United States v. Billie Jerome Allen, United States of America v. Norris G. Holder

America, STATES UNITED

Appellee,

v. ALLEN, Appellant.

Billie Jerome America,

UNITED STATES

Appellee, HOLDER, Appellant.

Norris G.

No. 98-2549. Appeals, States Court

United

Eighth Circuit. 10, 2000.

Submitted: Jan. April 2001.

Filed: Simon, argued, City, Jefferson

John W. (Michael Louis, MO, Gross, A. on MO St. brief), appellant. for Atty., Mary Lyle, Asst. U.S. ar- Jane Louis, Landolt, (Joseph MO M. gued, St. brief), appellee. Atty., Asst. U.S. on the Before RICHARD S. ARNOLD HANSEN, Judges, and Circuit MELLOY,1 Judge. District HANSEN, Judge. Circuit 17, 1997, security guard March Rich- On during an armed ard Heflin was killed Bank & Trust in St. robbery of the Lindell (Forest Park), Billie Je- Louis Missouri. Holder were rome Allen and Norris G. separate jury charged and convicted 2113(a) §§ violating trials for 18 U.S.C. (e) (1994) (armed robbery by force or and occurs) (Count killing in which a violence 924(c)(1) I) (j)(l) §§ and and 18 U.S.C. (1994 1996) using (carrying II Supp. and a crime of violence and during a firearm murder) (Count II). Allen was committing prison on I and to life in Count sentenced on II. a sentence of death Count received of death Holder received sentences ap- I and II. In these direct both Counts raise numerous peals, Allen and Holder constitutionality of the to the challenges 1994, they Penalty Act of Federal Death district court2 committed allege that the Webber, United Melloy, The Honorable E. Richard United 2. Honorable Michael J. 1. The Judge Eastern District for the Judge States District for the Northern District States District Iowa, sitting by designation. of Missouri. dire, trial, the semiautomatic rifles—Allen with during jury voir with several errors rounds, loaded with 11 the Chinese SKS sentencing, they and raise various oth- and loaded and Holder with the Russian SKS challenges statutory and constitutional er carrying extra with 37 rounds and each For their convictions and sentences. below, point the hollow ammunition— rounds of discussed we affirm the reasons man they into the The first rushed bank. Holder’s convictions and sen- Allen’s and immediately began firing shots at to enter tences. Heflin, security guard during Background I. robbery jumped Holder over course of the money the tellers’ counter and retrieved regular Holder was a customer of the ballistics from the tellers’ drawers. The hundred dol- Lindell Bank & Trust. Five showed that both rifles were dis- evidence automatically deposited to his ac- lars was robbery charged during the total a legal count each month from settlement bank, inside the sixteen shots were fired losing por- lower Holder obtained after eight security guard hit least which accident, leg tion of one in a train shortly Heflin died thereafter. Elev- who every month Holder that five withdrew en of the shots came from the Chinese 13, 1997, hundred dollars. On March four rifle, SKS three came from the Russian days robbery, date of the armed before the rifle, remaining two could SKS and the brought along Holder with him for come from rifle. After have either monthly his withdrawal of funds. Allen robbery, only armed lasted a few together and Holder were also seen on minutes, Allen and Holder returned to the during several other occasions the ten getaway sped high- van off down the days leading up robbery. to the armed way. Together they watched the movies “Heat” depicted and “Set It Off’ which assault- spotted Several witnesses the two men style armed bank robberies simi- takeover exiting returning to the van. bank and many lar in to the manner in which details Green, Bank customer William after hear- they later robbed the Lindell Bank & ing gunshots drive-up at the teller while preparation Trust. In for the armed rob- window, dialed 911 and followed the van bery, supplied Holder or obtained a Rus- highway. following onto the He continued rifle, sian SKS semiautomatic assault sped highway the van it down the and as rifle, semiautomatic assault Chinese SKS into Forest Park. As the van entered the twelve-gauge shotgun, approximately two park, Green saw it burst into flames. Pri- consisting hundred rounds of ammunition robbery, suspects or to the armed had mostly military style point hollow am- gasoline soaked the van with so that rifles, munition for the two SKS and destroy would be easier to the evidence bulletproof night which he wore. vest The they their getaway once reached second robbery before two the armed vans were apparently vehicle. The van on started getaway stolen for as the first use two suspects fire when one of the flicked a (Holder’s robbery vehicles after the moth- cigarette lighter. van started on After the third, er’s car to be used as the was fire, passenger-^Allen jumped the van’s — vehicle). last, getaway out and ran into a wooded area. The Holder, day robbery, occupant, On the of the armed March other was on fire and 17,1997, parked park helped extinguish Allen and Holder the first two workers getaway just police van on the A on street outside the flames. officer arrived Wearing simultaneously dark ski masks and armed and arrested bank. scene Holder.

757 allows,3 Allen, meanwhile, explicitly adequately after FDPA fails to spotted was soon guide sentencing limit and discretion of opposite side of the he left the van on the Supreme violation of various city forestry employee area wooded interpreting Eighth Court decisions making up story Bobby Harris. After See, e.g., Jeffers, Amendment. Lewis v. why the hair on his head about 497 U.S. S.Ct. burned, convinced Harris and anoth- (1990) (explaining L.Ed.2d 606 that a sen- him forestry employee give a ride to er tencing body’s suitably discretion must be station. Harris la- the nearest Metrolink limited, by objective directed and clear and lineup Allen in a and at trial. ter identified provide specific standards and de- early morning the next Allen was arrested guidance, tailed so as to minimize the risk apartment, the same girlfriend’s at his wholly arbitrary capricious action had apartment where he and Holder rationally pro- and to make reviewable the stayed night robbery before the bank sentence) imposing (citing cess for a death together watched the movie “Set and had 420, 428, Godfrey Georgia, v. It Off.” (1980), S.Ct. 64 L.Ed.2d 398 153, 189, Gregg Georgia, 428 U.S. Analysis II. (1976)). S.Ct. 49 L.Ed.2d 859 We allege numerous con- Allen and Holder disagree underlying premise with Allen’s stitutional, statutory, procedural viola- nonstatutory ag- purpose from each of grounds tions as for relief FDPA gravating factors under the is to respective their convictions and sentences. guide jury’s limit and discretion deter- separately defendant’s address each mining eligible who is to receive a sentence claims. statutorily aggrava- of death. The defined ting circumstances are those which chan- A. Billie Jerome Allen they discretion because nel the sentencer’s Challenges 1. Facial Constitutional are the circumstances which make a defen- penalty. eligible dant for the death See Allen raises a host of facial consti Lewis, 497 3092. S.Ct. Eighth challenges, tutional based on and Article I of the Constitu Amendment purpose of the non- primary tion, Penalty Federal Act of Death factors, opposed statutory aggravating (hereinafter “FDPA”). See 18 U.S.C. statutory aggravating listed factors (1994). §§ 3591-3598 review claims of We limiting fulfill of which do the role statutory of constitutional error and issues guiding jury’s making discretion Hamilton v. construction de novo. See decision, for the indi eligibility is to allow (8th Cir.), Schriro, 1545, 74 1552 cert. F.3d of whether a vidualized determination denied, 874, 193, 519 U.S. 117 S.Ct. 136 justified particular for a death sentence (1996). L.Ed.2d 130 is, defendant; they help that to inform the Supreme selection decision. As the Court Nonstatutory Aggravating a. Factors explained, has capital punishment cases under the argues that the use of non- [o]ur factors, differ- Eighth Amendment address two statutory aggravating which the 3592(c) 1996) (“The juiy may statutory (Supp. § ... explicit ag- II 3. In addition to sixteen homicide, gravating any aggravating factors for the FDPA also fac- whether other consider exists.”). jury presentation allows the to the of nonstat- given notice has been tor for which utory aggravating 18 U.S.C. factors. See 758 than death impose shall a sentence other aspects capital of the decision-mak-

ent decision and eligibility ing process: To render the selection decision.... 3593(d). statutory If 18 no listed U.S.C. of fact eligible ... the trier defendant unanimously found aggravator circum- ‘aggravating ... find one must jury, imposed. death can be no sentence of imposed sepa- stance’ .... have infir- find no constitutional We therefore for the selection deci- requirement rate mity permitting the FDPA’s with sion, determines where the sentencer nonstatutory ag- prosecution propose to. for the eligible a defendant

whether particular cir- gravating factors to fit the in fact penalty should receive death cumstances of a crime and to assist important at the se- sentence. isWhat the death jury determining whether deter- stage lection is an individualized upon a defen- penalty imposed should be character of on the mination basis already eligible determined to be dant and the circumstances the individual punishment. that ultimate crime. FDPA argues Allen also 967, California, 971- Tuilaepa power impermissibly delegates legislative (1994) 2630, 114 L.Ed.2d 750 S.Ct. government prosecutors by allowing omitted). (internal quotations The Su- propose them the nonstatuto discretion following: preme Court has also stated capital ry aggravating factors to sen may tencing jury. Congress delegate indicate, then, statutory Our cases Branch, legislative power its to another play a consti- aggravating circumstances may but it seek assistance from another tutionally necessary function long Congress legislates Branch “an so they cir- stage legislative definition: intelligible principle person to which the persons eligible cumscribe the class of body delegat authorized to exercise the penalty. for the But the death Constitu- authority to conform.” ed is directed require jury ignore tion does not U.S, States, Mistretta v. United possible aggravating other factors (1989) 109 S.Ct. 102 L.Ed.2d among from process selecting, (upholding Sentencing States United class, actually will those defendants who Guidelines). See id. at be sentenced to death. (pointing “sentencing out that the federal 862, 878, Stephens, Zant v. long peculiarly function has been shared S.Ct. 77 L.Ed.2d 235 responsibility” rather than “the exclusive passes FDPA framework of the constitu- province constitutional one Branch” not allow tional muster because does finding delegation no unconstitutional imposition penalty unless the of the death legislative power). the Fifth As Circuit statutory ag- first finds at least one out, pointed has there are at least four gravating circumstance. a prosecutor’s limitations on discretion jury special respect nonstatutory aggravating ... find- with The shall return Jones, ings identifying any aggravating factor factors. See United States v. 132 (5th 232, Cir.1998), aff'd, or factors set forth section 3592 found F.3d 239-40 527 373, 2090, fac- 119 144 370 any aggravating to exist and other U.S. S.Ct. L.Ed.2d (1999). juryA provided tor for which notice has been must find the existence of (a) statutory aggravating to exist.... one factor under subsection found least aggravating proposed If no factor set forth in before it can even consider non- factors, exist, statutory prosecutor only section is found to the court a can 3592

759 Thus, nonstatutory proposing nonstatutory fac aggravating aggravating those argue any way the defendant has been factors to not in tors for which does notice, nonstatutory aggrava given prior underlying alter the definition of the crime convicted, with due ting factor itself must conform for which Allen was nor does it jurisprudence, judge and a district process punishment increase the to which Allen is any irrelevant required Arizona, to screen out subjected.5 v. See Walton 497 pros unduly prejudicial 648, information 639, 3047, U.S. 110 111 S.Ct. L.Ed.2d jury in may try ecutor to introduce to the (1990)(finding aggravating 511 circum- nonstatutory aggravating prove order to separate penalties stances are not or of- agree factor. Id. at 240. We with the fenses); Lewis, 782, 497 U.S. at 110 S.Ct. provide Fifth that these limitations Circuit (1990) (finding that aggravating cir- constrain a intelligible principles not any cumstances are elements of of- prosecutor’s discretion such that the dele fense).

gation is not unconstitutional. United (8th 989, b. Use “Information” Paul, v. 217 F.3d States Cir.2000) prosecutor’s that “the (holding argues Allen that because the authority nonstatutory aggrava to define during FDPA allows the introduction delegation is a constitutional ting factors sentencing phase of “information” rather power”); also Congress’s legislative See “evidence,” only than jury’s sentencing 861, Tipton, v. 90 F.3d United States inherently decision under the FDPA is (4th Cir.1996)(holding any delegation unreliable in violation of the Eighth legislative authority permissible, reject claim. Amendment. We in fact deciding without whether there was party FDPA allows either to introduce denied, any delegation), cert. 520 U.S. “information” an aggravating relevant 1253, (1997); 117 S.Ct. United States factor, mitigating regardless of its ad (10th McCullah, 76 F.3d 1106-07 missibility under the federal rules of evi denied, Cir.1996), cert. dence, provides but the information S.Ct. 137 L.Ed.2d 825 “may if probative be excluded its value is outweighed by danger creating un

Finally, argues issues, fair prejudice, confusing the or mis nonstatutory aggra FDPA’s allowance of 3593(c). § leading jury.” 18 U.S.C. vating factors violates the constitutional Thus, only protect does the statute prohibition against post ex facto laws.4 defendant from both irrelevant information however, reject argument, be Allen’s information, overly prejudicial the re under which he was cause the statutes evidentiary laxed standard also works to a that a convicted make clear sentence authorized, advantage helping prove nonstatutory ag defendant’s death is mitigating disprove aggrava gravating factors are not used to deter factors and eligibility penalty. ting factors. Allen’s reliance on mine for the death California Const, I, defendants, ("No death-eligible ex should be consid- 4. See U.S. art. cl. 3 ... post passed.”). punishment,” facto Law shall be ered “increases in we do not nonstatutory aggravating factors think that Although Supreme 5. Court's recent deci- FDPA can ever be viewed as sub- under the Apprendi Jersey, sion in v. New jecting punishment a defendant to increased (2000), may 147 L.Ed.2d 435 during they only play because come into statutory aggrava- question into whether call selection, eligibility, jury's opposed to its factors, ting designed to meet the which are determination. Supreme requirement Court’s under Eighth Amendment to narrow the class of 760 MeCleskey Kemp, Brown, 538, 542-43, 107 S.Ct.

v. 479 U.S. "[w]here v. the statuto ry procedures adequately (1987), used the 93 L.Ed.2d 934 channel the sen discretion, proportionality rather than “information” term “evidence” tencer's such re constitutionally required." opinion, misplaced because the its view is not 481 279, 306, evidence and informa- distinction between 107 S.Ct. 95 L.Ed.2d reject therefore tion was not at issue. We We hold that the FDPA has safeguards-notably require challenge facial to the FDPA’s re- Allen’s sufficient jury beyond evidentiary during sentenc- laxed standard ments that a find a reasonable statutory aggra ing. Gregg, See 428 U.S. S.Ct. doubt the existence of one vating requi (“We it for the think desirable factor and at least one of four specific part pos- before it as have as much information site levels of intent on the of a defendant, sentencing deci- not to mention various other sible when makes procedural protections pro Jones, sion.”); 242 (holding 132 F.3d at 6-such that portionality required evidentiary relaxed [FDPA’s] that “the review is not in order pass impair reliability or for the FDPA to constitutional mus standard does not ter. capital of information at sentenc- relevance helps accomplish

ing hearings, but reject argument We also Allen’s sentencing required individualized mandatory, of that the absence automatic [Constitution”). appellate review somehow violates Eighth incompa Amendment because it is Appellate c. Review evolving tible with the standards of decen claims that the FDPA is un cy maturing if society. Even this Allen proportion because it lacks challenge argument constitutional to the FDPA is a valid Amendment, ality argues Allen the Su Eighth review. under the which we doubt, preme Gregg mandates highly standing Court’s decision Allen lacks to raise proportionality challenge he review whenever death because has taken advan penalty tage appellate review and thus can show statute allows the consideration of no harm in nonstatutory aggravating requirement factors in fi actual the FDPA’s appellate that a defendant must initiate sentencing disagree nal decision. We with review. reading Supreme Allen’s Court’s Harris, Pulley holding Gregg. See Scope d. of FDPA 37, 50-51, (1984) (holding although argues

L.Ed.2d that the “remarkable proportionality is an gen review additional breadth” of the FDPA fails to narrow safeguard against arbitrarily imposed uinely persons eligible the class of for exe sentences, precedent death adequately [includ neither cution and fails to channel Zant, ing Gregg] Eighth sentencing jury’s nor the Amendment discretion. See every proportionality agree mandates review in 462 U.S. at 103 S.Ct. 2733. We case). Supreme that, As Court held with the Fifth Circuit under the Con- See, (“The 3595(c)(1) e.g., § aggravating 6. required U.S.C. court istence of an factor 3592.”); appeals shall address all be considered substantive under section 3593(f) procedural appeal juror, (requiring issues raised on the of a each if the death death, penalty imposed, sign say- sentence shall consider wheth- a statement “race, color, ing imposed er the sentence of death was under that consideration of reli- beliefs, passion, prejudice, any gious origin, the influence of national or sex of the arbitrary other factor and whether the evi- defendant or victim was not involved in decision”). finding supports special reaching dence the ex- his or her individual stitution, adequately acceptance by the FDPA narrows the trial or before the court 3593(a). persons eligible for the death plea guilty.” § the class of a 18 U.S.C. sufficiently jury’s channels a penalty and This notice of intent must include a state- sentencing discretion. See Jones F.3d government ment that believes the (finding that the FDPA narrows 248-49 justify circumstances of the case imposing jury’s sentencing a first re- discretion a sentence of death and if jury that quiring requisite that a defendant had the finds the guilty government defendant intent and second that at least one statuto- will seek a sentence of death. Id. The ry aggravating present). factor is More- notice must also set forth aggravating over, persons the FDPA limits the class of government factors the intends to use as penalty for the eligible death even before justification for a sentence of death. Id. aggravating considers intent and allegation govern- There is no by authorizing circumstances the death properly timely ment’s filed notice penalty only for certain crimes. In federal intent in this case has to meet failed short, broadly narrowly how or how statutory requirements. FDPA’s notice punish- penalty applied death should be Instead, directly challenges the ade- ment, all, essentially political if at a FDPA quacy of the under the Constitu- represen- people’s choice left to the elected tion. legislative tatives in the and executive Allen specifically argues that his sen- branches, Eighth and we find none of the imposed tence was in violation of the Fifth legisla- Amendment’s limitations on Amendment’s Indictment Clause7 because facially applicable tive choice to the FDPA. FDPA require fails to that the decision See, 584, e.g., Georgia, Coker v. 433 U.S. just penalty, to seek the death like the (1977) L.Ed.2d 982 97 S.Ct. charge a decision defendant with fed- (ruling penalty rape that the death for offense, through eral be routed Grand grossly disproportionate and excessive Jury. argues govern- Allen also punishment); En thus cruel and unusual allege ment’s failure to in his indictment Florida, 782, 788, 102 mund v. 458 U.S. culpability the mental factor from both (1982) (prohib 73 L.Ed.2d 1140 S.Ct. 3591(a) aggravating § factors from and the iting penalty greatly the death where it is 3592(c) upon during sen- relied disproportionate culpabili ato defendant’s justification tencing imposing as the ty). reject argument We therefore Allen’s constitutional death sentence constitutes FDPA authorizes sentence Supreme re- light error Court’s many death for too federal crimes. In rulings Apprendi Jersey, cent v. New case, mur particular, respect with to this 466, 120 147 L.Ed.2d S.Ct. penalty der is a crime for which the death States, (2000), and Jones v. United long appropriate. has been deemed 143 L.Ed.2d 311 respectfully disagree. Challenges

2. Fifth Amendment a. Indictment Clause First, reject argument Allen’s capital case that his case did not become government FDPA requires Amendment) (as court, to in the Fifth on the referred file with the serve defendant, actually filed. a notice of to seek the until the notice of intent was intent indictment re- penalty original death “a reasonable time before We hold that Const., crime, ("No person presentment 7. See U.S. amend. V shall infamous unless on ”). Jury capital, .... be held to answer for a or otherwise indictment of a Grand capital as prosecuted could not be sufficiently al- offenses Jury by turned the Grand along was filed with crimes until the notice upon against Allen leged capital offense factors, we con- aggravating convicted, proposed and, if he could be tried which never- original indictment clude that penal- The to death. could be sentenced crime sufficiently alleged capital theless in indict- offenses ties listed for the In- by Fifth Amendment’s required as im- or life against Allen are “death ment dictment Clause. by I and “death or for Count prisonment” any years term of or for imprisonment for reasons, we also For similar 2113(e) § II. for Count See 18 U.S.C. life” aggravating that reject Allen’s contention (1994) § II 924(j) (Supp. and 18 U.S.C. culpability factors must factors and mental attempted reli- 1996),respectively. Allen’s in order to alleged an indictment be States, 361 U.S. v. United ance on Stirone Fifth -Amendment. A defen satisfy the “ 270, 4 L.Ed.2d 80 S.Ct. jury to ‘a determination dant is entitled (1960), an indictment which held once every element of the guilty that he is returned, may not charges be broadened is charged, beyond a with which he is crime Jury, except through later the Grand 120 S.Ct. Apprendi, reasonable doubt.’” reasoning of misplaced. The Stirone Gaudin, (quoting at 2356 United States and does not control the implicated 115 S.Ct. original of this case because the outcome (1995)). Also, “under the Due L.Ed.2d sufficiently charged an offense indictment of the Fifth Amendment Process Clause subjects expressly a convicted de- jury guarantees notice and trial and the punishment of to a maximum fendant (other Amendment, any than fact the Sixth 2113(e) § and death. Because both conviction) that the maxi prior increases 924(j) specifically authorize the death charged penalty mum for a crime must be penalty punishment defendant indictment, jury, to a an submitted offense, the Fifth guilty found of the listed proven beyond a reasonable doubt.” Indictment is satis- Amendment’s Clause Jones, 1215. 526 U.S. at 243 n. fied. initially Amend We note the Sixth by Fifth right ment’s to trial and the pass, may free to Congress is process requirement Amendment’s due pass Eighth required even be under proof beyond a reasonable doubt have Amendment, protections for a additional culpability been satisfied as to the mental impo capital prior to the actual defendant factors at is aggravating factors and the sentence, of a death as it did sition only examine whether sue here. We need the death requiring notice of intent seek re the Fifth indictment Amendment’s penalty along any proposed with notice of quirements have been met. aggravating factors a reasonable time be begin by determining whether the protections fore trial. But these do not We statutory culpability mental factors and- increase the maximum sentence set forth elements of the specific aggravating statutes for the factors are each of the offense, underlying already because as not- alleged offenses in the indictment and thus ed, every element of an offense must be separate not amount to elements do charged satisfy in an indictment alleged must in the indictment. See be Jones, 2362-63; structure of the 526 Fifth Amendment. The Apprendi 120 S.Ct. short, factor is 251, 119 1215. In even two statutes indicates that neither U.S. at S.Ct. conviction. the FDPA an element of the offense of if Allen is correct that under entirely factors are listed dif- Eighth charged and the Amendment two beyond ferent sections the United States Code. reasonable doubt the con- 2113(e) §§ Compare 924(j) 18 U.S.C. victed defendant’s actions fit the definition (setting underlying forth the criminal of- of at least one statutory of the listed ag- fenses) 3591(a) §§ with 18 U.S.C. factors, gravating then a defendant’s sen- 3592(c) (setting forth the FDPA’s sentenc- prison. tence is limited to life in Finally, if Thus, ing procedures requirements). and jury agree the cannot unanimously that plain language clear from the is the aggravating sufficiently factors out- Congress various statutes that did not weigh mitigating factors such that a culpability make the mental factors or the justified, sentence of death is then the statutory aggravating factors elements of defendant’s sentence is limited to life underlying offense. prison. then, question, The next is whether the argues that each of the culpability statutory mental factors and jury above determinations should be aggravating factors are deemed elements viewed as elements that increase the maxi by of the crime being virtue of facts which penalty mum by that assuming a life sen increasing are the basis for the maximum tence is the initial baseline from which the punishment. Apprendi, See 120 S.Ct. at jury’s sentencing determinations under the fact, (holding 2362-63 other than reject FDPA are viewed. We this inter convictions, prior fact of which increases pretation because the statutes issue ex penalty beyond for a crime the statuto- pressly authorize a maximum penalty of ry maximum jury must be submitted to a sentencing death and the factors of mental beyond doubt); proven and a reasonable culpability aggravating and circumstances (explaining “every id. at 2368 fact that do not increase the sentencing range but byis law a basis for imposing increasing provide particularized rather standards (in punishment a fact contrast with choosing for which of the alternative avail mitigates punishment)” an is element of able imposed. sentences should be Mak crime) (Thomas aggravated the crime or ing automatically eligible a defendant for Scalia, JJ., concurring). think penalty types the death absent these that when read in the context the Su- protective requirements prohibited by preme interpreting Court’s decisions Eighth jurisprudence. Amendment See Eighth Amendment in death cases over Apprendi 120 (noting S.Ct. at 2380 that a decades, past two these two features of legislature may provide by not statute that properly FDPA are characterized as person eligible automatically is death sentencing protections that shield a defen- upon conviction because the area of dant from automatically receiving the stat- capital punishment, “im the Court has utorily authorized death sentence. The posed special a legislature’s constraints on underlying expose crimes of conviction ability to determine what facts shall lead convicted defendant to either death or a punishment to what have case, restricted life In sentence. each death is the —we crimes”) legislature’s ability to define punishment first authorized each stat- (Thomas Scalia, JJ., FDPA, concurring). ute. jury Under the if a cannot agree fact-finding barrier that exists between a unanimously beyond a reasonable jury that a guilty doubt that a verdict defendant is of a convicted defendant acted culpabili- capital punishment with one of the four crime for which one listed mental states, ty ability then a maximum known to be death and a court’s defendant’s id., prison. impose capital punishment, sentence is limited to life in Simi- acts larly, if the agree unanimously protect cannot the defendant from an automatic room, interrogation an placed in unique len was Because

death sentence. table, again of advised scheme, handcuffed to and because context of Miranda penalty rights, and treated his authorize a his statutes of conviction between death, allege injuries. Sometime that failure we hold burns a.m., statutory aggrava- agent FBI 4:00 an culpability mental a.m. and 3:00 origi- capital advising in a defendant’s ting factors Allen after questioning began Fifth not violate the morning, nal indictment does of his him, time that for the third See Indictment Clause. Amendment’s agreed provide Miranda rights. Allen Walton, 110 S.Ct. 3047 497 U.S. at blood, hair, samples and then and saliva aggravating circumstances (explaining that appointed to assist counsel to be asked for penalties or offenses but separate are imme- point, questioning At that him. “ mak- guide to are ‘standards rather food and diately Allen was offered ended. the alternative choice between ing of the drink, declined, ful- and officers which he ”) imprisonment’ life of death and verdicts for for a towel his request Allen’s filled Arizona, 147, Poland v. 476 U.S. (quoting off. At lights that the be turned eyes and (1986)). 1749, 156, L.Ed.2d 123 106 S.Ct. a.m., a detective re- approximately 8:00 agreement earlier minded Allen his Suppress Refusal To Confession b. blood, hair, morning provide to court argues that the district Allen if, Allen samples, light asked saliva confes- refusing suppress to erred counsel, he still wished request of his for morning of police on the gave sion he to to samples. agreed Allen provide to assertion is primary arrest. Allen’s his his samples and verified deci- provide the comply with that officers made no effort to a.m., a writing. Around 10:00 de- sion in counsel, any and thus state- request his for willing to Allen if he was tective asked police request, after his ments made to the lineup. being in a After informed appear confession, have been including his should at present counsel right of his have they coerced suppressed because were appear the line- lineup, agreed Allen of the Fifth Amendment.8 violation presence of counsel. After up without the that Allen’s admis- government counters finished, in- lineup detectives knowing voluntarily after sion was made lineup— Allen of results formed Fifth Amend- intelligent waiver of his eyewitnesses placed four that three out of briefly recite the rights. We first ment previous the crime the him at the scene of arrest, interroga- surrounding facts Allen’s speak day point Allen asked —at tion, confession, magis- based on the Henderson, an officer Al- with Lieutenant adopted judge’s findings which were trate case. Prior to len knew from an earlier (See App., Allen Vol. by the district court. Henderson, Allen was re- confessing to 114-80,192-93.) atI request his earlier for counsel minded of of his Miranda rights. approximately again advised and, Allen was arrested understood his following day right Allen stated that he morning a.m. on the 2:00 he wanted to talk to read his to counsel and that robbery the bank and was Arizona, v. present. counsel Allen rights. See Miranda Henderson without Miranda 436, 479, up ground rules for dis- 16 then set 86 S.Ct. (1966). cussion, signed including Al- no written Around 3:00 a.m. L.Ed.2d 694 ”). Const., ("No against .... person a witness V ... himself See U.S. amend. 8. compelled in criminal case to be shall be tape recording, ly and no video or to result in incriminating responses statements participating confessed to in the the suspect, and then as well as the nature of the previous day’s robbery. police armed bank statements and the context in which they given. are See United States v. appeal, Allen does not chal On (4th Payne, Cir.), 954 F.2d 202-03 lenge findings district factual court’s denied, cert. 503 U.S. legal rather the conclusion to be drawn but (1992). 118 L.Ed.2d 396 See also United facts, which novo. from the we review de Jackson, States v. 189 F.3d 510-11 Looking, 156 F.3d See United States (7th Cir.), denied, cert. (8th Cir.1998). 803, 809 There is no doubt 432, 145 S.Ct. L.Ed.2d 338 right that Allen asserted his to counsel shortly interrogation began custodial after turn particular now to the cir present and that counsel was not at the surrounding cumstances request Allen’s Thus, time of his confession. must counsel, waiver, alleged and confes validly decide whether waived his First, although sion. Allen had earlier previously right invoked to counsel. counsel, right invoked his we hold that informing Allen of the results of the line

Waivers of counsel must be up did not amount to the functional equiv voluntary knowing and must constitute a alent of interrogation purposes for of the intelligent relinquishment and of a known Fifth simple Amendment. It was a de Arizona, right. See Edwards v. 451 U.S. scription of the ongoing status of the in 477, 482, 101 S.Ct. 68 L.Ed.2d 378 which, vestigation (1981). according gov to the requires This consideration of the ernment, a practice suspects routine for particular facts and circumstances sur custody particular jurisdiction. rounding each case. Id. Fifth Under the Amendment, importantly, to, More designed was not expresses once an individual to, reasonably likely nor was it elicit an police through desire to deal with the counsel, incriminating response may subject the authorities from Allen. This not him was a statement of fact interrogation plea to further until counsel and not a to Innis, him, 294-95, has been made available to unless the conscience. See 446 U.S. at 302-03, validly Rather, right by accused waives his initiat 100 S.Ct. 1682. the offi ing police. simply further communication with the cer described the results of the 484-85, Id. at Interroga lineup, unaccompanied by any S.Ct. 1880. threats or express tion questioning includes or its compelling pressure. Payne, other See equivalent, Supreme functional and the (stating 954 F.2d at 202 that “mere de Court has further equiv claratory descriptions incriminating defined functional of evi “any part alent as words or invariably actions on the dence do not constitute interro (other police normally gation”). than those Informing suspect that he has attendant to arrest and custody) lineup that the been identified contributes to police reasonably likely should know are to the intelligent judgment exercise of his elicit an incriminating response may likely from the and make firm his resolve to Innis, suspect.” police Rhode Island v. 446 U.S. refuse talk to the to without coun 291, 300-01, 100 Moreover, keeping S.Ct. 64 L.Ed.2d 297 sel. Id. in suspect (1980). Determining particular progress whether formed of investiga practices statements or amount to charges against interro tion and the status of the gation depends on the him encouraged circumstances of should be rather than dis case, particularly each couraged, long whether the state so as the communication is objectively reasonably truthful, designed, ments are and like- and is not nor is it lineup, identified in had been elicit, incriminating response. an likely to therefore, deciding was inter facts, conclude without we court assumed these On ex- to Allen appeal, statement be purposes the officer’s for rogation not lineup did results of plaining voluntarily were cause the statements interrogation. constitute and came after made without coercion validly waived given and suspect was interrogation resolving the After denied, 526 U.S. rights), cert. his Miranda determining issue, difficulty have little 143 L.Ed.2d re self-initiated subsequent Allen’s Henderson speak to Lieutenant quest to right of his to a valid waiver amounted fact that officers Finally, the the re clearly initiated Allen counsel. immediately counsel Allen did not find Lieutenant Henderson quest speak with automatically does not request after his and right his to counsel knew full well to counsel. right in a of his result violation right. foregoing consequences right his scrupulously honored The officers on right of his had been informed He and his invocation of to remain silent and had indicat unrelated prior, occasions him by interrogating right to counsel them. In addition that he understood ed Miranda warnings four until Allen rights being given after he invoked these actually Miranda con morning times earlier his confession. volunteered counsel after one invoking right his ploys of psychological the use demns (which strong evidence warnings attempts to elicit a con staged lineups as rights), his that Allen understood fession, all statements obtained but not request for counsel reminded of his interroga police product are the Fifth explanation of his given another Innis, tions. See just his confes rights prior to Amendment elaps length of time that 1682. The S.Ct. Moreover, up the Allen even set sion. counsel and when request for es between there for his confession. We ground rules simply one actually supplied is counsel of his conclude that Allen’s waiver fore when among many be considered factor it was right to counsel valid because was suspect’s waiver determining whether voluntarily given, knowing intelligent, and disagree and we voluntarily given, was Allen, by and therefore and initiated seven approximately that with Allen in denying err Allen’s district court did not request for elapsed that between his hours suppress the confession. See motion to confession, voluntary when counsel and his Kemna, 413, v. 212 418-21 Holman F.3d facts that took light viewed in of all the Cir.) (8th (holding ultimately that there in an early morning, that resulted place was no Edwards violation and that involuntary or coerced confes improperly Hol of counsel was valid because waiver See Fifth sion under Amendment. day until the man did not confess next McClinton, 278, States v. 982 F.2d United circumstances showed totality of the Cir.1992) (8th that (explaining “[t]he 282 voluntary the confession determining the volun appropriate — test for denied, cert. knowing intelligent), whether, light tariness of confession U.S. -, 587, 121 148 L.Ed.2d 502 S.Ct. circumstances, pres totality (2000). States v. See also United upon suspect have over sures exerted (8th Williams, 547, F.3d 552-53 Cir. 136 will”) (internal quotations and his 1998) borne state (holding suspect’s admissible omitted). that he citations police being after informed ment

767 Jeopardy States, c. Double 333, naz v. 344, United 450 U.S. 1137, 101 S.Ct. 67 L.Ed.2d 275 argues Men multiple Ms Thus, we first consider whether the two prison sentences of life in and the death statutes which under Men was convicted penalty underlying for the same offense prohibit offense, and sentenced the same right violate his to be free from double so, and if whether there is clear indica- jeopardy.9 Men waived this issue fail tion that Congress in fact intended multi- however, ing preserve appeal, it for ple punishments for that offense. See he did not argument because raise this Hunter, 367, 459 at U.S. 103 S.Ct. 673. If prior court to trial. district See Fed. 12(b)(2) same, the offenses are not the and absent R.Crim.P. (requiring defenses legislative intent, clear objections contrary on there is no based defects an in jeopardy double dictment be violation. they raised before trial or are See id. waived); Prescott, United States F.3d Supreme Court has consis (8th Cir.1994) 1165, 1167 that fail (holding tently used the test from Blockburger v. pretrial ure to objection alleged raise States, 299, United 52 S.Ct. duplicitous counts in the indictment consti (1932), 76 L.Ed. 306 as the initial starting defense); tutes waiver of the United point determining legislative for intent. (8th Shephard, States v. F.3d Albernaz, See at U.S. 345 n. Cir.1993) (holding that Fed.R.Crim.P. (explaining S.Ct. 1137 that “the established 12(b)(2) requires challenges based on determining test for whether two offenses multiplicitous counts an indictment and are the ‘same offense’ is the rule set forth double-jeopardy problems related be ”). in Blockburger Under Blockburger, waived). they raised before trial or are “where the same act or transaction consti error, Reviewing plain we find none. tutes a violation of two distinct statutory Sickinger, See United States v. 179 F.3d provisions, applied the test to be to deter (8th Cir.1999) (reviewing 1092-93 mine whether there are two offenses or jeopardy plain double claim for error even one, is provision whether each requires though was not raised in the district proof of a fact the other does not.” court); Jackson, United States v. 155 F.3d Blockburger, 284 (8th Cir.1998) (same). 180. issue, Examining the two statutes at it is In a single sepa trial where 2113(a) §§ clear from the face of 18 U.S.C. rate and consecutive are sentences im (Count (e) I) and 18 posed U.S.C. for the same underlying circum 924(c)(1) (Count II) (j)(l) §§ stances, that Jeopardy the Double Clause does II requires proof Count of two facts which prevent no more than a sentencing court I namely, Count does that a from prescribing greater punishment than firearm not— during a was used or legislature intended. carried commission See Missouri v. Hunter, 359, 368, 673, of violent and that a murder oc- 459 U.S. 103 S.Ct. crime by 74 L.Ed.2d 535 In curred use of the firearm. The present more then, imposition multiple question case difficult is whether I punish of Count re- quires proof ments for the same circum fact underlying of different than Count exactly does not violate II. It predicate stances the Constitution as is not clear how long Congress as intended it. Alber- purposes See offenses are to be treated for of Const., ("nor limb”). 9. put jeopardy See U.S. amend. V shall twice of life or person subject be for the same be offence to 768 924(c) §§ of element “crime of violence” some indication There is

Blockbwrger. definition, therefore, there is Blockburger (j). By Supreme Court from the §in 2113 that proved statutory construction that must be a rule of no fact simply designed to required nor neither intended from the which is is different elements 924(c) See §§ facts of a case. particular apply to under proved for conviction be 770, States, 420 U.S. v. United Iannelli (j).10 616 43 L.Ed.2d n. 95 S.Ct. of how conflicting views light In of these (1975) if re each offense (explaining Blockburger test to two stat- apply not, does a fact the other quires proof of predicate one can offense utes be where satisfied notwith Blockburger test other, to err on we think best for the proof overlap standing a substantial the Block- leniency by finding that side crimes); Blockbur to establish the offered satisfied. How- has not been burger test (finding 52 S.Ct. 284 U.S. at ger, ultimately ever, must consider the we still of the narcotics although both sections Congress question of whether dispositive sale, two of by one violated statute were cumulative sen- intended to impose clearly sec because each were committed fenses violations each for simultaneous tences fact the did proof of a other required tion Hunter, at statutes. See not). solely at the elements Looking simply (reasoning that S.Ct. 673 here, argu I Count the offenses issue may pro- criminal statutes two because II offense Count ably is not the same the Block- under scribe the same conduct proof of require II Count does because jeopardy double does not mean burger test by or property force taking of bank punishment because cumulative precludes intimidation, only but rather violence expressed leg- negate clearly cannot courts underlying crime of violence some proof of intent). islative any oth robbery or could be armed multiple repeatedly held We have felony. violent er for sentences prosecutions and cumulative hand, Supreme Court On the other using § for robbery under 2113 and bank considering applied Blockburger has 924(c) clearly § pursuant are firearm felony in a underlying nature of the permissi- thus by Congress and intended than rather felony-murder indictment McQuiston, See, e.g., ble. United States of the statutes only on the elements based Cir.1993) (8th (upholding 998 F.2d States, 445 v. United at issue. See Whalen months for of 300 sentence defendant’s 684, 694-95, §of 2113 in violation four robberies armed 715(1980) rape and (finding that L.Ed.2d sen- additional consecutive and an four pass of a did not killing rape the course violating each months tences Blockburger test because under the muster 924(c) of those during of each course offense). included Un- rape was a lesser 924(c) robberies). explicitly states Section Blockburger, interpretation der “in imposed to punishment that be its is form the basis predicate offenses which punishment provided to the addition always fail statutory would offenses other case, crime of violence.” U.S.C. such Blockburger present In the test. (“nor 924(c)(1) also id. § See shall robbery underlying bank satisfies ' however, reject argument, be- We argues because not. government that 10. The killing Count nec- requires proof proof of a of a under Count II I and cause murder Count pursuant to requires proof killing required of murder essarily requires proof II as 1111(a), really require § each offense does by Count I. does of an additional fact that other proof imposed subject under to an additional consecutive sen- imprisonment the term in concurrently only with tence situations that do not result run this subsection by in a death caused including that use of the firearm. imprisonment term of other unlikely Congress, in We think it that which ... imposed for the crime of violence carried”). clearly impose intended to additional cu- or the firearm was used punishments mulative for using firearms language This leaves no doubt Con- in during violent crimes cases where no cumula- impose multiple, intended to gress occurs, 924(e). murder would turn around and not § punishments under tive impose punishments intend to cumulative 924(j) § argues should be con- in cases where there are actual murder 924(c) § independently of it strued because victims. same “in addition to” does not contain the 2113(a) (e) 924(c) Third, §§ §§ and and legislative history suggests language, the (j) clearly designed and were for different Congress only intended to authorize purposes: robbery the armed statute was 924(j) § if penalty death for violation of punish designed money those who take already penalty the death was not autho- violence, by banks force or from whatever offense, underlying rized for the violent means, and the firearm statute was any ambiguity must be resolved and designed punish carry those who use or of a defendant based on the rule of favor crimes, during firearms violent whatever lenity. respectfully reject Allen’s con- We underlying crime. First, 924(j) expressly § incor- tentions. 924(c) § porates requires conclude, a violation of notwithstanding We therefore 924(c) § prior imposition penal- of the assumption likely our of the failure Thus, 9240'). 9240) § § test, forth in pass Blockburger ties set two statutes to independently Congress fully clearly cannot be read from the intended to punishment permit punishments context of the scheme set out cumulative for viola- 924(c). 924(j). § § § Although 9240) §in does not tions of 2113 and See United (8th Kragness, express manda- States v. 830 F.2d explicitly contain the same Cir.1987) (holding Congress intended tory punishment language cumulative 924(c) 924(c), multiple punishments to allow for RICO incorporates § § found conspiracies conspiracies to commit by disclaiming without the cu- reference underlying predicate offense even punishment mulative scheme which is so 924(c). though the offenses were the same under § clearly set out test). reject Al- Blockburger We also Second, read context of the when proposed reliance on the rule of leni- len’s 924(c), § criminal scheme set forth in ty Congress’s quite because intent is clear 9240) § fairly interpreted think as an forego- ambiguous. and not Based on aggravating punishment additional for the reasons, ing the district court did not com- 924(c). § already scheme set out in mit Fifth Amend- plain error under the § 9240')’s reach this conclusion because jeopardy protections by ment’s double 924(c) explicit reference because I submitting Counts and II to the designed each subsection of the statute is separate after Al- imposing sentences impose steeper purpose for the same —to len’s conviction on each count. penalties those criminals who use fire- on argues that his engaging in of violence. Allen also double arms when crimes Moreover, one interpretation exposure to a sentence of death for proposed Allen’s unduly emphasized the 924(j) underlying § odd result crime would lead 924(c) impermissi- penalty jury death to the and that a defendant convicted under City bombing of the Oklahoma in fa- for the process the deliberative bly skewed denied, 526 U.S. building), cert. in violation federal sentence vor of death 1148, L.Ed.2d 215 1007, against prohibition Amendment’s Eighth and the punishment unusual and cruel right to process due

Fifth Amendment’s Sentencing Errors disagree. and Alleged Trial again respectfully 3. trial. fair claim is a valid argument if Allen’s Even com- district court that the Allen asserts Amendment, matter Eighth under trial, during the errors numerous mitted Allen reach, find that not which we do this court warrants allegedly each of which justice the scales has not shown trial or a new sentenc- him a new granting sentence. in of a death favor skewed were in contentions each of his address ing. We unduly em- did not jury instructions The below, conclude order, explained and as over life option the death sentence phasize district court the asserted that none of made the instructions prison, and a new trial or new Allen to entitle errors supposed they jury that were to the clear sentencing. separately charged count each to evaluate jury independently. Given and of Continuance a. Denial under each different sentences returned court asserts district Allen jury fol- count, is little doubt there denying Allen’s abused its discretion speculates Allen its instructions. lowed trial after a continuance motion for jury sen- returned that the reason days pri- expert quit ten mitigation Allen’s that the was on Count II tence of death done. little of work to trial his with so must been overwhelmed jury have government follows. The facts are as The weighings separate two having to make the death of intent to filed its notice seek circum- aggravating the mitigating all 8, 1997. Defense coun- August penalty on evidence that the mitigation such stances early Sep- mitigation expert hired a sel weigh- second not have survived the must 15, Allen’s case was October tember. On ex- principled plausible A more ing. February 1998. On trial on set for on Count jury’s for the decision planation 12, 1998, mitigation original January that Allen evidence shows II is that the that he defense counsel expert informed the firearm culpable far more for obligations. fulfill Defense his could robbery count. armed than the bank count expert on mitigation hired a new counsel that Allen was jury likely most found working on Allen’s January 15 who started firing the shots responsiblé for primarily Allen January 16. defense on mitigation Heflin, and, given Richard that killed for on Janu- his motion continuance filed planning, preparing, leadership Holder’s delayed that the trial be ary requesting Al- robbery, that instigating bank adequate- prepare days for 120 in order committing the culpable less for len was during evidence use ly mitigation Thus, little evi- robbery. we find bank denied the district court sentencing. The support Allen’s contention dence grounds a continuance on motion for death-ver- separate of two the submission completed had been that substantial work vio- sus-life-in-prison decisions to and that suf- mitigation defense See, on Allen’s rights. constitutional lated Allen’s prepara- time finish ficient remained F.3d McVeigh, 153 e.g., States v. United February began on Cir.1998) Jury tions. (10th Tim- selection (upholding February on trial commenced death othy eleven sentences McVeigh’s on March sentencing began convictions of his conduct and as a result

771 presented mitigation ing his evidence from over pages nine hundred of transcript, 3 to March 6. thirty-six March and involved witnesses testifying on Allen’s in support behalf of four statuto rulings requests review on ry mitigating twenty-two factors and non- following for continuances under the stan statutory mitigating factors. Allen does dard: point any specific mitigation evi District courts are afforded broad dis- dence that deprived he was of presenting ruling cretion when on requests for con- due to the district court’s denial generally tinuances. Continuances are request his for a continuance. See granted only not favored and should be Bowersox, (8th 827, Walls v. 151 F.3d 836 party requesting when the one has Cir.1998), denied, 1071, cert. 526 U.S. compelling shown a reason. We will 1468, (1999). S.Ct. 143 L.Edüd 552 In reverse a district court’s decision to fact, on the basis of the present evidence deny a motion for only continuance if the ed, jurors were to identify able three court abused its discretion and the mov- mitigating additional they factors which ing party prejudiced by was the denial. considered during deliberations. Cotroneo, 510, United States v. 89 F.3d argues Allen general prejudice on the (8th Cir.) (citations omitted), denied, cert. basis that there was not overwhelming evi- 1018, 519 U.S. 117 S.Ct. 136 L.Ed.2d in support dence jury’s decision to “Abuse of discretion is deter II, sentence Allen to death on given Count by looking particular mined at the circum jury’s impose decision not to a sen- stances of the case.” United States v. tence of death on I. disagree. Count We Ware, (8th Cir.1989) 890 F.2d There was overwhelming evidence that Al- (citing Ungar Sarafite, v. len responsible for firing all or at least (1964)). 11 L.Ed.2d 921 most the shots that security killed the Our review of the circumstances of this guard, which is more than enough sup- case convinces us that the district court port jury’s finding that the aggravating did not abuse its in denying discretion outweighed mitigating factors factors request Allen’s for a continuance. warranting thus a sentence of death. We replacement mitigation expert had therefore question need not address the worked on Allen’s prior case for two weeks whether Allen had a compelling reason for request, to the continuance and at the time (no requesting a continuance of the trial the motion for the continuance was filed he explanation given delay was ever for the had over four weeks left to prepare Allen’s discovering nonperformance sentencing addition, In defense. the de- original mitigation expert), because we fense never renewed its motion for a con- find by neither an abuse of discretion at the start of penalty phase. tinuance any prejudice district court nor aas result. Thus, supports the evidence the district finding court’s that the defense had suffi- Upcoming b. Failure to Disclose cient time to prepare adequate mitiga: an Testimony Inconsistent tion defense. argues, Brady on based

Furthermore, 1194, 10 Maryland, the defendant has S.Ct. prejudice (1963), failed to show specific result process L.Ed.2d 215 that his due ing from the denial request rights of his for a to a fair trial were violated continuance. mitigation government’s Allen’s evidence failure to disclose that two days consisted of testimony, government three total- eyewitnesses Betty Thomp- — 772 Cir.1996) (8th zales, F.3d 1368 at 90 testify Green—would

son and William by a Brady is not violated that (noting state previous inconsistently with trial long as the so delay disclosing in evidence as contained attributed them ments trial). Sec- during is disclosed evidence court that the district reports, FBI change ond, that the shown Allen has not denying its abused discretion therefore of mate- testimony the element satisfies or to strike for a mistrial motion Allen’s of witnesses riality. The will statements testimony. We of the witnesses’ some inconsistent Green were Thompson and denying a court’s decision affirm a district driver whether the only to the issue of “an as find we for a mistrial unless request bag carrying passenger was or resulting preju in clear of discretion abuse the two defendants reentered money as States v. United to the defendant. dice” Hold- (8th robbery. van after the Whether Rhodenizer, Cir. 106 F.3d however, has bag, omitted). carried the (internal er or Allen 1997) See quotations as to whether probative value almost no 233 F.3d Wadlington, States v. United offenses, charged guilty of the (8th Allen was Cir.2000); also see United as to (8th probative value only and has some 708, 711 Ryan, 153 F.3d v. States Heflin, rele- actually which was who shot the same standard Cir.1998)(applying jury’s sentencing to the decision. on vant trial based motion for new denial Moreover, convincingly denied, evidence the other allegations), cert. Brady violation of the actually did most showed 143 L.Ed.2d short, confidence In our Brady shooting. In order to establish delayed any a result of jury’s verdict that the violation, show a defendant must in- negligibly exculpatory of the evi disclosure exculpatory government suppressed undermined, all because formation is not at punish guilt dence material either to would of the information earlier disclosure at 711. Ryan, 153 F.3d See ment. of the on the outcome have had no effect Brady if under is material Evidence jury’s verdict. that, probability ais reasonable there to the disclosed the evidence been had preju clear Nor do we find defense, proceeding the result of expressly stated prosecutor dice. A reason- have been different. would during opening argument witness probability suffi- probability able is a driver testify that the going was Green in the undermine confidence cient contrary carrying bag, which was However, materiality is not outcome. FBI. Trial statement to the {See to Green’s possibility through the mere established (“A Tr., later at few moments Yol. VI might have suppressed evidence van, men run to the saw two [Mr. Green] jury. influenced carry bag, both men carrying the driver (internal and citations quotations Id. at 712 long-barreled him to ing what looked to be omitted). there little weapons.”).) Given the driver doubt that Holder was the district agree with van, during his remarks Brady prosecutor’s no viola that there has been court alerted defense counsel First, opening trial statement expected tion. the witnesses’ inconsistency between witness to the Brady evidence because testimony was not expected prior and his the Green’s statements trial and the witnesses testified Moreover, coun testimony. defense necessary trial provided defense was with (in necessary impeachment mate had the case the sel evidence impeachment with reports agree FBI rial —the v. Gon- reports). FBI See States United —and Webster, 162 F.3d 338-40 court that defense counsel did States the district (5th Cir.1998) job using inconsis- that a very (holding district court effective impeach credibility and accu- possesses power tencies to the inherent to order a (See Trial racy testimony. trial of Green’s psychiatric examination based on 18 U.S.C. 198.) Thus, Tr., only at did 3593(c), Vol. VIII requires govern- the of the inconsis- counsel have notice defense given opportunity” ment a “fair be to rebut statements to the tency between Green’s evidence, any mitigating of defendant’s trial, testimony FBI at but counsel and his 12, and Fed.R.Crim.P. which allows a effectively the FBI re- also had and used psychiatric court-ordered examination dur- impeach cross-examination to port during ing guilt in similar circumstances testimony. Finally, defense coun- Green’s trials), denied, 829, phase of cert. 528 U.S. asked for a continuance to deal sel never 120 S.Ct. 145 L.Ed.2d 70 See allegedly surprising prej- with Green’s Smith, 451 also Estelle v. 466 n. change testimony, in and never udicial 10, 472, 101 L.Ed.2d S.Ct. 68 359 objection even raised an the time (1981) (leaving open possibility, with testimony in Thompson’s change was dis- it, can deciding out that a defendant be circumstances, covered. Based on these precluded using psychiatric, from evidence prejudice to Allen. we do not find clear if during penalty phase he does not reject therefore Allen’s contention that prosecution-selected psy a also consent to in the district court abused its discretion chiatrist). government must be able for a mistrial be- denying request Allen’s put a fair to a defendant’s on rebuttal Brady by there was no violation cause mitigation during sentencing. evidence government preju- and there was no clear Here, court one assis the district allowed dice to Allen. prosecutor begin evaluating tant psychiatric ex government’s results of the Psychiatric c. Court-Ordered prior sentencing phase amination to the Examination divulge any under an order to not of the Allen asserts the district court prosecution results to the rest of the team him ordering undergo psychi- erred in guilt completion until after the by government-select- atric examination partial protective order is phase.11 This protective without a full psychiatrist ed constitutionally sufficient be legally and prosecutor to vio- allowing order and cause, Circuit, explained by the Fifth protec- partial late the terms of the court’s adequately protected under defendant find no constitutional error tive order. We early impermissible from the Constitution reject claims. and therefore both government of the fruits of a introduction under a scheme psychiatric that a dis examination There is no doubt has the a wherein the defendant burden authority trict court has the to order taint, and producing some evidence of who states that he will use evi defendant government has the ultimate burden psychiatric dence from his own examina that the evidence is penalty phase persuading a trial the court tion Hall, 152 States v. undergo psychiatric by examination a not tainted. United (5th Cir.1998) (citing Aider F.3d government-selected psychiatrist before States, 165, 183,89 man v. 394 U.S. penalty phase. the start of the See United United Attorney the Assistant United States procedure is described all counsel team and 11. The designated psychiatric to receive the erecting "a wall'' who was in the record as Chinese reports. prosecution’s guilt phase trial between the of- not seem to discuss (1969)), Allen does cert. 961, 22 L.Ed.2d S.Ct. asked about the even fense or wasn’t (1999), denied, abrogated on 626 U.S. physicians one of offense with either States v. Mart by United grounds other defense and by the that were chosen 304, 317, inez-Salazar, of with no discussion there was (2000). Additional 145 L.Ed.2d beyond Mr. court-appointed psychiatrist this evi- beyond safeguards prophylactic there, maintaining that he wasn’t Allen’s framework, sealing of dentiary such as reports anything these there isn’t so completion until after exam results phase guilt in the exploited be that could did United phase, as the court guilt I any type can see. F.Supp. Beckford, 962 States 2-3.) (E.D.Va.1997), litigation (Trial later may Tr., avoid X at Vol. constitutionally required. See but not are disclo- that the AUSA’s argues Allen Hall, therefore de F.3d at 399. We of sure, of other presence in the members any rigid prophylactic such adopt cline to team, statement of Allen’s prosecution the Constitution in the name of rule Allen psychiatrist that government to the of dis matter to discretion leave rob- at the armed bank present not was courts, our review for subject only to trict protective court’s bery a' of the is violation discretion, find we do not abuse of in trial. defect order and structural present in this case. the defense ex- disagree. did We While wall had the view that the Chinese press prose of allegations Allen’s As for breached, not raise a formal it did been misconduct, a careful review after cutorial the comment was objection at the time a breach record we find neither of the made, to court’s failure and the district order nor protective court’s the district in sponte response any take action sua during guilt to Allen any prejudice its allegation to the the comment or comments been prosecutor’s phase had violated, makes clear order had been requested that government a breach. of the it to be a violation it did not consider allowed to prosecution team be the entire violation either because order. We see no the court-ordered the results of review being present at denied the defendant had Allen before interview with psychiatrist’s early July robbery as the armed they could of the trial so the end Upon to Rely in Notice of Intent his possible defenses Allen begin researching Alibis, prosecution team Defense of so States might raise. The Assistant United from Allen himself already on notice (AUSA) Attorney designated to receive “I argue an wasn’t there” might that Allen psychiatrist’s of the court-ordered results Thus, had AUSA’s disclosure defense. following interview with Allen made little, prosecution’s any, if on the impact court, in without the open statement evidence, and for that rea- presentation response Allen’s assertion present, son, disclosure was a if the AUSA’s even to be ex should continue that the results protective the court’s technical violation of team prosecution from the entire cluded order, certainly prejudiced Allen was against him they might be used because by the disclosure. trial: guilt phase of the during the reject Allen’s any also assertion anything really isn’t There effectively precluded or that the disclosure prejudice the reports that would these exercising right his “chilled” him team was from prosecution if the defendant ‘ he was afraid testify at trial begin- to the because prior aware of them made been fact, results had In all of the examination phase. Mr. ning penalty of the team. We afford the district court prosecution to the entire broad dis- disclosed in controlling closing arguments, have taken the stand cretion could The defendant overturning only Fifth Amend- the lower court when it protected have his and still clearly its discretion. by alleging specific violations abuses We exam- rights ment determine, prosecutorial if ine remarks to protective gov- order of the court’s first, whether the using to be remarks were fact appeared improperly ernment so, whether, if psychiatric improper, examina- the con- information from the trial, forego prej- made to text of the entire the remarks tion. The decision was points udicially affected sub- protection, appeal [the defendant’s] and on rights, deprive' stantial so as to specific improper [him] no uses of the results a fair trial. psychiatric examination contents guilt phase of the trial. We during the Cannon, United States v. 88 F.3d that the AUSA’s disclosure therefore hold (8th Cir.1996) (internal quotations not, argues, rise to the level does as Allen omitted). and citations See also Darden v. (which argues he of a structural error 168, 181, Wainwright, 477 U.S. prejudice), do requires showing no nor (1986) (“[I]t 2464, 91 L.Ed.2d 144 is not by the find abuse of discretion enough prosecutors’ that the remarks were with prejudice court or to Allen district universally undesirable or even con psychiatric respect to the court-ordered question demned. The is whether relevant partial protective examination and order. prosecutors’ comments so infected the trial with unfairness as to make the result Improper d. Prosecutorial Statements ing process.”) conviction a denial of due (internal omitted). quotations and citations prosecu- argues government Allen first address whether the We improper prejudicial tors made and state- in im prosecutor’s statements were fact during penalty phase which ments surrounding proper. Given context jury’s sentencing decision rendered the statements, are that nei we convinced fundamentally Specifically, unfair. Allen gang comment nor the ther the basketball allegedly improper points to three state- improper. The basketball reference was (1) a direct reference to Allen as a ments: of Allen’s reference was made after several during closing argu- dog” “murderous witnesses, mitigation own such as his mid (2) ments; saying a statement “don’t let relatives, dle school basketball coach dribbling him down there basketballs on enjoyed playing basket testified that Allen closing ar- grave” during Richard Heflin’s ball, by to it and therefore later reference (3) guments; question a to one of (See, improper. prosecution was not about whether the blue Allen’s witnesses 167.) Tr., e.g., Trial Vol. XV at clothing signified his associa- color of his up during gang question affiliation came that, any gang. argues Allen tion with cross-examination of one of Allen’s wit fact that is an African-Amer- given the he determining, in context of nesses ican, de- each of these statements was' factors, in alleged mitigating one of the appeal preju- to racial fears and signed to pros Allen was a “follower.” The whether in order to secure a dices of members questions were directed at discov ecutor’s sentence, have this death and that did ering either Allen or the witness whether improper effect. in gang involved activi

or both were ever nothing wrong ty, is as fol and we find with Our standard of review to they because were relevant questions lows: Richard ever saw these two response mitigating to the factors Heflin him, Allen, at blow blazing he come and start by which indicated presented irony him is he factions. down—and terrible up gang grew surrounded Vietnam, Vietnam, Furthermore, of this survived survived in the circumstances through fight to case, prosecutor’s managed having to five that the state- we find that, just with like and he’s people guns the basketball comment ments—both City at Point in on questions—were High killed St. Louis gang affiliation irony. that is they day, Patrick’s a terrible nor did have the effect St. intended any preju- fears or appealing to racial to (Trial 105-06.) Tr., Although XIX at Vol. jurors. dices improper appeal find no to racial fears we statement, we do prejudice or the above Allen as The characterization of being that the find reference Allen as presents ques closer dog” “murderous and im- dog” inappropriate “murderous response tion. The comment was made Darden, 179-80, proper. See at nonstatutory proposed one of Allen’s (finding it to char- improper 106 S.Ct. 2464 factors, portrayed mitigating “animal”). as an acterize defendant “likeable, gentle, lighthearted person” aas aggressive “was not considered who not, however, will reverse 405.) (Allen’s App. During violent.” prose- of improper a sentence on the basis moreover, argument, Allen’s coun closing state cutorial statements unless those prosecution made assertion sel prejudicial enough deprive ments are single person say [Al find “[c]ouldn’t rights to a defendant his constitutional (Trial Tr., XIX at was violent.” len] Yol. outset, hearing. penalty phase fair At the 77.) closing In argument, rebuttal reject capi in a Allen’s contention that responded as prosecutor follows: greater protection under tal case there is mitigator you’re go- Fifth Process How about the the Amendment’s Due hearing for ing penalty phase to see that verdict form that this a fair on Clause13 lika- gentle, lighthearted, than there is for a fair trial. In determin defendant is person? ing pen He’s those whether Allen has received a fair ble “considered” important. says things, okay? alty phase hearing, adopt That’s It we therefore kind, by gentle, lighth- Supreme he’s same standard set out considered in determining not violent or and this court wheth earted. He’s considered Court aggressive. Richard Heflin didn’t think a defendant has a fair trial er received mask, war, guy despite improper this armed for under the with Constitution kill, kind, See, to or lighthearted, prosecutorial during armed was comments trial. Darden, gentle. thought e.g., he a murderous 477 at S.Ct. He was U.S. 106 dog coming people question in there to kill (holding “[t]he relevant money. prosecutor’s That’s what Richard Heflin whether so comments thought. you And remember are infected the trial with as to when unfairness thing deliberating, resulting the last make the a denial of back there conviction mitigator by prior submitted Allen to the his He was 12. The inconsistent with behavior. (Al- "Despite aggressive jury growing up read not considered or violent.” as follows: in 405.) App. neighborhood by gang len's at that was surrounded factions, losing several close friends to violence, Const., ("No gang person Billie Allen was known as a 13. See amend. V likeable, life, gentle, lighthearted person. deprived liberty, prop- The of- ... be shall of ...."). erty, process are fenses for he has been convicted without due of law Cannon, process”); due F.3d in prison sentence life for the armed (outlining help a three-factor test to deter- robbery conviction is strong evidence that mine, whole, in the context of the trial as a its decisions were passion. not based on deprived whether defendant has been of Third, the trial court was not upon called trial, including fair the cumulative effect any to take curative actions because the misconduct, any strength objected remark, defendant never to the guilt, admitted evidence of properly experienced and the judge trial did not any by remedial actions taken the trial intervene sua sponte, a decision we do not court). find to be error of kind. any The court did Although prosecutor’s we find that the instruct the jury make its decision reference to Allen as a dog” “murderous only on the based evidence and that state- improper, was difficulty we have little by ments the lawyers were not evidence. deciding case was not This is sufficient in the absence an deprived n light of his constitutional a fair objection. Id. at 643-44. First, sentencing. the comment was made reject also argument Allen’s that the once and did not only manipulate or mis reference, dog murderous state the evidence. See Mack v. combination Caspari, (8th Cir.1996) telling F.3d (finding story through with eyes numerous despite victim, references to the defen makes unduly the statement dant as a “killer” that the entire trial was prejudicial. No prejudice undue arises not so fundamentally unfair as to amount from reminding to consider the deprivation process, of due in part murder victim’s perspective where the de prosecutor’s because statements did fendant has a gentle spirit asserted manipulate evidence), not or misstate the government accused the of being unable to denied, cert. produce any testify witness to 137 L.Ed.2d 317 Although it is reasons, was defendant violent. For these possible that one isolated comment can conclude that penalty phase Allen’s result the denial of a defendant’s due unfairly prejudiced not prosecutor’s process right to a fair trial or sentencing, reference, dog” “murderous and therefore lack cumulative effect of more process he was denied due right his one improper certainly than comment is Darden, sentencing. fair See 477 at strong indication that sentencing the was 180-81, (finding 106 S.Ct. 2464 during ha Second, not fundamentally unfair. the evi penalty review of a death beas conviction essentially dence is Al overwhelming that the defendant deprived that was not of his len fired the shots from the Chinese SKS right despite to a fair trial prosecutor’s the Heflin, that killed Richard helps which ex references to the as an “animal” defendant plain why jury imposed the a death sen that “shouldn’t be of his cell out unless he for tence the firearm conviction and a life him”); Skon, has a Kellogg leash on v. 176 for robbery sentence Allen’s armed convic (8th Cir.1999) F.3d 451-52 (finding in (the tion that evidence Holder shows was sexual criminal case that defendant abuse primarily responsible initiating for fundamentally not receive a did unfair trial planning Thus, robbery). armed if the though prosecutor even referred to prosecutor’s improper statement was as “monster,” deviant,” him as a “sexual emotionally prejudicial claims, Allen “liar”); Delo, Pollard v. likely jury think that 28 F.3d would have (8th Cir.1994) returned sentence of that (finding repeated death on both refer counts, so the fact that returned a “predator” to the ences defendant as Allen’s testimony, we review impact deprive the victim as to prejudicial not so

were Thus, Allen trial). plain error. claim of a fair defendant that the error was show must therefore Evidence Impact e. Victim obvious; and clear or plain, meaning [his] affected substantial the error [that] that the district argues that requires showing rights, overruling his motion in erred court and affected prejudicial was the error impact victim evi quantity limit the Even clear errors the trial’s outcome. government dur by the introduced dence jus- miscarriage if a only will that matter sentencing phase, and ing might result tice would otherwise a violation of his ultimately led to decision fairness, integrity or seriously affect rights because Amendment Eighth judicial proceed- reputation of the public present too government allowed ings. normal impact victim evidence. much under an evidentiary decisions

ly review Tulk, F.3d States v. United See United discretion standard. abuse of Cir.1999) States v. Ola (8th (citing United (8th Martin, S.Ct., 180 F.3d States no, 733-35, Cir.1999). case, however, Allen In this (alterations (1993)) in 123 L.Ed.2d 508 any of the objection an to raise failed (internal and citations original) quotations Although Allen impact testimony. victim omitted). government’s a motion to limit

filed First, it clear from both is introduced, any it was before evidence precedent Supreme FDPA and Court court the district denying the motion and a present allowed to government is neces clear that it would be quite made it impact consider victim jury is allowed to objections later order sary to raise reaching sentencing its deci evidence appeal. The district the issue for preserve provides FDPA capital in a case. The sion following: stated the court aggravating factors for the submission that motions in parties will note The the offense “the effect of may concern orders advisory only, are limine family, victim’s on the victim and the only. parties limine are advisory im testimony, a victim may include oral appropriate required to make be will identifying the victim pact statement” proof prop- at the objections or offers of by the victim and the loss suffered protect trial to their during time er relevant family, “and other victim’s The Court will respective positions.... 3593(a)(2). 18 U.S.C. information.” [testimony] as it impact consider victim Likewise, Supreme has ruled Court way knowing I no presented. have “permits capi Eighth that the Amendment precisely what it will be. this time juries evidence sentencing to consider tal statutory understand the scheme Parties personal character relating to the victim’s impact testimony provides for the mur impact of and the istics emotional body concept of cases also family deciding der on victim’s subject and neither —and dealing on re eligible an defendant should whether go beyond government should Jones v. United ceive death sentence.” or the of either statute the bounds States, 373, 395, 119 S.Ct. 527 U.S. case law. (1999) (citing Payne 144 L.Ed.2d 370 34-36.) (Trial Tr„ at Vol. XIV Tennessee, 808, 827, 111 S.Ct. 501 U.S. (1991)). Payne, See objec- any to raise L.Ed.2d Due to Allen’s failure 830-31, (explain- at S.Ct. sentencing phase to the 501 U.S. during the tions ing Eighth that the Amendment does not will nevertheless consider the possibility that the jury considering may bar a from “the full evidence have preju- ex- been so dicial as to violate the Due crime, Process Clause. tent of the harm caused record, Our however, review of the con- including on impact family its the victim’s vinces us that no such violation occurred. community” from seeing quick “a government’s The evidence victim im- glimpse petitioner of the life chose to ex- pact testimony consisted of from eleven tinguish jury person to remind the that the witnesses, including Richard Heflin’s unique whose life was taken was a human mother, sister, brother, one one two bank being,” and explaining further that a de- coworkers, coworker, one former his for- may fendant still seek relief under the Due (and mer sons), wife mother of his three Process Clause of the Fourteenth Amend- (who sons, each of his three and his widow “[i]f, case, particular ment in a a witness’ had married Heflin approximately seven testimony prosecutor’s or a in- remark so death). prior months to his testimony The sentencing proceeding fects the as to ren- from these witnesses lasted less than a day unfair”)(internal der it fundamentally quo- up only and took eighty-eight pages of omitted)(0’Connor, J., tations and citations transcript. In comparison, the pen- entire concurring). alty phase transcript up takes over seven- Second, little, there if any, teen pages, hundred testimony and the danger prejudice of undue from penalty phase due to victim Allen’s witnesses took up impact Furthermore, over nine hundred pages. evidence under the FDPA if a jury, objected Allen could have case, any specific as in fails even find the exis testimony that he thought unduly was victim-impact tence of the aggravating fac prejudicial, and he could have raised an (See 132.) Tr., tor. XIX Trial Vol. objection if he believed the amount of tes- prohibits jury This is because the FDPA timony had unduly prejudicial. become considering, from the final weighing of reasons, For tactical objections such could aggravating circumstances, and mitigating have lodged been at' a side bar conference any aggravating jury factor which the did outside of jury’s hearing. objec- No unanimously beyond not find a reasonable raised, however, appeal tions were and on (e). 3593(d), doubt. See 18 U.S.C. allegations any specif- makes no jury instructions to the were clear on this testimony unduly ic prejudicial. Our point, jury disregards and unless a its review of own the record convinces us that instructions, which we do not and cannot neither the scope amount nor the and na- presume, prejudice. there can be no See victim-impact ture of the testimony was Franklin, Francis v. 325 n. unduly prejudicial. 85 L.Ed.2d 344 reasons, For all of the above stated (1985)(“[a]bsent extraordinary [ ] situa find that the district court did not commit tions, however, we adhere to the crucial error, error, much plain less its assumption underlying our constitutional deny decision to Allen’s motion in limine at system by jury jurors of trial carefully sentencing hearing the outset of the instructions”); follow United States v. Del permit government’s later to all of the (8th Cir.1996). 1134, 1144 pit, 94 F.3d impact victim evidence to come into the Third, although did not objection. record without victim-impact find the existence of ag Penalty f. Death Selection Instructions factor,

gravating which is strong evidence of and in most cases will be sufficient to argues Allen that the district ruling prejudice, make a of no undue failing jury we court erred in to to the submit 780 accu these instructions think which “mercy instruction”

Ms tendered sentencing in jury’s role rately explain the they jury that informed the have would FDPA, follows: reads as under of impose a sentence to required are never ... be sentenced defendant shall [T]he challenge to reviewing a “When death. of consideration if, after to death instructions, that the recognize jury we [delin in forth section factors set formu discretion in court wide district has mitigat and aggravating eating possible affirm and will [we] lating the instructions the course ing circumstances] jury, when read charge to the if the entire 3593, it to section hearing pursuant held whole, contains adequately fairly aas imposition of sen that is determined case.” United applicable to the the law .... justified of death is tence (8th 1048, 1057 F.3d Phelps, 168 States v. added). 3591(a)(2) (emphasis § 18 U.S.C. Casas, Cir.1999) States v. United (citing hearing to de- “Special §In entitled (8th Cir.1993), cert. F.2d of death is a sentence termine whether denied, following: FDPA states the justified,” the (1994)). L.Ed.2d whether all jury ... shall consider [T]he or factors found aggravating factor giv of the instructions Our review sufficiently outweigh all the miti- to exist district us that the jury to the en convinces found to exist to factor or factors gating fairly no error committed court death .... Based justify a sentence law. applicable adequately presenting consideration, jury by this upon court’s portions of the district The relevant ... shall recommend unanimous vote jury were follows: to the as instructions should be sen- the defendant whether death, imprisonment life to to tenced circumstances not the or Again, whether or possibility of some without release of death is justify case sentence this lesser sentence. other entirely to the law leaves a decision that added). 3593(e) (emphasis § 18 U.S.C. unanimously conclude you If you.... language of the stat- upon plain Based factors factor or aggravating that final, unanimous ute, jury makes a once a all sufficiently outweigh found exist a sentence of death is that determination factors found to factor or mitigating impo- requires its justified, then the FDPA ... justify a sentence death exist § (requiring sition. See 18 U.S.C. your determination you shall record death that once recommendation 6A of the justified Section death made, “the court shall imprisonment is life for each count of special form verdict accordingly”). the defendant sentence the indictment. language in argues Allen 37-38.) (Instr. Tr., XIX No. Trial Vol. 3593(e) jury to make requires § two also instructed The district court first, a sentence whether decisions— deliberations, if that, your the end of “[a]t second, justified whether a death that Billie Jerome you determine actually be im- death should sentence of death or to life 3593(e) be should sentenced it- could lend posed. Although re- possibility of imprisonment read in interpretation without when self this lease, required isolation, reject interpretation to impose the Court is 39.) (Instr. as a whole.14 See inconsistent with Act No. id. at sentence.” most, legisla- note, pretation of the statute. At reject, assertion We also Allen's 14. express- history language both legislative history supports tive shows his inter- that the Indus., Browner, Harmon Inc. v. 191 F.3d that a decides of death sentence is indeed (8th Cir.1999) justified. (noting that we apply meaning common sense to the text context, In another the Controlled Sub- interpret provisions of statutes and “in a Act, Congress clearly stances provided has logically manner consistent with the Act as jury “regardless of its findings whole”). Allen’s two-decision interpreta respect with to aggravating and mitigating 3593(e) § tion of jurors would allow the to factors, required is never impose to disregard a unanimous determination that 848(k) (re- § death sentence.” U.S.C. justified. a sentence of death is We con jury quiring to be instructed interpretation manner). clude such an contra This language would explicitly 3591(a)(2), § language dicts the stating jury second, allow the to make the sub- that a defendant shall be sentenced to stantive determination that Allen seeks. if language the fact No similar FDPA, death finder determines that a exists in the however, permitted and we are justified sentence of death not to weigh leg- is after this language ourselves, islate the Act into ing aggravating mitigating circum and particularly light contrary lan- consistently stances. To harmonize the guage explained already above which ex- sections, 3593(e) two § we must read as ists the FDPA. specifying jury’s options within this already framework. We know from FDPA, Under jury ex 3591(a)(2) § that a unanimous finding that complete ercises discretion in its determi justified requires death a recommenda nation of whether the aggravating factors of a tion death jury’s sentence. The re outweigh the factors. mitigating jury (life maining options, imprisonment then informed was that whether or not the cir possibility of without release or some other justify cumstances a sentence of death was sentence), lesser are only options valid entirely a decision left Mercy them. jury if recommend the balancing precluded from entering into the bal process favors the mitigating factors and ance of whether the aggravating circum justify does not a sentence of death. outweigh stances the mitigating circum The FDPA merely precludes stances. Thus, we read requirement .in jurors from arbitrarily disregarding its 3593(e) § jury recommend unanimous determination that a sentence unanimous vote the sentence to be im justified. death is v. See Johnson Tex procedural to be a posed mechanism to as, 350, 371-72, jury’s record the findings, first on the (1993) 125 L.Ed.2d 290 (explaining that “ question whether a death sentence is ‘it very would be difficult reconcile a justified, not, if then on whether the allowing rule the fate of a defendant sentence prison should be life in or some on vagaries particular jurors’ turn imposed by other sentence the court. We sensitivities longstand emotional with our 3593(e) not read requiring do from that, all, ing recognition capital above sen second, reliable, accurate, substantive determina tencing must be ’) regarding tion Parks, sentence of death once it nonarbitrary” (quoting Saffle ly requiring that a mercy given gress signed by instruction be the President. We are language expressly prohibiting mercy can, interpret, thus left to as best we being given from proposed instruction proper meaning of the that was actual- FDPA deleted, reasons, and then for whatever from ly enacted into law. passed by the final version of the FDPA Con-

278 the 484, 493, jury’s special findings of supports 110 108 the S.Ct. 494 U.S. (1990)); factors, at Saffle, 415 494 U.S. aggravating L.Ed.2d of both existence the (stating gov that the S.Ct. 1257 110 jury nonstatutory, which the statutory and full fair “must not cut off ernment exist, the and we that found to conclude evidence; mitigating of but consideration support to is more than sufficient evidence to grant jury the the choice it need not special findings. jury’s the according to sentencing make decision caprice”). Congress own or its whims B. Norris G. Holder argu a statute which confines pass free to mercy jury’s to the consideration ments of Intent Jury Specific 1. Instructions'and final and in its mitigating circumstances the aggravating determination of whether argues jury that No. Holder instructions mitigat “sufficiently outweigh” the factors by finding 19 to require 15 No. failed was ing factors. We also note intent, jury specific that Holder had a prohibited urging jury to be not from rea, kill, or and therefore each mens con merciful in its deliberations in its apply his is invalid. We convictions mitigating factors. sideration of asserted in- same of review to Holder’s standard court stated as follows: district just applied structional error claims as we ruling by no the Court There will be penalty to Allen’s death selection instruc- mercy is a factor that cannot be Phelps, tion error claim. See F.3d Certainly jury nullification considered. 1230). Casas, (citing 999 F.2d at per- argued any argument be nor cannot beyond statutory So mitted scheme. turn first to Holder’s convic We it, the there’s no doubt about defense killing robbery tion for in which a bank precluded arguing that will not be from with agree occurs.15 the Sixth Circuit We may in its be merciful delibera- plain language of 18 U.S.C. tions. 2113(e) reject § is sufficient Holder’s 22-23.) (Trial Tr., XIX at these Vol. For challenge. plain “Because the language reasons, we conclude that the instructions 2113(e)] ‘kills,’ § says simply [18 U.S.C. adequately law given in this case state the ‘murders,’ ‘intentionally and not kills’ or not its and that district court did abuse principles the settled of construction direct by rejecting proposed discretion Allen’s [Congress] to conclude that not us did mercy instruction. intend to add an scienter re additional 3595(c)(1), § to 18 U.S.C. we Pursuant quirement killing component have addressed all of the substantive and Poindexter, 44 crime.” United States v. procedural by raised issues Billie Jerome (6th Cir.), denied, F.3d cert. appeal Allen’s from sentence of death. (1995). Thus, 1132, 115 S.Ct. 2009 We have also considered whether his sen- 2113(e) § conviction under for armed rob death imposed tence of under bery killing in which a occurs does passion, prejudice, or oth- influence finding an require specific additional arbitrary er factor and conclude Instead, intent to kill. is like statute imposed. was not so further have murder, carefully felony find no considered whether evidence common law (1994) ("Whoever, 2113(e) avoiding apprehension attempting 15. or See 18 U.S.C. avoid committing any any person punished ... ... be offense defined in this sec- ... kills shall by robbery imprisonment.”). tion or life violence] force or death [bank in the district court’s instructions to robbery error mission of the offense itself. See jury.16 Arizona, 624, 640, Schad v. (1991) S.Ct. 115 L.Ed.2d 555 (noting Holder’s reliance on this court’s decision that “intent to kill and the intent to com- in Delay, United States v. 500 F.2d 1360 felony mit a (8th were aspects alternative Cir.1974), of In Delay, is misplaced. single concept the of ‘malice argued defendant afore- the that his conviction ” law). 2113(e) thought’ § at common under was invalid because the government prove specific had to failed Next, we turn to Holder’s convic intent to kill in apprehen- order to avoid using tion for a firearm to cause another for robbery, sion bank but the court found person’s death during crime of violence.17 that there was sufficient evidence of that argues Holder that a conviction under 18 intent. See id. 1362-64. The real issue § 924(j) U.S.C. requires a jury finding of Delay presented was whether there specific intent to kill. The statute uses the sufficient was to show that the evidence “murder,” term than “killing,” rather killing was done committing the after specifically § refers to 1111 for the defini robbery in order being ap- bank to avoid murder, tion of which states that “[m]ur prehended, which was an element of the der is the killing unlawful of a human Although offense. the court assumed for being with aforethought.” Thus, malice appeal of that purposes specific intent 924(j) § kill conviction actually requires to was under an element of the' a find 2113(e), ing § crime under the of malice aforethought by jury. issue was not actually before the court and was never The district court’s instruction to event, any In Delay decided. does not required finding aforethought,18 of malice control the outcome in this case because argues Holder but that the district court’s Holder was convicted of killing while com- inadequate. definition was For several mitting offense, attempt an not reasons, reject challenge Holder’s Thus, apprehension. avoid Delay does § 924(j) instruction. holding, not bar us from in accordance foremost, First and the re plain language with of the statute and quirement of aforethought” “malice has Poindexter, ruling the Sixth Circuit’s been satisfied. We with the agree Tenth specific separate intent to kill is not a 1111(a) 2113(e). interpretation § Circuit’s in a § element offense under “[fjirst such felony murder, degree As common law case as this one that the in- supplied to kill by tent is the fact that murder is defined including any as murder killing occurred during premeditated violent com- is which either or committed 1111), required showing 16. Instruction No. 15 punished by defined in section be (1) bank, money defendant took from the by imprisonment death or term of (2) intimidation, by (3) force and violence life”). years or for insured, money (4) federally that the was offense, committing that "in defen- App. 18.See Instruction No. Holder's at 65 dant, person or a and abetted aided ("Four, killing Heflin was Richard mur- defendant, (Holder's killed Heflin.” Richard perpetration robbery. der in the of a Murder 63). App. at killing being unlawful aof human with aforethought Killing .... malice is done with 1996) 924(j) § See 18 (Supp. 17. U.S.C. II aforethought' who, 'malice if results from the (stating person "[a] in the course of a (c) violence], perpetration robbery of a bank violation of in which the subsection [crime person through causes the death of a defendant aware use of a of a serious risk of firearm, (1) (as conduct.”). killing shall if the attending is a murder death his risk of a serious aware Holder was the listed any of perpetration in the robbery is suf- armed attending robbery.” See death felonies, include which the conviction. uphold Sides, F.2d ficient States United denied, (10th Cir.), cert. the issue have addressed Thus, L.Ed.2d S.Ct. follows: 924(j), pursuant § under conviction well-established under 1111(a), valid a sub- proof of require does Malice finding that by a principles murder felony may be Malice to kill. jective intent the rob to commit intended the defendant of conduct by evidence established in the occurred killing a that bery and wanton, gross devi- and a and reckless is See, e.g., United robbery. of that course of standard a reasonable ation from (10th 480, Pearson, 485 159 F.3d v. States jury is a care, that such nature of is a term Cir.1998) (“[MJalice aforethought inferring that in warranted defendant definitions, includ has several of art which or death risk a serious was aware of of context, of proof felony murder in the ing, bodily harm. serious In felony.... specified the of commission 49, Elk, 51 F.2d Black 579 v. States United murder, there is felony of case typical the Cir.1978) (internal cita- and (8th quotations homi to the respect in fact with no malice added). omitted) (emphasis tions law.”) by the supplied cide; malice is the omitted); (internal citations and quotations Finally, assuming specific intent is 1219, 155 Nguyen, F.3d v. States United required for a conviction under either Cir.1998)(“The (10th statute 1229 2113(e) 924(j) both, § §or we find that 1111(a) any proof require does not ] [§ any error in the district court's instruc [djefendant intended than that intent other tions was harmless. See Neder v. United and that underlying felony the to commit States, 1, 8-15, 1827, 527 U.s. 119 S.Ct. in course of committed the killing was the (1999) (holding 144 L.Ed.2d 35 that failure 1167, denied, 525 U.S. cert. felony.”), that to submit an element of the offense to the (1999); 1086, L.Ed.2d 87 143 119 S.Ct. jury subject analysis); to harmless error F.3d Chischilly, 30 States United ("The Id. at 119 S.Ct. 1827 failure of Cir.1994) a “con (9th (noting that 1159-60 jury properly- the court to instruct the 18 U.S.C. under felony murder for viction by omitting whether an element of the enu of an the § 1111 commission requires by misdescribing offense or so it that it is mens requisite felony with merated effectively jury's removed from the consid ... under offense underlying rea for the harmless, eration-can be if the elements the commission charge felony murder guilt jury necessarily that the did find mal for substitutes underlying offense embraced the one omitted or misdes- denied, 513 U.S. aforethought”), cert. ice cribed.") (Scalia, J., concurring part in L.Ed.2d dissenting part). any and in We find error aiding to be harmless because the court's felony murder assuming the abetting Even and instructions on each count of support by itself to inadequate supply necessary specific rationale conviction in think the 924(j), § law, under a conviction tent as a matter of and in case the instructions require explicit finding requirement instructions an doubt beyond a reasonable specific find intent.19 guilty may be found also provided Defendant No. and No. 16 19. Instructions killing robbery in which of bank crime as follows: rationale, aiding abetting example, For Ninth Under the Circuit has held words, “necessarily following: in other Allen’s actions specific intent element. embraced” abettor, To be as an convicted aider and Nguyen, (finding See F.3d at 1226 must knowingly defendant have intentionally defendant of aided and prin- sufficient evidence convict abetted the cipals each abetting 924<j) essential element of aiding and murder under 2113(d) §a crime-To sustain convic- solely the fact that the based on defendant tion an aider and abettor felony, underlying intended to commit the circuit, the government must show that during victim was killed the commis- the defendant aided and abetted the felony, of that aid- sion and the defendant principal both in the act robbery of bank In killing). ed abetted the alter- principal’s dangerous use of native, specific supplied intent can be weapon or during device the act. finding Holder was “aware of a seri- Dinkane, United States v. 17 F.3d attending risk of his ous death conduct.” (9th Cir.1994) (internal 19.) 1196, (Instruction supra, quota- Nos. 16 and n. omitted). require tions This test would if, Thus, argues, the even Holder of an proof part to kill intention on the of abetting aiding improper- and instructions 2113(e) an aider and a abettor accused of require finding a that ly failed to Holder violation. Even under the stringent more intended to aid and abet each of element Circuit, adopted by test the Ninth howev- offense, including killing the the fact that a er, think we the here instructions were place, find the and aiding took that adequate they a required finding because adequate. See abetting instructions were that Holder was “aware of a serious risk of (“The Nguyen, F.3d at 1226 govern- 155 conduct,” attending death his and as ex- ment did need to that not show [defen- below, plained is there more than sufficient specific had to kill dant intent ... the support evidence to this finding. presented government also sufficient evi- 2. Aggravating Factors dence that and [defendant aided abetted killing....”). acknowledge We the challenges Holder the district showing of, fact that some courts a require interpretation court’s and the constitu of, knowingly tionality that a defendant and statutory aggravating intention- one fac ally tor—“grave aided and abetted the commission of risk of death”—and three non- aggravating statutory element of the aggravating offense. factors—“conduct charged he occurs as in Count I even if In order to aided and abetted have every constituting

personally not act did do commission of this crime defendant must: charged, the offense if he aided and abetted (1) using have of known that offense or robbery the commission of the hank carrying during a firearm and relation to killing which a occurred. In order to have robbery being a bank was committed or aided and abetted the commission of this committed; (2) going to be and have inten- (1) crime have defendant must: known tionally way purpose acted in some for the robbery being go- bank committed or causing, encouraging, aiding or of com- committed; (2) ing to be and have know- using carrying of or of a mission firearm ingly intentionally way and acted in some during robbery and to a in relation bank purpose causing, encouraging, for the of that Richard Heflin was murdered in and aiding robbery the commission the bank of (3) robbery; perpetration of that and robbery, and in the course of such bank of a risk of have been aware serious death killed; (3) Richard Heflin was have attending his conduct. been aware of a risk of at- serious death 66, (Holder's App. respectively.) at 64 and tending conduct. his 786 971, 512 114 Tuilaepa, than sion. See U.S.

substantially greater degree defini crimes,” eligible To for the death dangerousness,” “future S.Ct. 2630. be tion of trier fact must find at least penalty, We review a of criminal acts.” “other circumstance, must constitutionality aggravating par of a one challenges sufficiently that it would district narrow aggravating ticular factor and the be murder, everyone convicted of statutory aggra apply of interpretation court’s Ward, unconstitutionally must not be vating factor de novo. See Ross v. (10th denied, Cir.), vague. Id. at 114 S.Ct. 2630. Once 165 cert. F.3d eligible for defendant is determined to be 120 S.Ct. L.Ed.2d (1999); next is penalty, 165 the death consideration Whiting, United States v. Cir.1999) (8th (reviewing an individualized determination wheth- F.3d er, on the character of the individual interpretation court’s federal based district novo). crime, For chal- and the circumstances statutes de constitutional however, re- receive a sen- lenges vagueness, eligible on defendant should based quite view we must tence of death. Id. deferential because rely principle on the “basic factor begin with Holder’s claim if not unconstitutional it has some com- statutory “grave aggra risk of death” core meaning monsense criminal vating unconstitutionally factor20 was juries capable of should be understand- vague large class encompassed too Tuilaepa, ing.” 512 U.S. at The district court instruct defendants. (internal quotations and alterations “grave risk of death” ed omitted). challenges also Holder the suffi- significant pos meant “a and considerable ciency support the in the of evidence of sibility the under circumstances that exist aggravating first two factors listed above. person ed at that time that another could sufficiency The of review of standard for (Govt.’s 52-53.) App. killed.” at We be whether, viewing the is the evidence when presen no in find error the district court’s any evidence and reasonable inferences tation this factor the aggravating of to light in to therefrom the most favorable jury. “Possibility” adequately defines government, the a trier fact rational of “significant “risk” and and considerable” could have found the factor aggravating adequately “grave” defines such that the beyond a reasonable See doubt. Jackson jury capable understanding of the was Virginia, v. meaning core of the statuto commonsense (1979); Tipton, 61 L.Ed.2d 560 90 ry aggravating Tuilaepa, 512 factor. See (applying F.3d at 896 Jackson standard Thus, at 2630. there is S.Ct. aggravating insufficiency of evi- factor the vagueness problem. no constitutional Fur claims); McCullah, dence 76 F.3d at thermore, aggravating we find this (same). interpreted by factor as the court district previously sufficiently

As we explained, have narrows the class of defendants eligible penalty. per there two in the the If inquiries are different for death no capital decision-making the the process under son besides victim and codefend- death, Eighth FDPA and the at or if risk put Amendment: ants are risk of eligibility not a “significant possi- decision the selection deci- and considerable fense, ("Grave 3592(c)(5) knowingly grave § 20. of a See 18 U.S.C. Risk created risk of death defendant, Death To Additional Persons.—The persons or to 1 more in addition to the victim offense, escap- in the commission of the or in offense.”). of the ing apprehension for the of- violation of the not turn bility,” then a defendant would be eli We then to first of Thus, penalty. the death this gible challenges for nonstatutory Holder’s to his complies aggravating factor with the aggravating factors.21 The jury found Ross, 165 Eighth Amendment. See F.3d that in committing Holder’s “conduct (citing Reynolds, at 800 Brecheen substantially offense greater was de (10th Cir.1994)). 1343, 1360 F.3d gree than that described the definition crime, apart statutory ag from the reject claims We also Holder’s (Holder’s 94.) gravating factors.” App. sup that there is insufficient evidence to Holder argues this factor is unconsti port finding a factor that the tutionally vague. disagree. aiding on an jury impermissibly relied “substantially greater in degree” lan abetting principle based on Allen’s conduct guage, combined with the district court’s only rather than Holder’s conduct to find jury statutory submission of this factor. Our review of existence elements of each to which offense Holder us that the record convinces there is suffi convicted, provided was suffi evidence, independent cient of Allen’s ac cient meaning common-sense core tions, juror for rational to find Holder aggravating factor that it capable guilty beyond reasonable doubt creat understanding and applying. The relative ing grave risk of death one more of a seriousness crime is a factor that is persons. primarily responsi Holder was routinely taken into sentencing account planning robbery ble for was sole See, e.g., courts. United States Sentenc ly responsible procuring the two sem Guidelines, ing (allowing up 5K2.0 an rifles, vest, bulletproof iautomatic and the “if departure present ward the factor is actually hollow-point ammunition used degree substantially excess of during robbery, to mention the ordinarily involved the of shotgun getaway. for use during Even added). evidence, fense”)(emphasis We therefore importantly, more when find vagueness problems ag no with this light viewed in the most to the favorable gravating factor. government, supports a that Hold finding actually er the discharged Russian SKS sufficiency for the evi As of the the during

rifle five times inside bank the factor, in of support dence our review employees with bank robbery numerous (See Tr., that record convinces us the circum present. and customers Trial 127-47.) Thus, killing stances of the this case were Vol. V at we find sufficient jury enough of for a to find that the conduct support evidence Holder’s conduct to (and Allen) his and jury’s finding statutory aggra the of this of Holder aider abettor vating substantially greater degree factor. than was not, however, (“We challenges nonstatutoiy spe- 21. Holder two of the 119 S.Ct. 2090 have aggravating being cifically [non- circumstances as over- considered what means for a already statutory] broad. Because we have established factor to be when it is overbroad statutory aggravator, only purposes important the existence of a for selection .... So valid making eligible penalty, long [nonstatutoiy aggravating factors] Holder for the death as are nonstatutoiy only aggravators jury used the the cir- bear on the to direct to individual process. individualized The non- cumstances of the case ... we do not think selection statutoiy clearly they way aggravating here di- that in a of- [are] factors overbroad that J., Constitution.") (Thomas, jury rected the to the individual circum- writ- fend[s] Justices). they reject ing We stances of case and therefore do not for four therefore challenges inadequate narrowing being offend the on the of Holder's to Constitution basis Jones, 401-02, nonstatutoiy aggravating overbroad. See 527 U.S. at factors. given has been notice for which factor There were the crime. of definition little exists”). Furthermore, have sem- including two involved firearms three society to dangerousness that future had doubt rifles; and Allen Holder iautomatic inmates and other officials prison am- to of and hundred rounds two approximately to the is relevant point during hollow incarceration munition, was of which most a whether of final determination jury’s inflict more seri- to designed ammunition ammunition; imposed. See should be six- death sentence regular than wounds ous Ramos, 1002- the bank inside were fired teen shots California (1983) Hef- 77 L.Ed.2d besides employees 103 S.Ct. least three bank at rely hit; well may was consider Holder a state (holding almost that lin were dangerousness be Heflin would future security guard upon that a defendant’s aware sentence). carrying a death uniform to seek in its decision the bank at rob- armed time of the during the weapon Supreme on reliance Holder’s eight at least shot bery, and Heflin v. South Car- in Simmons decision Court’s stolen for times; vehicles were and two 154, 178, See 512 U.S. misplaced. is olina vehicles, of one getaway as use (1994) L.Ed.2d containing live rounds fire while on started future asserts (holding when state that sum, is sufficient In there ammunition. imposing for grounds dangerousness finding. jury’s support to evidence sentence, requires that process due death remaining the two turn to Finally we jury inform be entitled a defendant factors—future nonstatutory aggravating J., (O’Connor, ineligible) parole he is acts— and other criminal dangerousness Simmons does judgment). concurring He asserts by Holder. challenged is irrel- dangerousness future not hold that at odds with independently factor each decision, sentencing jury’s final to a evant Constitution, and that FDPA and jury narrowly rather holds but support evidence was insufficient there possibili- no there is must be informed also Holder factor. finding of either dangerousness if future ty parole factors that, together, taken argues factor. The aggravating an presented as impermissi- and therefore duplicative are informed properly in this case was impose jury’s decision bly skewed the (See parole. ineligibility Holder’s sentence. death 67.) in prison A defendant App. Govt’s prison officials and a risk for life is still danger the future begin with inmates, though a life even to other factor. nonstatutory aggravating ousness parole possibility sentence without duplication First, danger little there is danger to soci- the future greatly reduces factors be statutory aggravating with defendant, is there particular ety from that nowhere dangerousness future cause might that defendant statutory still chance in list of sixteen mentioned pardon or receive escape prison from for See homicide. aggravating factors The evidence 3592(c) (1994 of sentence. commutation FDPA, § 18 U.S.C. planning and extraordinary Second, here showed 1996). given the broad II Supp. of Holder. the part on little remorse to the allowance FDPA as language of the government assert- that the factors, argues there Holder aggravating nonstatutory danger he would be only that why future ed FDPA no reason under danger be a that he society but not would to the presented cannot be dangerousness jury was informed 3592(c) (“the in may prison. ... Because jury § See id. jury. find no parole, we his ineligibility aggravating other whether consider

789 (See States, drawing 738, 747, basis for such a distinction. 511 United U.S. 114 S.Ct. Tr., 1921, (1994) XII (arguing also Trial Vol. at 176 128 L.Ed.2d 745 (stating that specifically during closing argument upheld that the Court has constitutionality considering unadjudicated danger prison Holder would be a criminal be reasons, York, havior in guards).) For these we find no Williams v. New 337 U.S. 241, 1079, (1949)). 69 S.Ct. statutory problems or constitutional with 93 L.Ed. 1337 Oklahoma, 1447, See also Hatch v. arguing capital to a 58 F.3d sentencing jury the (10th Cir.1995) 1465 nonstatutory (noting that aggravating although factor of future the Court has subsequently called dangerousness support in into death sen- Williams, logic doubt some of the tence. Court has not called into doubt the essence turn next We Holder’s chal holding unadjudicated of its that crimes lenges to the “other criminal acts” nonstat may constitutionally be in im considered utory aggravating factor. Holder first sentence), denied, posing a death cert. 517 contends because six of the sixteen 1235, 1881, U.S. 116 S.Ct. 135 L.Ed.2d 176 statutory aggravating in factors listed (1996); Zant, 1445, Devier v. 3 F.3d 1464- 3592(c) § of the FDPA are prior based on (11th Cir.1993), denied, cert. 513 U.S. acts, criminal FDPA precludes using 1161, 1125, 115 S.Ct. 130 L.Ed.2d 1087 prior criminal nonstatutory ag acts as a (1995); Lynaugh, Williams v. 814 F.2d gravating disagree. factor. We As noted (5th Cir.), denied, 207-08 cert. previously, FDPA specifically allows U.S. 108 S.Ct. 98 L.Ed.2d 270 “any aggravating other factor for which (1987). given.” notice has been 18 U.S.C. disagree with Holder’s assertion 3592(c). addition, In the use of criminal Supreme Court’s decision John- history in sentencing long has been an Mississippi, son v. accepted practice, penal even the death (1988) 1981, 100 L.Ed.2d 575 controls this See, ty e.g., Tuilaepa, context. at U.S. Johnson, In issue. the Court reversed a 976, 114 (upholding prior S.Ct. 2630 use of prior death sentence in which a assault Zant, activity factor); criminal sentencing conviction was used as an aggravating cir- (stating 103 S.Ct. 2733 cumstance, but crucial to the decision was “[n]othing in the United States Con prior the fact that the conviction for as- prohibits stitution judge a trial from in sault had been overturned and no evidence structing that it appropri would be relating to the assault itself had been in- ate to take prior account of a defendant’s troduced as evidence in the death sentence criminal in making sentencing record its case, only establishing the document a con- determination”). “Both a backward-look viction, which had subsequently been re- ing forward-looking and a inquiry are a versed. Id. at Supreme 585. The Court’s permissible part of sentencing process simply apply decision Johnson does not Tuilaepa, ....” U.S. at S.Ct. to the situation at hand. Furthermore, points 2630. Holder to no precedent support authoritative federal argues Holder also the other of his assertion that use of this factor criminal improperly duplicates acts factor fact, violates the Constitution. In dangerousness the Su the future factor. As a preme Court that sentencing general legal proposition, has noted strong there is courts have “considered a past support argument aggra defendant’s for Holder’s that behavior, criminal even if no vating duplicate conviction factors that each other resulted from that impermissibly jury behavior.” Nichols v. can skew a in favor of

79 0 Jones, Jury 3. Dire 132 Voir imposing a sentence. See death (“ counting ag of F.3d at 250-51 ‘double to right The Sixth Amendment factors, a especially under gravating an right a the to trial jury trial includes scheme, tendency has a weighing skew Norris, v. 153 impartial jury. See Pruett process and creates a risk weighing the (8th Cir.1998). 579, F.3d 584 review “Our imposed the be that death sentence will judge conducted [a] of whether district ”) thus, arbitrarily unconstitutionally’ and way protected voir in a defen [a dire 1111); McCullah, Tip 76 F.3d at (quoting right a fair Sixth Amendment dant’s] ton, with the (agreeing 90 at 899 of jury F.3d and is limited to an abuse impartial Granados, in Tenth Circuit McCullah double United States v. discretion.” (8th Cir.1997) (citing of 117 F.3d 1092 counting aggravating factors constitu 748 Spaar, United States F.2d error, finding the error tional but Cir.1984)). (8th doubt). 1253 See also United a beyond harmless reasonable (8th Blum, 65 F.3d 1442 States v. Jones, But see S.Ct. Cir.1995) (holding that a district court’s (“We have never before held that jurors for should refusal to strike cause duplicative factors could so aggravating be only if the demon be reversed defendant invalid, constitutionally as to render them denied, prejudice), cert. actual have on “double passed nor the count strates. S.Ct. L.Ed.2d theory ing” .... What we have said is that impermissi- weighing process may be sentencing jury if bly skewed the considers the day On the district court be J., factor.”)(Thomas, writing an invalid for trial, gan jury selection for Holder’s Justices). four We need not reach the jury Allen to Allen’s reached decision as legal duplication issue of whether requires lunch for During sentence. recess sentence, reversal a death whether selection, court Holder’s district harmless, duplication in error this case jury’s sentencing the Allen deci received no duplica because we find there is sion. Audience in Allen members in aggravating tion of factors this case. courtroom reacted to verdict with Although of the of prior some evidence loud, included emotional outburst which criminal can support finding conduct crying. screams and Several members of future think the dangerousness, we factors panel, the Holder venire some of whom sup themselves and evidence used to hallway were outside the port finding of each factor this ease and in the courtroom others whom were sufficiently different that there were is no courtroom, nearby Holder heard this emo duplication prior problem. The criminal tional im reaction. The district court was past conduct factor focused on the and was mediately exposure informed (cid:127) acts, supported bj^ past criminal while actions, including took several remedial dangerousness future factor focused on the general voir dire in questions, general supported by future and was evidence of jurors reminding struction to avoid poor performance during Holder’s proba disregard anything seen or outside heard tion, go through his courtroom, refusal turn specific individual voir around program, his lack remorse. questioning dire out about emotional circumstances, jurors Under these we find no bursts. Three and two alternates ultimately subpa- error the district court’s submission of from were selected nonstatutory aggravating argues each these nel. Holder that the district court jury. failing factors its abused discretion to strike cause the entire and in panel failing to by due to a failure the to impose a jurors strike individual who had heard the Thus, death sentence. the emotional out- emotional outbursts. ambiguous, burst was and combined with the district questioning court’s during gen- We find no abuse of discretion eral voir dire and instructions to disregard the district handling- of court’s voir dire anything learned verdicts, about the Allen respect with to the emotional outburst the district court was well within its dis- from the Allen courtroom. cretion denying Holder’s motion to it during Whenever appears the course strike entire subpanel. the of a trial that jury- the members of the - may exposed have been publicity to We are also convinced that the defendant, which is to adverse the the district court’s individual voir ques dire judge trial must make an initial determi- tioning procedures and were sufficient to nation as to whether the cre- publicity any uncover prejudice the from incident. ates a danger of substantial prejudice to Every subpanel who member was seated the accused. If the trial judge deter- juror as a in this case was specifically does, jurors mines that it the should questioned about the incident out of the polled then be individually to determine presence of the other members. Defense they whether have fact exposed been agreed counsel to questions the asked of prejudicial to the information. any If the subpanel members had oppor jurors have exposed, been so trial tunity to ask follow-up questions, and the judge must ascertain the extent and ef- district judge every juror excused who infection, fect of measures, and what knew had been given sentence including possible of a declaration of death. Holder has also fallen short of mistrial, must be taken to protect proving prejudice sufficient or even a suffi rights of the accused. cient likelihood that the district court’s Dixon, States v. United 913 F.2d voir questioning dire procedures were (8th Cir.1990). with, begin To there inadequate to possible prejudice. discover nowas abuse of in deciding discretion not Furthermore, even if jurors some of the strike subpanel. In entire the cir- assumed, outburst, based on the emotional case, cumstances of this the emotional out- that the death penalty had imposed been bursts from nearby courtroom did not Allen, they on necessarily are not automat present a significant possibility of preju- ically disqualified long as they cause as dice to Holder. Nineteen members of the can lay any impressions aside or opinions subpanel said they did not hear anything and render a verdict based on the evidence nearby courtroom, from the presented in court. See Murphy Flori subpanel fourteen members who they said da, 794, 799-800, S.Ct. outbursts, heard the most were sure not sum, L.Ed.2d In questions words, what caused the In outburst. other posed to Jurors 309 and 322 and by it others was not clear that the emotional out- jurors’ district court and replies by bursts were caused sentence hand- questions those Allen, down to convince us that opposed ed Holder to some has other defendant or to show either losing party, preju failed actual even if some of the dice or insufficient subpanel procedures. voir members attrib- dire case, uted the reaction Allen’s We are therefore confident Holder clear whether the reaction was due the was convicted and a jury sentenced jury’s imposition a death sentence met impartiality fairness and stan- health their inmates with and assist ries Amend- under the Sixth required

dards concerns? ment. times a month three About 310: Juror dis that the argues Holder also through- jails and prisons in several failing its discretion court abused trict States, yes. the United out twenty of subpanel cause for to strike you And said about Counsel: Defense 310’s to Juror exposed were

jurors who times month? three life inadequacy of regarding comments times, I travel yeah. Three 310: Juror following The punishment. prison as week; three two, days a three about voir dire: during exchange occurred a month. times any you Are there Counsel: Defense Okay. just Defense Counsel: Let me imprison- a life that do not believe who ask- possibility release ment without care provide health 310: We Juror probably You punishment? sentence inmates. Yes. those good too say, “Prison’s people all heard in ev- you been Have Counsel: Defense Anyone punishment.” It’s not for him. States? the United prison across ery Sending someone way? that feel probably about No. Just 310: Juror life rest his for the prison or so. Yes, sir. 310? punishment? op- had an you Have Counsel: Defense Having many Juror 310: 310. been in condi- to observe the yourself portunity of these institutions for work- in the cells day-to-day living tions Clarify that. Defense Counsel: the inmates? modules of Yes, I have. 310: Juror guards. [310]: Juror I talked to the conclusions your And guards say, know, Counsel: Defense ["]You And the these from has been you heard what have guys got They've got paid on it made. to at the TV, they you’ve talked g-uards other wors[t] cable and the can prison? do-["] Oh, things 101-02.) 13, 1998, Ju- (Trial Tr„ at Juror 310: no. There's Mar. somebody point by cut off at that I see. And I realize that who 310 was ror is, say- conference let's sidebar judge district Let’s end it a minute. Wait Court: de- judge denied district held. The was privately, want to talk you If there. sub- motion that entire counsel’s fense it up. [take] will suggested discharged, and panel be 103-04.) for 310 on (Id. twenty potential Juror questions further Of presence of asked outside the who heard these subpanel issue be jurors on the counsel insisted jurors. comments, ultimately Defense on Holder’s other sat eight in front questioning for that further later struck cause 310 was jury. Juror necessary to minimize subpanel argues jury. entire Holder not sit on the and did jurors by other jurors to the possible prejudice potential twenty of that all for 310’s state- discrediting the basis Juz-or cause. dismissed have been should exchange oc- following then ment. in the no of discretion find abuse curred: the entire to strike court’s district refusal hearing after above sir, that, jurors us, subpanel told You Defense Counsel: Initially, the 310. dis- by Juror comments ... employment some- part your cut short Juror 310’s properly trict court penitentia- into you’re go times called comments, point only at which the com- required As Rule the dis by subpanel ment members had trict weighed heard court probative the value of prisoners that have free televi- the autopsy some cable victim photographs against the juror sion. that an average likely has possibility prejudice Given of unfair to Holder. already heard statements like performed this before The district court a separate courtroom, given outside the analysis ev- Rule 403 for each of the four juror ery by other indicated challenged their silence photographs they as were en prison life in punish- did constitute tered into evidence found that the ment, potential prejudice probative the to Holder of value each photograph out based on this lone comment is weighed so attenuat- any danger prejudice. of unfair ed that there is no doubt the district The district court specifically found that court not reject- did abuse its photographs discretion the were needed to refresh ing request to dismiss the Holder’s entire the of recollection the medical as examiner subpanel. by testified; The additional questioning he that the one-dimensional dia backfired, attorney may Holder’s own have gram was not adequate trajec to show the may strengthened bullets, have tory 310’s Juror the exact location of credibility by showing per- wounds, the entry substantial and exit or the extent of the experience injuries; sonal which formed the basis of admitting that not photo the opinions, his graphs but these state- jury; additional would confuse the and that establishing ments do not come close to photographs the were not a of waste time prejudice basis for sufficient to demon- or a presentation of needless cumulative strate an of by abuse discretion district the evidence. court. We therefore the conclude Having photographs, examined the we district court not did abuse its discretion agree with district the court that au- respect

with of its voir dire deci- topsy had photographs proba- substantial sions. they tive value entry because showed the bullets, angles of the the locations of each Autopsy Photographs 4. wound, and injuries the extent of the challenges Holder the ad by point caused the hollow bullets. The missibility graphic photo of four autopsy photographs important were therefore an graphs. respect photo With to autopsy aid to the witness deter- graphs under Federal Rule of Evidence mining positions the relative of the victim fired, and the shooters as each shot was trial court has [a] discretion to admit a key during which was issue the trial photograph relevant unless it is so directly on the impacting culpability of gruesome or inflammatory prej- that its each defendant. photographs The were impact udicial substantially outweighs probative also aspect intent —another probative its value. A district court has culpability by showing each defendant’s — ruling broad discretion when on the ad- damage by extent of caused the choice missibility of evidence. We not re- will using point hollow ammunition during verse the district court’s re- decision robbery. probative The value of these garding admissibility of evidence photographs is confirmed the fact that absent clear abuse of discretion. jury specifically requested photo- Hester, v. graphs United States during sentencing F.3d its deliberations. (8th Cir.1998) (internal Moreover, quotations and cita- autopsy photographs, omitted). tions depict each individual wound rather than in- body victim, property how that are un mines whether and entire explained fairly As this court prejudicial. terest can be attached. Davidson, “[t]hough United States First, agree with Holder graphic, autopsy photographs were jurisdiction hear that this court has gruesome photos, [ ] less than crime scene restitution challenge the district court’s they helped explain testimony is a criminal order. restitution order performed autopsy.” who

[the doctor] monetary penalty part which is of the (8th 531, Cir.1997), 122 cert. F.3d 538 de against Holder, proceeding criminal nied, 1034, 639, 522 U.S. 118 139 S.Ct. parallel thus is not civil action. See 18 (1997), and 523 L.Ed.2d 3663A, §§ and 3664 U.S.C. 1329, 140 S.Ct. L.Ed.2d 490 For 1996). Second, reasons, II the notice of (Supp. in these addition to reasons appeal court, challenging Holder’s conviction and by set forth find no district we discretion, any let did not district court of abuse of alone clear sentence divest the discretion, jurisdiction clarify in the abuse of district court’s to its restitution order photo autopsy discovered, to admit the four decision information additional gunshot graphs showing the victim’s separate need file a thus Holder not wounds. appeal from clarified restitution order. Third, government does cite

5. Restitution authority in persuasive support of its claim Finally, argues Holder participate that district that Holder’s to in the failure by court as a matter of holding phase erred law sentencing restitution of his that proceeds from his settlement from a right to a of to amounts waiver his contest past garnished in lawsuit could be order to legality the court’s final restitution judgment satisfy the court’s that restitu- reasons, judgment. For we these have Heflin, paid family tion to the Mr. be jurisdiction to address the merits Hold Trust, Bank & Lindell and other victims. challenge er’s to court’s restitution or law, Holder asserts that state not federal der.

law, property determines whether can be circumstances, In these

attached, and Missouri is that law clear legal think principles are clear that that the terms of settlement contract property law determines state whether determine whether that settlement can be instance, exists interest in the first but by government attached creditors. The federal law whether how determines jurisdic- counters this court without that property may be attached. “Once tion hear to challenges to Holder’s has been determined state law creates order restitution because Holder waived taxpayer sufficient interests to satis appeal by his right fading participate fy requirements of the federal tax lien phase restitution sentencing, his provision, is inoperative pre state law by file fading separate appeal notice of order, by vent the attachment of liens created from the restitution and because the federal statutes favor of the United order an independent restitution civd States, Drye States.” v. United part matter is not the criminal 49, proceedings against S.Ct. 145 L.Ed.2d 466 govern- Holder. The (1999) Bess, (citing argues ment also that the States v. district court’s United 51, 56-57, 1054, 2 decision was correct on the merits because U.S. L.Ed.2d (1958)); although state law a 1135 id. at determines whether see 78 S.Ct. 1054 exists, property interest (holding right property federal law deter- that the to disclaim state law 2113(e) under not defeat a lating § does federal U.S.C. and his convic- tax lien taxpayer because the exercised tion and sentence of death violating 18 over the disposition proper- control 924(j)(l) § U.S.C. hereby affirmed, are ty). There is little doubt under Missouri Norris G. Holder’s convictions and sen- property law Holder has a interest— tences of death for violating both 18 U.S.C. fact, the sole property interest —in the 2113(e) § § and 18 924(j)(l), U.S.C. as well remaining proceeds from the settlement. as the district court’s order requiring Thus, federal law determines whether that pay Holder to victims, restitution to the can property now satisfy be attached to are also affirmed. restitution, order for federal and it is clear statutory from the provisions judgments cited of the district court are district court that Holder’s pro- settlement affirmed. can be attached. See 18 U.S.C.

ceeds 3664(n) 1996) (Supp.II, (stating that a ARNOLD, RICHARD S. Judge, Circuit person pay ordered to restitution shall be dissenting. required apply to the any value of “inheri-

tance, settlement, judgment” or other to I respectfully dissent.

any owed); restitution still 18 U.S.C. 3613(c) 1996) § (Supp.II, (treating or- an A.

der of § restitution under 3664 as if it were a tax hen enforceable under the In- I Mr. believe Allen’s confession is inad- Code). ternal Revenue Holder had a missible. The facts are undisputed. Mr. property interest in the pro- settlement Allen was arrested at approximately 2:00 law, under ceeds state property the can be Tuesday a.m. on a and brought police to a by lien, attached a federal tax and thus we interrogation room. At approximately find no error in the district court’s order a.m., 4:00 requested he appointment the of garnishing Holder’s proceeds in settlement counsel. Questioning stopped, but no at- pay to order restitution to the victims. tempts point were made at that to secure Pursuant 3595(c)(1), to 18 U.S.C. hour, counsel. Given the I say cannot have addressed all the substantive and this was unreasonable. procedural issues by raised Norris G. appeal Holder’s the from sentences of Mr. kept Allen was in the interrogation death. We have also considered whether room handcuffed a to table for the remain- his sentences of imposed death were under der early morning. the At approxi- the passion, influence of prejudice, a.m., mately 8:00 the police asked Mr. arbitrary other factor and conclude that if, light Allen request counsel, his for they were not imposed. so We further blood, he was willing provide still to hair, carefully have considered whether the evi- samples, and saliva as he had previously supports dence the jury’s special findings would, he agreed. indicated and he By of the existence factors, of the aggravating a.m., 9:00 or certainly by a.m., 10:00 statutory both nonstatutory, which the should been have feasible to take steps the exist, found to and we conclude that necessary to honor Mr. request Allen’s for the evidence is more than sufficient to counsel. This was not done. jury’s support special findings. Instead, a.m., at approximately 10:10

III. Conclusion police approached Mr. Allen again and reasons, For foregoing Billie asked him to participate lineup. Jerome Allen’s conviction and life sentence police for vio- Mr. previous reminded of his Allen statements and his waiver executes to agreed Allen Mr. counsel. for

request tradi- voluntary under considered be pres- would lineup without in the participate Wisconsin, v. McNeil lineup, the tional standards.” After of counsel. ence 2204, 115 out that three Mr. Allen informed police the scene him at placed had L.Ed.2d witnesses four then Allen stated Mr. the crime. for which the proposition with agree I he officer police talk to to

he wanted Payne, States cites United the Court not been counsel had knew, though even Cir.1992): (4th After 199, 203 F.2d proceeded then Mr. obtained. counsel, right his invoked has suspect police officer. confess to regarding police all statements only one conclu- can lead These facts him against nature of evidence for request counsel Mr. Allen’s sion: aas interrogation a forbidden constitute once explains, Court As the not honored. Rather, circumstances of law. matter to deal a desire expresses an individual Payne, In must be examined. case of each counsel, the through only police with arresting suspect told the example, de- interrogate the further may not police coun- to consult with he wished agents made been counsel has “until fendant attorney by tele- with his spoke He sel. him- him, unless accused available con- he agents would told phone, and communication, ex- further initiates self speaking before person with counsel sult police.” with the conversation changes, or com- was processing When them. with 484-85, Arizona, 451 U.S. v. Edwards to anoth- by car transported he was plete, L.Ed.2d 378 68 101 S.Ct. ride, in agent an During the er location. rule is “stringent” of this purpose The had handgun a call that the car received “scrupulously honor” officials ensure that suspect’s residence. the found been custody, who has in an right the accused who suspect, this to the agent told The counsel, to the assistance requested gun protec- for that he had the then stated an attor- cease until interrogation all have Payne not sub- was Noting Mr. tion. Arizona, 469 v. James present. ney is influences, psycho- “compelling jected L.Ed.2d S.Ct. the questioning,” or direct ploys, logical (Brennan, J., from (1984) dissenting statement suspect’s held the Court certiorari). denial was admissible. includes in this context Interrogation is dif- present case the The situation (other than ... or actions “any words counsel request Allen’s for ferent. Mr. and normally arrest attendant those day time of when beyond the ignored was know are should custody) police that the him. for to secure counsel it was feasible incriminating an likely to elicit reasonably Mr. Al- contact with reinitiated police The Rhode Is- from the defendant.” response attempt was times before several len Innis, 291, 301, v. 446 U.S. land counsel. request his for made to honor (1980). If, the after 1682, 64 L.Ed.2d 297 lineup in a that he request participate The invoked, the been to counsel has right four out of that three the statement in the ab- “initiate an encounter do police him after occurred had identified witnesses (assuming there has been of counsel sence a table chained to had been Mr. Allen suspect’s state- custody), no break n seven hours— interrogation room involuntary and presumed ments are counsel. after he asked for and five hours evi- as substantive inadmissible therefore police were apparent It suspect seems trial, even where dence at weaken, hoping Mr. Allen would which is fendant’s confession obtained the next exactly what occurred. however, day, was held to be admissible lapse because of the in time from im- inquiry

The focuses its on wheth Court permissible interrogation to the confes- by police er the statement to Mr. Allen During time, sion. this the defendant that witnesses had identified him in the speak had a chance to stepfather to his lineup “interrogation.” constituted an urged no who him analysis Court makes mention its to wait until attorney his request by police that Mr. Allen could be sleep contacted and to on it. participate lineup in a pres without the 212 F.3d at 417-20. Even under those above, ence of counsel. As stated this facts, the Court found question to be request by police was initiated hours close, Judges one of the dissented. Mr. requested after Allen had counsel. I Id. at 421-22. Here, course, there was request believe it is clear that lapse no of time police between the tell- Oregon under Edwards. impermissible Cf. ing Mr. Allen that he had been identified Bradshaw, 1039, 1045-46, lineup in the and his confession. (1983) S.Ct. (sugges L.Ed.2d 405 Mr. right Allen’s to counsel was not -by police tion that suspect poly take a “scrupulously honored.” His confession graph by examination and statement ex was tainted unconstitutional conduct suspect aminer he did not believe did and was Although inadmissible. other evi- violate Edwards because suspect, crime, dence linked Mr. Allen to the police, not the had initiated further conver admission of his confession was not harm- sation about investigation after he had beyond less a reasonable doubt. counsel). Accord- requested ingly, he is entitled to a new trial. I would The two cases from our Circuit relied reverse. upon by Court, United States v. Williams, (8th Cir.1998), 136 F.3d 547 Kemna, (8th

Holman v. 212 F.3d 413 Cir. B. 2000), support offer no position, for its and I also Williams, actually regard dissent with to Mr. undermine it. In Hold- er’s Court assumed that an convictions and I officer’s statement sentences. believe that the defendant had been in that the Court errs in identified its conclusion with was an “interrogation.” lineup However, regard jury I, to the instructions on Count because the previously 2113(e). defendant had not charging § a violation of 18 U.S.C. Miranda any asserted of his rights, his provides, “[w]hoever, This section in com- statement after “interrogation” that mitting robbery] bank ... person [a kills a coerced, he wanted to talk was not and his ... ... punished by shall be death or life subsequent statements were admissible. imprisonment.” Under the instructions in 136 F.3d at 553. dispute Here there is no case, Mr. Holder’s jury permitted was that Mr. Allen had right invoked his to guilty just to find him not a principal, as counsel. but also as an aider and abettor. The Holman, that Court holds a conviction as an aider

In we also assumed that a and abettor under police this statute does not officer’s visit to the defendant’s cell require finding specific of contacting without intent to aid the defendant’s attor- ney, killing, only specific to inform the and abet the but of defendant that his confessed, Ante girlfriend had robbery. would be an im- intent to aid and abet the proper interrogation. custodial The de- at 783.

798 Norris, 21 v. Fairchild culpable conduct. by the Ninth taken position

I believe Cir.1994). (8th In the con- 802 one. F.3d is the correct on this issue Circuit 2113(e) murder, Supreme Court felony of § under text charged accomplice An felony in the “major participation in the held both principal must aid and abet committed, reckless indif- combined with “It not killing. in is robbery bank life, to satis- sufficient to human is defen- ference jury to find enough for the Tison culpability requirement.” ... robbery fy a bank dant aided abetted Arizona, 137, 158, 107 S.Ct. v. States killing occurred.” United which a (9th Cir.1982); 1676, L.Ed.2d 127 95 Jones, 678 F.2d v. Dinkane, 17 v. F.3d States United Holder’s in Mr. jury instructions The Cir.1994) (same (9th ap- reasoning The in- of this standard. case short fall 2113(d) during § assault to plied —-armed require I structions on Count did robbery); United of bank commission regard state with to of mental finding (9th Short, F.2d v. States II, the regard to Count killing. With Cir.1974) (same); v. also States see United “[k]illing is done instructed that was (5th Cir.1978) 422, 425

Longoria, 569 F.2d if it results from aforethought’ with ‘malice ap- v. Short with States (quoting United robbery of a bank perpetration charge aiding of applying it to a proval and aware of the defendant which the drugs with abetting possession attending his con- risk of death serious distribute). the intent risk of death” is “Aware of serious duct.” strengthened Jones position This than stringent “reckless a less standard States, United Being aware to human life.” indifference (1999), 1215, 1220-21, 143 L.Ed.2d 311 attending one’s conduct risk serious beyond argument which establishes We know that gross negligence best. 2113(e) killing §in of a factor the relevant to the level does not rise gross negligence of the offense is an essential element in tort disregard or indifference of reckless own Mr. was convicted. Our Holder Namanny 219 F.3d Hunter v. law. See sup- also Jury Instructions Model Criminal (8th Cir.2000). These standards model argument. Mr. Holder’s port certainly equivalent not be seen should robbery in instruction for bank violation jurispru- death-penalty context 2113(d), comparable § which is 18 U.S.C. Accordingly, I would reverse dence. 2113(e) an except applies Holder’s directions that Mr. remand with robbery rather during the armed assault prison changed be life death sentence sepa- assault killing, than a lists the parole. without de- the offense which the rate element of I clear must believe the fendant commit. required for intent

implication for the ele- as well as first

this element robbery.

ment —the case, death-penalty this is a

Because

other, compelling, principles even more on

mandate that Mr. Holder’s sentences I II must be reversed.

both Counts can be sentenced

Before defendant

death, requires Eighth Amendment degree of

that he of a certain guilty be

Case Details

Case Name: United States v. Billie Jerome Allen, United States of America v. Norris G. Holder

Court Name: Court of Appeals for the Eighth Circuit

Date Published: May 7, 2001

Citation: 247 F.3d 741

Docket Number: 98-2549

Court Abbreviation: 8th Cir.