los
A: Yes.
end,
2005. To that
it introduced into evi-
Q:
you be able to follow
Would
transcript
interrogation
dence the
of an
points?
instructions on those
Court’s
Umaña,
Angeles police
conducted
Los
I
to.
A: Yes. would have
custody
while was in
detectives
he
state
*22
During
interrogation,
North Carolina.
judge concluded that Juror 119 “could
The
placed
Umaña
himself at the two scenes of
weigh
options.”
in
faith
both
good
murders,
Angeles
although
the Los
he de-
judge
that
did not
conclude
We
actually committing the murders.
nied
judg-
In making
abuse his discretion.
his
so,
govern-
helped
Even
the evidence
ment, he followed the instructions from
in
be-
implicate
ment
Umaña
the murders
following up with a series
Hager precisely,
anyone
cause no evidence indicated
shorter,
ju-
simpler questions when the
at the
loca-
present
but Umaña was
two
initial equivocation.
ror manifested some
tions,
to com-
gun
and the same
was used
juror
questions
these
unam-
The
answered
mit all of the murders.
making clear that she was not
biguously,
“irrevocably
imposing
committed to
tran-
Challenging the introduction
Caro,
v.
penalty.”
death
United States
script, Umaña contends that
the state-
(4th Cir.2010).
608,
F.3d
615
597
during
interview were
ments he made
rights
in violation of his Miranda
obtained
noted,
previously
As
have
we
and,
event,
involuntarily,
given
were
juror’s
not be a blank slate.
mind need
Fifth Amendment. He
violation of the
Jones,
v.
716 F.3d
See United States
on the fact that
argument
bases his
(4th Cir.2013) (“Because jurors
857
will
interview,
Angeles
detectives
Los
experiences,
their life
opinions
have
from
told him that his statements
repeatedly
for the
Amend
impractical
would be
Sixth
North
case
would not “affect” the
Carolina
juror’s
be
require
ment to
that each
mind
would not “cost”
and that his statements
rasa”).
court
a tabula
district
views
“[I]f
they
him
in fact
were used
anything, when
juror
impartiality
assurances of continued
him in
against
this case.
credible,
may rely upon
to be
the court
claim, the record
deciding
whether a de
As to his Miranda
such assurances
Angeles
Los
detec-
proving
shows that after the
fendant has satisfied
burden
warning
tives read Umaña a Miranda
prejudice.”
(quoting
actual
Id.
United
(6th
Corrado,
up
questions
Spanish, they followed
States v.
304 F.3d
603
Cir.2002)).
understood, again speak-
that he
judge
present
in the
case
to ensure
him in
crediting
ing
Spanish:
Ju-
acted
his discretion
within
and clear
“Why
go
I’m stated:
don’t we
ahead
you understand what
Detective: Do
past
you’ve
in the
done
up everything
saying?
Angeles.
you any-
It doesn’t cost
Los
Yes.
Umaña:
And, referring to the North Car-
thing.”
about,
talk
you want to
Detective: Do
investigation,
olina
detective stated: ‘We
uh,
here of
we want to talk about
what
don’t ... want to affect the case here
Angeles
in Los
things
happened
all.”
freely?
...
already
you,
told
let’s see
I
Umaña:
whether a state
To determine
about it.
involun
ment or confession was obtained
Okay.
Detective:
Amendment,
tarily, in violation of the Fifth
Umaña: Yes.
the de
proper inquiry ‘is whether
“[t]he
Okay....
Detective: Yes?
or his
fendant’s will has been overborne
critically
capacity for self-determination
explaining more
You will be
Umaña:
”
Braxton,
impaired.’
United States
things.
(4th Cir.1997) (en banc)
F.3d
interview
who conducted this
The detective
Pelton,
(quoting
States v.
835 F.2d
United
thought
later
that he
testified
(4th Cir.1987) (internal
quota
silent and
right
his
to remain
understood
omitted)). To make this deter
tion marks
right.
The district
intended to waive
mination,
totality
we consider “the
of the
court found the officer to be credible
circumstances,
including the characteris
‘Tes,” plus
his
response
that Umaña’s
defendant,
setting
tics of the
willingness
ques-
to answer
subsequent
interview,
interroga
and the details of the
tions,
that he did indeed intend
indicated
Pelton,
tion.”
F.2d at
1071.
rights
speak
to waive his Miranda
*23
with the detectives.
consistently
We have
declined
agree.
“To effectuate
We
that a
categorically
suspect’s
to hold
state
rights,
suspect
waiver of one’s Miranda
involuntary
po
simply
ments are
because
any particular
need not utter
words.”
deceptively highlight
positive
lice
as
(4th
172,
F.3d
198
Angelone,
Burket v.
208
pects
example,
of confession. For
Cir.2000).
impliedly
A
his
suspect
waives
Whitfield,
v.
Umaña contends
his
we
involuntarily,
promise
‘things
go
would
easier’ on
statements were extracted
Fifth
if
rights,
suspect]
[the
[did not]
violation of his
Amendment
he confessed
coercion.”
Angeles
because the Los
detectives said
unconstitutional
]
amountf
686;
not “cost”
Id. at
see also
States v. Rut
that Umaña’s statements would
United
(7th
anything
him
or “affect” him. He identi-
900 F.2d
Cir.
ledge,
1990) (finding
coop
that the statement “all
fies 10 such comments that occurred over
helpful”
hour in-
eration is
was the sort of “minor
the course of
two-and-one-half
example,
asking
terview. For
when
about
fraud that
the cases allow” and did not
murders,
involuntary).
subsequent
the Fairfax
one detective make
statements
Street
threats, violence,
ed,
that,”
then,
“I
“The mere existence
don’t know
“Look
influence,
improper
hands,
implied promises,
my
... perhaps
perhaps someone
...
police activity
hands,
other coercive
does not
perhaps Negro’s hands,
else’s
per-
automatically
render
confession involun- haps Chipie’s hands.” At
point,
one
he
Braxton,
Eather,
tary.”
A
that
court
sub-
cross-examination,”
ject
it would be-
“it
clear from
argues that
is
the
250,
at
69
come “unavailable.” Id.
S.Ct.
history,
Amendment’s text
the
Sixth
explained
type
1079. The Court
that “the
Amendment,
statutory re-
the
Eighth
[necessary
and extent of
information
Penalty
Death
[Federal
quirements
individualizing punish-
‘practice
to the
applies
right
confrontation
Act]
if
totally
make
not im-
impractical
ments’]
of a fed-
sentencing phase
throughout
open
testimony
court
possible
cross-
penalty
Recognizing
death
case.”
eral
also
examination.”
Id. The Court
ex-
has traditional-
that the Sixth Amendment
highly
plained
sentencing is
discre-
during sentencing,
ly
applied
not been
he
function,
tionary
which is distinct from
qualita-
penalty
that the death
is
argues
requires
finding guilt,
process
where due
punishments
from
tively different
other
by
“hedged
that the factfinder be
strict
application
of the Confrontation
evidentiary procedural limitations.” Id. at
reliability in
would enhance
Clause
246, 69
The
Court
S.Ct. 1079.
Williams
appropri-
that death is the
determination
indicated that
standard is no different
punishment.
ate
cases,
capital
for
cannot
stating, “We
ac-
long
Courts
held that
have
cept the contention” that “we should draw
right
apply
to confrontation does not
at
proce-
to the
constitutional distinction as
sentencing,
capital
even in
cases.
In
for
where
obtaining
dure
information
York,
v. New
U.S.
Williams
337
69
at
imposed.”
death sentence
Id.
69
(1949),
93
S.Ct.
L.Ed. 1337
state
S.Ct. 1079.
imposed the
on a
judge
penalty
death
de
squarely
We conclude that
dis-
Williams
(1)
present
fendant based
the evidence
poses
argument
of Umaña’s
that the Sixth
(2)
trial,
jury at
ed to the
“additional in
apply
capital
Amendment should
sen-
through
formation obtained
court’s
tencing.
(3)
Department,” and
Probation
informa
sources,”
“through
tion obtained
other
nonetheless
Umaña maintains
242-43,
by
Williams,
state
intervening
authorized
law. Id.
case law
eroded
has
(internal
containing
marks
he
quotation
S.Ct.
omit which
characterizes as
“anal
ted).
challenged
judi
The
ysis
bygone
defendant
con
of a
era of untrammeled
stitutionality of
because it
cial
no
provides
the sentence
discretion.” But he
au
upon
supplied
thority suggesting
has
“based
information
that Williams
been
witnesses with whom the accused had not
To
contrary,
overruled.
Williams re
good
been confronted
to whom he
law.
Supreme
and as
had mains
Court re
opportunity
cently
viability Alleyne
no
affirmed
cross-examination
its
v.
—
States,
-,
Id. at
1079 (quot
rebuttal.”
69 S.Ct.
United
U.S.
S.Ct.
Williams,
803, 804, 2151,
(2013),
ing People
298 N.Y.
186 L.Ed.2d
in which
(1949)).
rejecting
holding
83 N.E.2d
the Court recited Williams’
“the
*25
challenge,
Supreme
govern”
the
noted
Amendment
Court
Sixth
does not
“fact-
sentencing,
pun
finding
guide judicial
in modern
seeks a
used to
discretion
which
offender,
just
punishment
ishment that fits
limits
selecting
the
the
‘within
fixed
”
crime,
sentencing judge
by
the
should be
Id.
2 (quoting
able
law.’
at 2161 n.
1079).
Williams,
246,
“the
possi
to consider
information
337
S.Ct.
fullest
U.S. at
69
concerning
recently
the
ble
defendant’s life
And we
held in
States
and
United
v.
Powell,
(4th Cir.2011),
247,
characteristics.”
at
347 it, including context, uncor- vant information before Amendment it talking is not hearsay, provided appropriate roborated that the infor- about the sources for infor- reliability even, mation sufficient indicia of mation sentencing has introduced at ” support accuracy.’ (quot- generally, its Id. at more reliability 392 about the of Wilkinson, (1) ing v. 590 evidence. It focusing United States F.3d is instead (4th Cir.2010)). 259, Indeed, delineate, ante, the 269 Poiv- need to ex par- the ell, rejected ticular specifically we the claim Uma- offenses for which death is a (2) ña intervening proportionate punishment now makes that case law Williams, holding jury undermined need for the “[r]e- be able to consider cent Confrontation Clause decisions do not all factors (particularly mitigating, but require aggravating) us to reconsider this settled dis- also choosing relevant tinction trial an appropriate punishment between evidence and sen- once the tencing hearsay penalty evidence in the context.” death is in play.
Id.
agree
We
with Fields. A policy of full
during
information
sentencing, unrestrict-
Moreover,
suggestion
Umafia’s
by
evidence,
ed
the strict rules of
enhances
sentencing
that evidence at
be restricted
reliability by providing
sentencing jury
by the Confrontation
frus
Clause would
evidence,
with more
pre-
relevant
whether
policy
presenting
trate the
of
full informa
by
sented
government
or the defen-
tion to
As the
sentencers.
Williams Court
dant.
impose
rigorous
To now
re-
out,
pointed
“Modern concepts individual
quirements
only
of confrontation would not
izing punishment have made it all the more
be a
sentencing,
setback for reliable
necessary
sentencing judge
that a
not be
“endlessly
could also
delay criminal admin-
an opportunity
pertinent
denied
to obtain
istration in a retrial of collateral issues.”
requirement
rigid
information
Williams,
250,
guilt and only during tencing §§ 3591-3596. It is is therefore affirmed. U.S.C. jury that the makes “consti- phases
these significant” findings. factual tutionally B Only finding after Umaña Regardless the of whether Con eligible jury the penalty death did applies, frontation Clause Umaña chal hearsay to assist it evidence case consider hearsay the lenges admission of the testi the its discretion to select exercising mony in this case on that ground the did During the selec sentence. appropriate reliability “sufficient of not bear indicia legally required not phase, tion Powell, probable accuracy.” its support so, may And do any find facts. while it (quoting F.3d at 650 394 U.S.S.G. necessary such facts are neither nor suffi 6A1.3(a)). § We the district court’s review impose penalty—they cient to death regard ruling in this for abuse of discre jury’s in choos merely guide discretion Basham, tion. See United v. 561 States the Supreme As Court has ing penalty. (4th Cir.2009). 302, F.3d 330 recently explained: respect to Fairfax Street mur- With find increase any Juries must facts that ders, argues hearsay that statutory mini- either the maximum or Rivera, Ramos, of statements Areva- ap- the Sixth mum because Amendment being lo—all of whom him of accused fact both alters plies finding where not shooter—did bear sufficient indicia of legally prescribed range and does so reliability. He that their argues state- aggravates way penalty. in a that by indepen- ments were not corroborated this is Importantly, distinct from fact- evidence; dent that similarities in guide judicial used to discretion finding “undisputed pe- their statements were on selecting punishment lim- “within details”; ripheral that Rivera and Ramos by law.” its Williams New fixed spent jail together a weekend in before York, 1079, 337 U.S. 69 93 S.Ct. stories; same telling the the state- (1949). findings L.Ed. 1337 While such product pressure; police ments were may lead judges of fact to select sen- they were in some contradicted re- tences that are more severe than the observers; by neutral spects they they would without ones have selected self-serving they were inasmuch as excul- facts, the does those Sixth Amendment Illinois, accusers, pated see Lee v. 476 govern that sentencing. not element of 530, 541, U.S. S.Ct. 90 L.Ed.2d Alleyne, (emphasis at 133 S.Ct. 2161 n. (1986) (noting “accomplices’ con- added). fessions incriminate defendants” are Accordingly, that the we conclude unreliable”). “presumptively preclude Confrontation Clause not does legitimate While are all hearsay the introduction statements these ar phase cap guments, the sentence we conclude that the court selection had sentencing. ital v. other evidence that the hearsay Accord Muhammad rendered Corrections, Dep’t F.3d Sec’y, testimony sufficiently Fla. reliable to overcome (11th Fields, Cir.2013); any presumption support 1073-77 its discre admitting First, hold F.3d 337-38. district court’s tion in the evidence. undisputed that the ing Confrontation Clause did there was ballistics evidence prevent government introducing that the indicating gun from same was used for hearsay eoeon Fairfax Lemon statements of Umaña’s both the Street and Grove *27 being bottom, admitted to At Park murders. Umaña we conclude that the district crimes, at the scene both and there is court did not abuse its discretion admit- anyone present ting hearsay no evidence that else was evidence about the Los Moreover, Angeles at both murder sites. there murders the sentence se- evidence, below, strong was as discussed lection phase of trial.
linking to the Lemon Park Umaña Grove attempts
murder. to explain away Umaña VII significance by of the ballistics match Umaña next contends that the district suggesting that MS-13 members some- court abused its discretion in admitting the guns, times share but there was no evi- transcripts of the detectives’ interviews of dence that Umaña himself ever shared his Rivera, Arevalo, and Umaña himself on the addition, gun. In just there was not one ground that the transcripts included the against by accusation the declar- detectives’ vouching statements for the ants, but three. To be sure Ramos’s accu- credibility of several MS-13 members dur- only spent sation arose after he the week- interviews, ing which, argues, he jail Rivera, end but there is no improper government amounted to vouch- evidence either Rivera’s or Arevalo’s ing at points trial. He out that during the accusations were tainted Fi- collusion. interviews, course of the the detectives nally, noted, as the district court the state- Rivera, told for example, buy- “I’m kind of many ments themselves contained other ing your here,” Arevalo, story “You details, consistent such as the “make and guy don’t seem like the that.” In did involved, model of car presence himself, the interview of Umaña a detec- crutches, partici- the names of the other Ramos, Arevalo, tive stated that and Riv- victims, pants, the number of spe- and the era “in jail right something were now for cific gang signs displayed by the victims.” that he did.” circumstances, all light of of these we conclude that court district did not objec Umaña did not make this abuse its in finding hearsay trial, discretion tion at accordingly we review it Rivera, Ramos, accusations of and Arevalo under plain error standard. That regarding the Fairfax Street murders suf- requires standard Umaña to demonstrate (1) ficiently reliable to admit them into evi- that the admission of the evidence was (2) (3) dence. error; that the error plain; it rights. affected his substantial respect With to the Lemon Grove Park then, may only Even we exercise our dis murder, government introduced Areva- cretion as to whether to notice the error if hearsay lo’s accusing statement Umaña of fairness, seriously integrity, it affected committing the crime. As with the Fair- public reputation proceedings. murders, fax Street the ballistics evidence States, See Johnson v. United 520 U.S. provided support reliability for the of Are- 461, 466-67, 117 S.Ct. 137 L.Ed.2d Moreover, valo’s accusation. Freddie Gon- (1997). target zalez—the of the Lemon Grove Park attack who escaped government vouching Uma- While —identified ña in open credibility court as the assailant. This inap its own witness is evidence, conclude, provided propriate, generally only we Arevalo’s improper accusation with sufficient indicia of reliabil- when it comes to the at trial from the ity to warrant its at sentencing. prosecutor’s personal admission indication of his be 6A1.3(a). witness, § credibility See U.S.S.G. lief al- about the *28 applied court U.S.C. the The district improper be for also it could though 3592(a)(8), the admis- provides § which vouching from similar to solicit prosecutor in the sentence selection of evidence sion States See United witnesses. government “defendant’s back- (4th Cir.1993). relating to the phase 1086, 1089 Lewis, F.3d record, any or other or character ground, error, no we find In this case that miti- of the offense circumstance jury A reasonable plain error. much less sen- imposition of the death gate[s] against comments take the detectives’ would not tence,” of oth- concluded that evidence and vouching for the the interviews during “irrelevant to his murders was er MS-13 being inter of the witness trustworthiness of his of- or the circumstances character devices viewed, interrogation rather as but addition, In the court concluded fenses.” to talk. encourage the witness designed would “confuse that such evidence com positive Patronizing a witness 3593(c) § U.S.C. jury.” mislead the See 18 uncover evidence in order to ments evidence judge the to exclude (authorizing conduct, by the introduced when criminal by outweighed the probative if “its value is hardly can be transcript, in a prosecutor con- creating prejudice, unfair danger opinion that prosecutor’s a taken as issues, misleading jury”). fusing the admitting trustworthy. And was witness that the district court did conclude We comments embedded isolated several such It is difficult to not abuse its discretion. would not transcripts in voluminous jury evidence of imagine giving that affected Umaña’s plain be error event members by unrelated murders MS-13 rights. substantial deci- contribute to the individualized would vein, chal In a similar Umaña penal- death impose of whether to sion pros vouching question lenges as Indeed, might even work ty on Umaña. in trial to a detective who during ecutor him, him with a number of against linking Arevalo, Rivera, Ramos, terviewed Moreover, murders. other unrelated “consistent asked what was which he have ob- might benefit Umaña whatever individuals inter among [he] all of the introducing evidence was tained from such question was find that this viewed.” We already to him from evidence available all, inquiry to vouching at but a factual not example, For an MS-13 mem- the record. among the common uncover statements that he had once acted as ber testified witnesses. another MS-13 member lookout while reasons, Hispanic guys,” two drunk reject we Umaña’s “robbed For these of the victims “was shot dead” one vouching claims. robbery. Another MS-13 member tes- clique VIII the activities his en- tified about people, try to drugs, in: rob gaged “Sell contends that the district A testified that people.” kill detective refusing its discretion court abused “Mata, Violar, Contro- MS-13’s motto during the sentence selection permit him— “Kill, la,” Rape, translates to Con- which mur evidence of the introduce phase—to copy Finally, had trol.” coconspira by his ders committed RICO indictment, many of the mur- which listed tors, members. He were also MS-13 who wanted to submit ders about which Umaña relevant to that the evidence was argues evidence. were proclivities that his own violent show con- appropriately The district court was “product unique but rather were prove these that if Umaña tried to cerned conformity.” social during sentencing, process murders See United States v. Manning, 23 F.3d (1st Cir.1994); Caro, would amount to mini-trials that would see also days jury. agree. take and distract ex- F.3d 626. We The prosecutor’s evidence, cluding jurors the court acted well statement portraying the as Uma- Indeed, within its discretion. ña’s improper. rivals was gov- ernment concedes that it was “ill-advised.” *29 IX Nonetheless, we conclude that during closing Umaña contends that ar was not prejudicial deprive so as to Umaña gument in phase the sentence selection of of a fair sentencing trial. The comment trial, prosecutor made a number of was isolated and per did not constitute a improper jury statements to the that were vasive throughout theme the closing argu sufficiently prejudicial to require rever Moreover, ment. its effect only could be penalty sal of the death verdict. See Unit minimal in light of the fact that Umaña did Scheetz, ed States v. 293 F.3d 185-86 try bring indeed to jury shank to the (4th Cir.2002). objected But Umaña to proceeding, selection likely which influ only one of the statements when made at jurors enced the more than prose did the trial, and therefore we will review the oth addition, cutor’s In statement. we think plain ers for error. See United States that, light bring Umaña’s attempt (4th Woods, Cir.2013); 710 F.3d selection, jury the shank to the prose Adam, United States v. 70 F.3d were, cutor’s degree, comments to some (4th Cir.1995). invited. sum, while remark inappro-
A priate, we do not believe that it was so objected The statement that Umaña prejudicial as to call into in- question the prosecutor’s jury was the comment to the tegrity jury’s death sentence. The attempt bring about Umaña’s a con- jury every aggravating found factor be- (tied penis) cealed shank to his into the yond doubt, making a reasonable it unlike- prosecutor argued courtroom. The ly that the isolated comment was material bring Umaña tried to in the shank “to to its decision.
fight off rivals.... You know who the They’re rivals were? the Marshals. B Those are his rivals. The judge is his The other comments made Anybody rival. I’m his rival. this government’s argument that closing Uma- courtroom is a rival. You’re his rival. He ña challenges objected were not to when brought day it on the first selec- made, and therefore we review them under added). (Emphasis tion.” The court sus- plain error standard. objection, tained Umaña’s the prose- cutor closing argument continued the prosecutor Umaña contends that making point thereafter a different —that misleadingly compared him to other MS- “justice.” Umaña’s rival was following 13 members with the comment: prosecu Umaña contends that the bring something Let’s back to the front “you’re tor’s statement that his rival” was here and that’s that this defendant improper encouraged jurors because it compared with other MS 13 members adjudi abandoned their role as “neutral according they you to what would have believe, parties.” cators” and become “interested mem- because all those MS 13 ror, substantial nor it affect Umaña’s creat- did and formed and framed were bers rights. El ed out of Salvador. C people him to the compare let’s
So him out and taking quit him and around the prose claims next that him as if looking at him and separating com following improper cutor made the of factors. only way because he is ment: he is. And of who He’s here because today from we heard you But know what it over and He’s shown a killer.
he’s only There are one of their witnesses? And he’s a killer again. over and over And I prison. members in 240 MS-13 They killing, talk about among killers. them was you that if one of promise can had evidence But haven’t yeah. we behaving, we life and was there for *30 that were people all the of it. And of it. have heard all about would him, killer. He rose he was the around had that the district court *31 such, As even if plain, the error was we F conclude that it did not affect Umafia’s Finally, challenges Umafia the rights. substantial prosecutor’s use of religious imagery dur
ing the course of closing argument. When E letters, discussing Umafia’s sent while he in prison, prosecutor the said: Next, challenges Umafia the fol This is got [letter] called—it’s a title. lowing prosecutorial statement made dur day One more you with the beast. Do ing closing argument: have his took his bill of didn’t have a bill of [I]f you give him lives. Are inmate bill of rights? At you going life, rights. [*] Manuel and Ruben [he] rights____ [*] to is give going him He to remember who the beast is? It’s tat- tooed on his' It’s the devil. It thank the beast standing a “One fully more loaded here with a day body. goes gun, ready has now that we like this: It’s joint in begun of weed and his heart. and keep and I pre- They pared go to to out into the I living, breathing cease become streets like ” always planned.... Well, humans and became a have corpse. they’re corpse. they’re a And a corpse that, argues comments, in Umafia these you’re and going to send him to the prosecutor the was “comparing] to [him] ” dining justice? hall. Is ‘the devil.’ argues sure, improp- Umaña that this statement To be we have condemned “reli- erly compared plight giously charged arguments of the victims confusing, as in prison, making light unnecessary, life thus of a inflammatory.” Bennett (4th imprisonment term of life pos- Angelone, without the 92 F.3d Cir. 1996). sibility case, however, of release. In this prejudice occurred, findings and actual dangerousness future have as Umaña’s hardly could to the prison invited reference violence. amply conduct courtroom, in the he he was devil. When however, have, sign previously re gang horns We MS-13’s
“threw” —the Moreover, jected argument, holding he had tattoos of precise this the devil. And, body. figures pose danger on his whether would devilish a defendant course, prison including proper his prison ques to others while letters — immediately prosecutor read one that jury. Hager, tion for See F.3d made beast comment—con- after she Hager, “Perhaps 200. As said in we we imagery evoking the devil. tained vivid with a might someday be case presented have been not to might it better While we that the persuaded which are evidence or direct an allusion to the explicit make so presented as to defendant’s future dan heart, we place its Umaña’s devil and merely speculative gerousness was that,, context, com- conclude cannot constitutionally infirm.” Id. it was Like to affect his prejudiced so ment this is not Hager, we conclude that such a rights. substantial Indeed, ample case. there was evidence presented jury in this case to allow to sum, prosecuto- we conclude likely find that Umaña was commit during closing argu- made rial statements future, criminal in the or, acts of violence even they error if either were not ment prison, would were, sufficiently he constitute prejudicial were serious threat to the lives vacating penalty continuing the death require verdict. and safety of others.
X respect aggravating With challenges the district Umaña next factor, challenges the Umaña also struc government court’s decision to allow it ture of form because the verdict allowed prove dangerousness” “future as a non- only to indicate that had found aggravating factor statutory *32 particular the and did give subfactors not phase of He sentence selection the trial. jury the to indicate context, opportunity an wheth that, prison jury in the the argues they “overarching er or not had found the prediction make a future can never about dangerousness. aggravator” of future any He dangerousness reliable basis. created argues “pre Umaña that points empirical by to studies several sumption” Cunningham, expert, dangerousness upon his of future Mark defense finding a lack of of the reported any who correlation between one subfactors.1 violence, lence, including 1. The form that the district court submitted to and threatened jury purpose finding aggra- alleged of against the the the for but not limited to the crimes dangerousness vating appears of future factor the Indictment. defendant in the _ _No: as follows: Yes: poses danger b. a future The defendant you, jury, unanimously find that the Do the persons safety the lives and of other proven government beyond has a reason- by of demonstrated his lack rehabilitation likely doubt that the defendant is able incarceration, pattern of after his criminal acts of in the commit criminal violence conduct, allegiance to and and his member- continuing would future which constitute ship in MS-13? safety and serious threat to lives and _ _No: others, Yes: by as evidenced one or more least expressed c. defendant has never following: The killing Ruben remorse for Garcia Sali- engaged a.The defendant has in a con- violence, by tinuing pattern attempted nas defendant’s statements vio- as indicated disagree reading only Umaña’s of was sufficient to We with “establish a convic- sure, think that tion for degree the form. To be we second murder.” More- over, form clearer had the he maintains that there is a would have been “national against ended after the consensus ... death as a introductory language punish- first lettered ment for second murder.” paragraph degree two lines and had each He ex- dangerous- plains future that begun degree thereafter with because second murder “unpremeditated the form is language. killing,” ness But as used did malice it is “not well any presumption, capital punishment” not create as Umaña suited to Rather, argues. presented jury because such cannot be murders deterred specific by Finally, four factual of fu- the death circumstances sentence. he asserts only on which dangerousness govern- ture nine “authorize death States presented degree ment The form second murders that evidence. was occurred designed jury here.” permit find except by future dangerousness finding death-qualifying The conduct that or specific evidencing one more of the facts (1) jury found in this case that Umaña And, course, dangerousness. future murdered the Salinas brothers aid of jury form permitted the to find a fact racketeering purpose for the maintain- dangerousness evidencing only future if ing position increasing his a racke- they were unanimous and the fact was teering enterprise, violation proved beyond a doubt. reasonable (2) 1959(a)(1); § that he used a firearm in relation resulting to a crime of violence XI the deaths of the Salinas brothers and that argues he should killings were “with malice done afore- have been allowed to submit evidence re 924(c) § thought,” (j)(l); in violation of garding impact his execution (3) the two he killed brothers and would have on his wife and child. This attempted person to kill “in a sin- another argument, however, squarely is foreclosed gle episode.” criminal The also found by Hager, our decision F.3d at 194 that for imposing the other criteria (“[Allowing a defendant to capital argue penalty, death in the as contained Federal impact mitigator improp execution as a is Penalty Death Act of were satisfied er”). by this case. raised question Uma- ña’s the death challenge penal- is whether XII statutes, ty, which is authorized these Umaña next contends his death punish- excessive or cruel unusual *33 Eighth sentence violated the Amendment by jury, ment for found the the conduct as only because he was convicted of “second prohibited by Eighth the Amendment. degree points murder.” He out that the Eighth
verdict form in reflected a Amendment’s finding this case “[T]he murder, protection that or cruel against he committed but not an excessive and flows from the finding “pre- punishments additional that he did so with unusual basic ‘precept justice punishment for [a] meditation and deliberation.” He there- argues jury’s finding guilt graduated propor- fore crime should be the gang-members during d. The has demonstrated an to fellow the course defendant allegiance membership following alleged of and the offenses in the to and active MS-13, enterprise? a violent criminal Indictment? __ _ _No: __ Yes: Yes: No: 356 ” 61, Kennedy (quoting Roper, v. Loui Id. at 130 2011 offense.’ S.Ct.
tioned. to [the]
407,
2641,
563,
1183,
siana,
419,
128 S.Ct.
at
125
Ken-
554 U.S.
543 U.S.
S.Ct.
(2008) (alterations
2641).
orig
421,
(j)(l), a full- obtained has neuropsychologist narrowing Act, impose sufficient Penalty 66, appears IQ result of scale Amendment. satisfy Eighth criteria that De- possibility there is a substantial alternatively that contends Umaña carry ultimately able to will be fendant categorical is not penalty if the death even establishing by prepon- a his burden of for the crimes punishment as a ly barred men- that he is the evidence derance of convicted, nonethe it was he was of which ineligible thus for tally retarded and circum particular in the excessive less penalty. death mer argument This of this case. stances added). by This statement (Emphasis found minimal discussion. its proving the burden of that he bore Umaña in further people killed two that Umaña mis- was not errant mental retardation and that racketeering enterprise, ance of requesting a In other motions take. two danger posed he had killed before retardation, he included on mental hearing the death We conclude the future. de- court cases to various district citations to the crimes proportional penalty was hearings, for such scribing procedure was convicted. which Umaña following parenthetical: included the which of mental retarda-
“finding
question
judge
XIII
at a
by the
tion should be resolved
hearing,
should be
pretrial
and burden
respect
Finally, Umaña contends—with
of the evi-
by preponderance
defendant
to the district court
claim he made
to the
itself,
Moreover,
hearing
at the
dence.”
and therefore
mentally retarded
that he is
at the outset that
court stated
the district
penalty—that
receive the death
should not
prove
would be on Umaña
the burden
have borne the
government should
preponderance
of
mental retardation
challenge
He does not
proof.
burden
evidence,
object.
did not
Umaña
findings
the district court’s
the merits of
the district
complain
now
He cannot
mental retar-
to his claim of
respect
very
that he
procedure
followed the
court
Rather,
his
argues
he
that since
dation.
Lespier,
v.
States
requested. See United
“matter of life and
in the issue is a
interest
Cir.2013).
(4th
437,
F.3d
449-51
death,”
Virginia,
v.
536 U.S.
see Atkins
event,
conclude that
any
we
(2002)
359
York,
doubt);
corollary duty
also Patterson v. New
have a
prove
see
to
that a
197, 210,
2319,
97 S.Ct.
53
432 U.S.
defendant is “not retarded” in order to
(1977) (“Proof of
non
L.Ed.2d 281
be entitled to
penalty.
the death
Ac-
”
affirmative
existence of all
defenses has
cordingly, “an increase
in a defen-
constitutionally required”).
never been
dant’s
predicated
sentence is not
on the
outcome of the mental retardation deter-
that,
a
of
argues
Umaña now
as matter
mination; only a decrease.
process,
government
due
must bear
retardation,
proof
the burden of
on mental
(citations omitted).
Umaña also that a penalty. mental retardation was an Apprendi ele- offense,
ment of capital his which would alter prescribed range of sentences to XIV and, therefore, exposed which he was be government’s responsibility prove. presented Umaña has numerous issues Alleyne, sentence, See 133 S.Ct. at But in challenging 2160. we his conviction and Walker, rejected precise argument fully presented each of which has been where we stated: his fulsome and at oral arguments brief having carefully the court. After consid- finding
[T]he
mental retardation does
arguments,
ered each of his
as well as the
penalty
not increase the
for the crime
case,
record in this
we conclude that
beyond
statutory
Uma-
maximum—death.
Rather,
ña had a fair trial and that
the death
facing
defendant
the death
penalty
justified by
jury’s
factual
penalty may
penalty
avoid that
if he
successfully
findings
imposed
law and was not
proves by pre-
raises and
ponderance
improper
passion,
of the evidence that he is under the
influence
mentally
arbitrary
retarded.
factor.
prejudice,
The state does not
other
the Sixth
majority strips Umaña
affirm his conviction
we
Accordingly,
for en-
right
important
most
Amendment
sentence.
*37
dur-
accuracy of trial outcomes
suring the
AFFIRMED
of his
important proceeding
ing the most
life.
dissenting:
GREGORY,
Judge,
Circuit
ques-
important
is an
constitutional
This
denies Mr. Umaña
majority opinion
The
yet
has not
Supreme Court
tion that the
jury
in a
accusers
to confront his
right
the
resolved,
have
three circuits
wres-
though
lives
whether he
to determine
proceeding
v.
See Muhammad
tled with the issue.
one’s accus
to confront
right
or dies.
Corr.,
I.
Mr.
had
been involved
other
acts of violence not reflected in his crimi-
I
the
begin with some of
factual back-
record, specifically
nal
separate
two
inci-
ground
provides
that
the foundation for
of
Angeles.
dents
murder
in Los
J.A.
my
First,
reasoning.
one must understand
The primary
3544.
evidence for these
trials,
unique
the
of FDPA
structure
which
crimes was
transcripts
police
series
that
the
illustrates
Confrontation Clause
interrogations
accomplices
in which
should
de-
disappear simply
not
because a
Umaña who
him
were with
the first
fendant
is accused of a crime at a later
Los Angeles
two
murder
claim
incidents
judicial
Second,
stage
proceedings.
of his
only
that Umaña was the
member
their
one must
the
understand the nature of
who
group
weapon
fired a
that killed two
particular
made in
accusations
this
case.
teenagers.
opportunity
Umaña had no
to
Mr.
largely
Umaña was
to death
sentenced
cross-examine these witnesses.
testimony
based on unconfronted
was
that
as damning as it was dubious.
provides
FDPA
safeguards
The
set of
requires
The FDPA
jury findings
three
that applies
capital
to evidence at
sentenc-
before a criminal
can
killed
defendant
be
ing, though constitutional safeguards also
by
First,
government.
the federal
de-
Smith,
apply.
See
v.
Estelle
451 U.S.
fendant
be
of a
guilty
must
found
death-
462-63,
101 S.Ct.
Officer: shoot him? Did Tell out lineup. of a photo the witness tell to face. you me face Did shoot him? picture chose Umaña’s out of six-person that, Umaña: that I it. Say Right? photo did but lineup, only concluded that “I it, really I do right? seeing didn’t guy remember I’m not but sure if he is day came that to the the.one Officer: did it? You park.” later, years J.A. 4060. Three say Umaña: To it like that. witness again picked picture Umaña’s out it, just say Not Officer: No. but to *40 again of a lineup, expressed but uncertain- say ... the truth ty, sure,” “I’m noting that not 100% be- say Umaña: ... laughs] To the truth? [ cause “everything happened fast.” so J.A. Officer: You did it? out of Not mean- 4057. that The witness clarified “what I ness, you thought they but because saw gun was the and after that I began to were, gang were members. run.” Id. This witness testified ... Umaña: Ah sentencing, where he that the noted shoot- right? Officer: Is that ing p.m. after 9 a occurred on basketball is[,] Umaña: Yes.... And that that is court where the lights overhead had been the that point mattered to him? Thus, turned off. while has Umaña been [Laughs]? murder, Angeles linked to another Los the best evidence of this link a is from witness J.A. 4382-83. twenty who saw the shooter from feet a Umaña was also linked to third mur- away night at with at partial lighting. best der in that occurred Lemon Grove Park. Further, only this witness that he admitted pieces Two evidence link of to gun taking running saw a off before the First, the gun crime. same was used in opposite direction. This witness has never previous this murder as was in the used been an nearing able to make identification murders, Angeles Los at which Umaña certainty. 100% present. This is evidence weak in light testimony during of trial expert sug- Finally, problematic, most gov- and the gesting gang that MS-13 members linking share ernment introduced evidence Uma- Salvador, their as a ña El firearms matter of course. That to even though murders said, having pres- Umaña admits to been this evidence had been ruled as inadmissi- murders, gives though ent at both which more ble and even Umaña had no chance sentencing, At II. his accusers. to confront to evi- introduce government sought the merits, understanding the an Turning to violent had committed dence that Umaña of the history purpose and Confron- homicide, in crimes, including El Salvador. Clause, analysis well an the tation as as of call government wanted to Specifically, the Supreme jurisprudence recent Court’s testify. El to prosecutor an Salvadoran Confrontation and Sixth the Clause government’s the court denied district the factfinding, Amendment shows that “lacks motion, concluding that evidence government violated constitution- Umaña’s reliability” of that “its indicia sufficient he rights al when was sentenced to death danger outweighed by is a probative value a his accusers. without chance confront 3232. prejudice.” of unfair J.A. dodge District courts cannot constitu- spite the district court’s (cid:127)Incredibly, guarantee by split- tional confrontation a ruling, government clear introduced segments ting capital trial into three in which a United transcript as evidence waiting segment strip until third quoted officer States law enforcement is rights. Amendment defendant of his Sixth saying stuff in El Salva- “I know he’s done Further, because the Sixth Amendment dor,” they know ... J.A. “[w]e right right issue here —the of cross- you looking were for for homicide also constitutionally pre- “the examination—is Salvador,” know El J.A. and “[w]e assessing reliability,” scribed method violent, he’s, guy. he’s a violent We 36, 62, Washington, 541 U.S. Crawford in El ... know he’s wanted Salvador (2004), S.Ct. L.Ed.2d ... I many crimes know he’s violent especially offensive to Constitution I know he’s an enforcer. I know shooter. deny right during a defendant this Through he’s a 4315. gangster,” J.A. very stage proceedings which evidentiary open, back door left wide he must decide whether deserves testimony government snuck live or be killed. consistency credibility,” per “lacked begin I text the Sixth court, enough prejudi- had district but Amendment, but conclude the words cial its government value that made *41 “In do not settle the matter. themselves sentencing entire case at about Umaña’s the shall prosecutions, all criminal accused past uncharged conduct. homicidal enjoy the ... right to be confronted sum, In the to linking evidence Const, against the witnesses him.” U.S. previous powerful murders as was Because FDPA not amend. the did VI. problematic. Ange- was For both the Los founding, at of exist the time the the Sixth murders, les El there was Salvador Amendment is silent on the distinction be- enough prosecutors not evidence for to stages tween different of FDPA trials. bring a case or a conviction sustain applies the right pros- While to all criminal Unfazed, the stage one of an FDPA trial. ecutions, give guidance the text not does government simply its until the bided time prosecution on when a criminal ends. trial, when, stage per third of the the majority history the ruling analysis leading district court’s and the An of to the today, helpful. is The opinion important constitutional Sixth Amendment more developments a the safeguards disappear. Umaña filed historical led to timely its objection sentencing, arguing weigh at Clause favor of Confrontation trials. rights application stages that his Amendment were vio- at all of FDPA Sixth case leading lated. In on modern Confronta-
365
doctrine,
Supreme
excep-
time of the
there
founding,
Clause
Court
was no
tion
Clause
explained
Confrontation
tion to
right
the Confrontation Clause
naturally read as a refer-
right “is most
capital sentencing.2
at com-
right
to the
of confrontation
ence
lends further support to the
Crawford
law,
exceptions
admitting only those
mon
that,
idea
the purpose
based on
founding.”
at the time of the
established
Clause,
Confrontation
the right to confront
541
words would Umaña, against jury might phase ful made find do not accusations were were not the accusations it can im- though range these alter the sentences verdict, guilty they Maj. for the initial is pose.” Op. basis at 347. This incorrect. his ultimately form the basis for helped FDPA, jury cannot a impose Under the Further, Raleigh, like capital sentence. it the death sentence until finds “all to confront opportunity lacked the to aggravating ... factors found exist suf- the death sentence was his accusers before ficiently all fac- outweigh mitigating the the The between cases issued. distinction 3593(e). Only § when a tors.” U.S.C. Raleigh was sentenced is that Sir Walter jury aggravating finds that factors suffi- in unitary proceeding to death after ciently outweigh mitigating the factors decided si- guilt penalty were which impose it death the may sentence under case, multaneously. In mean- Umaña’s Thus, stage FDPA. three of FDPA while while, the trial and judge the trifurcated jury discretion, juries trials some involves protections ensured that constitutional make certain factual must nonetheless stage time of had severed the been findings in final a death stage this before three, jury weighs whether which imposed. sentence can be death is the sentence. If the appropriate way, the jury’s Put another burden judicial proceeding that led to Sir Walter finding the stage aggrava three —a unconstitutional, Raleigh’s execution is sufficiently outweigh factors ting the miti is, why no then it is unclear the doubt Green, gating not optional.” factors—“is would lead to a different same situation F.Supp.2d at 177. “Because will we merely artificially result the court because exactly never know how each factor influ proceeding which consti- cabins jurors’ punishment ences the ultimate de abuse occurs. tutional termination, all logic aggra dictates that Supreme Court case on Recent law together—be vating considered factors — rights sentencing Sixth fur- Amendment to the Id. legally punishment.” essential Ring ther this view. In v. Ari- buttresses Green, government’s argument “the As zona, the Supreme Court considered non-statutory not factors are essential right jury factfinding ap- whether the to if disingenuous; government is does plies aggravating necessary factors require not additional evidence to convince sentence, apply a death which would be death, jury why vote for it invok equivalent stage of the second of an non-statutory at all?” ing factors Id. 584, 608-09, FDPA trial. 536 U.S. case, the proof pudding: this is in the (2002). S.Ct. L.Ed.2d 556 The government pointed past to the murders Court held “that the Sixth Amendment nearly every page transcript applies stage sentencing: to” this death sentencing. closing argument its With right defendants have the factfind- murders, past out these it is doubtful that ing Id. at for such factors. S.Ct. could government meet burden Granted, Ring 2428. does control necessary penalty un apply death here, since this case the introduc- concerns such, permissible der the FDPA. As testimony tion third of unconfronted sentencing is in this range of increased majority FDPA trials. stage of finds stage, indicating Amendment key, arguing distinction that once a Sixth *43 Sablan, rights apply. is do See also 555 death-eligible stage defendant found in (“[Ujnder trial, at 1221 the structure jury F.Supp.2d an FDPA two of “the exercises FDPA, selecting finding in a of it is the of a discretion life sentence or not
367
that
is
a
statutory aggravating
actually
ruling
factor
different from
that a far more
specific
The fact
of
punishment.
increases the
that
clause
permits
constitution
a
jury
actually
punishment
rely
is the
to
such
in proceed-
increases
on
evidence
a
aggravating
ing
of all the
factors
to
existence
decide whether the death sentence
(taken
by
together).”).
Further,
can
applied.
found
be
the decisions
cited
Sixth
concerning the
Amend-
above—
majority argues
that Williams v.
right
ment
factfinding
to
at sentencing,
York,
241,
1079,
New
U.S.
337
69 S.Ct.
93
procedure,
death penalty
and the Confron-
(1949),
L.Ed.
a pre-Crawford, pre
1337
tation
suggest
Clause—all
that even if
case,
Ring
directly
Court
Supreme
dispos
letter,
Williams is not dead
it should not
es
the issue before us. That case is
be
apply
extended to
FDPA proceed-
to
point
persuasive,
neither on
nor
ings on
grounds.
Sixth Amendment
event,
power
light
its
is dubious in
of more
Supreme
recent
Court
jurisprudence.
though
.Even
not on point,
Williams is
Williams,
Supreme
upheld
the majority
argues
Court
nonetheless
that
its
part
spirit
is,
that
on
death sentence
relied
is intact. That Williams embod-
probation report
implicated
defen
ies the idea that the Confrontation Clause
in prior
dant
crimes.
Id. at
69
should
apply
S.Ct.
not
because “modern con-
cepts
1079. The
continues
to
individualizing
Court
cite
punishment have
proposition
for the
Williams
sentenc made it all
more necessary
that a
ing
an
sentencing judge
decisions contain
element
discre
not
be denied
oppor-
rely
tion and
on
tunity
pertinent
can
evidence
would
to
obtain
information
See, e.g.,
not be
at trial.
Pep
requirement
rigid
admissible
adherence to restric-
—
States,
-,
per
United
U.S.
131 tive rules of evidence.” Id. at
69 S.Ct.
1229, 1235,
(2011).
S.Ct.
haveWe
cited to Williams for the similar
argument
internally consistent,
This
concept that sentencing courts “must have but it
a far more important principle
elides
array
recourse
a much
broader
of infor-
of capital sentencing, which is the need for
mation than
allow
we
the trier
fact to
reliability.
Supreme
As
has
Court
not-
determining
consider
a defendant’s
ed,
a weighty punishment
death is such
Powell,
guilt.”
Nonetheless, Williams is not
“there
controlling,
corresponding
is a
difference in the
because that
is a pre-incorporation,
reliability
case
need for
in the determination
pre-FDPA case
a state
concerning
punishment.”
death
death is the appropriate
is,
Woodson,
sentence. That Williams was not a
U.S. at
S.Ct.
omitted).
case,
in
and
and citations
the evidence Mr. Umafia’s
marks
quotation
trials,
by
Supreme
par-
the
Court’s
FDPA
would be unaffected
together,
Taken
most
on the Confrontation
Mr.
Amend-
jurisprudence
allel
Sixth
recognizing
Umafia’s
reliability
for
on the need
of
Only
range
Clause and
for a narrow
right.
ment
why
demonstrates
Uma-
factors,
death sentences
to
aggravating
uncharged
related
must be
Death
fia’s sentence
reversed.
crimes,
the Confrontation
prior
would
ground,
reliable
stand on
sentences must
only
and even
implicated,
be
then
Clause
is “the con-
the
Clause
and
Confrontation
the time.
some of
of
method
assess-
stitutionally prescribed
case, given that the
prosecution
In
62,
Crawford,
at
reliability.”
541 U.S.
ing
uncharged prior crimes
made Mr. Umafia’s
case for the death sentence was a series of III. uncharged many murders were majority today The a strips defendant of ways than more serious the North Car- his Sixth Amendment right confront his stage incident. The third of an olina Further, it right accusers. denies this in a FDPA trial for evi- typically is reserved proceeding in jury which a must decide about dence about the victims’ families or a human fit being whether is to live. In elementary per- the defendant’s school this, the most decision a jury momentous jury Boy formance or Scout record. The make, majority can would away do soft, subjective weigh must more these “constitutionally prescribed meth- factors to fit crime. punishment to the reliability” assessing od of of evidence. much The evidence we consider here is so Crawford, U.S. at S.Ct. 1354. grade a 4th report more severe than card being is sent to his death based kind, degree. it is different not on record, by accusations self-interested accom- Boy a When considers Scout plices accomplices reliability the truthfulness and of the evi- whose —self-interested secondary testimony, is a matter at at least in part, dence best. The contradict- type by independent more difficult task of informa- ed witnesses. This illus- cohesive, fitting complete tion is it into Supreme trates Court’s admonition picture weight The defendant. facing that accusations from co-defendants be accorded to evidence is the predom- punishment “devastating the same are inquiry, reliability inant and its a lesser is Bruton, the defendant.” at U.S. contrast, when jury concern. consid- unreliability 1620. 88 S.Ct. “The of such murders, evidence of three additional ers compounded intolerably evidence is when reliability pre- of the evidence is the here, accomplice, does alleged not concern, weight dominant whereas the to testify and cannot be cross-ex- tested accord such evidence is much easier against It was such threats to amination. is, is easy discern. That to know how a fair trial the Confrontation Clause past much weight to accord evidence of I was directed.” Id. Because conclude completely murders because it overwhelms applies the Confrontation Clause elementary report evidence like an school trial, stage just of an FDPA every card, government’s closing argu- as the stages, first I conclude two and because Instead, type ment for this demonstrates. both wrong that it and unconstitutional is important of evidence the is inquiry most sentence for death to rest unconfront- reliability. toas its truth and This distinc- evidence, accusatory ed I dissent. why court again tion shows the district legal government committed error.
essentially exploiting the district court’s trial, only
ruling to have a second murder that the Supreme
without restrictions notes Umaña killer. top the as the to data his motion to obtain earlier denied
Notes
[*] :!:
[*] the regarding the Bureau of Prisons from only killer. He’s the members. behavior of incarcerated MS-13 Nonetheless, he he obtained the evidence the improper it was for argues that Umaña he called as a witness wanted when “only to him as the to refer prosecutor Prisons warden for the Bureau of retired permit- killer” he was not in MS-13 when that is not considered who testified MS-13 contrary. to the put on evidence ted to security risk in the especially serious concluded, First, already the as have we in that prison environment. Understood its discretion court acted within district context, statement was prosecutor’s the to submit addi- refusing to allow Umaña testimony, and just critique of this we commit- regarding murders tional evidence it. nothing improper find about Moreover, by members. ted other MS-13 statement, “He’s the misreads the Umaña D context, taken'in the only killer.” When Next, objects prose to the Umaña meant clearly could not have government ar during closing made cutor’s comment only of MS- that was the member Umaña bring El Salva gument “[y]ou that want to Indeed, committed murder. 13 who had ready be for dor here.... better [Y]ou’d statement, shortly making before justice.” argues that some American He a “killer that Umaña was prosecutor stated the statement “invoked an us-versus-them added). Fi- (Emphasis among killers.” than encour nothing that did more theme” before the nally, ample there was evidence government age prejudice.” “[r]acial commit- jury that other MS-13 members inap that the comments were argues murders, already have summa- ted as we in view of the fact Umaña’s propriate rized. upbringing case turned on his mitigation can rea- conclude that the statement We Salvador, appropri and therefore it was El only commenting sonably be taken jury hold him to “urg[e] to ate members in the RICO among MS-13 justice.” American standards case, conspiracy charged in the agree cannot that the comment trigger in We only pulled one who was Ameri- “ready be for some If the Umaña should brothers’ murders. the Salmas mitiga- to Umaña’s error, justice” responds can plain it was not er- statement was impoverished tion El case his Salvado- We do not error, believe that it was upbringing responsible error, ran was for his much plain less prosecutor criminality. But compared the statement was isolat- have potential Umafia’s prison only part ed in a small with prosecutor’s plight sentence of the victims. In Moreover, argument. closing preju- United States v. Runyon, 707 F.3d (4th Cir.2013), may dice that the statement have caused prosecutor “made a likely prejudice dwarfed the racial number of comments contrasting the crim- justice Umafia himself incited in inal system’s letters he had treatment of [ prison written from evincing strong anti- defendant] [the defendant’s] treat- American rhetoric. example, For one let- ment of [the victim].” We declined to find ter in evidence claimed that “2012 and such improper, comments be noting that is, course, ... are when these little Americans “it perfectly permissible for are going by Hispanics prosecution to be humiliated all urge not to America, America, from Central South a capital and show mercy.” defendant Id. America, especially by Latin prisoners, Runyon, thought we that “the whole mat- dealers, mafias, drug gangbangers.” represented] ter the sort of thrust and parry in which attorneys typically engage Finally, the district court instructed the in the course of their last per- chance to jury that national origin play could not suade jury.” Id. We reach the same verdict, part in its juror and each certified conclusion here. in writing that it had not.