United States v. Bolden

* LOKEN, Judge, Before EBEL Chief COLLOTON, Judges. and Circuit LOKEN, Judge. Chief security guard Robert Bolden murdered Nathan outside a St. Louis bank dur- ing attempted robbery. an After a month- trial, long a federal convicted Bolden killing Ley with a during firearm attempted bank robbery, conspiracy to robbery, commit bank being a felon-in- possession of a firearm. The sen- him robbery- tenced to death for the bank * EBEL, sitting by designation. HONORABLE DAVID M. Circuit, Judge States Circuit for the Tenth off, murder and firearm offenses. See 18 three robbers ran shedding clothing as 2113(e), 924(3)(1). ap they §'§ Many bystanders U.S.C. ran. witnessed the court1 peals, arguing shooting. district commit One saw Bolden drive away, thirty prior ted some reversible errors to and he was arrested that evening. Cloth- trial. ing We will first address the found near the bank positive tested emphasized argument. Bolden, three issues at oral Price, traces of DNA from record, After careful review of the we af Edwards. A later search of Bolden’s firm. home uncovered handgun used to kill

Ley and matching ammunition that found Background I. during Ley’s autopsy. Dominick Price testified on the II. A Challenge Batson 7, 2002,

morning of October Bolden asked trial, Price to a Bank help rob of America Before per used a $2,000 branch because Bolden needed to emptory challenge to prospective ju strike being avoid evicted from his home. As the ror number an African American wom bank, two “cased” the Bolden told a hesi- an. Bolden argued the strike violated plan: tant Price his Bolden would brandish Batson v. Kentucky, 476 U.S. handgun guard

his and disarm (1986), outside which held that bank, then Bolden and Price would it is a Equal violation of the Protection guard take the into hostage, the bank as a government Clause for the to use a per money, demand and away emptory drive Bolden’s challenge to prospective strike a car. The two purchased nylon juror men stock- solely on the of basis race. After the ing caps, and Bolden recruited a third district court ruled that Bolden established man, Edwards, discrimination, Corteze to assist in the prima a facie case of robbery. government claimed that it juror struck for a ground because, race-neutral when — afternoon, Early that the trio dressed in questionnaire asked to elaborate on her clothing dark parking and drove to a lot response justice system that the criminal near the bank. Price and Edwards wore research, legal should use students for she Bolden masks. did not. When bank explained that she believed based on bank, guard Ley walked of out Bolden years legal training using twelve that foot, approached on with Price and Ed- legal students for research would assist fifteen-to-twenty wards feet behind. Price justice the criminal system. govern The stopped testified that Bolden a short dis- ment expressed concern that she might Ley tance from pointed handgun and his give weight legal training more to her than guard. at the After a dialog, Ley brief and way is warranted that there was no gun, they reached for the struggled. know how this experience might affect the regained gun control of the process.2 deliberation fell, Ley jaw. Ley shot in the As took a step back and fired another shot The district court found that this awas Ley’s reason, into head. died from the sec- race-neutral comparing the strike ond wound juror later that afternoon. The government’s with the strike of JACKSON, government 1. The HONORABLE CAROL E. 2. The also claimed an Assis- Attorney may Judge tant United States have offend- Chief of the United States District juror by ed 44 when he her addressed Court for the Eastern District of Missouri. wrong name. The district court did not cred-

it this reason. a judge “shall conduct the trial posed, teacher who high school a white juror hearing to determine sentencing separate constitutional law he often discussed said imposed.” 18 U.S.C. reject- punishment to be court students. The with his issues 3593(b). “information hearing, At this juror should ed assertion any rele- juror may presented as matter white be with non-stricken compared sentence, miti- including any court vant to the clerk for Missouri deputy factor,” regardless gating aggravating that her questionnaire in her who stated convicted,” admissibility under the Federal and of its criminals is to see “passion 3593(c). court Rules of Evidence. view of the has a favorable that she beyond a reasonable doubt fair treat- must find her son’s system upon based “aggravating factors” charges. least one of sixteen drug related pending ment penalty; death may impose it finding that Bol- before ultimate The court’s juror proving has the burden that the strike of prove den failed beyond ... a rea- “any factor by race discrimination. motivated The defendant has the sonable Id. doubt.” dis appeal, On “any mitigating factor proving burden of it his clearly erred when denied court trict the evidence.” preponderance ... challenge govern Batson “all infor- jury then considers Id. The reason for purported race-neutral ment’s during the hearing,” mation received juror implausible. 44 was We re striking identifying the “special findings” returns rulings Batson for clear the court’s view non-statutory aggravating statutory and error, ultimate keeping mind “the exist, unanimously it found to factors has regarding racial mo persuasion of burden that one or mitigating and the factors with, and never shifts from tivation rests to exist. If no jurors more have found Purkett v. opposing the strike.” party factor is be- statutory aggravating found Elem, 765, 768, 1769, 514 U.S. 115 S.Ct. doubt, yond “the court shall a reasonable (1995); Snyder 834 see 131 L.Ed.2d other than death.” impose a sentence — Louisiana, U.S.-, 1203, 128 S.Ct. 3593(d). § If the instead finds (2008). 1208, L.Ed.2d 175 After care 170 mental state and one or more requisite questionnaire responses ful review of the factors, then it aggravating testimony, giving and voir dire aggravating whether all the “shall consider findings “great defer district court’s sufficiently found to exist factor or factors 476 at 98 n. requires, Batson ence” U.S. mitigating all the factor or fac- outweigh 21, 1712, we 106 S.Ct. conclude justify of tors found exist sentence clearly finding not district court did err and, consideration, this upon death” based race-neutral stated a that by unanimous vote recommend “whether striking juror was ade reason should be sentenced to defendant quately supported by the Com record. death, possi- imprisonment to life without Ortiz, 873, F.3d pare States v. bility release or some other lesser sen- of (8th denied, Cir.2002), 896-97 cert. 3593(e). § tence.” (2003). alleged superseding indictment Statutory Aggravating Factors III. fac aggravating and the found two tors, gain” and “conviction for Penalty “pecuniary The Federal Death Act of 1994 (“FDPA”) that, felony drug offenses.” See provides if defendant two (10). 3592(c)(8), challenges §§ guilty has been found of a homicide offense findings multiple grounds.3 im- those on for which the death Pecuniary (2008); Barnette, Committing a A. Gain. United States v. (4th 775, Cir.2004), for the 784-85 receipt, homicide “as consideration vacated on 803, grounds, 92, other 546 U.S. 126 S.Ct. expectation receipt, in the of the of or (2005); 163 L.Ed.2d 32 United States v. aggra- value” anything pecuniary of Bernard, 467, (5th 299 F.3d 483-84 3592(c)(8). Cir. § vating factor. 18 U.S.C. In 2002), denied, (2003); cert. 539 U.S. 928 case, the this district court instructed the Chanthadara, United States v. jury only gov- on the second clause—the Cir.2000), denied, 1263-64 cert. prove that “commit- ernment must 122 S.Ct. 151 L.Ed.2d killing expecta- ted the or murder in the (2001). Though we have never ad anything money, tion in the of of form issue, dressed the our prior decisions are property, anything having or else some consistent with these cases. See United value, advantage.” economic benefit or Paul, States v. 995 n. clause, Emphasizing the first ar- (8th Cir.2000), gues pecuniary gain only factor applies urges to a murder-for-hire. He us plain There was no error. (c)(8) to read subsection in tandem with Bolden next contends even if (c)(7), applies subsection which to a defen- 3592(c)(8) may apply to some bank rob- “procured dant who the commission of the bers, there was insufficient evidence that by payment, promise pay- offense he killed in the expectation pecuni- ment, anything pecuniary value.” ary gain, rather than eye- to eliminate an witness and to escape from a botched rob- Bolden did not raise this issue in bery. In reviewing sufficiency of the court, plain district so our review is for supporting factor, an aggravating At agree error. least five other circuits any we “consider whether rational trier of 3592(c)(8) applies, only to mur fact could have found cir- der-for-hire, but also when the murder beyond cumstance a reasonable doubt.” itself, just and not an underlying offense Ortiz, 315 F.3d at 902. robbery, such as was committed with the expectation pecuniary gain. of As the agree We with Bolden that the explained, Eleventh Circuit “The ‘consider pecuniary gain factor applies killing to a ‘expectation’ ation’ and clauses are two during the robbery only course of a bank separate ways by pecuniary gain which the pecuniary “where gain expected to fol satisfied, factor they both low as a direct result of the murder.” meaning.” must have United States v. Bernard, 483; Mitchell, 299 F.3d at see Brown, (11th 1330, 441 F.3d Cir. 975; Brown, F.3d F.3d at 1370- 2006), denied, 1182, 127 cert. Bernard, heavily 71. Bolden relies on but (2007); 166 L.Ed.2d 998 accord in that case defendants killed the victims Mitchell, States v. 502 F.3d completed robbery carjacking after a (9th Cir.2007), denied, 974-75 cert. solely to eliminate them as witnesses. 299 — U.S.-, 472-73, Here, contrast, 128 S.Ct. 171 L.Ed.2d 843 by 483-84. proceedings 3. Bolden also beyond that the district court was rendered harmless by petit jury’s should have the guilty dismissed indictment because reasonable doubt the Sanders, government grand jury the misled the con- verdict. United States v. (8th Cir.2003), cerning the evidence of these fac- 818-19 disagree. allegation prose- We tors. This of grand jury cutorial misconduct did not abuse its wide The district court handgun to the a loaded brought formulating this instruction. guard the bank discretion to confront planning bank Phelps, Price testified States robbing the bank. See United before review). Cir.1999) (standard to his of and Bolden returned when he robbery, Bolden after the failed house Drug Of B. Prior Distribution complete ... we didn’t mad that “was stat jury also found second fenses. The guard “that the robbery,” said bank factor, that Bolden was utory aggravating to the event as and referred stupid,” felony more convicted of two or previously statements were suf- trip.” These “wasted occasions, on different offenses “committed jury to find a reasonable permit ficient to of a controlled involving the distribution an obsta- Ley to remove that Bolden shot 3592(c)(10). Bolden con substance.” robbery that his completing cle to established one government cedes that the robbery to continue with intention was offense, Michigan conviction prior a 1995 Thus, the removed. once had been But delivery of cocaine. he contends for expectation in the killing was committed gov that the second offense on which gain. 18 U.S.C. receiving pecuniary relied, Michigan conviction ernment a 1993 3592(c)(8). Price, “it also told intent “attempted possession for with guard spend or was either shoot the cocaine,” “in was not offense deliver jail.” But the of his life in statute rest of a controlled sub volving distribution gain be require pecuniary does argues, He without citation stance.” only motive for a murder. legislative history, law or that “Con case ‘involving’ to not use the term gress did Finally, pe mere ‘at encompass convictions based on instruction allowed the cuniary gain ” government re tempts’ or ‘intents.’ solely on his mo to find this factor based term, ... involv sponds that the “offenses robbery underlying tive for distribution,” actual is not limited to ing charge the district court refused offenses; it should be read to distribution expected to follow as pecuniary gain “was drug distribution include offenses where of the murder.” The court a direct result in police but thwarted attempted instead instructed: case, example, the In this tervention. that a defendant committed To establish transcript introduced the government killing expectation or murder in the at which guilty plea hearing Bolden’s 1993 receipt anything pecuniary of the had intend expressly he admitted that he value, prove must at least some of the crack cocaine ed sell killing committed the defendant possession. found in his expectation anything murder in the in money, any- property, the form of or Reviewing interpreta- the district court’s value, thing having else some economic de statutory aggravating tion of factors advantage. benefit or novo, agree government. we with the See Allen, 741, 247 F.3d 786 accurately the law. States v. This instruction stated United Cir.2001) (8th (standard review), Moreover, vacat- by substituting killing “the grounds, remanded on other 536 murder” for the reference to “the offense” ed 3592(c)(8), 953, 2653, § 122 S.Ct. 153 L.Ed.2d 830 in the instruction made clear U.S. remand, (2002), 940 decision on 406 F.3d aggrava- could not find this (en banc). (8th Cir.2005) We construed ting solely factor based on Bolden’s at- term, statutory “involving the distribu- tempt pecuniary gain. to rob the bank for substance,” Chanthadara, any in a at tion ... of controlled See 230 F.3d 1263-64. 924(c)(2) 513, (2002).5 § “as former version of 18 U.S.C. 154 L.Ed.2d 394 Such a rule than including ] more of distri crime[ is necessary to ensure that pen the death Matra, bution.” United States alty phase produces “an individualized de (8th Cir.1988). 837, Supporting that termination on the basis of the character Supreme recently interpretation, Court of the individual and the circumstances of in construing observed 18 U.S.C. Stephens, crime.” Zant v. 924(e)(2)(B), § “An attempt unsuccessful 862, 879, 77 L.Ed.2d 235 a ... up building blow (1983) (emphasis original). in There was ” explosives.’ would use of ‘involv[e][the] no abuse of discretion in admitting this States, James v. United U.S. evidence. S.Ct. Likewise, conclude, “involving we the term Finally, Bolden 3592(c)(10) the distribution of a controlled § substance” is unconstitutional as applied 3592(c)(10) §in attempt includes offenses. in this prior case because remote nonviol Bolden’s contention that the word “involv drug ent rationally offenses do not narrow 3592(e)(10) ing” §in should be construed death-eligible defendants, class of as excluding as attempt offenses because the Zant, required by at 877 & n. 3592(c)(2) §§ in aggravating factors and 103 S.Ct. 2733. disagree. We (4) expressly attempt include is offenses cites no case in which a court invalidated unpersuasive.4 death-eligibility factor because it failed to identify prior conduct of gravity. sufficient Bolden further that the dis Allen, In at we held that the trict court abused its discretion in admit FDPA “adequately factors nar ting testimony Michigan police officer persons eligible row[ ] class of for the detailing suspected drug trafficking activi death penalty,” observing that “how broad ty preceded 1993 arrest ly narrowly or how the death “attempted conviction for possession with applied all, should be as a if punishment, intent to distribute cocaine.” Bolden ar essentially political choice left to the gues permitted this to find the people’s representatives elected leg 3592(e)(10) § factor upon uncharged based islative and executive branches.” Con (He conduct. argue does not gress repeatedly has enacted severe sen evidence was insufficient to support this tencing drug enhancements recidivist finding or that the court erred instruct 841(b). traffickers. See U.S.C. § ing jury.) We very The FDPA “erects low 3592(c)(10) conclude that identifies cir barriers to the admission of reasonably justify cumstances that capital sentencing hearings.” imposi Lee, States v. tion of a Cir. more severe sentence for murd 2001), 1000, 123 er.6

4. The except James Court construed “involves use of mission of evidence at criminal trials 924(e)(2)(B)(ii) explosives” including proba- as that information be excluded if its attempt though outweighed by danger crime even tive value is 924(e)(2)(B)(i), § immediately preceding creating prejudice, the confusing unfair the is- subsection, sues, expressly prior attempt misleading jury.” includes the convictions. 3592(c)(10) finding ag- § 6.Even if the the 3593(c) sustained, § provides: gravating 5. 18 U.S.C. only "[I]nforma- factor was not one may presented any statutory aggravating tion as to matter rele- factor need be found. 3593(d). regardless § vant to the sentence .... of its We not “reverse or vacate a admissibility governing under the any rules ad- sentence of death on account of ... erro-

618 eligibility is- jury to the vite the resolve Penalty Bifurcation Phase

IV. sues, alleged the stat- his mental state and 3593(b)-(e) §§ language plain theAs factors, based on his utory aggravating III makes of Part at the start summarized by his criminal character as bad evidenced single contemplates a clear, FDPA the mo- court denied the history. The district which all relevant hearing at penalty phase tion, jury would follow explaining that the and, if the defendant admitted is evidence ap- On eligibility court’s instructions. the penalty, for the death eligible is found very differ- argues this issue peal, Bolden jury. A number ultimately weighed the ex- asserting government’s ently, that granted have nonetheless courts of district “enhanced impact victim evidence tensive penal motions to bifurcate pre-hearing him jury would find that the risk” it, (or, phrased as some have ty phase government’s eligible despite for death trial) “eligi into an the entire “trifurcate” statutory aggravating proof of either weak relevant limited evidence bility phase,” no citation to the provides factor. He to the existence of one to mental state that establishing he voluminous record factors, statutory aggravating or more court, to the district argument made this a and, eligible, is found if the defendant sentencing either before or rele at evidence phase,” which “selection hearing. and non-statuto mitigating factors vant victim im factors such as ry aggravating government argues The bifur is received and

pact and other crimes statutorily impermissible.7 cation is See, jury. e.g., by the United weighed this issue under the only circuit to address Natson, 1296, 1309 F.Supp.2d 444 v. States that the statute contem FDPA concluded (M.D.Ga.2006); Mayhew, v. United States penal require single does plates but not (S.D.Oh.2005); F.Supp.2d 955-57 380 encouraged dis ty proceeding and phase Johnson, F.Supp.2d v. 362 States United motions to ruling trict courts on trifurcate (tried (N.D.Ia.2005) under 1099-1111 carefully the ramifications “to consider FDPA), 21 U.S.C. affd ... that would other presenting evidence (without issue), 495 F.3d discussing this ... guilt phase in the wise be inadmissible (8th Cir.2007); States v. Jor United yet findings made jury to a that has not (E.D.Va. dan, F.Supp.2d 903-04 eligibility.” concerning death Davis, 2005); F.Supp. v. United States (2d Fell, 240 n. States v. (E.D.La.1996). 938, 949 Cir.2008). a sound agree that is read We case, pretrial mo- this Bolden filed In ing of the statute. phase hearing. penalty tion to bifurcate the As no case held bifurcation has government’s evidence argued He mandatory, it obvious we think only to a non- of other crimes was relevant to bifurcate the ruling would in- on motion statutory aggravating but factor factor, 212, 220, special finding anof neous beyond a establishes where Government that the error was harm- doubt reasonable 3595(c)(2). the evidence relevant As less.” government requested 7. We note the bifurca- Michigan drug convictions was admis- to the Jordan, F.Supp.2d en- tion in any event could have sible at the consider selection sure would aggravating weight under given this hearsay might phase evidence that be inad- non-statutory aggravating factor "other Confrontation missible under the Clause conduct,” submitting any error criminal eligibility phase. beyond a harmless this factor was Sanders, doubt. See Brown reasonable FDPA is reviewed court not phase proceeding of an did abuse its discretion in deny- ing of discretion. Such a motion the motion to for abuse bifurcate. it routinely granted not be because should Other V. Pretrial Issues complicates and what is

further extends already long complicated proceeding. a Suppress. A. Motion To At a Moreover, illustrates, penalty as this case proffer in January interview Price prior evidence such as crimes phase told investigators that Bolden hid the non- be relevant both handgun used to shoot under a gutter statutory aggravating factors. See 18 behind Bolden’s rented residence. FBI (15). 3592(c)(2)-(4),(10), (12), §§ In U.S.C. Agent Terrence left McGinnis the inter cases, of improper spillover such the risk view, residence, drove to the and entered if the negligible properly will be backyard. He saw a plastic bag white any outweighed instructed and is in event peeking out from gutter, under a removed unnecessary protraction the risk of bag, and found the murder weapon, a confusion. loaded .22 caliber revolver. Bolden the district court suppressed should have Bolden moved to on bifurcate based handgun it because was found risk that other evidence prej- crimes would warrantless search of his residence con jury’s eligibility udice the of consideration ducted without the consent of Bolden or argue issues. Bolden does not that risk on his landlord. The district court denied the Instead, appeal. gov- he that the suppress motion to standing, for lack of impact ernment’s victim evidence “en- is, subjective expectation privacy risk,” pursued hanced the in issue in the exterior of his former residence that penalty the district court. In its final objectively reasonable. See United instructions, phase carefully the court in- (8th Stallings, States v. jury: structed the Cir.1994); Kiser, United States v. many You impact not consider the victim Cir.1991), in deciding preliminary is- S.Ct. sues of whether the defendant is at least (1992). old, years whether he acted with a hearing, After a the district court found mental state in listed Instruction No. that Bolden’s landlord initiated eviction any statutory aggravating or whether proceedings when she heard his arrest circumstances Instruction No. 4 exists he delinquent pay- on rent beyond you If reasonable doubt. ments. The eviction was final in Novem- findings prelim- make the on those three possession ber the landlord retook inary required issues which are before early December, and the residence was considered, you the death can be vandalized and robbed well Price’s before many consider victim impact evi- proffer argued interview. Bolden however, not, dence .... You may per- history forgiving landlord’s his rent defi- mit impact testimony the victim to over- ciencies and the fact that eviction notices your ability

whelm to follow the law. him gave were returned undelivered a rea- presumed expectation privacy prem- Jurors are to follow their in- sonable in the structions, and disagreed, noting there is no indication ises. The district court they record that facing did not do so. Shannon that Bolden he was eviction knew States, 573, 584-85, killing Ley, yet attempt before made no 2419, 129 prevent L.Ed.2d 459 eviction and asserted no continu- It cause. later in- struck 168 for residence court in the interest ing possessory jury: the structed arrest: after his by the to be influenced You are not any possessory lack of defendant’s [T]he sentence concerning what speculation at the time of premises in the interest wish family might you think the victim’s others search, failure to exclude his the There on the defendant. imposed to see and his fail- entering premises, the from concerning you no evidence before is pri- to maintain precautions ure to take members of the vic- opinions what the that the de- vacy support the conclusion what sen- family have on might tim’s expectation of subjective no fendant had Indeed, there is no imposed. tence is expectation that no such privacy of family that members the the objectively reasonable. any on the issue opinions have victim had no that Bolden finding court’s The all. not privacy subjective expectation district appeal On Kiser, 948 F.2d See clearly erroneous. quash panel, refusing court erred review). (standard And on these of discretion. we review for abuse issue legal con- facts, the court’s agree with we juror that with the district court agree We expectation any subjective that clusion ambiguous, unsolicited statement did 168’s of his former resi- in the privacy exterior possible bias as panel infect the with not so See objectively reasonable. was not dence quashed. it Bolden’s require Hoey, 983 States v. United three portions of the next spent counsel Rambo, (8th Cir.1993); v. United States poten each days exhaustively questioning Cir.1986). 1289, 1295-96 juror preconceptions. tial for bias properly de- suppress The motion Moreover, juror for cause and striking nied. about cautioning speculate not to Quash a To Venire B. Motion family might Ley’s want what sentence dire, court During voir the district Panel. possible adequate protections against were panel of one any member asked whether was no abuse prejudice. There improper anything heard about had read or v. See United States Ros of discretion. juror 168 re Prospective crime. alleged (8th Cir.1992), now, 411-12 sponded: works with Close friend mine L.Ed.2d 159 telling I was aunt. when victim’s And here, my jury duty he told me Issues

him about Guilt Phase YI. hap- what had told him about what she Separate trial of the Felon- A. family’s pened and wishes Charge. trial, Prior in-Possession like that. things trial of separate moved for a count. See Fed. stated, [my felon-in-possession “I friend] later think what He 14(a). district court denied my ... R.Crim.P. The me influence decision told motion, concluding that Bolden would phase, if there was in the second [p]ossibly joinder prejudiced made no contem- not be phase.” a second would objection stipulation later moved to ensured but poraneous felony only prior of his The district court know fact quash panel. the entire convictions, underlying those motion, facts noting panel could denied the States, convictions, Ley’s see 168’s statement Old not infer from Chief 172, 186-92, 117 S.Ct. family penalty. favored the death

621 (1997), and the court later 574 Price became enemies while in L.Ed.2d jail. argues each Bolden jury instruct to consider the court abused would its discretion separately. testimony because this would count impeached have credibility Price’s and the abused its dis the court government’s attempt portray Price as This by denying separate cretion trials. remorseful.8 As contention is without merit. the dis will not “We reverse trial court’s deci noted, repeatedly up trict court we have sion to limit cross-examination absent a held the denial of this motion when the clear abuse of discretion a showing stipula have entered into such a parties prejudice to the defendant.” United Brown, 70 F.3d tion. See United States 738, Purkey, States v. 428 F.3d 753 (8th Cir.1995), cited, 979, 980 and case cert. Cir.2005) omitted), (quotations cert. de denied, 1114, 1341, 517 U.S. 116 S.Ct. nied, 975, 433, 127 S.Ct. (1996). L.Ed.2d 490 Bolden cites no au (2006). L.Ed.2d 307 As the district court thority for his contention that trial courts noted, relationship between Price and duty greater grant separate have a tri Edwards after the crime was not relevant Here, in capital als cases. the district guilt to Bolden’s or his role the offense. jury court instructed the that it could not Thus, question is whether a reasonable previous consider Bolden’s convictions gained would have significantly dif determining govern when whether impression credibility ferent of Price’s had proved ment the other counts. The court pursue the court allowed Bolden to denying did not abuse its discretion in proposed line of cross-examination. Unit separate trials. See United States v. Beckman, ed States v. (8th Cir.) (stan Crouch, (8th Cir.2000). A review of the record review), denied, cert. dard of persuades ques us to this answer (1995). 116 S.Ct. 133 L.Ed.2d 129 tion is no. Bolden’s cross exam of Price Testimony B. of Dominick Price. (102 pages was extensive of the trial tran challenges evidentiary three rul- script). drug heard about Price’s arising out ings government witness others, dealings with Bolden and First, testimony. Price’s he contends that prior disturbing Price’s arrests for the district court prejudicially limited theft, peace, petty larceny, motor vehicle exam, cross-examination. On direct Price assault, disturbing peace, and unlawful that he and testified Edwards were child- use of a firearm. There was no clear persuaded hood friends and Bolden abuse discretion. younger two men to assist the bank exam, Second, robbery. During cross Price admit- jail deny ted he saw Edwards in after their district court abused its discretion in fought. ing request regard arrest and the two men his for re-cross exam elaborate, gov- ing possible coaching counsel asked Price to Price have re objected, ernment and the district court ceived an observed conversation counsel, objection, explaining sustained the or while the with voluntarily government’s agent together three men committed the crime case holding and it was irrelevant in a cell. whether Edwards with Price Government (8th Cir.2004), argument testimony 8. His that this was also penalty-phase pre- relevant to issues was not served in district court and cannot survive Vincenz, plain error review. See Revels v. or a a death sentence wards would serve in the observed explained

counsel the offense. life sentence for Price’s offer to conversation, declined he jail. Edwards incident with explain the testimony by laya wit Opinion agent the case was explained Counsel inadmissible, it even if per is not se ness there only because was holding cell in the an ultimate issue. Fed.R.Evid. addresses removing Price’s shackles. problem a 704(a). Here, government’s inqui was unable to counsel When testimony response a fair to the ry was Price’s di- between point discrepancies out it ad on cross exam because elicited testimony, or instances and redirect rect being between the distinction dressed to be re- memory appeared his when rob planned in the “equal participants” shaded, the district answers or his freshed Ley. bery unplanned in the murder There was no request. court denied its discre trial court does not abuse “The to wide discretion of the court’s abuse by allowing the use of evidence on tion exam, when particularly restrict re-cross clarify an issue to redirect examination raised on redi- have not been new matters on opened up by the defense that was Ball, v. rect. United States when this evi cross-examination'—even Cir.2007). (8th otherwise be inadmissible.” dence would Braidlow, States argues that the district Finally, Bolden Cir.1986). Moreover, ques testify by allowing Price to to court erred improper legal opin elicit an tion did not exam, During cross legal conclusion. pur defense was no doubt ion. While the Price testified: legal question, equal culpability, suing you And didn’t de- [Defense counsel]: lay testifying perspec from the Price was Robert, you, and Corteze were cide that equal sharing participation. tive of money? split the Whatever going to further and government went When taken, split three going was he deserved the asked Price whether ways? crime, for his role death yes. Equally, [Price]: inquiry. There district court halted the you going All of were Yes. [Counsel]: no of the district court’s wide abuse equally? be treated scope to control the of redirect discretion Yes, sir. [Price]: Braidlow, F.2d at 783 examination. you equal were all Because review). [Counsel]: (standard participants? Agent Prior to McGinnis’s Notes. C. Yes, sir. [Price]: trial, gov- district court ordered existed, notes, the cooperation, justice, other criminal obstruction of tors: basing that this argues Bolden further conduct, ap Bolden impact. victim and Ley renders it killing factor on the grounds. on findings these various peals unconstitutionally all mur- vague because evidentiary district court’s the We review and therefore the ders eliminate witness Allen, discretion, rulings abuse if only aggravator a rational the factor is constitutional and Bolden’s F.3d suspect’s after the witness is eliminated novo, F.3d at Purkey, de contentions govern- Again disagree. arrest. we The 761.10 that, ment after immo- presented

(1) Dur shot, Justice. Ley Obstruction initial bilizing with the penalty phase, government the the ing firing a few seconds before the paused po head, to evidence that Bolden lied evidence the presented Ley’s fatal shot into arrested, Price being part prevent after threatened lice murder motivated Thus, they spoke if about Ley identifying and Edwards from Bolden. submitting crime, and hid the murder court did not err this wiped prints off district non-statutory factor. Its rela- change aggravating Edwards to his weapon, and told jury to weight solely tive for the de- government argued The appearance. by cide. aggravating factor was established this prevent killed evidence that Bolden (2) At Criminal Conduct. Other identifying Bolden and then ob him from closing argument, government argued by lying to the investigation structed the criminal jury should find “other conduct. police post-offense and other activity” non-statutory aggravating aas non-statutory aggra jury The found as a of non- factor based on Bolden’s conviction that Bolden obstructed a

vating factor guilt phase— capital offenses investigation and that this factor criminal robbery and conspiracy to commit bank penalty. of the death supported imposition felon-in-possession of a firearm— being a conviction for post-offense Michigan conduct and on his 1993 argues his officer. resisting obstructing police relevance to whether he lacked sufficient government foreclosed our violat- factors in the indictment is The contention that 10. rights by Purkey, ed his Fifth and Sixth Amendment at 748-50. decision in non-statutoiy aggravating failing charge aggravating this factor be- factor deciding found before whether a sentence sup- justified. and that it of death is yond a reasonable doubt There was no uncon- stitutional ported imposition penalty. duplication. of the death It government is well-established argues Bolden further other than may offer evidence of “other criminal acts” conspiracy conviction, these crimes factor. See non-statutory aggravating as a lacked sufficient relevance to the decision. Allen, 789 and cases cited. authority He cites no supporting the asser tion that the district court should have that this non-statu struck the other convictions on this tory government factor allowed the to sub ground. The district court did not allow mit support multiple the same evidence to to introduce less relevant factors, aggravating creating the risk that aspects of Bolden’s criminal history, such give weight would too much to the misrepresentations as to his landlord and factors, aggravating thereby skewing its employer, improperly received unemploy weighing mitigating of the benefits, ment multiple driving viola in deciding impose factors whether tions. He Michigan con penalty. Though death the concern is le victions were too remote and allowed the Black, Stringer see gitimate, jury to unadjudicated drug consider traf 232-33, 117 L.Ed.2d ficking. The record support does not this (1992), Supreme Court has never assertion. The court testimony struck re held “that aggravating factors could be garding drug sales in 1994 that were well duplicative so as to render them constitu before Bolden’s 1995 Michigan conviction.11 Purkey, tionally 762, invalid.” at 428 F.3d The did argue not the States, v. quoting Jones United Michigan drug offenses or their underlying 373, 398, 2090, 119 S.Ct. 144 L.Ed.2d 370 conduct supported non-statutory this fac (1999) (plurality opinion). govern The tor, and the was instructed that these pecuniary gain statutory ment based the convictions could not constitute “other factor on Bolden’s to desire rob the bank. purposes crimes” for of factor. this More justice It based the obstruction of non- Lee, over, 494-95, 274 F.3d we af factor on his motive to kill admitting firmed evidence of various unad to eliminate a witness. it And based the judicated offenses. activity” non-statutory “other criminal fac (8) part tor in Impact Victim Evidence. possession on his of a firearm conspiring while per se Eighth to rob the bank. “[T]he “[T]he Amendment erects no facts can support same different inferences to the impact bar” admission of victim that form different aggravators.” Purkey, evidence and to prosecutorial argument on Tennessee, Payne v. 428 F.3d at 762. The prop subject. district court 501 erly jurors 808, 827, 2597, in weighing instructed the 111 U.S. S.Ct. 115 L.Ed.2d (1991). factors, FDPA, the aggravating mitigating and 720 In Congress pro the they were not simply government may to count each factor vided that introduce and reach a decision based on which num a non-statutory aggravating as factor “vic rather, greater; they impact ber is should individ tim including evidence” “oral testi ually weight consider the mony, impact and value of each a victim statement that iden- prompt 11. His contention that the district court erred follow the district court's instruction denying testimony disregard question a mistrial based on this to and answer. Rich Allen, Marsh, 200, 206-07, is without merit. See 247 F.3d at 772 ardson v. 481 107 U.S. (standard review). (1987). presumed of is to S.Ct. 95 L.Ed.2d 176 626 testify Ley’s relationship with his the offense and the about the victim of

tifies girlfriend, aspirations, career and the af injury and loss scope and extent Ley’s parents fect of death on inflamed his and victim’s the victim suffered fairly weigh jury, leaving it unable to relevant family, any other informa- and factors. mitigating and 3593(a). Evidence tion.” U.S.C. However, aspirations Ley’s and relation impact the victim about the “about impact of on his ships and the his death family rele- murder on victim’s family establishing highly were relevant to to jury’s to the decision as whether vant non-statutory factor. Though portions this imposed the death should testimony overlapped, agree we this tjhere is no reason treat such [and with court it not so cumu the district differently than other relevant evidence lative or create as to confuse issues Payne, 501 is treated.” U.S. Qualitatively, unfair this evi prejudice.13 However, 827, 111 S.Ct. 2597. admission impact dence was similar the victim that it unduly prejudicial of evidence “so v. upheld States evidence we United fundamentally unfair” vi- renders the trial (8th Cir.2007); Johnson, Due olates the Process Clause. Id. at Nelson, v. States 2597. S.Ct. (8th Cir.2003), denied, 713-14 cert. Bolden contends that the district court by allowing impact victim erred sixteen (2004); Allen, 778-79; F.3d at testify during the penalty witnesses Bowersox, 1124, 1135 Simmons testimony He cu phase. Cir.), mulative, unfairly prejudicial, “left 280, 151 L.Ed.2d step small removed from actual jury one challenges specific additional at the victim’s memorial ser attendance impact victim evidence are without merit. He vice.” notes that sixteen witnesses far they passages Numerous witnesses read court previ exceeded number this has journal. wrote in a memorial This was testimony that their ously approved,12and character, probative Ley’s not inflam government’s over up took 80% of matory, substantially to evi and similar phase case-in-chief. Acknowl See, proper dence deemed other cases. that no court edging appellate has vacated Johnson, 976-77; e.g., 495 F.3d at Chan death on this ground, a federal sentence thadara, govern 1274. The appeal present Bolden asserts that no has tape ment of a call from played 911 prejudicial ed “the voluminous amount and Ley’s girlfriend requesting police escort impact quality” concerning evidence the hospital on the afternoon he was single victim. probative killed. of this evi value challenge Bolden cannot the vic dence outweighed preju risk of unfair impact testimony by Ley’s parents tim and captured dice it best emotional 827, Payne, impact relatives. See 111 Ley’s death on his loved ones. allowing S.Ct. 2597. He contends that a collection photographs Admission of friends, coworkers, Ley’s by and to taken at a memorial pastor service held McVeigh, In United F.3d 13. end of the 12. States 153 The court observed near (10th Cir.1998), denied, cert. testimony impact victim the witnesses S.Ct. had been “restrained” and had done their (1999), impact 38 victim witnesses testified best their to control emotions. City about 168 victims of the Oklahoma bombing. worked, (a) Ley plus resolutions bank where three additional factors: “The execu- tion of Ley’s honor from Missouri House of Robert Bolden necessarily alleviate the Representatives family and the St. Louis Board victim’s or victim’s suf- (b) Alderman, fering.” Ley’s were relevant “Robert Bolden’s execution will family great cause his “uniqueness” being pain as a human and the emotional (c) death, distress.” “The Payne, prison sentence of life in impact of his U.S. at possibility without 823-27, 111 of release unduly and not so adequate harsh punishment alternative prejudicial as to render the trial funda- protect that will society from further mentally Finally, unfair. risk co-worker who of criminal conduct Robert Bolden.” Ley graphi- ran to assist when he was shot The court ruled that the record lacked cally Ley’s described condition and the support the submission of impact experience had on the wit- these three factors. clearly ness’s life. This was admissible as probative the most evidence of the effect of factor, As to the first proposed the gov Bolden’s crime on his victim. It was un- precluded ernment was from eliciting testi doubtedly prejudicial, unfairly but not so. mony concerning family’s desires Bowersox, for punishment. Parker v. placed

The district court on few limits (8th Cir.1999), evidence; mitigating argued he 146 L.Ed.2d thirty-two mitigating jury. factors to the (2000), Thus, and cases cited. there Paul, 217 See F.3d at 1002. The number was no evidence about the effect of Bol impact of victim witnesses alone does not den’s execution on Ley family’s suffer prejudice. establish unfair After the six- ing. second, As to the Bolden elicited afternoon, Monday teen testified on Tues- substantial testimony from his children day morning, Wednesday morning, the about his positive impact lives, on their jury heard closing arguments and instruc- and the district court submitted seven mit Thursday. tions on After the cau- court’s igating factors positive related to Bolden’s tionary regarding instructions im- victim impact family on his and their love for him. testimony pact Friday, and a recess on Any additional instruction would have been jury began following deliberations third, duplicative. As to the it was the Monday. It returned the verdict on Tues- province of the to decide whether life day, all finding five factors prison adequate punish was “an harsh many thirty-two of the mitigating fac- ment” for govern Bolden’s crimes. The tors. timing suggest This does not ment did not submit Bolden’s future dan the product passion sentence was the of gerousness non-statutory aggravating as a careful, than rather reasoned judgment. factor, any which obviated need for a miti Mitigation B. Issues. The FDPA de- gating prison instruction whether life in “mitigating fines factors” to include “fac- would adequately protect society from the record, in background, tors the defendant’s risk of future criminal conduct. any or character or other circumstance of the offense that mitigate against imposi- “Special instructions are neces tion of the death sary sentence.” 18 U.S.C. when the could not otherwise 3592(a)(8). Here, the district court sub- give meaningful to a defendant’s effect thirty-two mitted distinct mitigating mitigating fac- evidence.” Abdul-Kabir tors, twenty-one Quarterman, of which were found to (2007) by juror. exist argues least one Bolden n. (empha by Here, that the court erred refusing original). to submit sis addition to sub- factors, the about creation. note that Bol- thirty-two district its We also mitting jurors any testimony post-of- his instructed the consider den elicited about court or not “mitigating specifi- mitigation factors whether fense remorse from another wit- by counsel which are cally argued defense ness. of by a the evi- preponderance

established Penalty Evidentiary C. Phase There abuse of court’s dence.” was no the (1) the argues Issues. Bolden district appropri- to fashion substantial discretion allowing by court abused its discretion the ate instructions. to use a government styrofoam head to further that the district Bolden trajectory the bullets illustrate the as his placed court unconstitutional limits on they during testimony hit the of a trial, the mitigation evidence. Prior pathologist. forensic Because head granted government’s district court inflexible, contends, provided was he it an motion to limine prevent Bolden from arbitrary for to determine basis introducing unsworn allocution evidence intentionally whether the shots were fired being without penalty phase accidentally. obtaining After assur subject During to cross-examination. limit pathologist ances that the would her government he phase, notified exhibit, use of the demonstrative court mitigation John witness Wilson would ruled not that use of skull would testify helped prepare that he and, alternatively, unfairly prejudicial accountability” explain “statement of his any prejudice by was outweighed pro Ley’s family and remorse to friends. The bative value of this There evidence. objected, government and the district no abuse of the court’s substantial eviden- ruled that could intro- court Pirani, tiary discretion. United States v. testify duce the statement nor have Wilson (en Cir.) banc) F.3d it, assisting as preparing about (standard review), both constituted unsworn allocution. Bol- L.Ed.2d argues the court its den abused discretion ruling Eighth because this contravened the (2) Bolden district by preventing Amendment him from intro- by allowing court abused its discretion ducing mitigation relevant evidence. government mitigation to ask witness permits FDPA introduction Mona Muhammad if she biased in mitigating against of relevant evidence even if her son under degree admissible the Federal Rules of Evi was convicted of first murder fol dence, investigation agents but “this not mean that the lowing does two case defense has carte blanche to introduce any investigated who exam Bolden. Cross of a Purkey, penalty phase mitigation and all evidence that it wishes.” witness bias is proper. Purkey, limitations, Among 428 F.3d at 756. other 760. More over, 611(b) a statutory the defendant “does not have Rule the Federal Rules right jury during expressly to make statements to Evidence allows cross exam con phase an FPDA penalty cerning affecting credibility the trial with “matters the being subject out to cross-examination.” of the witness.” We broad grant defer Here, Id. at 761. the district court did not ence to the district court’s determination excluding appropriate abuse its discretion in an un- of scope the cross exam. Crenshaw, sworn, lack unsigned, States undated statement (8th Cir.2004). Here, ing any reliability indicia inquiry unless the the did government cross examine Bolden not a risk of prejudice, could create unfair con- issues, jury. fuse the or mislead the See adequately incorporated Bolden’s conten- 3593(e). § tion that jury required impose a death sentence: “If you unani- (3) exam, During cross mously conclude that the aggravating fac- if asked Bolden’s aunt she was aware Bol- tor or factors ... sufficiently outweigh the attempted daughters den to sell his back mitigating factor or ... factors and that $5,000. to their mother for object- death is the appropriate sentence ed before the witness could therefore answer. After you ... your must record determination conference, a sidebar the district court that a sentence of death shall imposed” objection sustained the and instructed the added). (emphasis jury disregard question. appeal, On argues question improper. E. Gateway The Mental State granted As the district court the relief he Issue. that, The FDPA provides for the requested, no issue was preserved ap- for defendant to be eligible for a death sen pellate review. tence, jury must find that he Penalty D. Phase Instruction Issue. (A) intentionally victim; (B) killed the argues Bolden first that the district court’s intentionally inflicted bodily inju serious preliminary instruction at the start of the ry that resulted in the death of the penalty phase concerning possible pen- (C) victim; intentionally participated in alties his conviction on the felon-in- act, contemplating that the life of a possession count jury misled the into be- person would be taken or intending that lieving might he not serve the rest of his lethal force would be used ... and the if prison life not sentenced to death. victim act; died as a direct result of the This contention is frivolous. The court’s (D) intentionally engaged ... in an thorough final instructions at the conclu- violence, act of knowing that the act sion of penalty phase accurately stated grave created a risk of death ... such instructed, unambiguously the law and that participation ... constituted a reck respect with to the robbery bank count: less disregard for human life and the you “if justi- determine that death is not victim died as a direct result of the act. you fied ... your must record determina- 3591(a)(2). § 18 U.S.C. Over tion that the Bolden’s ob- defendant be sentenced to life jection, the district court imprisonment submitted and possibility without of re- lease,” 2113(e) found that Bolden had acted with as 18 U.S.C. mandates. all four mental in committing states both next the district capital offenses. Bolden that this court in refusing give erred a proffered jurors enhanced the risk would inflate reflecting instruction his contention weight of mental state 3593(e), under required never phase. disagree. We impose death, a sentence of if it even has found that the aggravating circum- Numerous approved decisions have sub sufficiently stances outweigh mitigat- multiple mission of mental states FDPA ing circumstances to justify Jackson, a death sen- cases. See United States v. (4th rejected tence. Cir.), We have this contention in F.3d 300-01 See, Allen, many e.g., cases. 124 157 L.Ed.2d 779-82; Purkey, (2003); Webster, 428 F.3d at 762-63. The United States v. district court’s instructions Cir.1998), were consistent F.3d 323-24 cert. de nied, with the FDPA as construed in these deci- Moreover,

sions. (1999); the court’s instruction L.Ed.2d 70 United States v. Cheev- (D.Kan. er, of arguments the F.Supp.2d 1199-1200 Most were For Natson, challenges improper. not exam 2006); F.Supp.2d at 1308-09. ple, prosecutor Bolden notes that the re Here, as with these decisions. agree We peatedly de-emphasized and belittled his Webster, jury the to in the court instructed factors, long but proposed mitigating “as fac mitigating aggravating the and weigh jurors ignore as the are not told or “gateway” mention the with no of tors disregard mitigators, prosecutor may ar Moreover, the verdict element of intent.14 based on circumstances the gue, the inquiry the state segregated form mental case, they little that are entitled to or no fac aggravating mitigating from the and Johnson, weight.” 495 F.3d at 978. The sequential clear nature tors and “made prosecutor jury did- ask the improperly Webster, 162 F.3d at 324. process.” the death on behalf impose penalty every capital may support crime Not family, an for which argument there states, all four but submission of mental supporting was no evidence. Rather than concluding did in district court not err object, Bolden requested later instruc submitting all that evidence warranted that the speculate tion not about the four in this case. family’s wishes. The district court gave instruction. After careful review of The F. Government’s Summation. comments, challenged all the we conclude “in government’s they were in isolated insubstantial cendiary” penalty phase closing argument and far than egregious context less state objects him a fair trial. He denied ments we have deemed harmless other of the none many portions argument, but Johnson, e.g., cases. See capital arguments appeal of the made on were 979-80; Ortiz, 315 F.3d at 903. We objec preserved contemporaneous with and, there plain conclude was no error Accordingly, in the district tions court. alternatively, that Bolden has failed to es plain our is for review error. United plain substantially tablish error that affect Robinson, 1320, 1326 States v. rights. ed his (8th Cir.), denied, cert. reasons, foregoing For the the judgment (1997). To L.Ed.2d 331 of the district court is affirmed. relief, obtain Bolden must show that an occurred, plain, error that it was that it EBEL, concurring. Judge, Circuit that it rights, affected his substantial fully I judgment opin- concur in the fairness, seriously integrity affected ion of the court. public reputation judicial proceed of the ings. To that an his show error affected separately only I write address rights, substantial he “demonstrate[ ] must greater Defendant-Appellant detail Bol- probability reasonable that he would argument pertaining applica- den’s to the have received a more sentence favorable statutory tion of one of aggravating Pirani, with ... error eliminated.” factors found this case. F.3d at 551. aggrava- McCullah, 848(n), Bolden relies on United States different federal death 14. 1996), recently 1111-12 Cir. statute. Tenth Circuit has more duplication gateway held that “between distinguish L.Ed.2d 825 McCullah is factors and [intent] factors does validity” able because it turned on the submission of undermine the constitutional duplicative aggravating that included factors a death sentence under the FDPA. Chantha- dara, components mental state under 21 U.S.C. 230 F.3d at 1261. applied, a defendant not the applies Penalty tor that when “has Federal Death Act (“FDPA”), convicted of or more previously been but the Armed Career Criminal offenses, punishable (“ACCA”), 924(e). Federal a § State or Act 18 U.S.C. See than imprisonment term of of more one Nevertheless, S.Ct. 1590. occasions, year, on different in- committed a provides analogy ACCA relevant to the volving the distribution of a controlled sub- similarly case here because the ACCA in- stance,” 3592(c)(10), § does not 18 U.S.C. statutory provisions cludes that expressly to him. Bolden concedes that he has apply offenses, attempt include and those that do distributing one such conviction for co- particular, not. In the ACCA defines a caine. But Bolden that the second felony violent under that Act to include conviction on which the Government re- any punishable by crime imprisonment Michigan lied—a 1993 conviction for at- year for a term exceeding one ... the in- tempted possession drugs with that— qualify. tent to distribute —does not (I) use, has as an element at- course, possession drugs Of with the use, tempted or threatened use of “involving intent to distribute is a crime physical against force the person of the distribution of a controlled substance.” another; or Matra, See United States v. (ii) arson, extortion, burglary, is or (8th Cir.1988), abrogated on other involves use of explosives, or other- grounds, McKinney, United States v. presents wise involves conduct that (8th Cir.1997). is, It howev- potential physical inju- serious risk of er, a more difficult issue whether this stat- ry to another. utory aggravator includes a conviction 924(e)(2)(B) added). § (emphasis 18 U.S.C. attempt possess drugs with the in- Like the aggravators, FDPA’s tent to distribute. expressly thus attempt ACCA includes is, tell, publish- There as far as I can no section, offenses in one but does not men interpreting applying ed case law this very in tion them the next section of the statutory aggravating factor. The lan- - Nevertheless, the statute. James Court guage aggravator certainly of this is 32-rejected argument enough attempts broad to include to com- Congress expressly in attempts included mit the crime of distribution of a con- section, attempt one offenses could not be trolled substance because it contains the James, included in the next section. See very “involving” inclusive word —“involv- In 127 S.Ct. at 1591-92. its discussion of ing the distribution of a controlled sub- issue, in dicta that this James concluded added.) (Emphasis stance.” statutory language addressing an of support Further for the of at- explosives” inclusion fense that “involves use of possession tempted enough attempt with the intent to dis- broad to include an of “An drugs aggravator attempt tribute this fense: unsuccessful to blow Supreme reasoning up government building found Court’s ... would in States, explosives.”15 James volve the use of Id. omitted). 1586,167 (quotation, L.Ed.2d 532 James alterations 924(e)(2)(B)(i) specific § 15. The issue James addressed was within either fall 924(e)(2)(B)(ii)'s prior attempted bur- whether conviction for bur- enumerated offense of James, glary felony glary. was a violent under the ACCA. See 127 S.Ct. at 1591. case, attempted burglary See 127 S.Ct. at 1590. In that James Court held that fell 924(e)(2)(B)(ii)’s language parties agreed attempted burglary did not within residual 632 that aggravators suggests the other Con the whole of considers

But when one attempt factors set forth to include of statutory aggravating gress knew how FDPA, argument can be made in the when it intended to do so.16 fenses 3592(c)(10) encompass a § does not that Moreover, aggravators, two of these possess attempt for conviction 3592(c)(2) (4), specifically § and use U.S.C. to distribute. Of the the intent drugs with “involving” “attempt” and both the terms factors statutory sixteen fur- provision. in same This together 3592(c), aggrava- § four under available Congress did not intend suggests ther attempted offenses. include expressly tors “involving” automatical- its use of the word (“The 3592(c)(1) death, § or See 18 U.S.C. attempt include offenses. ly to death, during resulting in occurred injury attempted or commission the commission plain language long “The established of, flight from the or the immediate requires construction ex- rule of twenty one of enumerated commission of’ amining the text of the statute as whole felonies.) added); (emphasis id. federal context, object, poli- by considering its (“[T]he 3592(c)(2) previ- has § defendant Boesen, cy.” United States or ously of a Federal State been convicted omitted). (8th Cir.2008) (quotation by imprison- punishable a term of offense Congress particular includes lan- “Where year, involving more than ment of in omits guage one section of a statute but or threatened use of a attempted or use Act, it is it in another section of the same (em- person.”) against firearm ... another in- presumed Congress acts generally (“The 3592(c)(4) added); § de- phasis id. tentionally purposefully dispa- in the previously been convicted of fendant has or exclusion.” Russello v. rate inclusion offenses, punish- Federal or State or more States, 16, 23, imprisonment of more by able a term of (1983) (quotation, alter- year, committed on different occa- than 1 omitted); ation see also United States v. of, sions, or at- involving the infliction 166, 212-14 Sampson, F.Supp.2d of, bodily injury serious tempted infliction (D.Mass.2004) FDPA and con- (applying upon person”) (emphasis death another or Congress required cluding (“The 3592(c)(16) added); § defendant id. knowingly in the defendant act order attempted or to kill intentionally killed statutory aggravators for some of the single in a criminal person more than one apply, expressly but did not include added). (emphasis The lan- episode.”) knowledge requirement in 18 U.S.C. in including attempts guage specifically 3592(e)(ll), when the victim applying statutory aggravating factors these four to old conspicuous attempt “particularly and the absence of vulnerable due person, resulting the death of a as an offense that "otherwise involves con- offense potential presents a serious risk of imprisonment duct that which a sentence of life or a James, physical injury to another.” See death was stat- sentence of authorized reaching In this conclu- 1593-98. 3592(c)(12) ("The ute.”); §id. defendant had sion, language James noted the breadth of the violating previously II been convicted of title that residual clause. See id. at 1597-98. Comprehensive Drug or III of the Abuse Pre- and Control Act of 1970 for which a vention statutory aggra- Congress wrote two other 16. years may imposed of 5 or more sentence vating using language enough factors broad engaging previously or had been convicted encompass attempted both convictions for continuing enterprise.”). Con- in a criminal completed offenses. See 18 U.S.C. gress aggravating factor chose not to draft the 3592(c)(3) ("The previously defendant has at issue here in that same fashion. Federal or State been convicted of another youth, infirmity,” Congress did not age, addressing multiple claim that sentences require proof prison that the de- life and death then intend for the un same derlying that his victim offense amounted to jeop fendant knew was vulnera- double ardy, concluding but rule of aggravating lenity that ble before factor could did not case), in apply that cert. granted judg apply). vacated, 953, 122 ment S.Ct. apparent why But it is not to me Con- (2002); Rowe, 736 F.2d cf. gress expressly attempt would include of- (discussing 460-62 lenity, rule of but not in some of the fenses FDPA’s applying it in that case to overturn thirty- factors, but not others. And year attempted sentence for capital mur party points any legislative neither us to der). history might explain that better this Nevertheless, I am ultimately persuaded seeming inconsistency. It may be that 3592(c)(10) § that is not ambiguous, and Congress attempts intended to include that that aggravating factor does encom- when the offenses at issue particular- were pass prior Bolden’s conviction for the at- as, ly example, serious offenses involv- tempted possession drugs with in- ing weapons. Congress violence and But distribute, tent to for several reasons. has also often indicated that drug traffick- First, persuasive no apparent reason is to ing criminal is serious conduct. On the why Congress me intentionally would have hand, other the difference in terminology desired to attempts exclude under explained by could be the fact that 3592(c)(10) § attempts but to include un- statutory aggravators §in 3592 were often many Thus, der aggravators. the other statutes, pre-existing lifted from other give to meaning to the differences lan- aggravators additional were added to this guage between the various aggravators in Thus, years. section over the various 3592(c) § rank speculation. would be I do aggravators often come from different not believe rank speculation trump should sources and their language may different 3592(c) § the language of standing alone. a simply consequence be of this mixed James, Second, context, in a different indi- pedigree significance with no actual in- cated that the fact that Congress expressly by Congress tended between various attempted included offenses in one subsec- phraseologies used. tion of a statute but not in another subsec- Where a criminal ambiguous, statute is attempted tion did not mean that convic- lenity requires the rule of us give tions could not be included in a subsection defendant the benefit of the doubt. See lacking an express attempt. reference to — Santos, U.S.-, United States Third, See S.Ct. 1591-92. the lan- (2008) 2020, 2025, 170 L.Ed.2d 912 3592(c)(10)— guage §in Congress used (noting (plurality) long line “[u]nder prior “involving convictions the distribu- decisions, of our go tie must to the (emphasis tion of a controlled substance” defendant. The lenity requires rule of am- added) very language broad that would —is biguous criminal interpreted laws in naturally encompass attempts possess subjected favor of the defendants to controlled substance with the intent to dis- them”). And the lenity “applies rule of Indeed, clear, tribute. as James made sentencing as well as substantive [criminal “involving” explicitly ap- word has been Lockhart, statutory] provisions.” James, Rowe v. plied attempts. to include In Cir.1984); see Unit- Court dicta said an unsuccessful Allen, 741, 767, ed States v. attempt up government building to blow a (8th Cir.2001) (discussing lenity rule felony would constitute violent under the 924(e)(2)(B)(ii) in 18 U.S.C.

clause

reads, explosives.” “involves use of reasons, agree I

For these 3592(c)(10) encompassed prior possession attempted

conviction for intent

drugs with the to distribute. MOUSER, Appellant,

Bruce ASTRUE, Commissioner,

Michael J. Security Administration,

Social

Appellee.

No. 08-1609. Appeals,

United States Court of

Eighth Circuit. Sept.

Submitted: 2008.

Filed: Nov. 2008. notes redirect, agents any rough retain government counsel referred ernment On case, and the might concern Bolden’s exchange and asked Price whether to this provide Bolden with shooting government agreed in the equal participant he anwas any promises information and exculpatory overruled Bol- Ley. The district court testimony. exchange for witness objection question called for made den’s States, answered, conclusion, generally Giglio v. United legal and Price See 763, 31 L.Ed.2d 104 that this U.S. 92 S.Ct. appeal, “no.” On trial, agent At FBI McGinnis tes- testimony improperly allowed the opinion during portion two miti- tified that he took notes government negate circumstances, he attended equally proffer that an cul- of Price’s interview gating residence, to Bolden’s punished proceeding not be before pable co-defendant would government’s pre- death, Price nor Ed- which contradicted and that neither cross only during pretrial hearing. claim that two Assistant United exam trial Attorneys point took notes the McGinnis clarified the during redi States Thus, total, complained counsel rect. viewed in proffer. Defense McGinnis’s notes, and trial pretrial testimony to turn over McGinnis’s were consis failing Brady v. tent. Bolden further government violated both that the notes exposed 10 could have Maryland, 373 U.S. Price’s motivations for (1963), Act, testifying and the Jencks but no support L.Ed.2d 215 offers for this 3500(b). supposition. Government counsel all U.S.C. disclosed it represented promises exchange that he had not known the made to Price in

Notes

notes had now reviewed his and defense counsel thor they Brady oughly contained no and concluded cross-examined Price on the sub ject. materials. The district court ruled that Bolden failed to show that the gov showing suppressed Bolden did not make a sufficient ernment exculpatory material Brady or that the notes contained Jencks evidence.9 rul- challenges Act materials. Bolden (2) here, As relevant the Jencks ing appeal. on requires government Act the produce, (1) violation, Brady To establish a on motion of the defendant govern after a testified, prosecution ment Bolden must show witness has “a written by material evidence favorable to made suppressed statement said witness and signed the defense. States v. Van Brock or otherwise adopted approved United (8th lin, 587, Cir.1997), by him” relating 594 cert. to the witness’s testimo denied, 1122, 1804, 3500(e)(1). Here, § ny. 118 S.Ct. 140 18 U.S.C. McGin (1998). Materiality 944 turns on nis testified his only L.Ed.2d notes contained state Thus, probability by there a reasonable ments made “whether is Price. the notes been not a had disclosed were “statement made said wit defense, ness,” proceeding showing result and Bolden made no Clay signed have v. Price ap would been different.” Bow notes or otherwise (8th Cir.2004) ersox, 993, proved F.3d 1000 them. See 367 United States v. Madri denied, (8th Cir.1998). omitted), 777, (quotation gal, cert. Ac 782 2246, cordingly, correctly the district court ruled (2005). argues might subject the notes that the notes were not to review information under the Act. v. exculpatory contain Jencks See United States New, (8th Cir.2007) discrepancy there between McGin F.3d 376-77 (“the testimony pretrial hearing purpose require nis’s at a of the disclosure testimony at trial concerning his whether ment assist the defense cross- gun examining Bolden told Price the was hidden un the witness who made the state ment, gutter Re not with other wit questioning der Bolden’s residence. some ness”). notes, argues, might appeal view of the on that the impeached testimony regarding trial Jencks Act material have Price’s and notes were investigation. “bolstered doubts that Bolden was the McGinnis’s That contention However, gunman.” alleged discrep not raised in the district court and ancy upon portion plain is based of McGinnis’s cannot survive error review. See elaboration, showing that 9. With little Bolden also is without merit. He made no government provided have rough should all any interview notes even existed. Van rough police persons Brocklin, notes from interviews of 115 F.3d at 595. shooting. argument who witnessed the This dis- sentenced to death. We 117 should be Grajales-Montoya, v. United States use of approved courts have (8th agree. Other Cir.), F.3d justice non-statutory ag- an obstruction of L.Ed.2d 423 upon post-offense factor based gravating See, Higgs, e.g., United States conduct. Cir.2003) (dis- Penalty 322-23 Phase Issues VII. Other destroying weapon, posing of murder Non-Statutory Aggravating Fac A. evidence, directing witnesses physical statutory aggrava listing After tors. Edelin, lie); States v. factors, provides the FDPA ting (threat- (D.D.C.2001) F.Supp.2d 76-77 any ag other “may consider whether witnesses). consistent with ening This is notice has been factor for which gravating under of obstruction the treatment 3592(c). In 18 U.S.C. given exists.” Sentencing U.S.S.G. 3C1.1. Guidelines. notice, case, gave this submitting court did not err The district submitted, and the court district part on non-statutory factor based this non-statutory fac found three post-offense conduct.

Case Details

Case Name: United States v. Bolden

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Nov 4, 2008

Citation: 545 F.3d 609

Docket Number: 06-3264

Court Abbreviation: 8th Cir.