United States v. Fields

Further, Pryor everything. was able to the closet and de-

direct the officers pair of shoes that he specific

scribe a clothing the closet

wanted to wear. found

appeared Pryor. to fit Officers also

Pryor’s personal apart- mail inside the manager Finally, apartment

ment. Pryor that she saw once a week

testified mail, and that he’d answered

collecting his

the door on at least one occasion.

Pryor argued at trial that witnesses him,

against including the officers and lying.

apartment manager, were To the the trial boiled down to a

extent Pryor

swearing match between and the witnesses,

government’s the testimonial conceivably tar-

statement could have Pryor’s credibility

nished as a witness Nevertheless, eyes jury. given Pryor, against

the extent of the evidence

the admission of Whirl’s testimonial state- represented part

ment a small of what was overwhelming

an otherwise accumulation Therefore,

of evidence. the admission of statement, despite any possible Con- violation,

frontation was harmless.

III. CONCLUSION reasons, foregoing

For the we AFFIRM. America,

UNITED STATES

Plaintiff-Appellee, FIELDS, Lamont

Sherman

Defendant-Appellant.

No. 04-50393. Appeals,

United States Court

Fifth Circuit.

March KING,

Before SMITH BENAVIDES, Judges. Circuit BENAVIDES, Judge, writing Circuit except as to Parts II.A.1-3. for the Court SMITH, Judge, writing E. Circuit JERRY in Parts II.A.1-31. for the Court in a federal death appeal This is a direct challenges penalty case. Sherman Fields convictions and his death sen- his seven tence, twenty more than different claiming below, reject reasons we errors. For the and, of error accord- all of Fields’s claims convictions and sentences. ingly, affirm his

I. BACKGROUND at trial presented reveals evidence following: Fields was arrested on fed- September in 2001. charges eral firearms custody at the in federal He was held County Detention Center McClennan Waco, Fields Texas. November paying him bribed a correctional officer— key the deten- exchange for $5000 Using the escape center’s fire door. tion key, escaped. Fields custody, Fields met fleeing After federal friend, Through this up with friend. car and a .32 caliber Fields obtained a Jr., Atfcy.,San Joseph Gay, H. Asst. U.S. evening, Fields visited his That revolver. TX, Antonio, (argued), Coleman, L. Lane Steven Hill- Suncerey ex-girlfriend, Justice, Crim, Div., Washing- Waco, Dept, she was where Hospital crest ton, DC, baby. for U.S. newborn attending to her seeing other angry with Coleman & (argued), Owen Owen Robert Charles and Coleman conversed men. After Fields Austin, Rountree, TX, for Fields. time, her to Fields convinced for some Block, DeBruin, Jenner & David William They with him. drove hospital leave the DC, for Amicus Washington, Curiae. Texas, just out- Downsville, a small town inter- two had sexual of Waco. The side course,2 shot Coleman and then Fields unanimous, consensu- whether the sex was It is unclear writings are 1. The for the Court II.A.l, Judge except authored as to Part al. by Judge King. joined only Smith and that, in the twice head. After he dragged grounds admission certain body her dead from the road into some out-of-court statements to establish underbrush to hide it. Fields prior committed violent Af- crimes. ter hearing evidence, additional later, jury days

Several Fields approached a recommended the death penalty. Hillcrest Follow- Hospital employee, Tammy Ed- ing this recommendation, wards, while Edwards was court sen- exiting her car. tenced Fields to death. Brandishing handgun Fields appealed, and grabbing her throat, challenging his by the convictions and Fields his death demanded that Ed- sentence. get wards back car. Although Ed-

wards was able to struggle free, Fields

managed away to wrestle her keys. car II. DISCUSSION Fields away drove in Edwards’s car. While Fields raises a variety of potential body Coleman’s found on November errors, trial his more substantial claims 21, more than two weeks after her death. concern the sentencing phase of trial. At days later, Three police rearrested Fields. expense of a chronological account of The Government charged by Fields a sev- the trial proceedings, we by begin address- (1) en-count indictment with conspiring to ing the sentencing issues before turning to escape (2) from custody, federal escaping potential trial errors. (3) from federal custody, using carry- ing during firearm and in relation to A. CLAIMS OF ER- SENTENCING escape, resulting in (4) murder, intentional ROR (5) carjacking, using and carrying a fire- 1. arm CONFRONTATION during and in relation to carjacking, (6) felon possession (7) firearm, of a Fields maintains that the district court using and carrying a Ruger .22 caliber by erred admitting hearsay testimonial firearm during and in relation to escape. his capital sentencing proceeding in viola- trial, At Fields represent asked to tion of him- v. Washington, 541 U.S. Crawford self. The district court against advised 158 L.Ed.2d 177 such a course of action. preserved Fields After in- purely this legal claim of sisted, the court instructed his error at previ- two sentencing, so our review is de ously-appointed attorneys to act novo. as stand-

by Following counsel. several days of

evidence, a. The convicted Fields Nature on all Confrontation counts. Clause Challenge

The Government sought a death sen- Fields challenges, on the basis of tence on the pursuant murder count to 18 the Clause, Confrontation the introduction § U.S.C. 924{j)(l).3 separate At his trial at sentencing of several hearsay state on sentencing,4 Fields right his waived ments of types: five statements made proceed pro se and was represented by about him his juvenile mother and pro counsel. Fields objected on Confrontation bation officers in various records intro- counts, As to the noncapital the district hearings selection, on death eligibility and as court sentenced Fields to 715 months of im- some courts have recently done in "trifurcat- prisonment. See, ed” e.g., trials. United States v. Johnson, F.Supp.2d (N.D.Iowa 4. This typical was a one-part sentencing pro- 2005). ceeding. The court did separate not hold challenged statements Rather, the all of Proba- by a Juvenile evidence into duced govern- the part as of (2) were introduced official; statements Department tion past vio- Fields’s to establish in effort ment’s officers by corrections him about made dangerousness, and future by conduct into evidence lent introduced records prison nonstatutory aggrava- are made which officials; (3) both of statements prison state gov- in the into that were included ting introduced factors reports police in by officers officer than the ernment’s notice.6 other by someone evidence (4) a detective’s report; the made had who nonstatutory of The establishment offi- investigating on the description, based necessary is neither factors aggravating shooting that drive-by of the report, cer’s of the imposition to authorize sufficient nor attempted of conviction 1992 to Fields’s led Nonstatutory aggravating penalty. death (5) by wit- made murder; and statements jury in by the may be considered factors the officers while officers to police nesses a once sentence selecting appropriate an in past crimes various investigating were for the death eligible found defendant but been involved may have Fields which be, not, cannot and they are penalty, but (the state- charged never was for which he the eligibility, -as to determine used testi- the officers’ in being described ments explained: Court has Supreme mony). circumstances aggravating [Statutory statements challenged of the None necessary func- constitutionally play ef- government’s part as presented definition: legislative of stage at the tion statutory aggravating the fort to establish persons of the class they circumscribe under death-eligibility trigger factors the penalty. But the death eligible for (“FDPA”). Penalty Act Death the Federal jury the require does not Constitution 3592(c). Indeed, § U.S.C. See 18 fac- aggravating possible ignore other any way relevant are statements selecting, from process of in the tors factors included eligibility-triggering who class, defendants those among that Intent To Seek of Notice government’s to death. actually be sentenced will are factors Death. Those of a Sentence 878, 103 462 Stephens, U.S. Zant during (1) occurred death that Coleman’s (1983). L.Ed.2d S.Ct. (or flight immediate Fields’s commission nonstatutory only to they relate Because of) in viola- escape an from commission factors, hearsay state- (2) aggravating 751; Fields § of 18 U.S.C. tion relevant are by Fields challenged ments or state a federal convicted of had been appropri- anof jury’s selection only to the imprisonment by punishable offense authorized an from within use, punishment ate involving the year, one more than of his the establishment range and not fire- use use, threatened or attempted After penalty. death eligibility for he had committed arm; con- caselaw and reviewing applicable planning substantial offense after “indi- importance sidering the particular of another.5 the death to cause preparation finding 1998) the exis (stating "[a]fter aggravating the three two jury found 5. The aggravating (all statutory one but of at least doubt tence beyond a reasonable factors FDPA], may In- consid preparation”). planning [under factor "substantial felony prior deed, nonstatutory aggravating stipulated to the er the existence involving of a firearm. given use conviction been notice has for which factors S.Ct. aff'd, government”), 3593(d); United § see also U.S.C. See 18 6. 144 L.Ed.2d Jones, Cir. States cases, sentencing” capital sexuality” vidualized we sessed “a morbid and classi- society.” conclude that the Confrontation Clause fied him as a “menace to to bar the operate does not admission of Id. at testimony relevant sen- challenged The defendant his sentence authority’s

tencing selection decision.7 process grounds, on due stating that his rights constitutional had been violated be- Rights Capital b. Constitutional cause “the sentence of death was based Sentencing: Williams v. New upon by supplied information witnesses York with whom the accused had not been con- rights traditionally Constitutional have oppor- fronted and as to whom he had no sentencing, been more circumscribed at tunity for cross-examination or rebuttal.” even than capital sentencing, during the Supreme Id. 69 S.Ct. 1079. The York, guilt phase. Williams v. New rejected Court challenge, holding 93 L.Ed. 1337 judge, process, consistent with due could (1949), judge a state sentenced a defendant sentence a defendant on the basis of infor- to death on basis of information ob- open mation untested in court. “[P]osses- pursuant statutory presentence tained to a sion of the possible fullest information investigation relayed and judge out- concerning the defendant’s life and charac- side the courtroom. At sentencing teristics” was “essential” a judge’s se- hearing, judge explained why he be- sentence, appropriate lection of an and penalty appropriate: lieved the death therefore judge] pre-sentence stated that the [The do think we the Federal Constitution investigation many revealed material restricts the view of the sentencing facts concerning appellant’s background judge to the information received though which question relevant to the open court. The due-process clause punishment properly could not have should not be treated as a device for brought been to the attention of the freezing the evidential procedure of sen- in its question consideration of the tencing in procedure. the mold of trial guilt. experience He referred to the So to treat the due-process clause would appellant thirty “had had on other bur- preclude hinder if not all courts state glaries in and vicinity” about the same and federal from making progressive ef- where the murder had been committed. improve forts to the administration of appellant had not been convicted of justice. criminal burglaries these although judge had 247, 251, information that he had confessed to Id. at 69 S.Ct. 1079. The Court some and had been identified urged as the was to “draw a constitutional dis- perpetrator of some of the others. The tinction procedure as to the obtaining judge also referred to certain activities information where the death sentence is of appellant as probation shown imposed,” explicitly but it refused to do so. report appellant pos- indicated Id. at 69 S.Ct. 1079. Furthermore,

7. Because the Confrontation Clause does not as discussed in more detail in- case, apply testimony challenged fra, in this we applicability decline to decide the unnecessary to determine whether presentation the Confrontation Clause to the relevant sentencing statements are testimonial under of evidence at that is relevant - Washington, and Davis v. eligibility eligibility to death or to both Crawford -, 165 L.Ed.2d 224 selection. dissent, however, posits than must fail. The process, a due rather Williams Amendment, does is irrelevant to the issue at case and therefore Williams Sixth explicitly hand because it is not a Sixth the result of Fields’s Confron- not dictate conclude, We Amendment case because challenge. tation Clause however, “supposed distinction be- Williams Court that there was that Williams’s capi- distinction’ sentencing proceedings no ‘constitutional between guilt and tween sentencing ordinary sentencing.” tal sentencing author- emphasis and its on suggested have body of information Now later decisions ity’s access to wide different,” punish- individualized that “death is the dissent takes in the interest of position nothing that Williams has is relevant to our Confrontation ment question admissibility in the notion offer inquiry. Included sentencing capital sentencing. evidence at We dis- influencing information open agree. introduced in decision need not be no the idea that defendants have court is i. Williams’s Status as a Due Process right phase at and confrontation Does Not Preclude Its Case hearsay not therefore that testimonial Relevance Indeed, inadmissible. the Court

per se rights to confront and referred to Although it did not do so under the “salutary and time-tested Amendment, cross-examine as guise of the Sixth pro- included within the due protections” right plainly Court discussed the Williams only available “where guarantee Furthermore, cess but even in of confrontation. guilt question for consideration is the incorpo- Supreme the wake of the Court’s 245, Id. at 69 S.Ct. of the defendant.” against ration of the Sixth Amendment some, 1079.8 application and its but not states all, sentencing, rights Amendment at Sixth Williams Continuing c. Relevance of been over- infra, see Williams has never Williams, fact, to cite ruled.9 In the Court continues logic If we adhere to the are challenge proposition for the that there Williams Fields’s Confrontation phase capital sentencing death-eligibility of a analyzed the relevant issues in 8. The Court process quali- be- proceeding proceeding Williams under the rubric of due a is similar to challenge capi- the case to a cause involved process protections fying enhanced due imposed by a court. The tal sentence state constitutionally sig- Specht, there is a under incorporated Sixth Amendment was not statutory aggra- nificant distinction between Texas, against the states until Pointer v. necessary death-el- vating to establish factors 400, 1065, 13 L.Ed.2d 923 U.S. 85 S.Ct. igibility nonstatutory aggravating factors only may considered after defen- be eligi- to be death dant has been determined Specht post-incorporation case v. 9. Even Bourgeois, 423 F.3d United States v. ble. See Patterson, 605, 610, 1209, 87 S.Ct. 501, Cir.2005) (5th (holding that failure (1967), which held that due 18 L.Ed.2d nonstatutory aggravating factors in charge pres- process requires that a defendant "be error be- indictment is not constitutional counsel, opportunity ent with have an to be "only statutory fac- the FDPA cause under heard, to be confronted with witnesses him, cross-examine, expose defendant tors a criminal against right have the penalty”) (relying v. United death on Jones evidence of his own” where the and to offer 2090, States, 373, 377, effectively sentencing proceeding adds a new 119 S.Ct. 527 U.S. requiring fact-finding (1999)). charge Accordingly, additional 144 L.Ed.2d 370 punishment, explicitly leading to additional applicable because Specht not to this case Specht, to overrule Williams. See declined challenges relates the evidence 608, Although 386 U.S. at aggravating nonstatutory factors. stronger argument can be made that per no se prohibitions constitutional on the Other courts have relied on a due pro hearsay introduction of at sentencing.10 analysis cess rather than the Confronta tion Clause when considering right Williams, These decisions discuss See, confrontation at sentencing. e.g., the constitutional limitations on scope Berzon, United v. States 941 F.2d 16- and type of information may a sentencer (1st Cir.1991); United States v. Cas consider, under the umbrella of pro- due tellanos, 904 F.2d 1495-96 cess rather than the Sixth Amendment. Cir.1990); United Carmona, States v. This may circumstance significant: be (2d 873 F.2d Cir.1989); 574-75 ruling that the enactment of the Sentenc- Richards, United States v. 784 F.Supp. ing Guidelines not did transform ordinary 1373, 1377-78(N.D.Ind.1992). sentencing into a separate pro- criminal ceeding, requiring, Specht under v. Patter- Wise, United States 398 n. son, 386 U.S. (8th Cir.1992) (en 18 2 banc) (emphasis add (1967), L.Ed.2d 326 that a ed). defendant be More recently, in holding that Craw accorded the full panoply of rights, trial does apply not sentencing, the Sev ford the Eighth Circuit stated the following: enth Circuit has stated that “the relevant

We recognize provision sentencing Williams v. New is the Due Process York, Clause, Oklahoma[, Williams clause; confrontation 576, 421, 79 S.Ct. 3 Williams (1959)], L.Ed.2d 516 shows that witnesses providing and Specht all information to application considered the guilt court after is es of right to confront tablished witnesses are not under accusers within the the rubric of meaning the Due Process of the Clause of confrontation clause.” Amendment, Fourteenth Roche, United v. ... States 614, [but] 415 F.3d 618 — we note Cir.), that Specht denied, was decided cert. U.S. -, after 126 671, 163 Sixth S.Ct. (2005).11 Amendment’s Confrontation L.Ed.2d 541 Clause was found applicable to the ii. Gardner v. Florida States via the Fourteenth Amendment. Texas, v.

Pointer 400, 380 U.S. 85 S.Ct. Perhaps more importantly, Gardner v. 1065, (1965). 13 L.Ed.2d 923 ... Florida, That 349, 97 1197, S.Ct. 51 the Supreme Court analyzed the right L.Ed.2d (1977), 393 a post-incorporation of both decision confrontation regarding procedural require- before after Pointer as an issue process due sug- ments at capital sentencing, of establishes gests that process, due not the that Williams remains relevant in cap- Confron- tation Clause, provides the relevant ital sentencing Gardner, context. a testing the use hearsay plurality framework held for that a defendant of cannot be testimony at a sentencing proceeding. sentenced to death on the basis of informa- See, e.g., Tucker, United States v. 476, 404 485, U.S. 508 2194, U.S. 113 S.Ct. 124 443, 446-47, 589, 92 S.Ct. 30 L.Ed.2d 592 L.Ed.2d 436 alia, (citing, inter Williams proposition sentence, that in selecting a "a 11. Roche noncapital is a case. The Seventh judge may appropriately conduct an inquiry Circuit, however, ruled, had on the basis of scope, broad largely unlimited Williams, either as to Supreme "the Court has held the kind of consider, may information he or that the Confrontation Clause does not apply the source come") which it may (empha- capital from sentencing. applies It through the added); sis States, see also Wittev. United 515 finding guilt, of but sentencing, not to even 389, 397-98, 2199, 132 when that Walls, sentence is death.” Szabo (1995); L.Ed.2d 351 Mitchell, Wisconsin v. (7th Cir.2002). 398 sentencing proceedings] capital plies [at and con- to a defendant undisclosed tion course, entire not, implicate the of re- does investigation presentence ain tained procedural criminal trial panoply a process, because, satisfy due port n. 9. at a chance id. rights,” given must be defendant capital information adverse explain or to rebut plu notes that Gardner The dissent Id. at sentencing. at introduced on the rality distinguishes also Williams blush, ap- ruling this first 1197. At S.Ct. judge in trial Williams ground “[t]he holding of Williams core to call the pears ‘ appellant “afford asked to was not of Gard- Any characterization doubt. into any of [the refute or discredit chance to harbinger a Williams-killer ner as cross-examination by issue] at statements right confrontation application ’” 356, at S.Ct. Id. or otherwise.” misplaced, would be sentencing capital at Williams). the Second Cir As (quoting however, two reasons. for at least however, stated, “does Williams has cuit Williams, Gardner, is a due First, like fail of waiver any concept turn on what rather, to examine rests, Asked case. process object. It ure Due Pro- have under defendants does not rights process that due ground broad presenta- regard with cess Clause informa on out-of-court reliance preclude sentencing, the of evidence tion United States sentence.” imposing tion in were entitled defendants (2d noted that Court n. 11 Fatico, during of counsel effective assistance Cir.1978). but sentencing, id. note making despite importantly, More confronta- right no mention made to ob- failure defendant’s of Williams to the notion tion, lending credence further op- an denial sentencing to the ject at aas of Williams categorization the that veracity of the the challenge to portunity does case process due pre-incorporation alia, through, inter information relevant issue with to the its relevance vitiate cross-examination, sug- nowhere Gardner we are faced. which hearsay cross-examination that gests to declined Second, explicitly Gardner necessary to particular declarants distin- and instead Williams overrule fo- instead Gardner process. satisfy due holding of it, stating that “the guished has information solely on whether cuses to this directly applicable is not Williams that he defendant so been disclosed “[I]n at Id. case.” means. by any explain” “deny or can concerning the facts the material Williams assuming for basis offers no Gardner con- were which background defendant’s pre- a witness that cross-examination were de- report in the presentence tained evidence, example, hearsay senting open judge by the trial in detail scribed satisfy constitu- to sufficient not be would oppor- court,” affording the defendant John concerns, that Professor a fact tional accuracy or mate- challenge tunity “to frequently is cited work Douglass, whose The Gardner facts. Id. riality” of said “The acknowledges: dissent, fully by the due only that a defendant’s held plurality to right that never said Court has he is where abridged are rights process sentencing information explain’ ‘deny or deny or “opportunity no similar given that rights the confrontation includes evidence, id. explain” adverse see, hear, right to rejected: to Williams careful plurality in- sources ap- and cross-examine process fact that due “[t]he note timony psychiatrists formation.”12 of two they “that had perused reports medical from psy- other reason, Estelle, For the same Smith Vecchio, chiatrists who had examined Del (5th Cir.1979), 602 F.2d 694 neither com- and that the conclusions reached in those rejection pels implies princi- nor reports supported opinions” their that the ples underlying Williams and the exten- sociopath. defendant was a The court held right sion of the confrontation capital permitting Illinois’s statute the admis- There, sentencing. we held that a defen- hearsay sion of such at capital sentencing process rights dant’s due were violated adequately protected the defendant’s con- calling psychiatrist the state’s as a sur- stitutional rights by “providing that [de- prise capital witness at a sentencing pro- given opportunity fendants] ‘shall be a fair ceeding. Gardner, Reasoning from we to rebut information received at the “[s]urprise stated that can be as effective hearing.’” Id. at 1388. The defendant secrecy in preventing as effective cross- given had fact been that opportunity, examination, in denying ‘opportunity for because had “[h]e access to the contested (defense) challenge accuracy counsel to hearsay reports; he could have cross-ex- materiality or of evidence.” Id. at 699 Rogers amined Drs. and Cavanaugh about Gardner). (quoting hinted, We never the reports; he could have called his own however, that providing a defendant the experts.” Id. opportunity question, with advance preparation, a witness presenting hearsay above, Based on the we wholly find un- evidence satisfy process.13 would not due persuasive the Eleventh Circuit’s exten- (in Smith)

The decision in sion Del Vecchio v. Ill. reliance on Dep’t Gardner and of Corr., Cir.1994), Sixth Amendment right confrontation support proposition through offers for the entirety of the capital sentenc- process guarantee due of an opportunity ing process, and we note that that circuit is “deny explain” or evidence does not under one to have taken that step.14 cut Williams’s ruled, sanction of the use of out- The Seventh pursuant Circuit has Williams, of-court statements at capital sentencing. the Confrontation Clause Vecchio, In Del the court was faced with a does not apply sentencing,15 and capital defendant’s challenge, on Confron the Fourth expressed Circuit has doubt tation grounds, to the in-court tes- that it does.16 Douglass, 12. John G. Confronting 1227, Wainwright, Death: 14. See v. 685 F.2d Proffitt (11th Cir.1982); Rights Capital Sixth Amendment 1252-55 Sentenc- United States v. Cir.2006), Brown, 1967, 1330, (2005). (11th ing, 105 Colum. 441 F.3d 1980 1361 n. 12 L.Rev. - Indeed, denied, -, reference, rt. picked U.S. 127 WilliamsCourt’s S.Ct. ce 1149, - L.Ed.2d -(2007). Court, up by the Gardner to the defendant’s challenge failure to the relevant information Szabo, 15. See (stating 313 F.3d at 398 addi- "by arguably cross-examination or otherwise" tionally that on collateral review it was "not suggests that general, cross-examination in question holding entitled” to of Williams and thus hearsay cross-examination of a de- light developments in of more recent capi- in particular, clarant in should not be deemed sentencing). tal only denying effective means of or ex- plaining sentencing. adverse information at 281, Higgs, 16. See United States v. (4th Cir.2003) (stating 324 plain that under logic applies 13. This equally generic to the error standard of review is far "[i]t from clear reference to "the benefit of cross examina- applies the Confrontation Clause a to Estelle, 880, tion” in v. 463 U.S. capital 898- sentencing proceeding”) (citing United Barefoot 99, 3383, (1983). 157, 103 S.Ct. 77 L.Ed.2d Terry, 1090 States v. 916 160-61

331 Sixth Amendment Application i. “Death is d. Different” Sentencing Rights at inquiry be- of our scope Expanding decided, cer Since Williams Gardner, more Court’s Supreme yond have been rights Amendment tain Sixth jurisprudence is different” “death general sentencing incrementally to applied the rele- either into doubt call does Now noncapital. and capital process, of Williams persuasiveness or vance counsel right have a to criminal defendants instant presented question Likewise, they on the sentencing.17 throughout a finding, beyond precedent jury of Court a right An examination a case. have necessary to doubt, any facts Amend- reasonable Eighth the Sixth regarding maximum higher to a a defendant expose regard with “at least indicates ments death, regardless including penalty, Amend- in the Sixth listed rights to the are labeled “sentenc those whether facts capital sentenc- ment, for the Court’s rules of the than rather elements factors” ing noncap- for the same as essentially ing are offense.18 it comes .... sentencing When ital ultimate it comes to the When it sentencing, rights Amendment Sixth out punishment of an appropriate selection after all.” different seems, is not so death however, options, range of of a available Death, Confronting Colum. 105 Douglass, right no constitutional there is at L.Rev. capital case.19 noncapital or sentencing in a factors,” "sentencing factors those as 1990), proposition "United beled for the Cir. as ele- using appropriately considered long history of are more courts have States logic applies sentencing” "trial capital offense. This hearsay of a ments reliable sentencing uncorroborated may properly consider equally court establishment has had the defendant hearsay to a expose evidence that necessary to defendant factors explain”). or opportunity to noncapital rebut an penalty in the higher maximum context. 134, 128, Rhay, U.S. 389 Mempa v. 17. See (1967) 254, 137, supra, Fields’s L.Ed.2d Confrontation 19 336 As discussed 88 S.Ct. applicable at sentenc- (stating right challenge to evidence relates Clause Washington, 466 v. general); Strickland relevant ing introduced government 2052, 686-87, 668, 80 L.Ed.2d S.Ct. appli- 104 U.S. decision. ultimate selection jury's right applies at (1984) (holding that the 674 cability Confrontation sentencing particular). factors eligibility-triggering establishment of presented squarely question therefore not a 466, Jersey, U.S. New 530 Apprendi v. 18. See case, to resolve we decline by this 2348, 482-83, 147 L.Ed.2d definitively. 584, 609, Arizona, (2000); Ring v. 2428, L.Ed.2d Pennsylvania, 477 U.S. McMillan 19.See Summerlin, Schriro L.Ed.2d 67 S.Ct. (2004), the Court 159 L.Ed.2d Amendment is no Sixth (holding that "there proposition for explained Ring that stands Bullock, sentencing”); jury Cabana right to statutory aggravators "because Arizona’s that 689, 376, 385, L.Ed.2d 88 106 S.Ct. 474 law) (as the class a of state matter restricted decision (1986) (observing "[t]he 704 defendants, aggrava- those death-eligible of ap- punishment ... is particular whether a con- for effectively elements federal were tors we given is not one case propriate in subject to were purposes, and so stitutional jury”); by a made required to be ever have the Constitution procedural requirements 460, 447, Florida, 104 Spaziano v. Accordingly, trial elements.” attaches (1984) (reasoning 3154, 340 82 L.Ed.2d for argument to made stronger be ais there nothing in the safe- certainly is "there right confrontation attachment of recognition by the Court’s guards necessitated attempting to estab- government is where pen- death of the qualitative difference Though of the Ia- factors: eligibility-triggering lish alone, right, to the confrontation regard unpersuasive And with we find the dissent’s definitively maintains argument why caselaw textual the Confronta- principle noncapital con- tion Clause through Williams should extend the en- right tirety that the capital sentencing process, text and establishes does not of the apply sentencing. particular, light jury at fact that right extends operate Confrontation Clause does not as far eligibility as the determination. hearsay bar the introduction of testimonial The dissent contends that noncapital sentencing.20 at Jury unique Clause has a second [t]he limitation that does not apply to the

Here we are asked to decide whether Right to Counsel or the Confrontation right applies the confrontation with full only jury required. Clause: a “trial” is throughout capital sentencing, force de- trial, A only required is at whereas spite the fact that is nonexistent at both the Right to Counsel and the Con- that, ordinary sentencing. Given as shown apply broadly frontation Clause more above, right no other Sixth Amendment non) prosecution,” the whole “criminal applied differently has been at {vel sentencing. thus to capital sentencing from how it applied is at noncapital sentencing, there little is reason (Internal omitted.) quotations and citations divergent regard to establish rules with argument proves much, This textual too right the confrontation when the sentenc- for it would apply equally noncapital at authority ing selecting sentence from sentencing, already where it has been es- range. within an authorized tablished that the right of confrontation is nonexistent.21 Supreme On the basis Court’s consistent treatment of Sixth Amendment argument The dissent’s in favor of the rights noncapital across application cases of the Confrontation Clause alty requires preme that the sentence be im- expressly ap- Court decisions that posed by jury”). proved the consideration of out-of-court state- Chau, sentencing”); at ments United States Tucker, 446-47, 20. See 404 U.S. at 92 S.Ct. (11th Cir.2005) (confirming 426 F.3d 1318 589; Witte, 397-98, U.S. at precedent that “there is no from this Court or 2199; Mitchell, 508 U.S. at Supreme establishing from the Court that the also, 2194; Hall, 405; e.g., see 152 F.3d at prohibits Confrontation Clause the admission Beydoun, United States v. 469 F.3d hearsay sentencing proceed- evidence at (5th Cir.2006); Rodriguez, United States v. ings”). (5th Cir.1990) (reasoning may rely that "[a] court on uncorroborated Furthermore, caselaw from other circuits hearsay testimony” noncapital sentencing); at question calls into the dissent's textual inter- Roche, (observing 415 F.3d at 618 that the pretation of the Sixth Amendment. "As Clause, Crawford, Confrontation and therefore matter, amendment, textual the sixth which apply sentencing); do not at United States v. prosecutions,’ arguably ap- refers to 'criminal Luciano, (1st Cir.2005) 414 F.3d trial,” plies only suggesting thus that the (explaining "[n]othing re- Crawford “prosecution” words and "trial” are in fact quires previous us to alter our conclusion that Kikumura, interchangeable. United States v. there is no Sixth Amendment Confrontation (3d Cir.1990). 918 F.2d "A sen- right sentencing”); United States v. Martinez, tencing hearing prose- ... is not a (2d 'criminal Cir.2005) "[njeither meaning cution’ within the of the Sixth (noting that nor Booker Crawford purpose Amendment because its sole applicability right ... addressed the appropriate punishment determine the sentencing confrontation to the context or the offense, admissibility hearsay testimony for the guilt.” at not the sentenc- accused’s Francis, "[tjhese 803, ing proceedings,” United therefore States v. cases Cir.1994). provide ... question prior no basis to Su- however, a Fifth Amend- Bullington, on the sentencing based capital throughout case, and the Court jeopardy double ment and the right to counsel the interplay of as stated follows: Spaziano in on similar falters of confrontation right sentencing is like capital that The fact a “[t]he that states The dissent grounds. significant respects in the a trial rights both the extends Amendment Sixth ... does Jeopardy Clause Double in ‘all crim- to confrontation to counsel respects a trial in that it is like mean that where suggesting prosecutions,’ inal Amendment’s to the Sixth significant too.” does the other applies, right one jury trial. Court’s guarantee of a “[rjequir- that asserts further The dissent with the risk Bullington concern trial-like in the FDPA’s ing confrontation resources, State, all its that the with appropri- regime particularly sentencing down, thereby a defendant wear would adver- interdependence given the ate death erroneously imposed leading to an Right to in- meaningful danger .... no similar rights [A] There is penalty. sarial a a defendant denying on volved sentencing depends capital at Counsel or of life sentencing the issue trial on if, the dis- But as rights.” confrontation sentencer, or judge whether death. The the right to counsel the suggests, sent obligation a jury, has constitutional tools adversarial are confrontation right of circumstances unique evaluate begs the again step, in lock that move and the sentencer’s defendant individual right is the confrontation Why question: impor- More is final. for life decision sen- noncapital admittedly nonexistent capi- a tant, unique aspects, despite its counsel right to though the tencing, even involves sentencing proceeding tal proceed- throughout such applies plainly involved issue same fundamental ings? de- proceeding sentencing any other —a punish- appropriate termination of dilemma, dissent this To address imposed on an individual to be ment sentencing is capital emphasizes has never Amendment .... The Sixth noncapital sen than is adversarial” “more right to a a thought guarantee been should Clause tencing: “The Confrontation of that issue. jury determination un sentencing, FDPA fully because apply 468 U.S. Spaziano, trial- sentencing, involves noncapital like added) (internal omit- citations (emphasis For this proceeding.” like adversarial ted). analysis indicates The Court’s Bulling dissent relies proposition capital “unique aspects” of despite the Missouri, n. 438-39 & ton v. not, re- it is with sentencing proceeding, (1981), L.Ed.2d decided issue be to the ultimate spect ap Court Supreme by stating “[t]he punish- (the appropriate an selection adversarial rights’ to ‘trial plies certain is ordi- ment), “trial-like” than any more ‘hall where the Confrontation hearings sentencing, that bear sentencing nary ” inapplicable.22 held has been guilt or innocence.’ Clause the trial on marks of not. does though Sixth Amendment regarding the even argument support its In Polk, 438 cites Robinson v. then sentencing pro- The dissent nature adversarial denied, (4th Cir.), cert. note of ceedings, dissent makes (2006), - U.S. -, 166 L.Ed.2d applied, requirements procedural heightened proposition Confrontation statutory constitu- rather than a matter of as sentencing pro equally to "applies hearings un- sentencing imperative, in tional jury." reaches ceedings Robinson tried em- dissent particular, der the FDPA. Illinois, Morgan v. based on sentencing, that conclusion requires jury Act phasizes that the justify proposed Further its penalty anoma- was warranted. The dissent as- divergent lous treatment of capital and serts that noncapital sentencing with regard to the critical point [t]he is this: because these Clause, Confrontation the dissent also re- de capital sentencing proceedings facto history capital trials, lies on the of murder trials, took the form of full criminal the stating that the time the “[a]t Confronta- possessed defendant rights full trial written, tion Clause was capital a trial was However, confrontation. the notion that single, a proceeding unified at which both capital sentencing might be conducted

guilt and were sentence decided. The “outside of an adversarial trial” is strict- nothing capital Framers knew sentenc- ly “post-constitutional” phenomenon. ing proceedings separate from trial.” If The goes dissent on to state that at the capital one was convicted of a felony, one time of Founding, the suggest “cases automatically sentenced to death. Ac- judges dissent, conducted cording noncapital sentencing the the trial in became a “de informal sentencing proceeding” in proceedings featuring which testimonial facto jury the would hearsay.” Therefore, render a verdict in favor of according to the dis- a lesser if sent, crime it did not think the “[hjistory death supports constraining con- 719, 727-28, extrajudicial inadmissible impli- statements

L.Ed.2d 492 cating a defendant.” Id. at 1154. There constitutionally significant is a dis- however, Morgan, only pro- holds that due tinction between a of the trial elements of an cess jury mandates that in trials in which a is offense and the appropriate selection of an required, not constitutionally provid- if one is penalty range from an guilt available once has ed, impartial it “must stand and indifferent to determined, been and neither this Court nor by the extent commanded Sixth Amend- Supreme Court has indicated that Thus, ment.” Id. at 112 S.Ct. 2222. permissible, though constitutionally re- jury demanded by statute rather than the quired, jury sentencing use of renders neces- still, example, Constitution must be free sary application of the Confrontation Morgan says from racial bias. nothing, Clause to the selection decision. Further- though, about the manner in which evidence more, even if accept one were to presented notion sentencing must be general, at in or employs because the jury FDPA sentenc- sentencing judge in jury par- front of a or ing, the Confrontation Clause apply should Accordingly, ticular. unpersua- Robinson is throughout capital federal sentencing pro- sive. ceedings, jury sentencing notion dissent's citation of im- United States v. Cardenas, plicates greater rights constitutional 1154-56 does Cir. 1993) (en banc), nothing support position the broader argument does not boost advo- its is, by cated this That score. The dissent dissent: that the states that Carde clause applies capital recognizes nas to all sentencing proceedings, "that Confrontation Clause may provide regardless greater rights jurisdiction whether a cases tried be chooses juries employ jury fore sentencing. than in bench trials.” Like Mor however, states, gan, Finally, Texas, says nothing Cardenas several including about al- application jury sentencing, sentencing noncapital clause at low cases. See proceeding 2(b); whether the is before a Code Crim. P. § or a Ann. art. 37.07 Tex Ark. Instead, judge. 16-90-107(b)(l); it § stands for the unre Ky.Rev.Stat. Code Ann. proposition 532.055(2); markable applies § that the 557.036; clause § Mo. Ann. Stat. Ann. during guilt phase prevent of a § trial to 19.2-295. As we have noted Va.Code Ann. incriminating use however, length, out-of-court at statements the Confrontation Clause by made a co-defendant who has not apply been does not noncapital sentencing. The cross-examined, suggests that barring dissent explain why jury does not sentencing perhaps admission of such statements is should result in the attachment of the con- question less crucial when the guilt right or frontation sentencing even innocence being judge, determined though link-up noncapi- does not exist at given judge that a capable of "disregarding sentencing. tal of the Confronta- application sentencing, gard to the noncapital rights in frontation Rather, emphasis the Court’s tion his- Clause. has a different sentencing capital but Eighth sentencing in its on individualized the Confrontation suggests tory that the support to decisions lends Amendment apply.” should Clause principle behind Williams: animating Framers did The is logic This flawed. the more sentencing, to it comes When to our analogous an institution know of by for consideration information available because sentencing procedure, capital confi- authority, more sentencing the the that in the trials was no mechanism there in appropriateness have the dence we can sentencing “de so-called operated as facto the sentence. of of discretion for the exercise proceedings” that The dissent asserts that defen- jury determined after a even by penalty procedures the death “trial-like” eligible stringent for [t]he dant felony. A sen- capital sentencing derive convicting govern capital him of a that a lesser authority’s ability unique to select con- Supreme tencing from Court’s the spite in of capital penalty case reliability in a punishment cern with death “post-constitu- general- proceedings is indeed “In death-eligibility capital cases. the nothing in fact- and demanded that phenomenon, ly, tional” Court has th[e] why explains height- aspire dissent to a history finding procedures related as follows: reliability. not be This should of presumption ened standard includes such sentencing a natural conse- capital that concern is especial Now be discretion, of should execution knowledge that quence exercise of manner in which unfathom- in the same irremediable and the most treated is discretionary sen- is differ- understood that penalties; death Framers able be Wainwright, context to noncapital in the tencing ent.” Ford the use of testimo- 91 L.Ed.2d respect with S.Ct. treated omitted). (1986) (internal citations hearsay. nial reliability. essential to is Confrontation Amend- Sixth Neither the text the dis- passage from the Notably absent sup- history of murder trials nor the ment citation Ford is the pulls from sent the Confrontation the extension ports capi- the notion support Court uses penal- testimony relevant to a aspire “factfinding procedures tal capital in a case. Further- ty selection reliability.” The standard of heightened Supreme more, in which the manner wherein non) Spaziano, (vel pointed Ford Court applying proceeded has Court opined it had during sentenc- rights Amendment Sixth of- there is dis- included suggests no lesser

ing proceedings [t]he absence ordinary sen- the risk increases capital between fense instruction tinction convict, it is purposes, Amendment not because will tencing Sixth guilty in- provides no the defendant accordingly the Court persuaded murder, to avoid reasoning simply of Williams but capital dication In Beck [v. context. free. capital in the defendant setting abandoned has been Alabama, Eighth Amendment ii. The (1980)], found Court 65 L.Ed.2d inconsistent unacceptable that risk juris- Amendment Eighth The Court’s has de- reliability this Court with the dictate that does not likewise prudence capital proceedings. manded sentencing be treated differ- should words, rule, in other Beck goal of the re- ordinary sentencing with ently from to eliminate the distortion of the fact- jury’s discretion to ensure that the death finding process that is created when the penalty is a proportionate punishment and jury forced into an is all-or-nothing therefore not arbitrary or capricious in its capital choice between murder and in- imposition.” Buchanan v. Angelone, 522 Requiring jury nocence. that the be in- 269, 275, U.S. 757, 118 S.Ct. 139 L.Ed.2d structed on lesser included offenses for 702 regard With to the selection which the may defendant not be con- decision, the Court in Woodson v. North victed, however, would simply Carolina, introduce 280, 305, 96 S.Ct. type of another distortion into the fact- (1976), 49 L.Ed.2d 944 stated that “[b]e- finding process. We reaffirm our com- cause of qualitative [the] difference [be mitment to the reliability demands of in tween death and imprisonment], there is a involving decisions death and to the de- corresponding difference the need for right fendant’s to the benefit of a lesser reliability in the determination that death included offense may instruction that appropriate is the punishment in a specific reduce the risk of unwarranted case.” convictions. The Court explained the need for

Spaziano, 455-56, 468 U.S. at 104 S.Ct. greater reliability in the selection of an 3154. appropriate punishment entails not stricter Importantly, as Spaziano indicates, evidentiary rules, but the assurance of “in- where the Court discusses the need for dividualized sentencing” once defendant reliability in the Eighth Amendment con- eligible is for the death penalty: text, it is not talking the appropriate about Consideration both the offender and sources for information introduced at sen- the offense in order to just arrive at a even, tencing or generally, more about the appropriate and sentence has been reliability of evidence. It is instead focus- viewed as a progressive and humaniz (1) ing on the delineate, ante, need to ex ing development. See Williams v. particular offenses for which is death York, U.S., New 247-249, at proportionate punishment and the need S.Ct. ...; 93 L.Ed. 1337 Fur to be able to consider all man v. Georgia, U.S., 402-403, factors (particularly mitigating, but also 33 L.Ed.2d 346 ... aggravating) relevant to choosing an ap- C.J., (Burger, dissenting). While the propriate punishment once the death pen- prevailing practice of individualizing alty in play. death sentences, Reliable sentencing generally determinations re under Eighth Amendment, are those flects simply enlightened policy rather that result from a sentencing scheme that than a constitutional imperative, we be guards against arbitrariness streamlin- lieve that in capital cases the funda ing discretion at the eligibility and stage, mental respect for humanity underlying then allows for the exercise of wide-rang- Eighth Amendment, see Trop v. ing discretion at the stage. selection Dulles, U.S., 78 S.Ct. 590

In chastising a defendant for failing to ... (plurality opinion), requires consid recognize the “differing constitutional eration of the character and record of treatment” accorded to the eligibility the individual offender and the circum selection phases capital sentencing, the particular stances offense as a Court has stated that is in “[i]t regard to constitutionally indispensable part of the eligibility phase we have stressed process inflicting the penalty of the need for channeling and limiting the death. Likewise, any sentencing A defendant

Id. at given opportunity 153, 203, proceeding must be Georgia, 428 U.S. Gregg v. against “deny explain” or evidence (1976), L.Ed.2d 859 him, suggest does not challenge to a constitutional rejected Court Crawford mechanism confrontation argument scope of evidence “the wide testimony reliability through which hearings.” presentence allowed at Bockting, can be assessed. Whorton Cf. wisely Georgia court We think — -, 1173, 1183, 127 167 U.S. S.Ct. unnecessary impose not to has chosen (2007). Rather, L.Ed.2d Crawford can be the evidence that on restrictions that, where the proposition stands the approve and to hearing a offered at such the applies, confrontation is clause argument. So far-ranging open reliability: assessing of permissible method and the introduced long as evidence the sure, goal ultimate is To be the Clause’s presentence made at the arguments evidence, reliability it is but to ensure defendant, a it prejudice not hearing do rather than a substantive procedural a impose restrictions. not to preferable is commands, It not that evi- guarantee. jury the to it desirable for think We reliable, reliability that be dence be but it as much information before have as by particular assessed in manner: sentencing it makes possible when in the crucible of cross-examina- testing decision. tion. 203-04, 1354. 2909. at Crawford, at 96 S.Ct. 541 U.S. Id. the Con Our conclusion—that that suggest to eviden- All of this is not inapplicable is to frontation Clause capital reliability unimportant at tiary is only to testimony relevant presentation of Rather, point the salient is sentencing. deci sentencing authority’s selection reliability that concern particular that the being to doom defendants sion—does not sentencing ordi- capital from distinguishes on the basis of unrelia sentenced death Amend- Eighth under the nary sentencing “Although the Con hearsay ble evidence. reliability. evidentiary ment is not at sen apply does not frontation Clause say surely impor- this is not Evidentiary reliability tencing proceedings, on just it is at limitations sentencing, as are no constitutional tant at there capital pro hearsay at such Supreme evidence sentencing.23 The the use noncapital sen may not be A defendant jurisprudence, ceedings. Amendment Eighth Court’s of ‘misinformation basis however, evidentiary relia- tenced not make does ” Wise, 976 magnitude.’ constitutional at sen- any important more bility Tucker, 404 (citing F.2d at 402 sentencing, noncapital tencing than 589). process Accordingly, “[d]ue Clause does the Confrontation where of relia- minimal indicia that some requires apply. (providing Jones, § U.S.S.G. 6A.1.3 prejudice”) with e.g., States v. Compare, United Cir.1998), concerning a resolving any dispute 'd, "[i]n aff sentencing determina- (1999) important factor L.Ed.2d tion, FDPA, may relevant consider informa- “the court (stating defendant under admissibility under regard its tion without may introduce rele government and the trial, pro- applicable at sentencing the rules of during hear evidence vant information indi- has sufficient information vided caveat that such informa ing limited probable accu- reliable, reliability support its relevant, cia of probative and its tion be racy”). danger unfair outweigh the value must bility accompany hearsay statement,” £. ALLEN CHARGE Petty, United States 1365, 1369 About five hours sentencing after delib- (9th Cir.1993), significant and “a possibility began, erations sent a note asking justifies of misinformation the sentencing we “[i]f cannot to a come vote unanimous court in requiring the Government to veri on either death or imprisonment life with- information,” Fatico, fy [hearsay] possibility release, out what options F.2d at 712-13. the court punishment?” does have for The responded, court objection, “[y]ou without FDPA particular up sets are instructed on page 16 of the Punish- procedural at capital framework sentenc Charge ment Phase of the Court as fol- (1) ing adequately balances the requi ‘If you are lows: unable to unanimously site access to a wide range of information agree on either punishment option, the to achieve individualized sentences and impose Court will punishment, can- which protect the need to being defendants from not be a that, sentence of death.’ Beyond sentenced on the basis of “misinformation I am unable your to answer question.” of a constitutional magnitude.” Though Forty minutes jury the later sent note a the FDPA states that the Federal Rules of stating that “[w]e cannot come to a unani- Evidence do apply capital not sentenc agreement.” mous responded court ing, provides it also that a may defendant with the supplemental instruction “[p]lease any rebut information received aat hear your continue Id. deliberations.” Ap- ing and given must be a fair opportunity to proximately one later jury hour the re- present argument as to the adequacy of a turned unanimous sentence death. the presented information to establish the existence of aggravating or mitigating supplemental claims the in 3593(c). § factor. 18 Additionally, U.S.C. struction, to which he did not have the under the sentencing judge FDPA a may opportunity object in court, the district exclude if probative information its value is impermissibly a verdict coerced of death. outweighed by the danger creating un We review for of discretion supple abuse fair prejudice, issues, confusing the or mis mental instructions telling jury a to contin leading jury. the ue deliberating. See United States v.

Straach, (5th 243 & n. 13 Cir.1993). e. Conclusion States, Allen v. United

Based on the foregoing, the principles 492, 501, U.S. underlying relevant, Williams are persua- L.Ed. sive, (1896), and the Court ultimately stated very fatal to that “[t]he Fields’s Con- object of jury system frontation the challenge. is to the secure Given particular unanimity by a importance comparison of views, and individualized by arguments eases, among jurors sentences in the we will them If selves.” a “freez[e] the procedure having evidential difficulty of sen- reaching tencing verdict, a the permis mold of trial unanimous it is procedure,” Williams, sible instruct it where, here, as challenged testimony a large proportion of cases abso- relevant to a sentencing authority’s certainty lute could not be expected; selection decision. The that, district court did although the verdict must be the not err in admitting the challenged state- verdict of each juror, individual and not ments. acquiescence a mere in the conclusion of asserts, protective government guage, fellows, examine they yet should his unnecessary. candor, language is with submitted question deference to regard proper with charge the Allen We “scrutinize other; that it was each opinions of (1) requirements: with two compliance they if case duty to decide the their from Al approved deviation the semantic so; they conscientiously do could prejudicial to the charges cannot be len so listen, disposition to be with should reversal, and require as to defendant convinced, arguments; each other’s surrounding giving circumstances were for that, larger number if much the not be charge Allen must approved of an con- conviction, dissenting should juror Lindell, States coercive.” United a reason- his doubt whether sider Cir.1989) (internal upon impression made no which able one omitted). de quotations Our citations men, hon- many equally minds of so argu forecloses Fields’s in Straach cision If, est, himself. intelligent with equally on the Allen the variation ment hand, majority were for the other and coer unfairly prejudicial charge was to ask minority ought acquittal, cive. they might not rea- whether themselves following we considered In Straach judg- of a the correctness sonably doubt “ jury: ‘Con- given to a deadlocked charge not concurred which was ment the trial and sidering length majority. considered, to be of the evidence amount supplemental instruction Any similar Id. your you that continue requests the Court jury a deadlocked members of urges that in an to reach a verdict effort deliberations ” known as differences is now forego their Finding at 243. all counts.’ 987 F.2d on dynamite charge,” or “the an “Allen discretion, that stated abuse we no instruction, the degree third charge, the minority note did coerce [t]he instruction, nitroglycerin or the shotgun with the jury agreement members into Bailey, States charge.” United limit a time on delibera- majority, or set Cir.1972). (5th This “stan- F.2d opinion no as expressed The note tions. has been instruction supplemental dard pre- the court kind of verdict to what trial court by the nation’s well-received course, “con- phrase .... Of ferred be- charge precisely is judges. The used trial and the sidering length works, a ver- can blast it because it cause to be consid- of the evidence amount unable to jury a otherwise dict out of juror read a have might ered” been Id. guilty.” is agree person that should be obvi- that the to mean result due consideration jurors upon all ous to the instruc Fields contends that However, it remains of the evidence. your continue deliberations” “[pjlease tion note as coercive to construe the difficult none because it contained impermissible is verdict, inso- favoring particular or as of the tradition protective language be urged that “an effort” simply far as it jurors forego not to charge, telling al Allen unanimous verdict. made to reach gov views. The conscientiously-held their Thus, language deviat- the note’s even if contends, that contrary, to the ernment previ- respects ed in some from permissible is instruction supplemental charges, it Allen ously approved “dynamite” none contains because acceptable. charge, Allen of the traditional language added). The instruction (emphasis their Id. minority jurors to reconsider urging Straach, is here, one lan- similar “dynamite” In the absence of views. arguably problematic even less than the the district court process violated his due there, upheld one because the instant in- Eighth rights by Amendment allowing language struction no in any way contains government to use this metaphor. Ad- suggesting that “the result should be obvi- ditionally, argues he government’s that the ous.” metaphor use of the resulted in a sentence in part “passion, prejudice, based or attempt distinguish

Fields’s Straach factor,” arbitrary other in violation of 18 ground on the supplemental in- 3595(c)(2)(A). § U.S.C. jurors struction in this case told “keep deliberating,” without language indi- rule, “As a general constitu “an cating only made, effort” need be tional and other legal questions are re unpersuasive. Without setting any time de novo.” viewed United Delga States v. limit on indicating deliberations or that a do-Nunez, (5th Cir.2002) reached, verdict must be only idea (internal omitted). quotations citations and “an required effort” is implicit in the Claims of preserved trial, error not simple instruction to “continue delibera- however, are reviewed plain only. for error tions,” particularly considering 52(b). Fed.R.CRIm.P. jury had deliberating been six hours when given. the instruction was Fields claims that comparative arguments worth that encourage jury Finally, contrary to suggestion, Fields’s compare the value of the victim’s life the fact that the handed down a unan- with the defendant’s are impermissible un imous approximately sentence death one Payne Tennessee, der hour receiving after the supplemental in- L.Ed.2d struction does not indicate that the in- however, Payne, the Court held only that struction was coercive. In Montoya v. Eighth Amendment does not erect a Scott, Cir.1995), 409-10 per se bar to victim impact evidence and we found no coercion even jury where the that such evidence is admissible unless it is returned its verdict forty within minutes of “so unduly prejudicial it renders the receiving challenged the supplemental in- trial fundamentally unfair.” Id. at Straach, struction. the of On basis 2597. regard S.Ct. With compara to district court did not abuse its discretion in tive arguments, worth the Court stated instructing jury to continue its deliber- only that the “concern ... that the admis ations.

sion of victim impact permits evidence a jury to find that GOVERNMENT’S AR- defendants whose CLOSING victims were assets to GUMENT their community are more deserving punishment of than those whose government’s closing argument at perceived victims are to worthy” be less sentencing, prosecutor employed a te- largely unwarranted, because victim im “picture levisual picture” metaphor, tell- pact rarely evidence is offered for such a ing the jury imagine to that Fields’s activi- purpose. Id. at 111 S.Ct. 2597. before, ties during, and after Coleman’s murder playing screen, were one Thus, while to the extent that the Court ex Coleman’s activities before and pressed at the time disapproval comparative of worth of her murder were playing on the other. arguments, it only did so regard with to object Fields did not to the manner or victim-to-victim comparisons, not victim-to- content of the prosecutor’s discussion. He comparisons. Indeed, defendant in Hum assei'ts, for the first time on appeal, phries Ozmint, 224 n. 8 — U.S. -, denied, Background i. Cir.), cert. (2005), L.Ed.2d 133 S.Ct. testifying, Dr. Prior Coons Payne does not foreclose noted that court pres- moved to examine him outside the comparisons; suggest it victim-defendant jury challenge pur- ence of the to make a comparison is victim-to-victim “[a] ed suant to Daubert v. Merrell Dow Pharma- than a victim-to-defendant pernicious more ceuticals, because, it invite not does comparison (1993). The court granted L.Ed.2d 469 not commentary on collateral evidence Dr. Fields’s motion to examine Coons re- (the worthiness of properly before the garding reliability predicting future (victims) society), it does other members However, the court ulti- dangerousness. mitigating the defendant’s not counteract objections mately overruled Fields’s evidence, goals one of the main which was allowed the Government to call Dr. Coons Payne.” testify. evidence and impact Given that victim regarding After Dr. testified his Coons (both character evidence of a defendant’s experience, prosecutor education and are admissible at positive negative) posed hypothetical, which consisted of to discern capital sentencing, is difficult the facts of instant murder and prosecutor’s picture-in- use of the how the background some of Fields’s and criminal Fields’s consti- picture metaphor violated history. upon hypothetical, Based this statutory rights. pur- tutional and/or Dr. whether such prosecutor asked Coons estab- pose metaphor, aside from an constitute a future individual would events, lishing chronology was others, including in a danger persons nonstatutory highlight aggravating facility. Dr. responded correctional Coons (and is government trying factors the a “probability there was of future permitted) to establish: that Coleman was violence.” who needed her the mother of a newborn consistently and that Fields is a attention Analysis ii. cruelly away. violent man took her life who appeal, Fields makes clear that he is On error, Accordingly, there is no let alone arguing psychiatric predictions error, plain allowing government during punish- dangerousness future it did. present closing argument its as per se. In- phase ment are inadmissible stead, “question is EXPERT TESTIMONY ON FU- he states Í. the trial court whether the evidence before TURE DANGEROUSNESS relia- showing on this record reflected of introducing claims that certain Fields bility support sufficient to the admission as testimony on the issue expert psychiatric admittedly of Dr. expert opinion Coons’s dangerousness constituted error. of future subjective prediction and nonscientific dangerousness.” future about Fields’s Statutory Challenge a. contends that the district Fields (1) Apply Daubert Does Not statutory in admit

court committed error argument testimony first address the ting expert of forensic We admissibility Coons, governing the during punish Dr. that standards psychiatrist, gov also evidence at trial should phase expert ment of trial. Our review is for Hall, ern, strictly loosely, capital or 152 F.3d at either abuse of discretion. See Rule of Evidence 702 sentencing. Federal 402. provides expert evidence phase is admissi ment of a federal murder if, alia, trial. product ble inter “is the Fields contends that although the “may Daubert test not apply by its own principles reliable and methods” that are FDPA, terms under the ... the same applied “reliably to the facts of the case.” principles necessarily inquiry inform the Daubert, Supreme Court held that proffered whether evidence ap- meets the superseded Rule 702 requirement plicable statutory requirements, as well as general acceptance for admission of scien the overarching constitutional command of testimony. tific expert See 509 U.S. ” ‘heightened reliability.’ reject We both 125 L.Ed.2d 469. “Under positions. Daubert, the district court conducts a No Circuit we are aware of has ‘preliminary assessment of whether applied sentencing.25 Daubert More- reasoning methodology or underlying the over, as Fields acknowledges, the FDPA testimony scientifically valid and of provides may that evidence be admitted whether reasoning methodology or “regardless admissibility of its under the properly applied can be to the facts in ” governing rules admission of evidence at Norris, issue.’ United States v. 3593(c) (em- criminal § trials.” 18 U.S.C. (5th Cir.2000) F.3d (quoting Dau added). phasis The FDPA its terms bert, 2786) 592-93, fully does not implement the Federal (also 702). citing Fed.R.Evid. Daubert Rules of Evidence at punishment “provides an illustrative list of factors that phase. Since Daubert’s holding was based may aid a court in evaluating reliability.” Evidence, the Federal Rules of it is not Exxon, (5th Mathis v. 302 F.3d directly applicable. Cir.2002).24 That entirely does not ques- answer the case, The amicus curiae in this tion as to whether qnasi-Daubert some Association, American Psychological urges inquiry required to satisfy the FDPA. formally that we adopt the Daubert relia- argues Fields parts that other bility factors for determining the admissi- FDPA should inform inquiry, our specifi- bility expert evidence in federal death 3593(c) cally pointing to section pro- penalty sentencing hearings. Similarly, vides that Dr. testimony Coons’s may be argues that a district court must excluded if Fields has shown that “pro- its apply Daubert or quasi conduct a -Daubert bative value is outweighed by danger inquiry deciding when whether to admit of creating unfair prejudice, confusing the proffered expert testimony punish- issues, at the or misleading jury.”26 We are “(1) expert’s Those factors are Johnson, whether the missibility.”); see also Flores v. tested; theory (2) can be or has been Cir.2000) whether 464-70 (specially theory subject Garza, has been peer J.) concurring, review (questioning the consti- (3) publication; potential the known tutionality or admitting expert's testimony an rate technique of error of a theory or regarding when dangerousness future after Dau- applied; bert)-, Cockrell, existence and Tigner maintenance of cf. controls; (5) degree (5th Cir.2001) standards and and the to 526-27 (declining an invitation technique theory which the gen- or has been to required hold that Daubert the exclusion of erally accepted in the community.” scientific expert dangerousness future testimony be- Mathis, 460. cause it would constitute a new rule on collat- review). eral Barnette, 25. See United States v. 211 F.3d (4th Cir.2000) (“We need language 3593(c) not address 26.The of section very is applies whether sentencing Daubert hear- similar to Rule 403 of the Federal Rules of because, ings, does, assuming even except it we Evidence provides that Rule 403 find the evidence meets its standard for ad- may evidence probative be excluded if the dangerous- with to future argument, respect the allowed sympathetic to somewhat predictions during punishment a into ness ultimately provision cannot read but trial phase capital of a murder is probative evaluating the FDPA Barefoot Estelle, v. sentencing testimony for expert value (1983). Although L.Ed.2d hear- a form of Daubert requires purposes Barefoot challenge involved a constitutional on col- point us to where such Fields cannot ing. technically lateral and thus is not review implicitly, even appears, requirement controlling, Supreme reasoning Court’s text, of the FDPA. history logic or certainly analysis our must inform of this unavailing and statutory argument is His Ultimately, related issue. claim as a constitutional is better couched Barefoot’s reject sweeping logic requires us to Fifth Amend- Eighth based reliability argument. general Fields’s Fields, that Unfortunately for con- ments. it foreclosed and is argument is

stitutional Barefoot, petitioner argued it. See Part power our to revisit beyond testimony psychiatrists regard- of two II.A.2.b. dangerousness during future ing his mur-

punishment phase capital of his state (2) Logic v. Estelle’s der trial was unconstitutional. Barefoot Barefoot Fields’s General Undermines (1) broadly argued psychiatrists were Argument Reliability dangerous- future incompetent predict acceptable degree reliability to an ness argues generally more under Fields also testify permitted should not be 3593(c) that, if Dr. Coons’s testimo- section regarding dangerousness future in re- unreliable, the “evidence to be ny is shown sponse hypothetical to a or without exam- plainly as it is cannot assist Id. at ining the defendant. anything.” per- We are not ‘probative’ argued He also that his death sen- 3383. argument. suaded this tence should be set aside because the testi- Penalty Death “The Federal mony particular was unreliable under the very ... low barriers to the Act erects Supreme case. The circumstances of his sentencing evidence at admission of rejected arguments. all his Id. Court regulate the need to hearings. Since argument that no respect With testimony penalty at the scope of is less future testify should as to the psychiatrist trial, guilt phase phase than defendant, the Su- dangerousness of may present evidence ‘as parties that such a rule “is preme explained Court ”27 relevant to the sentence.’ Unit matter contrary to our cases.” Id. Because Lee, 485, 494 ed States “is a con- predicting dangerousness future 3593(c)). Cir.2001) § (quoting 18 U.S.C. impos- stitutionally acceptable criterion above, statutory the sole restric As noted “not im- ing penalty,” the death may if it is that evidence be excluded tion lay person sensibly possible for even prejudicial probative. more than conclusion, at that it makes little arrive sense, any, psychiatrists, ex- if to submit that regarding seminal case whether persons who of the entire universe testimony is reliable and should be out pert supplants only among expressly FDPA substantially outweighed by, looser. "The value is evidence, danger prejudice. things, the of unfair stan- other the rules of not constitutional Johnson, dards.” United States sentencing say scope evi- of valid To 2003). (N.D.Iowa F.Supp.2d necessarily signify dence is broader does not may testimony take should be that the form 344 issue, that opinion persuaded testimony an on the would such almost

might have is subject they that entirely little about and that know so unreliable the fact-finder testify.” Id. at permitted be adversary system should not and the will not be com- 896-97, (citing 3383 Jurek v. uncover, 103 S.Ct. petent recognize, and take due 262, 2950, Texas, 96 S.Ct. 899, shortcomings.” account of its Id. at (1976)); v. L.Ed.2d 929 see also Estelle S.Ct. 473, Smith, 451 U.S. at 101 S.Ct. 1866 Supreme rejected The Court also Bare validity of and in (reiterating Jurek that argument dangerousness foot’s future psychiat- use of disapproving “no sense testimony upon personal should be based testimony fu- bearing ric issue of examination rather hypothetieals. than dangerousness”). ture recognized expert The Court testimo that, Additionally, reasoned the Court ny, including responses hypothetieals, accept argument expert Barefoot’s routinely admitted if it assisted the testimony predicting dangerousness future 903, factfinder. Id. at It 103 S.Ct. 3383. to be “is far too unreliable admissible further observed that neither the extant immediately question call into those would Federal Rules of Evidence nor state law predictions in which of fu- other contexts support argument lent that the use constantly are ture behavior made.” hypothetieals was unconstitutional. Id. 898, 3383; at Barefoot, 463 U.S. 904-05, 103 S.Ct. 3383. see, Donaldson, 422 e.g., U.S. O’Connor Finally, Barefoot asserted the use (1975) 2486, 45 L.Ed.2d 396 in hypothetieals his case violated due (explaining expert psychiatrists process of law. Id. at 103 S.Ct. 3383. psychologists interpret facts that deter- Supreme summarily Court found no dangerous mine whether an individual is constitutional Supreme violation. The himself or others and need of civil com- agree Court stated that “to with petition-

mitment). further explained The Court position er’s basic seriously would under- testimony regarding that expert future Jurek,” mine and in effect overrule and it “may be countered not dangerousness was not inclined to do so. Id. at particular as erroneous in a case but also added).28 (emphasis S.Ct. 3383 generally as so unreliable that it should be ignored.” Barefoot, 463 U.S. forth, previously As set although we rec- S.Ct. 3383. ognize that involved a constitu- Barefoot tional challenge, reasoning its Similarly, the informs us Court refused to Barefoot in assessing Indeed, the instant accept Psychiatric the American Associa- case. statutory argument Fields’s position tion’s its amicus brief that such is laced with expert testimony references to the heightened reliability should be barred as un- re- quirement reliable because it was error “most of under the Eighth Amendment. addition, the time.” Id. at S.Ct. 3383. pragmat- Court’s Barefoot rejected Noting that it had the same view ic concerns about rejecting danger- future Smith, in Estelle v. the Court was “not testimony ousness apply equally here. opinion by 28. A Expert recent Justice Stevens con- testimony to be admissible. about a continuing viability the breadth and firmed dangerousness’ defendant’s ‘future to deter- Scheffer, See United States eligibility mine his penalty, Barefoot. for the death even 303, 334, 140 L.Ed.2d time,' wrong routinely ‘most admit- if ted.") (Stevens, J., ("There dissenting) added). (emphasis No member of the requirement legal expert testimony no disagreed. Court Scheffer satisfy particular degree must reliability

345 Furthermore, ours, arguments urged Supreme prerogative, to- Court’s not formally statutory in day though See, framed revisiting precedent. e.g., consider its — in similar substance terms-—are Rodriguez Quijas de Ex- Shearson/Am. example, For rejected in ones 477, 484, 490 press, U.S. Barefoot. Barefoot, like the amicus

the amicus 104 L.Ed.2d 526

here, dangerous- the future argued methods in issue could be error

ness 5. PROOF BEYOND A REASON- Likewise, time. both Fields most of the ABLE AND DOUBT THE challenged experts’ and Barefoot testi- WEIGHING PROCESS mony personally the failure to upon based and the use of examine the defendant In Fields’s final claim of sentenc hypothetieals. logic meets Barefoot error, ing he Supreme seeks to extend the challenges. these Arizona, in Ring Court’s decision U.S. S.Ct. 153 L.Ed.2d 556 case,

In instant Dr. Coons’s (2002). Specifically, argues he testimony Fields’s probative was because Amendment, FDPA violates the Sixth as an jury required was to make assessment in Ring, construed because it does not dangerousness of future and because the jury opinion require jury from the of a apply could benefit the reasonable psychological expert on matter. doubt in deciding standard whether noted, Moreover, as the adver aggravating factors miti- outweigh the Barefoot system any prejudicial sarial reduces unre gators. liability dangerousness expert in future Ring, Supreme applied Ap- Court testimony expose because it can the flaws prendi Jersey v. New It cases. reasons, testimony. in such For these we reiterated, [Congress] “If an in- makes reject testimony the claim that Dr. Coons’s punish- crease a defendant’s authorized

was so unreliable that the district court fact, contingent finding ment on of a [a] by admitting abused its discretion29 it.30 [Congress]

that fact—no matter how labels Challenge b. Constitutional by jury beyond it—must be found reasonable doubt.” 536 U.S. Fields also claims that the admission of (citing Jersey, v. New Apprendi S.Ct. testimony Dr. regarding Coons’s future 466, 482-83, dangerousness during punishment (2000)). Contrary L.Ed.2d 435 to Fields’s phase rights Eighth violated his under the contention, require rule not this does and Fifth Amendments. fore- Barefoot jury to apply the reasonable doubt stan- argument closes this claim. As to Fields’s revisited, process. during weighing should be is the dard Barefoot deferential, reject complaint 29. Since our review is we need we Fields’s that the court opt not address whether a district court could articulating abused its discretion on dangerousness testimony future exclude probative the record its balance of value and reliability grounds. We that it hold 3593(c). prejudice unfair under As section not an abuse of discretion to admit such testi- suming arguendo that an articulation such mony. required would be in the context of section 3593(c), request specifical Fields’s "failure to arguments 30. Fields makes three final which ly an articulation ... is fatal to on-the-record require little claims that the discussion. His appeal point.” his on this States v. United (1) province testimony at invaded the issue Fox, (Rule (5th Cir.1995) "unfairly prejudicial” or would be 404(b)). Additionally, have even if reliable no merit. 346 fact, judgments. to moral findings of not not extend rule does Apprendi/Ring

The 602, 122 S.Ct. 2428. impose Ring, to 536 whether See U.S. ultimate decision to the Capital defendants penalty. death the reasoning in Supreme Court’s Kan- The jury right to a no constitutional have — Marsh, -, 126 S.Ct. U.S. sas v. Florida, 428 v. sentencing. See Proffitt (2006), 2516, supports 165 L.Ed.2d 429 our 2960, L.Ed.2d 242, 252, 49 U.S. Marsh, con- In the Court conclusion. Indeed, (1976) the opinion). (plurality 913 decision, v. Walton Ari- previous strued a held that explicitly Supreme Court has 3047, 639, zona, 110 111 497 S.Ct. U.S. aggravating weighing of may do the judges (1990), a holding “that L.Ed.2d 511 as consistent mitigating circumstances may place penalty death statute the state Clemons See v. the Constitution. with prove that on the burden defendant 745, 738, 110 S.Ct. 494 U.S. Mississippi, aggra- outweigh circumstances mitigating (1990). The Court’s 1441, 108 L.Ed.2d 725 Marsh, 126 S.Ct. vating circumstances.” reveals that the Apprendi line cases Additionally, concurring in a at 2524. appurtenant reasonable doubt standard Marsh, recog- the Con- in Justice Scalia jury opinion trial.31 Since right to do the require not does not re- stitution does that the Constitution nized that the conclude weighing, we cannot standard as to quire a reasonable doubt proof beyond a be showing required must could, weighing process: “[T]he the State doubt. reasonable admits, [adopt freely a] scheme as Marsh prove by a mere requiring the State Moreover, Apprendi/Ring rule the the evidence preponderance of jury’s here because apply should not Id. outweigh mitigators.” aggravators factors out that the aggravating decision 2. member of the Marsh at 2532 n. No not a factors is find mitigating weigh Accordingly, hold disagreed. we Court Instead, subjec “highly it is a ing fact. does re- Sixth Amendment “regarding tive,” judgment” “largely moral jury to instructed that it must quire a be person particular punishment outweigh factors aggravating find that the Mississippi, v. deserves Caldwell 7, 2633, beyond a 320, mitigating 86 the factors reasonable 340 n. S.Ct. 472 U.S. cases, In death “the doubt. L.Ed.2d ... penalty stage imposed at

sentence response to the moral reasoned reflects] B. CLAIMS OF TRIAL ERROR character, background, defendant’s arguments first Fields’s We address Penry Lynaugh, crime.” the district court committed error 106 L.Ed.2d reversal of his convictions. requires Appren- (emphasis original). Ultimately, we affirm each conviction. by its terms applies rule di/Ring [(2002)] (“Judicial factfinding in the recently explained, course context 31. This was Guidelines, Sentencing selecting of the United States a sentence within author- Circuit: the en banc Third range implicate the ... rea- ized does not component relevant to enhancements of the Fifth ... ] None of the facts sonable-doubt can departures the Guidelines in- ].”). holding or under accords This Amendment! punishment the maximum which crease of each of our with decisions sister exposed. The Due Process the defendant is this issue. circuits that has addressed right no to have these thus affords Grier, (3d United States beyond proved a reasonable doubt. facts omitted, Cir.2007) (en banc) (some citations States], [545,] United [v. Harris ellipses original). some brackets and L.Ed.2d 524 FAILURE TO CONSULT PUBLIC affidavit, Campbell stated that the DEFENDER ON APPOINTED district court request did not his recom- COUNSEL mendation for appointment of counsel. The court granted the motion to supple- Fields’s first guilt-phase claim is that ment and acknowledged on the record that by failing the district court erred to secure it did not confer with the FPD. It also the advice of the Federal Public Defender stated, “Scott Peterson and Rob Swanton (“FPD”) before him appointing capital were appointed to represent Mr. Fields counsel. The appointment of counsel to of years because their experience of in the represent indigent defendants in capital criminal field, defense including numerous governed by § cases is 18 U.S.C. It capital cases. Additionally, Mr. Peterson provides that charged with those federal was the Defendant’s of attorney record on capital offenses are entitled to two law- original gun federal case which he yers, one of whom “shall be learned in the jail was in at the time of escape.” his applicable law to capital cases.” Section requires: 3005 further assigning “In coun- b.Standard Review of section, sel under this the court shall con- Fields contends that we should sider the recommendation of the Federal review de novo even though he raises the or, Public Defender organization, if no court’s noncompliance with section 3005 organization district, such in exists of for the appeal. However, first time on the Administrative Office of the United contemporaneous objection ordinarily is States Courts.” required preserve to error. See United Olano, States v. 725, 731, a.Background (1993). 123 L.Ed.2d 508 None After Fields was charged with a capital of arguments Fields’s provides justification offense, Peterson, his attorney, Scott filed for us to deviate from general rule. pursuant motion to section 3005 asking Section 3005 play, came into at the earli the court appoint to a second attorney est, only after the Government charged learned the law capital cases. Attor- capital Fields with a By offense. ney Peterson advised the court that Rob time, already Fields represented agreed Swanton had to be co-counsel. The counsel, Attorney Peterson. Fields had court stated that Swanton was “more than ample opportunity object through below acceptable” excellent, because he was “an attorney his grounds on the he now as attorney.” excellent days Two later, the serts. so, Since he failed to do we review an court entered formally order appointing his claim for plain error. Fields can Swanton found, as lead counsel. It “Mr. (1) prevail if he shows “that there is an Swanton is learned applicable in the law error, (2) (3) and that plain, the error capital cases and is qualified appear as affects substantial rights, seriously counsel because of distinguished his prior fairness, affects integrity, public or experience in the trial of death-penalty reputation judicial proceedings.” See objection cases.” Fields made no either to Garza, United States v. 429 F.3d the court’s decision appoint or Swanton — (5th Cir.2005), denied, U.S. -, cert. its failure to FPD consult the before so (2006). 164 L.Ed.2d 143 deciding. c.Analysis trial, After supplement Fields moved to appellate record with the affidavit Assuming arguendo that Fields’s Lucien Campbell, the Federal Public De- claim would succeed on first two fender for the Western District of Texas. prongs review, of plain-error it fails on the preju- cannot Rule of show Criminal Procedure which re prong.

third acknowledges purpose quires disregard that the us to dice. He errors that do not rights. FPD’s recommendation is affect securing substantial See Zedner v. — States, -, representation high-quality to ensure the United 1976, 1989, 164 necessary eases. See United L.Ed.2d 749 Shepherd, 576 F.2d 728-29 States support argument his Cir.1978). argue, He does not howev- structural, here is error Fields cites a line er, that the district court erred deter- See, of Fourth e.g., Circuit cases. United an mining that Swanton was “excellent” Williams, States v. attorney learned in the law of who was (4th Cir.1976) (holding ap that failure to (indeed “distinguished”) or capital defense point second counsel under section 3005 incorrectly that the court found that both “gives rise to an presumption irrebuttable Peterson, attorneys, had his Swanton prejudice”). inap- This line of cases is through numerous eases each tried posite. They all involve district courts’ years experience in the field of criminal appoint any failures to second counsel. Thus, defense. Fields cannot show that considerably Such an error is more serious rights.32 the error affected his substantial Moreover, than what occurred here. rejected Third Circuit explicitly has actual prejudice, Unable to show presumed-prejudice Fourth Circuit’s ap argues showing Fields that no such should proach to a appoint court’s failure to sec required “fundamentally be due to the ond counsel. See United States v. Cas structural character of the error.” The (3d seus, Cir.2002). 253, 282 F.3d 256 n. 1 Supreme Court has indicated that taking Without sides in this Circuit split, in applies only structural error doctrine we decline to extend the Fourth Circuit’s “very limited class of cases.” Neder v. in approach way States, 1, 8, suggests. Fields Ac United (1999). cordingly, reject we Fields’s claim that Only 144 L.Ed.2d errors failing to consult the FPD appoint before that the fairness of a crimi “undermin[e] ing capital counsel is structural error or nal ... proceeding require[ as a whole ] that prejudice presumed. must be Since regard reversal without to the mistake’s Fields cannot prejudice, show his claim effect on the proceeding.” See United fails. Benitez, Dominguez States v. 542 U.S. 159 L.Ed.2d 157 2. CONFLICT OF INTEREST/WAIV- The statutory error asserted here is not so ER OF RIGHT TO COUNSEL Additionally,

fundamental. there is no “strong support” operable in the statute to Fields makes arguments two related suggest “implied repeal” an surrounding Federal his trial attorney’s alleged cases, suggests Insofar distinguished prior experience as Fields that either or may trials, Swanton or Peterson have been inade- penalty appeals, post- state death or quate because neither had tried a case under review.”) (emphasis original). conviction Act, Penalty argument the Federal Death that Indeed, matter, practical as a state courts is without merit. Section 3005 makes no only place attorneys often are the can distinction, guide and the to Fed- state/federal gain significant capital experience. See id. at Penalty promulgated by eral Death cases (“Because offenses, felony partic- 1-10 violent rejects expressly Judicial Conference such a homicides, ularly rarely prosecuted are in the Judiciary distinction. See Guide to Policies courts, opportunity federal there is little Procedures, App. (“Ordinarily, 1-1 practitioners federal court to learn even the distinguished 'learned counsel’ should have guilt phase fundamentals relevant to the de- trial, prior experience appeal, post- or case.”). penalty fense of a federal death penalty conviction review of death federal first, department somebody called argues, He of interest. conflict un- appoint permission D.A.’s office and asked for court’s refusal the district his petition. counsel rendered file a have talked to Mr. conflicted substitute We Second, involuntary.33 of counsel waiver Fields about and while we don’t neglect- that the district court conflict, he contends really perceive it as a Mr. Pe- apparent an “duty inquire” about ed its certainly diligently terson has worked Cuyler v. Sulli- of interest. See conflict and that an this case has never been van, 335, 347-48, 100 S.Ct. through years represen- issue the two (1980). The Government 64 L.Ed.2d 333 tation. We talked to Mr. Fields about is- that our review these acknowledges somebody that and let him know that is de novo. See United States sues may the line somewhere down see (5th Cir.2005). Jones, 362-63 a perceived as conflict of interest and that, if he had concerns about Background a. he should talk with the Court about it. approached, the trial date As trial court to request asking

filed a certainly happy We’d be to offer infor- that appoint represented new counsel. He testimony mation or from Mr. Peterson “if not allow him new trial the Court d[id] if you thought necessary that was as to counsel, represent that to intended] he what he thinks his was in involvement himself.” Fields had threatened several prosecution put something that and him- right represent times to invoke his regard. the record in that ultimately those motions. self but withdrew entry referred The to which Swanton hearing parte The district court held an ex states, Peterson, Assis- “On 3-20-87 Scott on Fields’s latest motion. Attorney, tant authorized the fil- District lawyers in- hearing, At Fields’s against action Sher- ing delinquency in they the court that had tried formed juvenile does not man.” Fields’s record going pro Fields that se persuade vain to in ac- any reflect further involvement Additionally, grave would be a mistake. tion Peterson. Swanton, attorney, advised Fields’s lead representation, After Swanton’s come the court of “one other issue that’s his speak court allowed Fields to about co-counsel, Peterson: up” concerning his attorneys. request replace his Fields [,] ... there is a small Back 1987 that expressed generalized “suspicio[n]s” juvenile entry in record [Fields’s] attorneys league with the Gov- his were Peterson[,] he was indicates Mr. when disagreement with ernment. He voiced County dis- working for the McLennan attorneys’ strategy, indicating that his office[,] authorized attorney’s trict either pen- for the they pursuing mitigation were I of Mr. Fields for a—if prosecution profess my I alty phase repeatedly “when burglary correctly, remember it was guarantees strategy innocence.” “Their I’m not sure that of a habitation case. penalty.” me the death actually directly in- Mr. Peterson ex- subsequent hearing, At a Frankly, Mr. prosecution. volved in the attorneys and I “[M]y pressed generieally, in- being cannot remember Peterson ....” major conflict of interest that, have a simply may and it be volved any specific con- probation Fields never mentioned somebody police from the or event, Otherwise, argument to ap- any Fields makes no waiver of counsel Fields’s intelligent. contrary. pears knowing to have been 350 See, e.g., of interest. United delin- conflict had authorized Peterson

cern (5th F.2d Young, a States v. him as against proceedings quency Cir.1973). district court did twelve-year-old. concerning the information further

seek (2) Insubstantial Insignificant or Ultimately, the court conflict. purported Do Not Warrant new counsel request denied Fields’s Conflicts Counsel Substitute proceed pro se. him permitted ap need not A district court Analysis b. conflict-of-in substitute counsel on point any if it is “satisfied grounds terest Waiver i. Voluntariness of compromising conflict does not risk Voluntary There The Waiver Was If United representation.” defendant’s Interest NoWas Conflict Solomon, 42 Fed.Appx. States the Sixth A court violates Cir.2002) (10th As the (unpublished).34 allows a defendant if it Amendment held, has a defendant Eighth Circuit obtaining a first himself without represent if the counsel only entitled to substitute See, e.g., United of counsel. valid waiver an interference with significant court finds (5th Medina, States v. “ability provide zeal existing attorney’s Cir.1998). cannot be forced A defendant representation.” ous See United States counsel and conflicted to choose between Cir.), Boone, cert. — all, of counsel waiver no counsel denied, U.S. -, circumstances from those results logically This follows L.Ed.2d 123 Johnson, 162 F.3d Dunn v. not valid. See are proposition from the defendants Cir.1998). (5th 302, 307 of their appointed counsel not entitled rendered a choice. That rule would be However, defendants indigent entitled nullity complaints if insubstantial counsel of their appointed right have no defendants to substitute counsel. See, v. Bree e.g., States choice. United (5th Cir.1995). Indeed, we have land, only precedent 100, n. 11 F.3d 106 judi- issue sub Rather, touching specific without found refusal defendant’s “[a] ce, Johnson, indicates that appointed able Dunn v. proceed with good cause to significant must be voluntary waiver of conflict asserted a counsel constitutes Lucas, counsel. See 162 F.3d v. 741 warrant substitute right.” Richardson Cir.1984). (5th argued Dunn that his waiver of 753, ques “The 307. F.2d ap involuntary was because his therefore boils down counsel voluntariness] tion [of a of interest. good pointed attorneys had conflict demonstrated to whether [Fields] claim, Dunn assigned support coun of this asserted cause for the substitution trial, Harris, that, he had filed a prior to his sel.” McKee v. (2d Cir.1981). attorneys. his We malpractice against cause for suit good form of One significant recognize did not this as only new one relevant here— counsel—the interest to render enough labored under a conflict of is to show that counsel ("The Arkansas, 2003) proper quality focus ... is on Holloway 435 U.S. See (1978) Dunn, advocacy.”); 55 L.Ed.2d F.3d at 307 (stating appoint new need not that courts (stating waiver that a defendant’s of counsel a conflict will counsel where the risk that existing voluntary counsel is "consti unless "remote”); United materialize is see also added). tutionally inadequate”) (emphasis Exson, Cir. States v. involuntary, service, Dunn’s waiver pointing During out Hernandez’s attorney “malpractice ... suit had been “signed had a motion requesting psychiat- years dismissed as frivolous three before ric ..., evaluation appellant signed a his second trial.” Id.35 motion to dismiss a related indictment af- ter pled guilty, Hernandez and ... ap- Alleged Was Serious Not Conflict proved plea Hernandez’s bargain.” Id. at Enough to Entitle Fields to New 558-59. We held that attorney’s previ- Counsel ous involvement prosecu- Hernandez’s Applying these principles to tion “personal was not or substantial bar, the case at the supposed conflict of enough give rise automatically to an interest was not sufficiently substantial conflict,” actual reasoning that he was such that Fields was entitled to substitute “tenuously nominally connected to the Importantly, counsel. this is not a case prior against cases Hernandez” and that attorney where defendant’s previously attorney’s service for the state “ended actively involved in prosecuting the years nine Likewise, before.” Id. at 560. defendant. The record that At indicates Peterson’s involvement was nominal and torney nothing Peterson than did more tenuous, rather than personal or substan- sign summarily off on a request to initiate tial. delinquency proceedings against Fields. Moreover, juvenile speculates, however, Fields adjudication oc that Peter- years may curred fifteen capital before son have Fields’s “continued under duty Also, important trial. it is that Fields’s State of not to Texas undermine the “perceive counsel did not it as a conflict.” finality and integrity of prosecution he reasonably District courts may rely on de against authorized Fields.” Since Peter- counsel’s regarding fense assessment would have a duty son sentenc- potential for Holloway conflict. See Ar ing proceedings to attack past Fields’s kansas, 475, 485, 55 convictions, reasons, this created a (1978) (stating L.Ed.2d 426 ap conflict of interest. There are at least pointed attorney “is in position the best problems First, three argument. with this professionally ethically and to determine rejected we a argument similar in Hernan- when a conflict of interest exists or will dez, death-penalty Second, a case. Fields trial”). probably develop in the course aof authority cites no for duty the expansive may he claims

Our conclusion is Peterson have to Tex- bolstered Hernan- owed Johnson, as, (5th whose dez service Peterson long v. 108 F.3d left before 558-61 Cir.1997), Peters, Spreitzer where Fields’s trial. we addressed a similar See (7th Cir.1997) alleged Hernandez, conflict of interest. (rejecting a lawyer defendant claimed that his claim had conflict-of-interest the attor- where ney’s conflict of “supposedly because he previously conflicting interest loyalty” to had “as served the elected district attor- was “extremely specula- Government ney” remote”). when some Third, prior defendant’s tive and given Fields has convictions were obtained. Id. at 558. no indication any good that there was faith Creel, Compare United States 158 Fed. pointed attorney had confidential disclosed (5th Cir.2004) Appx. (unpublished) prosecutor defense matters to the which (defendant’s “disagreements with counsel” damage would the defense would have good did not “constitute[] cause him to for 'good proceeding amounted to cause’ for not attorney”) receive a Young, new with counsel.”). to trial with the same ("A showing F.2d at 995 appellant’s ap- (6th Cir.2002). juvenile attacking adjudica- Here,

basis purpose circumstances, tion at issue. Under the was satisfied because discussions the court not labor under a conflict Peterson did of heard on apprised sufficiently the record enough significantly interest substantial to of the relevant facts. See Holleman v. ability provide threaten his Fields with Cotton, (7th Cir.2002) 301 F.3d so, representation. being effective That (noting, while addressing duty-to-inquire voluntary.36 Fields’s waiver of counsel was issue, presumption “the that attorneys make truthful representations Duty Inquire ii. court”); Haren, United States v. argument now turn to Fields’s Cir.1991) (“A

We district court inquire the district court failed into the may give weight substantial to defense argument conflict at issue. His fails for representations counsel’s regarding con two reasons. interest.”). flicts of Those facts showed insubstantial. that the conflict was Circumstances, Under Adequately Inquired

Court Where a conflict appears serious existing information available to First, the court adequately inves limited, the court “probing specific tigated potential conflict. It held an ex questions” may required. indeed be See parte hearing on Fields’s motion for sub Wayne al, R. LaFave et 3 CRIMINALPROCE stitute At hearing, counsel. the court (3d 11.9(b) ed.2000). § But that is DURE listened to attorney Fields’s lead speak duty the case here. The inquire about the conflict. attorney described not so formalistic as to require affirmative prior the nature of the prosecution, the questioning when such is rendered unnec approximate date on place, which it took essary parties because the have volun extent of Peterson’s involvement teered all the relevant information for a in it. The court also heard Fields’s coun court to determine that no substantial con opinion sel’s that the really “issue” was not flict exists. trial “[T]he court did not have a conflict and had not quality affected the duty inquire Dunn, further.” See representation. Afterward, of Fields’s 162 F.3d at 307. gave court Fields the opportunity to dis alleged conflict, cuss the which he declined (2) Any

to do. Failure to Inquire Further Did Not the Voluntariness Affect complains the court Fields’s Waiver did not affirmatively question parties Yet, involved. the purpose of duty Second, even if the court should inquire is to assure that the ap court is have made a greater inquiry, Fields has prised adequately of “the nature of a con made no showing, as distinguished from flict” and potential impact its on counsel’s speculation, mere that the district court capacity to represent the defendant. See would have anything learned material from 422, United States v. Humphrey, 287 F.3d that inquiry. Fish, See United v. States 34 (6th Cir.), 437 (7th overruled grounds 488, Cir.1994) on other F.3d 493 (examining Leachman, by United v. States 309 F.3d alleged whether “the failure of the court to brief, 36. For the reply first time in his Fields Since it was not raised in opening Fields’s argues brief, that attorneys he accused his of mis- the misconduct-accusation claim is ef- conduct, gave which rise to a fectively Jackson, conflict of inter- waived. See United States v. 301, est. We argument. (5th will not Cir.2005). consider this 426 F.3d 304 n. 2

353 973, (9th Cir.2000). deeper alleged delve into the conflict re- F.3d n. 2 In con- lacking any in its text, then, sulted material informa- Fields’s unspecified assertions determination”). tion to make the conflict of a conflict appear even benign. more not, A inquire failure to would in and of conclusion, Fields’s claims surround- itself, be Sixth Amendment error warrant- ing alleged Peterson’s conflict of interest See v. ing Taylor, reversal. Mickens 535 fail. U.S. L.Ed.2d (2002). Moreover, without showing 3. JURY ON INSTRUCTION SIG-

the court failed to elicit information NIFICANCE OF THE INDICT- conflict, have revealed a would substantial MENT Fields cannot that any show failure to argues the district court

inquire affected the voluntariness of his erred instructing the jury venire about waiver of counsel. unsupported Fields’s significance grand jury’s deci- that he hypothesizing might not have sion to him. indict The court instructed explained waived counsel had the court jury grand venire that the jury’s find- him “the kinds of conflicts tolerated ing probable of cause grand meant is not law” sufficient. jury likely “more believed than not” that (1)

Finally, we note that Fields had Fields’s committed the offense. Fields suspicions attorneys points that his were ca out that the probable cause stan- hoots with the dard is generic Government and than preponderance lower stan- See, assertions of a dard. e.g., Watson, conflict interest did United States (5th impose upon Cir.2001). the court a duty to inquire The Supreme alia, further. The Court argues, has Government stated inter merely a “vague, error unspecified possibili prejudice did not Fields. ty of conflict” does not trigger duty Because object Fields did not Mickens, inquire. 168-69, See 535 U.S. at below, to the instruction claim his is re 122 S.Ct. 1237. Fields’s nebulous state viewed for plain error. See United States raised nothing ments more than a vague, Saldana, Cir.), 427 F.3d unspecified possibility of conflict.37 — denied, U.S. -, cert. Indeed, previous Fields’s requests (2005), 163 L.Ed.2d 637 cert. de — nied, for new counsel reflect that -, he misunder stood the term “conflict interest.” He L.Ed.2d 911 He bears burden signify used the term to a “conflict” be showing that the error affected his sub tween See, his own of appropriate Garza, view trial stantial rights. e.g., strategy and that his counsel.38 Mere 169. Fields cannot this carry burden. disagreement about strategic litigation de repeatedly venire was instructed See, cisions is not a conflict of interest. grand that the jury’s indictment could not Corana-Garcia, e.g., United States v. 210 be as Additionally, considered evidence. suggests 37. Fields also that the district example, court 38. For in late 2003 Fields wrote to investigate failed to the reasons for his dissat- the court: “Defense counsel me informed attorneys isfaction with denying his before his strategy disagreed their and I therefore rose a request for new The counsel. record shows conflict .... There is a serious conflict of above, As otherwise. stated the court invited my Attorneys interest and if would have in- explain qualms present his with his sooner, strategy formed me of their mo- this simply counsel. Fields’s explanation did you tion have would reached sooner.” good provide cause for new counsel. instructed that Fields maintained nized that Rule 403’s scope the court is narrow. presumption application of innocence. It advised of Rule “[T]he 403 must be sparing. major that the Government bore the burden of cautious and Its function beyond proving guilt a reasonable doubt excluding is limited to matter of scant or gave force, and a correct definition of that stan- probative dragged by cumulative proof. petit jury dard of The never was prejudicial the heels for the sake of its apply preponderance instructed to Pace, effect.” United States v. 10 F.3d (5th Cir.1993). standard. 1106, 1116 sum, although the court incor In light principles, of these we rectly venire advised about the lightly will not second-guess a district grand jury’s finding, correctly instructed court’s decision to admit relevant evidence petit jury about its own task and cor objection. over a Rule 403 Although re rectly required perform that it that task viewing great variety courts use a of ver independently from the indictment. “Ju fact, express bal formulae to this agree all presumed rors are to follow their instruc that we must afford an especially high tions, there is no reason to assume level of deference to district courts such they did not do so in this instance.” Thus, circumstances. a district court’s de Johnson, 1017, 1036 v. Woods F.3d n. 29 cision grounds on Rule 403 is disturbed (5th Cir.1996) (internal omitted). citation “rarely” when there has been “a Thus, Fields cannot show that the error clear abuse of discretion.” United States rights. affected his substantial (5th Maggitt, Cir. 1986); Caldwell, see United States PHOTOGRAPHS OF MURDER k. 1395, 1404 Cir.1987). VICTIM Fields’s fourth claim of trial error is that b. Photographs The erroneously

the district court admitted thirty-two into photographs evidence independently We have examined the body. the victim’s Fields contends that photos They at issue. fall into two broad photos extraordinarily were prejudicial categories: nineteen photos taken at the minimal, any, probative and had if value. crime scene and thirteen taken in connec- autopsy. tion with the a. Rule and Standard Review IOS governing law and our Many of the photos crime scene show limited standard of review bear emphasis. body the victim’s from angles various Federal Rule of Evidence 403 provides degrees from various proximity. In the may pro “evidence be excluded if its photos, body in an advanced state substantially bative value is outweighed by decomposition and subject has been to ani- danger of unfair prejudice.” pur mal predation. One The' skin is discolored and pose of Rule 403 is prevent sloughed evidence has off the body bones. The “inducing from a purely decision on emo surrounded thick garbage. brush and tional basis.” Fed.R.Evid. (Advisory photos Other crime scene illustrate how Notes). However, Committee to warrant the responding processed officers exclusion, danger prejudice— body. 34P, of unfair example, Exhibit shows ground this or other —must sub the hands were by paper covered stantially outweigh probative value bags. Several others show that the corpse the evidence. Accordingly, we recog- placed have in body bag. statement, example, argued nine Fields autopsy photos, thirteen

Of the possible” skull. Some of these it was “not to “commit a murder show the victim’s wounds; others photos gunshot show the in the time and manner in which the gov- examiner the incision the medical allege show ernment witnesses and not leave The four retrieve the bullets. made to any physical Similarly, evidence.” at clos- body, show the removed remaining photos “I ing, argued, you pay asked all to scene, autopsy. from the crime before physical attention to the evidence .... disturbing present most of these The they evidence that Whatever retrieved decayed misshapen corpse victim’s body from the or the crime scene doesn’t nude, completely apparently the clothes highlighted match me.” Fields also au- removed to facilitate the having been lack of DNA evidence: “Is there posi- topsy. testing tive DNA ...? No. There isn’t.” autopsy photos crime scene and The The crime photos necessary scene were witnesses, two an presented through were arguments. They helped to rebut Fields’s process the crime scene helped officer who explain why physical little evidence was performed and the medical examiner who away found: because it had been carried autopsy. by away by animals or worn the elements. age effect,”39 In supposed this of the “CSI Analysis c. explaining jury why to the the Government are, Many photos as the way physical had little in the or scienti- However, posits, shocking. defendant our arguably fic evidence was critical to the admitting gruesome caselaw indicates Government’s case. in mur photographs body of the victim’s ordinarily to an der case does rise photos The had additional relevance. photos abuse of discretion where those The crime photos scene indicated that the See, probative e.g., nontrivial value. have body dragged had been to where it was Hall, States v. United found, thereby corroborating witnesses (5th Cir.1998), abrogated grounds on other who testified that Fields told them he had Martinez-Salazar, States v. United addition, dragged body. In the wide 145 L.Ed.2d 792 shots, showing brush and trash surround- below, explained photos As ing body, helped explain jury probative did have real value. This here why body was not found until weeks gave fact the court a reasonable basis for Finally, autopsy after the murder. admitting them. photos helped understand the testimony. medical examiner’s Since some photos showing body the victim’s wounds, gunshot they two photos showed decomposing highly probative. were One (and medical key supported trial Government’s of Fields’s themes at was examiner’s) theory about cause of death. physical had little evidence Government necessary him This to corroborate the linking opening to the crime. his legal typically 39. "The 'CSI effect' is a term that au- dence is more flawed and uncer- media have coined to Tyler, Viewing thorities the mass and the tain." Tom R. CSI watching supposed describe influence Managing Threshold Guilt: Truth and Jus- the television CSI: Crime Scene Investi- show Fiction, Reality and L.J. tice in 115 Yale gation juror have has on behavior. Some (Mar.2006). Tyler's article ex- Professor jurors high-quality claimed that who see the plains that the existence of “CSI effect” is presented evidence on CSI raise their forensic empirically. plausible proven not been but has trials, in real in which actual evi- standards Second, Rule does not ban evidence: Gov- confession Government’s It not duplicative that Fields all evidence. per testified se witnesses ernment admit piece victim. that of evidence required each them he shot told entirely unique theory of rele ted have an however, that of the some argues, Fields Indeed, that vancy. provides Rule 403 in not by photos were made points only relevant evi exclude courts should Hall, involving another case dispute. pres if to avoid cumulative dence the need noted: corpse, we of victim’s photographs “substantially” outweighs pro entation evidence is directed to which the “The fact value of the evidence. bative at 401. dispute.” not need be that a criminal defendant reason The Third, up run arguments Fields’s avoid the introduction typically cannot deferential standard of review. against our element of particular of a other evidence length out at that this points His brief that by stipulation is the offense specific photo that was specific photo or opportu- given must be government points might that also have used to make picture nity present to the “to with other evidence or with been made To substitute upon. relied the events precisely This is specific photo. another a naked admission picture for such a that can- scrutinizing of strict we the sort the evi- the effect to rob might have a trial court’s Rule reviewing not do when legitimate fair and much of its dence of balancing decision. weight.” any Lastly, marginal prejudice that States, v. United Old (quoting Id. Chief photo may have added this duplicative L.Ed.2d minimal. greatest risk of un- case is (1997)). Here, point the Government’s gruesome from the prejudice fair resulted decomposed too much body that had in the As we de- depicted photos. scenes to be found was any evidence physical for above, fairly those scenes were termined effectively images than more with made It to see how addi- evidence. is difficult vague generaliza- with would have been showing thing sig- the same photos tional difficulty in processing tions about Indeed, nificantly harmed Fields. Fields crime scenes. weeks-old an inflam- speculates showing himself that admitting thir- contends that Fields also may actually matory repeatedly scene di- unduly cumulative. ty-two photos impact. Accordingly, minish its emotional that, four flaws taken has argument This clearly court did not abuse its district First, fail. it must together, show thirty-two admitting pho- discretion in relevance photos had different many of the body. tos of the victim’s Only a photos. few from other clarity example, showed with photos, for THE STUN BELT 5. USE OF fingers had been eaten the victim’s evidence Fields’s next claim is the district away recovering trace such by requiring im- discretion fingernails would be court abused its from under him a stun belt at trial. Since possible. Additionally, only a few showed to wear object to the stun belt clearly in the victim’s Fields failed gunshot wounds below, plain review is error. every photo proba- skull. had our While contends the trial court strictly independent tive from value explicitly find that the stun belt presented, pho- other some of the failed to evidence necessary from was or to exercise its discretion clearly supported points tos distinct points independently from the recommendation made others. (2) the Marshals Service and that the deci- allowed to conceal the stun belt under sion to use a stun belt substantively Moreover, street clothes. the court took unjustified in light good of his behavior into account special problems that during previous appearances court and due physical might restraints pose under to the heightened prejudice may restraints Fields’s proceed decision to pro se. It pro litigant. cause se hold that We provided both sides would remain district court committed no reversible er- seated jury. before the steps These en- ror. sured that would neither see the stun belt nor surmise Fields was be- As to Fields’s first argument, ing treated differently from the prosecu- we have held that a “may rely court heavi reasons, tors. For these the court did not ly on the U.S. Marshal’s when advice de abuse its discretion. ciding whether defendants should be during shackled trial.” States v. United

Ellender, (5th 6. 748, Cir.1991). JUROR 947 F.2d EXCLUSION 760 Moreover, a district court’s failure to as Fields claims that the district sign for physically restraining reasons court by erred excluding Juror Barnett though erroneous —is not “re defendant — opposition to his due to the penalty. death error” where versible reasons “are those We review such for claims abuse of discre readily apparent to us from the record.” tion, affording “considerable deference” to United v. Hope, States 102 F.3d 118 the trial court. See United States v. Ber (5th Cir.1996). Here, the Marshals Ser nard, (5th Cir.2002). 299 F.3d 474 (1) vice that Fields testified had a violent (2) history, criminal had “aggressive, been The court did not abuse its volatile, and lewd” custody, while in in striking discretion Barnett. A court a “history escape had escape may jurors strike for cause if their views attempts.” The district court’s reasons for punishment “prevent would or restraining readily Fields are apparent. substantially impair” the performance of Turning to Fields’s ar their “in second duties accordance with the in gument, the district court not abuse struction did its and oath.” United States v. discretion in deciding Webster, (5th Cir.1998). restrain Fields 162 F.3d with a stun Physical belt. may restraint never, Barnett stated that he “could re justified be where there danger is “a circumstances, gardless facts and escape injury or jury, counsel, or return a verdict which resulted See, other participants.” trial e.g., United penalty.” death Similarly he stated at (5th Joseph, States v. dire, F.3d voir “I don’t believe that I would Cir.2003). posed just dangers. such return a verdict of death sentence in That previously added). Fields had not misbehaved any case” (emphasis Statements in court does import eliminate the like those made provide Barnett a more previous prison escape attempts Fields’s than adequate See, basis exclusion. history of violence. A Bernard, trial court e.g., need 299 F.3d at 474. Contrary not wait until an obviously dangerous de arguments, to Fields’s the court need not actually injures fendant participants trial explored positions have any Barnett’s fur or escape tries to from given the courtroom be ther “resoundingly” Barnett in addition, fore restraining him. the dis apply dicated his refusal ever the death trict appropriately court steps to min Flores, took penalty. See States v. United imize prejudice. (5th risk of 1342, 1354 Cir.1996). Fields was F.3d ordinarily misconduct PROSECUTORIAL MISCON- must be viewed indi- vidually. Wicker,

DUCT See United States v. Cir.1991); United States claim of trial error Fields’s next Iredia, (5th Cir.1989). committed numerous acts Government may improper “There be instances where that, prosecutorial misconduct individu- statements, which are individually ally collectively, denied Fields due reversal, prejudicial enough require process. could cumulate to affect the defendant’s However, rights. substantial such instanc- a. Standard Review Wicker, es are rare in this circuit.” 933 apply “two-step analysis” We F.2d at 292. examine We the cumulative prosecutorial to claims of misconduct. error doctrine in Section 9 infra. Insaulgarat, v. 378 F.3d United States (5th Cir.2004). 456, First, we assess 461 b. Analysis prosecutor improp whether “the made an so, Eliciting i. er remark.” Id. If then we ask Inadmissible Evidence prejudiced. whether defendant was first, argues, Fields pros that the prejudice We have made clear that by ecutors committed taking misconduct high step inquiry sets bar: advantage of pro Fields’s se status and Improper prosecutorial comments con repeatedly soliciting prior evidence of bad only stitute reversible error where the 404(b) (“Evidence acts. See Fed.R.Evid. right defendant’s to a fair trial is sub crimes, other wrongs, or acts is not admis stantially affected. A criminal convic prove sible to person the character of a lightly tion is not to be overturned on order to show action in conformity there a prosecutor’s the basis of comments with.”). standing alone. The determinative matter, As an initial we have question prosecutor’s is whether the re difficulty some with the allegation that the marks serious cast doubt on the correct Government advantage took of Fields. jury’s ness of the verdict. it prosecutor While is true that the is an Holmes, v. United States court, officer of the ultimately ours an (5th Cir.) (internal omitted), citations cert. such, system. adversarial As is the — denied, U.S. -, 126 S.Ct. attorney, prosecutor, defendant’s not the (2005). L.Ed.2d 163 primarily who charged with protecting generally We look to three factors rights. why defendant’s That is courts in deciding any whether misconduct casts universally recognize that representing “(1) serious doubt on the verdict: mag oneself in proceedings criminal is “fool prejudicial nitude of the effect of the pros ],” Mayberry Pennsylvania, ish[ (2) remarks, efficacy ecutor’s 455, 463, U.S. 91 S.Ct. 27 L.Ed.2d 532 cautionary by instruction judge, (1971), why which in turn is defendants strength supporting the evidence must be advised of the dangers of self- Mares,

the conviction.” United States v. representation they before can validly Cir.), 402 cert. de counsel, waive California, see Faretta v. —nied, -, 806, 835, (2005). L.Ed.2d 76 L.Ed.2d 562

Furthermore, assessing dangers Where those have been hazard- prejudice, occurrences of prosecutorial voluntarily, reject ed the notion that “[w]e he did not come forward earlier because he ... must abide some prosecutor ” prior afraid of Fields. Fields’s violent was Hoff, .... See State special rules (1982). conduct toward Burton established 809, 812, 644 P.2d 763 Wash.App. plausible explanation. Prior this was counsel, right to Having waived his misconduct is inadmissible under Rule prosecutors demand cannot now 404(b) propensity if used for character as his law- effectively served should have Thus, initial purposes. the Government’s ensuring that there was no valid yers by proper. redirect evidence. See id. objection to their own Thus, Fields’s miscon- affording without evidentiary The court did sustain an ob- any special treatment because duct claim jection on re-redirect as Government himself, we turn to its mer- represented he continued to elicit more misconduct evi- However, its. foregoing dence. establishes that the had a ba- Government reasonable by Fields is the highlighted The incident had pursuing sis for evidence Fields examination of Kev- redirect Government’s acts, gave committed violent and the court Burton, that Fields had in who testified sustaining curative instructions after killing the victim. bragged to him about circumstances, objection. any Under that Fields elicited was The Government of Burton marginal improper questioning and tried to people” to shoot had “known woefully severity falls below the of what re-redirect, the Govern- rob Burton. On be Fields’s con- required would reverse eliciting ment continued with theme— viction.40 “dangerous person” that Fields was robbing” crack “shooting known for Goading Objections ii. Fields with Ultimately, the Government dealers. complains that the Fields also Fields, which was objection an from drew prosecutors provoke upset schemed to subsequently gave The court sustained. A frequent objections. him with defen curative instruction. expected to fol proceeding pro dant se argues Fields Govern ordinary procedural low rules. See Faret Burton examining ta, actions in ment’s at 834 n. 95 S.Ct. 2525. evidentiary Here, objections not to an violation prosecutors’ amount and, Viewing prosecutorial proper but to misconduct. failure to do so were Fields’s fact, usually redirect examinations were sustained. Since Government’s context, objections clearly val disagree. On cross-examina were we Government’s id, matters Burton, suggest complicate we see no need to appeared tion of Fields prosecutors’ motives recently inquiry with into the that Burton had fabricated short, no im objecting. In there was He asked supposed Fields’s confession. conduct. proper why report he failed to Fields’s Burton it occurred. The

admission until well after Improper Sidebar Remark Hi. proffer attempt of Fields’s Government’s Next, pros that the support argues Fields robbery ed of Burton was used Burton, improper an sidebar remark according to ecutors made response; Burton’s individually and since context is criti- gestures to other instances viewed 40. Fields also cal, Insaulgarat, these allegedly 378 F.3d elicited inad- see where the Government inadequately briefed. Conse- briefing matters are prior bad acts evidence. His missible Unit- we will not consider them. See nothing quently, than "see also” on this issue is more Williams, (5th descriptive parentheticals. ed States v. 400 F.3d citations Cir.2005). allegation must be Since each of misconduct examination of in their redirect Edward where defense questioning prosecu- invited Outley, provided the man who Fields with testimony tors to elicit characterizing him gun night escape. on the of his cross- man”); (no aas “con Shoff Outley, examining attempted Fields to prosecutorial prosecutor misconduct where Outley recently had show fabricated open- labeled the defendant a “con man” in testimony. Among things, his other Fields statements). Thus, ing prosecutor did Outley grand asked whether he told the improper not make an remark.

jury gun. Outley When said about

yes, Fields him a iv. single page Improper Closing Argument showed of his jury grand testimony. prompting At from Finally, complains prose Fields, Outley stated that the document improper cutors made several remarks at testimony no gun. contained about a closing argument. Since Fields did not thereby misimpres- left with the object remarks, below to the we review for fact, Outley, had sion omitted plain error. See United States v. Gallar gun mention of grand jury. before the do-Trapero, 185 F.3d Cir. However, Outley grand jury had told the 1999). gun—just about the single page on the Most significantly, prosecutors testimony highlighted by Fields. After called Fields a “psychopath.” Assuming this, the Government confirmed prose- the arguendo that clearly this remark was or Outley cutors “just asked whether he fell obviously improper, did not affect con forgot [Fields’s] [and] had [he] ” Fields’s substantial rights. Undoubtedly, told Jury] [the Grand all about it .... “psychopath” the remark had some risk of Outley affirmative, When answered in the inflaming jury. However, the district prosecutors remarked that lot of “[a] court instructed that it must de people have fallen for that con.” cide the case based on the evidence and argues prosecutors Fields ... arguments “statements or made may engage in name-calling. Howev by lawyers are not evidence” and are er, “[t]he use of colorful pejoratives is not binding “not upon you.” Additionally, improper.” United Shoff, States v. though argues Fields the murder case (8th 889, Cir.1998); see United against him airtight,41 was not the Govern Malatesta, (5th States v. 583 F.2d produced ment strong evidence of Fields’s Cir.1978) (“Unflattering characterizations guilt. example, For four witnesses testi of a defendant require do not trial new fied that murdering Fields admitted when descriptions such supported by are victim. Those confessions were corrobo evidence.”). case, In this it appears rated by physical showing evidence cause deliberately Fields tried to mislead of death and the attempt killer’s to hide context, the jury. In referring to Fields’s the body. light evidence, In of this Fields actions as a “con” was not out-of-bounds. has not shown that prosecutors’ re Windom, See United States v. 510 F.2d mark casts serious doubt on the verdict. (5th Cir.1975) (no mistrial was prosecutor warranted where remaining called the de Fields’s claims of im artist”); fendant a “con proper closing United argument States also fail because Caballero, 277 F.3d 1249-50 he cannot show prejudice. Fields com Cir.2002) (no prosecutorial plains misconduct the prosecutors offered then- deed, point count, Fields does not escape "holes” as Fields admitted prosecution’s case on the guilt jury. other counts. In- his before the they clearly position courts are in the best the case when opinion on personal calls, Supreme make those planned on Court has they were “sure” Fields stated us to accord instructed “deference” to the victim with or without having sex with their decisions. Id. We will review for Fields also contends that the her consent. abuse of discretion. See United States v. injected impermissible charac- prosecutors Lawrence, (4th Cir.1998). 161 F.3d jury’s evidence into the deliberations ter Here, object Fields failed to below to the they argued that Fields’s courtroom when Thus, standby-counsel court’s orders. our that Fields “can’t stand to manner showed deferential review is restricted even fur- object Fields failed to not be control.” plain-error ther doctrine. See to these comments below. v. Thompson, United States again argu- assume for the sake of We (5th Cir.1997). n. 14 improp- that these two remarks were ment grave, howev- er. Neither statement is so Analysis b. er, substantially prejudicing that it risked prong Fields’s claim fails the first jury’s light deliberations. of the plain error review: the district court did strength instructions and the court’s not abuse its discretion. The court’s ac Fields, against evidence Fields has not appear nothing tions to us as more than a shown that either remark casts doubt on attempt reasonable to deal with a trial that jury’s the correctness of the verdict. turned chaotic due to Fields’s insistence on self-representation. See United States v. 5. MANAGEMENT OF STANDBY (8th Cir.1998). Einfeldt, 138 F.3d COUNSEL him-, represent After decided to Fields complains that the district court’s self, explained the court of stand- role standby violat- management of his counsel by They counsel. would serve as Fields’s process rights. argues ed his due He However, “legal reference material.” orderly “safeguard the court failed to responsible making for state- Fields was process of trial.” See United States v. framing questions ments to the Court (1st Cir.1989). Nivica, Accordingly, to witnesses. Fields’s stand- Fields, According to the court’s inconsis- they could by counsel were instructed standby tent directions about the role of through him him.” The “represent not fundamentally counsel were unfair and appears to complaint crux of Fields’s now compromised integrity of the verdict. court, initially requiring while be that the Significantly, Fields does not claim that very limited standby play counsel this standby participation at trial in- counsel’s role, participate them to thereafter allowed upon right truded his Sixth Amendment to more, for rendering more and the rules self-representation. standby incomprehensible counsel orderly a. Review of trial. compromising process Standard complaint in necessary put of this It is to this the circumstances case, attempt self-rep- Fields’s perspective. our review of this claim is limited. was, acknowledges, “pre- he “judgment Trial make difficult resentation as courts must surprisingly, Not dictably catastrophic.” role of trying calls” when to reconcile the ability by to abide legal Fields lacked the standby counsel with a defendant’s desire elementary proce- of courtroom McKaskle v. rules represent himself. See questions frequently were 168, 177 n. dure. Fields’s Wiggins, 465 U.S. Davis, being a argumentative, e.g.: “Mr. 79 L.Ed.2d 122 Since trial questions appropriate unable to witness, job to formulate your make it’s government allowed Standby counsel was evidence; I his own. am lack for the excuses Fields outside arguments for e.g.: to make they improper, were correct?” Often demonstrat- Fields hearing vic- because why jury’s Hilliard, you [the know do “Ms. inter- his own protect not premature? that he could born ed baby was tim’s] disorderly caused liquor situation and ests. The drunk [she] it true Isn’t provided “Are self-representation attempt to abort —” Fields’s vinegar an any incon- just justification for adequate that was court that the witness you aware (if inconsistency) in its times Fields’s there was Many sistency here up said — standby counsel. concerning at all. While questions not directives were questions and no who testi- of discretion inmate no abuse cross-examining a fellow There was him, Fields process. confessed due violation of fied that the man “Man, you from said, I don’t know ERROR 9. CUMULATIVE witness, He told another in the moon.” many Westerns.” watching too “You been claim is guilt-phase final Fields’s aside for must be set that his convictions objec- Government The court sustained Having determined error. cumulative For ex- objection. tion after Government re his claims warrant that none of above Fields’s cross-examination during ample, employ individually, we decline versal Scroggins, Shaylakea named of a witness reversing for cumu remedy of the unusual objections hearsay the court sustained claims do Many of Fields’s error.42 lative along with questions, four consecutive See Section to error all. not amount Eventually, progress many others. 6., 7., H.B.2., 4., 5., supra. & 8. by improper frustrated so trial became under justify reversal remainder do dismissed the the court questioning they because error doctrine ques- the cumulative Fields’s which jurors determine they trial that fatally infect the did not “so acceptable. be tions would fairness.” fundamental violated trial’s Fields’s com- shows that This context Bell, 452, 471 United States inconsis- allegedly plaint the court’s about (5th Cir.2004). Fields’s con Accordingly, standby counsel has management tent are affirmed. victions that the The record indicates no merit. expanded role permit an court had to III. CONCLUSION precisely trial later in the standby counsel above, we AFFIRM For the reasons in an trial to ensure continued that and sentence. Fields’s convictions Dunn, 162 F.3d orderly fashion. Cf. right has a to (stating that an accused 307 BENAVIDES, Judge, dissenting Circuit willing if “he is able and se appear pro dissenting, part, from Part II.A.1 and and court- procedure rules of to abide judgment: from the Fields was allowed to protocol”). room never of more The value confrontation standby counsel with to frequently confer a defendant puts than the state proved he vivid when because develop questions his reversing cumulatively his warrant argues errors do not that the trial cu- 42. Fields also sentence, light especially in of the district sentencing by creating mulatively his infected jury must that avoid jury imposed court’s instruction unacceptable risk an sympa- prejudice or "passion, pas- the influence "under the influence of death sentence upon the thy” evidence. sion, arbitrary and base its sentence any factor.” prejudice, or other 3595(c)(2)(A). invitation to exercise Having rejected We Fields’s also decline § 18 U.S.C. error, authority his supervisory reverse sen- our of trial we nearly Fields’s claims all of tence. may have any errors that occurred find that

363 testimony to death based on he had no capital FDPA sentencing, that those rights opportunity appre This was challenge. below, violated were resentencing ciated more than years ago, two-thousand required.

when the Roman Governor Festus de I. The Applies Clause

clared, “It is not the manner of the Ro Confrontation at Capital Sentencing mans to deliver man up to die before the accused has met his accusers face to Confrontation analysis Clause today Iowa, Coy 1012, 1015, face.” v. 487 U.S. bears little resemblance to its former self. 2798, 101 L.Ed.2d 857 changed It has significantly in past few 25:16). (quoting Today, majority Acts — See years. Davis v. Washington, announces when it comes to putting -, 2266, 126 2273-74, S.Ct. 165 L.Ed.2d death, defendants to are no “We Romans.” (2006); Crawford, 36, 224 541 U.S. 124 1354, 158 (2004). S.Ct. L.Ed.2d 177

Sherman Lamont Fields was One of sentenced the few areas undergoing to death based on testimony similarly adverse he dras tic never had an transformation is opportunity to criminal sentencing. confront. Booker, That is all I need to United v. know to find that the See States 220, 543 U.S. 738, Confrontation Clause (2005); has been offended. 160 L.Ed.2d 621 majority places The emphasis Blakely undue v. Washington, 125 the artificial eligibility distinction between L.Ed.2d 851 It and selection capital factors sentencing, then, should come as surprise, no completely neglects to consider recent courts when are now asked to articulate developments in the Sixth Amendment as how these two reconceptualized areas of to confrontation and sentencing. law especially regard with intersect — capital sentencing disagreement When a — practically cannot hand abounds. down a death sentence without finding cer- facts, tain testimony as to those facts must persuasive authorities, and our Sis- be tested through I confrontation. would particular, ter Circuits in are divided on find that rights confrontation extend to judice.1 the issue sub A panel recent Compare Wainwright, v. right that "the Sixth Amendment of confron Proffitt (11th Cir.1982) (holding applies phases that "the tation to all three right to cross-examine ap adverse witnesses trial” and hearsay that "the ... admission of plies capital sentencing hearings”); penalty United statements of co-defendants Mills, F.Supp.2d phase Clause”) States v. violated the Confrontation (C.D.Cal.2006) Walls, ("Crawford Washington’s with Szabo Cir.2002) protections apply (holding any proof any aggrava the Confrontation ting during "applies penalty phase through finding guilt, factor capi FDPA.”); proceeding sentencing, tal but not to under when that Russeau v. even sen State, McGill, tence penalty”); is the death (Tex.Crim.App. S.W.3d State v. 147, 2005) 930, (2006) 213 Ariz. (reversing a 140 P.3d sentence 940-42 death under (Crawford apply penalty phase does not to because the court trial admitted tes Crawford trial); capital hearsay punishment Stephenson, timonial at State v. phase), 195 S.W.3d - 574, denied, -, (Tenn.2006) (same); 2982, cert. 590-91 U.S. United 126 S.Ct. Johnson, 1051, (2006), denied, - v. F.Supp.2d 165 L.Ed.2d States 378 990 and 1062 cert. -, (N.D.Iowa 2005) 2982, (holding U.S. 126 that does 165 L.Ed.2d 989 Crawford (2006); Bell, 1, apply phase capi State v. sentence-selection N.C. 603 359 S.E.2d 93, Simms, sentencing); People tal and (applying 115-16 v. to hold 168 Crawford 176, 576, 922, that Ill.2d 213 Ill.Dec. 659 N.E.2d hearsay introduction of testimonial (1995) (rejecting 930 sentencing phase Proffitt). capital of a trial violated Clause); the Confrontation State, Rodriguez Proffitt, v. In a footnote in the Eleventh Cir- 29, (Fla.2000) stated, 753 So.2d (holding 43-44 cuit right "Our that the decision 252, 1079, recently presumed 93 L.Ed. 1337

this Court Hall, applies capital Clause In Confrontation United States v. this Court ad- sentencing, explicitly but did so without light dressed Williams in of a Confronta- Dretke, 345, v. F.3d holding so. Coble challenge tion FDPA sentencing. Clause Cir.2006). (5th thorough After a 353-54 (5th Cir.1998). 381, 152 F.3d 405-06 text, of constitutional histo- consideration Hall, deciding we assumed without “that structure, precedent, I would find ry, applies the Confrontation Clause to the applies Clause that the Confrontation with sentencing phase capital of a trial with the sentencing capital full force to under applies during same force with which it (“FDPA”). Penalty Act Death Federal guilt phase.” doing, Id. In so we noted this as an undecided expressed issue and A. New York Is Not Williams v. Control- doubt Williams resolved it: ling significant is that in [I]t Williams opinion directly No has Supreme Court Court addressed a process challenge due whether the Confrontation addressed under the Fourteenth Amendment. The applies capital sentencing. Clause Even Court did not hold that the Sixth had, surely if one it would have been called right Amendment ap- to confrontation question by Supreme into Court’s re- plied to the states via the Fourteenth sentencing cent Clause and Confrontation Amendment’s Due Process Clause until It surprising cases. is therefore somewhat years over fifteen after Williams was majority heavily relies so It quite questionable decided. is thus York, a process Williams v. New due case whether controlling Williams is with re- sixty years nearly ago decided that has spect to the determination of whether repeatedly by subsequent been limited right Sixth Amendment to confron- cases. tation extends to capital sentencing capital a case that Williamsw&s held the hearings. Due Process did not a “render[] (internal omitted); at n. merely sentence void Id. citations judge gets because see 48, additional out-of-court note authority information to as- also Williams’s infra. sist him in [sentencing].” 337 U.S. on this basis frequently doubted.2 cross-examination of adverse witnesses is ex judge Confrontation Clause—allowed the trial capital sentencing general proceedings hearsay tended to to use information in the Wise, sentencing process.”); necessarily limited to the facts of the United States v. case us, (8th Cir.1992) (Arnold, involving 976 F.2d psychiatric reports.” before C.J., (11th Cir.1983) (on concurring part dissenting petition F.2d ("Williams However, part) ... is not Confrontation rehearing). both the Eleventh Cir due-process Clause case at all. It is a case recognized cuit and this Court have since court, from state decided general before the Con- proposition stands for Proffitt applicable frontation Clause was held right “the constitutional to cross-examine wit states.”); Wainwright, applies sentencing nesses hear Proffitt (11th Cir.1982) that, Brown, (stating ings.” not- United States v. 441 F.3d Williams, — withstanding (11th Cir.2006), denied, right whether "the 1361 n. 12 cert. — -, cross-examine adverse witnesses extends to L.Ed.2d - (2007); Hall, capital sentencing proceedings has not been see United States v. 152 F.3d 381 1998). specifically Supreme addressed Cir. Court.”); Dixon, Maynard see also Silverman, 407, (4th Cir.1991) 2. See United States v. 976 F.2d 414 (discussing n. 5 Willi- 1502, 1992) (Merritt, C.J., 1525-26 noting Cir. amsbut as unresolved "fundamen- ("In 'Williams, dissenting) question ... question tal of whether the sixth amendment was whether right the Due Process applies aspects Clause—not the of confrontation to all of

365 there was give While severe as to that entirely doubt rise different eviden- vitality ago, tiary a decade Williams’s the Su- concerns.

preme Court’s overhaul of the Confronta- 1. The Clause Distin- Confrontation Clause, 36, Crawford, tion see 124 guished the Rules Evidence from 1354, 177, S.Ct. 158 L.Ed.2d and the “sea explicitly rejected change body sentencing in the former law” Crawford premise, holding that the Confrontation since have made Williams even then less Clause dependent was vagaries not “the question informative to the we face today. of the rules 61, of evidence.” 541 U.S. at Pineiro, 464, See United States v. 377 F.3d 124 S.Ct. 1354. The Confrontation Clause (5th Cir.2004), vacated, 468-69 543 U.S. and the rules of evidence offer entirely 1101, 1003, 160 L.Ed.2d 1006 separate protections. Conforming to evi- (2005). may Wdiile Williams some have dentiary regarding hearsay rules will not regard value with enduring to the intro- satisfy the Confrontation Clause. at Id. duction nontestimonial at sen- hearsay 61-62, Likewise, 124 S.Ct. 1354. if a hear- tencing, hearsay testimonial requires sep- say testimonial, statement is not the Con- arate treatment.3 frontation Clause offers no protection. Davis, 126 at Apprendi B. Render Crawford With that understanding, ap- Williams Inapplicable Williams plies only to hearsay. nontestimonial That was based antiquated Williams on two “the rules applicable of evidence premises that have rejected by since been manner in judge may which a obtain infor- (1) Supreme Court:4 the Confrontation guide mation to him in imposition just Clause against constitutional rule sentence,” Williams, 244, 337 U.S. at hearsay, inextricable from the rules of evi- S.Ct. are more relaxed than eviden- dence, and the capital trial and sentenc- tiary says rules at trial nothing about the ing fundamentally are procedures different content of the Confrontation Clause. sentencing trial]”); phase [of a Process Clause—not the Confrontation Kikumura, United States Clause—is ordained as the relevant frame (3d Cir.1990) ("We 1103 n. hope ... challenges. work for such This reads too far Supreme Court in the near future will Patterson, Specht much into Williamsand decide princi- whether confrontation clause 18 L.Ed.2d ples applicable sentencing hearings.”); are at appellant case neither did the so Michaels, Rights Alan C. Sentencing, Trial much as mention Confrontation Clause (2003) ("[Williams] 81 N.C.L.Rev. and, accordingly, its briefs the Court did alone, process grounds on due decided consider it. The Court's failure to address however, years and was decided sixteen be- arguments hardly provides grounds unraised incorporat- fore the Confrontation Clause was (cid:127) implied holding. might for an This mistake Note, states.”); against ed Argument An explain majority’s repeated disregard for Under the Sentenc- Federal for Confrontation the distinction between nontestimonial and Guidelines, ing 105 Harv. L.Rev. hearsay, testimonial inasmuch as that is a (1992) (hereinafter Argument "An for Confron- distinction relevant to a Confrontation tation") (criticizing Appeals Courts of for fail- inquiry. Clause ing to notice "Williams was not a Con- case”). frontation Clause Pardo, 4. See S. Michael Confrontation Implications majority Sentencing Op- 3. The reasons that because Constitutional the Su- tions, 2006) (de- preme previously analyzed hearsay (April, has Sent. R. Court Fed. admissibility sentencing scribing premises under the inapplicabil- Due these and their Clause, cases). ity given Process that somehow means the Due recent 366 That longer prevails. trials no have no ent from evidence rules of if the

Even light sentencing by at has been eroded both conception application hearsay exception FDPA’s “blanket Georgia, 408 U.S. v. longstanding Furman Robinson, 367 rule,” v. F.3d States United (1972), 2726, 238, 33 L.Ed.2d 346 92 S.Ct. (5th Cir.2004), nothing that does 278, 292 cases, Appren the more recent line of and protec- Clause preclude Confrontation 466, 120 S.Ct. Jersey, v. New 530 U.S. di tions. (2000), line. 2348, Ulti 147 L.Ed.2d by treating falters majority The guidance provides little mately, Williams the Con- lockstep with rules of evidence deci bases of Williams “[t]he because fails to repeatedly It Clause. frontation applied eroded as ... have sion been testi- between the distinction appreciate Taveras, States capital cases.” United hearsay. For nontestimonial monial (E.D.N.Y.2006). F.Supp.2d that instance, point “[i]n- one states at information influ- that in the notion cluded there no supposed that was Williams sentencing need be a decision encing capital between “constitutional distinction” that court is the idea open introduced ordinary sentencing. sentencing and right at no have confrontation defendants Williams's, S.Ct. 1079. U.S. at course, that of a trial.” Of phase that sentencing scheme backdrop critical happens to only true if the “information” procedures and characterized informal by infor- any other form of testimony, but be discretion, one in “no extraordinary which court— open outside of introduced mation objection have federal would constitutional hearsay- including nontestimonial —raises judge gave “no even if a possible” been issues whatsoev- Clause no Confrontation a death sentence. Id. reason at all” for majority’s about concerns All of er.5 hold As premises longer These no true. sentencing authority of a depriving below, penalty the death explored further misplaced, are of evidence range broad unique sentencing concerns. See invokes extending the Clause Confrontation since Brown, States United preclude the relax- sentencing does not Cir.2006) (explaining 1361 n. limit- of evidence. It is the rules ation of evidence, applies capital at Clause as that Confrontation to testimonial alone ed different”), Clause. sentencing the Confrontation “death is implicates because — denied, U.S. -, 127 S.Ct. cert. majority’s reliance Williams The — - L.Ed.2d The Constitu surfacing relic few pre-Crawford sort of requires stringent tion more substantive years late to be defensible. While too Williamsmay protections render the rules of evi- before procedural still non-binding sentencing, it has See, dence no may imposed. e.g., Fur penalty be bearing on the Confrontation as man, 2726, 33 rules recently extracted from those L.Ed.2d 346. and Davis. Crawford Moreover, Appren- more recent Convergence Capi- Trial and line of casts di/Ring/Blakely/Booker cases Sentencing tal majority’s assump- repeated on the doubt plainly controls ordi- tion that Williams Second, notion sentenc- nary sentencing. fundamentally differ- proceedings are ing -just they say are not Confrontation not to there are no con- 5. That is dence— process statutory due re- cerns—since Clause concerns. may still to exclude such evi- serve strictions

367 (2000); Circuit, only circuit 2348, agree 536 U.S. Seventh to 147 L.Ed.2d 435 here, 2428, majority’s holding recog- 584, 153 L.Ed.2d 556 with 122 S.Ct. 2531, 296, that “the (2002); ap- 124 159 nizes Confrontation Clause 542 U.S. 220, (2004); plies during portions sentencing 125 those of a 403 543 U.S. L.Ed.2d (2005). 738, proceeding that can lead to an increase in L.Ed.2d 621 While 5.Ct. 160 punishment.” the maximum lawful have been less trou- See that statement would Walls, I for one cannot turn Szabo v. 398 bling ago,6 a decade Cir.2002) Patterson, (citing Specht v. eye complexities the Craw- a blind layered cases have onto U.S. 87 S.Ct. 18 L.Ed.2d 326 Apprendi ford (1967)). this issue. majority quick point Clause to out that agree I the Confrontation noncapital testimony ap- at sen- the contested in this case apply will not typically factors, sentencing plied opposed as the facts to selection as tencing, long so eligibility scheme and a factors. It finds that apply “[t]he to an indeterminate nonstatutory of imposing aggravating discretion establishment judge has broad necessary Only to that extent factors is neither nor sufficient sentence. imposition But the to authorize of the death plain. penal- Su- application Williams’s artificial recently recognized ty.” categorical ap- that even But preme Court always sentencing ignores dif- the stark sentencing proach is not so noncapital case; reality if trial of this because the unan- proceedings, ferent from prescribed imously mitigating found seven factors in sentencing facts “increase a criminal de- Fields’s favor—and a number of other mit- range penalties to which igating were found without unanim- exposed” such the sentenc- factors fendant is doubt that the death “equivalent ity of an element of is without ing fact is the —it imposed by penalty than the one covered would not have been but greater offense verdict,” aggravating fac- jury’s guilty Apprendi, 530 for the establishment 490, 494, phase. at the selection To state that at then the tors necessary impose apply should and those factors were Confrontation Clause majority penalty requires in the the death does not control even non- Williams eye practical realities of turn a blind capital context. sentencing. sentencing fact is the Insofar as the offense, majority attempts to describe equivalent of an element While sentencing of FDPA as phase the selection protections logically Clause Confrontation jury that finds a purely discretionary, a sentencing. See United States v. apply Mills, (C.D.Cal.2006); eligible “has not found all defendant death F.Supp.2d the law makes essential to Gray, F.Supp.2d the facts which States v. United (S.D.W.Va.2005); Blakely Washington, punishment.” Michael see also S. 296, 303-04, Pardo, Implications Confrontation phase The selection Options, L.Ed.2d 403 Sentencing Constitutional 2006). jurors significant dis- gives of the FDPA (April, R. 230 Even the Fed. Sent. application, some its majority many permutations While Williams has 6. The offers definitively holding view: “caselaw maintains rules of evidence as this is limited to the context,” noncapital principle in the Williams recently from the Confrontation extracted right admittedly non- "the confrontation [is] Clause, explained It cannot be read as above. noncapital sentencing,” “it al- has existent holding that. broader than ready right con- been established that the frontation is nonexistent.” cretion, when, that discretion especially here, but is curbed This is evident as requiring jury jurors that the first ascertain the the many mitigating found factors that, mitigating account, factors. presence Assuming any plausible of were exist, mitigating outweighed by factors as several did aggravating factors that ex- here, jurors beyond beyond the must also find a required eligibili- isted those for an short, aggravating ty finding. reasonable doubt that factors jury when a cannot outweigh mitigating practically exist sufficient to the hand down a death sentence weighing facts, factors. While the actual of the without finding testimony certain re- fact,” a “finding garding factors is not the exis- through those facts must be tested tence of a “constitutionally such factors is confrontation.8 If government the thinks significant factfinding” to which the it necessary prove nonstatutory Con- aggra- factors, frontation must attach.7 vating Clause it required then should be my disagreement Perhaps majority eligibility 7. with the the factors were found to be in classify phase Instead, the is based in how to selection Ring. hybrid we are faced with a sentencing. Supreme of FDPA The Court has finding recently aptly that one court labeled aggravating made clear that the factors re- "constitutionally significant as factfinding.” quired eligibility phase at the of FDPA sen- Mills, F.Supp.2d agree 1134. I tencing equivalent the are of elements of the finding with that court's that such constitu- offense, and the Confrontation Clause would tionally significant factfinding is more similar presumably phase attach at that since it is eligibility findings purely than discretion- akin to a trial on the elements of the offense. ary thereby ones and requires Confrontation Arizona, 584, 609, Ring See protections. Id. at 1134-35. 153 L.Ed.2d 556 This complicated The rigorous FDPA's fact- phase case concerns selection of FDPA finding requirements distinguishes also sentencing, jury where the must find ad- typical noncapital sentencing, from answering aggravating beyond ditional factors a reason- majority’s queries my approach as to how doubt, mitigating pre- able find factors a general can be reconciled with the rule that evidence, ponderance of the and then must apply sentencing. confrontation does not aggravating determine "whether all the factor simply requires The FDPA typi- more than the sufficiently outweigh or factors found to exist sentencing finding. cal mitigating all the factor or factors found to justify exist to a sentence of death.” "practically” I use the word 3593(e). because it is § U.S.C. admittedly highly conceivable here—albeit majority I think the offers a distorted de- improbable given mitigating the seven factors scription process merely selection as jury unanimously jury found—that providing jury "ability to select a imposed would have punishment penalty lesser the death spite with- case in death-eligibility,” finding any if out nothing aggravating beyond as it were factors mercy hearing. more than a nearly It is not establishing those eligibility. death That discretionary, so contemplates particu- as it practical signifi- chance cannot demean the findings larized additional from the re- cance of the aggravating additional factors garding aggravating the existence of against that were raised Fields without the mitigating Douglass, factors. See John G. protections of the Confrontation Clause. To Confronting Death: Rights Sixth Amendment place significant reliance possibility on that Capital Sentencing, 105 Colum. L.Rev. effect, would be to exalt form over as re- (2005) ("A right 1974-75 defendant's peatedly against warned in the Court’s recent cross-examine crucial witness should sentencing prosecution cases. If the believes upon legislature’s designation turn aggravating establishing factors death eli- factors, eligibility factors and selection an of- gibility outweigh are alone sufficient to ten artificial distinction that bears little rela- factors, mitigating liberty proceed it is at tionship affecting to the real issues proving "unnecessary” without additional death.”). choice between life aggravating factors and avoid the issues ad- phase findings But selection cannot be easi- dressed here. either, ly labeled as elements of the offense as to do so with Confrontation Clause was the primary task for judges which the tact. admitted defense counsel felony tri- al.”) text, The . Sixth Amendment’s read C. The Sixth Amendment’s Text light Mempa Rhay, suggests that the Confrontation Because Clause should inapplicable apply. Williams is and no Find- ing the Supreme opinion directly Confrontation Clause inapplicable Court control at sentencing I ling, turn to the Constitution’s text. forces the same phrase, “criminal prosecutions,” Confrontation in “all to mean applies Clause crimi two dif- ferent things depending on prosecutions.” nal which it U.S. Const. amend. VI. clause modifies. We should at ‘plain criterion, wary “If least be meaning’ is the this is giving the text such a easy Surely an ease. counterintuitive no one would con reading. sentencing tend that part, is not a and a ” one, vital of a prosecution.’ ‘criminal jury That sentencing required is not in Wise, (Arnold, C.J., 976 F.2d at 407 con capital cases does not undercut this read- curring in part dissenting part); and ing. Florida, Spaziano cf. See States, 440, Robertson v. United 447, (1984). 82 L.Ed.2d 340 (5th Cir.1969) (en banc) (holding that Jury The Clause has a unique second limi- the Confrontation apply Clause did not to tation that apply does not Right proceedings a before draft board because Counsel or the Confrontation only Clause: proceedings such stages “are not in a crim jury a required. “trial” is See U.S. Const. prosecution”). inal amend. A jury VI. required at trial, Right whereas both the to Counsel reading This of the Sixth Amendment’s and the Confrontation “apply Clause more text accords with the Supreme Court’s broadly to the whole ‘criminal prosecution,’ Right to Counsel jurisprudence. The Su- and thus to sentencing.” Doug- John G. preme Court has that sentencing held is a lass, Confronting Death: Sixth Amend- critical stage of a criminal proceeding dur- Rights ment at Capital Sentencing, 105 ing which the Sixth right Amendment’s (2005) (hereinaf- Colum. L.Rev. applies. counsel See Mempa Rhay, ”); ter “Confronting Death Argu- see An 19 L.Ed.2d 336 Confrontation, ment supra note for The Sixth Amendment extends the n. 70. rights both to counsel and to confrontation prosecutions,”

in “all criminal alone, suggesting Standing majority points out right where one applies, the other argument that this textual may prove too does too.9 See Petty, much, United States v. for it apply equally would at noncap- Cir.1993) (Noonan, 1370-71 ital sentencing. “It is well established in J., dissenting); Langbein, John H. this circuit that a criminal defendant’s The cf. Adversary Criminal Trial 291 Sixth Amendment right of confrontation is ORIGINSof (2003) (hereinafter “Langbein, Origins”) sharply non-capital circumscribed in sen- (“Cross-examining prosecution tencing Hall, witnesses proceedings.”10 152 F.3d at full, 9. provides, him; In the Sixth Amendment "In against confronted with the witnesses prosecutions, all criminal the accused compulsory process obtaining shall have for wit- trial, enjoy right favor, speedy public by to a and nesses in his and to have the assistance impartial jury an of the state and district of counsel for his defense.” committed, wherein the crime shall have been which previously district shall have been Notably, rely as- 10. we did not on Williams in law, certained and to be holding rights informed of the defendant's under the accusation; nature and cause of the "severely to be Confrontation Clause are restrict- Nonetheless, alone, capital a form of sentenc- reading the textual It is not Proceedings Founding. ing existed holding however, supports which often functioned purported to be trials apply must Confrontation hearings: sentencing as already FDPA. As sentencing under defacto jury’s power mitigate sanctions Apprendi might mentioned, Crawford purpose profoundly affected noncapital treating capital lead to many criminal trial those offenses 49-50, supra, differently, but To the erwise had no credible defense. sentencing cases. capital post-Furman trial a function in such extent that had beyond formalizing the inevitable cases Capital History D. Confrontation of it the guilt, conclusion of was decide Sentencing sanction. moment the mod- for the Setting aside To avoid supra, ORIGINS, Langbein, insistence death Supreme Court’s theft, ern juries meting out death would different, distinguishes capital history larceny the value of a “bring in to be under sentencing ordinary when sentencing really from of much twelvepence, it [was] when rights. See Con- supra, to confrontation 4 Blaokstone, greater comes value.” W. Death, at 1974. At supra, Additionally, the “murkiness” fronting *239. of written, was man- common law’s distinction between the Confrontation time trial pro- slaughter empowered unified and murder single, trial a capital a in sentencing with de discretion guilt and sentence ceeding at which both facto White, cases. S. homicide See Welsh nothing knew decided. The Framers were Penalty: Death Fact-Finding separate capital sentencing of proceedings Right to Scope Capital a Wise, 407 F.2d from trial. See 976 Defendant’s of Trial, 65 Jury 7—11 (Arnold, C.J., part Dame L.Rev. in and dis- concurring Notre Green, (1989); Jury Thomas The A. wrote, Blackstone senting part). As Homicide, 1200-1600, Law English a capital a of once defendant was convicted of (1976). 413, 424-25 The 74 MiCH. L.Rev. crime, pronounce that “the court must Supreme recognized Court the Colo- has has annexed judgment which the law ” jury’s practice preventing nial of death .... Blackstone, the crime W. Com- factually by rendering dubious sentences England *376. mentaries on Laws Woodson, at 289- verdicts. See felonies, common law capital For made 91, 96 S.Ct. 2978. mandatory sen- death the exclusive and Carolina, these point The critical is this: because tence. v. North See Woodson 280, 289, capital sentencing proceedings de U.S. facto trials, (1976). full criminal took the form of L.Ed.2d Cir.1990). sentencing pro- noncapital, ed” Guideline ceedings. Rodriguez, See United States con- that he deserved a reduced sentence for rights full trial possessed defendant (2 However, capi- battery. Bay) notion that assault and S.C.L. frontation. “outside sentencing might 62,62 be conducted tal strictly “post- trial” is a of an adversarial History supports constraining confronta- Confronting phenomenon. constitutional” rights noncapital sentencing, tion but

Death, at 2016. supra, sentencing history a capital has different history majority reads this selec- The suggests the Confrontation Clause “sentencing authority’s tively, treating the apply. should pun- ability to select lesser [newfound] spite case in of death- capital ishment in a E. Proceedings “Trial-like” Sixth layer pro- just as an added eligibility” Amendment Structure majority The tection for the defendant. apply The Confrontation Clause should sen- paints phase the selection FDPA fully sentencing, because unlike mercy hear- little more than tencing as noncapital sentencing, a trial-like involves a defendant condemned ing, where proceeding. Supreme adversarial The just grateful to have gallows should be applies rights” Court certain “trial to ad- case, no matter how plead chance to his sentencing hearings versarial that bear the limited the forum. guilt trial or inno- “hallmarks accurately depict picture This does not Missouri, 451 Bullington cence.” sentencing procedures. FDPA’s 430, 10, 1852, 438-39 & n. 68 very specific fac- phase requires selection (1981) (relying L.Ed.2d 270 on trial-like findings tual and evaluative before capital sentencing format of Missouri’s imposed. can See note penalty death be opening for hearing provided —which 49, maintained con- supra. Defendants statements, testimony, jury formal instruc- critically rights impor- when the frontation tions, proof beyond a reasonable doubt of posed of “life or death”11was question tant factors, a aggravating arguments, final and historically, today take juries and we that jury holding formal verdict—in right away from them. Jeopardy applied Double noncapi- important point Another Illinois, proceeding); Morgan see v. 504 history. sentencing tal has a different 2222, 112 119 L.Ed.2d 492 U.S. S.Ct. suggest Early English and American cases judges noncapital conducted sentenc- example, Washington, for Strickland featuring testi- ing proceedings in informal capital sen- distinguish refused to Florida’s hearsay. Id. at 2016 & nn. 282-83. monial trial where effective assis- tencing from Sharpness, example, In Rex v. for concerned. The tance of counsel was prosecutor to read an court allowed penal- that Florida’s death Court reasoned sentencing aggravating affidavit before sentencing proceeding ty statute created a imprisonment defendant to one month of format and “like a trial its adversarial “suffering prisoner a on the crime Rep. (K.B. decision.” the existence of standards for escape.” 99 ENG. 1066 Strickland, 668, 686-87, 1786). held that Similarly, State v. Smith (1984). Thus, L.Ed.2d 674 sentencing a 80 present the defendant could must Right that the to Counsel to show Court held mitigating court with affidavits eligible?” distinctly not death death?” has a different 11. “Life or than, importance eligible, or tone and "death hallmarks of a bear other under the FDPA adversarial that the “ensure fully to apply represented are just trial. Both sides criminal produce works testing process evidence; present deci counsel and governing the standards result under Government, jury; 687, 104 instructs S.Ct. 2052. Court Id. sion.” counsel, closing presents and then defense structural reflects jurisprudence This prove must the Government argument; adversarial suggests reasoning a reasonable beyond factors aggravating Con- See “interdependent.”12 are rights verdict, doubt; returns a formal jury ad- Death, at 1975. The supra, fronting be unanimous. See its must verdict system, system is indeed versarial id. effectively may not function its elements alone. FDPA’s in the Requiring confrontation particularly sentencing regime is trial-like FDPA, many penalty death like

The interdependence of given the appropriate statutes, sentencing supplies adversarial M. Mor rights. See Edmund adversarial Thomp- trials. See resemble hearings that Exclusionary Rules 815, 856, Jury and the Oklahoma, gan, The son Evidence, (O’Connor, J., U. L.Ed.2d 702 Chi. L.Rev. (“As right to “cross- (arguing that the a prac- judgment) in the concurring is an essential examine element” virtually required we have tical matter sentencing system). If only adversarial imposed penalty be the death full-fledged adver by purports provide followed has guilty when a verdict been then a adversarial proceeding, sarial true sentencing proceedings, separate trial-like Christopher give. must See proce- proceeding it many of the and we extended have Tahbaz, Note, to the End: K. Fairness during crimi- applicable dural restrictions Adverse Witnesses Right The proceedings.”) these nal trials into Confront Proceedings, 89 Co Sentencing sentencing.13 Capital FDPA provides (1989) (“Because 3593(b). addition, hearings § L.Rev. U.S.C. lum. only judicial sentencing” imply Williams"discussed Confrontation 12. This that does indi- Supreme in the tech- Court “has never and that the Clause is “structural error” error phrase. “Confrontation ... to a that would extend Williams nical cated it sense errors, errors, are sub- sentencing Clause like other trial v. Carde- jury”); United States cf. Hall, analysis.” Cir.1993) (en ject nas, 1139, 152 to harmless-error F.3d 1154-56 9 at banc) (recognizing that the Confrontation may provide greater rights in cases Clause 350, Polk, 438 F.3d 359 trials). 13. See Robinson v. juries before than in bench tried (4th Cir.) (holding Confrontation jury judge between A distinction sentencing pro equally “appl[ies] Clause to capital in when it to confrontation comes - denied, jury”), ceedings cert. to a tried justified by sentencing may be "the law’s 514, -, 166 L.Ed.2d 383 U.S. S.Ct. 127 jury that a cannot be trust- traditional view 17, (2006); Stynchcombe, 412 Chaffin affecting a final ed to make determination 1977, 15, 36 L.Ed.2d 714 28 S.Ct. n. 93 rights of the un- substantial on basis (1973) jury institution of that "the (explaining of out-of-court statements cross-examined sentencing judicial in sentencing is unlike Capital at Sen- declarants.” Confrontation ways”); Mark Silver- number fundamental tencing Hearings, supra, This at 124-25. stein, Capital Sentencing at Confrontation judges, skepticism extend to who did not Hearings: the Federal Consti Illinois Violates probative value of hear- discount the could by Pennitting tution Sentence Juries to Defen traditionally it say admitted evidence Ordinarily dants to on the Death Basis of worth.” See Kenneth "for what it’s Hearsay, L.J. Inadmissible Loy. U. Chi Cases, Davis, Nonjury Hearsay (1990) (hereinafter Culp in at “Confrontation ”) 1264-65 Hearings (arguing Capital Sentencing Harv. L.Rev. 1982; Petty, F.2d at fundamental see also right of confrontation (“What (Noonan, J., dissenting) be is the process, should to the adversarial sentencing proce- if capital point having counsel counsel cannot extended 727, 112 dures”); 504 U.S. at Morgan, an function of counsel— exercise essential cf. (holding jury that “if a is to be the cross-examination of the witnesses client?”).14 capital sentenc- provided [at the defendant against counsel’s regardless of whether Sixth ing], apply The Confrontation should Clause it, must requires Amendment (1) capital sentencing to ensure that the and indifferent to the ex- impartial stand testing process” “trial-like” “adversarial commanded the Sixth Amend- tent provided pro under the FDPA “works to ment”). (2) just Right duce a result” and that the meaningful Right particular, Counsel, particular, in functions effec capital sentencing depends Counsel Strickland, tively in cases. See rights. The Confrontation confrontation 687, 104 U.S. at S.Ct. 2052. protect Right apply should penalty proceedings. in to Counsel death F. Death is Different York, Herring v. New See applied The Eleventh Circuit the Con- 45 L.Ed.2d 593 ground frontation Clause on the (“[T]he of counsel has right to assistance penalty special procedures death demands understood to mean that there can be been reliability. Proffitt, 685 F.2d to assure See the function of counsel upon no restrictions per- at 1253-54. There is extensive in defending prosecution a criminal ac- support position. suasive for this adversary the traditions of the cord with factfinding process that has been constitu- stringent, procedures “trial-like” and Fourteenth tionalized the Sixth govern capital sentencing derive from Amendments.”). Supreme unique concern with Court’s “In reliability penalty cap in death cases. Douglass explains:

Professor Court has proceedings generally, th[e] ital rights support each Sixth Amendment factfinding as procedures demanded that counsel, right other. Without reliability. heightened to a standard of pire may be an exercise cross-examination natural conse especial concern is a This futility. right to cross-ex- Without knowledge that execution is quence present amine the state’s witnesses or unfathomable of the most irremediable and evidence, right counsel favorable to different.” Ford penalties; that death is may empty be an formalism. 411, 106 399, S.Ct. Wainwright, v. U.S. Death, at 2010. Confronting supra, (internal 2595, cita 91 L.Ed.2d 335 Right wonders what use the to Douglass omitted). tions capital sentencing at if would be Counsel reliability. permitted “to Confrontation is essential Government witnesses were cross- repeatedly recognized questions and Courts have prosecutor’s answer engine greatest legal “the examination as away then walk before the defense counsel truth.” discovery of at ever invented for the probe.” had an Id. opportunity line, the death on the routinely less real. With life or 14. While courts avoid this obvious allowing by cross-examination of cross- unfairness can now avoid defense Government appear, that do the unfairness expedient using witnesses with the out- examination hearsay using worthiness, to establish death- testimonial testimony. of-court perhaps apparent, is no while less State, 742, Illinois, 346, 356, Porter v. 578 S.W.2d 502 U.S. see v. E.g., White (1992). (“While 736, L.Ed.2d 848 the facts con- (Tex.Crim.App.1979) 112 S.Ct. “ principal may means in question is in the documents tained ‘Cross-examination believability of a witness punishment, which have been relevant testimony are tested.’” this prove the truth of in sought manner which the State Cain, v. Wilkerson his appellant facts denied constitu- those Alaska, Cir.2000) Davis v. (quoting confrontation and cross- rights tional 308, 316, 39 L.Ed.2d 94 S.Ct. examination.”). (1974)). in Court Craw- Supreme The Second, applying it far from clear that is that “the [Confrontation] maintained ford in would result the Confrontation Clause to ensure reliabili- goal ultimate Clause’s cases, excluding In some “less evidence.” 61, 124 U.S. at ty of evidence.” 541 in the loss hearsay may testimonial result Clause should 1354. The Confrontation information. When witnesses of relevant sentencing because those capital apply however, testify, jury are available to greater relia- aspire must proceedings informa- will have the benefit of additional ordinary sentencing. bility than developed tion on cross-examination. Citing majority logic. resists this The Therefore, applying the Confrontation it contends that allow- Gregg Georgia,15 capital sentencing is consistent Clause necessary hearsay is be- ing testimonial Gregg empha- with and reflects the Court’s “sentencing authority capital cause the reliability. sis on increased range of a broader consider- must consult majority’s necessarily rule does not just punishment than a deciding ations capi- allow more information to come into Thus, a sen- deciding guilt.” trial merely sentencing, tal it admits one-sided may properly consider victim tencing jury Tennessee, evidence, Payne any meaningful chal- see evidence without impact lenge. 115 L.Ed.2d 501 U.S. (1991), sentencing judge in a take into account “the capital case can Suggesting G. Cases Confrontation in a elements of racial hatred” involved Rights Florida, Barclay v.

murder. specifically A in- number of cases 3418, 77 L.Ed.2d 1134 right voke a of confrontation majority’s argument But the Although sentencing position. bolster this twice flawed. definitively right a full none establish First, applying the Confrontation Clause confrontation, post-Furman these cases line of cases because is consistent with this provide guidance far than better Williams type it restrict facts does not v. New York. capital sentencing. may proven be Florida, Supreme Gardner v. Rather, way they affects a death sentence Court reversed which may hearsay declar- proven. be “Where part on secret information was based testify, merely to ant is available Crawford 349, not disclosed to the defense. 430 U.S. requires government present to (1977). 1197, different, 51 L.Ed.2d 393 information in a albeit less con- venient, plurality cast doubt on the au through testimony the live Gardner form: thority emphasized It how knowledge of the witness with direct of the Williams. Death, 2027; supra, capital sentencing changed at had in the in- Confronting facts.” 153, 203-04, 2909, (1976) (plurality opinion). L.Ed.2d 859 15. 428 U.S. 96 S.Ct. tervening years “pas- right effectively and stated that the cross examine was justifies a sage of time re-examination of not an slip isolated pen. Smith capital-sentencing procedures.” Id. at refers to the need for effective cross-exam- 356-57, 1197. Accordingly, 97 S.Ct. Gard- capital ination in sentencing four separate Williams, stressing ner limited times. Connecting its holding to the Su- “ case had addressed a ‘narrow contention preme Court’s jurispru- death-is-different ... relating] ap- to the rules of evidence dence, opined Smith testimony not ” 355, sentencing. plicable’ Id. at 97 effectively cross-examined “carries no as- (brackets in original).16 S.Ct. 1197 Gard- reliability surance of whatever.” Id. at distinguished ner then Williams on several 701. The Eleventh part Circuit relied in grounds, noting significant as that the trial on our Smith decision to hold that “ judge in was not to ‘af- Williams asked Confrontation applies appellant ford a chance to refute or dis- sentencing. Proffitt, See 685 F.2d at credit statements at [the issue] (“The 1254-55 reasoning in clearly Smith ” cross-examination or otherwise.’ Id. at supports right the view that the to cross- Williams, (quoting 97 S.Ct. 1197 337 examine adverse applies capi- witnesses 1079) (emphasis 69 S.Ct. add- sentencing tal proceedings, at least where ed). Reasoning that “debate between ad- necessary to reliability ensure the of the versaries is often essential to the truth- testimony.”). witnesses’ function,” seeking the Court then held that process Contrary to the panel opinion, ability due mandated that the defense be “deny explain” able to or evidence in to cross-examine a presents used witness who 360-62, capital sentencing. Id. at hearsay testimony 97 S.Ct. satisfy does not Smith’s requirements. very That is a thin view of “right what constitutes a cross- later, years Smith, effective Two Estelle v. this examination.” 602 F.2d at 698 n. 3. Court scope considered the of Gardner. very Cross-examination would serve little (5th Cir.1979), 602 F.2d 694 by Estelle aff'd purpose if a defendant is allowed to cross- Smith, examine, accuser, person but a who Smith, prose L.Ed.2d 359 reads the accuser’s statement. The state cution omitted from its witness list the effectively could insulate all of its adverse psychiatrist name of a testimony whose testimony by having witnesses write their dangerousness the issue of future was cru putting statements out and then an officer cial to its case at penalty phase. This on the stand to read them. While that allowing surprise Court held that witness may questioned, officer then be his an- principles part violated the Gardner may logistically swers because undermined the defendant’s be confined to con- “right firming to effective or denying piece paper cross-examination.” Id. what at 698 n. says, 3. The Smith Court’s notation of leaving the substantive accusation majority posture plication 16. The relies on Gardner’s as evidence rules of at sentenc- process posture a due case—as it relied on the ing, 430 U.S. at it is Specht of Williams and insinuate that due hardly surprising that the Court would not —to process appropriate raising is the avenue for apply the Confrontation Clause a time challenges. just these But because the Court up by evidentiary when it was swallowed protections found that Due Process Clause rules. Had the Confrontation Clause been possibili- were violated does not foreclose given independent force of those rules—as it ty rights that other were violated as well. today might expect has that Gardner —one Moreover, recognized the since Court that could have been a Sixth Amendment case. holding directly ap- Williams's foreclosed the testify, and the de to he was unavailable motive com- credibility and and its source’s opportunity essentially prior what had had a fendant That is pletely untested. 53-54, 541 U.S. with Detective in this case cross-examination.” did the state 158 L.Ed.2d January. finely line be draw the did not Crawford reasoning Court’s Supreme Finally, the nontestimonial tween testimonial the exis presupposes v. Estelle in Barefoot however, note, that It did statements. sen rights capital at of confrontation tence by police officers in taken “[statements 880, 902-03, 103 tencing. See qualify interrogations” would course of (1983). Bare 77 L.Ed.2d S.Ct. Id. testimonial. definition” “under did Process Clause that the Due held

foot 52, 124 1354. at S.Ct. future-dangerous psychiatric require not capital from testimony to be excluded ness marking began Recently, the Court Acknowledging problems sentencing. subcategory: of this bounds Crawford that testimony, the Court stated with such police in the course of made Statements “the have benefit the defendant would when “are testimonial interrogation its Id. expose to flaws. examination” cross that objectively indicate circumstances 898-99, 103 3383. at S.Ct. ongoing emergency, ... is no there Text, history, precedent structure interroga- purpose of primary that the Clause applying Confrontation past favor prove or events tion to establish is sentencing. capital to full force prose- with to criminal relevant later potentially may guide application still Davis, While Williams at 2273-74.17 cution.” capital sentenc- rules of evidence two of rule suffices resolve Fields’s This been Clause has ing, the Confrontation challenges. Crawford force, and it is unfortunate given new away at a that force majority takes King Shoot- Hearsay A. Witnesses It clear to it most needed. time when ing

me, hold that and I would when con- argues that was denied Fields he hand down a death sen- plausibly cannot when, objection, his rights over frontation facts, those finding certain tence without permitted were relate police officers found with the Confron- facts can be to establish statements out-of-court protections. tation Clause’s prior crimes. committed violent are de novo. challenges These reviewed II. Statements Testimonial Rueda-Rivera, States See United Wrongfully Admitted Cir.2005). the Confrontation Having found sen- application has some Testimony January’s 1. Detective challenged tencing, I turn to would hearing, the Gov- sentencing At Fields’s their ad- whether statements determine January, a Po- called Steve Waco ernment mission Fields’s confrontation violated January testi- Department lice detective. Crawford, Supreme Court rights. investigated in shooting he fied about bars the Confrontation Clause held asked wheth- prosecution of a When “admission testimonial statements January to witnesses” after re- er “talked appear not unless witness who trial did response police interroga- made in Davis made clear it was ments 17. The Court in marking outer bounds of testimonial 126 S.Ct. at n. 1. tion. See subcategory of state- statements or even of the one shot incident, is] me that objected [Fields Fields sponding After [him].” Clause. under Confrontation objection, Jan- overruled court district Application Davis/Hammon on “a cumulation based

uary testified and the persons” from different Court’s recent deci- Supreme stories Under people” who and Ham- “at least five Washington in Davis v. statements sions actually inter- officers responding Indiana,18 mon v. the statements related January, these sto- According to viewed. sentencing were by January at Fields’s in implicated ries and statements eyewit- hearsay.19 Both the testimonial King. named Ladon of a man shooting King’s statements ness statements of the wit- January testified some unit bear substan- from the intensive care saw the defen- he had interviewed nesses similarity tial to the testimonial statements King. shoot at dant instance, all of in the Hammon case. For by January were related the statements investigation at the January’s Based on questioning. response police in given scene, sought the Government crime Davis, in Ham- See 126 S.Ct. at 2278. As mind” about jury’s] in picture “a paint [the mon, crimi- deliberately past narrated all during this shoot- doing what Fields was here, See id. The declarants nal events. investiga- that his January testified out. Hammon, away in were interviewed like accomplice and' an that Fields tion showed defendant, Fields. from the courtyard of an Kang in the cornered He further testified complex. apartment at issue are Additionally, the statements a vehicle around “Fields had driven the Su- substantially different from those through the firing weapon [began] in found nontestimonial preme Court accomplice Fields’s southeast corner.” Davis, nontes- Davis. the Court found corner, and firing opposite from an was opera- to a 911 given timonial statements caught in a cross-fire.” “was kind of King resolving present purpose tor for January, King was hit and According id. at 2276. January’s emergency. See required injuries that serious sustained not ad- that he was testimony indicated “a he had suffered surgery. Specifically, progress” but dressing “emergency an lung.” punctured investi- conducting a criminal instead scene See id. As to the crime gation. his inter- January also testified about he re- January testified that investigation, in the inten- place took King, view of which shooting the victim sponded after hospital day care unit of a sive after vehicle.” private “had left that location King was lucid shooting. Although that he or testified interviewed, January never “he couldn’t to be enough gunfire. heard responding officer grimacing other very without speak words well (“[T]he interrogating Compare id. at 2278 January, he According pain.” he testified that King Hammon] if officer lineup [in to see King photo showed crashing and saw arguments no or him. heard men who shot pick out the could anything.”) More- or break no one throw that Fields January King whispered said wit- interviewing with over, conjunction upper that hit him in the fired the shot responding nesses, January and the other ... and told me close “[King] pulled torso: argue does jointly 19. The Government Hammon case was decided 18. The opinion. with Davis in a single Discussions were nontestimonial. statements a citation to are with of either case referenced Davis, lead-captioned case. evidence, for physical

officers looked ulti- Crawford, 53-54, 541 U.S. at mately “a collecting number of shell 1354. cas- and a bullet. ings” 3. The Violation Not Was Crawford King’s Fields, toAs identification of that Harmless given January to hospital was from a room The Government contends that day after the incident. See id. at 2276 error is harmless. “Confronta Crawford (noting that the statements found testimo- tion Clause ... subject errors are nial in place “took hours after Crawford analysis.” Hall, harmless-error See described”). the events [the declarant] F.3d at 406. Since constitutional error is These show January circumstances was issue, proof “[t]he burden of is on the conducting investigation, a criminal as he Government to show that the error was himself repeatedly. testified He “was not by proving beyond harmless a reasonable seeking to determine ‘what is happening,’ doubt the error did not contribute ” happened.’

but rather ‘what Id. 2278. the sentence received.” United States v. Garza, (5th Cir.2006). 448 F.3d Furthermore, Davis/Hammon, under case, In this the Government cannot meet is not interrogations critical that the oc- that “arduous burden.” United States v. arguably curred in an informal setting. Pineiro, 284-87 Cir. majority The pointedly Davis/Hammon 2005). rejected approach, the dissent’s which January’s testimony significant was evi- would have limited testimonial statements dence. It was the evidence showing given those under circumstances “suffi- participated Fields in the King shoot- ciently formal to resemble the Marian ex- ing. The Government discussed inci- (Thomas, J., aminations.”20 Id. at 2284 dent at closing part as of its contention Instead, dissenting). majority held, previously had “participated in imports “It ... formality sufficient attempted and murders other serious acts lies to [police] are criminal officers of- violence,” which it had alleged as a fenses.” Id. at 2278 n. 5. nonstatutory aggravating factor: “You objective circumstances indicate also heard that [Fields] was released primary purpose police July of ... and after that in approxi- questioning at issue to “nail down the mately September he and accomplice] [an truth about past criminal events.” Id. at shot at King.” Ladon listing After several Thus, 2278. given statements in re- (some other incidents of which were also sponse were testimonial. Government proven .The with testimony21), unconfronted did not establish that declarants were Government stated: “Those are the other unavailable, and Fields had no opportunity attempted and other murders serious acts Therefore, cross-examine them. the in- violence, them, you some heard the troduction of the testimonial statements evidence but many, those are the ones I violated the you Confrontation Clause. See want to think about.” 20. ..., “Pretrial became routine un- purpose examinations nal they came to be used as der two passed during statutes reign evidence in Crawford, some cases....” Queen Mary century. in the 16th These Ma- (internal U.S. at 124 S.Ct. 1354 citations rian bail and required jus- committal statutes omitted). peace tices suspects to examine witnesses felony certify cases See, C., e.g., Sub-parts B. & infra. results to the origi- court.... Whatever the uncertainty “reveal[ed] their deliberations used addition, the Government guilt” defendant’s] [the about closing argu- in its rebuttal shooting King finding of harmless against a “weighted] case for defense’s to counteract ment Barnes, error”); 71 F.3d v. Medina that Fields argued It capacity. impaired Cir.1995) (10th ju- (holding that the tragic despite his over himself control had point during their “at one rors’ statement his along choices “He made background: un- they might that be ... deliberations example, an Govern- As life.” whole was a a unanimous verdict” able reach shooting, stating King to the pointed ment preju- was suggesting error circumstance apart- to an go ... “chose that Fields dicial). error to find harmless Reluctance people and and with kids complex ment impasse an indicating note despite jury a deal- drug another a shoot-out with have here, on direct re- appropriate especially case broadly, Government’s er.” More view, burden the Government’s where of serious a record had track that Fields apex. its proof case at sentenc- to its central was violence in the attack participation ing. Fields’s that the sen- indications There other are provided substantial January described jurors The unan- issue was close. tencing for that theme. support number of substantial imously found a (1) factors, including that Fields mitigating con- jury that record indicates The his forma- during abuse physical suffered a to be decision sentencing its sidered (2) abuse suffered years, emotional tive for six deliberating one. After difficult (3) years, suffered during his formative a court hours, the district jurors sent during his formative parental neglect from im- be would what sentence inquiring note (4) violent to the exposed was years, Later, the agree. they if could not posed ones, members, family loved deaths of flatly, stating “We another sent note (5) years, his formative during friends agreement.” to a unanimous come cannot having a his life without lived most of jury to court instructed Only after the (6) product is the figure, father significant it return death did deliberating continue im- background which impoverished of an verdict. into integration hampered his or paired unwilling find often have been Courts so- mainstream of and economic the social record, as in this harmless where error significant periods spent ciety, and jurors that case, affirmatively shows solitary confinement. life in his fact “The with their verdict. struggled miti- significant jurors found other Some deadlocked jury initially was that found, for jurors Eleven gating factors. receiving an only after verdict reached problems example, that Fields’s behavioral an may support inference charge Allen that a death time and may over decrease States v. United the case close.” that injury, cause emotional would sentence (2d 102, 109 Cir. F.3d Jean-Baptiste, Two harm, family. Fields’s loss to Collins, 1999); see also Powell his Fields committed jurors found Cir.2003) (finding prejudice du- substantial unusual and crime “under because, in its sentenc point “at one part recently had found ress.” One deliberations, jury informed ing environ- a structured responded well to and could it was ‘at a stalemate’ court life prison likely adapt would ment and a death sen impose agree whether to imprisonment. to life if he were sentenced Varoudakis, 233 tence”); States United nonetheless Cir.2000) maintains (1st (jurors’ note Government 113, 127 beyond a was harmless any error in that impasse” an they “at stating that were Tichenor, According points It to nontestimo- December doubt. reasonable showing “They patrol officers that sentencing evidence indicated nial other vio- they gun- numerous robbed at responded Fields was involved were beyond incidents subjects,” “they and criminal point by lent two one of whom those extra King shooting. While some of as ... Fields.” identified Sherman they significant, do not elimi- incidents are Tichenor testified to the details of the that the erroneous- nate reasonable doubts the victims alleged crime based what testimony repeatedly stressed ly admitted they in a “They indicated that were said: regarding King government driving along car with ... Fields” and an the scales for at least one shooting tipped accomplice. driving “While down jurors, thereby enabling a death street, accomplice] pulled out a [Fields’s sentence. gun, money demanded from both and the in- proof The Government’s of Fields’s jewelry that victims had with both two King shooting volvement in the oc- —which them. fired a shot inside the car. [He] in time to Fields’s trial curred much closer jewel- subjects up giving Both ended their may previous attempted than his murder — ry money ac- to Mr. Fields [his ” weight to the death significant have added complice].... Tichenor also testified The Government has not side of scale. accomplice that Fields’s told Tichenor beyond a reasonable doubt that the shown he and Fields had driven from Waco to verdict would have been the same absent day buy in crack Killeen $4500 that the weight. this added Given Govern- cocaine. Tichenor further stated that King shooting emphasized ment accomplice firing Fields’s admitted to closing, struggled that the to reach a in shot the car in order to scare them. verdict, it miti- significant and that found by The Tichenor statements related are factors, gating hearsay the testimonial re- for the that the testimonial same reasons by January lated was not harmless. I by January statements related are testi- vacate Fields’s death sentence. would investigating police monial. The officers an criminal responded to do after-the-fact B. Additional Claims Crawford investigation. They addressing were not hearsay Apart from testimonial re- ongoing emergency. an The declarants King shooting, government lated to the past persons described criminal conduct to repeatedly testimony relied on to make its they police Finally, knew were officers. just case for a death sentence. As one implies the record that the statements at officer, example, police a Killeen Daniel given were in response issue direct Tichenor, testify was allowed to based on questioning. reports that Fields witness was involved robbery, despite objec- testimony, an armed This January’s, Fields’s like Officer very tion that he should allowed to be confront well could have been the difference Beyond life the witnesses themselves. Tichenor testi- between and death for Fields. alleged January’s fied that two victims of an armed Officer and Tichenor’s testimo- robbery police ny, goes contacted the the list on and on.22 department argues Department 22. Fields also that his confrontation Texas of Criminal Justice rec- rights were violated the Government’s in- ords. These documents contained unfavora- (1) officers, probation County troduction of McLennan ble from cor- Fields's statements records, officers, (2) psychologists, Jail and other Federal Medical Center rec- rections ords, (3) file, juvenile testify delinquency declarants who did not at Fields’s tri-

III. Conclusion was sentenced Lamont

Sherman testimony that he was on based

to death precisely That is confront. able to

never Clause the Confrontation

the evil troubling That against. protect

meant by categorizing be remedied

fact cannot as to selection testimony speaking as jury’s factors. eligibility

opposed and the a sentence agreeing

difficulty high- factors found mitigating

number be. can distinction

light how artificial the Confrontation find that

I would sentencing as applies and remand the FDPA under

structured resentencing. case for

this America, STATES

UNITED

Plaintiff-Appellee, ROSENBAUM-ALANIS,

Everardo

Defendant-Appellant.

No. 05-41400 Lee Snyder, James Kathlyn Giannaula Calendar. Conference TX, Houston, for Turner, Attys., U.S. Asst. Appeals, States Court United Fifth Circuit. Def., Mi- Pub. Fed. Marjorie Meyers, A. 29, 2007. March Landau, Herman, Beth Sarah L. chael TX, Defendant-Appellant. Houston, certainly these additional resentencing. But all, hundreds contain the exhibits al. evalu- court never district "replete with argues are claims—which pages, which the Confrontation hearsay found statements.” ated because claims, for additional apply cause evaluate Fields's did need There is no —are testimony has he concern. unconfronted because enough warrant be already shown would notes cases might partial return a which the that cap- confirm considerations four other Only eigh- fraction of small verdict. when comes to sentencing unique ital teenth-century gen- criminal trials were constitutional Clause: the Confrontation or inquiries guilt into uinely contested of FDPA sen- history, trial-like nature cases, many perhaps innocence. death-is-dif- Court’s tencing, Supreme most, caught had been accused precedent specif- jurisprudence, ferent goods or the stolen or oth- the act with confrontation in invoking right ically

Case Details

Case Name: United States v. Fields

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Apr 2, 2007

Citation: 483 F.3d 313

Docket Number: 04-50393

Court Abbreviation: 5th Cir.